text:
    UNITED STATES of America, Plaintiff-Appellee, v. Antar A. R. SULAIMAN, and Over 21 Book Club, Inc., Defendants-Appellants.
    No. 71-3145.
    United States Court of Appeals, Fifth Circuit.
    Feb. 19, 1974.
    Rehearing and Rehearing En Banc Denied April 3, 1974.
    Stanley Fleishman, Hollywood, Cal., Joseph Pardo, Miami, Fla., for defendants-appellants.
    Robert W. Rust, U. S. Atty., George A. Kolus, Asst. U. S. Atty., Miami, Fla., Donald H. Feige, Crim. Div., Dept, of Justice, Robert D. Keefe, Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before TUTTLE, GEWIN and RO-NEY, Circuit Judges.
   PER CURIAM:

This obscenity case, in conjunction with two others being decided today by this panel, arises from convictions obtained prior to the “Miller quintet” and our recent decisions in light thereof. The appeals were held pending the Supreme Court’s disposition of Miller. Virtually every point made on this appeal is now controlled by these recent decisions adversely to appellants. We affirm.

Antar Sulaiman and the Over 21 Book Club, Inc. were convicted under 18 U.S. C.A. § 1461 for knowingly using the mails for delivery of obscene advertisements and motion picture films to certain individuals.

(1) The Government does not have to introduce expert testimony in addition to the challenged material to prove the obscenity charge. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), citing with approval United States v. Groner, 479 F.2d 577 (5th Cir. 1973); United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973).

(2) Defendants’ knowledge that the material mailed is legally obscene is not required to prove a violation of 18 U.S.C.A. § 1461. Proof that the defendants knew that'the material was sexually oriented is sufficient. United States v. Millican, 487 F.2d 331 (5th Cir. 1973). See United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973) (18 U.S.C.A. § 1462).

(3) Title 18 U.S.C.A. § 1461 is not unconstitutionally vague or overbroad. United States v. Cote, 485 F.2d 574 (5th Cir. 1973). See United States v. Millican, 487 F.2d 331 (5th Cir. 1973).

In addition to urging the nonworkability of a national standard in conjunction with the ex post facto effect of applying the Miller standards to this case, an argument which we answered adversely to defendants today in United States v. New Orleans Book Mart, 490 F.2d 73 (5th Cir. 1974) [No. 71-2594], they urge that the local community standard test enunciated in Miller does not apply to federal obscenity prosecutions. Defendants premise their argument on the fact that Miller was a state obscenity prosecution. This contention, however, was answered adversely to them in United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973):

In Orito, supra, and 12 200-Ft. Reels, supra, the Court made clear that this standard also applies to prosecutions under federal statutes. 484 F.2d at 1154.

In reply to Thevis and the intimations of United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973) (18 U.S.C.A. § 1462), and United States v. 12 200-Ft. Reels of Super 8mm Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973) (19 U.S.C.A. § 1305), the defendants cite to what they term the prospective language of Footnote 7 in Twelve 200-Ft. Reels, 413 U.S. at 130, 93 S.Ct. 2665, and argue that local community standards are to be given prospective application only and cannot be the basis for a conviction had prior to June 21, 1973.

Relying on United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973), however, we need not answer that question. We have reviewed the material under both the Memoirs and Miller tests and find the advertisements and films to be within the legal parameters of obscenity.

Affirmed.

      . United States v. New Orleans Book Mart, 490 F.2d 73 (5th Cir. 1974) [No. 71-2594] ; United States v. Thevis, 490 F.2d 76 (5th Cir. 1974) [No. 72-2664].

      . Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) ; Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) ; Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973) ; United States v. 12 200-Ft. Reels of Super 8mm Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973) ; United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973) ; United States v. Millican, 487 F.2d 331 (5th Cir. 1973) ; United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Roy P. ALLISON, Defendant-Appellant.
    No. 72-1454.
    United States Court of Appeals, Fifth Circuit.
    March 6, 1974.
    Rehearing Denied April 3, 1974.

      John C. Ciolino, George M. Leppert, New Orleans, La., for defendant-appellant.
    Gerald J. Gallinghouse, U. S. Atty., Patrick C. McGinity, Mary Williams Cá-zalas, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.
    Appeal from the United States District Court for the Eastern District of Louisiana.
   ON PETITION FOR REHEARING

(Opinion Feb. 2, 1973, 5 Cir., 1973, 474 F.2d 286).

Before RIVES, WISDOM and RONEY, Circuit Judges:

PER CURIAM:

It is ordered that the petition for rehearing filed in the above entitled and numbered cause be and the same hereby is granted, our prior opinion is vacated, and the conviction is affirmed.

This appeal involved the admissibility at the defendant’s trial of testimony given by him before the grand jury. Initially we reversed the trial court because portions of the introduced testimony were clearly irrelevant and prejudicial to the defendant’s cause. On petition for rehearing, however, the Government has asserted that defense counsel wanted the irrelevant portions of the testimony read together with those portions which the Government sought to introduce. After a hearing in the District Court to supplement the record in this regard under Rule 10(e), F.R.A.P., we find that although defense counsel .did not waive his original objection to the introduction of any of the grand jury testimony, he did agree that if the testimony were introduced over his objection, he wished the remainder of the testimony introduced to lessen the impact of the admissible testimony.

Upon rehearing, we find that some of the testimony introduced by the Government was relevant as admissions of the defendant. Therefore, all of the testimony was admissible pursuant to the request of the defense counsel. The Supplemental Brief for Appellant on Remand in Opposition to Rehearing further substantiates this point:

. counsel for defendant stated that if any of the non-deleted portion was read, over his objection, of course, he wanted the entire non-deleted portion to be read. (Emphasis in original) (pg. 2)
Mr. Ciolino made a basic objection continuing throughout the course of the trial as to the introduction of any Grand Jury testimony on the basis of Fifth Amendment grounds. However, if it was going to be allowed at all, he thought that all of it should go in (Emphasis in original) (pg. 3)

Once the admissibility of any of the testimony was established, all of it became admissible at the request of defense counsel. His objection was lost.

We have reviewed the other issues raised on appeal and find that the evidence was sufficient to support the conviction, that the charge to the jury was proper, and that there was no abuse of discretion in permitting witness Marie Hunt to testify.

Affirmed.


text:
    Bernice ALLEN, Plaintiff-Appellant, v. SISTERS OF SAINT JOSEPH, Defendant-Appellee.
    No. 73-2371.
    United States Court of Appeals, Fifth Circuit.
    March 1, 1974.
    Thomas J. Griffith, Lubbock, Tex., for plaintiff-appellant.
    Charles B. Jones, Bobby J. Moody, Lubbock, Tex., for defendant-appellee.
    Before THORNBERRY, GOLDBERG and' INGRAHAM, Circuit Judges.
   PER CURIAM:

Plaintiff Bernice Allen brought this suit under 42 U.S.C. § 1983 and 28 U.S. C. § 1343, seeking to compel the defendant, Sisters of St. Joseph, who operate St. Mary of the Plains Hospital in Lubbock, Texas, to make its facilities available for the performance of a tubal ligation sterilization. The district court held that there was no action “under col- or of state law” as required by the terms of the statutes and therefore denied relief.

Ms. Allen is the mother of two minor illegitimate children and was expecting a third when the circumstances leading to this suit arose. Desiring to avoid additional pregnancies, Ms. Allen requested that she be sterilized contemporaneously with the birth of the third child. Her physician readily agreed and planned to deliver the child and perform the sterilization at the University Hospital, Lubbock, Texas.

Several weeks prior to the anticipated delivery date, however, Ms. Allen fractured her hip and was admitted to St. Mary of the Plains Hospital, a private denominational hospital, for treatment. As a result of this injury, her physician concluded that the child should be delivered by Caesarean section. Since the incision for the Caesarean delivery would open the same area as that to be opened for the sterilization, he still planned to perform both simultaneously. To accomplish both of these objectives at the same time would prevent the need for,a subsequent surgical incision, anaesthetic and other dangers inherent in additional surgery. In view of the risks involved in moving to another hospital, Ms. Allen requested that the sterilization and Caesarean section be done at St. Mary of the Plains Hospital. But based on the religious beliefs of the Sisters of St. Joseph, the request was denied. Ms. Allen brought suit against the Sisters of St. Joseph to compel them to provide the facilities for her sterilization, but the district court denied relief. Ms. Allen’s child was born as expected and on December 7, 1973, just prior to oral argument in this appeal, Ms. Allen was sterilized at a hospital other than St. Mary of the Plains Hospital.

Since the plaintiff in the case at hand has given birth to her child and has subsequently obtained a sterilization at another hospital, the initial question is whether this case currently is inappropriate for judicial consideration because it is moot. It is well settled that a case is moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969). Adverse parties must present, a viable controversy to the court that is susceptible to judicial resolution and effective relief. C. Wright, Law of Federal Courts, § 12, at 35 (1970).

We are unable to discern any viable controversy in the instant case that is susceptible to judicial resolution and relief. The plaintiff asked only for injunctive relief, coercing the Sisters of St. Joseph to provide facilities for sterilization, and for general relief. There is no specific claim for damages, Me-Cabe v. Nassau County Medical Center, 453 F.2d 698, 701-702 (2nd Cir., 1971), nor did plaintiff initiate this suit as a class action. Rivera v. Freeman, 469 F. 2d 1159, 1163 (9th Cir., 1972); J. Moore, Federal Practice, ¶ 57.13 n. 11, at 57-129 (1973). This is merely an action brought by an individual plaintiff who asks for a sterilization that she has already obtained. Even if we were inclined to grant an injunction requiring the Sisters of St. Joseph to provide facilities for the surgery, it would make no difference to Ms. Allen because she had already been sterilized.

We are aware that there are limitations restricting the scope of the mootness doctrine. For example, a controversy is considered viable and not moot when the consequences of the assailed activity might adversely affect the complainant. Carafas v. LaVallee, 391 U.S. 234, 237-238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Justin v. Jacobs, 145 U.S. App.D.C. 355, 449 F.2d 1017, 1019 (1971). Additionally, an issue that is “capable of repetition, yet evading review” is not considered moot because of the underlying controversy that continues to exist between the parties. Doe v. Bolton, 410 U.S. 179, 187, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L. Ed.2d 147 (1973); Dunn v. Blumstein, 405 U.S. 330, 333, n. 2, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); J. Moore, Federal Practice, ¶ 57.13, n. 11, at 57-131 (1973). But while a pregnancy is capable of repetition with regard to the individual plaintiff, giving rise to a subsequent claim for an abortion, a sterilization completely terminates any possibility of the controversy recurring.

Dismissed as moot.

      . Immediately after the district court denied relief, Ms. Allen submitted a motion to this court asking for an emergency hearing and suspension of Rule 2, FRAP. On June 21, 1973, a panel of this court denied appellant’s motion.

      . The pleadings in this case state that Ms. Allen might give birth to more than one child. At oral argument, Ms. Allen’s counsel was asked if the child had been born, and counsel responded that it had without further indicating whether there was a multiple birth. We therefore proceed on the premise that only one child was born.

      . We recognize that “when coercive relief only is sought but is deemed ungrantable or inappropriate, the court may sua sponte, if it serves a useful purpose, grant instead a declaration of rights.” Notes of Advisory Committee on Rules, 28 U.S.C.A., Rule 57 (1971). But authorization to give declaratory relief when not mentioned in the pleadings does not authorize us to discuss moot issues. J. Moore, Federal Practice, ¶ 57.13, at 57-121 (1973).

      . United States Servicemen’s Fund v. Kil-leen Independent School District, 5 Cir. 1974, 489 F.2d 693.


text:
    AAACON AUTO TRANSPORT, INC., Petitioner-Appellant, v. Florence NINFO, Respondent-Appellee.
    No. 119, Docket 73-1986.
    United States Court of Appeals, Second Circuit.
    Submitted Nov. 20, 1973.
    Decided Jan. 2, 1974.
    Ralph J. Zola, New York City (Zola & Zola, New York City), for petitioner-appellant.
    Earl J. Kuehl, Milwaukee, Wis., for respondent-appellee.
    Before LUMBARD, MANSFIELD and MULLIGAN, Circuit Judges.
   PER CURIAM:

The petitioner-appellant, Aaacon Auto Transport, Inc. (Aaacon), is a motor carrier authorized and licensed by the Interstate Commerce Commission to transport privately owned automobiles throughout the United States. On or about June 3, 1970, Aaacon entered into a bill of lading agreement with the respondent-appellee, Florence Ninfo, a resident of Milwaukee, Wisconsin, whereby Aaacon agreed to transport her Chevrolet Camaro from California to Wisconsin, subject to the conditions contained in the agreement. On August 16, 1971, Ninfo commenced an action against Aaa-con in the Circuit Court of Milwaukee County, State of Wisconsin, claiming that her automobile was damaged in transport. On October 2, 1972 Aaacon petitioned the United States District Court, Southern District of New York, for an order, pursuant to the Federal Arbitration Act, 9 U.S.C. § 4, directing the parties to arbitrate in accordance with a clause in the agreement which provides:

Any claim or controversy, whether founded in contract or tort, arising out of or relating to this agreement or the performance or breach thereof shall be settled by arbitration in the City, County and State of New York ....

Ninfo moved to dismiss the proceedings, or alternatively for an order assigning the matter to the United States District Court, Eastern District of Wisconsin, on the ground of forum non conveniens. On May 14, 1973, the Hon. Constance Baker Motley, United States District Judge, granted the Ninfo motion to change venue and denied the petitioner’s motion without prejudice to renewal of the motion in the transferee court. This is an appeal from the order.

An order transferring a case for trial to another district pursuant to 28 U.S.C. § 1404(a) is a non-appealable interlocutory order. D'Ippolito v. American Oil Co., 401 F.2d 764 (2d Cir. 1968) (per curiam). An order staying arbitration pending a trial on the validity of the agreement to arbitrate is also a non-appealable interlocutory order. Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 84-86 (2d Cir. 1961), cert, denied, 368 U.S. 986, 82 S. Ct. 601, 7 L.Ed.2d 524 (1962); John Thompson Beacon Windows, Ltd. v. Ferro, Inc., 98 U.S.App.D.C. 109, 232 F.2d 366 (1956); see Greater Continental Corp. v. Shechter, 422 F.2d 1100, 1102-1103 (2d Cir. 1970).

In the memorandum opinion below, the court indicated that the Ninfo affidavit in opposition to the Aaacon motion “suggests” that there is a question as to whether or not the agreement was ever entered into, or if it was, whether Ninfo realized that it called for arbitration of all disputes in New York County since the provision appeared inconspicuously toward the end of the boilerplate of the shipper’s standard form which might render it invalid as against public policy. The court concluded that this presented issues of fact which need not be decided here, but could be resolved in the more convenient federal forum in Wisconsin. 9 U.S.C. § 4, however, provides in pertinent part:

The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed. If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof.

Since the agreement on its face provides for arbitration in New York and since the petition was filed in the Southern District of New York, the statute mandates that the court below proceed summarily to a trial of the issues as to the making of the agreement. Aaacon Auto Transport, Inc. v. Teafatiller, 334 F.Supp. 1042, 1044 (S.D.N.Y. 1971); Lawn v. Franklin, 328 F.Supp. 791, 793 (S.D.N.Y.1971). It follows that the court below, lacked the power to order the transfer of the case to Wisconsin. See Farrell v. Wyatt, 408 F.2d 662, 664-665 (2d Cir. 1969). The proper procedure for Aaacon therefore was to seek mandamus.

This court has generally declined to consider an appeal from a non-appeala-ble order as a petition for mandamus. However, there is precedent in an appropriate case to treat the appeal as a motion for leave to file a petition for mandamus. “An expression of this court’s views on such a motion would generally obviate any need for a petition or writ, while still leaving it open to the judge to await a formal petition in the rare case where he wishes to be heard.” International Products Corp. v. Koons, 325 F.2d 403, 407 (2d Cir. 1963). See also Western Geophysical Co. v. Bolt Associates, 440 F.2d 765, 769 (2d Cir. 1971).

We therefore suggest that the district court proceed to try the issue of the validity of the agreement of arbitration. If this is not done, the appellant may apply for a writ.

Appeal dismissed. Costs are taxed against the appellant.


text:
    Bernard J. KENNEDY et al., Plaintiffs-Appellants, v. Gerald HENDERSCHEID and Moz-All of Florida, Inc., Defendants-Appellees.
    No. 73-2901
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 28, 1973.
    Arthur Roth, John Fowler, Miami, Fla., for plaintiffs-appellants.
    John W. Thornton, Timothy Carl Blake, Miami, Fla., for defendants-appel-lees.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

In this personal injury suit in admiralty arising out of the explosion of a fishing boat trial was to the judge and judgment was rendered against the plaintiffs. The plaintiffs argue on appeal that the trial judge erroneously applied the doctrine of res ipsa loquitur since he failed to rule .that plaintiffs’ proof transferred the burden of going forward on the issues of negligence and causation to the defendant. This argument is without merit. Under the rule applied in admiralty cases the trier of fact is permitted to accept or reject the inference of negligence permitted by the doctrine of res ipsa loquitur and “the question still is whether all the evidence . . . reasonably shows that the defendant was negligent in some respect that caused the injury, though the particular negligence cannot be pointed out or directly proved”, Geotechnical Corp. v. Pure Oil Company, 196 F.2d 199, 205 (5th Cir.) cert, denied, 344 U.S. 874, 73 S.Ct. 165, 97 L.Ed. 676 (1952). The plaintiffs also assert that the clearly erroneous rule does not apply when the district judge adopts verbatim the proposed factual findings of one of the parties. This contention is similarly without merit. See, e. g., Lewis Dreyfus & CIE v. Panama Canal Company, 298 F. 2d 733 (5th Cir. 1962). The district court’s factual determinations were not clearly erroneous. Fed.R.Civ.P. 52(a).

Affirmed.


text:
    Eugene H. BEAUCOUDRAY, Jr., and Mrs. Barbara Madeline Beaucoudray, Plaintiffs-Appellants, v. UNITED STATES of America, Through the Department of Transportation (Coast Guard), Defendant-Appellee.
    No. 73-3632
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 6, 1974.
    Joseph A. Gladney, Baton Rouge, La., James H. Morrison, Hammond, La., for plaintiffs-appellants.
    Douglas M. Gonzales, U. S. Atty., Baton Rouge, La., Alfred H. 0. Boudreau, Trial Atty., Admiralty & Shipping Section, Morton Hollander, Neil H. Koslowe, Dept, of Justice, Washington, D. C., for defendant-appellee.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

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

   PER CURIAM:

The appellants, parents of Eugene H. Beaucoudray, III, filed a complaint under the Federal Tort Claims Act against the United States for damages resulting from the alleged wrongful death of their son who, while on active duty with the United States Coast Guard, fell overboard and drowned. The deceased was serving on the U. S. Coast Guard Cutter “Staten Island”, which was located off the coast of the State of Washington at the time he was drowned. On the defendant’s motion the district court dismissed the action holding that under Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, and Bankston v. United States, 480 F.2d 495 (C.A. 5, 1973), “[t]he Federal Tort Claims Act is not extended to servicemen when the death or injuries complained of arise out of or in the course of activity incident to their military service”.

Neither do we find merit in the appellants’ contention that even if no recovery could be had under the Federal Tort Claims Act that the claim was cognizable under the Suits in Admiralty Act, 46 U.S.C. § 742 et seq. (1970), and the Public Vessels Act, 46 U.S.C. § 781 et seq. (1970).

Affirmed.

      . 28 U.S.C. § 1346(b).


author: PER CURIAM;

text:
    R. L. LUCKETT, Plaintiff-Appellant, v. Joe SPIVY, etc., et al., Defendants, Marcus Gordon, etc., and Thomas D. Lee, etc., Defendants-Appellees.
    No. 73-3147
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 28, 1974.
    John L. Walker, Hermel Johnson, Jackson, Miss., Lewis Myers, Jr., Oxford, Miss., for plaintiff-appellant.
    A. F. Summer, Atty. Gen., William A. Allain, Asst. Atty. Gen., J. Marshall Lusk, Jr., P. Roger Googe, Jr., Sp. Asst. Attys. Gen., Jackson, Miss;, for defendants-appellees.
    Roy Noble Lee, Forest, Miss., for Derrick, Harrell, Spivy.
    Travis Buckley, Laurel, Miss., for Derrick, Western Sur.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

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

   PER CURIAM;

The entry of judgment in the within matter adjudicated the liabilities of fewer than all of the parties in and to the litigation. There has been no entry of final judgment by the district court upon an express determination that there is no just reason for delay as is required by Rule 54(b), F.R.Civ.Proce-dure. Hence, the judgment lacks the requisite finality to be appealable within the meaning of 28 U.S.C.A. § 1291. International Harvester Credit Corporation v. Belding, 5 Cir., 1972, 462 F.2d 624; Bailey v. Rowan Drilling Company, 5 Cir., 1971, 441 F.2d 57; Cook v. Ei-zenman, 5 Cir., 1963, 312 F.2d 134.

Dismissed.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BROTHERHOOD OF TEAMSTERS & AUTO TRUCK DRIVERS, LOCAL NO. 70, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, Respondent.
    No. 72-2927.
    United States Court of Appeals, Ninth Circuit.
    Dec. 5, 1973.

      Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, Washington, D. C., Roy 0. Hoffman, Director, Region 20, NLRB, San Francisco, Cal., for petitioner.
    Duane B. Beeson (argued), of Brun-dage, Neyhart, Grodin & Beeson, San Francisco, Cal., for respondent.
   OPINION

Before BROWNING and ELY, Circuit' Judges, and TAYLOR, District Judge.

PER CURIAM:

The petitioning Board’s Decision and Order is reported at 197 NLRB No. 24. Our review of the record convinces us that the Board’s critical factual determinations are supported by substantial evidence.

We need not decide whether an agreement to extend a collective bargaining contract beyond its stated term must be express to be enforceable. The trial examiner, whose findings the Board adopted, considered both verbal statements and conduct by the parties. He concluded that no contract of any kind existed during the relevant period.

The Union’s alternative contention, that the new contract was effective as soon as agreement was reached, was not raised before the trial examiner or the Board. We therefore decline to consider it.

Finally, we cannot disturb the Board’s broad remedy. It is supported by facts showing a proclivity by the Union to violate the same sections of the National Labor Relations Act involved here. NLRB v. Express Publishing Co., 312 U.S. 426, 61 S.Ct. 693, 85 L.Ed. 930 (1941); NLRB v. Brotherhood of Carpenters, 321 F.2d 126 (9th Cir. 1963).

Accordingly, the Board’s Order will be enforced.

       Honorable Fred M. Taylor, United States Patriot Judge, District of Idaho, sitting by designation.


text:
    Raymond N. THOMSEN, Plaintiff-Appellant, v. TERRACE NAVIGATION CORPORATION, Defendant-Appellee.
    No. 142, Docket 73-1424.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 8, 1974.
    Decided Jan. 10, 1974.

      Raymond N. Thomsen, appellant pro se.
    William P. Larsen, Jr., New York City (Boal, Doti & Larsen, Arthur M. Boal, New York City, of counsel), for appellee.
    Before KAUFMAN, Chief Judge, and SMITH and FEINBERG, Circuit Judges.
   PER CURIAM:

Plaintiff, a ship’s officer, sued shipowner for personal injuries. When the case was reached for trial plaintiff was at sea in the South Pacific and plaintiff’s counsel was informed by radio that plaintiff could not leave his ship, and that plaintiff would not agree to a $7500 settlement. Although plaintiff’s deposition was available, when the case was reached for trial, counsel marked the case settled on agreement by defendant to pay $8500. An order of discontinuance was entered.

On return to New York, plaintiff refused to accept the settlement and filed a motion to restore the ease to the calendar. Judge Gurfein, apparently believing that the earlier order was a “discontinuance with prejudice” reluctantly denied the motion. In this he was in error. Under the circumstances, the motion should properly have been treated as one to vacate a voluntary discontinuance, which might, and here should have been granted in the court’s inherent power. See 7 J. Moore, Federal Practice ¶ 66.20 at 242 (2d ed. 1973). At issue here is not the power of the court to control its calendars, but rather the authority of counsel to settle a case without his client’s consent. Cf. United States v. Beebe, 180 U.S. 343, 352, 21 S. Ct. 371, 45 L.Ed. 563 (1901). Here there were no such exigent circumstances as might have conferred such a power. Plaintiff’s deposition was available and other witnesses were on call. Trial was a possible choice, not only dismissal or settlement.

Reversed and remanded for setting aside of the order of discontinuance and restoration of the case to the calendar.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jimmy NOEL, Defendant-Appellant.
    No. 73-1763.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 12, 1973.
    Decided Jan. 10, 1974.

      Stanley Fink, Memphis, Tenn., on brief, for defendant-appellant.
    Thomas F. Turley, Jr., U. S. Atty., Robert F. Colvin, Asst. U. S. Atty., Western District of Tennessee, Memphis, Tenn., on brief, for plaintiff-appellee.
    Before EDWARDS, CELEBREZZE and MILLER, Circuit Judges.
   PER CURIAM.

This is an appeal from judgments and sentences entered on a three-count indictment after a jury trial in the United States District Court for the Western District of Tennessee, Western Division. Appellant had been charged with violations of 21 U.S.C. § 841 (1970), and 18 U.S.C. § 2 (1970), for aiding and abetting and for serving as a principal in the sale and distribution of heroin.

On review of the briefs and appendices and oral arguments, the court finds that the record contains ample evidence from which the jury verdicts of guilty could properly have been entered. Additionally, we find no reversible error in the court’s handling of voir dire of the prospective jurors, United States v. Car-abbia, 381 F.2d 133 (6th Cir.), cert, denied, 389 U.S. 1007, 88 S.Ct. 564, 19 L. Ed.2d 602 (1967), nor in the rulings on admission or exclusion of evidence.

As to this latter question pertaining to the offer of polygraph evidence, see United States v. Tremont, 351 F.2d 144 (6th Cir. 1965), cert, denied, 383 U.S. 944, 86 S.Ct. 1198, 16 L.Ed.2d 207 (1966).

The principal issue argued before the court concerned whether or not the first two counts of the indictment represented in actuality the commission of only one crime. In this regard the first and second counts charged the defendant with aiding and abetting in the sale of 104 grams of a substance containing heroin, and another count of aiding and abetting in the sale of .76 grams of a substance containing heroin, both on the same day and through the same agent.

The government’s testimony on this score, however, indicated that the sale arranged with appellant Noel pertained to two “spoons” of heroin for two separate individuals. The security restrictions of the seller called for delivery by another person at a specific time and place and to only one party. We regard these facts as being such as to require differing substantive proofs as to the two offenses, and that as a consequence, convictions on the two counts were valid.

In addition, we note that the District Judge administered the same sentence on all three counts, with the sentences being designated to. run concurrently.

No other issues of merit being presented, we affirm the judgment of the District Court.

      . See Barnes v. United States, 412 U.S. 837, 848 n. 16, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973).


text:
    Mageline Dargin DUHON, Individually and as Natural Tutrix of the Minor, Vanessa Marie Duhon, Plaintiff-Appellant, v. TEXACO, INC., et al., Defendants-Appellees, Aetna Casualty & Surety Company, Intervenor.
    No. 73-1969.
    United States Court of Appeals, Fifth Circuit.
    Feb. 25, 1974.
    Warren D. Rush, Charles H. Finley, Lafayette, La., for plaintiff-appellant.
    James J. Davidson, III, Lafayette, La., for Texaco & Travelers.
    David S. Foster, Lafayette, La., for intervenor.
    James Diaz, Lafayette, La., for defendants-appellees.
    Before GEWIN, THORNBERRY and INGRAHAM, Circuit Judges.
   PER CURIAM:

The district court did not err in granting summary judgment for Texaco, Inc. and Travelers, its liability insurance carrier, on the basis that Harold Duhon was the statutory employee of Texaco for the purposes of exclusive liability under the Louisiana Workmen’s Compensation statutes, La.Rev.Stat.Ann. ¶ 23:1032 and ¶ 23:1061.

There was no disputed issue of material fact as to the activity in which Duhon was engaged being so related to Texaco’s business as to be considered an essential part thereof. Du-hon’s activity was that of removing salt water produced during oil and gas production at a Texaco well site for the purpose of hauling the salt water to a disposal point. Neither do we find a disputed issue of material fact as to Texaco being a principal and Duhon’s employer being an independent contractor in connection with the activity as distinguished from a vendor-vendee relationship. See Leger v. Amerada Hess Corporation, 5 Cir. 1973, 479 F.2d 1250; Arnold v. Shell Oil Company, 5 Cir. 1969, 419 F.2d 43. Cf. Broussard v. Heebe’s Bakery, Inc., 1972, 263 La. 561, 268 So.2d 656.

The cases of Langlois v. Allied Chemical Corp., 1971, 258 La. 1067, 249 So.2d 133, and Weber v. Fidelity & Casualty Insurance Co., 1971, 259 La. 599, 250 So.2d 754, do not establish the general proposition that a statutory employer is liable without fault in tort to his statutory employee for injuries inflicted by a dangerous substance kept by the employer or by a product manufactured by the employer. Neither of those cases involved the statutory employer-employee relationship, as is present in this case. Where that relationship exists, the remedy under the Workmen’s Compensation statute is exclusive.

Reeves v. Louisiana and Arkansas Railway Co., La.1973, 282 So.2d 503, does not require a different result. In that case, Humble was found not to be the statutory employer of the injured workman, who was an employee of a subcontractor engaged in constructing a new petroleum coking unit on Humble’s premises. The Court found that Humble was not in the construction business, and that no employees of Humble customarily engaged in the work. By contrast, the brine being removed by Duhon was produced as a natural and necessary by-product of Texaco’s business. We find the facts of this case bring it directly under the rule of Leger v. Amera-da Hess Corp., 5 Cir. 1973, 479 F.2d 1250, where Amerada Hess was found to be the statutory employer of a workman injured while engaged in the removal and destruction of flammable spillage from an oil separator at Amerada’s work site.

Affirmed.


text:
    Amedeo Louis MARIORENZI and Grace Mary Mariorenzi, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 73-1341.
    United States Court of Appeals, First Circuit.
    Argued Jan. 7, 1974.
    Decided Jan. 10, 1974.

      Louis J. Vallone, Providence, R. I., for appellants.
    John G., Manning, Atty., Tax Div., Dept, of Justice, with whom Scott P. Crampton, Asst. Atty. Gen., Meyer Roth-wacks and Richard W. Perkins, Attys., Tax Div., Dept, of Justice, were on brief, for appellee.
    Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
   PER CURIAM.

The issue in this tax refund case is whether petitioners, whose investment portfolio includes tax-exempt bonds acquired shortly before and after the incurring of a home mortgage loan, are precluded from deducting the interest payments on that loan. After consideration of the briefs and argument of counsel, we affirm the decision of the Tax Court. T.C.Memo. 1973-141. Upon all the evidence the Tax Court was entitled to find, as it did, that the mortgage loan was made to assist petitioners in their investment program and, in particular, so that they could acquire more tax-exempt bonds as well as carry those earlier acquired. We agree with the Court that Section 265(2) of the Internal Revenue Code would not apply merely because a taxpayer incurred or continued indebtedness at the same time that he held tax-exempt securities. The question in every case is whether the facts establish a sufficiently direct relationship between the loan and the tax-exempts. A court may look to whether “the total impression given by the evidence leads to the conclusion that the taxpayer had the forbidden purpose.” Illinois Terminal R.R. v. United States, 375 F.2d 1016, 1022-1023, 179 Ct.Cl. 674 (1967). Here it could reasonably be inferred that the loan was taken out to free available cash resources for investment in tax-exempt securities. The loan, otherwise, might be thought to have made little economic sense. There was cash to pay the taxes and the return from the taxable savings accounts was seemingly insufficient, given petitioners’ bracket, to make it worthwhile to obtain a loan merely to keep them intact. We rely in other respects upon the reasoning of the Tax Court.

The decision of the Tax Court is affirmed.


text:
    Emmeline LEWIS, for herself, all teachers employed in the San Jacinto Junior College, Harris County, Texas, etc., Plaintiff-Appellant, v. Thomas M. SPENCER, Individually and in his official capacity as President of the San Jacinto Junior College, Harris County, Texas, etc., et al., Defendants-Appellees.
    No. 73-2992
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 20, 1974.

      Larry Watts, Houston, Tex., for plaintiff-appellant.
    B. Jeff Crane, Jr., Houston, Tex., for defendants-appellees.
    Before BELL, SIMPSON and MORGAN, 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.

   PER CURIAM:

Following the remand directed by our opinion in the former appeal of this matter, Lewis v. Spencer et al., 5 Cir. 1972, 468 F.2d 553, the district court held an evidentiary hearing and entered its opinion order finding adversely to the plaintiff-appellant’s contentions as to the factual issues directed to be fried by our remand. Those issues were (1) whether or not the action of the Board of Regents of San Jacinto Junior College in not renewing Ms. Lewis’ teaching contract was taken in retaliation for her exercise of First Amendment rights and her rights of freedom of association; and (2) whether the adoption of the policy without a recognition therein of plaintiff and her husband’s unique situation (viz, recently married and the only couple in the school to whom the policy was applicable) through such a device as a grandfather clause or prospective application, would make impermissible as applied an otherwise constitutionally valid policy.

The trial court’s hearing fully ventilated these issues and his findings of fact settled them, unless we determine that his findings were “clearly erroneous”. Rule 52(a), F.R.Civ.P.; United States v. National Association of Real Estate Boards, 1950, 339 U.S. 485, 495-496, 70 S.Ct. 711, 94 L.Ed. 1007. The task of demonstrating that the findings of a trial court are “clearly erroneous” is a heavy burden indeed. We are satisfied that the plaintiff-appellant has not met that burden on this appeal. Our view is rather that the trial court’s findings were required by the evidence presented, to the extent that we would seriously consider assigning a “clearly erroneous” label if contrary findings had been reached.

Affirmed.

      . Reported as Lewis v. Spencer et al., S.D. Texas, 1973, - F.Supp. - decided June 6, 1973.

      . Under a Board of Regents policy adopted in March of 1969 requiring that a husband and wife, both teachers, not teach in the same department.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Wenceslao TREVINO, Jr., Defendant-Appellant.
    No. 73-2634
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 27, 1973.
    As Modified on Denial of Rehearing Feb. 11, 1974. -
    J. G. Hornberger, Laredo, Tex., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Hous-tou, Tex., for plaintiff-appellee.
    Before BELL, GODBOLD and GEE, Circuit Judges.

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

   PER CURIAM:

Appellant is incarcerated under a guilty plea. The district court did not err in refusing to grant a-new trial on the ground of newly discovered evidence or in denying a motion for reduction of sentence.

This latter motion was based on the contention that the court considered incorrect hearsay reports in sentencing appellant. This contention rests on a statement made by the district court at the time sentence was imposed. However, appellant’s motion for reduction of sentence does not appear to be based on claims of either illegality or gross abuse of discretion, which are the only grounds on which this court can review the sentence. See Taylor v. United States, 5 Cir., 1972, 456 F.2d 1101. Further, even if by extremely generous construction we were to treat appellant’s motion as one to correct an illegal sentence, it is insufficient to come within the cases upon which his brief relies. Unlike Townsend v. Burke, 1948, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690, there is no showing of reliance on information acknowledged to be materially untrue; unlike United States v. Weston, 9 Cir., 1971, 448 F.2d 626, appellant has not directly and specifically denied the truth of hearsay information (rather, we have only his attorney’s statements that appellant denies previous heroin activities and that appellant does not have a criminal record; it is unclear whether the attorney is claiming no previous arrests or no previous convictions); and unlike United States v. Espinoza, 5 Cir., 1973, 481 F.2d 553, appellant has not requested an opportunity to rebut the information relied upon by the trial judge.

The district court judgment therefore is

Affirmed.

      . Without deciding the issue, we also note that since appellant’s sentence did not exceed the statutory maximum, it possibly is not in any case “illegal” within the terms of Rule 35. See United States v. Morgan, 1954, 346 U.S. 502, 505-506, 74 S.Ct. 247, 98 L.Ed. 248, 253.


text:
    UNITED STATES of America ex rel. Willie YOUNG, Calvin Thomas and Harold Simon, Petitioners-Appellants, v. L. L. WAINWRIGHT, Director, Division of Corrections, State of Florida, et al., Respondents-Appellees.
    No. 73-2065
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 20, 1974.
    Francis G. Weller, New Orleans, La. (Court-appointed), for petitioners-appellants.
    A. S. Johnston, Asst. Atty. Gen., Tallahassee, Fla., for respondents-appellees.
    Before BELL, GODBOLD and GEE, Circuit Judges.

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

   PER CURIAM:

Willie Young, Calvin Thomas and Harold Simon appeal from the denial of habeas corpus by the district court. The sole issue decided below was the vol-untariness of the confessions which led to their 1960 Florida convictions for first-degree murder. In an earlier proceeding, we held that the delay in bringing these petitioners before a committing magistrate did not render their convictions invalid, specifically reserving the issue of the voluntariness of their confessions under the “totality of the circumstances” standard. Young v. Wainwright, 326 F.2d 255 (5th Cir., 1964). The prisoners pursued their state remedies to exhaustion after our remand. Young v. Florida, 213 So.2d 462 (D.C.A.Fla., 1968); Young v. Florida, 226 So.2d 416 (D.C.A.Fla., 1969). Failing in state court, they again came to federal court. The district court denied their petition after holding an evi-dentiary hearing, considering the record from all the previous proceedings and concluding that their confessions were voluntary.

The pertinent facts of this case are set out in the various opinions cited above. We have considered the voluminous records generated by the numerous opportunities for review of this question, and we conclude that the district court’s conclusion was not clearly erroneous. Corpus v. Beto, 469 F.2d 953 (5th Cir., 1972); Tuttle v. Decker, 386 F.2d 814 (5th Cir., 1967); Lamarr v. Wainwright, 423 F.2d 1104 (5th Cir., 1970); Smith v. Heard, 315 F.2d 692 (5th Cir., 1963); F.R.Civ.P. 52(a); see also Calloway v. Wainwright, 409 F.2d 59 (5th Cir., 1969), cert. den. 395 U.S. 909, 89 S.Ct. 1752, 23 L.Ed.2d 222.

Petitioners offer two additional issues for review, neither of which was decided below: (1) the adequacy of the jury instructions regarding the voluntariness of their confessions; and (2) whether the original trial judge predetermined the issue of voluntariness before presenting it to the jury.

Although the court did not decide it, we find indications in the record that petitioners may have properly preserved and presented the jury instruction question to the district court. We find no indication that petitioners preserved or presented the “predetermination of vol-untariness by the trial judge” issue; however, we do not decide that question (whether the issue was properly preserved and presented) but leave it open for the district court.

We remand to the district court for a determination whether these two issues were properly before the court and, if so, for appropriate disposition of them.

Affirmed in part; remanded in part.

      . See Young v. Florida, 140 So.2d 97 (Fla. 1962).


text:
    NATIONAL LAWYERS GUILD, UNIVERSITY OF TEXAS CHAPTER, et al., Plainitiffs-Appellants, v. BOARD OF REGENTS OF the UNIVERSITY OF TEXAS SYSTEM et al., Defendants-Appellees.
    No. 73-1623.
    United States Court of Appeals, Fifth Circuit.
    March 6, 1974.
    Rehearing and Rehearing En Banc Denied April 4, 1974.

      James M. Simons, Cameron M. Cunningham, John Howard, Austin, Tex., for plaintiffs-appellants.
    John L. Hill, Atty. Gen. of Texas, Roland Allen, W. 0. Shultz II, Asst. Attys. Gen., Austin, Tex., for defendants-appel-lees.
    Before BROWN, Chief Judge, and GEWIN and GOLDBERG, Circuit Judges.
   PER CURIAM:

This suit was filed in the District Court to obtain a mandatory injunction requiring the University officials to permit a large meeting of approximately one thousand persons of the National Lawyers Guild, a non-campus group, to be held at the student union February 16-19, 1973. Presumably, it was also to test the constitutional validity of certain Board of Regents’ rules requiring co-sponsorship by an Assistant Dean of the appropriate college (here, the College of Law) for a non-campus group. No such co-sponsorship was sought or denied.

The time for the meeting has long since gone by and there is no indication that there now is, or will be, a real case or controversy as to which these plaintiffs have adequate standing to challenge the co-sponsorship requirement or the need for injunctive relief. The case as posed is moot. The judgment of the District Court is therefore vacated and the case remanded to dismiss as moot so the case will not spawn any precedential consequences. United States v. Mun-singwear, Inc., 1950, 340 U.S. 36, 71 S. Ct. 104, 95 L.Ed. 36; St. Pierre v. United States, 1943, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199; Troy State University v. Dickey, 5 Cir., 1968, 402 F.2d 515, 516-517; New Left Educ. Project v. Board of Regents, 5 Cir., 1973, 472 F.2d 218, 221; Lebus, Regional Director v. Seafarers’ Int’l Union, 5 Cir., 1968, 398 F.2d 281, 283; United States v. West Gulf Maritime Ass’n., 5 Cir., 1972, 460 F.2d 1231. And see especially our very recent decision United States Servicemen’s Fund v. Killeen Independent School District, 5 Cir., 1974, 693 F.2d 489.


author:
CHRISTENSEN, Senior District Judge.
      PELL, Circuit Judge

text:
    Dean P. EPPERSON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 72-2015.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 17, 1973.
    Decided Dec. 14, 1973.

      Bruce C. O’Neill, Milwaukee, Wis., for plaintiff-appellant.
    Scott P. Crampton, Asst. Atty. Gen., Joseph M. McManus, Atty., Tax Div., U. S. Dept, of Justice, Washington, D. C., David J. Cannon, U. S. Atty., Milwaukee, Wis., for defendant-appellee.
    Before PELL and STEVENS, Circuit Judges, and CHRISTENSEN, Senior District Judge.

       Senior District Judge of the District of Utah sitting by designation.

   CHRISTENSEN, Senior District Judge.

This is an action by the plaintiff-appellant for refund of federal income taxes for the taxable years 1962 through 1965 in the amount of $95,350.83, with interest. A district court jury returned a verdict in favor of the United States on the determinative issues submitted to it, and judgment on the verdict against the taxpayer was duly entered. The sufficiency of the evidence to support the verdict is unquestioned.

This appeal brings before us the contention that the trial court committed prejudicial errors in permitting the government to change its theory of defense shortly prior to the trial or in denying plaintiff’s motion for a continuance in light of the new theory, in sustaining defendant’s objections to “expert” testimony that plaintiff’s service corporation “more nearly resembled a corporation”, in refusing plaintiff’s proposed instruction that his intent to repay loans could be inferred from the advice of his financial advisor, and in failing to take corrective action against references by government counsel to plaintiff’s wealth during argument to the j ury.

Finally rebuffed by such rulings as United States v. Empey, 406 F.2d 157 (10th Cir. 1969), the government prior to the trial abandoned its theory that for tax purposes plaintiff’s professional service organization could not be considered a “corporation”. It supplemented its existing alternate contention that the income in question was dividend income to the plaintiff, and not loans as asserted by the taxpayer, by the claim that plaintiff, and not his corporation, had actually earned the income.

The case was at issue on general denials and there had been no pretrial conference. The trial court declined to require amendment to the government’s answer expressly setting out the new theory/ We find no error here. An action to recover a tax erroneously paid is in the nature of a common-law action for money had and received, and it is open to the defendant to show any state of facts which according to those standards would deny the right of recovery. Stone v. White, 301 U.S. 532, 57 S.Ct. 851, 81 L.Ed. 1265 (1937). Ryan v. Alexander, 118 F.2d 744 (10th Cir. 1941); United States v. Pfister, 205 F. 2d 538 (8th Cir. 1953). Cf. Schweitzer v. Commissioner of Internal Revenue, 75 F.2d 702 (7th Cir. 1935).

Appellant’s argument that he was prejudiced by the denial of his request for a continuance is not convincing. With more than two week’s advance notice of this supplemental contention, he said he needed more time to prepare his proof, but the facts relating to the pre-existing issue of loans vs. dividends were essentially the same as those relied upon by the government to support its true-earner-of-income theory. Appellant’s additional complaint that he was deprived of sufficient time to pursue negotiations for settlement in view of the government’s new and stronger approach may be disposed of by its mere statement, as can his further contention that he needed more time to prepare jury instructions.

No prejudicial error is perceived in the court’s exclusion of expert testimony offered by the plaintiff, since this related to an issue already abandoned by the government — whether the service corporation more nearly resembled a corporation than a sole proprietorship. Nor did the court err in failing to give appellant’s requested instruction singling out for comment some advice plaintiff received from his financial advisor about not keeping records of claimed loans. The testimony of this advice already was before the jury. A reading of the court’s instructions on the subject is convincing that the controlling question of plaintiff’s intent was appropriately and fairly submitted. Moreover, any possible error in the omission from the instructions of a reference to the advice received by appellant was not prejudicial in view of the jury’s verdict that the appellant, and not the corporation, was the true earner of the income.

But we' are more than a little concerned about the immoderate closing argument of counsel for the government. He said, among other things: “We see no reason why a man who has as much money as Dr. Epperson, who has more money than he can probably ever spend, is entitled to ignore all of the rules that everybody else has to live by . We say he is not entitled to a refund of taxes because he hasn’t paid his fair share.” Again: “Let’s make this doctor pay the kind of income taxes he ought to pay.” And later: “I am sick and tired and I know you are at having to pay taxes at a rate when these rich people like to construe and set up all these transactions to save taxes so they don’t have to pay any. I know that you are tired of — ”.

No objection was interposed to the first two comments. Appellant’s objection to the latter was, “I have to object to that, as personal objections.” The’ court recognized it as “a little personal”, but as “his argument”, and passed the matter by. An appropriate admonition to the jury at least would have been in order. No request for any such admonition, nor any motion for a mistrial, was made by appellant’s counsel. We believe the quoted portions were in bad taste if no reprehensible. But under these circumstances and in the context of the entire argument we have concluded that there was no prejudicial error committed by the trial court with reference to them, and that the defendant was not denied a fair trial in view of the record as a whole. Cf. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 237-240, 60 S.Ct. 811, 84 L.Ed. 1129 (1940).

Aifirmed.

PELL, Circuit Judge

(dissenting):

I share the concern of the majority at the challenged portions of the closing argument of counsel for the Government but rather than finding the remarks immoderate they strike me as so inexcusable and so obviously prejudicial in the impact they were certain to have upon the jury as to require a reversal on this ground alone. Accordingly, I respectfully dissent.

This is not a case between two private lawyers who each have gotten “carried away” in the heat of battle; instead, we are concerned with the remarks of an attorney clothed with the majesty of the Government of the United States of America. I have difficulty reading these remarks as other than a deliberate and calculated effort to insure that if the merits were not sufficient to win the case, there would be a back-up of passion and prejudice.

The majority, of course, recognize the impropriety, and perhaps little attention needs to be given to that phase of the appeal. Nevertheless, several aspects of the impropriety should be noted. The wealth of the plaintiff, irrespective of whether it was reflected in the evidence, could not conceivably have had any relevant bearing on whether he was entitled to utilize available tax procedures. The suggestion that he was not paying the income taxes he should have been paying is at least suggestive of tax evasion, criminal activity, as opposed to tax avoidance, a perfectly proper objective. The jurors’ personal participation in the payment of taxes was brought into play with at least the implicit suggestion that the jurors would have less taxes to pay if people like the plaintiff paid their fair share. The jury was, in short, being invited to rewrite the Internal Revenue Code to require Dr. Epperson to pay taxes on what “we” (presumably referring to the Government) say is his fair share, not what the Code said he had to pay.

The matter of whether this improper conduct should be the cause of reversal, however, "becomes a close question because of the failure of counsel for the plaintiff to make any kind of a reasonable record. The result reached by the majority has the substantial backing of many cases to the effect that before a party is entitled to relief from a verdict allegedly obtained by improper argument, he must ordinarily show that he brought the matter to the attention of the trial court by a proper objection at the time the offense was committed. Annot., 32 A.L.R.2d 9, 86 (1953).

The only objection made was weak, belated, and imprecise. Apparently no effort was made to follow up either by way of further objection, motion for mistrial, or even a request for an admonitory instruction. On the other hand, it must be noted that the learned trial judge did apparently indicate when the objection was made that the argument was not improper. Counsel is in a precarious position when improper argument is made. If immediate objection is made, the interruption of the argument may only serve to emphasize the improper comments in the minds of the jury. An objection out of the hearing of the jury, unless it secures a mistrial, is subject to the same difficulty. An admonitory instruction should be as broad as the error, People v. Fielding, 158 N.Y. 542, 53 N.E. 497, 500 (1899), and this again directs the attention of the jury to the remarks, with there being uncertainty as to whether the instruction will cure the effect of the misconduct. See Washington Annapolis Hotel Co. v. Riddle, 83 U.S.App.D.C. 288, 171 F.2d 732, 740 (1948).

Of greatest significance, however, in tipping the scales in favor of a reversal here is the fact that an official representative of the Government was in effect saying that tax avoidance was egregious conduct which should be penalized for its own sake. The reference to the Doctor paying only eight percent taxes and “I guarantee you, every one of you, pay taxes far in excess of eight percent” could not help but inflame the jury against the cause being litigated because “if he doesn’t [pay his fair share], somebody else is going to have to do it for him.”

While generally appellate courts are reluctant, and properly so, to reverse a judgment where the parties have not fully and adequately presented the claimed basis for reversal to the trial court, nevertheless, there are those cases where “refusal to take such action appears . . . inconsistent with substantial justice.” Rule 61, Fed.R.Civ.P.

The present ease, on balance, is one which appears to me to call for such action on the basis outlined in N.Y. Central Railroad Co. v. Johnson, 279 U.S. 310, 318, 49 S.Ct. 300, 303, 73 L.Ed. 706 (1929):

“The failure of the trial judge to sustain petitioner’s objection or otherwise to make certain that the jury would disregard the appeal could only have left them with the impression that they might properly be influenced by it in rendering their verdict, and thus its prejudicial effect was enhanced. See Hall v. United States, 150 U.S. 76, 81 [14 S.Ct. 22, 37 L.Ed. 1003]; Graves v. United States, 150 U.S. 118, 121 [14 S.Ct. 210, 37 L.Ed. 1021]; Wilson v. United States, 149 U.S. 60, 68 [13 S.Ct. 765, 37 L.Ed. 650]. That the quoted remarks of respondents’ counsel so plainly tended to excite prejudice as to be ground for reversal, is, we think, not open to argument. The judgments must be reversed, with instructions to grant a new trial.
“Respondents urge that the objections were not sufficiently specific to justify a reversal. But a trial in court is never, as respondents in their brief argue this one was, ‘purely a private controversy . . . of no importance to the public.’ The state, whose interest it is the duty of court and counsel alike to uphold, is concerned that every litigation be fairly and impartially conducted and that verdicts of juries be rendered only on the issues made by the pleadings and the evidence. The public interest requires that the court of its own motion, as is its power and duty, protect suitors in their right to a verdict, uninfluenced by the appeals of counsel to passion or prejudice. See Union Pac. R. Co. v. Field [8 Cir.], 137 F. 14, 15; Brown v. Swineford, 44 Wis. 282, 293. Where such paramount considerations are involved, the failure of counsel to particularize an exception will not preclude this court from correcting the error. Brasfield v. United States, 272 U.S. 448, 450 [47 S.Ct. 135, 71 L. Ed. 345].”

For the reasons set forth herein, I would reverse and remand for a new trial.


author: FIELD, Circuit Judge:

text:
    Darrell L. SECHREST and Evelyn F. Sechrest, Appellees, v. UNITED STATES of America, Appellant.
    No. 73-1292.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 5, 1973.
    Decided Jan. 14, 1974.

      Elmer J. Kelsey, Atty., Tax Div., U. S. Dept, of Justice (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Dennis M. Donohue, Attys., Tax Div., U. S. Dept, of Justice, and William L. Osteen, U. S. Atty., on brief), for appellant.
    William W. Jordan, Greensboro, N. C. (Jordan, Wright, Nichols, Caffrey & Hill, Greensboro, N. C., on brief), for appellees.
    Before BUTZNER, FIELD and WIDENER, Circuit Judges.
   FIELD, Circuit Judge:

The Government appeals from a decision of the district court that a lump sum payment of $9,000 made by Darrell L. Sechrest (Darrell), one of the taxpayers, to his former wife was a “periodic” payment within the meaning of Section 71(a) of the Internal Revenue Code of 1954 (26 U.S.C.) and was therefore deductible under Section 215 of the Code.

The facts, fully stipulated, may be summarized as follows: Darrell and Barbara Sechrest (Barbara) were married in 1945 and separated in 1961., On April 2, 1965, they executed a contract and deed of separation, and when they were divorced later that year the instrument was incorporated into the divorce decree. Under paragraph (4) (a) of the contract Darrell agreed to make monthly payments to Barbara for the support and maintenance of her and their two minor children. The monthly payments were to be determined upon a sliding scale, ranging from a possible $250 a month to $1375 a month, based upon Darrell’s annual adjusted gross income as defined and ascertained for the purposes of his federal income tax for any one year.

Paragraph (4)(g) of the agreement provided in part as follows:

In the event the parties hereto shall hereafter be divorced and the party of the second part [Barbara] shall remarry, then upon such remarriage the party of the first part [Darrell] shall pay to the party of the second part within thirty days after such remarriage a lump sum in an amount equivalent to twelve times the monthly payment due and payable by the party of the first part to the party of the second part for the month preceding the month in which the party of the second part remarries.

In 1967 Barbara remarried and at that time Darrell was making payments to her in the amount of $750 per month. Pursuant to the terms of the contract, in August of 1967 Darrell paid Barbara the sum of $9,000 which was twelve times the amount of the payment due in the month immediately preceding the month of Barbara’s remarriage. In the 1967 income tax return filed by the taxpayers, the $9,000 was included as a deduction for alimony paid to Barbara during the taxable year. The Commissioner disallowed the deduction and this litigation followed.

Section 71(a)(1) of the 1954 Code provides in pertinent part that if a wife is divorced from her husband under a decree of divorce, her gross income includes periodic payments received in discharge of a legal obligation which, because of the marital or family relationship, is imposed upon the husband under the decree or written agreement. The correlative Section 215 allows a deduction to the husband for those payments which are includible in the wife’s income under Section 71. These provisions were first enacted by Section 120 of the Revenue Act of 1942 and appeared in the 1939 Code as Sections 22(k) and 23 (u), respectively.

In Commissioner of Internal Revenue v. Senter, 242 F.2d 400 (4 Cir. 1957), this court had occasion to consider a similar question under the corresponding provisions of the 1939 Code, and we think this case is controlled by that decision. In Senter the husband assigned to his wife for the support of herself and minor son one-third of the income that he was entitled to receive from the estates of his two grandparents. The agreement further provided, as here, that if the wife obtained a divorce and then remarried the periodic payments of income from the estates would cease and in such event the husband would pay to her a cash sum equal to what she would have been entitled to receive under the agreement for a three year period. The husband contended that the cash sum paid to his former wife upon her remarriage was a periodic support payment for which he was entitled to a deduction. Rejecting this argument, the court stated:

“The purpose of 22(k) and 23(u) was to provide for a division of the taxa-bility of income where the income itself was divided between husband and wife pursuant to a divorce or separation agreement, not to tax or to grant deductions with respect to divisions or transfers of property made in final settlement of marital controversies.” 242 F.2d at 403.

The opinion cited with approval the language of the Tax Court in Ralph Norton, 16 T.C. 1216, 1218, aff’d 192 F.2d 960 (8 Cir. 1951):

“The word ‘periodic’ is to be taken in its ordinary meaning and so considered excludes a payment not to be made at fixed intervals but in a lump sum, and the fact that the statute made particular reference to periodic payments is some reason to believe that another kind of payment, that is an initial payment in some larger and undivided amount was considered in a different category. We may, we think, take judicial notice that divorce settlements or decrees not uncommonly provide some considerable amount payable immediately to the wife, in addition to regular or recurring payments for current support thereafter. We consider it reasonable to believe that Congress had such a practice in mind and did not intend to make the wife taxable upon the lump sum, original, or principal payments to be made here, but that it was something in the nature of division of capital, rather than from the husband’s income so as to be deductible by him. At any rate, we think Congress failed to provide that such a payment was ‘periodic’ and that, therefore, it is not within the statute.” 242 F.2d at 403.

The court further found that whether the lump sum was an initial payment or was made upon the termination of the periodic payments was immaterial.

The decision in Senter accords with the consistent holding of the courts that a lump sum payment does not qualify as periodic even though the motivation for the payment is more akin to the discharge of an alimony responsibility rather than a property obligation. Lundgaard v. United States, 346 F.Supp. 1351, 1353 (D.Kan.1972). As stated in Lounsbury v. C. I. R., 321 F.2d 925, 926 (9 Cir. 1963), “the controlling question here is not the source of the husband’s duty to make provision. We may assume, arguendo, that the payment was in discharge of a marital (as distinguished from property) obligation. The controlling question to us is the manner in which that duty was met.”

The district court distinguished Sen-ter upon the basis that the payment there involved “the division of two estates” while the payment in the present case was “clearly a part of the plaintiff’s obligation arising out of his marital status to support Barbara and is so clearly tied to the monthly periodic payments that it cannot be considered as a separate and distinct obligation * * -»/> we fjn(j this attempted distinction lacking in validity. The lump sum payment in Senter did not involve a division of the two grandparents’ estates, but rather was a cash settlement computed on the basis of the periodic payments which had been made from the estates to the wife through the partial assignment of income to her. In this respect it was not at all dissimilar from the present case where the amount of the monthly payments was used as a computative factor in arriving at the lump sum payment under the agreement. The only factual variance between Sen-ter and the present case is that in Sen-ter the periodic payments to the wife were computed with reference to the husband’s income as derived from the estates, while here such payments were computed with reference to the husband’s total adjusted gross income. In the context of the issue before us this is a distinction of no consequence whatever.

Since we conclude that the lump sum payment herein did not qualify as a “periodic payment” within the meaning of Section 71(a), the judgment of the district court is reversed and the case remanded with instructions to enter judgment in favor of the Government.

Reversed and remanded.


author:
PHILLIPS, Chief Judge.
      CELEBREZZE, Circuit Judge

text:
    OHIO HOIST MANUFACTURING CO., Plaintiff-Appellant, v. Vincent LiROCCHI, d/b/a Cable Climber Sales Co., et al., Defendants-Appellees.
    No. 73-1212.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 9, 1973.
    Decided Jan. 3, 1974.

      Sidney B. Jacoby, Shaker Heights, Ohio, for plaintiff-appellant.
    John M. Glenn, Buckingham, Doolittle & Burroughs, Akron, Ohio, for defendants-appellees.
    Before PHILLIPS, Chief Judge, and CELEBREZZE and MILLER, Circuit Judges.
   PHILLIPS, Chief Judge.

This is an appeal from an order of the District Court dismissing for lack of subject matter jurisdiction appellant’s damage action based on the theory of abuse of process.

Appellee LiRocchi obtained a money judgment against appellant in the United States District Court for the Central District of California. It is averred that execution of that judgment was stayed after appellant filed a motion for a new trial, but that, nevertheless, appel-lees presented to the United States District Court for the Northern District of Ohio for registration a document obtained from the California District Court entitled “Certification of Judgment for Registration in Another District” without revealing that execution of the California judgment had been stayed pending the motion for a new trial. The Ohio District Court subsequently issued a writ to appellees whereby execution was levied upon a bank account and other properties of appellant located in Ohio.

Appellant then instituted the instant abuse of process action with jurisdiction alleged on the basis of diversity of citizenship. 28 U.S.C. § 1332(a). The District Judge ruled that there was not complete diversity among all the parties inasmuch as appellant was a corporate citizen of Ohio and one party defendant, namely Lombardi, was also a citizen of Ohio. The District Judge consequently granted appellant leave to show cause why its complaint should not be dismissed for lack of jurisdiction.

Thereafter appellant abandoned its allegation that jurisdiction was predicated on diversity of citizenship and instead asserted jurisdiction on the basis that a federal question existed. 28 U.S.C. § 1331(a). The specific federal question alleged was a purported violation by ap-pellees of 28 U.S.C. § 1963, which provides in pertinent part as follows:

“A judgment in an action for the recovery of money or property now or hereafter entered in any district court which has become final by appeal or expiration of time for appeal may be registered in any other district by filing therein a certified copy of such judgment.”

The District Court, however, dismissed the case, finding that this alleged claim was “so insubstantial that subject matter jurisdiction is not present.”

Appellant contends that appellees’ violation of 28 U.S.C. § 1963 gave rise to a civil remedy under that statute. Although there is no express language in the statute conferring such a remedy, appellant asserts that a breach of a statutory duty gives rise to a private right of action on behalf of the injured person for whose benefit the statute was passed. Allen v. State Board of Elections, 393 U.S. 544, 557, 89 S.Ct. 817, 22 L.Ed. 2d 1 (1969). Further, in Stanford v. Utley, 341 F.2d 265 (8th Cir. 1965), then Circuit Judge Harry A. Blackmun, in holding that timely registration opens the way to enforcement procedure in the registration court, concluded that “§ 1963 is more than ‘ministerial’ and is more than a mere procedural device for the collection of the foreign judgment.” 341 F.2d at 268.

A brief summary of the legislative history of § 1963 is made an appendix to this opinion.

This statute has been held to have been adopted to protect both judgment creditors and judgment debtors from the additional cost and harassment of further litigation which otherwise would be incident to an action on the judgment in a foreign district. See, Stanford v. Utley, supra, 341 F.2d at 270, and authorities cited therein. One means of reducing the cost and harassment of further litigation is to permit the judgment creditor to enforce his registered judgment. In Gullet v. Gullet, 188 F.2d 719, 720 (5th Cir. 1951), the court held that the registration in a Florida District Court of a judgment of the District Court of the District of Columbia, pursuant to 28 U.S.C. § 1963, “has the same effect as a judgment of the Florida district court” and therefore “the judgment creditor is entitled to proceed by garnishment to enforce, payment.”

Under these authorities, the California judgment, once registered in the Northern District of Ohio, had the same effect as a judgment of the Northern District of Ohio. The United States District Court for the Northern District of Ohio has jurisdiction to enforce the judgment, and, as the record here indicates, has taken steps to do so.

The registration in Ohio of the judgment obtained in the California District Court was, in truth, according to the allegations of the amended complaint, an egregious violation of the terms of the statute. Not only had a motion for a new trial been filed in the California District Court after the judgment was rendered, but, in addition, the enforcement of the judgment had actually been stayed by the California court. These facts, as the amended complaint alleged, were known by the defendants-appellees at the time they accomplished the registration of the judgment in the Ohio District Court. The amended complaint further alleges that execution was issued on the registered judgment and that a levy was made upon certain bank accounts and properties of the plaintiff-appellant in Lisbon, Ohio, “seriously interfering with the conduct of plaintiff’s business.” The judgment was registered in the Ohio court as “Civil Action No. C 71-761.” The amended complaint prays not only for money damages, but also that the registration of the said judgment in the Ohio court “be quashed and expunged from the records of this court.”

Although the District Court by its order of October 4, 1972, after a pre-trial conference, vacated the judgment registered in case No. C 71-761, as requested by the plaintiff-appellant, it nevertheless dismissed the amended complaint by.its order of December 22, 1972, upon the ground that a civil remedy could not be inferred from a violation of the registration statute (§ 1963). The dismissal, as stated, was “for want of subject matter jurisdiction.”

While we decline to reach the question of whether a violation of § 1963 gives rise to a civil remedy for damages, it seems clear that the registering court has authority, necessarily implied from § 1963 and as a matter of inherent jurisdiction, where a foreign judgment has been registered in knowing violation of the terms of the registration statute, to grant relief (a) by annulling or vacating the registered judgment (as the court below has actually done); (b) by vacating any process or executions which may have issued upon the registered judgment; and (c) by restoring to the aggrieved parties any assets or properties which may have been seized or levied upon. These appear to be the minimum steps which a District Court could take to remedy a fraud which had been practiced upon it, and also to remedy a violation of the registration statute itself. Moreover, since it necessarily has implied federal authority to accomplish these results, the registering court also would have pendent jurisdiction of a non-federal claim for abuse of process where the aggrieved party has suffered damage or loss as a result of the wrongful registration. United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933).

In Hum it was held that state law claims are appropriate for federal court determination if they form a separate but parallel ground for relief also sought in a substantial claim based on federal law. In the Gibbs case the Supreme Court stated that “if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.” 383 U.S. at 725, 86 S.Ct. at 1138.

It is true that the Court pointed out in Gibbs that the justification for applying the doctrine of pendent jurisdiction “lies in considerations of judicial economy, convenience and fairness to litigants . . . .” 383 U.S. at 726, 86 S.Ct. at 1139.

Applying these principles to the present case, we are of the opinion that the jurisdiction of the registering court under § 1963 to take the remedial steps indicated above, where a foreign judgment has been registered in clear violation of the statute, presents a substantial federal question which it has the power to decide along with a closely related non-federal claim. It is clear to us that while the pendent jurisdiction doctrine may ultimately rest upon the exercise of discretion, the considerations of judicial economy, convenience and fairness to litigants referred to in Gibbs, dictate that the district court in the exercise of a sound judicial discretion should, on the facts presented here, entertain both the federal and non-federal claims.

It follows that the district court should proceed to adjudicate the appellant’s non-federal claims for damages proximately resulting from the wrongfully entered judgment.

The District Court’s dismissal of the appellant’s action for want of subject matter jurisdiction is reversed and the case is remanded for disposition of appellant’s claim on its merits.

In view of the foregoing disposition of this appeal, we need not reach the issue of whether appellant should be permitted under 28 U.S.C. § 1653 to amend its complaint to strike the non-diverse defendant as a party and thus proceed on the jurisdictional basis of diversity of citizenship.

Reversed and remanded.

APPENDIX

Section 1963 follows the recommendations of the Supreme Court’s Advisory Committee on Fed.R.Civ.P. (1937). The Committee proposed Rule 77, “Registration of Judgments in Other District Courts,” but the rule was never promulgated by the Supreme Court as a rule of procedure. Instead Congress enacted § 1963, which contained language similar to that in proposed Rule 77, as a part of the Judicial Code of 1948.

Except for a statement by Professor James William Moore of Yale Law School, there is no legislative history specifically on § 1963. On March 7, 1947, Professor Moore made the following statement before a subcommittee of the Committee on the Judiciary of the House of Representatives:

“§ 1963 provides for the registration of Federal judgments for the recovery of money or property in any other Federal district court. Provision for the registration of judgments in other courts is possible in some 46 British jurisdictions, and has been supported as to all judgments, State as well as Federal, by the American Bar Association, which has advocated congressional legislation in this matter since 1927.
“The Supreme Court’s advisory committee recommended a rule for the recognition of Federal judgments in 1937, but the Supreme Court did not promulgate the rule. While this may or may not be within the competence of the rule-making power, it is certainly within the competence of Congress at this time to provide for the registration of Federal judgments.” Hearings on H.B. 3214 Before a Subcommittee of the House Committee on the Judiciary, 80th Cong., 1st Sess., ser. 2, at 28 (1947).

The following is the text of proposed Rule 77 as contained in the final report of the Advisory Committee to the Supreme Court:

“Rule 77. Registration of Judgments in other District Courts. A judgment entered in any district court and which has become final through expiration of the time for appeal or by mandate on appeal may be registered in any other district court by filing therein an authenticated copy of the judgment. When so registered the judgment shall have the same effect and like proceedings for its enforcement may be taken thereon in the court in which it is registered as if the judgment had been originally entered by that court. If in the court in which the judgment was originally entered, the judgment has been satisfied in whole or in part or if an order has been made modifying or vacating it or affecting or suspending its operation, the party procuring the registration shall and any other party may file authenticated copies of the satisfaction or order with the court in which the judgment is registered. This rule shall not be construed to limit the effect of the Act of February 20, 1905, c. 592, § 20 (33 Stat. 729), as amended, U.S.C., Title 15, § 100; or the Act of March 4, 1909, c. 320, §§36 and 37 (35 Stat. 1084), U.S.C., Title 17, §§ 36 and 37; or § 56 of the Judicial Code, U.S.C., Title 28, § 117; or to authorize the registration elsewhere of an order or a judgment rendered in a divorce action in the District of Columbia.”

The note of the Advisory Committee on proposed Rule 77 was as follows:

“Compare the provisions of U.S.C., Title 28, § 252 (Judgments for set-off or counterclaims) for the registration of judgments of the Court of Claims in favor of the United States. ‘Any transcript of such judgment, filed in the clerk’s office of any district court, shall be entered upon the records thereof, and shall thereby become and be a judgment of such court and be enforced as other judgments in such court are enforced.’
“Provision for the registration of judgments in other courts is possible in some 46 British jurisdictions; and has been supported as to all judgments, state as well as federal, by the American Bar Association, which has advocated congressional legislation in this matter since 1927. See 52 A.B. A.Rep. 77-85, 292-310 (1927), and draft of an act at page 319; W. W. Cook, The Powers of Congress Under the Full Faith and Credit Clause (1919), 28 Yale L.J. 421-449; Ynte-ma, The Enforcement of Foreign Judgments in Anglo-American Law (1935), 33 Mich.L.Rev. 1128, 1150 et seq.; G. W. C. Ross, Full Faith and Credit in a Federal System (1936), 20 Minn.L.Rev. 140-190.”

The Supreme Court did not disclose why it did not adopt proposed Rule 77, but it has been suggested that the reason was apprehension that the rule might have affected substantive rights. See 2 Moore’s Federal Practice para. 1.-04 [2]; 1 Barron & Holtzoff, Federal Practice and Procedure (Wright Revision), § 5, pp. 20-21.

CELEBREZZE, Circuit Judge

(dissenting).

I agree with my brethren that if Appellant can sustain its allegations, it deserves a forum in which to vindicate its interests. I disagree with the majority over its means of accomplishing this. Because I believe that Appellant raises neither a substantial federal question nor a properly pendent state claim, I would allow it to amend its complaint to provide diversity jurisdiction, by striking the non-diverse party, or would remit Appellant to its remedies in Ohio state courts.

The majority seeks to avoid the basic issue raised on this appeal by remitting the case to the District Court as a pendent state law claim. The issue of pendent jurisdiction was not considered by the District Court, nor did Appellant request such action, nor have Appellees had an opportunity to argue against its application. The only issue raised before this Court on appeal is whether an abuse of the 28 U.S.C. § 1963 process for registering foreign federal court judgments gives rise to an independent federal private remedy. If it does, the District Court should apply federal common law to decide the issue under federal question jurisdiction. If it does not and if the District Court has diversity or pendent jurisdiction over the tort claim, the District Court must apply Ohio law. Thus, not only has the majority reached an improper result, in my opinion, but it has given the least possible aid to the District Court in deciding what law should apply.

The majority asserts that the Ohio District Court which registered the California judgment “has authority, necessarily implied from § 1963 and as a matter of inherent jurisdiction” to annul the registered judgment, vacate executions issued on the judgment, and restore assets seized under the judgment to aggrieved parties. I read no such implication from § 1963. The remedy for an improperly obtained judgment is provided under Rule 60(b) of the Federal Rules of Civil Procedure. Rule 60(b) authorizes a court to vacate a judgment obtained by fraud or misrepresentation “upon such terms as are just.”

The District Court promptly vacated the improperly registered judgment on Appellant’s oral motion. Appellant now seeks a damage award, since Appellees “have caused Plaintiff Corporation to be damaged by disruption of its normal business, and specially damaged by loss of business reputation in the community, loss of customers, credit standing, profit and income, and the rendering ineffective the nationwide advertising and sales effort of a sensitive product, to its actual damages in the sum of $1,000,000.-00.” Amended Complaint, filed May 16, 1972, para. X. Appellants consistently informed the District Court, as they now tell us, that they do not seek a mere vacation of the judgment, with collateral matters restored as proper. They want relief under a specific tort claim, with damages set at $2,000,000, when punitive damages are included.

The majority remands to the District Court by arguing that “[S]ince it necessarily has implied federal authority [to vacate the judgment, etc.], the registering court also would have pendent jurisdiction of a non-federal claim for abuse of process where the aggrieved party has suffered damage or loss as a result of the wrongful registration.” It then proceeds to hold that “[T]he case is remanded for disposition of appellant’s claim on its merits.” It arrives at this conclusion without consideration of the factors which are significant in deciding whether pendent jurisdiction should be exercised.

Its conclusion is unwarranted for four reasons. First, the majority mandates the exercise of pendent jurisdiction in disregard of the rule that district courts have discretion over whether to hear pendent claims. Second, the holding flies in the face of the Supreme Court’s teachings on federal-state relations. Third, it has no basis in the raison d’etre of pendent jurisdiction — judicial economy. Fourth, the holding is contrary to the spirit of 28 U.S.C. § 1963, which is the sole basis for the federal court’s initial involvement in these proceedings.

It is a basic rule of judicial administration that a District Court must have broad discretion to decide whether to entertain state law claims that parties seek to attach to federal causes of action. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); A. H. Emery Co. v. Marcan Products Corp., 389 F.2d 11, 20 (2d Cir. 1968), cert, denied, 393 U.S. 835, 89 S. Ct. 109, 21 L.Ed.2d 106; Patrum v. Martin, 292 F.Supp. 370, 371 (W.D.Ky. 1968); Edward J. Moriarty & Co. v. General Tire & Rubber Co., 289 F.Supp. 381, 386 (S.D.Ohio 1967). The existence of pendent jurisdiction does not require its exercise. District courts must have an opportunity to consider the competing interests in deciding whether to exercise their pendent jurisdiction. Yet, the majority deprives the District Court of its discretion, without itself considering the factors the Supreme Court has instructed courts to ponder carefully before entertaining a pendent state claim.

In reviewing whether the District Court in this case should exercise its discretion to entertain Appellant’s tort claim, I am convinced that it should not. The second reason for my disagreement with the majority thus stems from the consideration of federal-state relations that the Supreme Court expressed in Gibbs:

Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. [I]f it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals. 383 U.S. at 726-727, 86 S.Ct. at 1139.

Unless the majority considers Appellant’s tort claim to be a matter of federal law, it is obvious that the state claim predominates in this case. In terms of proof, the state abuse of process claim will require volumes of evidence as to Appellees’ scienter (unless a negligence claim is also brought), the extent of Appellant’s injury, specific items of alleged damage, and other matters. The proof required to vacate the registered judgment on the other hand, was a mere showing that the California Court had stayed its judgment before Appellees registered it in Ohio. State law predominates also as to “the scope of the issues raised.” The state tort claim involves issues of state law which may be novel and complex, whereas the vacation of the Ohio judgment depended simply on the proof that it had been obtained after the California judgment had been stayed. The “comprehensiveness of the remedy sought,” furthermore, is clearly greater as to the state tort claim than the federal claim that the Ohio judgment should be vacated.

Considering these factors, I fail to comprehend how the majority comes to its result. “Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed.” Gibbs, 383 U.S. at 727, 86 S.Ct. at 1140.

As a third reason for dissenting, I conclude that the interest in judicial economy, which provides the basic justification for the exercise of pendent jurisdiction, would not be served by directing the District Court to entertain the state tort claim. As the Gibbs Court stated:

Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well. 383 U.S. at 726, 86 S.Ct. at 1139.

Here the federal claim was disposed of long ago, so that the state claim would require a wholly independent proceeding. Thus, there is absolutely no interest in consolidating federal and state claims at this point, since only a state claim remains.

Fourth, in attaching a state tort claim to a motion to vacate a 28 U.S.C. § 1963 registration, the majority expands the workload of the federal courts, whereas congressional intent in enacting § 1963 was to do precisely the opposite. The § 1963 procedure was deliberately designed to allow a simplified registration process for foreign judgments, so as to end the litigation of questions as to whether the original federal court foreign judgment was proper in various respects. Directing the appendage of a state tort claim to the simple procedure in § 1963 and its vacation under Rule 60(b) is contrary to the spirit of that section.

For these four reasons I conclude that it is improper to divest the District Court of its discretion to decide whether to exercise its pendent jurisdiction over Appellant’s state claim in that it is highly doubtful that the District Court would exercise such discretion in Appellant’s favor. The majority’s sympathies for Appellant’s allegations and condemnation of Appellees’ misuse of the federal courts ignore the need for district court discretion over the exercise of pendent jurisdiction. I too am sympathetic to Appellant’s allegations. But I am also mindful of the other demands on the federal district courts. Thus, Appellant should bring his abuse of process claim against the named Appellees in an Ohio state court — unless § 1963 itself authorizes a federal private cause of action on Appellant’s behalf. This is the question which Appellant asked us to decide. Because of my conclusion against the mandatory exercise of pendent jurisdiction, I cannot forestall this issue if Appellant is to be remitted to state courts.

Appellant urges that a federal private remedy should be inferred from § 1963 on behalf of persons aggrieved by the misuse of its registration procedures. Appellant argues that § 1963 protects the class of foreign judgment debtors and that from this we should infer that Congress intended the federal courts to entertain tort claims to protect debtors aggrieved by the misuse of § 1963. This argument is at odds with the case law on the implication of federal causes of action from facially silent statutes.

Only when a statute imposes a duty or prohibition and when the violation of that command injures a person in the enjoyment of a right Congress sought to protect in passing the statute will the federal courts draw the inference that Congress intended the federal courts to afford a private remedy to the aggrieved person. J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964); Allen v. State Board of Elections, 393 U.S. 544, 557, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969); Fullerton v. Monongahela Connecting R. Co., 242 F.Supp. 622, 624 (W.D.Pa.1965).

I can find no congressional command or prohibition expressly stated in § 1963, which distinguishes this case from those which have implied private remedies from federal statutes. Section 1963 permits a judgment creditor to register a foreign judgment simply and efficiently in a federal court. While a registering creditor must follow the § 1963 procedures to make the registered judgment valid in a second state, I fail to see from the language of the section or from any legislative history that Congress thereby intended to protect judgment debtors in the enjoyment of the right to be free from personal injury caused by a misuse of its procedures as a matter of federal law. What Appellant is really arguing is that a federal court should provide an abuse of process remedy for persons aggrieved when other parties misuse the federal courts. Congress has not seen fit to federalize the tort of abuse of the federal judicial process. The federal courts, of course, have inherent power to vindicate their own interests through their contempt powers. But they have no right to afford private parties a remedy for the misuse of their processes, in the absence of congressional authorization. The lower federal courts have only such jurisdiction as Congress has granted. I find no federal cause of action exists for the abuse of § 1963 procedures. In the absence of a federal remedy, Appellants are remitted to the state courts for vindication of their rights, as is the constitutional custom under our system of government.

Having found no justification for returning the case to the District Court on the basis of pendent or federal question jurisdiction, I turn finally to Appellant’s alternative request. Appellant asks that it be permitted to amend its complaint to show diversity jurisdiction, by striking Appellee Lombardi, a non-diverse party. Under 28 U.S.C. § 1653, this Court has discretion, in proper cases, to allow a party to amend its complaint so as to establish federal jurisdiction. By striking Appellee Lombardi from its complaint, Appellant could accomplish this. “An application under § 1653 is to be construed liberally to permit the action to be maintained if at all possible to determine from the record that jurisdiction does in fact exist.” John Birch Society v. National Broadcasting Company, 377 F.2d 194, 199 (2d Cir. 1967). Although Appellants have been allowed to amend their pleadings twice already by the District Court, their failure to sustain jurisdiction under their present complaint is due to their attempt to imply a federal cause of action from 28 U.S.C. § 1963 in order to sustain federal question jurisdiction against all three Appellees. Thus, cases refusing permission to amend are not on point, since they center on a party’s refusal or failure to amend its complaint after a district court has given it the opportunity to do so. See Sharp v. Barnhart, 117 F.2d 604 (7th Cir. 1941), cert, denied, 313 U.S. 576, 61 S.Ct. 1099, 85 L.Ed. 1533 (where “good faith on the part of the moving parties is lacking,” 117 F.2d at 607); Joy v. Hague, 175 F. 2d 395 (1st Cir. 1949) (where the parties “refused to amend as the District Court invited them to do,” 175 F.2d at 396); and Harris v. American Legion, 261 F.2d 594 (7th Cir. 1958) (where the parties “fail[ed] to submit evidence establishing such diversity at the separate trial on that issue, although given ample opportunity to do so,” 162 F.Supp. 700, 712 (S.D.Ind.1958).) Under § 1653, I would allow Appellants to strike Appel-lee Lombardi and return the case to the District Court under diversity of citizenship jurisdiction. See Fry v. Layne-Western Company, 282 F.2d 97, 99 (8th Cir. 1960); Keene Lumber Co. v. Leven-thal, 165 F.2d 815, 818, n. 1 (1st Cir. 1948).

      . “It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff’s right.” Gibbs, 383 U. S. at 726, 86 S.Ct. at 1139. See C. Wright & A. Miller, Federal Practice and Procedure, § 1588, Vol. 5, 813 (1971).

      . See Baker, “Toward a Relaxed View of Federal Ancillary and Pendent Jurisdiction,” 33 U.Pitt.L.Rev. 759 (1972) ; Wright & Miller, § 1588, 810-11, 813.

      . See Hart and Wechsler’s The Federal Courts and the Federal System, 925 (2d ed. 1973). Concerning the dangers of a loose and unthinking exercise of pendent jurisdiction by the federal courts, see Shakman, “The New Pendent Jurisdiction of the Federal Courts,” 20 Stan.L.Rev. 262 (1968).

      . “[P]endent jurisdiction's] . . . justification lies in considerations of judicial economy, convenience and fairness to litigants.” 383 U.S. at 726, 86 S.Ct. at 1139.

      . “[C]ourts will refuse to adjudicate the pendent claim when the federal claim is dismissed prior to trial ... or when it is mooted or abandoned or whenever retention of the state claim does not substantially increase the probability of a speedier and fairer adjudication of the controversy.” Wright and Miller, § 1588, 814-15.

      . See Justice Black’s dissent in Bivens v. Six Unknown Named Agents on Federal Bureau of Narcotics, 403 U.S. 388, 429, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).