text:
    UNITED STATES of America, Plaintiff-Appellee, v. Donald Eugene ROBERTSON, Defendant-Appellant.
    No. 73-1049
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 26, 1973.

      Charles L. Ruffner, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Miami, Fla., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Atty., Tax Div., Dept. of Justice, Washington, D. C., 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:

On January 11, 1972, defendant-appellant Donald Eugene Robertson (taxpayer) was charged with using a communication facility to facilitate the importation of a controlled substance into the United States in violation of Title 21, U.S.C., Section 843(b). On January 25, 1972, taxpayer entered a plea of guilty to the charge and was sentenced to three years probation and a fine of $9,350. Subsequent thereto, in July 1972, taxpayer filed a petition in the court below requesting specific performance of the negotiated agreement which led to his plea of guilty. The district court denied relief. We affirm.

At the time of his arrest, taxpayer was in possession of approximately $40,000, which he gave in trust to his attorney Theodore Klein. After inconclusive negotiations between Klein and the U. S. Attorney’s Office, the United States filed a condemnation libel against that money. United States of America v. A Certain Quantity of United States Currency (Case No. 72-98-Civ-CF below). The parties then entered into a compromise settlement whereby the taxpayer agreed to pay $9,350 for termination of the libel action. The United States Department of Justice, however, questioned the legal basis for its filing a libel action in the circumstances of that case, so to avoid any procedural difficulties the parties then agreed that $9,350 would be paid as a stipulated fine as part of the taxpayer’s sentence in the § 843(b) criminal ease in the district court. The pertinent part of the Stipulation, Settlement Agreement and General Release which the Assistant United States Attorney signed on behalf of the government provided that in consideration of the $9,350 which taxpayer was to pay,

“ * * * the plaintiff THE UNITED STATES OF AMERICA hereby releases, acquits and forever discharges the said claimant DONALD ROBERTSON of and from any and all manner of action and actions, cause and causes of action, claims, suits, debts, dues, sums of money, accounts, and demands whatsoever in law or in equity, which THE UNITED STATES OF AMERICA or any of its agencies ever had, now has, shall or may have against the claimant DONALD ROBERTSON for, upon or by reason of any matter, cause or thing whatsoever relating to any United States Currency which may be presently held by Theodore Klein, as escrow agent for the claimant DONALD ROBERTSON and more specifically relating to such currency adverted to in the law suit styled UNITED STATES OF AMERICA vs. A CERTAIN QUANTITY OF UNITED STATES CURRENCY, Case No. 72-98-CIV-CF presently pending in the United States District Court for the Southern District of Florida.
Upon execution of this Stipulation, General Release and Settlement Agreement, and upon payment in hand to the UNITED STATES OF AMER-ICA the sum of Nine Thousand Three Hundred Fifty Dollars ($9350) the parties further agree that the cause styled UNITED STATES OF AMER-ICA vs. A CERTAIN QUANTITY OF UNITED STATES CURRENCY, Case No. 72-98-CIV-CF shall be dismissed with prejudice.”

Shortly after the sentence was entered and the $9,350 fine paid, the District Director of the Internal Revenue Service filed a jeopardy assessment against taxpayer for $117,391.38 for Federal income taxes claimed to be due for the year 1971, of which $77,966.85 remains outstanding. By his petition below taxpayer complained that the assessment was in breach of the Stipulation, Settlement Agreement and General Release and sought to have that agreement specifically performed by restraining the assessment and collection of the assessed income tax deficiency.

The taxpayer argued and the district court found, that the stipulation constituted a very broad release on the part of the government. We agree. Nonetheless, that release specifically referred to “any United States Currency which may be presently held by Theodore Klein, as escrow agent for the claimant Donald Robertson and more specifically relating to such currency adverted to in the law suit styled UNITED STATES OF AMERICA vs. A CERTAIN QUANTITY OF UNITED STATES CURRENCY, Case No. 72-98-CIV-CF presently pending in the United States District Court for the Southern District of Florida” and concluded with the dismissal with prejudice of the cause styled “UNITED STATES OF AMERICA vs. A CERTAIN QUANTITY OF UNITED STATES CURRENCY, Case No. 72-98-CIV-CF.” Thus the release was specifically limited to the fund referred to above. Its subject was further precisely defined by reference by style and number to the libel action against the $40,000 held in trust by taxpayer’s attorney, Klein.

The stipulation, then, had no bearing upon any claims unrelated to the $40,000 held in trust by Mr. Klein. It did not cover any other funds of taxpayer, earned from his smuggling operations or elsewhere. As the district court found:

The Internal Revenue Service has given [taxpayer] a credit for tax liabilities on that fund and is therefor apparently honoring the settlement agreement. There was no agreement relating to tax liabilities presented to this [c]ourt in Robertson’s criminal prosecution .

The agreement is unambiguous on its face and, for that reason, additional testimony would not avail to alter its clear meaning. See e. g. Commissioner v. Danielson, 3 Cir. 1967, 378 F.2d 771, 778-779, cert. denied 389 U.S. 858, 88 S.Ct. 94, 19 L.Ed.2d 123.

An alternative ground of affirmance is urged by the appellee: in the absence of a referral of the taxpayer’s civil liability to the Department of Justice, the Assistant State Attorney who signed the stipulation lacked authority to bind the Internal Revenue Service. We pretermit discussion of this contention as we find it unnecessary to reach it.

Affirmed.


source: Caselaw Access Project

author: COFFIN, Chief Judge. COFFIN, Chief Judge

license: Public Domain

text:
    Benjamin JONES et al., Plaintiffs, Appellants, v. James T. LYNN et al., Defendants, Appellees.
    No. 73-1057.
    United States Court of Appeals, First Circuit.
    Heard March 5, 1973.
    Decided March 22, 1973.

      Patrick J. King and Daniel D. Sullivan, Boston, Mass., with whom Robert Condlin, Cambridge, Mass., and Peter J. O’Connor, were on brief, for appellants.
    Arthur G. Coffey, Asst. Gen. Counsel, Boston, Mass., with whom John C. Conley, Gen. Counsel, Boston, Mass., was on brief, for appellees, Boston Redevelopment Authority and others.
    Frederic R. Kellogg, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellees, the Secretary of Dept. of Housing and Urban Development, and others.
    John Paul Sullivan, Boston, Mass., with whom Lewis H. Weinstein, Boston, Mass., was on brief, for appellees, First Church of Christ Scientist.
    Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

This appeal, expedited to accommodate all of the parties and interests involved, presents the issue whether a complex area renewal project covering a substantial sector of Boston, the Symphony Area part of the Fenway Urban Renewal Project, the basic planning and federal financial commitment for which had been approved in 1967, but which is yet substantially incomplete, is subject in any way to the requirements of the subsequently enacted National Environmental Policy Act of 1969 (NEPA), 42 U.S. C. § 4331 et seq.

Appellants, residents of the area, sought to enjoin further demolition and construction in the area until an environmental statement is issued in accordance with NEPA. Appellees are the Department of Housing and Urban Development (HUD), the source of federal financial assistance; the Boston Redevelopment Authority (BRA), the municipal agency in charge of the project; and the First Church of Christ, Scientist, a prominent occupant of the area and source of much of the planning. The district court denied injunctive relief, finding that “major federal action” terminated with the signing of the HUD-BRA Loan and Grant Contract in 1967, that HUD’s continuing role was minor since it was powerless to alter future courses of action, and that NEPA was not intended to be applied retroactively.

I. Facts

Some appreciation of the past history and present status of the project is necessary to recognize the grey zone in which we endeavor to strike a just and practicable balance.

In the early 1960’s the Church, desirous of establishing an International Center on its present location and of developing the adjacent Symphony Area, commissioned the preparation of a master plan which incorporated these ideas with others calling for residential and commercial development. The Church plan was submitted to BRA and included in BRA’s larger proposed effort for development of the Fenway Area which was thereafter to consist of the Museum Area, Medical Center Area and the Symphony Area, all three sub-areas being of somewhat equal size and totalling 506 acres. Only questions relevant to the Symphony Area are before us. The entire Fenway Urban Renewal Plan, dated November 1, 1965, was approved by BRA on November 24, 1965; by the Boston City Council on December 20, 1965; by the Mayor of Boston on December 23, 1965; and by the Massachusetts Department of Commerce and Development on April 26, 1967 after the required public hearings. On December 22, 1967 HUD and BRA executed a Loan and Capital Grant Contract to provide federal assistance to this project pursuant to the Housing Act of 1949, 42 U. S.C. § 1450 et seq., which allows for a contractual relationship between a local public agency, here BRA, and the United States. The availability of federal assistance had been certified in compliance with the Housing Act only after HUD review of the program established that BRA had presented a “Workable Program for Community Improvement”.

While the 1967 contract authorized BRA to sell project loan notes up to $14,488,759, a relocation grant of $719,-804 and a capital grant of $8,651,134, these sums were subsequently increased. On August 28, 1968 an amendatory contract added a rehabilitation grant of $12,000. More relevant here were an authorized increase in the amount of interest to be paid on temporary loan notes to be sold by BRA, the result of a June 24, 1970 amendment to the original contract; and an increased relocation grant to $5,660,424 and an increased current temporary loan authorization to $19,441,374, both the result of an August 11, 1972 amendment. Currently, approximately $1,866,000 out of an approved budget, exclusive of relocation funds, of some $13,769,000 — which includes the original federal capital grant of over eight million dollars with the remainder coming from state and local funds — remains unexpended or unencumbered. Approximately $4,675,000 of the federally-provided relocation grant is similarly at BRA’s disposal.

A survey of the state of the real estate is more understandable than a financial analysis of monies unexpended. There are 27 parcels and sub-parcels in the part of the project which is before us. From the documents in evidence, we distill the following status, which we list for further reference in groups:

Group Number of Parcels Present Status
I 4 —development wholly or nearly completed (Nos. 2, 11, 16A, 16B-1); no Injunction sought as to these parcels.
II 1 —site cleared; developer tentatively selected; planned for residence for the elderly; no Injunction sought as to parcel (No. 5). HUD will subject It to a modified environmental clearance procedure.
III 3 —site cleared; developers not selected for two parcels (Nos. 6, 16B — 2); selected for the other (No. 3). As to this site HUD will submit It to a modified clearance procedure. No. 6 has no final planned purpose (except that It Is to be part residential and part commercial); No. 16B-2 Is planned for a park; No. 3 Is planned for middle income housing with HUD financing.
IV 5 —sites where no demolition has yet occurred (Nos. 7, 9, 12, 13, 15 ). Nos. 7 and 15 are tentatively planned to be rehabilitated. Nos. 9, 12, and 13 are planned for low and middle Income housing, with HUD financing for at least Nos. 9 and 13.
V 14 —no plans for acquisition or use (Nos. 1, 4, 8, 10, 14, ' 17, 18, 19, 19A, 19B, 20, 21, 22, 23).

It is apparent that the parcels in groups IV and V and some or all of those in group III, a total of from 19 to 22 of the project’s 27 parcels, fall in the early stages of planning. Nevertheless, the entire project has been in the planning stage for some seven years and has been subject to numerous hearings and deliberations at various levels.

II. General Applicability of NEPA to Previously Planned Projects.

It is against this factual background that we endeavor to assess whether NEPA, enacted subsequent to the basic Loan and Capital Grant Contract, can be the source of any present obligation. We do not start with tabula rasa. The slate has been written on for some years. The question is whether there is at this time any requirement for a NEPA environmental statement — not the unrestricted analysis that might otherwise be expected if the project had not yet been launched, but a statement taking as a given those things which have been done in reliance on a preexisting plan.

We dispose without difficulty of appellees’ contention that Congress intended to exempt from the application of NEPA pertinent projects simply because they had been previously decided upon. An environmental disturbance is no less consequential because of the date of its planning. If appellees are correct, the federal government is in a position where, once it has signed a multi-year contract providing for substantial funds for a project, it is proscribed from applying to that project the environmental analysis to which all other such contemporary projects are subjected, regardless of any flexibility that still might inhere in the planning process or of any feasible possibilities that may exist to achieve the same general goals with a more sensitive consideration of environmental factors.

Such a broad proposition finds no support in the statutes, regulations, legislative history or considerations of policy. While Congress could have specifically exempted approved but uncompleted projects from the requirements of NEPA, it did not do so. Neither did it make NEPA specifically applicable to such projects. But it did refer to, the “continuing responsibility” of the federal government to “use all practical means ... to improve and coordinate Federal plans, functions, programs and resources”, .42 U.S.C. § 4331, and to act “to the fullest extent possible”, 42 U.S.C. § 4332, to carry out the policies of the act. And the “major Federal actions”, 42 U.S.C. § 4332(2)(C), proposals for which necessitate careful environmental review, include, in the words of the overseeing Council on Environmental Quality, “projects and continuing activities . . . supported in whole or in part through Federal contracts, grants, subsidies, loans, or other forms of funding assistance”. 36 Fed.Reg. 7724, § 5(a) (ii) (April 23,1972).

Moreover, the legislative history is supportive of an environmental role for a federal agency so long as it remains meaningfully involved in a project. The Senate Report on the act states that the “ [e] nvironmental management functions” required by 42 U.S.C. § 4332(2) (C) as “necessary to support the policies established” should be implemented “as a part of [a federal agency’s]' existing programs and [its] ongo-' ing activities.” S.Rep.No.296, 91st Cong., 1st Sess. 21 (1969).

Finally, sound public policy requires rejection of appellees’ proposed rule that NEPA is per se inapplicable to projects already underway as of the passage of the act. Among the goals of NEPA is the “preservation and enhancement of the environment”, 42 U.S.C. § 4331(c), for “present and future generations of Americans”, 42 U.S.C. § 4331(a). To the extent that these long-range remedial objectives can be realized in continuing projects, it cannot be expected that Congress would foresake them without even a hint to that effect. While it may be fruitless to apply procedural protections afforded by NEPA to a project which has been so far terminated to preclude any change in plans, “the only correct interpretation would seem to be that if the requirements of the Act can feasibly be applied — even if the project in question was begun prior to the enactment of NEPA — then they should in fact be applied,” Note, Retroactive Application of the, National Environmental Policy Act of 1969, 69 Mich. L.Rev. 732, 743 (1971). Though such applications of NEPA have been called retroactive, see, e. g., Natural Resources Defense Council v. Grant, 341 F.Supp. 356 (E.D.N.C.1972), they are in fact prospective since they seek to alter, within proper limits, the aspects of a proposal which have not yet been completed, and not to undo anything which has already proceeded to final construction. Thus, pursuant to the reasoning under facts virtually identical to those here, NEPA was properly applied to a HUD-financed project begun before 1970, but still continuing. Boston Waterfront Residents Ass’n v. Romney, 343 F.Supp. 89 (D.Mass.1972).

III.

Applicability of NEPA in this Case.

The first, and basic question, is what are proper limits; what, in other words, can be regarded as prospective, and what not, but must fairly be regarded as vested. The purpose of NEPA’s section 4332(2)(C)’s impact statement is to guide and advise a federal agency in its decisional process. The statute is not a general empowering act. Unlike the Renegotiation Act, Lichter v. United States, 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694 (1948), it is not an authorization to undo what has already been done, and the extent that Congress could do this is not our issue. Rather, the question must be what agency decisions are yet to be made, and what decisions, although already made, remain open to revision. Completion is not measured by counting bricks in situ; nor by measuring as yet unpaid federal aid. Nor do we have the comparatively simple problem of a purely federal project. E. g., Environmental Defense Fund v. T. V. A., 468 F.2d 1164 (6th Cir. 1972). Commitments have been made to non-federal participants, as to whom, in the total mix, it would be inequitable to back out.

The district court’s treatment of these questions was inadequate. We are all agreed that it adopted too narrow a focus in concluding that the execution of the contract in 1968 ended all possibility of future “major federal actions”. It should have made detailed findings as to the control possible for HUD to exercise under the contract and as to the nature of federal project aid yet to come. It should also have supported with some analysis its conclusion that the two amendments to the contract since the advent of NEPA were not “major federal actions”.

To take the latter point first, we know too little about the eight-fold increase in the relocation grant and the one-third increase in the loan authorization, to dismiss them, in the words of the court in San Francisco Tomorrow v. Romney, 472 F.2d 1021 (9th Cir. 1973), as “but confirmation of the Federal Government’s earlier decision that the project proposal conformed to HUD requirements and was therefore eligible for a grant and loan.” The availability of eight times as much money for relocation as had been anticipated is understandably asserted to have had environmental repercussions as to the phasing of the plan and the sociological mix of the neighborhood in that a quicker-than-planned eviction of larger numbers of area citizens is substantially altering the community balance. The large increase in the loan authorization is suggestive of an expanded undertaking.

In addition we are unable to assess the contractual rights of HUD, in terms of its present agreement, to affect the performance of the other contracting parties. We would be reluctant not to find a continuing major federal involvement so long as it was established that HUD retained any significant discretionary powers as might permit it to effect an alteration of building or design plans to enhance the urban living environment.

Perhaps the most important area of inquiry, from a realistic point of view, is what future federal participation can reasonably be anticipated. Appellants claim the presence of further contemplated federal action here which goes far beyond that in San Francisco Tomorrow. HUD has recently approved the applications for federal mortgage insurance for two buildings and has stipulated to the preparation of a modified impact statement as to these two parcels. It is maintained that applications for federal mortgage insurance are pending for two other planned edifices, and at oral argument BRA represented that virtually every new building will be the subject of similar applications. It does not appear that the district court considered the relevance of these contentions which, if true, would seem to call for a comprehensive study of the uncompleted aspects of the entire project as being most consistent with the object of evaluating the “cumulatively significant impact” of the anticipated federal role. 36 Fed.Reg., supra at 7725. And one initial comprehensive study, which could be referred to and supplemented by less comprehensive individual studies for each parcel, would appear to reflect a better use of scarce resources. See, e. g., Sierra Club v. Froehlke, 359 F.Supp. 1289 (S.D.Tex. 1973). In such a case it would not seem sensible to adopt the piecemeal approach which HUD seeks to adopt, whereby it will prepare a modified impact statement separately for each proposed construction as a mortgage insurance application is filed, an approach akin to equating an appraisal of each tree to one of the forest. If HUD is expected to be part of the financing of most of the unplanned and/or undeveloped parcels, it seems a perversion of NEPA for it to approach each parcel, wholly depending in its timing of environmental review on the filing of applications for assistance and considering anew the scene as it is changed by each subsequent approval. Not only would this be wasteful of bureaucratic resources, but the plurality of possible appeals would suggest a wasteful prolongation of time spent in litigation.

If the district court is to properly carry out the NEPA mandate, it must, if the planning reveals an expectation of substantial further federal assistance, order HUD to conduct an environmental study of the entire Fenway program under 42 U.S.C. § 4332(2)(C) with the goal of determining what changes can still be made and, just as important, of informing the members of the community and the public what the environmental impact will be, what adverse effects cannot be avoided, and what irretrievable commitment of resources are involved when any plan is fulfilled. See, e. g., Arlington Coalition v. Volpe, 458 F.2d 1323 (4th Cir. 1972); Morningside-Lenox Park Ass’n v. Volpe, 334 F.Supp. 132 (N.D.Ga.1971); Environmental Defense Fund v. Corps of Engineers, 325 F.Supp. 749 (E.D.Ark.1971); Environmental Defense Fund v. T. V. A., supra; Natural Resources Defense Council v. Grant, supra; Boston Waterfront Residents Ass’n v. Romney, supra.

At the same time, the majority of the court does not recognize that future projects, if any, that contemplate no future federal assistance are obliged to come to a halt just because of the receipt of such prior to Congress’ enactment of NEPA. The majority would distinguish the eases cited in the separate opinion. Indeed, the majority feels that F.H.A. v. The Darlington, Inc., 358 U.S. 84, 79 S.Ct. 141, 3 L.Ed.2d 132 (1958), has been substantially miscited.

IV. Futility of a NEPA Statement.

Apart from the legal issue of NEPA’s application, appellees claim that, even if the post-1970 amendments were major federal actions, if significant powers are reserved, or if major future federal participation is reasonably expected, any environmental study performed at this late date would not justify any additional delay. They point to the lengthy history of planning and public meetings and discount the representations of appellants as to the need for consideration of population density, traffic problems, mix of low, middle, and high income housing, and time phasing of the individual projects as constituting merely an effort to seek review of urban renewal issues already fully aired.

It may prove to be the case that an environmental review of so much of the project as may be subject to feasible alteration will yield few suggestions. But we hesitate to prejudge. The fact is that the planning focus had not had the environmental emphasis that NEPA has brought to the fore. Moreover, changes in the area, unforeseen in 1965 or 1967, have transpired, such as the alleged abandonment of plans for a major adjacent expressway. Were we to pass judgment on the possibilities for alteration in the Symphony Area segment of the Fenway plan mentioned by appellants as being irrelevant, trivial, or prohibitively expensive, we would be short-cutting the process, which has been committed in the first instance to the responsible federal agency. Our responsibility here is to prótect the integrity of the fact-finding process mandated by Congress in 42 U.S.C. § 4332(2) (C) and make certain that an environmental study is prepared and made available to the public as required by NEPA. In the words of Chief Judge Friendly, “preservation of the integrity of NEPA necessitates that the [agency] be required to follow the steps set forth in [§ 4332], even if it now seems likely that those steps will lead it to adhere to the present result.” City of New York v. United States, 337 F.Supp. 150, 160 (E.D.N.Y.1972). See also Hanly v. Mitchell, 460 F.2d 640, 648 (2d Cir. 1972).

V. Laches.

Appellees contend that NEPA was passed in 1970, that the Fenway Urban Renewal Project has been ongoing since 1967, and that we should therefore refuse to entertain appellants’ request for injunctive relief at this late date. We see, however, important reasons for rejecting this defense of laches. First, appellants have alleged, without contradiction, that many aspects of the project which trouble them environmentally have only recently been discovered as there are claimed deviations from the original proposal. Second, one of appellants’ major concerns is the increased relocation grant in August 1972, a federal action conceivably affecting various aspects of the entire project. Third, one of the main reasons why laches is recognized as a defense — the assumed prejudice to the party sought to be enjoined, see Environmental Defense Fund v. T. V. A., supra at 1182, cannot be said to exist here. As our prior discussion indicated, NEPA applies only so far as there exist reasonable alternatives to as-yet uncompleted parts of the project. The guidelines we will subsequently enunciate are intended to safeguard appellees from any prejudice which might otherwise result from the timing of this suit. Last, and most fundamental, however, is the observation of Chief Judge Friendly that the “tardiness of the parties in raising the issue cannot excuse compliance with NEPA; primary responsibility under the Act rests with the agency.” City of New York, supra, 337 F.Supp. at 160. See also Arlington Coalition, supra, 458 F.2d at 1329-1330; Environmental Defense Fund v. T. V. A., supra at 1182. We see no reason for not following this rationale here.

VI. Relief.

The task of accommodating the requirements of NEPA to this large and diverse project, where the stages of development of the various parcels range from completion to the absence of any detailed planning, requires imagination and flexibility on the part of HUD, BRA, other agencies and parties involved, and on the part of the court. In an effort to avoid heavy handed or unduly costly interference with those involved in the execution of the project, we set forth the following guidance.

1. The district court shall reexamine, make detailed factual findings, and set forth its conclusions of law on the following questions:

a. Were the post-1970 amendments, regarding the increase in relocation assistance and loan authorization, major federal actions?

b. To what extent, if any, do HUD’s reserved powers under the basic contract involve the exercise of discretion in such a way as to enable it to alter in any significant way the course or timing of development ?

c. Was there explicitly or by necessary implication a reasonable expectation of further major federal financial participation in order to bring the Symphony Area of the Fenway Project to completion ?

2. If the answers to all three questions are negative, the prayer for injunctive relief should be denied and the project allowed to proceed.

3. If an affirmative answer is forthcoming to any of the three questions, continuing work on the project should be enjoined, subject to the “escape hatch” provisions of paragraph 4, infra, pending the preparation and issuance of an environmental statement on the uncompleted part of the project conceived as a whole. The “mid-stream” character of the project dictates certain departures from normal operating procedure. While the district court is best qualified to tailor the requirement to the situation, we make the following suggestions:

a. Existing reports and studies should, where relevant, be utilized. While the old ground need not be plowed again, changes since 1967 affecting the area should obviously be taken into account.

b. The study shall not only be more limited in scope than would be the case if the basic agreement had not been signed and work begun, but it shall be foreshortened in time. Subject to the right of HUD to approach the district court to seek either a shorter or longer period, we think that HUD should be given 90 days to complete a draft environmental statement and that the statement be given, if possible, accelerated review. We note that HUD may request such accelerated review from the Council on Environmental Quality. 36 Fed.Reg., supra at 7726.

4. While all work on the Symphony Area of the Fenway Project shall be immediately enjoined, we authorize the district court, pending its decision on the merits, to release the injunction in the following instances:

a. As to those parcels where completion is near or where such binding commitments to a specific structure and purpose have been made such that changes in purpose, structure, or timing would work substantial injustice or public harm, the burden being on the defendants.

b. As to parcels where there is a showing that there is no continuing or likely federal involvement.

5. We continue the temporary stay of construction subject to further determination by the district court as to any individual situations which may call for modification of the stay order. Such decisions, as well as the district court’s final order, will be appealable.

COFFIN, Chief Judge

(concurring).

As stated in note 3, supra, I would go further than the majority. Even if it were to be concluded, with sufficient support, that the post-1970 amendments to the contract did not amount to “major federal action”, that HUD possessed no significant retained powers under the contract, and that future significant federal participation in the project was not reasonably anticipated, I would hold that the' Symphony Area of the Fenway Project should be subjected to a restricted environmental review.

In City of Boston v. Volpe, 464 F.2d 254, 258 (1st Cir. 1972), we said that a project had not yet become sufficiently federalized so as to make the action of the local agency become federal action for purposes of NEPA because there existed no firm federal commitment of funds. It would therefore be anomalous to say that action on a project which has become federalized by such commitment ceases to be major federal action for purposes of NEPA upon that very commitment. And in Silva v. Romney, 473 F.2d 287 (1973), we recognized that those in partnership with the federal government may be properly subjected to legislation or court action which might be inappropriate in matters of purely private concern. This principle is not new, for “beyond challenge is the power of the Federal Government to impose reasonable conditions on the use of federal funds, federal property, and federal privileges .... [T]he Federal Government may establish and impose reasonable conditions relevant to federal interest in the project and to the overall objectives thereof.” Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 295, 78 S.Ct. 1174, 1185, 2 L.Ed.2d 1313 (1958). Without the need for a precise definition of when partnership begins, there can be no doubt that here, as early as December 1967 when the original HUD-BRA contract was signed, those parties had commenced to operate as partners.

To assign such a label to this relationship does not settle the nature or extent of the parties’ obligations. More precise analysis must be undertaken. Since, were it not for the participation of a non-federal partner, the obligation of HUD would be clear, the real question is whether the BRA and those working on the Fenway Project can now be subjected to a duty of restraint during a review process which they did not foresee in 1967.

In urging a narrow construction of NEPA and the concept of partnership here, appellees contend that the Housing Act of 1949, under which HUD has financed this project, is similar to the reeently adopted aid scheme of revenue sharing in the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. § 1221 et seq. (1973 Supp.), and that federal interference in the project after the grant is made is therefore unwarranted and detrimental to federal-state relations. As a general proposition this argument misses its mark, for, most unlike revenue sharing, the Housing Act of 1949 establishes a categorical grant program which is the essence of partnership. In fact, the Secretary of HUD is empowered to “include in any contract or instrument made pursuant to [the act] such other covenants, conditions, or provisions . . . as he may deem necessary to assure that the purposes of [the act] will be achieved.” 42 U.S.C. § 1456(c)(7). Such pervasive powers are inconsistent with appellees’ reading of the act and description of the relationship between the parties. Moreover, in this case HUD was content only to include in amendments to the original contract a new anti-discrimination clause, but did not insert an environmental review clause. Were the obligation to conform to supervening national legislation to turn, as HUD urges, on the perspicacity of the contracting officer important national policies as to civil rights, labor, and environment could be easily thwarted, by design or inadvertence. Such fortuitous results are neither desirable nor consistent with a concept of partnership, which implies a reasonable reservation of powers in any federal-nonfederal contract to achieve vital national goals. See infra.

Appellees also allege, however, that whatever relevance the concept of partnership might have for projects commenced under post-NEPA contracts, the federal partner is precluded from imposing new duties upon its nonfederal partner for programs begun pre-NEPA. The sanctity of contract is claimed to be impaired if the project is enjoined until HUD can issue an environmental study. But whether NEPA is applicable here because there may be, as we have stated, additional major federal acts to be performed or because the Fenway Urban Renewal Project is the type of partnership to which the statute applies as a result of the existence of a federalized project denominated a “proposal” for a “major Federal action”, there can be no complaint rising to constitutional proportions. Thus, for example, where purely private contracts have been altered or abrogated by subsequent federal legislation, no constitutional cause of action has been found to lie. Similarly, it is difficult to see how BRA can complain about being subjected to the significant requirement in NEPA that federally assisted programs reflect environmental planning in accordance with § 4332(2)(C). It cannot, I think, be gainsaid that where important and overriding public concerns are manifested in statutes like NEPA which are meant to have sweeping application and which cannot be said to confer any primary benefits on the United States as a contract party, cf. Perry v. United States, 294 U.S. 330, 55 S.Ct. 432, 79 L.Ed. 912 (1935), compliance with these new laws is a necessary appurtenance to the partnership status of the nonfederal contracting party, whenever the partnership may have commenced.

One of the major legislative ends sought to be achieved by NEPA — the improvement of the “regulatory system” administered by each agency by requiring consideration of environmental factors at all stages of decision-making in federally assisted programs so as to preserve and improve the environment — is so important that “[tjhose who do business in the regulated field cannot object if the legislative scheme is buttressed by subsequent amendments to achieve the legislative end.” F.H.A. v. The Darlington, Inc., 358 U.S. 84, 91, 79 S.Ct. 141, 146 (1958). In that case the Court considered the application of a 1954 amendment to a 1946 housing act under which the federal government had contracted, in 1949, to provide mortgage insurance for an apartment house. In finding that the new law, as applied to the old contract, was merely operating prospeetively, the Court stated that “[fjederal regulation of future' action based upon rights previously acquired by the person regulatéd is not prohibited by the Constitution. . . . Immunity from federal regulation is not gained through forehanded contracts.” Id. at 91, 79 S.Ct. at 146. BRA, like the owners of the apartment house in The Darlington, has received and continues to receive the benefits of federal funding, and it is hard to find any valid reason for its failure to recognize its obligations to aid its federal partner in carrying out the mandate of NEPA. In fact, the continuing federal role here would seem to be much greater than that in The Darlington. See also Shannon v. HUD, 436 F.2d 809, 817 (3d Cir. 1970), where in view of the important concerns reflected in the 1968 Civil Rights Act, the court read that law as imposing certain conditions on HUD and its partner which had, prior to 1968, entered into a contract for a federal mortgage insurance guarantee.

I also find unpersuasive HUD’s confession of an absence of power to effectuate any suggestions for change resulting from its NEPA study or other remedial avenues open to it. In the event that it interprets its specific contractual authority too narrowly to enable it to cope with the situation, it is possible that HUD or others who seek to vindicate the goals of NEPA will have available sufficient remedies, if and when the need arises, which may be found in the nature of the legislative scheme, Textile Workers v. Lincoln Mills, 353 U.S; 448, 457, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), here perhaps in the area of environmental law, see Illinois v. City of Milwaukee, 406 U.S. 91, 93, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), or in the area of federal housing legislation, see, e. g., Shannon v. HUD, supra, 436 F.2d at 822, or even as related to the obviously pervasive contracting power of the United States, see, e. g., United States v. Carson, 372 F.2d 429 (6th Cir. 1967), and United States v. Stadium Apartments, Inc., 425 F.2d 358 (9th Cir. 1970).

In the NEPA context, for example, a problem might arise where a federalnonfederal partnership was engaged in a ten year construction project requiring an initial NEPA statement and periodic updates. If, in the eighth year, a study showed that an uncompleted portion would be environmentally unwise and that it should not be built, it is inconceivable that just because federal money had changed hands years ago, the United States would be without any remedy should its nonfederal partner resist alterations.

I would therefore have preferred to direct that an injunction issue, subject to “escape hatch” clause 4a of the section entitled “Relief”, without the findings required by the majority.

      . We have already affirmed the denial of injunctive relief sought against the Church, involving buildings owned by it in close proximity to its “Mother Church” building, the exterior of which has been remodelled in accordance with the 1967 planning which contemplated the demolition of the buildings. Not only was this demolition the last inevitable integral step in an eight-year plan for completing the Church mall which has never been changed in this respect, but during the pendency of this appeal the tenants of the affected buildings have withdrawn from the case. Thus, bur affirmance, insofar as the Church is concerned, was based on the unlikelihood of appellants establishing a case for equitable relief. We did not reach the question whether, absent equitable considerations, there was a sufficient nexus between the Church and HUD to subject its area to the requirement of a NEPA statement.

      . We are not sure whether No. 15 is encompassed within appellants’ request for relief, since it may fall within the exception they have requested for residential and commercial rehabilitation which has already received approval.

      . The extent to which the writer of this opinion would go further is set forth in a concurring opinion. Because of the interest in expedition, we have adopted this expedient rather than reassign the opinion to another member of the court.

      . Two such powers, which may or may not be purely ministerial, would seem in particular to require not merely assertions by the contracting parties but such evidence of prior interpretation and invocation as might exist. One is the right to “monitor” the project, requiring, for example, HUD approval of BRA “proclamations” as to street, lighting, and sidewalk construction contracts, or FHA issuance of an allocation to a developer. The other is the opaque provision giving HUD the power to prevent BRA from “tak[ing] any steps which might in the opinion of the Secretary, violate Federal laws or regulations”. Could HUD invoke this power if post-1970 fair labor or air quality standards were being violated, rather than leave enforcement to the Secretary of Labor, 29 U.S.C. § 201 et seq., or the Environmental Protection Agency, 42 U.S.C. § 1857 et seq.? If so, does NEPA fall in the same category of “laws or regulations” ?

      . In referring to federal aid schemes as evidencing some sort of partnership, the writer has used a term virtually synonymous with “joint venture” used by the Supreme Court in Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 279, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958), and identical with that used in Named Individual Members of San Antonio Conservation Society v. Texas Highway Dept., 446 F.2d 1013, 1027 (5th Cir. 1971).

      . It should be observed that if the project were a purely federal one, there would be no question but that it would be subject to some environmental review even though it had been commenced pre-NEPA and were well along toward completion. See, e. g., Environmental Defense Fund v. T.V.A., supra.

        . It is not, however, the Commonwealth of Massachusetts but rather the local planning agency with whom HUD has contracted.

      . See Environmental Defense Fund v. T.V.A., in which the court held that the continuing significant construction of the project causes that project to remain, for purposes of NEPA, a “proposal for action” until consummation. While that project was admittedly undertaken solely by a federal agency, the court’s interpretation of “proposal” obviously lias relevance for federal aid programs as well, where the concept and existence of “major Federal action” may be different.

      . See, e. g., Philadelphia, Baltimore & Washington R.R. v. Schubert, 224 U.S. 603, 613, 32 S.Ct. 589, 56 L.Ed. 911 (1912) (Employers’ Liability Act of 1908); United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290, 342, 17 S.Ct. 540, 41 L.Ed. 1007 (1897) and United States v. Southern Pacific Co., 259 U.S. 214, 234-235, 42 S.Ct. 496, 66 L.Ed. 907 (1922) (Sherman Anti-Trust Act); Ball v. Halsell, 161 U.S. 72, 16 S.Ct. 554, 40 L.Ed. 622 (1896) and Calhoun v. Massie, 253 U.S. 170, 40 S.Ct. 474, 64 L.Ed. 843 (1920) (federal regulation of champerty).

      . The Darlington dealt with a statute which expressly provided for its application to pre-existing contracts. See also, e. g., Lichter v. United States, 334 U.S. 742, 787-789, 68 S.Ct. 1294, 92 L.Ed. 1694 (1948). But as it was not necessary for Congress to have explicitly stated its intent that NEPA affect pre-NEPA contracts — since in imposing new obligations on tiie federal government and its contractual partners NEPA makes no “exceptions of existing contracts", Louisville & Nashville R.R. v. Mottley, 219 U.S. 467, 479, 31 S.Ct. 265, 55 L.Ed. 297 (1911) (emphasis in original), reference to The Darlington here is meant to address appellees’ constitutional arguments that application of NEPA to the entire Fenway Project somehow unlawfully interferes with BRA’s pre-existing contract rights.


author: SIMPSON, Circuit Judge.

text:
    James BARLOW et al., Petitioners-Appellants, v. J. Al AMISS, Sheriff of East Baton Rouge Parish, Respondent-Appellee.
    No. 72-2401.
    United States Court of Appeals, Fifth Circuit.
    April 30, 1973.

      William E. Rittenberg, New Orleans, La., for petitioners-appellants.
    William J. Guste, Atty. Gen., Gilbert L. Dozier, Gary Keyser, Baton Rouge, La., for respondent-appellee.
    Before GEWIN, SIMPSON and RONEY, Circuit Judges.
   SIMPSON, Circuit Judge.

Plaintiffs-appellants, all inmates of the East Baton Rouge Parish Prison, brought this action purportedly on behalf of themselves and all others similarly situated, under Title 42, U.S.C., Section 1983, to restrain the Sheriff of East Baton Rouge Parish and his agents from alleged infringement of certain of appellants’ constitutional rights.

Appellants’ first cause of action alleged that the Sheriff was interfering with appellants’ right to receive and read the religious newspaper “Muhammad Speaks” and the religious text the “Quran”. The second cause of action alleged that the Sheriff had adopted policies which prohibit appellants from corresponding with anyone not approved by the Sheriff and his agents, including “friends, relatives, newspapers, persons who can assist them in their defense, public figures, religious leaders both lay and clerical, governmental and judicial units and others.” The third cause of action asserted that the Sheriff and his agents unconstitutionally censor all incoming and outgoing inmate mail, “including correspondence with the courts, with governmental agencies, with public figures and with counsel.” The lower court enjoined the Sheriff and his agents from denying appellants the right to receive and read “Muhammad Speaks” and the “Quran.” At the same time, the lower court dismissed appellants’ second and third causes of action sua sponte, without allowing argument or an evidentiary hearing. Appellants have appealed from the dismissal of their second and third causes of action; we reverse and remand for further development of the facts.

In their complaint, plaintiffs brought this action “on their own behalf and in behalf of all other inmates in the prison under the authority of the defendant.” At oral argument, however, appellants’ counsel stated that at the time the complaint was filed, all of the named plaintiffs were in fact incarcerated awaiting trial. None were convicted persons serving sentences or awaiting transfer. In ordering a remand for further proceedings, we find it necessary to sustain plaintiffs-appellants’ complaint only insofar as it alleged that persons incarcerated pending trial have been deprived of federal constitutional rights.

In sustaining the sufficiency of a complaint brought by Negro union members for fair representation under the Railway Labor Act, the Supreme Court reiterated “. . . the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 1957, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80. In Cooper v. Pate, 1964, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030, the Supreme Court held that a state prisoner who alleged that solely because of his religious beliefs he had been denied permission to purchase certain religious publications and had been denied privileges enjoyed by other prisoners had stated a cause of action which it was error to dismiss. Further at its last term, in Haines v. Kerner, 1972, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652, the Supreme Court upheld the sufficiency of a prisoner complaint which alleged damages due to claimed injuries and deprivation of rights sustained from being placed in solitary confinement. Haines was followed directly by Cruz v. Beto, 1972, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263, which held that the courts below had erred in dismissing a prisoner complaint which alleged denial of freedom to practice the Buddhist religion, and further alleged discrimination by prison officials between Buddhists and “prisoners who adhere to conventional religious precepts.” Both Haines and Cruz explicitly stated that the standard of Conley v. Gibson, supra, governs allegations of deprivations of rights protected by the federal constitution made by prisoners. This Court has applied the foregoing standard to reverse the dismissal of complaints brought by prisoners which alleged the deprivation of federal constitutional rights. See, e. g., Henry v. Van Cleve and Ross, 5 Cir. 1972, 469 F.2d 687; White & Claybrone v. Comm’n of Alabama Bd. of Corrections, 5 Cir. 1972, 470 F.2d 55; Williams v. Wainwright, 5 Cir. 1972, 461 F.2d 1080; Andrade v. Hauck, 5 Cir. 1971, 452 F.2d 1071.

While the control of prison mail is a matter of internal prison administration with which the federal courts are loath to interfere, O’Brien v. Blackwell, 5 Cir. 1970, 421 F.2d 844; Brown v. Wainwright, 5 Cir. 1969, 419 F.2d 1308, the denial of free and unfettered communication between inmates and courts and attorneys may constitute a denial of federal constitutional rights, see Frye v. Henderson, 5 Cir. 1973, 474 F.2d 1263; cf. Cruz v. Hauck, 5 Cir. 1973, 475 F.2d 475. Insofar as appellants have alleged that inmates awaiting trial have been denied the right to uncensored communication with attorneys and courts, their second and third causes of action. clearly stated facts which, if proven, would entitle them to relief. They alleged facts sufficient to withstand a motion to dismiss, Haines v. Kerner, supra; Conley v. Gibson, supra.

While we think it is clear that appellants are entitled to a hearing as to the issues raised in their complaint, we do not intimate any view regarding the proper disposition of their allegations. Nor do we prescribe the form of the necessary factual inquiry below.

Reversed and remanded.

      . Plaintiff-appellants’ complaint continues :
      “Such censorship includes reading such correspondence and, on occasion, making copies thereof, even where the correspondence is between attorney and inmate and relates to actions pending in court against prison officials as defendants; such censorship also includes the refusal to mail out correspondence critical of the prison administration regardless of the addressee and even where such addressee is the inmate’s attorney.”

      . Since we regard the appellants’ second and third causes of action as sufficiently alleging the deprivation of rights guaranteed by the federal constitution to persons incarcerated awaiting trial, we find it unnecessary at this time to consider whether the named plaintiffs may properly represent the entire class of inmates of the East Baton Rouge Parish Prison. Neither do we consider the sufficiency of appellants’ complaint as it pertains to all inmates of the East Baton Rouge Parish Prison including inmates incarcerated pursuant to convictions in state court as well as inmates incarcerated pending trial. The proper resolution of these interrelated problems is initially for the district judge.

      . As we noted in Williams v. Wainwright, supra, op.cit., 461 F.2d at 1081, “Whether these claims should be graced .with a full-fledged evidentiary hearing or disposed of by utilization of tbe wide variety of available discovery techniques is a matter properly to be decided by the District Judge.”


author: OAKES, Circuit Judge:

text:
    Frank SCHONFELD, Individually and as Secretary-Treasurer of District Council 9, International Brotherhood of Painters and Allied Trades, AFL-CIO, Plaintiff-Appellee, v. John PENZA, as Chairman and member, et al., Defendants-Appellants. Isaac SCHWARTZ et al., Plaintiffs-Appellees, v. Morris LEVY, Individually and as President of District Council No. 9, International Brotherhood of Painters and Allied Trades, AFL-CIO, Defendant-Appellant.
    Nos. 570, 571, Dockets 72-2373, 72-2382.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 19, 1973.
    Decided April 23, 1973.

      Michael F. Dennis, New York City (Saul I. Weinstein, New York City, of counsel), for appellants Penza and others.
    Stephen C. Vladeck, New York City, for Intervenor International Brotherhood of Painters and Allied Trades, AFL-CIO, amicus curiae.
    Martin Raphael, Long Island City, N. Y., for appellee Sehonfeld.
    Julius S. Impellizzeri, New York City (William Hoppen, New York City, of counsel), for appellees Schwartz and others.
    Before FRIENDLY, Chief Judge, OAKES and TIMBERS, Circuit Judges.
   OAKES, Circuit Judge:

The appeal here is from a preliminary injunction granted to restrain the ousting of a union official and the holding of an interim election.

These two cases, consolidated for trial and appeal, result from the infighting that has marked the politics of the New York painters union, District Council No. 9 (the District Council), a group of locals of the International Brotherhood of Painters and Allied Trades (the International). Suit was brought by the appellees to prevent the institution of penalties meted out by the District Trial Board and modified by the International based on a decision by the Trial Board that appellee Schonfeld had committed acts violating the constitution and bylaws of the International. The cases involve the construction of important provisions of the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 401 et seq.

The first case was brought by Frank Schonfeld, the Secretary-Treasurer (the chief executive officer of the District Council and the only official elected directly by the general membership), to restrain members of the Trial Board of the District Council and the President of the International from enforcing a decision of the Trial Board removing Schonfeld from office and declaring him ineligible for office for five years. Schonfeld has exhausted intra-union remedies by appeal to the General Executive Board (GEB) of the International. That appeal sustained the Trial Board’s removal of Schonfeld from office and ordered an immediate interim election to fill Sehonfeld’s position but modified the Trial Board’s penalty by making Sehonfeld eligible to run in the regular election to be held in June of 1973. Immediately after the GEB decision the second case (hereinafter sometimes the “Schwartz action”) was brought by rank and file members of locals affiliated with the District Council to restrain the International from carrying out the punishment for Schonfeld’s alleged union crimes. In both cases it was urged essentially that the District Council Trial Board was stacked against Schonfeld, that he was denied a fair hearing and that the purpose of the charges was to limit Schonfeld in his efforts to “democratize” the Council.

The court below granted preliminary injunctive relief on the basis that Schonfeld’s removal and disqualification for re-election was an interference with the rights of members of the locals “to choose their own representatives,” 29 U.S.C. § 401(a), “to nominate candidates,” 29 U.S.C. § 411(a)(1), “to vote in elections,” id., and “to express any views, arguments or opinions . . . . ” 29 U.S.C. § 411(a)(2). The court went on to say that “If the activities of the antiSchonfeld clique are intended to chill Schonfeld’s free speech, or the freedom of speech of other members who may be deterred by the difficulties experienced by Schonfeld,” such activity could also be a sufficient basis for the cause of action asserted by the rank and file in the Schwartz action. Finally, relying on Martire v. Laborers Local 1058, 410 F.2d 32, 35-36 (3rd Cir.), cert. denied, 396 U.S. 903, 90 S.Ct. 216, 24 L.Ed.2d 179 (1969), and Mamula v. Steelworkers Local 1211, 202 F.Supp. 348 (W.D.Pa. 1962), the court held that prohibitions on a removed officer’s running for office affected his status as a union member and therefore could not be imposed without compliance with the procedural safeguards of 29 U.S.C. § 411(a)(5). The preliminary relief granted by the court took the form of enjoining the disciplinary actions ordered by the GEB, including Schonfeld’s removal from office, and staying the conduct of the special election. Interim control of the affairs of the District Council continued to be vested jointly in Schonfeld and Morris Levy, President of the District Council, as it had been by stipulation and order after the start of the Schonfeld action.

We commence by disagreeing with the court below in respect to jurisdiction of the Schwartz action insofar as it challenges Schonfeld’s removal from office and ineligibility to run. Title IV of the LMRDA, 29 U.S.C. § 481 et seq., governs the election of union officers and requires that union members have “a reasonable opportunity . . . for the nomination of candidates and . . . the right to vote for or' otherwise support the candidate of [their] choice.” 29 U.S.C. § 481(e). The union member’s remedy for Title IV violations, following exhaustion of intra-union remedies, is to file a complaint with the Secretary of Labor, 29 U.S.C. § 482(a), who in turn may then seek relief in the federal courts upon finding probable cause to believe Title IV has been violated. 29 U.S.C. § 482(b). Cf. Trbovich v. UMW, 404 U.S. 528, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972) (intervention by union member in suit brought by Secretary). Here, however, the union members relying on Title I, not Title IV, of the LMRDA, did not try to get the Secretary to file suit but rather did so themselves. In Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964), the Court held that the Secretary could not be by-passed and that Title I rights were “[p]lainly . no more than a command that members and classes of members shall not be discriminated against in their right to nominate and vote.” 379 U.S. at 139, 85 S.Ct. at 295 (emphasis supplied). The concurring opinion (Stewart and Harlan, JJ.) thought this too narrow a construction of Title I and that “there are occasions when eligibility provisions can infringe upon the right to nominate,” or more accurately as the opinion put it subsequently, “the equal right to nominate.” 379 U.S. at 143, 85 S.Ct. 292. But in any event by an 8-1 vote the Calhoon Court held that Title I rights were' not violated by restricting eligibility for elective office to 5-year members of the national maritime union with 180 days or more of seatime service in each of two of the preceding three years on unionized vessels. Thus, the Calhoon union members had to seek relief in the first instance from the Secretary, not the federal district court.

The Schwartz action is indistinguishable from Calhoon insofar as it challenges Schonfeld’s removal from office. The exclusion of Sehonfeld from eligibility for the by-election does not infringe the “equal right,” i. e., the Title I right of District Council 9 members to nominate or elect since they personally are not discriminated against. They have the same right as any other union members to nominate any eligible candidate. If the order below in the Schwartz action were based solely upon Schonfeld’s removal from office or ineligibility to run in the interim election, then we would be required to reverse it. But, as mentioned above, the Schwartz action plaintiffs have also alleged in their complaint that the District Council’s removal of Sehonfeld from office and the restrictions on his subsequent eligibility constitutes a form of intimidation of the membership and of their duly elected officers and amounts to reprisal for efforts by Sehonfeld and others to advocate and implement changes in union structure and procedures. Moreover, these allegations are supplemented by those in the Sehonfeld complaint that the charges against Schonfeld were pretextual, that they were brought for the purpose of suppressing opposition and dissent within the union, and that they were “an expression of an anti-democratic policy and practice pursued over the past twenty years” which included a policy of “bringing charges or causing charges to be brought against those who exercise freedoms of speech, press, and assembly in their opposition.” As we read these allegations, they raise the question whether the sanctions on Sehonfeld in the peculiar context of the history of union factionalism presented here impede or infringe upon the free speech and association rights of union members protected by § 101(a)(2) of Title I of the LMRDA, 29 U.S.C. § 411(a)(2). See, e. g., Machinists Grand Lodge v. King, 335 F.2d 340, 343-347 (9th Cir.), cert. denied, 379 U.S. 920, 85 S.Ct. 274, 13 L.Ed.2d 334 (1964) (§ 101(a)(2) bars discharge of union officers for campaign activities); Salzhandler v. Caputo, 316 F.2d 445 (2d Cir.), cert. denied, 375 U.S. 946, 84 S.Ct. 344, 11 L.Ed.2d 275 (1963) (intra-union discipline of union member for alleged “libel” of New York painters’ union official barred by § 101(a)(2)). When rights of free speech and of association —as opposed to the rights of voting and election — of union members are invaded by the actions of union officers,, the requirement of initial appeal to the Secretary under Title IV is inapplicable. Navarro v. Gannon, 385 F.2d 512, 520 (2d Cir. 1967), cert. denied, 390 U.S. 989, 88 S.Ct. 1184, 19 L.Ed.2d 1294 (1968).

We by no means suggest, however, that the free speech rights of union members are threatened or infringed upon every time a political dispute occurs in a union and the dissident members interpret some action by union officials as a threat. We do not wish to lend credence to any suggestion that the mere appendage of free speech allegations to an election complaint is sufficient to take the case out of Title IV’s requirements as interpreted by Calhoon. But federal courts need not necessarily wait to intervene until some sanction is directly imposed on union dissidents, for once suppressed “the democratic spirit” within a union “may not soon be revived.” Navarro v. Gannon, supra, 385 F.2d at 520.

The competing values between Title I rights and Title IV procedural requirements are best reconciled, in our opinion, by limiting initial federal court intervention to cases where union action abridging both Title I and Title IV can be fairly said, as a result of established union history or articulated policy, to be part of a purposeful and deliberate attempt by union officials to suppress dissent within the union. Cf. Navarro v. Gannon, supra, 385 F.2d at 520. We think that the allegations in the complaints here were sufficient to meet this test. Moreover, given the lengthy history of intra-District warfare over the years, see note 2 supra, these were not mere conclusory allegations and certainly had some basis in fact, as the court below found, albeit in qualified language. Thus, the district court had jurisdiction over the free speech aspects of the Schwartz action complaint.

Similarly, the district court had jurisdiction over Schonfeld’s individual action. He too asserts a free speech claim under Title I which, as mentioned, is cognizable in federal court without an initial appeal to the Secretary of Labor. Furthermore, the district court had jurisdiction over Schonfeld’s claim that restrictions on his future eligibility for office not imposed in accordance with the procedures specified in § 101(a)(5) of the LMRDA, 29 U.S. C. § 411(a)(5), violate his rights as a union member and are actionable under § 102 of the Act, 29 U.S.C. § 412. We take the view, along with the Third and the Seventh Circuits, that Title I of the Act protects the union-member relationship, but not the union-official or the union-employee relationship, and that hence removal from union office gives rise to no rights in the removed official as an official under the Act. Just as fully, however, we agree that rendering a man ineligible from seeking union office, whether for five years or three months, affects him as a member and permits him under the Act to challenge the fairness of the procedures resulting in such political exile. Thus the district court had jurisdiction of Schonfeld’s individual action.

We next turn to the question whether the district court properly exercised its equitable discretion in granting a preliminary injunction. We agree with the district court’s finding of Schonfeld’s and Schwartz action plaintiffs’ probable likelihood of success on the merits, in view of the history of the almost suicidal union warfare for which the Rarback contingent bears much of past blame and the procedures employed in Schonfeld’s “trial” resulting in his removal and ineligibility. The district court found that Sehonfeld had an adequate remedy at law in an action for damages to recover his lost salary and perquisites of office in connection with his claim that his removal from office violated Title I. We disagree, especially in the light of the findings below, affirmed here, relative to the free speech and association claims. The court below, moreover, made the quite practical finding that it would also grant preliminary relief on the basis of preserving the status quo on the merits in connection with Schonfeld’s § 101(a)(5) claim, 29 U.S.C. § 411(a)(5), and his and the Schwartz members’ § 101(a) (1) or free speech and association claims, 29 U.S.C. § 411(a)(1). Quite plainly to proceed by way of holding an expensive, distracting and perhaps mootness-inducing special election in January when the case was before the district court (now, by virtue of this appeal, April) would be absurd.

True, the affirmance of the granting of the preliminary injunction may moot the question of the propriety of the ineligibility penalty. But assuming that ultimately the plaintiff members in the Schwartz case and Sehonfeld do not prevail on their claims, there is nothing to prevent his removal at that time (assuming he has been re-elected in May so as to be in office), or the holding of a special election thereafter. In other words, the resolution of his controversy against Sehonfeld would not prevent the ultimate obtaining of a last full pound of flesh from him if that is the goal still sought. Sehonfeld continues to stand within the District Council’s danger. Contrariwise, if Sehonfeld prevails on the issues in one forum or the other or both, or if the rank and file union members who are plaintiffs in the Schwartz case prevail on their free speech and association claims, the fact that the pound of flesh has not here been taken will suit the occasion. We hold that the district court thus did not abuse its discretion in granting a preliminary injunction.

The judgment of the district court is affirmed. In view of an application by Sehonfeld for a modification of the injunction which has been submitted to us but can be dealt with more appropriately by the district court, the mandate will issue forthwith.

      . The charges against Schonfeld for which he was tried by the “Trial Board” of the District Council and found wanting by a 3-1 vote were that he by-passed the Council’s “Agreement Committee” in agreeing that a tapers’ local rather than a painters’ local should have jurisdiction over certain taping and patching work preparatory to painting and that he had misrepresented the facts in presenting this matter to the Council Delegates.

      . The District Council had been, as found by District Judge Frankel, for many years dictatorily and repressively run by Martin Rarback. Schonfeld v. Raftery, 271 F.Supp. 128, 131 (S.D.N.Y.), aff’d, 381 F.2d 446 (2d Cir. 1967). When Schonfeld ran against Rarback (unsuccessfully) in 1961 he was subjected to intra-union discipline which was enjoined by District Judge Murphy as lacking in due process. Yochim v. Caputo, 61 Civ. 2223 (S.D.N.Y., Oct. 24, 1962) (unreported). This was not the only intra-union LMRDA litigation involving the District Council. See Salzhandler v. Caputo, 316 F.2d 445 (2d Cir.), cert. denied, 375 U.S. 946, 84 S.Ct. 344, 11 L.Ed.2d 275 (1963) (member could not be disciplined by union for libel relative to management of union funds). The subsequent trusteeship instituted by the International was dissolved by Judge Frankel’s order as in bad faith and to keep the Rarback group in power in Schonfeld v. Raftery, supra, 271 F.Supp. at 147, and it was as a result of the election held as a part of the relief ordered by Judge Frankel that Schonfeld was elected to succeed Rarback in 1967 and again in 1970. Robins v. Rarback, 325 F.2d 929 (2d Cir. 1963), cert. denied, 379 U.S. 974, 85 S.Ct. 670, 13 L.Ed.2d 565 (1965), involved a different plaintiff, but the same union and the issues of member discipline and alleged electoral abuses. Schonfeld v. Raftery, 335 F.Supp. 846 (S.D.N.Y.1971) (Lasker, J.), is another and separate LMRDA case involving the International and District Council 9. At least five other lawsuits involving the principals here have been instituted, some of which are pending. We commend Judge Brieant below for his evident assiduous efforts to bring harmony to the Council and terminate the feud. Like the Hatfields and McCoys, however, it appears that District Council No. 9 prefers to keep on “feudin’ and fusin’ and a-fightin’.”

      . The court correctly noted the proviso to § 411(a)(1), “subject to reasonable rules and regulations in such organization’s constitution and bylaws” and to § 411(a) (2) :

        Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.
      29 U.S.C. § 411(a) (2).

      . Safeguards against improper disciplinary action. — No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.
      29 U.S.C. § 411(a)(5).

      '. Every member of a labor organization shall have equal rights and privileges . to nominate candidates, to vote in elections or referendums of the labor organization, . . . and to participate in the deliberations and voting . . . subject to reasonable rules and regulations in' such organization’s constitution and bylaws.
      § 101(a)(1), 29 U.S.C. § 411(a)(1).

      . Air Line Stewards and Stewardesses, Local 550 v. TWU, 334 F.2d 805, 808-809 (7th Cir. 1964), cert. denied, 379 U.S. 972, 85 S.Ct. 648, 13 L.Ed.2d 563 (1965). But see Hamilton v. Guinan, 199 F.Supp. 562, 564-565 (S.D.N.Y.1961).

      . We do not decide the question whether because the district court had jurisdiction over the Schwartz action plaintiffs’ free speech Title I claims it also had “pendent jurisdiction” over the claims under Title IV.

      . The trial court found plaintiffs had a probability of success on the merits on three of their claims: (1) that under the union constitution the District Council Trial Board had no jurisdiction to try the charges in the first place; (2) that the union’s statute of limitations had run in regard to the tapers’ jurisdiction charge; and (3) that Schonfeld was not afforded a full and fair hearing as required by § 101 (a)(5) of the LMRDA, 29 U.S.C. § 411 (a)(5). Our affirmance of the preliminary injunction is based upon the third of these findings. Cf. Falcone v. Dantinne, 420 F.2d 1157, 1166 (3rd Cir. 1969). In view of the intense politicalization of the Local, it would be almost impossible to find an impartial trial board from the membership. We agree with the district court that any bias on the part of the trier of fact would not be cured by appellate review and that in any event the GEB had an interest in the outcome of the appeal. Review of the other findings we leave to later stages of these proceedings, or other cases, when we have a more fully developed factual record. Suffice it here to say that an injunction issued on the basis of the findings as to jurisdiction and the statute of limitations alone would raise difficult issues as to the extent § 101 (a) (5) authorizes federal district courts to review union disciplinary proceedings. Cf. Boilermakers v. Hardeman, 401 U.S. 233, 241-247, 91 S.Ct. 609, 28 L.Ed.2d 10 (1971).


author: PER CURIAM.

text:
    Edgar Allen JORGENSON, Jr., Appellant, v. UNITED STATES of America, Appellee.
    No. 72-1739.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 13, 1973.
    Decided April 19, 1973.

      Edgar Allen Jorgenson, Jr., pro se.
    W. H. Dillahunty, U. S. Atty., and Richard’M. Pence, Jr., Asst. U. S. Atty., Little Rock, Ark., filed brief, for appellee.
    Before LAY and STEPHENSON, Circuit Judges, and TALBOT SMITH, District Judge.

       Eastern District of Michigan, sitting by designation.

   PER CURIAM.

Petitioner appeals from the district court’s denial of his petition brought under Title 28 U.S.C. § 2255 to set aside his sentence and for resentencing.

On August 31, 1971 appellant, represented by counsel, appeared before Judge Eisele and was sentenced to 3 years imprisonment upon his plea of guilty to violation of the Dyer Act, Title 18 U.S.C. § 2312. No direct appeal was taken from this sentence. Thereafter, petitioner filed a motion for reduction of sentence which was denied by Judge Eisele. Subsequently he filed a pro se petition for modification of sentence under Title 28 U.S.C. § 2255. After filing two amendments thereto, he employed counsel who filed an amended and substituted motion pursuant to Title 28 U. S.C. § 2255 for vacation of judgment and that his sentence be appropriately modified. It is from the district court’s denial of this petition that this appeal is brought.

After reviewing the district court record, appellant’s briefs and the Government’s brief, we are satisfied that the appeal is without merit. In summary, appellant claims that the trial court erroneously considered several prior convictions and other erroneous information in imposing the 3 year sentence. The latter included information to the effect that petitioner was a parole violator and that a fugitive warrant had been issued for his arrest when in fact a certificate of discharge had been issued and the fugitive charge dismissed. Appellant urges that his sentence was imposed on the basis of assumptions regarding his record which were materially untrue and therefore this court should vacate his sentence and remand for reconsideration. Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).

The sentencing Judge has already indicated that assuming all of appellant’s allegations to be true, he would not modify the 3 year sentence imposed. In denying appellant’s petition Judge Eisele stated:'

Petitioner alleges that the Court erroneously considered several prior convictions in imposing sentence. After reviewing the petition the Court is convinced that it would not modify the three-year sentence upon a showing that all of the allegations contained therein are true. Therefore, an evidentiary hearing is unnecessary and will not be scheduled.

We find no basis for interfering with the action of the trial court.

Appellant further contends that he sustained a back injury while incarcerated which has caused an added condition of confinement not contemplated by the district judge in determining the severity of the sentence imposed. As indicated by the trial court this is not a proper basis for modifying the original sentence. Proper medical treatment must be, and can be, provided within the federal institution where petitioner is now confined, the United States Medical Center for Federal Prisoners at Springfield, Missouri. If the petitioner takes a contrary view, he may, of course, attempt to challenge the constitutionality of the conditions of his confinement under Title 42 U.S.C. § 1983, but not in the district court where this action was brought.

Affirmed.


author: PER CURIAM:

text:
    CENTRAL GULF STEAMSHIP CORPORATION, Plaintiff-Appellee, v. INTERNATIONAL PAPER COMPANY and International Navigation Limited, Defendants-Appellants.
    No. 72-3382.
    United States Court of Appeals, Fifth Circuit.
    May 1, 1973.
    Francis G. Weller, Brunswick G. Deutsch, New Orleans, La., John S. Rogers, New York City, Robert B. Nolan, New Orleans, La., for defendants-appellants.
    Robert A. Acomb, Jr., New Orleans, La., for plaintiff-appellee.
    Before TUTTLE, GODBOLD and MORGAN, Circuit Judges.
   PER CURIAM:

This is an appeal by International Paper Company and International Navigation, Limited, from a judgment granting a preliminary injunction prohibiting them from engaging in common carrier activities on two LASH vessels (the acronym deriving from “Lighter-aboard-ship,” descriptive of the motherships which carry barges previously loaded with cargo) and their respective barges in respect to which International Navigation, Limited, had contracted with plaintiff Central Gulf Lines for the ten year use of space on said vessels.

In their brief appellants state that they “appeal primarily from the trial court’s conclusions of law, and do not for the purposes of this appeal contest extensively the findings of fact on which the conclusions are based.” However, upon review of the record it becomes apparent that no formal findings of fact and conclusions of law were ever entered in this case. The trial court orally stated the reasons for its decision, and in doing so briefly commented on the facts of the case, but it prefaced its statement of reasons with the following remarks:

“Gentlemen, I am going to give you, because this matter is of some urgency and because I have had a chance to think about it, my judgment at this time and my reasons for judgment. I will supplement these at a later time with written reasons for judgment should they be required for purposes of appeal.” (emphasis added).

In the judgment itself, the court stated,

“After having heard the testimony of the witnesses, considering the verified complaint, the affidavits submitted in support of said Motion and in opposition thereto, and the legal authorities cited by all parties, it appearing to the Court after due deliberation that defendant is actually engaged in committing and will continue to commit the actions set forth below, all to the irreparable injury of the plaintiff, and the Court having made and orally assigned its finding of fact and conclusions of law, to be filed in writing at a later date, it is ORDERED . . . ” (emphasis added).

Unfortunately, neither party requested the court to enter formal findings of fact and written reasons for entering the injunction. Neither party on appeal complains of this hiatus in the record, but they are nonetheless unable to point to any specific findings of fact by the trial court which would enable this court to make a proper determination in the case. We find it impossible to consider the merits of. this appeal without knowing the facts on which the trial court based its decision that Central Gulf Steamship was entitled to the injunction which it sought. We conclude, therefore, that the case must be remanded to the trial court for .the purpose of enabling that court to make formal findings of fact and conclusions of law upon which this court might judge the merits of the appeal.

In the case of any subsequent appeal the parties may utilize, as they choose, the whole or any part of the appendix and/or briefs filed in this appeal.

The case is remanded to the trial court for further proceedings not inconsistent with this opinion.

      . Rule 65(d), F.R.Civ.P., provides as follows: “Every order granting an injunction and every restraining order shall set forth the reasons for its issuance . . ."


author: LEWIS, Chief Judge.

text:
    Melvin R. HAMILTON, Plaintiff-Appellant, v. Emery L. MILLER and Mary Katherine Miller, Defendants-Appellees.
    No. 72-1216.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Sept. 21, 1972.
    Decided May 1, 1973.

      John M. Daly, Gillette, Wyo. (George L. Arnold, Laramie, Wyo., with him on the brief), for plaintiff-appellant.
    John E. Stanfield, of Smith, Stanfield & Mendicino, Laramie, Wyo., for defendants-appellees.
    Nathaniel R. Jones, Charles R. Carter, and James I. Meyerson, New York City, on the brief for NAACP, amicus curiae.
    Sanford Jay Rosen, New York City, and David Minge, Laramie, Wyo., on the brief for American Civil Liberties Union, amicus curiae.
    Before LEWIS, Chief Judge, and JONES  and McWILLIAMS, Circuit Judges.

       Of the Fifth Circuit, sitting by designation.

   LEWIS, Chief Judge.

This appeal taken by the plaintiff Hamilton follows the entry of an adverse judgment in the District of Wyoming after trial to the court sitting without a jury. Hamilton’s complaint against the Millers alleged violations of the Civil Rights Act of 1866, 42 U.S.C. § 1982 and the Civil Rights Act of 1968, 42 U.S.C. § 3601, all arising from the failure of the Millers to rent to Hamilton an apartment located in Laramie, Wyoming. The appellate issues are limited to a consideration of whether the trial court erred in finding no actionable discrimination and to specific attacks upon three of the trial court’s findings as being clearly erroneous.

Hamilton is a black student at the University of Wyoming. According to his testimony and that of others, he first tried to see the-apartment, listed as for rent in the local newspaper, on May 11, 1971. He, accompanied by his fiancee, was told by Mrs. Miller that the apartment had already been rented. Hamilton then returned to the University campus and consulted with the dean of students and with a white law student, Larry Clapp, who also served as a student government housing official. Hamilton sought both advice and assistance in his concern as to whether his civil rights had been abused.

The following day Larry Clapp tried to rent from the Millers and was tentatively offered an apartment. Hamilton, soon thereafter, was again told by defendant Miller that no apartment was available. He informed Miller that Clapp did not want the apartment. A similar incident occurred one week later. A white University official was twice shown a Miller apartment as being available and the plaintiff was informed that no apartment was available.

We have no hesitancy in stating that Hamilton established a strong prima facie case showing violations of the subject statutes. The trial court found and determined, however, that defendant’s evidence was sufficient to refute the prima facie case and concluded that on the total record the plaintiff had not succeeded in supporting his claim by a preponderance of the evidence.

Mrs. Miller testified that when Hamilton and his fiancee first inquired about the apartment in May they indicated their interests to be limited to obtaining an apartment when the University fall term began in September. Mrs. Miller told them to return in August to see if there was then a vacancy. The trial court fully credited Mrs. Miller’s testimony and in so doing entered two of the findings which are now asserted to be clearly erroneous. We cannot upset such findings as a matter of law.

Concerning the two following incidents when Hamilton was told there was no apartment available defense witnesses testified that Hamilton was extremely aggressive, demanding that the apartment be rented to him. Miller testified that plaintiff’s attitude and mannerisms led him to believe that Hamilton would be a troublesome tenant and that was the sole reason for his rejection. Miller stated, in effect, that he did not wish to personalize the rejection but preferred to deny the availability of the apartment. Miller’s testimony was fully credited by the trial court and premises the remaining findings that formed the judgment below. Again, we cannot disturb the findings as a matter of law.

As in any case where a determination of credibility dictates a result the chance of an injustice is ever present. But we cannot, as we are here urged in effect to do, try the case de novo. Such is not the function of an appellate court. The resolution of conflicting evidence, as exists in this case, is particularly within the province of the trial court and findings must be given added weight when we consider the opportunity of the trial judge to hear and observe the witnesses. United States v. 79.95 Acres of Land, etc., Rogers Co., Okl., 10 Cir., 459 F.2d 185, 187; Rosenfield v. Kay Jewelry. Stores, Inc., 10 Cir., 384 F.2d 98, 100; Davis v. Cities Service Oil Co., 10 Cir., 420 F.2d 1278, 1279.

Affirmed.

      . The trial court was critical of the conduct of University officials, characterizing it as acting “under false pretenses”, not in “good faith” and done for the purpose of “framing a law suit”. We give no comfort to such criticism. While actions intended to found a law suit are not favored they at times must be tolerated. See Bush v. Kaim, D.C., 297 F.Supp. 151; Newbern v. Lake Lorelei, Inc., D.C., 308 F.Supp. 407; Harris v. Jones, D.C., 296 F.Supp. 1082. It would be difficult indeed to prove discrimination in housing without this means of gathering evidence. See also Evers v. Dwyer, 358 U.S. 202 at 204, 79 S.Ct. 178, 3 L.Ed.2d 222, where the Supreme Court said it was “not significant” that a black man boarded a bus for the purpose of instituting litigation attacking segregated operation of the bus system.

      . We are urged to hold that the defendant should have the burden of establishing his defense through clear and convincing evidence. We are not so persuaded. It is true, of course, that prejudice is difficult to prove except circumstantially. But it is equally difficult to disprove and we see no compelling reason to vary from traditional rules applicable generally to civil cases.


author: LEWIS R. MORGAN, Circuit Judge:

text:
    FULGHUM INDUSTRIES, INC., Plaintiff-Appellant, v. WALTERBORO FOREST PRODUCTS, INC., and Holly Hill Lumber Company, Defendants-Appellees.
    No. 72-2526.
    United States Court of Appeals, Fifth Circuit.
    April 11, 1973.
    Rehearing Denied June 6, 1973.

      Glenville Haldi, Atlanta, Ga., Randolph C. Karrh, Swainsboro, Ga., for plaintiff-appellant.
    Milton A. Carlton, Charles B. Merrill, Jr., Swainsboro, Ga., for defendants-appellees.
    Before RIVES, GOLDBERG and MORGAN, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

The district court below, 345 F.Supp. 296, dismissed the instant civil action for lack of in personam jurisdiction over the non-resident defendant under the Georgia Long Arm Statute. We affirm.

This action was originally brought by Fulghum Industries in the Superior Court of Jefferson County, Georgia. It was then removed to the United States District Court for the Southern District of Georgia and the decision there appealed to this court.

The defendants, Walterboro Forest Products and Holly Hill Lumber Company, own and operate lumber mills in the State of South Carolina. They have no officers or agents located in the State of Georgia, but they do sell some of their products to Georgia customers. The plaintiff, Fulghum Industries, a Georgia corporation, contracted to design, engineer and construct for the defendants a sawmill to be installed and erected in South Carolina.

The plaintiff originally learned from a third party that the defendants were planning to construct a lumber mill in South Carolina, and subsequently the plaintiff entered into negotiations with the defendants concerning that mill. As part of these negotiations officers of the defendants visited the Georgia plant of the plaintiff and other sawmills erected by the plaintiff in Georgia. Numerous telephone calls and mail communications to discuss the contract occurred between the Georgia plaintiff and the South Carolina defendants. A contract was -signed March 31, 1969, by the parties in their respective states. A dispute arose concerning payment for this plant and the inclusion in the final bill of a number of items of “extras”. The only question before this court is the dismissal of the complaint by the court below for want of jurisdiction.

This court finds significant that this is an action on a contract involving parties of different states, unlike a situation where an unexpected tort leads to court action.

The appellant has asserted that several recent decisions of the Georgia Supreme Court should control as to interpretation of the Georgia Long Arm Statute. But this court finds that these cases and other Fifth Circuit opinions cited by the appellant are not persuasive in this situation because all of these cases were sounded in tort whereas this action is in contract. The Georgia Long Arm Statute itself provides for the difference between an action in tort and one in contract as to jurisdiction.

The only part of the Georgia Long Arm Statute applicable here is Georgia Code Annotated § 24-113.1 (a), which specifies that jurisdiction is obtained when a person “Transacts any business within this state; . . .”.

The Court of Appeals of Georgia has clearly outlined what this requires. In Castleberry v. Gold Agency and Company, 124 Ga.App. 694, 185 S.E.2d 557, that Court stated that the cause for action must arise from the act of transacting the business. So it is seen that any other business the defendant engaged in in Georgia which is unrelated to the contract with Fulghum is irrelevant.

We, therefore, agree with the court below that the Georgia statute does not extend to this situation.

The district court is

Affirmed.

      . Georgia Code Annotated § 24-113.

      . J. G. Penney Company v. Malouf Company et al., Ga.1973, 196 S.E.2d 145; Coe and Payne v. Wood Mosaic, Ga.1973, 195 S.E.2d 399.

      . Eyerly Aircraft Company v. Killian, 414 F.2d 591 (5 Cir. 1969); Jetco Electronic Industries v. Gardiner, 473 F.2d 1228 (5 Cir. 1973); Smith v. Piper Aircraft Corp., 425 F.2d 823 (5 Cir. 1970).

      . § 24r-113.1, Georgia Code Annotated, reads as follows:
      Personal jurisdiction over nonresidents of State.—
      A court of this State may exercise personal jurisdiction over any nonresident, or his executor, or administrator, as to a cause of action arising from any of the acts, omissions, ownership, use or possession enumerated in this section, in the same manner as if he were a resident of the State, if in person or through an agent, he:
      (a) Transacts any business within this State; or
      (b) Commits a tortious act or omission within this State, except as to a cause of action for defamation of character arising from the act; or
      (c) Commits a tortious injury in this State, caused by an act or omission outside this State, if the tortfeasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this State ; or
      (d) Owns, uses or possesses any real property situated within this State.
      (Acts 1966, p. 343; 1970, pp. 443, 444.)

      . A decision contra to this would certainly appear to chill the constitutional liberty of a citizen to travel to another state and consider engaging in even the simplest business venture. The court, however, has found it unnecessary to deal with the federal question of whether or not the due process laws would be violated if jurisdiction attached under the statute.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert D. PHILLIPS, Defendant-Appellant.
    No. 72-3831
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 3, 1973.
    John J. Browne, Houston, Tex., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Robert G. Darden, Asst. U. S. Atty., Houston, Tex., 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:

In his appeal from a judgment of conviction of unlawful transportation in interstate commerce of stolen property in violation of 18 U.S.C.A. § 2314, Phillips asserts error in the denial of his motion for the suppression of evidence and contends that he was denied his constitutional right to a speedy trial. We disagree and affirm.

Phillips first urges that his motion to suppress the stolen firearms, which he admittedly transported in interstate commerce, should have been granted because the supporting affidavit was sworn to before a municipal court judge in Texas, an officer not authorized to administer oaths. This precise question was, however, decided adversely to Phillips by the Texas Court of Criminal Appeals in O’Quinn v. State of Texas, 1970, 462 S.W.2d 583, We, of course, accept the state court’s interpretation of its own statute. Garner v. Louisiana, 1961, 368 U.S. 157, 166, 82 S.Ct. 248, 7 L.Ed.2d 207.

Phillips’ second contention is that he was denied a speedy trial. He was indicted on June 15, 1970, and was released on bond June 30, 1970. His counsel was court-appointed on July 10, 1970. Pretrial motions for discovery and particulars were filed and were subsequently granted in part on October 26, 1971. Phillips’ counsel filed the motion to suppress, to which we have alluded, on October 17, 1972. On October 19, 1972, after a hearing, the motion was denied and Phillips filed á waiver of jury and a written stipulation in which he admitted all of the essential elements of the offense with which he was charged in the indictment, reserving only his objections to the evidence delineated in his motion to suppress. Phillips was found guilty by the court.

Phillips never requested that his case be set for trial. There was no prejudice alleged or shown as the result of delay. Phillips did not testify or introduce any evidence other than the stipulated facts.

Applying the balancing test of Barker v. Wingo, 1972, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, that is the “length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant,” we entertain no doubt that the district court was correct in holding that Phillips was not deprived of his right to a speedy trial.

Affirmed.

      . IVe are not dealing here with a rule such as Rule 41(a), F.R.Crim.P. which would have no effect on a state warrant, and the case at bar is thus distinguishable from Navarro v. United States, 5 Cir. 1968, 400 F.2d 315, and United States v. Hanson, 5 Cir. 1972, 469 F.2d 1375, which cases were concerned witli a Texas Justice of the Peace Court not being a court of record. Nor does the case at bar involve a situation where federal officers participated in recovery of the evidence under the search warrant.