author: McENTEE, Circuit Judge.

text:
    Michael J. DALEY, Plaintiff, Appellant, v. CAPITOL BANK AND TRUST COMPANY, Defendant, Appellee.
    No. 74-1261.
    United States Court of Appeals, First Circuit.
    Argued Nov. 6, 1974.
    Decided Nov. 29, 1974.

      John D. O’Reilly, Jr., Boston, Mass., with whom Philip J. Murphy, Fitchburg, Mass., was on brief, for appellant.
    James R. DeGiacomo, Boston, Mass., with whom Judith K. Wyman and Roche, Carens & DeGiacomo, Boston, Mass., were on brief, for appellee.
    Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

Plaintiff Daley seeks to rescind certain loan transactions with the defendant bank and to recover damages allegedly resulting from these transactions. His claim is based on the bank’s alleged violations of Regulation U, 12 C.F.R. part 221, promulgated by the Board of Governors of the Federal Reserve System pursuant to § 7(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78g(a) (1970). The bank denied that the loan transactions violated Regulation U and by counterclaim sought to recover from Daley the balance of $116,231.97 due under these loans.

The case was tried to the court which found that three of the four loan transactions were not made in violation of Regulation U. As to the fourth loan, the second in chronological sequence, the court held that it was made in violation of Regulation U and permitted Daley to rescind this transaction. The court found for the bank on its counterclaim but permitted diminution by the amount of the fourth loan in the sum of $19,300 and entered judgment for the bank in the amount of $96,931.97. Daley appeals.

Section 29(b) of the Securities Exchange Act of 1934 renders any contract made in violation of pertinent regulations voidable at the option of the non-violating party. Goldman v. Bank of the Commonwealth, 332 F.Supp. 699 (E.D.Mich.1971), aff’d, 467 F.2d 439 (6th Cir. 1972). Regulation U, promulgated in 1936, regulates bank credit extended for the purpose of purchasing or carrying margin stock. The regulation defines margin stock principally as stock registered on national securities exchanges or appearing on a list of over-the-counter stocks. 12 C.F.R. § 221.3(d). The supplements to the regulation which are issued from time to time fix the specific level of margin requirements in terms of the “maximum loan value,”- the amount of credit which a lender may extend on the stock. For credit extended by a bank to be subject to Regulation U two conditions must be met. First, the credit must be “purpose credit,” i. e. credit extended for the purpose of purchasing or carrying margin stock. 12 C.F.R. § 221.1(a). The second condition is that the purpose loan must be secured directly or indirectly, in whole or in part, by any stock, whether or not it is margin stock. 12 C.F.R. § 221.1(a). A violation of Regulation U occurs when the amount of the purpose loan exceeds the maximum loan value of the stock securing the loan. 12 C.F.R. § 221.1(a). See Cooper v. Union Bank, 354 F.Supp. 669, 675 (C.D.Cal.1973).

Daley does not challenge the trial court’s conclusion that the proceeds of the three loans in question were neither intended nor used for the purpose of purchasing or carrying margin stock. Rather, he contends that they were transformed into purpose credits by virtue of the bank’s failure to segregate the collateral held for these credits from the collateral securing the single purpose credit. Since the bank treated all the loans as a single credit, he argues we are bound to do likewise and hold that the non-purpose credits were tainted by their aggregation with the purpose credit on the bank’s books and became subject to Regulation U. When so treated the total credit exceeds the maximum loan value of all the collateral, thus allegedly violating the regulation and entitling Daley to rescission of the entire credit.

No authority supports this reasoning. It is perfectly proper for a bank to extend purpose and non-purpose credits to a customer simultaneously or successively. 12 C.F.R. § 221.120(b), Goldman v. Bank of the Commonwealth, 467 F.2d 439, 442-443 (6th Cir. 1972). The Federal Reserve Board interpretation of the regulation specifically provides that the original purpose of the loan is controlling. 12 C.F.R. § 221.101(a). And the regulation itself states that the purpose of a credit is determined by substance rather than form. 12 C.F.R. § 221.3(b). Since these credits were admittedly never used to purchase or carry margin stocks, and could not have contributed to the evils which the statute and the regulation were designed to control (see discussion infra), it would exalt form over substance to allow the bank’s internal bookkeeping procedures to prevail over the court’s characterization based on actual purpose.

The bank did fail to identify the collateral securing the purpose loan as required by 12 C.F.R. § 221.3(n)(1). This provision is designed to prevent the evasion of the regulation that could result if a bank obtained extra stock collateral for a non-purpose loan while extending purpose credit ostensibly not secured by stock and hence not covered by the regulation. (No such evasion occurred here, where the bank stipulated that it held stock collateral securing the purpose credit and was found to have violated the regulation as to that credit by loaning more than the maximum loan value of the collateral.) The Board in its interpretation of this provision, 12 C.F.R. § 221.120, looked through such a failure to identify and concluded that the stock ostensibly securing only the non-purpose credit in actuality secured both credits, bringing the purpose credit within the regulation’s coverage. However, it did not go on to suggest what Daley would have us hold: that the availability of the same collateral as security for both credits could somehow bring .the non-purpose credits within the ambit of the regulation as well. What Daley is seeking to do is to penalize the bank twice. The bank has suffered in full by losing the improper loan in its entirety. No reason suggests itself why it should suffer further. The district court was correct in holding that the three credits in question were non-purpose loans.

Daley next contends that even if the loans were not purpose loans, the bank’s failure to obtain from him a so-called “purpose statement,” Form U-l, as to these loans violated 12 C.F.R. § 221.3(a) and entitled him to rescind. Although the requirement that a bank obtain and retain a declaration of purpose from any borrower who pledges stock as collateral is not limited in terms to purpose loans, we are not persuaded,, by this argument. Even if the bank violated the regulation’s technical record-keeping requirements, the credits themselves cannot fairly be said to have been extended in violation of the regulation so as to permit rescission under § 29(b) of the Exchange Act. Non-purpose credit is not a concern of the Act or Regulation U. Tartell v. Chelsea National Bank, 351 F.Supp. 1071, 1076 (S.D.N.Y.), aff’d mem., 470 F.2d 994 (2d Cir. 1972). The margin provisions were enacted primarily to stabilize the securities markets by regulating the flow of credit, and secondarily to protect margin stock purchasers. See Note, Federal Margin Requirements as a Basis for Civil Liability, 66 Colum.L.Rev. 1462, 1467-71 (1966). Since the credits were neither intended nor used to purchase margin stock, neither goal would be served by allowing Daley to rescind. In fact, the purpose statement requirement was adopted to benefit the lending bank by affording it a defense against rescission when the statement was accepted in good faith. Serzysko v. Chase Manhattan Bank, 290 F.Supp. 74, 89 (S.D.N.Y. 1968), aff'd mem., 409 F.2d 1360 (2d Cir.), cert. denied, 396 U.S. 904, 90 S.Ct. 218, 24 L.Ed.2d 180 (1969). We are aware of no authority supporting Daley’s attempt to use this shield of the bank as a sword against it. Nothing in the regulation renders the obligation Daley incurred improper, and the district court properly enforced it.

Affirmed.


source: Caselaw Access Project

author: ROSS, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Steven A. KLUGMAN, Appellant.
    No. 74-1529.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 18, 1974.
    Decided Nov. 20, 1974.

      Peter J. Thompson, Minneapolis, Minn., for appellant.
    Joseph T. Walbran, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, BRIGHT and ROSS, Circuit Judges.
   ROSS, Circuit Judge.

Steven Klugman was convicted of both counts of a two-count indictment charging him with distributing heroin, in violation of 21 U.S.C. § 841, and unlawfully carrying a firearm during the commission of a felony, in violation of 18 U.S.C. § 924(c)(2). From the judgment of conviction, Klugman appeals. For the reasons hereinafter set forth, we affirm.

In procuring these convictions, the government obtained the cooperation of Bernie Hartman, a paraplegic friend of Klugman’s co-defendant, Thomas G. Carroll. Hartman was apparently motivated by a desire to terminate Carroll’s addiction and secure treatment for him. On February 7, 1974, Carroll and Klugman were persuaded by Hartman to obtain heroin for Hartman’s “sick friend.” The sale was effectuated at Hartman’s Minneapolis apartment. Also present at the transaction was a government agent concealed behind a louvered door in Hartman’s closet. During the sale Klugman was carrying a semiautomatic pistol which he displayed to Hartman. Neither defendant was arrested at the sale. Later that evening an undercover agent arranged another transaction for a larger quantity the following day. Although this transaction was aborted the next day, Klugman and Carroll were stopped shortly thereafter in Klugman’s automobile for the execution of a preexisting local bench warrant for Carroll’s failure to appear in state court on an open bottle possession charge. The firearm, displayed the previous day, was discovered in the glove compartment of the automobile during the search following Carroll’s arrest. Upon the discovery of the pistol, Klugman was arrested.

On appeal, Klugman urges four grounds for reversal: first, that he was deprived of an appropriate lesser included offense instruction; second, that the evidence seized incidental to an allegedly sham arrest should have been suppressed; third, that the court failed to render a timely cautionary instruction relating to improper and allegedly prejudicial remarks by the prosecutor; and fourth, that 18 U.S.C. § 924(c)(2) is unconstitutionally vague and overbroad.

Lesser Included Offense Instruction.

Klugman was charged with knowingly, intentionally and unlawfully distributing one gram of her pin in violation of 21 U.S.C. § 841(a). At trial Klugman testified he was a heroin addict and to support his habit in the past, he had acted as a middleman in narcotics transfers in exchange for which he would receive one hit, a $10 supply, of heroin. Apart from that complicity and other transfers where he purchased narcotics for his personal use, Klugman testified that he had never participated in other distributions and that he only participated in this distribution after repeated entreaties of his friend, Hartman, the informant. He thus claimed he was entrapped by Hartman and his distribution of the narcotics was neither knowing nor intentional. An entrapment instruction was given to the jury. However, Klugman maintains that he was also entitled to a lesser included offense instruction on the grounds that if his intent to distribute did not exist, he was only guilty of simple possession of narcotics, in violation of 21 U.S.C. § 844(a). Because an element distinguishing the two crimes, wilfulness to distribute, was brought into dispute by his entrapment defense, he argues that he was entitled to an instruction on the lesser crime of possession. This argument, however, is not persuasive.

In United States v. Mondaine, 481 F.2d 617, 618 (8th Cir. 1973), Klugman contends, this Court implicitly recognized that possession of narcotics is a lesser included offense within 21 U.S.C. § 841(a), distribution. We have once previously noted that Mondaine did not address the propriety of the lesser included offense instruction and thus is not dispositive of the question. United States v. Rucker, 496 F.2d 1241, 1243 (8th Cir. 1974).

In general, a lesser included offense is proper where:

the charged. greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.

Sansone v. United States, 380 U.S. 343, 350, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965). Wilfulness to distribute, here, is disputed and is required for conviction under section 841(a) distribution and not under section 844(a) possession. But the facts of this case bring it squarely within one of the traditional variants of lesser included offense situations: where the lesser offense is presumptively necessarily included within the offense charged in the indictment yet, from the evidence adduced at the trial there is no rational basis upon which the jury could find the defendant guilty of the lesser offense. See 8 J. Moore, Moore’s Federal Practice ¶ 31.-03[2] at 31-12 (1974). Our rule on entitlement to a lesser included offense instruction embodies that principle. In this circuit to be entitled to a lesser included instruction, it must appear that:

(1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3).there is some evidence which would justify conviction of the lesser offense; (4) the proof of the element or elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense; and (5) there is mutuality .

United States v. Thompson, 492 F.2d 359, 362 (8th Cir. 1974). (Emphasis omitted.)

Here, for the jury to convict of the lesser offense, possession, it would have to ignore the undisputed evidence of actual distribution. In this respect the facts are similar to those in Sparf v. United States, 156 U.S. 51, 63-64, 15 S.Ct. 273, 39 L.Ed. 343 (1895). See also United States v. Rucker, supra, 496 F.2d at 1244; United States v. Whitaker, 144 U.S.App.D.C. 344, 447 F.2d 314, 317 n. 8 (1971); Driscoll v. United States, 356 F.2d 324, 327 (1st Cir. 1966). The only disputed element here which Klugman maintains entitled him to the lesser instruction was “wilfulness” under 21 U.S.C. § 841(a). Since 21 U.S.C. § 844(a) also requires that possession be knowing or intentional and since the facts of this case tending to show knowledge and intent are the same as to both possession and distribution,

it follows that a conviction of the misdemeanor [here § 844(a)] would clearly support a conviction for the felony [here § 841(a)], Under these circumstances a lesser-included-offense instruction was not required or proper, for in the federal system it is not the function of the jury to set the penalty. Berra v. United States, 351 U.S. [131], [at] 134-135, 76 S.Ct. [685], [at 687,] 100 L.Ed. 1013 [1956].

United States v. Bishop, 412 U.S. 346, 361, 93 S.Ct. 2008, 2018, 36 L.Ed.2d 941 (1973). (Footnote omitted.)

Search.

Prior to February 8, 1974, a local bench warrant had been issued for Carroll’s arrest for failure to appear in state court on an open bottle possession charge. When the anticipated second heroin transaction collapsed, two officers sought to execute that arrest warrant. Upon stopping Klugman’s car, the two occupants fell to the floor of- Klugman’s vehicle. Several police officers assisted in the arrest. Knowing Klugman and Carroll to have been armed, they removed Carroll from the car and simultaneously undertook a protective frisk and search of areas within the immediate reach of the arrestee. The firearm displayed the previous day was discovered in the glove compartment of the vehicle. Under the circumstances, the search was reasonable as police had probable cause to believe the car contained instruments of a crime. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Orricer v. Erickson, 471 F.2d 1204 (8th Cir. 1973). See also Chimel v. California, 395 U.S. 752, 762-763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

Prosecutor Argument.

During his closing argument the Assistant United States Attorney sought to bolster Hartman’s motives for cooperation with the government. After reiterating Hartman’s desire to secure treatment for his friend’s addiction, the prosecutor said:

That is thinking more like a social worker or clergyman rather than like a criminal defense attorney whose job it is to get a mao off, so he is not convicted and worry about his soul later. That is a lawyer’s job. But I might say that Mr. Hartman has almost a purer motive. He really wanted to save this fellow and couldn’t see another way to do it.

At the close of all the final arguments and after the jury had been dismissed for the day, but before the commencement of jury deliberations, Klugman moved for a mistrial based upon improper prosecutor statements. The motion and the request for cautionary instructions was denied. However, after the delivery of the court’s instructions to the jury, the court added, “Argument of counsel is not evidence.”

“Counsel for the accused is an essential component of the administration of criminal justice.” ABA Project on Standards for Criminal Justice, Standards Relating To The Defense Function § 1.1(a) (Approved Draft, 1971). The prosecutor’s comments were not at all proper in this light. To buttress the strength of the government’s case by denigrating the role of the accused’s counsel cannot be tolerated and was clearly error in this ease.

“[T]he effect of [this] error must be gauged,” however, “in the context of the entire trial, and not in isolation. [We must] resolve whether there were errors of such magnitude in the trial as to effect [sic] substantial rights . . . .” United States v. Phillips, 482 F.2d 191, 196 (8th Cir.), cert. denied, 414 U.S. 1114, 94 S.Ct. 846, 38 L.Ed.2d 741 (1973). After assessing the entire record, we are left with the impression that the error was not prejudicial. No immediate objection was made and no prompt curative instruction on the part of the district court was rendered. However, the court concluded that the context in which the statement was made was not odious and a curative instruction was ultimately delivered. The ameliorative conduct on the part of the district court coupled with the otherwise strong evidence of Klugman’s guilt cause us to conclude that the error was not so offensive and prejudicial on this record as to deny the accused a fair trial by preventing the jury from exercising freedom of judgment and thought in its deliberations. See also United States v. Chrisco, 493 F.2d 232, 237-238 (8th Cir. 1974); Birnbaum v. United States, 356 F.2d 856, 868 (8th Cir. 1966); Homan v. United States, 279 F.2d 767, 776 (8th Cir.), cert. denied, 364 U.S. 866, 81 S.Ct. 110, 5 L.Ed.2d 88 (1960).

Vagueness.

Finally Klugman maintains that 18 U.S.C. § 924(c) is unconstitutionally vague and overboard. We decline to consider this contention because even assuming that Klugman’s conviction under 18 U.S.C. § 924(c) was improper, reversal with respect to this issue is not required. Klugman’s sentences under each count were concurrent. Thus his conviction under Count I supports the sentence and judgment under the concurrent sentence doctrine. United States v. Simone, 495 F.2d 752, 753-754 (8th Cir. 1974); United States v. Irby, 480 F.2d 1101, 1102 (8th Cir. 1973); Kilcrease v. United States, 457 F.2d 1328, 1331 (8th Cir. 1972). See also Benton v. Maryland, 395 U.S. 784, 789-790, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

For the reasons hereinbefore expressed, the judgment of conviction is affirmed.


author: DANAHER, Senior Circuit Judge:

text:
    TRUCK DRIVERS LOCAL UNION NO. 807, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Petitioner, and Pension Fund of New York City Trucking Industry Local 807, Intervenor, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    Nos. 57, 437, Dockets 74-1001, 74-1211.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 18, 1974.
    Decided Nov. 6, 1974.

      J. Warren Mangan, Long Island City, N. Y., for petitioner.
    Arthur Liberstein, New York City (Zelby, Burstein, Liberstein & Hartman, New York City), for intervenor.
    Elinor H. Stillman, Atty., N. L. R. B. (Michael S. Winder, Alan D. Longman, Attys.; Peter G. Nash, Gen. Counsel; John S. Irving, Deputy Gen. Counsel; Patrick Hardin, Asst. Gen. Counsel; Elliott Moore, Deputy Associate Gen. Counsel, on the brief), for N. L. R. B.
    Before DANAHER , FEINBERG and MULLIGAN, Circuit Judges.

       Senior Circuit Judge for the District of Columbia Circuit, sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   DANAHER, Senior Circuit Judge:

Certain individual pension claimants charged that they unlawfully had been denied pension credits for service with a trucking company employer in that Local No. 807 had restrained and coerced employees in the exercise of their Section 7 rights. In due course the Regional Director notified the claimants that investigation had failed to establish their charges. Accordingly the Regional Director refused to issue a complaint. The several claimants appealed the Regional Director’s ruling to the General Counsel and each appeal was denied.

The Regional Director nevertheless issued a complaint alleging that Local No. 807 was in violation of Sections 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act by being a party to and by maintaining a Pension Fund, the Rules and Regulations for the administration of which provided pension credits as a preference to employees who were members of the Teamsters prior to January 1, 1937, as against employees who had not been members of the Union prior to that date.

After hearings, an Administrative Law Judge concluded that the record disclosed a per se violation of the Act. He also recommended that the Board issue a cease and desist order with a posting of the usual notices. But he also concluded, specifically, that Local 807 had “not engaged in any violation of the Act in the actual administration of the Fund”.

The Board adopted the findings and the conclusions of the Administrative Law Judge and issued its own cease and desist order. The Union was directed to refrain from participating in the pension program by allowing pension service credits arising out of union membership or any other discriminatory basis in violation of the Act so as to favor union members over nonunion employees employed under the same collective agreement or in the same collective-bargaining unit.

Our issue stems from certain language incorporated by the Trustees into Rules and Regulations of February 28, 1972, reading in pertinent part:

Section 2. Past Service
(a) It is recognized that it would be difficult for many, if not most, of the employees to establish their periods of Covered Employment prior to January 1, 1937. Consequently, anyone who was a member of Local 807 prior to the period commencing January 1, 1937 may, at the sole discretion of the Trustees, be given a year of Pension Credit for each year he was a member of Local 807 during this period. . Pension Credit shall also be granted for any period of time that an employee can prove that he worked in covered employment through employer records. (Emphasis added.)

It may readily be noticed that the Trustees were looking back some 35 years or more as they undertook evaluation of claims of pension credits. Each year of pension credit beyond 30 years was worth a substantial increment in benefits. Such an award obtained whether an applicant prior to January 1937 had been a member of a union or not, but evidence to establish eligibility quite properly was required. An applicant for pension benefits was required to fill out a form which included authorization to obtain Social Security information, but such data had not been available prior to January 1, 1937. Each applicant was bound to submit details which included his trucking-industry employment, his union initiation date and period of membership, if any, the name and address of his current employer and, in general, evidence pertinent to establish the applicant’s status prior to January 1, 1937. All evidentiary details were compiled and analyzed by the Fund’s administrative staff, and the applicant’s file thereafter was transmitted to the Fund’s Trustees for final determination.

As Section 2(a) supra noted, the Trustees recognized the difficulty confronting many if not most of such employees as they sought to establish their periods of covered employment prior to January 1, 1937.

Some employers had records reflecting the trucking-industry employment of a particular applicant prior to 1937. If so, Section 2(a) provided that Pension Credit “shall” be granted by the Trustees. Some employers, however, retained no such records that far back, indeed some earlier employers had gone out of business. Whether a pension claimant was or had been a nonunion employee or not, the Trustees were bound to evaluate the evidence, whatever it was and from whatever source derived. The administrative problem was alleviated in some measure, at least, if an applicant proffered evidence of pre-1937 union membership which the Trustees “at their sole discretion” were authorized to consider. If Section 2(a) had never been adopted, proof of pre-1937 union membership was some evidence of entitlement. Certainly such evidence created no “presumption” of covered employment.

The Administrative Law Judge analyzed the evidence with respect to pre1937 applications, some 32 in number. He noted that

each case appears to have been resolved on its own merits. It .turns out that the use of the initiation date benefits the union members. But it is not shown that such benefit is improper nor its use in making the pension credit grant improper.

There is no requirement that an applicant for a pension must be or have been a member of Local 807., Each claimant must establish his right to the satisfaction of the Trustees. We see no illegal discrimination in favor of employees who are represented by the Union for union and nonunion claimants participate in the Pension Fund on an equal basis.

Faced with the fact that there was no evidence to establish an instance of discrimination, the Board here has argued on brief that the challenged language makes it

reasonable to infer that current employees could conclude from the preference accorded pre-1937 union members in obtaining pension benefits now that it would be advantageous to become and remain union members in good standing with the expectation that their membership status may be similarly rewarded in the future. (Emphasis in the original.)

We reject the suggestion that it is “reasonable” to deduce that any “current employees”, union or nonunion, can assume a later amendment to Section 2(a) or anticipate its counterpart. For one thing, since 1937, Social Security records will have been compiled. The history of the administration of the Pension Fund belies a supposition that a discriminatory violation of the Act will be created. For another thing, it strains credulity that a trucking industry employee might be encouraged to join Local 807 in the expectation that some time, under circumstances not even apparent, much less real, some amendment of the Rules might provide evidence to establish his pension credit. The possibility of any employee even thinking of such an idea or acting upon it seems utterly remote and speculative. Surely we can not predicate a finding that a party is in violation of the law upon such a gossamer-like theory. The Board’s argument, supra, simply is not persuasive.

On this record we perceive no per se violation of the Act, either from the language of Section 2(a) or otherwise.

Enforcement denied.

      . The Union and various trucking employers and employer associations had established the Fund in 1950.

      . The Fund is administered by a Board of eight Trustees, four being designated by the empdoyers and four by the union. Each group of Trustees votes as a unit, with a majority of each unit being required for definitive action.

      . Although not necessarily apropos in the present situation, we find ourselves reminded of Judge Medina’s observation in N.L.R.B. v. Miranda Fuel Co., Inc., 326 F.2d 172, 175 (2 CA 1963):
      On the subject of fair and impartial representation the Board insists upon the per se approach. Like all cliches and short cuts in the law, designed to make life easy for the judicial officer who has to makq the decisions, this merely eliminates the thinking process necessary to get at the root of the matter.

      . The Board seeks enforcement of that order ; the Union and the Pension Fund ask that it be set aside.

      . The Administrative Law Judge in his adoption of that term had looked to the Board’s Becision and Order in the Nu-Car Carriers Case reported at 187 NLRB No. 117 (1071). There the Board liad invalidated as discriminatory in favor of Union members, regulatieras of the Fund which allowed Union members to prove entitlement to pension credits on the basis of “rebuttable presumption” that they were covered prior to 1952. That case upon review sub nom., Rosen v. N.L.R.B., 455 F.2d 615 (CA 3 1972), turned on evidence that the claimant, one Pagel, simply had not been employed prior to 1952 in a unit covered by a collective bargaining agreement. The Rosen court noted that just as here, there was no evidence that Union members not otherwise qualified received pre-1952 pension credits, nor was there evidence that Union employees situated similarly to Mr. Pagel received such pensions. Id. 455 F.2d 618.

      . Cf. Rosen v. N.L.R.B., supra, n. 5, 455 F.2d at 618.

      . We realize that the construction put upon a statute by the agency charged with its administration is ordinarily entitled to deference if that construction has a reasonable basis in law, Volkswagenwerk v. FMC, 390 U.S. 261, 272, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968). But, by the same tokeir, courts are not obliged to stand aside and rubberstamp the affirmance of an administrative decision under the circumstances there noted. Id.

      Compare the observations of Mr. Justice Douglas in Teamsters Local v. Labor Board, 365 U.S. 667, 676, 81 S.Ct. 835, 840, 6 L.Ed.2d 11 (1961). “We cannot assume that a union conducts its operations in violation of law or that the parties to this contract did not intend to adhere to its express language. Yet we would have to make those assumptions to agree with the Board that it is reasonable to infer the union will act discriminatorily”. (Emphasis added.)
      Although the Board liad found a per se violation, 365 U.S. at 669, 81 S.Ct. 835, the Court concluded that the Board is “confined to determining whether discrimination has in fact been practiced”. Id., 677, 81 S.Ct. 841.
      Here the Board had adopted the conclusion of the Administrative Law Judge that Local 807 “has not engaged in any violation of the Act in the actual administration of the Fund”. Cf. Rosen v. N.L.R.B., supra, 455 F.2d at 618; Local 138, Internat’l U. of Operating Engineers v. N.L.R.B., 321 F.2d 130, 133-134 (CA 2 1963).


author: PER CURIAM: SIMPSON, Circuit Judge

text:
    Mrs. Annie Laurie REWIS, as temporary administratrix of the Estate of Joann Rewis, Deceaséd, and Mrs. Annie Laurie Rewis and Joseph Sidney Rewis, Individually, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
    No. 73-2340.
    United States Court of Appeals, Fifth Circuit.
    Jan. 27, 1975.
    (Opinion November 18, 1974, 5 Cir., 1974, 503 F.2d 1202)
   ON PETITION FOR REHEARING

Before BROWN, Chief Judge, and TUTTLE and SIMPSON, Circuit Judges.

PER CURIAM:

It is ordered that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby

Denied.

SIMPSON, Circuit Judge

(dissenting):

For the reasons outlined by my dissent to the panel opinion, I respectfully register my emphatic dissent to the majority’s denial of the government’s petition for rehearing.


author: SKELTON, Judge.

text:
    Ronnie S. ARTIS v. The UNITED STATES.
    No. 247-73.
    United States Court of Claims.
    Dec. 18, 1974.
    J. Francis Pohlhaus, Washington, D. C. , atty.-of-record for plaintiff. Fred R. Joseph, Hyattsville, Md., and Nathaniel R. Jones, New York City, of counsel.
    Rose E. Adewale-Mendes, Washington, D. C., with whom was Asst. Atty. Gen. Carla A. Hills.
    Before LARAMORE, Senior Judge, and SKELTON and KUNZIG, Judges.
   SKELTON, Judge.

The plaintiff served as a yeoman in the United States Navy prior to December 21, 1972. He was tried by a special court-martial on December 21, 1972, and January 18 and 25, 1973, after being charged pursuant to 10 U.S.C. § 886 (1970) with four specifications of unauthorized absence from his unit. He was found guilty of two of the specifications and sentenced to confinement at hard labor for 30 days and to forfeiture of $80.00 pay per month for one month. His sentence was reduced to 23 days by the convening authority, but was otherwise approved. Subsequently, the trial record was forwarded for action under 10 U.S.C. § 865(c). The record was reviewed by a judge advocate and the finding of guilty and the sentence were found to be correct in law and fact.

The plaintiff did not apply for relief under 10 U.S.C. § 869, which authorizes review by the Judge Advocate General of the Navy. Neither did he seek to have his military records corrected pursuant to 10 U.S.C. § 1552. Instead, the plaintiff filed suit in this court for the recovery of the sum of $80.00 and for an order directing the Secretary of the Navy to expunge from his service record all Reference to the court-martial conviction. The case is before us on plaintiff’s motion for judgment on the pleadings and defendant’s motion for summary judgment.

The plaintiff’s petition contained three counts which are substantially as follows:

1. The plaintiff was not required to exhaust his administrative and military remedies by utilization of the remedies available under 10 U.S.C. § 869 before filing this suit.

2. The provisions of the Uniform Code of Military Justice that assign multiple roles to the convening authority in the initiation, prosecution and review of charges brought before a special court-martial are unconstitutional in that they make a fair trial impossible and deny to the defendant due process of law under the fifth amendment.

3. The admission into evidence, over plaintiff’s objection, of a certified copy of excerpts from his service record, for the truth of the information contained therein, denied him the right to confront the witnesses against him in violation of his rights under the sixth amendment.

Plaintiff moved the court to suspend proceedings with respect to count two because it is presently before the court in another case, which motion was granted, and, accordingly, that count is not before us.

We will now consider the first count set out above. The plaintiff admits that he did not seek relief under 10 U.S.C. § 869 before filing this suit, but contends that he was not required to do so. He says that the remedy under that statute is permissive and not mandatory. The plaintiff likens procedure under 10 U.S.C. § 869 to that provided in 10 U.S.C. § 1552 for the correction of military records, and argues that applications for relief under both statutes are permissive and not mandatory. The defendant agrees, and we have held, that the administrative remedy available under 10 U.S.C. § 1552 is not mandatory before suit is filed. See Girault v. United States, 135 F.Supp. 521, 526-527, 133 Ct.Cl. 135, 144—145 (1955), and many other cases. However, the defendant argues vigorously that the administrative remedies provided by 10 U.S.C. § 869 are appellate in nature in court-martial cases and must be pursued by one convicted in a court-martial trial before he can file a suit in this court that collaterally attacks the court-martial proceedings. The defendant says that the failure of plaintiff to seek the military remedies available to him under 10 U.S.C. § 869 constitutes a failure on his part to exhaust his administrative remedies, and that this failure deprives this court of jurisdiction over his case. It appears that this case is one of first impression in this court on this question.

The provisions of 10 U.S.C. § 869 and the regulation 32 C.F.R. § 719.144 applicable to this case are as follows:

§ 869. Art. 69. Review in the office of the Judge Advocate General.
Every record of trial by general court-martial, in which there has been a finding of guilty and a sentence, the appellate review of which is not otherwise provided for by section 866 of this title (article 66), shall be examined in the office of the Judge Advocate General. If any part of the findings or sentence is found unsupported in law, or if the Judge Advocate General so directs, the record shall be reviewed by a board of review in accordance with section 866 of this title (article 66), but in that event there may be no further review by the Court of Military Appeals except under section 867(b)(2) of this title (article 67(b)(2)). Notwithstanding section 876 of this title (article 76), the findings or sentence, or both, in a court-martial case which has been finally reviewed, but has not been reviewed by a Court of Military Review may be vacated or modified, in whole or in part, by the Judge Advocate General on the ground of newly discovered evidence, fraud on the court, lack of jurisdiction over the accused or the offense, or error prejudicial to the substantial rights of the accused.
§ 719.144 Application for relief under 10 U.S.C. 769 [sic] in cases which have been finally reviewed.
******
(b) Submission procedures. Applications for relief may be submitted to the Judge Advocate General by letter. If the accused is on active duty, the application shall be submitted via the applicant’s commanding officer, and the command that convened the court, and the command that took supervisory . authority action on the case. * * *

It is clear that 10 U.S.C. § 869 and regulation 32 C.F.R. § 719.144(b) provide an appellate procedure for anyone convicted in a court-martial proceeding. The relief is limited to the particular case under consideration. In this respect, the relief available is different to that provided by 10 U.S.C. § 1552, which authorizes correction boards to correct any and all injustices which a serviceman may have suffered during his period of service. The relief there is not limited to one particular case, and no doubt that is one of the reasons why it is permissive in nature.

It appears that by following the procedure provided in 10 U.S.C. § 869 and 32 C.F.R. § 719.144(b) the plaintiff could have made every argument before the Judge Advocate General that he is making in this court, and that it was possible for him to have received from the Judge Advocate General all of the relief he now asks this court to give him. In the latter event, this suit would have been obviated. See Noyd v. Bond, 395 U.S. 683, 694-696, 89 S.Ct. 1876, 23 L.Ed.2d 631 (1969); and Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950).

It will be observed that 10 U.S.C. § 869 provides in pertinent part:

* * * [T]he findings or sentence, or both, in a court-martial case which has been finally reviewed, but has not been reviewed by a Court of Military Review may be vacated or modified, in whole or in part, by the Judge Advocate General on the ground of * * lack of jurisdiction over the accused * * * or error prejudicial to the substantial rights of the accused. [Emphasis supplied.]

A careful reading of this statute convinces us that defendant’s argument that in enacting it Congress intended the relief that it provided would be a mandatory part of the military review process where relief was not available before the Court of Military Appeals, is correct.

In the case of Gusik v. Schilder, supra, the Supreme Court established the general rule that a federal civilian court should not entertain a habeas corpus petition from a military prisoner until all available remedies within the military court system have been exhausted.

In Noyd v. Bond, supra, the Supreme Court said:

We now turn to consider whether petitioner could properly seek his release in civilian courts without making any effort to invoke the assistance of the courts within the military system. Gusik v. Schilder, 340 U.S. 128, [71 S.Ct. 149, 95 L.Ed. 146] (1950), established the general rule that habeas corpus petitions from military prisoners should not be entertained by federal civilian courts until all available remedies within the military court system have been invoked in vain. Mr. Justice Douglas, for a unanimous Court, explained some of the important reasons which require civilian courts to respect the integrity ,of the military court system that ^Congress has established:
“An analogy is a petition for habeas corpus in the federal court challenging the jurisdiction of a state court. If the state procedure provides a remedy, which though available has not been exhausted, the federal courts will not interfere. * * * The policy underlying that rule is as pertinent to the collateral attack of military judgments as it is to collateral attack of judgments rendered in state courts.
* * * ff
******
* * * Congress, in the exercise of its power to “make Rules for the Government and Regulation of the land and naval Forces,” has never given this Court appellate jurisdiction to supervise the administration of criminal justice in the military. * * * [Footnote omitted.] [395 U.S. at 693—694, 89 S.Ct. at 1882-1883.]
******
* * * All of the reasons supporting this Court’s decision in Gusik v. Schilder, supra, are applicable here. If the military courts do vindicate petitioner’s claim, there will be no need for civilian judicial intervention. * * * [395 U.S. at 696, 89 S.Ct. at 1883.]

Finally, the Supreme Court held in that case:

* * * Since petitioner has at no time attempted to show that prompt and effective relief was unavailable from the Court of Military Appeals in his case, we hold that petitioner’s failure to exhaust this remedy before seeking the assistance of the civilian courts is not excused. [Footnote omitted.] [Emphasis supplied.] [395 U.S. at 698, 89 S.Ct. at 1885.]

The identical issue before the court in the instant case was presented to the Southern District Court of California in the case of Small v. Commanding General, 320 F.Supp. 1044 (S.D.Cal.1970), aff’d, 448 F.2d 1397 (9th Cir. 1971). In that case,-the petitioner, who had been convicted by a special court-martial, sought habeas corpus relief, without first availing himself of his right to have his case reviewed by the Judge Advocate General under 10 U.S.C. § 869. The court, in ruling that the petitioner was required to exhaust his administrative remedies before filing suit in a civilian federal court, said:

It is a well-settled rule that a petitioner must exhaust all available military relief before coming into this Court to challenge the judgment of that military tribunal. Noyd v. Bond, 395 U.S. 683, 693, 89 S.Ct. 1876, 23 L.Ed.2d 631 (1969). The policy underlying the exhaustion rule is twofold. The unused military procedure may be completely dispositive of the alleged defect, thus making intervention by the federal court wholly needless. If the military procedure proves to be adequate, potential friction between the federal and military systems is thus avoided. Gusik v. Schilder, 340 U.S. 128, 131-132, 71 S.Ct. 149, 95 L.Ed. 146 (1950). [Id., 320 F.Supp. at 1045.]

In that case the court concluded that since the petitioner had failed to exhaust all of his military remedies, he had failed to establish the jurisdiction of the court to hear his alleged constitutional claim.

It appears that except for a slight difference in the facts, the Small case is on all fours with the case before us. See also Scott v. Schlesinger, docket No. CA—4—2371, Northern District of Texas, decided October 1, 1973.

We hold that the plaintiff was required to exhaust all administrative and military remedies available under 10 U.S.C. § 869 and regulation 32 C.F.R. 719.144(b) before filing suit in this court, and that his failure to do so deprives this court of jurisdiction of his case. We conclude further that plaintiff’s suit was prematurely filed in this court because of his failure to exhaust his administrative and military remedies, and for that reason it must be dismissed.

In view of our conclusions set forth above, it is not necessary for us to consider nor decide on the merits the constitutional issue raised by the plaintiff in the third count of his petition. However, we feel constrained to say that if that issue was properly before the court for decision, we have grave doubts that we would hold that the question rises to the level of a constitutional issue. See United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969); Taylor v. United States, 199 Ct.Cl. 171 (1972); and Gallagher v. United States, 423 F.2d 1371, 191 Ct.Cl. 546 (1970), cert. denied, 400 U.S. 849, 91 S.Ct. 58, 27 L.Ed.2d 86. Our scope of examination of court-martial cases is very narrow indeed. This is so because of the finality language of the Uniform Code of Military Justice, 10 U.S.C. § 876, which provides as follows:

§ 876. Art. 76. Finality of proceedings, findings, and sentences.
The appellate review of records of trial provided by this chapter, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this chapter, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this chapter, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States, subject only to action upon a petition for a new trial as provided in section 873 of this title (article 73) and to action by the Secretary concerned as provided in section 874 of this title (article 74), and the authority of the President. Aug. 10, 1956, ch. 1041, 70 Stat. 64.

Because of this statute, we have no authority to retry the facts of a court-martial proceeding, nor to act as a reviewing court of the decision of the court-martial tribunal. We can examine court-martial proceedings only in those rare instances where a serviceman who has been convicted in a court-martial trial sues in our court for back pay and collaterally attacked the court-martial proceedings on the ground that he was deprived of his constitutional rights in such proceedings. Even then we cannot inquire into the court-martial proceedings unless the issues raised by the petitioner rise to constitutional levels. See United States v. Augenblick, supra; Taylor v. United States, supra; and Gallagher v. United States, supra.

We hold that the plaintiff was required to exhaust his administrative remedies under 10 U.S.C. § 869, and, having failed to do so, his suit was prematurely filed in this court, and by reason thereof we do not have jurisdiction of his claim.

Accordingly, plaintiff’s motion for judgment on the pleadings is denied; defendant’s motion for summary judgment as to counts one and three of plaintiff’s petition is granted and plaintiff’s petition as to those counts is dismissed without prejudice; and the case is remanded to the trial judge for further proceedings as to count two of the petition.


author: LANE, Judge. MILLER, Judge

text:
    CROWN RADIO CORPORATION, Appellant, v. The SOUNDSCRIBER CORPORATION, Appellee.
    Patent Appeal No. 74-584.
    United States Court of Customs and Patent Appeals.
    Dec. 26, 1974.
    Edward M. Prince, Washington, D. C. (Cushman, Darby & Cushman, Washington, D. C.), attorney of record, for appellant.
    John E. Benoit, Arlington, Va., attorney of record, for appellee. Robert H. Ware and F. Eugene Davis IV, Bridgeport, Conn. (Mattern, Ware & Davis, Bridgeport, Conn.), of counsel.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Associate Judges.
   LANE, Judge.

This is an appeal from the decision of the Trademark Trial and Appeal Board, abstracted at 181 USPQ 340 (1973), granting appellee’s (The Soundscriber Corporation) petition to cancel appellant’s (Crown Radio Corporation) registration No. 911,744 on the principal register of the mark “CROWNSCRIBER” for “tape recorders and tape players.” We affirm.

Appellant’s “CROWNSCRIBER” registration is dated May 25, 1971, and is based on an application filed January 6, 1970, with first use in commerce asserted to have been September 4, 1969. Appellee’s verified petition for cancellation identifies appellant’s registration, and then states that appellee is the owner of three trademark registrations of the mark “SOUNDSCRIBER,” that it is a manufacturer of tape recording machines, dictation equipment, tape recorders, tape players and related electronic and electrical equipment for industry and the armed services, and that it has used “SOUNDSCRIBER” as its trademark continuously for many years, upon information and belief, since about 1936.

Appellee did not submit copies of its aforementioned registrations with the verified petition for cancellation and appellee took no testimony during the time for its case-in-chief. Appellant answered the petition with a general denial and, at the close of appellee’s testimony period, appellant filed a motion for default judgment with the Trademark Trial and Appeal Board on the ground of “failure to take testimony.” This motion was denied by the board for the reason that after filing its answer appellant had filed a paper in which appellant had admitted the existence of appellee’s registrations, and that, therefore, under Section 7(b) of the Trademark Act of 1946, 15 U.S.C. § 1057(b), appellee was not in default. At final hearing, the board held that there was a reasonable likelihood of confusion and granted the petition for cancellation.

OPINION

The issue presented in this appeal is whether “CROWNSCRIBER” so resembles petitioner’s registered mark, “SOUNDSCRIBER,” as to be likely, when applied to tape recorders and tape players, to cause confusion, or to cause mistake, or to deceive.

Appellant has argued that appellee has failed to establish its claim that it has been damaged by the registration of “CROWNSCRIBER.” Section 14 of the Trademark Act of 1946, 15 U.S.C. § 1064, provides that a petition to cancel a registered mark may be filed by any person who believes he will be damaged. The verified petition for cancellation herein states that petitioner believes it will be damaged and states further that “CROWNSCRIBER” so resembles “SOUNDSCRIBER” as to be likely to cause mistake or confusion or to deceive purchasers. A petitioner need not prove actual damage.

We agree with the board that appellant has admitted the existence of appellee’s “SOUNDSCRIBER” registrations. Therefore, we agree with the board that the sole issue to be determined in this proceeding is whether or not there is a likelihood of confusion. When the issue of likelihood of confusion, is involved, consideration must be given to all the facts and circumstances in the case. See Massey Junior College, Inc. v. Fashion Institute of Technology, 492 F.2d 1399 (CCPA 1974).

Upon review of all the facts and circumstances, of the case, we find no error in the board’s ultimate conclusion that the similarity between the marks is sufficient to give rise to likelihood of confusion, mistake or deception as to the origin of the goods. The board said that the word “SCRIBER” in both marks is preceded by a five-letter word, which, while differing in meaning, bear a marked similarity in sound. The resulting similarity between the marks found by the board includes both the similarity in sound of the five-letter words and the identity of the common terminal portions. In considering the respective marks in their entireties, we agree that the marks have a marked similarity in sound, although they do differ in meaning. As we stated in General Electric Company Limited v. Jenaer Glaswerk Shott & Gen, 341 F.2d 152, 52 CCPA 954 (1965), confusing similarity cannot be predicated on auditory response alone and one must consider the impression on the mind where stimuli of the auditory nerve are registered. We conclude that the mind of the purchasing public would find the marks “CROWNSCRIBER” and “SOUNDSCRIBER” confusingly similar.

We also note that appellant’s alleged first use in 1969 is well subsequent to appellee’s filing dates beginning in 1955. The well-established rule of trademark law is that in case of doubt about likelihood of confusion, doubt should be resolved against the newcomer. Stanadyne, Inc. v. Lins, 490 F.2d 1396 (CCPA 1974).

In Miles Laboratories, Inc. v. Foley & Co., 144 F.2d 888, 32 CCPA 714 (1944), a cancellation proceeding cited by appellant’s counsel, this court stated that whether the marks were confusingly similar was the really vital issue in that case, and held the marks there, Vitamiles and Vitabuild, were distinctive in character and that confusion was not likely. We do not find that conclusion apposite in the present case involving different marks.

Affirmed.

MILLER, Judge

(concurring).

I agree with the majority, but feel it should be pointed out that, although appellant answered the petition with a general denial, appellant subsequently submitted an exhibit consisting of a search report disclosing photostatic copies of various marks, including appellee’s registrations of SOUNDSCRIBER which it had recited in its statement of belief that it would be damaged. As the board said, this constituted an admission of the existence of such registrations; but, even more importantly, unless otherwise shown, this presumably constituted an admission of the present existence of such registrations. See Tiffany & Co. v. Columbia Industries, 455 F.2d 582, 59 CCPA 851 (1972).

      . Registration No. 631,664 dated July 31, 1956 (filed December 12, 1955); registration No. 717,817 dated July 4, 1961 (filed October 11, 1960); and registration No. 685,953 dated September 29, 1959 (filed November 28, 1958).


author: HEANEY, Circuit Judge.

text:
    William WILLARD, Appellant, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Appellee.
    Nos. 74-1132, 74-1173, 74-1192 and 74-1193.
    United States Court of Appeals, Eighth Circuit.
    Dec. 4, 1974.

      David R. Freeman, Federal Public Defender, and Ray Conrad, Asst. Federal Public Defender, Springfield, Mo., filed typewritten briefs for appellant.
    Bert C. Hurn, U. S. Atty., and Frederick 0. Griffin, Jr., and Anthony P. Nugent, Jr., Asst. U. S. Attys., Springfield, Mo., filed typewritten briefs for appellee.
    Before HEANEY, BRIGHT and ROSS, Circuit Judges.
   HEANEY, Circuit Judge.

This habeas corpus appeal is before a screening panel of this Court pursuant to Eighth Circuit Rule 6. The Court on its own motion and pursuant to Eighth Circuit Rule 9(a) affirms the judgment of the District Court.

The appeal is a consolidated one from four separate denials of habeas corpus relief by the United States District Court for the Western District of Missouri. In three of the petitions before the trial court, Nos. 74-1132, 74-1192 and 74-1193, William Willard contended that he was denied due process in disciplinary proceedings at the United States Medical Center for Federal Prisoners at Springfield. He asked in all three that adverse reports placed in his records as a result of the disciplinary proceedings be expunged therefrom, and in No. 74-1193, that Medical Center authorities be required to adhere to minimal standards of due process in all future disciplinary hearings since all such proceedings, denied prisoners due process. In the fourth petition, No. 74-1173, Willard sought relief for cruel and unusual punishment, alleging unprovoked beatings by corrections officers would continue unless injunctive relief was granted.

The District Court, pursuant to its local rule, referred all petitions to a magistrate. The latter conducted eviden-tiary hearings on all petitions and decided :

(1) That Willard had not been denied procedural or substantive due process in Nos. 74-1132, 74-1192 and 74-1193;

(2) That inasmuch as the prison authorities had voluntarily agreed to expunge the disciplinary reports in Nos. 74-1192 and 74-1193 from the record, the issues with respect to them were moot;

(3) That no class action relief would be given in No. 74-1193, as no justi-ciable factual controversy remained in that case; and

(4) That relief would not be given on the cruel and unusual punishment claim because the wrong forms had been used in making application for relief, the wrongs alleged were not of a continuing nature cognizable under habeas corpus, and the claims were without merit.

The District Court accepted the magistrate’s recommendations with respect to each petition. It denied a request by Willard to hear the cruel and unusual punishment claim on a de novo basis, stating that improper forms had been used and that the wrongs alleged were not cognizable in habeas corpus because not of a continuing nature.

During the appellate process, Willard was transferred from Springfield to the Federal Prison at Leavenworth, Kansas.

Willard raises the same issues on appeal as he raised below. Additionally, he questions the propriety of the magistrate conducting evidentiary hearings in habeas corpus matters.

While the appeal was pending, the Supreme Court decided Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L. Ed.2d 935 (1974), and Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974), and this Court decided Proffitt v. Ciccone, 506 F.2d 1020 (8th Cir. 1974); Willis v. Ciccone, 506 F.2d 1011 (8th Cir. 1974), and Frazier v. Ciccone, 506 F.2d 1022 (8th Cir. 1974). On the basis of these decisions and for the reasons hereinafter stated, we affirm the decision of the District Court.

Willard’s personal claims in Nos. 74-1192 and 74-1193 have been mooted by the Medical Center’s expungement from his records of all references to the matters giving rise to those actions.

Number 74-1193 is not mooted with respect to the class action claims raised therein by the act of expunging, but the petitioner does not adequately represent the class of affected prisoners since he has been transferred to another facility. Moreover, a remand to consider the class action claims would be inappropriate because of the intervening decision of the Supreme Court in Wolff v. McDonnell, supra, and the actions taken by the Medical Center to meet the due process requirements of that decision. It is yet to be determined whether the Center does, in fact, meet these requirements. That decision will have to be made initially by the United States District Court for the Western District of Missouri in an appropriate action. The benefits of a prompt and fair administrative procedure to all concerned are obvious, and the Medical Center should be given a reasonable opportunity to develop one.

Willard’s claim in No. 74-1132 is not such as to entitle him to relief here. The record shows that the decision of the disciplinary board was neither arbitrary nor capricious. Moreover, the procedural safeguards necessary to satisfy pre-Wolff constitutional standards were met in the conduct of the disciplinary hearing. See Proffitt v. Ciccone, supra, 506 F.2d at 1021 & n. 1.

Willard’s habeas claim in No. 74-1173 with respect to cruel and unusual punishment is denied on the grounds of mootness. See Willis v. Ciccone, supra, 506 F.2d at 1019.


author: PER CURIAM.

text:
    John F. CIEMPA, Plaintiff-Appellant, v. Andrew E. CONFORTI, and Dorothy Drewniak, Defendants-Appellees.
    No. 74-1339.
    United States Court of Appeals, First Circuit.
    Argued Dec. 2, 1974.
    Decided Dec. 9, 1974.

      W. Wright Danenbarger, Manchester, N. H., with whom Wiggin, Nourie, Sun-deen, Pingree & Bigg, Manchester, N. H., for plaintiff-appellant.
    Clifford J. Ross, Manchester City Sol., for defendants-appellees.
    Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
   PER CURIAM.

This is an action brought pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983 by a prospective, and eventually unsuccessful, candidate for the New Hampshire legislature, alleging that the practices adopted in the ward in which he was running deprived him of due process. The complaint sought an injunction. The court held an evidentiary hearing, and then dismissed the complaint, both for failure to state a cause of action, and on the basis of the facts found. In light of the broad allegations of the complaint we might have some question as to the propriety of the first of these rulings, but we sustain the second.

It appeared that the plaintiff was running against a candidate who, at the time, was the Ward Clerk. The Moderator in charge of the election had a standing rule that candidates must stay beyond the door of the polling place, except when voting, but there was a further exception, and the cause of this dispute: the Ward Clerk is expected to work inside the polling place, even if a candidate. The court found,

“As Ward Clerk, Mrs. Drewniak spends all of Election Day in the polling place working under the direction of the Moderator. Her main tasks are to check off absentee ballots and to determine, by telephoning the City Clerk’s office, whether or not people who are not on the checklist should have been placed on the checklist for Ward 6. She has nothing to do with voting and has nothing to do with the checklist. She is not seated so that she has access to any voters prior to the time that they actually vote. She can, however, be seen by voters as they proceed by the checklist to the voting machines. She does not and, of course, could not do any electioneering in the polling place, but she does say hello to friends and neighbors or wave to them.”

Strictly, under these circumstances, greeting by speaking, waving, and presumably smiling, may be thought a mild form of electioneering. At the same time one could hardly expect a candidate who is spoken to, or waved to, not to respond. To ignore the greeter would be electioneering in reverse.

We must feel that perfection would dictate that the candidate not be in the polling place at all, or, at least, not be stationed where voters could see her before they had voted. We do not conceive our duty, however, to require us to supervise state elections to that degree. There are no racial overtones in this case, no deliberate discrimination, and no electioneering beyond the minimum involved in the carrying out of the candidate’s regular activities implicit in her current office. There are various ways in which individuals already in office have, or may be thought to have, certain minor advantages. That does not automatically make a federal case.

Affirmed.


author: VAN OOSTERHOUT, Senior Circuit Judge.

text:
    Edith L. McDOWELL, Executor of the Estate of Clarence A. McDowell, Deceased, Appellant, v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD COMPANY, Appellee.
    No. 74-1231.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 13, 1974.
    Decided Dec. 13, 1974.

      Robert E. Dreher, Des Moines, Iowa, for appellant.
    Randy Duncan, Des Moines, Iowa, for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and MEREDITH, Chief District Judge.

       The Honorable James H. Meredith, Chief Judge, Eastern District of Missouri, sitting by designation.

   VAN OOSTERHOUT, Senior Circuit Judge.

Plaintiff Edith L. McDowell, Executor of the estate of her husband, Clarence A. McDowell, has taken this timely appeal from final judgment dismissing her complaint for damages for wrongful death of Mr. McDowell and from denial of her motion for a new trial.

The collision between McDowell’s truck and the defendant’s train, which resulted in McDowell’s death, occurred on the Main Street crossing of defendant’s tracks at Dawson, Iowa, about 7:30 a. m. on June 30, 1970. Defendant’s track runs east and west; Main Street runs north and south. The train was traveling east and the decedent was traveling south on Main Street as he approached the railroad crossing. Plaintiff alleges that her husband’s death was proximately caused by the negligence of the railroad in failing to give timely warning of the approach of its passenger train by sounding a whistle or ringing a bell; by operating the train at an excessive speed; by permitting its automatic signal to operate frequently when no trains were approaching; in failing to keep weeds, bushes and trees trimmed so as not to obstruct the view of approaching trains; and by failing to keep a flagman posted at the crossing. Additionally, plaintiff claimed a right to recover under the last clear chance doctrine.

Defendant denied negligence and asserted decedent was guilty of contributory negligence as a matter of law which proximately caused his death.'

Jurisdiction based on diversity of citizenship and the jurisdictional amount is established.

This case was tried to a jury. Defendant moved for a directed verdict at the close of plaintiff’s case and again at the close of all the evidence. Included therein was the ground that plaintiff’s decedent was guilty of contributory negligence proximately causing his injury and death by reason of the crossing being protected by an approved and properly operating automatic signal, and decedent’s failure to heed such signal and stop as required by § 321.341, Code of Iowa. The trial court overruled the motions for directed verdict but instructed the jury that plaintiff’s decedent was guilty of contributory negligence by reason of his failure to stop in obedience to the automatic signal, and then went on to say:

The only issue for you to determine in considering whether this contributory negligence bars plaintiff’s claim is whether this negligence of plaintiff’s decedent was a proximate cause of the collision and resulting damages.
If you find that the contributory negligence of the plaintiff’s decedent was a proximate cause of the collision and resulting damages, you will find for the defendant.

The court also submitted the case to the jury on the last clear chance doctrine. The jury found for the defendant. Plaintiff’s motion for a new trial was denied.

Plaintiff for reversal asserts that the trial court committed error in the following respects:

I. In determining Mr. McDowell was guilty of contributory negligence as a matter of law and in not having the jury resolve the issue of whether such negligence was a proximate cause of the injury-

II. In refusing to submit to the jury the issue of negligence of the railroad in failing to construct and maintain a safe crossing surface.

III. In refusing to submit the issue of the railroad’s failure to provide safety measures at the crossing, such as a flagman, under the showing of extrahazardous conditions.

We reject all such contentions for the reasons hereinafter stated and affirm.

I.

We are satisfied from our examination of the briefs and record that the court was warranted in instructing the jury that decedent was guilty of contributory negligence per se by failing to stop his truck and remain standing and in traversing the crossing while the crossing gate was lowered, and the automatic signal was operative, all as required by § 321.341. The applicability of such statute was fully considered by this court in Chicago, Rock Island and Pacific Railroad Co. v. Breckenridge, 333 F.2d 990 (8th Cir. 1964). No change has been made in § 321.341 since Breckenridge. In Breckenridge, we considered and cited pertinent Iowa decisions and concluded that a motorist who approached a railroad crossing protected by approved and operative automatic signals and who failed to comply with § 321.341 was guilty of contributory negligence as a matter of law unless legal excuse, as defined in Kisling v. Thierman, 214 Iowa 911, 243 N.W. 552 (1932), is shown. In Breckenridge we set out in full § 321.341 and the Kisling standards for determining legal excuse. 333 F.2d at 992. At pages 995 and 996 we point out that evidence of obstruction of view and evidence that the signal operated on occasions when no trains were approaching does not constitute legal excuse. We quoted from Wachter v. McCuen, 250

Iowa 820, 96 N.W.2d 597, 601 (1959), as follows:

“ ‘Since the failure to comply with * * * a safety statute constitutes negligence per se, a party guilty * * cannot excuse himself * * * by showing that “he did what any reasonably prudent person would have done under * * * similar circumstances.” A legal excuse * * * must be something that would make it impossible to comply with the statute.’ ” [333 F.2d at 996],

See Van Patten v. Chicago, R. I. & P. R. R., 251 Iowa 1221, 102 N.W.2d 898 (1960).

It is quite true that some significant changes have been made in Iowa law with respect to the contributory negligence issue. As stated in Breckenridge under the then existing Iowa law, the burden was upon the plaintiff to plead and prove the injured person’s freedom from contributory negligence which contributed in any degree to his injury. In 1965 the Iowa legislature enacted § 619.-17 which abolished the pre-existing rule just discussed and provided that in the future the burden is placed on the defendant to plead and prove contributory negligence, and in addition to establish that the contributory negligence was a proximate cause of the injury.

The shifting of the burden of proof to defendant on the contributory negligence issue in no way alters or abrogates the long-standing rule that the violation of a safety statute constitutes negligence per se.

In our present case evidence that the automatic crossing signal was operating properly at the time the decedent approached the crossing is not disputed. The lights were flashing and the bell was ringing as decedent approached the crossing. A disinterested witness, Gene Long, testified that she saw the automatic signal and gate go into operation as the train approached and as the decedent approached the track. She heard the approaching train whistle loud and clear. She saw the decedent proceed to the crossing without stopping, hit the gate and veer diagonally to the east and go down the track. Larry Stickel observed the decedent proceed toward the closed gate without slackening his speed and hit the end of the gate and proceed down the track. A railroad inspector tested the gate operation shortly after the accident and found it to be operating perfectly.

It is established beyond dispute that the gate was down, that the signal was operating and that the train was approaching when the decedent hit the closed gate and proceeded down the track.

The circumstance that the gate was down and the signal was operating quite frequently when no train was approaching, such as when a repair train was parked near the crossing, does not constitute a legal excuse as defined by Iowa law for not heeding a proper automatic signal when a train is in fact approaching.

It is well-established Iowa law that a motorist approaching a known railroad crossing must exercise care for his safety and must look and listen for approaching trains before crossing the track. See Van Patten, supra, and cases cited, 102 N.W.2d at 905. Here the evidence discloses that the decedent by looking could have observed the approaching train a considerable distance away. The closed gate certainly was not an invitation to the decedent to proceed across the tracks without exercising any caution for his own safety.

The requirement of § 619.17 which placed the burden on the defendant to show plaintiff’s negligence was a proximate cause of the injury doubtless places a heavier burden on the defendant than the previous requirement that such negligence contributed “in any degree” to the injury. We do not disagree with plaintiff’s contention that proximate cause is a separate and distinct element which must be proved. We need not determine in this case whether upon the strong record made the court would be warranted in determining as a matter of law decedent’s negligence was a proximate cause of his injury. The court in fact submitted the proximate cause issue to the jury by instruction No. 12 which has heretofore been set out. Proximate cause is defined in the instructions and no exception has been taken to the instruction on proximate cause.

The court was warranted in determining plaintiff’s decedent was guilty of contributory negligence as a matter of law by reason of the violation of § 321.341. Whether such contributory negligence proximately caused decedent’s injury was submitted to and resolved by the jury.

II and III.

Plaintiff excepted to the court’s instructions on the ground that the court failed to instruct on two specifications of negligence, to wit, failure to keep the crossing in repair and failure to keep a flagman at the crossing. With respect to the repair specification, the court ruled there was no specification of negligence with respect to such issue.

As to both specifications, the court’s finding that failure to heed the automatic signal as required by statute and the jury’s determination by its verdict that such negligence was a proximate cause of the injury makes the court’s refusal to submit such requested instructions unimportant. Moreover, as pointed out in Division I, this court in Breckenridge and the Iowa court in Van Patten have held that where a signal device is installed and operative and gives warning of the approach of a train to a motorist, no flagman is required, at least absent highly unusual circumstances not present here.

The judgment is affirmed.


text:
    Nancy NOE, by her guardian ad litem, Plaintiff-Appellant, v. Laurel TRUE, Secretary, Department for Human Resources, et al., Defendants-Appellees.
    No. 74-1577.
    United States Court of Appeals, Sixth Circuit.
    Dec. 5, 1974.

      Robert Allen Sedler, Lexington, for appellant.
    Ed W. Hancock, Atty. Gen., Frankfort, Ky., Mortimer J. Stamm, Lynn T. Mitchell, Frankfort, Ky., for appellee.
    Before WEICK, EDWARDS and ENGEL, Circuit Judges.
   PER CURIAM.

Plaintiff-Appellant Nancy Noe appeals from a judgment of the United States District Court for the Eastern District of Kentucky denying her application for in-junctive relief, and dismissing her complaint. Nancy Noe is the pseudonym of a 14-year-old female child committed to the custody of the Department of Human Resources of the State of Kentucky, and under the supervision of its Bureau for Social Services. She brought this suit on behalf of herself and all others similarly situated, alleging that she was in the second trimester of pregnancy, had been appropriately counseled, and was desirous of obtaining an abortion. She further alleged that under Kentucky Revised Statute 208.450, the defendant Secretary of the Department of Human Resources was prohibited from consenting to or providing for the payment of her desired abortion and consequently refused her request. Plaintiff Noe sought below:

1. a declaration that the above statute is unconstitutional;
2. an injunction, restraining the enforcement of the statute, and
3. a mandatory injunction directing the defendant to arrange for the furnishing of a medical abortion to plaintiff.

The pertinent statute provides:

“When any child committed to the department requires medical or surgical care or treatment, the department may provide the same or arrange for the furnishing thereof by other public or private agencies, and may give consent to such medical or surgical treatment, except for the purpose of abortion or sterilization.”

In her suit below, plaintiff was represented by Attorney Robert Allen Sed-ler, attorney for Kentucky Civil Liberties Union. Mr. Sedler petitioned the court for appointment of himself as plaintiff’s guardian ad litem. That petition, however, was not ruled upon by the trial judge prior to the dismissal of the action.

In dismissing the complaint sua sponte, the trial court observed: “This court is ill-equipped to weigh the medical, psychological, and social considerations underlying a decision to expend public funds for an abortion . . .” The court further stated that it was “of the opinion that the complaint did not state a cause of action, and, in order to expedite a possible review of its decision the action should be dismissed.”

We reverse the judgment of the district court and remand with directions which herein follow.

We first note that while plaintiff Noe no longer seeks an abortion of the pregnancy that gave rise to this lawsuit, the passage of time having rendered such an abortion medically unsafe, this fact does not moot her cause of action. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

NECESSITY FOR THREE-JUDGE COURT

The complaint filed sought an injunction restraining enforcement of a state statute, and is thus governed by 28 U.S.C. §§ 2281 and 2284. Section 2281 provides:

“An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three' judges under section 2284 of this title.”

The single-judge district court was thus without power to dismiss the complaint on its merits for failure to state a cause of action, unless the constitutional attack was insubstantial. Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962). A claim is insubstantial for purposes of avoiding the three-judge court requirement:

only if “its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave [open] no room for the inference that the questions sought to be raised can be the subject of controversy.” Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1972).

The district court’s preliminary inquiry is limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case otherwise comes within the requirements of the three-judge statute. Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962). We hold that the requirements above stated were met here and that it was error for the district court not to have sought the convening of a three-judge district court, as provided in 28 U.S.C. § 2284. Moreover, it is of no consequence that neither the plaintiff nor the defendant in this case sought the convening of a three-judge court. The requirement is jurisdictional and cannot be waived. Grove Press, Inc. v. Flask, 417 F.2d 1062 (6th Cir. 1969).

APPOINTMENT OF GUARDIAN AD LITEM

Although the court was specifically asked to do so, it failed to consider the application for appointment of a guardian ad litem, and did not act in any other way to protect the interests of the minor plaintiff. Rule 17(c) of the Federal Rules of Civil Procedure provides in part:

“If an infant or incompetent person does not have a duly appointed representative, he may sue by his next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.”

It has been held that the failure to consider the necessity for a guardian ad li-tem and to make a determination appointing one, or finding that the minor’s interests were protected without one, is fatal to the judgment rendered under such circumstances. Roberts v. Ohio Casualty Ins. Co., 256 F.2d 35 (5th Cir. 1958). We hold that the district judge erred here in failing to consider and rule upon the guardian ad litem question. We deem the issue particularly critical in this case, where the legal issues are controversial in nature, the plaintiff is a minor, pregnant out of wedlock, without the benefit of a natural parent or guardian, and where her legal guardian is the defendant in the lawsuit. While normally the State of Kentucky might be expected to exercise the function of a parent, it is specifically precluded by statute from exercising any discretion in the critical abortion decision that faced plaintiff. Moreover, since the respective legal positions of the child and guardian are adverse in this lawsuit, it cannot be said that the plaintiff is “otherwise represented” in the action as provided in Rule 17(c). While it would not be at all improper for the court, upon consideration, to appoint the child’s attorney as her guardian ad litem, the mere presence of an attorney representing her in the action is insufficient of itself to protect her personal interests in the action. We stress the obligation of the trial judge to exercise his discretion, bearing in mind the very real need of a 14-year-old plaintiff to have her own personal rights and interests protected.

We note that an appointed guardian ad litem does not replace a general guardian for all purposes, but is “appointed as a representative of the court to act for the minor in the cause, with authority to engage counsel, file suit, and to prosecute, control and direct the litigation. As an officer of the court, the guardian ad litem has full responsibility to assist the court to ‘secure a just, speedy and inexpensive determination’ of the action.” Fong Sik Leung v. Dulles, 226 F.2d 74, 82 (9th Cir. 1955, concurring opinion). See also United States v. E. I. Dupont de Nemours and Co., 13 F.R.D. 98 at 105 (N.D.Ill.1952). Thus, through a guardian ad litem the court itself assumes ultimate responsibility for determinations made on behalf of the child, a role not ordinarily contemplated by the simple attorney-client relationship. It will therefore be necessary upon remand for the district court to consider this question fully, and to appoint Mr. Sedler or some other qualified and objective person as guardian ad litem for plaintiff, and to make such other orders as are necessary for plaintiff’s protection, in accordance with Rule 17(c) Federal Rules of Civil Procedure.

OTHER CONSIDERATIONS

The complaint filed seeks also to maintain the action as a class action. An appropriate determination of this issue should be made by the three-judge district court acting as such or through the district judge “as soon as practicable after the commencement of an action brought as a class action.” Federal Rules of Civil Procedure 23(c)(1).

We express no opinion concerning the constitutionality of the statute or concerning the other merits of the case except to hold that the constitutional issue is not insubstantial and that, thus, a three-judge district court must be requested by the trial court.

Accordingly, the judgment of the district court is reversed and remanded with directions that the district judge:

1. consider the motion for appointment of a guardian ad litem and take appropriate action thereon consistent with this opinion;
2. request the Chief Judge of the Circuit to impanel a three-judge court, pursuant to 28 U.S.C. § 2284, to hear and determine all issues raised in this case, including the appropriateness of the class action prayed for.