author: LEWIS R. MORGAN, Circuit Judge:

text:
    SAM KANE PACKING CO. et al., Plaintiffs-Appellants, v. AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, and its Local No. 171, Defendants- Appellees.
    No. 72-3026.
    United States Court of Appeals, Fifth Circuit.
    May 16, 1973.

      Harold Alberts, Corpus Christi, Tex., A. J. Harper, II, L. G. Clinton, Jr., Houston, Tex., for plaintiffs-appellants.
    L. N. D. Wells, Jr., Dallas, Tex., Frank Herrera, San Antonio, Tex., for defendants-appellees.
    Before RIVES, GOLDBERG and MORGAN, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

This appeal raises the issue of whether or not a certain dispute between an employer and a labor union was subject to arbitration under the collective bargaining agreement between the parties. The district court for the Southern District of Texas on summary judgment held that the dispute was indeed arbitrable and went on to enforce the unilateral arbitration award which had been issued by a single, union-appointed arbitrator. The company appeals both the finding of arbitrability and the enforcement of the award. After careful consideration, we affirm in part and remand in part.

I

Sam Kane Packing Company employed about 200 workers, with approximately 45 engaged in operations on the “kill floor”. These workers were represented by appellee union, Amalgamated Meat Cutters and Butcher Workmen of North America and its Local No. 171.

The company alleges that it had been having difficulty with its kill floor employees over a fairly lengthy period of time. The company charges that these employees were engaged in slowdowns and intentionally sloppy work. The events giving rise to the current controversy between the union and the employer occurred on July 20, 1971. Apparently the company had called a meeting of kill floor employees to discuss the above mentioned problems. Following this meeting there occurred a disruption which resulted in no more work being done by these employees that day or thereafter. The exact nature and causes of this disruption are integral parts of the underlying dispute here. For our purposes it is sufficient to say that company officials called the police and had the employees removed from the premises. The company apparently takes the position that these employees engaged in a “work stoppage” or “strike” and that their removal and subsequent discharge was lawful under the contract. For its part, the union took the position immediately that the action by the company in removing these employees from the premises constituted a lockout in violation of the contract.

There was a period of correspondence, or at least attempted correspondence, between union and company officials. By letter of July 31, 1971, the union notified the company that it planned to invoke the contractual grievance procedures to resolve this dispute, suggesting that the company agree to go directly to arbitration on the matter. At that time the union also ordered the employees to return to work. The employer countered with a statement that the matter was not subject to arbitration and that the workers would not be allowed to return and had been discharged and replaced.

Despite the company’s opposition to arbitration, the union went ahead with arbitration procedures. Under the contract each party was to appoint a representative to the arbitration panel and the two representatives were to select a third by mutual agreement. If either party failed to appoint a representative, the contract stated that the single representative appointed by the other party would have full power to issue a binding adjudication on the merits.

The union appointed its representative and repeatedly notified the company to appoint an arbitrator so that a third could be chosen. The company consistently refused to agree that arbitration was required. The union appointed State Senator Joe Bernal as its representative. The union informed the company that it had scheduled an arbitration hearing before Senator Bernal on August 23, 1971. ■ The company, however, obtained an ex parte restraining order from the district court preventing that arbitration proceeding. After a hearing on August 28th, the court dissolved the restraining order, thus permitting the arbitration to proceed. The company was notified of the rescheduled arbitration set for August 30, but refused to participate in any way, taking the position that it could not be forced to arbitrate until a court had determined the issue of arbitrability as a final matter.

It appears that the company did inform the union that while it took the position that there would be no arbitration in this case because it was not contractually agreed to, if there was to be any arbitration the company’s representative would be Mr. Harold Alberts, the company attorney. Both the union attorney, Mr. Herrera, and the union representative, Senator Bernal, were clearly informed of this position in advance of the scheduled hearing date.

When the company did not appear to participate in the August 30th hearing, arbitrator Bernal' conducted a full proceeding with those present. About three weeks later Senator Bernal issued a lengthy opinion finding that the company unfairly locked out the employees and ordering reinstatement with pay and benefits. Because of the company’s refusal to participate, only union witnesses and counsel appeared before the arbitrator. The company then refused to comply with the award, taking the position that in the first instance it did not have to arbitrate at that time because a court had not decided as a final matter that it was bound to arbitrate under the contract. Secondly, the company maintained that it did not have to comply with Senator Bernal’s award because contract procedures had not been followed and, under the facts of this situation, the contract did not allow the union representative to proceed on his own.

II

This case must be resolved by construction of certain clauses in the collective bargaining agreement in force between these parties. Of course, these clauses cannot be evaluated out of context or unmindful of the contract and industrial setting as a whole. However, unless there is patent ambiguity, the plain meaning of the words should generally be followed.

At the heart of the dispute is the interpretation of Article V entitled, “Grievance and Arbitration”:

Section 1. For the purposes of this agreement, the term “grievance” means a written dispute, claim or complaint arising under and during the term of this labor contract between the Company and the Union or between the Company and any employee or employees in the bargaining unit concerning the effect, interpretation, application, claim of breach or violation of an expressed provision or provisions of this contract. Such matters shall be processed through the grievance procedure without resort to a strike or a lock-out, and if either party hereto resorts to any action violative of Article IV (No Strike, Slow-Down, Work Stoppage) of this agreement, the grievance and arbitration provisions of this article shall be null and void and of no effect and either party hereto shall have the immediate right to seek redress from the appropriate court without the necessity of exhausting the grievance and/or arbitration procedures hereunder.

Article IV, referred to in the above passage, reads in pertinent part:

ARTICLE IV — NO STRIKE, SLOWDOWN, WORK STOPPAGE
Section 1. During the term of this agreement, the Company agrees that it will not lock out the employees covered by this agreement.
Section 2. During the term of this agreement, the Union agrees that it will not sanction, call, acquiesce or engage in or cause any strike, sit-down, slow-down, picketing, sympathy strike or other work stoppage against the Company for any reason. The Union agrees also that it will not for any reason during the term of this agreement sanction, call, acquiesce or engage in any curtailment, restriction or interference with the work of the Company or of any of its agents, servants or employees, or advise that such action be taken. Any employee covered by the terms of this agreement participating in any action prohibited by this section may be disciplined by the Company either by discharge or lesser penalty.
* * * * * *
Section 5. The Company shall have the right to discipline up to and including discharge any employee who instigates, participates in or gives leadership to any activity prohibited by this Article. If the Company discipline in this regard is challenged through the grievance procedure and the same proceeds to arbitration, the arbitrator shall have the power to review the reasonableness of the penalties imposed, but they may order back pay only upon a finding of innocence. (Emphasis supplied).

These contract provisions are the only ones which have a direct bearing on the issue of arbitrability in this case. It now becomes encumbent on this court to evaluate their meaning as they apply to this situation.

III

In its opinion, the district court held that the dispute in this case was arbitrable despite the employer’s objections that the exclusionary language in Article V withdrew the issue from arbitration since it involved a charge of lockout (and for that matter, a cross-charge of a strike). The district court disagreed with the employer, holding that the cross reference in Article IV was modified by the parenthetical material which alluded only to strikes, slow-downs and work stoppages. The court construed the cross reference to apply only to Section 2 of Article IV and not to Section 1, the lockout section. We agree with both the union and employer that this is a rather strange and unnatural construction of this contract. The union is apparently ready to agree that whatever the exclusionary clause means, it does not leave out lock-outs and, if it otherwise applied to this situation, the construction given it by the district court is clearly erroneous. Therefore, we turn to other possible constructions of this contract.

At the outset, the court feels that one of the problems which has created so much difficulty for these parties is the terminology used. The company throughout has taken the position that it was acting lawfully under the contract because it was disciplining these workers either for the alleged slow-downs which occurred prior to July 20, 1971, and/or for the alleged refusal to return to work after the coffee break and speech on July 20th. The union, in its earliest letters, took the position that the “removal” on July 20 was a lockout in violation of the contract. The court feels that use of the term “lockout” has created much of the confusion in this case. It seems clear to the court that the company considered these employees discharged soon after the events of July 20th. When the union, while seeking arbitration, ordered its employees back to work, the company replied that they were no longer employed and had been replaced. Thu& we feel the real dispute between the union and the company here is not over direct damages dependent upon whether this was a strike or a lockout. We feel certain that the exclusion to the grievance machinery found in Article V, whatever it may mean, was not intended to prevent arbitration of the real issues in this case.

Those real issues as we see it are whether or not the eompanywas justified in refusing to allow these individuals to return to their jobs and whether or not it was justified in having them removed from the premises by the police for violating the contract. In short, what the union was seeking, as shown here by the final award given by the union’s representative as sole arbitrator, was a determination of whether or not the company had any justification in the sanctions it took against these employees, be it the sanction of having them removed by the police or the ultimate sanction of discharge.

We find that the parties had unquestionably agreed to arbitrate that issue by the express provisions of Article IV, Section 5. The company alleges that it was simply disciplining its employees for violation of the prohibitive sections of Article IV. That was the only alleged justification for all of its actions. It does not seem to matter by what term the union seeks to call the company’s acts. We think the company has seized on the fact that the union referred to the company’s subsequent action as a “lockout” in an attempt to avoid arbitrating its dismissal of these employees. The only relief that the union sought before the arbitrator in the proceedings held was reinstatement and back pay for the employees on the kill floor from the time that they were removed by police on instructions of the company. Any mass removal of employees or firing by the company during an alleged work stoppage could be characterized as a “lockout” in order to avoid arbitration. Yet the more specific section, Section 5 of Article IV, which lacks any of the ambiguities of Article V, seems so clearly to contemplate arbitration of such discipline that this court can reach no conclusion other than the fact that the parties had agreed to arbitrate this issue.

We note that this analysis of the contract structure and facts in this case is extremely similar to that which this court enunciated in United Steelworkers v. American International Aluminum Corporation, 5 Cir. 1964, 334 F.2d 147. In that case the court stated:

We can assume that the Employer is correct that neither the Employer nor Union has any right to demand arbitration of a controversy concerning whether there has been a strike, picketing, stoppage, slowdown, sitdown, stayin, or other curtailment or interference with work on the part of the employees or a lockout on the part of the employer. But if a discharge resulted from either strike or work stoppage on the union’s part or a lockout by the employer, the contract plainly recognized that this dispute was open for arbitration. And certainly, whatever arguments might be mustered for a contrary result, the purpose to exclude a grievance over discharge flowing from a work stoppage is not so clear as to permit a court, under the guise of contract construction, to invade that territory now reserved to the arbitrator. (Emphasis supplied and citations omitted). Id. at 151.

Here discipline resulted from this occurrence whether or not it is characterized as a lockout or a strike. These employees have simply not been allowed to work for this company as union employees in their old jobs. That is discipline. That is within the express arbitration clause found in Section 5 of Article IV.

In seeking to avoid this analysis, the employer argues that American International Aluminum is not applicable to this case because the court there assumed that the employer was right in his contention that the underlying issue of a strike or lockout could be arbitrated. As pointed out, there is no question that discipline resulted from either the strike or lockout, however it is characterized. All that American Aluminum requires is that the contract envisions arbitration for any discipline which results from a strike or lockout. The contract in this case unquestionably envisions such arbitration.

As the court in American International Aluminum pointed out, the primary reason that contracting parties often except arbitration of strikes and lockouts from the grievance and arbitration proceedings is that this would eliminate in such instances the very difficult question in a suit by the employer against the union, or the union against the employer, for damages resulting from an unauthorized strike or lockout as to whether the controversy had to first be submitted to arbitration rather than going directly into court. Id. at 151, n. 7.

While we do not find it necessary to construe the language in Article V in the exception clause because of the more specific language found in Article IY, Section 5, we note that the difficult problem of suits for damages being subject to prior arbitration is probably the very reason that the exclusionary clause was included in that article. In all probability the language inserted was to make unquestionably sure that neither the employer or union would be able to use as a defense to a suit for damages for contract breach the claim that the issue had to first go to arbitration and damages be determined by arbitration. This is far and away the most rational construction of that section and avoids the difficulties in any other construction which both sides have recognized throughout this proceeding. Any construction of Article V which does not find the purpose to be that set forth above or find that what in effect Article V does is give an option to the aggrieved party to go to arbitration or seek court relief would be highly strained in light of the general nature of collective bargaining relationships and would undoubtedly cause great concern to the parties.

We, therefore, find that this was indeed an arbitrable dispute under the contract and that the real issue involved here, no matter how it was phrased, was what punishment, if any, could be inflicted on these employees. As noted, this was not the case when the union was seeking some sort of damages over and above reinstatement for an illegal lockout. Nor was it a case, such as would come up in a strike, where the employer was seeking damages to his business from an illegal work stoppage by the union. Rather, it was simply a case of evaluating whether there was just grounds for discipline, and whether the discipline was properly meted out. The contract expressly envisions arbitration of such an issue. There is no ambiguity.

There is, as previously noted, a very strong presumption favoring arbitration of labor disputes where the contract is capable of such a construction. As this court pointed out in Communications Workers v. S. W. Bell, 5 Cir. 1969, 415 F.2d 35, 39:

Interpretation of contract language restricting the scope of arbitration is governed by the rigid standards established in the Steelworkers’ cases. These require that “only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail * * ”, United Steelworkers of America v. Warrior and Gulf Navigation Company, supra, 363 U.S. [574] at 585, 80 S.Ct. [1347] at 1354 [4 L.Ed.2d 1409], and that an order prohibiting arbitration cannot be issued “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” United Steelworkers of America v. Warrior and Gulf Navigation Company, supra, 363 U.S. at 582-583, 80 S.Ct., at 1353. As summarized by the Second Circuit Court of Appeals in Proctor and Gamble Independent Union v. Proctor & Gamble Manufacturing Company, 298 F.2d 644, 645-646:
“The nub of the matter is that under the broad and comprehensive standard labor arbitration clause every grievance is arbitrable, unless the provisions of the collective bargaining agreement concerning grievances and arbitration contain some clear and unambiguous clause of ex-elusion, or there is some other term of the agreement that indicates beyond peradventure of doubt that a grievance concerning a particular matter is not intended to be covered by the grievance and arbitration procedure set forth in the agreement. * * *”

As our opinion has demonstrated, it seems clear from this contract that arbitration of this dispute was contemplated.

IV

The question remains in this case as to what effect, if any, should be given the arbitration award handed down by Senator Bernal, the appointed union representative to what allegedly should have been a tripartite arbitration board. The district court, having found the issue arbitrable, enforced the order of the union appointed arbitrator without any substantive discussion whatsoever in his opinion. We find it necessary, however, to turn to the arbitration procedures section of the contract to determine whether or not the arbitration proceedings were valid.

The contract provides that the union and the company shall each appoint one representative to act as arbitrators. Upon the failure of one party or the other to appoint an arbitrator to represent its side, the arbitrator appointed by the single party shall promptly arbitrate and settle the grievance, with his decision binding on the parties. Our question here concerns whether or not this precise contract provision applies to this factual situation.

It is clear that Mr. Harold Alberts, attorney for the company, was designated the company representative prior to arbitration. More precisely, he was designated their representative if any arbitration was going to take place. Yet Mr. Alberts, speaking for himself as arbitrator, and for the company, consistently took the position that the dispute in this case was not arbitrable under the contract. Thus, we have the situation where it appears that one of the appointed arbitrators took the position that the dispute was arbitrable, while the other did not. Even though courts decide in the first instance on arbitrability, because of the extreme presumption in favor of allowing arbitration, the arbitrator is permitted to determine whether or not, under the contract, the dispute is arbitrable. Thus, at this point in time we had two arbitrators in disagreement over this threshold issue.

Of course, in this situation the preferable procedure would have been for these two men to follow the envisioned contract procedures and select a third man who would then, in fact, be the real arbitrator of this case. Apparently the company felt that even to take this step would put them in a delicate position as far as their court suit was concerned. The company probably reasoned if a neutral arbitrator was appointed and found the matter arbitrable that their court suit on arbitrability for all intents and purposes would be worthless. They would then be bound by whatever the arbitrator decided. When the company did not give further response to the union’s request for the selection of a third arbitrator, the union representative then went on to decide the issue.

The company maintains that it could not be forced to arbitrate this matter until it had been conclusively decided by a court that the matter was arbitrable. This position becomes even more complicated where the employer had tried unsuccessfully, to enjoin the arbitration. We note that there was no counterclaim by the union in that suit in an attempt to force the employer to follow the contract procedures. We think under the situation presented by this case that that would have been the far preferable approach. However, since that was not done, we must dig more deeply into this matter to resolve the issue. The result must turn on whether or not this contract can be construed to allow single party arbitration where one party appoints to representative as called for by the contract but that representative refuses to proceed with the selection of a neutral.

Once each side has named a representative we think the harsh penalty involved in allowing single party arbitration has fallen out of the contract. That is an extreme sanction and over-extension could create more hostility in contravention of the air of peaceful settlement of industrial disagreements through contractual arbitration. Therefore, we hold that this one clause of the contract will be construed strictly to apply only where no representative whatsoever is named to the board. The question then is what was the union to do faced with the company’s adamant refusal to cooperate.

The simple answer here is that the union should have sought an order from the district court compelling the company to follow the contractually agreed to procedures. There is simply no support in the contract for the proposition that the employer had agreed to let the union representative alone decide the substantive issue. Since there was a readily available alternative (a counterclaim for compulsion to arbitration) available to the union, we do not approve the unilateral arbitration which does not fall squarely within the contract clause.

We note that had there been a method whereby an admittedly “neutral” arbitrator was selected and the company merely refused to participate in the hearing we would be faced with a strong case for the award. See Meatcutters v. Penobscot Poultry, ND Me.1961, 200 F.Supp. 879; Boot & Shoe Workers v. Faith Shoe Co., MD Pa.1962, 201 F.Supp. 234; cf. Teamsters v. Braswell, 5 Cir. 1968, 392 F.2d 1. Here, however, the arbitrator who issued the award cannot be denominated a “neutral” as the parties would contemplate the term. Thus, there was no jurisdiction under the contract for this arbitration by a single union designated representative and the award will not be enforced. The contract in question here generally contemplates arbitration by a “neutral” chosen by both parties and provides a method of selection for that purpose. There is one clear exception to the above whenever one party fails to name a representative. As noted, because of the harshness of that sanction and the fact that it, to a degree, is in conflict with the concept of true arbitration, we will construe its provisions strictly. Finding no contractual grounds giving the union representative acting alone the right to issue a binding award, we refuse to enforce that award.

While we feel the district court was correct in finding that the parties had agreed to arbitrate this matter, we are unwilling to say that the method of arbitration followed herein was valid. Thus, the only arbitration which should have been compelled or allowed was one in line with the provisions of the contract.

In conclusion, we find that the underlying dispute in this case is arbitrable under the agreement and direct that the district court order these parties to each select a representative and go about the selection of a “neutral” third member as soon as possible.

Affirmed in part and remanded in part with directions.

      . The contract reads as follows:

        Section S. Either party may request arbitration of an unsettled grievance after exhaustion of the grievance procedure hereinabove set out. The right of either party to request arbitration over an unadjusted grievance is limited to a period of ten (10) calendar days from the final action taken on such grievance under the last step in the grievance procedure above detailed.
      One (1) representative shall be appointed by the Company and one (1) representative shall be appointed by the Union to act as arbitrators for each grievance. Such appointments must be made by the parties within one (1) week after the written request by either party to submit the grievance to arbitration.
      If either the Company or the Union fails to appoint their respective arbitrator within said one (1) week period, then the arbitrator so appointed by the other party shall promptly arbitrate and settle such grievance or grievances, and his decision or decisions shall be final and binding upon the parties.
      After such arbitrators are so appointed, the party or parties desiring arbitration shall promptly within two (2) days present in writing to the arbitrators so appointed the question and/or questions and the matter and/or matters to be arbitrated. A copy of such questions and matters shall be delivered to the opposite party. Within one (1) week after such notification, the other party shall give in like manner similar written notice in defense of its position. It is understood that the party or parties initiating arbitration shall not introduce any additional question or matter which is not relevant to the matter to be arbitrated.
      If the two (2) arbitrators are so selected and appointed as above provided, then the two (2) arbitrators shall select the third (3rd) arbitrator, who shall be impartial and disinterested and not in any way connected with either the Company or the aggrieved employee or employees or the Union. In the event that the two (2) arbitrators shall fail within five (5) calendar days to select a third (3rd) arbitrator, then upon request of either party, the Federal Mediation and Coneilliation Service shall be requested to submit a list of five (5) arbitrators, each of whom shall be a impartial person qualified to act as an arbitrator. From this list the Union shall substract two (2) names, then the Company shall subtract two (2) names, and the first person’s name which remains on the list then shall be the arbitrator. The reasonable expense of the third (3rd) arbitrator together with any other arbitration costs shall be borne equally by the respective parties. The decision of a majority of the arbitration committee shall be final and binding upon the parties hereto.

      . The complete section or arbitration procedures is set out in footnote 1, supra.

      . Here there seems n strong argument that under the contract the union could have received a list of “neutrals” from the FMCS and, if the company refused to strike any names, pick any one of the five. We feel that selection by such a procedure would be a valid response to the employers recalcitrance and that the award of one so chosen would be enforceable.

      . AVe mean to cast no unfair light on this arbitrator’s integrity by describing him as the “union representative” or not as a “neutral”. AA’e are not basing our refusal to enforce his award because of any feeling of correctness, incorrectness or prejudice on his behalf. Rather, we are refusing to enforce the award simply because there is no basis in the contract for allowing this individual, to arbitrate this case on these facts.

      . AAre feel part of the legal confusion in this case results from the attempt to enjoin. Apparently only one objection to arbitration — lack of an arbitrable dispute — was raised before the district court. AA’e feel the company should have also sought prohibition of the one-sided arbitration being advanced by the union. The union, for its part, should have requested the court to order the employer to follow contract procedures and select an arbitrator.

      . We note that several issues raised by the parties before the district court on issues of procedure and the like are to be decided by the arbitrators, not the court.


source: Caselaw Access Project

author: HASTIE, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America v. Dennis Rex BONHAM, David Duan Fletcher. Appeal of David FLETCHER, Appellant.
    No. 71-2097.
    United States Court of Appeals, Third Circuit.
    Submitted En Banc Jan. 3, 1973.
    Decided April 2, 1973.
    Howard Lesnick, Professor of Law, Philadelphia, Pa., for appellant.
    Robert E. J. Curran, U. S. Atty., Frank J. Bove, and Richard R. Galli, Asst. U. S. Attys., Philadelphia, Pa., for appellee.
    Before SEITZ, Chief Judge, and HAS-TIE, VAN DUSEN, ALDISERT,

      ADAMS, GIBBONS, ROSENN and HUNTER, Circuit Judges.
   OPINION OF THE COURT

HASTIE, Circuit Judge.

David Fletcher has taken this appeal from a conviction of criminal acquisition of heroin in violation of subsection 4704 (a) of Title 26, United States Code. That subsection also creates a presumption of illegal acquisition or trafficing from “possession” of the specified narcotic in other than the required stamped package.

Fletcher was indicted and tried along with his half brother, Dennis Bonham. At trial the government showed that police officers, executing a search warrant, entered the home of the defendants' mother where she lived together with her two accused sons, her daughter, the daughter’s husband, and Fletcher’s infant daughter. In the course of their search the officers entered a room that was the shared bedroom of Bonham and Fletcher. Both men and Fletcher’s daughter were in the room at the time. During their search of this bedroom the officers discovered a quantity of heroin, in other than lawfully stamped packages, secreted in a hidden recess above the bedroom doorway, apparently behind the door frame. No other heroin was found upon the person of either defendant or elsewhere in the room. One of the officers testified that suspicious articles other than heroin, which he called “suspected marijuana” and “suspected phenaphen tablets” were observed in plain view on a table. No proof was introduced that these articles were what the officer suspected, and they are not a subject of this prosecution.

Having introduced this evidence, the prosecution rested. The defendants moved for dismissal on the ground that “possession” of the heroin, from which criminal acquisition or trafficing could be presumed, had not been proved. The court denied the motion and the defense rested. Thereupon, the court, sitting without a jury, found both defendants guilty as charged. Fletcher alone has appealed.

That “possession” which, under the statute, creates a presumption of criminal traffic in certain narcotics can be established by a showing that the accused knowingly had the contraband under his “control or dominion” (a situation sometime denominated “constructive possession”) even though it was not found on his person or within his immediate reach. See United States v. Davis, 3d Cir. 1972, 461 F.2d 1026, 1035; McClure v. United States, 9th Cir. 1964, 332 F.2d 19, 23; United States v. Holland, D.C.Cir. 1971, 144 U.S.App.D.C. 225, 445 F.2d 701, 703. But where the evidence does not permit a finding beyond reasonable doubt that the accused had knowing control or dominion over the contraband the factual basis for the statutory presumption is lacking. United States v. Bethea, 143 U.S.App.D.C. 68, 1971, 442 F.2d 790; United States v. Thomas, 9th Cir. 1971, 453 F.2d 141, cert. denied 405 U.S. 1069, 92 S.Ct. 1516, 31 L.Ed.2d 801. In this view the evidence against Fletcher was fatally deficient.

Where a person is the sole occupant of a room and has the right to exclude all others from it, it may logically be inferred that he has knowing dominion and control over objects so situated in his room that he is likely to be aware of their presence. United States v. Palmer, D.C.Cir. 1972, 467 F.2d 371. But the situation is different where two persons share the occupancy of a room and the right to exclude others from it. Depending upon the circumstances, either or both may have knowing dominion and control over a particular chattel, and choice between these alternatives must be based on more than speculation. Thus, in United States v. Davis, supra, we considered the situation of an apartment shared by a father and his adult daughter. Both of them were in the kitchen when arrestng officers found quantities of heroin and paraphernalia for its use in plain view on a kitchen table and on the floor nearby. We held that these circumstances warranted an inference that both occupants were exercising knowing dominion and control over the contraband.

But the facts in the present case are in sharp contrast with the facts in Davis. Here the heroin was hidden. The officer who discovered it described the hiding place as above the doorway “behind the ledge that they had like a false front on it.” In these circumstances the prosecution has had to contend that when it has been established that two men shared a bedroom as their common place of abode, no more than the discovery of an article in that room on an occasion when both of them are present is necessary to warrant a finding in a criminal case that both of them had knowing dominion and control over the article. This reasoning cannot be squared, with the requirement that every essential of a crime must be established beyond reasonable doubt. And the better reasoned cases reject it. Evans v. United States, 9th Cir. 1958, 257 F.2d 121, cert. denied 358 U.S. 866, 79 S.Ct. 98, 3 L.Ed.2d 99; Guevara v. United States, 5th Cir. 1957, 242 F.2d 745; Commonwealth v. Schuloff, 1971, 218 Pa.Super. 209, 275 A.2d 835; Contra, United States v. Bridges, 8th Cir. 1969, 419 F.2d 963. As the court said in Evans v. United States, supra, “since he was not in exclusive possession of the premises, it may not be inferred that he knew of the presence of the narcotics and had control over them, unless there are other incriminating statements or circumstances tending to buttress such an inference.”

Here there was nothing except the joint occupancy of the room upon which an inference of possession could be based. A fact finder could only speculate whether both of the room’s occupants or a particular one of them even knew of the cache, much less exercised control over the hidden contraband.

We have not overlooked the testimony of one of the searching officers that suspicious articles other than heroin were found in plain view on a table in the bedroom. But even if the prosecution had proved that these articles were marijuana and phenaphen, as the officer said he suspected, appellant’s awareness of their presence would be no evidence of knowledge that heroin was concealed elsewhere.

For these reasons, the court that tried this case without a jury should have granted Fletcher’s motion for acquittal on the ground that the evidence provided no more than an occasion to speculate whether he, or his brother, or both of them knew of the hidden heroin and exercised control over it.

Finally, the substantiality of the risk of unfairness if an inference of possession is permitted in this type of case is strikingly demonstrated by circumstances disclosed by the entire record of this prosecution that has been certified to us, although the relevant evidence was not offered at trial.

At a pretrial hearing on a defense motion to suppress evidence it was brought out that the search in this case had resulted from information supplied to the government by a “reliable” informant. He had stated that he had visited the home in question many times and on several occasions had visited the living quarters of Bonham and Fletcher where Bonham had shown him glassine envelopes containing white powder and had told him that the powder was heroin. There was no suggestion that Fletcher had been present on any of these occasions.

In addition, it was established during the presentence procedure after conviction that Bonham was a heroin addict.

These circumstances would have illuminated the critical issue of possession. Apparently, Fletcher’s former counsel, who represented both Bonham and Fletcher at the trial, was not in position to make this showing since it would have inculpated his client Bonham, though it also would have tended to exculpate his client Fletcher. We mention these circumstances, not on the issue of the propriety of the dual representation which we do not reach, but to demonstrate the potential for unfairness if courts should permit an inference of possession from the fact of joint occupancy of a bedroom in which contraband is hidden, absent anything more that tends to inculpate the accused.

The judgment will be reversed and the cause remanded for the entry of a judgment of acquittal.

      . This section has since been repealed. P.L. 91-513, Title III, § 1101(b)(3)(A), Oct. 27, 1970, 84 Stat. 1292. Unlawful “simple possession” is now defined by and punishable under 21 U.S.C. § 844.

      . 257 F.2d at 128. In the Evans case the court found that there were other indicia of appellant’s dominion and control over the narcotics.
      United States v. Gulley, 6th Cir. 1967, 374 F.2d 55, and Eason v. United States, 9th Cir. 1960, 281 F.2d 818, upon which the prosecution relies, also presented factual indicia of possession in addition to the circumstance of joint occupancy of an automobile in which narcotics were found.


author: ALDISERT, Circuit Judge.

text:
    John William SMITH, Appellant, v. Dominick SPINA, Individually and as Director of the Police Department of the City of Newark, N. J., et al.
    No. 72-1402.
    United States Court of Appeals, Third Circuit.
    Argued March 1, 1973.
    Decided April 24, 1973.

      Morton Stavis, Irvin L. Solondz, Newark, N. J., for appellant.
    William G. Scott, Donald L. Berlin, Lieb, Teich & Berlin, East Orange, N. J., for appellees.
    Before MARIS and ALDISERT, Circuit Judges, and GORBEY, District Judge.
   OPINION OF THE COURT

ALDISERT, Circuit Judge.

The question presented is whether appellant was prejudiced by error during the course of the trial of an action brought by him under the Civil Rights Act, 42 U.S.C. § 1983, against certain police officers and the City of Newark, “for a brutal assault and battery inflicted upon him by the Newark police officers DeSimone and Pontrelli, without cause, justification, or provocation.” We have concluded that there was no reversible trial error as to the appellant and will affirm the judgment of the district court.

Appellant, a black man, was driving a taxicab in the City of Newark on the evening of July 12, 1967, when he was stopped by police officers DeSimone and Pontrelli for an alleged traffic offense. Following a verbal exchange, the policemen took appellant into custody and brought him to the precinct house. While in custody he sustained injuries. It was the plaintiff’s contention that these injuries were caused by an assault and battery committed upon him by the police. The police contended that appellant violently resisted arrest, had to be carried from the police car to the precinct house, and that “while being carried, plaintiff kicked and wiggled and thrashed about so violently that the officers carrying him were caused to fall,” and that, in turn, the plaintiff also fell and that the injuries received were due to the fall on the steps of the station house.

Before treating appellant’s assignments of error, we address the jurisdictional posture of this appeal. Although federal jurisdiction was based on the general federal question statute, 28 U.S.C. § 1331, and the civil rights jurisdictional statute, 28 U.S.C. § 1343, and although the remedy exclusively relied on by appellant was the Civil Rights Act, 42 U.S.C. § 1983, appellant tried the case as a civil tort action. Indeed, at oral argument on appeal, in response to specific questions from the court, appellant’s counsel asserted that the theories of negligence, res ipsa loquitur, and intentional assault and battery, which form the major bases of this appeal, were properly brought as an integral part of the § 1983 remedy. It is, of course, fundamental that the Civil Rights Act permits recovery for only “deprivations of any rights, privileges, or immunities secured by the [federal] Constitution and [federal] laws.” We have recently said: “It becomes important to delineate that conduct which is actionable in state courts as a tort, and that which is actionable in federal courts under § 1983. The two rights of action do not always stand in pari materia. Some common law and statutory torts, although actionable in a state forum, do not rise to constitutional dimensions. The converse is equally true. Conduct may be actionable as a deprivation of constitutional rights where no force and violence has been utilized, and there exists no orthodox counterpart of state common law or statutory relief available.” Howell v. Cataldi, 464 F.2d 272, 278 (3d Cir. 1972).

Thus, we have previously held “that a tort committed by a state official acting under color of state law is [not], in and of itself, sufficient to show an invasion of a person’s right under the Act [§ 1983].” Kent v. Prasse, 385 F.2d 406, 407 (3d Cir. 1967). Similarly, an averment of improper medical treatment was held insufficient to state a cause of action under the Civil Rights Act, Gittlemacker v. Prasse, 428 F.2d 1 (3d Cir. 1970); Fear v. Commonwealth of Pennsylvania, 413 F.2d 88 (3d Cir.), cert. denied, 396 U.S. 935, 90 S.Ct. 278, 24 L. Ed.2d 234 (1969); as was an averment of inferior medical treatment facilities for treatment of an ear infection, Kontos v. Prasse, 444 F.2d 166 (3d Cir. 1971) ; as was an averment of being forced to work in prison on a press which was dangerous and unfit and which had previously been condemned, Kent v. Prasse, supra, 385 F.2d at 407; as was an averment of professional malpractice against an attorney, Fletcher v. Hook, 446 F.2d 14, 16 (3d Cir. 1971).

We have no hesitancy in concluding, therefore, that appellant’s counsel proceeded under fundamental misapprehensions that § 1983 subsumed these state tort causes of action. Had the ease been presented to the jury in this light by the trial judge, there would be no necessity to discuss the points raised on this appeal; we would have simply dismissed the appeal for want of federal jurisdiction of the tort claims, there being no averment of diversity between the parties, and there being no actual diversity of citizenship. Without the benefit of a proper pleading in the complaint, however, the trial court treated the tort claim as an independent state claim appended to the claim based on federal law under § 1983. The trial court obviously exercised discretion under instructions contained in United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966), that if the state and federal claims derive from a common nucleus of operative fact, and if they “are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues there is power in federal courts to hear the whole.”

That there is power to hear a pendent state claim does not mean that its assumption is automatic or that the federal courts should be hospitable to such claims without proper pleadings. It is hornbook law that the jurisdiction of the federal court must appear in the plaintiff’s statement of his claim. Joy v. City of St. Louis, 201 U.S. 332, 26 S.Ct. 478, 50 L.Ed. 776 (1906). “It is incumbent upon the plaintiff properly to allege the jurisdictional facts, according to the nature of the case. ... He must allege in his pleadings the facts essential to show jurisdiction.” McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182, 189, 56 S.Ct. 780, 782, 785, 80 L.Ed. 1135 (1936). See also, F.R.Civ.P. 8(a)(1).

Procedural requirements aside, dictates of fundamental fairness require that a defendant have the opportunity to interpose any objection to the annexation of a pendent state claim to a federal question claim. In the case at bar, the defendants did not object to the unpleaded theory of the plaintiff, the reception of evidence thereunder, and the court’s charge to the jury. Having received a favorable verdict, defendants do not press this point, and properly so, for they now have the advantage of res judicata on the state claims.

Our analysis of jurisdiction, although not invited by the parties, is a critical prerequisite to a consideration of appellant’s contentions, for this threshold determination directs us to the appropriate substantive law in considering claims of negligence, assault and battery, and res ipsa loquitur. Here again, appellant’s counsel was in basic error when he advised the court, at oral argument, that federal substantive law, and not state law, would govern these claims. See Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

Additionally, we observe that- appellant did not object to the § 1983 charge given by the trial court, and does not press any specific points on this aspect of the charge. The defendants also made no objection and, therefore, the issue is not before us. We are constrained to observe, nevertheless, that the § 1983 charge would not have withstood an objection by the defendants. Indeed, had an adverse verdict been returned against the defendants, we are persuaded that the charge would not have withstood a contention of plain error. Quoting the Fourteenth Amendment, the court told the jury that it was the theory of the plaintiff that “these men, acting under the color of the State law, wrongfully deprived him of his Constitutional Rights by exceeding their authority in using excessive force in taking him into custody.” At no time did the court define “excessive force” in terms of a constitutional deprivation or a violation of a right protected by federal law. The court also referred to “unlawful acts” of the policemen and essentially charged that if the jury found that the policemen defendants committed “unlawful acts,” they would be liable. Here, too, the court did not describe “unlawful acts” in the context of the Civil Rights Act, but stated simply that “the unlawful acts must be of such a nature or character and be permitted under such circumstances that they would not have occurred but for the fact that the person committing them was an official exercising his official powers outside the bounds of lawful authority.” Such a jury instruction was overbroad, all-encompassing, and did not relate with specificity to any deprivation under the federal constitution or federal laws. Thus, under these instructions, the jury could have found the defendants liable under § 1983 if they found that the police officers committed some “unlawful” act under the civil or criminal laws of the state. Recovery under § 1983 is strictly limited to deprivations under the federal constitution and federal law. But, as we have heretofore observed, this error militated against the defendants only, and, being the winner of the verdict, they do not complain.

Still another pleading error of which appellant was the beneficiary was the inclusion of the City of Newark as a defendant in the § 1983 action. Even though Newark consented to this defendant status, a district court does not have subject matter jurisdiction under § 1983 to entertain a claim against a municipality. In Monroe v. Pape, 365 U.S. 167, 187, 191, 81 S.Ct. 473, 484, 486, 5 L.Ed.2d 492 (1961), the Court observed "that Congress did not undertake to bring municipal corporations within the ambit of § 1979. . . . The response of the Congress to the proposal to make municipalities liable for certain actions being brought within federal purview by the Act of April 20, 1871, was so antagonistic that we cannot believe that the word ‘person’ was used in this particular Act to include them.” See also United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84 (3d Cir. 1969).

That no objection was lodged by Newark at trial is immaterial. “[T]he District Court is vested with authority to inquire at any time whether these [jurisdictional] conditions have been met. They are conditions which must be met by the party who seeks the exercise of jurisdiction in his favor.” McNutt v. General Motors Acceptance Corp., supra, 298 U.S. at 189, 56 S.Ct. at 789. Nor does an agreement to submit to jurisdiction control, for just as it is well settled that the issue of subject matter jurisdiction is always open, so too is it settled that subject matter jurisdiction cannot be supplied by consent of the parties. See, e. g., Knee v. Chemical Leaman Tank Lines, Inc., 293 F.Supp. 1094, 1095 (E.D.Pa.1968). There is some authority, however, suggesting that the fact that the municipality could not have been a defendant under § 1983 would not preclude it from being a proper defendant under the pendent state claim, so long as the other factors conferring pendent jurisdiction under the Gibbs test are present. See Astor-Honor, Inc. v. Grossett & Dunlop, Inc., 441 F.2d 627 (2d Cir. 1971). Here, the court properly charged: “You will recall I stated to you that this case was brought on two grounds. First, against the officers for a violation of his Civil Rights, the second against the City of Newark and the Police Officers, those named and unnamed under the theory of negligence.”

Appellant urges several assignments of trial error, most of which relate to the state claims of negligence and intentional tort and, hence, will be governed by state law. Others relate to the reception of evidence, and will be governed by the broad provisions of F.R.Civ.P. 43.

Appellant contends that the court erred in excluding evidence that other Newark police officers from the Fourth Precinct were guilty of brutal police conduct shortly after the arrest of appellant. This was relevant only on the issue of the liability of the chief of police, and at least as to the state claim, to the issue of the city’s respondeat superi- or liability. The basis of the theory is that Chief Spina knew or should have known of the propensity of his subordinate officers to abuse blacks and, therefore, was negligent in not promulgating prophylactic regulations to prevent this. The relevancy of this evidence at best is highly suspect. After defendant Spina testified, he was dismissed as a party defendant upon motion of the appellant. With Spina out of the case, the relevancy is virtually nonexistent. And even if relevant, factors leading to admissibility could be offset by remoteness, undue prejudice, or confusion of the issues. The matter was within the discretion of the trial judge and we find that he did not abuse his discretion when he refused to admit the evidence. “When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out.” Shepard v. United States, 290 U.S. 96, 104, 54 S.Ct. 22, 26, 78 L.Ed. 196 (1933). See also Rule 403, Proposed Rules of Evidence for the United States Courts and Magistrates.

Next, appellant argues that the trial court erred in permitting the introduction of evidence of written police reports of appellant’s arrest. The records were introduced after the authors of the reports had testified but before their cross-examination. The court admitted the reports on the theory that they were business records. Rule 803, Proposed Rules of Evidence, supra, provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness. . . .
(8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law, or (C) in civil cases and against the government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

The Federal Public Records Act, 28 U.S.C. § 1733, by its terms is not applicable to non-federal public agencies. Thus, resort must be made to the common law business record exception to the hearsay rule. Kay v. United States, 255 F.2d 476 (4th Cir. 1958). As stated in the Advisory Committee’s note to Section 803: “Public records are a recognized hearsay exception at common law and have been the subject of statutes without number. McCormick, § 291. . Justification for the exception is the assumption that a public officer will perform his duty properly and the unlikelihood that he will remember details independently of the record. Wong Wing Foo v. McGrath, 196 F.2d 120 (9th Cir. 1952).” Accordingly, under federal practice, it was not error to admit the police record.

Appellant further assigns as error the refusal to apply the law of res ipsa loquitur to the testimony adduced at trial. It is the theory of the appellant, “that he had been in perfectly good health before he was taken into police custody, that he had been badly beaten while in such custody, and that the police testimony did not provide reasonable explanation of the cause or causes of all of plaintiff’s multiple injuries.” Consideration of this charge is limited to the pendent state claim and, therefore, would be controlled by the substantive law of New Jersey. Erie v. Tompkins, supra. Defendants argue that under New Jersey law for the res ipsa doctrine to apply, there must be indications that the injury could not have resulted from plaintiff’s own conduct. Bornstein v. Metropolitan Bottling Co., 26 N.J. 263, 139 A.2d 404 (1958). Because defendants claimed that it was the plaintiff’s violent kicking and thrashing which caused his fall on the steps of the station house, we are persuaded, therefore, that the doctrine would not apply. Moreover, in Cleary v. Camden, 118 N.J.L. 215, 192 A. 29, 32, affirmed, 119 N.J.L. 387, 196 A. 455 (1937), the court declared:

Of course, where all the facts and circumstances under which an accident occurs are disclosed by the proofs, and the question is whether, under the proofs as submitted, the conduct of the defendant is negligent, there is nothing left to inference, and the doctrine of res ipsa loquitur has no application.

See also Kahalili v. Rosecliff Realty, 26 N.J. 595, 141 A.2d 301 (1958).

The trial court charged the jury that the City of Newark could not be held liable for an intentional tort of its agents or servants. As we have heretofore observed, the liability of the city was properly an issue only on the pendent state claims and not under the § 1983 action; accordingly, New Jersey law will apply. It is apparent that this instruction contravened the rationale of McAndrew v. Mularchuk, 38 N.J. 156, 183 A.2d 74 (1962). It would appear under the doctrine of respondeat superi- or the City of Newark would be held liable for the actions of Officers DeSimone and Pontrelli, even if intentional. We have concluded, however, that this was harmless error. The finding of the jury exonerated DeSimone and Pontrelli of liability under any theory. Because the City of Newark could have been liable only on a theory of respondeat superior, the liability of its servant was a necessary prerequisite to the liability of the master.

Finally, appellant argues: “The lower court erred in permitting testimony as to the plaintiff’s prior conviction in the state court — a conviction since set aside by this court — particularly when the pendency of the appeal to this court was called to the attention of the trial judge.” Prior to the reception of this evidence appellant made a timely motion to exclude evidence that he had been convicted of a state charge of assault and battery upon one of the policemen defendants arising out of this same occurrence. He argued then, as he does now, that although this conviction was affirmed by the New Jersey appellate courts, State v. Smith, 102 N.J.Super. 325, 246 A.2d 35 (1968); 55 N.J. 476, 262 A.2d 868, cert. denied, 400 U.S. 949, 91 S.Ct. 232, 27 L.Ed.2d 256 (1970), he subsequently filed a petition for a writ of habeas corpus in the federal district court, which, although denied by the district court, was the subject of an appeal in this court at that time. The trial court rejected his contention. As a matter of trial strategy, appellant put his own criminal record in evidence. Later, this court reversed the judgment of the federal habeas court and ordered that a writ issue on the basis of an improper jury selection. Smith v. Yeager, 465 F.2d 272 (3d Cir. 1972).

We find no merit in appellant’s contention. Although this court has ordered that a writ of habeas corpus issue, such action is not the equivalent of a reversal of a state conviction. Only the Supreme Court has power, on direct appeal, to reverse a state judgment of conviction. Federal habeas corpus jurisdiction is based on detention simpliciter. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). The jurisprudential effect of the granting of á federal writ is to release relator from custody. It does not have the force and effect of voiding a conviction. Moreover, at the time the evidence was introduced at trial, no court had granted the writ of habeas corpus.

Buttressing our conclusion is the philosophy of proposed Rule 609(c), supra, stating that evidence of a conviction is not admissible under this rule if “. . . the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on innocence.” Since the action of this court in reversing the denial of the writ was not based on the appellant’s innocence, it is extremely doubtful that even if the writ had been granted at the time of the trial whether the evidence of the conviction would have been excluded on the specific theory posed by appellant.

Moreover, it appears to be the general rule that it is permissible to attack the credibility of a witness by showing a previous criminal conviction even though an appeal therefrom or a motion for a new trial is pending. United States v. Owens, 271 F.2d 425 (2d Cir. 1959), cert. denied, 365 U.S. 874, 81 S.Ct. 910, 5 L.Ed.2d 863 (1961); Bloch v. United States, 226 F.2d 185 (9th Cir. 1955), cert. denied, 350 U.S. 948, 76 S.Ct. 323, 100 L.Ed. 826 (1956).

We have carefully considered the other contentions of the appellant and find them to be without merit.

The judgment of the district court will be affirmed.

      . Properly styled, appellant’s § 1983 claim would track two theories: (1) A Fourteenth Amendment deprivation in that without due process of law the police punished him for his alleged traffic violation by administering a physical beating upon him instead of submitting him to trial by jury to determine his guilt or innocence and, if guilty, to be exposed to fine or imprisonment as provided by law. See United States v. Delerme, 457 F.2d 156, 161 (3d Cir. 1972). (2) An Eighth Amendment deprivation in that the police inflicted cruel and unusual punishment.

      . “Although, as originally drafted in 1871, § 1983’s predecessor protected rights, privileges, or immunities secured by the Constitution, the provision included by the Congress in the Revised Statutes of 1874 was enlarged to provide protection for rights, privileges, or immunities secured by federal law as well.” Mitchum v. Foster, 407 U.S. 225, 240 n. 30, 92 S.Ct. 2151, 2161, 32 L.Ed.2d 705 (1972).

      . See also Moor v. County of Alameda, 458 F.2d 1217 (9th Cir.), cert. granted, 409 U.S. 841, 93 S.Ct. 66, 34 L.Ed.2d 80 (1972), where the issue argued before the Supreme Court was whether a federal court has power to exercise jurisdiction over a party on a pendent state claim when the party is not involved in the related federal claim.

      . Rule 43 (a) reads:
      In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules. All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held. In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made. The competency of a witness to testify shall be determined in like manner.


author: KELLEHER, District Judge: WALLACE, Circuit Judge

text:
    Lieutenant Junior Grade Monroe G. PILAND III, United States Navy, 746968, Petitioner-Appellant, v. Captain G. V. EIDSON, Commanding Officer, Naval Inshore Operations Training Center, Mare Island Naval Shipyard, Vallejo, California, Rear Admiral Alfred R. Matter, Commandant, 12th Naval District, Treasure Island, California, Respondents-Appellees.
    No. 71-2853.
    United States Court of Appeals, Ninth Circuit.
    April 18, 1973.

      John H. Vaisey (argued), Mark Borsuk, Somers, Kallen & Vaisey, San Francisco, Cal., for petitioner-appellant.
    Brewster Q. Morgan, Asst. U. S. Atty. (argued), Dwayne Keyes, U. S. Atty., San Francisco, Cal., Rear Admiral Alfred R. Matter, Commandant, Treasure Island, Cal., Capt. G. V. Eidson, Commanding Officer, for respondents-appellees.
    Before ELY and WALLACE, Circuit Judges, and KELLEHER, District Judge.

       Honorable Robert J. Kelleher, United States District Judge, Central District of California, sitting by designation.

   KELLEHER, District Judge:

On September 15, 1971, appellant, while stationed at a Navy Facility, Mare Island, California, submitted his application for discharge from the Naval Service as a conscientious objector. Pursuant to Navy regulations administrative proceedings to determine the validity of appellant’s request were initiated. On October 14, 1971, the Chief of Naval Personnel issued orders directing appellant’s detachment from duty at Mare Island, within the Eastern District of California, and ordering him when detached to report for duty at Naval Station, Adak, Alaska.

Alleging that the transfer was punitive and in violation of his constitutional rights, appellant, on October 28, 1971, filed a petition for writ of habeas corpus, mandamus and injunctive relief, seeking an order of the District Court for the Eastern District of California requiring appellees to cancel the transfer or, in the alternative, restraining appellees from removing appellant from the Eastern District of California until thirty days after completion of final administrative action on his application for discharge. This relief was denied. The District Court found that: there was no jurisdiction under 28 U.S.C. § 2241 since administrative remedies had not been exhausted; on the merits a writ of mandamus should not issue; and, appellant’s constitutional claims lacked merit. Appellant appealed, sought, and was granted by Mr. Justice Douglas a stay of deployment pending appeal.

On January 31, 1972, the Department of the Navy denied appellant’s application for discharge. By this final administrative action it appears that the appeal is moot since appellant, by the stay of deployment, has received all the relief which he requested. However, in oral argument, the court was informed by Government counsel that upon determination of this appeal and the consequent expiration of the stay of deployment, appellant would be sent, forthwith, to Adak, Alaska. Government counsel further advised the court of his view that jurisdiction of the District Court for the Eastern District of California would thereby be ousted, compelling appellant to adjudicate in Alaska the propriety of the denial of his request for discharge.

We have concluded that the process of this court can be invoked and should be exercised to prevent this.

Appellant initiated this action to prevent a transfer that would seriously impede his efforts to establish conscientious objector status. His petition and the showing he made below appear not to be frivolous or motivated by expediency. Indeed, the trial court expressed the view that appellant was sincere in his moral convictions opposing war. But, as the court noted, that question was not properly before the trial court and hence, appellant’s entitlement to conscientious objector status was not there determined. Now that administrative action on appellant’s claim of conscientious objection has been completed it is obvious that appellant will test the legality of the denial.

But, the Government has represented to this court that upon the dissolution of the stay of deployment, appellant will be prevented from judicial pursuit of his remedy except in remote Adak, Alaska. This is exactly what appellant sought to avoid as punitive and constitutionally prohibited.

The appeal is not moot, for preservation of jurisdiction to pursue his remedy by appropriate proceeding is the core of the matter.

We are mindful that courts are properly hesitant to intervene in military affairs. See Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953), rehearing denied 345 U.S. 931, 73 S.Ct. 779, 97 L.Ed. 1360 (1953). However, our concern here is not intrusion upon the miltiary but to insure that access to the courts be preserved to a military officer who seeks judicial determination of an important right. The Government, acting through the Department of the Navy, and particularly as announced by counsel in open court, appears to be without hesitation to intervene in the conduct of judicial matters. It is not for the Government, by the calculated use of military orders, to determine where jurisdiction shall lie for adjudication of disputes in which it may become involved.

It is well established that a person in the armed forces may, by habeas corpus proceedings, seek judicial review of the denial of his application for discharge as a conscientious objector. Jarrett v. Resor, 426 F.2d 213, 217 n.6 (9th Cir. 1970). In Jarrett this court determined that jurisdiction under 28 U.S.C. § 2241(a) requires that a habeas corpus petitioner in the military be physically present and detained in custody within the jurisdiction in which the petition is filed.

A military officer under orders transferring him from a duty station within one. judicial district to another has jurisdictional problems when he seeks to invoke the great writ. While in transit from his dispatching station to his new place of duty he has no recourse, for habeas corpus proceedings, to a judicial district through which he passes and in which he takes leave as he is not “detained in custody” in that district. Jarrett v. Resor, supra. See United States ex rel. Rudick v. Laird, 412 F.2d 16 (2d Cir. 1969), which denied jurisdiction in a similar situation on the ground that the transient petitioner was not then, and never had been detained in custody in that district.

However, appellant, having received notice of orders providing for his transfer to Adak, Alaska, before he was detached, sought relief in the district in which the dispatching station is located. Orders of detachment were subsequently issued on November 1, 1971. Technically, appellant is presently assigned to Adak but appellant is also, technically, in transit between his former duty station at Mare Island and Adak. For the purposes of 28 U.S.C. § 2241, despite the detachment order of November 1, 1971, appellant is in custody within the Eastern District of California. Miller v. Chafee, 462 F.2d 335 (9th Cir. 1972); See Feliciano v. Laird, 426 F.2d 424, 427 n. 4 (2d Cir. 1970); cf. Strait v. Laird, 406 U.S. 341, 92 S.Ct. 1693, 32 L.Ed.2d 141 (1972). Since final administrative action is now complete, habeas corpus will now lie in the Eastern District of California.

Appellant should be afforded an opportunity in the Eastern District of California, where all of his significant contacts with the Navy concerning his conscientious objector status have taken place, and where appellant initiated this action in an attempt to preserve jurisdiction, to test the legality of the denial of his claim. By our order we will preserve that jurisdiction.

Accordingly, it is ordered that a stay of deployment of appellant’s transfer to Adak, Alaska, be issued for a period of thirty (30) days from the filing of this opinion.

It is further ordered that this matter be remanded to the District Court for appellant to take such further proceedings therein as he may be advised to test the legality of the denial of his claim, either by amendment of his original petition or by initiation of a new proceeding.

Remanded.

WALLACE, Circuit Judge

(concurring) :

I concur in the result only. Piland sought to cancel or, alternatively, to restrain any transfer until thirty days after final administrative action on his discharge application. That final action occurred on January 31, 1972, and thirty days have long since elapsed without a transfer.

Because he has received the relief he sought, his appeal from its denial is. moot. Normally a case such as this should be remanded to the district court for dismissal. Duke Power Co. v. Greenwood County, 299 U.S. 259, 267, 57 S.Ct. 202, 81 L.Ed. 178 (1936). However, considering the special circumstances of this ease and the liberality of Fed.R.Civ.P. 15(a), I would vacate the judgment of the district court and remand this case with leave to Piland to amend his pleadings to challenge the administrative denial of his application. Compare Diffenderfer v. Central Baptist Church, 404 U.S. 412, 92 S.Ct. 574, 30 L.Ed.2d 567 (1972); Bryan v. Austin, 354 U.S. 933, 77 S.Ct. 1396, 1 L.Ed.2d 1527 (1957). Such a disposition would achieve the desired effect of preserving the status quo without adopting the unnecessarily broad rule formulated by the majority.


author: CLARK, Circuit Judge:

text:
    James Faldon TURNBOW, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 72-3777
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 18, 1973.

      Richard P. Dambold, Amarillo, Tex. (court appointed), for petitioner-appellant.
    John L. Hill, Atty. Gen., Lang A. Baker, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

        Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y., 431 F.2d 409, Part I (5th Cir. 1970).

   CLARK, Circuit Judge:

On this second appeal from the denial of Turnbow’s third federal habeas corpus petition we affirm the district court’s finding that Turnbow was adequately advised of his right to appellate counsel. We also affirm the denial of habeas relief on his claim of lack of counsel at sentencing — not on the merits of the claim but rather because the issue has never been presented to the state courts of Texas.

On the first appeal in this case, we found that Turnbow’s present petition presented a new ground for habeas relief — specifically, the abridgment of his right to a direct criminal appeal in for-ma pauperis — and remanded to the district court to determine whether this contention was deliberately withheld on appellant’s previous federal habeas applications and for further proceedings as required. Turnbow v. Beto, 464 F.2d 527 (5th Cir. 1972). After an evidentiary hearing at which the appellant appeared with appointed counsel, the district court entered the following findings of fact:

(1) Petitioner did not deliberately withhold from his earlier applications for the writ of habeas corpus his contention that his right to appeal in for-ma pauperis had been abridged; (2) the judge of the trial court did not advise Petitioner of his right to appeal in forma pauperis-, (3) Petitioner’s appointed counsel did advise Petitioner of his right to appeal and had advised him that they would represent him on appeal without compensation if he desired to appeal the conviction; (4) Petitioner was not represented by counsel at sentencing; (5) at the time of sentencing Petitioner knew that he had a right to appeal and knew that the appointed attorneys would represent him if he desired to appeal; and (6) Petitioner at no time advised any responsible state official that he desired to appeal.

On the basis of these findings, the district court denied habeas relief.

Advice Regarding Appellate Counsel

It is well established that, as a matter of right, an indigent defendant is entitled to assistance of court-appointed counsel for the purpose of a direct appeal from a state court conviction. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). In his original petition the Petitioner alleged that he was denied effective assistance of appellate counsel since he was not informed that an attorney would be furnished without charge to prepare his direct appeal. This contention has now been decided adversely to him by the district court, which found that his court-appointed trial counsel discussed the right of appeal with the defendant and advised him that if he desired to appeal, they would represent him without compensation.

The appellant does not suggest that this fact determination based upon conflicting evidence consisting of testimony by the appellant and an affidavit and answers to interrogatories by Homer L. Moss, one of the original court-appointed attorneys, is clearly erroneous. Rather, the appellant now argues that, despite the offer of his trial counsel to represent him on appeal without compensation, that he was entitled to specific advice by the trial judge concerning his right to appeal in forma pauperis. The appellant relies on the opinion of the Second Circuit in United States ex rel. Smith v. McMann, 417 F.2d 648 (2d Cir. en banc 1969), cert. denied 397 U.S. 925, 90 S.Ct. 929, 25 L.Ed.2d 105 (1970), which imposes a duty on the state trial court to give an instruction concerning appellate counsel rights to a convicted defendant who (1) is indigent and (2) does not know his rights. This court dealt with an identical contention in McGriff v. Wainwright, 431 F.2d 897 (5th Cir. 1971). In McGriff we pointed out that even if the mandatory instruction rule of Smith were applicable in this circuit, which it is not, the defendant would not be entitled to relief because he was in fact informed of the availability of free appellate counsel by his appointed trial counsel and thus the failure of the judge to provide additional information regarding appellate counsel did not amount to an abridgment of the right to appeal in forma pauperis. See Bartley v. Kentucky, 462 F.2d 610 (6th. Cir. 1972).

We therefore affirm the judgment of the district court that the Petitioner was not denied the right of direct appeal because of his indigency.

Counsel at Sentencing

It is evident from the record developed on remand that Turnbow was not represented by counsel at sentencing. Gideon v. Wainwright, 372 U.S. 355, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and its progeny establish an absolute right to counsel at any stage of criminal proceedings where substantial rights of an accused may be affected. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), specifically applied Gideon to sentencing proceedings. See also Worts v. Dutton, 395 F.2d 341 (5th Cir. 1968); Houston v. Ellis, 252 F.2d 186 (5th Cir. 1958); and Ellis v. Ellisor, 239 F.2d 175 (5th Cir. 1956).

The court below, having found an absence of counsel during the sentencing proceedings, denied habeas relief on the ground that the Petitioner was not prejudiced thereby. While acknowledging that under Texas procedure sentencing was a critical phase of a criminal case, the court found that the Petitioner had been made fully aware of his rights and had reached a firm decision not to appeal in advance of the sentencing proceeding.

We find it unnecessary to consider the merits of the district court’s decision in this issue, since we find that the appellant’s present contention regarding the absence of counsel during sentencing has not been raised and exhausted before Texas state courts. We therefore affirm the denial of federal habeas relief on this issue on the ground of lack of exhaustion of available state remedies. This affirmance does not prejudice the defendant’s right to present his allegations in the proper forum.

The judgment denying the writ of habeas corpus is

Affirmed.

      . Although Turnbow’s state conviction occurred in 1957, he is entitled to the benefit of Douglas, since the Supreme Court lias given that decision retroactive effect. Smith v. Crouse, 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d 1039 (1964).

      . By analogy, the apjiellant points out that federal district courts are required to advise a criminal defendant of his right to appeal and of the right to apply for leave to appeal in forma pauperis. F.R.Crim.P., Rule 32(a)(2). (1966 Amendments).

      . It is the established law in this circuit that:
      For a petitioner to be entitled to post-conviction relief, it is not enough to show that indigency occasioned the petitioner’s inability to employ counsel or to appeal; the petitioner must show that the State deprived him of his Fourteenth Amendment rights. State action is shown when a responsible official in the State’s system of justice rejects a request for counsel or fails to take proper steps toward appointment of counsel for a convicted defendant when he has knowledge of the defendant’s indigency and desire for appellate counsel, (emphasis added).
      Pate v. Holman, 341 F.2d 764, 775 (5th Cir.), modified 343 F.2d 546 (5th Cir. 1965); Giles v. Beto, 437 F.2d 192 (5th Cir. 1971); McGriff v. Wainwright, supra, 431 F.2d at 899; Goforth v. Dutton, 409 F.2d 651 (5th Cir. 1969); Beto v. Martin, 396 F.2d 432 (5th Cir. 1968). See United States ex rel. O’Brien v. Maroney, 423 F.2d 865 (3rd Cir. 1970).

      . Although the Second and Seventh Circuits —United States ex rel. Diblin v. Follette, 418 F.2d 408 (2d Cir. 1969); United States ex rel. Singleton v. Woods, 440 F.2d 835 (7th Cir. 1971) — emphasize the role of the trial judge in informing an indigent defendant of his appeal rights; this circuit’s rule which relies upon advice of counsel — e. g., Thomas v. Beto, 423 F.2d 642 (5th Cir. 1970) and Andry v. Henderson, 429 F.2d 26 (5th Cir. 1970) — is equally efficacious in result.

      . Mempa was held retroactive in McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968).

      . Punishment having been set by the trial jury at ninety-nine years confinement, the length of sentence was not in issue at the sentencing proceeding since the judge’s action in such a situation are purely perfunctory. Vernon’s Ann.Tex.Code Crim.Pro. art. 42.09.

      . This discussion is not intended as an exercise in the niceties of procedural technicality. The Texas Court of Criminal Appeals lias held in a case virtually identical on the facts to the one sub judice that regardless of an indigent, defendant’s previously announced intentions in regard to appeal, the absence of counsel during the sentencing proceeding is a violation of Sixth and Fourteenth Amendment rights. Ex parte Vestal, 468 S.W. 2d 372 (Tex.Cr.App.1971).