author: J. BLAINE ANDERSON, District Judge: HUFSTEDLER, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Steven Scott FARMER, Defendant-Appellant.
    No. 72-2149.
    United States Court of Appeals, Ninth Circuit.
    Argued Oct. 9, 1972.
    Decided May 31, 1973.
    Rehearing Denied July 9, 1973.
    Hufstedler, Circuit Judge, filed dissenting opinion.
    Jerry E. Berg (appeared), Palo Alto, Cal., for defendant-appellant.
    Janies L. Browning, Jr., U. S. Atty., Joseph E. Reeves (appeared), San Francisco, Cal., for plaintiff-appellee.

      Before HUFSTEDLER and TRASK, Circuit Judges, and ANDERSON, District Judge.

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

   J. BLAINE ANDERSON, District Judge:

The appellant, Steven Scott Farmer, was convicted of failure to report for induction into the Armed Forces in violation of 50 U.S.C.A. § 462(a). Farmer first registered with his local draft board in September of 1969 and was classified 1-A on February 4, 1970. On January 8, 1971, he was ordered to report for a preinduction physical on January 21, 1971. On January 11, 1971, in re-' sponse to the January 8th order, Farmer wrote the following letter to his local board:

“This letter is not an appeal or a request for special consideration. This letter is sent to you as a statement of my intentions. I will not present myself for your examination on January 21, 1971 or any other future date. Furthermore, if I am, pursuant to this letter, inducted into the armed forces I will also refuse that order. I will not go into the army. I will not serve the American Death Machine. I will not kill.”

This letter was placed in the appellant’s file by the clerk of the local board but was never communicated to the board. Furthermore, in line with the local board’s policy at that time, Farmer was not sent a conscientious objector form, SSS Form 150, since he did not explicitly request one. It is now the policy of the appellant’s local board to send a form when such a letter as Farmer’s is received.

After his failure to report for the physical, Farmer was ordered to report for induction on May 19, 1971, but failed to report.

Appellant presents this Court with two separate but similar claims of a denial of due process. The first issue

is the duty of the local board to furnish a registrant Form 150, the standard form for a claim of conscientious objector. Boswell v. United States, 390 F.2d 181 (9th Cir. 1968), overruled on different grounds, aptly states the board’s duty, to wit: a board must grant the registrant cm opportunity to file a Form, 150 and a refusal is a denial of due process. Boswell claimed he made a request for a Form 150 and that the clerk of the board' refused to give it to him. There is no claim by Farmer in this case, nor any evidence tending to show that he made a request for a Form 150. Therefore, Boswell, supra,, is little help in this matter since the real question we are dealing with is the duty of the board to furnish the registrant with a Form 150 when presented with a statement such as that made by Farmer. The board’s change in “policy” is set forth above. Nevertheless, in deciding the matter before us, we are not necessarily confined by the policies of the board at any particular time, but rather, what the minimum standards are required by procedural due process. United States v. McKinley, 447 F.2d 962 (1971), sets forth the position in the Ninth Circuit vis-a-vis the board’s duty to interpret registrant’s statements and furnish or not furnish C-0 forms accordingly. McKinley made the following statement on a questionnaire : “I am physically and mentally uncapable [sic] of killing another human being.” The argument was then raised that the foregoing statement required the board to furnish the registrant with a Form 150. At pp. 963-964, the Court held:

“Moreover, given the substance of the communication and the context in which it arose, we further believe that it would be wholly unreasonable to construe appellant’s statement as a request for a Form 150. To so hold would demand far too much of the local board in reviewing communication from registrants.”

In the case at bar, it would place an even more unreasonable burden on the local board in reviewing communications from registrants if the board could not rely on a clear expression of total rejection of the system as stated by Farmer. Farmer’s express and unequivocal language left no room for doubt — he did not want a Form 150, i. e., his letter was not “a request for special consideration.” There was nothing for the clerk of the board to bring to its attention. Farmer’s meaning and intent were direct and forceful. If he wanted no special consideration from the board, this Court should not hastily supply it. Surely some modicum of duty must be placed on the registrant. Registrants must be given some credit for intelligence. We should not assume that Farmer, with his vein, of thinking and level of intelligence, was naive and ill-informed. He had six quarters of university study at the time of trial. (RT. p. 4) For appellant to say that he really wanted, but did not know how to ask for, a Form 150, and that his letter, when viewed in its entirety, constituted a request for a C-0 form is strained semantic sophistry. Therefore, the appellant Farmer was not denied any procedural due process by the board’s failure to provide him with Form 150.

The second claim raised by the appellant that the board breached its duty to “receive and consider” Farmer’s letter causes somewhat more concern. Appellant’s letter was placed in his file by the clerk of the board, but was never communicated to the board. Several Ninth Circuit cases have dealt with this duty to “receive and consider”. United States v. Miller, 455 F.2d 358 (9th Cir. 1972); United States v. Norman, 412 F.2d 629 (9th Cir. 1969); United States v. Harding, 461 F.2d 993 (9th Cir. 1972). However, none of these cases lends authority to the question at bar since each of those cases involved either a request for a particular classification or additional information in support of a requested classification which was not considered by the board. Farmer’s letter, in his own language, was a positive “statement of my intentions”, not a request for anything. Figuratively speaking, he burnt his draft card. Therefore, we must look to other case law to decide what the board’s duty was with respect to appellant’s letter. The case of United States v. Stoppelman, 406 F.2d 127 (1st Cir. 1969), cert, denied 395 U.S. 981, 89 S.Ct. 2141, 23 L.Ed.2d 769, cited by the appellant, is nearly on all fours with the facts at bar. While it is true this Circuit is not bound by Stoppelman, it is nonetheless persuasive authority. Stoppelman delivered a letter to the clerk which stated the war in Vietnam was “criminal” and the Selective Service System was furnishing the “resources for this action and other suppressions of self-determination in the world” and turned in his draft card. This information was filed by the clerk but never communicated to the board itself. The registrant raised the same due process question that is being raised now. The court noted the serious consequences of a clerk not communicating such information to the board, but held at pp. 130-131:

“Appellant is quite right in pointing out that unilateral prior determination by a clerk that a communication is not a written request for classification reopening could effectively deprive a board of its responsibility to use its judgment. In this case, however, the letter was all too clear that no reopening of classification was sought hut that complete rejection of the system was the only course consistent with appellant’s stated views. ... To say that the clerk had a responsibility in this case to notify the board would in effect be to write a new regulation that all communications evidencing an intent not to comply with board orders and selective service regulations must speedily be brought to the board’s attention. Such a detailed and arbitrary-judicial mandate would, we think, be unwise.” (emphasis supplied)

The distinction as noted by Stoppelman appears to be one of disregard for the system or rejection of procedures as opposed to letters in request of a classification or in support of a requested classification. It is only in the latter circumstances that the board is put under a duty to “receive and consider”. Taking the substance and context of Farmer’s communication, there could not arise any duty of the board to “receive and consider” it nor treat it as a request for a Form 150; and hence, no denial of procedural due process. While it is true the Court in Stoppelman stated the registrant was entitled to a Form 150, that was in response to a specific request by his counsel and not as a result of the letter.

On the same basis, any claim by the appellant of the board’s failure to reopen his classification must be rejected. Here again, a board’s decision must be based on a following of the procedures, i. e., a request for a classification or an intent pointing to a classification. Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362. At 416, 90 S.Ct. at 1771 the Court, noted:

“Where a registrant makes nonfrivolous allegations of facts that have not been previously considered by his board, and that, if true, would be sufficient under regulation or statute to warrant granting the requested reclassification, the board must reopen the registrant’s classification. . . . ” (emphasis supplied)

As noted previously, Farmer made no request or attempt to request and, therefore, no decision with respect to reopening was forthcoming by the board.

The conviction is affirmed.

HUFSTEDLER, Circuit Judge

(dissenting) :

The majority opinion, in my view, cannot be reconciled with 32 C.F.R. § 1622.1 (c) or with our cases construing and applying it. The regulation states: “The local board will receive and consider all information, pertinent to the classification of a registrant, presented to it.” Farmer’s letter to his board contained new information indicating his opposition to killing; the information was pertinent to his classification, because it related to a potential conscientious objector claim. The board’s duty to receive and to consider new information that may affect the registrant’s status does not depend upon the language or the form that the registrant uses to bring the information to the board’s attention. A registrant is not expected to know the legal effect of the information he presents to his board. Communications between a registrant and his board are to be construed generously in the registrant’s favor; they are not to be scrutinized as if they were exchanges of pleadings between adversaries. After Farmer was notified of his induction, his board routinely sent conscientious objector forms to registrants who expressed opposition to killing regardless of any specific request therefor. United States v. Kelly (9th Cir. 1973) 473 F.2d 1225; United States v. Miller (9th Cir. 1972) 455 F.2d 358; United States v. Harding (9th Cir. 1972) 461 F.2d 993; and United States v. Norman (9th Cir. 1969) 412 F.2d 629, each held that a failure of clerical personnel to bring new information to the board’s attention was a denial of due process. Farmer’s letter did not expressly request reopening or reclassification, and the facts stated did not make out a prima facie claim for such relief. None of the cited cases require those showings before Section 1622.1(e) comes into play. (See also Eagles v. Samuels (1946) 329 U.S. 304, 67 S.Ct. 313, 91 L.Ed. 308; Mulloy v. United States (1970) 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362; Mizrahi v. United States (9th Cir. 1969) 409 F.2d 1219.) Initial consideration of the new information was not committed to the board’s clerical personnel, or, indeed, to this court; it was committed to the board, and the board never saw it.

If Farmer had expressly requested a Form 150, the majority acknowledges that the board’s failure to comply would deny him due process. It concludes that no due process violation is involved because Farmer’s letter cannot be construed as a request. I disagree. His board’s later policy is an administrative recognition that construction of such letters as requests for Form 150 is not only possible, it has become routine The burden of sending a form is very slight, and the consequences to the registrant who has a strong conscience and a poor pen are grave. We should not draw the due process line against those whose words are ill-chosen or even reckless if the language conveys the substance of a potential conscientious objector claim.

If serious problems of construction are involved in the interpretation of information submitted to the board, the interpretation is not a ministerial act. It is a discretionary act committed to the board.

      . § 1621.11, 32 C.F.B.. provides that the local board must furnish SSS Form 150 upon request.

      . § 1622.1(c), 32 O.F.R., states: “The local board will receive and consider all information, pertinent to the classification of a registrant, presented to it.”

      . On facts seemingly more favorable to appellant there, a unanimous panel of this Court recently reached the same conclusion in affirming a conviction. United States v. Perdue, 9 Cir. 1972, 409 F.2d 1195.
      The majority is not unmindful of, and has considered, the per curiam opinion in United States v. Kelly, 9 Cir., 1973, 473 F.2d 1225 and relied upon, in part, by Judge Hufstedler. We are of the opinion the case is distinguishable. Farmer furnished no new facts, no written request nor any relevant information. He emphatically forswore the system and wanted no part of it. Kelly did furnish “new facts”, i, e., he intended to complete his high school education, and did not renounce further responsibility to the system.

      . Applying this standard, I cannot equate Farmer’s letter with burning a draft card.


source: Caselaw Access Project

author: CLARK, Associate Justice. PELL, Circuit Judge

license: Public Domain

text:
    BOURNS, INC. and Marian E. Bourns, Plaintiffs-Appellants and CrossAppellees, v. ALLEN-BRADLEY COMPANY et al., Defendants-Appellees and Cross-Appellants.
    Nos. 72-1222, 72-1223.
    United States Court of Appeals, Seventh Circuit.
    Argued April 5, 1973.
    Decided June 14, 1973.
    Rehearing En Banc Denied July 17, 1973.
    Pell, Circuit Judge, filed an opinion concurring in part and dissenting in part.

      Donald J. Simpson, Lewis T. Stead-man, Chicago, Ill., Arthur H. Seidel, Milwaukee, Wis., Clemens Hufmann, Gerald Rose, Rolf O. Stadheim, Chicago, Ill., for Allen Bradley Co.
    Clyde F. Willian, Chicago, Ill., for Bourns.
    Before CLARK, Associate Justice, and PELL and SPRECHER, Circuit Judges.

       Associate Justice Tom C. Clark, United States Supreme Court, Retired, is sitting by designation.

   CLARK, Associate Justice.

Appellants Bourns, Inc. and Marian E. Bourns challenge the District Court’s application of the doctrine of collateral estoppel as applied in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), to bar this patent infringement suit which was filed in the United States District Court for the Northern District of Illinois against Allen-Bradley Company et al., appellees. Appellants alleged infringement of their “leadscrew actuated potentiometer,” Patent No. 2,777,926 (the ’926 patent). Among the defenses appellees pleaded collateral estoppel based on the final judgment entered against appellants in Bourns, Inc. v. Dale Electronics Inc., 308 F.Supp. 501 (D.Neb.1969). After the Supreme Court handed down the Blonder-Tongue decision, appellees filed amended answers further alleging that appellants had voluntarily dismissed their appeal to the United States Court of Appeals for the Eighth Circuit on May 4, 1970, and moved for summary judgment. The District Court, 348 F. Supp. 554, granted appellees’ motion, holding that Blonder-Tongue governed this case and that the Dale decision had invalidated all claims embraced in the ’926 patent. We agree that Blonder-Tongue bars appellants from relitigating the patent claims explicitly invalidated in Dale, but reverse the judgment below insofar as it bars appellant from relitigating the remaining ’926 claims.

1. The Dale Judgment.

In the Dale pleadings Bourns had alleged infringement on the basis of its patent generally, i. e., without singling out specific claims. Likewise, the defendants in Dale had counterclaimed for a declaration that the entire patent was invalid. However, the Dale judgment stated in relevant part:

“2. Claims 1, 2, 11, 14, 15, 16 and 20 of the United States Patent No. 2,777,926 are invalid * * * *
7. The Amended Complaint is dismissed with prejudice, and the Amended Counterclaim is sustained to the extent indicated.”

The District Court here found the Dale judgment ambiguous in its application to the ’926 claims not explicitly mentioned therein. On the basis of several isolated statements in the Dale opinion (e. g., “. . . the’926 patent is held to be invalid.”) it concluded that the Dale court intended to hold the entire patent invalid.

We disagree with the District Court’s interpretation and conclude that Dale is binding only as to the claims specifically mentioned in its judgment. The opinion in that ease begins: “Plaintiff relies upon claims 1, 2, 11, 14, 15, 16 and 20 of the ’926 patent.” Further down in the opening paragraph the opinion continues: “In determining the validity of the patent this Court must ascertain the essence and scope of the patent as stated in Che above-mentioned claims.” (Emphasis added.) Still further in the opinion the court says: “Commencing with the history and progress of this application through the patent office as finally embodied in claims 1, 2, 11, 14, 15, 16 and 20, it provides some insight into the scope of the patent.” And in the judgment the Dale court again sets out these claims as invalid. We think it clear from these references that where the court referred to the ’926 patent as being invalid, it was referring only to those claims specifically designated at the outset and re-stated in the final judgment. As Professor Moore teaches:

[A prior judgment] operates as a collateral estoppel as to, but only as to, those matters or points which were in issue or contraverted and upon the determination of which the initial judgment necessarily depended. [Emphasis added.]

1B Moore’s Federal Practice 3777 (2d ed. 1965); and, as Judge Learned Hand explained almost forty years before, “. . . [collateral] estoppel extends only to facts decided and necessary to the decision.” Irving Nat. Bank v. Law, 10 F.2d 721, 724 (2 Cir. 1926). Since the Dale court’s judgment by its terms did not depend on the invalidity of claims not specified in that judgment, appellants are not collaterally estopped from asserting the remaining claims of the ’926 patent.

2. Application of the Blonder-Tongue Collateral Estoppel Doctrine.

Appellants also urge that collateral estoppel should not be applied to bar their raising the same patent claims that were declared invalid in Dale. They rely on the statement in Blonder-Tongue that “the patentee-plaintiff must be permitted to demonstrate, if he can, that he did not have ‘a fair opportunity procedurally, substantively and evidentially to pursue his claim the first time.’” 402 U.S. at 333, 91 S.Ct. at 1445. Appellants argue that they lacked an incentive to fully litigate in Dale due to (1) an alleged anti-patent bias of the Eighth Circuit, (2) the relative insignificance of the Dale suit, (3) new procedural advantages made available since Dale was begun, (4) the alleged greater hospitality of the Seventh Circuit toward patents, and (5) their reliance on the pre-Blonder-Tongue case of Triplett v. Lowell, 297 U.S. 638, 56 S.Ct. 645, 80 L.Ed. 949 (1936), which required mutuality of estoppel. We need not pause to discuss these claims. They are fully answered by the District Court, which correctly noted that appellants themselves chose the Nebraska forum; that the Dale court applied Supreme Court standards of patent validity as enunciated in Graham v. John Deere Co., 383 U. S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); that the Dale litigation involved a potential recovery by appellants of approximately $1,000,000, and that “most if not all” of the evidence alleged by appellants to have been newly discovered was in existence and discoverable during the Dale litigation. The District Court concluded that appellants lost in Dale after a full and fair hearing and that the equities fully justify the application of collateral estoppel against them.

The District Court also concluded that the Supreme Court in Blonder-Tongue implicitly rejected reliance on its prior decision in Triplett v. Lowell, supra, as an adequate basis for avoiding the general rule fashioned in the later decision. See Monsanto Co. v. Dawson, Chemical Co., 443 F.2d 1035 (5 Cir. 1971), cert. denied 405 U.S. 974, 92 S.Ct. 1191, 31 L.Ed.2d 248 (1972). We agree. The Dale litigation was pending for seven years in a jurisdiction with no backlog; the trial itself lasted six days and produced a transcript of 610 pages; and the potential recovery was over $1,000,000. Thus, appellants had ample incentive to litigate the ease to the end. True, the Supreme Court held in Triplett that collateral estoppel did not preclude “relitigation of the validity of a patent claim previously held invalid in a suit against a different defendant.” Triplett v. Lowell, supra, at 644 of 297 U.S., 56 S.Ct. 645. However, in overruling Triplett, the Blonder-Tongue Court did not see fit to rule prospectively, though it has so limited recent rulings in other contexts where retrospective application would work hardship and inequity. Phoenix v. Kolodziejski, 399 U.S. 204, 213-215, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); Cipriano v. City of Houma, 395 U.S. 701, 706, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969). Indeed, it specifically commented that in the end the use of, the collateral estoppel doctrine “will necessarily rest on the trial courts’ sense of justice and equity.” 402 U.S. at 334, 91 S.Ct. at 1445. The District Court has carefully appraised the justice and equity of applying the doctrine here and has held against appellants. We have examined the record and conclude that its findings are fully supported therein.

Appellants dispute that they had full and fair judicial resolution of their claims. They suggest that they abandoned the Dale appeal in reliance on the Triplett rule. It may be that in some situations reliance on Triplett should relieve a patentee from the consequences of the Blonder-Tongue decision’s new collateral estoppel rules. But the circumstances surrounding the Dale litigation, particularly the large potential recovery and the time and effort already expended, convince us that appellants would have pursued their appeal regardless of the Triplett rule had they held any reasonable expectation of ultimate success. Since appellants abandoned their appeal because they saw no reasonable chance of prevailing on the merits, we believe it equitable both as a general matter and specifically under the Blonder-Tongue decision to apply the estoppel rule established in that decision.

The judgment below is reversed insofar as it bars appellants from asserting the patent claims other than those explicitly declared invalid in the Dale judgment. In other respects the judgment is affirmed.

PELL, Circuit Judge

(concurring in part and dissenting in part).

I concur in the majority opinion insofar as it reverses that part of the judgment of the district court which barred appellants from asserting patent claims other than those explicitly declared invalid in the Dale judgment. However, I respectfully dissent from the balance of the majority opinion.

In considering the contentions of the appellants that the judgment in the District Court of Nebraska does not collaterally estop them as to any claims of the patent asserted in the Northern District of Illinois, the following significant chronology should be kept in mind.

The decision in the Dale case, Bourns, Inc. v. Dale Electronics Incorporated, 308 F.Supp. 501 (D.Neb.1969), was handed down on December 29, 1969. The original decision of this court in University of Illinois Foundation v. Blonder-Tongue Laboratories, Inc., 422 F.2d 769 (7th Cir. 1970), was issued on February 13, 1970, and was modified on denial of rehearing on April 2, 1970.

The appellants dismissed their appeal from the Dale district court decision in the Eighth Circuit on May 4, 1970. The complaint which was the fountainhead of the present appeal was filed in the Northern District of Illinois on August 11, 1970.

The opinion in the Blonder-Tongue case in the United States Supreme Court, Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788, was handed down on May 3, 1971.

The Supreme Court in Blonder-Tongue overruled a precedent which had been on the books since 1936, Triplett v. Lowell, 297 U.S. 638, 56 S.Ct. 645, 80 L. Ed. 949 (1936). Triplett indicated that “the rules of the common law applicable to successive litigations concerning the same subject-matter” did not preclude “relitigation of the validity of a patent claim previously held invalid in a suit against a different defendant.” 297 U. S. at 644, 56 S.Ct. at 648. This court in its original Blonder-Tongue opinion, while observing that it would seem sound judicial policy that the adjudication of a patent validity issue against the plaintiff in one action where it was a party would provide a defense in any other action by the plaintiff for infringement of the same patent, nevertheless stated, “That, however, is not the law in this field.” 422 F.2d at 772.

In essence, the majority opinion in the present appeal concludes that the district court carefully appraised the justice and equity of applying the Blonder-Tongue doctrine to the present case and upon so doing reached a correct result. I cannot agree with the initial premise for, as I read the district court’s opinion, it concluded that the “justice in this matter is pre-empted by the Blonder-Tongue decision itself,” and plaintiffs’ reliance on pre-Blonder-Tongue decisions when abandoning their appeal “is contrary to the holding of that controlling decision which abrogated the prior law.”

I do not read the controlling ease so broadly. I note the following significant passages in the opinion of the Court. “The broader question is whether it is any longer tenable to afford a litigant more than one full and fair opportunity for judicial resolution of the same issue.” 402 U.S. at 328, 91 S.Ct. at 1442. “But the case before us involves neither due process nor ‘offensive use’ questions. Rather, it depends on the considerations weighing for and against permitting a patent holder to sue on his patent after it has once been held invalid following opportunity for full and fair trial.” 402 U.S. at 330, 91 S.Ct. at 1443. “Presumably he [the patentee] was prepared to litigate and to litigate to the finish against the defendant there involved.” 402 U.S. at 332, 91 S.Ct. at 1444. “Rather, the patenteeplaintiff must be permitted to demonstrate, if he can, that he did not have ‘a fair opportunity procedurally, substantively and evidentially to pursue his claim the first time.’ . . . This element in the estoppel decision will comprehend, we believe, the important concerns about the complexity of patent litigation and the posited hazard that the prior proceedings were seriously defective.” 402 U.S. at 333, 91 S.Ct. at 1445. “ ‘[T]he expense of defending a patent suit is often staggering to the small businessman.’ ” 402 U.S. at 334, 91 S. Ct. at 1445. (Emphases added.)

With further reference to the matter of expense if the Triplett rule were maintained, the Court observed the money expended in subsequent litigation could be put to better use, such as further research and development, and that subsequent defendants might determine it was preferable to pay royalties under a license rather than to incur the costs of litigation. 402 U.S. at 338, 91 S.Ct. 1434.

The Court also adverted to the fact that there would be some saving of judicial time “if even a few relatively lengthy patent suits may be fairly disposed of on pleas of estoppel.” 402 U.S. at 348, 91 S.Ct. at 1453.

Finally, the Court, since the issue had not been ventilated below, remanded the cause so that, inter alia, the patentee could have the opportunity to demonstrate “why an estoppel should not be imposed in this case.”

In sum, the Court in Blonder-Tongue did not, as the district court, seems to have done, lay down a hard and fast rule.

Assuming arguendo that the Supreme Court intended the sweep of Blonder-Tongue to be sufficiently broad to encompass all litigation the purpose of which was to relitigate a patent issue which had already elsewhere been found wanting, irrespective of whether that litigation was initiated before or after the change of the law, then applying the rationale which produced Blonder-Tongue, as specifically referred to hereinbefore, in my opinion the, plaintiffs should not be estopped in the present case. Obviously, of course, they might well have been estopped if the litigation had been started after the rendition of Blonder-Tongue, but that is not the posture of this case.

Theoretically, the plaintiffs had an opportunity for a full and fair judicial resolution of the issue in Dale. Certainly they had the opportunity for a full resolution. All they had to do was to continue expending the not inconsiderable money which would necessarily have been involved in briefing and arguing in the Eighth Circuit and then pursuing certiorari in the Supreme Court. They did not choose to do so for reasons which I find persuasive and which are outlined in the majority opinion. Pursuing the litigation, of course, would also have put Dale to considerable expense. The plaintiffs were not prepared to litigate to the finish against the defendant there involved for the reasons indicated. Nor is the cost rationale of Blonder-Tongue brought into full play here. This is no ease of a small businessman being forced willy-nilly into a licensing agreement. The very names of the corporate defendants would indicate otherwise; in addition, the action below was brought as a class action, presumably with the intent of putting an end one way or the other to the validity of the claims. Plaintiffs by their dismissal and their filing of the broad-breadth subsequent action were travelling economy class, as to themselves, the judiciary of the Eighth Circuit, Dale, and, to some extent, their individual prospective infringer-opponents .

While the plaintiffs had the full opportunity adverted to in Blonder-Tongue, it seems clear to me that we are not able to say with certainty that the second prong of fairness was equally present. It is obvious that new counsel who came onto the scene subsequent to the district court decision in Dale did not think so. The decision to dismiss the appeal and to file elsewhere against the remaining alleged infringers was made in the forepart of the year 1970, apparently about the time that this court decided that it did not agree with the result which had been reached on the patent involved in Blonder-Tongue by a district court in the Eighth Circuit.

The decision was made during the same period of time and the same patent litigation climatic conditions which compelled the chief judge of a district court in the Eighth Circuit to observe in Woodstream Corp. v. Herter’s, Inc., 312 F.Supp. 369, 370 (D.Minn.1970), modified, 446 F.2d 1142 (8th Cir. 1971), as follows:

“The courtrooms within the province of the Eighth Circuit Court of Appeals do not afford a congenial forum to the holder of a United States patent. A reading of the decided cases clearly reflects this. It is especially true since 1966 following the Supreme Court’s expressions in Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545. I can find no record of the Eighth Circuit Court of Appeals, upholding the validity of a patent since Graham. It did so sparingly before Graham.”

It may well be that all of the patent cases which happened to have been filed in the Eighth Circuit during the preceding decade were of a questionable variety and on that phase of the matter I do not comment. I do note, however, “the batting average” which competent counsel, relying on Triplett, must have taken into consideration. The same counsel could not have been unaware of the more favorable climate in the Seventh Circuit. See the discussion of the situation in the two circuits by this court in Scam Instrument Corp. v. Control Data Corp., 458 F.2d 885, 888 n.4 (7th Cir. 1972), in which it is indicated that the Eighth Circuit did sustain the validity-in part of a patent in 1971. This, however, was subsequent to Blonder-Tongue.

While the foregoing discussion was based on the arguendo assumption that Blonder-Tongue is retrospective, I do not think that it was so intended, nor that the Supreme Court would reach the result that it is. The district court in the present case, however, had no doubt, observing that the “Supreme Court could have softened the blow by ruling only prospectively in Blonder-Tongue, as it has done on several occasions.” If the district court merely meant that the Supreme Court in handing down Blonder-Tongue could have specified that it was prospective only, I, of course, would have to agree. In so doing, however, I would also note that the Court did not specify that the change of the law was retrospective either. The issue simply was not reached, and I am at a loss for the basis of the confidence of expression of the district court that the decision was retrospective. If the district court meant that because collateral estoppel could be considered as a defense to the plaintiff’s suit in Blonder-Tongue it must be always retrospective, which seemed to be a theory advanced by the defendants in oral argument, then I must certainly disagree with the result put forward by the district court. When new law is established or, more importantly, when existing law is changed, it always is retrospective as to the particular litigant who is unsuccessful. This is inherent, for courts do not customarily give advisory opinions. This is a far cry though from inferring that the decision is retrospective as to other litigants who were relying on the pre-existing law.

The tests for determining whether a “new” decision should be applied retrospectively have been the subject of judicial attention. Chief Justice Burger had occasion to advert to this facet of the law in Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 1467, 36 L.Ed.2d 151 (1973) in which it was stated:

“Claims that a particular holding of the Court should be applied retroactively -have been pressed on us frequently in recent years. Most often, we have been called upon to decide whether a decision defining new constitutional rights of a defendant in a criminal case should be applied to convictions of others that predated the new constitutional development. E. g., Robinson v. Neil, 409 U.S. 876 [93 S.Ct. 876, 35 L.Ed.2d 29] (1973); Adams v. Illinois, 405 U.S. 278 [92 S.Ct. 916, 31 L.Ed.2d 202] (1972); Desist v. United States, 394 U.S. 244 [89 S. Ct. 1030, 22 L.Ed.2d 248] (1969); Stovall v. Denno, 388 U.S. 293 [87 S. Ct. 1967, 18 L.Ed.2d 1199] (1967); Johnson v. New Jersey, 384 U.S. 719 [86 S.Ct. 1772, 16 L.Ed.2d 882] (1966); Tehan v. Shott, 382 U.S. 406 [86 S.Ct. 459, 15 L.Ed.2d 453] (1966); Linkletter v. Walker, 381 U. S. 618 [85 S.Ct. 1731, 14 L.Ed.2d 601] (1965). But ‘in the last few decades, we have recognized the doctrine of non-retroactivity outside the criminal area many times, in both constitutional and nonconstitutional cases.’ Chevron Oil Co. v. Huson, 404 U.S. 97, 106 [92 S.Ct. 349, 355, 30 L.Ed.2d 296] (1971); Hanover Shoe v. United Shoe Machinery Corp., 392 U.S. 481 [88 S. Ct. 2224, 20 L.Ed.2d 1231] (1968); Simpson v. Union Oil Co., 377 U.S. 13 [84 S.Ct. 1051, 12 L.Ed.2d 98] (1964); England v. State Board of Medical Examiners, 375 U.S. 411 (84 S.Ct. 461, 11 L.Ed.2d 440] (1964). We have approved nonretroactive relief in civil litigation, relating, for example, to the validity of municipal financing founded upon electoral procedures later declared unconstitutional, Cipriano v. City of Houma, 395 U.S. 701, [89 S. Ct. 1897, 23 L.Ed.2d 647] (1969), and City of Phoenix, Arizona v. Kolodziejski, 399 U.S. 204 [90 S.Ct. 1990, 26 L.Ed.2d 523] (1970); or to the validity of elections for local officials held under possibly discriminatory voting laws, Allen v. State Board of Elections, 393 U.S. 544 [89 S.Ct. 817, 22 L.Ed.2d 1] (1969). In each of these cases, the common request is that we reach back to disturb or to attach legal consequence to patterns of conduct premised either on unlawful statutes or on a different understanding of the controlling judge-made law than the rule that ultimately prevails.”

Tests for determining retroactivity are set forth in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971), as follows:

“In our cases dealing with the nonretroactivity question, we have generally considered three separate factors. First, the decision to be applied non-retroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, see, e.g., Hanover Shoe v. United Shoe Machinery Corp., supra, 393 U.S. at 496 [88 S.Ct., at 2233], or by deciding an issue of first impression whose resolution was not clearly foreshadowed, see, e.g., Allen v. State Board of Elections, supra, 393 U.S. at 572 [89 S.Ct., at 835]. Second, it has been stressed that ‘[w]e must . . . weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.’ Linkletter v. Walker, supra, 381 U.S. at 629 [85 S.Ct., at 1738], Finally, we have weighed the inequity imposed by retroactive application, for ‘[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the “injustice or hardship” by a holding of nonretroactivity.’ Cipriano v. City of Houma, supra, 395 U.S. at 706 [89 S.Ct. at 1900].

In an analogous situation this court recently considered the question in Bendix Corporation v. Balax, Inc., 471 F.2d 149 (7th Cir. 1972), and concluded that the holding in Lear, Inc. v. Adkins, 395 U.S. 653 (1969), should not be applied retroactively. Bendix has particular significance here because in Lear the Court held that a licensee is not es-topped to interpose the invalidity of the licensed patent as a defense to an action by the patentee-licensor to enforce the license agreement. The Court expressly overruled its 1950 holding to the contrary. The venerability of Triplett was fourteen years greater.

Applying the tests of Chevron to the present case: (a) a new principle of law was established by overruling clear past precedent on which litigants not only may but did in fact rely; (b) since litigants who have instituted lawsuits in reliance upon Triplett prior to Blonder-Tongue must of necessity be relatively limited in numbers, retrospective application would scarcely seem to further the operation of the principle enunciated; and (c) there is' an inherent inequitable result if the principle is applied retroactively with injustice being avoided by a holding of nonretroactivity.

It is to be noted that the Chevron test refers to a foreshadowing of the result but does so only in relation to the decision of a case of first impression. If “writing on the wall” is operative in the situation of a change of law also, then, although the Triplett rule may have been questioned by decisions and commentators, I am unaware of any clear-cut indication from the Supreme Court on which a lawyer could advise his client to the effect that Triplett would be overruled. “Rumblings,” as the district court referred to foreshadowing, is a chimerical basis for advice to a commercial client who in the conduct of his affairs requires predictability of as great certitude as possible if he is not to be exposed to unexpected and undesired expensive litigation.

As to foreshadowing, the situation was analogous in Lear, upon which Judge Sprecher commented in Bendix, 471 F.2d at 156, as follows:

“In Lear, there was an express overruling of a past precedent. Although the Court noted that ‘[l]ong before Hazeltine was decided, the estoppel doctrine had been so eroded that it could no longer be considered the “general rule” ’ (395 U.S. at 664, 89 S.Ct. at 1908), nevertheless in Hazeltine the Court characterized it as the general rule. Whether Hazeltine was ‘clear past precedent’ to the Supreme Court in 1971, the unqualified pronouncement in that ease undoubtedly made the doctrine clear enough to parties relying upon it from 1950 to 1971.” [Footnote omitted.]

If foreshadowing is pertinent in the change of law situation, then it would appear to me that the present case presents a stronger basis for finding no clear and compelling presaging of the change than in the Lear situation, where there had already been substantial erosion of the set-aside doctrine in 1950 at the time the rule was recognized as the general rule, although it was not actually set aside for another 19 years.

I have adverted to the matter of advice of counsel in the commercial field and, in ultimate analysis, I find that the most persuasive reason for not denying the plaintiffs here their full day in court. The reasons are more compelling than the ordinary deference to precedent stated by Justice Cardozo, “Adherence to precedent must ... be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.”

The essentiality of definite predictability was recognized by Mr. Justice Frankfurter in his separate opinion in Monroe v. Pape, 365 U.S. 167, 221-222, 81 S.Ct. 473, 503, 5 L.Ed.2d 492 (1961), when, speaking of the civil rights case before the Court, he observed, “This is not an area of commercial law in which, presumably, individuals may have arranged their affairs in reliance on the expected stability of decision.” Here the plaintiffs did arrange their affairs on what counsel justifiably could have taken as well-established law, and they should not now suffer because of a subsequent change of that law.

The principle of continuance of adherence to precedent was overridden in its significance by policy factors deemed of greater importance in Blonder-Tongue. The resultant change of law, however, in my opinion, should not be controlling on the relatively narrow issue here involved in the situation of commitments made in reliance upon the prior law, which commitments were made prior to the change in the law.

      . The Nature of the Judicial Process 34 (1921).


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Darwin EADS, Defendant-Appellant.
    No. 72-2559
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 6, 1973.

      Daryl Gold, Shreveport, La. (Court-appointed, but not under Act), for defendant-appellant.
    Donald E. Walter, U. S. Atty., Perry Pringle, Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

On February 9, 1966, Appellant Eads appeared before the district court with his attorney to be arraigned on an information charging him with six counts of interstate transportation of a stolen motor vehicle, in violation of 18 U.S.C. § 2312. A guilty plea was entered on all six counts, and the court sentenced him to serve five years on the first count. As to the remaining five counts, the court suspended imposition of sentence, and ordered that he be placed on probation for a period of five years after completion of the sentence imposed On the first count. Less than three weeks later, on February 28, 1966, Eads again appeared before the district court to be arraigned on an additional Dyer Act charge, transferred to that court pursuant to Rule 20, F.R.Cr.P. He waived his right to be represented by counsel, and entered another guilty plea. Imposition of sentence in that case was suspended, and the appellant placed on probation for five years, commencing after his release from confinement on the first count of his other conviction.

After he had been free from custody for some undisclosed period, a warrant was issued against the appellant on September 2, 1971, charging him with violating his probation by leaving the district without permission, and being arrested in New Orleans in possession of illegal firearms. On July 7, 1972, the district court conducted a probation revocation hearing wherein the appellant was represented by court-appointed counsel. After hearing testimony which sufficiently showed that the conditions of probation had been violated, the court revoked the appellant’s probation. Eads was then sentenced to serve five concurrent five-year sentences on his February 9, 1966 convictions, running consecutively to a five-year sentence on his February 28, 1966 conviction. Thereafter, the appellant filed a pro se notice of appeal and the court appointed another attorney to represent him on appeal.

Counsel has now moved this .Court for leave to withdraw on grounds that the appeal is frivolous. Cognizant that the appellant’s probation revocatiqn amounted to a “deferred sentencing” under Mempa v. Rhay, 1967, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, wherefore this appeal is in the nature of direct criminal one, United States v. Gras, 5th Cir. 1971, 446 F.2d 7, counsel has filed a brief in conformity with Anders v. California, 1967, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. Therein he states that after a conscientious examination of the transcript of the appellant’s arraignments as well as the record of the probation revocation proceedings, he can find no issue which might arguably support the appeal. The appellant himself has been advised of his right to respond to counsel’s motion by raising any points which he claims are appealable, but has only replied with a motion for appointment of new counsel.

We have carefully, reviewed the entire record, and conclude that there is no arguable merit for reversal in connection with the appellant’s original arraignment proceedings where he pleaded guilty, nor with the probation revocation proceedings. Therefore, as to those aspects of this case, we dismiss the appeal as frivolous under Local Rule 20. See United States v. Mills, 5th Cir. 1971, 446 F.2d 1397; United States v. Minor, 5th Cir. 1971, 444 F.2d 521.

Although the issue was not raised by counsel, this Court on its own independent examination of the record has observed that when the appellant was sentenced after the revocation of his probation, the district court failed to comply with the mandates of Rule 32(a)(1), F.R.Cr.P. That rule provides in part that “[b]efore imposing sentence the court shall afford counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment.”

In the case sub judice, no such opportunity was afforded either the appellant or the attorney representing him. As this Court noted in Cuozzo v. United States, 5th Cir. 1963, 325 F.2d 274, 275,

“Since the holding of the Supreme Court in the case of Green v. United States, 1961, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670, it has been clear at least on a direct appeal that :
‘Trial judges before sentencing should, as a matter of good judicial administration, unambiguously address themselves to the defendant. Hereafter trial judges should leave no room for doubt that the defendant has been issued a personal invitation to speak prior to sentencing.’ ” [footnote omitted]

See also Haywood v. United States, 5th Cir. 1968, 393 F.2d 780.

Therefore, the appeals from the judgments of conviction and from the judgment revoking the appellant’s probation are dismissed under Local Rule 20. However, the sentences imposed upon those convictions are vacated and the cause remanded to the district court for resentencing after affording the appellant his right to allocution. Since the proceedings in this Court are terminated, we grant counsel’s motion to withdraw from the case, without prejudice to the district court’s discretionary authority to reappoint him for the resentencing proceedings. The appellant’s motion for appointment of new counsel is denied without prejudice to his right to present such a motion to the district court.

Dismissed in part; vacated and remanded in part.


author: HASTINGS, Senior Circuit Judge.

text:
    Malcolm SIMMONS and Doris Simmons, Plaintiffs-Appellants, v. Teresa D. FENTON and James L. Garrison, Defendants-Appellees.
    No. 72-1392.
    United States Court of Appeals, Seventh Circuit.
    Argued April 20, 1973.
    Decided June 15, 1973.

      Herbert Schultzman, Paducah, Ky., Burton C. Bernard, Granite City, Ill., for plaintiffs-appellants.
    John E. Jacobsen, Mt. Vernon, Ill., for defendants-appellees.
    Before HASTINGS and MURRAH, Senior Circuit Judges, and PELL, Circuit Judge.

       The Honorable Alfred P. Murrah, Senior Circuit Judge for the Tenth Circuit, is sitting by designation.

   HASTINGS, Senior Circuit Judge.

We are presented with a novel question concerning the amendment of a complaint in a diversity tort action and the date to which it may or may not relate back pursuant to Rule 15(c), Federal Rules of Civil Procedure, Title 28, U. S.C.A. The relevant part of such rule reads:

“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.”

This cause of action arose out of the collision of three automobiles in Jefferson County, Illinois, on August 28, 1968. Plaintiffs were the occupants of one of the cars and were allegedly seriously injured. Teresa D. Fenton and James L. Garrison were alleged to have been the drivers of the other two cars involved. Plaintiffs each brought suit against defendants to recover damages for their alleged personal injuries. The suit was filed August 28, 1970, in a federal district court in Illinois. Plaintiffs were residents and citizens of Kentucky, and defendants were domiciled in Illinois. Under the applicable statute of limitations the action was filed on the last day of the two-year limitation period.

On September 1, 1970, the fourth day after the expiration of the limitations statute, a summons was delivered to the United States Marshal for service upon defendant Teresa D. Fenton. Three weeks later, on September 22, 1970, a deputy marshal returned the summons showing that he had served it on “Teresa D. Fenton by handing to and leaving a true and correct copy thereof with Mr. William Fenton, Husband of the defendant Teresa D. Fenton, personally at 1110 Trout Street Johnson City, Illinois in the said District at 2:45 p. m. on the 22nd day of September, 1970.”

Timely answer to the complaint was filed by defendant Teresa D. Fenton denying, inter alia, that she was the driver of the car which collided with that being driven by one of the plaintiffs and that she was guilty of the alleged negligence. On October 12, 1971, said defendant filed a motion for summary judgment.

In her motion for summary judgment, supported by an affidavit of Doris J. Fenton (her mother), defendant Teresa D. Fenton stated in substance: (1) that at the time of the occurrence described in the complaint she was 12 years of age and was riding in the back seat of an automobile driven by her mother, Doris J. Fenton; and (2) that she was not driving the automobile as alleged in the complaint and in fact did not know how to drive a car and had nothing whatever to do with its operation.

Plaintiffs countered by filing a “Motion to Correct Misnomer by Substituting Proper Christian Name.” In such motion plaintiffs requested leave “to file an amended complaint relating back to the original” filed by them on August 28, 1970, identical in every respect except to change the name of the defendant from Teresa D. Fenton to Doris J. Fenton wherever it appeared; and they sought to make similar changes in the summons and the return thereon. In a supporting memorandum plaintiffs alleged that the correct name of the defendant intended to be sued was Doris J. Fenton, the driver of the Fenton car and wife of William Fenton of Johnson City, Illinois. William was a passenger in the front seat, and two children (one of whom was 12-year-old Teresa) were riding as passengers in the rear seat at the time of the accident. The memorandum further stated that, by plaintiffs’ counsel’s “misadventure” in drafting the complaint, Mrs. Fenton was identified by her daughter’s Christian name. The memorandum also stated that this mistake was first discovered when defendant Teresa D. Fenton’s motion for summary judgment was filed. An affidavit of the deputy marshal and a counter-affidavit of William Fenton were filed with reference to the service of the summons at the Fenton residence on September 22, 1970. Additional reference was made to an investigation by the Fentons’ liability insurance carrier and to unproductive negotiations for settlement of plaintiffs’ claims. It was also stated that a passenger in the Garrison car had previously sued Doris J. Fenton in an Illinois state court.

Plaintiffs summarize their position by the following statement on brief: “Inasmuch as the plaintiffs seek only to correct the Christian name of the intended defendant who was actually served with process and who both personally and through her representatives had full knowledge that these plaintiffs were in process of instituting suit against her; that her insurance representatives had fully and thoroughly investigated the circumstances attending the cause of plaintiff’s complaint, it is believed that the granting of an amendment relating back to the original complaint will do no violence to the intendment of Rule 15(c) and that the circumstances of this case in fact fall squarely within the intent of said amendment.” They conclude by conceding “in deference to intellectual honesty, that the defendant, Teresa Fen-ton, is technically entitled to the summary judgment which she seeks.” How-ever, under the circumstances found present here and agreeable with the rationale of the cases they cite,* plaintiffs continue to urge that Rule 15(c) requires that when an intended defendant is served with process under a mistaken name a plaintiff is entitled to the requested amendments of both the complaint and the service of process.

Plaintiffs seek to do more than merely correct a mistake in the Christian name of an intended defendant caused by inadvertence of counsel. They are attempting to substitute parties defendant after the statute of limitations has run. A reading of Rule 15(c) expressly conditions the relation back of “an amendment changing the party against whom a claim is asserted” upon the concurrence of three prerequisites, viz.: (1) the amended claim must arise out of the same occurrence set forth in the original pleading; (2) within the period provided by law for commencing an action against him, the purported substitute defendant must have received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and (3) such purported substitute defendant must have or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

Clearly, the requirements of prerequisite (1) have been fully met. It is equally clear to us that the requirements of prerequisites (2) and (3) have not been met. The time within which the action against Doris J. Fenton necessarily had to have been brought expired on August 28, 1970. Even if it might be said that she should have known immediately of the case of mistaken identity when service was made upon her 12-year-old daughter, or, to go further, even if the service might be said to have been upon her, Rule 15<c) is not satisfied, since actual service on whoever was served was not effected until September 22, 1970, at least three weeks after the tolling of the statute of limitations. Further, since Doris J. Fenton is not now before the court and, in fact, has never yet been served with process, there is clearly prejudice to her if the amendment is allowed. To allow the amendment will be to deprive her of the defense of the statute of limitations. Such a defense is a complete bar to the action, and to deny it makes the prejudice complete and final. This is in direct conflict with the language of the rule that she “will not be prejudiced in maintaining [her] defense on the merits.”

An adequate consideration of the basic principles to be applied in cases involving a change or alteration of the parties to an action pursuant to Rule 15(e) has been furnished by District Judge Grubb in Aarhus Oliefabrik, A/S v. A. O. Smith Corp., E.D.Wis., 22 F.R. D. 33, 36 (1958): “Thus, amendment with relation back is generally allowed in order to correct a misnomer of defendant where the proper defendant is already in court and the effect is merely to correct the name under which he is sued. But a new defendant cannot-normally be substituted or added by amendment after the statute of limitations has run.” (Footnotes omitted.) This fits the case at bar. Similar interpretations of Rule 15(c), with numerous citations in support, are to be found in Archuleta v. Duffy’s, Inc., 10 Cir., 471 F.2d 33, 35 (1973); Munetz v. Eaton Yale & Towne, Inc., E.D.Pa., 57 F.R.D. 476, 479-480 (1973); Janus v. J. M. Barbe Co., N.D. Ohio, 57 F.R.D. 539, 542-543 (1972); People of the Living God v. Star Towing Co., E.D.La., 289 F.Supp. 635, 641-642 (1968); Robbins v. Esso Shipping Co., S.D.N.Y., 190 F.Supp. 880, 884-885 (1960).

The second sentence in Rule 15(c) was added by amendment in 1966, 383 U.S. 1029, 1044. This amendment has been the subject of our present consideration. It appears to incorporate precisely the holding in Martz v. Miller Brothers Co., D.Del., 244 F.Supp. 246, 253-254 (1965). As was pointed out in Martz, state statutes of limitations are frequently geared to the filing of a complaint. This appears to be so in Illinois. However, Rule 15(c) is geared to notice. The party to be substituted must receive notice of the action “within the period provided by law for commencing the action against him.” Following Martz, given the facts in this case, it is apparent that Doris J. Fenton had no notice until after the statute of limitations had run. She could not have had notice that a suit had been filed against her until she heard about it. Id. at 254.

The cases cited by plaintiffs, supra at note 2, are generally to the effect that the amendment changing a party’s name will relate back where the party intended to be served, though misdescribed, was actually the party served. In Wayne and Brittian, the proper defendant was served with process, though under an incorrect name. In McDonald, the defendant was sued and served under an incorrect corporate name. Its counsel admitted in open court that the proper corporate defendant had received notice of the claim before the running of the statute of limitations. The bar of the statute was lifted because plaintiff’s counsel was hospitalized and out of his office for several weeks and was unaware of the answer filed by defendant. In Williams, although an incorrectly named corporate defendant was sued and served, the party intended to be so named and served was actually before the court, filed an answer and appeared generally in open court. While adhering to the rule that an amendment whose effect is to add a new party to the suit will not relate back to circumvent the statute of limitations, the court there found that the only effect of the amendment was to correct a misnomer.

Since, in the case at bar, the requirement has not been met that the defendant sought to be substituted by amendment must have notice of the filing of the action prior to the running of the statute of limitations, plaintiffs cannot prevail.

We hold that the district court did not err in denying plaintiffs’ motion for leave to amend the complaint and the service of process. The order and judgment appealed from are affirmed.

Affirmed.

      . Indeed, plaintiffs appealed from the district court’s order only insofar as it denied their motion “to correct misnomer by substituting proper Christian name.” No appeal was taken from the dismissal of Teresa D. Fenton as a party defendant.

      . Wynne v. United States ex rel. Mid-States Waterproofing Co., 10 Cir., 382 F. 2d 699 (1967) ; Brittian v. Belli Gallant Co., N.D.Ga., 301 F.Supp. 478 (1969) ; McDonald v. Chrysler Motors Corp., W.D. Pa., 27 F.R.D. 442 (1981) ; Williams v. Pennsylvania B..B.., D.Del., 91 F.Supp. 652 (1950) ; Cited also was 6 Wright & Miller, Federal Practice and Procedure § 1498, at 509 (1971).

      . The Tenth Circuit has itself distinguished its holding- in Wynne from the present situation. See Archuleta v. Duffy’s, Inc., 471 F.2d 33, 35 (1973). See also Graves v. General Ins. Corp., 10 Cir., 412 F.2d 583, 585 (1969).


author: WIDENER, Circuit Judge:

text:
    Barbara Ann PIGGOTT, Administratrix of the Estate of Keith Alexander Piggott, a deceased infant, 9 years of age, Appellant, v. UNITED STATES of America, Appellee. Barbara Ann PIGGOTT, Administratrix of the Estate of Joyce Janet Piggott, a deceased infant, 13 years of age, Appellant, v. UNITED STATES of America, Appellee.
    Nos. 72-1822, 72-1823.
    United States Court of Appeals, Fourth Circuit.
    Argued Jan. 10, 1973.
    Decided June 18, 1973.
    Harry P. Anderson, Jr., Richmond, Va. (Anderson, Haw, Parkerson & Beazley, Richmond, Va., William R. Bland and Stone, Bland & Woods, Williams-burg, Va., on brief), for appellants.
    Robert T. Williams, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee.
    Before RUSSELL, FIELD and WIDENER, Circuit Judges.
   WIDENER, Circuit Judge:

Appellant, administratrix of the estates of her two deceased children, sued the United States under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., on the theory that the United States was negligent in operating and maintaining a beach at one of its National Historical Parks. The district court found that the United States was not negligent and entered judgment for the defendant. It is from this finding that appellant seeks relief.

I

The United States owns and operates Colonial National Historical Park in Virginia. The park has two districts, the Jamestown district, which borders on the James River, and the Yorktown district, which borders on the York River. The deaths of appellant’s two children occurred by drowning off a beach called Archer’s Hope Landing, which is in the Jamestown district of the park.

Archer’s Hope is one of three beaches in the Jamestown district which are owned and maintained by the government. There is a paved turn-off area opposite each beach to be used for parking by visitors to the beaches. Trash receptacles are also provided at these beaches and parking areas.

Archer’s Hope beach has approximately 500 or 600 feet of waterfront. At the time of the drownings, there were two signs, 3.8 feet by 1.2 feet, with 3-inch high letters, on the beach. They were located about 250 feet apart, 125 feet from the parking area, and facing it. The relative positions of the signs, beach, and parking area are clearly shown in the exhibits. The signs read:

SWIMMING DANGEROUS STRONG UNDERCURRENT DEEP HOLES

Attached to the bottom of each of these signs was another sign which said:

NO FIRES

There was also a larger sign on line with the two smaller ones and about equidistant between them. This sign read:

THIS AREA OPEN TO THE PUBLIC USE DURING DAYLIGHT HOURS ONLY. THOSE ON THE BEACH AFTER DARK ARE IN VIOLATION OF PARK SERVICE REGULATIONS (CFR 36-2.6)

The referred to section of CFR gives the Superintendent of the Park authority to establish reasonable visiting hours for the park area, as well as the power to close or restrict the public use of any park area when he deems it necessary for the protection of the area or for the safety and welfare of persons or property. He may exercise such,, authority by posting appropriate signs indicating the extent and scope of such closure.

Archer’s Hope beach and the other two beaches in the Jamestown district are on a two-mile stretch of the James River on its north bank. Along this two mile stretch, there were a total of eight of the smaller signs mentioned above and four of the larger ones. Other than these signs, the paved parking area opposite each beach, and the trash receptacles, the park provided nothing. No lifeguard, tow line, depth marker, safety line, or other safety equipment was provided at the beaches.

The uncontradicted evidence at the trial showed that there was a drop-off approximately 100 to 200 feet out into the river, that there were holes in the river bottom, and that these facts were known by park personnel. The park knew that people of all ages, including small children, used these beaches for picnicking, sunbathing, and swimming. The park records also showed that the deaths of appellant’s two children were the sixth and seventh drownings from these beaches since 1960.

On Sunday, August 16, 1970, Henry Marsh, a forty-six year old friend of the Piggott and Ashby families, upon the request of one of the Piggott children, picked up the Piggott and Ashby children, thirteen in all, and drove them to the beach. The group first went to Memorial Park Beach, a private beach on the James River. They remained there for a short time and then left. Upon leaving Memorial Park, Marsh drove along the Colonial Parkway until the children asked him to stop at Archer’s Hope beach. This was the first time Marsh and the children had been to this area, according to his testimony.

Marsh parked in the pull-off area opposite Archer’s Hope, and he and the children went down to the beach. There were approximately 100 people there, some on the beach and some in the water. Marsh put a folding chair about twenty-five feet out in the water and told the children not to go beyond him. He further testified that he had not seen any signs when he took the children from the parking area to the beach. After a couple of hours in the water, Marsh took the children back to his pickup truck to eat the lunch which they had brought with them. While the children were eating, Marsh walked over to a nearby car to talk with some friends who had driven into the pull-off area. It was during this brief period of time, about five or ten minutes, that the two Piggott children returned to the water and drowned. Appellant then brought these wrongful death actions against the United States.

The cases were tried before the district court, without a jury, on March 22, 1972. On March 23, 1972, the trial court announced its findings of fact and conclusions of law and entered judgment in favor of the United States. The trial court found that the Piggott children were invitees and, therefore, that the United States had a duty to exercise ordinary care in maintaining the premises in a reasonably safe condition. The court found that the conditions at Archer’s Hope beach were dangerous and that the United States knew or ought to have known about these dangerous conditions: The court continued and said:

“When you take into account the type of area this was, the fact that swimming was permitted, but certainly not encouraged by the Government (and it seems to me that there are, as I indicated by my questions to counsel, countervailing policy considerations that bear on the outcome of the case). “The supervision that would be necessary to insure against this type of accident is not warranted in this type of beach. I do not think there is any requirement here of lifeguards. I do not think there is any requirement here of ropes delineating safe and unsafe areas.
“The signs, I find, were adequately worded and adequately placed. They were, moreover, in the area of the general area where these children and Mr. Marsh were.
“I do not think that the Government is required to prohibit swimming here by non-swimmers or children as an alternative to providing lifeguards. I think that the policy considerations dictate against that. It would preclude the use of the type of setting that is intended to be had here. It would prohibit the use of many, many people who would enjoy it and do enjoy it in its present condition. “Therefore, I find no negligence on the part of the United States. Therefore, I do not reach the question of contributory negligence.” [Emphasis added]

Finally, the court said that the children drowned because they went over the drop-off area and that holes or strong currents did not contribute to their deaths.

It is the finding that the United States was not negligent from which appellant seeks relief.

II

The cases were instituted under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. The district court had jurisdiction to try these cases under 28 U. S.C. § 1346(b). Under these circumstances, the United States is considered to be a private person subject to the law of the place where the incident occurred, which, in these particular cases, would be the law of Virginia. Jennings v. United States, 374 F.2d 983, 985 (4th Cir. 1967) ;a Murray v. United States, 329 F.2d 270, 272 (4th Cir. 1964); Elkins v. United States, 307 F.Supp. 700, 703 (W.D.Va.1969), aff’d. 429 F.2d 297 (4th Cir. 1970). See also United States v. Muniz, 374 U.S. 150, 153, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1962); Rayonier, Inc. v. United States, 352 U.S. 315, 319, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957). We must, therefore, determine if the district court’s finding that the United States was not negligent was erroneous under Virginia law.

III

Before turning to Virginia law to determine whether or not the district court applied the proper standard in determining the extent of the duty the United States owed to appellant’s deceased children, we think it appropriate to explain the status of the parties. The United States stipulated that the deceased children were invitees, so there may be no argument that they were anything less because they entered the park free of charge. Next, we are of opinion that the fact that the United States knew that people of all ages congregated in considerable numbers and so used Archer’s Hope beach for swimming, together with the fact that it erected signs warning of dangerous swimming conditions, but not prohibiting swimming, had the effect of designating Archer’s Hope beach as a public swimming area. The fact that the United States did not actively encourage swimming is not controlling. The deceased children were invitees of the park and as such were entitled to use the park facilities, which included the use of any designated swimming area, including Archer’s Hope Landing. Thus, the United States was in the same position as any private owner of a beach to which the general public was invited to use for picnicking, sunbathing, and swimming.

In Blacka v. James, 205 Va. 646, 139 S.E.2d 47 (1964), the administrator, Edward James, sued the owner, Blacka, of a swimming resort for the wrongful death of Colin K. James. One of the allegations of negligence was that the defendant failed to have an adequate number of properly trained lifeguards on duty at the time of the drowning. The jury returned a verdict for the plaintiff and the defendant appealed. The Supreme Court of Virginia reversed and gave final judgment for the defendant because the plaintiff’s evidence, although it showed that the defendant was negligent, failed to show that such negligence was the proximate cause of Colin K. James’ death. However, the court addressed itself to the issue of the duty the defendant owed to the deceased boy:

“The general rule is that the owner of a swimming pool or lake to which the general public is invited for a consideration must exercise ordinary care for the safety of his patrons. He must make reasonable provisions to guard against those accidents which common knowledge and experience teach are likely to befall those engaged in swimming and other aquatic sports for which he has provided facilities, but the owner is not an insurer of the safety of his patrons.” (Citations omitted) 205 Va. at 649, 139 S.E.2d at 50.

We believe this statement by the Virginia Supreme Court sets out the duty owed in Virginia to an invitee by the owner of a public beach. We are unable to find any Virginia case which would lessen the owner’s duty to his invitee because of the esthetic aspects of the beach or because of other policy considerations. For these reasons, we are of opinion that the district court applied an erroneous standard when it included policy (and perhaps esthetic) considerations in its determination that the United States was not negligent in performing the duty it owed appellant’s two deceased children.

The United States relies on the case of Washabaugh v. Northern Virginia Construction Co., 187 Va. 767, 48 S.E.2d 276 (1948), to support its contention that it was not guilty of negligence in the instant cases. In Washabaugh, the Virginia Supreme Court recited that the attractive nuisance doctrine had been repudiated in Virginia. The court continued and held that the defendant was not liable for the drowning of plaintiff’s child in its rock quarry because such a dangerous condition was open, obvious, natural, and common to all. We think Washabaugh is inapposite here because it dealt with the duty a land owner owes to a trespassing child, not with the duty owed an invitee, as in Blacka.

Accordingly, we must remand these cases to the district court for a new trial so that it may determine the issue of negligence under the standards set out in Blacka, supra, and the footnote below. Should the district court find that the United States was negligent, then it must decide whether or not such negligence was the proximate cause of the death of appellant’s children. If it finds that such negligence was the proximate cause of the children’s death, it must further resolve the issue of contributory negligence raised by the United States.

Reversed and remanded for a new trial.

      . The Parkway is part of the Colonial National Historical Park. It is the main drive through the park and runs from Jamestown through Williamsburg to Yorktown.

      . This section gives the district courts exclusive jurisdiction to try civil actions against the United States where “ . . . pers'onal injury or death [is] caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment,' under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." [Etnphnsis added] 28 U.S.C. § 1346(b).

      . For a definition of invitee under Virginia law, see City of Richmond v. Grizzard, 205 Va. 298, 302, 136 S.E.2d 827, 830 (1964) ; Richmond Bridge Corporation v. Priddy, 167 Va. 114, 187 S.E. 518 (1936). See also, Note: Invitee Status in Virginia, 44 Va.L.Rev. S04 (1958).

      . OFR 36 — § 2.28(a) provides:
      “(a) Swimming and bathing are permitted except in waters and at times where such activities are prohibited in the interest of public health or safety, which excepted waters shall be designated by posted signs.”

      . The evidence showed that when the boy was last seen, lie was not in distress and was swimming normally. 205 Va. 650, 139 S.E.2d 51.

      . We note that in Virginia the duty an owner of realty owes to an invitee is to “use ordinary care to render the premises reasonably safe for the invitee’s visit.” Knight v. Moore, 179 Va. 139, 18 S.E.2d 266, 269 (1942). However-, such an owner may, in proper circumstances, relieve himself from liability for injuries to an invitee by providing an effective and adequate warning of any dangerous conditions of which he has knowledge and the invitee does not. Sadler v. Lynch, 192 Va. 344, 64 S.E.2d 664 (1951).
      While it is true that Virginia has held that the danger of drowning in a natural body of water is an open and obvious one, Washabaugh, supra, the district court, upon remand, should determine as a matter of fact whether or not failure to provide lifeguards and other safety devices constituted a dangerous condition which required the giving of an adequate warning. If such warning was not given, the court should determine whether the condition was so “open and obvious that it should have been seen or observed by a person in the exercise of ordinary care for his own safety,” which may have made such warning unnecessary. Knight, supra, 18 S.E.2d at 270. See also Rich mond Bridge Corporation v. Priddy, supra; City of Richmond v. Grizzard, supra.
      We express no view as to whether or not the United States was guilty of negligence in the instant cases.

      . Even if we decided that the United States were negligent, instead of remanding that issue to the district court, we would still have to remand the cases to the district court for decision on the issues of proximate cause and contributory negligence.


text:
    Ronnie JOHNSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-1124
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 15, 1973.

      Ronnie Johnson, pro se.
    Frank D. McCown, U. S. Atty., Fort Worth, Tex., William F. Sanderson, Jr., Asst. U. S. Atty., Dallas, Tex., for respondent-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y., 431 F.2d 409, Part I (5th Cir. 1970).

   PER CURIAM:

Ronnie Johnson, the petitioner in this § 2255 action, was indicted by a grand jury on two separate counts of bank robbery. At his arraignment Johnson pled not guilty to both charges. At the trial, however, after the conclusion of the presentation of the government’s case, he changed his plea on Count I of the indictment to guilty. The second count of the indictment was dismissed on the motion of the government. The trial court sentenced Johnson to 20 years imprisonment. The facts brought out at the trial before he changed his plea reveal that two drive-in tellers located at opposite ends of the drive-in teller cages at the Midway National Bank of Grand Prairie, Texas, were simultaneously robbed by two armed men. The government sought to prove that Johnson, outfitted with a rifle equipped with a telescopic sight, was seated in a car some distance from the bank watching and overseeing the activities of these two robbers.

In the pending proceeding Johnson contends that his plea of guilty to Count I of the indictment was involuntary. He argues that the plea was made under duress, since he had been erroneously advised by his privately retained counsel that he could receive consecutive sentences on both counts if convicted. Accepting as true his contention that he was told that he could be committed for as long as 50 years if found guilty on both counts, we hold that this fact does not in itself entitle him to the relief which he seeks.

At the time Johnson changed his plea from not guilty to guilty he stood charged under two counts, each of which carried a possible sentence of 25 years imprisonment and a 10,000 dollar fine. Thus, mathematically, the possible maximum punishment on these two counts was correctly stated to be 50 years imprisonment. Johnson contends, however, that since only one bank robbery was perpetrated he could only have been convicted and sentenced on one of the two counts. We need not decide whether this contention is correct. Whether or not it would have been proper for the district court to sentence him on both of the counts charged in the indictment, the advice given him by his counsel as to the possible range of punishment he could expect were he convicted on both counts was not such patently erroneous advice as would vitiate his plea of guilty.

This case is distinguishable from our decision in Cooks v. United States, 461 F.2d 530 (5th Cir. 1972). In that case the court was presented with the situation in which the Supreme Court had removed all doubt as to whether or not the same multiple charges under 18 U.S.C.A. § 2314 could be proper. The question presented here — do the facts establish one bank robbery or two? — is a novel one which could depend on the development of facts. Counsel’s advice, even if it was erroneous, did not rise to the level of denying Johnson due process of law nor did it constitute ineffective counsel. As the Supreme Court stated in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), a defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action. In this case, the advice of Johnson’s retained counsel was well within the range of competence required of attorneys representing defendants in criminal cases. See McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).

We have examined petitioner’s other contentions — i. e., that he entered his plea of guilty without a full understand-of the charge and nature of the crime and that there was no factual basis for charge — and find them without merThe judgment of the court below is all respects

Affirmed.

      . Castle v. United States, 368 U.S. 13, 82 S.Ct. 123, 7 L.Ed.2d 75 (1961), vacating 287 F.2d 657 (5th Cir.).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Dominga SALAZAR, Defendant-Appellant.
    No. 73-1491
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 11, 1973.

      Roger C. Rocha, Laredo, Tex., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

       Rule 18, 5th Cir. See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

On September 22, 1972, appellant was convicted by a jury of the possession of 55 pounds of marijuana with the intent to distribute the same in violation of 21 U.S.C. § 841(a)(1). She was adjudged to be guilty and given a sentence of three years to be followed by a special parole term of two years. On this appeal she contends that the trial court committed error (1) in overruling her separate motions to strike from the jury panel 24 jurors, all of whom had served in criminal cases involving marijuana at the same term of court; and (2) in refusing to properly conduct the voir dire examination of the jurors. We affirm.

The appellant contends that the 24 jurors should have been stricken en masse because 12 of the 24 had refused to believe an alibi asserted by another defendant similar to the alibi the appellant wished to prove as a defense. The other 12 jurors, it is claimed, had acquitted a defendant in a criminal prosecution involving marijuana but the judge had expressed his doubts about the accuracy of their verdict. We find no merit in these contentions.

Whether or not a jury believes an alibi in one criminal case does not determine whether they would believe another alibi in another criminal case involving a different defendant. Nor do we believe that the other 12 jurors were disqualified simply because the judge expressed some disagreement with the verdict they reached. The mere fact that a judge informs a jury, after verdict, that he probably would have reached a different conclusion does not disqualify that jury for further service. Moreover, the appellant has failed to demonstrate how the denial of the motions prejudiced her case. She does not assert that there was insufficient evidence to support the verdict of the jury or the judgment of conviction.

A judge has substantial discretion in conducting the voir dire examination of jurors. Unless that discretion is abused there should be no reversal. The appellant in this ease has not demonstrated that there was the slightest abuse of discretion.

Affirmed.

      . Appellant’s motion to strike was based on pure conjecture. There was no showing of potential actual bias by these twenty-four individuals. Entertaining such unfounded suppositions would indeed open a Pandora’s box. All prospective jurors have some individual concepts and past experiences which color their perceptions to some extent. However these common sense observations are not sufficient in themselves to taint the ability of one to judge his peers. We perceive no abuse of discretion by the trial court in denying appellant’s motion to strike.

      . Appellant has made no showing in this court that the trial court abused its discretion in limiting the voir dire examination. See United States v. Gassaway, 456 F.2d 624, 626 (5th Cir. 1972) ; United State v. Fernandez-Piloto, 426 F.2d 892 (5th Cir. 1970).


author: PER CURIAM.

text:
    Frank W. COKER and Regina Coker, Petitioners-Appellants and Cross-Appellees, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee and Cross-Appellant.
    Nos. 634, 825, Dockets 72-2309, 73-1011.
    United States Court of Appeals, Second Circuit.
    Argued April 16, 1973.
    Decided May 14, 1973.
    Thomas J. Carley, Rockville Centre, N. Y., for petitioners-appellants and cross-appellees.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Thomas L. Stapleton, David English Carmack, Attys. Tax Div., Dept. of Justice, Washington, D. C., for respondent-appellee and cross-appellant.
    Before CLARK, Associate Justice, and WATERMAN and FEINBERG, Circuit Judges.

       Associate Justice of the United States Supreme Court (Retired), sitting by designation.

   PER CURIAM.

This case involves a claimed deficiency in Mr. and Mrs. Frank Coker’s joint federal income tax for the calendar year 1966 occasioned by their deduction of Mr. Coker’s commuting expenses to and from his job site. Appellant Coker (husband) was a carpenter shop steward who performed carpentry work on the job site as time permitted. His duties necessitated the ready availability of his carpenter tools, and he therefore always carried an assortment of tools weighing some 200 lbs. with him in the 1964 Oldsmobile he used for commuting. In addition to the commuting to and from work, appellant also travelled some sixty miles a day in performing his duties on the job sites to which he was assigned; this expense was allowed as a deduction and is not involved here.

The Commission disallowed in its entirety appellant’s claimed deduction for the expense of commuting to and from work. The Tax Court, considering itself bound by Sullivan v. Commissioner, 368 F.2d 1007 (2 Cir. 1966), allowed appellant to deduct what it considered a reasonable percentage of this commuting expense allocable to the transportation of his tools. Both the Cokers and the Commissioner appealed, the former insisting that all Mr. Coker’s commuting expenses should have been allowed as deductions, while the Commissioner urges this Court to overrule Sullivan, supra, and deny the Cokers any deduction. We reject both arguments and therefore affirm.

Since the enactment of the Income Tax Act of 1913, commuting expenses have been considered non-deductible personal expenses. Commissioner v. Flowers, 326 U.S. 465, 469, 66 S.Ct. 250, 90 L.Ed. 203 (1946). In fact this rule has clearly been accepted by Congress. See H. Rep.No.1337, 83d Cong., 2d Sess., p. A19 (3 U.S.C.Cong. & Adm.News (1954) pp. 4017, 4156); S.Rep.No.1622, 83d Cong., 2d Sess. p. 169 (3 U.S.C.Cong. & Adm. News (1954) pp. 4621, 4803-4804). Coker seeks to escape this Congressional rule by claiming that his expenses were necessarily incurred in his effort to earn a living. But the same can be said of every taxpayer’s expense in going to and from work. Furthermore, expenditures for food, clothing, and shelter are also necessary to enable one to earn a living. The fact is that Congress has directed that such expenses not be deductible. Appellant’s argument that allowance of the deduction he claims is compelled by the Sixteenth Amendment does not merit discussion.

Nor are we persuaded by the Commissioner’s argument that the primary purpose test should be applied. Taxpayer is entitled to some allowance for transporting the 200 lb. of tools under the peculiar circumstances here. Sullivan v. Commissioner, supra. Sullivan has been followed in this Circuit for some seven years. Any change in the rule should come from the Congress or the Supreme Court.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kirkland Russ PERRY, a/k/a William Roger Paul, Defendant-Appellant.
    No. 72-2199.
    United States Court of Appeals, Fifth Circuit.
    June 4, 1973.

      Daniel S. Pearson (court appointed), Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Carol M. Anderson, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before TUTTLE, BELL and AINSWORTH, Circuit Judges.
   PER CURIAM:

The most important issue raised by defendant on appeal is his assertion that the district court erred in failing to allow him to present evidence that Latin Americans, young persons (18 to 21 and 21 to 24), and new residents (those who had not resided in the Southern District of Florida for a year as required by the Jury Selection Plan) were excluded from jury service, thus depriving defendant of due process of law.

These issues have now been passed on by us adversely to defendant’s contentions, the most recent decision being United States of America v. Palacio, 5 Cir., 1973, 477 F.2d 560. In that case we held there was no merit to the claim that the jury system in the Southern District of Florida (the same District involved here) is unconstitutional. Palacio cites three other cases of this Circuit which support the constitutionality of the jury system for the Southern District of Florida, namely, United States v. Pentado, 5 Cir., 1972, 463 F.2d 355; United States v. Blair, 5 Cir., 1972, 470 F.2d 331; United States v. Gooding, 5 Cir., 1973, 473 F.2d 425.

In Gooding we held that the Jury Plan of the Southern District of Florida was constitutional and that the district court was not obliged to hold an evidentiary hearing on the issues raised since “it could take judicial notice of the passage of time and the mathematically calculable effect of a given time lag in temporarily excluding certain qualified jurors from the opportunity for jury service.” 473 F.2d at 430. Nor do we think there is any merit to the assertion that the one-year residence requirement in the Plan and provided for in 28 U.S.C. § 1865, renders the Plan unconstitutional. We do not think it can fairly be asserted that new residents are a distinguishable or cognizable class. It is not necessary that the trial court receive evidence on this issue since only a question of law is involved which we resolve adversely to defendant’s contentions.

We have considered the additional contentions of defendant and find them to be without merit. Thus there is no merit in defendant’s contention that the jury could not infer intent to distribute hashish from the fact of possession of 188 pounds thereof, see United States v. Mather, 5 Cir., 1972, 465 F.2d 1035. The district court did not err in denying defendant’s motion to suppress fingerprints and palm prints, see United States v. McNeal, 5 Cir., 1972, 463 F.2d 1180. The contention that there was no republication of Schedule I relative to controlled substances, as required by 21 U.S.C. § 812, is refuted by reference to Federal Register, Vol. 37, No. 93, May 12, 1972, pp. 9545-9557, showing republication of the schedules of controlled substances. The statute under which defendant was convicted, 21 U.S.C. § 841(a)(1), is not unconstitutional, as contended by defendant, see United States v. Nelson, 5 Cir., 1972, 458 F.2d 556; United States v. Lopez, 5 Cir., 1972, 459 F.2d 949; United States v. Lopez, 5 Cir., 1972, 461 F.2d 499; United States v. Lane, 5 Cir., 1972, 461 F.2d 343; United States v. Mather, supra; United States v. Leisner, 5 Cir., 1972, 469 F.2d 336.

Affirmed.

      . The Jury Selection and Service Act, 28 U.S.C. § 1861 et seq., has now been amended to include the 18 to 21 age group.

      . We held this case under submission for several months considering whether we should await the determination of several cases pending in the Southern District of Florida which attacked the constitutionality of the Jury Selection Plan of that District on the same basis asserted here. However, the decisions set forth herein and especially the supervening decisions of United States v. Gooding, supra, and United States v. Palacio, et al., supra, make it unnecessary that we remand it for an evidentiary hearing.