author: VAN DUSEN, Circuit Judge.

text:
    The TRAVELERS INSURANCE COMPANY and Branden-Aermotor Corporation, Successor of Aermotor, Inc., Appellants, v. The UNITED STATES of America.
    No. 73-1510.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 9, 1973.
    Decided March 18, 1974.

      Victor L. Drexel, and James T. Giles, Pepper, Hamilton & Sheetz, Philadelphia, Pa., for appellants.
    Robert E. J. Curran, U. S. Atty., Richard R. Galli, Asst. U. S. Atty., Philadelphia, Pa., for appellee.
    Before VAN DUSEN, HUNTER and GARTH, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

The issue presented by this appeal is whether the exclusive remedy provision of the Federal Employees’ Compensation Act (hereinafter “FECA”), 5 U.S.C. § 8116(c), bars the claim of a third party for indemnity or contribution against the Federal Government for damages paid an injured Government employee. Plaintiffs-appellants, Travelers Insurance Company (hereinafter “Travelers”) and Branden-Aermotor Corporation, successor of Aermotor Inc. (hereinafter “Aermotor”), appeal from a district court order dismissing their complaint seeking indemnity or contribution from the defendant-appellee, United States, under the provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 1346 and 2671 et seq.

This case arises as a result of an accident on September 16, 1962, in which Jake Arnold, an employee of the Coast and Geodetic Survey, an instrumentality of the Federal Government, fell 77 feet from a tower while in the course of his employment. Arnold sustained serious injuries which eventually caused his death. Thereafter, on April 8, 1964, Patricia Arnold, his wife and executrix of his estate, filed a wrongful death and survival action against Aermotor in the United States District Court for the Eastern District of Pennsylvania (Civil No. 35481). The theory of the. law suit was that the decedent’s injuries and subsequent death were the result of unsafe design and lack of safety measures in the tower, which was manufactured by Aermotor. On March 7, 1968, after a lengthy trial, the jury returned a verdict in the amount of $125,000. in favor of Arnold’s estate, and Travelers, insurer of Aermotor, paid the amount of the verdict plus interest, costs of defense, and expenses, pursuant to its contract of insurance.

Subsequently, on March 18, 1969, Travelers and Aermotor filed a complaint in the District Court for the Eastern District of Pennsylvania (Civil No. 69-859) seeking indemnity or, alternatively, contribution from the United States. The basis of recovery alleged in the complaint was that the United States was exclusively responsible for the design, assembly, inspection, possession, and control of the tower from which Arnold fell. After both parties filed motions for summary judgment, the late Chief Judge John W'. Lord, Jr. granted plaintiffs’ motion for summary judgment on August 26, 1971. In his opinion granting the motion, Chief Judge Lord stated that “this case presents a classic example for indemnification” *but he failed to set out a specific monetary award.

The case was subsequently reassigned to the late Judge Body, and on January 10, 1973, plaintiffs filed a motion for assessment of damages and counsel fees, pursuant to the August 26, 1971, order granting summary judgment for indemnification. On April 5, 1973, Judge Body entered a Memorandum and Order reversing the August 26, 1971, order, denying plaintiffs’ motion for assessment of damages and counsel fees, and dismissing the complaint. The basis of this decision reversing the prior district court order was that, since the Federal Tort Claims Act, 28 U.S.C. § 2674 (1970), provides that the Government has the same status as a private individual under like circumstances, the Government should be treated as a Pennsylvania employer, and, in accordance with the applicable Pennsylvania law, as recently stated by this court in United States v. O’Neill, 450 F.2d 1012 (3d Cir. 1971), the Government need not pay damages in excess of its workmen’s compensation liability. The district judge declined to assess damages to the extent of the Government’s workmen’s compensation liability. The plaintiffs have appealed from this order dismissing their complaint.

I.

Plaintiffs’ first contention is that the district court, in dismissing their complaint, erred in holding that the instant case was controlled by the recent decision of this court in United States v. O’Neill, supra. We agree. In O’Neill, this court considered a claim by the United States against a Pennsylvania employer for indemnification of damages paid by the United States to an injured employee of the Pennsylvania employer. The employer asserted as a defense that its liability under the Pennsylvania Workmen’s Compensation Act, 77 P.S. §§ 1-1066, was exclusive of all other liability, direct or indirect. Considering both the purpose and policy of the statute and prior decisions of the state courts, we held that a Pennsylvania employer could not be liable for damages in excess of its workmen’s compensation liability. O’Neill thus involved construction of a state workmen’s compensation statute and is not determinative of the extent of a third party’s rights to contribution or indemnity under the FECA. Determining the extent of the Federal Government’s liability to third persons under the FECA is a matter which requires interpretation of a federally created immunity, if any, rather than a state created immunity, and as such it should be resolved as a matter of federal law. See Newport Air Park, Inc. v. United States, 419 F.2d 342, 346-347 (1st Cir. 1969). While examination of analogous practices under state workmen’s compensation schemes, such as that of Pennsylvania, may be instructive in resolving this issue, the determination nevertheless remains a matter of federal law.

II.

We now consider the issue whether the exclusive remedy provision of the FECA, 5 U.S.C. § 8116(c), bars the plaintiffs’ claim for contribution or indemnity against the Federal Government for the damages paid the injured Government employee, Arnold.

The effect of the exclusive remedy provision upon the rights of third parties was analyzed in depth by the Supreme Court in Weyerhaeuser S. S. Co. v. United States, 372 U.S. 597, 83 S.Ct. 926, 10 L.Ed.2d 1 (1963). Weyerhaeu-ser arose out of a collision between a dredge owned by the United States and a ship owned by Weyerhaeuser Steamship Company. A government employee who was injured in the collision sued the shipowner and recovered a $16,000. settlement. When it was subsequently determined that both vessels had been at fault, the shipowner included the amount of the settlement in the damages to be divided under the traditional admiralty rule of “divided damages.”

The United States, relying on that part of the exclusivity provision which states that recovery under the FECA “to the employee, his legal representative, spouse, and anyone otherwise entitled to recover damages from the United States” shall be exclusive, contended that the shipowner fell within the above language and was, therefore, precluded from recovering any part of the settlement. After initially determining that the language in question was ambiguous, the Supreme Court examined the legislative history of the FECA in an effort to discern Congress’ purpose in enacting this section. The Court concluded:

“The purpose of § 7(b), added in 1949, was to establish that, as between the Government on the one hand and its employees and their representatives or dependents on the other, the statutory remedy was to be exclusive. There is no evidence whatever that Congress was concerned with the rights of unrelated third parties, much less any purpose to disturb settled doctrines of admiralty law affecting the mutual rights and liabilities of private shipowners in collision cases.”

See 372 U.S. at 601, 83 S.Ct. at 929. The Court then held that the exclusivity provision did not limit the admiralty rule of divided damages and that the shipowner was entitled to recover from the United States one-half of the damages paid the injured Government employee.

In Weyerhaeuser, the Supreme Court made specific reference to its earlier decision in Ryan Co. v. Pan-Atlantic S. S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), in which it had considered section 5 of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 905, an exclusive remedy provision “nearly identical” at that time to § 16(c), then § 7(b), of the FECA. In Ryan, the Court had held that, despite the exclusive liability provision, a shipowner was entitled to reimbursement from a longshoreman’s employer for damages recovered against the shipowner by the longshoreman injured by the employer’s negligence. The Court’s decision in Ryan was based upon the existence of a contractual relationship between the shipowner and the employer, which the Court found formed the basis of an implied promise of indemnification. The Court in Weyerhaeuser, referring to Ryan, stated that:

“In the present case, there was no contractual relationship between the United States and the petitioner, governing their correlative rights and duties [but] [t]here is involved here, instead, a rule of admiralty law which, for more than 100 years, has governed with at least equal clarity the córrela-. tive rights and duties of two shipowners whose vessels have been involved in a collision in which both were at fault.”

372 U.S. at 603, 83 S.Ct. at 930.

Shortly after deciding Weyerhaeuser, the Court issued an order in Treadwell Construction Co. v. United States, 372 U.S. 772, 83 S.Ct. 1102, 10 L.Ed.2d 136 (1963), vacating the judgment of this court in Drake v. Treadwell Construction Co., 299 F.2d 789 (3d Cir. 1962), and remanding for further consideration in light of Weyerhaeuser. In Treadwell, this court had held, in a situation where there was no contractual or other independent relationship between a third-party joint tortfeasor and the Government, that the exclusivity provision precluded a claim for contribution against the Government by a joint tortfeasor who had been successfully sued by an injured Government employee. See 299 F.2d at 790-792.

Federal courts are in hopeless conflict concerning the proper interpretation of the Weyerhaeuser and Treadwell decisions, supra. The principal source of this conflict is the broad language in Weyerhaeuser, 372 U.S. at 601, 83 S.Ct. at 1861, that “there is no evidence that Congress was concerned with the rights of unrelated third parties.”

A few federal courts have interpreted the above language broadly and have held that the exclusive remedy provision does not preclude recovery of contribution or indemnity from the United States by a third party sued by an injured Government employee. See Wallenius Bremen G.m.b.H. v. United States, 409 F.2d 994 (4th Cir. 1969), cert. denied, 398 U.S. 958, 90 S.Ct. 2164, 26 L.Ed.2d 542 (1970); Hart v. Simons, 223 F.Supp. 109 (E.D.Pa.1963). In Wallenius, supra, the Fourth Circuit reasoned that the exclusivity provision was not directed at unrelated third parties, but at potential plaintiffs who had such a personal or dependent relationship with the injured Government employee that they benefited from the remedy under the FECA. The court also concluded, on the basis of the vacation and remand of this court’s decision in Treadwell, supra, that the Supreme Court intended that other types of third-party rights, as well as the admiralty rule of divided damages, were to be undisturbed by the FECA. Finally, criticizing the approach of the many federal courts which have denied contribution or indemnity on the ground that the United States had no underlying tort liability, the Fourth Circuit stated that the fact that there is no underlying liability should not preclude an action for indemnity since

“if the purpose of indemnity is to relieve the relatively innocent wrongdoer and shift the burden to one whose conduct is more blameworthy, the fact that the latter has a personal defense if sued by the injured person would seem to be irrelevant.”

409 F.2d at 998.

Most federal courts which have considered the issue have taken a contrary approach and, limiting Weyerhaeuser to its facts, have held that, since the United States has no underlying tort liability to its injured employee, the exclusivity provision of the FECA precludes a third party action for contribution or indemnity unless there exists a relationship between the third party and the United States independent of the tortious event, such as the contractual obligation in Ryan, supra, or the admiralty rule of divided damages in Weyerhaeuser, supra, upon which recovery can be grounded. See, e. g., Newport Air Park, Inc. v. United States, 419 F.2d 342 (1st Cir. 1969); Murray v. United States, 132 U.S.App.D.C. 91, 405 F.2d 1361 (1968); Maddux v. Cox, 382 F.2d 119 (8th Cir. 1967); Wien Alaska Airlines, Inc. v. United States, 375 F.2d 736 (9th Cir.), cert. denied, 389 U.S. 940, 88 S.Ct. 288, 19 L.Ed.2d 291 (1967); United Airlines v. Weiner, 335 F.2d 379 (9th Cir.), cert. denied sub nom., United Airlines v. United States, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964) ; Busey v. Washington, 225 F.Supp. 416 (D.D.C. 1964). These courts have generally distinguished between contribution and tort indemnity on the one hand and contractual indemnity on the other, and have held that § 16(c) of the FECA precludes an action for contribution or tort indemnity since the United States has no underlying tort liability, but that it does not preclude an action for implied contractual indemnity arising from a contractual relationship between the ¡parties.

In United Airlines v. Weiner, supra, which involved a mid-air collision between a military aircraft and a commercial airplane resulting in the death of seven nonmilitary Government employees, the Ninth Circuit held that the private airline was not entitled to tort indemnity from the United States for wrongful death damages paid to the survivors of the Government employees because there was no underlying tort liability of the Government to its injured employees:

“On the other hand, neither contribution nor indemnity may be awarded without the support of liability on the part of the indemnitor to the person injured. The courts have consistently-held that in the absence of an express or implied contract of indemnity, or in the absence of the indemnitor’s liability to the injured party, there can be no recovery for indemnity . . . .”

335 F.2d at 403. The Court stated further that:

“United’s claim for indemnity is not based upon a duty owed by the government to United by virtue of a contract, attenuated or otherwise, or by operation of a rule of law such as the divided damage rule of admiralty. There being no underlying liability on the part of the government, United’s claim for indemnity must fall.”

Id. at 404.

Numerous federal courts have expressly relied on the principles enunciated in Weiner in denying a third party’s claim for contribution or tort indemnity from the United States for damages paid an injured Government employee. See e. g., Newport Air Park, Inc. v. United States, supra,, at 347; Maddux v. Cox, supra at 124.

We agree with the approach of the Ninth Circuit in Weiner and the majority of other federal cases which have considered the issue that § 16(c) of the FECA precludes an action for contribution or tort indemnity but not an action for implied or express contractual indemnity. This approach is consistent with the principles established in prior decisions of this court which considered the effect of the exclusive remedy provision of the Longshoremen’s and Harbor Workers’ Compensation Act (before its amendment in 1972) upon a third party’s right to indemnity or contribution from a statutorily covered employer. See Brown v. American-Hawaiian S. S. Co., 211 F.2d 16 (3d Cir. 1954); Crawford v. Pope & Talbot, 206 F.2d 784 (3d. Cir. 1953). We therefore hold that the plaintiffs in the instant case are not entitled to recover contribution or noncontractual tort indemnity from the United States for the damages suffered by the injured Government employee and his family.-

We remand the case to the district court, however, for consideration of whether plaintiffs have a right of action under the theory of implied contractual indemnity. Plaintiffs alleged in their complaint that (1) the type of tower (called a “Bilby tower”) from which the injured Government employee fell was “designed in approximately 1926 by an employee of the United States, acting within the course and scope of his employment, under the exclusive direction and control of the Coast and Geodetic Survey;” (2) such design was “approved by the Director of the Coast and Geodetic Survey;” (3) the towers were “manufactured by Aermotor for the Coast and Geodetic Survey pursuant to contracts obtained through Government bidding processes and were built strictly in accordance with the design and specifications furnished and required by the United States;” and (4) “Aermotor did not, without explicit directions from the United States, make changes in the design or construction of the Towers supplied to the Coast and Geodetic Survey.”11 Defendant United States denied these allegations in its answer, except that it admitted that “[fjrom approximately 1930, the Towers were manufactured by Aermotor for the Coast and Geodetic Survey pursuant to contracts obtained through Government bidding processes.” Evidence consistent with these allegations might show contractual responsibility of the defendant so that there would be a basis for recovery under an implied contractual right to indemnification.

On remand, the district court should also consider, as a preliminary matter, whether it properly has jurisdiction over the plaintiffs’ claim for contractual indemnity. At least one court has held that such a claim is barred by the provision of the Tucker Act, 28 U.S.C. § 1346(a)(2), which limits the jurisdiction of the district courts to claims “not exceeding $10,000 in amount, founded . . . upon any express or implied contract with the United States.” See Murray v. United States, 132 U.S.App.D.C. 91, 405 F.2d 1361, 1367 (1968). This issue was discussed, but not decided, by this court in Drake v. Treadwell Construction Co., 299 F.2d 789, 791-792 (3d Cir. 1962). Since this issue was not briefed or raised by the parties to this appeal, this issue should be resolved by the district court.

The judgment of the district court will be reversed and the case will be remanded to the district court for proceedings consistent with this opinion.

      . See Travelers Insurance Co. v. United States, 331 F.Supp. 189, 192 (E.D.Pa.1971).

      . See Travelers Insurance Co. v. United States, Memorandum and Order of April 5, 1973, 331 F.Supp. 189 (Civil No. 69-859, E.D.Pa., Document No. 20).

      . We note appellants’ argument that, unlike the FECA, the Pennsylvania Workmen’s Compensation Act provides for a voluntary system and that the employer and employee can elect to be excluded from participating under its terms. 77 P.S. §§ 431 and 461.

      . 5 U.S.C. § 8116(c) provides as follows:
      “(c) The liability of the United States or an instrumentality thereof under this sub-chapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen’s compensation statute or under a Federal tort liability statute. However, this subsection does not apply to a master or a member of a crew of a vessel.”

      . At the time Ryan and Weyerhaeuser were decided, 33 U.S.C. § 905 provided, in relevant part, as follows:
      “The liability of an employer . . . shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death )}

      33 U.S.C. § 905 was recently amended by Congress. See 33 U.S.C. § 905(b). See also H.R.Rep.No. 1441, 92d Cong., 2d Sess. (1972), quoted at, U.S.Code Congressional and Administrative News, p. 4698 (1972). See note 6 infra.

      . See 350 U.S. at 133-134, 76 S.Ct. at 232. The Court expressly did not decide the issue whether the exclusivity provision precluded recovery on the theory of noncontractual, or tort, indemnity, as opposed to implied contractual indemnity. Id. at 132-133. Several courts, including this one, had previously decided that the exclusivity provision did preclude contribution or tort indemnity, but not implied or express contractual indemnity. See Crawford v. Pope and Talbot, 206 F.2d 784 (3d Cir. 1953) ; American Mutual Liability Ins. Co. v. Matthews, 182 F.2d 322 (2d Cir. 1951).
      The Ryan doctrine has recently been abrogated by Congress in an amendment to 33 U.S.C. § 905. See 33 U.S.C. § 905(b). In the legislative history Congress makes clear that the recent amendment to § 905 is intended to prohibit recovery of indemnity by a third party against a statutorily covered employer under any theory, whether based on an implied or express warranty or tort principles. See H.R.Rep.No. 1441, 92d Cong., 2d Sess. (1972), quoted at, U.S.Code Congressional and Administrative News, pp. 4698, 4704 (1972).

      . See, e. g., Newport Air Park, Inc. v. United States, 419 F.2d 342 (1st Cir. 1969) ; United Airlines v. Weiner, 335 F.2d 379 (9th Cir.), cert. denied sub nom. United Airlines v. United States, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964).

      . One commentator has criticized this language in Wallenius, stating that “[t]his dic-turn is open to criticism — the court gave little authority for such a complete break in the traditional rule on tort indemnity.” See Dombrink, The Right to Collect Contribution or Indemnity from the United States When a Federal Employee or Serviceman is Injured, 27 JAG J. 69, 81 (1972).

      . The holding of these cases that a third party may maintain an action for express or implied contractual indemnity, as opposed to an action for contribution or tort indemnity (see 206 F.2d at 792; 211 F.2d at 18) under the Longshoremen’s Act, has recently been abrogated by an amendment to the Act. See 33 U.S.C. § 905(b) ; notes 6 and 7, supra. However, these cases were expressly relied upon by the Ninth Circuit in Weiner, 335 F.2d at 403, and their principles continue to retain vitality for purposes of analyzing the effect of the exclusive remedy provision of the FECA.

      . We recognize that this holding is not in accord with the apparent view of the August 1971 district court opinion in this case, which relied on Wallenius, supra. See 331 F.Supp. at 191-93. We note that it was conceded at oral argument that both counsel had agreed to withdrawal of the defendant’s appeal from the August 1971 district court order, apparently because of lack of an ap-pealable order. See letter from plaintiffs’ counsel dated 1/20/72 attached to appellee’s brief. Under these circumstances, the 1971 district court opinion and order are not binding on grounds of res judicata and collateral estoppel. See Restatement of Judgments § 41 (1942), which provides :
      “The rules of res judicata are not applicable where the judgment is not a final judgment.”
      In Comment a, this language is used:
      “A judgment that the plaintiff recover an amount of damages to be assessed later, by the jury or by the court, is not a final judgment.
      “In many States an appeal can be taken only after the rendition of a final judgment. Ordinarily the requirement of finality of judgment as a basis for appellate proceedings is the same as that of finality as a basis for the application of the rules of res judicata.”
      See also Restatement of Judgments § 69 (1942). Furthermore, by reason of the exceptional circumstances presented by this record, the laws of the case doctrine did not preclude the district court from entering an order on April 5, 1973, in variance with the earlier district court opinion and order of August 1971. See TCF Film Corp. v. Gour-ley, 240 F.2d 711, 714 (3d Cir. 1957).


source: Caselaw Access Project

author: SNEED, Circuit Judge:

license: Public Domain

text:
    INTERSTATE COMMERCE COMMISSION, Appellant, v. BIG VALLEY GROWERS CO-OP, Appellee.
    No. 73-1138.
    United States Court of Appeals, Ninth Circuit.
    March 18, 1974.

      • Mitchell Haller (argued), Robert S. Griswold, Jr., of I.C.C., San Francisco, Cal., Bernard A. Gould and Robert S. Turkington, I.C.C., Washington, D. C., and Carolyn Reynolds, Asst. U. S. Atty., Los Angeles, Cal., for appellant.
    Lawrence Marquette (argued), Sau-salito, Cal., for appellee.
    Before WRIGHT, CHOY, and SNEED, Circuit Judges.
   SNEED, Circuit Judge:

The Interstate Commerce Commission brought this action seeking injunctive relief restraining Big Valley Growers Co-op from refusing to submit its accounts, books, records, memoranda and other documents to the Commission pursuant to Section 220(g) of the Interstate Commerce Act, 49 U.S.C. § 320(g). Big Valley is an agricultural cooperative association which had previously filed notice of its intention to haul non-member goods and other items under Section 203(b)(5) of the Act, 49 U.S.C. § 303(b)(5). The District Court denied the Commission’s motion for a preliminary injunction on the ground that Section' 222(b) of the Act, 49 U.S.C. § 322(b), does not confer jurisdiction to grant injunctive relief against agricultural cooperative associations.

The issue on this appeal concerns the availability of injunctive relief when Congress has granted the Commission the authority to inspect the books and records of agricultural cooperatives required to file notice under Section 203(b)(5) but has failed to expressly provide injunctive relief as a means of enforcing that authority.

The activities of “motor carriers” engaged in interstate commerce are subject to control by the Interstate Commerce Commission. 49 U.S.C. § 302. Motor carriers include common carriers by motor vehicle and contract carriers by motor vehicle, 49 U.S.C. § 303(a) (14) et seq., but do not include agricultural cooperatives as defined in the Agricultural Marketing Act, 12 U.S.C. § 1141. 49 U.S.C. § 303(b) (5).

Not surprisingly, many operators began to perform general transportation services under the guise of being exempt agricultural cooperatives. While the Commission had long had the power to inspect the books and records of motor carriers, 49 U.S.C. § 320(d), and a method of enforcement of such power by means of an injunction, 49 U.S.C. § 322(b)(1), no similar right to inspect the books and records of agricultural cooperatives existed prior to 1968. Following this' Circuit’s decision in Northwest Agricultural Cooperative Association v. I.C.C., 350 F.2d 252 (9th Cir., 1965), cert. denied 382 U.S. 1011, 86 S. Ct. 620, 15 L.Ed.2d 526 (1966), in 1968 Congress undertook to amend the scope and to refine the availability of the ag-rieultural cooperative exemption. Section 203(b)(5) of the Act, 49 U.S.C. § 303(b)(5), was amended to restrict the availability of the agricultural cooperative exemption and to require those cooperative associations which haul goods of nonmembers, but nevertheless seek to bring themselves within the scope of the exemption, to file notice with the Commission. Further, the Act was supplemented by the addition of Section 220(g), 49 U.S.C. § 320(g), which gave the Commission the authority to inspect the books and records of those cooperative associations required to file notice with the Commission pursuant to the amended Section 203(b) (5).

The problem in this case arises because Section 222(b)(1), 49 U.S.C. 322(b), which is the relevant injunction provision of the Act, was not amended to make injunctive relief available against agricultural cooperative associations. Thus, if the Act is strictly construed, the Commission has been granted a right but no remedy.

There is nothing in the legislative history of these amendments which would warrant the conclusion that Congress intended to foreclose the availability of in-junctive relief in the event that an agricultural cooperative association which files notice pursuant to Section 203(b)(5) refuses to permit inspection of its books and records by the Commission. We feel that the failure to expressly provide injunctive relief is attributable to legislative oversight, and that it is well within the equitable powers of this Court to imply the injunctive relief necessary to give effect to the obvious intent of Congress. While such relief is equitable in nature, it need not be subject to the traditional restraints— proof of irreparable harm, balancing of equities, etc. — normally imposed upon equitable remedies. See United States v. City and County of San Francisco, 310 U.S. 16, 30-31, 60 S.Ct. 749; 84 L.Ed. 1050 (1940); Lathan v. Volpe, 455 F.2d 1111, 1116 (9th Cir., 1971). We stress, however, that the case with which we are dealing involves a cooperative association which has filed notice with the Commission pursuant to Section 203(b)(5) of the Act, and we express no opinion on the scope or availability of injunctive relief under other circumstances.

Reversed and Remanded.

      . 49 U.S.C. § 303(b) provides, inter alia:

      Nothing in this chapter . . . shall be construed to include ... (5) motor vehicles controlled and operated by a cooperative association . . ., but any interstate transportation performed by such a cooperative association . . . for nonmembers who are neither farmers, cooperative associations, nor federations thereof for compensation, except transportation otherwise exempt under this chapter, shall be limited to that which is incidental to its primary transportation operation and shall in no event exceed 15 per centum of its total interstate transportation services. . . : Provided further, that any such cooperative association or federation which performs interstate transportation for non-members . . . shall notify the Commission of its intent to perform such transportation prior to the commencement thereof. . . .

      . 49 U.S.C. § 320(g) provides :
      The Commission or its duly authorized special agents, accountants, or examiners shall, during normal business hours, have access to and authority, under its order, to inspect, examine, and copy any and all accounts, books, records, memorandums, correspondence, and other documents pertaining to motor vehicle transportation of a cooperative association or federation of cooperative associations which is required to give notice to the Commission pursuant to the provisions of section 303(b)(5) of this title: Provided, however, That the Commission shall have no authority to prescribe the form of any accounts, records, or memorandums to be maintained by a cooperative association or federation of cooperative associations.

      . 49 U.S.C. § 322(b) (1) provides inter alia:

      If any motor carrier or broker operates in violation of any provision of this chapter (except as to the reasonableness of rates, fares, or charges and the discriminatory character thereof), or any lawful rule, regulation, requirement, or order promulgated by the Commission, or of any term or condition of any certificate or permit, the Commission or its duly authorized agent may apply for the enforcement thereof to the district court of the United States for any district where such motor carrier or broker operates. In any proceeding instituted under the provisions of this subsection, any person, or persons, acting in concert or participating with such carrier or broker in the commission of such violation may, without regard to his or their residence, be included, in addition to the motor carrier or broker, as a party, or parties, to the proceeding. The court shall have jurisdiction to enforce obedience to any such provision of this part, or of such rule, regulation, requirement, order, term, or condition by a writ of injunction or by other process, mandatory or otherwise, réstraining such carrier or broker, his or its officers, agents, employees, and representatives, and such other person, or persons, acting in concert or participating with such carrier or broker, from further violation of such provision of this part, or of such rule, regulation, requirement, order, term, or condition and enjoining upon it or them obedience thereto. .. .

      . See paragraphs 20, 21, 22 and 23 of the complaint (Document No. 1 in Civil No. 69-859, E.D.Pa.).


author: JOHN W. PECK, Circuit Judge.

text:
    GOOD INVESTMENT PROMOTIONS, INC., Plaintiff-Appellee, v. CORNING GLASS WORKS, Defendant-Appellant.
    No. 73-1652.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 5, 1973.
    Decided March 28, 1974.
    George I. Meisel, Cleveland, Ohio, for defendant-appellant; Squire, Sanders & Dempsey, Cleveland, Ohio, on brief; R. Bruce MacWhorter, Shearman & Sterling, New York City, Paul D. Cullen, Corning Glass Works, Corning, N. Y., of counsel.
    Harlan Pomeroy, Cleveland, Ohio, for plaintiff-appellee; Jonathan E. Thackeray, Baker, Hostetler & Patterson, Cleveland, Ohio, on brief.
    Before EDWARDS and PECK, Circuit Judges, and McALLISTER, Senior Circuit Judge.
   JOHN W. PECK, Circuit Judge.

In October of 1967 the plaintiff-appel-lee Good Investment Promotions, Inc. (hereinafter “Good Investment”) filed a two-count complaint charging the defendant-appellant Corning Glass Works (hereinafter “Corning”) with (1) breach of contract and (2) violations of certain federal antitrust laws. Upon Good Investment’s motion for summary judgment and after receiving pleadings, depositions, answers to interrogatories and affidavits, the District Court in January of 1973 granted summary judgment on the second count by finding a per se violation pf § 1 of the Sherman Act under United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967). The Court later amended its order to include the requisite determination under 28 U. S.C. § 1292(b) and this Court granted Coming’s petition for permission to appeal, filed pursuant to § 1292(b).

The relevant facts are as follows. Among the products which Corning manufactures is Corning Ware, a patented, vitrified cooking ware which is marketed primarily through 270 wholesale distributors who in turn sell to retailers such as hardware, discount and department stores. Corning Ware is also sold directly to selected trading stamp companies.

Good Investment is primarily engaged in trading stamp promotions, particularly for supermarkets. Retail customers can obtain designated merchandise by-redeeming at a local Good Investment trading stamp office the Good Investment stamps given by retailers with purchases. In addition, Good Investment operates what it terms its Blue Ribbon Bonus Coupon Program for supermarkets whereby coupons are punched as purchases are made and ultimately a sufficiently punched coupon can be redeemed for merchandise displayed at the supermarket.

Corning has apparently been doing business with Good Investment, as well 'as other trading stamp companies, for many years. However, Corning asserts that except for two occasions, it has not participated in any coupon program as a matter of company policy. Those occasions were (1) a six-month period in 1964 and (2) in 1966 when the contract sued upon here obligated Corning to supply its wares to Good Investment for participation in the Blue Ribbon program. Corning characterizes each occasion as an experiment designed to allow the company to appraise its policy prohibiting participation in coupon programs. On this most recent occasion, however, Corning claims that it considered the experiment limited to the Bor-man food stores in Detroit and that when it found that Good Investment was unilaterally expanding the program to other supermarkets, it terminated the contract, although it continued to supply promotions which are already sold and purchased left-over stock held by Good Investment. Claiming that preferential terms and conditions were extended to Good Investment in order to conduct the test, Corning states it merely refused to extend the special terms beyond the original contract.

Good Investment, however, emphasizes this broad language of the Supreme Court in Schwinn: “Once the manufacturer has parted with title and risk . over the product . . . his effort thereafter to restrict territory or persons to whom the product may be transferred . . . is a per se violation of § 1 of the Sherman Act.” 388 U.S. at 382, 87 S.Ct. at 1867. Good Investment characterizes itself as a distributor and maintains that once it purchases a product directly from the manufacturer Corning, Corning is prohibited from restricting Good Investment’s alienation of that product.

As stated earlier, the District Court found that upon these facts a per se violation of the antitrust laws had occurred and, of course, when properly supported by the record, the granting of summary judgment is proper. See, White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963). But although summary judgment is a valuable tool in achieving the expeditious adjudication of causes, it is a tool which this Court has recognized is to be used “sparingly in complex antitrust litigation.” Daily Press, Inc. v. United Press International, 412 F.2d 126, 128 (6th Cir. 1969), cert. denied, 396 U.S. 990, 90 S.Ct. 480, 24 L.Ed.2d 453, citing Poller v. Columbia Broadcasting Co., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). Accordingly, we must scrutinize the record with particular care.

In looking to the record, we first turn to the District Court’s finding that Coming’s conduct in these circumstances constitutes, per se, an unreasonable restraint of trade. The District Court principally relied upon the following language in Schwirm:

“Under the Sherman Act, it is unreasonable without more for a manufacturer to seek to restrict and confine areas of persons with whom an article may be traded after the manufacturer has parted with dominion over it. Such restraints are so obviously destructive of competition that their mere existence is enough. If the manufacturer parts with dominion over his product or transfers risk of loss to another, he may not reserve control over its destiny or the conditions of its resale.” 388 U.S. at 379, 87 S.Ct. at 1865. (Emphasis supplied.)

In our view, the District Court attached insufficient importance to the phrase “without more.”

It is axiomatic that principles of law must be read in light of the facts and circumstances of the case from which they are drawn. It is also relevant to state that the reason that summary judgment is used with considerable caution in antitrust cases is that oftentimes only a thorough inquiry into the facts and attendant business circumstances can substantiate whether a restrictive course of conduct poses antitrust violations. With this in mind, we proceed to examine the consideration that the District Court gave to the Schwirm phrase “without more.” We parenthetically note that Schwirm is a case dealing with territorial and customer restrictions upon a distributor by a manufacturer and that the instant case contains no allegations of territorial restrictions.

In contrast to the instant case, the record in Schwirm “ . . . elaborately sets forth information as to the total market interaction and interbrand competition, as well as the distribution program and practices.” 388 U.S. at 367, 87 S.Ct. at 1859. Here the record is da void of any information from which it may be determined that “. . . firm and resolute [insistence] upon observance of . customer limitations” was required by Corning, such as was the situation in Schwirm. The state of the record achieves greater importance in view of Coming’s claims that it merely terminated an agreement involving unusual commitments by it and that the termination did not limit any resale rights Good Investment may have on goods it purchased from Corning for the coupon program. According to Corning, Good Investment continues to use cooking ware manufactured by Coming’s competitors and may still purchase its products from regular Coming distributors. Consequently, it would appear that these factual disputes must first be resolved, and findings of fact should be made concerning the nature of the coupon program and the nature of the competitive market involved.

This case may present a Schwirm situation, but in our view the present state of the record does not support that conclusion. We conclude that this case does not present any viable antitrust issues to us since certain factual disputes remain unresolved and in our view resolution of those disputes is at least necessary before the District Court can decide the merits of Coming’s arguments that its refusal to supply its products beyond an experimental appraisal program and at favorable prices and terms of sale does not present a Schwinn customer restriction.

The judgment of the District Court is reversed and the cause is remanded.


author: PER CURIAM:

text:
    Nathaniel PRESSLEY, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Department of Health & Rehabilitation Services, State of Florida, Respondent-Appellee.
    No. 73-3113.
    United States Court of Appeals, Fifth Circuit.
    May 10, 1974.
    Rehearing Denied June 4, 1974.
    Phillip A. Hubbart, Public Defender, 11th Judicial Circuit, Bennett H. Brum-mer, Asst. Public Defender, Miami, Fla., for petitioner-appellant.
    Robert L. Shevin, Atty. Gen., Joel D. Rosenblatt, Asst. Atty. Gen., Miami, Fla., for respondent-appellee.
    Before DYER, MORGAN and RO-NEY, Circuit Judges.
   PER CURIAM:

Nathaniel Pressley alleges he was denied effective assistance of counsel in pursuing a petition for writ of certiora-ri to the Supreme Court of Florida. We affirm the United States District Court’s denial of a writ of habeas corpus on the grounds that Pressley has failed to exhaust state remedies. 28 U.S.C.A. § 2254.

Pressley’s first degree murder conviction was affirmed by the Florida District Court of Appeal. His court-appointed counsel agreed with Pressley that a petition for writ of certiorari to the Florida Supreme Court might be fruitful since one of the three District Court of Appeal judges dissented from an affirmance of his conviction on the ground that the majority’s decision was in conflict with a prior decision of another District. One ground for asserting certiorari jurisdiction in Florida is a conflict between District Courts of Appeal. Rule 4.5, subd. c(6), Fla.Appellate Rules, 32 F.S.A. Counsel said, however, that he could not represent Press-ley on the petition and advised him to write to the public defender. Pressley’s request for representation was favorably received by the public defender who said that he would represent Pressley when properly substituted as counsel.

By the time the public defender was officially substituted by order of the District Court of Appeal, however, the thirty day time limitation for application for writ of certiorari had expired. The public defender filed a petition for writ of habeas corpus with the Florida Supreme Court. The writ was discharged by the Florida Supreme Court which merely noted that there appeared nothing in the record which entitled Pressley to his liberty.

Pressley’s petition for writ of habeas corpus was denied by the federal District Court. We affirm the District Court’s denial of relief for failure to exhaust state remedies. Although recognizing that a petition for writ of habeas corpus is the accepted remedy in pursuing an out-of-time appeal in Florida, Pressley’s petition in the state court did not clearly state he was merely seeking permission to file a belated application for writ of certiorari. Instead, it asks for Pressley’s release because “the petitioner has been denied equal protection of the laws, due process of law, and his right to effective assistance of counsel .” The Florida Supreme Court did not address the possibility of allowing a belated application for certio-rari in its denial of habeas corpus relief:

The Court has considered the petition for writ of habeas corpus and is now of the opinion that petitioner, according to the record now before us, is not entitled to his liberty, so the writ of habeas corpus is discharged and petitioner is remanded to custody.

Pressley should proceed in the state court explicitly stating the type relief sought and the grounds therefor.

In exhausting state remedies, Pressley’s counsel could pursue at least two alternatives: (1) since the Florida Supreme Court has not directly denied an out-of-time application for writ of certiorari but has merely refused to release Pressley, a motion to the Florida Supreme Court for leave to file a belated application for certiorari, along with an appropriate petition for writ of certiorari, could be filed in that court. (2) A motion might be filed with the District Court of Appeal, Third District, requesting it to withdraw and then reenter its mandate, thereby starting anew the thirty day filing period for certiorari application. This procedure was followed by this Court in Lacaze v. United States, 457 F.2d 1075 (5th Cir.), cert. denied, 409 U.S. 921, 93 S.Ct. 251, 34 L.Ed.2d 180 (1972), in which we withdrew our mandate and issued a new mandate so the defendant could file a timely petition for writ of certiorari to the United States Supreme Court.

This remedy has been directed to Federal District Courts by United States Courts of Appeals, see Lacaze v. United States, 475 F.2d at 1079; Jenkins v. United States, 130 U.S.App.D.C. 248, 399 F.2d 981, 982 (1968), and has been directed by the United States Supreme Court to Courts of Appeals. Schreiner v. United States, 404 U.S. 67, 92 S.Ct. 326, 30 L.Ed.2d 222 (1971).

Although these procedures are not specifically provided for in the Florida Statutes or Rules of Court, they are not specifically excluded either. Given the particular factual circumstances leading to the lapse of the filing time through no fault of Pressley, his intention at all times to seek review in the Supreme Court, the belated order of the District Court of Appeal appointing counsel for the purpose of pursuing the appeal, and the good faith assertion of certiorari jurisdiction shown by the possible conflict in the District Court of Appeal’s decisions, we feel Pressley, should again present his contention to the proper state courts before asserting his claims in federal court. Until the state courts have been asked directly to grant the kind of relief that Pressley might rightfully be entitled to, the hand of the federal court should be stayed. The thrust of Pressley’s complaint is not that the Florida court has denied him a writ of certiorari, but that he has not had an opportunity to present his petition.

Affirmed.


author: COLEMAN, Circuit Judge:

text:
    Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. VICTORIA BANK AND TRUST COMPANY, Defendant-Appellee.
    No. 73-2075.
    United States Court of Appeals, Fifth Circuit.
    May 8, 1974.

      Richard F. Schubert, Sol. of Labor, Donald S. Shire, Deputy Associate Sol., Carin Ann Clauss, Sandra P. Bloom, U. S. Dept, of Labor, Washington, D. C., Alfred G. Albert, Acting Sol. of Labor, U. S. Dept, of Labor, George T. Avery, Regional Sol., Dallas, Tex., for plaintiff-appellant.
    Conde N. Anderson, Munson Smith, Victoria, Tex., for defendant-appellee.
    Before JONES, THORNBERRY and COLEMAN, Circuit Judges.
   COLEMAN, Circuit Judge:

This suit was initiated by the Secretary of Labor under § 17 of the Fair Labor Standards Act (the Act), to enjoin the Victoria Bank & Trust Company of Victoria, Texas (the Bank), from violating the equal pay provisions of the Act and for back wages due certain female employees in the Note Department of the Bank. The District Court found no violation on the theory that any differential in pay between male and female bank tellers was justified as a statutory exception. From this adverse determination, the Secretary appeals. We affirm as to the exchange tellers and reverse and remand as to the note tellers.

I

The Exchange Tellers

A. The basic difference between Exchange Tellers and Note Tellers

Within the Note Department of the Bank there existed a position entitled “exchange teller”. It was manned by only one individual at a time and was located at a separate window, identified as the exchange window. The remainder of the tellers in the Note Department were designated note tellers. As to the exchange tellers, the Secretary would establish, on account of sex, unequal pay for equal work by three comparisons: (1) a comparison of the exchange teller and note teller positions; (2) a comparison of different salaries within the exchange teller position; and (3) a comparison of the different salaries within the note teller positions.

■ The Secretary first had to show unequal pay for jobs of equal work and responsibility. When this is done, the employer then has the burden of proving that any unequal pay results from some factor other than sex, Hodgson v. Brookhaven General Hospital, 5 Cir., 1970, 436 F.2d 719.

The District Court found that any existing pay differential was explained by some permissible basis other than sex. If the Court applied the proper legal standards, our review is to determine if his findings are supported by substantial evidence and thus not “clearly erroneous”. If, however, an unexplainable difference in pay did exist, the amount is of no importance on the general issue of liability, Hodgson v. American Bank of Commerce, 5 Cir., 1971, 447 F.2d 416.

The District Judge found that the positions of exchange teller and note teller did not provide a proper comparison because that of exchange teller carried more responsibility and therefore justified higher pay. The criterion here was clearly delineated by this Court in Hodg-son v. Brookhaven General Hospital, supra:

“The equal effort criterion has received substantial play in the reported cases to date. As the doctrine is emerging, jobs do not entail equal effort, even though they entail most of the same routine duties, if the more highly paid job involves additional tasks which (1) require extra effort, (2) consume a significant amount of the time of all those whose pay differentials are to be justified in terms of them, and (3) are of an economic value commensurate with the pay differential. We are persuaded that this approach to the application of the statutory ‘equal effort’ criterion is in keeping with the fundamental purposes of the Equal Pay Act, and adopt it here.” 436 F.2d at 725.

The record reflects that after a thorough internal assessment of its complete operation the Bank classified the exchange teller position in a higher grade than the note teller position. Of course, in Hodgson v. Brookhaven General Hospital, supra, we pointed out that the controlling factor in equal pay allocations has to be job content, not the job description prepared by the employer. Neither should the employer’s rating of jobs be ignored simply because the employer made it, especially where, as here, the rating came after an extensive study of comparative qualifications, degrees of responsibility, and chances of loss to the Bank.

The duties of the exchange teller included income collections, payments on bonds, the sale of traveler’s checks and cashier’s checks, accounting for all traveler’s checks and cashier’s checks, including those sold by the note tellers, exchange of foreign currency, receipt of note payments on commercial and installment loans, and helping in the Note Department as needed.

On the other hand, the duties of the note tellers included receipt of payments on installment loans and the posting of such payments, setting up new commercial and installment loans, computing interest on loans, handling automatic charges against customers’ accounts for payments on loans, and preparing various reports reflecting transactions and the status of the accounts in the Note Department.

The record is convincing that the duties of the exchange teller were more complicated and were such that errors could not easily be corrected in the internal operation of the Bank. The Note Department duties, however, were of such a nature that errors could be corrected within the internal operation of the Bank. Furthermore, there was a specific duty upon the exchange teller to keep informed as to the current rates of exchange. An error there would be very difficult to correct. The chance of loss to the Bank was greater than with any duty of the note tellers. This, the lower court felt, led to greater responsibility in the exchange teller position and, therefore, validated any pay differential between the two positions. We agree.

While the record does reflect that on some occasions the note tellers would carry on the exchange tellers’ function and vice versa, mainly when a rush period was experienced by one of the positions, the vast majority of the time the individual positions were actually manned by the person designated to do so. Furthermore, if a note teller was for some reason carrying on the duties of the exchange teller, the designated exchange teller was not relieved of the accountability and responsibility for the actions of the person carrying on the exchange teller duties.

The Bank has since discontinued the position of exchange teller. While this position was absorbed into the regular Note Department work, it was done so only after the Bank had transferred several experienced workers into the Note Department. This concerted effort to strengthen the Note Department resulted from a large turnover in personnel in that Department. After strengthening the Note Department with some long-term employees, the responsibilities of the exchange teller position were taken on primarily by an experienced employee. Although he didn’t wait on customers, he did have full accountability for the transactions.

The Secretary infers that since the Note Department absorbed the exchange teller position and that since several experienced employees had been moved from exchange teller to note teller, the positions were of equal work and responsibility. However, in light of the differing duties and responsibilities, as well as the Bank’s need to strengthen the Note Department, there is no reason for us to stamp the findings as to differences in the nature of the work with the “clearly erroneous” label, Hodgson v. American Bank of Commerce, swpra.

The Secretary further urges, however, a comparison of the salaries paid to the various individuals who, at one time or another during the period in question, occupied the position of exchange teller. In the first place, there is no question that the positions were equal, for they were the same. A meaningful comparison of the salaries paid the males and females, to say the least, is difficult because there was never more than one person at a time holding the exchange teller job. Consequently, the salaries sought to be compared existed at differing intervals of time, under varying price levels applicable at any particular point.

Hence, we conclude that none of the factors hereinabove discussed suffice to overturn the basic findings as to the exchange tellers.

B. A Comparison of the Individuals and the salaries paid them as Exchange Tellers

Marjorie Chanek began with the Bank in the Note Department in February, 1960, at a salary of $175 per month. She became exchange teller in 1963 at a salary of $265. She left the position in 1965, when she was receiving $325.

Her successor was Carlton Speck. He had begun with the Bank in November 1954 as a bookkeeper. He was paid $410 a month as exchange teller, but it will be noted that he began work for the Bank six years before Mrs. Chanek did.

He, in turn, was succeeded in January 1969, by Mrs. Sharon Grammer. She had been employed at the Bank for one year, receiving $280 monthly as a note teller. Upon the new assignment, her salary was raised to $320. She, however, left the Bank after only six months as exchange teller. It had been understood from the beginning that she only wanted to work until her husband completed his education and she had been hired as a favor to her father, who was a good customer of the Bank, although it had a policy against short term employments.

Christopher Langenberg succeeded Mrs. Grammer. She trained him for two months before leaving the Bank. He started at a salary of $325. By February, 1971, he was receiving $395, at which time he was transferred to the Credit Department, where he is still employed.

The Bank explains Speck’s higher salary, as compared to that of Mrs. Cha-nek, on the basis of five years added seniority and merit raises received accordingly.

The pay differential between Mrs. Grammer and Mr. Langenberg was explained on the basis that he expected to be a permanent employee, while it had been mutually agreed that Mrs. Gram-mer would only be a temporary one.

Obviously, these differences and the explanation offered can logically give rise to differences of inference and opinion. Nevertheless, viewed in their entirety we perceive no substantial basis for substituting our opinion, if we had one, for that of the trier of the fact. Close questions of this kind are peculiarly within his province and they do not lend themselves to a contrary appellate disposition.

C. A Consideration of the Bank’s Merit and Seniority Systems

The District Judge heavily relied on these systems as justification for the disparate salaries between men and women. The seniority evaluation was an annual undertaking. The Personnel Manager would pass out to the department heads forms on all employees. This form was filled out by the respective department heads as to each employee’s present salary, last raise, and recommended raise. The form also graded the people on their knowledge of the job, their ability in their present job, their ability to meet the public, and other general characteristics.

The Personnel Manager would then record what raise he recommended and pass the form on to the Operations Committee. The Operations Committee, upon consultation with the department heads, could adjust the individual’s raise either up or down. The recommendation then went to the Management Committee for final approval. These longevity raises were usually standard, but some merit consideration was also involved.

The merit system that the defendant used approximated, in reality, the seniority system and dovetailed with it. In addition to the combined annual review, however, a department head could initiate the form on an outstanding employee during the year. Since merit evaluation was combined with the annual longevity review, the purely merit evaluation was rarely used.

It is clear that salary discrepancies could occur for people who have served in different departments. Their merit was, of course, measured in comparison with those doing the same work. Furthermore, a person might work for a while in a department where his assigned duties are not fitted to his specific nature or talents. Yet, in another department, this same individual might “find his true place”. These factors could produce legitimate wage differentials for persons with equal longevity who have served in various departments throughout their tenures of employment. Also, the standard annual longevity raises could cause disparate wages among those with differing lengths of service.

The Act, of course, specifically provides an exception for disparate wages resulting from seniority and merit systems. In Hodgson v. Brookhaven General Hospital, supra, 436 F.2d at p. 726, we said that

“[t]he employer must show that its ‘merit system’ is administered, if not formally, at least systematically and objectively. Cf. 29 C.F.R. § 800.144.”

Defendant’s program was a systematic, formal system guided by objective, written standards. The record reflects several instances of the objectivity of the defendant’s system where females were advanced over males as a result of the merit and seniority system. With the merit and seniority programs qualifying as exemptions under the Act, the District Court correctly held that disparities resulting from these programs were not in violation of the Act.

II

The Note Tellers

As to these employees, the record presents a different picture. A list of these employees, all female but one, will be set forth as an Appendix to this opinion, with comparative information as to each.

Since October, 1968, nine new note tellers have been hired and placed in the Note Department. The only male employee, who had no college education and no prior employment other than military, was started in April, 1970, at a salary of $325 per month. Obviously, seniority and job performance had nothing to do with this figure. The female employees began between October, 1968 and October, 1971, at salaries ranging between $280 and $300 per month, except for one who began at $325.

The District Court found that the individual salaries were based on “their college and work experience”; an aptitude test which required twelve minutes, the form and results of which are not in the record; and the assessment made by department heads and personnel managers made during interviews of the applicants’ personality and apparent ability. The Court also held that free market forces in the employment market must be considered — that is, what salary will the best applicant accept and how badly does the Bank need to fill a particular position.

The Secretary argues that the use of the “market force” theory, i. e. a woman will work for less than a man, is not a valid consideration under the Act, Brennen v. City Stores, Inc., 5 Cir., 1973, 479 F.2d 235, fn. 12. See, also, Hodgson v. Brookhaven General Hospital, supra. With this concept we must agree.

It cannot unequivocally be said, however, that the District Judge applied this erroneous “market” standard. He states that the salary was that which the best applicant would accept. This, of course, seems to indicate that the lower court felt that, under the proper legal standard, the evidence showed that merit and benefit to the Bank were the sole salary considerations.

Even so, there is just not substantial evidence in the record to show that the disparate salaries paid the women were derived from factors other than sex. This burden belonged to the defendant and it was not met.

First, the subjective evaluations of the employer cannot stand alone as a basis for salary discrimination based on sex. If this were allowed, “the exception will swallow the rule”. Cf. Shultz v. First Victoria National Bank, 5 Cir., 1969, 420 F.2d 648, 657. As to an aptitude test, the record fails to reveal the content or results of such a test. A look at the appendix shows that the factors of college education and work experience do not support the defendant’s claim that the disparate pay was due to some factor other than sex. If any disparity should have existed as the result of education and work experience, some of the females should have been paid more than the male standard.

In comparing the male and female salaries of this group, the Secretary alleges as proper male standards Christopher Langenberg and Stephen Wallace. Lan-genberg, however, is not a proper standard for comparison, because, as explained above, he was hired solely for the exchange teller position and the exchange teller position is not one of equal work and responsibility and, therefore, not a proper standard for comparison.

The remaining male in this group of newly hired employees was Stephen Wallace. Mr. Wallace remained with the Bank but one month. For this reason, the District Judge found that as a short term employee, he could not be held to be a male standard. In this we think he misapprehended the effect of the evidence. The significance of the initial salary of an employee is of the utmost importance because in the case of a person starting at a lower salary it would be extremely difficult for the lower paid person ever to catch up under the seniority system of pay raises.

Defendant argues that all of its employees undergo a ninety day probationary system. A close examination of the record, however, indicates that the raise following the ninety day probationary period is, almost without exception, standard. In fact, the strongest inference gained from the record is that those started below $300 are raised $20 following the probation period, while those who start at $300 per month or more are raised $25 at the end of the probation period. Since Wallace was hired by the defendant with the full expectation that he would become a full-time employee, he is the proper male standard for comparison in relation to the beginning employees in his group.

Wallace was hired in April, 1970, and received a starting salary of $325 a month. He had no college education and almost no experience other than two years service in the Army.

Of the eight female employees, only Patricia Anderson was paid the same salary as Wallace. Mrs. Anderson was thirty-four years old with a considerable amount of previous work experience, yet she was paid the same as' Wallace who had very little, if any, previous work experience.

The remaining seven new female employees were paid less than Wallace. Four of the seven remaining female employees had some college credit, ranging from one semester to two years. They all had previous work experience, several as cashiers. Daphne Bryant, hired one year after Wallace, had been a cashier and salesgirl. She had one year of college. Her previous work experience, dealing with money and meeting the public, in addition to one year’s formal secondary education, would appear to have qualified her for a salary at least equal to Wallace’s. However, she was paid $25 a month less for the same work and responsibility.

A further example of the defendant’s failure to satisfy the disparate results by reason of education and experience is illustrated by Yvonne Davidson. She had two years of college and a short experience with an insurance company. She was paid $290 a month.

We certainly cannot and do not say that each and every one of the newly hired females should have been paid $325. For example, Claudette Wells, although age twenty-seven, had no college education and her previous work experience was limited to domestic work. She did not have the qualifications the rest of the females possessed. Factors of this kind, wholly unrelated to sex, may be evaluated upon remand.

The Bank has not met its burden of proof of establishing any factor to explain the disparate salaries of the note tellers as between the male and female employees. The specific awards to which the female employees in the Note Department are entitled must be left to the District Court upon remand, with the caveat that the discrimination which existed may not be cured by lowering any salary, 29 U.S.C., § 206(d) (1).

As to the exchange tellers, affirmed.

As to the note tellers, reversed and remanded for further proceedings not inconsistent herewith.

APPENDIX

NEWLY HIRED EMPLOYEES -NOTE DEPARTMENT

Name Salary Employed Education Employment Age

Stephen Wallace $325.00 Apr. 1970 No college Army; Viet Nam 21

Veteran_

Jan German 280.00 Oct. 1968 1 sem. college Receptionist for 19

father

Sandra Bettis 280.00 Bay 1970 No college School District 19

clerk

Claudette Wells 280.00 Aug. 1971 No college $1.00 an hour 27

domestic work

Yvonne Davidson 290.00 June 1970 2 yrs. college 1 month, Ins. Co. 19

Janet Fikes 300.00 Feb. 1971 No college Cashier, Woolco 20

Daphne Bryant 300.00 May 1971 1 yr. college Cashier, pharmacy

salesgifl, Grants 21

Dianne Talley 300.00 Mar. 1971 1 yr. college Typing, telephone, 20

parttime stenographer

Patricia Anderson 325.00 Oct. 1971 No college Husband, hospital 34

School District

      . 52 Stat. 1060, as amended; 29 U.S.C., § 201 et seq.

      . 29 U.S.C., § 206(d) (1) states:
      “No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.”

      . The District Court opinion said:
      “The Defendant bank has the burden of justifying the differences in pay between male and female employees. There is sufficient evidence to show that in this fluctuating situation the pay of the employees in question was dictated not by sex of the employees but by one of the following factors not based on sex: (1) merit and seniority; (2) the need to fill the exchange teller positions; (3) the need to transfer into the Note Department experienced employees from other departments; and (4) the need for a beginning salary range for new applicants.”


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joseph Morris HALL, Defendant-Appellant.
    No. 73-3627
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 9, 1974.
    Rehearing Denied June 20, 1974.
    J. V. Eskenazi, Federal Public Defender, Miami, Fla. (Court-appointed), Robert M. Moore, Asst. Public Defender, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Lawrance B. Craig, III, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before WISDOM, GOLDBERG 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:

Appellant Joseph Morris Hall was found guilty by a jury of violating Title 18, United States Code, § 871, in that he knowingly and willfully made an oral threat to take the life of the President of the United States. Finding no error in his conviction, we affirm.

During the wee morning hours of August 2, 1973, a person telephoned the F. B.I. office in Miami, said that he was going to kill President Nixon, and then gave his name as Joseph Hall and his address as a trailer in Mango Trailer Park at Northwest 79th Street and 29th Court. Later that morning a Secret Service agent, notified by the F.B.I., went to the address given, knocked on the door of the trailer, identified himself to the man who answered, and asked if he was Joseph Morris Hall. The man responded that he was indeed. The agent then asked if he had contacted the F.B.I. in Miami early that morning, to which he responded that he had. Thereupon, Mr. Hall was placed under arrest and taken to the county jail, where he was for the first time given the warning required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He then waived his Miranda rights and admitted that he did in fact threaten the President’s life on the phone that morning.

Appellant raises three points on appeal: (1) that he was in custody when he made his first admission that he had called the F.B.I. and that, therefore, this statement should have been suppressed under the Miranda rule; (2) that, since the first statement was in violation of Miranda, the second statement made at the jail after a proper warning should have been suppressed, even without an objection, as the fruit of the first statement; and (3) that the court should have instructed the jury that they had to find specific intent to carry out the threat on the President’s life.

We evaluate appellant’s first point in the manner stated in Brown v. Beto, 468 F.2d 1284, 1286 (5th Cir. 1972):

Before law enforcement officers can subject a citizen to custodial interrogation, he must first have been given the Miranda warnings. In Miranda “custodial interrogation” was defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” This court has yet to formulate a general rule for distinguishing custodial from non-custodial interrogation but instead has preferred to take a case-by-case approach. ... In making the distinction between custodial and noncustodial interrogation this court has singled out certain criteria as having special significance; these include probable cause to arrest, subjective intent of the police, subjective believe of the defendant, and focus of the investigation. Although none of these factors is alone determinative, we have recently indicated that the most compelling is whether or not the focus of the investigation has finally centered on the defendant, (footnotes omitted)

Applying these criteria to the peculiar circumstances of this case, we conclude that Hall was not in custody when he made the first incriminating statement. Prior to this time the investigating agent had no basis on which to proceed other than his instructions that somebody had called in the threat and cooperatively given a name and address. He had not heard the telephone conversation and could not, therefore, link the voice on the phone with that, of the man who answered the door and stated that he was Joseph Morris Hall. At this point it must have seemed as likely as not that someone was playing a bad practical joke on Mr. Hall. Not until he admitted that he had placed a call to the F.B.I. that morning did the investigation sufficiently focus on our appellant. Only thereafter was any interrogation “custodial.” And this status was given substance by his immediate arrest, transport to jail, and advisement of Miranda rights.

After appellant had voluntarily waived his rights to counsel and to remain silent, he was asked the next question: did he threaten the life of the President. His affirmative response was properly heard as evidence. The admissibility of his pre-custodial statement precludes any argument that this custodial admission was “tainted.” ;

Appellant’s final point, that the trial judge erred in refusing to instruct the jury that specific intent to harm the President was a requisite element of the offense, is foreclosed by our recent decision to the contrary in United States v. Rogers, 488 F.2d 512 (5th Cir. 1974).

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Ray SMITH, Defendant-Appellant.
    No. 73-2851
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 9, 1974.
    Rehearing Denied July 23, 1974.
    William O. Callaway, Jr., Fort Worth, Tex., for defendant-appellant.
    Frank D. McCown, W. E. Smith, Asst. U. S. Atty., Fort Worth, Tex., Scott P. Crampton, Asst. Atty. Gen., (Attention: John P. Burke) Meyer Rothwacks, John P. Burke, Charles E. Brookhart, Attys., Tax Div., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

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

   PER CURIAM:

Smith appeals from a conviction for failure to file an income tax return for 1971 in violation of Section 7203 of the Internal Revenue Code. He also appeals from the district court’s denial of his motion under Rule 10(e), Fed.R.App.P., to modify the stipulation in the record in which he stated that he willfully and knowingly failed to make the required income tax return. On the merits Smith insists that the requirement of filing a tax return violated his right against self-incrimination, and that the evidence was insufficient to sustain a conviction. We affirm.

Smith was indicted for tax evasion while a state indictment for selling heroin and cocaine was also pending against him. At trial, he stipulated that he had received income, that he was required by law to file an income tax return, and that knowing this, he willfully and knowingly failed to make such a return. Having thus evacuated his statutory defenses, he fell back on the Fifth Amendment: because he would have had to report that his income came from selling heroin and cocaine, the requirement of filing a return violated his Fifth Amendment privilege. The district court convicted him and sentenced him to six months’ imprisonment.

Seeking to avoid the effect of his stipulation, Smith subsequently requested, under Fed.R.App.P. 10(e), the district court “. . .to correct, modify, and supplement the record so as to reflect that the meaning of ‘willful’ as used in [the] stipulations . . . means an act done ‘purposefully with an awareness of the action and not just negligently or inadvertently.’ ” Additionally, Smith requested that court to make findings that “. . . the evidentiary test of willfulness used by the court was the test pronounced in United States v. Douglass, 476 F.2d 260, 263 (5th Cir. 1973), defining a willful act as one ‘purposefully done with an awareness of the action and not just negligently or inadvertently,’ [and not] the test of willfulness pronounced by United States v. Bishop,” 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973), the most recent Supreme Court decision on the issue.

That court denied the motions on the basis that Rule 10(e) *does not empower a district court to modify parties’ stipulations or make new findings of fact after docketing of the appeal in the court of appeals. We agree. Rule 10(e) exists to allow the district court to conform the record to what happened, not to what did not.

As to Smith’s claim of Fifth Amendment privilege, nothing has changed since United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927), where the Supreme Court said:

If the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all.

Cf. California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971).

Finally, we conclude that Smith’s own stipulation that he knowingly and willfully failed to make an income tax return was sufficient evidence of his state of mind to support his conviction for willful failure to file an income tax return.

Affirmed.

      . Fed.R.App.P. 10(e) :

        “Correction or Modification of the Record. If any difference arises as to whether the record truly discloses what occurred in the district court, the difference shall he submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the district court, either before or after the record is transmitted to the court of appeals, or the court of appeals, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the court of appeals.”

      . Although it is unnecessary to our decision, we note that we are not persuaded by Smith’s contention that Bishop established a new definition of willfulness — a standard to which Smith claims he did not stipulate. Not only was Bishop decided a month before Smith’s stipulation, but the Bishop court cited this Oourt’s decision on the issue, Haner v. United States, 315 F.2d 792 (5th Cir. 1963), with favor. 412 U.S. at 348, 93 S.Ct. at 2011, 36 L.Ed.2d at 944, n. 2. Additionally, we see no meaningful distinction between the Bishop standard and our decision in United States v. Douglass, 476 F.2d 260 (5th Cir. 1973).


text:
    United States Treasury Department (Internal Revenue Service) et al., Plaintiffs, COMMUNITY STATE BANK OF INDEPENDENCE, LOUISIANA, Plaintiff-Appellee, v. UNITED STATES of America, Intervenor-Appellant, v. John S. GARRETT, Defendant.
    No. 73-3174.
    United States Court of Appeals, Fifth Circuit.
    May 10, 1974.
    Rehearing Denied June 12, 1974.
    Robert S. Leake, Asst. U. S. Atty., Douglas M. Gonzales, U. S. Atty., Baton Rouge, La., Fred B. Ugast, Act. Asst. Atty. Gen., Tax Div., Dept, of Justice, Washington, D. C., John R. Schupp, Asst. U. S. Atty., New Orleans, La., Crombie J. D. Garrett, Scott P. Cramp-ton, Meyer Rothwacks, Alfred S. Lombardi, Tax Div., Dept, of Justice, Washington, D. C., for United States of America.

      Reginald J. McIntyre, Arthur W. Macy, Hammond, La., for plaintiff-ap-pellee.
    William T. Reeves, Asst. Atty. Gen., William L. Wilson, Baton Rouge, La., for other interested parties.
    Before DYER, MORGAN and RO-NEY, Circuit Judges.
   PER CURIAM:

The deciding issue on this appeal by the Government is whether the public policy of Louisiana precludes the assignment by a State Legislator of his governmental compensation as security for a loan.

Representative Richard E. Cheek, a Louisiana State legislator, assigned his legislative salary and allowances to the Community State Bank for thirty-one months as security for a $15,000 loan. Previous to the assignment, but on the same day, the Internal Revenue Service filed a tax lien against Cheek in the amount of $1,446.64, plus penalty and interest for underpayment of income taxes. Two and one-half months after the assignment, a second tax lien was filed against Cheek in the amount of $25,911.58.

When John S. Garrett, payroll disbursement officer for the Louisiana House of Representatives, became aware of the conflicting claims against Cheek’s salary, he invoked a concursus proceeding in the state court and deposited Cheek’s salary with the Clerk. The Government removed the case to the United States District Court for the Eastern District of Louisiana.

On a motion for summary judgment the District Court established the following priority of claims: (1) the $1,446.64 tax lien; (2) the assignment to the Community State Bank; and (3) the $25,911.58 tax lien. Since the first two claims would exhaust Cheek’s governmental salary deposited with the court, the second tax lien would in effect be extinguished as to those funds if the assignment to the bank is valid.

On appeal the Government does not challenge the priority established by the District Court but asserts the invalidity ab initio of the assignment to the Community State Bank. Relying on McGowan v. City of New Orleans, 118 La. 429, 43 So. 40 (1907), the Government argues that an assignment of a public official’s unearned salary is against the public policy of Louisiana and is void.

McGowan is distinguishable from the case at bar: in that early Louisiana case, a minute clerk for the Orleans Parish Criminal District Court assigned one month of his unearned salary, comprising his sole income for that period, to the plaintiff. The Louisiana Supreme Court, in holding such an assignment void against public policy, stated that

if the unearned salary of one day or one month may be assigned that of the officer’s entire term may be in like manner assigned, and thus the officer deprived of the means provided for his support, and thereby the public service be impaired
[I] t is that the man must live, and that, if service is expected of him, he must be supplied with the means of livelihood.

43 So. at 40, 42.

Although no other cases have been cited as guidance for our determination of the present public policy of Louisiana, we think that the rationale of McGowan is not present in the case sub judice. McGowan rested on the policy against permitting a public employee to contract away his future earnings and thus depriving himself of his means of support. Fulfilling the duties of a State Representative is not a full-time occupation in Louisiana, however, since the Legislature does not convene throughout the year. A legislator’s compensation is computed on a per diem basis corresponding to attendance at the legislative session. See L.S.A.-R.S. 24:31. The assignment of Cheek’s legislative salary, therefore, does not “deprive [him] of the means provided for his support, and thereby the public service be impaired.”

We agree with the District Court that the application of McGowan depends upon whether an assignment of a public officer’s salary deprives him of his means of support and must be considered on a case-by-case basis. Cheek’s assignment to the Community State Bank being valid, the Government’s second tax lien must follow as a third priority.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Estanislao MERLA, Defendant-Appellant.
    No. 73-3660
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 6, 1974.
    Abel Toscano, Jr., Harlingen, Tex. (Court-appointed), for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Houston, Tex., Edward B. McDonough, Jr., B. Stephen Rice, James R: Gough, Mary L. Sinderson, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
    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:

This appeal is from a conviction for knowingly and intentionally possessing with intent to distribute approximately 162 pounds of marihuana, a Schedule 1 controlled substance, in violation of Title 21, U.S.C., Section 841(a)(1). Prior to trial the defendant moved to suppress and return the evidence, and the court directed that the motion to suppress be carried at trial with the government’s case for ruling when the government rested its case. Trial by jury was waived and the case both as to the merits and as to the motion to suppress was tried before the court under a stipulation of facts, the trial taking place on July 23, 1973. On July 30, 1973, the trial court denied the motion to suppress and found the defendant guilty of the offense charged. The defendant was adjudged guilty and sentence was thereafter imposed providing for imprisonment for four years with a special parole term of three years. This appeal followed.

Under the stipulation the following facts were established without conflict: The defendant-appellant Merla, accompanied by his four-year-old daughter and driving a 1963 Ford Galaxie, was stopped by border patrol agents performing their official duties on October 15, 1972, about 6:30 P.M. at the border patrol checkpoint five miles south of Sarita, Texas. One of the agents, Senior Border Patrol Agent Phillips, after determining the citizenship of both occupants of the Ford Galaxie, requested that the vehicle trunk be opened for a routine inspection for aliens. Merla opened the trunk revealing a large blanket covering a bulky substance. Agent Phillips detected a strong odor of an air freshener. Further examination was made to determine whether aliens were concealed by the blanket and three large burlap bags of the type used to transport marihuana were revealed. Upon further examination the bags were found to contain 162 pounds, 12 ounces of marihuana packed in the form of kilo bricks. Merla was then arrested by Agent Phillips. About 7:30 two agents of the United States Customs Service arrived at the checkpoint and took custody of the appellant, the contraband and the vehicle. After being advised of his rights under Miranda, by one of the Customs agents, Merla stated that he was en route to Chicago where he was to deliver the marihuana and receive $500. He agreed to cooperate with the agents- and deliver the contraband in an area south of Chicago but because he was unable to give more than a vague description of the proposed delivery or of the proposed recipients of the marihuana, the transport did not take place. It was further stipulated that testimony by Mr. Ball, of the Border Patrol Office in McAllen, Texas, would show that the Sarita checkpoint was maintained because of its strategic location on a direct route leading from the border. Other routes were available including one through the King Ranch but were not as readily accessible. The checkpoint is shifted to three different spots along the road to prevent smugglers of aliens from knowing where the checkpoint is situated at a particular time. Figures were also introduced as to the number of arrests of aliens, alien smugglers, narcotic and marihuana arrests and the value of the vehicles seized at the Sarita checkpoint during the preceding years.

The sole question raised on appeal is whether or not the trial court erroneously denied the defendant’s motion to suppress evidence. Appellant’s brief asserts that the Sarita checkpoint was 85 miles from the Mexican border. The distance is not controverted by the government’s brief, and we accept it as correct. Annexed to the government’s brief is a map of the area which shows the checkpoint on U.S. Highway 77, about 45 miles due north of Raymondville and about 5 miles south of Sarita. It is the most direct route north from the border crossing at Brownsville-Matamoros.

The search and seizure involved took place eight or nine months prior to the decision of the United States Supreme Court on June 21, 1973, in Almeida-San-chez v. United States, 1973, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596, although the trial occurred about a month after that decision. Denial of the motion to suppress was clearly correct under our decisions prior to Almeida-San-chez, which announced a new rule invalidating searches without probable cause anywhere except at the border or its “functional equivalent”. If Almeida-Sanchez were to be applied retroactively, we would be called upon to resolve the difficult questions raised by the briefs in this case as to whether the Sarita checkpoint is the functional equivalent of the border and whether or not probable cause was present.

However, by its definitive opinion in United States of America v. Miller, 5 Cir. 1974, 492 F.2d 37 this Court has determined that Almeida-Sanchez shall be given only prospective application. Since the search and seizure in the instant ease took place prior to the date of that decision, the motion to suppress was correctly denied and the marihuana was properly received in evidence.

The judgment appealed from is affirmed under the authority of Miller, supra.

      . Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

      . See Title 8, Code of Federal Regulations 287.1 defining “a reasonable distance from any external boundary of the United States” as used in Title 8, U.S.C., Section 1357 (a) (3) as not exceeding 100 air miles.

      . See also United States v. Cook, 5 Cir. 1974, 492 F.2d 747 [No. 73-2906 decided April 12, 1974],


text:
    James WATSON, Petitioner-Appellant, v. Judge HENDERSON, Respondent-Appellee.
    No. 74-1043
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 6, 1974.
    James Watson, pro se.
    John W. Stokes, Jr., U. S. Atty., Anthony M. Arnold, Asst. U. S. Atty., Atlanta, Ga., for respondent-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:

This appeal comes from an order of the district court denying the mandamus petition filed against District Judge Albert J. Henderson by a Georgia state prisoner. We affirm.

Appellant had previously filed Civil Action No. 16821 for monetary damages in the court below claiming that he had not been furnished a complete trial transcript. Judge Henderson, to whom the case was allotted, granted a defense motion for summary judgment. Subsequently appellant filed his petition for a writ of mandamus to direct Judge Henderson to show cause why he had dismissed appellant’s petition in no. 16821. Appellant alleged that Judge Henderson was prejudiced against him; that a judgment had never been rendered on the original complaint, but only on a motion to amend the complaint; that the reasons for granting summary judgment were erroneous; and that because he had never received a copy of a final judgment, he was prevented from appealing. The district court dismissed the mandamus petition.

The record before us includes a copy of the record in case no. 16821 which contains appellant’s notice of appeal and application for a certificate of probable cause. In those documents, filed within 30 days of judgment, appellant referred to the “final order of denial” and “the order of dismissed [sic] with prejudice.” These documents clearly refute appellant’s contentions that his complaint had never been ruled upon and that he had not received a copy of the order, which had prevented him from appealing. Furthermore, a reading of the order of dismissal in no. 16821 shows that it clearly disposes of that case on its merits. The mandamus petition was patently lacking in good faith.

Also, as the district court found, it is not the function of a district judge to consider errors allegedly committed by another district judge in the performance of his duties. 28 U.S.C. § 1291. We perceive no error in the judgment below and accordingly the judgment below is affirmed.

Affirmed.


text:
    Domingo Hernandez NERIA, Jr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-1199
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 6, 1974.

      Johnny Searls, El Paso, Tex. (Court-appointed), for petitioner-appellant.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ralph E. Harris, Asst. U. S. Atty., El Paso, Tex., for respondent-appellee.
    Before COLEMAN, DYER and RO-NEY, 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, Part I.

   PER CURIAM:

The district court’s refusal to impose sentence under the provisions of the Narcotic Addict Rehabilitation Act, 18 U.S.C.A. §§ 4251-4255 is the sole error asserted by Neria on appeal. We affirm.

Neria pled guilty to conspiring to possess heroin with intent to distribute in violation of 21 U.S.C.A. § 846. He was sentenced to 15 years with a special parole term of 15 years. His subsequent 2255 motion attacking the sentence was denied by the district court which found Neria ineligible for commitment under NARA.

The statute under which Neria claims entitlement to relief poses two obstacles which he cannot overcome. First, 18 U.S.C.A. § 4251(f)(2), not mentioned by Neria, excludes “an offender who is convicted of unlawfully importing or selling or conspiring to import or sell a narcotic drug, unless the court determines that such sale was for the primary purpose of enabling the offender to obtain a narcotic drug which he requires for his personal use because of his addiction to such drug.” Such a determination was not made by the court. Second, § 4251(f)(4) excludes “an offender who has been convicted of a felony on two or more prior occasions.” It is undisputed that Neria had two prior felony convictions. Relying on Watson v. United States, 1970, 141 U.S.App.D.C. 335, 439 F.2d 442, Neria argues, however, that this portion of the statute is unconstitutional. This contention has now been answered in Marshall v. United States, 1974, 414 U.S. 417, 94 S.Ct. 700, 38 L.Ed.2d 618 in which the Supreme Court held that the exclusion provisions of the Act do not violate due process or equal protection concepts.

Finally, in United States v. Hart, 5 Cir. 1974, 488 F.2d 970 we had this to say concerning the district court’s discretion under NARA :

If a defendant is to get NARA rehabilitative sentencing the court must determine that he is an eligible offender and believe that he is an addict; then the court may, in its discretion, place him in the Attorney General’s custody for an examination preliminary to treatment. (Emphasis supplied)

Affirmed.