author: TUTTLE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Gary BOWDACH, Defendant-Appellant.
    No. 71-2304.
    United States Court of Appeals, Fifth Circuit.
    Feb. 23, 1973.
    Daniel S. Pearson, Miami, Fla. (Court appointed), for defendant-appellant.
    Robert W. Rust, U. S. Atty., Miami, Fla., James H. Walsh, Atty., Dept, of Justice, Tampa, Fla., John J. Robinson, Atty., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before TUTTLE, GEWIN and THORN-BERRY, Circuit Judges.
   TUTTLE, Circuit Judge:

We have held this case pending the decision by the court en banc in United States v. J. W. Robinson, etc., 472 F.2d 973. That decision was released on January 12, 1973, remanding the ease to the district court for an evidentiary hearing “to determine whether the wiretap applications in this case were properly authorized under 18 U.S.C.A. § 2516 (1).” Although the case before this panel may differ in certain material respects from that described in Robinson, we nonetheless think it appropriate to follow the procedure set forth by the en banc court in Robinson and, accordingly, we remand to the district court for an evidentiary hearing on the validity of the wiretap procedures used in this case.

The case before us arises in the following context. As in Robinson, the issue was presented for the first time on appeal as to whether the wiretaps, evidence from which eventuated in the conviction of appellant Bowdach in the district court for violations of the Extortionate Credit Transactions Act, were properly authorized in accordance with the procedural requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. § 2510 et seq. According to the affidavit of Henry E. Petersen, then Deputy Assistant Attorney General of the Criminal Division, Department of Justice, a formal request for authorization to apply for the wire interception order was made by the Director of the FBI in April, 1970. This request was examined by a unit of the Organized Crime and Racketeering Section of the Criminal Division which determined that the request for authorization should be granted. The file was reviewed by Petersen who then forwarded it to the Office of the Attorney General along with his favorable recommendation. On April 15, 1970 in an initialed memorandum to Will Wilson, then Assistant Attorney General of the Criminal Division, Attorney General John Mitchell responded in the following language:

“This is with regard to your recommendation that authorization be given to James B. F. Oliphant, Special Attorney, Miami Strike Force, to make application for an interception order under 18 U.S.C. 2518, authorizing the Federal Bureau of Investigation to intercept wire communications for a ten (10) day period to and from three telephones subscribed to by Sonny Brock Motors, located at 1068 Northwest 36th Street, Miami, Florida and bearing telephone numbers 635-8624, 635-8625 and 635-8626 in connection with the investigation into possible violations of 18 U.S.C. 892, 893 and 894 by Gary Bowdach and Louis Cic-chini, a/k/a “Chick” Cicchini and others as yet unknown.
Pursuant to the powers conferred on me by Section 2516 of Title 18, United States Code, you are hereby specially designated to authorize James B. F. Oliphant, Special Attorney, Miami Strike Force, to make the above-described application.”

Upon receipt of the memorandum Petersen dispatched a letter to James B. Oli-phant advising him that he was authorized to present the application to the court. As a matter of standard procedure this letter was signed by Petersen in Will Wilson’s name. Wilson did not himself examine the file in the case.

Thereafter Oliphant presented an application to the federal court. He stated therein that:

“. . . the Attorney General . . . has specially designated . . . the Honorable Will Wilson to authorize the affiant to make this application for an order authorizing the interception of wire communications. The letter of authorization signed by the Assistant Attorney General is attached to this application.”

Upon due consideration the court entered an order authorizing the wiretaps here at issue “pursuant to application authorized by the Assistant Attorney General . . . Will Wilson, who has been specially designated . . .’’by the Attorney General.

In light of the foregoing, it would appear that this case differs from Robinson in two respects. First, in the Robinson case, it was Mitchell’s Executive Assistant, not Mitchell himself, who apparently initialed the memorandum to Will Wilson which stated, “Pursuant to the powers conferred on me by Section 2516 . you are hereby specially designated to authorize [the named individual] .. . to make the above-described application.” Here, for all that appears, it was Mitchell himself who initialed the memorandum to Will Wilson.

Second, and far more important, is the fact that in this case Mitchell, by way of affidavit, averred as follows:

“On April 15, 1970, I approved a request for authority to apply for an interception order in this case. Attached is a copy of my personally initialed memorandum of that date reflecting my favorable action on the request.
“My memorandum of approval in this case constituted a notification to the Assistant Attorney General of the Criminal Division that the discretionary action of approving the request to make application to the court for an interception order was taken by me.”

At oral argument counsel for Bowdach agreed to waive any objection to the procedure of supplementing the record by way of affidavit, provided such affidavits recited facts based on personal knowledge, and were not merely interpretative or conclusory. In his supplemental brief he now argues that the statement contained in Mitchell's affidavit falls within the latter category and thus cannot be considered, at least by this court, as a statement of facts based on personal knowledge. Because of the contention that Mitchell’s statement might be viewed as merely construing the legal impact of his memorandum to Will Wilson and, therefore, as stating a conclusion of law as to what the memorandum signified, we think we should not undertake to resolve this issue on the record before us. Upon remand the district court should determine whether Mitchell himself authorized the application or whether the memorandum in fact designated Will Wilson to undertake the discretionary act of authorization.

If the court finds that the Attorney General did not himself authorize the application, then it would appear that the procedure followed in this case is, as a legal matter, virtually indistinguishable from the situation described in Robinson. If, on the other hand, the court finds that the Attorney General did in fact personally authorize the application, as his affidavit suggests, then the legal effect of this action is quite different from Robinson and the disposition of the case depends on whether or not the district court’s order authorizing the particular wiretap and the application upon which this order was based were defective inasmuch as they identified Wilson, not Mitchell, as the authorizing official.

Prior to the oral argument of this case appellant Bowdach moved to remand to the district court for an evidentiary hearing on the wiretap issue or alternatively to require the government to supplement the record on appeal. The government joined in the motion to remand and we carried the motion with the case. We have concluded, on the basis of Robinson, that it would be improper to have the record in this case supplemented on appeal. We, therefore, grant'the motion to remand.

Remanded for further proceedings in accordance with this order.

      . In pertinent part the letter reads: “ . . . [Y]ou are hereby authorized, under the power specially delegated to me in this proceeding by the Attorney General ... to make application to a judge of competent jurisdiction for an order . . . authorizing the Federal Bureau of Investigation to intercept wire communications from the above-described three telephones for a period of ten (10) days.”

      . Under the disposition we make of this case, of course, it will be the function of the district court to determine the actual facts pertaining to the procedures followed by the Justice Department in authorizing the application for this particular wiretap. We merely state the circumstances of the case as they have appeared to us from the affidavits submitted to this panel in order to set forth the issues which we think this case presents.

      . The Robinson situation turns on the interpretation of Section 2516(1), Title 18 U.S.C.A., the situation above described in Section 2518 of the Act.


source: Caselaw Access Project

author: FERGUSON, District Judge:

license: Public Domain

text:
    Carl Johannes ANDERSON, Appellant, v. Walter C. NEMETZ, Individually and as Chief of the City of Scottsdale Police Department, et al., Appellees.
    No. 72-1109.
    United States Court of Appeals, Ninth Circuit.
    Jan. 24, 1973.
    Rehearing Denied Feb. 20, 1973.

      Paul G. Ulrich (argued), Roger W. Kaufman, of Lewis & Roca, Phoenix, Ariz., for appellant.
    Japes G. Bond, Asst. Atty. Gen. (argued), Gary K. Nelson, Atty. Gen., Phoenix, Ariz., for appellee.
    Before ELY and GOODWIN, Circuit Judges, and FERGUSON, District Judge.

       Honorable Warren J. Ferguson, United States District Judge, Central District of California, sitting by designation.

   FERGUSON, District Judge:

This is an appeal from a final judgment dismissing an action brought under the Civil Rights Act, 42 U.S.C. § 1983, for declaratory and injunctive relief against further prosecution under a section of the Arizona vagrancy statute. We reverse and remand.

The undisputed facts reveal the following :

1. Arizona Revised Statutes § 13-991, subsec. 3 provides:

“The following are vagrants and shall be punished by imprisonment in the county jail for not to exceed ninety days:
* -X- * * * -X-
“3. A person who roams about from place to place without any lawful business.”

2. In 1967, appellant, a 20-year-old resident of Scottsdale, was arrested by two city police officers and charged under section three of the vagrancy statute.

3. He was taken to the police station, questioned, stripped and searched for narcotics. No evidence of any crime was found and he was released on $50 bond.

4. A complaint was filed against him, and a court trial was held in the Scottsdale City Court. The officers testified that they arrested appellant because they believed he was in a place where he should not be, he had no legal business being there, and he could give no satisfactory reason why he should be there.

5. Appellant’s sole defense was the unconstitutionality of the statute. His motion to dismiss the -prosecution was denied and he was found guilty. *

6. He appealed to the Maricopa County Superior Court on the City Court trial transcript. That court denied appellant’s motion to dismiss on constitutional grounds, affirmed the conviction, and returned the case to the City Court.

7. Appellant then appealed to the Arizona Court of Appeals, again challenging the constitutionality of the statute. The Court of Appeals dismissed the appeal, holding that the Superior Court had improperly affirmed the City Court judgment instead of conducting a de novo trial. State v. Anderson, 9 Ariz. App. 42, 449 P.2d 59 (1969).

8. Anderson again appeared in the Superior Court, and a trial was conducted on the basis of the City Court transcript. Again, he challenged the constitutionality of the statute. The Superior Court found appellant not guilty and exonerated his bond, without considering the constitutional issues presented.

9. Shortly thereafter, in 1969, appellant brought this action in the district court. The uneontroverted facts before that court reveal:

(a) Appellant is a Scottsdale resident.
(b) He desires to walk about the streets in Arizona without being subject to arrest for vagrancy based solely upon his presence on the streets.
(c) On many occasions he has walked from place to place without pursuing any business purpose, either lawful or unlawful, but merely for personal reasons.
(d) He intends to continue his walking.
(e) The law enforcement officers of Arizona will continue to enforce the statute against appellant for the same conduct which occurred at his original arrest.
(f) During 1967, 1968 and 1969, 384 arrests were made in Scottsdale under the statute.
(g) Over 90% of the arrests led to court proceedings.
(h) There have been no state appellate court or federal court proceedings in which the constitutionality of any part of A.R.S. § 13-991 has been determined.

10. During the pendency of the action in the district court, the Attorney General of Arizona asked the State Legislature to repeal the statute. The legislature refused.

Constitutionality

The unconstitutionality of the statute on its face is plain. See Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). Appellees concede that the statute is not constitutionally defensible and contend only that (1) appellant lacks standing to challenge its constitutionality, and (2) the federal courts should abstain from exercising jurisdiction.

Standing

Appellees assert that appellant lacks standing to challenge the statute because he is not presently under arrest. In Golden v. Zwickler, 394 U.S. 103, 110, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969), the Supreme Court reaffirmed that no federal court has jurisdiction to hold any statute void for repugnance to the Constitution “except as it is called upon to adjudge the legal rights of litigants in actual controversies.” The Court adopted the test set forth in Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941):

“The difference between an abstract question and a ‘controversy’ contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”

In Golden v. Zwickler, the plaintiff sought a declaratory judgment that the statute under which he was prosecuted for distributing anonymous political handbills was unconstitutional. The leaflets had attacked a Congressman who had run for reelection but had since become a judge. The Court held that since it was most unlikely that the former Congressman would again run for Congress, it was highly doubtful that another occasion would arise when the plaintiff would again be prosecuted for his conduct.

The test is one of reality. Zwickler was prosecuted once, but because the Congressman who was the original target of the handbills would not again stand for reelection, it was not within the realm of reality that another prosecution would result under the statute.

In Evers v. Dwyer, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222 (1958), appellant refused to comply with a bus driver’s order that he move to the rear of the bus. Thereupon two police officers boarded the bus and ordered appellant to move to the rear, get off, or be arrested. Appellant chose to get off. The Court held that

“[w]e do not believe that appellant, in order to demonstrate the existence of an ‘actual controversy’ over the validity of the [state] statute here challenged, was bound to continue to ride the Memphis buses at the risk of arrest if he refused to seat himself [in the rear of the bus]. A resident of a municipality who cannot use transportation facilities therein without being subjected by statute to special disabilities necessarily has, we think, a substantial, immediate, and real interest in the validity of the statute which imposes the disability.” 358 U.S. at 204, 79 S.Ct. at 179.

The use of the sidewalks of Scottsdale presents the same immediate and real controversy as does the use of the buses in Memphis.

In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Court held that while one plaintiff had an “acute, live controversy” with the state because he had been indicted, three other plaintiffs, who sought an injunction against prosecution because they “felt inhibited” by the statute, did not have standing to maintain the action:

“If these three had alleged that they would be prosecuted for the conduct they planned to engage in, and if the District Court had found this allegation to be true . . . then a genuine controversy might be said to exist. But [they] do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible. . . . [P]ersons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs [in cases to enjoin a state prosecution]. . . .” 401 U.S. at 42, 91 S.Ct. at 749.

Appellant Anderson’s fears of prosecution by the state are not “imaginary or speculative.” He has already been arrested once, and has endured four rounds of trial and appeals. The declared intention of the state to continue to enforce the statute against him, coupled with the 384 arrests over a three-year period in Scottsdale alone, provide a realistic basis for fear of prosecution, and serve to establish the “acute, live controversy” required for standing. Appellant also clearly has the “personal stake in the outcome of the controversy [necessary] to assure that concrete adverseness which sharpens the presentation of issues” detailed in Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968), and in Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

In Boyle v. Landry, 401 U.S. 77, 80-81, 91 S.Ct. 758, 760, 27 L.Ed.2d 696 (1971), the Court denied standing because

“[n]ot a single one of the [plaintiffs] had ever been prosecuted, charged, or even arrested under the statute .... [TJhe complaint contains no mention of any specific threat by any [law enforcement] official ... to arrest or prosecute any ... of the plaintiffs

And in Poe v. Ullman, 367 U.S. 497, 508, 81 S.Ct. 1752, 1758, 6 L.Ed.2d 989 (1961), the Court held that standing was lacking because “[t]he fact that Connecticut has not chosen to press the enforcement of this statute deprives these controversies of the immediacy which is an indispensable condition of constitutional adjudication.” It is apparent that neither Boyle v. Landry nor Poe v. Ullman deprives the appellant of standing in the instant case.

We hold that the appellant has standing to challenge the statute. The threat of future arrest is immediate and real. He need not suffer the ignominy of a further arrest and strip search. Standing to challenge is not a special status conferred only upon the brave or those who are willing to physically give up their liberty. The courthouse is open as well to the physically timid but intellectually and morally strong.

Abstention

Appellees next assert the doctrine of abstention. That concept of federalism, of course, is set forth by the Supreme Court in the companion cases of Younger v. Harris, supra, through Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971), and finally in Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972).

Mitchum determined that the Civil Rights Act, 42 U.S.C. § 1983, falls within the express exception to the federal anti-injunction statute, 28 U.S.C. § 2283. However, the Court emphasized the Younger v. Harris principles of equity, comity and federalism that must restrain a federal court when asked to enjoin a state court proceeding.

In Younger, an injunction against a pending state criminal prosecution was reversed “as a violation of the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances.” 401 U.S. at 41, 91 S.Ct. at 749.

Appellant argues that the Younger v. Harris series of decisions is inapplicable by their terms to cases such as the instant one where there is no pending state court proceeding. We agree. The sentence of Younger v. Harris following that quoted above explicitly states that

“[w]e express no view about the circumstances under which federal courts may act when there is no prosecution pending in state courts at the time the federal proceeding is begun.” 401 U.S. at 41, 91 S.Ct. at 749.

Moreover, Justice Stewart, in his concurring opinion joined by Justice Harlan, expressly noted that

“[i]n all of these cases, the Court deals only with the proper policy to be followed by a federal court when asked to intervene by injunction or declaratory judgment in a criminal prosecution which is contemporaneously pending in a state court.” 401 U.S. at 54-55, 91 S.Ct. at 757. (Emphasis added.)

Justice Brennan’s concurring opinion, joined in by Justices White and Marshall, also distinguished the Younger decisions from cases where “no state proceeding was pending at the time jurisdiction attached in the federal court.” 401 U.S. at 57 n„ 91 S.Ct. at 755.

There are sound policy reasons for holding that the abstention doctrine enunciated in Younger and its companion cases should not be applied in cases where no state prosecution is pending. Mr. Justice Brennan, in a separate opinion in Perez v. Ledesma, supra, 401 U.S. at 93, 103-104, 91 S.Ct. at 686, joined by Justices White and Marshall, stated that

“[t]he key predicate to answering the question whether a federal court should stay its hand, is whether there is a pending state prosecution where the federal court plaintiff may have his constitutional defenses heard and determined. ... If the state prosecution was first filed and if it provides an adequate forum for the adjudication of constitutional rights, the federal court should not ordinarily intervene. When, however, at the time of the federal hearing there is no state prosecution to which the federal court plaintiff may be relegated for the assertion of his constitutional defenses, the primary reason for refusing intervention is absent. yy

Justice Brennan also noted the disruptive effect that federal intervention may have on state court proceedings. He contrasted the situation in which “there is a continuing live controversy and federal intervention is sought when there is no state prosecution in which the statute may be tested.” In such a situation, “the justification for intervention is that individuals should be able to exercise their constitutional rights without running the risk of becoming lawbreakers.” 401 U.S. at 120-121, 91 S.Ct. at 695; cf. Thoms v. Smith, 334 F.Supp. 1203, 1207 (D. Conn. 1971).

In Hull v. Petrillo, 439 F.2d 1184, 1188 (2nd Cir. 1971), the court stated the purpose of the abstention doctrine to be “basically twofold: to maintain a proper working relationship between the state and federal units of government, and to avoid premature constitutional adjudication in the federal courts.” If no state prosecution is pending, “the harmonious relation between state and federal authority,” Railroad Commission v. Pullman Co., 312 U.S. 496, 501, 61 S.Ct. 643, 645, 85 L.Ed. 971 (1941), is not threatened. Moreover, it is clear that where state courts have refused to rule on constitutional issues, “premature constitutional adjudication” will not result from the federal court’s exercise of jurisdiction.

Our holding that the Younger series of cases does not bar federal intervention where no state prosecution is pending is in accord with recent federal decisions. For example, in Thoms v. Smith, supra, a three-judge district court refused to abstain from deciding whether Connecticut’s “misuse of the flag” statute was constitutional, in an action brought under the Civil Rights Act. The court stated that “[bjecause there is no prosecution pending against Thoms or the class he represents, Younger is inapplicable and imposes no bar to our consideration of the merits.” 334 F.Supp. at 1206. In Hull v. Petril-lo, sufra, the court reversed the dismissal of an action for declaratory and in-junctive relief regarding the application to newspapers of an ordinance requiring a license to sell books on the street. It distinguished the Younger v. Harris series of cases on the ground that the case before it did “not concern a situation where a federal court has been called upon to enjoin a pending state prosecution.” 439 F.2d at 1186 n.l. Other courts have refused to apply the doctrine of abstention where no state prosecution is pending in Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971); Anderson v. Vaughn, 327 F.Supp. 101 (D.Conn. 1971); and C’est Bon, Inc. v. North Carolina State Board of Alcoholic Control, 325 F.Supp. 404 (W.D.N.C.1971); cf. Cantrell v. Folsom, 332 F.Supp. 767 (M.D.Fla.1971).

We hold that the Younger v. Harris series of cases is inapplicable in the absence of a pending state criminal prosecution, and accordingly there is no basis for federal abstention in this case.

Three-Judge Court

Appellant, in filing his action, sought the convening of a three-judge district court pursuant to 28 U.S.C. § 2281 to enjoin the enforcement of a state statute of statewide importance. The district court dismissed the action without convening the three-judge panel. The dismissal of the action was in error. The question remains as to what disposition of the proceedings should be made by this court.

Appellees concede that if appellant has standing and the court does not abstain from exercising its jurisdiction, it would be a needless strain upon the administrative procedures of the federal courts to require that the district court be directed to convene the statutory three-judge court. They admit the propriety of the rule set forth in Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962), that when the unconstitutionality of a statute is no longer a litigable issue, the reason for convening a three-judge court is inapplicable, and a single-judge district court has jurisdiction to make an expeditious disposition of the litigation. As was stated in Utica Mutual Insurance Co. v. Vincent, 375 F.2d 129, 131 n.1 (2nd Cir.), cert. denied, 389 U.S. 839, 88 S.Ct. 63, 19 L.Ed. 2d 102 (1967), “Congress could not have intended to require three judges to be assembled when decision could not possibly go in any manner save one.”

As the result of Papachristou, supra, the unconstitutionality of the Arizona vagrancy statute is apparent. The district court can only grant appellant his relief. In order to avoid needless further proceedings, and in order to dispose of this litigation as expeditiously as is consistent with proper judicial administration, the judgment of the district court is reversed, and the cause is remanded to the district court with directions to enter a decree granting appellant injunctive and declaratory relief against further enforcement of the statute.

      . The Thoms court also found that the plaintiff had standing to maintain the action “in the context of active enforcement of the criminal statute” despite the fact that he had not been prosecuted under it. The plaintiff had merely sought an indication as to whether he would be prosecuted and had been told that he would be if he engaged in certain conduct. The court emphasized, however, that “[b]ecause the interest affected arises under the first amendment, we should be especially vigilant that it not go unprotected.” 334 F. Supp. at 1207. A similar finding of standing was made by the same three-judge court in Anderson v. Vaughn, infra.

      . Even if appellant were currently subject to a state criminal prosecution, so that the Younger v. Harris decisions were applicable, abstention would not be warranted. Younger established the criteria for determining when federal intervention is permissible even when a state court prosecution is pending. They are: (1) where irreparable injury is “both great and immediate” in that there is a threat to federally protected rights that cannot be eliminated by a defense against a single prosecution, or (2) where the state law is “flagrantly and patently violative of express constitutional prohibitions,” or (3) where there is a showing of “bad faith, harassment, or other unusual circumstanoe[s] that would call for equitable relief.” Younger v. Harris, supra, 401 U.S. at 46, 53-54, 91 S.Ct. at 755; Mitchum v. Foster, supra, 407 U.S. at 230, 92 S.Ct. 2151.
      The facts of this case indicate that although the tests are in the disjunctive, appellant has met all three.
      With reference to the first, he has asked the Arizona state courts on four occasions to declare the statute unconstitutional, without success. During three years of litigation in the state courts he did not once dispute the facts alleged by the police; he only contended that the statute was unconstitutional.
      The second test is also met by appellant. The unconstitutionality of the statute on its face is so patent that it is conceded by appellees.
      The third test is likewise met. Appel-lees assert that “[o]ne of the prime objectives of a vagrancy statute is prevention of the far more serious crimes that are likely to occur when persons are allowed to wander aimlessly about without lawful business, as portrayed by the facts of Anderson’s arrest in 1967.” No clearer statement of bad-faitli prosecution can be made. The statute is being used for the purpose of making arrests to permit investigation of other activities.


author: WIDENER, Circuit Judge:

text:
    Harold T. KLEIN et al., Appellants, v. The COMMISSIONER OF PATENTS OF the UNITED STATES, Appellee.
    No. 72-1437.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 2, 1972.
    Decided Feb. 6, 1973.

      James L. Bean, Washington, D. C. (Francis C. Browne, Washington, D. C., Peter K. Stackhouse, Tolbert, Lewis & Fitzgerald, Arlington, Va., and Browne, Beveridge, DeGrandi & Kline, Washington, D. C., on brief), for appellants.
    Fred E. McKelvey, Associate Sol. (S. William Cochran, Sol., on brief), for ap-pellee.
    Donald R. Dunner, Washington, D. C., Robert W. Mayer, Dallas, Tex., Ralph R. Browning, Houston, Tex., Paul E. Krie-ger, Washington, D. C., on brief, for amicus curiae, Dresser Industries, Inc.
    Before CRAVEN, RUSSELL and WIDENER, Circuit Judges.
   WIDENER, Circuit Judge:

The issue decided in this patent case is whether the denial of a motion to dissolve the declaration of an interference by the Patent Office, pursuant to 35 U.S.C. § 135(a), constitutes final agency action reviewable by federal courts under the Administrative Procedure Act, 5 U.S.C. § 704.

The district court granted the motion of the appellee, Commissioner of Patents, to dismiss the complaint for lack of subject matter jurisdiction and for failure to join an indispensable party. Appellants, Klein, Poage, and Robbins and Associates, Inc., appeal.

On June 4, 1968, Poage filed application for a patent which the Patent Office issued on July 8, 1969, United States Patent No. 3,454,114. On August 7, 1967, Klein filed application for a patent which the Patent Office issued on August 26, 1969, United States Patent No. 3,463,247. Appellant Robbins and Associates is the owner of Poage ’114 and Klein ’247.

On September 15, 1967, Norman Dyer and Roy Van Winkle (Dyer, et al.) filed application for a patent which the Patent Office issued on May 27, 1969, United States Patent No. 3,446,284. Dresser Industries is the owner of Dyer et al. ’284. Neither Dyer et al. nor Dresser were made parties to this action, although Dresser has filed an amicus brief.

On December 5, 1969, Dyer et al. filed a reissue application, the purpose of which was to secure claims in addition to those claimed in their original patent issued on May 27, 1969, Dyer et al. ’284. This reissue application is presently pending in the Patent Office. Five of the claims in the Dyer reissue application are identical to five of the claims in Poage ’114 and nine are identical to nine claims in Klein ’247. All of the patents relate to rotary drilling mechanisms. After Dyer et al. filed their reissue application, interference proceeding No. 97,360 was declared by the Examiner of Patent Interferences, on July 16, 1970, between certain claims of the Dyer et al. reissue application and certain claims of Poage ’114, and, on the same day, the Examiner declared interference proceeding No. 97,361 between certain claims of the Dyer et al. reissue application and certain claims of Klein ’247.

Poage and Klein moved to dissolve the interferences on the grounds that the interfering claims were not patentable to Dyer because: (1) the oath which accompanied the Dyer reissue application did not comply with the statutes (35 U.S.C. § 251) and Rules of Practice (37 CFR § 1.175) because it contained no statement of facts explaining how any error occurred in failing to claim in the original Dyer et al. application for ’284 the inventions claimed by the added claims in the Dyer et al. reissue application ; (2) six of the claims in the Dyer et al. reissue application recite elements and limitations • not found in the specifications or drawings in the original Dyer patent; (3) seven of the claims of the Dyer et al. reissue application claim inventions not covered or intended to be covered by the claims originally sought and obtained in the original Dyer patent. The Examiner denied appellants’ motions to dissolve the Interferences. Appellants, pursuant to 37 CFR § 1.181, filed a petition to the Commissioner to seek review of the decision of the Examiner. The petition was denied on November 3, 1971, by the Chairman of the Board of Patent Interferences, the Commissioner’s duly authorized delegate. See 37 CFR § 1.181(g), n. 1, supra. Appellants then petitioned the Commissioner in person, pursuant to 37 CFR § 1.183. The Commissioner refused to invoke the provisions of § 1.183 but instead forwarded the petition to the Chairman of the Board of Patent Interferences to be treated as a petition for reconsideration. The Chairman denied the request for reconsideration. Following these actions, times were set by orders entered by the Patent Interference Examiner for seeking discovery and taking depositions.

Appellants subsequently filed this civil action in the District Court for the Eastern District of Virginia praying for vacation of the decisions denying the motions to dissolve the interferences and requesting an order vacating or otherwise terminating the interferences. The question of priority of invention in both of these interference proceedings has not yet been determined by the Patent Office.

Section 135 of 35 U.S.C. relating to interferences, provides in part as follows:

“(a) Whenever an application is made for a patent which, in the opinion of the Commissioner, would interfere with any pending application, or with any unexpired patent, he shall give notice ... [to the parties involved]. The question of priority of invention shall be determined by a board of patent interferences . . . whose decision, if adverse to the claim of an applicant, shall constitute the final refusal by the Patent Office of the claims involved. ... A final judgment adverse to a patentee from which no appeal or other review has been or can be taken or had shall constitute cancellation of the claims involved from the patent. . . .
“(b) * * *
“(c) Any agreement or understanding between parties to an interference, including any collateral agreements referred to therein, . . . shall be in writing and a true copy thereof filed in the Patent Office before the termination of the interference. . . . Failure to file the copy . . . shall render . . . unenforceable such agreement. . . . The Commissioner may, however, on a showing of good cause for failure to file within the time prescribed, permit the filing of the agreement . . . during the six-month period subsequent to the termination of the interference. . .
* * •>:- * * *
Any discretionary action of the Commissioner under this subsection shall be reviewable under section 10 of the Administrative Procedure Act. .” [Emphasis added]

The Rules of Practice in Patent Cases of the Patent Office, 37 CFR § 1.201, contain a helpful description of interference proceedings, which is set out below for the purpose of clarity.

“§ 1.201 Definition, when declared
“(a) An interference is a proceeding instituted for the purpose of determining the question of priority of invention between two or more parties claiming substantially the same patentable invention and may be instituted as soon as it is determined that common patentable subject matter is claimed in a plurality of applications or in an application and a patent.
“(b) . . . interferences will also be declared between pending applications for patent, or for reissue, and unexpired original or reissued patents, of different parties, when such applications and patents contain claims for substantially the same invention which are allowable in all of the applications involved, in accordance with the provisions of the regulations in this part.”

From a reading of the above statute and regulation, it is apparent that Congress has vested with the Commissioner the duty of determining priority of invention, in the circumstances present here, and the interference proceeding is the method for such determination. Ewing v. United States ex rel. Fowler Car Co., 244 U.S. 1, 37 S.Ct. 494, 61 L.Ed. 955 (1917); ACF Industries, Inc. v. Guinn, 384 F.2d 15 (5th Cir. 1967), cert. den. 390 U.S. 949, 88 S.Ct. 1039, 19 L.Ed. 2d 1140; McCutchen v. Oliver, 367 F.2d 609, 54 C.C.P.A. 756 (1966); Goodrich-Gulf Chemicals, Inc. v. Phillips Petroleum Co., 376 F.2d 1015 (6th Cir. 1967). Once the Board of Patent Interferences makes the determination of priority, any dissatisfied party may appeal to the United States Court of Customs and Patent Appeals. However, the appealing party’s adversary may require the matter to be tried in the district court if he does not agree with the appealing party's election to seek review before the Court of Customs and Patent Appeals. The dissatisfied party may also commence an action in a district court. 35 U.S.C. §§ 141,146; 37 CFR § 1.303.

Appellants contend that the final denial by the Patent Office to dissolve an interference is final agency action within the meaning of 5 U.S.C. § 701 et seq. § 704 of the Administrative Procedure Act provides in pertinent part as follows:

“Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.”

We are not persuaded that the Administrative Procedure Act authorizes, prior to action by the Board of Patent Interferences, judicial review of the denial of a motion to dissolve an interference. The statute requires two essential elements as a prerequisite to judicial review: (1) final agency action and (2) no other adequate remedy in a court. The question of the adequacy of the remedy should be reached only upon a determination that the agency action complained of is final. The decision to allow an interference to proceed, whether it be the initial decision by an Examiner or the final decision by the Commissioner when he refuses to dissolve the interference, is not final agency action. It is, in fact, preliminary agency action, and is at or near the first stage of the proceedings in the determination of the question of priority of invention under 35 U.S.C. § 135. When an interference is declared, parties may move to dissolve the interference. Once the motion is disposed of initially by the Examiner, there are essentially two administrative appeals of such disposition to the Commissioner or his delegate. However, a fina) refusal by the Commissioner to dissolve the interference means that, unless the parties settle, the interference will proceed to trial and the question of priority of invention will be determined in the administrative forum. There is no appeal from the final decision by the Patent Office to proceed with the determination of the' merits of the interference. To that extent, it is a final decision; however, the whole point of the proceeding is to determine priority of invention, and actions of the Patent Office prior to that determination are interlocutory in nature. We believe that judicial intervention at the initial stage of the determination of the question of priority of invention would disrupt the orderly administration of the Patent Office, which has been vested by Congress with the administrative duty of deciding the question of priority of invention. Phillips Petroleum Co. v. Brenner, 127 U.S.App.D.C. 319, 383 F.2d 514 (1967); Ewing, supra. In Ewing, the Supreme Court stated:

“It is to be remembered that the law gives the Commissioner both initial and final power. It is he who is to cause the examination of an asserted invention or discovery and to judge of its utility and importance; it is he who is to judge . . . whether an application will interfere with a pending one; and it is he who, after an interference is declared and proceedings had, is the final arbiter of its only controversy, priority of invention.” 244 U.S. 1, 11, 37 S.Ct. at 497.

One of the primary reasons for the finality rule in judicial review of administrative action, as codified in 5 U.S.C. § 704, is that the agency is specially suited to deal with the type of case in question, and it would weaken its effectiveness for the courts to abort the administrative procedure before the agency had completed its task. McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969); Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 767, 67 S.Ct. 1493, 91 L.Ed. 1796 (1947); Shank v. Federal Power Commission, 236 F.2d 830, 834 (5th Cir. 1956). We are thus of opinion that the action of the Patent Office in declining to dissolve the interferences here in question does not satisfy the basic requirement necessary to invoke the provisions of 5 U.S.C. § 704: the agency action complained of is not final.

There exists an additional reason, based on construction of 35 U.S.C. § 135, for rejecting appellants’ argument. Sub-section (a) of section 135 provides for a declaration of interference by the Commissioner. Sub-sections (b) and (c) relate to matters not pertinent here, but sub-section (c) expressly provides that “Any discretionary action of the Commissioner under this subsection shall be reviewable under section 10 of the Administrative Procedure Act.” [Emphasis added] Sub-section (a) here under scrutiny, has no such provision. There is a compelling inference that, had Congress intended for the discretionary action of the Commissioner under sub-section (a) to be reviewable pursuant to the Administrative Procedure Act, it would have so provided as it did for sub-section (c). It should also be noted that the statute, § 135(a), expressly provides that the determination of priority of invention shall constitute the final refusal of the claims involved in the case of an applicant, or cancellation of the claims involved in the case of a patentee. The statute does not expressly say that this is the only action concerning interferences which may be considered final action of the agency, but the implication is clear that only when the question of priority of invention has been reached has the agency finally concluded its task. The inferences raised by the language of § 135 of the statute are particularly strong in view of the fact that Congress expressed an awareness of the Administrative Procedure Act; it used language consistent with the Act; and it did not provide for judicial review of § 135(a) proceedings until the issue of priority of invention had been determined by the Patent Office.

Appellants have argued, with some justification, that a declaration of interference is a serious matter as far as the parties are concerned; it may, in effect, put a cloud on the patent; force the parties into costly litigation; and make it possible for a person to apply for a patent in bad faith and tie up a valid patent during the course of an interference proceeding. Congress, however, has provided the means for access to the courts under the Administrative Procedure Act. Unless such Act is complied with, being courts of limited jurisdiction, the district courts are without jurisdiction to intervene.

Since we hold that the District Court properly refused to review the action taken by the Patent Office because of lack of final agency action, it is unnecessary to reach the questions of adequacy of remedy or whether the action should have been dismissed for failure to join an indispensable party.

The action of the District Court is

Affirmed.

      . Van Winkle no longer had any interest in the patent.

      . § 1.181 Petition to the Commissioner (a) Petition may be taken to the Commissioner (1) from any action or requirement of any examiner in the ex parte prosecution of an application which is not subject to appeal to the Board of Appeals or to the court; (2) in cases in which a statute or the rules specify that the matter is to be determined directly by or reviewed by the Commissioner; and (3) to invoke the supervisory authority of the Commissioner in appropriate circumstances. [Emphasis added)
      * * * * *
      (g) The Commissioner may delegate to appropriate Patent Office officials the determination of the petitions under this section, with the exception of petitions under § 1.183.

      . § 1.183 Suspension of rules.
      In an extraordinary situation, when justice requires, any requirement of the regulations in this part which is not a requirement of the statutes may be suspended or waived by the Commissioner in person on petition of the interested party, subject to such other requirements as may be imposed.


author: PER CURIAM:

text:
    Joseph Carl BROWN, Appellant, and Paul Lyons v. Allyn R. SIELAFF, Commissioner of Corrections of Pennsylvania.
    No. 72-1635.
    United States Court of Appeals, Third Circuit.
    Submitted Jan. 30, 1973.
    Decided Feb. 23, 1973.

      Joseph Carl Brown, pro se.
    Michael Minkin, Asst. Atty. Gen., Dante Mattioni, Deputy Atty. Gen., E. D. Pa., and J. Shane Creamer, Atty. Gen., Philadelphia, Pa., for appellee.
    Before SEITZ, Chief Judge, ALDI-SERT, Circuit Judge, and LACEY, District Judge.
   OPINION OF THE COURT

PER CURIAM:

Appellant, a state prisoner, filed a complaint seeking injunctive relief and money damages under 42 U.S.C. § 1983 against “Allyn R. Sielaff, Commissioner of Correction, et al., defendant,” alleging that he witnessed a disturbance in Graterford Prison, Philadelphia, on July 23, 1971, and that immediately thereafter was transported to another state prison, where he was “compelled to suffer unwarranted solitary confinement under the directions of the defendant who is attempting to conceal abuse by his prison guards.” He also alleged that “all legal notes, books, history of courts, etc.,” disappeared in the course of his transfer. He later sought to amend his complaint by adding “as a principal defendant” Robert L. Johnson, Graterford Warden. The motion to amend was denied and an appeal was taken to this court at No. 71-2023. Upon motion of appellee this appeal was dismissed on May 3, 1972. The cause then proceeded in the district court solely against Commissioner Sielaff, who filed a motion for summary judgment with accompanying affidavits. An affidavit of the Major of the Guard at Graterford revealed that nine prison officers were injured at Graterford on July 23, 1971, and that “Joseph Brown . . . participated in the disturbance.” Brown has not denied this allegation. After the court granted the motion for summary judgment, Brown moved to vacate asserting that he had a valid claim against the prison officials for “loss of property,” and for “maintaining him in solitary confinement for a period of three months.” The motion to vacate was denied and the present appeal followed.

For reasons other than those stated by the district court, we will affirm.- Although the only defendant in this action is Commissioner Sielaff, the sole allegation which directly implicates him is the vague accusation of “attempting to conceal abuse by his prison guards.” Although mindful of the admonition of Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), we are convinced that this allegation is not sufficiently precise to constitute an allegation of a constitutional deprivation sustained by the appellant at the hands of the named defendant. The remaining allegations do not constitute a claim against Commissioner Sielaff for which relief may be granted. There is no allegation that he participated directly or indirectly in the circumstances constituting this claim.

We are not unmindful that appellant attempted to amend his complaint to add the Graterford Warden as a defendant on the issue of the missing legal materials and that an abortive appeal from a denial thereof was dismissed by us. Because appellant has not pressed this point in this appeal, we are unable to notice it. F.R.A.P. 28(b). We note, however, that appellant was given ample opportunity to contribute factual support to his general allegations relating to the missing papers, both in response to the motion for summary judgment and in his motion to vacate the judgment. This he failed to do. Therefore, even were this issue properly before us, we would not disturb the result reached by the district court on this issue. As to the solitary confinement allegation, it is sufficient to observe that no official of the institution where this alleged activity took place has been named as or identified as a party to these proceedings, Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972); nor was the solitary confinement issue raised as to the Graterford Warden.

The judgment of the district court will be affirmed.

      . There is no allegation as to where the solitary confinement took place. Since the complaint was filed from Huntington,_ we shall assume it took place there.

      . We do not reach the retroactivity of Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), cf., National Land & Investment Co. v. Specter, 428 F.2d 91 (3d Cir. 1970); Gray v. Creamer, 465 F.2d 179 (3d Cir. 1972); and United States ex rel. Tyrrell v. Speaker, 471 F.2d 1197 (3d Cir. 1973).


author: OAKES, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Harvey Bertram POLLAK, Appellant.
    No. 72-1896.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 14, 1972.
    Decided Feb. 27, 1973.

      Arthur S. Olick, New York City (George E. Goldberg, James P. Heffer-nan, New York City, of counsel), for appellant.
    John J. Tigue, Jr., Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., for the S. D. of New York, Gary P. Naftalis, Asst. U. S. Atty., of counsel), for appellee.
    Before KAUFMAN, ANDERSON and OAKES, Circuit Judges.
   OAKES, Circuit Judge:

This appeal is from a judgment of conviction on three counts of perjury, 18 U.S.C. § 1621, resulting in appellant’s receiving a suspended 5-year sentence and a $2,000 fine on each count. The principal claim presented is that appellant was denied a speedy trial, under the sixth amendment and the Second Circuit Rules Regarding Prompt Disposition of Criminal Cases (hereinafter the “Second Circuit Rules”). Appellant also urges that (1) he was denied a fair trial because of insufficient preparation time and impatience on the part of the trial judge during trial; (2) the trial court erred in refusing a request to charge that an answer that was “literally accurate or technically responsive, or legally truthful” was not perjurious; (3) the trial court erred in refusing to accede to the jury’s request to have the testimony of two key witnesses reread; (4) the trial court submitted too many of the questions asked appellant and his allegedly false answers to the jury; and (5) appellant was denied due process under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by the prosecutor’s failure to supply transcripts of the testimony of two potential defense witnesses. To understand the claims regarding lack of a speedy and a fair trial it is necessary briefly to state the sequence of events from the time of appellant’s arrest to the time of his trial.

The indictment was returned on May 27, 1971, charging appellant with perjury before the SEC on August 12, 1970, and before a federal grand jury on April 22, 1971. The Second Circuit Rules took effect July 5, 1971, and on November 18, 1971, the Government filed a notice that it was ready to try the case on 10 days’ notice. On July 19, 1971, the court had ordered the Government to file a bill of particulars and to furnish appellant with copies of his testimony before the SEC and the grand jury relative to manipulation of stock in Belmont Franchising Corporation (“Belmont”), as well as copies of certain documents belonging to appellant or to the brokerage firm, Bar-ad-Shaff Securities Corporation (“Bar-ad-Shaff”), of which he was secretary-treasurer. Apparently because the ease was transferred from one Assistant United States Attorney originally in charge to another, the Government did not comply with this discovery order until, following, a trial-date conference, appellant moved to dismiss on May 10, 1972, following which the Government immediately complied. On May 12, 1972, the court, without making any findings, denied the motion to dismiss and set the case down for trial commencing May 22, 10 days later.

We readily dispose of appellant’s claim of denial of a fair trial because he was given insufficient time to prepare after the bill of particulars and other sought-after documentary material were furnished pursuant to the court order for discovery. The bill of particulars reduced the answers claimed to be false in count one of the indictment from 32 to 15, in count two from 23 to 11, and in count three from 23 to 11, thereby assisting appellant in his preparation. The material requested to be furnished was appellant’s own testimony before the grand jury and documents of his own and of the company of which he was secretary-treasurer, so that he could have been expected to have at least passing familiarity with that material. This material was neither so bulky nor so complicated that 9 days’ time for preparation after its receipt was in any way insufficient. It was evident, moreover that the perjury charges in the first count related to details regarding the sale of 1100 shares of Belmont Stock by Barad-Shaff and the specifies of a meeting with one Hellerman, the controlling stockholder of Belmont; those in the second count related to a meeting between appellant. Hellerman, a “Richie” and a “Mike” (two other brokerage representatives) ; and those in the third count related to a meeting at Del Soma’s Restaurant, Hellerman’s presence there, and the backdating of a particular order ticket for Belmont stock following that meeting. It would have taken very little imagination to determine the specific line of Government attack and hence to plan whatever defense could be brought forward once the bill of particulars was filed.

Appellant also argues that the trial judge was “impatient” with him and in support of this that the trial was completed in only 4 days when it was originally expected to take from a week to 10 days and that the judge “took virtually no recesses, opened Court promptly each day and stayed in session until late each afternoon.” (Brief for Appellant at 19.) We think these comments quite descriptive of high judicial conscientiousness, and the argument based upon them altogether frivolous.

As for the speedy trial claim under the Second Circuit Rules, however, we are handicapped for lack of findings and under United States v. Scafo, 470 F.2d 748 (2d Cir., 1972), we must vacate the judgment and remand for further hearing on the motion to dismiss and specific findings on the issue whether there were “exceptional circumstances” justifying “periods of delay” within Second Circuit Rule 5(h). Such circumstances, we may point out, may within limits of reasonableness include the press of other business on the court or, perhaps, an extraordinary situation in the office of the prosecutor. The Government argues that it complied with the Rules because it filed a “notice of readiness” on November 18, 1971. But it had not complied with the discovery order. One question is whether its notice of readiness was therefore meaningless. In this regard, it may be remarked that there were remedies open to appellant to obtain compliance with the discovery order. Fed.K.Crim.P. 16(g). We also note the claim that at all times the Government stood ready to permit inspection of the requested documents although it was concededly and probably properly unwilling to give over originals. Whether the Government conveyed this readiness to permit inspection and whether appellant sought to make such an inspection may have some bearing on resolution of the main question. The findings for which we remand will doubtless be of assistance also in determining whether there is any substance whatsoever to the sixth amendment claim raised at oral argument under the balancing test of Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), a claim which in its posture as presented to us, even absent specific findings, borders on the frivolous.

Appellant argues that under Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973), reversing 453 F.2d 555 (2d Cir. 1971), he was entitled to a requested instruction in so many words that “a literally accurate or technically responsive or legally truthful” ■ answer is not perjurious. Bronston aside, however, the court correctly charged the jury that at least one statement in any one count just be “directly and unambiguously false” and gave the appellant the fairest of charges on knowledge of falsity and willfulness. Appellant fails to point to any specific question, moreover, to which his answer was “literally true” or “technically responsive.”

Appellant argues that because the jury apparently asked for the transcribed testimony of the appellant and one Caricato, it was reversible error not to permit the jury to have the transcript, even though the request came only 45 minutes after the jury had retired. The jury’s request may have been based on the erroneous assumption that the transcript was available for them to take into the jury room; in fact, however, appellant himself had testified on the very day jury deliberations began and his testimony had not yet been transcribed. The judge offered to have any or all of Caricato’s or Poliak’s testimony read to the jury, but the jury foreman asked to consult with the other jurors before requesting that specific testimony be read. After consultation, the foreman did not request to have any testimony read. Appellant failed to object to the trial judge’s request that the jurors inform him of exactly what testimony they wished read and his refusal to send the trial transcript to the jury at the time and cannot now be heard to raise the point, one that in any event would ordinarily lie well within the trial judge’s power and duty to run a trial under reasonable ground rules. Cf. ABA Standards Relating to Trial by Jury § 5.2(a) (Tent. Draft 1968) (“Whenever the jury’s request is reasonable, the court . shall have the requested parts of the testimony read to the jury . ”) (emphasis supplied); United States v. De Palma, 414 F.2d 394, 396-397 (9th Cir. 1969), cert. denied, 396 U.S. 1046, 90 S.Ct. 697, 24 L.Ed.2d 690 (1970).

Appellant’s Brady point fails because the two witnesses appellant claims gave grand jury testimony favorable to him were known, friendly and available to him — indeed, one was a former employee of his. Cf. Xydas v. United States, 144 U.S.App.D.C. 184, 445 F.2d 660, 668, cert. denied, 404 U.S. 826, 92 S.Ct. 57, 30 L.Ed.2d 54 (1971); United States v. Gleason, 265 F.Supp. 880, 887 (S.D.N.Y.1967). On the request to narrow, while proof of a false answer to any question in any one count will sustain a perjury conviction on that count, here the appellant did request a restricted submission. See United States v. Goldstein, 168 F.2d 666, 671 (2d Cir. 1948). Our review of the record satisfies us, however, that with the evidence taken in the light most favorable to the Government it was proper to submit to the jury all of the questions and allegedly false answers that were submitted.

Judgment vacated and cause remanded for findings on the motion to dismiss.

      . The third essential element which you must find beyond a reasonable doubt before you may convict is that the defendant at the time he gave false testimony did so unlawfully, wilfully and knowingly.
      In order to satisfy the third essential element the government must establish beyond a reasonable doubt that the defendant testified falsely, and did so deliberately and consciously, knowing at the time that the testimony was false, and intended to convey the false information of what he said.

      . Appellant argues that in regard to count two he was charged with perjury in testifying :
      Q. Did you talk about anybody placing an order for a large amount of Bel- • mont Franchising?
      A. No.
      Q. Do you know what a “burst out” is?
      A. Do I know what a “burst out” is?
      Q. Yes.
      A. No.
      Q. Did you ever use the term before?
      A. No.
      Q. Was there any discussion about somebody placing an order for 20 or 25,000 shares or any large amount of Belmont and not paying for it?
      A. No.
      Q. You didn’t bear .anybody discuss that that morning?
      A. Placing an order for Belmont and not paying for it?
      Q. Yes.
      A. No.
      He says that Barad-Shaff was a market-maker and technically did not “place” an “order.” But the questions do not ask whether he or Barad-Shaff “placed an order,” but whether there was any discussion about “anybody” placing an order. There was Government proof that there was a discussion to the effect that one of the manipulators attendant at the meeting would place an order for thousands of shares of Belmont stock and then not pay for it, leaving the broker not a party to the manipulation with stock worth only a fraction of the value to which previously engineered purchases by the manipulators had pushed it.


author: ADAMS, Circuit Judge.

text:
    In the Matter of PENN CENTRAL TRANSPORTATION COMPANY, Debtor. Appeal of MORGAN GUARANTY TRUST COMPANY OF NEW YORK, Indenture Trustee under the New York Central and Hudson River Railroad Company Refunding and Improvement Mortgage, dated October 1, 1913.
    No. 71-2088.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 27, 1973.
    Decided Jan. 31, 1973.

      S. Hazard Gillespie, John J. McAtee, Jr., Stephen H. Case, Davis, Polk & Wardwell, New York City, for appellant.
    Robert W. Blanchette, James E. Howard, Philadelphia, Pa., for appellee.
    Before McLAUGHLIN, VAN DUSEN and ADAMS, Circuit Judges.
   OPINION OF THE COURT

ADAMS, Circuit Judge.

The basis of this appeal is an order of the district court overseeing the reorganization of the Penn Central Transportation Company (Penn Central) permitting the use of certain escrowed funds for the improvement of an important freight yard.

Morgan Guaranty Trust Company (Morgan Guaranty), trustee under one of the mortgages of the Penn Central, challenges the order, alleging that by allowing the expenditures the district court improperly permitted a dissipation of Morgan Guaranty’s security interest in the assets of the Penn Central.

Proper resolution of this appeal requires that the provisions of the order, No. 437, dated September 30, 1971, D.C., 332 F.Supp. 1302, be examined in some detail, and that the appropriate criterion, the four-pronged “Central of New Jersey” test be explicated and applied. Before these two endeavors are commenced, however, it is useful to recall the Supreme Court’s admonitions regarding the purposes and principles of Section 77 of the Bankruptcy Act, 11 U.S.C. § 205, the Railroad Reorganization Statute:

first, the rights of the creditors must be guarded; second, the public’s interest in the survival of the railroad as a going enterprise must be respected.

The decisions of this Court, too, reflect the efforts to follow these two fundaments. See e. g., In re Penn Central Transportation Company (Appeal of First Wisconsin National Bank), 453 F.2d 520, 522 (3d Cir.), cert. denied, 408 U.S. 923, 92 S.Ct. 2493, 33 L.Ed.2d 334 (1972).

I. The Yard

In September, 1971, the district court granted the permission sought by the Penn Central, and entered an order allowing the Penn Central to make certain improvements to the railroad’s Selkirk, New York freight yard. The highly-automated yard, located approximately 10 miles southwest of Albany, New York, is a central link for the Penn Central’s freight lines, binding the railroad’s services to New England, New York City and Long Island with its services to the West. Prior to the district court’s order permitting the improvements, the yard could handle approximately 2700 freight ears per day. At that time, daily traffic through the yard had already exceeded the yard’s capacity, and the volume was expected to increase further, with more freight being routed through the yard as the inefficient and costly New York Harbor “floating” operation was phased out. Excess traffic through the yard was increasing the cost and lowering the productivity of the yard. To increase the yard’s ability to handle much of this excess traffic, and to thus reduce costs, Penn Central requested that it be allowed to make improvements to the yard. These improvements required approximately $2,074,549. to complete. Upon completion, it was estimated that annual savings of $1,076,000. might be realized. Thus the yard and the efficiency the improvements would generate would be important elements in the rail system and the attempts to reinvigorate the road’s freight business.

II. Financing the Improvements

The Selkirk yard is subject to three mortgages originally entered into by one of Penn Central’s predecessors, the New York Central Railroad Company. In order of their priorities, and with their appropriate corporate indenture trustees, these mortgages are:

. 1. The New York Central and Hudson River Railroad Company 3%% Gold Bond Mortgage of June 1, 1897 (Gold Bond Mortgage), Manufacturers Hanover Trust Co., trustee;
2. The New York Central and Hudson River Railroad Company Consolidated Mortgage of June 20, 1913 (Consolidation Mortgage), Bankers Trust Company, trustee;
3. The New York Central and Hudson River Railroad Company Refunding and Improvement Mortgage of October 1, 1913 (R&I Mortgage), Morgan Guaranty Trust Company, trustee.

These three mortgages covered a significant portion of Penn Central’s property. Both by past practice and by court order, Penn Central was permitted to sell certain of the encumbered properties, placing the proceeds in special escrow accounts. From the funds in these accounts, Penn Central sought to finance the improvements to the yard. The order of the district court permitted Penn Central to draw from three of these accounts in a specified sequence. First, Penn Central was to draw approximately $333,214. from the Girard Bank, and $100,264. from the Manufacturers Hanover Trust Bank (hereinafter Manufacturers Hanover). These two funds were comprised of the proceeds from the post-reorganization sales of properties covered by the three mortgages. The balance of the required appropriation, totaling approximately $1,756,477, was to come from a special fund at Manufacturers Hanover. This fund, too, was the result of sales of property. However, the sales which produced this fund were pre-reorganization. Because the amount taken from the fund was significantly larger than the amount available for disbursing in the other funds, and because the right to this fund, representing pre-reorganization sales is less clear, it is this portion of the financing provisions that has drawn the most controversy.

The repayment provision of the order reflects the concern with this pre-reor-ganization fund. The repayment provision stipulated that during a twenty-four month period the railroad was to deposit the proceeds of sales of property subject to the mortgages in a fund that would be treated the same as the pre-reorganization fund. If Penn Central’s sales of property failed to generate enough to replace the withdrawal from the pre-re-organization fund, Penn Central was to provide the difference and all was to be treated as though the product of pre-re-organization sales.

Examining the effects of this order at three different points in time, it can be seen that the order does make the mortgage-holders contribute to the effort to restore the Penn Central to financial solvency. To put it simply, on the day before the order the mortgage-holders had, as security for their advances, a railroad with a freight yard at Selkirk, easily disposable non-railroad properties and a fund of money. On a day during the twenty-four month repayment period, perhaps shortly after the period began, the mortgage holders’ security would consist of a railroad with an improved freight yard at Selkirk, easily disposable property and a substantially reduced fund of money. At the termination of the order the security would be comprised of a railroad with an improved freight yard, a greatly diminished amount of easily disposable property, and an amount of cash equal to the fund on hand before the order. Thus it is clear that, as a result of the order in question, the mortgage holders’ security has become less marketable and even more intertwined with the railroad’s operations.

III. Legal Standards

Having described the order and its economic ramifications, and bearing in mind the principles underlying a railroad reorganization, it remains to address the legal questions arising from the district court’s order.

Section 77(o) of the Bankruptcy Act, 11 U.S.C. § 205(o), grants to the district court broad discretion in the application and disposition of proceeds of the sales of mortgaged property. Yet that discretion may not be completely unfettered, for in the extreme case it might result in an unconstitutional taking of the mortgage holders’ property, through the dissipation of the estate. See generally Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593 (1935). Thus, it becomes necessary to define the boundary beyond which the district court may not proceed.

This Court, in Central Railroad of New Jersey v. Manufacturers Hanover Trust Co., 421 F.2d 604 (3d Cir.), cert. denied, 398 U.S 949, 90 S.Ct. 1867, 26 L.Ed.2d 289 (1970), (hereinafter Central of New Jersey), adopted a four-pronged test. The test required that the district court find that certain conditions be present. If any were absent, the district court was not to permit utilization of the proceeds of the sales of mortgaged property.

The requirements of the test were stated to be:

“The rule for a reorganization under Sec. 77 ... is that [1] in addition to finding that the funds are presently needed and cannot be obtained elsewhere (2) the court need only conclude that reorganization is probably feasible, [3] that the money drawn-down and expended for additions and betterments will materially contribute to the possibility of successful reorganization and to the continuation of the transportation plant, or a substantial part thereof, as a going concern, and [4] that the interests of the bondholders are not thereby prejudiced.” 421 F.2d at 606.

In Central of New Jersey, the expenditure was for the removal of the damaged span of a two-span drawbridge crucial to the system. The damaged span was likely to fall onto the operative span. The Court observed that, while removal of this threat would inure to the benefit of the bondholders, the expenditure did not increase the operational plant subject to the bondholders’ lien and hence was not “an addition or betterment.” As such, the expenditure could not be said to improve the bondholders’ security beyond helping to assure that their security was an operating railroad, not an inoperative one. In re New York, New Haven & Hartford R. Co., No. 30226 (D.Conn., December 7, 1961), the source of the quadrifid Central of New Jersey test, did, however, deal with expenditures for additions or betterments. The endorsement of the New Haven case in Central of New Jersey indicates strongly that the four-pronged test is also to be applied here, where the expenditure is unquestionably for an addition and betterment.

The dispute in this case revolves around the district court’s application of the second element of the test, regarding the finding that “reorganization is probably feasible.” The district court in attempting to determine whether the requisite finding could be made, was faced with a difficult predicament. At the time of their petition for the expenditures, the trustees of the railroad had not filed a reorganization plan, nor was one imminent. Moreover, it was clear that any plan for reorganization would require an extended period of time to complete, and assessment of its success at any given moment might be difficult. To resolve the dilemma, the district court interpreted the “probably feasible” requirement to mean in that particular context:

“Where, as in the present instance, the issue arises at a relatively early stage of the reorganization proceeding, when it is too early to make confident predictions one way or the other, I believe it should be sufficient to find merely that there is no demonstrated likelihood of failure.”

At the time the order in question was entered, the approach fashioned by the district court appeared to be the only one possible. To insist on more would be to require a full examination of the trustees’ intentions before the trustees themselves had crystalized their plans, or, to defer all expenditures of this category of funds, thus making the probability of successful reorganization even more dubious. Under these circumstances, we do not disagree with the result.

Nevertheless, certain questions remain. Arguably, the district court’s reformulation of the “probably feasible” test could be read to suggest that the burden of proof has been shifted. We agree with Morgan Guaranty that were such a shift to be permitted, it might well defeat that portion of the test, for the information needed to satisfy the requirement is generally within the control of the trustees of the railroad. We do not understand, however, that the district court's opinion produced such a shift. Rather, it seems to have called upon the trustees to show that at this stage, reorganization was not improbable. In the early periods of a complex and protracted reorganization, such a standard appears appropriate.

We are also advised of the more recent developments in the railroad’s struggle for fiscal survival. These factors, of course, must be considered by the district court in any contemporary application of the Central of New Jersey test. Our task as an appellate court is not, however, to apply the test in the first instance. Rather, we must review the district court’s application of the test. At the time the district court was called upon to apply the Central of New Jersey rule, it did so on the basis of the evidence then available. Later evidence does not affect the propriety or inaccuracy of the district court’s findings at the time it was required to make them.

The order of the district court did not require the Penn Central, while replacing the $1,756,477., to pay interest on that sum. As discussed earlier, the fund that produced the $1,756,477. was created by pre-reorganization sales, and the right to it, as between Penn Central and the mortgage holders, is contested. The fund was in an interest-bearing account at the Manufacturers Hanover. Though Penn Central is required to replace the fund, the sum restored will not equal the sum that would be present had the money remained in interest-bearing accounts. Therefore, we remand the matter to the district court with instructions to modify its order so as to include a requirement that the trustees of the railroad pay interest, at the market rate, on this fund for the period that it was not drawing interest in the account at the Manufacturers Hanover.

Appeals involving the reorganization of any railroad, and especially a railroad as large and as crucial to the national economy as the Penn Central, require a court to weigh carefully the competing claims of the railroad’s creditors and the nation’s concern with its transportation system. In this case, we believe that an appropriate balance has been struck, one that will respect the interests of the creditors yet help preserve the .Penn Central as a viable railroad.

An appropriate order will be entered affirming the district court with provision for the district court, on remand, to provide for interest in accordance with this opinion.

      . The trustees of the property of the Penn Central Transportation Company, George P. Baker, Richard C. Bond, Jervis Lang-don, Jr. and Willard Wirtz, are the named appellees in this ease and the petitioners in the district court. They will be referred to as the Penn Central in this opinion.

      . Central R. Co. of New Jersey v. Manufacturers Hanover Trust Co., 421 F.2d 604 (3d Cir.), cert. denied, 398 U.S. 949, 90 S.Ct. 1867, 26 L.Ed.2d 289 (1970).

      . “After 35 years of § 77, as amended, it is unnecessary to recanvass the two basic objectives of the statute — the conservation of the debtor’s assets for the benefit of creditors and the preservation of an ongoing railroad in the public interest. See generally 5 Collier, supra, ¶ 77.02, at 469-470. Central to the statutory objective that the reorganized company should, if at all possible, emerge as a ‘living, not a dying ... enterprise,’ Van Schaick v. McCarthy, [10 Cir.] 116 F.2d 987, 993, is the understanding that ‘a railroad [is] not like an ordinary insolvent estate.’ Palmer v. Massachusetts, 308 U.S., at 86 [60 S.Ct. 34, 84 L.Ed. 93] (Footnote omitted.)” New Haven Inclusion Cases, 399 U.S. 392, 431, 90 S.Ct. 2054, 2078, 26 L.Ed.2d 691 (1970).
      “While the rights of the bondholders are entitled to respect, they do not command Procrustean measures. They certainly do not dictate that rail operations vital to the Nation be jettisoned despite the availability of a feasible alternative. The public interest is not merely a pawn to be sacrificed for the strategic purposes or protection of a class of security holders whose interests may or may not be served by the destructive move.” Penn Central Merger Cases, 389 U.S. 486, 510-511, 88 S.Ct. 602, 614, 19 L.Ed.2d 723 (1968) (portion of opinion dealing with New Haven Railroad which was at that time undergoing reorganization).

      . The trustees estimated that $726,000 would be saved by eliminating already existing delays, and a $350,000 saving would be produced by further utilization of the yard.

      . See Orders 78, 192 & 271 in this Reorganization.

      . Since 1961, by agreement between the predecessor railroad and Manufacturers Hanover, certain properties under the mortgages were sold. The proceeds were received by Manufacturers Hanover, which then financed the purchase of rolling stock under conditional sales agreements. The Railroad's payments on the rolling stock then went into the escrow fund.

      . On November 27, 1972, the date of oral argument before this Court, counsel stated that as of that date Penn Central had not been in default in its repayment obligations under this order.

      . Manufacturers Hanover and Bankers Trust, trustees under the first and second mortgages, did not oppose the railroad’s petition. Rather, preferring a compromise to litigation, they joined with the railroad in a draft order which substantially became the order of the district court. Morgan Guaranty, however, did oppose the order and their appeal is that with which we must presently deal.

      . The test was first enunciated by Judge Anderson in In re New York, New Haven & Hartford R. Co., No. 30226 (D.Conn., December 7, 1961) (unreported).

      . Morgan Guaranty also argues that there are inadequate bases for the findings that the other three requirements of the Central of New Jersey have been met. The district court’s determination of these questions, however, is sound and will not be further reviewed.


text:
    Alton R. WELLS, Plaintiff-Appellant, v. SHOP RITE FOODS, INC., Defendant-Appellee.
    No. 72-3011
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 1, 1973.
    John H. Chambers, Arlington, Tex., for plaintiff-appellant.
    Lawton G. Gambill, Fort Worth, Tex., for defendant-appellee.
    Before WISDOM, GODBOLD and RO-NEY, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

This defamation suit was brought by an ex-employee against his former employer, a Texas corporation. A jury returned answers to special interrogatories upon which the District Court entered judgment for defendant. We affirm.

In September of 1970, defendant Shop Rite Foods, Inc., a retail grocery chain in Texas, began an investigation into suspected thievery at its Grand Prairie, Texas, warehouse. Plaintiff Wells, a management-level supervisory employee, was instructed to inspect lunch boxes and packages belonging to employees leaving the warehouse. Additionally, Shop Rite employed a private detective agency, Denco Security Systems, to take written statements from suspected employees and to examine those employees with a polygraph.

Plaintiff Wells was interrogated by Denco on October 5, 1970, and later that day was temporarily suspended from employment at a private conference with his supervisor. On October 7, 1970, Wells was given a polygraph examination at Denco’s Dallas office. No one from Shop Rite was present at this examination. Several weeks later Wells was permanently discharged.

Wells alleged that he was slandered by both the acts and the words of one of defendant’s management personnel who was found to have told a union steward that Wells was fired for stealing.

On appeal, Wells raises three points of error. He argues that the District Court erred (1) in refusing to submit to the jury the issue of whether Shop Rite’s acts slandered him by falsely accusing him of theft, (2) in excluding the testimony of a witness, and (3) in improperly framing one of the special interrogatories. We perceive no error.

(1) As to Wells’ first contention, the District Court correctly refused to give this charge:

“Do you find from a preponderance of the evidence that the posting of supervisory employees of Defendant Shop Rite Foods, Inc. at exits from Defendant’s Warehouse to check lunch boxes and packages of employees leaving the warehouse, and the employment of Denco Security Systems to investigate reported acts of theft, and the taking of written statements from various employees of defendant Shop Rite Foods, Inc. by Denco Security Systems, and the polygraphie examination by Denco Security Systems of certain employees of Defendant Shop Rite Foods, Inc. and the subsequent discharge of the individuals selected for polygraphic examination, taken together would lead a reasonably prudent individual to believe that Defendant Shop Rite Foods, Inc. was accusing all of such discharged individuals of theft ?
ANSWER — ‘YES’ or ‘NO’ ”

These “acts,” standing together, would not support a jury finding of slander. The mere fact of checking exiting employees shows only that Shop Rite was concerned with preventing thefts. Moreover, Wells, as a supervisory employee, performed the inspections, and was never himself inspected, so Shop Rite’s trust in him was plainly evident to all. Similarly, the employment of Denco to investigate reported acts of theft, and Denco’s interrogations and polygraph examinations, focused no attention on Wells. All that was known to the warehouse workers was that reported thievery was under investigation. No one knew who was being investigated. Finally, Wells’ discharge, even when viewed against the background of an aroused employer seeking to curb employee dishonesty, does not amount to a slanderous accusation of theft. Wells was a supervisory employee who could be dismissed without cause, and he was discharged several weeks after the Den-co investigation. Merely ceasing to be an employee does not prove discharge, and it certainly does not prove the reason for discharge, if any. The District Court correctly refused to ask the jury to speculate with these “acts.”

(2) Wells next objects to the District Court’s refusal to permit a witness, Clovis Brown, to testify that several Shop Rite employees had told him that they had heard that Wells had been discharged for stealing. This testimony was hearsay and was properly excluded.

(3) Finally, Wells contends that the District Court erred in framing Special Interrogatory Number 2 and in conditioning an answer to Special Interrogatory Number 3 upon an affirmative answer to Number 2.

Special Interrogatory Number 2 reads:

“Do you find from a preponderance of the evidence that William B. Rema-tore, Jr., had a duty to Shop Rite Foods as its warehouse superintendent to inform Wallace Nettles in his capacity as job steward for Local 47 of the Teamsters Union of the reason Plaintiff Wells was discharged by Shop Rite Foods ?
Answer ‘YES’ or ‘NO’
Answer: NO”

The next interrogatory, Special Interrogatory Number 3, dealt with whether Rematore was performing a duty owed to defendant when he gave Nettles a reason for the discharge. The jury was instructed not to answer Interrogatory Number 3 unless it had answered Interrogatory Number 2 affirmatively.

According to the testimony at the trial, Mr. Rematore, the warehouse superintendent for Shop Rite, told the union steward that Wells had been discharged for theft. Wells argues that this slanderous statement by Rematore establishes Shop Rite’s liability. Such is not the case. Assuming the statement by Rematore was slanderous, Wells still had to link it to Shop Rite for Shop Rite to be liable. In Texam Oil Corp. v. Poynor, 436 S.W.2d 129 (Tex.1968), the Texas Supreme Court approved this statement of Texas law:

“An action is sustainable against a corporation for defamation by its agent, if such defamation is referable to the duty owing by the agent to the corporation, and was made while in the discharge of that duty.”

436 S.W.2d at 130. Thus, under Texam Oil Corp., Wells had the burden of proving that Rematore’s statement was made in the discharge of a corporate duty. The jury’s answer to Special Interrogatory Number 2 shows that it resolved the issue against Wells. We conclude, therefore, that Special Interrogatory Number 2 was correctly framed and that a negative answer to it foreclosed Shop Rite’s liability for Rematore’s statement. Until his statement was proven legally attributable to Shop Rite, Shop Rite’s liability had not been established.

Affirmed.


text:
    MAIDMORE REALTY CO., INC., v. MAIDMORE REALTY CO., INC. (Defendant in the Cross-Complaint). Appeal of NATIONAL BANK OF NORTH AMERICA.
    No. 72-1394.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 2, 1973.
    Decided Feb. 27, 1973.

      Thomas Alkon, Isherwood & Colianni, Christiansted, St. Croix, V. I. for appellant.
    Britain H. Bryant, Bryant & Costello, Christiansted, St. Croix, V. I. for appel-lee.
    Before VAN DUSEN, ROSENN and HUNTER, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

In this appeal from the judgment of the District Court of the District of the Virgin Islands, the National Bank of North America, appellant, asks this court to vacate that portion of the judgment awarding attorney fees and to remand to the district court for an eviden-tiary hearing. National Bank of North America was awarded $3,000 in attorney’s fees by the district court; it claims the district court erred in calculating this sum by not considering evidence that considerably more than $3,000 had been incurred in legal expenses in collecting the debt which was satisfied in this judgment. We find no error in the district court’s calculation of attorney fees and therefore affirm.

Determination of the proper assessment of attorney fees in the present ease hinges on a close look at the progress of the underlying law suit. In 1966 the West Indies Hotel Corporation borrowed One Million Dollars from, and in exchange delivered a mortgage note to, the Meadow Brook National Bank. Ten days later Lorayne S. Hooper subordinated her prior mortgage on the West Indies property to the Meadow Brook mortgage.

Nearly five years later Hooper brought a foreclosure action against West Indies in the district court. Meadow Brook National Bank, as holder of the senior mortgage, was joined as a defendant. The National Bank of North America, as successor to Meadow Brook, filed an answer admitting all the allegations of Hooper’s complaint and cross-complaining against West Indies for foreclosure of its senior mortgage. The cross-complaint sought entry of a consent judgment for the outstanding principal and interest due National, order of a foreclosure sale of the mortgaged property, a judgment and execution against West Indies for any deficiency remaining after the sale, and “court costs of this action, including a reasonable attorney’s fee and such other and further relief as to the Court may seem just and proper.” ■

Appellee, Maidmore Realty Company, by purchasing the West Indies property and the Hooper mortgage, became the successor in interest to both plaintiff and defendant after the filing of this suit. On November 10, 1971, Maidmore was substituted for the original parties by order of the court. At the same time the court granted National’s motion for summary judgment against Maidmore, as cross-defendant in the original action. Maidmore filed a motion for reconsideration; but, before the court ruled on this motion, Maidmore tendered to National payment for the outstanding principal and interest. When National, after receipt of the tender, refused to discharge the mortgage lien, Maidmore requested from the court an order accomplishing such a result.

In contesting the motion for a discharge, National for the first time sought more than reasonable attorney fees for the suit at bar. It argued at a hearing before the court that paragraph 8 of the original West Indies/Meadow Brook mortgage should be considered in awarding fees. That paragraph states:

In the event this mortgage and the note which it secures are placed in the hands of an attorney for the collection of any payment due thereunder or for the enforcement of any of the terms, covenants and conditions thereof, the Mortgagor agrees to pay all costs of collection, including reasonable attorneys’ fees incurred by the Mortgagee, either with or without the institution of an action or proceeding, and in addition, all other costs, disbursements and allowances provided by law. All such costs so incurred shall be deemed to be secured by this mortgage and collectible out of the Premises in any manner permitted by law or by this mortgage.

National argued that before the mortgage was discharged it should be awarded the $18,500 which had been incurred over the previous five years to collect overdue payments from West Indies, as provided by the aforesaid language. National offered to provide documentation that this sum had been incurred, but the district court judge refused to hear it.

Following the hearing, the district court issued a final judgment which:

ORDERED, ADJUDGED AND DECREED, that the National Bank of North America be, and it is hereby awarded attorney’s fees in the sum of $3,000.00, pursuant to the Courts [sic] discretionary powers as contained in Title 5 V.I.C. § 541; and
It is further Ordered that this action shall be herewith dismissed with prejudice and the aforesaid mortgage lien against the properties now owned by Maidmore Realty Co., Inc., shall be and the same is hereby discharged of record. .

In appealing from that portion of the judgment awarding attorney’s fees of $3,000, National alleges that the district court ignored the explicit language of paragraph 8 of the mortgage by awarding attorney fees only in accordance with the Virgin Island statute. National argues that paragraph 8 was valid, that by its terms the court was required to consider any evidence National could present as to collection costs, and that therefore remand is necessary for an evidentiary hearing.

Appellee Maidmore contends that the district court did consider paragraph 8 in awarding attorney fees, and that the award of $3,000 represented what it considered to be a reasonable fee for National’s collection efforts.

We cannot accept appellee’s argument that the $3,000 award represents the amount due National in accordance with paragraph 8. The district court judge refused to hear any evidence on the collection costs which had been incurred; he expressed great reluctance to enforce the provisions of the mortgage clause:

THE COURT: Well, I can leave it to the agreement of the parties and they can bring suit for the attorneys’ fees. That would be one thing. It’s another thing for me to award fees for services not connected with the litigation.

And:

THE COURT: I don’t think I'm going to fix any attorneys’ fees for New York or other stateside counsel where the work that they performed is unconnected with the immediate action that is before me. So, any fee I fix would be in accordance with the provisions of this code, as I understand it.

In light of the judgment’s specific reference to 5 V.I.C. § 541 and absence of any reference to paragraph 8 of the mortgage, we cannot assume other than that the $3,000 was based solely on the statute.

Although we interpret the district court judgment to have awarded attorney’s fees solely on the basis of the statute, we do not believe error was thereby committed. When National filed its cross-claim, it made no declaration of any collection costs prior to filing of the claim, nor did it seek enforcement of paragraph 8 of the mortgage. The foreclosure proceedings were initially instituted by Hooper and only after Maid-more purchased Hooper’s mortgage did National pursue summary judgment on its mortgage. The judgment was entered by the district court in favor of National as a matter of course in a simple foreclosure proceeding.

In the cross-complaint filed by National it alleged only that there remained “unpaid to date the sum of $525,134.00, together with interest at the rate of 8% per annum from the 1st day of January, 1971,” for which it prayed a consent judgment pursuant to the terms of a stipulation filed; and it asked “[f]or court costs of this action, including a reasonable attorney’s fee. . ” Apparently, no request was made by National for any specified attorney fees, even in the motion for summary judgment, until Maidmore voluntarily tendered payment of the full principal and interest. On the application of Maidmore to have the district court order discharge of the mortgage lien, National asserted for the first time a claim in the sum of $18,500 for attorney’s fees due it “either through the provision of § 541 of Title 5 [V.I.Code] ... and also provisions of the mortgage instrument. . . .’’In its cross-complaint, however, and in its prayer there for judgment, National did not invoke the provisions of paragraph 8 of the mortgage ; it only sought “court costs of this action, including a reasonable attorney’s fee.” [Emphasis ours.] That claim for a reasonable attorney’s fee referred to the “court costs of this action-.” The district court award of a reasonable attorney’s fee was predicated upon services performed in connection with this action in accordance with National’s cross-complaint and prayer for judgment.

Claims for attorney fees are items of special damage which must be specifically pleaded under Federal Rule of Civil Procedure 9(g). Western Casualty & Surety Co. v. Southwestern Bell Tel. Co., 396 F.2d 351, 356 (8th Cir. 1968). In the absence of allegations that the pleader is entitled to attorney’s fees, therefore, such fees cannot be awarded. In the present case, National did not claim attorney’s fees for collection services allegedly rendered over the five year period prior to the filing of the cross-complaint. If attorney fees per se are special damages which must be specifically pleaded, “special” attorney’s fees, such as pre-foreclosure fees and costs, are a fortiori special damages which must be pleaded.

The Federal Rules of Civil Procedure contain generous provisions for amendment of pleadings, Rule 15(a), but no motion was made in the present case for any such amendment to include the prayer for special damages. Rule 15(b) provides that when issues not raised by the pleadings are tried by implicit consent, the issues shall be treated as if the pleadings had been amended. In the present case, however, attorneys for Maidmore did not impliedly accept the issue of special damages for collection costs. In fact, at the hearing, Maidmore specifically objected to this issue:

Your Honor, we concede the fact that the Court ordinarily does grant some attorneys’ fees. We do not concede the fact that there has been any demand or showing or any reason why we should have to pay attorneys’ fees of $18,500. [Emphasis ours.]

The award of $3,000 to National for attorney fees in connection with the present case was fair and reasonable. As we pointed out in Lucerne Investment Co. v. Estate of Belvedere, Inc., 411 F.2d 1205, 1207-1208 (3d Cir. 1969), no special legal skills or effort is required to process an uncontested foreclosure action.

The judgment of the district court will be affirmed.

      . 5 V.I.C. § 541 provides in pertinent part:
      (a) Costs which will be allowed in a civil action include:
      . . . (6) Attorney’s fees as provided in subsection (b) of this section.
      (b) The measure and mode of compensation of attorneys shall be left to the agreement, expressed or implied, of the parties; but there shall be allowed to the prevailing party in the judgment such sums as the court in its discretion may fix by way of indemnity for his attorneys fees in maintaining the action or defenses thereto.