author: ALFRED T. GOODWIN, Circuit Judge:

text:
    WALT DISNEY PRODUCTIONS, Appellant, v. UNITED STATES of America, Appellee. WALT DISNEY PRODUCTIONS, Appellee, v. UNITED STATES of America, Appellant.
    Nos. 72-1052, 72-1076.
    United States Court of Appeals, Ninth Circuit.
    May 29, 1973.
    Rehearing Denied July 31, 1973.

      John Cooley Baity (argued), Richard Sayler, Roy W. McDonald, of Donovan, Leisure, Newton & Irvine, New York City, John J. Wilson, Leon S. Angvire, of Hill, Farrer & Burrill, Los Angeles, Cal., for appellant Walt Disney Productions.
    Stephen Schwarz (argued), Tax Div., William D. Keller, U. S. Atty., Scott P. Crampton, Asst. Atty. Gen., Charles H. Magnuson, Mason C. Lewis, Asst. U. S. Attys., Meyer Rothwacks, Chief, Appellate Section, Bennet N. Hollander, Dept. of Justice, Washington, D. C., for appellee United States.
    Before TRASK and GOODWIN, Circuit Judges, and EAST, District Judge.

       The Honorable William G. East, United States ting by designation. Distriet Judge for the District of Oregon, sit-

   ALFRED T. GOODWIN, Circuit Judge:

The government appeals a district court judgment in a tax-refund ease allowing Walt Disney Productions to take an “investment credit” on motion-picture negatives produced in 1962. The taxpayer cross-appeals from that part of the judgment which reduced the basis of the films for purpose of the credit.

The district court held that the films were “tangible personal property” within the meaning of Internal Revenue Code of 1954; that they had a useful life of more than eight years; and that they were depreciable. The films were thus eligible for the investment credit. The Commissioner contends .that the films were not “tangible personal property” within the meaning of Int.Rev. Code of 1954, § 48(a)(1)(A), and that they did not have a useful life of eight years.

The district court, in allowing Disney to take investment credit, did not allow it to take the credit on the full basis Disney used for depreciation purposes, but limited Disney to “those costs which are directly related to the finished negative,” 327 F.Supp. 189, 192-193 (C.D. Cal.1971). This figure was defined by multiplying hourly labor and certain other costs by a fraction the numerator of which was the footage of the final film and the denominator of which was the total footage shot. Disney’s cross-appeal challenges this limitation of allowable costs for investment-credit purposes.

I. INVESTMENT CREDIT

The negatives are used to make prints, which are copyrighted, and which are exhibited in theaters or on television. The negatives are not copyrighted. They are tangible, and they are personal property. They thus appear to be eligible for the credit. However, the Commissioner relies on Treas.Reg. § 1.48-1 (f), adopted in 1964, for the proposition that all the costs of production of the negative, except the negligible costs of the raw film, are to be allocated to the intangible copyright eventually procured on the positive print. Treas.Reg, § 1.-48-1 (f) provides:

“Intangible Property. Intangible property such as patents, copyrights, and subscription lists, does not qualify as section 38 property. The cost of intangible property in the case of a patent or copyright, includes all costs of purchasing or producing the item patented or copyrighted. Thus, in the case of a motion picture or television film or tape, the cost of the intangible property includes manuscript and screenplay costs, the costs of wardrobe and set design, the salaries of cameramen, actors, directors, etc., and all other costs properly includible in the basis of such film or tape * * *. However, if tangible depreciable property is used in the production of such intangible property, see paragraph (b) (4) of this section.”

We recognize that Treasury regulations, even interpretative regulations, “must be sustained unless unreasonable and plainly inconsistent with the revenue statutes,” Bingler v. Johnson, 394 U.S. 741, 750, 89 S.Ct. 1439, 1445, 22 L.Ed. 2d 695 (1969). However, we agree with the district court that the quoted regulation is invalid. It is plainly inconsistent with the expressed purpose of the applicable statute as shown by the legislative history.

In attributing all of Disney’s labor and production costs of the negatives to the copyrighted print, the regulation defeats the purpose of the credit. For example, the same regulation, if applied to a production machine in an automobile factory, would deny the investment credit on all but the material costs of a machine developed and patented for use in the manufacturing plant although the amount paid to the inventor for the idea of the machine was insignificant and the bulk of the costs of the machine were the ordinary labor and engineering costs of its production. Disney argues that its film negatives, like the hypothetical production machines, are standardized units of depreciable property which Disney uses to produce other products, the positive prints, and that the attribution of all the value of the film to the copyright, like the attribution of all the value of a machine used in production to a patent eventually procured on it, is unwarranted. We agree.

It is evident from a reading of the legislative history of the investment credit that Congress intended the credit to be allowed to those in Disney’s position. Exhibit statements of legislative intent that films can qualify as tangible depreciable property are found: in the Senate Finance Committee report on the 1971 restoration of the investment credit; in the discussion in the House on the 1971 Act in a statement by Chairman Mills of the House Committee on Ways and Means in response to a specific question from the floor, 117 Cong.Rec. 34894 (1971); and in the House debates on the 1971 Act conference report, again in a statement by Chairman Mills on the House floor in response to a specific question, 117 Cong.Rec. H-12127 (daily ed. Dec. 9, 1971).

The government urges that this legislative history is irrelevant because the 1971 Act changed prior law, or at least that the history is entitled to little weight because “the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.” United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 332, 4 L.Ed.2d 334 (1960). However, although the 1971 re-enactment of the investment credit. did change prior law in several ways, see, e. g., Revenue Act of 1971, Pub.L. No. 92-178, § 104(c), 85 Stat. 497, 501, it did not change the phrase “tangible personal property” as used in the 1962 Act, Int.Rev.Code of 1954, § 48(a)(1) (A). And, while subsequent legislative history normally is not of controlling weight, it should not be ignored when it is clearly relevant. Haynes v. United States, 390 U.S. 85, 87 n. 4, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968); Fribourg Navigation Co. v. Commissioner, 383 U.S. 272, 283, 86 S.Ct. 862, 15 L.Ed.2d 751 (1966) ; Sioux Tribe of Indians v. United States, 316 U.S. 317, 329-330, 62 S.Ct. 1095, 86 L.Ed. 1501 (1942); Minot Federal Savings & Loan Ass’n v. United States, 435 F.2d 1368, 1371 (8th Cir. 1970).

In this case we give subsequent legislative history special weight, because the inferences flow not from Congressional action or inaction on amendatory legislation, but from explicit Congressional statements of the meaning of a phrase which was unchanged during the period in question. In addition, Representative Mills was Chairman of the House Committee on Ways and Means both in 1962 and in 1971, and many members of the Senate Finance Committee served in both years. The statements by the Finance Committee and by Chairman Mills demonstrate that the Commissioner’s regulation was contrary to the Congressional intent. We hold it invalid insofar as it denied an investment credit on the films in question.

II. EXTENT OF CREDIT

The government argues that even if the films are tangible personal property they are not entitled to the full investment credit because the films did not have a useful life of eight years or more. The government relies heavily on the difference between Disney’s estimates of the useful life of the films for investment credit purposes and the period computed from Disney’s “income life” estimates for depreciation purposes. However, depreciation and investment credit estimates need not be the same. Triangle Publications, Inc., 54 T.C. 138, 152-153 (1970), acquiescence, 1972-1 Cum.Bull. 2; Rev.Rul. 72-76, 1972-1 Cum.Bull. 13. The estimate of the useful life of the films presented a difficult factual problem. The district court’s resolution was not “clearly erroneous.”

III. CROSS APPEAL

Disney’s cross appeal challenges the district court’s ruling limiting the basis of the films for investment credit purposes to less than their basis for depreciation. We hold that this limitation was unwarranted.

There is no indication that the term “basis” as used in § 46(c)(1)(A) was to have other than its customary meaning as including the whole cost of the property produced. Int.Rev.Code of 1954, § 1012. Indeed, the requirement in § 48 (g), repealed, Revenue Act of 1964, Pub. L. No. 88-272, § 203(a)(1), 78 Stat. 33, that the basis for purposes of depreciation shall be reduced by the amount of the investment credit compels the conclusion that “basis” was not intended to have an idiosyncratic meaning in § 46 (c)(1)(A). Accordingly, the judgment of the district court is modified to allow the taxpayer to use its depreciation basis to compute its investment credit.

Affirmed as modified.

      . “As previously indicated the investment credit is generally available for depreciable tangible personal property. Questions have arisen, however, whether motion picture and television films are tangible (as distinct from intangible) personal property eligible for the credit. A court case decided the question in favor of the taxpayer. The committee agrees with the court that motion picture and TV films are tangible personal property eligible for the investment credit.” S.Rep. No. 92-437, 92d Cong., 1st Sess. 34, 1971 U.S. Code Cong, and Adm.News, p. 1941 (1971).


source: Caselaw Access Project

author: TUTTLE, Circuit Judge:

license: Public Domain

text:
    Sandra J. DREW, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    No. 72-3003.
    United States Court of Appeals, Fifth Circuit.
    June 4, 1973.
    Rehearing and Rehearing Eh Banc Denied July 12, 1973.

      Clayton Sinclair, Jr., Lenwood A. Jackson, Atlanta, Ga., Robert A. Penney, Boston, Mass., for plaintiff-appellant.
    Lutz Alexander Prager, EEOC, Washington, D. C., Joseph Ray Terry, Regional Atty., EEOC, Atlanta, Ga., amicus curiae.
    Kalvin M. Grove, S. Richard Pincus, Chicago, Ill., Melburne D. McLendon, Atlanta, Ga., for defendant-appellee.
    Before TUTTLE, THORNBERRY and DYER, Circuit Judges.
   TUTTLE, Circuit Judge:

This is an appeal by Sandra Drew, a white female employee of Liberty Mutual Insurance Company seeking a preliminary injunction to prevent her employer from discharging her for what she alleged to be the filing of a complaint of discrimination on account of sex by her employer.

The complaint which was filed on April 19, 1972, alleged in effect: (a) That Liberty Mutual, Drew’s employer discriminated against female employees in the terms and conditions of employment in violation of Title VII of the Civil Rights Act of 1964, (b) That on April 6, 1972, she had filed a charge of discrimination with the Equal Employment Opportunity Commission, outlining Liberty Mutual’s violations of Title VII, (c) That on April 7, 1972, the day after the filing of the charge, she had been fired, and (d) That her discharge was in retaliation for having filed her charge with the Commission and for opposing practices prohibited by Title VII. She alleged that this violated subsection 704(a) of Title VII.

Ms. Drew’s complaint sought an order temporarily reinstating her to the position she had held, awarding pay for the period she had been unemployed, prohibiting future reprisal. It sought to obtain temporary relief to preserve the status quo pending the Commission’s administrative disposition of her charges.

On May 2, Liberty Mutual moved to dismiss the complaint, primarily on the grounds that it failed to state a claim and, secondarily, on grounds that an indispensable party, the Commission, had not been joined. The trial court held a hearing on the motion to dismiss on May 4, and, according to the transcript of the proceedings, expressed a strong doubt as to the right of the individual employee to maintain such an action in light of the amendment to Title VII made effective in 1972, which amendment, for the first time, provided that in exceptional circumstances, following the filing of a complaint, the Commission “may bring an action for appropriate temporary or preliminary relief pending final disposition of such charge.”

Nevertheless the court did not dismiss the complaint but allowed the plaintiff’s counsel additional time to file an amended complaint. One amendment was filed May 10, 1972, alleging a conspiracy in violation of one of the Civil War Civil Rights Acts, 42 U.S.C. § 1985(3), a ground for relief that has now been abandoned. A further amendment was filed May 23, 1972, which alleged that the Commission had, at Drew’s request, issued a “Notice of Right to Sue Within 90 Days” on May 18, 1972.

In the meantime, on May 12, 1972, the Commission filed a complaint of its own alleging substantially the same fact as contained in the Drew complaint. It also sought the same injunctive relief. It must be noted that this was not a suit for final relief as provided for under Section 706(f)(1) of the Act. It was filed under the emergency provisions of Section 706(f)(2) seeking temporary relief pending the Commission’s action on the original charge.

On May 30-31, 1972, a hearing was held, as stated by the trial court, on the suit filed by the Commission, although Drew’s counsel was permitted to participate.

At this hearing the trial court found sufficient evidence to conclude that the Drew discharge had been retaliatory, in violation of subsection 704(a) and to warrant the granting of injunctive relief. In doing so, the court specifically found that the plaintiff had suffered irreparable harm. The court ordered Liberty Mutual to reinstate Ms. Drew at her former position with back pay. This judgment has recently been affirmed by this court. Equal Employment Opportunity Commission v. Liberty Mutual Insurance Co., 475 F.2d 579 (5th Cir. 1973).

Subsequently, the trial court dismissed the Drew complaint and awarded costs to the defendant. In its order the court held that Title VII did not confer jurisdiction to a private party to maintain a suit for injunctive relief, or any other relief, prior to the expiration of 180 days from submission of a charge to the Commission. In addition the court held that it lacked jurisdiction under its equitable powers because “the equity powers which the plaintiff and the EEOC assert that the court should exercise must be employed, if at all, only when there is no statutory basis for granting relief and when the relief sought cannot be obtained through any other forum or procedure.” The court concluded that since the Commission had filed suit it was not necessary for Ms. Drew to invoke the extraordinary equity powers of the court in order to obtain the relief sought. The court held, therefore, that her action was “superfluous.” It therefore dismissed the case “for lack of subject matter jurisdiction.”

The court then made the following statement

“However it is the opinion of the court that the plaintiff should be allowed to intervene in the ease of EEOC v. Liberty Mutual Life Insurance Co., Civil Action No. 16590. Up to the present time, plaintiff’s interests have been adequately preserved by the existence of her individual action, now dismissed by virtue of this order. In the future her interests can best be protected by intervention. Accordingly, she is directed to make application for intervention pursuant to Rule 24-, Fed.R.Civ.P.” (Emphasis added).

This wound up the matter below, except that costs were granted to the defendant and no attorney’s fees for the plaintiff’s counsel were allowed.

As' we have pointed out, Ms. Drew has, under an order of the court, been reinstated to her position, pending further proceedings before the Commission. On the basis of this fact, the defendant contends that the case before us is now moot. We think the case is not moot, because the plaintiff below has been cast for court costs and, in spite of what the record in the trial court shows to have been a very substantial amount of effort expended on behalf of their individual client, who ultimately prevailed, at least by their joint efforts with counsel for the EEOC, the trial court did not even consider the propriety of awarding counsel fees as is authorized under the statute.

We are satisfied that if we should conclude that the Drew complaint, at the time it was filed, and for a period of time during which counsel performed substantial service for her, was properly in the district court, it would be our duty to remand to the trial court either for reinstatement of the suit, or for relieving the plaintiff of her obligation to pay for the costs of the action. The trial court would then also consider the award of attorney’s fees for service performed for Ms. Drew.

The basic question decided by the trial court, and which we now hold is still a viable issue, is whether, when Congress enacted the 1972 amendments to the statute which for the first time gave the EEOC the right to file suit both for the enforcement of the rights of the employee and also to seek temporary relief in a hardship case, it made such provision the exclusive means by which a person in Ms. Drew’s position could be protected from irreparable damage to herself.

We conclude that in the limited class of cases, such as the present, in which irreparable injury is shown and likelihood of ultimate success has been established, (here this has been determined by the trial court), the individual employee may bring her own suit to maintain the status quo pending the action of the Commission on the basic charge of discrimination.

Our reasoning derives from the fact that, prior to the 1972 amendment, it is clear that a victim of such forbidden conduct as was here alleged had a clear right to seek equitable relief without having to await the convenience of the EEOC. The 1964 Act gave no power to the EEOC to bring such an action. However, the right to be free from such discriminatory conduct was expressly spelled out in the Act. Thus, the court would have jurisdiction to fashion an equitable remedy to vindicate the right. See e. g., Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970).

The situation in which Ms. Drew found herself would have been equated to that of Ms. Sanders in the Dobbs case. Ms. Sanders sued under 42 U.S. C.A. § 1981, one of the 1866 Civil Rights Acts. This Act, as will be seen, did not prescribe any remedy. It merely created a right in every person to make and enforce contracts “as is enjoyed by white citizens.” Yet in Dobbs we sustained the right of Ms. Sanders to bring an action in equity in the district court. In doing so, we relied upon the Supreme Court decision in Jones v. Alfred Mayer Co., 392 U.S. 409, 88 S.Ct 2186, 20 L. Ed.2d 1189. The Supreme Court said:

“The fact that 42 U.S.C. § 1982 is couched in declaratory terms and provides no explicit method of enforcement does not, of course, prevent a federal court from fashioning an effective equitable remedy. See, e. g. Texas & N.O.R. Co. v. Railway Clerks, 281 U.S. 548, 568-570, 50 S.Ct. 427, 433, 74 L.Ed. 1034; DeCkert v. Independence Corp., 311 U.S. 282, 288, 61 S.Ct. 229, 333, 85 L.Ed. 189; United States v. Republic Steel Corp., 362 U. S. 482, 491-492, 80 S.Ct. 884, 889-890, 4 L.Ed.2d 903; J. I. Case Co. v. Borak, 377 U.S. 426, 432-435, 84 S.Ct. 1555, 1559-1561, 12 L.Ed.2d 423; Cf. Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L.Ed. 714; Griffin v. School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256.”

We have no doubt, therefore, that, prior to the amendment of 1972, Ms. Drew could have filed the suit for an injunction pending the consideration to be given to her charges by the EEOC.

Moreover, it must be remembered that what, and all, the plaintiff sought here was temporary relief to prevent irreparable injury while the Commission carried on its function of negotiating and conciliating. As one commentator said concerning such an action prior to the amendment:

“. . .It would seem that if the court has power to grant a preliminary injunction when the final decision-making authority is in an administrative body, a fortiori it should have the power to award such relief when it must only defer to the agency for a period of attempted conciliation and the final decisional authority rests with the court. Indeed, such an injunction might be essential to preserve the court’s ability to later order meaningful relief.” Note, Developments In The Law — Employment Discrimination in Title VII of the Civil Rights Act of 1964, 84 Harvard Law Review, 1109, 1257 (1971).

The case of Gomez v. Florida State Employment Service, 417 F.2d 569 (5th Cir. 1969), is also instructive in its holding that a right of action can be fashioned by a federal court when the beneficiary of a federal law contends he is deprived of its benefits.

The trial court, however, without specifically considering the question whether Ms. Drew might have had a right to bring such an action prior to the adoption of the amendment, concluded that the adoption of the amendment by Congress (by which, for the first time, the EEOC was given the right to file an enforcement proceeding in the court and also to “bring an action for appropriate temporary or preliminary relief pending final disposition of such charge” when the Commission concludes on the basis of a preliminary investigation that prompt judicial action is necessary to carry out the purposes of the Act) made such provision the exclusive remedy available for the protection of an employee like Ms. Drew.

We find no basis for such a construction of the 1972 Act. The original Senate version of the proposed amendment to the Act and House version differed materially. At all stages in the proceedings strong minority reports attacked the authority finally given for the Commission to file enforcement proceedings in court and to take the action which we have just described pending a final decision by the EEOC. The House bill as passed provided that charges under Title VII are the exclusive remedy for unlawful employment practices. In Conference, the House receded. U. S. Code Congressional and Administrative News 1972, p. 2181. This would be a strong indication of the intent of Congress not to exclude court action of the kind previously available.

Included in the legislative history is the unanimous comment of majority and minority committee reports to the effect that the Commission is simply overwhelmed with complaints. In the House Minority Committee report is a quotation of Chairman Brown that EEOC’s backlog “now means an average delay of 18 months to 2 years before the Commission can complete action on a complaint.” U. S. Code Congressional and Administrative News 1972, p. 2170.

Under the theory advanced by Liberty Mutual, and adopted by the trial court, Ms. Drew would have to be fortunate enough for her complaint with EEOC so to divert the attention of the staff from its overwhelming burden of cases to distinguish it as one which demanded immediate attention, resulting in the preparation and filing of a suit by staff attorneys pending the usual course of processing the complaint before she would ever be able to act on her own to seek an end to the irreparable damage she was suffering. If she had not been fortunate enough to obtain counsel willing to file the complaint for her one can only speculate as to the likelihood that the EEOC would have considered her case as having the merit which the trial court found it to contain. We should not lightly assume that Congress sought to do away with the chance that private litigants might in this manner alleviate the burden on EEOC members and staff in the rare situation when the likelihood of success and the need for immediate assistance could attract competent counsel to act.

We think that none of the criteria by which courts generally consider that an act of Congress, silent on the subject, is held to have impliedly destroyed an existing right of action are present here. In the Dobbs case it was argued that the enactment of Title VII of the Civil Rights Act of 1964 preempted the general remedial language of 42 U.S.C.A. § 1981; that is to say that the enactment of the statute we are concerned with prohibiting discrimination in employment on account of race and sex put an end to the right of a litigant to rely on Section 1981 as a basis for bringing a suit alleging a denial of the opportunity to be employed on account of race. We answered this contention by saying:

“Since there is no language in Title VII that can remotely be construed as directly repealing § 1981, the only means of repeal through preemption would be by implication. Repeals by implication, however, are not favored and ‘the intention of the legislature must be clear and manifest . ’ ” Citing Posadas v. National City Bank, 296 U.S. 497, 503, 56 S. Ct. 349, 80 L.Ed. 351.

We also pointed to the case of Waters v. Wisconsin Steel Works, etc., 427 F.2d 476 (7th Cir., 1970), in which it was held that:

“a right to sue under section 1981 for ‘private’ racial discrimination in employment existed prior to 1964. By enacting Title VII of the 1964 Civil Rights Act, Congress did not repeal this right to sue.” 427 F.2d at 481. In Dobbs we also stated that:

“This interpretation also finds support by analogy in Jones v. Alfred H. Mayer Co., where the court ruled that Title VIII of the Civil Rights Act of 1968 did not repeal § 1982 by implication. Moreover, in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 90 S.Ct. 400, 405, 24 L.Ed.2d 386, the Court stated:

‘We noted in Jones v. Alfred H. Mayer Co. that the Fair Housing Act of 1968, 82 Stat. 81, in no way impaired the sanction of § 1982. 392 U.S. at 413-417, 88 S.Ct. 2186, at 2189-2192. What we said there is adequate to dispose of the suggestion that the Public Accommodations provision of the Civil Rights Act of 1964, 78 Stat. 243, in some way supersedes the provisions of the 1866 Act. For the hierarchy of administrative machinery provided for the 1964 Act is not at war with the principles embodied in § 1982.’ ”

Moreover, it is clearly the policy of the legislation to encourage the use of privately employed counsel as private attorneys-general to aid in the enforcement of this statute. This is made evident by the provision in Section 2000e-5 for the appointment of counsel in the event that the Commission dismisses a charge or if, after 180 days, the Commission has not filed a civil action.

As to the suggestion contained in the written opinion of the trial court that a chaotic situation would result if private litigants in the position in which Ms. Drew found herself upon her summary dismissal because of her having filed a complaint with the EEOC were permitted to seek temporary injunctive relief, we call attention to what this court has previously noted in H. Kessler & Co. V. EEOC et al., 472 F.2d 1147 (5th Cir. 1973). We there said:

“The cmirts of this circuit have previously found that competent lawyers are not eager to enter the fray in behalf’ of a person who is seeking redress under Title VII. This is true even though provision is made for payment of attorney’s fees in the event of success. In the case of Petete v. Consolidated Freightways, 313 F.Supp. 1271 (D.C.N.D., Tex., 1970), for instance, the court found that ‘[f]urther complicating plaintiff’s problem has been the reluctance of the attorneys she has approached to undertake the specific and complex challenges of a Title VII law suit which are not common to more frequently litigated areas of the law.’ See also, Edmonds v. E. I. DuPont de Nemours & Co., 315 F.Supp. 523, 524 (D.C.Kansas, 1970) ; Sanders v. Russell, 401 F.2d 241 (CA 5, 1968).”

We conclude that there is no apparent set of circumstances that would cause us to construe the 1972 amendment as having impliedly destroyed the right of action which Ms. Drew would previously have had prior to its enactment. It was therefore error for the trial court to have concluded that Ms. Drew’s case was subject to dismissal for failure to state a claim on which relief could be granted. It is not simple to determine what course of action should be pursued upon a remand to the trial court. As noted above Ms. Drew has been afforded the relief she sought in her law suit, by the filing of a suit a month later by EEOC seeking the same result. Nevertheless, it is clear that if the Drew case was properly in court it was improper to charge her with the costs of the trial court action and to fail to consider the request for attorney’s fees. Significantly, the trial court recognized the value of the work performed by Ms. Drew’s counsel when it made the comment:

“To the present time [July 12] plaintiff’s interest have been adequately preserved by the existence of her individual action.”

Furthermore, the court seemed to consider it necessary for her to be a party to the continuing action, because it further stated:

“She is. directed to make application for intervention pursuant to Rule 24 Fed.R.Civ.P.”

It appears from the trial court records that Ms. Drew has now intervened in the EEOC suit. This being the case, we conclude that this is an adequate disposition of her interests and that on remand the court consider the awarding of counsel fees to Ms. Drew to represent the value of the services performed on her behalf by counsel up until the time when the intervention was accomplished, and including services performed by them in connection with this appeal.

The judgment is reversed and the case is remanded to the trial court for further proceedings not inconsistent with this opinion. The order of the trial court dismissing Ms. Drew’s complaint is vacated pending a further order of the court dealing with the matter of counsel fees. Following the entry of such order, the suit can be dismissed with costs awarded to the plaintiff.

      . We make this reference to the color and sex of the individual involved solely because it is essential in order to pinpoint the precise nature of the alleged discrim¡nation which was the subject of this lawsuit.

      . This section provides as follows:
      “It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under this title.”

      . 42 U.S.C.A. § 2000e-3(a):
      “It shall be an unlawful employment practice for an employer:
      . to discriminate against any individual . . . because he opposed any practice made an unlawful practice by this title, or because he made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing un-' der this title.”

      . Section 1981 provides:
      “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishments, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”

      . It must be remembered that this is not an action brought by Ms. Drew for a final adjudication of her right to be protected against the alleged discriminatory conduct of the defendant. That matter is being considered by the Commission in the usual course. She normally would not be permitted to file a suit on the merits unless the Commission had been unable for a period of 180 days to effect conciliation. The 180-day provision, of course, does not apply here, because the action brought by Ms. Drew is merely one to seek temporary relief pending the action of the Commission. It is similar to the action which the Commission now has the right to bring under Section 706(f) (2).


author: PER CURIAM: HUFSTEDLER, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Roy M. RAMIREZ, Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. George BALEAN, Defendant-Appellant.
    Nos. 72-2424, 72-2433.
    United States Court of Appeals, Ninth Circuit.
    May 29, 1973.
    Rehearings Denied July 9, 1973.
    Hufstedler, Circuit Judge, dissented and filed opinion.

      Clark A. Miller (argued), Richard A. Hodge, San Francisco, Cal., for defendant-appellant Ballan.
    Michael R. Hallinan (argued), and Michael H. Metzger, of Fisher, Krieger & Metzger, San Francisco, Cal., for defendant-appellant Ramirez.
    James W. Brannigan, Jr. (argued), Crim. Div., Dept. of Narcotics and Dangerous Drugs, SW Unit, San Diego, Cal., James L. Browning, Jr., U. S. Atty., San Francisco, Cal., William C. Smitherman, U. S. Atty., Phoenix, Ariz., Elizabeth Meyer, Atty., Dept. of Justice, San Diego, Cal., of Counsel, for plaintiff-appellee.
    Before DUNIWAY and HUFSTEDLER, Circuit Judges, and ANDERSON, District Judge.

       Honorable J. Blaine Anderson, United States District Judge, District of Idaho, sitting by designation.

   PER CURIAM:

In a single count indictment returned September 16, 1971, appellants Bailan and Ramirez and sixteen others were charged with conspiracy to import, receive, conceal and transport marijuana in violation of 21 U.S.C. § 176a. Defendants were found guilty by a jury on June 19, 1972, and sentence was pronounced the next morning, June 20, 1972. Ramirez received a sentence of seven years and a fine of $15,000.00. Bailan was sentenced for five years and a fine of $5,000.00. The sentences were imposed under Sec. 176a, which was repealed effective May 1, 1971. Comprehensive Drug Abuse Prevention and Control Act of 1970 (the Act), Pub.L. 91-513, 84 Stat. 1236, 21 U.S.C. Sec. 801 et seq. The acts charged against the appellants extended over a period of time from approximately March to November of 1970.

Appellants’ main thrusts on this appeal are four-fold:

First: The government cannot initiate a prosecution after the effective date of repeal for alleged criminal acts occurring prior thereto;

Second: Assuming that the first proposition is answered adversely to appellants, they cannot be punished under the repealed provisions, but must be punished under the new and less severe penalty provisions;

Third: Sentencing under the harsher penalties of the repealed act amounts to cruel and unusual punishment proscribed by the Eighth Amendment. This point is raised only by Ramirez;

Fourth: Bailan, made timely objections to the fruits of the search of the purse of co-defendant Bowers. The first search was for weapons and took place immediately upon her arrest. The incriminating documentary evidence was observed, but not removed. A short time later and during booking procedures, a second search was made and the documentary evidence was seized and introduced at trial against defendant Bailan.

FIRST ISSUE

The first issue was not raised in the recent case of Bradley v. United States, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973), affirming 455 F.2d 1181 (CA 1st Cir.), since the prosecution there was commenced before May 1, 1971. Nevertheless, this court has squarely ruled on the question and the reasoning is directly applicable to this case. United States v. Cummings, 468 F.2d 274 (9 Cir. 1972) In Cummings, as here, the interdicted acts took place before the repeal of the statute and the indictment was returned after the repeal. These prosecutions for violations of the law occurring before were saved by the general saving statute, 1 U.S.C. Sec. 109, and the special saving clauses of the Act, Sections 702 and 1103. Cummings, supra, pp. 276-277. It could not have been the intent of Congress to grant amnesty to the unapprehended as of May 1, 1971, while- continuing interdiction and punishment for essentially the same conduct for violations occurring after May 1, 1971.

SECOND ISSUE

While it may be argued that if the prosecution had begun after May 1, 1971, punishment should be under the new Act, we do not believe the rationale of Bradley supports this notion, but on the contrary, supports the conclusion that the sentences were properly imposed under the provisions of the repealed Act, as saved. As stated in Bradley (93 S.Ct. p. 1155), “As we have said, sentencing is part of prosecution. The mandatory minimum sentence of five years must therefore be imposed on offenders who violated the law before May 1, 1971.”

THIRD ISSUE

Ramirez alone raises the Eighth Amendment violation because of sentencing under the harsher provisions of the repealed Act. We conclude this is not cruel and unusual punishment. While United States v. Fithian, 452 F.2d 505, 506 (9th Cir. 1971) does not speak in terms of cruel and unusual punishment, it unmistakeably directs that sentencing under the repealed provision “was the only course available.” Further, 1 U.S.C. § 109 provides that repeal “shall not have the effect to release or extinguish any penalty . . .” and remains in force to sustain “the enforcement of such penalty”. The sentence imposed on Ramirez was well within and below the maximum sentence which could have been imposed. He is in the same class as all persons convicted and sentenced under the repealed provisions. United States v. Rojas-Colombo, 462 F. 2d 1091 (5 Cir. 1972), United States v. Ross, 464 F.2d 376 (2 Cir. 1972). Sentences under Sec. 176a were not cruel and unusual punishment prior to repeal. They do not become so by the later promulgation of less severe penalties for similar prohibited conduct.

The district judge was correct in proceeding and sentencing appellants under 21 U.S.C. § 176a repealed effective May 1, 1971.

FOURTH ISSUE

This issue raised by appellant Ballan is disposed of by Brown v. United States (1973) 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208. Ballan does not have standing to challenge the legality of the search of his wife’s purse.

After careful review we find nothing in appellants’ other assignments of error justifying a reversal.

Appellants’ bonds are revoked as of now.

Affirmed.

HUFSTEDLER, Circuit Judge

(dissenting) :

I dissent solely from the disposition of the second issue: Does the penalty provision under the new Act apply to a prosecution under section 176a initiated after the repeal of section 176a? In my view, the majority’s negative response is contrary to the teaching of Bradley v. United States (1973) 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528.

Section 1103(a) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 provides in pertinent part: “Prosecutions for any violation of law occurring prior to the effective date of [the Act] shall not be affected by the repeals . . . made by [it] or abated by reason thereof.” The keystone of the Bradley rationale is its construction of the word “prosecutions” in section 1103(a) as “clearly imports a beginning and an end.” The “end,” as Bradley squarely held, is the conclusion of sentencing. The “beginning” of a prosecution is the return of an indictment. These indictments were returned after section 176a had been repealed. There was no prosecution to be saved by section 1103(a). Bradley means that any prosecution initiated before repeal of the statute carries with it the old section 176a penalty. Conversely, any prosecution under section 176a begun after repeal of section 176a for the substantive offense committed before repeal carries with it the milder penalties of the successor statute.

The substantive offense was specifically saved. Prosecutions initiated before repeal were “not . . . affected” or “abated.” Prosecutions begun after repeal of section 176a could be neither affected nor abated, because they were nonexistent when the old statute was repealed.

I would vacate the sentence and remand for resentencing under the new statute.


author: HEANEY, Circuit Judge.

text:
    Clyde H. DUNCAN, Plaintiff-Appellee, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Defendant-Appellant.
    No. 72-1399.
    United States Court of Appeals, Eighth Circuit.
    Argued March 21, 1973.
    Decided May 15, 1973.
    Rehearing and Rehearing En Banc Denied June 20, 1973.

      John L. Davidson, Jr., Robert M. Hamlett, Greenfield, Davidson & Mandelstamm, St. Louis, Mo., for defendant-appellant; Donald E. Engle, W. W. Dalton, St. Louis, Mo., of counsel.
    Mortimer A. Rosecan, St. Louis, Mo., for plaintiff-appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and MEHAFFY and HEANEY, Circuit Judges.
   HEANEY, Circuit Judge.

The defendant appeals from a jury verdict of $94,000 awarded to its employee in an action under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq.

Duncan, a locomotive engineer, employed by the St. Louis-San Francisco Railway Company (Frisco), sustained injuries when the train he was operating on a run from Memphis, Tennessee, to St. Louis, Missouri, collided with a Missouri Pacific train in Memphis on February 10, 1968. Duncan was proceeding in a northerly direction through Frisco’s Memphis railroad yards on the mainline which would take the train to St. Louis. At this point, Duncan and the other crew members on the head engine observed a Missouri Pacific train, traveling in a southerly direction, approaching on the adjacent Missouri Pacific track. There are a number of switches located on Frisco’s mainline which serve to divert trains onto other tracks. Many of these switches are equipped with targets which show at a distance whether the switch is in an open or closed position. However, other switches do not have targets, and their position must be determined by observing the position of the switching track itself. This latter type of switch is referred to as a “puzzle switch.” Duncan’s train reached one such puzzle switch and veered off the mainline track crashing into the side of the Missouri Pacific train. This occurred because the puzzle switch had been left open — i. e., set for a diverging movement and not for a through movement.

Duncan was injured in this crash. He received medical treatment and hospitalization. On July 27, 1970, he commenced this action charging that the collision and his injuries resulting therefrom were directly and proximately caused by the negligence and carelessness of Frisco. He alleged that the injuries were permanent and had curtailed his leisure activities, shortened his work life and subjected him to pain and medical expenses for the rest of his life. The case was tried to a jury, and a judgment was entered in Duncan’s favor on January 19, 1972.

Frisco contends on this appeal that the trial court erred:

(1) In failing to grant its motion for judgment notwithstanding the verdict because there was insufficient evidence to support a finding of negligence on the part of Frisco.

(2) In allowing Duncan’s counsel to argue that the testimony given by one of his medical witnesses was unworthy of belief.

(3) By denying Frisco’s motion for a mistrial where Duncan’s counsel read into the record part of the depositions of other employees of Frisco during his case-in-chief and then, on final argument, commented on the failure of Frisco to call these same persons as witnesses.

(4) By instructing the jury that Frisco’s Operating Rule 104 was applicable, that the rule had been violated and that a violation of the rule was negligence per se.

(5) In instructing, the jury that its verdict might include damages for loss of future earnings reduced to present value because there was no evidence to support an award of damages for future loss of earnings and no evidence or instructions regarding the manner in which the present value of such an award should be computed.

(6) In refusing to. instruct the jury that any award made to Duncan would not be subject to federal income tax.

We review these contentions seriatim.

(1) Frisco’s argument concerning sufficiency of the evidence is: first, that the record is devoid of any evidence to support a finding that Frisco was negligent; and, second, that Duncan’s failure to observe the position of the puzzle switch was the sole cause of the accident.

With respect to the first issue, Frisco agrees that the switch was lined for a diverging movement, but contends that for it to be liable, Duncan was obligated to prove either that the switch was lined for a diverging movement by Frisco, or that the switch had been lined for a diverging movement for a period of time sufficient to charge Frisco with knowledge of its position. We disagree. Under F.E.L.A. law, the' railroad employer is required to provide its employees with a reasonably safe place to work. Chicago Great Western Railway Company v. Casura, 234 F.2d 441, 447 (8th Cir. 1956). Failure to do so constitutes negligence. Moreover, this duty is a nondelegable one. Payne v. Baltimore and Ohio Railroad Company, 309 F.2d 546, 549 (6th Cir. 1962), cert. denied, 374 U.S. 827, 83 S.Ct. 1865, 10 L.Ed.2d 1051 (1963). Accordingly, Frisco cannot escape liability by passing the blame for misalignment of the switch onto the other railroads using the switch, if the presence of the condition was found to constitute an unsafe place to work. To hold otherwise would be contrary to the position taken by the Supreme Court in Shenker v. Baltimore & Ohio R. Co., 374 U.S. 1, 11, 83 S.Ct. 1667, 1673, 10 L.Ed. 2d 709 (1963):

“ x * x jf recovery were denied in this case the railroads, by the simple expedient of doing each other’s work, could tie their employees up in legal technicalities over the proper railroad to sue for injuries and perhaps remove from coverage of the Act a significant area of railroad activity.
*- * *

In testing the sufficiency of the evidence, we are bound to view the evidence in the light most favorable to the prevailing party and to resolve all reasonable inferences in favor of that party. Our review of the record reveals that there is substantial evidence which supports a finding that Frisco was negligent. It is undisputed that the switch was lined for a diverging rather than a mainline movement, and that the track and puzzle switch were owned by Frisco. Duncan’s theory was that the custom in this railroad yard and Rule 104 required that if someone used the switch, they either had to line the switch back for a mainline movement or post an authorized employee near enough to the switch to be able to line the switch for a mainline movement upon the approach of a train. Here, it is conceded that neither of these requirements was satisfied. Duncan contends that this fact, coupled with the undisputed fact that the switch did not have a target or other signal, constituted an unsafe place of work and, hence, negligence on the part of Frisco. Under his theory, this was true because he contended that it was impossible for him, as an engineer, to determine the position of the switch until it was too late to avoid the accident. His was a permissible theory, and there is substantial evidence in the record in support of it. There is also evidence . which supports Frisco’s position that the accident was caused by Duncan’s negligence, and that theory was also submitted to the jury. The jury was correctly instructed that under F.E.L.A. law, con-tributary negligence on the part of the employee does not bar his claim but only serves to reduce his damages in proportion to the amount of negligence attributable to the employee. See, 45 U.S.C. § 53. The jury chose to believe Duncan’s evidence and rendered a verdict in his favor. In view of the fact that there is substantial evidence to support Duncan’s theory, we cannot upset the jury’s verdict.

(2) During his case-in-chief, Duncan called Dr. Raymond Ritter as one of his medical witnesses. Dr. Ritter was one of a number of doctors who treated Duncan for his injuries and, in some respects, his testimony was less favorable to Duncan than was that of other medical witnesses. In the course of his testimony, Dr. Ritter admitted that a portion of his practice was comprised of examining and treating employees of Frisco, and that he was paid by the railroad for those services. In his final argument, Duncan’s counsel made reference to Dr. Ritter as a railroad doctor and suggested to the jury that, as such, his testimony was not entitled to as much weight or credibility as was that of other medical witnesses called to testify by Duncan. Frisco, on this appeal, contends that these comments of Duncan’s counsel violated this Court’s rule prohibiting the impeachment of one’s own witness. We disagree.

The Eighth Circuit cases cited by Frisco are distinguishable from this one. They dealt with impeachment of one’s own witness by cross-examination and not comments during final argument. We are satisfied that the comments objected to constituted a permissible exercise of counsel’s right to comment on the weight and credibility that should be attributed to a witness’s testimony. Counsel is to be afforded wide latitude in his argument to the jury, and the trial court has a great deal of discretion in regulating the scope of the argument. The comments here were confined to the evidence and reasonable inferences which could be drawn therefrom, and we hold that the trial court did not abuse its discretion in permitting these comments by Duncan’s counsel. See, Chapman v. Alton R. Co., 117 F.2d 669, 672 (7th Cir. 1941).

(3) Duncan’s counsel read into the record parts of depositions taken of other employees of Frisco who were members of the train crew at the time of the accident. The gist of the testimony admitted was: (a) that Operating Rule 104 applied to the puzzle switch; (b) that the position of the switch could not be determined prior to reaching the “blind spot;” (c) that the attention of Duncan and the other crew members was diverted by the approach of the Missouri Pacific train; and (d) that placing a target on the switch would have alerted the crew to its open position long before the engine reached it. This evidence was largely corroborative of Duncan’s own testimony. Neither party called the crew members to testify in person. However, in his argument to the jury, Duncan’s counsel commented on the failure of Frisco to do so. He suggested that the reason it failed to do so was because these men would have testified adversely to the railroad.

Frisco contends that the trial court erred in denying its motion for a mistrial. First, it contends that the witnesses, though employees of Frisco, were equally available to both parties and, therefore, the comments were improper. Second, it argues that because portions of the depositions were read into the record, counsel could not comment on the railroad’s failure to call the witnesses, as to do so would allow the plaintiff to gain both benefit of the evidence and the inference. We disagree.

The propriety of arguments to the jury is a procedural question governed by federal law. See, e. g., Illinois Central Railroad Company v. Staples, 272 F.2d 829, 834 (8th Cir. 1959). Moreover, under federal law, counsel has great latitude in arguments to the jury, and considerable discretion is given to the trial court to control these argumerits. Yeargain v. National Dairy-Products Corporation, 317 F.2d 779, 780 (8th Cir. 1963). We find no abuse of that discretion here.

The well-established rule in this Circuit is that:

“ * * [wjhere witnesses are employees of one of the parties, they are not equally available to the other party, and failure to call them, where it appears that they may have knowledge of some material fact, warrants the inference that had they been called their testimony would have been adverse to the party failing to call them. *

Illinois Central Railroad Company v. Staples, supra at 834 of 272 F.2d. Under this rule, the comments of Duncan’s counsel were permissible.

Frisco argues that the above rule does not apply where the plaintiff is an employee of the railroad rather than an outsider. It supports its argument with a quote from a recent Second Circuit decision :

“ * x- -x- Whatever might be the case in an action by a third party against the employer, we see no factual basis in this day and age for thinking that, in the absence of evidence of personal hostility, a subordinate employee would be more favorable to a corporate employer, than to a fellow-worker.”

Felice v. Long Island Railroad Company, 426 F.2d 192, 195 n. 1 (2nd Cir.), cert. denied, 400 U.S. 820, 91 S.Ct. 37, 27 L. Ed.2d 47 (1970).

Felice is distinguishable from the instant case in that it involved comments by the judge and not counsel. In any event, while we are not persuaded that our long-standing rule should be limited to accord with Felice, the comments would still be permissible under a sound principle adopted from McCormick on Evidence in Felice:

“* * * [WJhere * * * ‘the witness would be as likely to be as favorable to one party as the other,’ * * * the judge ‘should permit either party to argue the inference against the adversary.’ ”

Felice v. Long Island Railroad Company, supra at 195.

We also are not persuaded that this Circuit’s rule permitting comment by counsel on the failure of his adversary to call certain witnesses should be abandoned here because Duncan’s counsel had previously introduced portions of the witnesses’ depositions into evidence. See, Chesapeake & O. Ry. Co. v. Richardson, 116 F.2d 860, 865 (6th Cir.), cert. denied, 313 U.S. 574, 61 S.Ct. 961, 85 L.Ed. 1531 (1941).

(4) Frisco contends that the following instruction of the trial court was improper :

“If you find from all the evidence that the defendant failed to enforce or violated its Operating Rule No. 104 in either of the respects claimed by plaintiff; * * * and if you further find that as a result of such actions or failure to act the defendant failed to exercise ordinary care to provide plaintiff with reasonably safe conditions and place of work; and that defendant was thereby negligent, and that such negligence either in whole or in part caused plaintiff to sustain injury, then your verdict should be in favor of the plaintiff and against the defendant.”

Frisco argues that the court erred by assuming in this instruction that Rule 104 applied to the puzzle switch. We do not agree. Early in the trial, Frisco stipulated that as an engineer, Duncan “was bound by these rules,” “had a right to rely upon these rules being obeyed,” “was to operate the train in accordance with these rules,” and “had the right to rely that the rules would be observed by others.” Although later in the trial Frisco attempted, through one of its witnesses, to establish that the rule technically did not apply to this particular switch, at no time did it ask relief or modification from the stipulation. It is our view that the stipulation did provide that Rule 104 was applicable to the switch, and that it would not be appropriate to relieve Frisco from the stipulation here. See, Farmers Co.-Op. El. Ass’n Non-Stock, Big Springs, Neb. v. Strand, 382 F.2d 224, 231 (8th Cir.), cert, denied, 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659 (1967). Moreover, there is substantial testimony in the record that Rule 104 did apply to the switch in question.

Frisco alternately contends that the court erred in failing to instruct the jury with respect to other applicable Operating Rules. We disagree. The trial court did instruct with respect to Rules 93 and 958. Instructions as to the additional rules would have been cumulative and confusing, and their omission was not prejudicial.

We likewise find no merit to Frisco’s contention that the trial court improperly instructed the jury that Rule 104 had been violated and that such a violation was negligence per se. The instruction, when read as a whole, required the jury to find that “the defendant had failed to enforce or violate its Operating Rule No. 104” and to further find that:

“ * * * as a result of such actions or failure to act the defendant failed to exercise ordinary care to provide the plaintiff with reasonably safe conditions and place of work and that the defendant was thereby negligent •X* # -X- >t

Frisco makes other objections to this portion of the instructions, but we are of the view that they are also without merit.

(5) Frisco’s assertion that there was no evidence that Duncan would suffer loss of earnings in the future is clearly contrary to the record. Three of the medical witnesses, who treated the plaintiff, affirmatively testified that they believed his work life would have to be cut short of its ordinary length as a consequence of injuries sustained by him in the train accident. Frisco also argues that it was error to have permitted the jury to award damages to Duncan for loss of future earnings without there either being evidence or instructions regarding the manner in which the present value of such an award should be computed. Frisco makes this contention even though at trial it did not request such an instruction. We are persuaded that the trial court’s instruction on this issue was sufficient. It served to alert the jury to the fact that they had to take into consideration the earning power of money and reduce it to its present value:

“The award of damages for the loss of contributions from future earnings, if any, must be reduced to its present cash value and adequate allowance must be made for the earning power of money.”

We agree with the position taken by the Sixth Circuit in Pennsylvania Railroad Company v. McKinley, 288 F.2d 262 (6th Cir. 1961). Contra, Ballantine v. Central Railroad of New Jersey, 460 F.2d 540 (3rd Cir.), cert. denied, 409 U.S. 879, 93 S.Ct. 133, 34 L.Ed.2d 133 (1972). The Sixth Circuit held that: “* * * a jury, unaided by specific

testimony as to money values, could themselves, being told that the award should be only money value, properly apply the applicable rule.”

Pennsylvania Railroad Company v. McKinley, supra at 265 of 288 F.2d. It reasoned that:

“Jurors are presumed to be intelligent people, generally aware, from today’s economy and their own experience with it, of the earning value of money when placed in safe investments.' While, indeed, more could have been said on the subject, if request had been made, we cannot say that the jury misunderstood the trial judge when he told them that for future loss of earning capacity they were to award only the ‘money value’ of such loss and to award only such sum as would ‘compensate’ for the plaintiff’s loss of future earning capacity. They were aware that their verdict would be presently and immediately placing money in the hands of the plaintiff as ‘compensation’ for these future losses.”

Id.

(6) Frisco’s final contention is that the trial court erred in refusing to instruct the jury to the effect that any award which Duncan was to receive would not be subject to federal income taxes. Panels of this Court on two recent occasions have been faced with the same issue and, in both instances, have recognized that the courts and commentators disagree on the appropriateness of such an instruction and, upon the following reasoning, have declined to rule on it:

“In view of the state of the law and the record in the instant case, this Court will not pass on the issue at the present time. Even if this panel were to adopt the instruction, this panel would do so only prospectively. Therefore, such a holding is not necessary for resolution of the instant case. The question is more properly left open for future consideration and perhaps for en banc determination by the entire Court.” (Footnote omitted.)

Rouse v. Chicago, Rock Island and Pacific Railroad Company, 474 F.2d 1180, at 1183 (8th Cir. 1973); Raycraft v. Duluth Missabe and Iron Range Railway Company, 472 F.2d 27 at 33 (8th Cir. 1973). We choose to dispose of the issue in the same manner here.

Affirmed.

      . The pertinent portion of Operating Rule 104 reads as follows:
      “The normal position of a main track switch is for main track movement and it must be lined and locked in that position except when changed for immediate movement. When a main track switch is lined in other than normal position an authorized employe [sic] must remain near enough to switch to be able to line it for main track upon the approach of a train.”

      . Earlier in the instruction, the trial judge had set out the plaintiff’s position:
      “It is the position of plaintiff, Clyde Duncan, that at the time and place in question, the defendant was negligent in one or more of the following respects:
      “(1) that the defendant failed to enforce and violated its Operating Rule No. 104 which required that .the puzzle switch mentioned in evidence be lined and locked for a northbound main track movement;
      “ (2) that the defendant failed to enforce and violated its Operating Rule No. 104 which required that when the puzzle switch was lined for a crossover or diverging movement, an authorized employee must remain near enough to be able to line the switch for a main track movement upon the approach of a train;
      “(3) that the defendant failed to provide a target or other signal or device on said puzzle switch which would have alerted the plaintiff, or other members of the crew, that the switch was not lined and locked for a northbound main track movement and instead was lined for a diverging or crossover movement to the Missouri Pacific track east of the main track;

        “(4) that in failing to enforce anti in violating its said Operating Rule No. 104 and in failing to have said puzzle switch equipped with a target or other signal or device to warn plaintiff and his crew when said puzzle switch was lined for a diverging or crossover movement the defendant failed to exercise ordinary care to furnish plaintiff with a reasonably safe place and conditions to work.”

      . “It is the position of the defendant that at the time and place in question Clyde Duncan was negligent in one or more of the following respects, in that he failed to observe and follow the following rules of the defendant:
      “Rule 93 — and I’m reading part of that rule: Within yard limits the main track may be used, providing that the trains must move within yard limits prepared to stop short of train or anything that may require the speed of a train to be reduced.
      “Rule 958: Enginemen must, and firemen — when duties permit — will, keep a constant and vigilant lookout, carefully note all signals and observe the position of switches; also watch for obstructions and defective track.
      “They must keep in mind location of all fixed signals in order that the absence of a signal may be noted and action taken in accordance with the rules.
      “While passing through cities, towns and yards, and approaching public crossings, there must be no failure to keep a careful lookout ahead from both sides of the engine.”


author: STEVENS, Circuit Judge.

text:
    Otto GANZ, in behalf of himself and all persons similarly situated, Plaintiff-Appellant, v. Peter B. BENSINGER, Individually, and as Director of Illinois Department of Corrections, et al., Defendants-Appellees.
    No. 72-1627.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 16, 1973.
    Decided June 11, 1973.
    Rehearing Denied July 16, 1973.
    Elwood T. Olsen, Chicago, Ill., for plaintiff-appellant.
    William J. Scott, Atty. Gen., James B. Zagel, Asst. Atty. Gen., Chicago, Ill., for defendants-appellees.
    Before SWYGERT, Chief Judge, and CUMMINGS and STEVENS, Circuit Judges.
   STEVENS, Circuit Judge.

Plaintiff asks us to decide that indigent inmates of the Illinois State Penitentiary have a constitutional right to appointed counsel at parole release hearings. He relies on the Sixth Amendment and on the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Prescinding the policy arguments which the General Assembly or the Governor of Illinois may find persuasive, we hold, in agreement with other federal courts, that this procedural right is not guaranteed by the United States Constitution.

I.

In every stage of a criminal proceeding at which his substantial rights may be affected, the indigent defendant has a constitutional right to appointed counsel. Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336. Sentencing is a critical stage of the judicial proceedings at which that right must be fully protected.

Plaintiff effectively demonstrates that in most cases the actual period of incarceration in the Illinois State Penitentiary is determined by the Parole and Pardon Board rather than the sentencing judge. A practical appraisal of the importance of the parole release hearing, he argues, requires the conclusion that it represents a “critical stage” of the state’s processing of criminal offenders. Under the reasoning of Mempa v. Rhay, it is therefore contended that appointed counsel is essential. Even if that be true, the rationale of Mempa v. Rhay is inapplicable unless the parole release hearing is a stage of the criminal prosecution.

The Sixth Amendment entitles every person to counsel in a particular kind of proceeding — a criminal trial. That Amendment is inapplicable to other types of proceedings, even though they may have a critical impact on the destiny of the individual. Thus, the Sixth Amendment issue turns not on the importance of the parole release hearing, but rather on whether it is a part of the criminal prosecution.

The prosecution is a judicial proceeding. It does not end until judgment has been entered and sentence imposed. Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336. Plaintiff argues that if the sentence is of indeterminate length, the sentencing process includes the proceedings before the Parole Board. Logically, that argument would support a conclusion that “the entire range of correctional process after sentencing is a part of the criminal' proceeding” — a conclusion we have already rejected. Gunsolus v. Gagnon, 454 F.2d 416, 422 (7th Cir. 1971), rev’d on other grounds sub nom. Gagnon v. Scarpelli, 411 U.S. 582, 93 S.Ct. 1736, 36 L.Ed.2d 503 (1973). In our opinion, the Sixth Amendment right to representation by counsel at the sentencing hearing applies only to the judicial hearing at which the sentence is fixed. The Amendment protects the accused during the adversary judicial trial; it does not broadly encompass every proceeding which may result in a deprivation of liberty or property. As the Supreme Court stated in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. “Parole arises after the end of the criminal prosecution, including imposition of sentence.” See Gagnon v. Scarpelli, 411 U. S. 778, 781, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). A parole release hearing is not part of the criminal prosecution; the Sixth Amendment is inapplicable.

II.

The Supreme Court has recently-held that parole revocation hearings may be conducted without the participation of counsel. Gagnon v. Scarpelli, 411 U. S. 778, 783, 93 S.Ct. 1756, 36 L.Ed.2d 656 (May 14, 1973). Since the arguments favoring the appointment of counsel certainly have no greater force as applied to a parole release hearing than to a parole revocation hearing, this holding requires rejection of plaintiff’s due process argument.

III.

Finally, plaintiff argues that since Rule 8 of the Illinois Pardon and Parole Board permits inmates to be represented by counsel at release hearings , the Equal Protection Clause of the Fourteenth Amendment requires the state to provide such assistance for indigent inmates The question presented is whether Rule 8 creates an invidious discrimination between the rich and the poor. If it has that consequence, presumably the state could eliminate the discrimination either by appointing counsel for all indigents, as plaintiffs urge, or by rescinding the rule since, as we have held, the presence of counsel is not constitutionally required.

The briefs of both parties persuasively indicate that even if the presence of counsel may be desirable at parole release hearings, a lawyer is not indispensable to the effective conduct of such hearings. Unlike the actual importance of a transcript on an appeal from a criminal conviction, or the participation of counsel in the appellate process, this rule of the Illinois Parole Board, in the words of Justice Frankfurter, does not “make lack of means an effective bar to the exercise” of the indigent’s opportunity to obtain parole. Justice Frankfurter commented on the impact of the unavailability of a transcript on indigent defendants as a class:

“Law addresses itself to actualities. It does not face actuality to suggest that Illinois affords every convicted person, financially competent or not, the opportunity to take an appeal, and that it is not Illinois that is responsible for disparity in material circumstances. Of course, a State need not equalize economic conditions. A man of means may be able to afford the retention of an expensive, able counsel not within reach of a poor man’s purse. Those are contingencies of life which are hardly within the power, let alone the duty, of a State to correct or cushion. But when a State deems it wise and just that convictions be susceptible to review by an appellate court, it cannot by force of its exactions draw a line which precludes convicted indigent persons, forsooth erroneously convicted, from securing such a review merely by disabling them from bringing to the notice of an appellate tribunal errors of the trial court which would upset the conviction were practical opportunity for review not foreclosed.
“To sanction such a ruthless consequence, inevitably resulting from a money hurdle erected by a State, would justify a latter-day Anatole France to add one more item to his ironic comments on the ‘majestic equality’ of the law. ‘The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’ (John Cournos, A Modern Plutarch, p. 27.)
“The State is not free to produce such a squalid discrimination. If it has a general policy of allowing criminal appeals, it cannot make lack of means an effective bar to the exercise of this opportunity.” Griffin v. Illinois, 351 U.S. 12, 23-24, 76 S.Ct. 585, 592, 593, 100 L.Ed. 891 (Mr. Justice Frankfurter concurring).

That analysis also explains the holding in Douglas v. California that counsel must be appointed to represent the indigent defendant on his first appeal from a criminal conviction, for otherwise “any real chance he may have had of showing that his appeal has hidden merit” is denied to each member of the indigent class. 372 U.S. 353, 356, 83 S.Ct. 814, 816, 9 L.Ed.2d 811. Speaking for the Court, Mr. Justice Douglas then expressly noted that the holding did not extend to discretionary hearings, or to procedures in which the applicant might have successive opportunities for relief. Indeed, even in proceedings in which a person has a constitutional right to representation by a lawyer, the Supreme Court has indicated that there is no parallel requirement that counsel be provided for the indigent.

We hold the Equal Protection Clause does not require the Illinois Pardon and Parole Board either (1) to repeal its rule permitting inmates to have the assistance of counsel, or (2) to provide such assistance for all inmates at state expense.

The order of the district court denying the motion to vacate its earlier order dismissing the complaint is

Affirmed.

      . Menechino v. Oswald, 430 F.2d 403 (2d Cir. 1970) ; Barnes v. United States, 445 F.2d 260 (8th Cir. 1971); Buchanan v. Clark, 446 F.2d 1379 (5th Cir. 1971).

        . See United States v. Zucker, 161 U.S. 475, 481, 16 S.Ct. 641, 40 L.Ed. 777; United States v. Mientke, 387 F.2d 1009 (7th Cir. 1967).

      . Construing federal legislation affecting the parole eligibility of certain offenders, we have concluded that the term “prosecution” does not encompass federal parole determinations. See United States v. McGarr, 461 F.2d 1 (7th Cir. 1972).
      In Bradley v. United States, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973), the Supreme Court expressly differentiates between the grant of parole as a part of the sentencing and the “rather different matter” involving the possible grant of parole at a later stage of the correction process. At page 611, 93 S.Ct. at page 1155, 1156 the Court said: “As we have said, sentencing is part of the prosecution. * * * The availability of parole under the general parole statute, 18 U.S.C. § 4202, is a rather different matter, on which we express no opinion.”

      . Rule 8 provides:
      “8. On the first day of the respective sessions of the subcommittees and the day immediately following if so designated by the members of the Board, relatives, friends and counsel for the prisoners may attend and be heard in behalf of the prisoners whose names appear on the docket, as well as persons who desire to protest the release of the prisoners.
      “No subsequent oral arguments will be heard in cases appearing on that particular docket, but attorneys or other persons may submit in writing to the Parole and Pardon Board any brief or statement of fact in behalf of or in opposition to the parole of any inmate whose name appears on the docket.”

      . Actually, the rule grants the same privileges to “relatives, friends and counsel for the prisoner.” See note 4, supra. There is, of course, no claim that the Equal Protection Clause requires the state to provide special assistance to the friendless prisoner, or to one with no surviving relatives.

      . “We are not liere concerned with problems that might arise from the denial of counsel for the preparation of a petition for discretionary or mandatory review beyond the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an appellate court. We are dealing only with the first appeal, granted as a matter of right to rich and poor alike (Cal. Penal Code §§ 1235, 1237), from a criminal conviction. We need not now decide whether California would have to provide counsel for an indigent seeking a discretionary hearing from the California Supreme Court after the District Court of Appeal had sustained his conviction (see Cal.Const., Art. VI, § 4c; Cal. Rules on Appeal, Rules 28, 29), or whether counsel must be appointed for an indigent seeking review of an appellate affirmance of his conviction in this Court by appeal as of right or by petition for a writ of certiorari which lies within the Court’s discretion. But it is appropriate to observe that a State can, consistently with the Fourteenth Amendment, provide for differences so long as the result does not amount to a denial -of due process or an invidious discrimination. Williamson v. Lee Optical Co., 348 U.S. 483. 489, 75 S.Ct. 461, 99 L.Ed. 563; Griffin v. Illinois, 351 U.S. supra, p. 18, 768, at 585. Absolute equality is not required; lines can be and are drawn and we often sustain them. See Tigner v. Texas, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124; Goesaert v. Oleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163. But where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.” Douglas v. California, 372 U.S. 353, 356-357, 83 S.Ct. 814, 816, 9 L.Ed.2d 811.

      . “We do not say that counsel must be provided at the pretermination hearing, but only that the recipient must be allowed to retain an attorney if he so desires.” Goldberg v. Kelly, 397 U.S. 254, 270, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287.