source: Caselaw Access Project

author: JOHN R. BROWN, Chief Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Edward JOHNSON, Defendant-Appellant.
    No. 30656.
    United States Court of Appeals, Fifth Circuit.
    March 20, 1973.

      Fred L. Banks, Jr., Jackson, Miss., Howard Moore, Jr., Peter E. Rindskopf, Atlanta, Ga., for defendant-appellant.
    Robert E. Hauberg, U. S. Atty., E. Donald Strange, Daniel E. Lynn, Joseph E. Brown, Jr., Asst. U. S. Attys., Jackson, Miss., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, GEWIN and MORGAN, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

The only thing unusual about this direct criminal appeal from conviction for failing to obey a lawful order of a Selective Service Board (a violation of 50 U.S.C.A. App. § 462), is that the Defendant here overcame the well-established presumption of regularity and validity normally attaching to official acts of Selective Service Boards and created a jury issue where usually there is none — and in fact, there really was none in this case (see note 21, infra). Since the Government was not. relying exclusively on the presumption and offered other probative evidence .that the Defendant had not been ordered to alternative service in lieu of induction into the Armed Services out of sequence, and because we reject other arguments less strenuously urged by the Defendant, we affirm the judgment of conviction based on a jury finding of guilt, but remand for resentencing.

No Show At Jackson

Robert Edward Johnson was classified 1-0 (conscientious objector not available for military duty) by Selective Service Local Board No. 23 of Grenada, Mississippi. Pursuant to 50 U.S.C.A. App. § 456(j), and as an alternative to military service, he was ordered by his Board to work at the Mississippi State Hospital in Whitfield, Mississippi. His work at Mississippi State Hospital proved unsatisfactory and, accordingly, he was dismissed. Subsequently he was reassigned to Rush Memorial Hospital in Meridian, Mississippi, and when employment there was terminated for poor performance, the State Director of Selective Service ordered him transferred to the University of Mississippi Medical Center in Jackson, Mississippi. On January 31, 1969, after he had served some 16 months of his two-year obligation, Johnson failed to report to the University of Mississippi Medical Center as ordered by the State Director. Thereafter he was prosecuted for a violation of 50 U.S.C.A. App. § 462, by an indictment charging that he did “knowingly, wilfully, unlawfully and feloniously fail, neglect and refuse to” obey the orders of his local Selective Service Board. From a jury verdict of guilty and a five-year sentence, this appeal has been taken.

The Indictment Sufficeth

Johnson first claims that the indictment was fatally defective for two reasons.

Specificity

First, Johnson protests that the indictment did not measure up to requisite standards of specificity. Relying on Lowenburg v. United States, 10 Cir., 1946, 156 F.2d 22 and United States v. Farinas, S.D.N.Y., 1969, 299 F.Supp. 852, he argues that the indictment was insufficient because it did not allege specific duties he failed to perform.

Assuming, without deciding, that we would follow these decisions of sister Circuits, these cases simply do not touch this record. In Lowenburg, the indictment alleged no specific order which had been disobeyed, but rather, only the general refusal of Defendant “to work and perform duties.” Actually, Lowenburg was tried specifically for refusing to burn stumps and remove dirt therefrom. The Court held that the indictment was wholly insufficient to apprise Defendant that that specific act was to be the subject of prosecution.

Likewise in Farinas, the indictment alleged that Defendant “did fail, neglect and refuse to obey the orders of representatives of the Armed Forces of the United States * * Again, the specific order disobeyed was not set out and the indictment was held fatally deficient for that reason.

Unlike those cases, the indictment here specifies the particular criminal act for which Defendant was to be tried. The indictment alleged that “on or about January 31, 1969” Johnson did “knowingly, wilfully, unlawfully and feloniously fail, neglect, and refuse to report for and remain in employment with the University of Mississippi Medical Center at Jackson, Mississippi, for twenty-four consecutive months or until such time as released or transferred by proper authority as ordered * * (Emphasis supplied). Clearly that indictment fully informed the Defendant of the specific act for which criminal liability was sought to be imposed — complete with time, place and circumstance.

If a precedent need be marshaled, United States v. Wagoner, 7 Cir., 1944, 143 F.2d 1, cert. denied, 323 U.S. 730, 65 S.Ct. 67, 89 L.Ed. 586 is more than enough. In Wagoner the indictment alleged that the Defendant “unlawfully, knowingly, wilfully, and feloniously failed and refused to present himself for and submit to registration * * This indictment was held to state a “clear, definite, and general offense,” and to be legally sufficient to withstand a due process challenge. If the word “registration” in that indictment is changed to the phrase “civilian employment at Mississippi State Hospital,” the indictment here becomes virtually identical.

Punishable Offense

Johnson’s second attack on the indictment is that no offense under the statute was made out since the order violated was not that of the local Selective Service Board, as alleged, but rather an order of the State Director of Selective Service.

That exact contention was before this Court and decided in Davis v. United States, 5 Cir., 1968, 400 F.2d 577, cert. denied, 394 U.S. 908, 89 S.Ct. 1019, 22 L.Ed.2d 219. Although Johnson strenuously urges that the Davis ease is not applicable here, we disagree.

The Order To Report For Civilian Work issued by Local Board No. 23 to Johnson specifically directed “you are ordered to report for employment pursuant to the instructions of the local board, to remain in employment for twenty-four consecutive months or until such time as you are released or transferred by proper authority.” (Emphasis supplied.) As we pointed out Davis, the State Director had authority to transfer Appellant to other civilian work after his discharge from the Mississippi State Hospital under Selective Service System Local Board Memorandum No. 64 issued March !, 1962, Section 8(b). Thus, on the Davis approach, the failure to obey a lawful command of the State Director — a command which the Director was authorized to issue — was simultaneously a failure to obey the order'of the draft board, as charged in the indictment.

This indictment specifying precise dates and identifying particular places (University of Mississippi Medical Center) satisfied the underlying requirements that it “inform the accused of the nature of the charges against him, with such specificity and particularity that the accused is enabled to undertake and prepare an adequate defense.” United States v. Levinson, 6 Cir., 1968, 405 F.2d 971, 977; United States v. Debrow, 1953, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92; Hagner v. United States, 1932, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861. And attributing the State Director’s order to the Board related to its legal effect and did not mislead the Defendant as to the charges he faced.

Was Order Out of Order?

Johnson next asserts that his conviction should be reversed because the Government did not prove that he was ordered to report for alternative service in the proper sequence. The issue considered here has never been before this Court in precisely the form presented in this particular appeal.

We observe initially that this is a criminal prosecution. Johnson has been sentenced to five years in prison. It is an obvious rudiment of due process that in a criminal prosecution every essential element of the offense must be proved beyond a reasonable doubt.

Implicit in the charge that Defendant failed to obey an order of the local draft board is the allegation that the underlying order was lawful. Johnson could not be punished for disobeying an unlawful order of the Board. Thus, since Johnson cannot be punished unless he failed to obey a lawful order of the Board, the lawfulness of the order is necessarily an element of the crime charged.

The order to report for alternative service was not lawful if it was issued contrary to controlling rules and regulations governing the Selective Service System. One of these — a particularly important one — sets forth the order in which Selective Service registrants are to be inducted or ordered to alternative duty in lieu of military service. 32 C.F. R. § 1660.20(a) (b)(c)(d) and § 1631.7(a). Adherence to the proper order of call is of more than mere technical importance. Manifestly, it affects substantial rights of the registrants. United States v. Baker, 9 Cir., 1969, 416 F.2d 202, 204. Moreover, Congress, the President, and the American people have expressed clear intent that the draft, when utilized, be conducted with as much servitude to objectivity as is humanly possible. We deem it of particular significance, for example, that Congress affirmatively mandated and reiterated in each of the four paragraphs of 32 C.F.R. § 1660.20 that “such order [to alternative service] shall not be issued prior to the time that the registrant would have been ordered to report for induction if he had not been classified in Class I-O, unless he has volunteered for such work.” See note 8, supra. With possible consequences to those selected so awful and the opportunities for even good faith but inadvertent exercise of subjective choices undeniably present, it is certainly essential that objective standards spelled out in the law be scrupulously respected.

The order of call — as it stood in 1967 — required that (i) delinquents (oldest first) be called to report first, (ii) volunteers (in the order in which they volunteered) be selected next, and (iii) unmarried nonvolunteers (ages 19 through 26) be called next “in the order of their dates of birth with the oldest being selected first.” We have to determine what has been shown with respect to this sequence in the present case.

As a necessary general rule, the element of lawfulness of an order is established by a presumption that the local Board performed its duty in a regular and therefore legally valid manner. Greer v. United States, 5 Cir., 1967, 378 F.2d 931; Lowe v. United States, 5 Cir., 1968, 389 F.2d 51; Pique v. United States, 5 Cir., 1968, 389 F.2d 765; Campbell v. United States, 5 Cir., 1968, 396 F.2d 1. The presumption derives from the administrative necessity for such a rule. Quite obviously it would be completely unworkable to require the Government to present detailed affirmative proof in every case proving not only the technical validity of every act involved in or leading to the order in question, but the underlying validity of the structure of the local Board itself. The rule is born of necessity and a recognition of experience-proved assurance that the Board can be relied upon to discharge its duties with complete fairness and careful adherence to the regulations. Thus, in the normal case it is quite permissible to presume compliance with the predicating regulations and thereby establish that element of the offense charged.

On the other hand, there is always the possibility that either by mistake or in very rare and isolated cases by capricious and arbitrary discrimination, the Board may undermine the validity of the order to service by a failure to comply with Selective Service law and regulations. In the usual case, absent a showing that either of these elements is likely present (mistake or design), the Government need not affirmatively demonstrate the lawfulness of the order to service — that element is established by the presumption. But where the registrant is able to show a substantial likelihood that the order to service was irregular, and thereby overcome the presumption, that element of the offense is in issue and the validity of the order must be established beyond a reasonable doubt.

Adding Opportunity And Motive

Recognizing that once the presumption is dissipated by probative evidence to the contrary, and that once such evidence had been tendered, the presumption standing alone would no longer be sufficient to convict, Johnson set out to demonstrate a substantial likelihood that his order to call was irregular. Specifically, the strategy was to show a substantial likelihood that the Board, motivated in part at least by a desire to terminate Johnson’s persistent civil rights activities in Grenada, had acted with undue haste to remove him from the community, ordering him to alternate service before another registrant who should have gone first.

We can only conclude, from the jury’s pronouncement of guilty, after full and proper instruction on the issue of order of call that the strategy failed.

Step One- — -The Board’s Awareness

The first step in this approach was to demonstrate the Board’s keen awareness of and reaction to certain civil rights activities in which Johnson was involved. Johnson had been a civil rights activist in Grenada. As putative leader of the Black people there, his vigorous participation in the civil rights movement had been well-publicized. He had brought and successfully maintained a civil rights action against various Judges in Grenada which resulted in an injunction prohibiting theretofore common systematic exclusion of Blacks from petit and grand jury panels. In late January and early February 1967 Johnson had been involved in a controversial courtroom incident with manifest civil rights implications which was only recently finally resolved when the United States Supreme Court summarily reversed his resultant contempt conviction. And all of this was “town talk” and “in all of the papers.”

In this context, certain documents in Johnson’s Selective Service file were presented to the jury. The first of these was a letter from the Executive Secretary of Local Board 23 to the State Director of Selective Service: “Colonel Weeks, this registrant is one of the leaders here at Granada who has been working as a civil rights worker all summer and has been out of one thing into another. You can see who receives copies of his letters * * *” (referring to various national civil rights leaders, including Dr. Martin Luther King, Jr.). The second item suggesting that the Board may have been desirous of removing Johnson from the local scene with the greatest dispatch was another letter from the Executive Secretary. In March of 1967, when the Selective Service was drafting no one younger than 19% years the Executive Secretary wrote the State Director for permission to order Johnson to service that next month — despite the fact that Johnson was then only 18% years old and Selective Service regulations then specifically prohibited taking anyone younger than 19. The Executive Secretary was also concerned that Johnson had not been reclassified from 1-0 into a draft-eligible class and stressed, in her letter, that Appellant had “NOT” been re-classified into I-A or I-A-O.

Once Johnson had been ordered to alternative service and he had been securely removed from the Grenada civil rights struggle, the Executive Secretary expressed her relief in a letter to the State Director concluding that this is “another one behind us, I hope.”

Step Two — The Older Registrant

Having established by the probative evidence the possibility that the Board was overly anxious to remove Johnson from the local scene — and clearly this evidence only tentatively suggested this possibility and in no way conclusively demonstrated improper action of the Board' — the defense proceeded to solicit information about specific registrants. The highlight of the defense came when the Executive Secretary, during cross-examination, testified that there was at least one other registrant — a Mr. Dick-man — who was classified I-O by Local Board No. 23, was older than Johnson, had taken (and presumedly passed) his physical examination, and yet was passed over when Johnson was ordered to alternative service. The Dickman evidence is skeletal and inconclusive, but the crucial testimony was as follows:

“Q. And he was older than the Defendant ?
A. That’s right.
Q. And under the regulations—
A. He went for a physical examination.
Q. .Under the regulations he should have been called ahead of the Defendant, isn’t that right?
A. I would have to check records but he took his physical examination.”

On the other hand, the Executive Secretary had repeatedly testified that Johnson was not taken out of sequence and that no other qualified registrant in the available pool had been passed over when Johnson was ordered to report for alternative service.

“Q. As I recall my question was at the time this Defendant was sent his order to report for work on September 20th, 1967 was he call in due course along with other registrants in that age group ?
******
A. It was.

(TR 48-49).

******
A. At that time we just take them in order as they come. His number, we do not pass over, or we do not skip over them.

(TR 76).

******
Q. You would go through and select six men in class I-A and one person that was classified as I-O.
A. Provided he fell in order. We did not reach and get him, he had to fall in sequence, he had to fall in order.
Q. And you followed that procedure, notwithstanding the notice from the Selective Service System only asked for a I-A, is that right, is that right?
A. That’s right.

(TR 78).

######
A. No, we would not substitute, we went right down the line in order, he had to fall in sequence. We took the oldest man’s date of birth and when we came to him and he was a I-O, he was ordered to work in lieu of induction, but he was not pulled out of order.

(TR 79).

* * * * * *
Q. Now its true isn’t it that the relationship of the Defendant’s civil rights activities passed to his selective service status is the question of whether or not he ought to be placed in classification of I-AO, so he could be inducted in the next call isn’t that right?
A. If that was in sequence,’ if that was in sequence he would not have been called at all unless he was in sequence.

(TR 96).

* * * * * *
Q. And your purpose here was to arrange, to organize the early induction of the registrant was it not?
A. Oh no indeed, we did not arrange the early induction of the registrant.
Q. But if he had been classify as I-AO—
A. He would have been ordered just like any other registrant, in sequence.

(TR 96).

* * * * * *
Q. But there were older registrant who had been found accepted?
A. Not in class I-O.
Q. What about in class I-AO or I-A ?
A. I would have to go back and check my records, but as far as I can remember there were none.

(TR 101).

******
A. We have available pool of I-A men and when we receive a call at that time we take the oldest one first and come right down the line in sequence, and that is the way we would do.

(TR 101).

* * * -» * *
A. When we reached him we ordered him in order.

(TR 102).

At this point, it became a jury question. The jury could credit the Executive Secretary’s testimony to the effect that Johnson was not taken out of order, or it could infer from the testimony about Dickman and the evidence of the letters in Johnson’s file that the order to report for alternative service was not duly and lawfully issued. The trial Court carefully instructed the jury on this element of the offense, twice charging the jury that if the Government failed to carry its burden to prove beyond a reasonable doubt that Johnson’s order to call was regular and lawful, it must acquit him.

“Now you will thus be called upon to decide, (1) as to whether or not the Defendant was called up ahead of older previously qualified conscientious objectors or was called in regular order in his classified category or not. The Defendant contends that he was called out of order and you will decide from the evidence in the case whether he was or was not called out of order. The burden of proof is upon the government to prove that he was not called out of order.”

“I charge you that should you find from the evidence at the time the Defendant was ordered to report for civilian service as a conscientious objector that other registrants older than the Defendant and who were classified 1-0 and had been previously found acceptable were passed over that you must acquit the Defendant.”

Moreover, the charge did not include a presumptive instruction giving the Government any advantage on this issue. The jury had to weigh the direct and circumstantial evidence and determine whether or not the Government had discharged its burden of proving, beyond a reasonable doubt, that Johnson had been taken in the proper sequence. They having done so and having found that the order of call was regular (as is inferentially manifest by the verdict) this Court will not set that jury verdict aside. It requires no citation of authority to hold that a jury, fully and properly instructed has the exclusive responsibility to resolve issues of fact created by conflicting evidence and inferences. Not only will appellate Judges not assume the roles of super-draft boards, super-school boards, super-prison administrators, or super-legislators, we are also constitutionally prohibited from anointment as super-jurors.

Segregated Draft Boards

As a final substantive argument Johnson asserts that the exclusion of Blacks from local Selective Service Boards in Mississippi deprived him of due process of law in violation of the Fifth Amendment and 50 U.S.C.A. App. § 455(a). The record contains a stipulation that at no time during Johnson's lifetime has any member of the Black race served on Local Board No. 23 in Grenada, Mississippi, or on any of the Appellate Boards of the State of Mississippi.

Although we have withheld decision in this case awaiting action by this Court en banc in United States v. Lemmons, No. 29149; United States v. Adams, No. 30868; and Smith v. Leach, 5 Cir., 468 F.2d 624, as well as other cases consolidated therewith which have now been disposed of without reaching this question, the simple answer in Johnson’s case is that Johnson can show no prejudice from the alleged discriminatory practices because he received from the Board the precise classification which he requested — I-O. This washes it all out. He has nothing to complain about because he got all that he asked for, could have received or could have wanted even if the draft board had been composed exclusively of members of his race.

Johnson also alleges that the judgment of conviction must be vacated by reason of the District Court’s pronouncement of sentence immediately upon receipt of the jury verdict and the Court’s refusal to have a presentence investigation conducted as the Defendant had specifically requested. Of course, so long as the sentence is within the statutory limits, we give very great if not controlling deference to the discretion of the trial Judge. Thomas v. United States, 5 Cir., 1966, 368 F.2d 941; Mount v. United States, 5 Cir., 1964, 333 F.2d 39, cert. denied, 379 U.S. 900, 85 S.Ct. 188, 13 L.Ed.2d 175; Herman v. United States, 5 Cir., 1961, 289 F.2d 362, cert. denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93. While it is not the function of this court to review the length of sentences imposed by district courts, it is observed that the appellant has served a substantial part of his period for alternate service. He expressly requested a pre-sentence report and gave some indication of his willingness to work in other Mississippi hospitals. The defendant was sentenced to the statutory maximum immediately after the jury returned its verdict. Under the provisions of Rule 35 F.R.Crim.P. the district court may reduce the sentence within 120 days after receipt by that court of a mandate issued upon affirmance of the judgment on appeal. Needless to say, the reduction of a valid sentence after affirmance is within the discretion of the trial court. Substantial time has elapsed since the appellant was sentenced. Considerations based on compassion and mercy are to be determined by the trial court. We are confident that the distinguished trial judge in this case will give due consideration to all legitimate factors to be considered if a reduction in sentence is sought. See Lott v. United States, 5 Cir., 1962, 309 F.2d 115, 126.

AFFIRMED.

      . Cf. Oestereich v. Selective Service Board, 1968, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402; Wells v. United States, 5 Cir., 1946, 158 F.2d 932, cert. denied, 330 U.S. 827, 67 S.Ct. 867, 91 L.Ed. 1276; Greer v. United States, 5 Cir., 1967, 378 F.2d 931; Yates v. United States, 1 Cir., 1968, 404 F.2d 462, rehearnig denied, 1969, 407 F.2d 50.

      . The order, dated September 20, 1967, stated that he was to present himself for alternative service on October 4, 1967.

      . The specific order of the Board allegedly violated is discussed in text, infra.

      . Newsom v. United States, 5 Cir., 1964, 335 F.2d 237; Colt v. United States, 5 Cir., 1946, 158 F.2d 641; A.L.I. Model Penal Code, § 1.12(1) (Proposed Official Draft 1962).

      . Franks v. United States, 9 Cir., 1954, 216 F.2d 266; United States v. Atherton, 9 Cir., 1970, 430 F.2d 741; Goetz v. United States, 9 Cir., 1954, 216 F.2d 270; Palmer v. United States, 9 Cir., 1968, 401 F.2d 226.

      . Cf. United States v. Lybrand, E.D.N.Y., 1967, 279 F.Supp. 74, 81-82.

      . Estep v. United States, 1946, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567; Carson v. United States, 5 Cir., 1969, 411 F.2d 631, cert. denied 396 U.S. 865, 90 S.Ct. 143, 24 L.Ed.2d 119; Olvera v. United States, 5 Cir., 1955, 223 F.2d 880; Imboden v. United States, 6 Cir., 1952, 194 F.2d 508, cert. denied, 343 U.S. 957, 72 S.Ct. 1052, 96 L.Ed. 1357.

        The Olvera case, coming out of this Circuit, provides particularly strong language to this effect:
      “It is of the essence of the validity of board orders and of the crime of disobeying them that all procedural requirements be strictly and faithfully followed, and that a showing of failure to follow them with such strictness and fidelity will invalidate the order of the board and a conviction based thereon.”
      223 F.2d at 882.

      . § 1660.20 Determination of type of civilian work to be performed and order by the local board to perform such work.
      (a) When a registrant in Class I-O has been found qualified for service in the Armed Forces after his armed forces physical examination or when such a registrant has failed to report for or to submit to armed forces physical examination, he shall, within ten days after a Statement of Acceptability (DD Form No. 62) has been mailed to him by the local board or within ten days after he has failed to report for or submit to armed forces physical examination, submit to the local board three types of civilian work contributing to the maintenance of the national health, safety, or interest as defined in section 1660.1, which he is qualified to do and which he offers to perform in lieu of induction into the Armed Forces. If the local board deems any one of these types of work to be appropriate, it will order the registrant to perform such work, but such order shall not be issued prior to the time that the registrant would have been ordered to report for induction if he had not been classified in Class I-O, unless he has volunteered for such work.
      (b) If the registrant fails to submit to the local board types of work which he offers to perform, or if the local board finds that none of the types of work submitted by the registrant is appropriate, the local board shall submit to the registrant by letter three types of civilian work contributing to the maintenance of the national health, safety, or interest as defined in § 1660.1 which it deems appropriate for the registrant to perform in lieu of induction. The registrant, within ten days after such letter is mailed to him by the local board, shall file with the board a statement that he either offers to perform one of the types of work submitted by the board, or that he does not offer to perform any of such types of work. If the registrant offers to perform any one of the three types of work, he shall be ordered by the local board to perform such work in lieu of induction, but such order shall not be issued prior to the time that the registrant would have been ordered to report for induction if he had not been classified in Class I-O unless he has volunteered for such work.
      (c) If the local board and the registrant are unable to agree upon a type of civilian work which should be performed by the registrant in lieu of induction the State Director of Selective Service for the State in which the local board is located, or the representative of such State Director, appointed by him for the purpose, shall meet with the local board and the registrant and offer his assistance in reaching an agreement. The local board shall mail to the registrant a notice of the time and place of this meeting at least 10 days before the date of the meeting. If agreement is reached at this meeting, the registrant shall be ordered by the local board to perform work in lieu of induction in accordance with such agreement, but such order shall not be issued prior to the time that the registrant would have been ordered to report for induction if he had not been classified in Class I-O, unless he has volunteered for such work.
      (d) If, after the meeting referred to in paragraph (c) of this section, the local board and the registrant are still unable to agree upon a type of civilian work which should be performed by the registrant in lieu of induction, the local board, with the approval of the Director of Selective Service, shall order the registrant to report for civilian work contributing to the maintenance of the national health, safety, or interest as defined in § 1660.1 which it deems appropriate, but such order shall not be issued prior to the time that the registrant would have been ordered to report for induction if he had not been classified in Class I-O, unless he was volunteered for such work.

      . § 1631.7 Action by local board upon receipt of notice of call.
      (a) Each local board, upon receiving a Notice of Call on Local Board (SSS Form No. 201) from the State Director of Selective Service (1) for a specified number of men to be delivered for induction, or (2) for a specified number of men in a medical, dental, or allied specialist category to be delivered for induction, shall select and order to report for induction the number of men required to fill the call from among its registrants who have been classified in Class I-A and Class I-A-0 and have been found acceptable for service in the Armed Forces and to whom the local board has mailed a Statement of Acceptability (DD Form No. 62) at least 21 days before the date fixed for induction : Provided, That a registrant classified in Class I-A or Class I-A-0 who is a delinquent may be selected and ordered to report for induction to fill an induction call notwithstanding the fact that he has not been found acceptable for service in the Armed Forces and has not been mailed a Statement of Acceptability (DD Form No. 62) : And provided further, That a registrant classified in Class I-A or Class I-A-0 who has volunteered for induction may, if an appeal is not pending in his case and the period during which an appeal may be taken has expired, be selected and ordered to report for induction notwithstanding the fact that he has not been found acceptable for service in the Armed Forces and regardless of whether or not a Statement of Acceptability (DD Form No. 62) has been mailed to him. Such registrants, including those in a medical, dental, or allied specialist category, shall be selected and ordered to report for induction in the following order:
      (1) Delinquents who have attained the age of 19 years in the order of their dates of birth with the oldest being selected first.
      (2) Volunteers who have not attained the age of 26 years in the sequence in which they have volunteered for induction.
      (3) Nonvolunteers who have .attained the age of 19 years and have not attained the age of 26 years and who (A) do not have a wife with whom they maintain a bona fide family relationship in their homes, in the order of their dates of birth with the oldest being selected first, or (B) have a wife whom they married after the effective date of this amended subparagraph and with whom they maintain a bona fide family relationship in their homes, in the order of their dates of birth with the oldest being selected first.
      (4) Nonvolunteers who have attained the age of 19 years and have not attained the age of 26 years and who have a wife whom they married on or before the effective date of this amended subparagraph and with whom they maintain a bona fide family relationship in their homes, in the order of their dates of birth with the oldest being selected first.
      (5) Nonvolunteers who have attained the age of 26 years in the order of their dates of birth with the youngest being selected first.
      (6) Nonvolunteers who have attained the age of 18 years and 6 months and who have not attained the age of 19 years in the order of their dates of birth with the oldest being selected first. In selecting registrants in the order of their dates of birth, if two or more registrants have the same date of birth they shall, as among themselves, be selected in alphabetical order.

      . See authorities and discussion in United States v. Lybrand, supra, 279 F.Supp. at 78-79.

      . In 1967, Selective Service regulations provided for drafting older registrants first. That order was later changed, of course, and younger men were being selected first until the suspension of the draft in January, 1973.

      . Yates v. United States, supra, note 1; Keene v. United States, 10 Cir., 1959, 266 F.2d 378, 380.

      . See, Oestereich v. Selective Service Board, supra.

      . “In a large draft board area perfect proof that no person exists who should have been drafted before the defendant but was not, would be improbable. On the other hand, there exists the possibility that capricious or arbitrary action was taken by a local board; a defendant has little opportunity to obtain proof of discrimination ; and there is no chance or procedure to review this issue before the agency. There ought, therefore, to be a means of exerting constant pressure on the local boards to adhere faithfully to the order of call regulation.”
      Yates v. United States, supra, 404 F.2d at 466.

      . Clearly the status of being a civil rights worker affords no special status under the Selective Service System. On the other hand, it would be less than juridically perceptive not to recognize the possibility of the Selective Service System being used to suppress or punish unpopular political activity. The Courts have therefore been particularly alert and diligent whenever sensitive and vulnerable First Amendment civil rights have been involved in Selective Service cases. See, e. g., Oestereich; Greer, supra, Wolff v. Selective Service Board No. 16, 2 Cir., 1967, 372 F.2d 817; Gutknecht v. United States, 1970, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532; Wills v. United States, 9 Cir., 1967, 384 F.2d 943; National Student Associated v. Hershey, 1969, 134 U.S.App.D.C. 56, 412 F.2d 1103; United States v. Spock, 1 Cir., 1969, 416 F.2d 165.

      . Johnson v. Mississippi, 1971, 403 U.S. 212, 91 S.Ct. 1778, 29 L.Ed.2d 423.

      . Cf. United States v. Cabbage, 6 Cir., 1970, 430 F.2d 1037, in which the I-A classification of the Defendant was held to be unlawful because the Selective Service file on him contained an irrelevant, prejudicial and impermissible summary of an FBI report charging that he was trying to organize black power followers and was being closely watched by the FBI.

      . The Executive Secretary was closely cross-examined on the meaning of each of these letters, but was unable to recall what she may have had in mind or what was the purpose of the quoted passages. At one point she could only comment “I’m sure it was of no importance,” explaining the reference to Johnson’s civil rights activities and their relation to Selective Service considerations.

      . There is a suggestion that in these actions the secretary was violating 32 C.F.R. § 1622.1(d) : “In classifying a registrant there shall be no discrimination for or against him because of his race, creed, or color, or because of his membership or activity in any labor, political, religious, or other organization. Each such registrant shall receive equal justice.” It is not the classification of Johnson, however, which is here called in question, but rather the subsequent order to report to alternative civilian service. Johnson was eventually classified I-O, as he had requested so the alleged racial or ideological bias did not have any effect.

      . Personal interest, bias or prejudice, may disqualify a local board member from participating in a particular case. See Haven v. United States, 9 Cir., 1968, 403 F.2d 384, 387, cert. dismissed, 1969, 393 U.S. 1114, 89 S.Ct. 926, 22 L.Ed.2d 120; United States v. Fielder, E.D.Mich., 1954, 136 F.Supp. 745; United States v. Cabbage, supra, note 17 (in which the reclassification of the Defendant was enjoined until the Selective Service Board reconstituted itself in accordance with the applicable regulations).

      . As it turns out, Dickman was not passed over in the September call as Johnson attempted to show. In the first place, the Executive Secretary testified that Dick-man was classified into Class I-O on August 22, 1967.
      The Regulation setting forth the order of call states that “suoh registrants * * * shall be selected and ordered to report for induction in the following order : * * * ” (emphasis added). The “such” refers to registrants “who have been classified in Class I-A and Class I-A-0 [and Class I-O] and have been found acceptable for service in the Armed Forces and to whom the local hoard has mailed a statement of acceptability (DD Form No. 62) at least 21 days before the date fixed for induction * * *” 32 C.F.R. § 1631.7(a) (eraphasis added). Additionally, the order to report for a physical examination would have to be mailed to the registrant and the results of the examination would have to be forwarded to the Board. In view of these facts it would have been virtually impossible for a registrant classified on August 22 to have been mailed a Statement of Acceptability at least 21 days before the succeeding September 20.
      More conclusively, it turns out that the Executive Secretary’s above quoted testimony about Dickman was mistaken. In post submission review of the record, the Court noticed potentially significant typographical errors in the transcript and remanded the case to the District Court for certification of a corrected record. To substantiate its version of what was actually said the Government introduced into the record the list of conscientious objectors to which the Executive Secretary was referring during her testimony. Our appellate examination of that document, now before us as a part of the record on appeal, reveals that there were five Dick-mans on the register of conscientious objectors of Local Board No. 23 and the Secretary, in apparent confusion from the rigorous cross-examination, misread the log. The Dickman who was older than Appellant (Daniel E.) had been classified into IV-D on July 20, 1967, well before the time Johnson was ordered to report for alternate service. The Dickman who was classified into I-O on August 22, 1967 and into IV-D some nine months, later (Douglas Lee) was born in 1949 and was therefore younger than Johnson. The jury, however, was unaware of this fact. Of course, we have not assumed to evaluate this or in any way consider it as to Johnson’s attack. But he cannot complain in that we recite since the record before the jury presented a picture much more helpful to him.

      . Of course, this instruction could have been worded more deftly to again place the burden clearly on the Government on this element, but in view of (i) the former instruction specifically placing the burden on the Government on this element and (ii) generally placing the burden on the Government on every issue, and (iii) in the absence of any objection to the manner in which this instruction was rephrased, the wording of this instruction did not constitute prejudicial error, if it was error.


author: VAN DUSEN, Circuit Judge. ADAMS, Circuit Judge

text:
    VIRGIN ISLANDS HOTEL ASSOCIATION (U.S.), INC., a corporation, Appellant, v. VIRGIN ISLANDS WATER & POWER AUTHORITY.
    No. 72-1996.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 19, 1973.
    Decided April 12, 1973.

      Evelyn N. Cooper, Isherwood & Colianni, Christiansted, St. Croix, V. I., for appellant.
    Ronald H. Tonkin, Atty. Gen. of the Virgin Islands, Sidney H. McKenzie, III, Asst. Atty. Gen., St. Thomas, V. I., Wallace L. Duncan, Duncan & Brown, Washington, D. C., for appellee.
    Before VAN DUSEN and ADAMS, Circuit Judges, and BARLOW, District Judge.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This is the second time that these parties, the Virgin Islands Hotel Association (the Hotel Association) and the Virgin Islands Water and Power Authority (the Authority), are before this court. On the first occasion, in Virgin Islands Hotel Ass’n v. Virgin Islands Water & Power Authority, 465 F.2d 1272 (3d Cir. 1972), this court upheld with modification an injunction the district court had issued against the Authority. By order of October 3, 1972, the district court vacated that injunction, and the Hotel Association appeals. We affirm the October 1972 order of the district court.

I. BACKGROUND

It is necessary only to summarize the facts stated in our earlier opinion and in the first opinion of the district court, reported at 54 F.R.D. 377 (D.V.I.1972).

In the late fall of 1971, the Authority became worried that its revenues would soon fail to provide the coverage over interest required by its outstanding debt instruments, with devastating impact on its ability to procure additional needed financing. On November 10, 1971, it issued a press release indicating its intention to raise electric rates by from about 19% for residential users to about 25% for large power users. Public hearings were held one week later, and on December 3 the Authority put the proposed increases into effect.

The Hotel Association was understandably upset, since its members are classified as “large power” users. It immediately sought an injunction against the rate increase. The district court ruled that the Authority had violated 30 V.I.C. § 105(a) (12) in two ways. First, because the Authority did not have at its disposal information on the cost of providing electricity to its various classes of customers, the Authority had failed “to determine . . . reasonable rates.” Second, the public hearings held pursuant to this section 105(a) (12) were altogether inadequate. Among other defects, notice to the public was too short to allow adequate preparation time and the reports the Authority relied on were not made available publicly until the first public hearing. The district court, on February 4, 1972, ordered the Authority to rescind the increases, to have made an appropriate study of costs (called a “rate” study), and to hold proper public hearings on the proposed increases. However, to avoid possible disruption, the court stayed this injunction for ten months.

By decision of June 28, 1972, this court, although ruling that the Authority’s determination of rates is not subject to judicial review, held that review is available when the Authority has “ignored a plain statutory duty, exceeded its jurisdiction, or committed constitutional error.” 465 F.2d at 1275. “The rate fixing procedure created by 30 V.I. C. § 105(a) (12) contemplates a meaningful public hearing at which interested persons can present their views and present evidence in support thereof. Concomitant with such a hearing are the essential requirements of adequate notice, dissemination to the public of the facts and figures on which the Authority relies, and an opportunity afforded to those attending the hearing to rebut such facts and figures.” Id. at 1276. This court agreed with the district court that the Authority’s hearings did not comply with these requirements. This court did not, however, agree that § 105(a) (12) imposed any duty “to make rate studies as such,” id. at 1276, and modified the district court injunction accordingly.

To comply with this court’s mandate, the Authority commissioned new reports from R. W. Beck & Associates and from D.S.S. Engineering, Inc. (hereinafter D.S.S.); it also had Jackson & Moreland prepare an update of the report they had prepared earlier. On July 5, 1972, the Authority issued a press release stating, inter alia, that new hearings would be held and that the earlier Jackson &. Moreland study was available to the public. Beginning on August 12, 1972, the Authority had published in the local newspapers notices that new public hearings would be held on September 11, 12 and 13. The Authority made the Beck and the Jackson & Moreland reports available to the public on August 8, the D.S.S. report on August 28.

The Authority held these hearings as scheduled. At each hearing various officials of the Authority commented on the proposed rate increases, and representatives from the three engineering firms summarized and discussed the contents of their reports. In accordance with the procedure announced at the beginning of each meeting, all persons could submit written questions, which would be answered by either an official of the Authority or a representative from one of the firms. In addition, all persons could submit written statements or, at the conclusion of the Authority’s presentation, deliver oral statements. According to an affidavit of the Authority’s Executive Director, “All questions which were asked were responded to. In addition, any person desiring to make a statement with regard to the proposed subject rate increases were [sic] permitted to do so.”

The Secretary of the Hotel Association’s St. Thomas-St. John Chapter testified at the September 12 hearing held on St. Thomas. In addition, counsel for the Hotel Association and an expert the Association had hired, Constance W. Bary, attended the September 13 hearing held at Christiansted on St. Croix. Counsel objected to the testimony not being sworn and not being subject to oral cross-examination. Counsel had no written questions to submit, but was allowed to give orally an “offer of proof” of what the Hotel Association would have established if an opportunity for cross-examination had been granted. Admitting that Mr. Bary had not been contacted until September 7, such counsel also requested that the hearing be adjourned until November 9. This adjournment would give the Authority time to prepare, and for Mr. Bary to review, data which counsel said were necessary to examine the reasonability of rates. Counsel and Mr. Bary then stated that without such data the Hotel Association was unable to demonstrate the unreasonableness of the proposed rates.

Following the hearings, the Authority determined that the rates it had proposed the previous December were reasonable. The Authority then filed a motion in the district court to vacate the injunction. The district court, after considering the Hotel Association’s allegations of substantive and procedural infirmities, vacated the injunction by its October 1972 order.

II. PROCEDURAL ISSUES

The Hotel Association argues either that the September 1972 hearings did not comply with 30 V.I.C. § 105(a)(12) as interpreted by this court in deciding the previous appeal or that, assuming compliance, the statute itself fails to provide the due process of law required by 48 U.S.C. § 1561 (1970). Specifically, the Hotel Association urges that the notice of the hearings and the prior dissemination of the engineering studies were inadequate; that these deficiencies were perpetuated by the denial of the adjournment it requested; that the hearings themselves should have been trial-type, rather than legislative-type; that they should have been conducted by an impartial hearing officer; and that in making its final decision the Authority improperly relied on evidence not in the record.

“Whether [due process] requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account.” Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1515, 4 L.Ed.2d 1307 (1960). Accord, Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Marine Space Enclosures, Inc. v. Federal Maritime Commission, 137 U.S.App.D.C. 9, 420 F.2d 577, 589-590 (1969).

While this court, in its prior opinion, did not state precisely how many days in advance the schedule of the new hearings had to be announced or the reports disseminated, it stressed the importance of notice and dissemination adequate under the circumstances. To be considered, for example, was the complex nature of the data.

The Hotel Association now complains that notice of about one month was too short. What the Hotel Association in effect asks us to ignore is the district court’s injunction which had been stayed for only ten months. As of June 28, when this court handed down its affirmance of that injunction, it was clear to all concerned that the Authority would have to hold new hearings. Moreover, the July 5th press release was sufficient to warn the Hotel Association of the need to retain its expert. Thus, the Hotel Association has only itself to blame for waiting until the end of August before seeking an expert qualified to present its case. Similarly, the question whether or not the public had enough time to evaluate the three engineering studies should be considered in light of the ability of the public under these circumstances to have been ready for the reports. We are not prepared to reverse the decision of the district court and rule as a matter of law that notice and dissemination were inadequate.

The Hotel Association’s request for a two-month adjournment was properly denied, particularly since the Hotel Association did not' make the request sooner, for example, when the schedule of meetings was announced, but at the last meeting held. Moreover, the argument the Authority presented to the district court, that any additional delay would seriously hamper the sale of new bonds, is a persuasive factor.

The Hotel Association’s most telling argument is that the hearings should have been conducted not as legislative hearings but as adversary proceedings. The chief difference between the two modes as regards this case is that a trial-type hearing typically permits oral cross-examination of witnesses. Our earlier opinion did not decide this question.

The Administrative Procedure Act, 5 U.S.C. § 551 et seq. (1970), is instructive. Rule-making proceedings are controlled by § 553, which requires only that interested parties be given adequate notice of the proposed rule, see § 553(b), and “an opportunity to participate in the rule making through submission of written data, views or arguments with or without opportunity for oral presentation,” § 553(c). The procedure for adjudication is set out in §§ 554 and 556, under which “[a] party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts,” § 556(d). If the Administrative Procedure Act governed the Authority’s rate-making, the appropriate proceeding would be rule-making, because the rates in question have only prospective application. § 551(4); Law Motor Freight, Inc. v. CAB, 364 F.2d 139, 143-144 (1st Cir. 1966); see Jones v. District of Columbia, 116 U.S.App.D.C. 301, 323 F.2d 306, 308-309 (1963).

A second distinction which has been relied on by the federal courts is whether the proposed agency action affects a small or a large number of persons. Compare Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915), with Londoner v. Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103 (1908). The two rationales underlying this distinction are that decisions affecting large numbers of persons are likely to be more concerned with general policies than with specific facts and that permitting many persons to cross-examine each witness would make proceedings totally unmanageable. See United States v. Florida East Coast Railway Co., 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973). In the present case, of course, the proposed increases affected every person in the Virgin Islands. We do not know, however, that there would have been a multitude of cross-examiners at the September hearings if cross-examination had been available.

A third factor, somewhat overlapping the second, is whether the facts in question are “legislative” or “adjudicative.” See 1 K. C. Davis, Administrative Law Treatise, § 702 (1958). That is, will the agency decision depend chiefly on policy considerations or on specific, especially historical facts which are provable or disprovable? The Authority’s decision here appears to have been made, as 30 V.I.C. § 105(a) provides, in reliance on both types of facts — for example, the costs of providing electric service to its various classes of customers and “making the benefits [of water and electric power systems] available to the inhabitants of the Virgin Islands in the widest economic manner consistent with sound fiscal management, and by this means to promote the general welfare and increase commerce and prosperity. ...” § 105(a).

While Professor Davis would thus suggest that cross-examination would be appropriate at least as to the adjudicative facts, a number of courts have held in cases which, like the one before us, involved complex and technical factual controversies, that written submissions, possibly supplemented by oral argument, suffice. United States v. Florida East Coast Railway Co., supra; Phillips Petroleum Co. v. F. P. C., 475 F.2d 842 (10th Cir. 1973); National Air Carriers Association v. CAB, 141 U.S.App.D.C. 31, 436 F.2d 185, 191-194 (1970); American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310, 359 F.2d 624 (1966); cases cited note 10. One recent case countenances the restriction that questions be submitted in writing. International Harvester Co. v. Ruckelshaus, 478 F.2d 615 (D.C.Cir., 1973), at p. 18-23. On the other hand, the absence here of any specific statutory procedures such as the Administrative Procedure Act necessitates greater leeway than those courts had.

The present case does not compel us to hold that cross-examination will never be required in hearings under 30 V.I.C. § 105(a) (12). Instead, we rely on the failure of the Hotel Association to have demonstrated the inadequacy of written questions, which were permitted. The Hotel Association could easily have informed itself of this aspect of the Authority’s procedures by attending the September 11 meeting. In fact, a representative of the Hotel Association did attend the September 12 meeting on St. Thomas and no doubt could have told counsel in time to prepare for the September 13 hearing that questions had to be in writing. We have carefully examined the Hotel Association’s “offer of proof” at the September 13 hearing, and no reason appears to us that the points there raised could not have been formulated in written questions. Consequently, we hold that the Hotel Association has not shown that it was prejudiced, and on this basis we decline to reverse the district' court. See Woodbury v. McKinnon, 447 F.2d 839, 844 (5th Cir. 1971); Citizens for Allegan County, Inc. v. FPC, 134 U.S.App.D.C. 229, 414 F.2d 1125, 1134 (D.C.Cir. 1969).

The Hotel Association’s other two procedural claims can be quickly disposed of. First, it did not appear that the officials who conducted the hearings in any way intimidated counsel for the Hotel Association or otherwise deprived it of privileges available to other participants. Moreover, because the Board of the Authority had the responsibility for the final decision on the rate increases, it is not at all evident how having a trial examiner take testimony would have altered that decision in any way. Second, in claiming that the Authority went beyond what was in the record at the hearings, the Hotel Association relies on certain language in the resolution in which the Authority adopted the increases. We find that the Hotel Association’s interpretation of this language is contrary to its obvious meaning.

III. SUBSTANTIVE ISSUES

The Hotel Association contends that the Authority did not have adequate information on which to determine whether or not the rates were reasonable. The essence of this argument is that the Authority does not know how to allocate various expenses between water and power distribution and does not know, how much it costs it to supply power to the various types of power users. However, the three engineering studies introduced at the hearings seem to provide just this type of information. The Hotel Association has clearly failed to demonstrate the type of statutory violation subject to review by this court. See V. I. Hotel Association v. V. I. Water & Power Authority, supra, 465 F.2d at 1274.

Finally, we note that the Hotel Association did not attempt to establish in the Authority’s September 1972 hearings or in the subsequent district court proceeding, and does not now urge, that the increase in electric rates is confiscatory. At the district court proceeding held on December 21, 1971, where the Hotel Association challenged the first set of hearings held by the Authority, there was uneontradicted testimony by various witnesses that the electric power bills of Virgin Islands hotels accounted for between four and eight percent of all operating costs (including debt service). See N.T. 136, 143, 145-146, 153. With the proposed increase in mind, the district court at that time computed that the rate increases would increase overall operating costs by about two percent, an amount which it concluded was not going to put the hotels out of business. N.T. 175-176.

The October 3, 1972, order of the district court will be affirmed.

ADAMS, Circuit Judge

(concurring).

I concur in the result reached by the majority opinion in this case.

The appellant raises two contentions in this appeal: (1) that the procedures are inconsistent with the due process clause of the Constitution, and (2) that the procedure employed by the Virgin Islands Water & Power Authority contravenes the statute under which the rate increases were to be approved.

The opinion in United States v. Florida East Coast Railway Co., 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973), is the most recent pronouncement by the Supreme Court regarding the type of proceeding acceptable when an administrative agency promulgates a new rate schedule. It makes clear that, at this time, there is no requirement of a traditional adversary hearing in a broad rate-making context; such a deficiency is not violative of due process.

In the present case, we are dealing with rate-making proceedings conducted pursuant to a statutory plan of the legislature of the Virgin Islands, as interpreted by this Court. Virgin Islands Hotel Ass’n v. Virgin Islands Water & Power Authority, 465 F.2d 1272 (3d Cir. 1972). The import of our earlier decision was that in rate-making proceedings pursuant to the statute in question a “meaningful hearing” must be afforded those who would challenge the proposed rates. The parameters of such a hearing have not yet been delineated with any particularity.

Although as stated above, the traditional adversary “trial-type” proceedings do not appear to be mandated by the Constitution, I believe that in matters as important as the establishment of utility rates for large groups of citizens and businesses, a greater degree of precision and equity can be achieved when those opposing the proposed rates have an adequate opportunity to review the proposal with its supporting data, and an occasion to test the proposed rate and its underlying bases through the medium of cross-examining those responsible for its promulgation. Perhaps in the context of utility rate-making these would be central ingredients of a truly “meaningful” hearing.

The proper resolution of this case, however, does not require that we reach the more difficult question, i. e., were the proceedings in this case so deficient so as not to comport with the concept of “meaningful hearing.” As the majority opinion points out, counsel for the Hotel Association did not object to the amount of time alloted for study of the proposal at the time of its dissemination. In addition, counsel did not establish, certainly on the record, the various inquiries or lines of inquiry the Hotel Association would have propounded had they been given the opportunity to cross-examine the proponents of the rate, nor did counsel avail himself of what opportunity for questioning was afforded him.

For these reasons, I concur in the result reached in this case.

      . This affidavit was submitted with the Authority’s Motion to Vacate Injunction. The Hotel Association neither filed a counter-affidavit nor disputed these assertions at the September 1972 hearings held on the motion.

      . Transcript of September 13 hearing at Christiansted, at 74-75; September 29 bearing on Motion to Vacate Injunction, at 7-9.

      . Transcript of September 13 hearing at Christiansted, at 7-12.

      . Id. at 51-57.

      . Id. at 59.

      . Id. at 63, 67-71.

      . We note that the Authority’s decision as to rates concerns rates which the members of the Hotel Association must pay. That factor distinguishes this case from cases such as Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1936), where an arm of the Government fixed prices that regulated persons could charge to customers. The distinction is that the latter situation is much more fraught with the potential for taking without just compensation and, consequently, places heavier demands on procedural due process. We recognize, however, that there could be such a taking in the present situation.

      . September 29, 1972, hearing on Motion to Vacate Injunction, at 9. Counsel for the Authority reiterated the desirability of a prompt resolution in oral argument before this court. Apparently one practical, and perhaps legal, requirement of selling these municipal bonds is an opinion letter from counsel that there is no litigation in progress which would materially affect the bonds.

      . The Hotel Association also is dissatisifed with the failure of the testimony to be sworn. Because the persons who testified did so in their professional capacities, it does not seem particularly significant that they were not under oath.

      . Law Motor Freight also holds that, as regards setting agency policy for the future, 5 U.S.C. § 553 provides due process of law. Accord, NLRB v. Delaware Valley Armaments, Inc., 431 F.2d 494, 499 (3d Cir. 1970); California Citizens Band Association, Inc. v. United States, 375 F. 2d 43, 50 (9th Cir. 1967).

      . This court is reluctant to hold that cross-examination is never needed, since the Authority has such broad discretion not subject to judicial review, see 465 F. 2d at 1274, and since, in the view of several commentators, cross-examination of experts on technical matters can contribute significantly to the decision-making process. Robinson, The Making of Administrative Policy: Another Look at Rulemaking and Adjudication and Administrative Reform, 118 U.Pa.L.Rev. 485, 521-524 (1970); Spritzer, Uses of the Summary Power to Suspend Rates: An Examination of Federal Regulatory Agency Practices, 120 U.Pa.L.Rev. 39, 95-97 (1971); Comment, Public Participation in Federal Administrative Proceedings, 120 U.Pa.L.Rev. 702, 743-744 (1972).
      However, as noted at page 1269 above, several federal cases have held that cross-examination is not mandated in such a situation.

      . The Hotel Association made no attempt to offer similar data at the September 1972 district court hearing.

      . In United States v. Florida East Coast Ry., supra, the railroad challenged the establishment by the Interstate Commerce Commission of incentive per diem rates on freight cars. These rates were promulgated after a hearing which did not include several of the elements of an adversary proceeding. Upholding the implementation of the rates, the Court stated that the Commission’s procedures satisfied the requirements of the Administrative Procedure Act, 5 U.S.C. § 551 et seq. and were “not inconsistent with prior decisions of this Court.” 410 U.S. at 246, 93 S.Ct. at 821. Several of these earlier decisions, e. g., Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938); Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093 (1937); ICC v. Louisville & Nashville R. Co., 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431 (1913), had been thought by some to indicate that due process in rate-making procedures included a requirement of “trial-type” hearings. Justice Douglas, dissenting in Florida Fast Coast Ry. Co. asserted:
      “I do not believe it is within our traditional concepts of due process to allow an administrative agency to saddle anyone with a new rate, charge, or fee without a full hearing that includes the right to present oral testimony, cross-examine witnesses and to present oral argument.” 410 U.S. at 247, 93 S.Ct. at 822.

      . 465 F.2d at 1275.

      . An impartial presiding officer at any proceeding would also appear to be an important element in insuring a “meaningful” hearing. In the present case the proceedings were chaired by the Vice-Chairman of the Water & Power Authority with the aid of an Assistant Attorney-General of the Virgin Islands. Although in view of the disposition of this case, this factor does not render these hearings other than a “meaningful hearing,” my concern with an arrangement that places the control of the proceeding in the hands of the proponent of the rate increase, and the proponent’s counsel, must be noted.


author: STEPHENSON, Circuit Judge.

text:
    Betsy A. JENNINGS et al., Appellants, v. Ilus W. DAVIS et al., Appellees.
    No. 72-1590.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 16, 1973.
    Decided April 20, 1973.

      Philip C. Ehli, and Ben E. Pener, Kansas City, Mo., filed appendix and appellants’ brief.

      Manfred Maier, Kansas City, Mo., filed brief of appellees, Lewis, Carr and Divilbliss.
    Harry P. Thomson, Jr., and George E. Leonard, Kansas City, Mo., filed brief and supplemental appendix of appellees, Davis, Kelly, Gilmore, Wells and Willits.
    Before MATTHES, Chief Judge, and ROSS and STEPHENSON, Circuit Judges.
   STEPHENSON, Circuit Judge.

This is an appeal from a dismissal of appellants’ civil rights action under 42 U.S.C. § 1983 for failure to state a claim upon which relief can be granted.

The complaint alleges that on November 20, 1969, appellant, Mrs. Jennings, was arrested on a speeding violation by a Kansas City, Missouri, police officer and was directed to report to the 63d street police station; that at the station appellant overheard two police officers “talking, bragging and ridiculing the behavior of traffic violators that they had arrested”, which remarks caused appellant to feel “humiliated, frightened and intimidatedthat appellant inquired of these officers why they “were not out arresting murderers and thiefs who were out committing all these crimes right under their noses;” and that Noffke, a civilian clerk at the station, thereupon committed an assault and battery upon appellant and engaged in an unlawful search and seizure of her person, all in violation of her constitutional rights. Appellant alleged that she suffered physical and emotional injuries requiring hospitalization, seeking actual and punitive damages.' She and her husband joined common law tort violations in separate counts with this § 1983 action.

Appellants subsequently were allowed to dismiss the suit without prejudice with respect to Noffke, whom they believed to be “judgment proof” and to have been discharged by the Board of Police Commissioners. This appeal is from a dismissal under Rule 12(b) (6) of the Federal Rules of Civil Procedure of the § 1983 claim against the remaining defendants, who are: The five members of the Board of Police Commissioners of the Kansas City Police Department; Clarence M. Kelley, the Chief of Police; Carr, the desk sergeant and Lewis, a patrolman at the 63d street station; and Divilbiss, the arresting officer.

All defendants, save Noffke, moved to dismiss the complaint under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Each attached an affidavit to his motion. The Chief of Police and the Board of Police Commissioners members each stated, under oath, that he had no personal knowledge of the incident, was not present at the time and did not direct or order the arrest or subsequent action relating to appellant. Lewis stated that although he was present at the time of the incident, he was in no way involved in any act directed toward appellant and had no supervisory authority. Carr stated that he was present but did not direct, order or become involved in the incident and was unable to intervene. Divilbiss admitted giving appellant a speeding summons but stated he was not present and had no knowledge of the incident.

The trial court, D.C., 339 F.Supp. 919, dismissed the complaint against the Chief of Police and the Board members holding that, as a matter of law, where damages are sought under § 1983 “the doctrine of respondeat superior is not available to impose vicarious liability upon a defendant who has no personal involvement in the alleged deprivation of plaintiff’s federally-protected rights.” In a separate ruling the trial court dismissed the cause against Divilbiss, Lewis and Carr, holding that under the facts alleged in the complaint, no constitutionally protected right had been violated by the three.

Although the action was dismissed under Rule 12(b) (6), matter outside the pleadings was presented by way of affidavits and exhibits which were not excluded by the trial court. Under Rule 12(b), the dismissal constitutes disposition by summary judgment as provided in Rule 56 on the basis that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972); Minnesota Bearing Company v. White Motor Corporation, 470 F.2d 1323 (CA8 1973) and Abramson v. Mitchell, 459 F.2d 955 (CA8 1972).

42 U.S.C. § 1983, of course, must “be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961).

THE ARRESTING OFFICER

We affirm the trial court’s dismissal of the complaint with respect to patrolman Divilbiss. The only allegation in the complaint in regard to this appellee was that Divilbiss arrested appellant for speeding on the day of the incident and told her to report to the 63d street station. The appeal with respect to this defendant is patently frivolous.

THE POLICE CHIEF and BOARD MEMBERS

We agree with the trial court’s holding that this action is not maintainable against the appellees under the doctrine of respondeat superior, nor do we find the complaint sufficient on any other basis of liability.

The appellants admittedly placed heavy reliance upon the respondeat superior theory in pursuing this action. We, of course, are to afford remedial statutes such as § 1983 a liberal construction, but expressly reject the application of the doctrine on this set of facts, as have the vast majority of federal courts in cases such as this. See, e. g., Adams v. Pate, 445 F.2d 105 (CA7 1971); Madison v. Gerstein, 440 F.2d 338 (CA5 1971); Dunham v. Crosby, 435 F.2d 1177 (CA1 1970); Campbell v. Anderson, 335 F.Supp. 483 (D.Del.1971); Sanberg v. Daley, 306 F.Supp. 277 (N.D.Ill.1969) and Jordan v. Kelly, 223 F. Supp. 731 (W.D.Mo.1963). But, compare, Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971), rev’d on other grounds, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973) and Hill v. Toll, 320 F.Supp; 185 (E.D.Pa.1970).

The respondeat superior principle holds liable the “innocent” master (with the infamous “deep pocket”) for the torts committed by his servant in the course of his employment. The modern justification for respondeat superior is that it is

. a rule of policy, a deliberate allocation of a risk. The losses caused by the torts of employees, which is a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing business. They are placed upon the employer because, having engaged in an enterprise which will, on the basis of all past experience, involve harm to others through the torts of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them; and because he is better able to absorb them, and to distribute them, through prices, rates or liability insurance, to the public, and so to shift them to society, to the community at large. Added to this is the makeweight argument that an employer who is held strictly liable is under the greatest incentive to be careful in the selection, instruction and supervision of his servants, and to take every precaution to see that the enterprise is conducted safely, (emphasis added) W. Prosser, Law of Torts, 458-459 (4th ed. 1971).

With such justification in mind the “master” of course, is and can only be the municipality employing the appellees. It is the city who set the enterprise in motion, who “profits” from the appellees’ labor and who, if held liable in such instances, can by its powers of taxation spread the resulting expenditures amongst the community at large. Kansas City, however, is not a defendant in this action, nor could it be under § 1983. Monroe v. Pape, 365 U.S. 167, 187-192, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

We also believe that appellants’ claim cannot succeed on the theory of negligence.

The two requisites for a § 1983 cause of action are: (1) an allegation that the conduct complained of subjected the complainant to a deprivation of rights, privileges, or immunities secured by the Constitution and laws of the United States, and (2) an allegation that the conduct complained of was done or caused to have been done by a person acting under the color of law. Basista v. Weir, 340 F.2d 74, 79 (CA3 1965).

Generally, liability for negligence arises only from affirmative action. Where, however, one has an affirmative duty to act and he fails to act accordingly, he may be held liable for his nonfeasance if his omission is unreasonable under the circumstances. Huey v. Barloga, 277 F.Supp. 864, 872 (N.D.Ill.1967). Appellants have not alleged any affirmative conduct so their claim against the appellees obviously is grounded upon nonfeasance. But no Board member or the Chief is alleged to have been present at this incident or to have had the duty, opportunity, or the ability to intervene in order to prevent Noffke’s alleged unreasonable search and seizure of Mrs. Jennings. And to extend the general duty of these appellees to prudently select, educate and supervise police department employees to an isolated, spontaneous incident such as this would be beyond reason.

CARR and LEWIS

Carr was the Desk Sergeant and Lewis a patrolman who the complaint alleged were both present at the 63d street station when Noffke seized and searched Mrs. Jennings. Nothing further is alleged in the complaint with respect to these police officers. While the complaint against these appellees might be sufficient to withstand a motion to dismiss under a negligence theory, as previously indicated we here treat the motion as one for summary judgment. Carr in his affidavit stated that he was neither involved in the incident nor was he “able to intervene between plaintiff and defendant Noffke at the time of the alleged occurrence.” The trial court thereupon issued an order for the appellants to show cause why the action should not be dismissed “In view of the absence of any factual allegations tending to implicate defendants ... in a deprivation of the federally-protected rights of Betsy Jennings.”

In such instance, appellants could not then rest upon the mere allega-' tions of their pleadings, but should have “set forth specific facts showing that there is a genuine issue for trial.” See Rule 56(e). Since appellants did not so respond, summary judgment could appropriately be entered against them.

We further find that the trial court did not abuse its discretion in dismissing the pendant state claims against the appellees. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

Affirmed.

      . Rule 12(b) reads in pertinent part:
      If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

      . It has not been shown that under the circumstances of this case, the doctrine could be applied in Missouri state courts. See 42 U.S.C. § 1988.

      . Both were bystanders at the incident and one or both may have had a duty to intervene (assuming the opportunity existed) in order to prevent the alleged deprivation of Mrs. Jennings’ constitutional right to be free from unreasonable searches and seizures. See, Byrd v. Brishke, 466 F.2d 6 (CA7 1972). See also, Via v. Cliff, 470 F.2d 271, 275-276 (CA3 1972).

      . Lewis in his affidavit admitted that he was present at the station but stated he “was in no way involved in any act directed toward plaintiff nor had he any supervisory authority.”

      . Rule 56(e) provides in pertinent part:
      [A]n adverse party may not rest upon the mere allegations of denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.


author: TIMBERS, Circuit Judge:

text:
    John H. BEGLEY and Lawrence J. Sinnott, Plaintiffs-Appellees, v. FORD MOTOR COMPANY, Defendant-Appellant, and Empire Lincoln-Mercury, Inc., Defendant.
    No. 321, Docket 72-1775.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 15, 1973.
    Decided April 12, 1973.

      William F. McNulty, New York City (Daniel J. Coughlin and Anthony J. McNulty, New York City, on the brief), for defendant-appellant Ford Motor Co.
    Harold M. Hershman, New York City (Murray Weitman, Marvin H. Leieher and Hershman & Leieher, New York City, on the brief), for plaintiff s-appellees.
    Before FRIENDLY, Chief Judge, and OAKES and TIMBERS, Circuit Judges.
   TIMBERS, Circuit Judge:

Plaintiffs John H. Begley and Lawrence J. Sinnott commenced this diversity action in the Southern District of New York to recover damages for personal injuries sustained as the result of an automobile collision on the Connecticut Turnpike on April 22, 1966. Plaintiffs claimed that the 1965 Lincoln Continental in which they were riding home from work (Begley driving, Sinnott a front seat passenger) collided with the rear of another automobile, both proceeding eastbound, at the Greenwich toll station when the Lincoln’s brakes failed to operate. The brake failure allegedly was caused by defective brake fluid supplied by defendant Ford Motor Company (Ford) through one of its dealers, Eastman Motors of Greenwich (Eastman Motors), the brakes having been tested a month prior to the accident by-defendant Empire Lincoln-Mercury, Inc. (Empire). Plaintiffs’ claims - against Ford were based on negligence and breach of warranty in the manufacture of the brake fluid.

After a five day jury trial before Lloyd F. MacMahon, District Judge, verdicts in favor of Begley and Sinnott in amounts of $25,000 and $14,000, respectively, were returned against Ford. The jury also returned a defendant’s verdict in favor of Empire. Only Ford has appealed. The issues raised on appeal are simple and straightforward. They involve the sufficiency of the evidence, the admissibility of certain expert testimony, and the propriety of portions of the jury charge. Finding no reversible error, we affirm.

I.

There was evidence at the trial from which the jury could have found as follows.

The Lincoln involved in the accident was owned by Great Lakes Carbon Corporation, of which Sinnott was an officer and Begley an employee. The vehicle was assigned to Sinnott for his use. It had been purchased from Eastman Motors in April 1965. Shortly after the purchase, Sinnott on several occasions complained to the service department of Eastman Motors that the brakes would not function until the pedal was close to the floorboard. On October 19, 1965, Eastman Motors made certain modifications to the braking system of the vehicle. This was done pursuant to a General Sales Bulletin, referred to as “Campaign L65-07”, which Ford issued in September 1965 to its dealers and sales representatives. Sin-not took the vehicle back to Eastman Motors on January 11, 1966, at which time he complained that the brakes “were catching too close to the floor”. On the morning of March 21, 1966 — one month before the accident here involved —the vehicle experienced total brake failure on the East River Drive while in bumper to bumper traffic. It was taken to Empire’s service station in mid-Manhattan where the braking system was checked and some new brake fluid which had been furnished by Ford was added to the existing fluid.

Employees of both Eastman Motors and Empire testified at the trial that they had received numerous complaints concerning the braking mechanism — particularly “a low brake pedal” — on other 1965 Lincoln Continentals.

Plaintiffs’ principal witness at the trial was Roger Harvey, an expert in chemical engineering. Harvey had inspected the vehicle on May 25, May 27 and August 31, 1966, and had tested a specimen of brake fluid taken from the vehicle. He determined that the brake fluid contained 4.4 per cent water by volume which in his opinion indicated that the fluid was in a defective condition. He testified that, due to an excess of water, the boiling point of the brake fluid was only 250-280 degrees Fahrenheit rather than the normal 550 degrees. This meant, according to Harvey, that when the brakes became heated the water in the fluid would boil, thus creating a vapor lock in the hydraulic system; and the vapor lock would prevent the brakes from operating properly.

II.

Ford’s first contention is that plaintiffs failed to establish a prima facie case against it in either negligence or breach of warranty. Specifically, Ford argues that plaintiffs failed to show that the brake fluid which Harvey determined was defective was in that condition when supplied by Ford to its dealers. In short, Ford says that there was insufficient evidence for submission of the case to the jury. We disagree.

After examining the record as a whole and viewing the proof in the light most favorable to plaintiffs, we are satisfied that the case was properly submitted to the jury. Park v. Village of Waverly, 457 F.2d 1139, 1140 (2 Cir. 1972), citing Hannan v. Schmitt, 18 A.D.2d 854, 855, 236 N.Y.S.2d 107, 108 (3d Dept. 1963) (court “must take the view of the proof most favorable to the verdict.”) Plaintiffs’ essential claim is that Ford breached its implied warranty that the brake fluid supplied to its dealers was fit for the purpose of bringing the vehicle to a halt under normal driving conditions. See Conn.Gen.Stat., §§ 42a-2-314 and 42a-2-315 (Rev.of 1958); Corneliuson v. Arthur Drug Stores, Inc., 153 Conn. 134, 136-40, 214 A.2d 676, 678-80 (1965); Torrance v. Durisol, Inc., 20 Conn.Supp. 62, 64-65, 122 A.2d 589, 591 (Super.Ct.1956) (breach of warranty); and Basko v. Sterling Drug, Inc., 416 F.2d 417, 424-29 (2 Cir. 1969); Mitchell v. Miller, 26 Conn.Supp. 142, 145-50, 214 A.2d 694, 696-98 (Super.Ct.1965) (strict tort liability).

Plaintiffs adduced substantial evidence, through the testimony of Harvey, that the brake fluid which he tested was defective and not fit for the purpose of stopping the vehicle. Ford argues that, since brake fluid is hygroscopic (absorbs water), the water content of the fluid could have been increased after it left Ford’s possession, through no negligence of Ford, and before it was tested by Harvey.

Viewing the evidence in the light most favorable to plaintiffs, as we must at this stage, plaintiffs adduced sufficient evidence to indicate that such absorption did not occur after the accident. Following the accident, the vehicle was kept inside a Greenwich garage. The sample tested by Harvey was first removed from the vehicle with a clean, dry battery syringe. An insurance investigator delivered the fluid to an attorney who, after marking it for identification, delivered it to Harvey in a clean, dry glass bottle sealed with a metallic cap.

There also was evidence that it was the inherent characteristics of the fluid itself, and not water absorption, which caused the fluid to be defective. Harvey testified that in his opinion a substantial amount of water could not be absorbed; and that the water in the fluid came from a breakdown under heat and pressure of the ethers which made up the chemical composition of the fluid. There also was evidence of prior difficulties with this vehicle, as well as with other 1965 Lincoln Continentals, which were symptomatic of defective brake fluid. Such evidence, goes a considerable distance toward establishing that the fluid sold by Ford was defectiye.

We are satisfied that there was sufficient evidence in support of each of the essential elements of plaintiffs’ case to warrant its submission to the jury. See Kridler v. Ford Motor Company, 422 F. 2d 1182, 1184 (3 Cir. 1970). We so hold.

III.

Ford next contends that the trial judge should have stricken the testimony of plaintiffs’ expert witness, Harvey, on the ground that no proper foundation had been laid for his testimony. We find no merit in this claim.

Ford’s essential argument here is that there was insufficient evidence that the brake fluid tested by Harvey was the same fluid which was in the vehicle at the time of the accident. As we have stated above, there was evidence that the fluid tested was that removed from the vehicle. Moreover, there was evidence that the fluid was removed and transported in a manner which would not allow substantial absorption of water. While there was some conflicting evidence as to the chain of possession of the jar and as to the cleanliness of the equipment used, that goes to the weight rather than the admissibility of the evidence. Scott v. Spanjer Bros., Inc., 298 F.2d 928, 931-32 (2 Cir. 1962); Kridler v. Ford Motor Company, supra, 422 F.2d at 1186-87; Obolensky v. Saldana Schmier, 409 F.2d 52, 55 (1 Cir. 1969). A trial judge necessarily has broad discretion in determining the adequacy of the foundation for expert testimony, and particularly the point in the trial when such foundation becomes adequate.

We are satisfied that the trial judge here did not abuse his discretion in denying Ford’s motion to strike the testimony of plaintiffs’ expert witness.

IV.

Ford’s final contention is that the trial judge’s charge was so confusing and prejudicial as to require a new trial. We disagree.

The court did state at several points in its charge that the jury might find that the brake mechanism was defective. In discussing the claim of negligence, for example, the court said, “I do not say . . . that these brakes were defective, but that is the question essentially which you have to decide.” And on the breach of warranty claim, the court instructed the jury that “you have to ask yourself whether this brake was defective because Ford Motor Company failed to exercise a reasonable degree of care to make sure that this product was reasonably fit for its intended use.”

In response to the exception taken by Ford’s counsel at the conclusion of the charge, the court gave the following brief supplemental instruction:

“Counsel has called my attention to the fact that I said to you, ‘[I]f you find that the brake mechanism was defective, you could find negligence or breach of warranty’. It is true that the only evidence in this case is that the mechanism itself was not defective. There was some testimony to the effect that the fluid was wrong fluid, that it boiled at too low a boiling point and formed a vapor lock which caused brake failure. That is my recollection. Of course it is your recollection that controls.”

Since there was no evidence as to any defect in the braking system other than the defective brake fluid, Ford contends that the court’s charge improperly permitted the jury to find such a defect. We do not agree.

The charge taken as a whole properly instructed the jury that plaintiffs’ claim was that the braking system, of which the brake fluid was an integral part, was defective. Although at times the court referred generally to defective brakes and a defective brake mechanism, it was made clear that the only basis in the evidence for plaintiffs’ claims of negligence and breach of warranty was the defective brake fluid. Furthermore, since the main charge came immediately after the summations of counsel, the jury surely knew, even before the court’s charge, that plaintiffs’ claims related only to the defective brake fluid. It was well within the trial judge’s discretion in charging the jury not to superimpose a further summary of the essential claims of the parties.

We hold that the trial judge correctly charged the jury.

Affirmed.

      . Ford was subpoenaed to bring to the trial in May 1972 its records of complaints concerning the braking mechanism on the 1965 Lincoln Continentals. Frank Graves, of the Inspection Service Division of Ford, testified that records of complaints more than two years old had been destroyed and no" record had been kept of documents destroyed. Ford was aware that the instant lawsuit had been commenced on April 21, 1967, within one year of the accident.

      . In the instant case, as in Park v. Village of Waverly, supra, 457 F.2d at 1140 n. 1, the parties agree that state law should be applied in determining whether the case should have been submitted to the jury. In the context of motions in diversity cases for a directed verdict or for judgment n. o. v., both the Supreme Court and our Court have declined to decide whether the state or federal standard as to the sufficiency of the evidence is controlling. See Simblest v. Maynard, 427 F.2d 1, 4-5 (2 Cir. 1970), and authorities there cited. Compare Boeing Company v. Shipman, 411 F.2d 365 (5 Cir. 1969) (en banc). Since the New York courts would regard this as a procedural question on which they would apply their own law, it is appropriate here to rely on the New York standard. As in Park v. Village of Waverly, supra, there is no contention that application of the federal rather than the state standard would require a different result.

      . There appears to have been no evidence adduced at trial tending to show that Ford had not exercised reasonable care in the manufacture or testing of the brake fluid. It therefore was error for the court to send the negligence cause of action to the jury with the instructions it gave. Nevertheless, we are satisfied that this was harmless error. The court’s instructions on negligence and breach of warranty were virtually identical, except for the additional element in the negligence action of a need to prove lack of reasonable care. The jury could not have found for the plaintiffs on the negligence theory without also finding a breach of warranty.

      . Since the defective brake fluid apparently was sold to plaintiffs in Connecticut, Connecticut law governs in determining what must be shown by plaintiffs to recover against Ford, assuming the breach of warranty action is a contract action. Even if the action is regarded as sounding in tort, Connecticut law would apply since the accident occurred in Connecticut and involved Connecticut residents. Although it appears that the brake fluid was manufactured outside the state, we consider Connecticut’s contacts to be more significant. See Pearson v. Northeast Airlines, Inc., 309 F.2d 553 (2 Cir. 1962) (en banc); McQuaide v. Bridgeport Brass Company, 190 F.Supp. 252 (D.Conn. 1960); Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963).

      . Ford argues, as a related claim, that allowing Harvey to testify subject to connection impaired Ford’s ability to cross-examine him. New aspects of the trial of a case are more clearly within the discretion of the judge than the order of proof. It is not uncommon to allow a party to offer evidence subject to connection. We find no abuse of discretion in that respect here. See McCormick on Evidence § 58 (1954).

      . Counsel for Ford failed to submit any requests to charge before his summation and before the court charged the jury. It was not until after the charge had been given that counsel for Ford submitted his requests to charge. This late submission failed to comply with Fed.R.Civ.P. 51, which requires that if requests to charge are to be submitted that must be done at the close of the evidence. The late submission here also ignored the specific order of the court that requests to charge be submitted before the opening of the trial.


author: PER CURIAM: GOLDBERG, Circuit Judge, with whom JOHN R. BROWN, Chief Judge, joins,

text:
    Herminio H. GALLEGOS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 72-1851.
    United States Court of Appeals, Fifth Circuit.
    May 24, 1973.
    Rehearing Denied June 19, 1973.
    John Hugh Buck, Houston, Tex., (Court-appointed), for petitioner-appellant.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ronald F. Ederer, Asst. U. S. Atty., El Paso, Tex., for respondent-appellee.
    Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODGOLD, DYER, SIMPSON, MORGAN, CLARK, IN-GRAHAM and RONEY, Circuit Judges.
   PER CURIAM:

The Government has confessed error in the use of the supplemental information filed in the district court based upon a violation of 26 U.S.C.A. § 2593(a) in view of the privilege against self-incrimination.

The opinion of a panel of this Court published September 14, 1972, 466 F.2d 740, is therefore withdrawn and the cause is remanded to the district court for such further proceedings as may be appropriate.

GOLDBERG, Circuit Judge, with whom JOHN R. BROWN, Chief Judge, joins,

specially concurring:

Without any semblance of reluctance, I concur in the remand of this case for the reasons set forth in the per curiam opinion of the en banc court. I would only add, without intimating any necessity therefor, that my concurrence is predicated upon the proposition that the per curiam opinion neither confirms nor repudiates the original panel opinion reported at 466 F.2d 740.

      . The en banc court thus remands at this time only on the third of the three grounds on which the original panel remanded the case. See 466 F.2d at 742.


author: BY THE COURT:

text:
    James E. BAKER et al., Petitioners-Appellants, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 72-2471.
    United States Court of Appeals, Fifth Circuit.
    May 14, 1973.
    James DeAnda, Philip Kent Maxwell, Corpus Christi, Tex., Ed Idar, Jr., San Antonio, Tex., Frances T. Cruz, Houston, Tex., Mario Obledo, Alice Daniel, William Bennett Turner, San Francisco, Cal., for petitioners-appellants.
    Crawford Martin, Atty. Gen., W. Barton Boling, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    John W. Clark, Jr., Dallas, Tex., for American Bar Assn., amicus curiae.
    Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.
   BY THE COURT:

The Court on its own motion having determined to consider this cause en banc,

It is ordered that the submission of this cause to a panel of Judges Goldberg, Ainsworth and Ingraham on December 6, 1972 is hereby vacated, and that the above entitled cause shall be heard en banc on briefs with oral argument at a date hereafter to be fixed. The Clerk shall set a briefing schedule for the filing of supplemental briefs.


author: PER CURIAM:

text:
    J. D. SANDERS, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 73-1335
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 23, 1973.
    Alan S. Dale, Houston, Tex. (Court-appointed), for petitioner-appellant.
    John L. Hill, Atty. Gen., E. Bruce Curry, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before BELL, GODBOLD and INGRAHAM, Circuit Judges.

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

   PER CURIAM:

Appellant, a Texas state prisoner serving life for murder with malice, assigns as error only four of the several contentions previously asserted in three separate federal habeas petitions.

The assignments of error are based on two instances of alleged improper and prejudicial argument by the state prosecutor ; the failure of the state trial court to make available to appellant the transcript of the testimony of a witness before the grand jury so as to develop inconsistencies in the trial testimony of the witness; and lastly, the concealment of exculpatory evidence by the state. The district court found no merit in these contentions.

We conclude that the findings of fact and conclusions of law entered by the district court against appellant are amply supported in fact and in law. The judgment against appellant is therefore due to be and it is