author: ALDISERT, Circuit Judge.

text:
    LA CHEMISE LACOSTE, a French Corporation, Appellant, v. The ALLIGATOR COMPANY, INC., a Delaware Corporation, Defendant and Third-Party Plaintiff, v. JEAN PATOU, INC., a New York Corporation, Third-Party Defendant-Appellant.
    No. 74-1493.
    United States Court of Appeals, Third Circuit.
    Argued Oct. 29, 1974.
    Decided Dec. 26, 1974.

      See also 3 Cir., 487 F.2d 312.

      Thomas S. Lodge, Wilmington, Del., W. Brown Morton, Jr., Donald N. Huff, Morton, Bernard, Brown, Roberts & Sutherland, Donal B. Tobin, Washington, D. C., Weingarten, Maxham & Schurgin, Boston, Mass., for appellants; Connolly, Bove & Lodge, Wilmington, Del., of counsel.
    Irving Constant, Abraham G. Levin, New York City, Rubin, Wachtel, Baum & Levin, New York City, Arthur H. Seidel, Philadelphia, Pa., Seidel, Gonda & Goldhammer, P. C., Philadelphia, Pa., Lewis S. Black, Jr., Wilmington, Del., Brian L. Bilzin, New York City, Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for appellee.
    Before STALEY, ALDISERT and RO-SENN, Circuit Judges.
   OPINION OF THE COURT

ALDISERT, Circuit Judge.

The decisive question posed by this appeal is whether there was proper federal jurisdiction in a declaratory judgment proceeding removed from the Delaware Court of Chancery. The district court refused to remand and proceeded to an adjudication on the merits. Appellants contend here, as they did at the trial level, that because a federal question did not appear in plaintiff’s complaint, the case was improperly removed. We agree with the appellants and will vacate the judgment without comment on the merits.

The genesis of this case is a contest between La Chemise Lacoste, a French corporation and the owner of a common law trademark in the emblem of a crococile, on the one side, and The Aligátor Company, Inc., which has federally registered trademarks for the word mark “Alligator” and for the design of a lizard-like reptile, on the other. Lacoste brought this action in Delaware seeking a declaration of its ownership of and right to use the crocodile emblem as a trademark for toiletries, and for an injunction against interference with those rights. In its complaint Lacoste alleged that it is “the lawful owner of [the] crocodile emblem as a trademark for toiletries in Delaware, and elsewhere in the United States, and has the exclusive right to use, and to authorize the use of, said emblem as a trademark on toiletries without authorization or consent of any sort from defendant.” Lacoste also averred that its emblem “has been for many years past, widely and famously associated with M. René Lacoste, founder and still a principal officer in the management of plaintiff, having originated during M. Lacoste’s career as a Davis Cup tennis player as his personal symbol, and having become the commercial property of plaintiff as a trademark identifying its products in Delaware and elsewhere in the United States, in France and generally throughout the world.”

Following Judge Layton’s denial of the motion to remand, Lacoste unsuccessfully attempted to have the removal question certified for review under 28 U.S.C. § 1292(b). Prior litigation in this court, La Chemise Lacoste v. General Mills, Inc., 487 F.2d 312, 314 (3d Cir. 1973), did not treat the removal issue, but was limited to “the propriety of the denial of a preliminary injunction and, incidentally at least, the propriety of the dismissal of the added parties, since most, if not all, of the alleged infringements sought to be restrained pendente lite are acts of those corporations rather than Alligator.” The earlier appeal was not from a final judgment, but from an interlocutory order reviewable under the special provisions of 28 U.S.C. § 1292(a).

The within appeal emanates from a final judgment, and, in the absence of a certification under § 1292(b), see Climax Chemical Co. v. C. F. Braun & Co., 370 F.2d 616, 617 (10th Cir. 1966), cert. denied, 386 U.S. 981, 87 S.Ct. 1287, 18 L.Ed.2d 231 (1967), is the first opportunity in this court for review of the order denying the petition to remand. Chicago, R. I. & Pac. R. R. v. Stude, 346 U.S. 574, 578, 74 S.Ct. 290, 98 L.Ed. 317 (1954); Wilkins v. American Export-Isbrandtsen Lines, Inc., 401 F.2d 151 (2d Cir. 1968); C. Wright, Law of Federal Courts § 41, at 147 (2d ed. 1970). Accordingly, we reject appellee’s contention that appellants, by waiting until appeal from final judgment, have waived the right to challenge the denial of the motion to remand.

Turning to a resolution of the removal question, we quickly note that Alligator does not contend that Lacoste relied on relief under a federal statute in the state declaratory proceeding. Indeed Alligator’s argument follows a very narrow compass. It contends: Lacoste desired state declaratory relief because Alligator had threatened coercive action against Lacoste for using the trademark on toiletries; since this proposed coercive action was federal in nature, Lacoste in fact had filed an action “arispng] under the Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1331. Consequently, the case satisfied the requirement announced in Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936) — that the “right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff’s cause of action. Starin v. New York, 115 U.S. 248, 257 [6 S.Ct. 28, 29 L.Ed. 388]; First National Bank v. Williams, 252 U.S. 504, 512, [40 S.Ct. 372, 374, 64 L.Ed. 690]” — and qualified for removal under 28 U.S.C. § 1441(b).

Our analysis begins with an examination of paragraph 10 of Lacoste’s complaint:

Defendant has heretofore wrongfully threatened, and continues to threaten, to interfere with plaintiff’s said sale of toiletries identified by said crocodile emblem in Delaware, and elsewhere in the United States, by threatening to bring suit against plaintiff and against one or more of the enterprises constituting said authorized channels of distribution of toiletries to enjoin or curtail said sales.

In its petition for removal Alligator contended:

The reference in paragraph 10 of the complaint to a suit which Petitioner threatened and intended to bring against plaintiff, is to a contemplated action in the United States District Court under the Lanham Act, [15 U.S.C. § 1051 et seq.], for protection of Petitioner’s rights under the aforesaid United States Trademark Registrations.

Alligator asserted, and the district court agreed, that had Alligator sued Lacoste for infringement under the Lanham Act, the district court could have had jurisdiction under 28 U.S.C. § 1338. Therefore, Alligator argues that the state action raised a substantial federal question permitting removal.

In denying the motion to remand, the district court reasoned:

To determine whether a declaratory judgment action raises a federal question, the Court must look to the cause of action which the declaratory defendant threatens to assert; if the threatened action involves a claim under federal law, there exists federal question jurisdiction over the declaratory judgment action. Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291 (1952); e. g., Product Engineering and Manufacturing, Inc. v. Barnes, 424 F.2d 42, 165 U.S.P.Q. 229 (10th Cir. 1970); Apex Beauty Products Manufacturing Corp. v. Brown Shoe Co., 209 F.Supp. 73 (S.D.N.Y.1962). Alligator threatened Lacoste with an action for infringement of its federally registered trademark and, under 28 U.S.C. § 1338(a), the District Courts have original jurisdiction of any civil action arising under any Act of Congress relating to trademarks. Therefore, while Lacoste had an option to seek declaratory relief in a state or federal forum, it cannot deny Alligator’s right to have the federal question determined by a federal court by the expedient of artful pleading.
Federal jurisdiction exists here for another reason. Although the normal rule requires that federal jurisdiction is established solely by the complaint, Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936), in certain cases where a question of federal status is involved, the Court may look beyond the complaint to establish jurisdiction; e. g.,’ Fay v. American Cystoscope Makers, 98 F.Supp. 278 (S.D.N.Y.1951); Ulichny v. General Electric, 309 F.Supp. 437 (N.D.N.Y. 1970).

La Chemise Lacoste v. Alligator Co., 313 F.Supp. 915, 917-918 (D.Del.1970). We do not accept either part of this analysis.

First, any evaluation of the dictum in Public Service Commission v. Wycoff, 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291 (1952), must proceed from the threshold understanding that the declaratory judgment proceeding there was federal; it was not a state declaratory proceeding removed to a district court. Thus the precise Wycoff dictum refers to an action originating in the federal court: “Where the complaint in an action for [federal] declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine whether there is federal-question jurisdiction in the District Court.” Ibid. at 248, 73 S.Ct. at 242.

Although we applied the Wycoff teaching to a federal declaratory judgment act proceeding, Thiokol Chemical Corp. v. Burlington Industries, Inc., 448 F.2d 1328, 1330-1331 (3d Cir. 1971), cert. denied, 404 U.S. 1019, 92 S.Ct. 684, 30 L.Ed.2d 668 (1972), we have not been directed to, nor has our research disclosed, the application of the Wycoff principle to any removal case except that of the district court here.

Given the factual complex of this case, this is not a distinction without a difference, for, unlike the typical Wycoff situation, in the instant case we are constrained both by principles for determining federal question jurisdiction and by those governing removal procedure.

In an unwavering series of cases from 1894 to 1974 the Supreme Court has emphasized that federal question jurisdiction must appear on the face of the complaint. If it does not appear there, “no statement in the petition for removal, of the defendant corporation, can supply that want, under the [then] existing act of congress.” Tennessee v. Union & Planters’ Bank, 152 U.S. 454, 464, 14 S.Ct. 654, 657, 38 L.Ed. 511 (1894); “[T]he controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal,” Gully v. First National Bank, supra, 299 U.S. at 113, 57 S.Ct. at 98. This year the Court reiterated: “[t]he federal questions ‘must be disclosed upon the face of the complaint, unaided by the answer’ ”, Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 127-128, 94 S.Ct. 1002, 1004, 39 L.Ed.2d 209 (1974) (per curiam).

There is also formidable Supreme Court instruction that the removal procedure, statutory in nature, reflects a congressional policy of severe abridgement of the right to remove a state action to a federal court.

The basic removal statute, 28 U.S.C. § 1441, provides:

(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

The removal procedure makes it clear that the initial pleading in the state court must set forth the basis for removal:

The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

28 U.S.C. § 1446(b) (emphasis added).

In adjuring “strict construction” of removal statutes, the Supreme Court cautions:

Not only does the language of the Act of 1887 [a precursor to § 1441] evidence the Congressional purpose to restrict the jurisdiction of the federal courts on removal, but the policy of the successive acts of Congress regulating the jurisdiction of federal courts is one calling for the strict construction of such legislation. The power reserved to the states under the Constitution to provide for the determination of controversies in their courts, may be restricted only by the action of Congress in conformity to the Judiciary Articles of the Constitution. “Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined.” Healy v. Ratta, 292 U.S. 263, 270 [54 S.Ct. 700, 703, 78 L.Ed. 1248]; see Kline v. Burke Construction Co., 260 U.S. 226, 233, 234 [43 S.Ct. 79, 82, 67 L.Ed. 226, 24 A.L.R. 1077]; Matthews v. Rodgers, 284 U.S. 521, 525 [52 S.Ct. 217, 219, 76 L.Ed. 447]; cf. Elgin v. Marshall, 106 U.S. 578 [1 S.Ct. 484, 27 L.Ed. 249.]

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941). The current statute has been given a similar construction. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 10, 71 S.Ct. 534, 538, 95 L.Ed. 702 (1951), teaches: “The Congress, in the revision [§ 1441], carried out its purpose to abridge the right of removal.” Although addressing itself to a separate and independent cause of action, the Court emphasized “the restrictive policy of Congress against removal,” and “its purpose of limiting” removal, and commanded, “[b]y interpretation we should not defeat that purpose.” Ibid, at 12, 71 S.Ct. at 539.

Guided by these strong Supreme Court pronouncements, we decline to transport the dictum of Wycoff to the state declaratory action context.

In its alternative holding, however, the court below would disregard these clear pronouncements and suggest an exception influenced by district court decisions in Fay v. Cystoscope Makers, Inc., 98 F.Supp. 278 (S.D.N.Y.1951), and Ulichny v. General Electric Co., 309 F.Supp. 437 (N.D.N.Y.1970). Some courts have carved exceptions to the basic rule where the addition of a party’s status alone suffices to make out a federal question or where the plaintiff has concealed the federal nature of his action. The reinforcement of the Tennessee-Gully principle in the 1974 Phillips Petroleum decision persuades us that the inferior federal courts should not attempt to engraft exceptions contrary to the legislative policy so zealously protected by the Supreme Court.

Assuming the propriety of the status exceptions recognized in Fay, supra, none is applicable to the instant case. But appellee argues on the basis of Ulichny, supra, that defendant’s status as an owner of federally registered trademarks is one which the court may ascertain independently of the complaint, to arrive at the conclusion that the Lacoste complaint raised a federal question. We reject this argument and the rationale of Ulichny. The brute fact is that defendant’s status as a federal trademark owner is a matter for defense, and, under the Tennessee-Gully principle, one wholly inappropriate to the federal question determination. See, e. g., Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 673-674, 70 S.Ct. 876, 94 L.Ed. 1194 (1950).

Appellee next contends this case fits within that line of cases which permits removal where “the plaintiff inadvertently, mistakenly or fraudulently conceals the federal question that would necessarily have appeared if the complaint had been well pleaded.” 1A J. Moore, Federal Practice 10.160, at 187 (2d ed. 1974) & cases cited. Alligator concedes Lacoste’s complaint by its terms was bottomed on a declaration for relief under Delaware law. It argues, however, that the reference in paragraph 10 of the complaint — that Alligator was “threatening to bring suit against plaintiff” — was intentionally vague and purposefully omitted reference to Alligator’s trademarks. Therefore, appellee continues, Lacoste concealed the federal nature of the action. We reject this contention.

Alligator arrives at its conclusion by . the application of the federal declaratory judgment act test of Wycoff to a state declaratory action. Even were we inclined to apply the Wycoff test to a removal proceeding, this approach would not be sufficient to remove this particular state court plaintiff to a federal court. Paragraph 10 of Lacoste’s complaint does not specifically assert that Alligator will bring an action based on its federal rights. The complaint merely avers that the defendant is “threatening to bring suit against plaintiff.” Nor is it clear, as a matter of practical wisdom or of the record in this case, that Alligator’s threatened suit would rely on its federal trademarks. Alligator could have brought one of three types of action against Lacoste: a state common law trademark infringement suit, an unfair competition suit under state law, or an infringement suit based on its federally registered trademarks.

Appellee’s final line of defense is that although jurisdiction under the Lanham Act is concurrent, 28 U.S.C. § 1338(a), the law to be applied is exclusively federal; i. e., that federal law preempts the field. Consequently, removal is proper. We reject this argument. It presupposes the plaintiff sought relief under the Lanham Act, which clearly was not the case here. Furthermore, the Lanham Act generally does not preempt state regulation of trademarks, statutory or common law. Gardner v. Clark Oil Refining Corp., 383 F.Supp. 151 (E.D.Wis.1974); Fischer v. Holiday Inn of Rhinelander, Inc., 375 F.Supp. 1351, 1353 (W.D.Wis.1973); Application of State of New York, 362 F.Supp. 922, 927-928 (S.D.N.Y.1973); M&D Simon Co. v. R. H. Macy & Co., 152 F.Supp. 212, 215 (S.D.N.Y.1957). But of., Mister Donut of America, Inc. v. Mr. Donut, Inc., 418 F.2d 838, 844 (9th Cir. 1969). Thus, the underlying rationale for Fay, supra, — that section 301 of the National Labor Relations Act, 29 U.S.C. § 185, is preemptive, 98 F.Supp. at 280 — 281—is inapplicable, even by analogy, to trademark cases.

Moreover, in the absence of a preemptive trademark statute, the acute impropriety of relying on the mere probability that the threatened coercive action would be filed in federal court becomes more manifest. A court cannot conclude as a matter of law that the trademark or infringement coercive action, described in a state declaratory judgment complaint, would necessarily be lodged in a federal forum. In dealing with the precise issues of this case, in Professor Moore’s felicitous phrase, the litigant “is free to ignore the federal question and pitch his claim on the state ground.”

Thus, considering the Supreme Court’s instructions that the language of the removal statute “evidence[s] the Congressional purpose to restrict the jurisdiction of the federal courts on removal,” and that “the policy of the successive acts of Congress” commands “strict construction of such legislation;” and assuming arguendo the applicability of Wycoff to a state declaratory action, we will not find an implied averment of a threatened federal action where federal relief was only one of three available avenues of litigation. The “character of the threatened action” was not necessarily federal in nature.

We find no averment of federal question jurisdiction in the complaint. Nor does this case fall within one of the accepted exceptions to the fundamental Tennessee-Gully rule. The petition for remand to the state court should have been granted.

The judgment of the district court will be vacated and the proceedings remanded with a direction to remand to the Delaware Chancery Court for New Castle County.

      . Our analysis in this respect is not inconsistent with Grubbs v. General Elec. Credit Corp., 405 U.S. 699, 702, 92 S.Ct. 1344, 31 L.Ed.2d 612 (1972). In the instant case, the trial on the merits did not follow “removal . without objection.” Rather, plaintiff did all it could have done by way of seeking review of the denial of its motion to remand.

      . Similarly, Product Eng’r & Mfg., Inc. v. Barnes, 424 F.2d 42 (10th Cir. 1970), and Apex Prod. Mfg. Corp. v. Brown Shoe Co., 209 F.Supp. 73 (S.D.N.Y.1962), originated as federal declaratory judgment actions.
      It may also be noted that Wycoff and Product Engineering resulted in findings of no federal jurisdiction.

      . We note in passing that the Wycoff dictum is not adverse to, but rather consistent with, the basic Gully rule. Both are jurisdiction limiting. Gully and its progeny teach that a district court may not look to the federal defense averred in an answer to establish subject matter jurisdiction. The Wycoff principle applicable in federal declaratory actions is that one must look to the character of the threatened coercive action — not to the allegation in the complaint which is more akin to a federal defense — in determining whether there is a substantial federal question. Viewed in this proper perspective, the Wycoff principle is merely the federal question corollary of the axiom that the “ ‘operation of the [federal] Declaratory Judgment Act is procedural only.’ Aetna Life Ins. Co. [of Hartford, Conn.] v. Haworth, 300 U.S. 227, 240, [57 S.Ct. 461, 463, 81 L.Ed. 617, 108 A.L.R. 1000.] [(1937)]. Congress enlarged the range of remedies available in the federal courts but did not extend their jurisdiction.” Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 879, 94 L.Ed. 1194 (1950) (emphasis added).

      . Such a holding would be anomalous. A premise of the Wycoff teaching is that “in many actions for declaratory judgment, the realistic position of the parties is reversed.” 344 U.S. at 248, 73 S.Ct. at 242. The defendant is viewed as the “functional plaintiff.” See Developments in the Law — Declaratory Judgments — 1941-1949, 62 Harv.L.Rev. 787, 802-803 (1949). Yet it is axiomatic that a plaintiff may not remove an action to federal court. See, e. g., Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108, 61 S.Ct. 868, 85 L.Ed. 1214 (1941). To allow a defendant in a state declaratory action to remove, therefore, would accord to “functional plaintiffs” a right not given other plaintiffs.

      . “However, where federal jurisdiction hinges on the parties’, or one of them, havihg a particular status, the court may ascertain the existence of that status independently of the complaint. This latter rule has been applied to permit the court to ascertain the existence of diversity of citizenship, . . . and the federal nature of a receiver, ... a corporation, . . . and a marshal.” 98 F.Supp. at 280 (citations omitted).

      . Cf., e. g., J. H. Smith Co. v. Jordan Marsh Co., 161 F.Supp. 659, 660 (D.Mass.1958).

      . At oral argument, appellee contended that a letter of September 15, 1969, from Alligator counsel to Lacoste counsel, manifested Alligator’s intention to rely on its federal trademark rights. That letter, an exhibit to a deposition, was not conclusive as to the nature of a threatened suit and, more importantly, was not admitted into evidence below nor available in the district court until almost three years after Judge Layton’s decision on the motion to remand.

      . 1A J. Moore, Federal Practice ÍJ 0.160, at 185 (2d ed. 1974).

      . Ample experience indicates that, where a state trademark or’ infringement action is sought to be removed to federal court on the theory that the action could have been predicated on the Lanham Act, federal courts have been unwilling to find a federal question by implication and have remanded to state courts. Fischer v. Holiday Inn of Rhinelander, Inc., 375 F.Supp. 1351, 1354 (W.D.Wis. 1973); Cue Publ. Co. v. Colgate-Palmolive Co., 233 F.Supp. 443 (S.D.N.Y.1964); Fluidless Non-Tact Lenses, Inc. v. Klear Vision Contact Lens Specialists, Inc., 158 F.Supp. 145, 146 (S.D.N.Y.1958); M&D Simon Co. v. R. H. Macy & Co., 152 F.Supp. 212, 216 (S.D.N.Y.1957).

      . A proposed amendment to the removal statute, the Federal Court Jurisdiction Act of 1971, S. 1876, 92nd Cong., 1st Sess., incorporating the suggestions of the American Law Institute, would change the result we reach. Section 1312 would provide:
      (a) Except as otherwise provided by Act of Congress, a civil action brought in a State court may be removed to the district court of the United States for the district embracing the place where such action is pending:
      (2) If the amount in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, by any defendant, or any plaintiff, by or against whom, subsequent to the initial pleading, a substantial defense arising under the Constitution, laws, or treaties of the United States is properly asserted that, if sustained, would be dispositive of the action or of all counterclaims therein.
      Ali, Study of the Division of Jurisdiction Between State and Federal Courts § 1312, at 25 (1969) (emphasis added).
      In introducing the bill, Senator Burdick stated, inter alia: “The most important change required by this rationale is to permit removal on the basis of a Federal defense or counterclaim. The need for a Federal forum is as great for the defendant who relies on Federal law to defeat a State-created claim as it is for the plaintiff whose claim is derived from Federal law.” 117 Cong.Rec. 15089 (1971).


source: Caselaw Access Project

author: GOLDBERG, Circuit Judge:

license: Public Domain

text:
    Billy Lee JOHNSON, Petitioner-Appellant. v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 73-3945.
    United States Court of Appeals, Fifth Circuit.
    Jan. 9, 1975.

      Harry H. Walsh, Huntsville, Tex., for petitioner-appellant.
    Robert C. Flowers, Dunklin Sullivan, Asst. Attys. Gen., Gilbert Pena, Austin, Tex., for respondent-appellee.
    Before GOLDBERG, GODBOLD and MORGAN, Circuit Judges.
   GOLDBERG, Circuit Judge:

This case presents a good illustration of the perils of double jeopardy. On May 23, 1967 Billy Lee Johnson was found not guilty of the crime of “burglary of a private residence at nightime with intent to commit rape.” Five months later he was convicted of “assault with intent to commit rape,” on charges stemming from the same incident for which he was acquitted in his first trial. He was sentenced to 99 years in jail.

His conviction was upheld on direct appeal, Johnson v. State, Tex.Cr.App. 1968, 432 S.W.2d 98, and his subsequent petitions for a writ of habeas corpus were denied in State and federal district courts. He appeals to this Court for his writ. Today we find that the issues presented in the second trial substantially duplicated those presented in the first trial. We cannot conclude that a rational jury would have acquitted or convicted defendant on the basis of the differences between the proof necessary to substantiate each indictment.

Unfortunately, our knowledge of the facts and the legal issues presented to the jury in the first case is limited. This Court was advised, after it had received no transcript from the first proceeding, “that no further transcripts are available in the above-styled cause”. Letter to the Court, Sept. 25, 1974, from District Court for Northern District of Texas. Our knowledge of the testimony at the first trial is limited to stipulations between defense attorney and prosecutor about the testimony of the prosecuting witness and the police officer who conducted the initial investigation.

Those stipulations are:

“That if the witness, Mrs. Corah Bell Crandell, were present in Court, she would testify that on May 22, 1967 in the Criminal Court Room Number Five of Dallas County, Texas that she appeared as a witness in Cause Number 67-1034-JL, styled State of Texas Vs. Billy Lee Johnson, which said case was a case charging Billy Lee Johnson with burglary of a private residence at nighttime with intent to commit rape, and after being sworn as a witness in that case, she testified on direct examination that she was eighty-two (82) years of age, that she lived then at the time she testified at 1403 South Fitzhugh, and had lived there for forty (40) years; that on February 4, 1967, she was living there and she had lived and resided in a residence there in a house which had four (4) walls, a ceiling, floor, doors and windows; that about 9:45 that evening she was at home at that location at 1403 South Fitzhugh, and she was watching television when she heard someone at the back side of the house; that she went to the door and saw a man there who said that he wanted to see about buying a car that she had for sale. She testified that she told him that she did not have any car for sale. She identified the man as being a colored man, a member of the Negro race. She testified that colored people lived around her. She testified that she went back in to where the T.V. was, and the next thing she knew the man appeared, or a man appeared and had a knife and grabbed her by the shoulders. She ran for the phone and tried to call the police or dial the operator, and he grabbed her by the shoulders, dragged her all over the house, turned off the T.V., tore off her dress, threw her down on the front of the couch and was trying to assault her; that she was thrown to the floor, her clothes were torn; that he said that, “I am going to assault you and kill you and take all your money”. He also said that he was going to rape her. About that time she testified there was a bright light thrown on the house and that she screamed, “0 God, he is going to kill me”, and she resisted him as best she could; that he was trying to have intercourse with her without her consent; that she was a female person, a woman; that his assault on her and his attempts to have carnal knowledge and intercourse with her was without her consent and against her will; that she could not identify the man who was in the house, who was committing the assault upon her. On cross examination she testified that she had the clothing that she had worn at the time of the assault; that the police came out and investigated the case”.

The stipulated testimony of the police officer was:

“If Officer W. T. Mikel were present in court and sworn as a witness, he would testify that he is a member of the Dallas Police Department assigned to the Radio Patrol Division with particular specialty of the Canine Corps, and he worked in that capacity on February 4 and 5, 1967 when, with a police dog named Rex, at about 9:45 p. m., he was near 1403 South Fitzhugh and heard a woman scream. He could not determine where the screams were coming from, but he did stop his police car and got out and determined that the screams were coming from the house at 1403 South Fitzhugh. He could hear a woman screaming, “Help, you are killing me,” or words to that effect. He testified that he went to the front door of the house and that he was let in by a woman whom he identified as Mrs. Corah Bell Crandell; that her clothes were torn; that she said something to the effect, “He is going out the back door”, and he ran around to the back door and saw a man whom he identified in court as the Defendant coming out the back door or on the back porch of Mrs. Crandell’s house; that he hollered for him to stop; that thereafter he shot him two or three times and the Defendant was badly wounded and he remained there at the scene until he was removed by the ambulance”.

We also have a transcript of the instruction which the judge gave the jury in this first case. We will refer to it below as it elucidates particular points.

I.

In Benton v. Maryland, 1969, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, the Supreme Court held that the Fifth Amendment guarantee against double jeopardy was enforcible against the states through the Fourteenth Amendment. The following term, the Court held that collateral estoppel is part of the Fifth Amendment double jeopardy prohibition. Ashe v. Swenson, 1970, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469. “[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475. The Court in Ashe went on to say that where the jury in the first trial had returned a general verdict, a court reviewing for duplication of issues must:

[Ejxamine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.

397 U.S. at 444, 90 S.Ct. at 1194, 23 L.Ed.2d at 475-476, quoting Mayers & Yarborough, Bis Vexari: New Trials and Successive Prosecutions, 1960, 74 Harv.L.Rev. 1, 38-39.

Ashe was acquitted in his first trial of robbery of one of the players in a poker game. He was then tried and convicted for robbing another player in the game. Since the only controverted issue in each trial was the identity of the robber, the Court held that the second trial, by requiring relitigation, had put the defendant in double jeopardy.

As noted by the United States Magistrate in the present case, there are two issues upon which the jury in the first trial could have based its acquittal, which were controverted in the second trial. One was the identity of Mrs. Crandall’s assailant and the other was the intention of that assailant to commit rape. The State argues that Ashe applies only where one issue is in question in both trials.

We disagree with the State. Application of the rule depends upon whether some issue necessary for the prosecution’s case in the second trial has necessarily been found for the defendant in the first trial. See Sealfon v. United States, 1948, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180. Thus the fact that either identity or intent could have been the basis for the first jury’s decision does not foreclose the application of Ashe v. Swenson, because both factors would have to be proven in order to convict at the second trial. Where a determination of innocence on one of two issues was the cause of an acquittal and a determination of guilt on both issues is necessary for a subsequent conviction, the State is estopped from bringing the action.

II.

The State contends, however, that a “rational jury” could have based its decision in the first trial on the State’s failure to establish essential elements not in controversy in the second trial. If this is in fact the case, then the double jeopardy criterion would, of course, not apply.

In the present case we find that no rational jury could have acquitted on the basis of the different “issues” presented in the first trial, absent a defendant’s reliance on those factors. The State cannot produce a record here showing such reliance. The State’s suggested bases for acquittal in the first trial are nothing more than the sheerest speculation.

There are three components of a “burglary of a private residence at nighttime with intent to commit rape” charge which are not involved in an “assault with intent to commit rape” charge and upon which the State believes the jury in the first trial could have based its verdict of acquittal. They are: “[(.1)] the Petitioner entered the house without breaking; (2) that he entered by breaking with intent to commit theft but that the intent to commit rape was later formed; (3) that there was insufficient evidence that the site of the alleged crime was a private residence.” Appellee’s Brief at 6.

We address ourselves to each issue, in order. 1) Petitioner entered without breaking.

That this is an improbable jury rationale is evident from the trial court’s jury instruction in the first trial:

By the term “entry” into a house is meant every kind of entry but one made by free consent of the occupant, or of one authorized to give such consent.
By the term breaking is meant that the entry must be made with actual force. The slightest force, however, is sufficient to constitute breaking, such as lifting a latch of a door that is shut or pulling or pushing open a door.

There is no available testimony offering a scintilla of evidence that defendant might have come into the Crandall home without breaking, and the judge’s charge to the jury gave an expansive definition of breaking. No rational jury could have acquitted, on the grounds that defendant did not break into the home, on the basis of what we have before us.

The State’s second alternative, that the jury may have doubted that the requisite intent existed at the moment of entry, is equally implausible. With not a speck of factual foundation the State speculates that the jury may have believed that Johnson entered the Crandall house with another purpose, such as burglary, but that, upon casting his eyes on this eighty-two year old woman he was suddenly overcome with a passion which caused him to change his intention.

The judge’s instruction to the jury would not alert it to a special concern over the moment when defendant formed his intention. The judge’s instructions on this score were:

You are instructed that the offense of burglary of a private residence in the nighttime with intent to commit rape, is constituted by entering a house, that is, a private residence, by force, threats or fraud, at night, or in any manner by entering a private residence at any time, by either day or night, and remaining concealed therein until night, with the intent of committing the offense of rape. The charge in this case is the entry into a private residence, at night, by force, with the intent to commit rape. The punishment is by confinement in the Texas Department of Corrections for any term of years not less than five. . [bjefore you would be warranted in finding a verdict of guilty, you must find from the evidence, beyond a reasonable doubt, that the entry was made in the nighttime, and with the intent to commit the crime of rape.

While the judge gave individual definitions of many of the terms in the charge he did not specifically draw attention to the proposition that the intention must be in the mind of the burglar at the time of entry.

We do not believe that any rational jury, sua sponte, could have been moved to acquit defendant on the grounds that his intention turned from robbery to rape in midflight from the threshold to Mrs. Crandall.

Finally, the State argues that the jury could rationally have doubted that the alleged incident transpired in a “private residence.” This is the most transparent of the State’s speculations. In his instruction, the judge told the jury:

“Private residence,” as used in the statute, means any building or room occupied and actually used at the time of the offense by any person or persons as a place of residence.

Mrs. Crandall testified in her first trial “that she lived then at the time she testified at 1403 South Fitzhugh, and has lived there for forty (40) years; that on February 4, 1967, she was living there and she had lived and resided in a residence there in a house which had four (4) walls, a ceiling, floor, doors and windows . . .and since Officer Mikel is stipulated to have testified that he “determined that screams were coming from the house at 1403 South Fitzhugh” (emphasis added), there is simply nothing to suggest that Mrs. Crandall was not in a residence and that the jury could have entertained real and rational doubts on this issue.

III.

This Court usually finds that its supply of ingenious semantic puzzles and fantastic hypothetical emanate from the supplications of defendants. In keeping with deeply rooted American notions of justice and Constitutional edicts, we examine these applications to see if in fact the defendant was denied due process in his trial or whether the facts presented lever the probability that he engaged in criminal activity below the “reasonable doubt” marker. But fantastic hypothetical introduced by the State to avoid the defense of double jeopardy are subject to a different standard. We must see if a “rational jury” could have based its decision on such factors, guided by the principle enunciated in Ashe, 397 U.S. at 444, 90 S.Ct. at 1194, 25 L.Ed.2d at 475, that “the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.” By its injunction to apply collateral estoppel with “realism and rationality” we believe that the Supreme Court means that we should not allow a second trial, merely because technical requisites of the first charge are not involved in the second, where there is no evidence suggesting that those factors were even presented to the first jury for its active consideration. In the present case the alternative grounds hypothecated by the State are not of the sort which could move a rational jury, on its own, to acquit.

We are convinced that both juries stood their decisions on identity of assailant and intent to rape and did not engage in mental gymnastics so as to land on differing components. Double jeopardy is not a semanticist’s paradise, but is to be determined by applying conventional idioms to the jurors’ deliberations. There must be some legal necessity basic to one acquittal, not involved in the next trial, to justify a superseding conviction. We cannot permit initial trial deficiencies to be cured by subsequent trials. There are only four quarters to a football game. The exorcised double jeopardy is the constitutional eliminator of the might have beens. Puristic parallelism is not an absolute in the law of double jeopardy. Multitudinous criminal charges may spring from the same incident. The State’s argument in the present case would nullify the doctrine of double jeopardy because any slight deviation in the indictment would give the State another Monday morning quarter.

It is therefore ordered that the petition of Billy Lee Johnson for a writ of habeas corpus is granted and that he be released from custody.

      . We keep in mind the warning given in the same article that the Supreme Court quoted from in Ashe:

      It is probable that in the large majority of criminal prosecutions the defendant will litigate only one issue. For example, he will present an alibi, plead a lack of requisite criminal intent, or deny that the act was perpetrated at all. If a latter court is permitted to state that the jury may have disbelieved substantial and uncontradicted evidence of the prosecution on a point the defendant did not contest, the possible multiplicity of prosecutions is staggering.
      Mayers & Yarbrough, 74 Harv.L.Rev. at 37-38.

      . There is no suggestion that the lack of a record owes in any way to the fault of petitioner Johnson or his counsel, so we need not consider whether showing of such fault would raise any hostile presumption.

      . Nor was there room for interpretation of the meaning of “breaking” by defense counsel. The Texas courts have long held that opening a shut door is an entry by force which constitutes breaking. See, e. g., Mixon v. State, Tex.Cr.App. 1966, 401 S.W.2d 806.
      It is worthy of note that appellant contends in his brief, and the State does not deny, that among the items of evidence submitted in the first trial, and resubmitted in the second, was a picture of a screen door cut open.

      . Texas courts have not put the burden on the prosecutor to show the nature of the intention at the exact moment of breaking, but have upheld convictions where intention has been read, post hoc, from the subsequent actions. See e. g., Friga v. State, Tex.Cr.App. 1973, 488 S.W.2d 430; Eagen v. State, Tex.Cr.App., 1970, 451 S.W.2d 514; Dickson v. State, Tex.Cr.App. 1901, 64 S.W. 1043. So, there can be no presumption of prosecutorial failure on this issue.

      . The statute to which the judge referred is Vernon’s Ann.Tex.Penal Code Art. 1391, which defines private residence as “any building or room occupied and actually used at the time of the offense by any person as a place of residence.”


author: THORNBERRY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Bobby Gene GADDIS and Billy Sunday Birt, Defendants-Appellants.
    No. 74-2495.
    United States Court of Appeals, Fifth Circuit.
    Jan. 9, 1975.

      Tommy C. Mann, Macon, Ga. (Court-appointed), for Gaddis.
    Thomas D. Wilcox, Jr., Macon, Ga. (Court-appointed), for Birt.
    Ronald T. Knight, U. S. Atty., Earl W. Carson, Jr., Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.
    Before THORNBERRY, MORGAN and CLARK, Circuit Judges.
   THORNBERRY, Circuit Judge:

At 10:30 a.m., March 6, 1974, two armed men entered the National Bank of Walton County in Loganville, Georgia, and ordered everyone to lie on the floor. While one man kept the bank personnel and customers covered, the other jumped over the teller’s counter and took $7,501.73 from the cashier’s drawers, patting two female tellers on the cheek as he did so. The two then ran outside the bank where a third person waited at the wheel of the getaway car. While making their escape the robbers exchanged gunfire with Loganville’s lone police officer, William R. Cody. None of the robbers were immediately apprehended. Several weeks later, however, Mrs. Mary Davis deposited some of the “bait money” in a Toccoa, Georgia bank. F.B.I. Agent Kane visited Ms. Davis’ home, and discovered additional bait money in the freezer.

Pursuant to the F.B.I. investigation, the government presented its evidence to the grand jury. That body returned an eight count indictment charging Bobby Gene Gaddis, Billy Sunday Birt, and Billy Wayne Davis, Mary Davis’ husband, with various violations of the federal bank robbery statute, 18 U.S.C. § 2113. Billy Wayne Davis pled guilty and testified for the government at the joint trial of Gaddis and Birt. Count three of the indictment charged the three with possession of the money stolen from the National Bank of Walton County in violation of 18 U.S.C. § 2113(c). The other counts of the indictment charged violations of subsections (a), (b), and (d) of the statute. The trial judge’s charge permitted the jury to convict Gaddis and Birt on all' eight counts of the indictment, and the jury’s verdict did so. Neither the government nor the defense objected to the charge in that form. Yet we find the charge to have been plain error, and reverse and remand for a new trial.

United States v. Abercrombie, 5th Cir., 480 F.2d 961, cert. denied, 414 U.S. 1008, 94 S.Ct. 368, 38 L.Ed.2d 245 (1973), directly controls our decision here. Abercrombie specifically holds that it is plain error to allow a jury to convict an accused of taking and possessing the same money obtained in the same bank robbery. 480 F.2d at 964. The trial judge in the case at bar did precisely that. Subsections '(a), (b), and (d) do not create separate offenses. Rather they describe various stages or aggravated forms of the basic crime of stealing property from a federally-insured institution. Prince v. United States, 1957, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370; United States v. White, 440 F.2d 978 (5th Cir. 1971). This is not true of subsection (c). That subsection states a separate, distinct, and incompatible offense to those covered in the other subsections. Forrester v. United States, 5th Cir. 1972, 456 F.2d 905; United States v. White, supra. It relates to possessing or receiving the property stolen in the robbery. In establishing that offense, Congress was attempting to reach a new class of offenders, not to multiply the offense of the bank robbers themselves. Heflin v. United States, 1959, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407. The jury’s verdict below convicted Gaddis and Birt on seven counts relating to taking money from a federally-insured bank and on one count of possessing the same money.

There is no way of knowing what verdict a properly instructed jury would have returned in this case, and for a reviewing court to speculate on that subject would be to usurp the functions of both the jury and the sentencing judge. Milanovich v. United States, 1961, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773. Since the jury’s verdict was inherently inconsistent, the proper appellate remedy is to remand for a new trial. United States v. Abercrombie, supra; United States v. White, supra.

Reversed and remanded.

      . “(c) Whoever receives, possesses, conceals, stores, barters, sells, or disposes of, any property or money or other thing of value knowing the same to have been taken from a bank, or a savings and loan association, in violation of subsection (b) of this section shall be subject to the punishment provided by said subsection (b) for the taker.”

      . “(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, or any savings and loan association; or
      Whoever enters or attempts to enter any bank, or any savings and loan association, or any building used in whole or in part as a bank, or as a savings and loan association, with intent to commit in such bank, or in

        such savings and loan association, or building, or part thereof, so used, any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny—
      Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.”
      “(b) Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both; or
      Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value not exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, or any savings and loan association, shall be fined not more than $1,000 or imprisoned not more than one year, or both.”
      “(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.” 18 U.S.C. § 2113(a), (b), (d).

      . Appellants raise two points in addition to their inconsistent verdict complaint. First, they claim reversible error because of certain remarks that the district attorney made during the course of the trial. We have examined those remarks in the context of the entire record and find no reversible error. In two instances, the trial court gave a curative instruction upon defense objection. In the other instances, we find that the remarks did not constitute plain error. The cumulative effect of the prosecutor’s conduct did not deprive the appellants of a fair trial.
      Appellants also complain that the trial court erred in failing to require the government to produce FBI interview reports pertaining to two government witnesses. We have examined those reports, and agree with the trial judge that the reports do not fall within the definition of “statement” in 18 U.S.C. § 3500(e). The trial judge properly refused to require the government to produce the material for defense inspection.


author: VAN DUSEN, Circuit Judge.

text:
    Cynthia Jo SAMUEL and Dena Meyers, Individually, and on behalf of all other persons similarly situated, Plaintiffs, Appellants, Patricia Farley and Cynthia Lambert, Intervening Plaintiffs, v. UNIVERSITY OF PITTSBURGH, the Pennsylvania State University, Indiana University of Pennsylvania, Temple University, and all other state and state-related universities and colleges in the Commonwealth of Pennsylvania similarly situated, Wesley Posvar, Chancellor of the University of Pittsburgh, John W. Oswald, President of the Pennsylvania State University, William W. Hassoer, President of Indiana University of Pennsylvania, Paul R. Anderson, President of Temple University, and all other chancellors and presidents of all other state and state-related universities and colleges in the Commonwealth of Pennsylvania similarly situated, the Boards of Trustees of the University of Pittsburgh, the Pennsylvania State University, Indiana University of Pennsylvania, Temple University, and the Boards of Trustees of all other state and state-related universities and colleges in the Commonwealth of Pennsylvania similarly situated, William H. Rea, Chairman of the Board of Trustees of the University of Pittsburgh and all other persons on the Board of Trustees of the University of Pittsburgh, Albert Shoemaker, Chairman of the Board of Trustees of the Pennsylvania State University and all other persons on the Board of Trustees of the Pennsylvania State University, and all other persons on the Board of Trustees of the Pennsylvania State University, Joseph W. Serene, Chairman of the Board of Trustees of Indiana University of Pennsylvania and all other persons on the Board of Trustees of Indiana University of Pennsylvania, William R. Spofford, Chairman of the Board of Trustees of Temple University and all other persons on the Board of Trustees of Temple University and all other Chairmen and all other persons on the Boards of Trustees of all other state and state-related universities and colleges in the Commonwealth of Pennsylvania similarly situated, R. V. Allshouse, Registrar of the University of Pittsburgh, and all other registrars or persons holding similar positions in all other state and state-related universities and colleges in the Commonwealth of Pennsylvania similarly situated, Frederick Sehring, Assistant Registrar of the University of Pittsburgh, and all other assistant registrars or persons holding similar positions in all other state and state-related universities and colleges in the Commonwealth of Pennsylvania similarly situated, Milton J. Shapp, Governor of the Commonwealth of Pennsylvania, J. Shane Creamer, Attorney General of the Commonwealth of Pennsylvania, Robert P. Casey, Auditor General of the Commonwealth of Pennsylvania, and each and every named Defendant and each and every Defendant subject to jurisdiction by representation, Individually and in their official capacity.
    No. 74-1624.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 12, 1974.
    Decided Dec. 26, 1974.

      Michael P. Malakoff, Berger & Kapetan, Pittsburgh, Pa., for appellants.
    James M. Arensberg, Tucker, Arensberg & Ferguson, Pittsburgh, Pa., for University of Pittsburgh, Wesley W. Posvar, R. V. Allshouse and Frederick Sehring, appellees.
    Peter Platten and Richard Z. Freemann, Jr., Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., for Temple University, appellee.
    Delbert J. McQuaide and John C. Gilliland II, McQuaide, Blasko & Brown, State College, Pa., for The Pennsylvania State University, appellee.
    Israel Packel and Thomas F. Halloran, Pittsburgh, Pa., for the Governor arid the Atty. Gen. of the Commonwealth of Pennsylvania, appellees.
    Robert P. Meehan and Frank P. Lawley, Jr., Harrisburg, Pa., for Auditor Gen. Robert P. Casey, appellee.
    Before VAN DUSEN, HUNTER and GARTH, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This is an appeal by the plaintiffs, two married, female graduate students at the University of Pittsburgh, who also represent all married female students who since 1967 have attended any of the three defendant universities and who were classified as out-of-state students for tuition purposes on the basis of Rule B(2) of the Auditor General of Pennsylvania. See Samuel v. University of Pittsburgh, 56 F.R.D. 435 (W.D.Pa. 1972) (certification of plaintiff class). Plaintiffs appeal from an order entered by the District Court for the Western District of Pennsylvania, on June 7, 1974. The order directed the defendant universities to bear the expense of identifying members of plaintiff class and notifying them that, although the defendants had been found liable to the plaintiffs as a class, their damage claims would not be adjudicated on a class-wide basis. For the reasons discussed herein, we find that the appeal must be dismissed for want of a final, appealable order. See 28 U.S.C. § 1291.

The plaintiffs brought this action on December 28, 1971, to challenge the constitutionality of the Auditor General’s Rule B(2), which classified women students as resident or nonresident for tuition purposes. It provided:

“The domicile of a wife (adult or minor) is that of her husband. Where, however, an unmarried woman enrolled as a student having a Pennsylvania resident status marries a non-Pennsylvania resident, she shall continue to be classified as a Pennsylvania resident within the meaning of these Rules.” Samuel v. University of Pittsburgh, 56 F.R.D. 435, 437 n. 1 (W.D.Pa.1972).

The plaintiffs assert that the rule denied female students equal protection of the laws. They sought both to have the operation of the Rule enjoined and to have restitution made of such tuition amounts as were unconstitutionally collected. The district court certified the above-mentioned class in an opinion and order dated August 21, 1972. Samuel v. University of Pittsburgh, 56 F.R.D. 435 (W.D.Pa.1972). On October 5, 1972, the district court ordered the members of the plaintiff class to be individually notified at their representatives’ expense. On April 10, 1974, the district court by opinion and order found for the plaintiffs on the ground of the rule’s unconstitutionality, but at the same time “decertified” the class with respect to the class members’ damage claims. Samuel v. University of Pittsburgh, 375 F.Supp. 1119 (W.D.Pa.1974). Motions of the plaintiffs to enter final judgment on the April 10, 1974, order pursuant to F.R.Civ.P. 54(b), and to certify the decertification of the class for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), were denied on May 1 and May 29, 1974, respectively. On June 7, 1974, the court ordered the defendant universities to send, at their own expense, an approved form of notice of decertification to the class, members. The plaintiffs filed timely notice of appeal from this last order, which order was stayed by this court, pending appeal, on July 10, 1974.

I.

The plaintiffs-appellants assert this court’s jurisdiction on the basis of criteria for application of the “collateral order doctrine” set forth in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). In Eisen the Court held that an order allowing a suit to proceed as a class action and allocating to the defendants a substantial portion of the cost of notifying the plaintiff class was a “final” decision within the meaning of 28 U.S.C. § 1291. Rejecting any “verbal formula,” the Court found a touchstone for the interpretation of § 1291 in the “ ‘practical’ ” inquiry whether “ ‘the inconvenience and costs of piecemeal review’ ” outweigh “ ‘the danger of denying justice by delay,’ ” 417 U.S. at 171, 94 S.Ct. at 2149, quoting Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 94 L.Ed. 299 (1950). The Court reaffirmed two criteria in the Cohen decision:

“First, the District Court’s finding was not ‘tentative, informal or incomplete,’ 337 U.S. at 546, 69 S.Ct. at 1225, 93 L.Ed. 1528, but settled conclusively the corporation’s claim that it was entitled by state law to require the shareholder to post security for costs. Second, the decision did not constitute merely a ‘step toward final disposition of the merits of the case . ’ Ibid. Rather, it concerned a collateral matter that could not be reviewed effectively on appeal from the final judgment.”
417 U.S. at 171, 94 S.Ct. at 2149.

We find that the second Cohen criterion is not met by the district court’s June 7, 1974, order. The plaintiffs believe that the second criterion is satisfied because the June 7 order “involves a matter unrelated to any issue remaining before the District Court” and the class plaintiffs “can proceed no further in the District Court,” thus making the order “a final disposition of class Plaintiffs’ rights.” Plaintiffs’-Appellants’ Reply to Defendants’-Appellees’ Motions to Dismiss at 5—6. Such an approach to the question of finality fails to confront the basic issue identified by the Court in Eisen, namely, whether the burdens of piecemeal review are justified by the injustice potentially resulting from delay.

The orders appealed from in Eisen and Cohen exemplify the sorts of matters which “could not be reviewed effectively on appeal from the final judgment.” 417 U.S. at 171, 94 S.Ct. at 2149. In Cohen the district court, in the face of a statute which allowed a corporation to demand security for its litigation expenses from the plaintiffs in a stockholder’s derivative action, had allowed the plaintiff to proceed without posting such security. 337 U.S. at 543-545, 69 S.Ct. 1221, 93 L.Ed. 1528. The order appealed from thus determined who would bear the risk of loss of the corporation’s counsel fees during the pendency of the litigation. An improper allocation of risk created by the order could not have been repaired retrospectively in an appeal brought after the district court litigation had reached its conclusion. Id. at 546, 69 S.Ct. 1221, 93 L.Ed. 1528. Similarly, the district court in Eisen had allowed the plaintiff class to proceed without bearing, during the pendency of the litigation, the risk of loss of the expense of notification, in the face of the “usual rule . . . that a plaintiff must initially bear the cost of notice to the class.” 417 U.S. at 178, 94 S.Ct. at 2153. If the Court had not allowed the appeal, the defendants might ultimately have prevailed on the merits and yet have been unable to recover the cost of notice from the representative plaintiffs.

The plaintiffs in the case now under appeal have shown no similar prejudice which could outweigh the burden of piecemeal review. Both in their brief opposing the defendants’ motions to dismiss the appeal, see Plaintiffs’-Appellants’ Reply to Defendants’-Appellees’ Motions to Dismiss at 4 (footnote), and again at oral argument, the plaintiffs advanced the thesis that the June 7 order may cause members of the class who pursue their damage claims individually to incur litigation expenses which could prove to have been unnecessary if the decertification were reversed on appeal from a final judgment. The prejudice arising from delay would only arise if, on appeal from a judgment with respect to the named plaintiffs, the court of appeals found that the action had been improperly decertified, but found that the plaintiffs are not entitled to recover their litigation expenses. In this situation, absent class members who, prior to the reversal of the decertification order, settled or brought their damage claims to judgment might incur litigation expenses greater than their proportionate share of the class’ litigation expenses would have been.

We do not find this possible prejudice to be sufficient to outweigh the burden of allowing the present appeal. It should not be unduly time consuming for the named plaintiffs to reduce their individual claims to judgment and bring a unitary appeal in which the damage and litigation expense awards, if any, can throw helpful light on the correctness of the challenged decertification order. We take judicial notice of entries in the district court docket, which indicate that a hearing with respect to the named plaintiffs’ damages was had on July 1, 1974. Since there is no reason to believe that the proceedings in the district court will not continue with normal expedition, it is unlikely that great numbers of absent class members will incur substantial litigation expenses before a unitary appeal can be concluded. For these reasons alone, we would find that the danger of injustice due to delay is so slight that the collateral order doctrine should not be applied to the June 7 order.

More importantly, however, we do not believe that the loss to absent class members of the economies inherent in class action adjudication is the type of prejudice which the Eisen and Cohen decisions contemplated as justification for immediate appeal. Whenever a district court refuses to certify a class, there is some danger that absent class members will file individual suits, thus incurring litigation expenses which might prove to have been unnecessary if the denial of class status is ultimately reversed. The above rationale would render immediately appealable virtually every adverse class action determination. We cannot believe that the Supreme Court intended such a result by its reaffirmation of Cohen in Eisen. Instead, we maintain the position adopted by this Circuit in Hackett v. General Host Corp., 455 F.2d 618, 623-624 (3d Cir.), cert. denied, 407 U.S. 925, 92 S.Ct. 2460, 32 L.Ed.2d 812 (1972), that the more desirable route through which aspiring class representatives should be required to obtain review of adverse class action determinations is the mechanism of F.R.Civ.P.- 54(b) or 28 U.S.C. § 1292(b). Under these provisions the knowledge bred of the district court’s proximity to the case can be brought to bear on the question of the propriety of immediate review.

The presence of such alternative routes for appellate review necessarily affects our judgment whether “the inconvenience and costs of piecemeal review” outweigh “the danger of denying justice by delay.” The benefit of a district court’s views as to appealability secured through certification under F.R.Civ.P. 54(b) or 28 U.S.C. § 1292(b) would be lost if aspiring class representatives were allowed to appeal, without such certification, adverse class action determinations under the collateral order doctrine. This loss, together with the additional burden placed on appellees and the appellate court whenever piecemeal appeals are permitted, greatly outweighs the danger that some class members may, by proceeding individually, lose the economies of scale associated with class treatment.

II.

In their brief opposing defendants’ motions to dismiss, the plaintiffs also appear to request this court to stay the district court’s June 7 decertification order even if we find that we have no jurisdiction over the appeal. Plaintiffs’Appellants’ Reply to Defendants’-Appellees’ Motions to Dismiss at 4 (footnote). If this court lacks jurisdiction, it cannot stay the proceedings in the district court. The equitable arguments for granting such a stay, in fact, go to the question of our jurisdiction under the collateral order doctrine; they have been considered and rejected above.

Accordingly, that part of the July 10, 1974, order of this court which stayed the June 7, 1974, order of the district court will be vacated and the appeal dismissed for want of an appealable order under 28 U.S.C. § 1291.

      . In the original complaint, Cynthia Jo Samuel and Dena Meyers were the only named plaintiffs. On May 14, 1974, the district court signed an order allowing two members of the plaintiff class (Patricia Farley and Cynthia Lambert) to intervene. It appears from their motion to intervene filed May 2, 1974, that they are represented by the same attorney who represents Samuel and Meyers. Since the notice of appeal, filed in the district court on June 13, 1974, specifies only the “plaintiffs” as appellants, it may be assumed that the attorney did not mean to be lodging an appeal in behalf of the intervening plaintiffs as well. In this case, the ambiguity in the notice of appeal is harmless, since we decide that the order appealed from is not final within the meaning of 28 U.S.C. § 1291. However, attorneys in multi-party cases should designate with specificity which parties are appealing and which are not. See F.R.App.P. 3(c); F.R.App.P. Form 1. Also, Indiana University and “other state and state-related universities and colleges” were dismissed as defendants in 1972. See 56 F.R.D. 435.

      . Motions to dismiss this appeal by Temple University and the University of Pittsburgh were filed on June 26, 1974, and by Pennsylvania State University on June 27, 1974. On June 26, 1974, the defendant state officials, Milton J. Shapp, Governor of the Commonwealth of Pennsylvania, Israel Packel, Attorney General of the Commonwealth of Pennsylvania, and Robert P. Casey, Auditor General of the Commonwealth of Pennsylvania, filed a brief opposing plaintiffs’ motion for a stay pending appeal. However, on August 15, 1974, this court received a letter from the Governor and Attorney General, informing it that they would take no'position on the decertification issue. The Auditor General did file a brief and argue in support of the district court’s decertification order.

      . Rule B(2) is no longer used to determine the residency of students who are married women. The district court described its history as follows:
      “Rule B(2) was in effect from June 7, 1967, until February 11, 1972, when the Attorney General of Pennsylvania withdrew his approval of the legality of the rule. For five months, until July 14, 1972, no official rule existed to guide the defendant universities in their classification of married women students. On that date, the Attorney General wrote each defendant university that a ‘married woman’s residency should be determined in accordance with Rule B-3’, which provided that a married woman’s residency was prima facie the same as her husband’s and that the presentation of convincing evidence could establish that a married woman was a Pennsylvania resident in spite of the fact that her husband was not. On April 6, 1973, Rule A(3) of the Pennsylvania Auditor General was promulgated to replace Rule B-3. Rule A(3) provides: ‘A married woman is presumed to have the domicile of her husband; however, such presumption may be rebutted by convincing evidence to the contrary.’ In addition, Rule A(3) sets out nine factors which will be considered to rebut the presumption that a married woman has the domicile of her husband. Rule A(3) is applied by the same administrative processes employed by the defendant universities in the administration of Rule B(2) and Rule B-3.”
      Samuel v. Univ. of Pittsburgh, 375 F.Supp. 1119, 1122 (W.D.Pa. 1974).

      . On motion of the plaintiffs, a three-judge court , was initially convened. On February 16, 1972, after the Pennsylvania Attorney General had withdrawn his approval of Rule B(2), see note 3, supra, the three-judge court dissolved itself. See Samuel v. Univ. of Pittsburgh, 375 F.Supp. 1119, 1122 (W.D.Pa.1974). The district court’s April 10, 1974, order nevertheless “restrained” the defendant university officials “from making residency determinations as to married women on any basis other than that of objective criteria equally applicable to all students.” Since we have found that we lack jurisdiction over this appeal, we do not reach the question whether such an order was properly entered by a single-judge district court.

      . Defendant Temple University apparently had sent the decertification notice to some members of the class before the court of appeals stayed the June 7, 1974, order.

      . When the refusal to grant class status “amounts to a denial of a preliminary injunction broader than would be appropriate for individual relief,” an interlocutory appeal lies under § 1292(a)(1). Hackett v. Gen. Host Corp., 455 F.2d 618, 622 (3d Cir.), cert. denied, 407 U.S. 925, 92 S.Ct. 2460, 32 L.Ed.2d 812 (1972). However, § 1292(a)(1) is unavailable to the plaintiffs in this appeal because paragraph 1 of the district court’s April 10, 1974, opinion and order granted injunctive relief on a class-wide basis. See n. 4, supra. Plaintiffs do not challenge the grant of injunctive relief in such paragraph 1 but do object to the decertification of the class for the purpose of determining damages.

      . Inasmuch as the first Cohen criterion addresses the question whether the order appealed from is sufficiently definite to be accessible to appellate review, it may be satisfied by the district court’s June 7 order. By ordering the defendant universities to notify the class members of the decertification of their class, the district court “settled conclusively” the plaintiffs’ claim that the damage issues should be determined on a class-wide basis. On the other hand, the June 7 order is still “tentative.” There is nothing to prevent the district court from recreating the class for purposes of as yet undetermined issues in the case pursuant to Rule 23(c)(4). See General Motors v. City of New York, 501 F.2d 639, 647 n. 16 (2d Cir. 1974).

      . If the June 7 order were a final disposition of the claims of absent members of the plaintiff class, it would be certifiable for appeal under Rule 54(b). However, the district court’s denial of a motion for Rule 54(b) certification is not challenged on this appeal. See n. 14, infra.

      . It should be noted that the plaintiffs included a claim for their attorney’s fees in their prayers for relief. Plaintiffs’ Complaint at 10. If such litigation expenses are ultimately included in the named plaintiffs’ damages, other class members who pursued their claims individually should be entitled to recover their litigation expenses as well. In this circumstance, no prejudice to the class members would result; instead, excess litigation expense due to lost economies of scale would be charged to the defendant universities, which are not appealing the June 7 order.

      . Plaintiffs also assert that if the decertification order is upheld on appeal, the expense of suing on an individual claim may deter many members of the class from asserting their claims. Plaintiffs’-Appellants’ Reply to Defendants’-Appellees’ Motions to Dismiss at 4 (footnote), 6 n. 1. This argument goes to the merits of the decertification order rather than its appealability; we therefore leave it for consideration in an appeal from a final judgment as to the named plaintiffs. See note 11, infra.

      . The June 7 decertification order will be open to review on appeal from final judgments with respect to the named plaintiffs. See, e. g., Esplin v. Hirschi, 402 F.2d 94 (10th Cir. 1968), cert. denied, 394 U.S. 928, 89 S.Ct. 1194, 22 L.Ed.2d 459 (1969).

      . The court of appeals may take judicial notice of developments in a case on appeal which have occurred in the district court after the appeal was filed. Doe v. Wohlgemuth, Nos. 74-1726 & 74-1727, slip opinion at 4, n. 5 (3d Cir., Dec. 10, 1974). The notice of appeal in the present case was filed on June 13, 1974, prior to the above-mentioned hearing.

      . At oral argument, counsel for Temple University represented that not a single absent class member had inquired about the case after notice of the decertification had been sent. See note 5, supra.

      . We do not here decide which provision is the preferable means of challenging the June 7 order. In Katz v. Carte Blanche Corp., 496 F.2d 747 (3d Cir.), cert. denied, - U.S. -, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974), we held that an order allowing an action to proceed on a class basis was appealable under 28 U.S.C. § 1292(b), id. at 756, and that orders denying class action treatment may be certifiable under Rule 54(b), id. at 754. As noted by Professor Moore, where there is doubt about which provision should be invoked, the district court can certify under both provisions in the alternative. See 6 Moore’s Federal Practice 11 54.30 [2.-2] at 456.
      In the present case, the plaintiffs brought motions both under Rule 54(b) and under § 1292(b). The district court’s denials of both motions have not been challenged by the plaintiffs. Cf. Katz, supra at 752.

      . The Second Circuit has allowed appeal under the collateral order doctrine where the order denying certification as a class sounds the “death knell” of the action. Eisen v. Carlisle & Jacquelin, 370 F.2d 119 (2d Cir. 1966), cert. denied, 386 U.S. 1035, 87 S.Ct. 1487, 18 L.Ed.2d 598 (1967). The plaintiffs’ argument herein would go far beyond the death knell doctrine by allowing appeal as a collateral order, even where class members’ claims would be individually viable legal actions. In fact, the plaintiffs’ argument only applies where absent class members are likely to bring individual actions. Thus, even the Second Circuit’s “death knell” doctrine, with which this court has disagreed, see Hackett, supra n. 14, does not support the plaintiffs’ position.