author: STALEY, Circuit Judge.

text:
    UNITED STATES of America v. Alfred C. MEADE, Appellant, and Jacqueline Meade.
    No. 73-1474.
    United States Court of Appeals, Third Circuit.
    Argued Oct. 9, 1973.
    Decided Feb. 11, 1974.

      James H. Logan, Pittsburgh, Pa., for appellant.
    Richard L. Thornburgh, U. S. Atty., Charles F. Scarlata, Kathleen Kelly Cur-tin, Asst. U. S. Attys., Pittsburgh, Pa., for appellee.
    Before STALEY, VAN DUSEN and ADAMS, Circuit Judges.
   OPINION OF THE COURT

STALEY, Circuit Judge.

Appellant Meade, with his wife Jacqueline, was indicted for violation of Title 21 U.S.C. § 841(a)(1) and Title 18 U.S.C. § 2. The two-count indictment charged that they twice knowingly and intentionally had unlawfully distributed heroin. The appellant was tried to a jury and found guilty on both counts. This appeal followed.

The Government, in its case, adduced the testimony of an agent of the Bureau of Narcotics and Dangerous Drugs that he had on two occasions purchased heroin from the appellant. The agent testified further that he had been introduced to the appellant by an informant who was present at both sales.

Meade took the stand and explained his version of the circumstances surrounding the sales. His defense was entrapment. With respect to certain aspects of the court’s instructions on entrapment, Meade’s counsel specifically objected before the case was submitted to the jury.

On appeal the appellant continues to contend that the trial judge erred in his instruction to the jury on the defense of entrapment. In addition, the appellant raises two other questions. He contends that he was denied a speedy trial, and that the trial court’s rulings with respect to disclosure of the identity of the Government’s informant was in error.

A review of the record reveals the information regarding the informant that the appellant alleges was wrongfully withheld is now available to him. Since we are of the opinion that the trial judge committed reversible error in his charge to the jury on entrapment and that a pew trial is necessary, we need not decide the question appellant raises regarding the informant.

We shall first examine the merits of the appellant’s allegation of an unconstitutional deprivation of his right to a speedy trial. The appellant was indicted on March 8, 1972. He was arraigned on March 30, 1972. At the arraignment, Meade stated that he had retained private counsel. The trial judge was subsequently informed via letter dated June 9, 1972, by the lawyer the appellant named at the arraignment that he did not intend to enter an appearance unless he was compensated. On August 1, 1972, in response to this information, the court ordered the appellant to retain private counsel or show cause why counsel should not be appointed for him. Counsel was appointed by the court on August 11, 1972.

The appellant’s case had been listed for trial in September 1972. However, pre-trial motions filed on behalf of the appellant made it necessary to reschedule it. On November 24, 1972, Meade was found guilty by a jury.

The Supreme Court accepted a balancing test in which the conduct of the prosecution and the defendant are weighed as a means of resolving speedy trial cases. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Barker identified some of the factors courts should assess in determining whether an individual right was violated.

“A balancing test necessarily compels courts to approach speedy trial cases on an ad hoe basis. We can do little more than identify some of the-factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2192.

The prejudice that appellant charges stems from a sentence he received on June 21, 1972, in state court. According to Meade, the sentencing judge would have provided that the state sentence run concurrently with any Federal sentence had he been convicted of the Federal charges before July 20, 1972. Meade was, as we noted above, not convicted until November 24, 1972.

We find no merit in Meade’s contention that his right to a speedy trial was violated because the Federal authorities did not try him before the expiration of the time during which the state sentence could have been altered. The interest that he alleges the delay prejudiced was not an interest that the speedy-trial right was designed to protect. See Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. 2182. Meade’s Federal case was clearly not prejudiced by the delay. None of the factors that Barker set forth were present in a way that would violate the appellant’s right to a speedy trial.

We turn now to a consideration of appellant’s contention that the district court's charge to the jury on the entrapment issue contained reversible error. Our court has made the following comments regarding trial-court directions to the jury.

“Although the trial Judge is allowed a wide measure of discretion in shaping a particular charge, United States v. Meisch, 370 F.2d 768, 774 (3 Cir. 1966),. a misleading instruction is reversible error. ‘A conviction ought not to rest on an equivocal direction to the jury on a basic issue.’ Bollenbach v. United States, 326 U.S. 607, 613, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946). It is also long settled that an instruction must fairly set forth all of the essential elements of the crime charged.” Government of the Virgin Islands v. Carmona, 422 F.2d 95, 99 (C.A.3 1970); see, United States v, Silver, 457 F.2d 1217 (C.A.3 1972).

In the instant case the jury was instructed in part as follows:

“ * * * Entrapment occurs when the first and chief endeavor of the officers is to create the crime in order to punish it, and when they have persuaded, or lured, or induced a person to commit the crime, the like of which the person had never committed, and would not have committed had not the officers inspired it, or incited, or persuaded him into committing it.
* * * * * *
“If you find that the informant or the agent, or both of them, conceived of this crime, that is, the selling of the heroin, and that they induced the defendant to sell the drugs, when he had not sold drugs before, and would not otherwise have sold drugs except for their persuasion, and that they did this so that they could prosecute him, then, of course, you should acquit him.
* * * * * *
“You will recall that the defense of entrapment occurs when the police conceive of a crime and induce a person to commit a crime which the person had not comtemplated and the like of which the person had not previously committed and would not have likely committed had not the officers of the law incited or inspired the crime.” [Italics supplied.]

It is our opinion that the court’s instructions in this case indicated to the jury that if the appellant previously had violated the narcotics laws, the entrapment defense would be unavailable to him. Such prior conviction does not preclude an entrapment defense. See, Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); United States v. Watson, 489 F.2d 504, including note 5 .(C.A.3 1973). Here, where appellant admitted having been convicted of possession of narcotics, we hold the above-quoted instructions misled the jury. The court did correctly charge on this point on another occasion. However, we believe that this error was not remedied.

For the foregoing reasons, we shall reverse and remand for a new trial.

      . The wife, Jacqueline Meade, pleaded guilty and was sentenced.


source: Caselaw Access Project

author: DYER, Circuit Judge:

license: Public Domain

text:
    AMALGAMATED CLOTHING WORKERS OF AMERICA, EL PASO DISTRICT JOINT BOARD, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FARAH MANUFACTURING COMPANY, INC., Respondent.
    Nos. 73-2092, 73-2600.
    United States Court of Appeals, Fifth Circuit.
    March 21, 1974.

      Arthur M. Goldberg, Gen. Counsel, Washington, D. C., Joel Ronald Ax, New York City, for Amalgamated Clothing Workers.
    Elliott Moore, Deputy Associate Gen. Counsel, Michael S. Wolly, N. L. R. B., Washington, D. C., Milo Price, Regional Director, Woodrow Greene, Albuquerque, N. M., for N. L. R. B.
    Tommy B. Duke, Lincoln, Neb., Kenneth R. Carr, El Paso, Tex., Cecil R. Hedger, Lincoln, Neb., for Farah Mfg. Co.
    Before BELL, THORNBERRY and DYER, Circuit Judges.
   DYER, Circuit Judge:

The principal issue presented in these consolidated appeals is whether the Board’s determination of a bargaining unit of certain employees at Farah Manufacturing Company’s Gateway plant in El Paso, Texas, is a reasonable exercise of the Board’s discretion. After a careful review of the record, we conclude that the Board’s decision is not adequately supported by the evidence and therefore deny enforcement of its order finding Farah in violation of sections 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C.A. § 159, by refusing to bargain with the Union.

The present controversy arose out of organizational efforts by the El Paso Joint Board, Amalgamated Clothing Workers of America, AFL-CIO at Far-ah’s Gateway plant, where the Employer is engaged in manufacturing men’s and boys’ trousers. The Gateway plant consists of three large sections or “phases,” all of which are located under one roof. Under the physical arrangement at the plant, Phases I and II are separated by a 20-foot corridor, while Phases II and III are separated only by a common wall. Approximately 3000 employees are employed at the Gateway facility. Of this total, approximately 260 employees in Phase III were determined by the Board to constitute an appropriate bargaining unit under section 9(b) of the NLRA. These employees were described by the Board as “cutters, markers and spreaders” engaged in the cloth cutting operations in Phase III, where cutting of cloth into parts is done for the various Farah plants. Excluded from the unit, however, were other employees working in Phase III, such as receiving, storage and maintenance employees.

The evidence adduced before the Board demonstrated that the cutters, markers and spreaders were not physically separated from other workers assigned to Phase III, although it appeared that little intei’change occurred with employees working in the other two Phases. Further, no separate supervision was exercised over these employees, inasmuch as the supervisor over cutters, markers and spreaders also supervised truck, drivers, receiving and storage employees, and miscellaneous other employees working in Phase III. The evidence also showed that all Gateway employees are subject to centrally determined and uniformly administered personnel policies and that wage and fringe benefit programs are uniform for all hourly employees including cutters, markers and spreaders. Farah imposed no requirements of prior training or work experience for any position at the plant, and no evidence was adduced as to any sort of training program utilized by Farah to equip any employees with special skills or expertise.

On the basis of this evidence, the Board determined that “cutters, markers and spreaders” in Phase III were “highly skilled” employees with interests “separate and apart” from other Gateway employees, and thus constituted an appropriate intra-plant bargaining unit. The Board based its finding that these employees were highly skilled on the fact that cloth cutting operations at the plant involved working with a variety of fabrics and clothing styles. By virtue of continual fashion changes, the Board found that “a more complicated and skillful operation is essential” on the part of these employees. These findings were made over the strenuous objections of the Company that only a larger, plant-wide unit would be appropriate.

Pursuant to the unit determination, a Board-supervised election was conducted, and the successful Union was thereafter certified as the unit employees’ exclusive representative. The Union’s subsequent request to begin bargaining was refused by the Company, whereupon the Union filed unfair labor practice charges alleging violations of sections 8(a)(5) and (1). In May 1973, the Board found the Employer in violation of the Act since the Union had been properly certified and since the underlying unit determination was appropriate. Accordingly, the Board ordered the Company to bargain with the Union upon request, but denied the Union’s prayer for a “make whole” remedy as inappropriate under the circumstances.

BARGAINING UNIT DETERMINATION

We begin our inquiry fully aware that a bargaining unit designation by the Board is not lightly to be overturned, since such determinations necessarily involve a large measure of informed discretion. Nevertheless, it was manifestly not the congressional intent that appellate scrutiny of Board decisions be relegated to a formalistic ritual of stamping an appellate imprimatur on administrative determinations without having undertaken a careful examination of the basis of the Board’s action. To the contrary, courts are called upon in effectuating congressional policy to review carefully the record in each ease to determine whether the Board’s decision is a rational one supported by the evidence, lest the judiciary improvidently sanction arbitrary and capricious determinations. See N. L. R. B. v. Krieger-Ragsdale & Co., 7 Cir. 1967, 379 F.2d 517. This appellate function, albeit limited, translates into a duty by the Board in such proceedings to articulate “substantial reasons” for its unit determinations. N. L. R. B. v. Pinkerton’s, Inc., 6 Cir. 1970, 428 F.2d 479.

Our review of the Board’s order in this case centers on whether these cutters, markers and spreaders can reasonably be viewed as sharing a community of interests which distinguish them from their co-employees at Gateway. For it is the characteristic of separate interests, distinct from those of co-employees, which renders appropriate the Board’s determination of an intra-plant bargaining unit. Thus, in May Department Stores Co. v. N. L. R. B., 1945, 326 U.S. 376, 380, 66 S.Ct. 203, 207, 90 L.Ed. 145, the Supreme Court upheld the Board’s intra-enterprise unit determination “since [the] employees had a degree of self-organization and a special trade which sufficiently differentiated them from other employees” in the store. (Emphasis supplied). Clearly, the evil to be avoided in intraplant unit designations is the arbitrary grouping of employees whose interests are indistinguishable from those of their fellow employees, since establishing such artificial entities could impede rather than enhance the collective bargaining process. Accordingly, this Court recently upheld the Board’s determination of a bargaining unit comprised solely of X-ray technicians out of a larger group of skilled technician-employees since “enough factors [were] present here to sufficiently distinguish the X-ray technicians from other departments as a separate unit, appropriate for bargaining purposes.” Ochsner Clinic v. N. L. R. B., 5 Cir. 1973, 474 F.2d 203, 209 (emphasis supplied).

Shared interests which distinguish a homogeneous employee group from other employees will typically relate, as was the ease in Oehsner Clinic, to such basic subjects of collective bargaining as wages, hours and working conditions. However, in our judgment the complete lack of separate interests in any conditions of employment so as to distinguish these cutters, markers and spreaders from the other employees at the Gateway plant renders the Board’s unit determination in this case arbitrary and capricious. The facts unmistakably demonstrate that Company policies governing wages, hours and working conditions applicable to the employees in the designated unit prevail throughout the plant and, indeed, are centrally determined. The unit employees are in no way separated physically from numerous other employees working in Phase III, nor has the Company established separate and exclusive supervision over these workers. Moreover, there is no separate organization of these employees into any sort of departmental unit. No special qualifications or prior training are required by the Company for employees engaged in cutting operations. In sum, no distinguishing characteristics displayed by the unit members as compared with other employees are urged by the Board other than the fact that the Board deems these employees “highly skilled.” This conclusory statement, unsupported by evidence in the record as to why these employees’ duties necessitate substantial skills, cannot be viewed as constituting substantial evidence to support the reasonableness of the Board’s decision.

The basis for the unit determination in this case appears even more tenuous upon examining prior cutter-unit decisions relied upon by the Board. In each of these cases, certain characteristics which set cutting employees apart from their co-workers were clearly evident. Thus, in Rothschild-Kaufman Co., Inc., 1952, 98 N.L.R.B. 353 and Benjamin & Johnes, Inc., 1961, 133 N.L.R.B. 768, cutters were compensated at a different level or on a different basis than employees engaged in other functions. In Newburgh Mfg. Co., Inc., 1965, 151 N. L.R.B. 763, the cutting operations employees were organized into a separate department, were physically segregated from the rest of the plant, and were placed under separate supervision. In addition, the employees shared in a departmental bonus based solely upon their own productivity. Such indicia of separateness, evident in each of the decisions relied on by the Board, are wholly absent in the instant case.

The Board’s application for enforcement is denied. The Union’s petition for review is also denied.

      . The “make whole” remedy, entailing an award of litigation costs and organization expenses, is a drastic remedial device appropriate only in circumstances where the Company’s refusal to bargain is palpably frivolous in nature, and designed merely to delay the inevitable results of the Union’s election victory. Since we conclude that the bargaining unit determination was inappropriate in this case, the Union’s petition for review of the Board’s order refusing this unusual remedy must necessarily be denied.

      . Section 9(b) authorizes the designation of a “craft unit,” as well as an intra-plant bargaining unit, but the instant case does not involve a purported unit of skilled craftsmen, No evidence was adduced to support such a determination, and the Board’s own decision in Newburgh Mfg. Co., Inc., 1965, 151 N.L.R.B. 763, implicitly recognizes that not all employees engaged in cloth cutting are highly skilled craftsmen. Indeed, in prior cuttei cases before the Board, ample evidence indicated that cutters employed either by the re spective enterprises or by other employers in the same geographical area typically completed a lengthy training program in order to perform these tasks. Rothschild-Kaufman Co., Inc., d/b/a Taylored Slacks of Hollywood, 1952, 98 N.L.R.B. 353; Sir. James, Inc., 1952, 97 N.L.R.B. 1572. No such evidence was elicited in the present case. Moreover, the Board in this case has emphasized that these “skilled” workers enjoy a community of interest “separate and apart” from other employees at Gateway, thus indicating that this unit is comprised of a homogeneous group of employees within the larger plant, appropriate as an intra-plant unit.

      . See N.L.R.B. v. St. Louis Printing Pressmen and Assistants Union No. 6, Inc., 8 Cir. 1967, 385 F.2d 956. As then Judge Blackmun stated in that case, the touchstone of appropriate unit determinations is whether the unit’s members have a “recognizable community of interest sufficiently distinct from others.” Id. at 962. See also Retail, Wholesale & Department Store Union v. N.L.R.B., 1967, 128 U.S.App.D.C. 41, 385 F.2d 301, 305; Uyeda v. Brooks, 6 Cir. 1966, 365 F.2d 326, 329;

      . Two other cases involving cutting departments in garment factories are similarly unhelpful to the Board’s position. In Sir James, Inc., 1952, 97 N.L.R.B. 1572, the cutters received higher pay than other employees and worked under separate supervision. In N.L.R.B. v. Lettie Lee, Inc., 9 Cir. 1944, 140 F.2d 243, the court in upholding the Board’s unit determination found that the cutters constituted a specialized craft unit. The court’s finding in that case seems particularly appropriate since the union seeking certification was comprised exclusively of “qualified cutters.” Indeed, other employees at the plant were ineligible for union membership. In the present case, however, the Board’s proposed unit consists of markers and spreaders in addition to cutters, and the union seeking certification is not a specialized craft union admitting only qualified cutters.


author: HAYNSWORTH, Chief Judge:

text:
    UNITED STATES of America, Appellee, v. Louis GHIZ, Appellant.
    No. 72-1728.
    United States Court of Appeals, Fourth Circuit.
    Argued Jan. 11, 1974.
    Decided Feb. 5, 1974.
    John B. Carrico, Charleston, W. Va. (Stanley E. Preiser and David C. McCue, Charleston, W. Va., on brief), for appellant.
    Robert B. King, Asst. U. S. Atty. (John A. Field, III, U. S. Atty., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.
   HAYNSWORTH, Chief Judge:

Louis Ghiz was convicted by a jury in the United States District Court for the Southern District of West Virginia of transporting a stolen vehicle from Charleston, West Virginia, to Gary, Indiana, in violation of 18 U.S.C. § 2312. He was sentenced to two years imprisonment, from which he appeals.

Because Federal Bureau of Investigation agent, Knott, was allowed to testify as to the defendant’s assertion of his fifth amendment privilege, we must reverse.

Several FBI agents interviewed Ghiz twice in regard to the charge in the indictment and related crimes and incidents. Special Agent Calvin D. Knott testified concerning one of these conversations as follows:

Q. Mr. Knott, did you have any further conversation with Mr. Ghiz on that occasion ?
A. Yes sir. We started to ask him some questions about the Mack tractor that he purchased from Mr. Pauley, at which time he stated that he did not desire to answer any questions concerning that tractor and the interview was terminated.

The defendant claims that this testimony constitutes an improper reference to an exercise by him of his fifth amendment privilege. The Supreme Court has clearly held that a defendant’s refusal to answer questions cannot be used against him at trial, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and this Court has recently indicated that if, in declining to answer certain questions, a criminal accused invokes his fifth amendment privilege or in any other manner indicates he is relying on his understanding of the Miranda warning, evidence of his silence or of his refusal to answer specific questions is inadmissible. United States v. Moore, 4 Cir., 484 F.2d 1284, 1285-1286.

There can be little doubt that in stating that he did not desire to answer any questions concerning the Mack tractor, Ghiz was relying on his understanding of the Miranda warning which had been read to him at the beginning of the interview. He was on trial for the unlawful transportation of the Mack tractor and the jury may well have found significance in his refusal to talk about it. The testimony of Agent Knott was, therefore, inadmissible and the conviction must be reversed.

In Boeckenhaupt v. United States, 4 Cir., 392 F.2d 24, we declined to reverse a conviction where an FBI agent while testifying as a witness, twice alluded to the fact that the defendant, on advice of counsel, had declined to answer two questions. We said the answers were improper, but we found them harmless error in the context of a long and complicated trial and in light of the facts that the answers of the witness were not called for by the unobjectionable questions of the prosecutor and further references of this sort were foreclosed by a curative instruction by the court to the witness in the presence of the jury. Here we have no such moderating circumstances.

Ghiz raises several other issues on appeal. Since there may be a new trial in this case, we find it appropriate to observe that none of these other issues constitutes reversible error.

Reversed.

      . While the government contends that the testimony was admitted without objection, the record clearly indicates that defense counsel vigorously objected to its admission at the in-chambers suppression hearing and preserved the continuing objection at that time without the necessity of voicing another objection as the evidence was presented to the jury.


author: PER CURIAM.

text:
    Marilyn WATTS, Administratrix of the Estate of Tom Watts, Deceased, Plaintiff-Appellee, v. MACK TRUCKS, INC. and Leonard Stewart, Defendants-Appellants.
    No. 73-1456.
    United States Court of Appeals, Sixth Circuit.
    Feb. 7, 1974.
    Jon E. Jones, Cookeville, Tenn., on brief for defendants-appellants; Maddux, Moore & Jones, Cookeville, Tenn., of counsel.
    John H. Poteet, Cookeville, Tenn., on brief for plaintiff-appellee; Snow & Poteet, Cookeville, Tenn., of counsel.
    Before EDWARDS and LIVELY, Circuit Judges; and WILSON, District Judge.

         Honorable Frank W. Wilson, Chief United States District Judge for the Eastern District of Tennessee, sitting by designation.

   PER CURIAM.

In this diversity action a fireman of the City of Cookeville, Tennessee recovered damages for personal injuries from Mack Trucks, Inc. and Leonard Stewart, an employee of Mack. The plaintiff has since died and the administratrix of his estate has been substituted as appellee.

The City of Cookeville purchased two new pumper fire trucks from Mack; and Watts, an experienced fireman, was injured while the new trucks were being tested at a nearby lake. As part of the tests, a three-inlet “deluge gun” which was not manufactured by Mack, was being used. The tests had been in progress for approximately two hours when the injury occurred. It was testified that Watts and Stewart had stationed themselves at a panel on the fire truck some distance from the deluge gun and that other members of the Cookeville Fire Department from time to time had connected and disconnected various hoses used in performing the tests. There was a valve on the control panel by which the pressure in the lines could be lowered and raised and in addition there was a red button which could be depressed for immediate shutoff of pressure to the lines.

The plaintiff testified that he noticed that one of the hoses had become damaged and advised Stewart not to proceed with the tests until this hose could be replaced. The plaintiff and another fireman had removed the damaged hose and connected a different one and the plaintiff was involved in attempting to roll up the damaged hose when he was injured. The injury occurred when the deluge gun suddenly moved away from the spot where it had been positioned, throwing a fireman who had been standing on a platform on the gun into the lake some 15 to 18 feet away, and striking the plaintiff in the back and shoulder. At the time of the accident, Stewart had left the control panel on the side of the truck and it was unattended. It took 15 or 20 seconds before anyone could reach the red button to deactivate the pressure, and during this time the deluge gun was out of control. The plaintiff testified that he did not know that Stewart had left the control panel and that he would not have worked in the area of the gun or permitted the other firemen to do so if he had known that the panel was unattended.

. The contract of sale between Mack Trucks, Inc. and the City of Cookeville contained the following provision:

A qualified delivery engineer representing the manufacturer shall deliver the apparatus and remain in the community for a sufficient time, normally three or four days, to instruct fire department personnel in the operation, care and maintenance of the equipment delivered.

Leonard Stewart testified that he was the delivery engineer representing Mack in connection with the delivery of the pumper which was being tested at the time of plaintiff’s injury. In his complaint the plaintiff charged Mack Trucks, Inc. and Leonard Stewart with negligence and Mack with breach of contract. The case was submitted to the jury under both theories.

There is substantial evidence of negligence on the part of Leonard Stewart, the agent and employee of Mack Trucks, Inc. and the verdict of the jury insofar as it was based on a finding of negligence and proximate cause may not be disturbed. On appeal it is contended that the trial court should have directed a verdict for the defendants on the issue of breach of contract, or at the very least should have submitted the question of the plaintiff’s right to recover as a third party beneficiary under a charge with regard to privity and the class of persons to whom the contract rights, benefits and duties flowed. However, under the record in this case no prejudicial error could exist with regard to the trial court’s instruction on the contract theory of the lawsuit. The general verdict in favor of the plaintiff and against both defendants indicates that the jury based its decision on a finding of negligence since Leonard Stewart was not liable under the contract theory and could only be liable for negligence. Mack Trucks, Inc. was also liable for the negligence of Leonard Stewart under the doctrine of respondeat .superior. As previously pointed out, there is sufficient evidence of negligence and proximate cause to support such a verdict.

Furthermore, none of the parties requested that the jury make special findings or that the issues be submitted on interrogatories, and the jury rendered a general verdict in favor of the plaintiff. Section 20-1317 'of the Tennessee Code Annotated provides that if any counts in a declaration are good, a jury verdict shall be applied to such counts. This court has applied this statute in diversity cases where a general verdict is rendered on the basis of at least one properly submitted issue which is supported by substantial evidence even though other claims may have been improperly submitted. Tracy v. Finn Equipment Co., 290 F.2d 498 (6th Cir.), cert. denied, 368 U.S. 826, 82 S.Ct. 47, 7 L.Ed.2d 30 (1961). See Adkins v. Ford Motor Co., 446 F.2d 1105 (6th Cir. 1971), for further discussion of this principle at page 1108.

Appellants also contend that the trial court erred in refusing to instruct the jury concerning the status of Bituminous Casualty Corporation, the workmen’s compensation carrier of the City of Cookeville. Bituminous was not a party to the action until the defendants made a motion to require amendment of the complaint making Bituminous Casualty Corporation a party plaintiff because of its right of subrogation to the extent of the workmen’s compensation benefits paid to Watts. Thereafter Bituminous filed an intervening petition and the parties entered into an agreed order that Bituminous was entitled to a lien on any recovery of Watts in the action for money already paid and for any future liability which it might incur under the Workmen’s Compensation Act of the State of Tennessee up to and including the maximum provided by statute.

Bituminous did not take part in the trial and the jury would never have known of its presence except for answers elicited from the plaintiff and other witnesses on cross-examination by the defendants. The defendants managed to get before the jury the fact that plaintiff was covered by workmen’s compensation, that he could recover up to $18,000 from Bituminous and that it would go directly to him and not to the City. On cross-examination the city manager of Cookeville testified that if Watts should receive a lump sum workmen’s compensation settlement from Bituminous he would not be required to repay it to the City. Under the circumstances of this case we do not believe it was error for the court to refuse to instruct the jury as requested by the defendánts. The only information which the jury had concerning Bituminous, from the testimony, was that it had already paid certain sums to the plaintiff and might be liable to pay additional sums and that the plaintiff was not required to refund these to the City. All of this evidence was calculated to benefit the defendants rather than the plaintiff since it advised the jury that the plaintiff was already recovering from another source for the very injuries sued for and if it affected the verdict at all, the only logical effect it could have would be to reduce rather than increase it. There was no prejudicial error in the court’s refusal to give the requested instruction.

The judgment of the district court is affirmed.


author: BUTZNER, Circuit Judge:

text:
    Maida Ludvik SHERIS, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee. Maida Ludvik SHERIS, Appellee, v. The TRAVELERS INSURANCE COMPANY, Appellant.
    Nos. 73-1462, 73-1463.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 7, 1973.
    Decided Feb. 12, 1974.

      James H. Simmonds, Arlington, Va., and Richard A. Mehler, Washington, D. C. (Lawrence S. Schaffner, Washington, D. C., on brief), for Maida Ludvik Sheris.
    James C. Gregg, Washington, D. C., for The Travelers Ins. Co.
    Before HAYNSWORTH, Chief Judge, and BUTZNER and WIDENER, Circuit Judges.
   BUTZNER, Circuit Judge:

This appeal questions the apportionment of an attorney’s fee between a workmen’s compensation carrier and the administratrix of an estate who recovered damages for the wrongful death of an employee. The district court used only the compensation installments actually paid as a basis for assessing the carrier’s proportionate share of the fee. We conclude that the entire compensation award furnished the appropriate basis for apportionment, subject to a credit allowable to the carrier. Accordingly, we vacate the judgment and remand the ease for further proceedings.

William T. Sheris perished in the crash of a transatlantic aircraft. Because his death occurred during the course of his employment, the Industrial Commission of Virginia awarded his widow and minor children compensation payable by his employer’s insurance carrier, the Travelers Insurance Company, in 400 weekly installments of $45, totaling $18,000. Mrs. Sheris, suing in district court as administratrix of her husband’s estate, also received $75,000 from the airline responsible for his death. From her share of the recovery against the airline, she paid an attorney’s fee of $25,000. Thus, while this litigation is cast in terms of apportioning an attorney’s fee, it is really an attempt by Mrs. Sheris to obtain from Travelers partial reimbursement for her outlay.

Before the court made final distribution of the $75,000, a dispute over Travelers’ right to subrogation was submitted to the Industrial Commission. In that forum, Mrs. Sheris contended .that the subrogation provisions of the Workmen’s Compensation Act were inapplicable because the airline’s liability rested on contractual aspects of the Warsaw Convention and the damages recovered by the estate were in the nature of insurance. The Industrial Commission ruled against Mrs. Sheris, holding that Travelers was subrogated to the estate’s rights against the airline. Consequently, it ordered that Travelers should be reimbursed for the weekly installments it had already paid, aggregating $5,040, and it relieved the company of future payments. Thus, Travelers was saved harmless from liability on the entire $18,000 award. The Supreme Court of Virginia affirmed, Sheris v. Sheris Co., 212 Va. 825, 188 S.E.2d 367 (1972). Neither the Commission nor the Court apportioned counsel fees.

Returning to the district court, the parties sought distribution of the award. Travelers asked to be repaid the sum of $5,040 without contribution for counsel fees, because Mrs. Sheris had opposed its right of subrogation. Mrs. Sheris urged that the carrier be assessed a fee of $6,000 based on the entire compensation award of $18,000. The court accepted neither party’s position. It ruled Travelers’ contribution for fees should be based on $5,040, the amount of compensation it had paid, rather than its potential liability of $18,000. It made no adjustment for Travelers on account of Mrs. Sheris’ opposition to subrogation. Accordingly, from the $75,000 recovery against the airline, the court awarded Travelers $5,040 less 33%% which it deducted for Travelers’ share of the fee. Dissatisfied, both parties appealed.

The Virginia Workmen’s Compensation Act allows either the employer or the employee to sue the person responsible for the employee’s injury except for reasons not pertinent to this case. If the employer sues, he may retain from the damages he recovers a sum sufficient to reimburse himself for the compensation paid, or payable, to the employee, but he must account to the employee for money collected in excess of the award. If the employee sues, the employer is entitled to be reimbursed for compensation already paid and to be discharged from liability for future payments to the extent that the judgment against the wrongdoer is sufficient to satisfy the compensation award. The balance may be retained by the employee. In either instance, the employer’s workmen’s compensation insurance carrier stands in the shoes of the employer.

For many years an employer who sued the wrongdoer has been authorized to deduct reasonable attorney’s fees before remitting to the employee. But before 1960 an employee who brought suit was not entitled to charge any attorney’s fees against the employer’s share of the recovery. Frequently these rules placed all of the expense of suing a wrongdoer on the injured employee or his survivors even though the employer or his compensation carrier benefited substantially. To remedy this inequity, the legislature amended the Workmen’s Compensation Act by apportioning attorney’s fees between the employer and employee as their respective interests may appear regardless of who instituted the suit.

The Supreme Court of Virginia has not been called upon to decide the correct basis for apportioning an attorney’s fee when the employee’s recovery against the wrongdoer is in excess of both the paid and unpaid portions of a compensation award. Several courts, however, have interpreted apportionment statutes similar, though not identical,-to Virginia’s. They have ruled that apportionment must be based on the full liability of the employer—the compensation it has paid in the past and the amount that it would be required to pay in the future were it not for the employee’s successful suit.

The reasoning of these cases is sound. It rests on the conclusion that there is no rational distinction between the benefit an employer enjoys from being reimbursed for compensation payments already made and the benefit of being released from the obligation to make future compensation payments. Therefore, as one court has pointed out, it is reasonable to assume that the legislature intended the attorney’s fee to be prorated to the extent of the benefits the employer received from the recovery against the wrongdoer. Stated negatively, there is nothing to indicate that when the Virginia legislature directed proration of the fees as the interests of the parties may appear, it intended that only part of the interest of the compensation carrier should be taken into account.

While some compensation awards may be modified with respect to future payments, the employee’s right of apportionment should not be defeated. The prospect of modification, however, is a factor that a court should consider in light of the contingency that may affect the award. In the case before us, the possibility of modification of the award presents no problem. Upon Travelers’ application, the Industrial Commission released it from future payments because Mrs. Sheris and her children recovered $75,000 from the airline.

Travelers asserts that cases from other jurisdictions are not persuasive because Va.Code Ann. § 65.1-42 (1973) expressly provides that the employer’s share of attorneys’ fees shall be deducted from the compensation actually paid. This provision, Travelers argues, shows conclusively that proration of attorneys’ fees must be based on installments of an award already paia, and not on the unpaid installments.

The difficulty with Travelers’ position is that it overlooks the significance of the 1960 amendment to the Compensation Act. The principal substantive change was the enactment of a new section recodified as § 65.1-43 providing that upon the recovery of damages by either the employer or the employee against the wrongdoer, the court should apportion reasonable attorney’s fees between the employer and the employee as their interests appear. To carry out this substantive change, the amendment modified two existing sections dealing respectively with suits brought by the employer and suits brought by the employee. These modifications are procedural. They are designed to insure that the attorney’s fees shall be apportioned in accordance with the substantive changes made in § 65.1-43 when the proceeds of the judgment against the wrongdoer are disbursed.

Section 65.1-42, on which Travelers relies, simply authorizes a deduction of a proportionate share of the fee from the reimbursement payable to the employer “as provided in § 65.1-43.’’ It is obvious, therefore, that § 65.1-42 is not, as Travelers contends, a limitation on the general apportionment statute, § 65.1-43. Section 65.1-42 does not deal expressly or by implication with the employer’s obligation for attorney’s fees arising out of the release of future payments that would have been due under the compensation award were it not for the employee’s successful suit. This question is governed by § 65.1-43, which explicitly states that apportionment must be made as the respective interests of the employer and employee appear.

Travelers’ interest in the recovery of $75,000 against the airline is substantially the same with respect to both the paid and unpaid portions of the compensation award. Travelers was relieved from liability from both parts of the award for precisely the same reason —Mrs. Sheris’ suit against the airline. Fortuities affecting the time required to bring that litigation to a successful conclusion determined in part the amount of compensation that remained unpaid. But these fortuities, similar to those attending all litigation, furnish no rational criteria for determining a just apportionment of the attorney’s fee. We conclude, therefore, that Travelers’ obligation to pay a part of the attorney’s fee must be based on the full compensation award of $18,000.

We turn next to Travelers’ cross appeal which charges that because of Mrs. Sheris’ opposition to its right of subrogation, the court erred in assessing any fees against it. Travelers’ argument, we believe, does not defeat Mrs. Sheris’ claim, but it is a factor the court must consider in apportioning the attorney’s fee between the parties.

The Compensation Act’s direction to apportion fees as the interests of the parties may appear is broad enough to encompass this situation. Travelers has benefited by Mrs. Sheris’ suit against the airline, and under the Act it must pay its share of the fee. But the company also had to spend its own money when Mrs. Sheris assumed an adversary position on the issue of subrogation. Therefore, the district court should allow as a deduction from the fee that Travelers would otherwise owe, the amount it reasonably expended to perfect its right of subrogation. In this way the mandate of the statute requiring consideration of the interests of both parties will be fully observed.

The judgment of the district court is vacated, and the ease is remanded for further proceedings consistent with this opinion. Each party shall bear its own costs.

      . Va. Code Ann. §§ 65.1-41 and 42 (1973). The text is quoted in notes 14 and 15, infra.

      . Va. Code Ann. § 65.1-41 (1973). The text is quoted in note 14, infra.

      . Va. Code Ann. § 65.1-42 (1973). The text is quoted in note 15, infra. Sheris v. Sheris Co., 212 Va. 825, 188 S.E.2d 367 (1972).

      . Va. Code Ann. § 65.1-112 (1973).

      . See VEPOO v. Mitchell, 159 Va. 855, 164 S.E. 800, 167 S.E. 424, 425 (1933) (dictum).

      . See Stancil v. United States, 200 F.Supp. 36, 44 (B.D.Va.1961) (dictum). Travelers’ reliance upon Stancil is misplaced. In Stancil claim was made only for apportionment of attorney’s fees on the basis of the compensation already paid, and, therefore, the court had no occasion to discuss the issue presented in the case now before us.

      . Oh. 89, § 39.1 [1960] Va.Acts 108. This section has been recodified as Va.Code Ann. § 65.1—43 (1973). It provides:
      “In any such action, or claim for damages, by such employee, his personal representative or other person against any person other than the employer, and in any such action brought, or claim asserted, by the employer under his right of subrogation provided for in § 65.1-41, if a recovery is effected, either by judgment or voluntary settlement, the reasonable expenses and reasonable attorney’s fees of such claimants shall be apportioned pro rata between the employer and the employee, his personal representative or other person, as their respective interests may appear.”

      . Dowhy v. Moyer, Inc., 278 F.2d 753 (3rd Cir. 1960) ; Yeager v. Heckman, 158 F.Supp. 933 (E.D.Pa. 1957) ; Caputo v. Best Foods, Inc., 17 N.J. 259, 111 A.2d 261 (1955) ; Dante v. Gotelli, Inc., 17 N.J. 254, 111 A.2d 267 (1955) ; McMullen v. Maryland Casualty Co., 123 N.J.Super. 248, 302 A.2d 181 (1973) ; Wall v. Conn. Welding & Machine Co., 197 Pa.Super. 360, 179 A.2d 235 (1962) ; Soliday v. Hires Turner Glass Co., 187 Pa.Super. 44, 142 A.2d 425 (1958) ; cf. Security Ins. Co. of Hartford v. Norris, 439 S.W.2d 68 (Ct.App.Ky. 1969) (apportionment based on equitable, not statutory, grounds) ; see Atleson, Workmen’s Compensation : Third Party Actions and the Apportionment of Attorney’s Fees 19 Buffalo L. Rev. 515, 532 (1970).

      . See Yeager v. Heckman, 158 F.Supp. 933, 935 (E.D.Pa. 1957).

      . See Soliday v. Hires Turner Glass Co., 187 Pa.Super. 44, 142 A.2d 425, 428 (1958).

      . See note 15, infra.

      . Ch. 89, §§ 65-38, 39 and 39.1 [1960] Va. Acts 108. The Workmen’s Compensation Act was revised and recodified in 1968. Ch. 660, §§ 65.1-41, 42, and 43 [1968] Va. Acts 1130. The text of these sections was not affected by the 1968 recodification. For convenience, the recodified section numbers have been used in this opinion.

      . The text of this section is quoted in note 7, supra.

      . Section 65.1-41 of the Va. Code Ann. (1973) provides:
      “The making of a lawful claim against an employer for compensation under this Act for the injury or death of his employee shall operate as an assignment to the employer of any right to recover damages which the injured employee or his personal representative or other person may have against any other party for such injury or death, and such employer shall be subrogated to any such right and may enforce, in his own name or in the name of the injured emjdoyee or his personal representative, the legal liability of such other party. The amount of compensation paid by the employer or the amount of compensation to which the injured employee or his dependents are entitled shall not be admissible as evidence in any action brought to recover damages. Any amount collected by the employer under the provisions of this section in excess of the amount paid by the employer or for which he is liable shall be held by the employer for the benefit of the injured employee or other person entitled thereto, less a proportionate share of such amounts as are paid by the employer for reasonable expenses and attorney’s fees as provided in § 65.1-43

      [The 1960 Amendment is italicized].

      . Section 65.1-42 of the Va. Code Ann. (1973) provides:
      “In any such action by such employee, his personal representative or other person against any person other than the employer, the court shall, on petition or motion of the employer at any time prior to verdict, ascertain the amount of compensation paid and expenses for medical, surgical and hospital attention and supplies, and funeral expenses, incurred by the employer under the provisions of this Act, and deduct therefrom a proportionate share of such amounts as are paid by the plaintiff for reasonable expenses and attorney’s fees as provided in § 65.1-43; and in event of judgment against such person other than the employer the court shall in its order require that the judgment debtor pay such compensation and expenses of the employer, less said share of expenses and attorney’s fees, so ascertained by the court out of the amount of the judgment, so far as sufficient, and the balance, if any, to the judgment creditor-[The 1960 Amendment is italicized].


author: WINTER, Circuit Judge:

text:
    Thomas R. DOOLEY, Appellant, v. Major General Robert R. PLOGER, Appellee. Michael GNIP, USMC, Petitioner, v. Major F. A. McCAUGHAN, USMC, Respondent.
    Nos. 73-1900, 73-2207.

    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 8, 1973.
    Decided Feb. 12, 1974.

      Richard Crouch, Robert E. Walker, Jr., Law Student, and Stephen C. Glass-man, Arlington; Va. (Bernstein, Ward & Glassman, Arlington, Va., and David F. Addleston on brief), for Thomas R. Dooley and Michael Gnip.
    Donald E. Shelton, Captain JAGC, U. S. Dept. of the Army, Robert L. Ashbaugh, Sp. Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., and J. Frederick Sinclair, Asst. U. S. Atty., on brief), for Major Gen. Robert R. Ploger and Major F. A. McCaughan.
    Before WINTER, BUTZNER and FIELD, Circuit Judges.
   WINTER, Circuit Judge:

These appeals both present the threshold question of whether the federal civilian courts should pass on the appropriateness of the exercise of court martial jurisdiction over certain narcotic offenses of military personnel allegedly lacking “service-connection” prior to the time that there are findings of fact and conclusions of law by the military courts on the jurisdictional issue of service-connection. These appeals also present the ultimate question of whether certain narcotic offenses of military personnel which were allegedly committed—and at least consummated—off-base, off-duty, and out-of-uniform, are “service-connected” within the purview of O’Callahan v. Parker, and thus appropriately tried in the courts-martial. The Supreme Court has undertaken to decide the latter question by granting certiorari in Schlesinger v. Councilman. If we were required to reach the ultimate question, we would stay the proceedings before us until the Supreme Court has decided the case on the merits, but we conclude that neither appellant can prevail on the threshold question. Because of this conclusion, as well as the special circumstances of each appellant, we proceed to final disposition now.

In Dooley v. Ploger (No. 73-1900), we hold that Sergeant Thomas R. Dooley’s application for a writ of habeas corpus was premature. In his habeas petition, Sergeant Dooley sought pretrial release and freedom from military trial of the questions of his guilt and the service-connection of the alleged offenses (possession and sale of cocaine). Before seeking relief from a district court, Sergeant Dooley must first exhaust his military remedies, at least to the extent that a military tribunal is given the opportunity to find the facts of service-connection, as well as guilt or innocence, and to impart its expert understanding of the impact of specific offenses on military capability.

In Gnip v. McCaughan (No. 73-2207), we hold that the district court was correct in refusing to enjoin Corporal Gnip’s court-martial while it determined whether Gnip’s alleged possession and sale of marijuana were service-connected. Before resorting to the federal civilian courts, Corporal Gnip, too, must litigate in the military court system the legal and factual questions of service-connection on which court-martial authority turns.

We affirm in both appeals.

II.

DOOLEY

Army Sergeant Dooley’s application for a writ of habeas corpus alleged that he was in military custody charged with violating Article 92 of the Uniform Code of Military Justice. Article 92 is a “catch all’ provision which makes disobedience of a lawful general order or regulation criminal. In this case, Dooley was charged with violating Army Regulation 600-50, ¶ 4-2(7) (a) 1, Change 1 (September 20, 1972), by possessing, selling, distributing or delivering a “controlled substance,” i. e., 3.18 grams of cocaine.

Dooley’s habeas petition stated that he was on active duty at Fort Belvoir, Virginia, but that the alleged possession and sale of cocaine occurred at an apartment complex parking area outside any military or other governmental enclave and not under military control. Dooley also alleged that the offense did not involve “a violation of military property,” that he was properly absent from the Army base, that the alleged crime was committed during peacetime, that there was no connection between Dooley’s military duties and the crime, that the alleged crime did not pose a threat to a military post, and that it was one traditionally prosecuted in a civilian court. Overall, the application concluded with the legal assertion that due to a lack of sufficient service-connection, the United States Army and the Department of Defense lacked jurisdiction to try Dooley by court-martial, thereby circumventing his right in an Article III court to indictment by a grand jury, trial by a pet-it jury, and release on bail.

The district court ordered Dooley’s commanding general to answer, and attached to the answer were copies of the investigative reports and other documents which gave rise to the formal charges against Dooley. From them, it appeared that the Army was prepared to prove that on March 6, 1973, Private Lee Walter Coffey, a confidential informer and military police investigator assigned to Fort Meyers, Virginia, met Dooley at a gymnasium located on North Post, Fort Belvoir, for the purpose of purchasing a quantity of cocaine. Prior to the meeting, Coffey had met Dooley at the post gymnasium on several occasions, discussed narcotics with him, and had undertaken to “set up a buy” of three grams of cocaine for $50 per gram. At the March 6 meeting, Dooley asked Coffey if the latter had the money and was ready to deal. Coffey stated that someone else (military police investigator James J. MeGivney) had the money and would be making the purchase. Dooley at first was reluctant to make a sale to MeGivney, but after MeGivney had been questioned and threatened by Dooley with death if he turned out to be an investigator or'the police, Dooley agreed to make the sale but said that he would do so at an undisclosed location to which he would lead Coffey and MeGivney. Coffey and MeGivney followed Dooley to the apartment complex parking area, and there Dooley handed Investigator MeGivney a cellophane bag containing a white substance and suggested that MeGivney sample it. After simulating sampling, MeGivney indicated that he was satisfied, and Dooley handed over two more cellophane bags. Dooley demanded $50 per bag and he was paid that sum. Dooley then invited Coffey and MeGivney to Dooley’s apartment, where he offered them a marijuana cigarette and offered to sell marijuana at $115 per pound. A laboratory test confirmed that the white substance in each of the three cellophane bags was cocaine.

III.

GNIP

Gnip’s case was instituted by a complaint for a preliminary and permanent injunction in which it was alleged that Gnip was a member of the Marine Corps who would have completed his four-year tour of duty on July 13, 1973, but that on June 29, 1973, he was charged with unlawful possession of marijuana, unlawful transfer of marijuana, and unlawful sale of marijuana, all at Apartment No. 3, 239 Fourth Avenue, Quantico Town, Virginia. As a result of the pendency of the charge, Gnip was not discharged as scheduled. Gnip alleged that his possession, transfer and sale of marijuana occurred when he was legally away from the base (Quantico), was not in uniform, was not in the presence of anyone in uniform, was not on any military installation, was off-duty, and was not engaged in the performance of any duty relating to the military. The complaint averred that although the sale was made to another Marine, at the time of the sale he was not in uniform and was not on a military installation or any other property subject to military jurisdiction. Further, it was alleged that under the holding in O’Callahan v. Parker, supra, the crimes charged were not service-connected and, hence, that Gnip was not subject to court-martial proceedings in which he would be deprived of the right available in an Article III court to indictment by a grand jury and trial by a petit jury.

Although Gnip’s brief on appeal sets forth detailed statements of the circumstances under which the crimes were committed, his statements lack record support, and they are not admitted by the government. Suffice it to say that, unlike Dooley’s case, there is nothing in the record to indicate where the alleged sale of marijuana to the undercover military agent was negotiated or arranged, or whether there were other negotiations between the parties prior to the alleged sale and, if any, where they were conducted. Because the government filed no response to Gnip’s motion for a preliminary injunction and a hearing thereon was held before an answer to the complaint was due, Gnip’s allegations have not been answered or amplified by the government. At the hearing on the motion for preliminary injunction, the district court denied the motion and concluded to dismiss the complaint.

IV.

Dooley sought habeas corpus before his military trial was held; not after his military conviction was final. His petition thus presents the. question of whether the long established exhaustion requirement articulated in Gusik v. Schilder and Noyd v. Bond applies to servicemen challenging a court-martial's subject matter jurisdiction on grounds of service-connection, or whether the implied exception to the exhaustion requirement found in cases denying court martial jurisdiction over civilians, should be extended to cases raising non-frivolous claims of a lack of service-connection under O’Callahan v. Parker.

Gusik and Noyd held that before members of the armed services could obtain federal habeas corpus they generally had to exhaust remedies available in the military courts affording equivalent relief. Those cases’ restatement of the general rule requiring exhaustion of military remedies rested primarily on the ground that “[i]f an available procedure has not been employed to rectify the alleged error which the federal court is asked to correct, any interference by the federal court may be wholly needless. The procedure established to police the errors of the tribunal whose judgment is challenged may be adequate for the occasion. If it is, any friction between the federal court and the military or state tribunal is saved.” In Noyd, the Court found support for the exhaustion requirement not only in the policy of avoiding needless friction, but also in the unfamiliar special circumstances of military life.

After Gusik, and contemporaneously with Noyd, the Supreme Court decided O’Callahan v. Parker, which held that court-martial jurisdiction over military personnel is limited to offenses which are service-connected. O’Callahan set forth some criteria for determining whether a crime is service-connected and later in Relford v. Commandant, the Supreme Court attempted to categorize the factors indicating the presence or lack of service-connection. Finally, last term, in Gosa v. Mayden, the Court grappled inconclusively with the question of whether O’Callahan should be applied retroactively. In the course of his plurality opinion arguing against retroactive application, Mr. Justice Blackmun characterized O’Callahan as a holding that “the exercise of jurisdiction [by the court-martial] was not appropriate [but not as a holding] that a military tribunal was and always had been without authority to exercise jurisdiction over a nonservice connected offense.”

Dooley argues that the exhaustion requirement does not apply to cases challenging a military court’s jurisdiction. For this proposition, he relies on the Supreme Court decisions denying court-martial jurisdiction over civilian dependents, employees, and former servicemen. Those cases, which established military status as a prerequisite to court-martial jurisdiction, we/e decided without requiring the petitioners to present their claims in the military courts. In arguing the effect of the civilian cases, Dooley relies heavily on Mr. Justice Harlan’s brief characterization of them in a footnote in Noyd:

The cited eases held that the Constitution barred the assertion of court-martial jurisdiction over various classes of civilians connected with the military, and it is true that this Court there vindicated complainants’ claims without requiring exhaustion of military remedies. We did so, however, because we did not believe that the expertise of military courts extended to the consideration of constitutional claims of the type presented. Moreover, it appeared especially unfair to require exhaustion of military remedies when the complainants raised substantial arguments denying the right of the military to try them at all.

Dooley thus argues that exhaustion of military remedies is excused regardless of which jurisdictional prerequisite of the military courts is attacked, the military status of the defendant or the “service-connection” of the offense.

If the correctness of Dooley’s characterization of his claim as “jurisdictional” were determinative of whether the exhaustion doctrine applied, a closer examination of O’Callahan and the debate between the plurality and one of the dissenting opinions in Gosa v. Mayden to determine the “jurisdictional” status of Dooley’s claim would be necessary. But we do not think the examination is warranted. The doctrine of exhaustion of remedies is a flexible, discretionary one grounded upon several policies. Its application, including application to a jurisdictional challenge, turns upon consideration of those policies in the light of the questions raised' by the case, as well as any extraordinary circumstances calling for early judicial decision. There is no general exception to the exhaustion requirement for jurisdictional challenges; here, as in cases where the challenge may not be termed “jurisdictional,” it is important to respect the orderly processes of the military court.system, to avoid needless friction, and to have the facts developed and the law interpreted by the expert adjudicatory tribunals charged in the first instance with responsibility for offenses of members of the armed services.

The opinions in the civilian eases did not explain their excusal of exhaustion. Thus, analysis of the precedential effect of those decisions on the immediate controversy depends on Justice Harlan’s brief footnote explanation and general exhaustion doctrine. While both Dooley and the petitioners in the civilian cases challenged “the right of the military to try them at all” under the constitutional grant of court-martial jurisdiction, this type of claim is present in every constitutional and jurisdictional attack. The significant distinction between the civilian cases and the instant appeals is that here “the expertise of military courts [does] exten[d] to the consideration of constitutional claims of the type presented.” Resolution of the civilian cases principally involved traditional questions of constitutional law. Unlike Dooley’s claim, the civilian eases involved no disputed questions of fact and no questions on which the expert opinion of the military courts would be helpful. Resolution of the O’Callahan questions presented by these appeals depends for the most part on the fact-finding process—which will determine the circumstances under which any offense has been committed—and on a judgment of the impact of the offenses on the combat effectiveness of the armed forces. Expert understanding of the special circumstances of military life obviously would influence what facts are found from the evidence and what significance is attached to them. Thus, in the immediate case, unlike the civilian cases, the expertise of the military courts is most relevant to constitutional decision.

Dooley is a serviceman and there is at least a claim that the negotiations allegedly resulting in an illegal sale of cocaine occurred on a military reservation and that the sale was made to other military personnel. There are, therefore, possible service-connections which may appear upon development of the facts. Dooley’s tendered stipulation falls short of providing the certainty that is necessary in order to arrive at an informed judgment as to the effect that O’Callahan has on his case. The proper tribunal to determine the operative facts is a military tribunal which also has the expertise to express a view, once the operative facts are developed, of the effect of the commission of the crime, if guilt is found, on the morale and efficiency of future operations of the military. We hold, therefore, that the district court properly declined to issue the writ and that Dooley must exhaust available military remedies, especially fact-finding remedies, before he may properly resort to a district court.

We find unpersuasive the contrary decision in Moylan v. Laird, as did the Third Circuit in Sedivy v. Richardson. In accord with our views are Mascavage v. Richardson, Diorio v. McBride, and Hamlin v. Laird.

In arriving at this holding, we are fully mindful of a limitation on the doctrine of exhaustion. While exhaustion applies as long as there is an available, unused remedy which may result in relief. Gusik, supra, we have never required exhaustion where the outcome would predictably be futile. If, as Dooley contends, the United States Court of Military Appeals has held in United States v. Rose, and other cases, that any delivery of narcotics by one serviceman to another is per se service-connected, whether on-base or off-base and irrespective of other circumstances, we would not require Dooley to prosecute his case to that court. Nonetheless, Dooley would be required to exhaust the fact-finding mechanisms of the system of military justice. But once the factual basis of possible service-connections was established, Dooley would be excused frojn further exhaustion of military remedies and could seek a writ of habeas corpus from a district court.

V.

Most of what we have said with respect to Dooley is applicable to Gnip. Dooley sought habeas corpus prior to court-martial; Gnip filed a complaint seeking a preliminary and permanent injunction against being tried by a court-martial. Gnip did not allege sufficient facts to determine the service-connection of the charges against him, and the district court dismissed his complaint before those facts could be developed.

The district court’s dismissal was strictly in accord with the decision in Sedivy v. Richardson, which, correctly we think, vacated the district court’s permanent injunction prohibiting military trial of an army sergeant on charges that he unlawfully possessed amphetamines and marijuana in violation of Articles 92 and 134 of the Uniform Code of Military Justice. Noticing first, but not deciding, that there was a question of jurisdiction under the federal question jurisdiction because of the absence of the prerequisite $10,000 in controversy, the court held that the district court should not have made findings and decided the O’Callahan issue because it “should have required the appellee [the accused sergeant] to exhaust remedies in the military court system and not have interfered with its orderly process.” We express no view on whether federal question jurisdiction was properly invoked by Gnip, but we affirm the district court’s dismissal of his complaint on the authority of Sedivy. If and when Gnip is convicted and has exhausted his available, effective military remedies, he may litigate the O’Callahan question in the district court.

Affirmed.

      . 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969).

      . 414 U.S. 1111, 94 S.Ct. 839, 38 L.Ed.2d 737 (1973).

      . Although the record does not reflect the military proceedings subsequent to the denial of the writ, the briefs filed with us assert that Sergeant Dooley was convicted July 5, 1973 and sentenced, inter alia, to be confined at hard labor for one year and two months. The government asserts that the conviction was obtained on Dooley’s plea of guilty, but under a reservation of his right to question the jurisdiction of the court-martial. Dooley makes no representation in that regard. In any event, Dooley is presently serving that sentence. We do not anticipate that the Supreme Court will decide Sohlesinger earlier than late spring or early summer, 1974. If Dooley’s case were held by us pending the outcome of Sohlesinger, it might well become moot.

      . Corporal Gulp’s alleged offense was claimed to have occurred on June 29, 1973. His tour of duty with the Marines was to have expired July 13, 1973; but when the charges were brought, he was placed on hold pending court-martial and he was not discharged. Corporal Gnip sought to enjoin the convening of the court-martial by his complaint filed in the district court. When the district court denied relief and Gnip appealed, we enjoined the court-martial pending appeal. Following argument, we entered an order dissolving the injunction and indicating that we would affirm the district court before the Supreme Court acted in Schlesinger. We have no present knowledge whether the court martial has been held.

      . In his brief in this court, Dooley offers to stipulate the facts set forth in the answer, but only “for purposes of this appeal." (Emphasis added.)

      . 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950).

      . 395 U.S. 683, 89 S.Ct. 1876, 23 L.Ed.2d 63.1 (1969).

      . E. g., McElroy v. United States ex rel. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282 (1960), Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955).

      . 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969). Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971) amplified and categorized the factors relevant to a holding of service-connection.

      . See Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1332-36 (1970) .

      . 340 U.S. at 132, 71 S.Ct. 149, 95 L.Ed. 146, quoted in 395 U.S. at 693-694, 89 S.Ct. at 1882.

      . In reviewing military decisions, we must accommodate the demands of individuals’ rights and the social order in a context which is far removed from those which we encounter in the ordinary run of civilian litigation, whether state or federal. In doing so, we must interpret a legal tradition whieli is radically different from that which is common in civil courts.
      It is for these reasons that Congress, in the exercise of its power to “make Rules for the Government and Regulation of the land and naval Forces,” has never given this Court appellate jurisdiction to supervise the administration of criminal justice in the military. When, after the Second World War, Congress became convinced of the need to assure direct civilian review over military justice, it deliberately chose to confide this power to a specialized Court of Military Appeals, so that disinterested civilian judges could gain over time a fully developed understanding of the distinctive problems and legal traditions of the Armed Forces. 395 U.S. at 694, 89 S.Ct. at 1883.

      . 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), noted in The Supreme Court, 1968 Term, 83 Harv.L.Rev. 7, 212 (1969).

      . 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971).

      . 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973).

      . 413 U.S. at 677-678, 93 S.Ct. at 2935.

      . Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960), Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957).

      . Grisham v. Hagan, 361 U.S. 278, 80 S.Ct. 310, 4 L.Ed.2d 279 (1960), McElroy v. United States ex rel. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282 (1960).

      . United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955).

      . 395 U.S. at 696 n. 8, 89 S.Ct. at 1884.

      . 413 U.S. at 667, 93 S.Ct. 2926, 37 L.Ed.2d 873 (Blackmun, J.).

      . 413 U.S. at 693, 93 S.Ct. 2926, 37 L.Ed.2d 873 (Marshall, J.).

      . See Smith v. United States, 199 F.2d 377, 381 (1 Cir. 1952) (Magruder, J.), L. Jaffe, Judicial Control of Administrative Action, ch. 11 (1965), K. Davis, 3 Administrative Law § 20.03 p. 69 (1958).

      . See Jaffe, supra, 436-37; Davis, supra, § 20.03 esp. p. 69. Of. NLRB v. Hearst Publications, 322 U.S. 111, 130-132, 64 S.Ct. 851, 88 L.Ed. 1170 (1944) (question of whether newsboys were “employees” within the NLRA and thus under NLRB jurisdiction was for the NLRB).

      . Art. I § 8 cl. 14.

      . See Davis, supra, § 20.02 p. 65, § 20.03 p. 69; Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 49-52, 58 S.Ct. 459 82 L.Ed. 638 (1938) (Brandéis, J.) (exhaustion required despite challenge to constitutional “jurisdiction” of NLB.B) discussed in Jaffe, supra, 433-37 (accenting importance of factual development to resolution of Bethlehem’s claim) ; and Davis, supra, § 20.02 pp. 58-59, § 20.03 p. 70.

      . The principal bases of the court’s decisions in the civilian cases were: (1) linguistic analysis of the constitutional term “land and naval Forces(2) narrow construction of congressional authority under Art. I, § 8, cl. 14, because the jurisdiction of military courts encroaches on that of the civilian Article III courts which accord the individual fuller protections; (3) narrow construction of court-martial jurisdiction because historical analysis reveals grudging and halting acceptance of court-martial jurisdiction.

      . Cf. Jaffe, supra, 436.

      . 305 F.S. 551 (D.B.I.1969).

      . 485 F.2d 1115, 1118 (3 Cir., 1973).

      . (D.C.Cir., April 23, 1973).

      . 306 F.Supp. 528 (N.D.Ala., 1969) aff’d, 431 F.2d 730 (5 Cir. 1970).

      . 371 F.S. 806 (S.D.Ga., 1973).

      . See, e. g., Evans v. Cunningham, 335 F.2d 491 (4 Cir. 1964), Rowe v. Peyton, 383 F.2d 709, 711 (4 Cir. 1967) (in banc).

      . 19 U.S.C.M.A. 3, 41 C.M.R. 3 (1969).

      . United States v. Beeker, 18 U.S.C.M.A. 563, 40 C.M.R. 275 (1969) ; United States v. Castro, 18 U.S.C.M.A. 598, 40 C.M.R. 310 (1969). Rainville v. Lee, __ U.S.C.M.A. __ (No. 72-42) (September 13, 1973).

      . It would appear that Gnip has a somewhat greater individual interest in early decision. His denial that the alleged marijuana offense is service-connected is an attack, not only on the jurisdiction of the military courts, but also on any exercise of authority by the military at all. It appears that Gnip would be a civilian but for the charge of an allegedly service-connected offense, since this is apparently the sole basis for extending his military obligation. Gnip’s interest, however, goes to early resolution of his claim, not to the forum—military or civilian—in which that resolution is made. Nonetheless, we would anticipate that any decision on the appropriateness of exercising court-martial jurisdiction rather than civilian state or federal court jurisdiction would be made in light of Gnip’s special and arguably attenuated relationship with the Marines. See Mr. Justice Minton’s dissenting opinion in United States ex rel. Toth v. Quarles, 350 U.S. 11, 44, 76 S.Ct. 1, 100 L.Ed. 8 (1955) (arguing that by virtue of a statute somewhat analogous to the “extension” statute here, the prisoner there still bore military status for purposes of court-martial jurisdiction) apparently rejected by the majority. 350 U.S. 11, esp. 13, 22, 23, 76 S.Ct. 1, 100 L.Ed. 8.

      . 485 F.2d 1115 (3 Cir., June 21, 1973).

      . See especially Judge Adam’s concurrence in Sedivy, 485 F.2d 1122.

      . 485 F.2d at 1121.