author: HILL, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Phillip Dale VAN SCOY, Defendant-Appellant.
    No. 73-1027.
    United States Court of Appeals, Tenth Circuit.
    July 10, 1973.

      Tom J. Lee and John Connolly, Oklahoma City, Okl., for defendant-appellant.
    William R. Burkett, U. S. Atty., Oklahoma City, Okl., for plaintiff-appellee.
    Before HILL, JONES, and DOYLE, Circuit Judges.

       Of the Fifth Circuit, sitting by designation.

   HILL, Circuit Judge.

Appellant Van Scoy was charged with robbing a national bank in violation of 18 U.S.C. § 2113(a) and (d), and with being an accessory after the fact of said bank robbery in violation of 18 U.S.C. § 3. A jury found him innocent of the bank robbery charge, but guilty of being an accessory after the fact.

The evidence adduced at trial shows Van Scoy and James Johnson to have served together at the Oklahoma State Penitentiary until Van Scoy’s release May 20, 1970. On October 25, 1970, Johnson escaped from prison and was picked up by his sister, Anita Hughes. After dropping Johnson off in Ardmore, Oklahoma, Mrs. Hughes next heard from' her brother by telephone, at which time she was informed that he could be reached through Van Scoy.

On November 3, 1970, Van Scoy, using the name Rick Vance, leased apartment 210 in the Seven Seas Apartments in Del City, Oklahoma. On the same day Johnson robbed the State National Bank of Marlow, Oklahoma. Four days later Johnson’s mother received a telephone call advising her that Johnson was seriously injured and asking her to come to Seven Seas Apartment 210. Upon arriving at the apartment she learned that Johnson had been injured in a shoot-out with the highway patrol. She stayed there 24 hours attending her son, and during much of this time Van Scoy was present. When Mrs. Hughes called Van Scoy to check on her brother, Van Scoy asked her to get some penicillin and glucose for her injured brother. Van Scoy then took her to apartment 210 to deliver the medicine.

On November 8 Van Scoy informed Johnson that he could not go home because the FBI was looking for him. Johnson then suggested Van Scoy bring the money to the apartment. Upon returning with the money, Van Scoy informed Johnson he had taken part of it to pay off “those other people.” Van Scoy then took $7,000 from the remaining money to buy a car so they could leave the vicinity. Shortly thereafter and before leaving, Johnson and Van Scoy were arrested.

Johnson and Van Scoy were indicted for bank robbery and in a separate indictment Van Scoy was charged with being an accessory after the fact. On government’s motion the eases were consolidated for trial. As noted previously, at trial the jury found Van Scoy not guilty of bank robbery but guilty of being an accessory after the fact.

On appeal Van Scoy offers two issues for our consideration. First, he charges the trial court erred in consolidating for trial his bank robbery indictment with his accessory after the fact indictment. Second, he asserts the trial court erred in overruling his motion for a mistrial after the government introduced evidence of his character even though this was not in issue. We find both arguments to be without merit, and accordingly affirm the trial court’s decision.

Van Scoy’s argument against joinder centers around Rule 14 of the Federal Rules of Criminal Procedure, which allows the trial court to order separate trials if a defendant will be prejudiced by joinder of offenses. This Rule is considered cautiously at the appellate level, however, for granting a motion for severance is within the trial court’s discretion. Carpenter v. United States, 463 F.2d 397 (10th Cir. 1972), cert. denied, 409 U.S. 985, 93 S.Ct. 337, 34 L.Ed.2d 251, United States v. Rodgers, 419 F.2d 1315 (10th Cir. 1969). Only when defendant shows an abuse of this discretion will the appellate court intervene. United States v. Jorgenson, 451 F.2d 516 (10th Cir. 1971), cert. denied, 405 U.S. 922, 92 S.Ct. 959, 30 L.Ed.2d 793. “The burden of demonstrating prejudice is a difficult one, and the ruling of the trial judge will rarely be disturbed on review. 8 Moore, Federal Practice ¶ 14.02[1], at 14-3 (2d ed. 1968). The defendant must show something more than the fact that ‘a separate trial might offer him a better chance of acquittal.’ ” Tillman v. United States, 406 F.2d 930, 935 (5th Cir. 1969), cert. denied (for all defendants except Fox), 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742.

In the case at bar, Van Scoy has shown no prejudice resulting from the joinder of offenses, he merely hypothesizes that prejudice has resulted. Mere hypothesis, however, is insufficient in light of Rule 8(a), F.R.Crim.P., which allows joinder if the offenses “are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” Although Van Scoy could not be convicted of both bank robbery and being an accessory after the fact, it is clear the offenses are based upon transactions constituting parts of a common scheme and thus fall within Rule 8(a) jurisdiction. And as the offenses are sufficiently connected together for joinder under Rule 8(a), they' are subject to consolidation under Rule 13, F.R.Crim.P. United States v. Bourassa, 411 F.2d 69 (10th Cir. 1969), cert. denied, 396 U.S. 915, 90 S.Ct. 235, 24 L.Ed.2d 192. A severance of counts is permissible only when defendant shows that he would be prejudiced by going to trial without severance. No showing of prejudice is present here, hence there was no error in denying Van Scoy’s motion for severance. McGee v. United States, 402 F.2d 434 (10th Cir. 1968), cert. denied, 394 U.S. 908, 89 S.Ct. 1020, 22 L.Ed.2d 220.

Van Scoy’s second argument is that error was committed when the trial court denied his motion for mistrial. In the government’s opening statement the fact was brought out that Van Scoy and Johnson were inmates in the Oklahoma State Penitentiary (OSP). To support this fact the government presented two OSP employees who testified to the co-defendants’ incarceration. Apparently the government was trying to prove the two men knew each other prior to Johnson’s escape from OSP, and as a result of this association they jointly participated in the bank robbery. Under the record before us, Van Scoy’s criminal record is not admissible as to any issue in the case on trial and thus it should not have been disclosed in the government’s case-in-chief.

Several other factors convince us, however, that wrongful introduction of Van Scoy’s prison record did not cause reversible harm. One reason is that Van Scoy, as a part of his defense, called Johnson as his witness and Johnson testified as to Van Scoy’s prior prison record. Another reason is the evidence against Van Scoy is overwhelming. Johnson’s mother testified that Van Scoy was present part of the time she was helping her injured son. Anita Hughes, a hostile witness for the government, testified that Van Scoy played an integral part in Johnson’s escape plans after the robbery. This and other evidence convinces us the obvious error of mentioning Van Scoy’s criminal record was harmless. United States v. Murvin, 425 F.2d 1204 (4th Cir. 1970).

We also find Van Scoy waived his objection to the introduction of such evidence by affirmatively stating he had no objection thereto. It was not until the day after Van Scoy’s criminal record had been introduced that his counsel asked for a mistrial. In fact, Van Scoy’s counsel stated he did not object to introduction of Van Scoy’s OSP work records when they were introduced. We find this failure to timely object an effective waiver of his right to object and thus Van Scoy has no redress before our court. United States v. Adams, 422 F.2d 515 (10th Cir. 1970), cert. denied, 399 U.S. 913, 90 S.Ct. 2213, 26 L.Ed.2d 569.

Affirmed.


source: Caselaw Access Project

author: KALODNER, Circuit Judge. ADAMS, Circuit Judge BIGGS, Circuit Judge

license: Public Domain

text:
    A. Jarvis WOOD, on behalf of himself and all similarly situated shareholders of The Granby Mining Company Limited, and on behalf of the Granby Mining Company Limited, Vancouver, British Columbia, Canada, on behalf of itself and all similarly situated shareholders of Granisle Copper Limited, Petitioner, v. ZAPATA CORP. et al., Respondents, and Honorable Daniel H. Huyett, 3rd United States District Judge, for the Eastern District of Pennsylvania, Nominal Respondent.
    No. 72-1694.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 30, 1972.
    Decided June 29, 1973.

      Aaron M. Fine, Stuart H. Savett, Donald L. Weinberg, Philadelphia, Pa., for petitioner.
    David L. Grove, Montgomery, Mc-Cracken, Walker & Rhoads, Philadelphia, Pa., for respondents Zapata Corp., William H. Flynn, James B. Harrison and Ronald C. Lassiter.
   PETITION FOR WRIT OF MANDAMUS OR WRIT OF PROHIBITION, OR BOTH

Before BIGGS, KALODNER and ADAMS, Circuit Judges.

OPINION OF THE COURT

KALODNER, Circuit Judge.

'The petitioner seeks a writ of mandamus or prohibition directing the District Court to vacate its Order of July 18, 1972, under 28 U.S.C.A. § 1404(a), which transferred plaintiff’s action below to the United States District Court for the Southern District of Texas, Houston Division.

The July 13, 1972 Order reads as follows:

“AND NOW, this 13th day of July, 1972, upon consideration of the motion of defendants Zapata Corp., William H. Flynn, James B. Harrison and Ronald C. Lassiter, and an informal argument held in Chambers this date attended by counsel for all parties, it is ORDERED and DECREED that this action be and hereby is, pursuant to 28 U.S.C. § 1404(a), transferred to the United States District Court for the Southern District of Texas, Houston Division.”

The instant petition is premised on two contentions: (1) the District Court abused permissible discretion in granting the transfer motion; and (2) petitioner was deprived of due process of law in that the District Court did not accord him “a reasonable and adequate opportunity to oppose the motion.”

It must immediately be noted that the petitioner, in his brief and on oral argument here, has not adverted to the petition’s contention that the District Court abused permissible discretion in granting the transfer motion. He urges only that he was denied due process in that (1) he “was deprived of an adequate opportunity to present his opposition to the transfer motion”; (2) “[t]he transfer motion was decided prematurely”; and (3) “[t]he reliance by the District Court on an untranscribed conference and the failure to promptly submit findings of fact and conclusions of law requires [sic] the vacating of the transfer order.”

In light of the foregoing, the critical question presented is whether the petitioner was denied due process in the granting of the challenged transfer Order.

The instant proceeding had its genesis in a class action filed by the petitioner A. Jarvis Wood in the United States District Court for the Eastern District of Pennsylvania against the defendants Zapata Corp. (“Zapata”), Lehman Bros., Incorporated, William H. Flynn, James B. Harrison and Ronald C. Lassiter. Wood, in his Amended Complaint, alleged that the defendants violated the Securities and Exchange Act of 1934, in the course of Zapata’s acquisition, in August 1971, of a controlling interest in The Granby Mining Company Limited (“Granby”) and Granisle Copper Limited (“Granisle”), and in continuing efforts to force the sale of the interests of minority stockholders of Granby and Granisle to a subsidiary of Zapata on grossly unfair terms, pursuant to a preexisting merger plan.

Petitioner is a citizen and resident of Brunswick, Georgia. Granby and Gran-isle are British Columbia, Canada, corporations, with their principal places of business in Vancouver, British Columbia.

Zapata is a Delaware corporation with its principal place of business in Houston, Texas. Lehman Bros, is a Maryland corporation, with its principal place of business in New York, and offices in Houston, Texas.

The individual defendants, Flynn, Harrison and Lassiter, are citizens and residents of Houston, Texas. Flynn is chairman of the Board of Directors of Zapata and its chief executive officer; Harrison and Lassiter are respectively president and executive vice-president of Zapata.

Petitioner filed his action in the District Court on March 27, 1972. He filed an Amended Complaint on April 4, 1972 By Stipulation of the parties, filed April 26, 1972, the time for filing an Answer to the Amended Complaint was extended to May 16, 1972.

On May 16, 1972, Zapata and the individual defendants filed two motions— one for a change of venue and the other for a stay of proceedings.

The change of venue motion moved “for an order, pursuant to 28 U.S.C. § 1404(a), transferring this action to the United States District Court for the Southern District of Texas, Houston Division, on the ground that such transfer would be for the convenience of the parties and witnesses and in the interest of justice.” Two affidavits and a Memorandum were filed in support of the change of venue motion.

The stay motion moved “for an order staying all proceedings in this action pending shareholder action on the proposed amalgamation of Zapata Canada Limited, The Granby Mining Company Limited and Granisle Copper Limited, and the conclusion of proceedings relating to said proposed amalgamation before the Supreme Court of British Columbia, Canada. . . . ”

On May 30, 1972, Lehman Bros, filed a motion for stay of proceedings similar in content to the Zapata stay motion.

On June 1, 1972, Zapata and the individual defendants filed a motion for an order “barring all parties and their counsel from communicating with members of the proposed class in the above action” without prior approval of the Court.

Petitioner filed a Memorandum in opposition to the June 1, 1972 motion to bar communications with members of the proposed class.

He did not, however, file of record any opposition or notice of opposition to the Zapata change of venue and stay motions of May 16, 1972, albeit he advised District Judge Huyett by letter dated May 18, 1972 that “[p]laintiffs oppose the granting of either of these motions” and “therefore request the opportunity to fully brief and argue these motions.” The letter further stated that “certain pretrial discovery information which is material to the issues being raised by these motions should be supplied by the defendants before the briefing and arguing of these motions,” and that “[w]e are now in the process of preparing such discovery material addressed to the various defendants which we propose to submit to the Court within a few days, together with a motion for stay of hearing of these defense motions pending defendants’ completion of this requested discovery.” (emphasis supplied).

It must immediately be noted that petitioner never submitted to the Court any “discovery material” relating to the change of venue and stay motions, nor did he ever file a motion to stay the hearing of the two motions, prior to their disposition by Judge Huyett on July 13, 1972.

On May 25, 1972, petitioner wrote a letter to Judge Huyett suggesting he schedule a conference with counsel “to resolve the certain procedural questions which have already arisen, and to set a general timetable and framework within which this case may be litigated.” Among the “procedural questions” outlined in the letter were that the defendants had not filed answers to the Amended Complaint, and that “defendants totally disregarded Local Rule 36” in filing the change of venue and stay motions.

On May 26, 1972, Zapata’s counsel wrote to Judge Huyett indicating willingness to attend the conference suggested by petitioner. The letter took occasion to dispute the “procedural questions” outlined by petitioner in his May 25,1972 letter to Judge Huyett.

On June 1, 1972, Zapata’s counsel wrote to petitioner’s counsel stating: “We believe there is no reason why, if plaintiffs intend to oppose either or both of our motions plaintiffs cannot promptly file memoranda in opposition thereto,” and “[i]n short, we wish to move toward a hearing on our motions at the earliest possible moment.”

On June 7, 1972, petitioner again wrote to Judge Huyett renewing his request for a conference.

On June 14, 1972, Judge Huyett wrote a letter to all counsel for the parties in which he said in critical part:

“A conference will be held in Chambers on Thursday, July 13, 1972 at 11:30 A.M. and all pending matters will be considered.” (emphasis supplied).

The docket of the District Court discloses that on the date of Judge Huyett’s letter advising that “all pending matters will be considered” at the scheduled July 13, 1972 conference, there were pending only the following motions:

(1) the change of venue motion of Zapata and the individual defendants;
(2) the stay motion of Zapata and the individual defendants;
(3) the stay motion of Lehman Bros.;
(4) the motion of Zapata and the individual defendants to bar all communications between counsel for all the parties and members of the proposed class, without prior approval of the District Court.

The conference took place in Judge Huyett’s chambers as scheduled on July 13, 1972. Later that day Judge Huyett entered separate orders granting the change of venue motion, and denying without prejudice the two stay motions and the motion to bar communications.

Petitioner, in his mandamus petition, claims he was denied due process of law because “[i]n deciding the venue motion under the procedure which was followed, Judge Huyett deprived plaintiff of a! reasonable and adequate opportunity to oppose the motion.”

He prefaces that claim with these allegations at page 5 of his petition:

“At various points in the course of that conference, plaintiff’s counsel reiterated the need for the scheduling and taking of discovery on the venue motion. However, actual argument on the motion was never scheduled, nor did plaintiff’s counsel believe that the untranscribed conference in chambers was to serve in lieu of a formal or informal hearing, oral argument and written opposition to the venue motion. Plaintiff’s counsel advised the Court of their intention to file the discovery papers thought necessary and an amended and supplemental complaint. At no time in the conference were plaintiff’s counsel asked to respond to the legal arguments or authorities advanced by defendants in their venue motion and memorandum. Nor did plaintiff believe that an informal scheduling conference was the appropriate occasion to argue the merits of the defendants’ motion.”

The brief, and Answer to the mandamus petition, of Zapata and the individual defendants, sharply dispute petitioner’s contention that “[i]n deciding the venue motion under the procedure which was followed, Judge Huyett deprived plaintiff of a reasonable and adequate opportunity to oppose the motion.”

In their brief, they say that “Judge Huyett ... at the July 13 conference, gave petitioner's counsel the opportunity to state orally petitioner’s position on the transfer motion,” and that, during the conference, “counsel were explicitly asked by Judge Huyett to and did argue their client’s positions on the transfer motion.” (emphasis supplied).

In their Answer to the mandamus petition, they say with respect to the July 13, 1972 conference:

“At the July IS conference Judge Huyett quite explicitly asked for and heard counsel’s arguments concerning the pending transfer motion (which had been filed and served 57 days previously) . (emphasis supplied).
“At no time during the conference did petitioner’s counsel assert that the transfer and stay motions were not before Judge Huyett for determination.
“Petitioner’s counsel first argued that counsel for Zapata and the individual respondents had failed to comply with the 5 day notice provision of Local Rule 36 of the U.S. District Court for the Eastern District of Pennsylvania. Judge Huyett responded that petitioner had had 57 days to respond to the transfer motion.
“Petitioner’s counsel, particularly Mr. Ash, then made many factual representations by which they sought to convince Judge Huyett that the Southern District of Texas would not be a convenient forum for this action.” (emphasis supplied).

What has been said brings us to petitioner’s claim that he “was deprived of an adequate opportunity to present his opposition to the transfer motion,” in disregard of Swindell-Dressler Corporation v. Dumbauld, 308 F.2d 267 (3 Cir. 1962).

In Swindell-Dressler, supra, the trial judge transferred an action pursuant to 28 U.S.C.A. § 1404(a) in the absence of any motion to transfer, and without notice to the parties or affording them an opportunity to be heard as to the transfer. On these facts, we held that the defendant in the transferred action had been denied due process and was accordingly entitled to mandamus relief.

We recently construed Swindell-Dres-sler as holding “that the party opposing transfer was, at a minimum, entitled to notice and an opportunity to be heard, and a failure to afford such an opportunity will be remedied by mandamus.” Solomon v. Continental American Life Insurance Company, 472 F.2d 1043, 1045 (3 Cir. 1973). In doing so we said:

“Swindell-Dressler does not hold that we will control the exercise of the district court’s discretion by mandamus. It holds only that when the district court had acted without following appropriate procedural safeguards, we will by the writ confine it in exercising that discretion to the narrow path of due process.” Id.

On review of the record in the District Court proceedings we are of the view that there is no merit to petitioner’s contentions that he “was deprived of an adequate opportunity to present his opposition to the transfer motion,” and that “the transfer motion was decided prematurely.”

We base our view solely on these undisputed facts as established by the record in the District Court proceedings:

The motion for change of venue, accompanied by two supporting affidavits, was filed on May 16, 1972 and served on petitioner’s counsel the same day. On May 18, 1972, petitioner’s counsel wrote to Judge Huyett stating that petitioner opposed the granting of the transfer motion and that he would “within a few days,” submit a motion to stay the transfer motion, along with “discovery material addressed to the various defendants.”

Petitioner never submitted to Judge Huyett a motion to stay the transfer motion. Nor did he submit to him “discovery material.”

Further, petitioner never filed opposition of record to the transfer motion during the 57-day interval between its filing and service on May 16, 1972, and July 13, 1972, when the transfer order was entered.

On June 14, 1972, Judge Huyett, following receipt of letters from petitioner and Zapata relating to a conference, earlier here adverted to, wrote letters to all counsel in which he stated:

“A conference will be held in Chambers on Thursday, July 13, 1972 at 11:30 A.M. and all pending matters will be considered.” (emphasis supplied) .

As earlier here stated, the District Court’s docket discloses that on the date of Judge Huyett’s letter, the only “pending” matters were the May 16, 1972 transfer motion; two motions to stay proceedings until disposition of a pending shareholder action in a Canadian court; and a motion to bar communication by the parties with stockholders.

Judge Huyett’s letter thus clearly alerted the parties to the fact that the “pending” transfer motion, inter alia, was to “be considered” at the July 13, 1972 conference. It dispositively negates petitioner’s contention, in paragraph 5 of his mandamus petition, that “actual argument on the transfer motion was never scheduled.”

The fact that petitioner, in his letters to Judge Huyett, had proposed that “certain procedural questions be considered at the conference,” including a discovery schedule, cannot, and does not, obscure the critical fact that Judge Huy-ett’s notice of the scheduled conference made it clear that the “pending” transfer motion would be considered at that conference.

In light of these undisputed facts there is no basis for petitioner’s claim that he was unaware that the transfer motion was to be considered at the July 13 conference.

As to petitioner’s claims that (1) he did not argue the merits or legalities of the transfer motion at the conference; and (2) he was there deprived of an adequate opportunity to express his opposition to the motion, this must be said:

Petitioner, at page 13 of his brief, concedes that “the generalities of the transfer motion were being discussed at the conference.” (emphasis supplied).

Analysis of petitioner’s mandamus petition, and brief, reveals that he did not anywhere therein make a definitive statement that he had not registered opposition to the transfer motion or argued its merits, at the July 13, 1972 conference.

Petitioner, in his motion for reconsideration of the July 13, 1972 transfer Order, made no claim that he had been deJ prived of an opportunity to express his opposition to the transfer motion at the conference.

Finally, and most significantly, the July 13, 1972 Order transferring petitioner’s action, set forth earlier in this Opinion, definitively states that it was entered “upon consideration of the motion of defendants . . ., and an informal argument held in Chambers this date attended by counsel for all parties . ” (emphasis supplied).

It must be noted that in evaluating the merits of petitioner’s due process claim, we have not taken into account Zapata’s contention, in its Answer to the mandamus petition and in its brief, that at the July 13, 1972 conference petitioner’s counsel did in fact argue the merits of the transfer motion.

What has been said brings us to petitioner’s contentions that “[t]he reliance by the District Court on an untran-scribed conference and the failure to promptly submit findings of fact and conclusions of law requires [sic] the vacating of the transfer order.”

Implicit in these claims are the unwarranted assumptions that (1) any and all conferences and informal arguments relative to a change of venue motion must be reported and transcribed by a court stenographer; and (2) a district court is required to make findings of fact and state conclusions of law in making disposition of a transfer motion.

Petitioner has not cited any procedural rule, or decisional authority, in support of his assumptions, and none exists.

Section 753(b), 28 U.S.C.A., mandates reporting of all civil proceedings “had in open court,” “unless the parties with the approval of the judge shall agree specifically to the contrary.” It also specifies that in proceedings other than those in “open court,” reporting must take place, if directed by the court, or required by rule, “or as may be requested by any party to the proceeding.”

Petitioner does not contend that he requested that the July 13, 1972 conference in Judge Huyett’s chambers be reported.

Second, as to petitioner’s “findings of fact and conclusions of law” contention :

Rule 52(a), Fed.R.Civ.P., provides in relevant part:

“Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 and 56 or any other motion except as provided in Rule 41(b).” (emphasis supplied).

The mooted transfer motion here is in the category of “any other motion,” and, accordingly, it was “unnecessary” for Judge Huyett to make findings of fact or to state conclusions of law in entering his July 13, 1972 transfer Order, under Rule 52(a).

Standing alone Rule 52(a) is disposir tive of petitioner’s contention respecting rendition of findings of fact and conclusions of law.

While we have suggested to the district courts “that it would be helpful to us if each transfer order set forth the factors upon which the court relied in deciding the motion,” we have not imposed the imperative of rendition of findings of facts and conclusions of law in transfer eases.

It may be noted, parenthetically, that petitioner, in his motion for reconsideration of the July 13, 1972 transfer Order, did not ask the Court to amplify the reason for its Order.

The cases cited by petitioner in support of his contention as to the rendition of findings of fact and conclusions of law are inapposite. None of them involved action on a transfer order.

We must advert briefly to petitioner’s contention that the transfer Order “was decided prematurely” because “[d]espite plaintiff’s oft-stated need for and intent to file discovery, the District Court refused to establish a schedule for discovery and proceeded to deprive plaintiff of his opportunity to conduct discovery following such refusal by immediately granting the motion.”

The Achilles’ heel of that contention is that there is no procedural rule or deci-sional authority requiring a district court to permit discovery in connection with a transfer motion or to postpone disposition of the transfer until completion of discovei’y proceedings. Cases cited by petitioner in support of his contention are inapposite inasmuch as they do not involve a transfer motion.

It must be noted on the score of petitioner’s contention that the District Court acted “prematurely” in granting the transfer motion, that the motion was filed on May 16, 1972, and that petitioner in the 57 days which elapsed between that date and the entry of the transfer Order on July 13, 1972, did not proceed with discovery, although his counsel had advised Judge Huyett on May 18, 1972, that he would proceed with discovery “within a few days.”

This, too, must be said.

As earlier herein noted, petitioner in his brief, and oral argument, has not challenged the merits of the transfer Order.

Since he did so in his mandamus petition, it is only necessary to say that in consonance with Solomon, supra, and All States Freight, Inc. v. Modarelli, 196 F.2d 1010 (3 Cir. 1952), we find no basis for issuance of a mandamus writ.

For the reasons stated, the Petition for Writ of Mandamus or Writ of Prohibition, or Both, will be denied.

ADAMS, Circuit Judge

(concurring).

I concur with the result reached by Judge Kalodner denying the petition for a writ of mandamus or prohibition.

The dissent points out that the trial judge here, in ordering transfer of the underlying action, made such order after an untranscribed “informal argument held in Chambers” and did so without making findings of fact or conclusions of law in support of said order. Like the dissent, I find each of these omissions troubling.

In matters of the importance of a motion to transfer, I think it would be most salutary if a hearing were held. Nevertheless, local Rule 36 of the United States District Court for the Eastern District of Pennsylvania does not require that hearings be held on motions. However, if a hearing or conference is held, I respectfully suggest that such proceedings be transcribed. Only from a written record can the fairness of a hearing or conference be reviewed. Only from a written record can an appellate court be fully apprised of all the factors which entered into the district court’s decision.

Concededly, Rule 52(a) of the Federal Rules of Civil Procedure makes unnecessary findings of fact and conclusions of law on decisions of motions. See Solomon v. Continental American Life Insurance Co., 472 F.2d 1043, 1048 (3d Cir. 1973). Nevertheless, this Court has recently stated, “it would he helpful to us if each transfer order set forth the factors upon which the court relied in deciding the motion.” id. Indeed, such statement is, at times, quite important to effective appellate review.

However, I do not believe, at least at this time, that the trial judge’s failure to have the proceeding transcribed or to make appropriate findings meets the restrictive test necessary to justify this Court’s issuance of a writ of mandamus or prohibition. See Interpace Corporation v. City of Philadelphia, 438 F.2d 401 (3d Cir. 1971). Accordingly, I concur in the denial of the petition.

BIGGS, Circuit Judge

(dissenting).

Meaningful review requires that the reviewing tribunal must be able to review a decision of a trial court or of an agency to determine its correctness and if necessary control the course of the litigation whether by appeal or by use of a writ under the All Writs statute, 28 U. S.C. § 1651. In the case at bar this court cannot fulfill that reviewing function for there was no court reporter present in the trial judge’s chambers to record what either may or may not have been an adequate hearing on respondents’ Section 1404(a) motion. The petitioners insist that they did not receive adequate notice or hearing and were taken by surprise by the course of the proceedings. The respondents insist there was adequate notice and hearing. We are left with conflicting statements of counsel which cannot be reconciled and, in any event, are not part of the record and therefore cannot serve as a basis for adjudication. United States ex rel. Bradshaw v. Alldredge, 432 F.2d 1248, n. 1, 2d para. (3 Cir. 1970). Moreover, the trial court made no findings of fact or conclusions of law, wrote no opinion, and entered a transfer order in the bare terms of Section 1404(a).

We would all agree that whether or not a transfer should be made depends upon the balance of convenience. Wyndham Associates v. Bintliff, 398 F.2d 614 (2 Cir. 1968), cert. denied, 393 U.S. 977, 89 S.Ct. 444, 21 L.Ed.2d 438 (1968); Brown v. Woodring, 174 F.Supp. 640 (M.D.Pa.1959). A determination of that balance rests within the sound discretion of the trial judge, and he alone must make the decision required by Section 1404(a). We may not perform that duty for him, although we must set aside any such decision which constitutes a clear abuse of discretion (Rapp v. Van Dusen, 350 F.2d 806 (3 Cir. 1965); Golconda Mining Corp. v. Herlands, 365 F.2d 856 (2 Cir. 1966)), or is constitutionally deficient.

In the case at bar, local Rule 36 of the United States District Court for the Eastern District of Pennsylvania purportedly authorized the district court judge to decline to hear oral argument on respondents’ Section 1404(a) motion. Nonetheless a hearing was afforded and certainly that hearing was required to be a fair one — one in which the petitioners had an opportunity to make proper argument and to present their case. Furthermore, the fact that the decision to transfer the case may be justified on the merits does not obviate the requirement of a fair hearing. We are entitled to know what was before the district judge at that hearing and the factors which may have brought him to his decision to transfer in order that his exercise of discretion and the constitutionality of the procedure may be properly reviewed.

I believe the absence of a court reporter has rendered it impossible for this court to determine the fairness of the hearing, for in my view the record fails to reveal facts from which such a determination can be made. In the exercise of our supervisory powers we should require the district court to grant the petitioners’ motion for reconsideration, to hold a hearing and to have a court reporter present taking notes of the proceedings. Specifically, under circumstances such as those at bar, the presence of a court reporter should be required by the trial judge.

I assume, of course, that if this court were to hold as I have indicated, the issuance of a writ would be unnecessary and the district judge would comply promptly with our suggestions.

For the reasons stated, I must respectfully dissent.

      . Petitioner also seeks vacation of the District Court’s Order of July 26, 1972 which denied reconsideration of the Court’s July 18, 1972 Order.

      . 15 U.S.C.A. § 78a et seq.

      . Affidavits submitted to the District Court in support of the transfer motion alleged that Zapata neither transacts, nor is it qualified to transact, business in Pennsylvania.

      . Lehman Bros. did not join the other defendants in the transfer motion below, and it has not filed an Answer to the instant petition.

      . Petitioner never filed of record any opposition to Lehman Bros.’ stay motion.

      . Section 753(b), 28 U.S.C.A., provides in relevant part:
      “(b) One of the reporters appointed for each such court shall attend at each session of the court and at every other proceeding designated by rule or order of the court or by one of the judges, and shall record verbatim by shorthand or by mechanical means which may be augmented [sic] by electronic sound recording subject to regulations promulgated by the Judicial Conference: (1) all proceedings in criminal cases had in open court; (2) all proceedings in other cases had in open court unless the parties with the approval of the judge shall agree specifically to the contrary; and (3) such other proceedings as a judge of the court may direct or as may be required by rule or order of court or as may be requested by any party to the proceeding. The Judicial Conference shall prescribe the types of electronic sound recording means which may be used by the reporters.”

      . Cf. United States v. Jenkins, 442 F.2d 429 (5 Cir. 1971). There, the Court, in rejecting a contention, in a criminal case, that trial error had been committed when a conference in chambers was not reported said (p. 438) :
      “There was no request that it be reported and the statute, 28 U.S.C.A. § 753 (b), requires only that proceedings in open court be reported. We hold that the charge conference in chambers was not in open court and thus the claimed error is without merit.”

      . Solomon v. Continental American Life Insurance Company, 472 F.2d 1043, 1048 (3 Cir. 1973).

      . See, too: Swindell-Dressler Corporation v. Dumbauld, 308 F.2d 267, 272 (3 Cir. 1962); United States v. Wright, 282 F.2d 428 (3 Cir. 1960) (rehearing denied) ; Mutual Life Insurance Co. of New York v. Ginsburg, 228 F.2d 881, 882 (3 Cir.), cert. denied and leave to file mandamus denied sub nom. Ginsburg v. Gregg, 351 U.S. 979, 76 S.Ct. 1050, 100 L.Ed. 1495 (1956) ; cf. Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 74 S.Ct. 145, 98 L.Ed. 106 (1953).


author: PER CURIAM:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CARPENTERS LOCAL UNION NO. 22, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO et al., Respondents.
    No. 72-1406.
    United States Court of Appeals, Ninth Circuit.
    Aug. 1, 1973.
    Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L. R.B., Washington, D. C., Roy O. Hoffman, Director, N.L.R.B., San Francisco, Cal., Allison W. Brown, Jr., Atty., Stephen C. Yohay, N.L.R.B., Washington, D. C., for petitioner.
    Victor J. Van Bourg, Stewart Weinberg, Mark A. Wurm, of Levy & Van Bourg, Francis J. McTernan, San Francisco, Cal., for respondents.
    Before ELY, WRIGHT and GOODWIN, Circuit Judges.
   PER CURIAM:

The challenged Order of the Petitioning Board followed its conclusion that the Respondents had violated Section 8(b) (4)(i) and (ii)(B) of the National Labor Relations Act, as amended. 29 U.S.C. §§ 151 et seq. The Board’s Decision and Order is reported at 193 NLRB No. 105.

Our examination of the record convinces us that the Board’s critical factual determinations were supported by substantial evidence. Accordingly, its Order will be

Enforced.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. John David LAWRENCE, a/k/a Johnny Lawrence, Defendant-Appellant.
    No. 73-1454
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 14, 1973.
    Certiorari Denied Dec. 3, 1973.
    See 94 S.Ct. 582.
    Edward A. Dempsey, Jr., Jacksonville, Fla. (Court appointed) for defendant-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Peter L. Dearing Asst. U. S. Atty., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, 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:

John David Lawrence appeals from his jury conviction, judgment and sentence to three concurrent 2Y¡ year confinement sentences for violations of the Dyer Act, Title 18 U.S.C. Sec. 2313. Each of the vehicles involved was stolen in another state and sold by Lawrence in Florida within a relatively short time, under title papers to a similar vehicle which had been wrecked and with its Vehicle Identification Number (VIN) altered to conform to the title papers.

Both contentions urged on appeal question the sufficiency of the evidence to support the convictions under the respective counts: (1) that the trial court erred in denying appellant’s motions for judgment of acquittal, and (2) that the trial court erroneously overruled his motions for new trial.

Viewed in the light most favorable to the United States, Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704, the evidence as to each count amply sufficed to warrant the jury’s verdict of guilty. The judgments appealed from are

Affirmed.

      . The convictions were under Counts Three, Four and Five of a five count indictment. Lawrence was acquitted by the jury of similar Sec. 2313 offenses under Count One and Two as to two other allegedly stolen cars sold in Florida in April, 1971. The convictions were for cars sold in Florida in May, July and August, 1971.


text:
    Annie C. GORNTO, Petitioner-Appellant, v. Ellis C. MacDOUGALL, Commissioner of the Department of Offender Rehabilitation, et al., Respondent-Appellee.
    No. 72-1970.
    United States Court of Appeals, Fifth Circuit.
    July 18, 1973.
    Hugh W. Gibert, Andrew C. Hall, Atlanta, Ga., Jack S. Hutto, Brunswick, Ga., for petitioner-appellant.
    Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, Asst. Atty. Gen., Atlanta, Ga., William R. Killian, Brunswick, Ga., Daniel I. MacIntyre, Atlanta, Ga., for respondent-appellee.
    Before TUTTLE, BELL and AINS-WORTH, Circuit Judges.
   PER CURIAM:

The opinion of this court in the within appeal from the denial of habeas corpus relief to appellant from her state sentence was issued on June 27, 1973. On July 2, 1973, counsel for the parties stipulated that appellant died on March 15, 1973, and for that reason have moved to dismiss the appeal as being moot.

The motion is granted; the opinion of this court is vacated, and the cause is remanded to the district court with direction that the case be dismissed. Hann, Warden v. Hawk, 8 Cir., 1953, 205 F.2d 839.

Remanded with direction.


author: GEWIN, Circuit Judge: WISDOM, Circuit Judge PER CURIAM: WISDOM, Circuit Judge,

text:
    INTRACOASTAL TRANSPORTATION, INC., and Anderson Marine Construction, Inc., Plaintiffs-Appellees, v. DECATUR COUNTY, GEORGIA, et al., Defendants, Department of Transportation, Defendant-Appellant.
    No. 72-2700.
    United States Court of Appeals, Fifth Circuit.
    June 29, 1973.
    Rehearing and Rehearing En Banc Denied Aug. 28, 1973.

      William B. Brown, Asst. Atty. Gen., Arthur K. Bolton, Atty. Gen., Harold N. Hill, Executive Asst. Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., Atlanta, Ga., for defendant-appellant.
    Ben Kirbo, Bainbridge, Ga., for plaintiffs-appellees.
    Harold Lambert, Bainbridge, Ga., for Decatur County.
    Before WISDOM, GEWIN and COLEMAN, Circuit Judges.
   GEWIN, Circuit Judge:

In this admiralty action, the State of Georgia appeals pursuant to 28 U.S.C. § 1292(b) from the district court’s denial of its motion to dismiss on the grounds of sovereign immunity. After a careful review of the applicable law, we conclude that Georgia was entitled to avail itself of the sovereign immunity defense, and therefore reverse.

The facts giving rise to the present controversy are not in dispute and may be summarized with brevity. Decatur County, Georgia, and the Georgia Department of Transportation are the alleged owners and operators of a drawbridge across the Flint River, a navigable waterway which flows through Decatur County. The appellees instituted the present action alleging that as a result of the negligent operation of the drawbridge they had suffered considerable damages. Georgia then filed a motion to dismiss on the grounds of sovereign immunity asserting that it had not consented to the suit. Georgia bases its defense on the eleventh amendment to the United States Constitution.

The appellees countered that the Flint River was a navigable waterway and structures built over it were subject to federal regulation. They asserted that Georgia waived the defense of sovereign immunity by entering this federally regulated sphere of activity. The district court denied Georgia’s motion to dismiss and we now review the propriety of that ruling.

We begin with the general observation that in a suit in admiralty, a state is entitled to the defense of sovereign immunity granted by the eleventh amendment. The Supreme Court has stated:

We repeat, the immunity of a state from suit in personam in the admiralty, brought by a private citizen without its consent, is clear.

The appellees argue, however, that Georgia has impliedly consented to this suit by building a bridge over a navigable waterway, which is subject to plenary control by federal statutes.

Appellees place primary reliance on Parden v. Terminal Railway of the Alabama State Docks Department. In Par- den, railroad employees sued an Alabama owned railroad under the Federal Employers’ Liability Act, for injuries resulting from their employment. Alabama contended that it was entitled to sovereign immunity under the eleventh amendment. The Court rejected Alabama’s claim, stating:

A State’s immunity from suit by an individual without its consent has been fully recognized by the Eleventh Amendment and by subsequent decisions of this Court. But when a State leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation, it subjects itself to that regulation as fully as if it were a private person or corporation.

Appellees claim that their suit against Georgia falls within the Parden waiver exception to the sovereign immunity doctrine. We cannot agree with this conclusion.

A superficial reading of the Parden decision might lead one to the conclusion which appellees wish to have us adopt. Distilled to its basic holding, Parden stands for the proposition that a State impliedly waives its sovereign immunity defense when it: (1) enters a field which is regulated by federal statute; and, (2) Congress has specifically created a remedy in private parties for the violation of the applicable federal regulatory statute.

At least one circuit has upheld a state’s sovereign immunity defense even where Congress has created a private cause of action under a federal regulatory scheme. See, Employees of the Department of Public Health & Welfare v. Department of Public Health & Welfare, State of Missouri, 452 F.2d 820 (8th Cir. 1971) (en banc). The Eighth Circuit rejected a simplistic reading of the Parden decision, correctly recognizing that many policy considerations must be weighed before a State can be said to have “waived” its immunity by conducting activities subject to federal regulation. The Employees case involved an action by state hospital workers against Missouri for overtime compensation provided by the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.

The hospital workers based their waiver claim on 29 U.S.C. § 216(b) which created a private cause of action for an employer’s violation of the FLSA’s applicable substantive provisions. By a 1966 amendment to the Act, Congress subjected state hospitals to the overtime provisions of the Act. 29 U.S. C. § 203(s)(4). The Eighth Circuit rejected the argument that Missouri had waived its sovereign immunity defense by operating hospitals subject to the overtime provisions of the Act and in face of the provision in the act which created a private cause of action for employees whose employers violated the overtime provisions of the Act.

Certiorari was granted and the Supreme Court in an opinion by Mr. Justice Douglas, affirmed. The Court carefully distinguished the Parden decision. Whereas in Parden, Alabama began operation of a railroad twenty years after the enactment of the Federal Employers’ Liability Act, 45 U.S.C- §§ 51-60, the state of Missouri had operated hospitals long before the enactment of the 1966 amendment which subjected them to the FLSA’s overtime provisions.

Moreover, the Court was concerned with the effect a holding of implied waiver would have on the Viability of the eleventh amendment. The Court noted that it is one thing to subject a State to suit when it enters into the rather unusual activity of operating a railroad “for profit” but quite another when the State operates a hospital which is widely recognized as a proper state function if not a compelled duty. All States operate hospitals and the burden created by holding a State amenable to private suits would have a greater impact on the financial resources of states than the particularly limited holding of Parden. This problem was accentuated by the fact that the Act provided for double recovery and attorney’s fees for the successful private litigants.

Apparently the crucial factor which must have weighed most heavily in the Court’s reasoning was the absence of any express intent by Congress to subject the States to private suits. In face of the express limitations on a federal court’s jurisdiction by the eleventh amendment, the court refused to expand the implied waiver theory or even entertain such a sensitive constitutional issue, without at least an express congressional provision which made a State amenable to such a suit. Justice Douglas stated:

It is not easy to infer that Congress in legislating pursuant to the Commerce Clause, which has grown to vast proportions in its applications, desired silently to deprive the States of an immunity they have long enjoyed under another part of the Constitution. Thus, we cannot conclude that Congress conditioned the operation of these facilities on the forfeiture of immunity from suit in a federal forum. 411 U.S. at 285, 93 S.Ct. at 1618.
* * * * * *
But we decline to extend Parden to cover every exercise by Congress of its commerce power, where the purpose of Congress to give force to the Supremacy Clause by lifting the sovereignty of the States and putting the States on the same footing as other employers is not clear. 411 U.S. 286, 93 S.Ct. at 1619.

Thus, the Employees decision added an additional requirement to the Parden test for determining whether a private party may successfully invoke a federal court’s jurisdiction in his suit against a State. It is no longer sufficient merely to show that a State has entered a federally regulated sphere of activity and that a private cause of action is created for violating the applicable federal provision, but in addition the private litigant must show that Congress expressly provided that the private remedy is applicable to the States.

It is apparent that appellees have met the first requirement of Par-den because Georgia has entered a field of activity extensively regulated by federal statute. However a careful reading of the “Bridge Act of 1906” compels us to conclude that Congress did not create a cause of action in private parties for a violation of the Act’s standards. The act is penal in nature and enforcement of its provisions is vested in the Attorney General.

We cannot concur in the result reached by the Fourth Circuit in Chesapeake Bay Bridge & Tunnel District v. Lauritzen, where the court held that the Act did create a cause of action in private parties. We feel that a careful reading of the cases relied upon will not sustain the conclusion reached by that court, particularly in view of the recent Supreme Court decision in the Employees case.

The conclusion reached today is in accord with recent pronouncements of this Court. We have previously stated that:

Further we do not deem a mere entry into an area regulated by international treaty as an automatic waiver of sovereign immunity. As long as the sovereign immunity claim does not prevent federal relief which would otherwise be attainable, we see no virtue in invoking federal jurisdiction. Here no relief is possible because no discrimination is evidenced.

The “Bridge Act of 1906” does not create a cause of action in private parties and hence sustaining the state’s claim to sovereign immunity will not deny appel-lees relief to which they would otherwise be entitled.

The order of the district court is reversed, and the cause remanded to that court with directions to dismiss appel-lees’ complaint against the Georgia Department of Transportation.

Reversed and remanded with directions.

WISDOM, Circuit Judge

(dissenting) :

I respectfully dissent.

Today, the Court holds that even though a state has waived its immunity at common law and under the eleventh amendment by entering a federally regulated sphere of activity, it is still not amenable to suit by a private person for violating a federal statute unless Congress has expressly provided that the private enforcement remedy is applicable in'suits against the states. The majority relies on Employees of the Department of Public Health and Welfare of Missouri v. Department of Public Health and Welfare of Missouri, 1973, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (April 18, 1973), to support its holding’. I think, however, that a fair reading of that case discloses no such requirement. Furthermore, the Court’s holding is in direct conflict with Parden v. Terminal R. Co., 1964, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233, a case which the Supreme Court did not purport to overrule in Employees.

In Parden the plaintiffs, citizens of Alabama, sued the defendant state-owned railroad in federal district court to recover damages under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq., for injuries sustained while employed by the railroad. The FELA defined the term “carrier” as including “every common carrier by railroad while engaged in [interstate] commerce.” 45 U.S.C. § 51. There was no express provision that the Act applied to state-owned railroads. Nor was there any indication to that effect in the legislative history. Nevertheless, the Supreme Court held that Congress impliedly intended the Act to apply to state-owned as well as privately-owned railroads and that it had the power to do so. The Court reasoned that the states, by adopting and ratifying the commerce clause, had authorized Congress to create such a cause of action and that Alabama, by operating an interstate railroad, had consented to suit under the Act and thus waived its immunity at common law and under the eleventh amendment. In so holding, the Court rejected the argument of the dissenting justices that immunity should be disallowed “only when Congress has clearly considered the problem and expressly declared that any state will be deemed-thereby to have waived its immunity. . . .” 377 U.S. at 198-199, 84 S.Ct. at 1216.

Employees presented a materially different situation. There, the plaintiffs, employees of state health facilities, sought to recover overtime compensation due under section 16(b) of the Fair Labor Standards Act, 29 U.S.C. § 216(b), and an equal amount as liquidated damages. The Supreme Court found that the suit was barred since Congress, in enacting the FLSA, did not intend to deprive the states of their immunity to suit by employees of state health facilities. The Court noted that originally section 3(d) of the Act defined “employer” as excluding the United States or any state or political subdivision of a state. In 1966, section 3(d) was amended to extend the Act’s coverage to employees of state health facilities. But the language of section 16(b), providing for private enforcement suits, was left unchanged. In interpreting congressional silence on this issue, the Court focused mainly on (1) the burden that would be placed on the states by a finding that section 16(b) was applicable to suits against state health facilities and (2) the availability of alternate avenues for enforcement of the private party’s rights under the Act. The Court observed that unlike the situation in Par-den, extension of section 16(b) to suits against the states would have a pervasive and perhaps financially devastating effect on the operation of those facilities, which were not operated for profit. It said:

Where employees in state institutions, not conducted for profit, have such a relation to interstate commerce that national policy, of which Congress is the keeper, indicates that their status should be raised, Congress can act. And when Congress does act, it may place new or even enormous fiscal burdens on the States. Congress acting responsibly would not be presumed to take such action silently. The dramatic circumstances of the Parden case, which involved a rather isolated state activity, can be put to one side. We deal here with problems that may well implicate elevator operators, janitors, charwomen, security guards, secretaries and the like in every office building in a State’s governmental hierarchy. Those who follow the teachings of Kirschbaum v. Walling, [1942, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638] and see its manifold applications will appreciate how pervasive such a new federal scheme of regulation would be. 411 U.S. at 284, 93 S.Ct. at 1618. Furthermore, section 16(b) allowed the employees to recover both the compensation due them and an equal amount as liquidated damages and attorneys fees. The Court said:

It is one thing, as in Parden to make a state employee whole; it is quite another to let him recover double against a State. Recalcitrant private employers may be whipped into line in that manner. But we are reluctant to believe that Congress in pursuit of a harmonious federalism desired to treat the States so harshly. The policy of the Act so far as the States are concerned is wholly served by allowing the delicate federal-state relationship to be managed through the Secretary of Labor. 411 U.S. at 286, 93 S.Ct. at 1619.

With respect to alternate avenues for enforcement of the plaintiffs’ statutory rights, the Court noted that sections 16(e) and 17 of the Act authorized the Secretary of Labor to enjoin violations and to obtain restitution in behalf of employees. Also, section 16(b) authorized employee suits in “any court of competent jurisdiction”. Arguably, the Court said, this would permit the plaintiffs to sue in a state court to enforce their rights under the Act. In these circumstances, the Court was unwilling to infer that Congress intended to lift the states’ immunity from suit.

The teaching of Employees may be stated as follows: Where (1) the fiscal burdens that would be placed on the states by the applicable federal statute are great and the new federal scheme of regulation pervasive and (2) there are alternate avenues for the enforcement of the private party’s rights under the statute, a congressional intent to lift the states’ immunity will not be inferred absent some indication to that effect in either the legislative history or the statutory language. On the other hand, where such extraordinary circumstances are not present and where there is no indication that Congress did not desire to exercise its power to its utmost extent, then, as in Parden, the states’ immunity from suit will be deemed to have been lifted. The Court’s holding is very much a rule of reason. It comports with established rules of statutory construction and is responsive to the demands for harmony created by our federal system.

Applying this standard to the present case, I think it clear that Congress has lifted the states’ veil of sovereign immunity. The Bridge Act of 1906, 33 U.S.C. § 491 et seq., establishes standards of care for the maintenance and operation of bridges over ths navigable waters of the United States. In relevant part, it provides that draw bridges shall be opened promptly upon reasonable signal for the passage of boats or other watercraft, 33 U.S.C. § 494. The Act does not impose enormous fiscal burdens on the states as part of new pervasive scheme of federal regulation. Nor does it pose a threat to the harmony of our federal system by allowing recovery of double damages or invading an area traditionally reserved to the states. To the contrary, the Act represents a necessary and historically accepted application of Congress’ power under the commerce clause by insuring the safe and efficient operation of bridges over navigable waters. The paramount purposes behind the Act demand that the states, who typically own the bridges involved, be made amenable to suits for enforcement of the statutory standards. This is true regardless whether the plaintiff is the United States or a private party injured by the violation of a statutory provision designed to protect him. Thus, there is no reason to presume that Congress did not intend to lift the states’ immunity in all cases.

Furthermore, unlike the plaintiffs in Employees, the plaintiff in the present case is not able to enforce his statutory rights by alternate means. There is no provision in the Act permitting the federal government to sue to recover the compensation due a private party for violations; nor does the Act specify that a private party may sue in state courts to enforce his rights. Rather than simply being relegated to another forum, as in Employees, here the plaintiff is presumably foreclosed from obtaining any relief in any forum.

I would conclude, therefore, that the plaintiff’s suit is not barred by sovereign immunity. The majority would require express statutory language that private enforcement remedies are applicable in suits against the states. To me, however, such a rule is contrary to the case law, to common sense, and to the usual presumption that when Congress acts it is deemed to exercise its power to its utmost extent. Under the commerce clause, Congress had the authority to enact the present legislation. For the reasons previously stated, the Act should be construed as applying to private enforcement suits against the states. As the majority acknowledges, Georgia, by entering a federally regulated sphere of activity, waived whatever immunity it had at common law or under the eleventh amendment. There the matter should end.

I also disagree with the majority’s holding that the Bridge Act of 1906, and in particular 33 U.S.C. §§ 494 and 495, do not create a cause of action in favor of private parties. Almost a half century ago, this Court held that the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq., an act similar to the one involved here, created an implied private right of action for equitable relief. Neches Canal Co. v. Miller & Vidor Lumber Co., 5 Cir. 1928, 24 F.2d 763. We stated:

The Lumber Company, being the user of the navigable stream which was obstructed in violation of the statute, was a beneficiary of the statute, forbidding its obstruction, and the remedy given by the statute was available in behalf of the Lumber Company. The suit was maintainable in the court below as one arising under the laws of the United States, as a right asserted and a remedy sought by the amended bill were based on acts of Congress. 24 F.2d at 765.

In Lauritzen v. Chesapeake Bay Bridge and Tunnel Authority, E.D.Va.1966, 259 F.Supp. 633, aff’d 4 Cir. 1968, 404 F.2d 1001, the Fourth Circuit held that the Rivers and Harbors Act of 1899 created an implied private right of action for damages against the state. As the district court said in that ease:

It is true that the federal navigation regulations do not expressly provide a cause of action for injured parties but such liability is clearly implied. Even though it be conceded that the statutes pertaining to the protection of navigable waters, 33 U. S.C. § 401 et seq., are penal in nature, it is clear that civil liability may be derived therefrom, both in favor of the United States, United States v. Perma Paving Co., 332 F.2d 754 (2 Cir. 1964), and private parties, Morania Barge No. 140, Inc. v. M. & J. Tracy, Inc., 312 F.2d 78 (2 Cir. 1962). Violation of the navigation laws gives rise to a presumption of negligence, which, if not rebutted, may result in liability to the negligent party. Reading Co. v. Pope & Talbot, Inc., 192 F.Supp. 663 (E.D.Penn.1961), aff’d 295 F.2d 40 (3 Cir. 1961). We think it is evident that the regulations pertaining to the obstruction of navigable waters were manifestly intended for the protection of private parties such as the libelant here, even though the enforcement of these provisions was vested in the United States.

259 F.Supp. at 638. A similiar result was reached in Adams v. Harris County, Texas, S.D.Tex.1970, 316 F.Supp. 938.

The majority has not attempted to distinguish Lauritzen but is satisfied instead to dismiss it perfunctorily. Private civil remedies have been implied from federal statutes beginning in 1916 with Texas & Pacific Ry. Co. v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874, where the Court held that an employee could recover damages under the Federal Safety Appliance Act. The Court stated: “ [Disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied. . . .” See also J. I. Case Company v. Borak, 1964, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 1971, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619; Gomez v. Florida State Employment Service, 5 Cir. 1969, 417 F.2d 569; Note, Implying Civil Remedies from Federal Regulatory Statutes, 77 Harv.L.Rev. 285 (1963).

The present case is sui generis. The Bridge Act of 1906, 33 U.S.C. § 491 et seq., sets standards of care for the maintenance and operation of bridges over navigable waters. This Act was clearly intended to protect individuals such as the plaintiff in this case and imposed a correlative duty on the defendant to operate its bridges in accordance with those standards. “[The defendant’s] violation of [its] statutory duty imposes civil liability in this as in any other case where, the violation of a duty causes injury to an individual to whom the duty is owed. For every right there is a remedy. If the right is created by a federal statute, the federal courts have the power to fashion an appropriate remedy.” Breitwieser v. KMS Industries, Inc., 5 Cir. 1972, 467 F.2d 1391, 1397 (Wisdom, J., dissenting).

For the reasons stated, I would affirm the decision of the district court.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.

WISDOM, Circuit Judge,

(dissenting) :

I would grant the rehearing for the reasons stated in my dissent to the majority opinion.

      . At the outset it should be noted that this appeal deals exclusively with the Georgia Department of Transportation. There is no dispute that the Department of Transportation is the alter ego of the State of Georgia. See, Tounsel v. State Highway Department, 180 Ga. 112, 116, 178 S.E. 285 (1934). The propriety of the suit against Decatur County, Georgia, is not before this court. See, County of Lincoln v. Luning, 133 U.S. 529, 530, 10 S.Ct. 363, 33 L.Ed. 766 (1890).
      Thus, the dissent’s conclusion that we have foreclosed all avenues of relief to the appellees is completely erroneous. We assume that on remand, appellees will be permitted to pursue whatever remedies under common law negligence are open to them against the county. In such event, as we recognize later in this opinion, the standards of care established by the Bridge Act of 1906, 33 U.S.C. § 491 et seq. may be utilized when an otherwise suable party is involved.
      The appellees have placed in proper focus the issue before this court:
      The sole issue before this Court is one of jurisdiction. It is Defendant’s [Georgia’s] contention that this Court has no jurisdiction because of sovereign immunity. It is Plaintiffs’ contention that Defendant, by the operation and maintenance of a drawbridge over a navigable waterway of the United States, has waived sovereign immunity and thus the Court does have jurisdiction. The question then boils down to whether or not there has been a waiver of sovereign immunity. Appel-lees’ Brief at 2-3.
      We thus address ourselves to this “boiled down” issue.

      . Jurisdiction is based on 28 U.S.C. § 1331 (admiralty). Apparently appellee’s tug and barge had no difficulty in moving under the bridge on their trip upstream. On March 5, 1971, after receiving heavy cargo, the tug and barge arrived upstream of the bridge on their return trip. It being the rainy season, the waters of the FI it River had risen to sucli an extent t' it the tug could not pass beneath the b ;. After notice was given by the tug, t s bridge was not raised for twenty-six days because it had been paved over by the state. On oral argument counsel for both parties informed the court that the bridge had not been opened for a long time, perhaps 40 years. The court was also informed that the bridge has now been officially closed and a new bridge will be constructed.

      . U.S.Const. amend. XI: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

      . See, Bridge Act of 1906, 33 U.S.C. § 491 et seq., which establishes standards for bridges over navigable waters.

      . Ex parte State of New York No. 1, 256 U.S. 490, 500, 41 S.Ct. 588, 590, 65 L.Ed. 1057 (1921); Ex parte Madrazzo, 32 (7 Pet.) U.S. 627, 8 L.Ed. 808 (1833).

      . 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964).

      . 45 U.S.C. §§ 51-60.

      . 377 U.S. at 196, 84 S.Ct. at 1215.

      . “Our conclusion is simply that Alabama, when it began operation of an interstate railroad approximately 20 years after enactment of the FELA, necessarily consented to such suit as was authorized by that Act.” 377 U.S. at 192, 84 S.Ct. at 1213.

      . “Recognition of the congressional power to render a State suable under the FELA does not mean that the immunity doctrine, as embodied in the Eleventh Amendment with respect to citizens of other States . . . is here being overridden. It remains the law that a State may not he sued by an individual without its consent.” 377 U.S. at 192, 84 S.Ct. at 1213. See also, Rothstein v. Wyman, 467 F.2d 226, 238 (2d Cir. 1972); Knight v. New York, 443 F.2d 415, 418 (2d Cir. 1971); Red Star Towing & Transportation Co. v. Department of Transportation of New Jersey, 423 F.2d 104, 106 (3d Cir. 1970); Daye v. Pennsylvania, 344 F.Supp. 1337, 1347 (E.D.Pa.1972); Elliot v. Volpe, 328 F.Supp. 831, 834 (D.Mass.1971); Citizen’s Committee for the Hudson Valley v. Volpe, 297 F.Supp. 809, 813 (S.D.N.Y.1969); DeLong Corp. v. Oregon State Highway Comm., 233 F.Supp. 7 (D.Or.1964), aff’d, 343 F.2d 911 (9th Cir. 1965), cert. denied, 382 U.S. 877, 86 S.Ct. 161, 15 L.Ed.2d 119 (1965).

      . Employees of the Department of Public Health & Welfare, State of Missouri v. Department of Public Health & Welfare, State of Missouri, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973).

      . See, 29 U.S.C. § 216(b).

      . See also, Hickman v. Idaho State School and Hospital, 339 F.Supp. 463 (D.Idaho 1972); contra, Briggs v. Sagers, 424 F.2d 130 (10th Cir. 1970). For an excellent discussion of the Parden decision, see, Note, Private Suits Against States in the Federal Courts, 33 U.Chi.L.Rev. 331 (1966).

      . See 33 U.S.C. § 495. Compare, Bass Angler Sportsman Soc. v. United States Steel Corp., 324 F.Supp. 412 (3 Districts Ala.1971) (consolidated), aff’d per curiam, 447 F.2d 1304 (5th Cir. 1971) (Rivers & Harbors Appropriation Act of 1899, 33 U.S.C. § 401 et seq. does not grant enforcement powers in private parties.)
      We are aware that some inroads have been made by this Court in recognizing that a cause of action is vested in private parties by the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. §§ 401 et seq. In Neches Canal Co. v. Miller & Vidor Lumber Co., 24 F.2d 763 (5th Cir. 1928), this Court held that a private party could enjoin another private party who had clearly violated 33 U.S.C. § 401 by building a dam over a navigable waterway without first obtaining the consent of Congress or the approval of the Army Corps of Engineers. However considering the constitutional complexion of the present suit we feel that the Neches Canal decision should properly be limited to the peculiar fact situation presented there.
      The suit in Neches Canal was between private parties. None of the defendants there could assert the defense of sovereign immunity granted by the eleventh amendment. There the obstruction, a dam, was placed in the navigable waterway without a license or a permit; thus the acts of the defendants clearly violated 33 U.S.C. § 401. Of course an obvious difference is the fact that Neches Canal involved the Bridges and narbors Act of 1899 while while the present suit was instituted under the Bridges Act of 1906, 33 U.S.C. § 491 et seq.
      However more importantly, the court in Neehes Canal merely utilized the applicable standards enacted by Congress to determine whether a court could properly grant the equitable relief there prayed for. The court observed that the plaintiff was an “intended beneficiary” of the congressional enactment and therefore the remedy provided by section 406, an injunction could be maintained by a private party. We receive many equitable considerations which influenced the reasoning of the court that are not present here. See generally, Tatum v. Blackstock, 319 F.2d 397 (5th Cir. 1963) (suit between private litigants).
      The instant suit is for damages against a State. We conclude that under the teachings of the Parden and Employees decisions before a State can be held to have implicitly waived its eleventh amendment defense, Congress must have expressly created a remedy in private parties for the violation of the applicable federal regulatory statute. To conclude otherwise would require a finding that the Bridges Act of 1906 created a private cause of action, a statutory interpretation clearly not mandated by its provisions. Further we would have to take an additional step into the murky waters of congressional intent by assuming since Congress “intended” that the appellee be a beneficiary of the substantive prohibitions of the Bridges Act of 1906, this intended remedy is also applicable against a sov-eign State. Such “bootstrap logic” can not withstand the constitutional shield erected by the eleventh amendment.
      Additionally, we discern a new approach to a private litigant’s attempt to sue a state under federal regulatory acts. Many students of constitutional law often question the purpose and focus of the eleventh amendment in light of several recent court decisions which have made its provisions a shallow and meaningless command. However we are not ready to cast aside the clear meaning of that provision without definite directives from Congress to do so.
      Against the unambiguous prohibitions of the eleventh amendment, we deem it constitutionally insufficient for a court merely to conclude that Congress by enacting a federal regulatory scheme implied that a state would be amenable to its provision in a suit by a private party. If Congress wishes a state to be amenable to a private suit then we think it is up to that branch to take the proper action necessary for such a result. We believe it is an improper function of the federal judiciary to whittle away at the scope of a constitutional amendment under the guise of such slogans as “common sense” or “implicit purposes.” Common sense tells us that the eleventh amendment has viability today as it did in 1906. Until Congress directs us otherwise, we refuse to do by judicial fiat what is properly within Congress’ power to do under the commerce clause.

      . 404 F.2d 1001 (4th Cir. 1968); See also, Adams v. Harris County, Texas, 316 F.Supp. 938, 947-949 (S.D.Tex.1970); Contra, Mobile Towing Co. v. M/V Weatherly, 343 F.Supp. 276, 278 (S.D.Ala.1971).

      . In denying the immunity defense, the district court in Lauritzen stated:
      It is true that the federal navigation regulations do not expressly provide a cause of action for injured parties as does the FELA, [referring to Parden] but such liability is clearly implied. Even though it be conceded that the statutes pertaining to. the protection of navigable waters, 33 U.S.C. § 401 et seq., are penal in nature, it is clear that civil liability may be derived therefrom, both in favor of the United States, United States v. Perma Paving Co., 332 F.2d 754 (2 Cir. 1964), and private parties, Morania Barge No. 140, Inc. v. M. & J. Tracy, Inc., 312 F.2d 78 (2 Cir. 1962), 259 F.Supp. 633, 638 (E.D.Va.1966).
      It is clear that the holding in Perma Paving is correct since obviously the defense of sovereign immunity must be denied when the United States seeks to enforce a federal regulatory statute. See, United States v. California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567 (1936); Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967). However, Morania Barge merely stands for the proposition that the standards established in 33 U.S.C. § 401 et seq., may be used in a suit where independent jurisdiction already exists.
      Such circuitous reasoning begs the question and flys in the face of the Parden decision. The conclusion that sovereign immunity has been waived can “only be warranted if exacted by the most express language, or by such overwhelming implication from the text as would leave no room for any other reasonable construetion.” Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909). A statute will not be construed to limit any of the sovereign’s pre-existing rights or privileges without express language to that effect. United States v. UMW, 330 U.S. 258, 272, 67 S.Ct. 677, 91 L.Ed. 884 (1947). It is apparent that Parden and Employees require more than a conclusion that a private cause of action is impliedly created, it mandates that it be created expressly against a State.
      In affirming the district court’s judgment in Lauritzen, the circuit court stated:
      The supplication of the State, and her reception into the Federal domain, meant surrender, pro tanto and pro tempore, of State sovereignty and submission to the paramount overlordship of the United States during the tenancy.
      * * * H: *
      Congressional regulation allows causes involving activities in and upon the navigable waterways of the Nation to be adjudicated in admiralty. 28 U.S.C. § 1333. Accordingly, we think liability of the Tunnel District to the Danish suitor upon the maritime tort was justiciable in the chosen instant court. 404 F.2d 1003-1004.
      Georgia may have subjected itself to the overlordship of the United States when it entered this federally regulated activity, but it is unreasonable to conclude that it likewise subjected itself to suits by private parties.

      . Centraal Stikstof Verkoop., N.V. v. Alabama State Docks Dept., 415 F.2d 452, 455 (5th Cir. 1969).

      . Our decision is in accord with the conclusion reached by the Third Circuit in Bed Star Towing and Transportation Co. v. Department of Transportation of the State of New Jersey, 423 F.2d 104 (3d Cir. 1970).

      . The Court stated:
      “By adopting and ratifying the Commerce Clause, the States empowered Congress to create such a right of action against interstate railroads; by enacting the FELA in the exercise of this power, Congress conditioned the right to operate a railroad in interstate eom-
      merce upon amenability to suit in federal court as provided by the Act; by thereafter operating a railroad in interstate commerce, Alabama must be taken to have accepted that condition and thus to have consented to suit.”
      377 U.S. at 192, 84 S.Ct. at 1213.

      . Prior to and after 1966, section 16(b) read in relevant part :
      “Any employer who violates the provisions of section 6 or section 7 of this Act shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount of liquidated damages. Action to recover sucli liability may be maintained in any court of competent jurisdiction. . . .”


author: COFFIN, Chief Judge.

text:
    LITERATURE, INC., et al., Plaintiffs-Appellants, v. Robert H. QUINN et al., Defendants-Appellees.
    No. 73-1074.
    United States Court of Appeals, First Circuit.
    Argued May 7, 1973.
    Decided July 26, 1973.

      Mitchell Benjoya, Boston, Mass., with whom Zisson & Benjoya, Boston, Mass., and Dennis J. LaCroix were on brief, for appellants.
    Lawrence J. Ball, Asst. Corp. Counsel, Boston, Mass., with whom Nicholas Foundas, Asst. Corp. Counsel, Robert H. Quinn, Atty. Gen., Charles E. Chase, Asst. Atty. Gen., Garrett H. Byrne, Suffolk County Dist. Atty., and Louis M. Nordlinger, Asst. Dist. Atty., Boston, Mass., were on brief for appellees.
    Before COFFIN, Chief Judge, and ALDRICH and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

On February 1, 1973, appellants, the owner and employees of two bookstores in Boston, brought this suit seeking to enjoin enforcement of c. 272, § 28A, Mass.Gen.Laws (making criminal the possession with intent to sell and sale of obscene material), including the criminal proceedings against appellants presently pending trial de novo in the Suffolk County Superior Court for violations of that statute arising out of a series of arrests and accompanying warrantless seizures over a period of 18 months. They alleged that the statute was unconstitutional on its face, that the arrests, searches and seizures were illegal, being made without warrants or advance adversary hearings, that appellants were being harassed by this series of ongoing arrests and seizures, that this harassment will deprive appellants of their federal rights and of their business and livelihoods without due process, and that they had no adequate remedy at law. The complaint requested the convening of a three-judge court pursuant to 28 U.S.C. §§ 2281, 2284, a declaration of the unconstitutionality of the statute, and a preliminary and permanent injunction preventing the appellees from taking any action to enforce the statute. On the same day, the appellants filed a motion for a temporary restraining order, a motion for a preliminary injunction, and affidavits of each of the appellants alleging a deprivation of constitutional rights and irreparable injury from the continuation of defendants’ actions.

On February 26, a hearing was held. The exact purpose and scope of this hearing is in dispute. Appellants’ counsel claimed at argument that he was informed it would be on his application for a temporary restraining order and that he would be allowed fifteen minutes. From this, and his prior experience in the district court, he concluded that he would have that time for an argument on the temporary restraining order request and that subsequently an ev-identiary hearing would be had before a magistrate regarding the preliminary injunction. Counsel for appellee Boston Police Commissioner stated that he understood the hearing to be an eviden-tiary one and that he had brought with him to the hearing the arresting officers and the seized materials, a claim borne out by the transcript of the hearing. While the transcript also shows that Commissioner’s counsel did make an offer to prove that the materials were obscene, the seizures lawful, and the arrests and seizures made in good faith, the district court did not request any evidence or indicate that either side’s case depended on an evidentiary presentation. Yet, in its Memorandum and Order of March 5, the district court stated that “This matter came before the Court on plaintiffs’ motion for a preliminary injunction”, although also noting the request for a three-judge court and declaratory relief, and stated that “At the hearing plaintiffs did no more than present the Court with conclusory assertions of counsel. No evidence of harassment . . ., bad faith, . . ., nor any other extraordinary circumstances which would bring this case out of the operation of the rule of Younger v. Harris was adduced by plaintiffs.” Given our disposition, we need not resolve the exact nature of the hearing or the sufficiency of the notice given appellants.

In light of the absence of relevant evidence, the district court denied “plaintiffs’ application for injunctive relief” based on Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), denied “plaintiffs’ application for declaratory relief” based on Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), and ordered that “it being conceded that all plaintiffs are parties defendant in presently pending criminal eases in Suffolk Superior Court, the complaint herein is dismissed without prejudice.” This timely appeal was then pressed.

While no motion to dismiss had been filed, a district court may, in appropriate circumstances, note the inadequacy of the complaint and, on its own initiative, dismiss the complaint. Dodd v. Spokane County, 393 F.2d 330 (9th Cir. 1968); 5 Wright & Miller, Federal Practice and Procedure: Civil, § 1357. Yet a court may not do so without at least giving plaintiffs notice of the proposed action and affording them an opportunity to address the issue. Dodd, supra, 393 F.2d at 334. This alone might well justify reversal here, since there is no indication that notice of a possible dismissal was given. Here, however, we also find, primarily on the basis of legal developments which have transpired since the district court acted, that the dismissal was erroneous as a matter of law.

When a three-judge court is requested, the initial inquiry must be whether the request should be granted. That inquiry is extremely limited: “whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute.” Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 1296, 8 L.Ed.2d 794 (1962). Appellants’ major constitutional attack on the statute was premised on the view that Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), recognized a right of privacy which arguably encompasses not only the private home reader of legally defined obscenity, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1968), but also the commercial seller. This contention is clearly foreclosed by United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971), as we recognized in United States v. Palladino, 475 F.2d 65, 75 (1st Cir. 1973), vacated and remanded on other grounds, 413 U.S. 916, 93 S.Ct. 3066, 37 L.Ed.2d 1038 (1973), and now again by United States v. Orito, - U. S. -, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973) and United States v. 12 200-Ft. Reels of Super 8mm. Film, - U.S. -, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973).

Nevertheless, it now appears that appellants’ general First and Fourteenth Amendment challenge to the statute as encompassing protected sales is not “obviously without merit”. Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973). As the Court recently made clear in Miller v. California, - U.S. -, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the permissible scope of obscenity regulation is limited to “works which depict or describe sexual conduct” which conduct “must be specifically defined by the applicable state law, as written or authoritatively construed.” Id. at 2615. The Court then suggested a few constitutionally acceptable definitions. Id. at 2615. While the Supreme Judicial Court of the Commonwealth has attempted to narrow the broad statutory terms “obscene, indecent or impure”, by noting that “the protection of the First Amendment [extends] to publications . . . which, although depicting male and female nudity in sexually provocative poses, do not portray actual sexual congress or other activities commonly known as hard core pornography”, Commonwealth v. Palladino, 1970 Mass.Adv.Sh. 1127, 1130-1131, 260 N.E.2d 653, 656; Commonwealth v. Donahue, 1970 Mass.Adv.Sh. 1404, 1405, 263 N.E.2d 589; it has not “specifically defined” what “other activities” may not be depicted or described. Pending further construction, therefore, the facial attack on the Massachusetts statute would seem to pose an issue requiring the convening of a three-judge court.

Once a non-frivolous constitutional challenge is identified, the single district judge need only inquire “whether the complaint at least formally alleges a basis for equitable relief.” Idlewild, supra, 370 U.S. at 715, 82 S.Ct. at 1296. We are aware that the Fifth Circuit has held that the Younger issues of great and immediate irreparable injury, bad faith prosecution or harassment are properly resolved by a single judge after an evidentiary hearing. Hunt v. Rodriguez, 462 F.2d 659, 662 (5th Cir. 1972). However, we agree with the Second Circuit, Abele v. Markle, 452 F.2d 1121, 1125-1126 (2d Cir. 1971), that such an approach is inconsistent with the limited inquiry mandated by Idlewild and only recently reaffirmed by Goosby. In the latter ease, the Court went to great lengths to emphasize the extremely narrow inquiry mandated under the first clause of the Idlewild requirement, reciting all of the stringent prior definitions of constitutional insubstantiality. We find it inconceivable that having so narrowed the scope for legal judgment by a single judge, the Court would permit a full evidentiary determination of the Younger issue by the single judge. The language of Idlewild supports this view, requiring only an inquiry into the formal sufficiency of the allegations regarding equitable relief. More significantly, the Court, in remanding two of the Younger septet to the three-judge district courts for reconsideration of their injunctive relief in light of the irreparable injury requirement, did not indicate that that determination should be made in that or other cases by the single convening judge. Dyson v. Stein, 401 U.S. 200, 203, 91 S.Ct. 769, 27 L.Ed.2d 781 (1971); Byrne v. Karalexis, 401 U.S. 216, 220, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971). Finally, the policy behind the three-judge court statute, protection against paralyzing interference with state law enforcement by a single federal judge, applies with particular force to attempted interruptions of criminal proceedings. We therefore hold that when a three-judge court is requested in a Younger-type case, the single judge may only inquire whether the complaint at least formally alleges a basis for equitable relief under Younger.

The complaint here obviously does. It alleges a series of arrests and warrantless seizures, the use in most cases of multiple complaints, and large monetary fines. It claims this constitutes harassment threatening irreparable injury to their federal rights and property for which no adequate remedy at law exists. Younger, supra, 401 U.S. at 46, 49, 54, 91 S.Ct. 746, 27 L.Ed.2d 669; Perez v. Ledesma, 401 U.S. 82, 118 n. 11, 91 S.Ct. 674, 27 L.Ed.2d 701 (opinion of Brennan, J.); Byrne v. Karalexis, 396 U.S. 976, 983, 90 S.Ct. 469, 24 L.Ed.2d 447 (stay of injunction pending appeal) (Stewart, J. concurring); Shaw v. Garrison, 5 Cir., 467 F.2d 113, 120 n. 8, 122, n. 11, cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972); Miami Health Studios, Inc. v. City of Miami Beach, 353 F.Supp. 593 (S.D.Fla.1972); P.B.I.C., Inc. v. Byrne, 313 F.Supp. 757, 766-767 (D.Mass.1970), vacated and remanded on other grounds, 413 U.S. 905, 93 S.Ct. 3031, 37 L.Ed.2d 1017 (1973). It is thus adequate for present purposes.

Since the complaint raises a non-frivolous challenge to the statute on its face, formally alleges a basis for equitable relief, and otherwise meets the requirements of the three-judge court statute, a three-judge court must be convened. Accordingly the denial of the preliminary injunction and the dismissal of the complaint must be vacated, the single judge having no jurisdiction to enter either order. 28 U.S.C. § 2284(5).

Judgment vacated; case remanded for convening of a three-judge court pursuant to 28 U.S.C. §§ 2281, 2284. Costs to appellants.

      . The original complaint alleged six arrests over a period from May 3, 1971 to November 28, 1972, four of them in the period between February 15 and May 15, 1972. In each case, between five and fifteen items were allegedly seized by the arresting officer without a warrant. Multiple complaints were filed in most cases. Two complaints were filed against the appellant-owner Literature, Inc., as a result of the arrest of employee Gurion, not a party to this suit, on May 4, 1972. On February 15, 1973, appellants made a “Motion to Supplement Their Complaint”, in which they alleged that on January 20, 1978, a seventh, arrest was made, of an employee, Flake, and that as a result of that arrest appellant Literature was again charged and convicted under two complaints and fined $3,000. on each complaint. The ease against Flake, not a party here, was allegedly continued without a finding until August 1973. The docket does not indicate that the district court ever took action on this motion. On remand we assume the district court will consider whether the motion should be treated as one to amend the complaint as of right under Fed.Ii.Civ.P. 15(a).

      . “ [A]n appellate court must apply the law in effect at the time it renders its decision.” Thorpe v. Housing Authority, 393 U.S. 268, 281, 89 S.Ct. 518, 526, 21 L.Ed.2d 474 (1969).

      . The seizures, concededly without warrants, would seem to stand in quite a different posture since the Supreme Court’s decision in Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973), a development which could lead to reconsideration of the pending prosecutions by the Commonwealth. Should such occur and result in dismissal, this case would of course be mooted.