author: SEITZ, Chief Judge.

text:
    Elmando SEWER v. Clifton MARTIN and Rita Martin. Appeal of Rita MARTIN.
    No. 74-1823.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 2, 1974.
    Decided March 3, 1975.

      Arnold M. Selke, Gibbs & Selke, Charlotte Amalie, St. Thomas, V. I., for appellant.
    Ronald T. Mitchell, Pallme, Anduze & Mitchell and Frederk D. Rosenberg, Bailey, Wood & Rosenberg, Charlotte Amalie, St. Thomas, V. I., for appellee.
    Before SEITZ, Chief Judge, and Van DUSEN and ROSENN, Circuit Judges.
   SEITZ, Chief Judge.

Prior to December 6, 1967, plaintiff Elmando Sewer was the owner of 25 Rjerings Gade, St. Thomas. Defendant-appellant, Rita Martin, then the wife of Clifton Martin (“Martin”), owned the adjacent lot on which a commercial building was located. In 1967 Martin began negotiations with plaintiff for the purchase of 25 Rjerings Gade, on which plaintiff lived and from which he received rental income of $105.00 per month.

After several unsuccessful efforts, Martin and plaintiff reached agreement on a plan whereby plaintiff would sell the property for $12,000 plus support for the rest of his life. On December 6, 1967, plaintiff executed a deed conveying the lot to the defendant alone for $12,-000 “and other valuable consideration.” On December 8, 1967, plaintiff and Martin executed a separate agreement (“December 8 agreement”) in which Martin “for valuable consideration received” promised to pay plaintiff $200.00 per month from January 1, 1968, until his death and to provide him with an efficiency apartment “or similar habitation” for life. Martin also agreed to pay $2,000 to a nominee of plaintiff upon the latter’s death.

The Martins obtained the $12,000 consideration recited in the deed through a loan from the Virgin Islands National Bank for which they were jointly liable, and the defendant executed a mortgage on the property to secure repayment of the loan. Only $11,389.60 was, however, paid to plaintiff. It appears that defendant, divorced from Martin in 1968, assumed sole responsibility for the monthly mortgage payments of $126.00 payable presumably from the same $300.00 per month which she received in rent from the property.

The Martins initially permitted plaintiff to remain in his former home for some months. Martin thereafter provided plaintiff a room for approximately one year in a guest home which Martin was leasing. When his lease expired, Martin persuaded his wife to allow plaintiff to occupy a room in the building owned by Mrs. Martin on the adjacent lot, 26 Rjerings Gade. There plaintiff remained, without water or electricity, until March 1971 when defendant sought to evict him.

Martin failed from the outset to honor his obligation to pay plaintiff $200.00 per month. By court actions filed against him in 1968 and 1969, plaintiff recovered $1,775.00 of the money owed him. Martin has made no other monthly payments.

In November 1970 plaintiff instituted this action in the District Court of the Virgin Islands against defendant and Martin seeking cancellation of the deed or an order compelling Martin to fulfill his promises. The district court found that the consideration for the conveyance agreed to by plaintiff and Martin was $12,000 plus the covenants of the December 8 agreement, but that the defendant had been unaware of any promises beyond the $12,000 cash payment until plaintiff first sued her husband for arrearages in the monthly payments. Furthermore, the court found that Martin was not acting as an agent of his wife in concluding the December 8 agreement and that therefore the defendant was not personally liable to Sewer on the contract. The court concluded, however, that defendant could not hold the property free of the promises made to secure the conveyance and held the December 8 agreement to be “in the nature of a purchase money mortgage” and to constitute a lien against the property. Rescission was denied plaintiff because he was unable to return the cash payment.

On May 30, 1973, the district court entered judgment for the plaintiff (1) against defendant and Martin for $610.40, the unpaid portion of the $12,-000 cash payment, plus interest from December 6, 1967, and (2) against Martin alone in the sum of $10,825 for arrearages on the monthly payment through March 1973. Martin was ordered to fulfill his obligation to provide an efficiency apartment for the remainder of plaintiff’s life. The court foreclosed the “purchase money mortgage” and authorized the sale of 25 Rjerings Gade to satisfy judgment. Attorney’s fees of $500.00 were awarded to plaintiff.

Defendant Rita Martin alone filed a motion to amend judgment. Her motion was denied by the district court on May 8, 1974, and she filed notice of appeal from that order. On appeal, she challenges only establishment and foreclosure of the lien and requests reduction of the attorney’s fees if the lien is voided.

Our revjew of the record convinces us that substantial evidence supports the district court’s determinations that the covenants of the December 8 agreement were an integral part of the consideration agreed to by plaintiff and Martin and that defendant was unaware of the terms of the' agreement at the time it was executed. The question to be resolved is whether, given that defendant lacked knowledge of and had no personal liability under that contract, she nevertheless holds the property subject to a lien in favor of plaintiff to secure enforcement of the promises contained therein.

A grantor’s or vendor’s lien of the nature recognized by the district court in this case was early established in England and is recognized in the majority of American jurisdictions. 4 J. Pomeroy, Equity Jurisprudence § 1249 (5th ed. 1941); 55 Am.Jur. Vendor and Purchaser § 462. The lien is the equitable right' which a grantor who takes no other security retains to subject the land conveyed to the payment of the purchase price. So long as a portion of the purchase price remains unpaid, the law presumes the existence of a lien unless the terms of .the agreement or attending circumstances demonstrate that the parties intended no lien to be present. Zumwalt v. Goodwin, 133 F.2d 984 (10th Cir. 1943).

No court decision or statute speaks to the existence of such a lien in the Virgin Islands. However, the lien is widely recognized in American law and is a salutary remedial device to do equity where necessary. We conclude that such a remedy may be invoked in the courts of the Virgin Islands in appropriate circumstances. See 1 V.I.C. § 4 (1967).

Defendant challenges recognition of the lien and its subsequent foreclosure in this case on the following grounds: (1) she was a bona fide purchaser for value and as such took the property free of any implied lien; (2) plaintiff waived any lien he might have had by taking the personal security of a third person, Martin, and by twice suing Martin individually on the December 8 agreement; and (3) the district court erred in foreclosing the lien without joining other lienors of record of the property.

Defendant as a bona fide purchaser for value

Defendant contends that her status with respect to the purchase of 25 Rjerings Gade is that of a bona fide purchaser for value and without notice and that, therefore, she holds title free of any implied grantor’s lien. See Hunter v. Hunter, supra note 2; 4'J. Pomeroy, supra § 1253.

A review of the record in this ease compels the conclusion that defendant’s status cannot be equated to that of a bona fide purchaser even though she has accepted responsibility for repaying the loan that provided the recited consideration for the property and therefore is not a mere volunteer receiving a gift from her husband in the conveyance to her. Although defendant may have had no direct knowledge of the contract signed by her husband, we believe for the reasons hereafter noted that she acquired title to the property subject to the conditions agreed to by her husband.

In everything but the taking of legal title, the purchase of 25 Rjerings Gade was Martin’s undertaking. He initiated contact with plaintiff for the purchase, and on only one occasion did defendant even attend a meeting with her husband and plaintiff. Martin prepared the deed conveying the property to his wife and so completely controlled the bank financing that his wife was not even aware of the term of the mortgage which she executed or whether the mortgage covered property other than 25 Rjerings Gade. According to her testimony at trial, “Clifton handled just about everything and I did not question anything.”

Under these circumstances it would be most inequitable to conclude that simply because the Martins chose to take title in the name of the wife alone, plaintiff must be denied the right to force payment of the promised consideration by claiming a lien on the property. Defendant’s total abdication of all negotiating responsibility to her husband precludes giving her title free of the duty to fulfill the promises made to secure conveyance of plaintiff’s home.

Waiver of the lien

We have no cavil with the proposition that accepting the security of a third person may work a waiver of the grantor’s lien on the theory that the grantor thereby demonstrates that he no longer looks to recovery of the land as his sole security. Slide and Spur Gold Mines v. Seymour, 153 U.S. 509, 14 S.Ct. 842, 38 L.Ed. 802 (1894); 4 J. Pomeroy, supra § 1252. In this case, however, the obligations assumed by Martin were not for the purpose of securing payment of the purchase price; they were themselves a significant portion of the consideration given by one who was a co-purchaser with his wife of the property in all but the name in which legal title was taken. Under these circumstances we find no waiver of the implied lien by taking additional security.

Neither does plaintiff’s filing of two suits against Martin constitute a waiver of the lien. Such action by the grantor to recover the consideration for his conveyance is but one course available to him when the purchase price is not paid. If such a suit does not lead to a recovery of the entire consideration, this does not preclude enforcement of a lien to recover the remaining portion of the purchase price. Pariseau v. Trinity Bldg. Co., 254 Mich. 213, 236 N.W. 239 (1931); Troast v. Anjou, 172 N.Y.S. 383 (S.Ct.1918).

Failure to join other lienholders

Defendant contends that even if the district court properly found an implied grantor’s lien in this case, it violated 28 V.I.C. § 532 (1962) in ordering foreclosure of the lien without joining other parties having liens against the property. That section provides that while persons holding liens prior to that being foreclosed “may” be joined in the foreclosure suit, one holding a lien “subsequent to the plaintiff upon the same property shall be made a defendant in the [foreclosure suit].” Two other lien-holders were named by the defendant in her motion to amend judgment: (1) the Virgin Islands National Bank, which holds a mortgage recorded December 7, 1967, and (2) Everett Birch who holds of record a' $4,000 mortgage dated December 1, 1968. Plaintiff challenges defendant’s standing to raise this objection.

We need not reach arguments advanced by defendant respecting her standing because we are of the opinion that, in any event, her interest in the proceeds of the judicial sale provides her with sufficient standing to insist that the district court determine whether any other lien is inferior to plaintiff’s and the holder thereof subject to the mandatory joinder requirement of 28 V.I.C. § 532. Defendant has an interest in insuring that the highest possible price is bid for the property since she will have a claim to any proceeds beyond those necessary to extinguish plaintiff’s lien. Her interest would be prejudiced by a sale conducted pursuant to a foreclosure without joinder of junior lienors, since their right of redemption would remain unimpaired, Quinn Plumbing Co. v. New Miami Shores Corp., 100 Fla. 413, 129 So. 690 (1930), and would undoubtedly chill the bidding. See Gould v. Wheeler, 28 N.J.Eq. 541 (1877). Under the circumstances of this case, defendant is entitled to a determination of the priority of liens on 25 Rjerings Gade and to joinder of persons holding liens inferior to that of plaintiff so that their rights may be extinguished in the same action in which plaintiff’s lien is foreclosed.

Thus, although we conclude that the district court correctly found an implied grantor’s lien in favor of plaintiff on the facts of this case, remand is necessary in order that the district court may hold further proceedings to establish the priority of lienholders. Should the court determine that any person holds a lien inferior to that of plaintiff, that lienor must be joined in the action pursuant to 28 V.I.C. § 532. If all other lienors are found to hold rights superior to those of plaintiff, the court may exercise the discretion implicit in the statute to make the sale subject to the rights of such claimants or in satisfaction of those rights in order of priority.

Since defendant has challenged the entry of the foreclosure order solely on the basis of nonjoinder of other lienors, we need not reach other possible alternatives to immediate foreclosure except to note that under 28 V.I.C. § 538 (1962) defendant may forestall execution upon the property by paying into court the amount of the judgment. We also do not treat the question of the appropriateness of the award of attorney’s fees since it is our understanding that defendant requested reduction only if the grantor’s lien were voided on appeal.

The case will be remanded for further proceedings consistent with this opinion.

      . We will use the term “grantor’s lien” throughout our discussion since it is clear that plaintiff had conveyed full legal title plus possession to defendant and does not occupy the status of a vendor who holds legal title subject to a duty to convey. Many cases, however, use the terms “grantor’s lien” and “vendor’s lien” interchangeably. See 4 J. Pomeroy, Equity Jurisprudence § 1249 n. 7 (5th ed. 1941).

      . Such a grantor’s or vendor’s lien is always inferior to the rights of subsequent bona fide purchasers and mortgagees without notice. Hunter v. Hunter, 327 Mo. 817, 39 S.W.2d 359 (1937).


source: Caselaw Access Project

license: Public Domain

text:
    Peter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Raymond Hendrix, d/b/a Alsea Lumber Company, Respondent.
    No. 73-1938.
    United States Court of Appeals, Ninth Circuit.
    Feb. 24, 1975.

      Robert S. Greenspan, Civil Div., Appellate Section, U. S. Dept, of Justice (argued), Washington, D. C., for petitioner.
    Harry S. Chandler (argued), Davies, Biggs, Strayer, Stoel & Boley, Portland, Or., for respondent.
    Before KOELSCH and CHOY, Circuit Judges, and MARKEY, United States Court of Customs and Patent Appeals.

      Sitting by designation pursuant to 28 U.S.C. § 293(a).

   OPINION

MARKEY, Chief Judge, United States Court of Customs and Patent Appeals:

The Secretary of Labor petitions for review of that portion of a final order of the Occupational Safety and Health Review Commission [Commission] which vacated certain alleged violations of the Occupational Safety and Health Act of 1970 [Act], 29 U.S.C. § 651 et seq. We find the Commission’s order supported by substantial evidence on the record, considered as a whole, and affirm.

The Facts

Respondent Hendrix’s Alsea Lumber Company [Alsea] maintains a small sawmill and logging yard, employing some 30 employees in the production and sale of lumber. The genesis of this action was a safety and health inspection of Alsea conducted by a compliance officer [inspector] of the U. S. Department of Labor.

The inspector, approaching the mill at approximately 35 miles per hour in his pick-up, observed Alsea’s log pondman at a waterside work station about 500 feet from the roadway. The pondman did not at that time appear to the inspector to be wearing a buoyant life jacket. The inspector proceeded to the mill, presented his credentials, and conducted an inspection tour as provided for in 29 U.S.C. § 657. When the inspection tour reached the waterside station, the pond-man was wearing a life jacket.

After the inspection tour, Alsea was cited for three serious and seventeen non-serious violations of the Act, of which the following are pertinent here:

(a) “Serious Violation No. 2” — 29 CFR 1910.212(a)(3)(ii) — Location of the work station of a buck saw operator exposing him to the saw while it is in operation; Penalty- — $750.00
(b) “Serious Violation No. 3 ” — 29 CFR 1910.265(d)(2)(iii)(g) — Failure of a log pond worker to wear a buoyant life preserver while at his work station on the pond; Penalty — $750.00
(c) “Non-Serious Violation No. 5”— 29 CFR 1910.133(a)(1) — Failure of worker to wear eye goggles while subjected to flying sawdust and splinters from the saws. Penalty — $35.00

The record establishes that the appealed violations resulted from individual employee choices of conduct — equipment operation and failure to wear protective equipment — which were contrary to the employer’s instructions. Serious Violation No. 2 rests on an employee’s operation of the buck saw as it is raised and lowered, whereas the employer’s instructions restricted saw operation to just prior to, during and just after contact with the log, at which time the work station of the operator is several feet to the rear and to the side of the saw. Serious Violation No. 3 and Non-Serious Violation No. 5 rest on the election of the involved employees, respectively, not to wear a life preserver and goggles at the time of observation by the inspector. The life preserver and goggles had been provided by the employer with instructions that they be worn. They were donned by the involved employees before the inspector left the premises.

There is no evidence in the record tending to show that the employer had any knowledge respecting these instances of employee disobedience of its established instructions. No effort was made to establish that the instructions were a mere sham or that the employer had any on-going practice of permitting its instructions to be disregarded by its employees with impunity. The Secretary alleged employer knowledge and Alsea denied it. As the case reaches us, the absence of employer knowledge must be considered one of the established facts.

Commission’s Order

The alleged violations were all vacated for lack of evidence that the employer knew or had reason to know of their existence. The Commission’s position was that the burden of proof on all elements of a violation lay upon the Secretary and that employer knowledge is a necessary element of both serious and non-serious violations.

“Serious Violation No. 3” was vacated on the additional ground of its having been observed prior to presentation of the inspector’s credentials.

Scope of Review

The Act authorizes the Secretary of Labor to set safety standards, to conduct inspections, and to issue citations and proposed penalties. It establishes the Commission as an independent agency to carry out adjudicatory functions and authorizes the Commission, interalia, to vacate citations and proposed penalties. The findings and conclusions of the Commission are subject to our review under the provisions of the Administrative Procedure Act, 5 U.S.C. § 706 and 29 U.S.C. § 660(a). Because there is no factual issue before us, the Commission’s order must be affirmed if it be found to have been in accordance with law.

The Issues

The Secretary challenges the order on legal grounds, urging that the Commission erred in (1) assigning to him the burden of proof with respect to employer knowledge; (2) requiring employer knowledge as an element of the non-serious violation; and (3) vacating one of the serious violations as unauthorized because it was observed prior to presentation of the inspector’s credentials.

Finding no error in the Commission’s order vacating all of the violations for lack of proof by the Secretary of employer knowledge, we do not reach the issue of whether observation of a violation prior to presentation of credentials is a proper basis for a citation.

OPINION

Although the Secretary’s brief quotes and is for the most part couched in language relating to the general duty clause of the statute, 29 U.S.C. § 654(a)(1), the complaint and citations themselves charge failure to comply with specific safety and health standards, i. e., violations of the special duty clause, 29 U.S.C. § 654(a)(2). The freedom and flexibility permissible in the preparation, amendment, and proof under administrative pleadings was recognized in National Realty & Construction Co. v. Occupational Safety and Health Review Commission, 160 U.S.App.D.C. 133, 489 F.2d 1257 (1973). In that case, however, the court pointed out the unfairness of permitting reliance on new theories and considerations put forward at post-hearing stages. As required by the Act, the citations herein describe the alleged violations “with particularity.” 29 U.S.C. § 658. The case was heard and reviewed below on charges limited to the special duty clause and will be so reviewed here.

Burden of Proof

The Act defines a serious violation in 29 U.S.C. § 666(j) as:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. [Emphasis added.]

That employer knowledge is an element of a serious violation is not disputed. The Secretary insists that he need not prove the existence of that element an d that the respondent must prove its absence.

The Secretary argues that Congress’ deletion of the words “the Secretary determines that” after the word “unless” indicates a Congressional intent to place the burden of proving lack of knowledge upon the employer. We disagree. The clear import of the deletion of the quoted phrase was to remove the element of employer knowledge from those elements unilaterally determinable by the Secretary and to raise that element to one of affirmative proof necessary to sustain a charge of violation of the Act and the imposition of penalties therefor, when the charge is contested before the Commission.

The Commission has consistently so interpreted the quoted provision of the Act and we have been presented no compelling reason for finding that interpretation to be contrary to law. The Commission’s rule 73(a) provides:

In all proceedings commenced by the filing of a notice of contest, the burden of proof shall rest with the Secretary. 29 C.F.R. § 2200.73(a).

In the present case the Secretary, fully aware of rule 73(a), affirmatively alleged knowledge on the part of the employer. We find no error in the Commission’s requirement that the Secretary prove the allegations he elects to make before the Commission. Having alleged knowledge on Alsea’s part and having thereby accepted the burden of proving it, the Secretary now seeks to shift that burden to Alsea. In our view, the Secretary has at least the initial burden of establishing a prima facie case of employer knowledge before the burden of going forward shifts to the employer.

The Secretary argues that he need only prove the serious “violation.” The argument is based on a distinction without a difference. The statute states that unless the employer has knowledge, no serious violation may exist. Therefore, to prove the very existence of a serious violation, the Secretary must prove that the employer had knowledge of the condition alleged to be a violation.

We hold therefore that the Commission’s procedural requirement, placing upon the Secretary the burden of proving all elements of a violation, one element of which is employer knowledge thereof, is a proper exercise of the Commission’s authority under the Act.

What we have said respecting the burden of proof of employer knowledge is equally applicable to both serious and non-serious violations if employer knowledge be equally an element of both.

Employer Knowledge Is an Element of a Non-Serious Violation

The statute refers to the nature of violations only at 29 U.S.C. § 666, the title of which is “Civil and criminal penalties.” Section (a) thereof states that an employer who “willfully or repeatedly violates * * * may be assessed * * not more than $10,000 * * Section (b) provides that an employer who has “received a citation for a serious violation * * * shall be assessed * * up to $1,000.” Section (c) provides that an employer who has “received a citation for a violation * * * specifically determined not to be of a serious nature, may be assessed * * * up to $1,000 * * Section (j) defines a serious violation as quoted supra.

Section (d) provides a penalty for failure to correct “a violation.” Section (e) sets forth a fine and imprisonment for an employer who “willfully violates” and “that violation caused death.” Section (f) relates to fine and imprisonment of any person who gives advance notice of an inspection. Section (g) provides for fine and imprisonment of whoever “knowingly makes any false statement.” Section (h) establishes a penalty for an employer who violates any posting requirement. Section (i) authorizes the Commission to assess all penalties. Section (k) directs payment of penalties to the Secretary for deposit into the Treasury and provides for their recovery in the courts.

Thus the statute describes no element of a non-serious violation and provides no guidelines for specifically determining a violation “not to be of a serious nature.” We find unpersuasive, therefore, the argument of the Secretary to the effect that the presence of an employer knowledge requirement in Section (j) and its absence from Section (c) impels a finding of Congressional intent to delete employer knowledge as an element of a non-serious violation. We find no more warrant for deleting employer knowledge than we do for the deletion of any of the other elements set forth in Section (j) (probability of harm; conditions existing; practices adopted or in use; occurrence in place of employment), all of which are equally absent from Section (c).

Considering, as we must, the statute as a whole and 29 U.S.C. § 666 in its entirety, we are convinced that Congress intended the same meaning for the word “violation” wherever it appears. Section (c), containing the only reference to non-serious violations, must be read in conjunction with Section (b). Both relate to employers who have merely “received a citation.” Neither defines a violation. The sole difference between sections (b) and (c) lies in the mandatory assessment of penalty for serious violations and the permissive assessment for non-serious violations.

We note also, the use of “wilfully” and “knowingly” in those sections of 29 U.S.C. § 666 which refer to persons who “violate.” Wilfulness, with which knowledge is necessarily equated, does not appear where the prohibited act is impossible without knowledge of the actor (failure to correct; giving advance notice; failure to post), or in Sections (b) and (c) which are concerned only with assessment upon citation. Whether the assessment be mandatory or permissive is made to turn solely on the nature of the violation, not on the presence or absence of employer knowledge.

We find the Commission’s requirement of proof by the Secretary of employer knowledge as an element of a non-serious violation to be both reasonable and in accord with the statute under which the Commission functions. The whole tone of the statute and its legislative history is directed toward increased safety of working conditions through the cooperative efforts of employers and employees. The legislative purpose, stated in 29 U.S.C. § 651(b), includes:

(2) by providing that employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions.

The Secretary’s citations herein are directed to Alsea and include the statement, “On the basis of the inspection it is alleged that you violated the Occupational Safety and Health Act of 1970 * * * (emphasis ours). It appears unquestionable that the employees involved herein violated the act.

The legislative history of the Act indicates an intent not to relieve the employer of the general responsibility of assuring compliance by his employees. Nothing in the Act, however, makes an employer an insurer or guarantor of employee compliance therewith at all times. The employer’s duty, even that under the general duty clause, must be one which is achievable. See National Realty, supra. We fail to see wherein charging an employer with a non-serious violation because of an individual, single act of an employee, of which the employer had no knowledge and which was contrary to the employer’s instructions, contributes to achievement of the cooperation sought by the Congress. Fundamental fairness would require that one charged with and penalized for violation be shown to have caused, or at least to have knowingly acquiesced in, that violation. Under our legal system, to date at least, no man is held accountable, or subject to fine, for the totally independent act of another. A conspiracy to violate the Act is neither alleged nor reflected in the record before us.

The Commission’s insistence on some nexus between the employer and the alleged violation confirms the wisdom of the Congress in establishing the Commission. Not requiring the Secretary to establish that an employer knew or should have known of the existence of an employee violation would in effect make the employer strictly and absolutely liable for all violations and would render meaningless the statutory requirement for employee compliance, 29 U.S.C. § 654(b).

To revive the citation for non-serious violation No. 5 herein would be to subject an employer to a standard of strict liability, under the special duty clause, for deliberate employee misconduct. We do not find that result to be within the intent of the Congress.

CONCLUSION

The final order of the Commission was in accordance with law and must be affirmed.

      . 29 U.S.C. § 654. Duties of employers and employees
      (a) Each employer—
      (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
      (2) shall comply with occupational safety and health standards promulgated under this chapter.

      . The Act has been described as “novel in approach and sweeping in coverage,” National Realty, supra, and as “revolutionary,” White & Carney, OSHA Comes of Age: The Law of Workplace Environment, 28 Bus. Law 1309 (1973). Judicial review on the merits of enforcement contests appears thus far to have been limited to five cases, the majority involving investigations and inspections following fatal accidents and resulting in citations for violations of the general duty clause, Brennan v. Occupational Safety and Health Review Commission and Republic Creosoting Co., 501 F.2d 1196 (7th Cir. 1974); American Smelting and Refining Co. v. Occupational Safety and Health Review Commission, 501 F.2d 504 (8th Cir. 1974); REA Express, Inc. v. Brennan, 495 F.2d 822 (2nd Cir. 1974); Brennan v. Occupational Safety and Health Review Commission and Vy Lactos Laboratories, Inc., 494 F.2d 460 (8th Cir. 1973); National Realty, supra-, and three cases involving citations for violations of the special duty clause, Brennan v. Occupational Safety and Health Review Commission and Gerosa, Inc., 491 F.2d 1340 (2nd Cir. 1974); Brennan v. Occupational Safety and Health Review Commission and J. W. Bounds, 488 F.2d 337 (5th Cir. 1973). Texports Stevedore Co., Inc. v. Secretary of Labor, 484 F.2d 465 (5th Cir. 1973); Texports involved injury and Gerosa involved death. The present case appears to involve the first effort of the Secretary to seek judicial enforcement of a charge against an employer for violations of the special duty clause on the sole basis of employee misconduct.

      . Legislative History of OSHA, Subcommittee on Labor of the Senate, Committee on Labor and Public Welfare, 92nd Cong., 1st Sess. at 1104, 1131 (1971).

      . Alsea argues that the Secretary’s failure to raise the burden issue before either the Administrative Law Judge or the Commission forecloses his raising it before this court on review, citing 29 U.S.C.A. § 660(a). Because the Commission’s procedural rule is based on its interpretation of the statute, the Secretary raises a legal question fundamental in this and future cases and one properly before us under 5 U.S.C. § 706.

      . It should be noted that we deal here only with the special duty clause and violations resulting from an employee’s election to disobey his employer’s instructions. Proof of an employer’s failure to provide guardrails, safety equipment, instructions, or the like, would establish a prima facie case of an employer’s knowledge of its own acts of omission. Similarly, a failure to comply with the general duty clause may not require “knowing consent.” National Realty, supra.

      . In effect the Secretary argues that only the unsafe condition must be proved. To so hold would frustrate the intent of Congress in amending the original House bill to insert the element of employer knowledge. See BNA, Job Safety Act, 145.

      . § 666. Civil and criminal penalties
      (a) Any employer who willfully or repeatedly violates the requirements of section 654 of this title, any standard, rule, or order promulgated pursuant to section 655 of this title, or regulations prescribed pursuant to this chapter, may be assessed a civil penalty of not more than $10,000 for each violation.
      (b) Any employer who has received a citation for a serious violation of the requirements of section 654 of this title, of any standard, rule, or order promulgated pursuant to section 655 of this title, or of any regulations prescribed pursuant to this chapter, shall be assessed a civil penalty of up to $1,000 for each such violation.
      (c) Any employer who has received a citation for a violation of the requirements of section 654 of this title, of any standard, rule, or order promulgated pursuant to section 655 of this title, or of regulations prescribed pursuant to this chapter, and such violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of up to $1,000 for each such violation.
      ******

      . As the citation form spells out, the issuance of a citation does not of itself constitute a finding that a violation of the Act has occurred. See, also, 29 U.S.C. § 659.

      . Although the statute, 29 U.S.C. § 654, requires both employers and employees to comply with safety standards, Congress provided penalties only for employer violations. 29 U.S.C. §§ 658, 666. No penalties were provided for employee disregard of their responsibilities under the Safety Act.

      . S.Rep.No.91-1282, 91st Cong. 2nd Sess. 10-11 (Oct. 6, 1970), U.S.Code Cong. & Admin.News, 1970, p. 5187.

      . The working out of specific responsibilities and relationships between the Secretary and the Commission under this relatively new Act has involved an “administrative whirlwind,” Brennan v. Occupational Safety and Health Review Commission and Brent Towing Co., Inc., 481 F.2d 619 (5th Cir. 1973), an effort of the Secretary to limit the power of the Commission to modify penalties proposed by him, Brennan v. Occupational Safety and Health Review Commission and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973), and the refusal by the court of an invitation to resolve the conflict between the Secretary and the Commission as to their respective rights, powers, duties and responsibilities, Bounds, supra, note 2. See also, Brennan v. Occupational Safety and Health Review Commission and Echols Trucking Co., 487 F.2d 230 (5th Cir. 1973). Secretarial and Commission zeal in behalf of worker safety is neither unexpected nor decried. If, particularly in this early period of the Act’s existence, there should be error in the direction of “adventurous enforcement,” as in National Realty, supra, the courts stand ready to ameliorate its effect. Moreover, the Act itself, 29 U.S.C. § 675, requires annual reports to the Congress containing, inter alia, recommendations for legislation necessary to improve its administration.

      . In National Realty, supra, the court dealt with a fatal accident and an alleged violation of the general duty clause. Because that clause requires the employer to furnish employment free of recognized hazards, the court did not consider “knowing consent” to be a necessary element of a violation thereof. Nonetheless, the court said (489 F.2d at 1266):
      * * * A hazard consisting of conduct by employees, such as equipment riding, cannot, however, be totally eliminated. A demented, suicidal, or willfully reckless employee may on occasion circumvent the best conceived and most vigorously enforced safety regime * * * Congress intended to require elimination only of preventable hazards * * *.


author: EUGENE A. WRIGHT, Circuit Judge:

text:
    Frances K. GROW et al., Plaintiffs-Appellants, v. Sidney E. SMITH, Individually and in his capacity as Secretary of the Washington State Department of Social and Health Services, Defendant-Appellee.
    No. 73-1228.
    United States Court of Appeals, Ninth Circuit.
    Feb. 26, 1975.

      Donald E. Clocksin (argued), Juneau, Alaska, for plaintiffs-appellants.
    Walter White, Asst. Atty. Gen. (argued), Olympia, Wash., for defendant-appellee.
    Before LUMBARD, KOELSCH and WRIGHT, Circuit Judges.

       Senior Circuit Judge for the Second Circuit.

   OPINION

EUGENE A. WRIGHT, Circuit Judge:

Appellants are parents of dependent children who have been denied or terminated from public assistance under Washington welfare regulations for failure to provide information on absent parents or assist in support or filiation proceedings. They sued under 42 U.S.C. § 1983 for injunctive relief and damages, alleging that Washington’s welfare regulations requiring such information and participation in such support proceedings were inconsistent with federal statutory requirements and in violation of the equal protection clause of the Fourteenth Amendment.

“APPLICANT OR RECIPIENT RESPONSIBILITY
“(1) An applicant for or a recipient of public assistance on behalf of a child is responsible for developing and using all resources and income, potential or actual, which are or can be made available to meet the requirements of such child. Said responsibility includes a duty on the part of the applicant/recipient to provide the name of the absent parent and, when such information is known, sufficient information to enable the department to contact said absent parent in order to determine the amount of support money that is or can be made available to meet the need of the dependent child(ren) for whose support said absent parent is responsible at law. Support money received from the absent parent is newly acquired income and shall be budgeted per WAC 388-33-140.”

The district court invalidated several welfare regulations not at issue here, upheld the validity of WAC 388-28-323(1) and WAC 388-28-340 (relating to family units with illegitimate children), and denied retroactive benefits to families which were denied assistance under the invalidated regulations. We affirm the court’s decision as to retroactive benefits but remand to it for consideration the impact of amendments to federal and state regulations.

I.

RETROACTIVE BENEFITS

The district court denied retroactive benefits to the plaintiffs, holding that the Eleventh Amendment deprived federal courts of jurisdiction to hear such suits by private parties for damages against a state. We affirm on the basis of Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) which held that suits in the federal courts to obtain retroactive welfare benefits were barred by the Eleventh Amendment.

II.

SUPREMACY CLAUSE ISSUES

Appellants attacked WAC 388 — 28-323(1) as inconsistent with 42 U.S.C. § 602, alleging that it established an eligibility requirement not contained in the federal statute. They alleged that the additional eligibility requirement conflicted with the mandate of the federal statute that aid be provided to “all eligible individuals” with “reasonable promptness” 42 U.S.C. § 602(a)(10). Need and dependency have been held to be the sole conditions for eligibility prescribed by the Social Security Act, Doe v. Swank, 332 F.Supp. 61, 63 (N.D.Ill.), aff’d sub nom. Weaver v. Doe, 404 U.S. 987, 92 S.Ct. 537, 30 L.Ed.2d 539 (1971).

The district court found that the regulation in question and the information sheet developed in conformity therewith for use in processing welfare applications were required for the determination of present need and hence were not inconsistent with the federal statute:

All information requested on the eligibility form proposed for use under the proposed regulations ... is necessary to determine current eligibility of applicants for the Aid to Families with Dependent Children — Regular— program, including the actual and current availability to a child of an absent parent’s income and resources.

CR 170.

This finding of the district court is not clearly erroneous.

Appellants argue that this result is foreclosed by Supreme Court precedent. The cases cited are inapposite. The Supreme Court has affirmed three decisions in which state statutes or regulations were held invalid because they denied benefits to family units for refusal to institute filiation or support proceedings, Doe v. Swank, supra, Meyers v. Juras, 327 F.Supp. 759 (D.Ore.), aff’d 404 U.S. 803, 92 S.Ct. 91, 30 L.Ed.2d 39 (1971), Taylor v. Martin, 330 F.Supp. 85 (N.D.Cal.), aff’d sub nom. Carleson v. Taylor, 404 U.S. 980, 92 S.Ct. 446, 30 L.Ed.2d 364 (1971). Here the state is not requiring that parents or caretakers initiate support proceedings, but rather that they provide basic information necessary to determine current needs of the family units.

Both Doe v. Swank, supra, and Doe v. Shapiro, 302 F.Supp. 761 (D.Conn.1969) (appeal dismissed for lack of timeliness), 396 U.S. 488, 90 S.Ct. 641, 24 L.Ed.2d 677 (1970), involved the question of the provision of the name of the putative father of an illegitimate child as a condition of eligibility. This question is not an issue here, WAC 388-28-323(1) not being applicable in such cases and because the plaintiffs have stipulated that they are willing to provide the names of absent parents. (Clerk’s Record at 62.)

The provision of the name of the putative father is qualitatively different from that information required here, which involves the absent parent of legitimate children or children for whom paternity has been established. The putative father has no support obligation until filiation proceedings have been brought and paternity has been established, e. g. State v. Tieman, 32 Wash. 294, 73 P. 375 (1903); Hurst v. Wagner, 181 Wash. 498, 43 P.2d 964 (1935). Hence information relating to the putative father could be of use only in developing future income.

The information required here relates to the determination whether the parent is absent and whether he or she has sufficient current income or sources of support to meet an existent support obligation.

The regulations struck down in Doe v. Rampton, 497 F.2d 1032 (10th Cir. 1974) are much broader than WAC 388 — 28— 323(1). There, the Utah regulations required the applicant/recipient, to “assist in seeking support for the eligible children,” 497 F.2d at 1034, and also required applicants who were unwed mothers to “assist ... in establishing paternity,” 497 F.2d at 1035. Both requirements in Rampton related to the development of future income.

In contrast, the Washington regulation required only minimal information necessary to determine dependency and current need. The form requires the names of the children of the absent parent, information about the existence of a divorce and/or support decree, and the amount currently received under a support decree. Such information is necessary to determine the existing support obligations and the extent to which they are being fulfilled.

The regulations require, if known, information about the address of the missing parent and employment data, including name of employer and social security number. The address of the absent parent is necessary to establish dependency, showing that there is a continued absence from the home. Employment information is necessary to determine whether the absent parent can fulfill his or her support obligations on a regular basis and whether additional sources of support exists for current use.

The state may require the production of such minimal information in order to determine actual needs of the family unit. We cannot sustain the appellant’s contention that the Social Security Act proscribes a state requirement that the applicant provide such information, or forces the state to ferret out this basic information on need from third parties. This regulation is within “the legitimate sphere of state administration” supplementing the regulations of the federal government, cf. New York Department of Social Service v. Dublino, 413 U.S. 405, 422, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973); Wyman v. James, 400 U.S. 309, 90 S.Ct. 921, 25 L.Ed.2d 85 (1971).

III.

EQUAL PROTECTION ISSUE

Another attack on WAC 388 — 28 — 323(1) by appellants is based on an alleged violation of equal protection. It is urged that legitimate children suffer discrimination under the regulation as compared with illegitimate children whose paternity has not been legally established. The latter would not be denied support because of any failure or refusal of parent or caretaker to provide information about an absent parent. There would be a denial as to legitimate children.

We note that the distinction under WAC 388 — 28 — 323 was between children whose absent parents were legally obligated to support them (i. e., parents of children born during wedlock and putative fathers whose paternity had been legally established) and those whose absent fathers had no legal support obligation, WAC 388 — 28 — 323(4)(a). The distinction was not simply one turning on legitimacy.

The equal protection argument was not raised below, hence we do not pass on it here. It should be noted that it is a constitutional attack on a regulation of statewide applicability. Unless found “constitutionally insubstantial,” Hagans v. Lavine, 415 U.S. 528, 534—43, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974), it must be heard by a three-judge court, if the plaintiffs choose to raise the issue again.

IV.

AMENDED REGULATIONS AND STATUTE

In the two years since the district court entered its order, the state of Washington has amended its regillations. New ones provide for the denial of benefits to parents or caretakers who refuse to take part in support or filiation proceedings. These changes were made in response to a change in HEW regulations:

[N]either this nor any other provision of these regulations should be construed to require that provision be made by a State in its AFDC program for the maintenance of a parent or caretaker who fails to provide such assistance and AFDC may be denied with respect to such parent or caretaker.

45 C.F.R. § 233.90(b)(4)(ii), 39 Fed.Reg. 34038, September 23, 1974.

Section 402(a) of the Social Security Act has also been amended, to take effect on July 1, 1975.

The Supreme Court has stated that an appellate court “must review the judgment of the District Court in the light of [state] law as it now stands, not as it stood when the judgment below was entered.” Diffenderfer v. Central Baptist Church, 404 U.S. 412, 414, 92 S.Ct. 574, 575, 30 L.Ed.2d 567 (1972).

Since the district court has not had an opportunity to consider the revised statute and regulations, we remand the case to it for further consideration. See La-vine v. Shirley, 409 U.S. 1052, 93 S.Ct. 555, 34 L.Ed.2d 506 (1972).

      . WAC 388-28-323:

      . Our denial is without prejudice to any rights plaintiffs may have to obtain such payment administratively.

      . Participation in a work incentive program may also be an eligibility requirement, 42 U.S.C. § 602(a)(19), New York Department of Social Services v. Dublino, 413 U.S. 405, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973).

      . The most recent federal regulation on this subject provides:
      A state may: * * *
      (B) Impose conditions upon applicants for and recipients of public assistance which, if not satisfied, result in the denial or termination of public assistance, if such condi-
      tions assist the State in the efficient administration of its public welfare policy, and are not inconsistent with the provisions and purposes of the Social Security Act.
      45 C.F.R. § 233.10(a)(l)(ii), 39 Fed.Reg. 26912 (effective date July 24, 1974).

      . The amendment to WAC 388-323(1):
      “The requirements of this subsection are a condition of eligibility for public assistance, including assistance for the child or children involved when appropriate and necessary to determine eligibility.”

      . “. . (26) provide that, as a condition of eligibility for aid, each applicant or recipient will be required — •
      “(A) to assign the State any rights to support from any other person such applicant may have (i) in his own behalf or in behalf of any other family member for whom the applicant is applying for or receiving aid, and (ii) which have accrued at the time such assignment is executed, “(B) to cooperate with the State (i) in establishing the paternity of a child born out of wedlock with respect to whom aid is claimed, and (ii) in obtaining support payments for such applicant and for a child with respect to whom such aid is claimed, or in obtaining any other payments or property due such applicant or such child and that, if the relative with whom a child is living is found to be ineligible because of failure to comply with the requirements of subparagraphs (A) and (B) of this paragraph, any aid for which such child is eligible will be provided in the form of protective payments as described in section 406(b)(2) (without regard to subparagraphs (A) through (E) of such section); . . .”


author: COFFIN, Chief Judge.

text:
    In re Antonio LOPREATO, Appellant.
    No. 74-1418.
    United States Court of Appeals, First Circuit.
    Argued Jan. 8, 1975.
    Decided Feb. 9, 1975.

      James R. McGowan, Providence, R. I., with whom Harold C. Arcaro, Jr. and Salter, McGowan, Arcaro & Swartz Incorporated, Providence, R. I., were on brief, for appellant.
    S. Michael Levin, Sp. Atty., Crim. Div., U. S. Dept, of Justice, with whom Lincoln C. Almond, U. S. Atty., Providence, R. I., and Charles J. Alexander, Sp. Atty., Tax Div., U. S. Dept, of Justice, Washington, D. C. were on brief, for appellee.
    Before COFFIN, Chief Judge, and McENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

The appellant was subpoenaed to appear before and to provide handwriting exemplars to a special grand jury empanelled pursuant to 18 U.S.C. § 3331. He had been previously informed that he was a “target” of the grand jury’s inquiry. When he failed to appear, a lengthy and thorough hearing was provided by the district court to determine whether his appearance should be ordered. The appellant challenged the authority of the U. S. Attorney to subpoena him without specific grand jury authorization and claimed that a violation of his Fifth Amendment due process rights would occur if he, a “target”, was required to appear even for the limited purpose of providing handwriting samples. The district court rejected these and other claims not raised here and, after calling the appellant into the courtroom, ordered his appearance before the grand jury for the purpose of providing handwriting exemplars. When the appellant remained recalcitrant, a second summary hearing was conducted and the court ruled the witness in civil contempt under 28 U.S.C. § 1826. This appeal followed.

This circuit has been presented with several recalcitrant grand jury witnesses in the recent past. In the cases we have thus far treated, the witnesses have based their challenges to specific questions on statutory provisions affording protection against government wiretapping in situations not limited to grand jury proceedings. See, e. g., In re Lochiatto, 497 F.2d 803 (1st Cir. 1974). Here the controversy is restricted to the rights of a witness acknowledged to be a “target” of investigation when called before the grand jury. We reassert the principles guiding any decision affecting the orderly administration of the grand jury: a grand jury is entitled to every person’s testimony, United States v. Dionisio, 410 U.S. 1, 9-10, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); expeditious handling of its proceedings is a major policy consideration, United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); and, therefore, unnecessary delay of the proceedings and dilatory tactics on the part of witnesses are to be strongly discouraged. This is a case of such delay. The challenges of the witness are without merit.

A presumption of regularity attaches to grand jury proceedings and hence to a grand jury subpoena. See, e. g., In re Grand Jury Proceedings (Universal Mfg. Co.), 508 F.2d 684, (8th Cir. 1975). Those challenging such a subpoena have the burden of showing that irregularity exists, In re Grand Jury Proceedings (Schofield), 486 F.2d 85, 92 (3d Cir. 1973). We deal with the least persuasive of the appellant’s contentions first. At the end of several hours of hearing preceding the court’s order to appear, the district judge examined the subpoena and noted that there was no return indicated thereon. Only at this point in the hearing did the attorney for the witness raise the claim that the subpoena was improperly served. Even if we did not think that the witness had by then waived such a claim, the fact that the witness was present in court, personally ordered to appear before the grand jury, and that it was for the disobedience of this order that he was held in contempt would in any case make irrelevant the claimed failure of service.

Further argument below was premised on two separate theories, that without specific grand jury authorization, the U. S. Attorney could not issue a subpoena and that it was a denial of due process to call a “target” of the proceedings before the grand jury even for the limited purpose of providing handwriting exemplars.

In bolstering the first theory, the appellant makes much of the fact that the grand jury sat in a room designated as the U. S. Attorney’s library, and that the U. S. Attorney was given blank subpoenas by the clerk of the court, and finally that the power of subpoena has been traditionally denied to executive agencies. But all of the cases cited by the appellant are cases where the power of subpoena was abused either to provide the U. S. Attorney an opportunity to coerce witnesses to appear before him personally, e. g., Durbin v. United States, 94 U.S.App.D.C. 415, 221 F.2d 520 (1954); United States v. Thomas, 320 F.Supp. 527 (D.D.C.1970), or to undertake far reaching inquiries irrelevant to the legitimate purposes of the grand jury or not made in good faith. United States v. Doe (Ellsberg), 455 F.2d 1270 (1st Cir. 1972); see also United States v. Dionisio, 410 U.S. 1, 10, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); Branzburg v. Hayes, 408 U.S. 665, 707-08, 709-10, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Brown v. United States, 276 U.S. 134, 48 S.Ct. 288, 72 L.Ed. 500 (1928); McGarry v. S.E.C., 147 F.2d 389 (10th Cir. 1945). There is no allegation here that the appellant was not in fact called to appear before a grand jury empanelled within the space designated as the U. S. Attorney’s library. Indeed, the court could have taken notice of the fact that the grand jury was there convened. The eases cited which deal exclusively with abuse of process are inapposite.

The contention that the U. S. Attorney was without authority to have the subpoena issued in the first instance runs counter to established practice, and to the statutory language of 18 U.S.C. § 3332 which anticipates that the U. S. Attorney will bring the evidence before the grand jury. In addition the Federal Rules of Criminal Procedure, Rules 6 and 17, have been interpreted to permit such procedures, see Schofield, supra, 486 F.2d at 90; see also Wright, Federal Practice and Procedure §§ 101, 271, 273 (1969). Abuse of process is avoided by court supervision and the individual witness charged with civil contempt is protected by the requirement of a court order independent of the original subpoena as the premise for contempt proceedings. Schofield at 88-90.

We now consider appellant’s charge that his Fifth Amendment due process rights were violated. This argument is two pronged but each tine is weak. He first contends that it was fatal to the case below that the U. S. Attorney failed to offer an affidavit as to the relevance and proper purpose of the intended use of handwriting exemplars. But it was the representation of the witness’ attorney below that the witness would be asked to sign names used to endorse certain checks relating to an inquiry into the witness’ tax liability. The government acceded to this representation. Apparently assuming that the evidence requested was clearly relevant, the witness requested no affidavit below. Even were we to adopt the Third Circuit’s rule in Schofield, supra at 93; but see In re Grand Jury Proceedings (Universal Mfg. Co.), 508 F.2d 684, n. 2 (8th Cir. 1975), we would hold the right to an affidavit of relevancy waived in this instance.

The final contention is the assertion that the very appearance of a “target” before the grand jury for any purpose whatever is violative of his Fifth Amendment due process rights. The appellant pegs his hopes on generalized “due process” rights because the Supreme Court has clearly established that the Fifth Amendment protection against self-incrimination is not encroached upon by the requirement of providing handwriting samples, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), and, more to the point, that a grand jury witness who was a potential defendant or “target” could be required to give handwriting exemplars, United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), see also United States v. Dionisio, 410 U.S. 1, 93 S,Ct. 764, 35 L.Ed.2d 67 (1973). A Fourth Amendment claim has also been specifically rejected in this context, Dionisio at 13, 93 S.Ct. 764. In light of these cases and of the established practice they illustrate, the appellant’s assertion is reduced to just that; it has no legal merit.

Having established the propriety of the district court’s decision to order the appellant’s appearance before the grand jury and production of handwriting exemplars, all that remains is an investigation of whether the witness had “just cause” for his failure to appear. Title 28 U.S.C. § 1826 provides for a summary order of confinement “whenever a witness in any proceeding before [a] grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information.” The order was clearly one to provide information and the witness did not appear. The appellant claims that his failure to appear was justified by his desire to preserve the issues above discussed for appeal. This argument is analogous to asserting as an excuse for tortious conduct a desire to assert a Seventh Amendment right to jury trial. Like the other claims it fails to persuade us. A review of the transcripts and record below indicate that the remaining assertions of the appellant are equally without merit. ,

The judgment of the District Court is affirmed. Mandate to issue forthwith.

       The allegation that the exemplars, as described by appellant’s attorney, are communicative is also without substance.


author: RICH, Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Wynn Earl WESTOVER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Bea ROBERTS, Defendant-Appellant.
    Nos. 74-2279, 74-2262.
    United States Court of Appeals, Ninth Circuit.
    March 3, 1975.
    Certiorari Denied June 16, 1975.
    See 95 S.Ct. 2633.

      Frank M. Mangan (argued), Federal Defender, San Diego, Cal., for defendant-appellant.
    Peter Nunez, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.
    Before CHAMBERS, Chief Judge, ELY, Circuit Judge, and RICH, Judge.

       Honorable Giles S. Rich, Associate Judge, United States Court of Customs and Patent Appeals, sitting by designation.

   RICH, Judge:

These two appeals have been consolidated for hearing and decision on the Government’s motion. Appellants Westover and Roberts were each convicted, after a jury trial, of conspiracy to smuggle and import merchandise illegally, in violation of 18 U.S.C. § 371, and smuggling and illegal importation of merchandise, in violation of 18 U.S.C. § 545. Both appellants received suspended sentences, the sentences to run concurrently, and were placed on probation. Inasmuch as appellants’ sentences are concurrent, we need sustain only one conviction of each appellant to affirm the judgment. United States v. Jones, 446 F.2d 12 (9th Cir., 1971). Since we affirm appellants’ convictions on the conspiracy counts, we refrain from passing on the convictions for smuggling and illegal importation under § 545.

Westover’s arrest resulted from a search by customs agents of his vehicle, which was parked for a time at a motel in San Ysidro, California, near the border crossing into Mexico. We need not decide whether this search constituted a valid border search under Alexander v. United States, 362 F.2d 379 (9th Cir., 1966), cert. denied 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed.2d 439 (1966); or United States v. Weil, 432 F.2d 1320 (9th Cir., 1970), cert. denied 401 U.S. 947, 91 S.Ct. 933, 28 L.Ed.2d 230 (1971), since we find that separate probable cause existed for the search, as held by the trial judge.

There is evidence that on November 30, 1973, appellant Roberts and alleged (although unindicted) co-conspirator Edmunds were observed placing objects inside the trunk of a vehicle, which was parked 200 to 300 yards north of the border and which the customs agents knew to be registered to Westover; that Roberts and. Edmunds were confirmed to have entered from Mexico shortly before having been seen at Westover’s vehicle; that within an hour thereafter Roberts and Edmunds entered from Mexico in another automobile in which illegal merchandise was found and were arrested; and that Westover, upon entering on foot from Mexico, was seen to proceed to his vehicle, open the trunk, and look inside. This evidence, when viewed with evidence that Westover was known to the customs agents to be associated with organizations promoting the legalization of laetrile and to have frequently telephoned a pharmacy in Mexico employing persons who were arrested a month earlier for smuggling laetrile and who had named Westover as a trafficker in laetrile, supports the district court’s finding that the search of Westover’s vehicle for contraband by the customs agents was valid. Westover’s attempt to flee the area in his vehicle when accosted by the customs agents provided sufficient exigent circumstances for immediate warrantless search for contraband. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

Westover further argues that his acquittal under another indictment of conspiracy to import merchandise illegally prohibits his conviction for conspiracy now before us under the double jeopardy clause of the Fifth Amendment. West-over has the burden of showing that the conspiracy of which he was acquitted and the conspiracy of which he was subsequently convicted constituted a single overall conspiracy. United States v. O’Dell, 462 F.2d 224, 226-227 fn. 2 (6th Cir., 1972); Sanchez v. United States, 341 F.2d 225, 227 (9th Cir., 1965), cert. den. 382 U.S. 856, 86 S.Ct. 109, 15 L.Ed.2d 94 (1965). The indictment resulting in Westover’s acquittal alleged a conspiracy among Westover, one Medina, and one Aguilar, to smuggle amygdalina (laetrile) during a period ending August 27, 1973. Evidence that Westover was involved in a general continuing conspiracy to smuggle anti-cancer drugs, which Westover asserts may be inferred from the records of both trials, does not support his plea of double jeopardy in the absence of evidence that the combinations of Westover with Edmunds and Roberts, on the one hand, and Medina and Aguilar on the other, were encompassed by the same agreement. Thus, Westover’s plea of double jeopardy was properly rejected by the district court.

Both appellants contend that the evidence is insufficient to support their conspiracy convictions. Viewing the evidence in the light most favorable to the Government, as we must on appeal, Glasser v. United States, 315 U.S. 60, 82, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Callahan, 445 F.2d 552, 554 (9th Cir., 1971), we find that the Government did present facts from which the jury could reasonably infer that both appellants were guilty of conspiracy. See United States v. Bonanno, 467 F.2d 14, 17 (9th Cir., 1972), cert. den. 410 U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 (1973).

“Participation in a criminal conspiracy need not be proved by direct evidence; a common purpose and plan may be inferred from a ‘development and a collocation of circumstances’.” Glasser v. United States, supra, 315 U.S. at 80, 62 S.Ct. at 469, quoting from United States v. Mantón, 107 F.2d 834, 839 (2d Cir., 1938). Appellant Westover furnished the transportation to San Ysidro from the San Francisco area. While he, Roberts, and Edmunds were in Tijuana, Westover offered to buy at a wholesale price, and then bought, the medicines that were later taken across the border. Although Edmunds stated that he planned to repay Westover later, the record shows that Westover purchased the medicines with his own money. Westover helped Edmunds count the purchased medicine; and after Roberts and Edmunds walked across the border, they placed the merchandise they were carrying in Westover’s car. Westover was driving his car when the customs agents stopped him, after he attempted to evade the agents, searched the car, and seized smuggled merchandise from the trunk. From the fact that Westover was driving the car, the jury could reasonably infer that he knew of the trunk’s contents. United States v. Dixon, 460 F.2d 309 (9th Cir., 1972), cert. den. 409 U.S. 864, 93 S.Ct. 157, 34 L.Ed.2d 112 (1972).

Although there may be less evidence to support appellant Roberts’ conviction for conspiracy, we find the evidence is sufficient. Once it is shown that a conspiracy exists, only slight evidence is required to connect a defendant with it. Nye & Nissen v. United States, 168 F.2d 846, 852 (9th Cir., 1948), aff’d 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949); United States v. Knight, 416 F.2d 1181, 1184 (9th Cir., 1969). Roberts rented and drove the car in which she and Edmunds went into Mexico for their prearranged meeting with Westover. Although there was no evidence that she participated in the conversation between Edmunds and Westover about buying the medicines, the conversation occurred in her rented car, and she was present. She was also present when Edmunds and Westover later counted the medicine. Cf. United States v. Knight, supra, at 1183 — 84. Edmunds’ testimony was equivocal as to whether Roberts carried any of the medicine when she and Edmunds walked across the border; but Edmunds clearly stated that Roberts had possession of the key to the trunk of Westover’s vehicle and that she opened the trunk so that he could put the imerchandise inside. Cf. United States v. Ramos, 476 F.2d 624 (9th Cir., 1973). Finally, Roberts was driving her rented car when customs officers stopped and searched the car at the border and seized smuggled medicines. Cf. United States v. Dixon, supra.

Affirmed.

      . Drugs called “Cyto H3 tablets,” “Apia Basilon plus H3 tablets” and “CUV C Triptophane tablets.”

      . Count II of the indictment charges each appellant with both smuggling merchandise and illegal importation of merchandise, in violation of 18 U.S.C. § 545. Smuggling and illegal importation are separate offenses, although both are violations of § 545, OlaisCastro v. United States, 416 F.2d 1155, 1157— 1158 (9th Cir., 1969). By charging more than one offense in a single count, Count II is duplicitous. Fed.R.Crim.P. 8(a). Appellants waived this defect, however, by failing to object by motion prior to trial. Fed.R.Crim.P. 12(b)(2). Because we apply the concurrent sentence doctrine, we need not decide whether the evidence was insufficient to support a jury verdict of guilty on either of the offenses charged.

      . A drug, also called “amygdalina,” not available in the United States for lack of FDA approval, which some persons believe is, effective against cancer.


author: ROSENN, Circuit Judge.

text:
    DESCO PRODUCTS CARIBBEAN, INC. v. GOVERNMENT OF the VIRGIN ISLANDS et al., Appellants.
    No. 74-1601.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 2, 1974.
    Decided March 3, 1975.

      Verne A. Hodge, Atty. Gen., Gordon S. Gilman, Asst. Atty. Gen., Charlotte Amalie, St. Thomas, V. I., for appellants.
    Ethel Carr Hunter, Charlotte Amalie, St. Thomas, V. I., for appellee.
    Before SEITZ, Chief Judge, and VAN DUSEN and ROSENN, Circuit Judges.
   OPINION OF THE COURT

ROSENN, Circuit Judge.

The issue in this appeal is whether one engaged in the business of installing roofs and roof systems is a building contractor within the meaning of the gross receipts tax statute of the Virgin Islands.

Deseo Products Caribbean, Inc. (Deseo) is a Virgin Islands corporation primarily engaged in the business of “installing roofs and roof systems.” From January 1, 1968, to June 30, 1969, the period in controversy in this suit, Deseo performed approximately ninety percent of its jobs as a subcontractor on new housing in the Islands.

During this period 33 V.I.C. § 43 provided that the rate of tax on gross receipts of every corporation doing business in the Virgin Islands should be two percent, except “[t]hat the rate of tax on building contractors and on foodstuffs shall be one percent.” The Commissioner of Finance imposed and collected a two percent tax on Deseo, which then brought suit for a refund of $2,696.75 in the Municipal Court of the Virgin Islands, alleging that it was a building contractor within the meaning of section 43, and therefore subject to taxation at a rate of only one percent. The municipal court rejected the claim, holding that “building contractor,” as used in the statute, was synonymous with “prime contractor” or “general building contractor.” The court also rejected Desco’s contention that the statute, as thus interpreted, unreasonably and arbitrarily distinguished between general contractors and subcontractors, in violation of the equal protection clause of the Revised Organic Act of 1954, § 3, vol. 1 V.I.C. at 92.

Deseo appealed to the District Court of the Virgin Islands, which reversed the municipal court, finding that the Legislature intended to tax roofers at the same rate as general contractors. The Commissioner appeals and we reverse the judgment of the district court.

In resolving the question before us, we are mindful that statutory exemptions from taxation, being a matter of legislative grace, are to be strictly and narrowly construed. King Christian Enterprises, Inc. v. Government of the Virgin Islands, 345 F.2d 633, 637 (3d Cir. 1965). We must also remember that the interpretation of the statute by the Commissioner, the agency charged with its administration, must be given great weight. Port Construction Co. v. Government of the Virgin Islands, 359 F.2d 663, 666 (3d Cir. 1966. In light of these two canons of statutory interpretation, Deseo, to receive the benefits of the lower tax rate, must show, either by the natural meaning of the term “building contractors,” or by the legislative history of the statute, that building artisans were encompassed by the statutory reference to building contractors. We do not believe that Deseo has made the required showing.

First, building artisans are not ordinarily referred to as building contractors. The fixed popular meaning of building contractor is “one who contracts with the owner to become his builder, to erect his structure according to certain plans and for a certain compensation.” Wilson v. District of Columbia, 26 App. D.C. 110, 113 (1905). Such artisans as bricklayers, plumbers, painters, and plasterers, who may by subcontracts undertake construction of parts of the general structure, are not ordinarily included within the meaning of the term. Wilson v. District of Columbia, supra. We see no reason to distinguish between such subcontractors and roofers such as Deseo.

Second, the legislative history, contrary to Desco’s contention, does not indicate that the benefits of the lower tax rate were to be afforded to all those whose charges contributed to the total cost of new construction. Indeed, we believe that the legislative history indicates that only general contractors were to be taxed at the lower rate.

The lower tax rate for building contractors and foodstuffs was enacted and put into effect on July 1, 1965. At that time, neither term was defined. Subsequently, the Act of December 3, 1965, No. 1547, § 1, [1965] V.I. Laws, pt. I, at 546, defined “foodstuffs” to include “cooked foods sold in restaurants,” but not to include “all . . . beverages and all other materials not consumed primarily to supply nourishment.” Section 2 of the Act provided that this definition was to apply retroactively as of July 1, 1965.

Subsequent amendments to section 43 failed to carry this definition of “foodstuffs” or to provide a new one. This apparent oversight was corrected by the Act of September 18, 1967, No. 2045, § 2, [1967] V.I. Laws 439, which reenacted the definition of foodstuffs found in the Act of December 3, 1965. Significantly, it provided that this definition was also to apply retroactively, this time as of December 3, 1965.

The absence of a definition of “building contractors” in the Act of July 1, 1965, also was corrected by a later Legislature. The Act of June 12, 1969, No. 2473, [1969] V.I. Laws 126, defined the term to include “electrical contractors, plumbing contractors and all subcontractors who perform a portion of a building contract pursuant to a contract with a general building contractor.” This definition became effective, however, on July 1, 1969.

The retroactive application of the acts which defined “foodstuffs” contrasts sharply with the prospective application of the act which defined “building contractors.” We believe that the Act of June 12, 1969, by providing that subcontractors were to receive the benefits of a lower tax rate only from July 1, 1969, unmistakably indicated that the Legislature did not intend that subcontractors were among those benefited by the lower tax rate before that date. We may not render retroactive benefits which the Legislature has enacted prospectively only.

Deseo contends that the statute, as interpreted to tax building artisans at the two percent rate, unreasonably and arbitrarily distinguishes between general contractors and subcontractors, in violation of the equal protection clause.

We disagree. The equal protection clause imposes no rigid rule of equality of taxation. Inequalities which may result from singling out one particular class for a reduction in taxation are not prohibited. Only if the classification has no rational basis and is patently arbitrary may it be set aside as unconstitutionally discriminatory. Port Construction Co. v. Government of the Virgin Islands, supra, 359 F.2d at 668.

One of the purposes behind the lower tax rate undoubtedly was to encourage new construction work on the Islands by lowering the costs of such work. We believe that the Legislature reasonably could have concluded that new construction work, as opposed to the repair of existing structures, could be stimulated most effectively by subsidizing general contractors rather than subcontractors. Most general contractors work on new construction, and at least some do not subcontract out various parts of the work. Subcontractors, on the other hand, may do repair work on existing buildings, as well as work on new projects. That a particular subcontractor, such as Deseo, performed ninety percent of its jobs on new construction does not mean that the legislative scheme was arbitrary or unreasonable.

The judgment of the district court will be reversed.

      . Prior to June 4, 1968, 33 V.I.C. § 43(a) provided in pertinent part:
      All persons engaged in business including those trading in articles, goods, merchandise or commodities shall report their gross receipts and pay a tax of two percent on the gross receipts of such business; Provided, however, That the rate of tax on foodstuffs and on building contractors shall be one percent.
      The Act of June 4, 1968, No. 2234, [1968] V.I. Laws, pt. II, at 38, amended subsection (a) to provide:
      Every individual and every firm, corporation, and other association doing business in the Virgin Islands shall report their gross receipts and pay a tax of two percent on the gross receipts of such business; Provided, however, That the rate of tax on building contractors and on foodstuffs . shall be one percent.
      Section 2 of the Act provided that the amendments to subsection (a) should be retroactive to July 1, 1955.


author: PER CURIAM.

text:
    INVESTORS THRIFT CORPORATION, Appellant, v. Joe B. HUNT, Insurance Commissioner of the State of Oklahoma, and Receiver of Community National Life Insurance Company, Substitute Defendant for Community National Life Insurance Company, Appellee.
    No. 74-1544.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 7, 1975.
    Decided Jan. 28, 1975.
    H. Clay Robinson, Fort Smith, Ark., for appellant.
    Don A. Smith, Fort Smith, Ark., for appellee.
    Before JOHNSEN, Senior Circuit Judge, STEPHENSON and WEBSTER, Circuit Judges.
   PER CURIAM.

In this action Investors Thrift Corporation seeks damages for Community National Life Insurance Company’s alleged anticipatory breach of a stock purchase agreement wherein Community National agreed to purchase all the voting stock of Investors Thrift if certain conditions were met. The District Court held that Investors Thrift had failed to sustain its burden of proof and dismissed this action as being without merit.

We affirm the dismissal on the basis of the District Court’s opinion. (Investors Thrift Corp. v. Hunt, 387 F.Supp. 517 (W.D. Ark. 1974)). Judge Harris has accurately stated the complicated facts which gave rise to this case and has properly applied the law to these facts. No purpose would be served in attempting to elaborate on his well-considered opinion.

      . This is the latest in a series of related cases. Other published opinions in this line include: Vanderboom v. Sexton, 460 F.2d 362 (8th Cir. 1972); Investors Thrift Corp. v. Sexton, 347 F.Supp. 1207 (W.D. Ark. 1972); In re Peoples Loan & Inv. Co., 316 F.Supp. 13 (W.D. Ark. 1970); Vanderboom v. Sexton, 294 F.Supp. 1178 (W.D. Ark. 1969), rev’d, 422 F.2d 1233 (8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970); In re Peoples Loan & Inv. Co., 292 F.Supp. 594 (W.D. Ark. 1968), rev’d, 410 F.2d 851 (8th Cir. 1969); City Nat’l Bank v. Vanderboom, 290 F.Supp. 592 (W.D. Ark. 1968), aff’d, 422 F.2d 221 (8th Cir.), cert. denied, 399 U.S. 905, 90 S.Ct. 2196, 26 L.Ed.2d 560 (1970); Miskimins v. City Nat’l Bank, 248 Ark. 1194, 456 S.W.2d 673 (1970). See generally Investors Thrift Corp. v. Hunt, 387 F.Supp. 517, 521, n. 8 and accompanying text (W.D. Ark. 1974).


text:
    SEAFARERS INTERNATIONAL UNION, AFL-CIO, Plaintiff-Appellee, v. Louis V. BALDOVIN, Jr., Regional Director, Region 23, National Labor Relations Board, Defendant-Appellant.
    No. 74-3709.
    United States Court of Appeals, Fifth Circuit.
    March 10, 1975.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.
   BY THE COURT:

The Court having now been advised that prior to the release date of its opinion [508 F.2d 125] on February 17, 1975 (1) the United States Court of Appeals for the District of Columbia finally dismissed Cause No. 74 — 1604, (2) the Sea-

farers International Union, AFL-CIO moved to dismiss this appeal, and (3) the appellant Regional Director moved the Court to vacate its stay order dated October 16, 1974 and remand this cause to the trial court with directions to dismiss, it appears that the order of the district court to furnish the materials sought under the Freedom of Information Act to the Court of Appeals for the District of Columbia is moot. The Seafarers Union’s motion to dismiss this appeal is granted, this Court’s opinion of February 17, 1975 is vacated, and the cause is remanded to the district court.


author: PER CURIAM:

text:
    DeKALB AGRESEARCH, INC., Plaintiff-Appellee, v. Ralph ABBOTT, Individually, and d/b/a Abbott Egg Farms, Defendant-Appellant.
    No. 74-2057.
    United States Court of Appeals, Fifth Circuit.
    April 16, 1975.
    R. B. Jones, Roger M. Monroe, Birmingham, Ala., for defendant-appellant.
    George C. Hawkins, Gadsden, Ala., Euel A. Screws, Jr., Montgomery, Ala., for plaintiff-appellee.
    Before BROWN, Chief Judge, and GODBOLD and CLARK, Circuit Judges.
   PER CURIAM:

We affirm on the basis of the District Court opinion. See, DeKalb Agresearch, Inc. v. Abbott, N.D.Ala., 1974, 391 F.Supp. 152.

Affirmed.


text:
    CASALINA CORPORATION, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
    No. 74-1973.
    United States Court of Appeals, Fourth Circuit.
    Argued March 4, 1975.
    Decided March 17, 1975.
    Leon Bizar, New York City, for appellant.
    Robert A. Bernstein, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Gilbert E. Andrews, and Bennett N. Hollander, Attys., Tax Div., U. S. Dept, of Justice, on brief), for appellee.
    Before WINTER, CRAVEN and RUSSELL, Circuit Judges.
   PER CURIAM:

The Tax Court denied (1) taxpayer’s claim for nonrecognition of its condemnation claims under Section 1033 of the Internal Revenue Code of 1954; (2) taxpayer’s allocation of part of its legal fees incurred in the condemnation proceedings to interest received on the awards and the consequent deduction as a current expense of the fees so allocated; (3) taxpayer’s claim that the interest received on the awards might be allocated to pre-judgment years; and (4) taxpayer’s deduction of interest on a mortgage for years prior to that in which payment was made when taxpayer was on an accrual basis and neither accrued nor deducted such interest in the prior years. Casalina Corporation, 60 T.C. 694 (1973).

After consideration of the record and the arguments, both written and oral, we see no error. We affirm on the opinion of the Tax Court.

Affirmed.


text:
    MORTGAGE SERVICES, INC., a West Virginia Corporation, Appellant, v. Ralph I. YARNELL, Appellee.
    No. 74-1884.
    United States Court of Appeals, Fourth Circuit.
    Argued March 6, 1975.
    Decided March 26, 1975.
    William L. Jacobs, Parkersburg, W. Va. (Louie S. Davitian, Parkersburg, W. Va., on brief), for appellant.
    Randall Metcalf (Arthur N. Gustke, Parkersburg, W. Va., on brief), for appellee.
    Before BRYAN and BUTZNER, Circuit Judges, and- CLARKE, District Judge.
   PER CURIAM:

The Appellant sought recovery from Appellee for alleged breach of contract for services. Appellee asserted several defenses including failure of Appellant to perform and fraudulent misrepresentation by Appellant.

The jury verdict on conflicting evidence was in favor of Appellee and the judgment entered on the verdict is the basis of this appeal.

Upon consideration of the briefs, record and oral argument, we find no error and accordingly, the judgment of the lower court is affirmed.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. WEINGARTEN, INC., Respondent.
    No. 73-1891.
    United States Court of Appeals, Fifth Circuit.
    April 21, 1975.
    Elliott Moore, Acting Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Louis V. Baldovin, Jr., Director, Region 23, N. L. R. B., Houston, Tex., for petitioner.
    Neil Martin, Houston, Tex., for respondent.
    Before BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.
   BY THE COURT:

The Supreme Court of the United States having reversed the judgment of this Court denying the petition for enforcement of the National Labor Relations Board, National Labor Relations Board v. J. Weingarten, Inc., 1975, 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171, and having remanded the cause with directions to enter a judgment enforcing the Board’s order, it is

Ordered and adjudged that the judgment of this Court denying enforcement of the Board’s order is hereby vacated and set aside, and the petition of the National Labor Relations Board for enforcement of its order is hereby granted. Costs are to be taxed against J. Weingarten, Inc.


text:
    In the Matter of FAS INTERNATIONAL, INC., Debtor. UNITED STATES TRUST COMPANY OF NEW YORK, Successor Indenture Trustee-Appellant, v. FAS INTERNATIONAL, INC., Debtor-Appellee.
    No. 657, Docket 74-2306.
    United States Court of Appeals, Second Circuit.
    Argued March 24, 1975.
    Decided March 25, 1975.
    James C. Sargent, New York City (Robert S. Newman, William M. Kahn, Dugald C. Brown, Whitman & Ransom, New York City, on the brief), for appellant.
    John F. Scheffel, New York City (Salvatore A. Adorno, Krause, Hirsch & Gross, New York City, on the brief), for appellee.
    Edward Roberts, III, Kelley, Drye, Warren, Clark, Carr & Ellis, and Peter J. Wiederhorn, New York City, on the brief for amicus curiae Interested Banks and Trust Companies.
    Before KAUFMAN, Chief Judge, MULLIGAN, Circuit Judge, and THOMSEN, District Judge.

       Of the District of Maryland, sitting by designation.

   PER CURIAM:

We affirm for the reasons stated in Judge Gurfein’s opinion below, 382 F.Supp. 77 (S.D.N.Y.1974).


text:
    In the Matter of ARBOR HOMES, INC., Bankrupt, Allan Rubin Homes, Inc., et al., Claimants-Appellants.
    No. 651 Docket 74-2194.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 25, 1975.
    Decided March 10, 1975.
    Robert P. Burns (Edward L. Marcus, New Haven, Conn., of counsel), for claimants-appellants.
    Fred B. Rosnick, Waterbury, Conn. (Frederick W. Krug, Waterbury, Conn., of counsel), for trustee-appellee.
    Before LUMBARD, OAKES and TIMBERS, Circuit Judges.
   PER CURIAM:

The United States District Court for the District of Connecticut, T. Emmet Clarie, Judge, denied a petition for review on the part of three related claimants, Allan Rubin Homes, Inc.; Allan Rubin Homes Milford, Inc.; and Allan Rubin Homes Clinton, Inc., and confirmed an order of Bankruptcy Judge Saul Seidman on the basis of his Memorandum dated January 8, 1974. We agree with Judge Clarie that the Bankruptcy Judge’s Memorandum was “well considered,” and we therefore affirm on the opinion below.

Judgment affirmed.