author: TONE, Circuit Judge.

text:
    Eileen RASULIS et al., Plaintiffs-Appellants, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellee.

    No. 74-1265.
    United States Court of Appeals, Seventh Circuit.
    Argued June 4, 1974.
    Decided Sept. 9, 1974.
    Rehearing Denied Oct. 16, 1974.

      Eileen Rasulis, James J. McCoy, Harry B. Liljestam, Martin Weinrich, James Babcock, Michael Thomas, Florian Krass, Frederick D. Babcock, Winton Evans, Lillian F. Rintz.
    Appearing pro se.
    James R. Thompson, U. S. Atty., Gary L. Starkman and Robert A. Filpi, Asst. U. S. Attys., Chicago, 111., for defendant-appellee.
    Before CLARK, Associate Justice, CUMMINGS and TONE, Circuit Judges.

       Consolidated with:
      McCoy, 74-1292; Liljestam, 74-1354; Wein-rich, 74-1369; Babcock, 74-1370; Thomas, 74-1372; Krass, 74-1373; Babcock, 74-1374; Evans, 74-1389; and Rintz, 74-1399 v. Weinberger.

       Associate Justice Tom C. Clark of the Supreme Court of the United States (Ret.) is sitting by designation.

   TONE, Circuit Judge.

This civil action was originally filed in 1970 by Eileen Rasulis, the owner and operator of a physical therapy clinic. Subsequently the case was consolidated with the nine similar actions, brought by physical therapists licensed by the State of Illinois, under the Illinois Physical Therapy Act, Ill.Rev.Stat., Ch. 91, § 22.1 et seq. (1973), which are before us in this consolidated appeal. The plaintiffs sought declaratory and injunctive relief against the Secretary of Health, Education and Welfare to prohibit him from giving any force or effect to 20 C. F.R. § 405.1126(c) (1968) insofar as it made plaintiffs ineligible to treat patients in extended care and skilled nursing facilities and receive reimbursement therefor under the Medicare Act. (42 U.S.C. § 1395, et seq.) Identical standards for hospitals (20 C.F.R. § 405.-1031) have also been challenged in plaintiffs’ brief. The standards for physical therapists in all health care institutions are now consolidated in 20 C.F.R. § 405.-1101 (q), the text of which, in relevant part, appears below.

On June 25, 1970, the District Court entered a preliminary injunction against enforcement of the regulation, on the ground that the regulation arbitrarily discriminated between physical therapists eligible to treat Medicare patients in hospitals and therapists eligible to treat Medicare patients in extended care facilities. In 1971, the Secretary promulgated an amended version of the regulation which applied across the board the requirements formerly restricted to extended care facilities. The complaints were amended to challenge the amended regulation. After a review of the amended version, the District Court found that the challenged sections were constitutional and in compliance with the Secretary’s mandate from Congress, and entered summary judgment for the defendant. This appeal followed.

The regulation under attack establishes professional standards which physical therapists must meet in order to qualify for reimbursements under the Medicare Program. For a hospital or other health care institution to participate in the program, its personnel involved in the treatment of Medicare patients must qualify under the regulation. The standards applicable to therapists in all Medicare services after 1971, in the language of the regulation as it stood at the time of the District Court’s decision, were as follows:

“405.1126 Condition of Participation —Restorative Services—

* * -x- * * *
“(c) Standard; Therapy Services.
-X- * * -X- -X- -X-
“(1) Physical therapy is given or supervised by a therapist who meets one of the following requirements:
“(i) He has graduated from a physical therapy curriculum approved by—
“(a) The American Physical Therapy Association; or
“(b) The Council on Medical Education and Hospitals of the American Medical Association; or
“(c) The Council on Medical Education of the American Medical Association in collaboration with the American Physical Therapy Association; or
“(ii) Prior to January 1, 1966— “(a) Has been admitted to membership by the American Physical Therapy Association; or
“(b) Has been admitted to registration by the American Registry of Physical Therapists; or
“(c) Has graduated from a physical therapy curriculum in a four-year college or university approved by a State department of education, is licensed or registered as a physical therapist, and where appropriate, has passed a State examination for licensure as a physical therapist; or
“(iii) If he is currently licensed or registered to practice physical therapy pursuant to State law, he:
“(a) Was licensed or registered prior to January 1, 1970, and has achieved a satisfactory grade through the examination conducted by or under the sponsorship of the Public Health Service; or
“(b) Was licensed or registered prior to January 1, 1966, and prior to January 1, 1970, had 15 years of full-time experience in the treatment of illness or injury through the practice of physical therapy in which he rendered services upon order of and under the direction of attending and referring physicians; or
“(iv) If trained outside the United States.”
■x- -x- -x- * •» -x-

Since the District Court entered its judgment, the regulation has been further amended, with a new section substituted for (iii) (a), but the changes do not affect the status of the plaintiffs or the material issues of this case.

Although the plaintiffs, with the exception of plaintiff Rasulis, who is not herself a therapist, are licensed by the State of Illinois as physical therapists on the basis of training or experience equivalent to the formal educational and testing requirements of the state licensing act, Ill.Rev.Stat., Ch. 91, § 22.9 (1973), they do not qualify under Regulation 405.1126(c) because they do not meet the educational or membership requirements of that regulation. To qualify under the regulation, they would have to pass a special examination. No examination is required of therapists who were members of the American Physical Therapy Association or were registered with the American Registry of Physical Therapists prior to 1966, regardless of their actual educational or other credentials.

The plaintiffs attack the regulation as an arbitrary and discriminatory exercise of the Secretary’s rule-making authority under the Medicare Act violative of Fifth Amendment due process, and as inconsistent with the Secretary’s mandate from Congress. They argue that the classification, insofar as it is based upon membership in the APTA or the ARPT, so imperfectly distinguishes the competent therapists from the incompetent that it must be struck down. Plaintiffs in essence demand that the Secretary admit as qualified to participate in the Medicare program any therapist licensed by any state. The Secretary, on the other hand, maintains that the regulation is reasonably designed to fulfill his duty to set such standards as are necessary to assure the health and safety of Medicare patients.

The Due Process Clause prohibits only those classifications within a Federal social welfare program that are patently arbitrary and totally lacking in rational justification. Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 4 L.Ed.2d 1345 (1960). Accord, Gruenwald v. Gardner, 390 F.2d 591, 592 (2d Cir. 1968), cert. denied, 393 U.S. 982, 89 S.Ct. 456, 21 L.Ed.2d 445 (1968); Price v. Flemming, 280 F.2d 956 (3rd Cir. 1960), cert. denied, 365 U.S. 817, 81 S.Ct. 698, 5 L.Ed.2d 695 (1961). And “. . . regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.” West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391, 57 S.Ct. 578, 581, 81 L.Ed. 703 (1937). See generally, Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), McGowan v. Maryland, 366 U.S. 420, 425-426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955).

The Medicare Act directs the Secretary to “. . . prescribe such regulations as may be necessary to carry out the administration of the insurance programs under this subchapter.” 42 U.S.C. § 1395hh. While the quoted section does not authorize the Secretary to exercise control over the practice of medicine or the selection of employees by participating health care units (42 U.S.C. § 1395), other sections of the Act do require that he make rules defining which institutions, agencies and persons are qualified to provide medical services to individuals entitled to insurance benefits under the program. 42 U.S.C. § 1395a. Furthermore, in the sections of the Act which list the criteria for participation by hospitals, the Secretary is explicitly empowered to establish such additional requirements as he “. . . finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.” 42 U.S.C. § 1395x(e)(9), as amended in 1971. A similar provision is included among the requirements for nursing home participation. 42 U.S.C. § 1395x(j) (15), as amended in 1971.

The challenged regulation does not stray outside the boundaries of permissible regulation. It merely provides standards for the dispensation of Federal funds. The economic incentive of participation in the Medicare Program does not constitute coercion or control. See Cardozo, J., for the Court In Steward Machine Co. v. Davis, 301 U.S. 548, 589-590, 57 S.Ct. 883, 81 L.Ed. 1279 (1937).

To guarantee that Medicare patients will receive competent professional care when using the services of a physical therapy clinic, it is reasonable for the Secretary to establish professional standards for therapists who wish to participate in the program. The qualification scheme of Regulation 20 C.F.R. § 405.1126(c), offering several alternative methods by which therapists may qualify, is similar to many state medical and dental licensing statutes that have been consistently upheld against challenges on due process or equal protection grounds. See, e. g., Dent v. West Virginia, 129 U.S. 114, 123-125, 9 S.Ct. 231, 32 L.Ed. 623 (1889); Graves v. Minnesota, 272 U.S. 425, 428-429, 47 S.Ct. 122, 71 L.Ed. 331 (1926). Educational requirements and proficiency examinations are time-tested means of assuring that practitioners meet minimum standards of competence.

It is also reasonable for the Secretary to rely on membership in a professional organization such as the APTA, which has long had its own educational requirements for admission, as another indicator of competence. That certain members of a class subject to a regulation may suffer greater economic loss than others does not render the regulation violative of due process if it is fair and equitable to the class as a whole. Bowles v. Willingham, 321 U.S. 503, 516-518, 64 S.Ct. 641, 88 L.Ed. 892 (1944). Thus, plaintiffs’ Fifth Amendment rights are not violated by reason of the fact that they, but not all other prospective Medicare therapists, will be excluded from participation as health care providers unless they pass a required examination.

Nor is the fact that the Secretary has set January 1, 1966 as a licensing cut-off date an arbitrary or capricious action, as plaintiffs contend. Cut-off dates for “grandfather” clauses are necessary to promote the professional upgrading of newly regulated professions, and have long been approved by the courts. See, e. g., Dent v. West Virginia, supra, 129 U.S. 114, 123-125, 9 S.Ct. 231, 32 L.Ed. 623 (1889). The choice of the specific date of January 1, 1966 is appropriate for a program due to become operative later in the same year.

In all respects, the Secretary of Health, Education and Welfare has promulgated a rational, reasonable regulation designed to protect the health and safety of Medicare patients. In affirming the District Court, we reach the same conclusion as did the Ninth Circuit in their recent order in Beringhele v. Weinberger (No. 73-2126, May 21, 1974).

Affirmed.

      . Under the amended regulations, effective February 19, 1974, the standard for qualification as a physical therapist is set forth in Section 405.1101 (q) :
      “(q) Physical therapist (qualified consultant) : A person who is licensed as a physical therapist by the State in which practicing, and

        “(1) Has graduated from a physical therapy curriculum approved by the American Physical Therapy Association, or by the Council on Medical Education and Hospitals of the American Medical Association, or jointly by the Council on Medical Education of the American Medical Association and the American Physical Therapy Association ; or
      “(2) Prior to January 1, 1966, was admitted to membership by the American Physical Therapy Association, or was admitted to registration by the American Registry of Physical Therapists, or has graduated from a physical therapy curriculum in a 4-year college or university approved by a State department of education; or
      “(3) Has 2 years of appropriate experience as a physical therapist, and has achieved a satisfactory grade on a proficiency examination approved by the Secretary, except that such determinations of proficiency shall not apply with respect to persons initially licensed by a State or seeking qualification as a physical therapist after December 31, 1977; or
      “(4) Was licensed or registered prior to January 1, 1966, and prior to January 1, 1970, had 15 years of full-time experience in the treatment of illness or injury through the practice of physical therapy in which services were rendered under the order and direction of attending and referring physicians ; or
      “(5) If trained outside the United States, a

      39 P.R. 2240, et seq. (Jan. 17, 1974).


source: Caselaw Access Project

author: JOHN R. BROWN, Chief Judge:

license: Public Domain

text:
    In the Matter of SEMINOLE PARK AND FAIRGROUNDS, INC., Bankrupt. Robert DYER, Trustee, Seminole Park and Fairgrounds, Inc., Appellant, v. FIRST NATIONAL BANK AT ORLANDO, Indenture Trustee, Appellee.
    No. 73-1063.
    United States Court of Appeals, Fifth Circuit.
    Oct. 17, 1974.

      Robert Dyer, pro se.
    Jack H. Zinkow, Orlando, Fla., for debtor and Lieb Group.
    Frank D. Newman, Deland, Fla., for 1st Nat. Bank & Certificate Holders.
    William A. Jacob, Orlando, Fla., for Walker & Laberge and others.
    Before BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

As with the companion case, we deal with race track problems of Seminole Downs, this time a controversy spanning two reorganizations and being between the Trustee in the 1971 reorganization proceeding and creditors of the earlier 1964 Chapter X proceeding.

The specific question is whether the District Court, reversing the recommended order of the Referee in Bankruptcy sitting as a special master, had appropriate power under Chapter X to effectuate a secured interest in favor of the 1964 Certificate Holders in the Florida racing permit as called for by the 1964 plan of reorganization even though the Bank, as indenture trustee of the sinking fund failed to perfect the lien under the Florida UCC. We hold that power exists and was appropriately exercised and affirm the District Court.

The 1964 Plan of Reorganization (confirmed in 1966) provided for issuance of Reorganization Certificates of Indebtedness to unsecured creditors to be administered by the Bank under the sinking fund trust. The plan expressly provided that payment was to be secured by a lien on the Florida state racing permit and other specified property.

Unfortunately, in 1972 it was discovered in connection with the Bank’s claim for unsecured 1964 creditors in the 1971 proceedings that the financing statement required by § 679.401 of the Florida UCC to be filed in the Secretary of State’s office failed to list as property covered the Florida state racing permit. The Bankruptcy Trustee contended, and the special master agreed, that the Florida UCC controlled and extinguished the secured interest of the Certificate Holders in the racing permit. The District Court disagreed and held the security valid by virtue of the Court’s powers to see that the 1964 plan was in fact complied with.

As the parties race to the finish line the controversy centers on § 229 of the Bankruptcy Act, 11 U.S.C.A. § 629.

The Trustee invokes § 229 by arguing that there had been literal full compil-anee with elements (a)(1), (2), and (3) — indeed the District Court virtually found this to be a fact. The Trustee’s argument goes on to urge that, since everything required to be done under the plan had in fact been done, for the Court to take action in 1972 by virtue of the 1964 proceedings would amount to an attempt to belatedly modify the plan which is the very thing § 229 was to forbid.

The Bank, on the other hand, embracing § 229 just as enthusiastically, argues that the entry of the 1972 order under attack does not in any sense amount to an amendment of the plan but is simply one giving full fidelity to the express provisions of the plan through an order effectuating it.

Fortunately, in resolving the problem of § 229 we are spared the necessity of treating it in detail in view of our extensive discussion in Atlas. As we there pointed out, the section serves several important functions. In many ways it is the key to the whole of Chapter X which, as its name reflects, envisages that out of the proceedings will come a new reorganized company capable of sailing forth in the cold, cruel business world with no longer the protective wraps of the federal Bankruptcy Court. Section 229 furnishes the objective criteria for determining when that stage has arrived. As a corollary of this it means also that the Bankruptcy Court has no day-to-day supervision of the business operation of the new enterprise. And one of the principal reasons for its enactment was to inhibit Bankruptcy Courts, either because of economic changes or other circumstances, from succumbing to the temptation too infrequently resisted to second guess the approved plan of reorganization by establishing what was in fact a new plan in the guise of a simple order or an amendment. The possibility that the Bankruptcy Court would, or could legally, do this would be a depressant to the acceptance of the new entity by new creditors, customers, bankers and others dealing with it.

But while maintaining the integrity and finality of the approved plan as consummated and preventing Bankruptcy Courts from making changes after that stage are the important functions of § 229, the very nature of a statute which seeks to determine when the plan is consummated is to assure that the plan approved is consummated in fact. Whatever the plan calls for must be done. The Bankruptcy Court has the power to see that that is done, and § 229 is no obstacle either to the existence of power or the timeliness of the action.

A key part of the 1964 plan was the satisfaction of claims of the unsecured creditors. This was to be effected through Reorganization Certificates. Precise provisions were made as to the source of money (a percentage of the pari-mutuel daily handle) and security for payment in the form of a lien on the Florida racing permit (and some other specified properties), see note 6, supra.

So far was the racing permit immobilized for ultimate use of others than the Certificate Holders, the reorganized company was even expressly forbidden to transfer, incumber or otherwise dispose of it until the Certificate Holders were satisfied in full.

The plan did not merely provide that a mortgage should be given by the reorganized company. The plan stated positively that the Certificate Holders should be secured by a lien on the racing permit. If through oversight, neglect, inadvertence or the like on the part of the Sinking Fund Trustee there were omissions or errors in the recording or filing of the security instruments which would make the security interest of the Certificate Holders something less than that prescribed in the plan, the Bankruptcy Court by appropriate order had the power to accord that status.

Far from being a belated effort to alter or amend the plan, what the Court did was to make the plan effective. In short, it was to order the plan to be consummated. This was in full keeping with the express holding and action in Atlas, supra, 384 F.2d at page 89.

Affirmed.

      . In re Seminole Park and Fairgrounds, Inc., 5 Cir., 1974, 502 F.2d 1015 [Oct. 17, 1974.], No. 73-1065]. This case involved the 1971 Chapter X reorganization.

      . Since we make frequent reference to the bankruptcy trustee we refer to the sinking fund indenture trustee as the Bank and to the creditors as Certificate Holders.

      . Face value of each non-interest bearing certificate was 75% of that creditor’s outstanding balance due. 25% of the “handle” was sacrificed to keep the business going.

      . The Certificate Holders were to be paid off by 1979 from a sinking fund. The fund was to arise from daily payments equal to 0.5% of each day’s total pari-mutuel handle.

      . Valued below at $200,000.00.

      . The plan of reorganization provided :
      ARTICLE III
      PROVISIONS ALTERING OR MODIFYING THE RIGHTS OF CREDITORS
      The claims of unsecured creditors (Class 5) shall be modified and altered as follows :
      Within 120 days after confirmation of the plan, unsecured creditors shall receive pro rata by check drawn by the trustee the sum of $263,000.
      In addition, within 120 days after confirmation of tire plan, the reorganized company shall issue to the unsecured creditors non-interest bearing Reorganization Certificates in the principal amount totaling such sum as will equal 75% of the total unsecured claims as allowed by this Court, less $263,000. Said Reorganization Certificates shall be issued on a pro-rata basis to unsecured creditors in complete settlement of their claims. * * * * * .
      The Reorganization Certificates may be prepaid on a pro rata basis at any time by the reorganized company, or fully redeemed upon payment to the creditors of the full amount then owing of Reorganization Certificates held by them. The Reorganization Certificates shall be payable in annual installments from a sinking fund accumulated from daily payments made to a Sinking Fund Trustee by the reorganized company of % of 1% of its daily pari-mutuel handle of each racing season, but in no event shall the annual payment to the Sinking Fund Trustee be less than $20,000.

        The Reorganization Certificates shall be paid in full on or before December 31, 1979, and shall be secured by a lien on the Florida State Racing Permit owned by the reorganized company, a lien on the alcoholic beverage licenses held in its name, and a first mortgage on the leasehold interest of the reorganized company and all tangible personal property of the reorganized company as of the date of issuance of the Reorganization Certificates other than maintenance and office equipment. In addition, the said mortgage shall contain a clause to encumber all improvements made pursuant to the provisions of this plan.
      The reorganized company shall not transfer, assign, encumber or otherwise dispose of its racing permit until such time as the Reorganization Certificates have been satisfied in full; nor shall it relocate the track site of the j)ermit unless the holders of the Reorganization Certificates are provided with a first mortgage on assets of equal or better value than the security they then hold as certified by two M. A. I. appraisers, one of whom shall be chosen by the Sinking Fund Trustee and the other by the reorganized company. The costs of said appraisal shall be paid entirely by the reorganized company. The provisions of this paragraph and other financial restrictions as set forth in Article X hereof shall be set forth in the Sinking Fund Trust Agreement.

      . § 629. Acts deemed consummating plan; order declaring consummation; substantial alteration or modification

      (a) A plan shall be deemed to have been substantially consummated if, insofar as applicable, each of the following events has occurred:
      (1) transfer, sale or other disposition of all or substantially all of the property dealt with by the plan pursuant to the provisions of the plan ;
      (2) assumption of operation of the business and management of all or substantially all of tiie property dealt with by the plan by the debtor or by the corporation used for tiie purpose of carrying out the plan; and
      (3) commencement of the distribution to creditors and stockholders, affected by the plan, of the cash and securities specified in the plan as provided for in section 624 of this title.
      (b) Upon notice to the trustee, the debt- or, tiie Securities and Exchange Commission and such other persons as the judge may designate, the trustee, the debtor in possession, the corporation to which the assets of the debtor are to be transferred under the plan, or any other party in interest may apply to the judge for an order declaring the plan to have been substantially consummated under the provisions of subdivision (a) of this section.
      (c) When a plan has been substantially consummated as defined in subdivision (a) of this section, or an order has been entered under subdivision (b) of this section, the plan may not thereafter be altered or modified if the proposed alteration or modification materially and adversely affects the participation provided for any class of creditors or stockholders by the plan.
      July 1, 1898, c. 541, § 229, as added July 7, 1952, c. 579, § 26, 66 Stat. 431.
      No subdivision (b) order was ever entered in the 1964 plan proceedings.

      . The Court does not agree with the conclusion of the Special Master. The Court does agree, however, that the record in the prior proceedings shows (1) that the cash distribution contemplated by the plan had been made, (2) that the securities (i. e., Certificates of Reorganization) had been distributed, and (3) that the debtor’s property had been turned over to the reorganized corporation and that that corporation had commenced business operations under full control of its management. This normally would support a § 229 determination that the plan had been substantially consummated.
      Order on Classification of Certificate Holders’ Claim, Appendix at 127, 129-30.

      . In re Atlas Sewing Centers, Inc., 5 Cir., 1967, 384 F.2d 66, Part V (pp. 86-90).

      . There we said :
      This is in no sense an amendment of the Plan. The Court has been called upon to act because the Plan, confirmed and approved and adopted by all, has simply not been satisfied * * * at the present * * *. Nor it is an effort by the District Court to insert itself into the day-today managerial decisions of a going business. The Court is not attempting to exercise jurisdiction for the purpose of passing upon normal business activities of a rehabilitated corporation or upon other matters not related to the Plan of Reorganization. It would be shocking if merely because of the entry of an order which by name and content was an order of substantial consummation, the Court would find itself powerless to take protective action in the face of admitted substantial non-fulfillment * * *.
      384 F.2d 66 at 89.

      . On oral argument the Bankruptcy Trustee urged the Court to disallow a $1,447.00 interest in equipment granted the Bank below because a F.S.A. § 679.403(2) continuation statement was required. We think the Trustee’s argument comes too late because he expressly conceded that amount in his appellate brief.


text:
    In the Matter of SEMINOLE PARK AND FAIRGROUNDS, INC., Bankrupt. WESTINGHOUSE ELECTRIC CORPORATION, Appellant, v. Robert DYER, Trustee in Bankruptcy for Seminole Park and Fairgrounds, Inc., Appellee.
    No. 73-1065.
    United States Court of Appeals, Fifth Circuit.
    Oct. 17, 1974.

      Ray W. Richardson, Douglas J. Milne, Jacksonville, Fla., for appellant.
    Robert Dyer, pro se.
    Before BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

Proving that the odds are not always in favor of the track, this and the companion case involved not one, but two, Chapter X bankruptcy reorganization proceedings of Seminole Downs Race Track. In pedestrian, not equestrian, terms the question is whether the 1955 lease contained, as the 1967 Florida UCC requires a written “consent” or “disclaimer” by the landlord to the fixtures security reserved for the 1970 installation by Westinghouse of the people-moving facilities of an escalator and elevator in the race track clubhouse-grandstand. Since our negative answer means that vis-a-vis landlord, Westinghouse cannot remove the facilities, the question then comes down further to the value, if any, which the supplier-Westinghouse has in the conceded perfected security interest. The Referee in Bankruptcy, as special master, found the value of a non-removable people-moving apparatus to be zero largely since the debt- or’s leasehold of the whole track enterprise had been, to everyone’s chagrin but acquiescence, a like zero.

On principle the Master and the District Judge were right. On principal we hold a remand is in order to establish the “positive” dollar value of a “negative”.

It all came about this way. On the Trustee’s concession that Westinghouse had a perfected security interest, the special master set the case down to determine the value of the admitted secured interest. See Bankruptcy Act § 197; 11 U.S.C.A. § 597.

Consent Thee Not To Desecration

Florida’s UCC differs from that of most states with respect to security interests in fixtures. By the 1967 amendments to § 679.313(2) (a) , Florida requires as the price for perfection of a fixtures security interest against a person with an interest in the real estate that such person in writing consent (or disclaim) to a security interest in any fixtures to be affixed to the realty —whether the security ' interest “attaches” to the fixture before or after installation. The official 1962 UCC § 9-313 does not require such consent if the interest “attaches” before installation.

Westinghouse never obtained direct, express consent to the security interest from the Debtor’s landlord and, apparently upon the Trustee’s urging or otherwise, the landlord now expressly refuses to consent to it — or to permit the removal of either fixture.

Thus to satisfy § 679.313(2) (a) Westinghouse has to go back to the 1955 lease with the Debtor’s assignor. The argument starts with the fact that the lease contemplated that the premises would be used for a race track for which lessors would have a net profit percentage rental and which expressly permitted virtually unlimited alterations and additions to the premises. Additionally the lease on termination permitted the removal of fixtures and personal property.

To all of this the Trustee counters with other provisions which, requiring lessee to indemnify against liens, impliedly negatived any consensual agreement to permit creation by lessee of security interests superior to the landlord and very carefully restricted the fixture removal privilege (see If 3D, note 9, supra).

Stressing heavily the 1955 lease-recognized privilege of extensive alterations and additions to the premises (see f[ 3A, note 8, supra) and the right of fixture removal (see f[ 3D, note 9, supra) Westinghouse pressed what the parties describe as “old” mechanics lien cases from which to derive the 1967 “consent” to a 1970 security interest. See, e. g., Taylor v. Ferroman Properties, Inc., 1931, 103 Fla. 960, 139 So. 149, 150. We agree with both the Referee in Bankruptcy as special master and the District Judge in rejecting this argument.

The 1967 amendments (see note 5, supra) imported into Florida security practice the requirement of a written consent or a written disclaimer. In the light especially of the immediate response to the official § 9-313(2) (see note 5, supra) Florida could not have meant to throw the whole thing back on mechanics lien practices including § 713.10 and cases both before and after it.

A reading of the Florida addition to UCC § 9-313 makes it apparent the drafters contemplated an express agreement between the holder of a real estate interest and the potential fixture-secured party. We hold a general consent to improvement and remodeling can hardly be construed to constitute either a landlord’s consent to security interests or a disclaimer of an interest in fixtures.

And that is especially so when these provisions are read in the context of the provisions brought to light by the Trustee. If anything can be deemed a “permanent improvement”, certainly a second story on a building is one. Similarly, if follows, ways and means of reaching that second story must fairly be deemed “permanent improvements”— even though they are physically removable.

We conclude the District Court was correct in holding that Westinghouse had no right of removal vis-avis the landlord.

Accentuate The Positive-Negative

But that does not dispose of the case, for Florida UCC § 679.313 does not void the security interest. Indeed, as discussed (see note 3, supra), the Trustee conceded it is a perfected security interest. On oral argument the Trustee further conceded there is enough money in the estate to satisfy not only the landlord’s claims, but the full amount of Westinghouse’s up to the Bankruptcy Act § 197 value of the fixture security interest.

In fixing the zero value the special master considered only the two factors of (i) no right of removal and (ii) the zero value of the leasehold. Westinghouse urges that this is too narrow as it excludes the possible negative value which the facilities might have were Westinghouse to exercise the § 679.503 right to render them unusable. Whether any such non-usable value can, or may under Florida law, be constructed, who the experts in support thereof will be or the values to be fixed are not matters on which we should make a speculation.

But there should be a remand for an evidentiary hearing on this single aspect. If it produces an economically acceptable value it will be time enough for the District Court in the first instance to then determine whether that value is legally cognizable.

Affirmed in part, remanded in part.

      . Dyer v. First National Bank at Orlando, 5 Cir., Oct. 17, 1974, 502 F.2d 1012.

      . In Blackburn v. State, 1927, 31 Ariz. 427, 254 P. 467, the trial court admitted evidence that a witness could find no liair on a blood spot. The defendant appealed, claiming that this evidence was wholly “negative” and that its admission was error. In disposing of this contention, the court said: “ . . . positive testimony is entitled to more weight than negative testimony, but by the latter term is meant negative testimony in its true sense and not positive evidence of a negative, because testimony in support of a negative may be as positive as that in support of an affirmative.”

      . This was stipulated. On appeal Trustee attempts to challenge this for technical errors in recordation notice but we decline to consider it. Excavators & Erectors, Inc. v. Bullard Engineers, Inc., 5 Cir., 1973, 489 F.2d 318, 320.

      . The elevator and escalator are characterized as fixtures by both parties to this appeal.

      . F.S.A. § 679.313(2) (a)
      A security interest which attaches to goods which are to become fixtures is invalid against any person with an interest in the real estate at the time the security interest in the goods is perfected or at the time the goods are affixed to the real estate, whichever occurs later, who has not in writing consented to the security interest or disclaimed an interest in the goods as fixtures.
      As originally enacted, following the official UCC, it provided
      A security interest which attaches to goods before they become fixtures takes priority as to the goods over the claims of all persons who have an interest in the real estate except as stated in subsection (4). 5¡í rj*
      (4) The security interests described in subsections (2) and (3) do not take priority over:
      (a) A subsequent purchaser for value of any interest in the real estate; or
      (b) A creditor with a lien on the real estate subsequently obtained by judicial proceedings ; or
      (c) A creditor with a prior encumbrance of record on the real estate to the extent that he makes subsequent advances.
      If the subsequent purchase is made, the lien by judicial proceedings is obtained, or the subsequent advance under the prior encumbrance is made or contracted for without knowledge of the security interest and before it is perfected. A purchaser of the real estate, at a foreclosure sale other than an encumbrancer purchasing at his own foreclosure sale is a subsequent purchaser within this section.
      Subsection 4 was repealed. Laws 1967, c. 67-264, § 2, eff. July 1, 1967. Xew subsection (2) (b) replaces it:
      (b) A security interest in goods which are or become fixtures takes priority as to the goods over the claims of all persons acquiring interests in the real estate subsequent to the perfection of such security interest or the affixing of the goods to the real estate, whichever occurs later.
      The parties accept Westinghouse’s thumbnail sketch of the history and purpose of the amendments:
      When the Code initially became effective in Florida on January 1, 1967, the provisions of Section 679.313, Florida Statutes, were those of the 1962 Official Text. However, effective July 1, 1967, Section 679.313, was modified by the Florida legislature. The legislative journals show no source for the language in the current statute; however, the language is identical with a similar portion of the amended Ohio statute (Ohio Rev.Code, Tit. 13, Sec. 1309.32 (1963)). The differences, though, are not considered as controlling in construing the term “in writing consented”, since the identical term appears in both versions although in somewhat different contexts.
      Under the Official Text provisions initially adopted in Florida, a party, whose lien “attached” prior to physical affixation of the goods to the premises, could acquire priority over existing interests in the realty without requirement of consent. See note, Fixture Liens under Chapter 9 of the Uniform Commercial Code in Florida, Vol. XXI, U. of Fla. L.R., pp. 229, 234-237 (1968). It was only when attachment of the lien occurred after affixation, that consent of existing realty interests was required to establish priority over those interests. Under the present amendment, both perfecting the lien and affixation must have preceded existence of the realty interest to avoid the requirement for “consent” to prevent subordination. But in both versions, the identical words “in writing consented” appear wherever the requirement for consent exists.
      Brief for appellant at 7-8.

      . The 1972 Amendment to Official § 9-313 relaxes the rule still further (permitting perfection by filing up to 10 days after installation) if the security interest is a “purchase money security interest”.

      . Although not literally revealed in the scarce record, or scarcer appendix, the Master and District Judge apparently proceeded on the statement made by landlord’s counsel that § 679.313 (2) (a) would not be waived. The situation is therefore different from that in In re Country Lad Foods, Inc., 5 Cir., 1974, 500 F.2d 393 [Sept. 6, 1974],

      . Lessees shall have the right and privilege
      of renovating and remodeling any and all buildings and appurtenances located on the premises and also the right and privilege to construct such other buildings, appurtenances, improvements and additions whatsoever on the leased premises, and also shall have the right to dredge lakes and reshape the topography of the land . . .[U3A],

      . . Lessees, at the termination of this lease, shall have the right to remove any and all fixtures, equipment or other items of personal property belonging to the Lessees, provided the removal of the same shall not damage the demised property or any part thereof. [U 3D].

      . [P]rovided, however, and it is especially understood and agreed, that all such renovation, remodeling and building construction or improvements, and the maintenance thereof, shall be at the expense of the Lessees and Lessees will save the Lessors harmless from any and all liens and claims arising from or in connection with any such improvements placed upon the property [j[ 3A],

      . It is further understood and agreed by and between the parties that at the termination of this Lease all permanent improvements placed upon the premises by the Lessees shall become and be the sole and exclusive property of the Lessors. HI3A].

      . 679.503 Secured party's right to talce possession after defm,lt

      Unless otherwise agreed a secured party lias on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action. If the security agreement so provides the secured party may require the debtor to assemble the collateral and make it available to the secured party at a place to be designated by the secured party which is reasonably convenient to both parties. Without removal a secured party may render equipment unusable, and may dispose of collateral on the debtor’s premises under § 679.9-504.
      This is section 9-503 of the 1962 Official Text without change.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. William Joseph DAUGHTRY, Defendant-Appellant.
    No. 74-1701
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 11, 1974.

      Barry R. Nager, Orlando, Fla. (Court-appointed), for defendant-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Harrison T. Slaughter, Asst. U. S. Atty., Orlando, Fla., for plaintiff-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

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

   JOHN R. BROWN, Chief Judge:

Daughtry appeals from his conviction, following a jury trial, of distributing heroin. While the Government’s case is not one of the strongest we have reviewed we have not found any reversible error and, therefore, affirm.

Appellant admitted selling a packet of powder to an undercover narcotics officer. His defense is he sold the agents a harmless powder (aspirin and black pepper) as part of an ongoing effort he was involved in to discourage drug “pushers” from entering the black community. He asserts the small amount of heroin found in the powder was either added by someone with access to the evidence at some point in the chain of custody, or was a result of accidental contamination during the chemical testing process.

Appellant argues the powder should not have been admitted into evidence because of the various possibilities for interference with the chain of custody. There are two basic questions involved with every piece of physical evidence admitted in every trial, (i) whether to admit the evidence and (ii) what weight to give that evidence once admitted. The first is the one appellant poses here, and it is a question for the trial judge to decide in exercising control over the conduct of the trial. His discretion is generally broad and will not be disturbed on appeal absent abuse of that discretion. United States v. Brown, 8 Cir., 1973, 482 F.2d 1226.

After the vendee-agents field-tested the powder, they placed it in a lock-sealed envelope and locked the envelope in a field locker. Appellant asserts the absence of check-out procedures in connection with that locker coupled with the fact two agents had keys to it (one vendee and one not directly involved with appellant), creates too great a possibility of tampering for the evidence to have been admissible. Similarly, it is asserted the Miami Crime Lab chemist’s handling of the evidence over the six day period he had it fatally infected the chain of custody.

Appellant has fully failed to show anything but opportunity for the agents in this case to misbehave or malperform. Absent a minimal showing of ill will, bad faith, other evil motivation or some physical evidence of tampering, the District Court properly admitted the evidence notwithstanding the opportunity for unlawful tampering.

However, appellant complains of another aspect. He argues the possibility the powder he sold was accidentally contaminated during laboratory testing was too great to permit the District Court to admit the evidence.

The Government’s chemist testified he had the evidence in and out of his personal locked box several times during the six days he was conducting tests. He could not remember whether he was running other tests at the time. Although appellant makes much of this, it is not the answer to the problem. That answer depends upon what precautions are taken to prevent contamination if other tests are being conducted. Appellant failed to pursue this at trial, and we hold his failure to do so, when coupled with the presumption of regularity, United States v. Brown, supra, entitled the District Court to exercise its discretion in favor of admitting the evidence.

Other Circuits have dealt with very similar problems and arrived at like solutions. They recognize the trial Judge’s function is an important one, and invest him with broad discretion. Unless persuaded the evidence is too unreliable — matter which is too likely to induce speculation or to introduce the likelihood of more prejudice than probative weight — the Judge should permit the jury to consider the evidence for what it is worth. In the total setting of the case, the Judge did not abuse his discretion in allowing the jury to consider it.

Appellant objects to the District Judge’s comment on the evidence:

Now, then, if their [Government officers’] testimony is to be believed, then the heroin was in the substance when they made their field test, because heroin — because aspirin and pepper wouldn’t show up purple in a field test. So if there — if you believe their evidence, then the heroin was in it at that time, and the defendant is not telling the truth about it.

Transcript at 211-12.

Appellant contends this opinion misstates the facts because a field test would also react positively to caffeine,, strychnine and cocaine.

Appellant’s defense is he sold aspirin and pepper. As far as anything appellant has shown, the District Judge was right in saying neither of those substances would cause a positive field test. In light of appellant’s positive defense which fails to explain why the field test was positive, we do not think the comment was a misstatement.

Finally, appellant contends the District Judge’s castigation of an entirely different panel, but from the same venire, for returning a not-guilty verdict may have affected the deliberations in his ease. Both parties rely on United States v. Kyle, 1972, 152 U.S.App.D.C. 141, 469 F.2d 547. The Court was unanimous in holding a judicial comment much like the one here, was reprehensible. A majority was persuaded not to reverse, however, because the appellant was unable to demonstrate prejudice. They reviewed the voir dire examination, in which the panel was asked if any member felt unable to decide the case fairly. No one spoke up. Even though three members of the panels overlapped (a fact not present in our case), and the defense counsel was not aware of the earlier castigation until after the verdict was returned (as here), a majority felt obligated to respect the voir dire silence-assertions and refrain from speculating about possible prejudice.

The appellant has not shown any prejudicial harm. There was no effort either to establish or inquire into the question whether any of the jury returning the guilty verdict either heard or could have heard the Judge’s remark addressed to the other jury. In the circumstances we also decline to speculate about subjective jury deliberation. Appellant assigns the District Court’s failure to pursue this matter as error. We hold it was appellant who was obligated, in the first instance, to demonstrate prejudice — not the District Court to show no prejudice.

We do not in any way condone the District Judge for the “crime does pay” remarks. But we are convinced appellant had the fair day in Court he is entitled to have — and we are not persuaded that any of appellant’s asserted errors warrants reversal.

Affirmed.

      . Appellant sold 0.37 grams of powder to the agents. Chemical analysis determined the heroin to be 0.7% of that — less than ■Ho.oooth of an ounce.

      . Not only were none of these factors present, hut the positive testimony was that the chemist received the agents’ sealed envelope with the seal intact and the envelope free of any evidence of tampering.

      . But there is no hard and fast rule that the prosecution must exclude all possibility that the article may have been tampered with. See Lestico v. Kuehner, 204 Minn. 125, 283 N.W. 122, 125. In each ease the trial judge before he admits it in evidence must be satisfied that in reasonable probability the article has not been changed in important respects. Wigmore, Evidence, 3d Ed., § 437(1) ; 32 C.J.S. Evidence, § 607. In reaching his conclusion he must be guided by the nature of the article, the circumstances surrounding the preservation and custody of it, and the likelihood of intermeddlers tampering with it. Here the samples were taken in the ordinary course of business for the very purpose of being retained as samples; they were put in the usual place where samples were kept to remove them from accident or meddling and there they remained, so far as appear, undisturbed. We think this showing was sufficient to justify admission in evidence of the bottles and their contents and that it was for the jury to decide how likely it was that some other substance had been substituted for what was originally put in the bottles.
      United States v. S. B. Penick & Co., 2 Cir., 1943, 136 F.2d 413, 415.
      [A]ppellant argues that the “chain of custody” must be complete and exclusive and that it was incumbent upon the government to prove that the articles could not have been tampered with during this ten-day period. * * *
      The only other person who knew the combination of the safe was the acting deputy collector of customs. In the absence of any evidence to the contrary, the trial judge was entitled to assume that this official would not tamper with the sack and can or their contents. Where no evidence indicating otherwise is produced, the presumption of regularity supports the official acts of public officers, and courts presumed that they have properly discharged their official duties.
      Gallego v. United States, 9 Cir., 1960, 276 F.2d 914, 916-917.
      Brown contends that the chain of custody of the heroin packages was not adequately established [because] the quantitative and qualitative tests, which consumed approximately one and one-half hours, were conducted over a forty-eight hour period. ^ ^ *ií :i*
      The criteria governing admission of exhibits into evidence is that there must be a showing that the physical exhibit being offered is in substantially the same condition as when the crime was committed. That determination is to be made by the trial judge, not the jury, and may not be overturned except for a clear abuse of discretion. Factors to be considered in making the determination of admissibility include the nature of the article, the circumstances surrounding its preservation and custody, and the likelihood of others tampering with it. If upon the consideration of such factors, the trial judge is satisfied that in reasonable probability the article has not been changed in any important respect, he may permit its introduction in evidence.
      United States v. Brown, 8 Cir., 1973, 482 F.2d 1226, 1228.
      lie contends . . . it is “a bit more than conceivable that tampering with the evidence has occurred.” Such utter speculation cannot be credited on appeal in the face of Government evidence showing a continuous chain of custody. As Stevenson further concedes, the mere fact that it is conceivable that tampering has occurred is not sufficient to require the exclusion of the evidence. [Citation omitted.] The trial court did not abuse its discretion in admitting the narcotics in evidence.
      United States v. Stevenson, 7 Cir., 1971, 445 F.2d 25, 27, cert. denied, 404 U.S. 857, 92 S.Ct. 108, 30 L.Ed.2d 99.
      As a third point appellant is arguing that it was error to admit the packets containing the marijuana in that there was no proper foundation to establish a chain of custody from the defendant to the time of analysis. There is no merit in this contention. * * *
      [T]he circumstances surrounding its custody give no indication of foul play. There is no evidence whatever that anyone either had the opportunity or the inclination to tamper with the packets or their contents. Officer Cox testified that on the night of the sale he either kept the packets in his possession or placed them in the office safe. lie testified positively that he did not leave the packets unattended in his car. It, therefore, appears that the packets were in the control of Officer Cox and were not in a position to be tampered with. The record indicates that the packets were carefully sealed and initialed by all who handled them. The testimony of Officer Rich indicates that the packets appeared as they did the night he received them from appellant. Therefore, when viewed in the light of the presumption of regularity which attaches to the handling of evidence within the control of public officials ... we believe the evidence was properly admitted.
      Appellant seems to be arguing that as long as it was conceivable that the evidence could have been tampered with, it should not have been admitted. This, however, is not the law. The government need not exclude all possibilities of tampering. The Court need only be satisfied that in reasonable probability the article had not been changed in important respects. . . .
      West v. United States, 8 Cir., 1966, 359 F.2d 50, 55, cert. denied, 385 U.S. 867, 87 S.Ct. 131, 17 L.Ed.2d 94.

        In tlie light of reason and experience, we find no fallacy or unwisdom in the action of the district court in receiving in evidence the ballots and election paraphernalia. The jury had possession of all the facts pertaining to the custody and handling of the ballots and paraphernalia before and after the election. If the jurors believed from the evidence that the ballots had been tampered with after being returned to the office of the County Court Clerk, it is safe to assume that no weight would have been attached to them as evi-dentiary of the guilt of the accused precinct election officials. The ballots were admissible tó carry only such weight as the jury chose to give them.
      Ledford v. United States, 6 Cir., 1946, 155 F.2d 574, 576, cert. denied, 329 U.S. 733, 67 S.Ct. 96, 91 L.Ed. 634.

      . Very well, members of the jury, it looks like crime pays. That kind of verdict is beyond my understanding. It is up to you on your own verdict.
      You will be excused.
      See how easy it is to fool a jury? (Thereupon, the trial was concluded.)
      Excerpt of Proceedings, United States v. Brooks, MJD.Fla., February 1, 1974, No. 73-127.


author: GOLDBERG, Circuit Judge:

text:
    Michael BISHOP et al., etc., Plaintiffs-Appellees, v. The NATIONAL LABOR RELATIONS BOARD, Defendant, Allied Food Workers District Union 433, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, Movant-Appellant.
    No. 73-3169.
    United States Court of Appeals, Fifth Circuit.
    Oct. 16, 1974.

      Albert Gore, Judith A. Lonnquist, Linda R. Hirshman, Chicago, 111., for movant-appellant.
    Robert C. Gobelman, Stephen E. Day, Jacksonville, Fla., for plaintiffs-appel-lees.
    Elliott Moore, Deputy Assoc. Gen. Counsel, N. L. R. B., Glen M. Bendixsen, Chief of Sp. Litigation, Washington, D. C., Jonathan Axelrod, Reg. Atty., Region 12, Joseph V. Moran, N. L. R. B., Tampa, Fla., for other interested parties.
    Before GOLDBERG and MORGAN, Circuit Judges, and CASSIBRY, District Judge.
   GOLDBERG, Circuit Judge:

The parties in this case came to court prepared to argue the mysteries of permissive intervention and intervention of right as set out in Rule 24 of the Federal Rules of Civil Procedure. During oral argument, however, it developed that the parties were not in a state of certitude as to whether the district court had jurisdiction of the ease in which appellants were attempting to intervene. After reading the supplemental briefs submitted by the parties at our request and considering the matter further, we are convinced that the district court had no jurisdiction over the subject matter of the action in which the Rule 24 question arose.

On May 5, 1966, the National Labor Relations Board (NLRB or the Board) certified Allied Food Workers District Union 433, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO (the Union) as the exclusive bargaining agent for a specified group of employees at the Jacksonville, Florida, warehouse of Winn-Dixie Stores, Inc. The Union was recertified as bargaining representative on July 31, 1969, after winning a decertification election.

On November 2Í, 1969, the Union filed charges with the Regional Office of the NLRB, alleging that Winn-Dixie had committed a number of unfair labor practices, including refusal to bargain with the Union in good faith. When the Regional Director dismissed some of the charges and retained the remaining charges pending further action, the Union filed an appeal that the Board’s General Counsel sustained in part and denied in part on June 1, 1972. The Regional Director then proposed that Winn-Dixie and the Union agree to an informal settlement of the unfair labor practice charges but the parties could not reach an agreement in the matter. As the Board’s investigation was progressing, Winn-Dixie allegedly committed other unfair labor practices and these new charges were investigated in their turn.

While the unfair labor practice proceedings were glaciating their course through the NLRB machinery, Robert E. Schell, a Winn-Dixie employee, filed a petition with the NLRB on April 7, 1972, to decertify the Union. The Regional Director deferred processing the petition until the General Counsel acted upon the Union’s appeal on the unfair labor practices charges. He then dismissed Schell’s petition on September 20, 1972, on the ground that the General Counsel had determined that the Union’s charges had merit, and that this determination blocked any election until the resolution of the charges. The very next day, seven Winn-Dixie employees (plaintiffs) filed suit in federal district court to compel the NLRB to process the decertification petition; at about the same time, plaintiffs appealed the Regional Director’s action to the Board.

On January 31, 1973, the Union moved to intervene in plaintiffs’ action against the Board and in March, 1973, the Union itself sued the Board in federal district court to compel the NLRB to issue an unfair labor practices complaint against Winn-Dixie. On May 9, 1973, the district court denied the Union’s motion to intervene in plaintiffs’ action, from which order the Union now appeals.

When the General Counsel finally issued an unfair labor practice complaint against Winn-Dixie on October 30, 1973, charging it with a wide range of misconduct, including refusal to bargain, the Union’s action against the NLRB was dismissed as moot. On January 18, 1974, the NLRB sustained the dismissal by the Regional Director of the decerti-fication petition. In February, 1974, the Board moved to dismiss plaintiffs’ action for lack of jurisdiction or, in the alternative, for summary judgment; the district court denied these motions.

In summary, this labor dispute is almost five years old. As things now stand, the plaintiffs are in district court trying to compel the NLRB to process their decertification petition. The Union is attempting to intervene in plaintiffs’ lawsuit and is very interested in the fate of its unfair labor practices charges against Winn-Dixie. The Board’s General Counsel is proceeding through Board channels on his unfair labor practices complaint, while the NLRB is defending its dismissal of the decerti-fication petition in district court. If the apothegm that justice delayed is justice denied is applicable to labor disputes, then this bout of administrative and judicial sparring cannot have a very salutary conclusion — the referee and judges coming to no decision after many rounds.

I.

Plaintiffs allege that federal jurisdiction over the subject matter of this complaint is furnished by 28 U.S.C. § 1337, as applied to labor disputes by the United States Supreme Court in Leedom v. Kyne, 1958, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210, and by this Court in Templeton v. Dixie Color Printing Co., 5 Cir. 1971, 444 F.2d 1064, and Surratt v. N.L.R.B., 5 Cir. 1972, 463 F.2d 378. We believe that the carefully circumscribed jurisdiction asserted in those cases is very far from reaching this case and that the district court should have dismissed plaintiffs’ action for lack of jurisdiction over the subject matter.

Generally, NLRB decisions in representation cases are not directly reviewable by the federal courts. Congress has provided in section 10(f) of the National Labor Relations Act (the Act) that only a “final order” of the Board is subject to review by a court of appeals, and the United States Supreme Court has determined that a Board order in a certification proceeding is not such an order. American Federation of Labor v. N.L.R.B., 1940, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347. Consequently, orders, concerning representation matters are reviewable only as they are drawn into question by a petition for enforcement or review of a Board order made under section 10(c) of the Act to restrain an unfair labor practice. 29 U.S.C. §§ 159(e) and (f); Magnesium Casting Co. v. N.L.R.B., 1971, 401 U.S. 137, 91 S.Ct. 599, 27 L.Ed.2d 735; Boire v. Greyhound Corp., 1964, 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849.

Nowhere in the statutory scheme does Congress mention district court review of NLRB orders in representation cases, and there is a reason for that profound silence. The underlying purpose of the Act is to maintain industrial peace, Brooks v. N.L.R.B., 1954, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125, and to allow employers and unions to rush into federal district court at will to prevent or nullify certification elections would encourage dilatory tactics by dissatisfied parties and lead to industrial unrest. See H.R.Rep.No.245, 80th Cong., 1st Sess. 43; H.R.Rep.No.510, 80th Cong., 1st Sess. 56-57. Such a rule would not only cause the federal courts to set the dockets of the NLRB, but time-consuming review in such cases would strike a blow at the foundations of our-finely-tuned system of collective bargaining. For these reasons, Congress has determined that the NLRB, and not the courts, is to be the umpire in representation disputes. National Ass’n of Women’s & Children’s Apparel Salesmen, Inc. v. F.T.C., 5 Cir. 1973, 479 F.2d 139. See H.R.Rep.No.972, 74th Cong., 1st Sess. 5-6; S.Rep.No.573, 74th Cong., 1st Sess. 5-6; Leedom v. Kyne, supra, 358 U.S. at 191-194, 79 S.Ct. at 79-80, 3 L.Ed.2d at 216-218 (Brennan, J., dissenting).

It is not surprising, therefore, that federal courts have assumed jurisdiction in representation matters in only three highly-circumscribed situations. One exceptional set of circumstances is presented where the lawsuit presents “public questions particularly high in the scale of our national interest because of their international complexion.” McCulloch v. Sociedad Nacional de Marineros de Honduras, 1963, 372 U.S. 10, 17, 83 S.Ct. 671, 675, 9 L.Ed.2d 547, 552. Some courts have found another exception to the rule in rare cases where the NLRB has violated the constitutional rights of the complaining party. Milk & Ice Cream Drivers’ Union, Local 98 v. McCulloch, 1962, 113 U.S.App.D.C. 156, 306 F.2d 763; Fay v. Douds, 2 Cir. 1949, 172 F.2d 720. The third exception is that of Leedom v. Kyne, 1958, 358 U. S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210, where the United States Supreme Court set aside a Board election and certification where the NLRB had clearly acted “in excess of its delegated powers and contrary to a specific prohibition in the Act.” 358 U.S. at 188, 79 S.Ct. at 184, 3 L.Ed.2d at 214. This last exception has generally been limited to the very narrow situation where there is a “plain” violation of an unambiguous and mandatory provision of the statute, Boire v. Miami Herald Publishing Co., 5 Cir. 1965, 343 F.2d 17. See generally Groendyke Transport, Inc. v. Davis, 5 Cir. 1969, 406 F.2d 1158. It is this last exception that plaintiffs have relied upon in the instant case.

II.

Plaintiffs claim that the Board’s administrative dismissal of their decertification petition pursuant to its “blocking charge” rule violated secton 9(c)(1) of the Act, which provides in pertinent part that:

Whenever a petition shall have been filed . . . by an employee or group of employees . . . alleging that a substantial number of employees . assert that the individual or labor organization, which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a representative as defined in [the Act] the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. ... If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.

Plaintiffs charge that the NLRB’s action on their decertification petition was arbitrary and an abuse of its discretion, that the Board refused to carry out its statutory duties as outlined in section 9(c)(1), and that this refusal has deprived plaintiffs of their statutory right to representation of their own choosing as defined in section 7 of the Act.

The NLRB has employed its “blocking charge” rule since 1937, U. S. Coal & Coke, 3 N.L.R.B. 398, to dismiss decerti-fication petitions during the pendency of unfair labor practice proceedings or while the effects of prior unfair labor practices remain undissipated. The reasons for this rule do not long elude comprehension. As this Court explained very recently in N. L. R. B. v. Big Three Industries, Inc., 5 Cir. 1974, 497 F.2d 43, 51-52:

It would be particularly anomalous, and disruptive of industrial peace, to allow the employer’s [unfair labor practices] to dissipate the union’s strength, and then to require a new election which ‘would not be likely to demonstrate the employees’ true, undistorted desires,’ N.L.R.B. v. Gissel Packing Co., 1969, 395 U.S. 575, 611-612, n. 33, 89 S.Ct. 1918, 1938, 23 L.Ed.2d 547, 576, since employee disaffection with the union in such cases is in all likelihood prompted by [the situation resulting from the unfair labor practices].

If the employer has in fact committed unfair labor practices and has thereby succeeded in undermining union sentiment, it would surely controvert the spirit of the Act to allow the employer to profit by his own wrongdoing. In the absence of the “blocking charge” rule, many of the NLRB’s sanctions against employers who are guilty of misconduct would lose all meaning. Nothing would be more pitiful than a bargaining order where there is no longer a union with which to bargain.

Nor is the situation necessarily different where the decertification petition is submitted by employees instead of the employer or a rival union. Where a majority of the employees in a unit genuinely desire to rid themselves of the certified union, this desire may well be the result of the employer’s unfair labor practices. In such a case, the employer’s conduct may have so affected employee attitudes as to make a fair election impossible. N.L.R.B. v. Kaiser Agricultural Chemicals, 5 Cir. 1973, 473 F.2d 374.

If the employees’ dissatisfaction with the certified union should continue even after the union has had an opportunity to operate free from the employer’s unfair labor practices, the employees may at that later date submit another decer-tification petition. The Supreme Court stressed in Gissel, supra, that:

There is nothing permanent in a bargaining order, and if, after the effects of the employer’s acts have worn off, the employees clearly desire to disavow the union, they can do so . . . [There is in such a case] no ‘injustice to employees who may wish to substitute for the particular union some other . arrangement’ [but] a bargaining relationship ‘once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed,’ after which ‘the Board may, . upon a proper showing, take steps in recognition of changed situations which might make appropriate changes in bargaining relationships.’ Franks Bros. v. N.L.R.B., 1944, 321 U.S. 702, 705-706, 64 S.Ct. 817, 819, 88 L.Ed.2d 1020, 1023.
For all of these reasons, this Court has long approved the “blocking charge” rule. N.L.R.B. v. Big Three Industries, Inc., supra; N.L.R.B. v. Auto Ventshade, Inc., 5 Cir. 1960, 276 F.2d 303; N.L.R.B. v. Sanson Hosiery Mills, 5 Cir. 1952, 195 F.2d 350, cert. denied, 344 U.S. 863, 73 S.Ct. 103, 97 L.Ed. 669; N.L.R.B. v. Houston & North Texas Motor Freight Lines, 5 Cir. 1951, 193 F.2d 394.

III.

Plaintiffs nevertheless claim that the “blocking charge” rule as applied to them was so arbitrary and without reasonable basis as to fall within the parameters of Kyne and our own Templeton and Surratt cases. An examination of those cases fails to convince us of the merit of plaintiffs’ argument.

Leedom v. Kyne, supra, was a case in which the NLRB had approved as appropriate a bargaining unit containing both professional and non-professional employees without first polling the professional employees. This action flew directly into the face of section 9(b) (1) of the Act, which forbids the Board to approve such a mixed unit “unless a majority of [the] professional employees vote for inclusion in such a unit.” The Board candidly admitted that it had acted in excess of its powers and violated the statutory rights of the professional employees; the NLRB did not admit, however, that its action gave a federal district court jurisdiction to review its decision. The Supreme Court replied that in these circumstances the district court suit “is not one to ‘review,’ in the sense of that term as used in the Act, a decision of the Board made within its jurisdiction. Rather, it is one to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act.” 358 U.S. at 188, 79 S.Ct. at 184, 3 L.Ed.2d at 214.

The Board’s action in Kyne was extraordinary, one that fully justified the exceptional assertion of district court jurisdiction over the case. As the Supreme Court later cautioned in Boire v. Greyhound Corp., supra, however, the Kyne exception to the general rule that courts have no jurisdiction directly to review NLRB representation orders “is a narrow one.” 376 U.S. at 481, 84 S.Ct. at 898, 11 L.Ed.2d at 855. The Greyhound Court refused to extend that exception:

“to permit plenary district court review of Board orders in certification proceedings whenever it can be said that an erroneous assessment of the particular facts before the Board has led it to a conclusion which does not comport with the law. Judicial review in such a situation has been limited by Congress to the courts of appeals, and then only under the conditions explicitly laid in § 9(d) of the Act.” 376 U.S. at 481-482, 84 S.Ct. at 899, 11 L.Ed.2d at 855.

We have already shown that Kyne is applied only to plain violations of an unambiguous and mandatory section of the statute, and such a situation is not present here. But plaintiffs urge that Templeton v. Dixie Color Printing Co., 5 Cir. 1971, 444 F.2d 1064, and Surratt v. N.L.R.B., 5 Cir. 1972, 463 F.2d 378, have so embellished Kyne as to bring the instant litigation within its charmed precincts.

In Templeton, the NLRB dismissed a decertification petition filed by a group of employees on the basis of the “blocking charge” rule. The alleged unfair labor practices underlying the Board’s disposition of the petition were four years old when the petition was filed and the Board had invoked its rule mechanically, with no determination as to whether a question of representation existed. In fact, the union involved had decided not to contest an election if one were ordered, since it had not had the support of a majority of the employees for over three years.

Faced with this sort of Board conduct, the employees went to federal district court and asked for an order compelling the NLRB to process their petition and hold an election. The district court granted the requested relief. This Court then determined that the Board’s action had been utterly arbitrary and had violated the employees’ section 7 rights to representation of their own choosing, so that the district court had jurisdiction of the case under 28 U.S.C. § 1337 and Kyne. We found that the district court had properly ordered the NLRB to process the decertification petition, but we refused to compel the Board to hold an election, because Congress has reposed exclusive responsibility for such a decision in the Board.

Our opinion in Templeton cautioned time and again that this was a most unusual case: “[o]ur decision is based on the particular circumstances presented here. . . . We hold only that, in the instant case, the Board’s refusal to act is an abuse of discretion and is arbitrary.” 444 F.2d at 1070. Templeton was a case in which the unfair labor practices were so ancient that even if they had once affected employee attitudes toward the union, those effects were long since dissipated. The Board nevertheless invoked its rule and summarily dismissed the petition with no thought as to whether the rule made any sense as applied to the particular facts. In such circumstances, the long-disgruntled employees had nowhere else to go but federal district court to vindicate their statutory rights. This Court, although painfully aware of the near unanimity of authority against district court intervention in NLRB representation decisions, decided that this was the extremely rare case in which application of the “blocking charge” rule exceeded the bounds of the Act. Far from extending the rule of Kyne, we noted that Templeton was “arguably more ‘exceptional’ ” than the Supreme Court’s case. 444 F.2d at 1069.

Strangely enough, shortly after we had carved out a precarious exception to the general rule of review in Templeton and had come close to limiting that case to its facts, we were faced with another instance of Board misconduct in Surratt. In that case, this Court affirmed a district court order requiring the Board to investigate a decertification petition that had been submitted by a group of employees, where the unfair labor practice charges blocking the petition had been found totally without merit by the trial examiner after a full administrative hearing. Such unjustifiable application of the “blocking charge” rule by the NLRB was just the sort of unexampled abuse of discretion that Templeton had proscribed.

In Surratt, as in Templeton, the Court carefully limited the ambit of district court jurisdiction to the very unusual situation where the Board applies the “blocking charge” rule as a per se rule without making a determination in each case “whether the violation alleged is such that consideration of the election petition ought to be delayed or dismissed.” 463 F.2d 381. Only where the NLRB acts with the high degree of arbitrariness exhibited in Templeton and Surratt can the Board be said to have acted in violation of the Act, and thus to fall within the prohibition of Kyne. Kyne, Templeton and Surratt together stand for nothing more than the unremarkable proposition that Board orders in representation cases are not directly reviewable in the courts unless the Board’s actions exceed the scope of its statutory authority. In such a case, the courts are no longer inhibited by the provisions of the Act and may review the NLRB actions to the extent that they are outside the bounds of the statute.

A much more common application of the “blocking charge” rule and an example of the general absence of district court jurisdiction over representation matters was the subject of our recent decision in N.L.R.B. v. Big Three Industries, Inc., supra. In that case, the General Counsel charged, among other things, that the employer had refused to bargain with the union in good faith. The Board eventually found the charges to be true and the ensuing bargaining order was enforced by this Court. While the unfair labor practice charges were following this course, a group of employees filed a decertification petition with the Board. When this petition was dismissed pursuant to the “blocking charge” rule, the employees filed suit in district court to compel the NLRB to process their petition. The district court found that it had no jurisdiction to entertain the case, and we affirmed. There was no per se application of the rule as there had been in Templeton and Surratt. The Board had reviewed the facts of the case and found that the major reason for the petition was that the union had accomplished nothing at the bargaining table. The pending unfair labor practice charges, if true, were of the sort that might attribute that lack of accomplishments to the employer rather than to the union. This was just the sort of situation that the NLRB had in mind when it inaugurated the “blocking charge” rule in 1937. In affirming the dismissal of the petition, the Board, explained: “In these circumstances, to find the existence of a real question concerning representation on the basis of the instant petition, in the face of the current litigation in the complaint case of the Employer’s alleged refusal to bargain in good faith, would ... be contrary to the statutory scheme of the Act.” Big Three Industries, Inc., 1973, 201 N.L.R.B. No. 76, 82 L.R.R.M. 1411, 1412.

The Templeton-Surratt rule “that the pendency of unfair labor practice charges does not per se warrant the Board’s blocking, without investigation, a decertification petition filed by unit employees,” 497 F.2d at 53, was obviously inappropriate in Big Three Industries, and we so held, after indicating that the assertion of district court jurisdiction in such a case was something to be expected rather less often than a bloom on a century plant.

IV.

When we set the circumstances of this case beside those of Templeton and Sur-ratt on the one hand and Big Three Industries on the other, we readily perceive that the present case presents a garden variety application of the “blocking charge” rule. In this case, the alleged unfair labor practices underlying the dismissal of the petition had not grown stale by the time the petition was filed; on the contrary, the Union and the NLRB’s General Counsel contend that Winn-Dixie has made every effort to keep them as fresh as possible. Nor do we find that mechanistic application of the rule that the Court found so odious in Templeton and Surratt. Although the NLRB has not yet decided the merits of the charges against Winn-Dixie, the General Counsel has found enough substance to the allegations to form the basis of a complaint. The Board carefully considered whether the “blocking charge” dismissal was proper in this case, “balancing the interaction between an employer’s obligation . to bargain with a duly designated representative and the employees’ right ... to terminate the statutory status of said representative.” Winn-Dixie Stores, Inc., 1974, No. 12-RD-245, and determined that the facts of this case warranted dismissal of the petition.

There is in the Board action here neither arbitrariness nor abuse of discretion; there is instead the reasoned utilization of a practice long-since legitimized by experience and well-suited to the particular facts of this controversy. This application of the rule is distinguishable, if at all, from the ordinary “blocking charge” dismissal only by the length of the labor dispute of which it forms a part. The record shows that the NLRB has remained well within the boundaries of its statutory mandate with respect to representation questions. Since that is the case, the district court had no subject matter jurisdiction over plaintiffs’ lawsuit.

This Court had a duty in Templeton and Surratt 'to adopt a very limited exception to the general rule of review of representation questions. We have a corresponding duty to police that exception to ensure that a rule designed to further the purposes of the National Labor Relations Act is not extended beyond its fragile scope so as to do mischief where it was meant to do good. Administrative agencies such as the NLRB are set up to work their magical expertise and courts should interfere with the Board’s congressionally-bequeathed magician’s props in representation cases only when it is certain that no rabbit will be pulled from the NLRB’s hat.

The order of the district court is vacated and the case is remanded with instructions to dismiss the complaint.

Vacated and remanded.

      . While we are in no position to discuss the merits of the Union’s charges against Winn-Dixie, we note that Winn-Dixie is no stranger to this Court in unfair labor practice proceedings. See Winn-Dixie Stores, Inc. v. N.L.R.B., 5 Cir. 1969, 413 F.2d 1008; N.L.R.B. v. Winn-Dixie Stores, Inc., 5 Cir. 1969, 414 F.2d 786; N.L.R.B. v. Winn-Dixie Stores, Inc., 5 Cir. 1966, 361 F.2d 512; N.L.R.B. v. Winn-Dixie Stores, Inc., 5 Cir. 1965, 353 F.2d 76; N.L.R.B. v. Winn-Dixie Stores, Inc., 5 Cir. 1963, 324 F.2d 502.

      . Plaintiffs seek “an order compelling the N.L.R.B. 1o process their Decertification Petition in accordance with section 9(e) of the National Labor Relations Act.” Supplemental Brief for Plaintiffs-Appellees at 2. If that is truly the extent of the relief they seek, then we wonder why the Board’s order of January 18, 1974, affirming the dismissal of plaintiffs’ decertification petition on the grounds that “there is no reasonable cause to believe that the instant jietition at this time raises a real question of representation” does not so completely comply with the requirements of section 9(c) as to render plaintiffs’ action moot. We will not seek refuge in mootness because we would be adding our mite to this intolerable delay. Furthermore, we hesitate to venture into this conflict when such a course might interfere with an administrative decision on the merits of decertification.

      . 29 U.S.C. § 160(f).

      . 29 U.S.C. §§ 151-168.

      . Although it is true that this indirect method of judicial review imposes considerable delays upon election challenges, “it is obvious that Congress ... intended to impose precisely such delays.” Boire v. Greyhound Corp., supra, 376 U.S. at 477, 84 S.Ct. at 897, 11 L.Ed.2d at 853.

      . 29 U.S.C. §159 (c)(1).

      . 29 U.S.C. § 157.

      . The policy is summarized in the NLRB Field Manual K11730 as:
      a general policy of holding in abeyance any representation case . . . where pending unfair labor practice charges filed by a party to the [representation] ease are based upon conduct of a nature which would have a tendency to interfere with the free choice of the employees in an election, were one to be conducted on the petition . . . Where the pending charges allege violations ... of Section 8(a)(2), 8(a)(5) and 8(b)(7) of the Act, such a policy applies even where the person filing the charges is not a party to the [representation] case, and the petition may ultimately be dismissed, since the nature of the alleged violations of those sections of the Act and the remedies which could be provided therefor, might condition or preclude the existence of the question concerning representation sought to be raised by the petitioner.

      . The Templeton court placed considerable emphasis upon the fact that the decertification petition there had been filed by employees. The Court felt that such a petition was less likely to be a cover for delaying tactics than petitions submitted by employers or rival unions. We have shown, liow-ever, that an emjJoyee petition is not necessarily to be treated differently from any other, and it is certainly true that if an employee petition were actually prompted and supported by an employer or a union, then the petition would lose any favored status that it might otherwise enjoy.

      . In reaching its determination, the Board ruled that:
      shortly after the bargaining representative was recertified in July [1969], the Employer allegedly took numerous unilateral actions and imposed an unlawful condition with respect to bargaining on pensions in violation of its bargaining obligation, which tended to erode the representative’s majority status and to undermine its bargaining efforts. If these allegations of the complaint, which are now being litigated, are sustained, the appropriate remedy would include an affirmative bargaining order and extension of the certification year even though the representative may now have lost its majority status. In these circumstances, the Board is of the view that it would be contrary to the statutory scheme of the Act to sanction an election now, while the bargaining obligation of the Employer arising out of the earlier election is currently in litigation.