author: CUMMINGS, Circuit Judge. STEVENS, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Carl FIORITO, Defendant-Appellant.
    No. 73-1617.
    United States Court of Appeals, Seventh Circuit.
    Heard April 1, 1974.
    Decided June 28,1974.

      Ronald P. Alwin, Chicago, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., Walter Jones, Jr., Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, and CUMMINGS and STEVENS, Circuit Judges.
   CUMMINGS, Circuit Judge.

In November 1971, a 15-count indictment was returned against eleven persons alleging narcotic offenses in violation of what was then 21 U.S.C. § 174. Appellant Carl Fiorito was named only in the first count, which charged him and the ten co-defendarits with violating the conspiracy portion of said statute. The grand jury alleged that the eleven defendants conspired “to receive, conceal, buy, sell and facilitate the transportation, concealment and sale of narcotic drugs after being unlawfully imported and brought into the United States, knowing the same to have been imported and brought into the United States contrary to law.” Parts of the conspiracy charged were that the defendants would unlawfully procure quantities of heroin and then sell and distribute it in the Northern District of Illinois, while concealing “the purpose of and the acts done in furtherance of the conspiracy.” Six overt acts were specifically alleged in Count I. Fiorito was named only in the sixth, which read as follows:

“On or about February 15, 1971, defendant Fred Coduto had a telephone conversation with defendant Carl Fiorito in the Northern District of Illinois, Eastern Division.”

After alleging that overt act, the indictment realleged each allegation in the remaining Counts as an overt act under Count I. Fiorito’s name does not appear in the balance of the indictment.

For various reasons immaterial to Fiorito’s appeal, the case against each of the co-defendants was resolved before and during trial, and he proceeded to verdict alone.

The February 15, 1971, telephone conversation between Fiorito and Coduto specified in Count I of the indictment as overt act 6 was obtained through a wire-tap on Coduto’s phone. The transcript of that conversation was as follows:

“FRED CODUTO: Hello.
CARL FIORITO: What do you say, Diavolo ?
FRED CODUTO: What’s happening?
CARL FIORITO: Not much.
FRED CODUTO: Yah.
CARL FIORITO: Did you do any good, like the last time ?
FRED CODUTO: No, I, Madonna —I saw you Saturday.
CARL FIORITO: Yah, I know.
FRED CODUTO: You know, over there.
CARL FIORITO: Yah.
FRED CODUTO: And, uh, well that guy did he tell you.
CARL FIORITO: No, he told me there’s a lot of trouble.
FRED CODUTO: Well, ah, their just looking for me, ah, I had to go into court a couple of weeks ago.
CARL FIORITO: Yah you?
FRED CODUTO: Yah.
CARL FIORITO: For what?
FRED CODUTO: Ah. They nailed me — they wanted to nail me for that fine again. And I had to hire a lawyer to go in, and ... we got it all straightened out. We got the time straightened out, everything.
CARL FIORITO: Hmm, huh.
FRED CODUTO: They wanted to add four hundred and, ah seventeen more days. They wanted to hire, ah, they wanted to nail me for the fine.
•X- -X- *
CARL FIORITO: I didn’t know that. I know that’s the first time I heard that?
FRED CODUTO: Yah.
CARL FIORITO: How about that other thing. The one, you know that, the last time I saw you.
FRED CODUTO: Nothing, I, I, doing, I know nothing. Carl, they’re like bees. [According to the Government, this may refer to narcotics agents.]
CARL FIORITO: Huh?
FRED CODUTO: They’re like a bunch of bees.
CARL FIORITO: Yah?
FRED CODUTO: Yah.
CARL FIORITO: You can avoid that.
FRED CODUTO: Might as well just cool it and leave it. You know. About that, but that other guy ain’t got nothing anyway. Nobody’s got nothing.
CARL FIORITO: No just, huh?
FRED CODUTO: No, if,-ah, anything happens I’ll get in touch with ya.
CARL FIORITO: Alright.
FRED CODUTO: It should be about a week or ten days. I don’t know.
CARL FIORITO: Okay, take it easy.
FRED CODUTO: Okay.
CARL FIORITO: Alright, I’ll see you then, Hey.”

The only other evidence relating to Fiorito was contained in informer Paul Moore’s testimony about his January 13, 1971, and January 24, 1971, conversations with Coduto at a River Forest, Illinois, restaurant. The testimony as to the pertinent part of the first conversation was as follows:

“Fred Coduto said, ‘How do you like my stuff?’ I said, ‘It’s good. No doubt about it. It is the best we’ve ever bought.’ He said, ‘You are making more off of mine than Fiorito’s aren’t you?’ I said, T never said I was dealing with him.’ He said, ‘Yeah, Carl on the North Side.’ I said, ‘Well, it is true that we are making more off of your stuff than anybody else’s.’ He said, ‘Well, it is not all Fiorito’s fault. He cuts the stuff with sugar and screws it up a lot of times, but we actually got the same source, the same guy.’ He said, ‘And sometimes if our guy doesn’t have stuff I will duke [supply] him myself.’ And, Coduto said, ‘Sometimes the source will screw Fiorito because he is not too sharp. He doesn’t know what he is getting. But when we go into buy our stuff we go in with $150,000 to $200,000 at a crack. So, our guy wouldn’t screw us. Besides, we would go over and pick him up and bring him over here and chop his head off if he did that to us. He can’t do that to us.’ ”

The pertinent part of the January 24 Moore-Coduto conversation at the same restaurant was related by Moore as follows :

“I told Fred Coduto, ‘It is not a very good idea with all this heat for you to be duking Carl on the North Side.’ He said, ‘Who? Me?’ I said, ‘Yeah. Last week you said you were duking him.’ He said, ‘Only small stuff.’ ”

Two other conversations between Coduto and Moore but not mentioning Fiorito are relied upon by the Government to explain the February 15 conversation between Fiorito and Coduto, charged as overt act 6. During a January 1 conversation at Jim and Pete’s Restaurant in River Forest, Coduto told Moore, “I am feeling heat. They [perhaps narcotics agents, the Government suggests] are swarming all around me. I don’t know what to do.” This was in the context of a discussion of narcotics transactions between Moore and Coduto. During a February 22 conversation at the same restaurant, Moore and Coduto agreed to meet the following evening at 7:30 p. m. at the Paddle Wheel Restaurant, also in River Forest, where Coduto would sell Moore 1 kilogram of heroin. Coduto told Moore that he could order all he wanted because, Coduto said, “I am getting a big order in, about 10 kis, within the week.” Moore said that one kilo would suffice. No sale took place on February 23 because four of the defendants were arrested that day. Fiorito was arrested several days later.

The jury found Fiorito guilty under Count I. He was given a 12-year sentence, with recommendation that he be placed on probation for the last two years. This appeal followed. We reverse.

Fiorito’s principal argument is that there was insufficient evidence to establish that he joined the conspiracy charged in Count I. At the oral argument, counsel for the Government was candid enough to admit that its “evidence is indeed thin.” We conclude that the evidence is too thin for affirmance.

In a conspiracy case, it is axiomatic that declarations of a eo-conspirator may not be admitted in evidence against a defendant unless there is independent evidence establishing his participation in the conspiracy. Glasser v. United States, 315 U.S. 60, 74-75, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Cerone, 452 F.2d 274, 283 (7th Cir. 1971), certiorari denied, 405 U.S. 964, 92 S.Ct. 1169, 31 L.Ed.2d 240; United States v. Gallagher, 437 F.2d 1191 (7th Cir. 1971), relied on by the trial judge, did not purport to change this rule. There Judge Castle cited appellant’s own statements as “independent evidence of appellant’s connection with the conspiracy which serves to make the declarations of his brother Thomas to Foster admissible against appellant.” 437 F.2d at 1193. Consequently, hearsay conversations between Coduto and Moore cannot be admitted into evidence against Fiorito unless the Government has submitted independent evidence establishing Fiorito’s participation. The primary independent evidence adduced to show Fiorito’s participation in the conspiracy was his February 15 telephone conversation with Coduto, su'pm. The first half of that conversation obviously has nothing to do with the present case, so that the Government must depend on the final 33 lines of the transcript of that intercepted telephone call. By itself, that portion of the telephone conversation simply cannot be construed to connect Fiorito with the conspiracy prove'd against Coduto and the principal co-defendants. The most it shows is that Fiorito was informed that Coduto felt some persons were like “bees.” The Government argues that “bees” refers to narcotics agents. That may be so, but there is no support for that theory in the February 15 conversation. For example, the conversation makes just as much sense if “bees” is taken to refer to Coduto’s creditors. Even if the conversation refers to a narcotics conspiracy between Coduto and Fiorito, there is nothing to show that Fiorito was part of the larger conspiracy charged in the indictment.

As Judge McMillen correctly observed during the course of the trial, the February 15 conversation really did not prove anything. As he added, it would be “bootstrapping” to keep Fiorito in the case by reference to the January 13 and 24 conversations between Moore and Coduto. Coduto’s statements in those conversations about Fiorito’s drug transactions are clearly hearsay as to Fiorito.

However, the January 1 and February 22 conversations are differently situated. Coduto’s state of mind and word usage in these conversations have marginal relevance without regard to the truth of what Coduto stated. Thus the Government’s brief can be construed as arguing that Coduto’s comment that he was feeling heat and his use of the metaphor “swarming” in a conversation about narcotics on January 1 shows that his use of the similar metaphor “like a bunch of bees” on February 15 referred to narcotics agents. Similarly, it may be argued that Coduto’s belief on February 22 that he was getting a large shipment of heroin within a week shows, without regard to whether such a shipment was actually due, that he referred to heroin on February 15 when he said to Fiorito “* * * if, ah, anything happens I’ll get in touch with ya. * * * It should be about a week or ten days.” The issue is whether these two conversations, admitted for these limited purposes, together with the conversation of February 15, are sufficient to tie Fiorito to the conspiracy and render the hearsay conversations of January 13 and 24 admissible.

Although the independent evidence need not tie Fiorito to the conspiracy beyond a reasonable doubt and slight evidence is sufficient, we find it insufficient here. Coduto’s fondness for the “swarming bees” metaphor does not support an inference that he probably used that metaphor only in one context. Nor could the jury assume Coduto’s life to be so uneventful that a statement that a something — not a delivery, but an unidentified “it”- — -should happen between February 22 and 25 probably refers to a delivery which a week later was expected between February 23 and 29. The jury had to speculate too much to reach its verdict. The Government has cited many cases where conspiracy defendants were convicted on thin evidence, but none so thin as this. Since we hold that the Government failed to prove by admissible evidence that Fiorito joined the conspiracy engaged in by Coduto and other defendants, we need not reach the other questions presented by the briefs.

The conviction must be and is reversed.

STEVENS, Circuit Judge

(dissenting).

If the conversations between Moore and Coduto were admissible against Fiorito, the evidence supporting Fiorito’s conviction was plainly sufficient. The admissibility of the Moore-Coduto conversations depends, however, on whether the wiretapped conversations between Coduto and Fiorito on February 15, 1971, implicated Fiorito in the conspiracy. In answering that question, three points must be kept in mind: First, direct, nonhearsay evidence unequivocally identified Coduto as a distributor of heroin; second, nothing more than “slight” evidence of a connection between Fiorito and Coduto is required to make the Moore-Coduto conversations admissible against Fiorito; and third, in ruling on the admissibility of ambiguous evidence, the trial judge may properly draw inferences favorable to the government.

Having established by clear, convincing and unquestionably admissible evidence that Coduto was a middleman in the heroin trade, the conversation between Fiorito and Coduto which Judge Cummings has quoted reasonably gives rise'to these inferences: (1) Fiorito called Coduto for a reason which was not purely social; (2) Fiorito and Coduto were discussing a commercial transaction in which they might both participate; (3) the transaction was of a character which they did not desire to discuss frankly and openly; (4) Coduto was not in a position to participate immediately, but expected to be able to do so in a week or 10 days; (5) the activities of a group of unidentified persons made it appropriate to take no action for a short time — presumably those persons were law enforcement agents; (6) Coduto had certain legal difficulties about which he wanted Fiorito to be informed; and (7) since Coduto was engaged in the heroin traffic, it is inferable that his legal problems related to his business and that Fiorito would so understand.

Although none of these inferences may have been compelled, in view of the conversants’ manner of speaking, in my opinion each inference was not only permissible but indeed entirely reasonable for the trial judge to draw in making his appraisal of the admissibility of other evidence shedding further light on the relationship between these two persons. Collectively, these inferences certainly constitute more than the requisite “slight” evidence of a connection between Fiorito and Coduto’s heroin business. Since the other evidence in the record is therefore admissible against Fiorito and amply establishes his guilt beyond a reasonable doubt, I would affirm his conviction.

      . On November 1, 1972, Count XV of the indictment was dismissed on motion of the Government.

       The only portion of the conversation which is omitted contains certain uncouth language and a reference to a federal judge and a trial lawyer. The omitted segment is consistent with my view that the conversation as a whole may reasonably be interpreted as relating to the illegal business activities of Coduto.


source: Caselaw Access Project

author: COFFIN, Chief Judge.

license: Public Domain

text:
    SYLVANIA ELECTRIC PRODUCTS, INC., Plaintiff, Appellee, v. Henry B. BRAINERD, Defendant, Appellant.
    No. 74-1059.
    United States Court of Appeals, First Circuit.
    Argued May 8, 1974.
    Decided June 20, 1974.
    Robert B. Russell, Boston, Mass., with whom Russell & Nields, Boston, Mass., was on brief, for appellant.
    Morris Relson, New York City, with whom David R. Francescani, New York City, John M. Harrington, Jr., Ropes & Gray, Boston, Mass., and Darby & Darby, P. C.', New York City, were on brief, for appellee.
    Before COFFIN, Chief Judge, and Mc-ENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

This is an appeal from a decision of the district court, reported at 369 F. Supp. 468 (D.Mass.1974), finding the defendant-appellant’s patent void, 35 U. S.C. §§ 101-103, and, alternatively, finding that the patent was not infringed by the system developed and marketed by plaintiff-appellee. The court granted appellee’s motion for declaratory judgment and dismissed the counterclaim. Because we agree that appellant’s patent is void, we do not reach the infringement issue.

The Brainerd patent concerns a mechanism designed to automatically identify railroad cars as they pass particular points on the track. The mechanism employs a beam of light which is re-fleeted by special color-coded strips of retro-reflective material mounted on the side of the cars. The returning light is received by the device and, by means of optics, photo-cells, and electronic circuitry, the color-coding of the strips of material is translated into data which is transmitted to a central point. A more detailed description may be found in the district court opinion.

It is not seriously disputed that in broadest outline the Brainerd patent was anticipated by the London Transport’s Bus Electronic Scanning Indicator (BESI) System, a system devised for the purpose of keeping track of London’s more than seven thousand buses. The district court found that all of the significant elements of the Brainerd patent could be found in BESI or in other prior art, or were obvious to one skilled in the art, and that these elements “do not coact in a novel or unusual manner to produce an additional unexpected function” and thus that the combination of them was obvious, applying the standards of Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966) and Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162 (1950). We believe that the lower court applied the correct legal standard and that its findings of fact were not erroneous. We see no useful purpose served in trying to improve upon its comprehensive yet succinct discussion. We therefore adopt Part I of that court’s opinion as the opinion of this court, with the following additional comments.

Most of the arguments made on appeal challenging the district court’s holding of invalidity merely repeat points rejected by that court. And to the extent that appellant urges that the Brainerd patent as a whole was not anticipated by BESI it creates a straw man. The findings of the district court as to anticipation went only to whether the key elements of the Brainerd patent were anticipated in the prior art. The court found that each of these elements was anticipated, obvious, or both. But as to the patent as a whole the finding was that the combination of these elements was obvious. Thus, the basic issue is one of obviousness.

Appellant repeatedly charges the district court with the legal sin of using hindsight. We recognize that in judging the question of obviousness hindsight represents a snare and a trap for the unwary. See Graham v. John Deere Co., supra, 383 U.S. at 36, but we think that the court was fully aware of both the problem and the standard to be applied. Indeed, there is in the record evidence bearing upon this very point. The deposition of Mr. Readman, one of the developers of the BESI System, indicates that many of the features used in the Brainerd patent but not found in BESI were sufficiently obvious to have occurred to a fellow “skilled artisan” as possibilities. These include the use of Scotchlite as the material for the reflective strips, a coaxial alignment of sending and receiving optical units, and even the applicability of such a system to railroads. The use of a third color state was also considered by Readman (and his colleague, Pick) in a prior art publication. Thus, the possibility that the presence of real creativity has been obscured by after-the-fact analysis is a remote one.

Finally, as is inevitable in a patent case, appellant charges the court with oversimplifying its discussion of the several critical elements and disregarding the precise language of the patent claims. We have reviewed the particular criticisms and find them insubstantial. All are matters which, while they arguably could have persuaded a judge, need not have. Similarly, the court’s refusal to find appellant’s combination of elements nonobvious was well within its proper discretion. See Koppers Co. v. Foster Grant Co., 396 F.2d 370 (1st Cir. 1968).

It may well be that the Brainerd patent was a “good idea”, but there is much more to be shown before the idea becomes patentable, Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., supra, 340 U.S. at 153.

Affirmed.

      . Retro-reflective material has the characteristic of reflecting light in a non-diffuse manner and back along the same path as it came from.

      . On this issue we find only one minor point at which the district court opinion is at all vulnerable. The court indicated that the use of a light limiting slit (designed to “see” less than one colored strip at a time) is disclosed in the prior art Orthuber patent. While it may well be that the apertures described in that patent are meant to have such a function, this is not explicitly revealed in the patent description itself. But we fully agree with the alternative conclusion of the court that the use of such a slit was obvious to a skilled artisan and that its presence in the Brainerd patent does not elevate the whole to a level of non-obviousness.


author: MERRILL, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ben DIAZ, Defendant-Appellant.
    No. 74-1177.
    United States Court of Appeals, Ninth Circuit.
    June 24, 1974.
    Harold A. Donegan, Jr. (argued), Scottsdale, Ariz., for defendant-appellant.
    Gerald S. Frank, Asst. U. S. Atty. (argued), Tucson, Ariz., for plaintiff-appellee.
    Before MERRILL and KOELSCH, Circuit Judges, and SWEIGERT, District Judge.

       Honorable William T. Sweigert, Senior United States District Judge for the Northern District of Oalifornia, sitting by designation.

   OPINION

MERRILL, Circuit Judge:

Appellant was charged in 1973 with appropriating “objects of antiquity situated on lands owned and controlled by the Government of the United States without the permission of the Secretary of Interior,” contrary to 16 U.S.C. § 433.

The items appropriated were face masks found in a cave on the San Carlos Indian Reservation. They were identified by a San Carlos medicine man as having been made in 1969 or 1970 by another medicine man personally known to him. A professor of anthropology at the University of Arizona testified as an expert on the religious systems of the Western Apache in the State of Arizona. He testified that artifacts such as those appropriated by appellant were used by the Apache Indians in religious ceremonies and that after the conclusion of ceremonies the artifacts traditionally were deposited in remote places on the reservation for religious reasons; that the artifacts are never allowed off the reservation and that they are considered sacred and may not be handled by anyone except the medicine man once they are stored in a cave. He further testified that in anthropological terms “object of antiquity” could include something that was made just yesterday if related to religious or social traditions of long standing. In his opinion the artifacts in the instant case were antiquities despite the fact that they were no more than three or four years old.

We have no doubt as to the wisdom of the legislative judgment (made close to seventy years ago and reinforced by experiences of the present in the despoliation of public lands) that public interest in and respect for the culture and heritage of native Americans requires protection of their sacred places, past and present, against commercial plundering.

Protection, however, can involve resort to terms that, absent legislative definition, can have different meanings to different people. One must be able to know, with reasonable certainty, when he has happened on an area forbidden to his pick and shovel and what objects he must leave as he has found them.

Nowhere here do we find any definition of such terms as “ruin” or “monument” (whether historic or prehistoric) or “object of antiquity.” The statute does not limit itself to Indian reservations or to Indian relics. Hobbyists who explore the desert and its ghost towns for arrowheads and antique bottles could arguably find themselves within the Act’s proscriptions. Counsel on neither side was able to cite an instance prior to this in which conviction under the statute was sought by the United States.

In Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926), the Court, in discussing the due process requirement of legislative specificity, stated:

“That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.”

In Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972), it was stated:

“Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. [Footnote omitted] Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”

Here there was no notice whatsoever given by the statute that the word “antiquity” can have reference not only to the age of an object but also to the use for which the object was made and to which it was put, subjects not likely to be of common knowledge.

In our judgment the statute, by use of undefined terms of uncommon usage, is fatally vague in violation of the due process clause of the Constitution.

Judgment reversed.

      . That section provides:
      “Any person who shall appropriate, excavate, injure, or destroy any historic or prehistoric ruin or monument, or any object of antiquity, situated on lands owned or controlled by the Government of the United States, without the permission of the Secretary of the Department of the Government having jurisdiction over the lands on which said antiquities are situated, shall, upon conviction, be fined in a sum of not more than $500 or be imprisoned for a period of not more than ninety days, or shall suffer both fine and imprisonment, in the discretion of the court.”


author: PER CURIAM.

text:
    MICHIGAN CITY FEDERATION OF TEACHERS, LOCAL NO. 399, AFL-CIO, an unincorporated association, and Del McMillan, individually, and representative of a class, Plaintiffs-Appellees, v. MICHIGAN CITY AREA SCHOOLS, a corporation, Defendant, Michigan City Education Association, Intervening Defendant-Appellant.
    No. 73-1480.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 11, 1974.
    Decided April 16, 1974.

      Jonathan L. Birge, Indianapolis, Ind., Terry V. Lehr, South Bend, Ind., for defendant-appellant.
    Thomas H. Singer, South Bend, Ind., for plaintiffs-appellees.
    Before SWYGERT, Chief Judge, KI-LE Y, Senior Circuit Judge, and CUMMINGS, Circuit Judge.
   PER CURIAM.

Plaintiffs, Michigan City Federation of Teachers, Local No. 399, AFL-CIO, and certain individuals of that union (Federation), filed suit against the School Board of Michigan City Area Schools (School Board). The complaint charged violations of constitutional rights arising out of the School Board’s granting of exclusive use of certain internal channels of communication to the Michigan City Education Association (MCEA) which was the exclusive bargaining representative of the teachers. The MCEA intervened as party defendant and moved to dismiss. The district court overruled the motion and thereafter entered the Federation’s request for injunction. The MCEA has appealed. We vacate and remand.

On October 8, 1968 the School Board authorized recognition of the MCEA as the exclusive bargaining agent on behalf of all certified, non-administrative employees of the Michigan City Area Schools. On August 8, 1972 the School Board entered into a collective bargaining contract with the MCEA which provided that the MCEA would have the following exclusive rights: (1) to post notices of activities and matters of the MCEA on teacher bulletin boards upon securing appropriate permission; (2) to whatever part of the School Board meeting agenda is released to newspapers and radio stations in advance of the meeting; (3) to use facilities in any’ school building upon proper reservation; (4) to use school equipment, such as typewriters, mimeograph machines and other duplicating equipment, calculating machines and all types of audio-visual equipment when such equipment is not otherwise in use; (5) to announce the time and place of its first meeting at the first school orientation meeting; (6) to use the district mail service and teacher mail boxes for communication to teachers; (7) to names and addresses of new teachers who have accepted appointments in the Michigan City Area Schools; (8) to invite teachers to remain after a building meeting to hear brief reports and announcements; and (9) to request replacement of items for discussion on the School Board meeting agenda.

The Federation which is a minority labor organization instituted this action demanding the same privileges as the exclusive representative. It is alleged that the denial of the exclusive privileges is a violation of the First and Fourteenth Amendments. Accordingly, the Federation sought injunctive relief against the exclusivity of the privileges enumerated above. The district court entered an injunction in every area in which the MCEA had exclusive use of certain internal channels of communication noting that “these privileges do effect the ability of the plaintiff union to communicate with its members and all other teachers especially since such privileges are being extended to the opposing union.” The district court in so holding found that the instant case was controlled by principles of constitutional law.

The MCEA had raised essentially two issues for our review: (1) Whether a public employer’s grant of the use of certain privileges solely to an exclusive representative of public employees is controlled by principles of labor law rather than constitutional law and (2) even if constitutional principles are applicable, whether the State had a sufficiently important interest to justify the grant of privileges ?

We note, at the outset, that the Federation on appeal characterized the exclusive privileges complained of as constituting an unfair labor practice within the prohibitions of a recently enacted Indiana statute relating to collective bargaining between school corporations and certain employees. P.L. No. 217 (July 1, 1973). This new law brought into existence the Indiana Education Relations Board (Board) whose jurisdiction embodies the determination of unfair labor practices. Since the. instant case raises an unfair labor practice we hold that the judgment of the district court be vacated and the cause be remanded with directions that it be held for the purpose of giving the Federation an opportunity to file an unfair labor practice charge with the newly created Board. We think it appropriate that the Federation exhaust all available State remedies and the Board have an opportunity to make a determination in the first instance.

For the reasons stated above the judgment of the district court is vacated and the cause remanded in accordance with this opinion.

       Although the Board came into existence subsequent to the filing of this suit and entry of the district court’s determination we are not foreclosed from applying this statute at the time of our ruling.


author: GIBSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Thomas Ralph BENGIMINA, Appellant.
    No. 74-1060.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 14, 1974.
    Decided June 17, 1974.

      Joseph R. Schlozman, Kansas City, Mo., for appellant.
    Philip Adams, Atty., Dept, of Justice, Washington, D. C., for appellee.
    Before VOGEL, Senior Circuit Judge, and GIBSON and WEBSTER, Circuit Judges.
   GIBSON, Circuit Judge.

Thomas Bengimina appeals his conviction of willful failure to file timely income tax returns for 1967, 1968, and 1969 in violation of 26 U.S.C. § 7203. The sole issue presented for our review is whether the trial court erred when it charged the jury that “ [defendant's conduct is ‘willful’ if he acted through a careless or reckless disregard of the law.” A timely, specific objection to this portion of the charge was made by defendant and renewed in his motion for new trial.

Defendant argues that the Court’s charge could have allowed the jury to convict him for careless or reckless conduct as opposed to the intentional or deliberate conduct required under § 7203. The Government relies upon a footnote to our opinion in Lumetta v. United States, 362 F.2d 644 (8th Cir. 1966) as support for its proposition that “willful” includes a careless disregard of the law. We agree with defendant that the Court’s charge erroneously stated the law. Further, we think this error so prejudiced defendant as to require reversal and a remand for a new trial.

The Government’s reliance on Lumetta is misplaced. We there held that the Government in a § 7203 prosecution must prove:

[T]hat the failure to file a return was prompted by a bad purpose and without grounds for believing that the failure to file was lawful, as opposed to a careless, thoughtless or inadvertent oversight.

Lumetta, supra at 646.

Further, to the extent that dicta in Lumetta indicates that “a careless. disregard” may establish willfulness, we think it overruled by the Supreme Court decision in Bishop v. United States, 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973). Bishop clearly establishes that “a careless disregard” cannot be equated with the deliberate and intentional failure to file needed to establish willfulness.

Certiorari was granted in Bishop to determine the meaning of “willfully” as used in the tax crime statutes. Bishop laid to rest any distinction between “willful” as used in tax-felony cases, i.e. 26 U.S.C. §§ 7201 and 7206, and tax-misdemeanor cases, i. e. 26 U.S.C. §§ 7203 and 7207. Willful is to have the same meaning in both classes of cases. Bishop, supra at 349. This requirement of willfulness has been formulated as:

“[B]ad faith or evil intent,” Murdock, 290 U.S., at 398, or “evil motive and want of justification in view of all the financial circumstances of the taxpayer,” Spies, 317 U.S., at 498, or knowledge that the taxpayer “should have reported more income than he did.” Sansone, 380 U.S., at 353.

Bishop v. United States, supra at 360. See also United States v. Engle, 458 F.2d 1017, 1020 (8th Cir. 1972); United States v. Lumetta, supra at 646.

A careless or reckless disregard does not elevate a defendant's conduct to “willful” as that term is employed in § 7203. Rather, “willful” requires that the jury determine that the failure to file was deliberate and intentional. Willful cannot fairly be equated with careless or reckless. The denotation of willful is deliberate and intentional. Its connotations are many, depending to a considerable extent on the context in which the word is used. Careless and reckless are more accurately equated with a negligent or inadvertent disregard of the proprieties of any given situation. Thus, while “willful” is not considered the opposite of “careless” and “reckless”, the latter do give a contrary connotation to “willful” when used in conjunction with negligence, inadvertence or mistake. These latter terms were used, and properly so, in the Court’s charge to distinguish willful conduct from conduct that is not willful, in other words, deliberate and intentional.

It was therefore error for the Court to charge that a “careless or reckless disregard” may be considered willful under § 7203. Having thus determined that the inclusion of “careless and reckless disregard” in the Court’s charge was error, we further have determined this error requires reversal due to the prejudicial effect it might have had on the jury.

In considering the correctness of the Court’s instructions, we, of course, examine and consider them as a whole, Rowell v. United States, 368 F.2d 957, 960 (8th Cir. 1966). Yet, while the remainder of the Court’s charge accurately and fairly stated the law, we are convinced the possible harm to defendant from the incorrect portion was not overcome by the remainder of the instructions.

The nature of Bengimina’s defense was that his failure to file was not willful. He did not dispute the fact that his returns for the years in question were not timely filed; rather, he attempted to demonstrate that he relied on advice given by his accountant not to file his current tax returns while those for previous years were being investigated. Of course, it is for the jury to determine whether this defense would succeed, but as the instructions as given could have allowed the jury to convict for actions falling short of the deliberate and intentional failure to file required by § 7203, his ability to present a defense was prejudiced. See United States v. Vitiello, supra at 243; Haner v. United States, supra at 794.

There was evidence favorable to defendant tending to show that his failure to file was at most careless and ill-advised, and evidence favorable to the Government tending to show his failure was deliberate and intentional, thus “willful”. As the jury could have found him guilty under either rationale based upon the Court’s charge, we are unable to say whether they chose the correct one.

The judgment of conviction is reversed and the cause is remanded for further proceedings consistent with this opinion.

      . 26 U.S.C. § 7203 provides :
      Any person * * * required by this title or by regulations made under authority thereof to make a return * * * who willfully fails to * * * make such return * * * at the time or times required by law or regulations, shall * * * be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 1 year, or both, together with the costs of prosecution.

      . The challenged instruction reads in its entirety :
      The specific intent of willfullness is an essential element of the crime of failure to file an income tax return. The word “willfully” used in connection with this offense means deliberately and intentionally, and without justifiable excuse, or with the wrongful purpose of deliberately intending not to file a return which defendant knew he should have filed, in order to prevent the governmenc from knowing facts material to the determination of tax liability.
      Defendant’s conduct is “willful” if he acted through a careless or. reckless disregard of the law. It is not “willful” if he acted through negligence, inadvertence or mistake, or due to his good faith misunderstanding of the requirements of the law.
      Except for the challenged sentence, the instruction follows that in 2 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions, § 52.31 (1970).

      . In Vitiello v. United States, 363 F.2d 240 (3rd Cir. 1966), a charge on willfulness under § 7203 that:
      [T]he word is employed to characterize such conduct as marked by a careless dis

        regard whether or not one has a right to so do.

      * ^ *
      * * * And by the term wilfully, as used in the statute, means with a bad purpose or without grounds for believing that one’s aot is lawful or with suoh a careless disregard whether one has a right so to aot. (emphasis in original),
      was held to be plain error of a prejudicial nature requiring reversal.
      In Haner v. United States, 315 F.2d 792 (5th Cir. 1963), a portion of the court’s charge on willfulness under § 7203 was :
      You are further instructed that the word “willful” as used in this statute means with a bad purpose, or without ground for believing that one’s act is lawful, or with a careless disregard whether one has the right to so aot. (emphasis in original). The court concluded this was plain error requiring reversal as “that instruction permitted the jury to convict him for carelessness or inadvertence, contrary to the statutory requirement that the failure to file must be willful.” Haner, supra at 794.
      Judge Wisdom dissented. He argued that “careless disregard” as used in the context of the instructions given could only mean the reckless, irresponsible flouting of the law, and could not be confused by a jury with carelessness in the sense of negligence.

      . Our note read:
      Although the trial court’s instruction in the case here does not present the issue, we would be hard pressed to exclude from the definition of “willful” “a careless disregard” to obey the law. See Judge Wisdom’s dissent in Haner v. United States, 5 Cir., 315 F.2d 792, 795 (1963).
      Lumetta v. United States, supra at 646 n. 3.


text:
    Raymond ROHAUER and Cecil W. Hull, Appellants, v. The EASTIN-PHELAN CORPORATION, Appellee.
    No. 74-1215.
    United States Court of Appeals, Eighth Circuit.
    June 12, 1974.

      Dudley C. Lowry, Davenport, Iowa, for appellants.
    Ira J. Melass, Jr., Rock Island, 111., for appellee.
    Before GIBSON, BRIGHT and WEBSTER, Circuit Judges.
   PER CURIAM.

This case comes before the court for consideration of defendant-appellee The Eastin-Phelan Corporation’s motion to dismiss and for summary affirmance pursuant to Rule 9(b) of the Local Rules of this Court. Appeal was taken by the plaintiffs from the District Court’s dismissal with prejudice of their copyright infringement suit due to plaintiff Rohauer’s refusal to complete discovery.

In a three page brief filed in this court, reflecting the calculated disdain for rules with which plaintiff has pursued this action, plaintiff claims a denial of his constitutional right to trial. He argues that “[t]he courts have a basic duty to protect the rights of parties before them, and to assure that the fundamental rights to a trial before the court are not abridged.” The record leaves no doubt that the District Court dealt fairly with and extended itself to protect plaintiff’s rights. We would also add that parties and their attorneys have a duty to the court to only file suits in good faith, pursue them with diligence, and comply with the court rules and proper orders of the court.

On the record before us we do not question the good faith filing of this suit. However, the record does reveal such a lack of diligence, coupled with what can only be considered a willful refusal to comply with proper orders of-the Court, that fully justifies the order of dismissal entered in this case. Dismissal is expressly authorized under Rule 37(d) of Fed.R.Civ.P. and also is within the inherent power of the Court.

In First Iowa Hydro Electric Cooperative v. Iowa-Illinois Gas & Electric Company, 245 F.2d 613, 628 (8th Cir. 1957), we stated:

Under Rule 37(d) and Rule 41(b) of the Federal Rules of Civil Procedure as well as in the exercise of its inherent power the District Court is authorized to dismiss the action of any individual plaintiff who wilfully disobeys a proper order of the court to compel * * * the giving of testimony on deposition * * *. We think the contention that dismissal was unduly harsh or unjustified is without merit. It was the right of plaintiffs to prosecute the action * * * against the defendants regardless of the burden it imposed on defendants, but only in the orderly course and in obedience to proper court orders. * * * We find there was no abuse of discretion in the application by the Court of the sanction that was authorized by the Federal Rules of Civil Procedure, and by the inherent powers of the Court.

See also, Interstate Cigar Company v. Consolidated Cigar Company, 317 F.2d 744 (2nd Cir. 1963); Thorn v. Harrisburg Trust Company, 32 F.R.D. 352 (M.D.Pa.1962), aff’d 316 F.2d 237 (3rd Cir. 1963).

Here, suit was filed April 26, 1972. Defendant’s motion to stay proceedings pending the outcome of a similar suit in the Southern District of New York was resisted by plaintiff and denied by the Court. Subsequently the District Court on April 24, 1973, ordered Rohauer to submit to deposition. On May 31, 1973, the Court ordered him to appear to answer certain questions he had refused to answer at the time he was deposed. Rohauer made himself unavailable during the entire summer. A subsequent order of the Court required Rohauer to appear November 1, 1973, to complete the deposition; upon plaintiff’s motion this was reset to November 10, and later by agreement of counsel to November 17. Rohauer did not appear November 17. The Court then entered an order December 3, 1973, requiring Rohauer to show cause within 10 days why the action should not be dismissed with prejudice.

On December 17, 1973, after expiration of the 10 day period set by its order, the Court received a letter from plaintiff’s counsel which it accepted as a response to its show cause order and set a hearing for January 30, 1974. When the hearing was held neither Rohauer or his counsel appeared, nor did they at any time prior to the date set for hearing inform the Court of an inability to appear.

Upon these facts plaintiff would ask that we reverse the District Court’s dismissal of his action. However, we do not find any abuse of discretion. The complete disregard of the trial court's show cause order on the part of the appellant and his attorney demonstrated inexcusable fault, willfulness, and bad faith. The trial court, in the exercise of its discretion, was entitled to dismiss the action. See General Dynamics Corporation v. Selb Manufacturing Company, etc., et al., 481 F.2d 1204 (8th Cir. 1973), and cases cited therein.

In the context of this case, the now posited constitutional claims of plaintiff of lack of Fifth Amendment “due process” and Seventh Amendment “right of trial by jury” are frivolous.

The District Court’s dismissal of the complaint with prejudice will be affirmed. Defendant-appellee’s motion for summary, affirmance is granted, and costs assessed against appellants.

      . Rule 9(b) on Summary Disposition provides in pertinent part:
      (b) On the Motion of the Parties. The appellee may file a motion for summary disposition of a docketed appeal. A motion to dismiss an appeal may be based on tbe contention that (1) the appeal is not within the jurisdiction of the court, or (2) the appeal is frivolous and entirely without merit. A motion to affirm may be based on the ground that the questions presented for review are so unsubstantial as not to need further argument. * * *
      The appellant has ten (10) days from the date of receipt of a motion for summary disposition within which to file a response to the motion. * * *
      Plaintiffs’ 10 day period within which to respond has passed with no resistance to the motion being filed. In view of the dalliance which has characterized plaintiffs’ actions in this case, this failure to respond is not surprising.

      . Plaintiff Cecil W. Hull was determined to be only a nominal plaintiff in this lawsuit and the District Court assured itself that no right of Hull’s would be prejudiced by dismissal. Further mention of plaintiff herein refers only to Raymond Rohauer.


text:
    FIRST GIRL, INC., Plaintiff-Appellee, v. REGIONAL MANPOWER ADMINISTRATOR OF the UNITED STATES DEPARTMENT OF LABOR, Defendant-Appellant.
    No. 73-2009.
    United States Court of Appeals, Seventh Circuit.
    Argued May 22, 1974.
    Decided July 2, 1974.
    Rehearing and Rehearing En Banc Denied Sept. 11, 1974.

      John L. Murphy, Chief, Government Regulations Section and Mary Jo Grotenrath, Atty. Crim. Div., Dept, of Justice, Washington, D. C., James R. Thompson, U. S. Atty., Chicago, 111., for defendant-appellant.
    Samuel D. Myers, Chicago, 111., for plaintiff-appellee.
    Before CASTLE, Senior Circuit Judge, PELL, Circuit Judge, and MATTHES, Senior Circuit Judge.

       Senior Circuit Judge M. C. Matthes of the Eighth Circuit is sitting by designation.

   PER CURIAM.

First Girl, Inc., an Illinois corporation engaged in placing secretaries in business offices on a temporary basis, filed this action in the United States District Court for the Northern District of Illinois, seeking a declaratory judgment pursuant to 28 U.S.C. § 2201 and review of certain administrative action taken under 8 U.S.C. § 1182(a) (14) by the Regional Manpower Administrator (RMA). First Girl’s motion for summary judgment was granted by the district court, and the RMA has appealed, urging that the court erred in its finding that the administrative action of the RMA amounted to an abuse of discretion. We affirm.

First Girl in this suit has attacked the denial of alien employment certification of three British secretaries by the Administrator, thereby precluding the entry of the aliens into the United States to assume permanent employment positions with First Girl, as a denial of procedural due process and an abuse of discretion. The fundament of First Girl’s complaint is the assertion that the certifying official and reviewing official for the RMA had ignored certain evidence and misinterpreted other data in denying certification.

After a remand to the RMA for the limited purpose of establishing the factual basis of the administrative action, the district court, as noted, granted summary judgment to First Girl and remanded to the RMA for further determinations consistent with the court’s opinion. After analyzing the record submitted by the Administrator and finding it lacking, the court in its memorandum opinion stated:

. . [T]he question for determination is whether defendant abused his discretion. . . . The test to be applied in determining abuse of discretion is whether an examination of the administrative record reveals no evidence supporting defendant’s decision.” [Citing cases.]

361 F.Supp. at 1340.

“The Court finds no evidence to support defendant’s determination that there was no shortage of applicants qualified, available, and willing to work in the type of employment offered by plaintiff.
* * *
“Thus, the Court concludes that, since there is no evidence in the record supporting defendant's determination, the reviewing officer abused his authority in denying plaintiff’s application for certification of the aliens which plaintiff intended to employ.” [Emphasis supplied.]

Id., at 1341.

Subsequent to the district court decision, this court rendered its opinion in a case similar to the present one, Secretary of Labor v. Farino, 490 F.2d 885 (7th Cir. 1973). In Farino, Judge Cummings writing for the court ruled that the denial of an alien employment certification is subject to review under § 10(e)(2)(A) of the Administrative Procedure Act, 5 U.S.C. § 706(2) (A). Relying upon the Supreme Court opinion in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1970), Judge Cummings further held that the scope of review of the RMA decision was whether the denial of certification was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” To determine whether administrative action is unlawful under such a standard of review, the reviewing court must decide if the administrative decision “was based on a consideration of relevant factors and whether there has been a clear error of judgment.” See 401 U.S. at 416, 91 S.Ct. at 889.

Although the district court in the present case did not have the benefit of the teachings in Farino, it is apparent that the standard for review employed by the district court is equivalent to that established in Farino. Thus the court did not use the “substantial evidence” test, but rather held that the standard for determining abuse of discretion in the case was whether the record “reveals no evidence supporting the defendant’s decision,” 361 F.Supp. at 1340, and specifically found that there indeed was no evidence to support the findings of the RMA in denying certification.

A finding based upon no reliable evidence whatever is a clear error of judgment and an abuse of discretion. See Song Jook Suh v. Rosenberg, 437 F.2d 1098 (9th Cir. 1971); Digilab, Inc. v. Secretary of Labor, 357 F.Supp. 941 (D.Mass.1973), remanded for further fact finding by the RMA, 495 F.2d 323 (1st Cir. 1974); Bitang v. RMA, 351 F.Supp. 1342 (N.D.Ill.1972). Cf. I.C.C. v. Louisville & N.R.R., 227 U.S. 88, 91, 33 S.Ct. 185, 186, 57 L.Ed. 431 (1913), holding: “A finding without evidence is arbitrary and baseless.”

We therefore hold that the “abuse of discretion” standard applied by the district court comports with the standard enunciated in Farino.

Finding as we do that the record supports the district court’s disposition of the proceedings, we affirm on the basis of its opinion.

      . Section 1182(a) (14) authorizes the Secretary of Labor to determine whether an alien employment certification should be issued certifying that there are not sufficient workers in the United States who are “able, willing, qualified, and available” to perform the work sought by a particular alien and that the employment of the alien will not adversely affect wages and working conditions of United States workers. The Secretary of Labor has delegated this responsibility to the Regional Manpower Administrator. 29 CFR § 60.4 (1973).

      . The district court’s memorandum opinion and order is reported at 361 F.Supp. 1339 (N.D.Ill.1973).

      . The RMA has abandoned the contention in its brief that First Girl is without standing to contest the denial of certification.


text:
    MASSACHUSETTS AIR POLLUTION AND NOISE ABATEMENT COMMITTEE et al., Plaintiffs, Appellants, v. Claude S. BRINEGAR, as he is the Secretary of Transportation, et al., Defendants, Appellees.
    Misc. No. 74-8043.
    United States Court of Appeals, First Circuit.
    Argued June 12, 1974.
    Decided June 12, 1974.
    Albert K. Butzel, New York City, with whom Berle, Butzel & Kass, New York City, was on motion and memorandum in support thereof, for appellants.
    William A. Brown, Asst. U.S. Atty., Chief, Civ. Div., with whom James N. Gabriel, U. S. Atty., was on memorandum in opposition thereto, for Claude S. Brinegar and Alexander P. Butterfield, appellees.
    Neil L. Lynch, Boston, Mass., for Massachusetts Port Authority, appellee.
    Before COFFIN, Chief Judge, and CAMPBELL, Circuit Judge.
   PER CURIAM.

This is an appeal from a district judge’s refusal to grant a temporary restraining order prohibiting three flights by the Concorde, a supersonic transport (SST), in and out of Boston during the next several days. This is not the setting in which courts ordinarily address themselves to complex, long-term issues. Thus our decision today has no implications whatever for the merits of plaintiffs’ claim that there must be an environmental impact statement (EIS) before the Concorde operates within this country.

We act within the constraints of familiar law that the granting or denying of a temporary restraining order is seldom reviewable by an appellate court. The law in this circuit, not unlike that in others, has carved out narrow exceptions where, in effect, an action on a temporary restraining order may be treated as an appealable action on a request for a preliminary injunction. These exceptions are restricted to cases where there has been a full adversary presentation of evidence or where the circumstances are such that if review is refused there is no further possibility of interlocutory relief.

Here, because of the exigencies of time, there was no opportunity for a full presentation of evidence by the parties. While plaintiffs would be content to rest on the present record, defendants are not. Perhaps this defect of evidence would not be conclusive if we could say with confidence that on the facts before us plaintiffs’ case was so strong that they will probably succeed. But we cannot presently say this. The nexus between the three flights and possible future demonstration flights and the deliberations of the Federal Aviation Administration connected with its consideration of the Concorde’s owners’ application for a U. S. type certificate is as yet unclear. An evidentiary hearing is needed to clarify the situation. The cited precedents concern factual situations sufficiently different from this as not to be dispositive, although it is clear that environmental law requires that a federal agency involve itself early and continuously with EIS’s in considering its programs and projects.

When we consider the plaintiffs’ continuing prospects for relief if we do not accept this appeal, we see at least two possibilities. The first is that plaintiffs after further proceedings might obtain a declaration or injunction, preliminary or otherwise, if other flights or other situations of this nature are reasonably likely to occur, if the court finds a sufficient connection with the planning for any continuing SST operation. A second possiblity is that the case may be found moot. Given the narrowing concept of mootness developed in recent years, such a finding would in all likelihood indicate that plaintiffs’ fears of further flights were groundless.

To the extent that we are in equilibrium as far as the substantive law is concerned and doubtful that further interlocutory relief is foreclosed, we look at the prospects of irreparable harm. In a close case on the prior two issues, we might be persuaded to grant relief if plaintiffs were to suffer serious irreparable injury and defendants were to suffer relatively little or none. Here, however, there is no showing that the three flights in question will seriously damage the environment or people, apart from some incremental annoyance equivalent to the noise and emissions of several added conventional aircraft. The path of take-off and landing over the harbor and the fact that the plane will operate at subsonic speed over land are calculated to minimize such effects. We therefore look on the injury to plaintiffs as perhaps irreparable but not of great magnitude. And we look on the injury to defendants, were we to grant relief, as also irreparable, and though of a different kind, as not being insubstantial.

We therefore are unable to find here the compelling circumstances that would convince us that we have appellate jurisdiction. This ruling is a narrow one. The question of the environmental impact of SST’s such as the Concorde is serious and important, and will require the most careful scrutiny. We do not today consider whether regular or frequent operation of SST’s will do envíronmental harm, or whether even demonstration and test flights are permitted without environmental impact statements. Nor do we attempt to say when the FAA is obliged to prepare them. All we now say is that we lack appellate jurisdiction over plaintiffs’ appeal from the court’s denial of their request for a temporary restraining order enjoining the three flights.

      . Three landings and three departures are scheduled from Logan Airport, the first on June 13, 1974 and the last on June 16, 1974.

      . The imminence of the three Boston flights is, of course, undisputed. What is in dispute is whether these are merely isolated occurrences, so that federal permission therefor may not be “major” federal action requiring an BIS or whether, as plaintiffs contend, they are inextricably bound to further sales demonstration flights and to proceedings for U. S. type certification.


author: PER CURIAM:

text:
    SCENIC HUDSON PRESERVATION CONFERENCE et al., Plaintiffs-Appellants-Appellees, v. Howard H. CALLAWAY, Individually and as Secretary of the Army, Department of Defense, et al., Defendants-Appellees, and Consolidated Edison Company of New York, Inc., Defendant-Appellant.
    Nos. 1028, 1092, Dockets 74-1311, 74-1421.
    United States Court of Appeals, Second Circuit.
    Argued May 31, 1974.
    Decided June 11, 1974.
    G. S. Peter Bergen, New York City (LeBoeuf, Lamb, Leiby & MacRae, Carl D. Hobelman, Andrew Gansberg, New York City, on the brief), for Consolidated Edison.
    Albert K. Butzel and David Sive, New York City (Berle, Butzel & Kass, Winer, Neuburger & Sive, Angus Macbeth, New York City, on the brief), for Scenic Hudson and others.
    T. Gorman Reilly, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., Anne Sidamon-Eristoff and Gerald A. Rosenberg, Asst. U. S. Attys., on the brief), for defendants-appellees.
    Before MOORE, FRIENDLY and FEINBERG, Circuit Judges.
   OPINION

PER CURIAM:

In this fourth appeal to this court involving the challenged Storm King Project, a hydroelectric facility slated to be built on the west bank of the Hudson River, defendant Consolidated Edison Company of New York, Inc. (“Con Ed”) appeals from a portion of a final judgment entered in the United States District Court for the Southern District of New York, Morris E. Lasker, J. Plaintiffs (collectively “Scenic Hudson”) cross-appeal from other parts of that judgment.

In the district court, plaintiffs contended that Con Ed could not dump rock and other fill material into the Hudson River, as planned, without first obtaining a permit from the United States Army Corps of Engineers under section 404 of the Federal Water Pollution Control Act Amendments of 1972. 33 U.S.C. § 1344. They also claimed that an additional permit was required by section 10 of the Rivers and Harbors Act of 1899. 33 U.S.C. § 403. Judge Lasker agreed with Scenic Hudson on the need for a section 404 permit but held that Con Ed was not obliged to obtain a permit under section 10. He therefore granted plaintiffs’ motion for summary judgment as to section 404, awarding them permanent injunctive and declaratory relief, and denied it as to section' 10. The judge also granted Con Ed’s motions for summary judgment dismissing the complaint and for declaratory relief as to the section 10 claim and denied it as to the section 404 claim. Both Scenic Hudson and Con Ed appeal from those portions of the judgment rejecting their respective positions. As to these issues, we affirm the judgment of the district court on the well-considered opinion of Judge Lasker. 370 F.Supp. 162 (1973).

Scenic Hudson’s cross-appeal raises one additional question not dealt with in the court’s written decision. Plaintiffs argue that the judge erred in limiting injunctive relief to the actual discharge of fill material into the River rather than enjoining construction activities of any kind. Their rationale for this claim is that commencement of excavation would exert “tremendous pressure” on the licensing agency to grant Con Ed’s application. But there is also pressure on Con Ed to proceed as far and as fast as possible in order to avoid still further cost escalation and to preserve its license against a claim that it has not begun construction within the stipulated period. Under these circumstances, we cannot say that Judge Lasker abused his discretion in confining the injunction as he did.

We therefore affirm the judgment below in all respects.

      . For the prior history of this case in our court, see Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (1965), cert. denied, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966) (“Scenic Hudson I”) and Scenic Hudson Preservation Conference v. FPC, 453 F.2d 463 (1971), cert. denied, 407 U.S. 926, 92 S.Ct. 2453, 32 L.Ed.2d 813 (1972) (“Scenic Hudson II”). See also Hudson River Fishermen’s Ass’n v. FPC, 498 F.2d 827 (2d Cir. 1974).

      . Plaintiffs moved to amend the judgment to expand the scope of injunctive relief. Judge Lasker denied the motion without opinion.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SEQUOIA DISTRICT COUNCIL OF CARPENTERS, etc., Respondent.
    No. 73-3365.
    United States Court of Appeals, Ninth Circuit.
    June 28, 1974.
    Rehearing Denied Aug. 7, 1974.
    Elliott Moore, Deputy Associate Gen. Counsel, NLRB, Washington, D. C. and Roy 0. Hoffman, Director, Region 20 NLRB, San Francisco, Cal., for petitioner.
    Victor J. Van Bourg, Michael B. Roger, of Levy, Van Bourg & Hackler, San Francisco, Cal., for respondent.
    Before KOELSCH, WRIGHT and TRASK, Circuit Judges.
   PER CURIAM:

This is an application of the National Labor Relations Board (“Board”) for enforcement of its order against Sequoia District Council of Carpenters, AFL-CIO (“the Union”). The Board’s decision and order are reported at 206 N.L. R.B. No. 8 (1973).

Based on our review of the record as a whole, the Board’s finding that the Union engaged in an unfair labor practice in violation of § 8(b)(4) of the National Labor Relations Act, as amended (29 U.S.C. § 158(b)(4)), is supported by substantial evidence.

The Board may properly enter a broad order such as this one here if a Union has demonstrated a “proclivity” to violate the secondary boycott provisions of the Act. N. L. R. B. v. Brotherhood of Teamsters, Local No. 70, 490 F.2d 87, 88 (9th Cir. 1973); N. L. R. B. v. Local 85, International Brotherhood of Teamsters, 454 F.2d 875, 879 (9th Cir. 1972). The record shows that this respondent has a history of similar violations, including one fully litigated decision (186 N. L. R. B. 432 (1970), enforced by this court in an unreported decision filed January 10, 1972), and settlement stipulations in two separate cases (Nos. 20-CC-1143, 1273). The prior settlement stipulations may be treated as equivalent to fully adjudicated decisions of the Board enforced by this court, in accordance with the terms of the stipulations.

The Board’s order will be enforced.


author: DONALD RUSSELL, Circuit Judge:

text:
    Wardell F. CLARK, Appellant, v. Captain R. W. GOODE, Commanding Officer, U. S. Coast Guard Yard, Curtis Bay, Maryland, Appellee.
    No. 73-2519.
    United States Court of Appeals, Fourth Circuit.
    Argued April 1, 1974.
    Decided July 3, 1974.

      Luther C. West, Baltimore, Md. (West, Frame & Barnstein, Baltimore, Md., on brief), for appellant.
    Herbert Better, Asst. U. S. Atty. (George Beall, U. S. Atty., on brief), for appellee.
    Before BUTZNER, RUSSELL and FIELD, Circuit Judges.
   DONALD RUSSELL, Circuit Judge:

In Roger v. Ball, 497 F.2d 702, decided May 10, 1974, we held that the right of a federal employee to sue on account of racial discrimination under § 717 (42 U.S.C.’§ 2000e-16(c)) of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972 (Pub.L. 92:261) extended not only to employees whose claims arose after the effective date of the Amendment (i. e., March 24, 1972) but also to employees whose claims were “the subject of administrative proceedings at the time of enactment.” In that case, it was clear the claim was pending undetermined before the Commission on March 24, 1972. In this case, on the other hand, the issue is whether the plaintiff’s claim was pending on such date. The District Court held that it was not and we agree.

The factual context in which the claim of the plaintiff arose, as set forth in his complaint, is as follows: In 1955 the plaintiff was employed by the Coast Guard in a GS-4 classification. Having received no promotion during thirteen years of employment, he filed in 1968 a claim of racial discrimination in the denial of promotion under the administrative procedures set up for processing such claims by Executive Orders. Such proceedings resulted in a decision by the Departmental Office of Civil Rights, Department of Transportation in November, 1970. That decision sustained the plaintiff’s claim of discrimination, and, by way of remedy, ordered his immediate promotion to GS-5, with provision for early consideration for promotion therefrom. On promotion, however, the decision provided that the plaintiff was to be placed in “a different department” from the Fiscal Department, where apparently he was then employed. The reason for this latter provision is not entirely clear but there is a comment in the report of the Hearing Examiner, included as an appendix to the complaint filed by the plaintiff, that seemingly clarifies the reason. The Hearing Examiner recommended “[T]hat Mr. Clark have made absolutely clear tó him his full responsibility for dealing with his co-workers and his supervisors in a peaceful, calm and courteous manner no matter what problem arises; * *

It might be a logical deduction from this that some difficulties had arisen between the plaintiff and other employees in the Fiscal Department. The plaintiff appealed to the United States Civil Service Commission’s Board of Appeals and Review (BAR) from so much of this decision as provided for his transfer on promotion. BAR affirmed the decision of the Departmental Office on January-22, 1971, stating that the transfer of the plaintiff out of the Fiscal Department appeared appropriate “since Mr. Clark believed that he was being harassed in the Fiscal Department.” Following this decision, the plaintiff was promoted to a GS-5 classification as a “Safety Inspector” and entered on his duties as such on February 7, 1971. Claiming physical disability, he was retired from federal service on May 25, 1971.

In November, 1971 he requested the Civil Service Commission to reopen and reconsider his claim for relief. Presumably this request related merely to the transfer issue, since all other issues were decided in plaintiff’s favor. This claim was filed under the terms of Civil Service Regulation 772-308, which authorized such filing on a showing of “[N]ew and material evidence * * * that was not readily available when the previous decision was issued” or when “the previous decision involves an erroneous interpretation of law or regulation or a misapplication of established policy * * *.” That request was denied by the Commission and the plaintiff was advised of such denial by letter on December 7, 1971. The letter to the plaintiff closed with the statement that, “[H]aving received a final decision of the Civil Service Commission on your appeal, you have exhausted your administrative remedies within the Civil Service Commission * *

In October, 1972 the plaintiff secured other counsel and, through such counsel, petitioned the Civil Service Commission a second time to reopen and reconsider its decision “insofar as ordering his promotion to GS-5 outside the Fiscal Department at the Coast Guard Yard at Curtis Bay.” The record does not indicate whether the request was predicated upon any “new and material evidence * * * not readily available” previously or rested on a claim that the prior decision of the Commission involved “an erroneous interpretation of law” but presumably was another request identical with his first request, that his promotion should notf have been “outside the Fiscal Department” but within the Fiscal Department. In any event, the request was denied by the Commission on January 9, 1973. The denial closed with the words, “[A]ny further appeal rights he may have are in the courts of the United States.” On February 7, 1973, within thirty days after the date of the letter denying the plaintiff’s second request to reopen, the plaintiff began this action, asserting compliance with the conditions of § 717.

The defendant moved to dismiss the action for failure to state a claim on which relief could be granted in that the cause of action arose before the enactment of § 717 and in any event was not filed within thirty days after receipt of notice of final action taken by the Civil Service Commission. In ruling on such motion, the District Court held that a final decision on the plaintiff’s claim was rendered on January 22, 1971 when the Commission affirmed the ruling of the Departmental Office. It followed, according to the District Court’s opinion, that the claim of the • plaintiff was not pending “undetermined administratively” on March 24, 1972 and accordingly would not support an action under § 717. On this ground, the District Court dismissed the action and this appeal followed.

It seems to be conceded by the plaintiff that § 717 is retroactive only to the extent of covering claims of discrimination “pending” administratively on its effective date. It is manifest from the agreed chronology of plaintiff’s administrative proceedings, the plaintiff’s claim was not “being administratively considered” and was not “the subject of administrative proceedings at the time of enactment” (i. e., March 24, 1972). Even were the Act considered completely retroactive and the claim of the plaintiff deemed “pending” on March 24, 1972, though, the plaintiff would still be precluded from asserting any rights under § 717. That provision requires that any action be instituted within thirty days after a final decision by the Commission. If § 717 is to be given a full retroactive application and even if the plaintiff is thought to be excused from the thirty-day requirement because the Act was not effective when the Commission disposed of his claim, it would seem that he would have been obligated to file his action on his claim, finally determined as it had been before the effective date of the Act, within thirty days after that Act became effective. Any other rule would give to the plaintiff a right not enjoyed by claimants whose claims were decided by the Commission after the Act’s enactment and would create an exception to the statutory thirty-day requirement, an exception never authorized or intended by Congress. It would go farther and make the Act open-ended so far as claims which had been finally disposed of administratively prior to March 24, 1972. The plaintiff is not entitled to any such preference. It follows that, under any circumstances —whether § 717 be regarded as intended to be fully retroactive or not — plaintiff lost any rights he may have had under § 717 when he failed within thirty days after the enactment of the section to file his action. Cf., Stebbins v. Nationwide Mutual Insurance Company (4th Cir. 1972) 469 F.2d 268, 269-270.

The plaintiff contends, however, that, since by the regulations of the Civil Service Commission, any claimant has a right to request at any time a reopening on a showing of “[N]ew and material evidence * * * that was not readily available when the previous decision was issued,” or when “[T]he previous decision involves an erroneous interpretation of law or regulation or a misapplication of established policy”, his claim, even though it had been decided by the Commission’s order of January 22, 1971 and even though a request to reopen that decision had been denied on December 7, 1971 was still pending on March 24, 1972, subject at any time to a renewed right to reopen even on the very same ground on which the former denial to reopen had been based, and that the plaintiff could by filing such a request to reopen and having same denied, acquire a right to file an action under § 717 within thirty days after such denial. It is his theory that when he made his second request to reopen and that request was denied on January 9, 1973 he acquired under the Act the right within thirty days thereafter to file his action.

It is perhaps not inappropriate to remark parenthetically that it is somewhat inconsistent for the plaintiff to argue that the denial of his second request to reopen constituted “final action” by the Commission while not recognizing that the earlier denial of his first request to reopen, occurring before the effective date of the Amendments, did not represent “final action” by the Commission, a recognition which, if made, would mean that his claim was not “pending” or “being administratively considered” on March 24, 1972. But there is a more serious and relevant objection to this argument. Logically, such an argument, if accepted,, would in effect deny finality to any decision of the Commission and an aggrieved claimant could revive at any time his claim, however stale, by the simple expedient of filing, as the plaintiff did in this case, a request to reopen. It would not matter that he may already have requested and been denied a reopening. Similarly, it would be of no moment that, after final action by thé Commission either on his original claim or on his request to reopen, he had not filed suit within thirty days. That requirement could be frustrated merely by filing a new request to reopen, and when that was denied, suit could be filed. Such a result would thus mock the thirty-day limitation for the institution of suit, incorporated in the statute, and would do violence to the obvious legislative purpose evident in the statute. Moreover, this construction of the statute would invest it with unlimited retro-activity. Under this theory, any claim of discrimination, dismissed by the Commission, whether in 1970 or in 1960, could be brought within the remedy provided by § 717 merely by filing after March 24, 1972 a request to reopen. When that request was denied, the employee, whose claim may have arisen in 1960, would have the right to sue under the statute. It seems safe to assume Congress intended no such result; and we must respect that obvious Congressional intent.

The plaintiff would, however, attach some significance to the fact that in its letter denying the second request to reopen, the Commission stated that the plaintiff had exhausted his administrative remedies and that any further rights on his part would have to be asserted “in the courts of the United States.” This is substantially the same language with which the earlier denial of plaintiff’s request to reopen concluded save that, since § 717 was not then effective, no reference to the federal courts was included. The language, it would appear, is a part of the ritual employed customarily by the Commission in denying either a request to reopen or a claim. It would have been incorporated in any denial, whether it referred to the first or the tenth request to reopen. We cannot believe that a claim filed almost four years before the enactment of § 717, administratively decided almost two years earlier, and where the claimant had already been denied the right to reopen on exactly the same ground, could be regarded as “being administratively considered” or “the subject of administrative proceedings” during all the period between March 24, 1972 and October, 1972, merely because, with a new attorney, the claimant renewed his request to reopen and, in its denial, the Commission used its accustomed phraseology in dismissing the request.

We would add that it would seem that even if it be assumed that a request to reopen, if approved, will revive a proceeding it clearly could not do so unless and until it is approved. Only had the request to reopen in this case been granted would the administrative proceedings have been given new life and provided a basis for a subsequent administrative decision, which could have been reviewed through an action filed under § 717. The claim filed by this plaintiff and disposed of by the decision of the Commission in January, 1971 was never reopened or revived and was not “pending” within the intendment of § 717 on March 24, 1972 or at any subsequent time. It follows that plaintiff has no right of action under § 717 on the basis of his claim filed in 1968.

Initially in this Court, the plaintiff argues, also, that he is entitled to recover under the due process clause of the fifth amendment. We decline, however, to adjudicate this constitutional claim. It could not have been presented to the district court because it exceeds $10,000. See 28 U.S.C. § 1346(a)(2). His rights, if any he has, are cognizable only in the Court of Claims. 28 U.S.C. § 1491. See Chambers v. United States (1971) 451 F.2d 1045, 196 Ct.Cl. 186.

Affirmed.

      . To the same effect is apparently Hackley v. Johnson (D.C.C.1973) 360 F.Supp. 1247, 1249, n. 1. See, also, Walker v. Kleindienst (D.C.C.1973) 357 F.Supp. 749, 752:
      “* * * Its [Section 717] applicability to pending cases is also supported by the fact that the 1972 Act is amendatory, affecting procedural remedies and should, therefore, apply to all cases pending at the time of its enactment unless some vested right would be impaired as a result.”
      There are eases that deny any retroactivity to the Act, even denying its application to pending cases. All the cases are listed in Henderson v. Defense Contract Admin. Serv. Reg., N.Y., (D.C.N.Y.1973) 370 F.Supp. 180, 182, n. 1.

      . See Executive Order No. 10722, 3 O.F.R. 1954-8 Comp., p. 384 (1957) ; Executive Order No. 10925, 3 C.F.R. 1959-1963 Comp., p. 448 (1961) ; Executive Order 11114, 3 C.F. R. 1959-1963 Comp., p. 774 (1963) ; Executive Order 11162, 3 C.F.R. 1964-1965 Comp., p. 215 (1964) ; Executive Order 11246, 3 C. F.R. 1964^-1965 Comp., p. 339 (1965), now Executive Order 11478, 3 C.F.R. 1966-1970 Comp., p. 803 (1969) ; and the Regulations of the Civil Service Commission, 5 C.F.R. §§ 4.2 and 713.202.

      . Civil Service Regulation 772.308, 5 C.F.R.

      . See Koger v. Ball, supra.

      . Cf., Handy v. Gayler (D.C.Md.1973) 364 F.Supp. 676, 678; Henderson v. Defense Contract Admin. Serv. Reg., N.Y., supra (370 F.Supp. at p. 184), and Johnson v. United States Postal Service (D.C.Fla.1973) 364 F.Supp. 37, 39.