author: MOORE, Circuit Judge:

text:
    Dorris E. NYE, Individually and as Administratrix Ad Prosequendum, of the Estate of Charles W. Nye, Deceased, et al., Appellees-Appellants, v. A/S D/S SVENDBORG and D/S AF 1912 A/S, Appellants-Appellees. A/S D/S SVENDBORG and D/S AF 1912 A/S, Appellees-Appellants, v. MARINE ENGINE SPECIALTIES CORPORATION, Appellant-Appellee.
    Nos. 700, 846 and 1006, Dockets 73-2280, 73-2313 and 73-2417.
    United States Court of Appeals, Second Circuit.
    Argued March 22, 1974.
    Decided July 17, 1974.

      Herman Sehmertz, New York City (Gair, Gair & Conason, New York City, of counsel), for appellees-appellants Dor-ris E. Nye, Susan Pamela Nye, Judith Denise Nye, Gloria Jane Nye, Philip Rex Nye and Donna Charlene Nye.
    William P. Kain, Jr., New York City (Haight, Gardner, Poor & Havens, and Thomas F. Molanphy, New York City, of counsel), for appellees-appellants A/S Svendborg and D/S AF 1912 A/S.
    William F. Larkin, New York City (Larkin, Wrenn & Cumisky, and Coppola & D’Onofrio, New York City, of counsel), for appellant-appellee Marine Engine Specialties Corp.
    Before MOORE, FEINBERG and MULLIGAN, Circuit Judges.
   MOORE, Circuit Judge:

The t/t Evelyn Maersk is a turbine tanker of 53,277 gross tons and 35,998 net tons. She is approximately 880 feet long, has a molded depth of nearly 60 feet and is powered by a 22,500 shaft horsepower, steam turbine engine. The Evelyn Maersk sailed on her maiden voyage from Elsinore, Denmark, on December 24, 1967, bound for the Persian Gulf. While at sea on December 26, 1967, a feed pump supplying water to the vessel’s boilers broke down and the vessel was ordered into Las Palmas, Canary Islands, in order to obtain a replacement for this pump.

The vessel’s feed pumps were manufactured by the Pacific Pump Company of California, whose service agent on the Eastern Seaboard of the United States was third party defendant, Marine Engine Specialties Corporation (Marine Engine). Since the Pacific pumps aboard the vessel were still under guarantee, Oreste DeFerro, Service Manager for Pacific’s Eastern Division, requested that a qualified representative of the manufacturer proceed to the ship to investigate the situation. Marine Engine dispatched its employee, Charles W. Nye to Las Palmas to board the Evelyn Maersk and continue with her to Capetown, South Africa.

Nye, a graduate of the United States Merchant Marine Academy at Kings Point, was forty-six years old. From 1946 to 1956 he was directly employed by the Pacific Pump Company of California in Huntington Park, California. From 1957 to 1962 he worked, as a specialist in Pacific’s pumps, for the L. O. Arringdale Company, agents for Pacific. For the five years immediately preceding the events that underlie this case, i. e., from 1962 to 1967, Nye had been a resident of New Jersey, employed by Marine Engine as a service engineer for pumps manufactured by Pacific. His employment in some instances required him to travel, in his employer’s behalf, to far flung ports of call on a moment’s notice. He had been married to Dorris Nye for some twenty-two years and they had six children. During all his adult life, indeed even as far back as his early childhood, Nye could be accurately described as grossly obese. He was approximately six feet in height and he weighed three hundred and fifty pounds.

Nye’s excessive weight had given rise to many different health problems. On June 27, 1961, he was admitted to St. Peter’s Hospital in New Brunswick, New Jersey, for an evaluation of high blood pressure, obesity and headaches. He was discharged with a diagnosis of hypertension, obesity and hypothyroidism. On January 1, 1965, Nye was diagnosed as having a diabetic condition. On September 6, 1966, in addition to his previous maladies, Nye evidenced protein in his urine, possible kidney disease, swelling of the ankles and Pickwickian Syndrome, a condition marked by lack of oxygen and somnolence in the body due to excessive obesity.

The t/t Evelyn Maersk arrived at Las Palmas at 5:30 a. m. on December 30, 1967, and anchored one-half nautical mile east of the harbor pier. At 6:00 a. m., a spare feed pump was brought out to the ship by a boat from the shore and hoisted aboard. The District Court found that “The defective pump was removed to the deck and the new pump was put in its place by the ship’s engineers.”

When Nye arrived at Las Palmas he notified the vessel’s agents of his presence and informed them of his intention to board the ship. They, in turn, passed that information along to Captain Jensen, the owners’ Marine Superintendent aboard the vessel.

Sometime between 4:00 and 5:00 p. m., the ship’s crew, pursuant to the orders of Captain Jensen, rigged an accommodation ladder and pilot ladder on the vessel’s starboard side in preparation for taking Nye on board. Neither boat ropes nor man ropes were rigged.

About 7:25 p. m., after the launch-carrying Nye out to the ship had been sighted, the Evelyn Maersk weighed anchor, was put underway and maneuvered to form a lee on her starboard side in order to effectuate Nye’s transfer from the launch.

At 7:30 p. m., the time of boarding, the wind was from the north-northeast at approximately seventeen to twenty-one knots. There were waves from four to eight feet high and night had fallen. At the time of boarding, a five bulb cluster light, totaling 375 watts, was rigged directly above the pilot ladder. Further illumination was provided by a 400 watt gangway light and two 400 watt floodlights.

The launch carrying Nye had to make three passes at the ship before Nye could grab hold of the pilot ladder. Once Nye stepped on to the ladder, the launch moved away. After Nye proceeded up one or two steps on the pilot ladder, he stood still and called for help. Arne Moller, the ship’s chief officer, ran half way down the ship’s accommodation ladder. By that time, however, Nye had let go of the pilot ladder and had fallen into the sea. Hansen, a seaman who had been assisting at the boarding, immediately threw a life ring to Nye. Holler then proceeded back up the accommodation ladder and called the bridge to alert the captain of a man overboard and to have the ship’s propeller stopped.

By this time two minutes had passed and Nye, grasping the life ring, had drifted about one hundred and ten feet aft of the pilot ladder. A crew member had thrown the free end of a boat ladder over the side of the ship. The purpose of lowering this ladder was to allow a crew member to descend it to grasp Nye as he drifted aft. However, no crew member was sent down this ladder because Holler had by this time turned on an additional spotlight (the starboard lifeboat light) and by its illumination he could see that Nye was no longer holding the life ring. He had vanished.

Holler, with the help of the ship’s boatswain, searched the water to the ship’s starboard and stern. The launch which had brought Nye to the Evelyn Haersk was also equipped with a spotlight and it too searched the area. The Evelyn Haersk continued in this fashion for about one-half to three-quarters of an hour. It then asked for permission from local authorities to leave the harbor and did so at 10:17 p. m. At no time did the Evelyn Haersk lower a boat into the water. No marker lights, life rafts or additional life rings were thrown into the water. No general alarm was ever sounded aboard the ship. Recovery of Nye’s body took place without any help from the officers or crew of the Evelyn Haersk.

Plaintiffs, the wife and children of decedent Nye, instituted this suit against A/S D/S Svendborg and D/S AF 1912 A/S, the owners of the Evelyn Haersk, basing recovery on an alleged two-fold breach of duty: (A) failure to provide decedent, concededly an invitee brought to the vessel as a pump expert, with reasonably safe ingress, in violation of their obligations under the laws of warranty and negligence; (B) negligent failure to take reasonable measures calculated to rescue decedent from the waters.

The District Court, after a trial without a jury, found that defendants had culpably failed to comply with their obligation of safe ingress to decedent in that their agents neglected to follow the commands of good seamanship respecting the furnishing of'a boat rope to secure the arriving pilot launch to the vessel, providing a man rope as security in the event of slipping or falling, and placing of a crew member on the rigging to assist the boarding invitee. However, the court found that decedent, a man of unusual physical dimensions, must be charged with fifty percent of the responsibility for failing to request additional boarding apparatus.

The District Court additionally found that the Evelyn Haersk took reasonable steps to rescue Nye under the circumstances.

Finally, the court found that Harine Engine breached its warranty of workmanlike service to the owners of the Evelyn Haersk when it sent a man in Nye’s physical condition to the ship and held Harine Engine liable to defendants in indemnity, including counsel fees and costs. Thus, plaintiffs recovered $154,439, reduced by fifty percent to $77,220, plus the sum of $10,434 prejudgment interest or a total award of $87,654, an amount under the trial court’s indemnity theory to be borne by Harine Engine.

All parties appeal: plaintiffs claim that their decedent was not contributorily negligent; defendants claim that they were in no way negligent and did, in fact, provide Nye with the means of safe ingress on to their ship; the third party defendant denies its liability in indemnity.

In view of our disposition of this case, it will be unnecessary to consider whether Nye had the status of a seaman or whether the ship was unseaworthy. The ship and its owners, as the District Court held, owed Nye, regardless of his status, a duty of safe ingress. Thus, only three points remain for consideration: (1) should Marine Engine be required to indemnify the shipowner for the damages resulting from the shipowner’s failure, if any, to satisfy its duty to provide safe ingress; (2) was the ship guilty of negligence in its efforts to provide safe ingress or to effect rescue; and (3) was Nye guilty of contributory negligence ?

The principles set forth in cases dealing with a stevedore's implied warranty of workmanlike performance are not applicable in this case. It was the ship’s duty to take all steps necessary under the circumstances to get Nye on board safely. Marine Engine at this juncture played no role in the forthcoming tragedy. Situated in Hoboken, New Jersey, thousands of miles away, it had no control over the operation. The equipment and personnel to be used for Nye’s board were supplied by the ship.

The only participation which Marine Engine had even remotely connected with Nye’s death was in sending him to Las Palmas in the first place. To be sure, the trial judge found that Marine Engine had acted negligently in doing so. However, we believe that the district court’s conclusion on this mixed question of fact and law, see, e. g., Mamiye Bros. v. Barber Steamship Lines, Inc., 360 F.2d 774, 776-778 (2d Cir.), cert. denied, 385 U.S. 835, 87 S.Ct. 80, 17 L.Ed.2d 70 (1966), was erroneous and, accordingly, we set it aside. Marine Engine could not have known of the condition of the sea at the time of the attempted boarding, the facilities available to enable Nye to board, or those methods actually to be used. Nye had served the company well over the years on various assignments and, despite his unusual weight problem, apparently without incident which might have put the company on notice that he should not be sent out on any such mission. In short, of all participants Marine Engine would appear to be the least culpable.

Indemnity, apart from express contract, can either be implied in law or implied in fact. If it is implied in fact it is said to be derived from the nature of the relationship of the parties. On the other hand, if the right is to be implied in law, it must be based “on a ‘great difference’ in the gravity of the fault of two tortfeasors; or . upon a disproportion or difference in [the] character of the duties owed by the two to the injured plaintiff.” W. Prosser, Law of Torts 313 (4th ed. 1971). Application of either theory under the circumstances dictates the conclusion that any negligence leading to Nye’s death must be attributed ultimately to the ship and her owners, not to Marine Engine.

This leaves for consideration the issue of the ship’s negligence and Nye’s contributory negligence.

Hindsight presents the questions: should the ship have offered Nye the safety belt and additional ropes that were available but ultimately not used; should the ship have insisted on their use before Nye attempted to board; should the ship have declared the sea too rough for the transfer; should Nye, realizing his own physical limitations, have requested these additional safety devices before stepping onto the pilot ladder; and should something more have been done to try to effect a rescue ?

The District Court answered some of these questions. It found the ship negligent in its conduct; it found the ship’s rescue efforts reasonable; and it found Nye fifty percent (50%) contributorily negligent for not having insisted upon adequate safety equipment before making the attempt to board.

We see no reason to disturb the trial court’s holdings on these issues. To be sure, findings of negligence and contributory negligence involve mixed questions of fact and law and are subject to more stringent appellate review than findings of fact covered by the “clearly erroneous” test. See, e. g., Mamiye Bros. v. Barber Steamship Lines, Inc., supra, 360 F.2d at 776-778; Falletta v. Costa Armatori, 476 F.2d 316, 318 (2d Cir. 1973). Nevertheless, such findings should not be set aside where, as here, they rest upon underlying findings of fact which are not themselves clearly erroneous and the trial court’s opinion shows a thorough understanding of the applicable principles of law. See Din-nerstein v. United States, 486 F.2d 34, 37-38 (2d Cir. 1973).

The trial court’s judgment in favor of plaintiffs and against defendants A/S D/S Svendborg and D/S AF '1912 A/S in the sum of $87,654 ($154,439 as found by the District Court, reduced by 50% because of contributory negligence to $77,220 plus pre-judgment interest of $10,434) with costs, is affirmed; the judgment is said amount plus costs, counsel fees and disbursements to be agreed upon or fixed by the Court against the third party defendant in favor of the third party plaintiff is reversed and the third party complaint is dismissed.

      . The accommodation ladder is a rigid aluminum gangway structure which is attached at an angle to the deck railing of the ship. It extends to within eighteen feet of the water. The distance between the end of the accommodation ladder and the sea is traversed by a pilot ladder. The pilot ladder is made of rope and has wooden steps set approximately one foot apart and hangs from the ship’s rail to within three feet of the water.
      “The manner of boarding by this arrangement was to climb the pilot ladder, which hung parallel to the side of the vessel, until one reached the accommodation ladder. Then the person boarding could simply walk up the accommodation ladder to the deck.” Nye v. A/S D/S Svendborg, 358 F.Supp. 145, 148 (S.D.N.Y.1973).

      . A boat rope is simply a line attached to the deck railing used to secure to the ship any vessel coming alongside to transfer cargo or passengers. A man rope is another line, similarly attached, which hangs down the side of the ship adjacent to the ladders, to provide an extra handhold for one who is boarding.

      . A ship “forms a lee” by placing herself between the boarding passenger and the wind. “The purpose of executing the lee is to shield the side of the ship where boarding is to take place from the effects of wind and water motion.” Nye v. A/S D/S Svend-borg, supra.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Roscoe R. RISER, Appellant, v. Walter E. CRAVEN, Warden, Folsom Prison, Appellee.
    No. 73-2567.
    United States Court of Appeals, Ninth Circuit.
    July 17, 1974.
    Roscoe R. Riser, in pro. per.
    A. Wells Peterson, Deputy Atty. Gen., Sacramento, Cal., for appellee.
    Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges.
   OPINION

PER CURIAM:

Riser appeals from an order denying, without an evidentiary hearing, his ha-beas corpus petition seeking relief from his state court conviction for first degree murder. Riser’s habeas petition presented multiple challenges to his conviction, including his claim that his trial counsel’s failure to file an appeal for him or to tell him how to file an appeal on his own behalf deprived him of the effective assistance of counsel.

In Gairson v. Cupp (9th Cir. 1969) 415 F.2d 352, we held that counsel for a defendant convicted of a crime in a state court has an affirmative duty to protect his client’s right of appeal by filing a notice of appeal for his client or by telling him how he can proceed on his own behalf. The failure to perform the obligation deprives a defendant of effective assistance of trial counsel when the lawyer knows that his indigent client may want to appeal and that his client does not know how to do so. The Gairson rule was reaffirmed in Sanders v. Craven (9th Cir. 1973) 488 F.2d 478.

In Rodriquez v. United States (1969) 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340, the Supreme Court held in part that a defendant who was deprived of his right to appeal by the failure of trial counsel to file a notice of appeal was not required to specify the errors that he would have raised had an appeal been taken or to demonstrate that the denial of appeal was prejudicial in order to state a prima facie case warranting post-conviction relief. We applied this rule in Gairson and Sanders in granting federal habeas relief to state prisoners.

Riser’s petition stated a prima facie case for relief under Rodriquez, Gairson, and Sanders. His appeal could be decided by a simple remand citing those cases but for Buster v. Hocker (9th Cir. 1970) 428 F.2d 820, a brief per curiam opinion decided after Gairson and before Sanders stating:

“In our view, Rodriquez v. United States [citation omitted] is not necessarily applicable on federal habeas corpus review of state convictions.
“Although counsel neglected to complete the state appeal, before we should interfere there should be a showing that there was a valid point that was lost by not taking the state appeal. The point that was lost here for Buster was a contention that he was interrogated in violation of Miranda v. Arizona [citation omitted],
“We agree with the district court that the record before it shows that Buster’s interrogation at the time was not custodial. Here examination of the state record was enough without an evidentiary hearing.”

Unlike Rodriquez, Gairson, and Sanders, Buster stated the point that he would have raised on appeal and both the district court and our court decided that issue on the merits. Buster’s reference to Rodriquez, therefore, is dictum, but it is dictum that is contrary to the holdings of Gairson and Sanders. To avoid any appearance of intracircuit conflict on the issue, we now expressly overrule the Buster dictum.

Following the procedure we adopted in Gairson and Sanders, we do not reach the merits of any points that Riser could have raised on his thwarted appeal. The cause will be remanded to the district court for an evidentiary hearing limited to the questions whether Riser’s lawyer knew that he wanted to appeal, knew that his client was indigent, and knew that his client was ignorant of his in forma pau-peris rights or the procedure to appeal. If the district court decides that Riser was deprived of the effective assistance of counsel, then, as in Sanders, “it should give the California courts the opportunity to allow the appeal and pass on the substance” of his other claims of error. (Sanders v. Craven, supra, 488 F.2d at 480.)

Reversed and remanded with instructions.


text:
    James E. SWANN et al., Appellees, v. The CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, etc., et al., Defendants. and H. D. Taylor et al., Added Defendants and Appellants.
    No. 74-1201.
    United States Court of Appeals, Fourth Circuit.
    Argued June 4, 1974.
    Decided July 23, 1974.
    See also, D.C., 379 F.Supp. 1102.
    Hugh J. Beard, Jr., Charlotte, N. C., for appellants.
    Julius LeVonne Chambers, Charlotte, N. C. (Chambers, Stein, Ferguson & Lan-ning, Charlotte, N. C., Jack Greenberg, James M. Nabrit, III, and Norman J. Chachkin, New York City, on brief), for appellees.
    William W. Sturges, Charlotte, N. C., did not file a brief but appeared in person at oral argument for The Charlotte-Mecklenburg Bd. of Ed.
    Before HAYNSWORTH, Chief Judge, and WINTER, BUTZNER, RUSSELL, FIELD and WIDENER, Circuit Judges.
   PER CURIAM:

This appeal results from the issuance of a district court injunction prohibiting the parties named here as additional defendants from further prosecuting a pending action in North Carolina state courts, and presents only the narrow question of whether or not the prosecution of the state court suit was properly enjoined.

The additional defendants here are Guardians ad Litem for white students who, as plaintiffs, had alleged in the state court suit against the Charlotte-Mecklenburg Board of Education (Board) and several school administrators that the Board had failed to apply the standards set out in N.C.G.S. § 115-307, applicable to “exceptionally talented children,” and sought an injunction requiring adherence to the statute. The gist of that complaint was that the Board had not followed the standards set out in N.C.G.S. § 115-307 so that a quota of black students (some of whom were alleged to be not qualified) would take part in the program and in so doing had necessarily excluded some white students (who were alleged to be qualified) from being in the advanced curriculum classes established for such exceptional students. The district court added the plaintiffs in the state court proceeding as defendants here at the instance of Swann, et al, the original plaintiffs in this suit which has been pending in the federal courts since 1965, and the injunction issued because the court concluded that the issues being litigated in the state court proceeding could not be separated from the issues and relief involved in the federal court suit. The Board’s position in this matter is relatively neutral, its primary concern being to avoid possibly conflicting orders from state and federal courts.

We conclude that the injunctive relief was necessary in aid of the district court’s jurisdiction, and thus was proper as an express exception to the Anti-injunction Act, 28 U.S.C. § 2283. The district court had previously ordered, for example, “That pupils of all grades be assigned in such a way that as nearly as practicable the various schools at various grade levels have about the same proportion of black and white students.” Swann v. Board, 311 F.Supp. 265, 268 (W.D.N.C.1970). It is, therefore, apparent that the pending state suit could affect the Board’s efforts to comply with previous federal court desegregation orders. The claim of the additional defendants that the Board is now discriminating against white children cannot be separated from the order previously entered in the district court.

We note that the parties agree that the merits of the contentions of the plaintiffs in the state court suit may be decided in the district court.

Accordingly, the judgment of the district court is

Affirmed.

      . § 2283. Stay of State court proceedings A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.


author: HEANEY, Circuit Judge.

text:
    Dennis Wayne McDONALD, Appellant, v. STATE OF ARKANSAS, A. L. Lockhart, Superintendent, Cummins Unit, Arkansas Department of Corrections, et al., Appellees.
    No. 74-1038.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 18, 1974.
    Decided Aug. 5, 1974.
    Certiorari Denied Nov. 11, 1974.
    See 95 S.Ct. 325.

      Winford L. Dunn, Jr., Texarkana, Ark., for appellant.
    Walter Murray, Asst. Atty. Gen., Little Rock, Ark., for appellees.
    Before HEANEY and STEPHENSON, Circuit Judges, and SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   HEANEY, Circuit Judge.

Dennis Wayne McDonald was convicted of first degree rape after a November, 1971, jury trial in the Circuit Court for Miller County, Arkansas. He was sentenced to thirty years imprisonment and is currently serving the sentence in the Cummins Unit of the Arkansas State Penitentiary. The Arkansas Supreme Court affirmed his conviction on appeal and denied his request for a rehearing. McDonald v. State, 253 Ark. 812, 491 S.W.2d 36 (1973). In April of 1973, McDonald filed a petition for a writ of habeas corpus in the District Court, challenging the validity of the rape conviction. After an evidentiary hearing, the District Court dismissed the petition. This appeal was then taken.

The rape for which McDonald was convicted took place outside the victim’s home early in the morning of June 19, 1971. The victim immediately called the police. A police dispatcher, in turn, radioed the information that a white male with blue jeans, red shirt and sandals and with a “silver knife and a cup towel” had raped the lady at a given location. The police went to the scene, and while there — approximately seven minutes after the victim’s call — they observed a man fitting the above description running down the sidewalk. A police officer shouted at the man, McDonald, and told him to come back. He did so and was searched by the police. The knife and towel were found in the search. McDonald was then informed he was under arrest and jailed.

McDonald contends that a reversal of the dismissal of his petition is warranted for the following reasons:

(1) The arrest and subsequent search were unconstitutional, and the articles obtained by the search should not have been admitted into evidence. We disagree. There ¡clearly was probable cause to effect an arrest without a warrant inasmuch as: (a) the police had reported to the scene of the crime in response to the victim’s phone call that she had been raped; (b) McDonald was seen running in the neighborhood in which the crime was committed; and (c) he fit the description that had been radioed to the officers. The search and seizure were permissible as incident to the arrest. See, e. g., Chimel v. California, 395 U.S. 752, 762-763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). We find no merit to McDonald’s assertion that an unlawful search preceded the arrest. The precise moment of arrest is a question of fact. Sibron v. New York, 392 U.S. 40, 67, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). From this record, it is clear that the arrest took place when the police first restrained McDonald after determining that he fit the description of the alleged rapist. This is not a case where the search preceded the arrest and established the justification for the arrest.

(2) The Arkansas trial court erred by failing to grant McDonald’s motion for a new trial based on allegations of jury and witness misconduct and newly discovered evidence. The District Court correctly refused to issue the writ on these grounds.

In January of 1972, the Arkansas trial court held a thorough evidentiary hearing on McDonald’s allegation that the victim’s daughter perjured herself in testifying at the trial. The testimony at the hearing was conflicting, and the trial court concluded that it did not warrant a new trial. The Arkansas Supreme Court affirmed the ruling. McDonald v. State, supra, 491 S.W.2d at 38. On this record, we cannot say that the Arkansas courts acted improperly in refusing to grant a new trial on the basis of this allegation.

The Arkansas trial court held another evidentiary hearing in May of 1972, at which McDonald claimed that two jurors had improperly communicated about the trial with a non juror during a trial recess. This contention was first raised in an anonymous letter to the editor of an Arkansas newspaper about six months after the trial, and the author of the letter testified at the evidentiary hearing. In addition, one of the jurors accused of the communication testified and denied that it took place. After hearing the evidence, the trial court rejected the claim and denied the motion for- a new trial. The Supreme Court affirmed the denial noting that the allegation was “flimsy and inconclusive.” Id. We agree and accordingly refuse to reverse the District Court’s refusal to grant habeas corpus relief on this allegation. See, Parrott v. State of Arkansas, 497 F.2d 1123 (8th Cir., 1974).

In the District Court, McDonald alleged for the first time that additional “newly discovered evidence” entitled him to a new trial. Three persons testified as to the victim’s morals and reputation for truth and veracity at the evidentiary hearing held in the District Court. The primary thrust of this testimony was that the victim had an affair with a young man subsequent to the time of McDonald’s conviction. It was offered in support of McDonald’s theory of defense at trial that the victim had consented to intercourse and had not been raped. We agree with the District Court’s determination that this “newly discovered evidence” does not provide a ground for relief on federal habeas corpus. See, Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

(3) The thirty-year sentence imposed by the trial court violated the constitutional prohibitions against cruel and unusual punishment. We find no merit to this contention. McDonald was convicted of forcibly raping the victim at knife point; and under all the circumstances, we cannot say that the sentence imposed constituted cruel and unusual punishment. See, Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) ; Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968).

(4) The trial court erred in trying McDonald while he was unshaven and his hair very long. This contention is also without merit. McDonald had long hair at the time he was arrested, and no request for a shave or haircut was made at or before trial. There is no showing that anyone other than McDonald himself was responsible for his lack of grooming or that he was prejudiced by it.

(5) The use of an information rather than a grand jury indictment violated McDonald’s constitutional rights. We find no merit in this contention. The Constitution of the State of Arkansas provides that:

All offenses heretofore required to be prosecuted by indictment may be prosecuted either by indictment by a grand jury or information filed by the Prosecuting Attorney.

Ark.Const. Amend. 21.

This procedure has been held constitutional on a number of occasions. See, e. g., Moore v. Henslee, 276 F.2d 876, 878 (8th Cir. 1960).

(6) The trial court refused to dismiss McDonald’s appointed counsel and grant a continuance of his trial. We are satisfied that these actions of the trial court were not error entitling McDonald to federal habeas corpus relief. Counsel was appointed to represent McDonald in August of 1971. The trial date of November 22, 1971, was set by the court on November 1, 1971. On the date the trial commenced, McDonald advised the court in chambers that he desired to dismiss his counsel — apparently because his counsel had recommended plea negotiations. The court refused to dismiss his counsel but appointed a second attorney to assist in the defense. McDonald also informed the court that he wanted his brother in Germany to testify, and that the brother told him the victim was an “easy touch.” It appears that the brother learned this information by way of rumor, rather than from personal knowledge. The court refused to grant a continuance of the trial to allow the brother to return to testify. In doing so, the court noted that the trial date had been set for over three weeks which gave the brother time to get to the trial, and that the court was without power to subpoena him in Germany. Both these refusals of the trial court involved decisions which lie within the discretion of the trial court, and we find no abuse of that discretion here. No question as to effectiveness of counsel is raised here. See, e. g., McQueen v. Swenson, Warden, 498 F.2d 207 (8th Cir. 1974).

(7) McDonald was denied a speedy trial and was held in jail after arrest for an excessive period of time before he was brought before a magistrate. The substance of the first contention is that a five-month delay between the date of arrest and trial constitutes a denial of the right to a speedy trial. We decline to consider this contention inasmuch as McDonald did not raise it in the District Court.

In support of the second contention, McDonald asserts that he was held in jail for seventy-three days after his arrest without being given a “preliminary hearing or arraignment” before a magistrate. He does not allege, however, that he was prejudiced by the delay. Absent such allegation, the District Court properly refused to consider it. See, Theriault v. United States, 401 F.2d 79, 86 (8th Cir. 1968), cert. denied, 393 U.S. 1100, 89 S.Ct. 898, 21 L.Ed.2d 792 (1969).

Affirmed.

      . We understand this contention to be that his first appearance before a magistrate did not take place until seventy-three days after his arrest and that the use of the term “preliminary hearing or arraignment” was merely descriptive of that appearance.


text:
    Yolanda A. MOON, Plaintiff-Appellant, v. James T. TAKISAKI et al., Defendants-Appellees.
    No. 73-2711.
    United States Court of Appeals, Ninth Circuit.
    July 22, 1974.
    James S. Turner, of Roberts, Shefel-man, Lawrence, Gay & Moch, Seattle, Wash., for appellant.
    Stan Pitkin, U. S. Atty., Seattle, Wash., Susan L. Barnes, Asst. U. S. Atty., for appellees.
   OPINION

Before, MERRILL, KILKENNY and CHOY, Circuit Judges.

PER CURIAM:

The mortgage insurance subchapter of the Housing Act provides for several different programs of mortgage insurance. 12 U.S.C. § 1715J(h) provides that the FHA may insure a mortgage of housing that is purchased and rehabilitated by a nonprofit sponsor under commitment to offer the property for sale to low-income purchasers.

Appellant purchased property that had been rehabilitated by the Seattle Urban League as sponsor under a mortgage to Firstbank Mortgage Corporation, insured by the United States pursuant to § 17151(h) with rehabilitation work performed by James T. Takisaki.

When appellant failed to make the prescribed mortgage payments the mortgagor and the United States threatened foreclosure and appellant brought suit in state court to protect her interest. The United States removed to the federal district court, where the suit was dismissed as against the United States. On appeal to this court the dismissal was upheld in an unreported memorandum on the ground that the United States had not consented to suit in state court, so that court had no jurisdiction; this being so no jurisdiction attached in the federal court when the action was removed. Moon v. Takisaki, No. 72-1495 (9th Cir. Oct. 1, 1973).

This suit was then filed directly in the district court by appellant against all parties involved, with jurisdiction against the United States claimed under the Federal Tort Claims Act, 28 U.S.C. § 2674 et seq. Once again suit against the United States was dismissed by the district court. Once again we affirm.

Appellant seeks money damages and an injunction against foreclosure. The Tort Claims Act makes the United States liable in money damages for the torts of its agents under specified conditions, but the Act does not submit the United States to injunctive relief. Dismissal of the claim for injunction on the ground of lack of jurisdiction was proper.

Appellant alleges that defendants were guilty of deceptive practices under the Washington Consumer Protection Act. Further she alleges that she was by defendants United States and Urban League induced to execute the mortgage although those defendants “recognizing the plaintiff’s lack of comprehension never revealed to the plaintiff the consequences of the transaction involving the refinancing.” Claims arising out of misrepresentation or deceit are excluded from the Federal Tort Claims Act, 28 U.S.C. § 2680(h), and appellant’s claims fall under that exclusion as it has been construed. See, e. g., United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961). Dismissal of this claim on the ground of lack of jurisdiction was proper.

Appellant alleges that the United States and the Urban League “negligently engaged an incompetent contractor * * * to perform the rehabilitation” and “negligently failed to supervise the work.” Under the Act the Secretary is authorized to insure mortgages under the limited conditions there imposed. He is not authorized to undertake or to supervise the work of rehabilitation and owes no duty to the purchasers of rehabilitated property in that respect. Cf. United States v. Neustadt, supra, 366 U.S. at 708-709, 81 S.Ct. 1294; Jackson v. Romney, 355 F.Supp. 737 (D.D.C.1973). Dismissal for failure to state a claim was proper as to this aspect of the action.

Judgment affirmed.


author: SCHNACKE, District Judge:

text:
    PLAN FOR ARCADIA, INC., a nonprofit corporation, and Jack Saelid, Plaintiffs-Appellants, v. ANITA ASSOCIATES et al., Defendants-Appellees.
    No. 74-1180.
    United States Court of Appeals, Ninth Circuit.
    July 10, 1974.
    Certiorari Denied Nov. 25, 1974.
    See 95 S.Ct. 517.

      John C. McCarthy (argued), Pomona, Cal., William B. Campbell (argued), Los Angeles, Cal., for plaintiffs-appellants.
    P. F. Westbrook, Jr. (argued), Los Angeles, Cal., Raymond W. Mushal, Atty. (argued), U. S. Dept, of Justice, Washington, D. C., for defendants-appel-lees.
    Before CARTER and GOODWIN, Circuit Judges, and SCHNACKE, District Judge.

       Honorable Robert H. Sclmacke, United States District Judge, Northern District of California, sitting by designation.

   OPINION

SCHNACKE, District Judge:

This action, purportedly brought under the air pollution prevention and control statute, 42 U.S.C. § 1857 et seq., was dismissed by the court below. We affirm.

Appellants commenced this action to enjoin the further construction and operation by appellees of a large regional shopping center which, it is claimed, would produce large quantities of air pollution. They also sought mandatory orders compelling state and federal officials to promulgate regulations and plans, pursuant to the statute, that would prevent the construction of pollution-creating developments like that here involved.

The statute charges the states with the initiative in assuring air quality control and of submitting an implementation plan before December 31, 1970. Sections 1857e-2(a), (b); 1857c-5(a)(1).

The primary federal official is the Administrator. If the state plan submitted to him is not acceptable, he may issue his own plan in lieu of the state’s, as well as take other action. Sections 1857c-2(c), 1857c-5 (c)(3).

The record discloses that the State of California has submitted an implementation plan which has been approved in part and rejected in part. The area of the shopping center here involved is presently subject to no control that would prevent its construction or operation as appellees intend.

The statute is quite explicit as to actions by private litigants. “Citizen suits” may be brought under 42 U.S.C. § 1857h-2:

“(1) against any person who is alleged to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or
“(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.”

Since, as noted, no applicable standards or orders have been issued, this action will not lie under (l). Understandably, appellants do not claim that (2) may be invoked. Rather, they invoke 28 U.S.C. § 1361, which is likewise inapplicable. Undeniably, certain types of action by the Administrator may be ordered by the courts. Nat. Res. Def. Coun., Inc. v. Environmental Pro. Agcy., 154 U.S.App.D.C. 384, 475 F.2d 968 (1973). But we cannot order the promulgation of any particular regulation or set of regulations, such as appellants seek here, and once regulations are promulgated, the sole statutory review, is as provided in 42 U.S.C. § 1857h-5(b)(1).

Congress has defined precisely the circumstances under which a private suit may be brought under this Act. As the court below correctly determined, appellants do not meet the test.

Affirmed.

      . Plaintiffs argue that the national emission standards may be invoked under (1) (A), but subsection (f) is clear and against them on this argument.


author: PER CURIAM.

text:
    Andrea Joyce NICHOLS, Plaintiff-Appellant, v. ELI LILLY & CO., Defendant-Appellee.
    No. 73-1038.
    United States Court of Appeals, Tenth Circuit.
    Argued July 12, 1973.
    Decided Aug. 15, 1974.

      W. R. Cathcart, Oklahoma City, Okl. (Don Manners, Oklahoma City, Old., on the brief), for plaintiff-appellant.
    Logan J. Wilson, Kansas City, Mo. (Shook, Hardy, Mitchell & Bacon, Lane D. Bauer, Patrick McLarney, Kansas City, Mo., Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, V. P. Crowe, and Andrew M. Coats, Oklahoma City, Okl., on the brief), for defendant-appellee.
    Before BREITENSTEIN, Mc-WILLIAMS and BARRETT, Circuit Judges.
   ON REHEARING.

PER CURIAM.

This is a product liability case arising in Oklahoma with federal jurisdiction based on diversity. The issue is whether the statute of limitations bars the action.

Plaintiff-appellant claims personal injuries caused by birth control pills manufactured by defendant-appellee. She asserts breach of warranties of fitness and safety, and failure to warn of dangerous effects. The applicable Oklahoma statute of limitations governs. Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 533, 69 S.Ct. 1233, 93 L.Ed. 1520, and Futura Music, Inc. v. Gates Radio Company, 10 Cir., 399 F.2d 308, 310. Plaintiff became aware of the injury in April 1968. The complaint was filed May 10, 1972. The trial court dismissed the action apparently because of the statutory bar.

In an opinion filed August 3, 1973, we noted that there was no controlling Oklahoma case and, with full recognition of the hazards of prophecy, decided that in Oklahoma a product liability ease might be maintained under that state’s version of the Uniform Commercial Code. Accordingly, on the theory that when doubt exists as to state determination of controlling legal principles, a federal court should apply the longest of the possible limitation periods, we held that the five-year statute found in 12A O.S. § 2-725 governed.

The petition for rehearing asserted that pertinent litigation was pending in the Oklahoma Supreme Court. To avoid the possibility of conflicting federal and state decisions, we held the petition in abeyance.

Oklahoma has now decided the issue. Kirkland v. General Motors Corp., Okl., 521 P.2d 1353, 1361, recognizes a cause of action in “Manufacturers’ Products Liability,” and says:

“We are persuaded that the limitation period to be applied in products liability actions is two (2) years, 12 O.S.1971 § 95 ‘Third’, for we recognize the tortious origin and nature of the single cause of action, * *

The court expressly rejects the applicability of the five-year statute, 12A O. S. § 2-725. Ibid, at 1361-1362. If anything more needed to be said, the court did so in O’Neal v. Black & Decker Manufacturing Company, Okl., 523 P.2d 614, 615, which refers to our first opinion, now withdrawn, and says, 523 P.2d at 615:

“As we view the Lilly case, we believe the Federal Court was faced with the problem of anticipating what this Court would ultimately decide with reference to theories of recovery and that it could not have anticipated that this Court would merge implied warranty with manufacturers’ product liability.”

The Oklahoma decisions control. The action is barred by the two-year statute, 12 O.S. § 95(3). We grant the petition for rehearing, withdraw the August 3, 1973, opinion, vacate the judgment entered thereon, and affirm the judgment of the district court.


text:
    Roy E. RAND, Jr., Petitioner-Appellant, v. Harold R. SWENSON, Respondent-Appellee. Roy E. RAND, Jr., Petitioner-Appellee, v. Harold R. SWENSON, Respondent-Appellant.
    Nos. 73-1862, 73-1915.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 18, 1974.
    Decided May 2, 1974.
    John J. Hennelly, Jr., St. Louis, Mo., for appellant.
    Neil MacFarlane, Asst. Atty. Gen., Jefferson City, Mo., for appellee.
    Before MATTHES, Senior Circuit Judge, ROSS, Circuit Judge, and VAN PELT, Senior District Judge.

       ROBERT VAN PELT, Senior District Judge, District of Nebraska, sitting by designation.

   PER CURIAM.

These two appeals which were combined for argument and decision represent an appeal by the Warden, Swenson, and a cross-appeal by the Petitioner, Rand, from an order of the District Court for the Eastern District of Missouri in an action begun under 28 U.S.C. § 2254. The Warden appeals the granting of a new trial to the petitioner, who is an inmate of the Missouri State Penitentiary, and Rand appeals from that part of the order which denied him relief as to three other claimed constitutional violations.

We affirm the order granting the new trial.

Rand concedes if the order granting the new trial is affirmed that a decision is unnecessary on the matters raised in his cross-appeal. Thus the mandate to be issued will affirm both appeals.

These appeals arise by reason of Rand’s conviction for second degree murder in Missouri. He was sentenced to 25 years in prison. The conviction was affirmed by the Court of Appeals, St. Louis District.

After exhausting his state remedies, he brought this action under 28 U.S.C. § 2254 alleging that his constitutional rights were violated in that: 1) he was denied a psychiatric examination or hearing on the question of his competency to stand trial; 2) evidence concern; ing a prior shooting incident was erroneously admitted; 3) his examination of state’s witnesses was unduly restricted; and 4) the court prejudicially communicated with the jury after they had reached a verdict of guilty and before the verdict was read in open court. Relief was granted as to the first claim and a new trial ordered. The district judge found the other contentions insufficient for habeas corpus relief.

The facts surrounding the offense are well summarized in ' Judge Meredith’s opinion and need not be repeated here. The basic issue on appeal is whether there was sufficient evidence before the state court trial judge to raise a “bona fide doubt” as to Rand’s competency to stand trial. In Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815 (1966), the Supreme Court held, “Where the evidence raises a ‘bona fide doubt’ as to a defendant’s competency to stand trial, the judge on his own motion must . . . conduct a sanity hearing.”

The state contends that the trial judge is entitled to place heavy reliance on his own observations of the defendant during the trial in order to determine if there is a “bona fide doubt” as to -the defendant’s competency to stand trial. However, as Judge Meredith noted and as the parties agree, the critical question is not whether Rand was competent to stand trial, but whether there was sufficient doubt raised as to Rand’s competency that the state trial court should have ordered a psychiatric examination and held a hearing. As the Supreme Court noted in Pate v. Robinson, supra at 386, 86 S.Ct. at 842, “While [a defendant’s] demeanor at trial might be relevant to the ultimate decision as to his sanity, it cannot be relied upon to dispense with a hearing on that very issue.” See Jones v. Swenson, 469 F.2d 535 (8th Cir. 1972).

. With respect to the sufficiency of the evidence, the district court cited at length the pertinent facts .from the record which it felt raised a bona fide doubt as to Rand’s competence to stand trial. These facts were summarized by the district court as 1) the insistence of Rand’s counsel that he was incompetent to stand trial, 2) facts stated in the counsel’s affidavit, and 3) testimony relating to Rand’s irrational behavior.

The state contends that any error committed by the failure to hold a hearing to determine Rand’s competency can be corrected by now holding a hearing and making a retroactive determination of his competency as of the date of the trial and that a new trial is thus unnecessary. However, there has been no evidence preserved relating to the mental competence of Rand contemporaneous with the period relevant to the trial. In such a case any attempt at a retroactive determination would be sheer speculation. The Supreme Court has on more than one occasion discussed the difficulty of retroactively determining an accused’s competence to stand trial. Pate v. Robinson, supra; Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). After a review of the record the district court determined that a retroactive determination could not be made and ordered a new trial. Based on the facts and the applicable standards the district court’s determination was not clearly erroneous and we affirm its order.

Judge Meredith carefully set forth the facts and the law relating thereto in his opinion. We believe that he has correctly decided the ease. The judgment is therefore Affirmed.

      . Rand v. Swenson, 365 F.Supp. 1294 (E.D.Mo.1973). James H. Meredith, Chief Judge.

      . State v. Rand, 496 S.W.2d 30 (Mo.App.1973).

      . 365 F.Supp. at 1298.


text:
    Anthony B. CATALDO and Ada W. Cat-aldo, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
    No. 1105, Docket 73-2602.
    United States Court of Appeals, Second Circuit.
    Argued May 30, 1974.
    Decided June 25, 1974.
    Anthony B. Cataldo, for plaintiff s-appellants and pro se.
    T. Gorman Reilly, Asst. U. S. Atty., New York City (Paul J. Curran, U. S. Atty., for the S. D. N. Y., New York City, and David P. Land, Asst. U. S. Atty., of counsel), for defendant-appel-lee.
    Before MOORE, FRIENDLY and FEINBERG, Circuit Judges.
   PER CURIAM.

This is an appeal from a judgment of the United States District Court for the Southern District of New York, denying appellants’ claim for an income tax refund for the year 1963. Appellants have broadly attacked the decision of the District Court and the fairness of the proceedings before it. We have carefully considered the record and the transcripts of that trial and the briefs submitted to us by the parties and have concluded that appellants were afforded a fair trial and that the District Court did not err in finding for the Government. We therefore affirm.

In the course of the proceedings in the District Court, appellant Anthony B. Cataldo was summoned to show cause why he should not be held in contempt. A judgment so holding was filed on May 18, .1973. Although appellants proffer various arguments attacking the validity of this latter judgment, no appeal has been taken from it and we therefore lack jurisdiction to undertake its review.

Judgment affirmed.

      . Although Cataldo was summoned to show cause why he should not be held for civil contempt, both appellants and appellee now treat the contempt Judgment as if it were criminal in nature and, indeed, it would seem likely in light of the circumstances surrounding it that it was the Judge’s intent that it should be so construed.


text:
    UNITED STATES of America, Appellant, v. Max ABRAMSON et al., Appellees. UNITED STATES of America, Appellant, v. John SALANITRO et al., Appellees.
    Nos. 73-1668, 73-1667.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 11, 1973.
    Decided July 29, 1974.
    William K. Schaphorst, U. S. Atty., Omaha, Neb., for appellant.
    Oscar B. Goodman, Las Vegas, Nev., for appellees.
    Before GIBSON and ROSS, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   PER CURIAM.

The cases before us, consolidated for purposes of review, present for decision one common issue, namely, the suppression of evidence obtained through wiretaps. We will confine our ruling to this issue, noting only, as to the charges made, that various violations of law pertaining to interstate gambling offenses were alleged.

Subsequent to the Government’s notification that it intended to use at trial evidence obtained from wiretaps conducted pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, defendants moved to suppress all evidence from the wire interception. Such motion-was granted by the District Court, and the Government appeals under 18 U.S.C. §§ 3731 and 2518(10) (b).

It is conceded by the Government in its brief that the files submitted to the Attorney General for authorization ,of the wiretap here involved “were reviewed by Sol Lindenbaum [the Executive Assistant to the Attorney General] who concluded from his knowledge of the Attorney General’s action in previous cases that the Attorney General would approve the request. Since the Attorney General was not available Sol Linden-baum approved the request.”

The case is controlled by United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). “Plainly enough, the Executive Assistant is neither the Attorney General nor a specially designated Assistant Attorney General,” id. 94 S.Ct. at 1825, who may authorize an application for intercept authority under 18 U.S.C. § 2516.

The order of suppression is affirmed and the case remanded for further proceedings consistent herewith.

      . Defendants Salanitro, Sirian and noward were charged with conspiring to use a facility in interstate commerce to conduct an illegal gambling business in violation of 18 U.S. C. § 1952 and conspiracy to transmit gambling information in interstate commerce over wire communications facilities in violation of 18 U.S.C. § 1084, as well as a substantive crime under 18 U.S.C. § 1955.
      Defendants Abramson, Grooms, Wisniew-ski, and Quinn were also charged under 38 U.S.C. §§ 1952, 1084 and 1955.


author: BARNES, Circuit Judge:

text:
    Kenneth R. YOTT, Plaintiff-Appellant, v. NORTH AMERICAN ROCKWELL CORPORATION and International Union, United Automobile Aerospace and Agricultural Implement Workers of America, Local 887, Defendants-Appellees.
    No. 72-1383.
    United States Court of Appeals, Ninth Circuit.
    July 25, 1974.
    Dalford Todd (argued), Dallas, Tex., for plaintiff-appellant.
    Robert N. Kohn (argued), El Segundo, Cal., Jack Levine (argued), Los An-geles, Cal., for defendants-appellees.
    John F. Goemaat (argued), Equal Employment Opportunity Commission, Washington, D. C., amicus curiae.
    Before BARNES, TRASK and GOODWIN, Circuit Judges.
   OPINION

BARNES, Circuit Judge:

Plaintiff-appellant Yott asserts, in apparent good faith, that his religious precepts and beliefs prohibit his joining a union, or paying union dues.

For almost twenty-two years, prior to January 14, 1969, plaintiff-appellant had been employed by North American Rockwell Corporation (hereinafter “NR”) as an office equipment mechanic. He had been a faithful and satisfactory employee.

On October 6, 1968, NR and defendant International Union United Automobile, Aerospace and Agricultural Implement Workers of America, Local Union 887 (hereinafter “Union”) entered into a collective' bargaining agreement which required all employees to pay union dues. Plaintiff refused to enter into any Union membership, or to pay any dues or their equivalent, because of his religious beliefs, and so notified the defendants. The Union refused to waive any portion of its collective bargaining agreement; NR felt required under the terms of said Union agreement to discharge plaintiff-appellant on January 14, 1969. Subsequent to his discharge, Yott found employment with a calculator company that sends Yott to service its machines used by NR.

Plaintiff filed a charge under the Civil Rights Act of 1964 with the Equal Employment Opportunity Commission (hereinafter “EEOC”). The Commission initially found that religious objections to union-shop agreements were not protected by Title VII, but subsequently withdrew that decision. Plaintiff then filed suit in the district court, and the EEOC has indicated its support of plaintiff’s position by filing an amicus brief herein.

The principal issue before us is the interpretation of Section 703(a)(1) of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-2(a)(1), which prohibits discrimination because of religion, and whether the discharge of appellant Yott was in violation of the statutory provisions of Section 703(a)(1). '

Appellant urges that before us are two questions — has the employer discriminated against the employee, and was this discrimination because of religion? “If so, the Act makes it a violation. It is just that clear.” (Op. Brief P. 8).

But the answers are not that easy. NR had signed a collective union agreement that included a union-shop clause previously approved both by the Congress of the United States and by the Supreme Court. (See Note 1 hereto, and § 2, Eleventh of the Railway Labor Act, 45 U.S.C. § 152, Eleventh.)

Appellant relies on Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) and attempts to distinguish Dewey v. Reynolds Metals Co., 300 F.Supp. 709 (W.D.Mich.1969), rev’d 429 F.2d 324 (6th Cir. 1970), aff’d by an equally divided Court, 402 U.S. 689, 91 S.Ct. 2186, 29 L.Ed.2d 267 (1971). Unfortunately, both of these cases are “refusal to work” cases “involving religious holidays” as distinguished from the factual situation here.

Nor can we hold as suggested by appellant, that conscientious objector military service cases are similar. No law of the land requires plaintiff to work only at NR.

Appellant recognizes that there are cases holding against his position. International Association of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961); Railway Employes’ Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112 (1956); Otten v. Baltimore & Ohio R.R., 205 F.2d 58 (2d Cir. 1953); Linscott v. Millers Falls Co., 440 F.2d 14 (1st Cir. 1971), cert. denied, 404 U.S. 872, 92 S.Ct. 77, 30 L.Ed.2d 116 (1971); Gray v. Gulf, Mobile and Ohio R. R., 429 F.2d 1064 (5th Cir. 1970); Wicks v. Southern Pacific Co., 231 F.2d 130 (9th Cir. 1956), cert. denied, 351 U.S. 946, 76 S.Ct. 845, 100 L.Ed. 1471 (1956). Appellant suggests that these are all Railway Labor Act (hereinafter “RLA”) or National Labor Relations Act (hereinafter “NLRA”) eases.

Appellant may be right that all the cases up to Linscott have to do with the RLA, “allowing Union shops as to Railways.” But if Congress, in its wisdom, can require railroads to have compulsory union shops, and the Supreme Court has approved and held constitutional such a requirement, it can allow and require manufacturing businesses, such as NR, to have compulsory union shops. Congress originally permitted such union shops, and then required them, and thus has given “such agreements ‘the imprimatur of the federal law’.” Linscott, supra, 440 F.2d at 16. “The federal statute is the source of the power and authority by which any private rights are lost or sacrificed.” Hanson, supra, as quoted in Linscott, supra, at 16.

Whether rightly or wrongly, Union security agreements such as the one here involved, have long been favored by Congress.

The National Labor Relations Act (NLRA) as amended by the Taft Hart-ley Act, explicitly authorizes such agreements, Section 8(a)(3) of the NLRA, 29 U.S.C. § 158(a)(3) states in part:

“. . . nothing in this subchap-ter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization to require as a condition of employment membership . . . ”

The Congressional intent in allowing union shop agreements in Section 8(a)(3) is expressed by the following statement from the legislative history:

“It seems to us that these amendments [the proviso portions of Section 8(a)(3)] remedy the most serious abuses of compulsory union membership and yet give employers and unions who feel that such agreements promote stability by eliminating ‘free riders’ the right to continue such arrangements.” S.Rep. No. 105 on S. 1126, 80th Cong., 1st Sess. 7 (1947); See also Int. Asso. of Machinists v. Street, supra, 351 U.S. at 761, 81 S.Ct. 1784.

Appellant and amicus EEOC argue that the discharge of appellant (whose refusal to tender the periodic dues required under the collective bargaining agreements was based on his religious convictions), constituted religious discrimination and therefore violates Title VII. In contending that the union security clauses of the RLA and NLRA are qualified or modified by the provisions of Title VII, EEOC relies primarily on Norman v. Missouri Pacific Co., 414 F.2d 73 (8th Cir. 1969) (Amicus brief pp. 24^26) (See also Taylor v. Armco Steel Corp., 429 F.2d 498 (5th Cir. 1970); Tipler v. E. I. duPont deNemours and Co., 443 F.2d 125 (6th Cir. 1971)), for the proposition that “Title VII shall be applied in every instance in which such application is not clearly prohibited by the other statute.” (Amicus brief pp. 24-25). The language in Norman is inapposite to the issues in this case because Norman did not involve conduct which is explicitly permitted or authorized by the NLRA or RLA, as here.

In Norman, Negro train porters alleged discrimination against them by the railroad company under Title VII. The Eighth Circuit, in holding that the plaintiffs stated a cause of action held they were not confined to their administrative remedies under the RLA, but were governed by Title VII because “the plaintiffs here seek not a determination of bargaining representative but the termination by the Railroad of racially discriminatory practices respecting assignment, classification, terms and conditions of employment. These are statutory rights, not contractual rights embodied in collective bargaining agreements.” Id. 414 F.2d at 83. The court further commented that the RLA does not concern itself with civil rights whereas the legislative intent of Title VII was toward eliminating discriminatory employment practices. Thus, Norman’s holding was concerned with conduct not explicitly covered by RLA and the application of Title VII thereto. Similarly Title VII’s application to NLRA would be in regulating conduct not explicitly regulated by the labor acts. Thus, we cannot agree that Congress’s intent in Title VII was to modify the Congressional authorization in NLRA of union security clauses as alleged and implied by amicus.

The final argument of appellant and also the EEOC with respect to a Title VII violation is that the appellees must accommodate appellant’s religious needs unless the accommodation would be unreasonable. They cite the EEOC’s Guidelines on Discrimination Because of Religion, 29 C.F.R. § 1605.1, questioning the validity of the handling of the accommodation issue in Dewey v. Reynolds Metals Co., supra, as the law in the area, and next suggest that the March 6, 1972 amendment to Title VII (Section 701 (j) of Title VII as amended) codifying the accommodation section of the EEOC regulation, should be considered in interpreting Title VII’s application to the appellant’s discharge in 1969.

In Dewey, the Sixth Circuit rejected the specific regulation relied on here by the EEOC. 429 F.2d at 334. However, the same circuit has recently reconsidered the doubts that it expressed in Dewey about the constitutional validity of the EEOC regulation in Reid v. Memphis Publishing Co., 468 F.2d 346 (6th Cir. 1972). The court in Reid stated that:

“Whatever doubts there may have been about the constitutionality of this regulation or its consistency with the statute have been, we believe, laid to rest by a unanimous Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).” Id. at 350.

The court in Reid went on to hold that the Supreme Court’s “reasoning convinces us that 29 C.F.R. § 1605.1 (1972) was both effective and valid at the time of [Reid’s claimed religious discrimination].” Id.

In Duke Power, Chief Justice Burger, in his opinion for the Court discussed the “business necessity” test.

“The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.” 401 U.S. at 431, 91 S.Ct. at 853.
“. . . Congress has placed on the ■employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.” 401 U.S. at 432, 91 S.Ct. at 854.

On March 24, 1972, Congress amended Title VII to incorporate the substance of the EEOC Regulation 1605.1:

“(j) The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” Act of March 24, 1972, Pub.L. No. 92-261, § 701(j), 86 Stat. 103. (42 U.S.C. § 2000e(j)).

Although the requirement of accommodation is now a part of Title VII, there was clearly no statutory accommodation section at the time of Yott’s discharge. However, as expressed in an extensive summary of the legislative history of this amendment in Riley v. Bendix Corp., 464 F.2d 1113 (5th Cir. 1972), “the regulation . . . did express the prior intention of Congress. This subsequent congressional affirmation strengthens our conclusion about the validity of the regulation.” 468 F.2d at 351.

Thus, we agree with Reid and find that accommodation is required. The question is whether or not North American Rockwell and the Union could make a “reasonable accommodation” to appellant Yott’s religious beliefs “without undue hardship.” See 468 F.2d at 350. This determination should be for the district court to determine upon remand, and we so hold.

We note, however, that this is not a “refusal to work” case in which a reasonable accommodation is easily provided. We are not certain that any accommodation is available. If appellees are able to demonstrate that any suggested accommodation would impose undue hardship on the Union or on the employer’s business then Yott’s discrimination claim should fail.

The other issue with which we find it necessary to deal is appellant’s contention that his discharge was an infringement on the free exercise of religion as guaranteed by the First Amendment. We are compelled to disagree with appellant’s contention.

Many Supreme Court and Circuit Court cases support the constitutionality of union security clauses when “minor infringements on First Amendment rights” are concerned. Int. Asso. of Machinists v. Street, supra; Railway Employes’ Dept. v. Hanson, supra; Buckley v. American Federation of Television and Radio Artists, 496 F.2d 305 (2d Cir. 1974); Linscott v. Millers Falls Co., supra; Gray v. Gulf, Mobile & Ohio R.R., supra; Wicks v. Southern Pacific, supra; Otten v. Baltimore & Ohio R.R., supra.

In Linscott (which in the determination of the free exercise issue, the court was faced with the same problem as here — discharge for refusal to pay dues for religious reasons), the court found that the predominant justification for allowing such minor infringement or impairment upon First Amendment rights is the federal interest in preserving industrial peace and thus assuring the free flow of interstate commerce.

“[2] The more difficult question is that posed by the First Amendment: whether the governmental interest expressed in the labor legislation can justify this interference with plaintiff’s competing interest in choosing the employment she wishes without cost to her religious convictions. Freedom of exercise of religion is not absolute. Plaintiff concedes, as she must, that there must be a ‘balancing’ and that the governmental interest may be paramount if it is ‘compelling.’ Sherbert v. Verner, 1963, 374 U.S. 398, 403, 83 S.Ct. 1790, 10 L.Ed.2d 965. The elements of such a balancing test include, in addition to the importance of the governmental and religious interests, the degree of interference with the religious practice. See Clark, Guidelines for the Free Exercise Clause, 83 Harv.L.Rev. 327 (1969); Giannella, Religious Liberty, Nonestablishment, and Doctrinal Development, 80 Harv.L.Rev. 1381, 1390 (1967). We turn, therefore, to an appraisal.
A strong governmental interest in the union shop was found in Hanson. Some employees claimed that being obliged to join the union deprived them of freedom of association as guaranteed by the First Amendment, and that compelling the payment of dues violated Fifth Amendment due process. As against these contentions the Court held that ‘[industrial peace along the arteries of commerce [as] a legitimate objective,’ 351 U.S. at 233, 76 S.Ct. at 719, justified the legislation. Undoubtedly the Court recognized the validity and importance of the congressional purpose to achieve uniform union membership, both to further peaceful labor relations and, as desirable for its own sake, to require a fair sharing of the costs of collective bargaining.” Id. 440 F.2d at 17.

However, because “Hanson explicitly reserved some First Amendment questions,” the court in Linscott, though finding such questions were not raised in Linscott, went on to “a balancing of the interests,” the basis of Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (a state’s refusal to pay unemployment compensation; i. e., a matter involving the fisc). 440 F.2d at 17, 18.

The majority in Linscott then stated:

“In the present case the interests are not merely that of the plaintiff versus the cost to the fisc; opposed to plaintiff’s interest are both the public and private interests in collective bargaining and industrial peace.
“. . . We conclude that in weighing the burden which falls upon the plaintiff if she would avoid offending her religious convictions, as against the affront which sustaining her position would offer to the congressionally supported principle of the union shop, it is plaintiff who must suffer. We agree with the Fifth Circuit. Gray v. Gulf, Mobile & Ohio R.R., n. 1, ante; cf. Cap Santa Vue, Inc. v. N.L.R.B., D.C.Cir., 1970, 424 F.2d 883.” Id. 440 F.2d at 18.

Further distinguishing Sherbert, the court in Linscott stated that:

“Furthermore, plaintiff’s burden is not as severe as was Sherbert’s. Her alternative is not absolute destitution. The cost to her is being forced to take employment in a nonunion [shop!— here, less remunerative employment.” Id. at 18.

The same holds true for Yott in the case at hand. His alternative is not destitution but merely employment in a nonunion shop — a possibility clearly established by his own present employment.

Quoting the words of the Fifth Circuit in Gray v. Gulf, Mobile & Ohio R.R., supra 429 F.2d at 1065:

“We are called upon to resolve a clash between enforced union adherence and an individual conscience which forswears union allegiance.”

In Gray, recognizing that “the constitutional issue is sensitive and perhaps far-reaching,” Id. at 1065, the Fifth Circuit nevertheless, guided by previous Supreme Court teachings, denied relief to plaintiff. Gray, a Seventh Day Adventist, followed the religious tenets that man is a free moral agent; that he individually must make his own decision whether or not to join a labor union, he should suffer no penalties (such as being required, whether or not a member, to pay dues or to pay the equivalent of dues to some charitable organization). Id. at 1066-1067, n. 4.

In Gray, the union suggested that he should pay the required dues and fees without actually becoming a member of the union. The court found that such an arrangement does not violate the First Amendment, Id. at 1072 citing Hanson, supra, and Street, supra, as dis-positive of the issue. Accord, Hammond v. United Papermakers & Paperworkers Union, 462 F.2d 174 (6th Cir. 1972), cert. denied 409 U.S. 1028, 93 S.Ct. 464, 34 L.Ed.2d 322 (1972), in which the Sixth Circuit followed the First Circuit’s decision in Linscott and the Fifth Circuit’s in Gray.

The order of the district court dismissing for failure to state a cause of action upon which relief could be granted is reversed, and the case remanded for further consideration by the district court in accordance with this opinion,

      . The dismissal was required by the standard union shop clause, approved by Congress and the Supreme Court. Railway Employes’ Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112 (1956).

      . We note that the EEOC as amicus in the present case takes a position contrary to that taken in its Sixth Annual Report as brought to our attention by NR. (NR’s Brief, pp. 12, 13.)
      “The Equal Employment Opportunity Commission itself has, as recently as March 30, 1972, the date it issued its Sixth Annual Report, recognized that Ap-pellees’ action of discharging Appellant was consistent both with the NLRA and Title VII. The Commission’s report summarized only four of 609 charges of discrimination based upon religion. The Commission felt this decision was of such importance as to include it in the EEOC report to the President of the United States, the President of the Senate and the Speaker of the House : .
      ‘The Commission was also required to determine whether an employee in a union shop may refuse to pay union dues on the grounds that such payments are prohibited by his religious beliefs. The Commission held that “ . . . a union shop is not unlawful” and that Charging Party’s refusal on religious grounds is protected by neither Title VII nor the First Amendment.’ 6th Annual Report, Equal Employment Opportunity Commission, p. 12.”

      . “(a) It shall be an unlawful employment practice for an employer — (1) ... to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . religion . . . . ”

      . Congress lias repeatedly declined to enact exceptions to the union security provisions of the NLRA. H.R. 11666, 89th Cong., 1st Sess. (1965) (To exempt persons with religious convictions from the union membership requirements of NLRA) (Referred to corn-mittee was only action taken) ; S.3203, 89th Cong., 2d Sess. (1966) (To protect persons conscientiously opposed to Union membership) (Defeated) ; S.3153, 89th Cong., 2d Sess. (1966) (Made it unfair labor practice under NLRA to require persons conscientiously opposed to union membership to join 93d Cong., 1st Sess. (1973) (Amend NLRA a union) (Defeated) ; and recently, S.2108, to make it an unfair labor practice for a labor organization to discriminate on account of race, color, religion or national origin) (Referred to Com. on Labor and Public Welfare). It is for Congress, which authorized union security clauses, not the judiciary, to carve out exceptions to those clauses.

      . On July 10, 1967, the EEOC promulgated “Guidelines on Discrimination Because of Religion.”
      PART 1605 — GUIDELINES ON DISCRIMINATION BECAUSE OF RELIGION § 1605.1 — Observance of the Sabbath and other religious holidays
      (a) Several complaints filed with the Commission have raised the question whether it is discrimination on account of religion to discharge or refuse to hire employees who regularly observe Friday evening and Saturday or some other day of. the week, as the Sabbath or who observe certain special religious holidays during the year and as a consequence, do not work on such days.
      (b) The Commission believes that the duty not to discriminate on religious grounds, required by section 703(a)(1) of the Civil Rights Act of 1964, includes an obligation on the part of the employer to make reasonable accommodation to the religious needs of employees and prospective employees where such an accommodation can be made without undue hardship on the conduct of the employer’s business. Such undue hardship, for example, may exist where the employee’s needed work cannot be performed by another employee of substantially similar qualifications during the period of absence of the Sabbath observer.
      (c) Because of the particularly sensitive nature of discharging or refusing to hire an employee or applicant on account of liis religious beliefs, the employer has the burden of proving that an undue hardship renders the required accommodation to the religious needs of the employee unreasonable.
      (d) The Commission will review each case on an individual basis in an effort to seek an equitable application of these guidelines to the variety of situations which arise due to the varied religious practices of the American people.

      . Since we hold that if a reasonable accommodation can be reached between the parties it must be offered appellant Yott and such determination is for the District Court on remand (infra), we leave analysis of whether the “business necessity” test would be met for the District Court’s determination. We are certain that the court will keep in mind that the purpose of a union security clause is to insure that all who receive the benefits of the collective bargaining agreement pay their fair share. “Free riders” are discouraged. In effect stability is promoted by reducing potential labor strife, thus increasing the efficient operation of the business.

      . We assume that appellant, because of his religious beliefs, may not desire to pay an amount equal to union dues or any other amount of money to the Union, and will still refuse to become a member of the Union.
      The only succinct expression in the appellant’s complaint (Tr. 107-108) and his brief (Op. Br., p. 4) concerning what constitutes appellant’s objection because of “sincere religious beliefs” is that:
      “. . . he may not become a member of a Union or pay dues or join any other sectarian or fraternal organization.” (Tr. 107-108). (Emphasis added.)
      This is at least somewhat inconsistent with his statement that he does not object to “obligations imposed by Federal, State and Local governments, including the payment of taxes or compulsory military service.” (Tr. 108).


author: STALEY, Circuit Judge.

text:
    LAYNE-NEW YORK COMPANY, INC., a corporation of the State of New York v. ALLIED ASPHALT COMPANY, INC., Appellant in 73-1930, a corporation of the Commonwealth of Pennsylvania, and Commonwealth of Pennsylvania, Intervening Defendant-Appellant in Nos. 73-1931 and 73-1933. LAYNE-NEW YORK COMPANY, INC., a corporation of the State of New York v. B. H. MOTT & SONS, INC., Appellant in No. 73-1932, a corporation of the State of West Virginia, and Commonwealth of Pennsylvania, Intervening Defendant.
    Nos. 73-1930—73-1933.
    United States Court of Appeals, Third Circuit.
    Argued June 10, 1974.
    Decided Aug. 5, 1974.
    John M. Webb, Webb, Burden, Robinson & Webb, William H. Logsdon, Pittsburgh, Pa., for Layne-New York Co., Inc.
    Frank E. Coho, Pittsburgh, Pa., for Allied Asphalt Co., Inc.
    Raymond G. Hasley, Pittsburgh, Pa., for B. H. Mott & Sons, Inc.
    Walter J. Blenko, Jr., Blenko, Buell, Ziesenheim & Beck, James C. Valentine, Pittsburgh, Pa., for Commonwealth of Pennsylvania.
    Before STALEY, GIBBONS and WEIS, Circuit Judges.
   OPINION OF THE COURT

STALEY, Circuit Judge.

These are appeals from a judgment of the district court in favor of the appel-lee, Layne-New York Company, Inc. (“Layne-New York”), in a patent infringement action in which the appel-lee’s patent, U.S. Patent No. 3,469,405, was adjudged valid. These appeals stem from two actions filed against appellants Allied Asphalt Company, Inc. (“Allied”) and B. H. Mott & Sons, Inc. (“Mott”) in which Layne-New York charged each with infringement of the above mentioned patent. Layne-New York contended that the appellants, contractors, installed mine water barriers for the Commonwealth of Pennsylvania which required performance of the patented process. Pennsylvania was permitted to intervene in both actions. The two actions were consolidated for trial to a jury on the issue of validity.

The jury returned a special verdict in which certain questions posed by the court were answered. The jury found the patent valid and that Richard H. Reinhold, manager of the core drilling department of Layne-New York at the time of the invention, was a joint inventor with John W. Foreman. On the basis of this finding, judgment was entered on the verdict for lack of full and complete title in Layne-New York. Subsequently the district court granted the appellee’s motion for judgment n. o. v. vacating the jury’s finding that Foreman and Reinhold were joint inventors and reinstating the actions. These appeals followed after the district court granted permission under 28 U.S.C. § 1292(b).

On appeal the appellants contend, inter alia, that the patented process was reasonably obvious to one with ordinary skill in the art at the time of the invention within the meaning of 35 U.S.C. § 103. We agree.

Pursuant to the mandate of Article I, Section 8, of the Federal Constitution, Congress enacted 35 U.S.C. § 103. See Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162 (1950). Section 103 provides:

A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.”

The United States Supreme Court in Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 694, 15 L.Ed.2d 545 (1966), has stated the following with respect to § 103:

“ * * * Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved.” See United States v. Adams, 383 U.S. 39, 86 S.Ct. 708, 15 L.Ed.2d 572 (1966); Arrow Safety Device Co. v. Nassau Fastening Co., 496 F.2d 644 (C.A.3 1974).

In determining the obviousness question, this court must consider all prior art, whether or not the patentee knew of it. Arrow Safety Device Co. v. Nassau Fastening Co., 496 F.2d 644 (C.A.3 1974) ; see Mast, Foos & Co. v. Stover Mfg. Co., 177 U.S. 485, 20 S.Ct. 708, 44 L.Ed. 856 (1900).

The patented process discloses a method of constructing a mine water barrier in an underground mine. The process involves first drilling two parallel rows of holes to the subterranean void. From the surface through the borings mineral aggregate is introduced which is then grouted (permeated with thin watery concrete) in place so as to form two spaced underground bulkheads. A third row of holes is then drilled between the first two. Cement is poured into these holes, forming a plug between the grouted bulkheads.

The prior art in this case includes methods used in three mining projects and one described in a British publication. One project is the California, Pennsylvania, State Teachers College project which involved the drilling of hoies into subterranean voids, the introduction of gravel aggregate to form cones reaching to the roof of the void, and the grouting of the gravel. This method formed a hardened cylinder to support the roof against subsidence. Another one, the PAT Collier Township project, involved the use of substantially the same process to form underground cementitious supports against subsidence. A third project, the Banning Mine project, called for drilling holes into the mine, introducing aggregate, grouting the aggregate, and easting a concrete bulkhead against the grouted aggregate. The mass constructed in this fashion was to block the flow of water within the mine. Because of the discovery, after plans had been drawn, of a crosscut in the mine which would have permitted water to flow unimpeded around the block, the proposed barrier was never constructed. Plans for the project were placed in the files of the Pennsylvania Department of Mines. The British publication was called to the attention of the patent office. The publication describes a method of filling cavities in old mines to prevent subsidence. It details the building of dams at the limits of the area to be treated and the filling of the area with concrete.

The projects outlined above were not considered by the patent office. The fact that “significant prior art not considered by the Patent Office” was brought forth by the appellant weakens the patent’s presumption of validity. U. S. Expanion Bolt Co. v. Jordan Industries, Inc., 488 F.2d 566, 569 (C.A.3 1973); see Arrow Safety Device Co. v. Nassau Fastening Co., 496 F.2d 644 (C.A.3, 1974); 35 U.S.C. § 282.

We believe that the patent in question is invalid due to obviousness. The patented method is merely an obvious combination of old elements. See Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162 (1950). Combinations of old elements may be patentable, but we do not believe that the method in question is such a patentable combination. See National Distillers & Chemical Corp. v. Brenner, 128 U.S.App.D.C. 386, 389 F.2d 927 (D.C.Cir.1967). Because here the process was used as a mine water barrier rather than mere support against subsidence does not lend credence to the appellee’s position. A new use for an old process is not patentable. General Electric Co. v. Jewel Incandescent Lamp Co., 326 U.S. 242, 66 S.Ct. 81, 90 L.Ed. 43 (1945).

For the foregoing reasons, the judgment of the district court will be reversed.

      . Counterclaims were filed against Layne-New York by Allied, Mott and Pennsylvania.

      . Richard I-I. Reinhold, the appellee’s assign- or, was the only applicant for the patent. However, appellants argued in the district court and continued to insist on appeal that the evidence mandates a finding that John W. Foreman was a joint inventor and therefore a real party in interest. See 35 U.S.C. § 116. As the district court pointed out, all co-owners of a patent must join in an infringement suit. Rawlings v. National Molasses Co., 394 F.2d 645 (C.A.9 1968).

      . The case was ordered restored to the trial list for purposes of determining the issues of infringement and damages. All counterclaims against Layne-New York were dismissed with prejudice except those requesting declaratory judgment of non-infringement.


text:
    Artis X. JOHNSON, Appellant, v. Charles L. WOLFF, Jr., Warden of the Nebraska Penal Complex, Appellee.
    No. 73-1740.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 14, 1974.
    Decided July 31, 1974.

      Artis Johnson, pro se.
    Clarence A. H. Meyer, Atty. Gen., and Betsy G. Berger, Asst. Atty. Gen., State of Nebraska, Lincoln, Neb., for appellee.
    Before GIBSON, BRIGHT and WEBSTER, Circuit Judges.
   PER CURIAM.

Artis Johnson, a black prisoner at the Nebraska Penal and Correctional Complex, brought a civil rights action against the warden seeking declaratory and injunctive relief and raising these issues:

1) Harassment by prison officials by means of fraudulent and false disciplinary reports which caused restriction of the plaintiff’s visiting time, loss of good time, and denial of school attendance rights;

2) Removal of the plaintiff from a medically prescribed diet as punishment;

3) Racial discrimination.

The district court, Chief Judge Urbom presiding, denied Johnson relief. While it appears that Johnson may have been administered rather harsh punishment for apparently trivial offenses, the warden testified that such punishment was not unusual and was administered in a nondiscriminatory manner. In reviewing the record, we note that Johnson has posed a disciplinary problem to the institution but testimony indicates that his attitude has improved.

On the basis of the record presented to us, Judge Urbom’s opinion is entitled to affirmance.

Affirmed.

      . These punishments were often meted out without an opportunity for a fair hearing. In the future, of course, the Nebraska penal authorities will be obliged to conduct their disciplinary hearings in the institution in conformity with the principles announced in Wolff, Warden et al. v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).