text:
    Daniel Edward HENRY, etc., et al., Individually and on behalf of all persons similarly situated, et al., Intervenors, Plaintiffs-Appellees, v. Honorable John E. WARNER, Individually and in his capacity as Secretary of the Navy, et al., Defendants-Appellants.
    No. 73-1694.
    United States Court of Appeals, Ninth Circuit.
    March 27, 1974.
    Joel Levine, Asst. U. S. Atty. (argued), John E. Nordin, Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Los Angeles, Cal., for defendants-appellants.
    Nathan R. Zahm (argued), Sherman Oaks, Cal., A. L. Wirin, Fred Okrand, Laurence R. Sperber, Los Angeles, Cal., for plaintiffs-appellees.
    Before ELY, HUFSTEDLER and TRASK, Circuit Judges.
   ORDER

Under the compulsion of this court’s opinion in Daigle v. Warner (9th Cir. 1973), 490 F.2d 358, the orders and judgment are ordered vacated and the cause is remanded to the district court for reconsideration in the light of Daigle.

       Judges Ely and Hufstedler disagree with the holding of Daigle in that both believe that, absent emergency circumstances, the due process clause requires the appointment of counsel or a counsel substitute in all summary courts martial, without the limitations placed upon that right by the majority of the Daigle panel. Judge Ely adds his thought that if, under Supreme Court authority, a civilian is entitled to the assistance of an attorney in a hearing wherein the risk is no more than minimal confinement, then one in the military service of his country, facing much graver consequences, should be entitled to the same consideration. Judge Trask adheres to his views expressed, concurring and dissenting, in Daigle. All members of this panel, however, follow Daigle because it is the law of this circuit.


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    Lawrence R. METSCH v. The UNITED STATES.
    No. 3-73.
    United States Court of Claims.
    March 20, 1974.
    Lawrence R. Metsch, pro se.
    Alan L. Ferber, Washington, D. C., with whom was Acting Asst. Atty. Gen. Irving Jaffe, for defendant. Judith Ann Yannello, Washington, D. C., of counsel.
    Before COWEN, Chief Judge, and DAVIS and SKELTON, Judges.
   OPINION

DAVIS, Judge.

Lawrence R. Metsch, an able young lawyer of principle, sues to recover the difference in pay between the salary of an Associate Law Clerk, JSP-11, and that of a Senior Law Clerk, JSP-12, for the period from September 1, 1971 to November 15, 1971. His claim is that he was denied that pay by an erroneous and illegal decision of the Administrative Office of the United States Courts.

In April 1971 Mr. Metsch became a law clerk (Associate Law Clerk, JSP-11) to a United States Circuit Judge; he met the objective qualifications for appointment as Senior Law Clerk, JSP-12, and was considered by the judge for such a post but could not be employed at that level because the judge would thereby exceed the allowable maximum for aggregate salaries of his staff.

At the beginning of September 1971 the judge’s other clerk (who was a Senior Law Clerk, JSP-12) left and the judge wrote to the Administrative Office requesting plaintiff’s promotion to Senior Law Clerk, and the appointment of another lawyer as Associate Law Clerk. With respect to Mr. Metsch, the judge wrote: “If it has any bearing on the present wage freeze under the President’s August 15 proclamation, I would say with [the prior Senior Law Clerk] leaving, Mr. Metsch will take on added duties and extended responsibilities. In a word, this is a justified promotion, not a salary increase.” The parties have stipulated that, after the new clerk joined the office (on September 6, 1971), plaintiff assumed certain added “duties and responsibilities” in that the judge came to look upon him as his “right arm”, mainly for the expeditious and efficient processing of the professional work of the office, and the judge also looked to Mr. Metsch to indoctrinate the new clerk in his duties and to exercise some degree of supervision during his early period of employment.

The Administrative Office rejected plaintiff’s promotion, at that time, “in view of the current freeze on the salaries of Federal employees”; the Office regarded the request as one for promotion to a higher grade in the employee’s current job, rather than promotion to a different job. On the expiration of the freeze period (the so-called Phase I) on November 15, 1971, the promotion was made effective as of that date. It was not retroactive.

Plaintiff’s basic contention is that the decision of the Administrative Office not to implement, during Phase I, the judge’s request for plaintiff’s promotion was contrary to the Economic Stabilization Act of 1970, Title II of Pub.L. 91-379, 84 Stat. 796, 799 ff., 12 U.S.C. § 1904 n., and to the policies and guidelines adopted under that legislation for Phase I by the Cost of Living Council and the Office of Emergency Preparedness. In plaintiff’s eyes, the statute, the policies and the guidelines all permitted the promotion, and in fact mandated it when taken together with the regulations governing the employment of law clerks to federal judges.

We are forbidden, however, to scrutinize the merits of this position. The Economic Stabilization Act, as amended, makes it very clear that the federal district courts have exclusive original jurisdiction of this kind of case. By Pub.L. 92-210, 85 Stat. 743, 748-750 (Act of December 22, 1971), Congress added § 211, “Judicial review”, to the Stabilization Act, creating the Temporary Emergency Court of Appeals and channeling cases under the Act to the district courts and then to that special appellate court Subsection (a) gives the district courts “exclusive original jurisdiction of cases or controversies arising under this title [the Economic Stabilization Act], or under regulations or orders issued thereunder, notwithstanding the amount in controversy * * Plaintiff challenges an order of the Administrative Office which rested on that agency’s understanding and implementation of the Act and of the guidelines and policies (under the Act) of the Cost of Living Council and the Office of Emergency Preparedness.

Mr. Metsch does not deny that his case squarely presents an issue under the Act, its regulations and orders. His contention is that he falls under the latter two-thirds of subsection (a) (note 2, supra) — especially the proviso protecting “the power of any court of competent jurisdiction to consider, hear, and determine” a stabilization issue raised by way of defense. But the statute expressly excludes from this proviso “a defense based on the * * * validity of action taken by any agency under this title”, and the validity of the Administrative Office’s order rejecting plaintiff’s promotion is undeniably at stake. The last sentence of subsection (a) permits removal of such cases from state courts, but it is implicit in the whole paragraph that if removal to a district court is not sought the state court simply has no jurisdiction to review or set aside the agency’s order under the Act (and its regulations). The report of the Senate Banking Committee on § 211 bears this out. S.Rep.No.92-507, 92d Cong., 1st Sess., U.S.Code Cong. & Admin.News 1971, pp. 2283, 2292.

There is no adequate reason under the statute to treat this court differently, though we are of course otherwise competent to hear a federal employee’s suit for back-pay. The text of § 211(a) blankets this court (as well as state tribunals), and the legislative purpose compels us to read the statute as written. Congress did not wish to ensure merely that stabilization problems would be handled by federal rather than state courts; it wanted to attain speed and consistency of decision by funnelling into the district courts and then into the Temporary Emergency Court of Appeals all questions of constitutionality and validity under the Act. See S.Rep.No. 92-507, 92d Cong., 1st Sess., U.S.Code Cong. & Admin.News 1971, at pp. 2292-2294. The necessary result is that other federal courts cannot decide such issues. This has been the general reading given to § 211. See Municipal Intervenors Group v. Federal Power Commission, 153 U.S.App.D.C. 373, 473 F.2d 84, 90-91 (1972); Municipal Elec. Util. Ass’n of Alabama v. Federal Power Commission, 485 F.2d 967, 970-971 (C.A.D.C.1973); City of Groton v. Federal Power Commission, 487 F.2d 927, 935 (T.E.C.A.1973).

Faced directly, as we are, with the validity of the order of the Administrative Office with respect to plaintiff’s promotion, we cannot proceed. We can, however, transfer the case under 28 U.S.C. § 1506, our analogue for the removal provisions of chapter 89 of Title 28, if the interest of justice so requires. We think that plaintiff’s case is worthy of resolution, and transfer would tend to promote the attainment of justice.

Accordingly, the case is ordered transferred under 28 U.S.C. § 1506 to the United States District Court for the Southern District of Florida.

       The necessary facts, based on the parties’ stipulations, are stated in the opinion.

      . The requisite funds would now be available for both appointments.

      . Section 211 provides in pertinent part:
      “(a) The district courts of the United States shall have exclusive original jurisdic- ' tion of cases or controversies arising under this title, or under regulations or orders issued thereunder, notwithstanding the amount in controversy; except that nothing in this subsection or in subsection (h) of this section affects the power of any court of competent jurisdiction to consider, hear, and determine any issue by way of defense (other than a defense based on the constitutionality of this title or the validity of action taken by any agency under this title) raised in any proceeding before such court. If in any such proceeding an issue by way of defense is raised based on the constitutionality of this title or the validity of agency action under this title, the case shall be subject to removal by either party to a district court of the United States in accordance with the applicable provisions of chapter 89 of title 28, United States Code.
      “ (b) (1) There is hereby created a court of the United States to be known as the Temporary Emergency Court of Appeals, which
      shall consist of three or more judges to be designated by the Chief Justice of the United States from judges of the United States district courts and circuit courts of appeals. * * *
      “(2) Except as otherwise provided in this section, the Temporary Emergency Court of Appeals shall have exclusive jurisdiction of all appeals from the district courts of the United States in cases and controversies arising under this title or under regulations or orders issued thereunder. Such appeals shall be taken by the filing of a notice of appeal with the Temporary Emergency Court of Appeals within thirty days of the entry of judgment by the district court. *****
      “ (e) (2) Any party aggrieved by a declaration of a district court of the United States respecting the validity of any regulation or order issued under this title may, within thirty days after the entry of such declaration, file a notice of appeals therefrom in the Temporary Emergency Court of Appeals. * * * ”

      . In chiding the defendant for delaying, until its brief on the merits, the suggestion that this court is without jurisdiction, plaintiff says in his brief: “It was immediately apparent from the face of the petition [in this court] that the propriety of action taken by an official of the United States Government under the color of the Economic Stabilization Act of 1970, as implemented would be the central legal issue in this case”. (It would have been better if the jurisdictional question had been raised earlier, but we must of course consider the issue now that it has been brought to our attention.)
      Although the period for which plaintiff sues antedated the enactment of § 211 by Pub.L. 92-210, supra, this action was begun thereafter and was clearly intended to be governed by the new provisions for judicial review. See § 211(h) ; S.Rep.No.92-507, 92d Cong., 1st Sess., U.S.Code Cong. & Admin.News, 1971, pp. 2283, 2294.

      . Chapter 89 of Title 28 relates to removal from state courts to the district courts.

      . “If either of the two issues mentioned above, constitutionality of the Act or validity of a regulation or order issued under the Act, are raised, no court, other than a Federal district court, has jurisdiction to act upon a case involving these issues. Such case should be subject to a motion to dismiss or similar motion. If it is so dismissed, either party to the action may move to remove the case to Federal district court for further action.”

      . We are informed that, during the ninety-day freeze period of Phase I, 52 requests fer “promotion” or “reclassification” within the category of secretary and within the category of law clerk were made; all were denied by the Administrative Office.


author: MILLER, Judge.

text:
    R. J. REYNOLDS TOBACCO COMPANY, Appellant, v. AMERICAN BRANDS, INC., Appellee.
    Patent Appeal No. 9102.
    United States Court of Customs and Patent Appeals.
    April 4, 1974.
    R. Bradlee Boal, Cooper, Dunham, Clark, Griffin & Moran, New York City, attorney of record, for appellant.
    Marie V. Driscoll, Lenore B. Stough-ton, Rogers, Hoge & Hills, New York City, attorneys of record, for appellee.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   MILLER, Judge.

This is an appeal from the decision of the Trademark Trial and Appeal Board, 173 USPQ 446 (1972), dismissing appellant’s opposition to appellee’s application serial No. 355,289, filed March 26, 1970, for the registration of ADVANCE for cigarettes. Opposition is predicated on appellant’s registration No. 784,715, issued February 9, 1965, of VANTAGE for cigarettes. We affirm.

First use and first use in interstate commerce from March 10, 1970, are alleged in appellee’s application. Concerning appellee’s sales, the board found that:

Applicant has sold cigarettes under the mark “ADVANCE” periodically since February 1970, but only in Los Angeles, California and Providence, Rhode Island. Sales have not been “commercially substantial”. Applicant has not advertised or promoted “ADVANCE” cigarettes and has not test marketed these cigarettes.

The mark was published for opposition in the Official Gazette on July 7, 1970.

Appellant is the prior user. Appellant’s sales of cigarettes from 1965 to 1970 were “extremely limited” and were conducted without any test, marketing or advertising. In December, 1969, or January, 1970, a supplier of filter materials and filter configurations offered appellant a “unique” filter. Having found that the filter could deliver full flavor with low tar and nicotine, the initial step was to select a trademark which would communicate this feature of the cigarette to the consuming public. Desiring to move quickly, appellant selected a mark from its name bank which it thought connoted “an advance, an advantage . . . superiority, something different, something new.” An agreement with the filter supplier was reached in February or March of 1970. On April 17, 1970, appellant announced that VANTAGE cigarettes would be nationally distributed. Sales commenced July, 1970, only in Portland, Oregon, and Syracuse, New York, since at that time adequate production facilities for national distribution were not yet available. Nationwide introduction commenced November 2, 1970, with advertising beginning one week prior thereto.

Appellant’s notice of opposition was timely filed (apparently through extensions of time) on November 12, 1970. According to the deposition of the product manager of VANTAGE cigarettes, a one percent market share was secured within approximately eight weeks after nationwide introduction; sales thereafter increased at a moderate rate; use of VANTAGE was extended to a menthol filter cigarette in April or May of 1971; millions of dollars in advertising were expended in the promotion of VANTAGE cigarettes through various .media ; and extensive print advertising was undertaken in 1971. He also stated in a deposition taken on May 13, 1971, that eighty million match books bearing a representation of VANTAGE cigarette packages were authorized for distribution throughout 1971.

In holding that there was no likelihood of confusion between the marks, the board found that the marks appeal to cigarette customers in quite a different way, are everyday words with distinct differences in sound and appearance, have well-understood meanings which are not synonymous, do not create similar commercial impressions, and are readily distinguished by the public.

In addition to arguing similarity of sound and appearance, appellant particularly emphasizes similarity in meaning and its extensive advertising and promotional efforts of VANTAGE cigarettes. In support of its position, appellant cites Hancock v. American Steel and Wire Company of New Jersey, 203 F.2d 737, 40 CCPA 931 (1953), which held that TORNADO for wire fencing was likely to be confused with CYCLONE for wire fencing.

Although supporting the board’s decision concerning the dissimilarities between the marks, appellee argues that evidence of use of appellant’s mark may not be considered for the period subsequent to either the date of applicant’s first use or the filing date of its application for registration.

The Issue of Terminal Date for Evidence Bearing on the Question of Likelihood of Confusion

Before reaching the issue of likelihood of confusion, the threshold argument raised by appellee with respect to appellant’s evidence of use must be considered. Essentially, the question is: through what point in time is evidence bearing on the issue of likelihood of confusion admissible? The question of whether likelihood of confusion at the time of opposition is not sufficient to defeat registration was recognized in Gillette Company v. “42” Products Ltd., Inc., 396 F.2d 1001, 55 CCPA 1347 (1968), but was left unanswered by the majority. In a concurring opinion, Judge Almond stated:

I would reach the issue, avoided by the majority, of whether the time for determining the possibility of likelihood of confusion is the date of first use of the mark sought to be registered or the date of the opposition proceedings.
The statutory command concerning likelihood of confusion is expressed in prospective language: . . . This means that registration is prohibited if there is today a likelihood of confusion, and the question of whether confusion was likely ten or twenty years ago is irrelevant.
Section 2(d) does not speak of priority but rather of conditions extant at the time the application for registration is before the Patent Office. Contour Chair-Lounge Co., Inc. v. Englander Company, Inc., 324 F.2d 186,51 CCPA 833 [1963].

“Today” should be interpreted in light of section 15 U.S.C. § 1071 which restricts evidence in appeals to this court from the Trademark Trial and Appeal Board to that produced before the Patent Office. Obviously it would serve no useful purpose to deny registration because in the past there existed a likelihood of confusion when, during the time registration is under consideration, there exists no likelihood of confusion. Conversely, it would frustrate the purpose of the statute to permit registration when, during the time registration is under consideration, there is a likelihood of confusion — although in the past there existed no likelihood of confusion. Exclusion of evidence bearing on the issue of likelihood of confusion for the period that registration is under consideration would, if followed by registration, merely force the opposing party to resort to a cancellation proceeding.

This court has, in fact, considered evidence bearing on the issue of likelihood of confusion covering a period subsequent to the date of the application for registration in a number of cases. In Industria Espanola De Perlas Imitacion v. National Silver Co., 459 F.2d 1049, 59 CCPA 1058 (1972) an application for registration was filed March 23, 1966, and the notice of opposition was filed May 29, 1967. 3 The court in reaching its decision that there was a likelihood of confusion considered evidence of sales and advertising to the end of 1967. Myrurgia, S. A. v. Comptoir De La Parfumerie, S. A. Ancienne Maison Tschanz, 441 F.2d 673, 58 CCPA 1167 (1971) involved an opposition proceeding against an application for registration filed July 28, 1964. In deciding that there was a likelihood of confusion, the court considered opposer’s advertising expenditures and sales for the period 1964 through September 30, 1966. In Geigy Chemical Corporation v. Atlas Chemical Industries, Inc., 438 F.2d 1005, 58 CCPA 972 (1971) an application for registration was filed March 19, 1965. The holding in favor of the opposer that there was a likelihood of confusion was based on consideration of sales and advertising expenditures for the period from 1960 through 1966.

The correctness of this approach finds support in decisions of this court on sufficiency of the evidence under 15 U.S.C. § 1052(f) to overcome an allegation of descriptiveness under section 1052(e) and under 1052(d) regarding concurrent use registration. In re Thunderbird Products Corporation, 406 F.2d 1389, 56 CCPA 969 (1969) involved a mark which was suitable for registration as of the application filing date, but was determined by the Patent Office to be descriptive on the basis of evidence running almost two years later. This court affirmed the denial of registration, holding “that the time when the issue of registrability is under consideration extends at least to the time the application is acted on in the Patent Office.” The court relied on two prior cases: DeWalt, Inc. v. Magna Power Tool Corp., 289 F.2d 656, 48 CCPA 909 (1961), where it was stated that descriptiveness “must be judged and the right to registration decided on the basis of the factual situation as of the time when registration is sought,” the court observing that “Trademark rights are not static” and that “words not descriptive today may, through usage, be descriptive tomorrow”; McCormick & Company, Inc. v. Summers, 354 F.2d 668, 53 CCPA 851 (1966), where the court said that “registrability of a mark must be determined on the basis of facts as they exist at the time when the issue of registrability is under consideration.”

In concurrent use proceedings, this court, in In re Beatrice Foods Co., 429 F.2d 466, 57 CCPA 1302 (1970), was confronted with the question of the time prior to which evidence of trademark usage must be established in order to determine the territorial rights of both parties. The court, describing this as “the cut-off day for establishing rights by a showing of trademark use,” held the “cut-off day” to be “the close of the testimony period,” citing McCormick and Thunderbird, supra.

In view of the foregoing, we hold that evidence bearing on the issue of likelihood of confusion is admissible for the period extending through the latest date permitted by the procedural rules of the Patent Office for taking testimony and presenting evidence.

The Issue of Likelihood' of Confusion

Turning to the issue of likelihood of confusion among purchasers, all evidence of record concerning appellant’s advertising expenditures and sales of VANTAGE cigarettes and extension of use of its mark to a menthol filter cigarette is to be considered. Since the marks involved are applied to identical goods in identical channels of trade, the issue is to be determined on the basis of the similarity (or lack thereof) of sound, appearance, and meaning of the marks themselves. Appellant admits that those who buy cigarettes on a regular basis are not likely to confuse the two marks, but argues that the “casual purchaser” (whom it does not define) is significant in the one percent market share VANTAGE has secured. While we would agree that the “casual purchaser” might be a factor to be considered, there is no evidence to show either that the factor here would be “significant” or that a “casual purchaser” is likely to be any more confuséd than a regular purchaser.

The fallibility of memory of the purchaser is, of course, a factor to be considered. Geigy Chemical Corporation v. Atlas Chemical Industries, supra. However, the differences between the marks here are persuasive that fallibility of memory would not be a significant factor in determining the likelihood of confusion. Indeed, from the standpoint of sound and appearance, the only real similarity is the syllable “van,” and the marks as a whole are readily distinguishable.

Concerning similarity in meaning, appellant argues that VANTAGE connotes superiority of a cigarette having full flavor with low tar and nicotine, and that ADVANCE would generate the same, or at least substantially the same, connotation. However, VANTAGE connotes a benefit or gain to the purchaser, while ADVANCE connotes progressiveness of the product itself — a different commercial impression.

Accordingly, we hold that there is no likelihood of confusion between the marks.

The decision of the board is affirmed.

Affirmed.

      . This finding by the board is apparently derived from a Request for Admission made by appellant and a Notice of Reliance thereon according to Rule 2.120(b) of the Trademark Rules of Practice, but no response to the Request for Admission is of record. Neither party asserts any error in the board’s finding, or any effect such finding has upon the alleged first use of March 10, 1970. See Rockwood Chocolate Co., Inc. v. Hoffman Candy Company, 372 F.2d 552, 54 CCPA 1061 (1967).

      . “To protect trade-marks, therefore, is to protect the public from deceit, to foster fair competition, and to secure to the business community the advantages of reputation and good will by preventing their diversion from those who have created them to those who have not. This is the end to which this hill is directed.” H.R.Rep.No.219, 79th Cong. 1st Sess. 3 (1945) : S.Rep.No.1333, 79th Cong. 2d Sess. 4 (1946).

      . The filing date of the notice of opposition does not appear in either the decision of this court or that of the Trademark Trial and Appeal Board. However, it is a matter of verifiable certainty from the case record of this court and may, in the exercise of the court’s discretion, he judicially noticed.

      . Although not cited in the Thunderbird Products Corp. case, the court in Roselux Chemical Company, Inc. v. Parsons Ammonia Company, Inc., 299 F.2d 855, 49 CCPA 931 (1962) also stated that registration of a descriptive mark “must be determined on the basis of the facts as they exist at the time when the issue of registrability is under consideration.”

      . Appellee has cited a number of cases for its proposition that evidence of use by an opposer cannot be considered for the period subsequent to either an applicant’s first use or the filing date of the application. However, cases such as Williamson-Dickie Manufacturing Company v. Carl-Morris Mfg. Inc., 114 USPQ 257 (P.O. Ex. in Chief 1957), were concerned with the issue of priority of use and, as appellee well states, “priority has never been an issue in this opposition . . ..” Scholl Mfg. Co., Inc. v. Principle Business Enterprises, Inc., 150 USPQ 217 (TTAB 1966) involved expansion of opposer’s use of its mark to cover substantially different goods, which it did not commence manufacturing until after the applicant began using its mark on the same goods (slippers) — a different situation from that involved here, where appellant’s expansion of use of its mark was merely from regular to menthol cigarettes.

      . Hancock v. American Steel and Wire Company of New Jersey, supra, which involved the marks “TORNADO” and “CYCLONE” is, therefore, inapposite.


author: PER CURIAM:

text:
    Marvin MANDEL, Governor of Maryland, et al., Plaintiffs-Appellees, v. William E. SIMON, Administrator, Joseph A. La Sala, Regional Administrator, et al., Defendants-Appellants.
    No. 4-4.
    Temporary Emergency Court of Appeals.
    Feb. 27, 1974.

      Allen W. Hausman, Atty., Dept, of Justice, Washington, D. C., with whom Irving Jaffe, Acting Asst. Atty. Gen., William E. Nelson, and Stanley D. Rose, Attys., Dept of Justice, were on the brief for appellants.
    Alan M. Wilner, Chief Legislative Office, State of Maryland, Baltimore, Md., for appellees. ’
    Before TAMM, Chief Judge, and HASTIE and CHRISTENSEN, Judges.
   PER CURIAM:

In this proceeding the court is called upon to review a mandate issued by a judge of the United States District Court for the District of Maryland directing Appellants to allocate immediately to the State of Maryland an additional 16,000,000 gallons of gasoline. Although the record presently before the court suggests a substantial question as to the standing of Appellees, plaintiffs below, to maintain this action, the court is of the view that it is in the best interests of all parties to decide the case upon the merits.

Our review of the present record convinces us that in implementing the petroleum allocation program to date, Appellants have been neither arbitrary nor capricious. The plan must necessarily be considered in light of the fact that the governing statute demanded immediate and extensive regulation of a new and complex area; the program is only in its first month of operation. There seems to be no dispute of the correctness of the testimony of John W. Weber, Asst. Administrator, as to the manner in which initial allocations were determined. We recognize that because of the sometimes inaccurate data available to Appellants, maladjustments in the allocation program have been inevitable; but some initial errors cannot, without more, destroy the rational basis upon which the system is premised. Western States Meat Packers Ass’n, Inc. v. Dunlop, 482 F.2d 1401, 1406 (Em.App. 1973).

The record indicates that Appellants are in good faith attempting to correct these inequities as promptly as they are discovered. The Federal Energy Office must have great flexibility during the formative period of regulation. Judicial interference at this time may delay rather than advance effective regulation of this area. See, e. g., Wisconsin v. Federal Power Commission, 373 U.S. 294, 313-314, 83 S.Ct. 1266, 10 L.Ed.2d 357 (1963).

In Pacific Coast Meat Jobbers Ass’n, Inc. v. Cost of Living Council, 481 F.2d 1388 (Em.App.1973), this court upheld the legality of a Cost of Living Council decision which, as here, “[was] reached on the basis of extrapolations from the best data available to the [Council].” 481 F.2d at 1390.

As we said in Pacific Coast Meat Jobbers, supra:

[I]t is not necessary that we decide that the C.L.C.s action was:
. the only reasonable [method], or even that this Court would have reached the same result if the question had arisen in the first instance in judicial proceedings
In a case such as this the “judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.”

481 F.2d at 1391 (citations omitted).

The judgment of the District Court is Reversed.


author: BREITENSTEIN, Circuit Judge.

text:
    Andrew J. SMITH et al., etc., Plaintiffs-Appellees, v. UNITED MINE WORKERS OF AMERICA, an unincorporated association, and Louis Kosec, Defendants-Appellants.
    No. 73-1578.
    United States Court of Appeals, Tenth Circuit.
    April 1, 1974.
    A. Wally Sandack, Salt Lake City, Utah, for plaintiffs-appellees.
    Daniel B. Edelman, Washington, D. C. (Joseph A. Yablonski and • Clarice R. Feldman, Washington, D. C., and Ralph R. Tate, Jr., of Henriksen, Fairbourn & Tate, Salt Lake City, Utah, on the brief), for defendants-appellants.
    Before BREITENSTEIN, MeWIL-LIAMS and DOYLE, Circuit Judges.
   BREITENSTEIN, Circuit Judge.

The district court entered a preliminary injunction forbidding an international union to merge several of its intermediate bodies. We reverse on the ground-that the court did not have jurisdiction.

Defendant-appellant United Mine Workers of America is an international union representing the employees of coal mines and allied industries. It has a three-level structure with the intermediate level composed of districts which in turn are made up of local unions. We are concerned with District 22 which includes Utah, Wyoming, and Arizona. The individual plaintiffs-appellees are members of locals and were designated by the locals to oppose the merger. All of the local unions who appear as plaintiffs-appellees are within the territorial jurisdiction of District 22.

UMWA has had a turbulent history in recent years. See Trbovich v. United Mine Workers of America, 404 U.S. 528, 92 S.Ct. 630, 30 L.Ed.2d 686, and United States v. Boyle, D.C.Cir., 482 F.2d 755. Many districts have been in trusteeship. Hodgson v. United Mine Workers of America, 153 U.S.App.D.C. 407, 473 F.2d 118, 121. Pursuant to a court-ordered election, new officers were installed in December, 1972. They ordered an investigation of the possibility of merging Districts 10, 15, 22, and 27. After considering the report the International Executive Board approved the merger and ordered an election of officers. The action before us was brought to enjoin the merger. The defendants answered and, among other things, attacked the jurisdiction of the court. An evidentiary hearing was held on the application for a preliminary injunction.

Art. IV, § 2, of the UMWA constitution provides:

“The International Executive Board shall have authority to change the boundaries of Districts as conditions may require; but the boundaries of self-supporting Districts shall not be changed except by a vote of the membership affected, as determined by the District, the referendum to be taken by the officers of the District affected and representatives of the International Union * *

The court held that it had jurisdiction under 29 U.S.C. §§ 185, 411, and 412 and 28 U.S.C. §§ 1331, 2201, and 2202. After finding that District 22 was self-supporting and that no election had been held, the district court enjoined the merger. The International contends that the finding that District 22 is self-supporting is clearly erroneous. We do not reach that issue.

Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) provides:

“Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.”

Section 301(a) confers federal jurisdiction over suits for violations of contracts between labor organizations representing employees in an industry affecting commerce. The International and the locals are labor organizations. See 29 U.S.C. § 152(5) made applicable to § 301(a) by 29 U.S.C. § 142(3). They represent employees in an industry affecting commerce. The contract violation is based on the claim that the action of the International merging districts is a breach of the provisions of the International's constitution relating to changes in the boundaries of districts.

The basic question is whether Congress, by the enactment of § 301(a), intended to confer jurisdiction over internal union affairs which have no connection with industrial peace or to a collective bargaining contract. The legislative history of § 301(a) has been considered in a number of cases. See e. g. Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 348 U.S. 437, 75 S.Ct. 488, 99 L.Ed. 1256; Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972; and Parks v. International Brotherhood of Electrical Workers, 4 Cir., 314 F.2d 886, 915-916, cert. denied 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142. The most that can be said of that history is that Congress did not anticipate the problem which is before us. 314 F.2d at 916. See Parks,

Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972; Dowd Box Co., Inc. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483; Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593, and Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed. 2d 462, all recognize § 301(a) jurisdiction as applying to suits arising out of collective bargaining contracts. Retail Clerks International Association v. Lion Dry Goods, Inc., 369 U.S. 17, 82 S.Ct. 541, 7 L.Ed.2d 503, upheld § 301(a) jurisdiction over a suit by a local union to enforce a strike settlement agreement. Both Retail Clerks, 369 U.S. at 28, 82 S.Ct. 541, and Lincoln Mills, 353 U.S. at 455, 77 S.Ct. 912, say that federal policy established by § 301(a) is to promote industrial peace by permitting enforcement in federal courts of contracts made by labor organizations. To the same effect is Smith v. Evening News Association, 371 U.S. 195, 200, 83 S.Ct. 267, 9 L.Ed.2d 246, which also rejects the con tention that the word “between” as used in § 301(a) refers to “suits” rather than “contracts,” and held that § 301(a) permits a suit by a union member to enforce a collective bargaining contract.

The local unions and their members rely on Parks v. International Brotherhood of Electrical Workers, 4 Cir., 314 F.2d 886, cert. denied 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142. In that case the local had gone on strike in violation of certain requirements of the International’s constitution and the International revoked the local’s charter. The local and some of its members sued the International for injunctive relief to compel the restoration of the charter. The court upheld § 301(a) jurisdiction. In so doing the court recognized that disputes such as the one before it have “traumatic industrial and economic repercussions.” 314 F.2d 916. At the same time the court recognized that the grant of jurisdiction should not be expanded “into a carte blanche for unrestrained judicial inventiveness in the areas of union structure.” 314 F.2d at 917. The court also said, 314 F.2d at 906, that: “Questions as to how relations between an international and its local might best be regulated are for internal settlement or for Congress, which possesses the legislative power.”

Section 301(a) is not restricted to suits arising from collective bargaining agreements. See Retail Clerks, supra, 369 U.S. at 28, 82 S.Ct. 541 (a suit involving a strike settlement agreement). At the same time § 301(a) does not confer jurisdiction of a dispute between a parent union and a local union over the meaning of the parent’s constitution. We recognize that § 301(a) must be liberally applied to promote industrial peace, but that principle has no application here. This controversy relates only to the construction and application of the union constitution and has nothing to do with labor-management relations. It may be that under the law of some states a union constitution is a contract between the union and its members. See International Association of Machinists v. Gonzales, 356 U.S. 617, 618-619, 78 S.Ct. 923, 2 L.Ed.2d 1018, applying California law. We are concerned with federal, not state, law and we must view § 301 in the light of its underlying purpose to provide a federal remedy in eases where, because of difficulties in suing labor associations, other remedies were inadequate. See Lincoln Mills, supra, 353 U.S. at 453-454, 77 S.Ct. 912.

A holding that the word “contracts” as used in § 301(a) encompasses union constitutions would open the doors of the federal courts to every dispute between a parent union and a local union over the meaning and effect of the union constitution. If Congress intended to turn over to the federal courts the control and supervision of internal union affairs which have no external application to industrial peace or to collective bargaining agreements we believe that Congress would have said so explicitly. We agree with the Ninth Circuit that it was not the intent of Congress for the courts to use the LMRA to police intra-union problems. Hotel & Restaurant Employees Local. 400 v. Svacek, 9 Cir., 431 F.2d 705, 706. It follows that § 301 (a) does not confer federal jurisdiction over the case before us.

The district court also held that it had jurisdiction under § 102 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 412. That section gives federal jurisdiction over a suit for the deprivation of “equal rights” guaranteed by § 101(a)(1), 29 U.S.C. § 411(a)(1) which reads:

“Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organizations, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws.”

Section 102 does not confer jurisdiction unless § 101(a)(1) has been violated. Calhoon v. Harvey, 379 U.S. 134, 139, 85 S.Ct. 292, 13 L.Ed.2d 190. The “equal rights” guaranteed are subject to the reasonable rules and regulations in the union’s constitution and bylaws. No claim is presented of any discrimination at any election. The argument attacks the refusal of the International to call for a referendum on the merger question. A referendum is required if the district is self-supporting. The Executive Board of the International found that District 22 was not self-supporting. The attack of the plaintiffs can go only to the reasonableness of the pertinent constitutional provision. Nothing before us establishes that the distinction between self-supporting and non-self-supporting districts is unreasonable or that the requirement of self-support has been unequally applied to discriminate against anyone or any district.

LMRDA is remedial legislation and as such should be liberally construed. International Brotherhood of Boilermakers, etc. v. Braswell, 5 Cir., 388 F.2d 193, 200-201, cert. denied 391 U.S. 935, 88 S.Ct. 1848, 20 L.Ed.2d 854. It does not, however, purport to project absolute judicial control over the internal management of unions. Schuchardt v. Millwrights & Machinery Erectors, Local 2834, 10 Cir., 380 F.2d 795, 797. The rights granted by the Act are specific. Congress did not intend that the Act be an invitation to the courts to intervene at will in the internal affairs of unions. Williams v. International Typographical Union, 10 Cir., 423 F.2d 1295, 1297, cert. denied 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53. There is no allegation and no proof that the constitutional provision before us is unfair or unreasonable or that it has been applied discriminatorily. See Vestal v. Hoffa, 6 Cir., 451 F.2d 706, 709, cert. denied 406 U.S. 934, 92 S.Ct. 1768, 32 L.Ed.2d 135. LMRDA does not confer federal jurisdiction over the suit at bar.

The trial court also found federal jurisdiction under 28 U.S.C. § 1331 (federal question) and §§ 2201 and 2202 (declaratory judgments). We have held that there is no subject-matter jurisdiction under either LMRA or LMRDA. It follows that there is no federal question which would sustain federal question jurisdiction under the mentioned sections.

Reversed and remanded with directions to dismiss the action.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. R. W. LITTLE, INC., Respondent.
    No. 73-1762.
    United States Court of Appeals, Ninth Circuit.
    March 26, 1974.
    Margery Lieber (appeared), NLRB, Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, Peter G. Nash, Gen. Counsel, NLRB, John Irving, Deputy Gen. Counsel, NLRB, Washington, D. C., for petitioner.
    John H. Stephens (argued), of Cox, Castle, Nicholson & Weekes, Los Ange-les, Cal., Thomas R. Waddell of Harrington, Waddell & Gill, San Diego, Cal., for respondent.
    Before DUNIWAY and ELY, Circuit Judges, and CRARY, District Judge.

       E. Avery Crary, United States District Judge, Central District of California, sitting by designation.

   OPINION

PER CURIAM:

The case is before the Court on the application of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, as amended (29 U.S.C. § 151 et seq.), for enforcement of its order, issued January 26, 1973, against R. W. Little, Inc. The Board’s Decision and Order are reported at 201 NLRB No. 71. The unfair labor practices occurred in San Diego, California, where the Company is a contractor •engaged in sandblasting and painting.

In brief, the Board found that the Company violated Section 8(a)(3) and (1) of the Act by discharging two employees because of their grievance activity pursuant to the collective-bargaining agreement between the Company and their Union.

In reviewing the order and record in this matter we must have in mind the limitations on such review and that questions of credibility are for the administrative law judge who has had the opportunity to observe the demeanor of the witnesses. N.L.R.B. v. Thrifty Supply Company, 364 F.2d 508, 509 (9th Cir. 1966). As stated by the Court in N.L.R.B. v. Walton, Mfg. Co., 369 U.S. 404, 408, 82 S.Ct. 853, 855, 7 L.Ed.2d 829 (1962), the judge

“sees the witnesses and hears them testify, while the Board and the reviewing court look only at cold records.”

The Court concludes that upon the record considered as a whole there is substantial evidence to support the findings of the Board as to. the unfair labor practices in question.

The Order of the Board will be enforced.


text:
    Joan MYERS et al., Appellees, v. CIVIL SERVICE COMMISSION, Appellant.
    No. 74-1010.
    United States Court of Appeals, Sixth Circuit.
    March 27, 1974.
    William W. Milligan, U. S. Atty., Cincinnati, Ohio, Irving Jaffe, William Kanter, Jean Staudt, Dept, of Justice, Washington, D. C., for appellant.
    Donald R. Stacy, Paul A. Nemann, Legal Aid Society of Cincinnati, Cincinnati, Ohio, for appellees.
    Before EDWARDS, PECK and EN-GEL, Circuit Judges.
   ORDER

This matter has come on to be considered under a motion filed by the plaintiff-appellee to dismiss the appeal on the ground that appellant has failed to file its brief within forty days after the date of the record herein was filed, which said period expired February 12, 1974. On January 25, 1974, and on February 20, 1974, this Court denied appellant’s “Motion for an Extension of Briefing Time” and its “Renewed Motion for an Extension of Briefing Time,” both asking such extension “until forty (40) days after the district court renders a decision on the appellant’s ‘Motion to Vacate Default Judgment.’ ”

The filing of the notice of appeal had “the effect of immediately transferring jurisdiction from the district court to the court of appeals with respect to any matters involved in the appeal. It divest [ed] the district court of authority to proceed further with respect to such matters . . . .”9 Moore’s Federal Practice, 2d ed., ¶ 203.11; see cases there cited. Thus, as was indicated by this Court in its ruling on said renewed motion, the District Court was then and is now without jurisdiction to consider the motion to vacate the default judgment, which was filed eleven days after the filing of the notice of appeal. In its opposition to the motion presently before us appellant once again relies on a ground lacking validity, namely that the motion to vacate the default judgment is still before the District Court for consideration, and it is therefore concluded that the motion to dismiss the appeal is well taken. Accordingly,

It is ordered that this appeal be and it hereby is dismissed.


text:
    OLYMPIC FOUNDRY COMPANY, a Washington corporation, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
    No. 72-2128.
    United States Court of Appeals, Ninth Circuit.
    Jan. 29, 1974.
    Scott P. Carmpton, Asst. Atty. Gen., Tax Div., Darrell D. Hallett, Trial Atty., Meyer Rothwacks, Thomas L. Stapleton, Richard Farber, U. S. Dept, of Justice, Tax Div., Washington, D. C., Charles W. Billinghurst, Asst. U. S. Atty., Stan Pit-kin, U. S. Atty., Tacoma, Wash., for defendant-appellant.
    Gerald R. Hergert, of Trethewey & Brink, Seattle, Wash., for plaintiff-ap-pellee.
   OPINION

Before CHAMBERS and SNEED, Circuit Judges, and BURNS, District Judge.

PER CURIAM:

The Government seeks to reverse the District Court’s holding that where in a preceding year the alternative method of computing corporate income tax provided in Int.Rev.Code of 1954, § 1201 is utilized, the excess of the taxpayer’s net operating loss deduction carried back from a later year over its ordinary income in such preceding year may be carried forward to succeeding years under Int.Rev.Code of 1954, § 172, even though the amount of the net operating loss deduction in said preceding year is less than the sum of the total of taxpayer’s ordinary and capital gain income for that year.

This issue has been consistently decided against the Government. Chartier Real Estate Co., 52 T.C. 346 (1969), aff’d, 428 F.2d 474 (1st Cir. 1970); Mutual Assurance Society of Virginian Corp., 32 T.C.M. 839 (1973); Sidney Axelrod, 32 T.C.M. 885 (1973); Naegele v. United States, 73-2 U.S.Tax Cas. ¶9696.

All of the arguments pressed by the Government in the instant' case were rejected by these cases. We adopt the position of the First Circuit, the Tax Court and that of the District Court. Accordingly, the judgment is affirmed.

       Honorable James M. Burns, United States District Judge, District of Oregon, sitting by designation.


author: PER CURIAM.

text:
    Percy Lee REID, Jr., Petitioner-Appellant, v. Jimmy ROSE, Warden, DefendantAppellee.
    No. 73-2060.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 15, 1974.
    Decided March 13, 1974.
    David S. Kennedy (Court Appointed), Memphis, Tenn., on brief for petitioner.
    R. Jackson Rose, Asst. Atty. Gen., Nashville, Tenn., on brief for respondent; David M. Pack, Atty. Gen. of Tenn., of counsel.
    Before PHILLIPS, Chief Judge, EDWARDS and LIVELY, Circuit Judges.
   PER CURIAM.

Appellant in this case was charged with and pled guilty to assault with intent to murder and robbery with a deadly weapon when he was 16 years old. He was sentenced to two concurrent sentences of 20 years and 10 years, respectively. He now appeals from denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254 (1970). He contends that his constitutional rights to due process were violated by the facts that at a juvenile court waiver hearing, no testimony was taken prior to the entry of the waiver, and that he was denied counsel at a critical stage in the criminal proceeding because he had no lawyer and was offered none at the juvenile court waiver proceeding.

We would consider that these issues posed substantial problems for critical consideration and probable reversal, absent a 1973 decision of the United States Supreme Court reversing this court in the case of Tollett v. Henderson, 411 U. S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). In Tollett a majority of the court held:

“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett v. Henderson, supra, at 267, 93 S.Ct. at 1608.

We affirm the District Court’s denial of the writ because, and only because, we believe our decision is controlled by Tollett v. Henderson, supra.


text:
    PROVISION HOUSE WORKERS UNION LOCAL 274, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Urban Patman, Inc., Intervenor.
    No. 72-2617.
    United States Court of Appeals, Ninth Circuit.
    Feb. 21, 1974.
    Lionel Richman (argued), Gerald Goldman, of Richman & Garrett, Los Angeles, Cal., for petitioner.
    Abigail Baskir (argued), Marcel Mallet-Prevost, of NLRB, Washington, D. C., Abraham Siegel, Director, NLRB, Los Angeles, Cal., for respondent.
    Stanley E. Tobin (argued), Kenneth M. Simon, David C. Grant, Carl M. Gould of Hill, Farrer & Burrill, Los An-geles, Cal., for real party in interest.
   OPINION

Before KOELSCH, HUFSTEDLER and TRASK, Circuit Judges.

PER CURIAM.

The Board did not exceed its jurisdiction, nor did it abuse its discretion in deferring exercise of that jurisdiction pending arbitration. (National Labor Relations Act §§ 1, 10(a), 29 U.S.C. §§ 151, 160(a); Labor-Management Relations Act § 203(d), 29 U.S.C. § 173(d). Cf. Nabisco, Inc. v. N.L.R.B. (2d Cir. 1973) 479 F.2d 770.) Although the characterization of the dispute as one involving interpretation of a contract, rather than existence of the contract, is not wholly free from doubt, we cannot say that the Board abused its discretion in concluding that contract interpretation was the gravamen of the dispute.

Of course, the Board cannot abdicate its statutory responsibilities by inappropriate deferrals to arbitration. The record before us raises no inference that the Board failed to perform its duties.

Petition denied.


text:
    NATIONAL LABOR RELATIONS Board, Petitioner, v. CLEVELAND PRESSED PRODUCTS CORPORATION, Respondent.
    No. 73-1898.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 14, 1974.
    Decided March 28, 1974.
    Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Joseph E. Mayer, Morton Namrow, Attys., National Labor Relations Board, Washington, D. C., on brief, for petitioner.
    Eugene B. Schwartz, Donald F. Wood-lock, Schwartz, Einhart & Simerka, Cleveland, Ohio, on brief, for respondent.
    Before WEICK, CELEBREZZE and PECK, Circuit Judges.
   PER CURIAM.

This case is before us upon petition by the National Labor Relations Board for enforcement of its order reported at 203 NLRB 58. The Board found that respondent Cleveland Pressed Products Corp. (hereinafter “Company”) violated § 8(a)(1) of the National Labor Relations Act by restraining and coercing its employees because of their union activities and that it also violated § 8(a)(3) and (1) by discriminatorily discharging an employee named Camarda. The Company contests only the discriminatory discharge order, which reinstated the employee with back pay.

The record indicates that Camarda and one Masaveg were maintenance men in the employ of the Company and also happened to be union organizers within the Company’s plant. It appears that in the period leading up to the representation election, these men had several encounters with the Company’s vice-president Kramer and plant manager Gicei. Kramer in particular demonstrated an anti-union bias and was hostile. The Company argues that during this period both Camarda and Masaveg committed several disciplinary infractions sufficient to justify a discharge but that it refrained therefrom because of the pen-dency of the election proceedings. The Board claims that after the election Ca-marda in particular was harrassed by the Company. Some three months after the election, Camarda was discharged after he refused to continue working on a job outdoors for reasons of health. The Board adopted the Administrative Law Judge’s proposed order in which he found that “. . . the real reason for [the Company’s] action, in my view, was Camarda’s continuing leadership in the Union.” We conclude that there is not substantial evidence in the record to support that finding. NLRB v. Latex Industries, Inc., 307 F.2d 737 (6th Cir. 1962).

The record reveals that Camarda had been a constant complainer and protestor for at least a month before the election. Given the series of disciplinary infractions prior to the election, there is substantial evidence that the discharge was based upon the ultimate in a series of such infractions. The fact of an employee’s union activities does not insulate him from discharge where his conduct so warrants. NLRB v. Ace Comb Co., 342 F.2d 841 (8th Cir. 1965). Consequently, although there is evidence of an anti-union animus on the part of the Company, we do not find substantial evidence to support the conclusion that the' discharged employee’s union activities were responsible for the discharge.

Insofar as it relates to the § 8(a)(1) violation, the Board’s order is affirmed and enforcement is granted. With respect to the § 8(a)(3) and (1) violation, enforcement of the Board’s order is denied.


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    ASSOCIATED STUDENTS, INC. OF CALIFORNIA STATE UNIVERSITY— SACRAMENTO et al., Plaintiffs-Appellees, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION et al., Defendants-Appellants.
    No. 73-2278.
    United States Court of Appeals, Ninth Circuit.
    March 14, 1974.

      Richard J. Archer (argued), and Kristina M. Hanson of Sullivan, Jones & Archer, San Francisco, Cal., George H. Gangwere, of Swanson, Midgley, Eager, Gangwere & Thurlo, Kansas City, Mo., for defendants-appellants.
    Nancy B. Reardan (argued), Sacramento, Cal., for plaintiffs-appellees.
    Before BROWNING and ELY, Circuit Judges, and TAYLOR, District Judge.

       Of the District of Idaho, sitting by designation.

   PER CURIAM:

This is an appeal from a decision and order of the district court granting a preliminary injunction prohibiting the defendants-appellants, National Collegiate Athletic Association, et al. (NCAA), from enforcing its freshman eligibility Rule 1.600, hereinafter set forth, only as to the plaintiffs-appellees Lopez and Martinez, and also restraining NCAA from penalizing the California State University at Sacramento (CSUS) for its failure to disqualify the plaintiffs from athletic participation for one year. The district court held that plaintiff Associated Students, Inc. did not have standing in this action, and did not grant the injunction as to the other nine individual plaintiffs for the reason that the year of ineligibility imposed against them had expired.

The district court held that the actions of NCAA, prohibited by the injunction, violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. In so holding, the district coúrt held that the NCAA’s enforcement activities were “state action” and therefore subject to the standards of the Fourteenth Amendment. The court also determined that the preliminary injunction would not alter the status quo ante litem. The appellants contend that each of these holdings was erroneous.

The material facts as found by the district court are undisputed and are as follows:

The eleven individual plaintiffs-appel-lees (plaintiffs) are student-athletes who were admitted to CSUS under the California Administrative Code, Title V, § 40759(b), commonly referred to as the “Four Percent Rule”. Students admitted under that program are not required to take standard achievement tests such as the Scholastic Aptitude Test (SAT) or the American College Test (ACT) in order to qualify for admission. Instead, they are admitted on the basis of such factors as economic need, motivation and maturity. In the opinion of the University, each of the plaintiff-athletes had the potential to succeed academically at the college level, notwithstanding deficiencies in their educational background which would normally have prevented their admission under the usual standards.

The plaintiff Associated Students, Inc. of CSUS is an organization which represents student interests in a number of areas, including athletic programs. The NCAA is an association of most of America’s four year universities and colleges, approximately one-half of which ale public institutions. It is partially financed through dues paid by its members in an amount not exceeding $200 per year for each member institution. The Association sponsors virtually all regional and collegiate athletic competitions including National Collegiate Championship events, invitational and post-season meets and tournaments, as well as certain televised collegiate athletic events.

The court found that one of the goals of the NCAA is to insure that the athlete is an integral part of the student body. Constitution of the NCAA, Article 2, § 2(a)(1972). That apparently in pursuit of that objective, the NCAA adopted Bylaw 4-6-(b)-(l) which is known as the 1.600 rule. Rule 1.600 provides in pertinent part, as follows:

“(b) A member institution shall not be eligible to enter a team or individual competitors in an NCAA sponsored meet, unless the institution in the conduct of all of its intercollegiate athletic programs: (1) Limits eligibility for participation in athletics or in organized athletic practice sessions during the first year in residence to student-athletes who have a predicted minimum grade point average of at least 1.600 (based on a maximum of 4.000) as determined by the Association’s national 'prediction tables or Association-approved conference or institutional tables.”

Under the NCAA prediction tables, a student-athlete’s grade point is predicted on the basis of a formula utilizing (1) either high school grades or rank in high school class and (2) a score on a scholastic aptitude examination (either the SAT or the ACT). If a student has no score reported on either the SAT or ACT, it is impossible for him to predict a 1.600 grade point average as required under the 1.600 Rule, whatever his high school grade point average or rank was.

Subsequent to the adoption of the 1.-600 Rule, Official Interpretation 418 (O.I. 418) of the rule was adopted. Under the NCAA Constitution, Article Six, § 2 (1972), the NCAA Counsel is empowered to make official interpretations of the Constitution and Bylaws which are binding after they are published and circulated to the membership. A pertinent part of O.I. 418 provides:

“A student-athlete who practices or participates while ineligible under the provisions of Bylaw 4-6-(b)-(l) [the 1.600 Rule], shall be charged with the loss of one year of practice and. varsity eligibility by his institution for each year gained improperly which shall be the next year the student is in attendance.....”

As found by the district court, it is not disputed that some NCAA member institutions did not follow the 1.600 Rule and still continued as members in good standing in spite of the fact their teams were barred from participating in NCAA-sponsored events including collegiate championships and post-season competition such as post-season football bowl games, and from appearing in NCAA sponsored nationally televised events. That faced with these prospects, CSUS elected to be governed by the 1.600 Rule and was, therefore, subject to its terms at all relevant times.

The district court found that at least one of the plaintiff-athletes, Ralph Li-gons, took the ACT examination but did not predict 1.600 or better. That the rest of the individual appellees either (1) did not take the SAT or ACT examinations presumably because they were not required to take either exam in order to qualify for CSUS or (2) took one or both of the exams but did not predict a 1.600 minimum grade point average thereunder. That for whatever reason, none of the eleven predicted a 1.-600 grade point average on the NCAA prediction tables prior to his first year at CSUS. Nevertheless, as a result of errors, oversights and misunderstandings on the part of the University, each of the plaintiff-athletes was erroneously certified as eligible to participate in intercollegiate athletics and each did participate during his freshman year at CSUS.

From the record, it appears that none of the student-athletes were aware of the necessity of predicting a minimum grade point average in order to be eligible to compete in intercollegiate athletics. However, each of the plaintiff-athletes did in fact obtain at least a 1.600 grade point average by the end of his first year at CSUS and each is now in good academic standing at the University.

When it came to the attention of CSUS that there had been violations of the 1.600 Rule, the University promptly reported the matter to the NCAA. Thereafter, the NCAA found that the plaintiff-athletes had participated in intercollegiate athletics while ineligible under the 1.600 Rule and strongly urged CSUS to declare the student-athletes ineligible pursuant to O.I. 418, supra. Under the procedure followed by the NCAA, it is the school involved which is called upon to declare individual athletes ineligible pursuant to NCAA legislation. The NCAA sanctions are imposed against the school and not the individual athlete. Stiff sanctions can be imposed against an NCAA member institution which fails to declare an individual athlete ineligible in accordance with NCAA legislation.

CSUS could either declare the plaintiff-athletes ineligible or expose its entire athletic program to stiff sanctions by the NCAA. The University chose to charge each of the plaintiff-athletes with one year of ineligibility. With the exception of plaintiff Martinez, each of the plaintiff-athletes was declared ineligible for the 1972-73 academic year. Plaintiff Martinez was declared ineligible until the end of the fifth game of the 1973-74 football season. Only plaintiff Lopez has outwardly participated in intercollegiate athletics since the athletes were charged with ineligibility in October, 1972 and his participation has been under the protection of a temporary restraining order issued by the district court.

We agree with the district court that the primary and controlling issue in this case is whether the NCAA’s 1.600 Rule, as interpreted by O.I. 418, results in an unreasonable classification in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

In its application of the Equal Protection Clause, the trial court determined that the actions of NCAA complained of did constitute “state action” under the United States Constitution Amendment XIY, #1. Appellants argue that the record fails to disclose any state involvement in the NCAA’s regulatory operations sufficient to establish jurisdiction under the Fourteenth Amendment. We agree with the district court that from the evidence it must be concluded that the actions of NCAA, complained of in this action, do constitute “state action”. In Parish v. National Collegiate Athletic Association, 361 F.Supp. 1214, 1219 (W.D.La., 1973), the court stated:

“Although NCAA is a nationwide association, it does control public schools which are State agencies to the extent that the high school athletic associations control their respective members at least insofar as regulations, sanctions, and discipline are concerned. Moreover, State funds are used by public schools to pay membership dues in this association.
Therefore, we must and do conclude that there definitely is State action here, in the constitutional sense, when NCAA regulates schools and universities at least half of which are public. In the only other decision on this particular point, although unreported, Judge Wollenberg of the Northern District of California is in agreement that such action is State action. Curtis v. NCAA, No. C-712088 ACW.”

Even though we have determined that NCAA’s imposition of sanctions against CSUS and the athletes here involved is “state action” for constitutional and jurisdictional purposes, a serious question is presented whether plaintiffs’ position raises a substantial federal question under 28 U.S.C. § 1343 and 42 U.S.C. § 1983 granting federal courts jurisdiction and authority to redress deprivations under color of state law, custom or usage of a right or privilege secured by the Constitution or federal law. The Supreme Court in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (March 21, 1973), held that education was not a fundamental right, explicitly or implicitly, protected by the Constitution, requiring judicial scrutiny of the situation in a case such as this. See also: Mitchell v. Louisiana High School Athletic Association, 430 F.2d 1155 (5th Cir. 1970), wherein it was held that a high school athlete’s argument in regard to eligibility regulations did not raise to constitutional dimensions and carry with it the entire bulwark. This reasoning was applied in Parish v. National Collegiate Athletic Association, 361 F.Supp. 1220, 1225 (W.D.La., July 31, 1973).

Assuming that in the circumstances of this case the plaintiffs claimed rights or privileges are protected by the Constitution, we do not believe that the 1.600 Rule, as interpreted by O.I. 418, results in an unreasonable classification in violation of the Equal Protection Clause of the Constitution.

The standard which must be applied in reviewing this case is whether the classification system of the NCAA is shown to bear some reasonable relationship to its legitimate purposes. In Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), the Supreme Court stated:

“In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways, [citations omitted.] The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into' different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 [990] (1920).”

The evidence of NCAA reveals that NCAA adopted the 1.600 Rule in order to reduce the possibility of exploiting young athletes by recruiting those who would not be representative of an institution’s student body and probably would be unable to meet the necessary academic requirements for a degree; and also to foster and preserve the concept of college athletics as a sport engaged in by athletes who were first and primarily college students, and to recognize the probability that any student who could not meet the requirements of the Rule should not engage in athletics during his freshman year, but should devote his full time to study.

The trial court stated: “Without deciding the question, it appears that this classification is reasonably related to the purposes of the 1.600 Rule.” However, the court concluded that the 1.600 Rule, as interpreted by O.I. 418, created a classification which did not conform to equal protection requirements. We are unable to agree with this conclusion.

We believe that the 1.600 Rule’s classification is reasonably related to the purposes of the Rule for which it was enacted. All persons in a similar class or in similar circumstances are intended to be treated alike. It may be that in the application of the Rule unreasonable results may be produced in certain situations, which is not unusual in the application of a generalized rule such as the one here. We further believe that the Rule, as interpreted by O.I. 418, announcing the penalty for non-compliance, is reasonably related to the purposes for which the Rule was enacted. Plaintiffs argue that it is this official interpretation of the Rule which creates a classification which does not conform to equal protection requirements. It is contended that once a student has earned a grade point average over a period of time, then it is unreasonable, in light of the purposes of the Rule, to impose sanctions against the student-athlete because he failed for some unknown reason to take the test or to predict the 1.600 grade point. It is urged that any sanctions imposed should be predicated on the actual grade point average of the student attained during his freshman year while competing in intercollegiate athletics during his first year. It is the contention of plaintiffs that since the student-athletes in this action earned at least a 1.600 grade point average at the end of their freshman year at CSUS, the 1.600 Rule of the NCAA, as interpreted, is in violation of the Equal Protection Clause and is therefore unconstitutional as far as it seeks to declare these student-athletes ineligible for participation in intercollegiate athletics for a period of time, in this instance one year, for the reason that they had failed to predict a 1.600 grade point average prior to entrance to CSUS, and practiced for and competed in intercollegiate athletics during their first year at CSUS. Although the district court agreed with the theory of plaintiffs, we are unable to do so.

Needless to say, a rule must be enforced. Without some form of penalty, the Rule would be meaningless, leaving member schools free to do as they pleased in recruiting high school athletes. Like the Rule, the penalty must be reasonably related to the Rule’s purposes, but no more is required; we need not be convinced that the penalty is the best that might have been provided.

One of the purposes of the official interpretation of the 1.600 Rule is to prevent member schools from granting scholarships to student-athletes who do not show a possibility of attaining a degree after taking part in the prescribed testing procedures before entering college. According to plaintiffs’ theory and the decision of the lower court, all member schools could recruit athletes without giving any examination to them, or those athletes whose examinations did not predict successful graduation, and then if they did obtain a higher grade point average than 1.600 after the first year in school, they would be entitled to participate in NCAA sponsored athletics thereafter. Such a situation would prevent effective enforcement of the 1.600 Rule which we believe to be rational in order to achieve NCAA’s objective. In order to meet that objective, determination of the eligibility of a student-athlete must be made at the time of the student’s application and certification. If determination of eligibility is made at a later date, the classification would be destroyed. Such a procedure would allow colleges to recruit ineligible athletes with the hope that they would meet graduation prediction standards after their first year in college so as to become eligible for athletics during their college life. It would also permit ineligible students to engage in first year athletics along with those who proved to be eligible during the first year which, in effect, would destroy the purpose of the 1.600 Rule. In our opinion, NCAA’s official interpretation of its 1.600 Rule does not create a classification which violates the Equal Protection Clause of the Constitution. See Parish v. National Collegiate Athletic Association, supra, at 1227, 1228.

It is well established and conceded that a preliminary injunction is “an extraordinary remedy, and will not be granted except upon a clear showing of probable success and possible irreparable injury”. Checker Motors Corporation v. Chrysler Corporation, 405 F.2d 319 (2nd Cir. 1969). In our opinion, there is no clear showing of probable success by plaintiffs in this action and that possible irreparable injury will occur to any of them.

The order granting the preliminary . injunction is reversed.

      . Bylaw 4-6-(b)-(l) was amended at the NCAA annual Convention on January 13, 1973, at which time the requirement that a student predict a 1.600 grade point average before being declared eligible to participate in intercollegiate athletics was replaced by a requirement that a student need only graduate from high school with a 2.00 in order to be declared eligible to participate in athletics. This amendment will not become effective until the 1974-75 academic year and until that time, the 1.600 Rule will continue to be enforced by the NCAA,


text:
    UNITED STATES of America, Appellee, v. Paul J. DUMAINE, Defendant, Appellant.
    No. 73-1255.
    United States Court of Appeals, First Circuit.
    Submitted March 4, 1974.
    Decided March 29, 1974.

      Harvey Brower, Lawrence, Mass., on brief for appellant.
    James N. Gabriel, U. S. Atty., and Wayne B. Hollingsworth, Asst. U. S. Atty., on brief for appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   PER CURIAM.

Appellant, convicted of two counts of willfully procuring the aid and assistance of another in the preparation and presentation of a fraudulent and false Internal Revenue Service Information Return (Form 1099), in violation of 26 U.S.C. § 7206(2), contends on appeal that the court erred in denying his motion for acquittal and failing to instruct the jury as to the proper law.

At trial two witnesses testified that the appellant had asked them if they would each cash a twin-double winning ticket for payment at the teller’s window of a dog track, using their own names, in return for twenty dollars each. They accepted the offer, presented the tickets for payment, and signed Internal Revenue Service Forms 1099, as required by 26 U.S.C. § 6041(a), which provides, in part, that:

“All persons . . . making payment ... to another person, of emoluments or other fixed or determinable gains ... of $600 or more in any taxable year . shall render a true and accurate return . . . setting forth the amount of such gains, profits, and income, and the name and address of the recipient of such payment.”

The teller did not ask the two whether they were the actual owners of the tickets. Nor did the teller or the dog track notify its patron by posters or programs that it was required to send the Internal Revenue Service only the names of actual winners.

Appellant claims that, since 26 U.S.C. § 6041 requires the name and address of the “recipient” of such payments, there was nothing illegal about procuring someone other than the actual owner of the ticket to make presentation and give his own name and address as the “recipient” of the payment. Appellant argues that, before criminal liability could attach, it was incumbent upon the teller to demand the name of any person, other than the one presenting the ticket, who was the actual recipient of the income.' United States v. Blumberg, 258 F.Supp. 885 (D.Del.1966). Alternatively, appellant argues that, since the dog track failed to notify its patrons that it was required to send only the names and addresses of “actual” winners to the Internal Revenue Service, the requirements of 26 U.S.C. § 6041 were fulfilled by filing the name and address of the “recipient” who presented the ticket at the window. Thus, according to appellant, the trial court erred in denying his motion for acquittal, and in failing to instruct the jury that the law required the teller to ask for the name of the actual winner.

We find no merit in appellant’s arguments. To argue that the government was in no way defrauded or deprived of information it was entitled to receive because 26 U.S.C. § 6041(a) only requires the filing.of the name and address of the person who presents the ticket misconstrues the purpose of 26 U.S.C. § 6041. It is well settled that this statute is intended to help the government locate and check upon recipients of income, and the amounts they receive. United States v. Carroll, 345 U.S. 457, 73 S.Ct. 757, 97 L.Ed. 1147 (1953); United States v. Haimowitz, 404 F.2d 38 (2d Cir. 1968); S.Rep.No.103, 65th Cong., 1st Sess. 20 (1917). Such a purpose would be defeated if the actual recipient of the income could camouflage his gain by simply hiring someone else to act as a conduit.

The teller was under no obligation to ask for the name and address of the actual recipient of the income. It was reasonable for him to assume that, unless notified otherwise, the person presenting the ticket would be the actual recipient of the income. The rule enunciated in Blumberg, cited by appellant, requiring a demand by the teller, was specifically refuted by the same court that first devised it, United States v. Rizzo, 313 F.Supp. 734 (D.Del.1970), appeal dismissed, 439 F.2d 694 (3d Cir. 1971), and we choose not to follow it today.

Whether or not patrons received actual notice of the requirement for name and address of actual recipients is relevant only to the question of willfulness. United States v. Rizzo, supra.

26 U.S.C. § 7206 provides, in part, that:

“Any person who . (2) . . . [w]illfully aids or assists in, or procures, counsels, or advises the preparation or presentation . of a return . . . which is fraudulent or is false as to any material matter . . . shall be guilty of a felony . . . . ”

Thus, the sole question presented is whether there was enough evidence on which a jury could have made a finding of willfulness. At trial appellant testified that he frequently attended races at the dog track and had, on several occasions, presented his own winning tickets for payment, whereupon his name and address had been filled out on Form 1099. He understood that the form had to be filled out before payment could be made, and that the form would be forwarded to the Internal Revenue Service for their tax records. He also said he understood that if someone else were to present appellant’s winning ticket for payment, and give their own name and address instead of appellant’s name and address, the Internal Revenue Service would have no record of appellant’s winnings. Appellant paid twenty dollars to each of two persons in return for their agreement to present his winning tickets for payment. We think that there was sufficient evidence on which a jury could have based its finding of willfulness.

Affirmed.