author: PER CURIAM. PELL, Circuit Judge

text:
    PACKERLAND PACKING CO., INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 73-1518.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 15, 1974.
    Decided April 3, 1974.
    Petition for review denied and order enforced.
    Pell, Circuit Judge, filed a dissenting opinion.

      James A. Gilker, Fort Smith, Ark., for petitioner.
    Elliott Moore, Acting Asst. Gen. Counsel, William M. Bernstein, Atty., N. L. R. B., Washington, D. C., for respondent.
    Before PELL, STEVENS and SPRECHER, Circuit Judges.
   PER CURIAM.

The petitioner Company has sought review of, and the Board has applied for enforcement of, a Board order finding that the Company violated Sections 8(a)(3) and (1) of the Act by transferring employees Ted R. Rockwell, Charles Petty and Ronald Whiting because of their union activity. 203 NLRB No. 39.

The employees were city truekdrivers who joined the picket line during a June 1-2, 1971 strike by the certified representative of the Company’s production and maintenance employees. The strike was settled and the employees returned to work as city truekdrivers on June 4. The Board found that “the matter of whether the city truekdrivers were in the . . . unit or not was never resolved, and [the union] . . . had not abandoned its claims over these employees.” 203 NLRB No. 39, p. 5.

On June 5, the three employees were told that “they would be placed into the bargaining unit which now represents them.” Whiting and Petty were assigned to the boning room and Rockwell to the loading dock. On June 7 while performing one of the most exacting jobs in the Company’s operation, Rockwell aggravated an old injury. On June 8, Whiting, who was required to stand all day in his new assignment, also aggravated an old injury.

In addition to cease and desist requirements, the Board ordered the three employees reinstated to their city truck-driving jobs and made whole for any loss of earnings suffered as a result of the discrimination.

Substantial evidence on the record as a whole supports the Board’s finding and order.

Petition for review denied and order enforced.

PELL, Circuit Judge

(dissenting).

I fail to find this case as free of complexities as apparently the majority opinion does, and therefore I respectfully dissent.

This appears to be a case in which the National Labor Relations Board has accepted the Administrative Law Judge’s decision based upon credibility findings to the extent that the decision conformed to the Board’s determination of the proper disposition of the case, but ignored those credibility findings when the converse was true and in effect substituted its own credibility findings for those of the Administrative Law Judge.

For some time prior to September 18, 1970, the Independent Packerland Employees Union (Independent) was the collective bargaining agent for all production and maintenance employees of Packerland, including, inter alia, truck-drivers. On September 18, 1970, the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO (Amalgamated) was certified by the Board, in a unit consisting of all production and maintenance employees of Packerland at its Green Bay, Wisconsin plant, excluding, inter alia, truckdrivers.

Packerland employed 16 truckdrivers in its rendering division, 18 or 20 over-the-road truckdrivers, and 3 city truck-drivers. The alleged discriminatees involved in the present case, Rockwell, Whiting, and Petty, were the 3 city truckdrivers.

A point of controversy between Paek-erland and Amalgamated was whether the 3 city truckdrivers were within the unit represented by Amalgamated. That point of dispute remained unresolved after the Administrative Law Judge’s decision, after the Board’s decision, and will still remain unresolved after this court’s order of enforcement. It remains a festering source of labor disharmony, which apparently would have lent itself to resolution some time ago if the Administrative Law Judge’s order, to which Packerland did not object, had been followed.

Apparently, contract negotiations between Amalgamated and Packerland were not successful because a strike ensued on the following June 1, which was resolved the next day by an agreement on the terms of the contract. This agreement, however did not in its terms resolve the bone of contention which is involved in the present case.

During the strike a picket line was established at the Packerland premises. Rockwell, Whiting, and Petty joined the picket line. Approximately 125 employee replacements were hired by Pack-erland during the short-lived strike. Whiting and Petty and the truckdrivers in the rendering division had appeared on the Excelsior list, and the voters’ eligibility list for the election in which Amalgamated was chosen as the bargaining agent. Whiting and Petty had in fact voted in the election without challenge.

On June 2, representatives of Amalgamated and Packerland met in the offices of Federal Mediation and Conciliation Service in Green Bay. During that day there were private meetings between Packerland’s President, Frankenthal, its attorney, and Amalgamated’s chief spokesman, Wentz.

At one of these meetings Frankenthal said, “Ray, now are we all settled?” Wentz answered, “Yes, except for one thing. I want you to take back all the people who are now out. I have to get them off the concrete.” Frankenthal replied, “Ray, there is a few people that I don’t think are in your union that are out.” Wentz said, “You take them back in my union.” During these discussions Frankenthal also told Wentz that he “could not promise that each person would have their own kind of job that they had previous to the strike; but that we would put them to work — some kind of work . . . .” On the same day Frankenthal told Wentz and Mat Pinter, an Amalgamated representative, “I’ll take these people back. How soon I just can’t tell you, but I’ll take them back, and they’ll go in the unit.” Thereafter a memorandum of understanding was reached whereunder the parties agreed that:

“All employees who participated in the strike on June 1 and June 2, 1971, will be called back to the employment of the employer as the needs of the business require. It is understood and agreed that such call backs will be made as expeditiously as possible in seniority, as qualified, but nothing in the agreement between the parties shall require the employer to displace any current employees from employment to effect such call back. However, the parties have agreed in good faith that a reasonable effort will be made to call back employees as soon as possible in accordance with the requirements of the business.”

All strikers ultimately returned to work.

After the strike was terminated the three truckdrivers returned to the truck-driving jobs they had performed immediately prior to the strike and worked as city truckdrivers on June 4 and 5.

On June 4, the plant superintendent was called by Frankenthal “to account for all the people who had been recalled.”

During this accounting, the names of Whiting, Rockwell, and Petty were mentioned. Apparently, acting upon the basis that the city truckdrivers were not in the production and maintenance unit represented'by Amalgamated, at least as that unit was defined by Frankenthal, he commented that Packerland might be “at fault for calling them back into an area where they’re not in the unit.” He instructed the superintendent to proceed accordingly.

On June 5, Whiting, Petty, and Rockwell were called to the office of Fran-kenthal where, in the presence of the superintendent, Frankenthal told them they were “not in the trucking unit and they would be placed into the plant . into the bargaining unit which now represented them.” The three were assigned to the areas within the plant, which assignment is the basis of the unfair labor practice charges resulting in the present proceedings before this court. At the time of this conference, Frankenthal read (although this was disputed) from a letter of a truck dispatcher that “due to the fact that [the alleged discriminatees] did not report to work on Tuesday and Wednesday of that week that [they] were no longer considered reliable and he [the truck dispatcher] did not want [them] driving for the company no more.”

Subsequently, a complaint was issued in which it was alleged that Packerland had violated § 8(a)(1) and (3) of the Act by discriminatorily transferring Rockwell, Petty, and Whiting to more physically exhausting jobs because said employees respected a picket line at the Packerland premises and by constructively discharging Rockwell and Whiting because the work assigned to them aggravated pre-existing j‘ob-related injuries causing them to cease work. At the time the case came on for hearing, Packerland obj'ected because Amalgamated and Independent were not made parties. Subsequently, they were made parties.

While the Administrative Law Judge did not credit either Frankenthal or Rockwell entirely, he did, as a matter of credibility, find the facts as they have been heretofore set out, with particular reference to the June 5 conference among the three men and Frankenthal.

Directing his attention to the alleged § 8(a)(3) violation, the Administrative Law Judge, on the basis that the real motive of the employer is decisive, NLRB v. Brown, 380 U.S. 278, 287, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965), determined that Frankenthal’s sole motive in transferring the three men was to fulfill “his understanding of the commitment to Wentz to return the employees who had ceased work during the strike to the Amalgamated unit” and therefore the transfers were not discriminatory. Frankenthal had done the same as to a driver from the rendering plant, who had observed the picket line, who was transferred into what Frankenthal conceived to be the unit, which, he contended, did not include truckdrivers. The Administrative Law Judge reached no conclusion as to whether Frankenthal was correct in his contract interpretation but merely that this was his motivation.

Accordingly, no violation was found in the transfer. The Administrative Law Judge, however, did find that Packer-land violated § 8(a)(1) by the reading of the truck dispatcher's letter to the men as “[s]uch statement had a tendency to deter employees from honoring picket lines or picketing in the future, was coercive in character and interfered with employees’ Section 7 rights.”

The Administrative Law Judge, quite correctly in my opinion, also recommended that the matter of the transfers be put to arbitration, citing Collyer Insulated Wire, 192 NLRB No. 150. Both Independent and Amalgamated had indicated that they would process grievances for the employees to arbitration.

The Administrative Law Judge then proposed an order, the crucial part of which is as follows:

“1. The Respondent Packerland Packing Company, Inc., its officers, agents, successors and assigns shall cease and desist from telling employees that due to the fact that they did not report to work during the occurrence of a strike they were no longer considered reliable and were not wanted by the dispatcher as truck-drivers,”

It appears to me that in view of the settlement contract entered into by and between Packerland and Amalgamated, particularly with reference to the agreement that the employer not be required to displace any replacement employees, that the only matter here involved was that from which the Administrative Law Judge had ordered the company to cease and desist.

As I have indicated hereinbefore, if the matter had gone to arbitration, no doubt this troublous point in the industrial relations of the company would have long since been settled.

Instead, however, the Board rejected the arbitration recommendation and also found a § 8(a)(3) violation in the transfer. The Board disagreed with the Administrative Law Judge’s finding, which credited Frankenthal’s version of the negotiations. This appears to me to be contrary to the recognition to be given to the determination of credibility by the first line trier of fact, as set forth in Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

The Board, in addition to ordering reinstatement with backpay, ordered Pack-erland to cease and desist from:

“(a) Discouraging membership in, or activity on behalf of, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local 248, or any other labor organization, by transferring employees or discriminating against them in any other manner in regard to their hire or tenure of employment or any term or condition of employment because they engaged in concerted and union activities.
(b) Telling employees that due to the fact that they did not report to work during the occurrence of a lawful strike they were no longer considered reliable and were not wanted- as truck-drivers.
(c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act.”

As I have in effect indicated herein, in my opinion, the Board’s order should not be enforced, but the order should be confined to that entered by the Administrative Law Judge.

Over and above the Universal Camera problem, it appears to me that the Board’s order is far too broadsweeping to call for enforcement by this court.

Of course, if acts constituting an unfair labor practice are found, the Board is free to restrain the practice and other like or related unlawful acts. This, however, should not give the Board the authority to enjoin violations of all the duty provisions of the statute merely because one violation has been found. “To justify an order restraining other violations it must appear that they bear some resemblance to that which the employer has committed or that danger of their commission in the future is to be anticipated from the course of his conduct in the past.” NLRB v. Express Publishing Co., 312 U.S. 426, 437, 61 S.Ct. 693, 85 L.Ed. 930 (1941).

Here there is no evidence of persistent anti-union conduct and that part of the Board’s order quoted above under (b) would reach and eliminate the only act which is shown in the record.

As it is, the Board has utilized the broadsweeping “In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization,” etc., when only one act is involved with regard to three employees and even that, under any reasonable interpretation, being an ambiguous situation.

Packerland also complains that the Board’s backpay award has not allowed deductions for the portion of the Workmen’s Compensation payments which compensated the employees for physical damage, only that part compensating them for loss of earnings, citing American Manufacturing Co., 167 NLRB No. 71 (1967). The Board’s answer to this contention is that the amount of back-pay to the discriminatees, as well as appropriate deductions therefrom, are matters for consideration in subsequent backpay proceedings and not by this court at the present time. It is unfortunate if the only way that the company can test the propriety of a claimed deduction against a backpay award is to decline to pay the amounts determined and then litigate in contempt proceedings.

In any event, for the principal reasons, hereinbefore set out, I would limit the enforcement of the order to that ordered by the Administrative Law Judge.

      . At this time the Company’s president, Frankenthal, read to the three employees from a letter written by their supervisor, which stated that these employees were unreliable because they had not worked on June 1 and 2 and that he did not want them driving for the Company in the future. The administrative law judge credited testimony that the letter was read to the employees.


source: Caselaw Access Project

author: KILEY, Senior Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Russell Lee SCOTT, Defendant-Appellant.
    No. 73-1499.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 23, 1973.
    Decided Feb. 26, 1974.

      William M. Coffey, Milwaukee, Wis., for defendant-appellant.
    David J. Cannon, U. S. Atty., David B. Bukey, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff-appellee.
    Before KILEY, Senior Circuit Judge, CAMPBELL, Senior District Judge, and GRANT, Senior District Judge.

       Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.

       Senior District Judge Robert A. Grant of the Northern District of Indiana is sitting by designation.

   KILEY, Senior Circuit Judge.

Defendants Scott and Hampton were convicted by a jury of stealing two RCA color television sets from an interstate shipment in violation of 18 U.S.C. § 659. Scott alone appeals from the judgment of conviction. We affirm.

The television sets were taken from a common carrier truck driven by Kaul, who testified for the government. He testified that at approximately 12:30 p. m. .on September 13, 1971, a bright, clear day, he saw two men pushing cardboard cartons under the tandems of a trailer located on the premises of his employer, Bruce Motor Freight. One man was entering an old model brown Lincoln Continental which had television sets in the trunk. Kaul approached to within 25 feet of them and asked what they were doing. One of the men — later identified by Kaul as Scott — turned, faced Kaul and said, “Don’t worry about it.” The car was then backed to about three feet from Kaul before being driven off. The incident lasted about 30 seconds.

On the same day, Kaul described, to police, the man he spoke to as being 5'8" to 5'10" tall, 18 to 20 years old, having an Afro-style haircut, and wearing a tan windbreaker. Kaul was shown police photographs and recognized no one.

On September 14 and 24, Kaul viewed more police photographs. On each occasion he pushed aside Scott’s photograph, indicating, respectively, that it “most closely resembled” the man to whom he had spoken, and that it “resembled the man the most of any that he had” and that “it looks very much like him.” Immediately after the second occasion, Kaul saw Scott, young and black; and a white man, a police detective; through a one-way glass to a room.

At trial the district court denied Scott’s motion to suppress Kaul’s testimony as to identification, holding that although the one-man showup was defective, the government had clearly and convincingly proven an independent basis for Kaul’s in-court identification.

On cross-examination, Kaul said he had not positively identified Scott in the photographs because “he wanted to be sure” and that the individual at the crime scene had bushier hair. The police photograph of Scott was then received in evidence, without objection. Scott’s counsel did object when the court permitted the jury to take the photograph for use during their deliberation. The district court overruled the objection.

I.

Scott contends that the district court erred in denying his motion to suppress Kaul’s in-court identification — even though the “lineup” identification was invalid — on the ground that the government proved by clear and convincing evidence an independent basis for the identification. We find no merit in this contention.

Where there has been an illegal lineup or showup, subsequent in-court identification is not per se invalid and need not be suppressed on Sixth or Fourteenth Amendment grounds, if the government has demonstrated an independent basis for the identification by clear and convincing evidence. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). See recent cases of this circuit: United States v. Ganter, 436 F.2d 364 (7th Cir. 1970) (defective hospital showup); United States ex rel. Harris v. Illinois, 457 F.2d. 191 (7th Cir. 1972) (illegal lineup without counsel); United States v. Pigg, 471 F.2d 843 (7th Cir. 1973) (observation of defendant at a removal hearing).

The record before us discloses that Kaul’s in-court identification was based upon his 30-second observation, including a face-to-face conversation, on a clear, bright day. Kaul made no identification of another person prior to lineup, nor can it be reasonably said that he failed to identify defendant Scott in the police photographs. Kaul’s pre-showup description of Scott was substantially correct. Only eleven days lapsed between the offense and the lineup identification, and in that period Kaul had on two occasions singled out Scott’s photograph. Kaul’s reluctance to positively identify Scott in the photographs is understandable as the normal reaction of a person who feared possible condemnation of the wrong man, and could have enhanced the reliability of the identification. For these reasons - — which satisfy the several criteria of evaluating reliability of an independent identification set out in Wade, supra, and Gilbert, supra — we hold that the government’s evidence of an independent basis for the in-court identification was clear and convincing.

II.

The defendant next contends that it was error for the trial court — over defendant’s objection — to permit the jurors to have in their possession during the course of their deliberation the police photograph of Scott. A police identification number and the notation “Police Mil. Wis.” appear on the face of the photograph. We think that the ruling was constitutionally erroneous. We find, nevertheless, that ■ on this record the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

It is true that in United States v. Harman, 349 F.2d 316 (4th Cir. 1965), and Barnes v. United States, 124 U.S. App.D.C. 318, 365 F.2d 509 (1966), the courts held that admission, respectively, of penitentiary and police photographs into evidence was reversible error. And we similarly held that testimony with respect to a “mugshot” of defendant taken in prison destroyed his right not to take the stand in his own defense and constituted reversible error. United States v. Reed, 376 F.2d 226 (7th Cir. 1967).

The notation on Scott’s photograph indicates prior police custody, and since it was before the jury during the course of their deliberation, it could have been a source of prejudice, as in Reed, supra, where repeated reference to the “mugshot” was held to be reversible error. The photograph of Scott is not a “mugshot” indicating confinement in a prison, as in Harman, and Reed. Nevertheless, we think the photograph of Scott containing a police identification number indicates prior “trouble” with the law, and we hold that its submission to the jury during its deliberation was error. We do not hold that Scott’s photograph should not have been viewed by the jury at all. We believe no error would have been committed in allowing the jury to view the photograph once during trial for the limited purpose of dispelling jurors’ doubts as to the reason for Haul’s initial hesitancy to make positive identification of Scott on the basis of the police photograph. That limited viewing of it by the jury would cause little, if any prejudice to defendant. United States v. Gimelstob, 475 F.2d 157 (3rd Cir. 1973).

While the district court committed constitutional error in permitting the photograph to go to the jury during deliberation, and while defendant Scott may have suffered prejudice as a result, we find this error to be harmless beyond a reasonable doubt. Also, the unobject-ed introduction of the photograph into evidence, and proper use of it in examining Kaul before the jury, diminished what prejudice might have been generated by permitting the jury to have the photograph during its deliberation.

Furthermore we think the evidence of Scott’s guilt was overwhelming. The identification of Scott by Kaul is most persuasive. And there is the additional incriminating fact, stipulated to at the trial, that Scott had driven the Lincoln Continental the day of the crime. Also in evidence was a sales agreement with a used car dealer, for that Lincoln Continental, bearing Scott’s name.

The decisions of the courts in Harman and Barnes, and of our court in Reed, supra, were prior to, and did not have the benefit of, the holding in Chapman v. California, supra, that permits af-firmance of a conviction — even over constitutional error — -if the reviewing court can declare a belief that the error was harmless beyond a reasonable doubt, and that “it did not contribute” to Scott’s conviction. The Scott record contains, in our view, overwhelming evidence that Scott was the man Kaul saw and spoke to during commission of the offense, and we can declare our belief that the district court’s permitting the photograph to go to the jury during deliberation was harmless beyond a reasonable doubt.

Affirmed.

      . At an evidentiary hearing held prior to trial, Kaul testified that he did not make a positive identification at this time due to a fear that he would condemn the wrong person.

      . This was undisputed.

      . In Long v. United States, 137 U.S.App.D.C. 311, 424 F.2d 799 (1969), the court held, as a sufficiently independent source, an identification made by a robbery victim who had the opportunity to observe a robber at close range in daylight.

      . The only apparent discrepancy was the existence of a scar on the left side of Scott’s neck which Kaul did not include in his description to the police. However, Kaul testified that he had observed Scott only from the front and right side.

      . Kaul testified at pre-trial hearing that when he viewed Scott’s photograph he had been about 75% certain that “that was the man.” Apparently the 25% uncertainty was attributable to Kaul’s recollection that the individual he identified as Scott had a “bushier head of hair” at the crime scene than he did in the picture.

      . Defendant’s argument that a witness should be per se disqualified when there has . been a prior illegal showup is without merit. The only case cited to support such a proposition is Allen v. Moore, 453 F.2d 970 (1st Cir. 1972). In dictum, the court found improper the use of one-way glass lineups by police, but Held that an independent basis of identification had been demonstrated through testimony of witnesses.

      . Our decisions in United States v. Robinson, 406 F.2d 64 (7th Cir. 1969), and United States v. Dichiarinte, 385 F.2d 333 (7th Cir. 1967), holding verbal reference to a defendant’s mugshot during trial was not prejudicial, do not militate against this conclusion.

      . Chapman v. California, 386 U.S. 18, 26, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

      . See United States v. Sanders, 322 F.Supp. 947 (E.D.Penn.1971), in which a district court held that even if a black and white photo purporting to be that of the defendant were inadmissible, submission of it to the jury was not reversible error, in view of the fact that there was overwhelming evidence connecting defendant to the crime.


author: MULLIGAN, Circuit Judge: KAUFMAN, Chief Judge

text:
    Dorcas BOND and Barbara Baldwin, Plaintiffs-Appellees, v. William H. DENTZER, Individually and as Superintendent of the Banking Department of the State of New York, Defendant-Appellee, Beneficial Finance Company of New York, Inc., and Protective Loan Corporation, Defendants-Appellants.
    No. 609, Docket 73-2377.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 10, 1973.
    Decided March 13, 1974.
    Kaufman, Chief Judge, dissented with opinion.

      Philip G. -Sonrag, New York City (Joel F. Spitzer, The Legal Aid Society of Albany, Inc., Albany, N.Y., of counsel), for plaintiffs-appellees.
    John T. DeGraff, Albany, N.Y. (William H. Allen, Eugene D. Gulland, Washington, D. C., for Beneficial Finance Co. of New York, Inc.; Harvey M. Lifset, Albany, N.Y., for Protective Loan Corp., on the brief) (DeGraff, Foy, Conway & Holt-Harris; Albany, N. Y., Covington & Burling, Washington, D. C., of counsel), for defendants-appellants.
    Jack Greenberg and Eric Schnapper, NAACP Legal Defense & Education Fund, Inc., New York City, for amicus curiae.
    Bernstein, Seawell, Kaplan & Block, New York City (Frederick H. Block, Harvey N. Goldstein, New York City, of counsel), for Household Finance Corp., amicus curiae.
    Before KAUFMAN, Chief Judge, MANSFIELD and MULLIGAN, Circuit Judges.
   MULLIGAN, Circuit Judge:

On October 12, 1970, the plaintiffs brought an action in the United States District Court for the Northern District of New York against Beneficial Finance Company of New York, Inc. and Protective Loan Corporation, as well as the Superintendent of the Banking Department of the State of New York, seeking inter alia, a declaration that the N.Y. Personal Property Law Art. 3-A (McKinney’s Consol.Laws, c. 41 1962), as amended, (McKinney Supp.1973), and the N.Y. Banking Law Art. 9 (McKinney’s Con-sol.Laws, c. 2 1971) are unconstitutional. The corporate defendants are loan companies licensed by the Banking Department pursuant to Article 9 of the Banking Law, to engage in the business of making small loans.

The plaintiff Dorcas Bond executed a wage assignment as security for a loan of money from the defendant Beneficial. She used the money to purchase a washing machine from a third party. Since the machine proved defective, she decided that she was no longer bound to make loan repayments. On or about September 1, 1970, Beneficial determined that she was in default and a copy of her wage assignment was filed with her employer. The plaintiff claims that she received no prior notice of the creditor’s intent to enforce the assignment. The employer took no action since Bond was no longer in its employ. Beneficial agreed not to seek enforcement of the assignment pending resolution of this suit.

The plaintiff Barbara Baldwin also executed an assignment of wages as security for a loan of money from the defendant Protective. On or about September 1, 1970, Protective determined that she was in default and caused a copy of the wage assignment to be served upon her employer. Baldwin makes the claim that she did not receive prior notice of the assignment and further claims that she has good and sufficient defenses, including fraud and deceit, to bar the enforcement of the assignment. Baldwin’s employer did deduct 10 percent of her gross weekly income and paid it to Protective until November 2, 1970, when Protective agreed not to enforce the assignment pending a final judgment in this case.

In the action below, plaintiff moved for the convening of a three-judge court under 28 U.S.C. §§ 2281 & 2284, and also sought permission to prosecute the suit as a class action. On April 19, 1971, the Hon. James T. Foley, United States District Court Judge, Northern District of New York, in an opinion reported at 325 F.Supp. 1343, denied the motion for the convening of the three-judge court, finding that the Superintendent of Banking had no responsibility for the enforcement of Article 3-A of the Personal Property Law, which is the basic codification of the law of wage assignments in New York. He found no interrelationship between that statute and Article 9 of the Banking Law under which the corporate defendants were licensed. He also denied the request for class action status on the ground that there were numerous institutions using wage assignments in addition to the two named defendants, and also because there could be a wide factual variance in the claims of debtors. Plaintiffs then sought a writ of mandamus from this court to compel the district court to convene a three-judge court and to permit the case to proceed as a class action. This court denied the petition by order dated May 14, 1971. (Docket No. 71-1467).

On July- 25, 1973, the district court granted the plaintiffs’ motion for summary judgment and denied the defendants’ motion to dismiss. 362 F.Supp. 1373. In addition to finding state action within the meaning of 28 U.S.C. § 1343 and 42 U.S.C. § 1983, the court determined that sections 46-49 of Article 3-A of the Personal Property Law were unconstitutional on their face and as applied insofar as they provided for execution against wages by service of a wage assignment upon an employer without meaningful notice to the assignor and without an opportunity for him to be heard. They were deemed to be viola-tive of the Due Process Clause of the Fourteenth Amendment. Finding no state action, we reverse.

It is not and cannot be disputed that the Fourteenth Amendment applies only to action by the State and not to action which is private. The “action” found offensive below is the filing of the wage assignment by the defendants with the employers of the plaintiffs, which they claim gives creditors the power to unilaterally decide when a debt exists and default occurs, thus precluding the debtor from effectively and realistically challenging the determination before the creditor takes the wages. If this action is private, we need not reach the merits of the due process question.

Concededly, there is no participation here by any state officer or agent, which serves to distinguish this case from both Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (ex parte issuance of a summons by a court clerk pursuant to a Wisconsin statute authorizing prejudgment wage garnishment), and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (replevin by summary writs issued by state courts and executed by state officials). The only state officer sought to be joined here, the Superintendent of Banks, was properly dismissed as a defendant by the court below in its order of April 19, 1971, since he plays no role whatever in the implementation of the wage assignment provisions of Article 3-A of the Personal Property Law.

The district court, however, found that “state action” could be bottomed on three principles which we will examine.

1) PARTNERSHIP

The court below, relying upon Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), found that state action exists here because the State has become a partner or a joint venturer with the creditor finance companies. In Burton, a restaurant, privately owned but open to the public, refused to serve a Negro only because of his color. The restaurant was located in a building owned by a state-created parking authority and leased from the authority. Aside from the offensiveness of the conduct involved, the State had provided the property where it occurred. This type of state participation is not present here. The loan companies are not the recipients of state aid by grant or loan and their facilities are privately owned. The “entwinement” cases, of which Burton is the prototype, represent generally cases of direct government subsidization, by grant or loan, of otherwise private institutions. They represent factual patterns so much at variance with the facts in this case that any further discussion of them is not fruitful here.

The court below also found a partnership to exist, apparently on the basis of the state licensing regulation which, it opined, gives “private interests . such economic advantages that they become business partners with the state in the regulation.” 362 F.Supp. at 1378. While the district court found no inconsistency between this view and Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), our recent opinion in Wahba v. New York University, 492 F.2d 96, 100 (1974) indicates otherwise. Judge Friendly there noted:

The Court in Moose Lodge could not have meant the reference to partners or joint venturers to be satisfied with some commonalty of economic interests simpliciter, since as a comment has pointed out, The Supreme Court 1971 Term, 86 Harv.L.Rev. 1, 73-74 (1972), such interests existed in a substantial degree in that case itself. The lodge received from the state permission to operate a lucrative business and obtained a valuable property right in the liquor license itself; the state, operating a monopoly system, was provided with a distributor that produced substantial revenue.

The State here does not receive any revenue from the licensing of lenders, and the finance companies, in any event, do not enjoy any monopoly in the lending of money on the security of wage assignments. Banks, trust companies and credit unions are authorized to loan money on such security and in fact are not required to comply with all the restrictions on wage assignments imposed by Article 3-A of the Personal Property Law. See N.Y.Pers.Prop.Law § 49 (McKinney 1962). Judge Mansfield's decision in Seidenberg v. Mc-Sorleys’ Old Ale House, Inc., 317 F. Supp. 593 (S.D.N.Y.1970), also relied upon below, dealt with a restaurant which engaged in discriminatory practices and was dispensing liquor to the public, a business which could only be conducted by obtaining a liquor license from the State and the control of which by the State was found to be pervasive. Moreover, the sale of liquor produced tax revenue for the State. The mere fact that the defendants here have operated under a license issued pursuant to Article 9 of the Banking Law is surely no reason to find state action. As we have pointed out in a comparable situation: “[t]his is true also of every corporation chartered under a special or even a general incorporation statute, and not even those taking the most extreme view of the concept have ever asserted that state action goes that far.” Powe v. Miles, 407 F.2d 73, 80 (2d Cir. 1968). The requisite state action must be related to the challenged activity. Shirley v. State Nat’l Bank, 493 F.2d 739, 743 (2d Cir. 1974). Moreover, as we will discuss in Part 2 of this opinion, the regulation provided by both Article 3-A of the Personal Property Law and Article 9 of the Banking Law, is conspicuously and designedly for the benefit of the borrower and not the lender.

The third alleged basis of state “partnership” found below is the “silent” partnership of the judicial branch of state government “using its power to further the acts of private interests which deprive a person of constitutional rights.” 362 F.Supp. at 1378. The court cited Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) and Brinkerhoff-Paris Trust & Savings Co. v. Hill, 281 U.S. 673, 50 S.Ct. 451, 74 L.Ed. 1107 (1930), neither one of which has any relevance here as far as we can see. In Shelley, the Supreme Court did find state action when state courts enforced offensive, racially discriminatory restrictive covenants. Here, however, no state court has precluded the debtors from doing anything. The gist of the claim is that the wage assignment agreement permitting the unilateral action of the creditor is sanctioned by the state legislature. It is the purported circumvention of the courts which is complained of and not their intrusion. Brinkerhoff-^Farris Trust & Savings Co. is equally inapposite. There, state action was found when a state court, overruling its own prior decisions, deprived a claimant, without adequate notice, of his right to contest a discriminatory state tax. Here, of course, no decision of any state court has denied the plaintiffs of any right to be heard.

2) ENCOURAGEMENT

The court below found encouragement by the State of New York and thus state action because the statutory scheme of Article 3-A of the Personal Property Law “commands” the procedures that purportedly deprive the plaintiffs of their constitutional right of due process, i. e., the right to a hearing before the wages are attached. 362 F. Supp. at 1179. The argument made here is similar to that made by the plaintiffs and rejected by this court in Shirley v. State Nat’l Bank, supra. The State in this case has not deprived the plaintiffs of anything. They have entered into agreements with the defendants in which they have secured funds on the distinct understanding that if there is a default on the loan, the creditor may attach and collect a percentage of the debtor’s wages. It was ever thus. A lender who advances money without any security except the fact that his debtor is employed, expects to be able to have access to the security without the necessity of commencing a law suit to establish the debt. No one has cited here nor have we found any case in this State which, prior to the enactment of Article 3-A of the Personal Property Law, found that the assignment was unenforceable unless the debt were first judicially established. The statute therefore does not take away something which previously existed. In fact, section 47-e of the Personal Property Law creates an action for the debtor if he wishes to contest the debt, and it is not argued that any such action existed at common law.

The argument is raised that since the wage earner is impecunious and is at the mercy of the finance corporation, the contract which he formally enters into is a contract of “adhesion” and presumably is to be disregarded. We, of course, agree that those who have no other security to offer but wages represent overwhelmingly that segment of the population which is at the lower rungs of the economic ladder. This is precisely why the State of New York has legislated. Absent the wage assignment device, the poor are left to the tender ministrations of the loan sharks, whose rates of interest and methods of enforcement are well understood by this court and anyone who reads its opinions or even the pages of the public press. Present Article 3-A was the product of a New York State Law Revision Commission Study and Recommendation. The policy of the State as revealed in the Commission Recommendation (1950 N.Y.Legis.Doc. No. 65(A)) is manifest. The State is concerned that the poor, who often have no other security but wages, have access to credit without resorting to loan sharks, and at the same time the State wishes to protect the debtor from overreaching. The safeguards afforded the debtor by the challenged Article are numerous.

Section 46-c(a) provides that the assignment shall be made in a separate written instrument in which all printed material is in at least eight point type, with the title “Assignment of Wages, Salary, Commissions or other Compensation for Services” in ten point bold type. Subsection (b) requires that the transaction to which the assignment relates be described fully, including the name and address of the assignee, the consideration given, and the date and place at which payments are to be made. On the face or back of the instrument there must be a summary of sections 46-c, 46-e, 46-f, 48, 48-a, 48-b, 48-c and 49 of the Article.

Section 46-e invalidates an assignment unless it is personally executed by the assignor and copies of the assignment and attached papers are delivered to the assignor.

Section 46-f limits the amount of interest collectable on a loan and bars other charges disguised as investigative costs or charges for the drawing of papers. Violation of this section is a misdemeanor.

Section 47 mandates filing of the assignment with the county clerk before it is filed with the assignor’s employer.

Section 47-d provides for a certificate of cancellation upon the payment of the debt.

Section 47-e provides for the vacation of an assignment upon application of the assignor, his employer or any person having an interest by court order in a special proceeding.

Section 48 requires that an assignee of future earnings wait 21 days after default by the assignor, notify the assignor of the default and wait another 10 days before filing the assignment with the employer.

Section 48-a limits the amount collectable in any month to no more than 10 percent of the assignor’s future earnings payable in such month.

Section 48-b prohibits the withholding of earnings unless such earnings amount to at least the sum of 30 dollars per week if the assignor is employed in a city of 250,000 or more and 25 dollars per week elsewhere.

It is abundantly clear that Article 3-A was primarily concerned with the protection of the wage earner-assignor and that its provisions were designed, not to encourage the assignment of wages, but -to discourage the overreaching of the wage earner. The fact that the statute provides that only wage assignments made pursuant to Article 3-A are collectable is merely a recognition of what had been true at common law before the statute was enacted, except that procedural and substantive safeguards were provided to protect the wage earner from loan shark techniques. The protection of the wage earner against the avarice of the finance company is further attested by the provisions of Article 9 of the Banking Law.

In this context, the phrase “contract of adhesion” becomes meaningless. In view of the admittedly unequal bargaining positions of the parties, the impoverished debtor is not subjugated to the whim of the creditor — the terms of the agreement are fixed by the State which has equalized the bargaining posture of the borrower. See generally Kessler, Contracts of Adhesion — Some Thoughts about Freedom of Contract, 43 Colum.L.Rev. 629 (1943).

The argument is made on this appeal that by the very existence of Article 3-A, the wage assignment device is sheltered from attack by the courts, by local legislative bodies and by an “evolving pattern of industrial conduct.” In short, the fact that the State has enacted legislation, per se, creates “state action.” Appellants argue that Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), presents a precise parallel. We cannot agree.

Reitman involved an amendment to the California State Constitution, Proposition 14, which banned the State from imposing any limitation on the right of a person to dispose of his real property. The amendment, in effect, created a state constitutional right to discriminate, repealing prior acts of the state legislature which had regulated racial discrimination in housing. The Supreme Court held that this effectively constituted state action which encouraged racial discrimination. Mr. Justice White pointed out in his opinion for the Court:

Private discriminations in housing were now not only free from [the regulatory statutes] but they also enjoyed a far different status than was true before the passage of those statutes. The right to discriminate, including the right to discriminate on racial grounds, was now embodied in the State’s basic charter, immune from legislative, executive, or judicial regulation at any level of the state government. Those practicing racial discriminations need no longer rely solely on their personal choice. They could now invoke express constitutional authority, free from censure or interference of any kind from official sources.

387 U.S. at 377, 87 S.Ct. at 1632.

The distinction between Reitman and the present case is clear. In Reitman, the amendment encouraged discrimination by repealing prior law and by greatly inhibiting any subsequent change. See Black, The Supreme Court, 1966 Term, Forward: “State Action,” Equal Protection, and California’s Proposition 14, 81 Harv.L.Rev. 69, 74-75 (1967). Article 3-A was not regressive in the field of debtors’ rights and there is no constitutional immunization from further change. Clearly, the New York Legislature is still free to act and indeed it has acted to prohibit wage assignments in certain cases. The argument that Article 3-A is immunized from attack by state courts and local agencies, and that this constitutes state action, is not persuasive. All legislative expressions of public policy prevent courts from reaching contrary conclusions. Moreover, any state statute which preempts a field precludes local agency legislation. See, e. g., Myerson v. Lentini Bros. Moving & Storage Co., 33 N.Y. 2d 250, 351 N.Y.S.2d 687, 306 N.E.2d 804 (1973). Thus the argument, followed to its logical conclusion, would provide an omnibus basis for finding encouraging state action simply because of the fact of legislation. We implicitly rejected such a concept in Shirley v. State Nat’l Bank, supra, in which we dealt with a Connecticut codification of the common law right of self-help repossession in conditional sales transactions. What we said there is equally applicable here:

Codification did not encourage the practice one whit. As we have pointed out, the legislation made it less attractive by providing greater safeguards ....

493 F.2d at 744. The argument that the Article shelters the wage assignment device from an evolving pattern of industrial and commercial conduct, has the virtue of novelty but again has no basis in reality or logic. Cf. Lucas v. Wisconsin Elec. Power Co., 466 F.2d 638, 657 (7th Cir. 1972), cert, denied, 409 U.S. 1114,. 93 S.Ct. 928, 34 L.Ed.2d 696 (1973). Judge Foley in his memorandum decision and order filed April 19, 1971, denying plaintiffs’ motion to convene a three-judge court and granting the defendants’ motion to dismiss the class action sought to be maintained, stated:

Further, if this New York statute is deficient, or not clear in its wording to prevent the injustice claimed by plaintiffs, then a common sense way to correct it would be to interest the Legislature of New York to change or improve the wording to embrace for court consideration fraud in lending and taking of the assignment. The Attorney General of New York has been foremost in the Nation in the creation of bureaus and divisions in his office that police and act upon grievances of this kind. No policy by any lawyer or group of lawyers seems sensible that bypasses these channels that might easily correct and avoid the filing of these obvious burdensome suits in federal or state courts. Relief from hardships imposed by State statute is the responsibility of a state legislature unless some constitutional right is infringed. (Nelson v. New York City, 352 U.S. 103, 110-111, 77 S.Ct. 195, 1 L.Ed.2d 171).

325 F.Supp. at 1351-1352. We are inclined to agree that the Attorney General of the State of New York and the New York State Legislature are perfectly competent to recommend and to effectuate statutory changes to succor the credit consumer. The continuing amendments to Article 3-A indicate a liberal and sympathetic attitude. We do not flinch from an inquiry into the due process issue, but under constitutional principles enunciated by the Supreme Court, we must first find state action, and we see no parallel to Reli-man in the “immunization” argument made on this appeal.

3) TRADITIONAL STATE FUNCTIONS

The final basis for state action urged here is that when a private person is performing, pursuant to a right accorded by statute, a function traditionally performed by the State, the acts of the individual may be described as state action. The difficulty with this position is that the legislation does not vest the assignee with any function traditionally performed by the State. The function of the wage assignment has always been that of a private levy without a prior court order. There was never any requirement or practice that has been called to our attention which mandated the creditor to first establish the debt before attaching the wages and which the State has now abrogated. In fact, as our prior discussion indicates, the State has created a right on the part of the debtor to question the debt by initiating an action which was not known at common law. In sum, the statute has not given the assignee anything new; it has in fact circumscribed substantially the rights of the creditor which were untrammeled at common law.

Our analysis of the involvement of the State of New York in the wage assignment device compels the conclusion that the legislature has not intruded at all into the so-called offensive conduct complained of here, but rather has regulated the terms of the arrangement to prevent the gouging of the impecunious. Article 3-A of the Personal Property Law, as well as Article 9 of the Banking Law, reveals a clear legislative concern to protect the necessitous from the loan shark by setting maximum interest rates and the maximum amount of the levy, and by otherwise assuring that the borrower be equitably treated. Even the size of the print in the agreement is fixed by statute. We are frankly loathe to interfere with this legislative judgment which represents years of measured policy making. It may be, as defendants urge, that a requirement- that plenary suit first be brought will either jeopardize the marketing of such credit or result in increased costs which can only add further to the burdens upon those already financially embarrassed.

The failure of the State to mandate a plenary action to establish the’ debt when none has ever been required by case law and is not required by the agreement, constitutes not only an absence of state action but also cannot be properly characterized as offensive or shocking. If the borrower uses funds to buy merchandise from a third person which proves to be defective, we are at a loss to understand how this provides him any excuse for failure to pay the loan as agreed. Yet, the plaintiff Bond claims that her constitutional rights are infringed since the defendant Beneficial is not required to sue her to establish the debt so that she can present the defense of breach of warranty. Both plaintiffs claim that the defendants were guilty of fraud and deceit without any particularization or suggestion of what this may be. In view of the detailed statutory safeguards we have discussed, it is difficult to imagine what kind of fraud or deceit could be established in a transaction, the terms of which by and large are predetermined by statute. The claim of failure to notify the plaintiffs of the filing of the assignment with the employer is moot in the case of Bond and is controverted in the case of Baldwin.

Judge Friendly, writing for this court in Wahba v. New York University, supra, observed that the finding of state action “hinges on the weighing of a number of variables, principally the degree of government involvement, the offensiveness of the conduct, and the value of preserving a private sector free from the constitutional requirements applicable to government institutions.” 492 F.2d at 101-102 (footnote added). Here, we find no state action since there is no significant involvement of the State in the challenged conduct. Moreover, the statutory scheme under attack reveals not an offensive or insensitive attitude, but rather one of understanding and beneficence toward the borrower. The State has sought to preserve and to insure that the needy have recourse to legitimate outlets of credit.

Reversed.

KAUFMAN, Chief Judge

(dissenting) :

After reading my brothers’ opinion as a sequel to Shirley v. State Nat’l Bank, 493 F.2d 739 (2d Cir. 1974), I can at least applaud them on their consistency. But, my views too are well known. I stated in Shirley v. State Nat’l Bank, supra, 493 F.2d at 745 (Kaufman, C. J., dissenting):

I am of the view that the lawful non-consensual taking of property is a uniquely governmental function, [and therefore] I consider its exercise, whether by state officials or by private individuals so empowered, subject to the due process constraints functionally required to avoid arbitrary deprivations.

The device of wage assignment — no matter how old, how sacred, how firmly embedded in our common law tradition —-rests nevertheless on the private implementation of the state’s monopoly power over binding conflict resolution. When a finance company unilaterally determines that the assignor-debtor is in default, the essential predicate for triggering the wage assignment mechanism —and then takes the drastic step of seizing a significant property interest without the consent of the holder — it is performing an adjudicative function which is a fundamental component of the role of government in our society.

Appellants urge, however, and the majority agrees, that this delegation of power to the private sector — this waiver, in effect, of the debtor’s constitutional right to have default determined under the aegis of government, with the procedural requirements attendant thereto — is sanctified by the consensual nature of the wage assignment agreement. Yet, the language of these agreements includes no mention of the procedural safeguards the debtor is asked to relinquish. Thus, my comment in Shirley v. State Nat’l Bank, supra, 493 F.2d at 745, n. 1 (Kaufman, C. J. dissenting), applies with equal force here:

As in Fuentes v. Shevin, 407 U.S. 67, 94-96, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), the fact that the plaintiff signed a form contract which authorized [wage assignment] will not immunize a seizure, under a waiver theory, where it is otherwise defective because the [wages are] seized without prior notice and an opportunity for a hearing. The absence of consent in the taking cannot be cured by resorting to the meaningless ritual of utilizing a contract of adhesion in which the fine print, even if read, fails to mention that the debtor has any right to a pre-seizure hearing.

Moreover, try as I might I cannot fathom how the majority finds comfort in Professor Kessler’s commentary on the now vacuous concept of freedom of contract — rendered an anachronism by the advent of the adhesion contract. Indeed, the author captures the very essence of the delegation of power principle by which so-called private conduct is infused with “state action.”

Society, by proclaiming freedom of contract, guarantees that it will not interfere with the exercise of power by contract. Freedom of contract enables enterprisers to legislate by contract and, what is even more important, to legislate in a substantially authoritarian manner without using the appearance of authoritarian forms. Standard contracts in particular could thus become effective instruments in the hands of powerful industrial and commercial overlords enabling them to impose a new feudal order of their own making upon a vast host of vassals.

F. Kessler, Contracts of Adhesion— Some Thoughts About Freedom of Contract, 43 Colum.L.Rev. 629, 640 (1943) (footnote omitted). It strikes me as rather fatuous to argue, as the majority does, that “the phrase ‘contract of adhesion’ becomes meaningless [because] the impoverished debtor is not subjugated to the whim of the creditor” when perhaps the most critical and certainly the most self-serving determination in the debtor-creditor relationship —default—is left by contract to the creditor, ex parte.

Indeed, by following the “consensual” path hewn by the majority, we go far toward eviscerating the salient teaching of Sniadach v. Family Finance Corp., 395 U.S. 337, 340, 89 S.Ct. 1820, 1822. 23 L.Ed.2d 349 (1969) concerning the injustices which arise from “prejudgment garnishment whereby the sole opportunity to be heard comes after the taking.” To be sure, my brothers have no difficulty whatsoever with Sniadach and with a mere nod they indicate their awareness of its existence. They then proceed to distinguish Sniadach from this case by noting the absence here of the court clerk’s purely ministerial role in Sniadach in issuing the ex parte summons. Meaningless distinctions of this sort are intended to give the appearance of continuity of the law, when in fact the majority here has clearly parted company with the Supreme Court’s rationale in Sniadach and Fuentes. It can hardly be questioned that the result of the filing of the wage assignment in this case was the equivalent in its effect to the garnishment proceedings in Snia-dach. If the debtor’s consent to the wage deprivation is not meaningful, as it cannot be without at least an understanding of the procedural shortcuts which follow wage assignment, compare Swarb v. Lennox, 405 U.S. 191, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972) with D. H. Overmyer v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972), then that “consent” serves merely to camouflage the taking. The words of the Court, though uttered in a different context, are strikingly appropriate:

To hold otherwise would be to exalt artifice above reality and to deprive the [decision in Sniadach] of all serious purpose.

Gregory v. Helvering, 293 U.S. 465, 470, 55 S.Ct. 266, 268, 79 L.Ed. 596 (1935).

Nor can New York’s wage assignment statute be cleansed of its constitutional impurities by relying on the benevolence of the New York legislature in promulgating it. The Court, in Sniadach, was quite explicit about the relevance of good intentions:

The question is not whether the Wisconsin law is a wise law or [an] unwise law. Our concern is not what philosophy Wisconsin should or should not embrace, [citation omitted]. We do not sit as a super-legislative body. In this case the sole question is whether there has been a taking of property without that procedural due process that is required by the Fourteenth Amendment.

Sniadach v. Family Finance Corp., supra, 337 U.S. at 339, 89 S.Ct. at 1821.

Accordingly, since I find the requisite “state action” in the appellants’ performance of the uniquely public function of adjudication, and because the § 47-e “special proceeding” requires initiation by the debtor, a burden we have found constitutionally impermissible in our recent decision, Hernandez v. European Auto Collision, Inc., 487 F.2d 378, 385 n. 4 (Timbers, J. concurring in an opinion joined by Lumbard, J.), I would affirm Judge Foley’s decision — a well reasoned and sound analysis of the law.

      . See, e. g., Wahba v. New York University, 492 F.2d 96, (2d Cir. 1974); Grafton v. Brooklyn Law School, 478 F.2d 1137 (2d Cir. 1973); Male v. Crossroads Associates, 469 F.2d 616 (2d Cir. 1972).

      . Although N.Y.Pers.Prop.Law § 47-e (McKinney Supp.1973) provides that “[a]n assignment may be vacated by a judgment of a court of record upon a special proceeding brought by the assignor, his employer or any person having an interest therein,” the plaintiffs have never sought such relief. The defendants here have commenced an action in the New York Supreme Court, Albany County, against the plaintiffs seeking a declaratory judgment as to the meaning of various provisions of Article 3-A and their constitutionality, but there has been no final decision in that case.

      . We have noted that section 47-e, providing for the vacation of wage assignments, is absent from the list of sections required to be printed in the agreement. Our review of the legislative history has revealed no reason for this omission, and it may well have been due to inadvertence in view of New York’s exhibited concern that debtors be afforded a swift and meaningful remedy for vacating invalid assignments. New York adopted remedial legislation establishing a simplified procedure for vacation as early as 1941. See Law of April 28, 1941, ch. 867, [1941] N.Y. Laws 164th Sess. p. 1977; Sheer v. Family Finance Corp., 46 N.Y.S.2d 398 (Sup.Ct. 1944). When this did not prove sufficient to protect the rights of debtors, the New York Legislature acted in 1960 to correct what the Governor characterized as “defects” in the prior law. Message of the Governor, 1960 McKinney Sess.Laws of N.Y. at 2010. In any event, plaintiffs do not consider that the section 47-e action provides “Due Process.”

      . “The purpose of [Article 9] is to protect from exorbitant and unconscionable demands the poor and needy who are compelled to borrow small sums to meet a pressing necessity. London Realty Co. v. Riordan, 207 N. Y. 264, 269, 100 N.E. 800 . . . .” Hennessey v. Personal Finance Corp., 176 Misc. 201, 204, 26 N.Y.S.2d 1012, 1016 (Sup.Ct.1941). See also In re Radner, 36 F.Supp. 964 (S.D.N.Y.), aff’d, Madison Personal Loan v. Parker, 124 F.2d 143 (2d Cir. 1941).
      Section 340 requires that persons and organizations in the business of making small loans obtain from the Superintendent of Banks a license which subjects them to the regulatory provisions of Article 9. (Prior to 1973 small loans were those amounting to 1400 dollars or less; the sum has now been raised to 2500 dollars). Section 343 provides the conditions under which a license may be issued, including a finding by the Superintendent “that the financial responsibility, experience, character, and general fitness of the applicant . . . are such as to command the confidence of the community and to warrant belief that the business will be operated honestly, fairly, and efficiently . . . . ” Licensees are required to maintain books and records (§ 350) and the Superintendent is authorized to make investigations at any time, and at least once annually, to assure compliance with the Article. § 349. Non-compliance may result in the revocation of the license. § 348.
      Many violations of Article 9 are penal and void the loan. § 358. Section 352, for example, forbids devices to split loans to secure higher interest rates than those set by the Article and prohibits deduction of interest in advance and the compounding of interest. Section 356, which is the only section in Article 9 directly related to wage assignments, invalidates an assignment where the loan is not paid to the borrower simultaneously with the execution of the assignment and limits any levy under the assignment to 10 percent of the assignor’s wages at the time they are payable.

      . See N.Y.Pers.Prop.Law § 413(10) (b) (McKinney Supp.1973), wliich precludes the inclusion of a clause in a retail instalment credit agreement providing for the assignment of wages.

      . Although wage assignments were well known in New York before the adoption of Article 3-A of the Personal Property Law (see Field v. New York, 6 N.Y. 179 (1852); Continental Purchasing Co. v. Van Raalte Co., 251 App.Div. 151, 295 N.Y.S. 867 (4th Dep’t 1937); 3 Williston, Contracts § 413 (3d ed. 1960)), “[w]age assignments are not favored by New York Courts. In re Jones’ Claim, 19 A.D.2d 330, 242 N.Y.S.2d 1004, aff’d 14 N.Y.2d 558, 248 N.Y.S.2d 652, 198 N.E.2d 40. The legislature has surrounded such assignments of future earnings with closely regulated conditions for the protection of the wage earner and his family. Personal Property Law Art. 3-A.” Pay Bills Finance Corp. v. Mead, 60 Misc.2d 1051, 1052, 304 N.Y.S.2d 356, 357 (Sup.Ct. 1969).

      . We noted in Shirley v. State Nat’l Bank, 493 F.2d 739, 744 (2d Cir. 1974) that this court has frequently indicated that the resolution of the state action question reached in a case involving racial discrimination may well and properly differ from that adopted in other contexts. United States v. Wiseman, 445 F.2d 792, 795 n. 3 (2d Cir.), cert. denied, 404 U.S. 967, 92 S.Ct. 346, 30 L.Ed. 2d 287 (1971); Lefcourt v. Legal Aid Society, 445 F.2d 1150, 1155 n. 6 (2d Cir. 1971); Powe v. Miles, 407 F.2d 73, 82, 85 (2d Cir. 1968); Wolin v. Port Authority, 392 F.2d 83, 89 (2d Cir.), cert, denied, 393 U.S. 940, 89 S.Ct. 290, 21 L.Ed.2d 275 (1967).

      . I fail to understand the majority’s reliance on Judge Friendly’s three-pronged test in Wahba v. New York University, 492 F.2d 96, 101-102. It lias no relevancy to this case since, unlike Wahl a, a finding of “state action” here would not turn on the applicability of the “partnership” or “symbiosis” test.


author: FRIENDLY, Circuit Judge:

text:
    TRANSAMERICAN TRAILER TRANSPORT, INC., Petitioner, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents.
    No. 553, Docket 73-1979.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 22, 1974.
    Decided March 14, 1974.
    George F. Galland, New York City (Galland, Kharaseh, Calkins & Brown, Amy Scupi, and Olga Boikess, Washington, D. C., of counsel), for petitioner.
    John B. Wyss, Dept, of Justice, Washington, D. C.’ (James L. Pimper, Gen. Counsel, Edward G. Gruis, Deputy Gen. Counsel, and Gordon M. Shaw, F. M. C., Washington, D. C., Thomas E. Kauper, Asst. Atty. Gen., and Irwin A. Seibel, Dept, of Justice, Washington, D. C., of counsel), for respondents.
    Before LUMBARD, FRIENDLY and TIMBERS, Circuit Judges.
   FRIENDLY, Circuit Judge:

Although the parties have treated this petition to review as presenting portentous questions of the power of a regulatory agency over tariff filings, in fact it is a Donnybrook of microscopic triviality. The controversy stems from an order of investigation and suspension (hereafter the suspension order), see generally 46 U.S.C. § 845, issued by the Federal Maritime Commission (FMC) on March 16, 1973. The order related to tariffs of petitioner Transamerican Trailer Transport, Inc. (TTT) (as well as two competitors of TTT not involved in the present litigation), which, so far as here relevant, proposed a 15.2% surcharge on traffic between United States Atlantic ports and Puerto Rico, allegedly to offset increased labor costs resulting from the carriers’ contract with the International Longshoremen’s Association. Other issues relating to the labor agreement are before this court in New York Shipping Association, Inc. v. Federal Maritime Commission, Docket No. 73-1919, heard by this same panel, and Transamerican Trailer Transport, Inc. v. Federal Maritime Commission, Docket No. 73-2253, which we direct shall also be. After examining data submitted by the carriers and various protests, the FMC concluded, on the one hand, that the proposed surcharge should be made the subject of a public investigation and hearing but, on the other, that "the full exercise of its suspension authority would not be warranted” and that “that portion of the surcharge not exceeding 5.2% applicable to all U.S. Atlantic ports would not require suspension, although the entire surcharge will be subject to investigation herein.” In the decretal portion of the order, the FMC directed that an investigation should be instituted into the tariff pages providing for the 15.2% surcharge; that these pages should be suspended through July 16, 1973 unless otherwise subsequently ordered; that the carriers should immediately file supplements describing the suspended matter and stating that the tariffs could not be used until July 17, 1973, unless otherwise authorized by the Commission; and that the carriers might file “the tariff matter necessary to effectuate a surcharge of 5.2% on all rates between U.S. Atlantic ports and ports in Puerto Rico, such tariff matter to become effective on not less than one day’s notice and to expire on July 16, 1973, unless otherwise ordered by the Commission.”

TTT’s two competitors filed new tariff matter which recited that the pages proposing the 15.2% surcharge had been suspended pending investigation and placed the temporary 5.2% surcharge in effect. TTT’s Supplement No. 35, filed on March 16, 1973, effective March 18, 1973, to which a copy of the suspension order was appended, recited that only 10% of the surcharge was suspended and that a 5.2% surcharge would be applied during the period of suspension. Although the legal effect of TTT’s filing did not differ from its competitors’, the FMC staff objected by telephone that Supplement No. 35 misstated the suspension order since in fact the whole of the 15.2% surcharge had been suspended with leave to file a temporary 5.2% surcharge. When counsel for TTT refused to reword the supplement, at least until the FMC had put its objections and preferred language in writing, the FMC staff, on March 23, 1973, rejected Supplement No. 35.

After many recriminatory writings back and forth, TTT on May 4, 1973, filed Supplement No. 36. This bowed to the staff’s view that the entire 15.2% had been suspended and proposed a 5.-2% surcharge during the period of suspension but effective March 18, 1973. This was immediately rejected on the ground that it did not provide for effectiveness on one day’s notice as the Commission’s order had specified but purported to have retroactive effect. A request by TTT for reconsideration on May 14 brought a similar rejection two days later. Finally, faced with the possibility of actions by shippers to recover the 5.2% surcharge paid while no tariff providing for this was on file, TTT on May 17, 1973 filed Supplement No. 37, which was accepted; this recited suspension of the entire 15.2% surcharge and made the 5.2% surcharge effective May 18, 1973, “without prejudice to the Carrier’s position that valid Suspension Supplements imposing the surcharge beginning March 18, 1973 were lawfully filed but rejected by the Federal Maritime Commission.” After the FMC had rejected requests that Supplement No. 35 be deemed to have been effective until the effective date of Supplement No. 37 and that Supplement No. 37 be deemed to have been issued in lieu of Supplement No. 36, TTT filed this petition to review that rejection.

TTT's plight is largely of its counsel’s own making. Our notions of arithmetic are not sufficiently refined to detect any difference in result between 15.2% — 15.2% +5.2% and 15.2% — 10.-0%. Neither would acceding to the views of the FMC staff and amending Supplement No. 35 before its rejection, as the staff had suggested, have affected TTT’s legal position in any way. Furthermore, the staff’s position accorded with the decretal portion of the suspension order although language in the body of the order looked the other way. However, the FMC staff also deserves high marks for obstinacy. Although an elaborate brief, citing 45 cases, asserts the importance of form in tariff filings, it fails to explain what hurt would have been inflicted, save on the feelings of the staff, if Supplement No. 35, which included the full text of the suspension order, had been allowed to take effect. Form is one thing and formalism is another. At the very least, once TTT had made the trip to Canossa, it was an abuse of discretion for the Commission not to use its power under § 25 of the Shipping Act, 46 U.S.C. § 824, to allow Supplement No. 35 to become effective for the interval between March 18 and May 18, 1973.

While we dislike awarding a victory medal to TTT’s counsel, whose stiff-necked attitude has produced wholly unnecessary work for the FMC and for us, we cannot disregard the serious consequences which denial of the petition might have. Although the FMC points out that equitable arguments may be considered in defense of a shipper’s claim under § 2 of the Intercoastal Shipping Act, 46 U.S.C. § 844, and § 22 of the Shipping Act, 46 U.S.C. § 821, for charges collected in excess of those provided in a filed tariff, see Consolo v. FMC, 383 U.S. 607, 621-622, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966), any joy TTT might otherwise gain from this is considerably tempered by the FMC’s listing no fewer than seven “equitable” considerations which allegedly would influence it to rule adversely; and the Consolo decision emphasizes how limited is the power of a reviewing court in a reparations proceeding to interfere with the Commission’s exercise of discretion in weighing equitable factors. Recovery of overcharges not only would inflict on TTT an injury disproportionate to the offense, if offense there was, but would confer an undeserved and discriminatory benefit on shippers who utilized the services of TTT rather than of its two competitors. The FMC’s action thus not only serves no valid regulatory purpose but might achieve the opposite. Considering how trifling was the defect in Supplement No. 35 and that even this drew some support from the text of the suspension order, we direct the Commission to permit it to be filed effective for the period March 18 until May 18, 1973.

It is so ordered. No costs.

      . We are informed by the Commission that, at least as of February 26, 1974, it has not completed its investigation into the 15.2% surcharge. By its own terms and as required by statute, the suspension order lapsed on July 16, 1973.


author: COFFIN, Chief Judge.

text:
    AMERICAN HOME ASSURANCE COMPANY et al., Plaintiffs, Appellants, v. INSULAR UNDERWRITERS CORP. et al., Defendants, Appellees. MANUEL SAN JUAN COMPANY, INC., et al., Plaintiffs, Appellees, v. AMERICAN INTERNATIONAL UNDERWRITERS CORP. et al., Defendants, Appellants.
    Nos. 71-1111, 71-1029, 71-1120.
    United States Court of Appeals, First Circuit.
    Argued Feb. 5, 1974.
    Decided March 18, 1974.

      Peter J. Malloy, Jr., New York City, with whom R. H. Francis and Juan F. Doval, San Juan, P. R., were on motion for plaintiffs, appellants to review order of the District Court and memorandum in support thereof.
    Wallace Gonzalez-Oliver, San Juan, P. R., for defendants, appellees in opposition to the motion.
    Before COFFIN, Chief Judge, Me-ENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

These are appeals from orders remanding to the Superior Court of the Commonwealth of Puerto Rico actions which had been commenced there by ap-pellees and removed to the federal district court, and dismissing an action for declaratory relief, growing out of the same controversy, which had been commenced in the federal district court by appellants.

The tangled procedural history of this case begins on September 22, 1970, when appellants, insurance underwriters whose headquarters are in New York, notified appellees, their general agents in Puerto Rico, that the agency contracts first entered into in 1962 were to be cancelled as of December 31, 1970. At the same time, appellants sought a declaratory judgment from the district court that the Puerto Rican Dealer’s Contract Law, Law 75 of 1964 (10 L.P. R.A. § 278 et seq.), which restricts the cancellation of dealer contracts, was inapplicable to general agency contracts. Later that same day, appellees commenced a separate action in the Superior Court of the Commonwealth, and obtained a protective order enjoining appellants from cancelling the agency contracts. Appellees’ action was then removed to the district court, on appellants’ motion, and another protective order granted them. Appellees moved to remand their action to the Superior Court of the Commonwealth, contending that the federal district court lacked jurisdiction, but their motion was denied. Appellants appealed the reinstatement of the protective order, and appellees contested the denial of their motion to remand. We stayed the appeals pursuant to the mandate of Fornaris v. Ridge Tool Co., 400 U.S. 41, 91 S.Ct. 156, 27 L.Ed.2d 174 (1970), until the courts of the Commonwealth had had an opportunity to interpret Law 75.

This status quo was preserved for the next two years, while appellants continued to seek a federal forum, and Law 75 continued in effect without authoritative interpretation by the courts of the Commonwealth. Finally, in Warner Lambert Co. (American Chicle Co. Division) v. Superior Court of Puerto Rico, San Juan Part, - P.R.R. - (May 9, 1973), the Superior Court of the Commonwealth held that Law 75 did not apply retroactively to contracts entered into before its enactment in 1964. We therefore granted appellants’ motion to vacate the stay, and remanded the various actions to the district court. The district court then decided that it had no jurisdiction over appellees’ cause of action, which had been improvidently removed from the Commonwealth courts three years before, and therefore granted appellees’ motion to remand. Concluding that a disposition of appellees’ actions would necessarily dispose of appellants’ claim, and wishing to avoid multifarious suits, the district court dismissed appellants’ action for declaratory relief. It is from this posture that appellants now appeal, both from the order of remand of appellees’ actions and from the order dismissing appellants’ declaratory judgment action without prejudice.

Appellants contend that the district court abused its discretion in remanding the appellees’ action to the Commonwealth courts, because the original removal had been proper. Appellants also argue that the district court abused its discretion in dismissing appellants’ action for declaratory relief, since appellants’ action was commenced before that of appellees, and a resolution of that action would resolve all of the issues between the parties. What is understandably galling to appellants is that, three and one half years after their suit was filed, and almost one year after the Puerto Rico Supreme Court in Warner Lambert decreed that Law 75 does not apply to dealer contracts entered into prior to its passage, they are in the Sisyphean predicament of being forced to labor under their contractual arrangement — of ever diminishing value — with appellees, while appellees have been free to develop their own lucrative business. But much of the delay was occasioned by the Forwans-mandated restraint awaiting interpretation of Law 75 by the Supreme Court of Puerto Rico. And, now that the district court has at last made its decision, we conclude that the twin barriers of lack of appellate jurisdiction over the order to remand and somewhat limited scope of review over the order of dismissal of the declaratory action outweigh the demonstrated tenacity of appellants in trying to stay in a federal forum. We therefore affirm.

Appellants base their challenge to the remand on an alleged fraudulent joinder of several Commonwealth party defendants in appellees’ action who, say appellants, are nominal parties joined for the sole purpose of defeating diversity jurisdiction in the federal courts. Appellants argue that appellees’ basic cause of action is breach of contract, which lies solely against appellants, and that the joined Commonwealth defendants are mere agents or “middlemen” through which the actions of appellants were carried out and communicated to appellees. Appellees, on the other hand, maintain that the joined defendants played an active part in the scheme to cancel the general agency contracts, and that in all likelihood the named defendants would become appellants’ new general agents if cancellation of the old contracts were effective. Their cause of action, they say, is founded in tort and, therefore, the joined defendants, who acted far beyond an agency capacity, are joint tortfeasors. Appellees also allege causes of action which arise under the Puerto Rican law relating to nuisance, “Perturbación” and “Menoscabo”, 32 L.P.R. § 2761, under the law against conspiracy and restraint of trade, 10 L.P.R.A. §§ 258, 259, and the statute protecting freedom of speech, 1 L.P.R.A. § 11.

However meritorious we find argument on either side, we are unable to jump into the foray. Review of the district court’s decision to remand is simply outside our province. 28 U.S.C. § 1447(d). See Chandler v. O’Bryan, 445 F.2d 1045 (10th Cir. 1971); Louisiana State Board of Medical Examiners v. Howze, 445 F.2d 586 (5th Cir. 1971). As we said in In re La Providencia Development Corp., 406 F.2d 251 (1 Cir. 1969), “Removal in diversity cases, to the prejudice of state court jurisdiction, is a privilege to be strictly construed and the state court proceedings are to be interfered with once, at most.” We based our decision then, as we do now, not only upon judicial economy, but also in recognition of principles of comity. “The action must not ricochet back and fourth depending upon the most recent determination of a federal court.” Id. at 252.

Appellants urge an exception to this rule in cases, such as the present one, where the action, once removed to the federal courts, has continued there for a significant length of time. They imply that after such a time, both the moving party and the court itself are es-topped from remanding, on a theory somewhat akin to waiver or laches. Moreover, they point out that in the present case, in our order of June 6, 1973, remanding the case to the district court, we specifically retained appellate jurisdiction.

While we are cognizant of the three year lapse here between removal and order to remand, and are sensitive to the reliance which the appellants placed upon the federal forum during that time, we think the well established policy against appellate review of remand orders should control. We are not faced with the situation where the party favoring remand has sat silent until the last moment. French v. Hay, 22 Wall (89 U.S.) 238, 244-245, 22 L.Ed. 854 (1874). Instead, appellees resisted removal, and made timely objection. Nor do we have a situation in which the federal action has progressed toward final disposition. Here, the action was stayed for two years pending an authoritative interpretation of Law 75 from the Commonwealth courts, an interpretation which the appellants themselves could have received at any time had they been • willing to go to the Commonwealth forum. Nor should our words of June 6 be construed as a retention of federal jurisdiction, regardless of remand by the district court. At that particular juncture we decided to retain jurisdiction to review those orders of the district court which we had authority to review.

Appellants base their second contention, that the district court abused its discretion in dismissing appellants’ action for declaratory relief, upon the fact that appellants won the race to the courthouse door on September 22, 1970, and therefore, if the issues are to be resolved anywhere, they should be resolved in the winner’s circle.

In reviewing a district court’s exercise of its discretion to grant or deny declaratory relief, we need not be quite so deferential as we are when reviewing other instances of district court discretion. Nevertheless, if discretion is to have meaning at all, we would not, in close cases, substitute our own judgment for that of the trial court. See 6A Moore’s Federal Practice § 57.08 [6-1]. This scope of review necessarily entails consideration of the reasons underlying dismissal.

The purpose of allowing declaratory relief is to expedite the resolution of a controversy by clarifying legal issues. But against the possible benefit to be gained from clarification must be weighed the possible waste of judicial time and energy in entertaining multifarious suits. Thus, it is irrelevant who won the race to the courthouse door. See Brillhart v. Excess Ins. Co., 316 U.S. 491, 495, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942); Product Engineering and Mfg. Co., Inc. v. Barnes, 424 F.2d 42 (10th Cir. 1970); N. Y. Central R. R. v. Colonial Stores, Inc., 332 F.Supp. 531 (S.D. Ohio 1971); contra E. W. Bliss Co. v. Gold Metal Process Co., 102 F.2d 105 (6th Cir. 1939). The relevant question is, rather, whether at .the time of hearing the motion to dismiss, “there is such a plain, adequate, and speedy remedy afforded in the pending state court action, that a declaratory action will serve no useful purpose.” Franklin Life Insurance Co. v. Johnson, 157 F.2d 653, 657 (10th Cir. 1946). Such a question will be resolved by considering the convenience of the courts, comparative condition of the dockets, the certainty of jurisdiction, and the joinder of all parties and causes of action.

Nor should declaratory relief be used as a means to winning the res judicata race from the courthouse door. Independent Tape Merchants Ass’n v. Creamer, 346 F.Supp. 456 (M.D.Pa.1972). If a pending state action will ultimately resolve the issues, it is probably inadvisable to place the parties in a competing position, the first to complete his litigation gaining the benefit of res judicata, unless there are good reasons for doing so.

With these considerations in mind, we cannot say that it was erroneous for the district court to dismiss appellants’ action for declaratory relief. In neither court have proceedings gone beyond the filing of affidavits and other documents. Two substantive issues present in the Law 75 controversy are whether a novation of the original contract has been effected and whether Law 75 applies to contracts between insurance companies and their general agents. There would seem to be some advantage in these issues being decided by the courts of the Commonwealth. Moreover, appellees’ action in the Commonwealth courts is more comprehensive than is appellants’ federal claim, including as it does additional party defendants and additional claims. The additional party defendants may not be indispensable to the action; indeed, the Com3nonwealth courts might dismiss the claims against them on grounds that under the Commonwealth’s law of agency, they are not liable for the torts of their principal, or, as employees, not capable of conspiring with their corporate employer. The additional causes of action under Puerto Rican law might also be dismissed by the Commonwealth courts. But since a disposition of all the claims in that forum, whatever their outcome, is likely to still the controversy more completely than in the federal courts, the district court was justified in denying declaratory relief. Clearly, also, the Commonwealth courts have jurisdiction over the subject matter. And finally, while we are in no position to judge the relative condition of the dockets in the Commonwealth and federal courts, we know of no reason why appellants will not be able to receive a reasonably prompt disposition of both any claim for provisional relief or their long awaited claims on the merits in that forum. Should events prove us wrong, appellants’ suit in federal court having been dismissed without prejudice, they would be free to bring another action.

Affirmed.


author: PER CURIAM:

text:
    Vincent ANDERSON and Christine Anderson, Plaintiffs-Appellees, v. Jack DeCRISTOFALO et al., Defendants-Appellants, Thelma Black, Defendant, Patrick Murphy et al., Defendants.
    Nos. 310, 644, Dockets 73-1417, 73-1049.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 14, 1974.
    Decided March 13, 1974.

      Martin H. Selman, New York City (Adrian P. Burke, Norman Redlich, Corp. Counsel of City of New York, and Stanley Buchsbaum, New York City, on the brief), for defendants-appellants.
    Allen R. Bentley, Brooklyn, N. Y. (John C. Gray, Jr., Douglas J. Kramer, Brooklyn Legal Services Corp. B, Brooklyn, N. Y., Richard Kay, Bart Stachman, and Jack Duksin, Student Assts., on the brief), for plaintiffs-appellees.
    Before MOORE, FRIENDLY and ANDERSON, Circuit Judges.
   PER CURIAM:

Sometime prior to March 30, 1971, Vincent and Christine Anderson, subtenants and also distant relatives of the owner lessor, Thelma Black, decided they were paying an illegally excessive rent, but instead of bringing a direct action against their immediate lessor, they devised a plan with Mrs. Black to dispossess him through summary proceedings. It was part of the scheme thát the Andersons would not pay the rent and would keep silent at the dispossession hearing, despite their clear right to intervene to protect their interests, Turf Screen Printers, Inc. v. Gray, 34 Misc.2d 223, 225 N.Y.S.2d 685, 689 (1962). The Andersons fulfilled this part of the understanding. After dispossession was awarded on May 25, 1971, it was further agreed that they would comply by moving out temporarily but later take possession again as tenants of Thelma Black.

There was an apparent lack of trust between them, however, because the An-dersons either did not completely move out as agreed or reentered after a very short time interval; and, unknown to Thelma Black, they paid the arrears in rent to the Kings County Court on June 4th. Meanwhile, in order to prevent their return, Mrs. Black had instructed that the lock on the apartment be changed.

At a late hour on the night of June 4, another tenant telephoned Mrs. Black and informed her that someone was in the apartment formerly occupied by the Andersons. Mrs. Black, armed with the dispossession order, went to the police station and asked for an investigation. She asserted that she was the owner of the building and that the intruder was an unknown person because the former tenants had already voluntarily left the premises.

When the defendant officers and Mrs. Black arrived at the apartment, a bitter quarrel, the ramifications of which were not clear to others, arose between Mrs. Black and Mr. Anderson. The court below found that throughout this period of time the policemen “did not offer any rudeness or offense or affront to the Andersons. Their efforts were directed to producing quiet, bringing about peace, and avoiding an arrest which they were loath to make, but which, they made clear to the Andersons, they were prepared to make at Thelma Black’s insistence or upon her action if the Ander-sons did not leave the apartment at once. The policemen at the building believed Thelma Black’s assertions of fact and they thought that the Andersons had not disproven her claims and were not lawfully in the apartment. . . . That belief was entertained in good faith.”

The district court denied the Andersons relief under 42 U.S.C. § 1983 because it concluded that the policemen’s belief that a trespass was continuing was not “entertained in bad faith and it was, even if erroneous, reasonable.” It assumed pendent jurisdiction, however, over a claim of wrongful eviction under New York state law and held the policemen and Mrs. Black liable in damages to the plaintiffs. Mrs. Black did not appeal.

The Andersons argue against the claims of the appellants policemen that the good faith-reasonable belief defense set forth in Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 456 F.2d 1339 (2 Cir. 1972), and relied on below, is not available in § 1983 actions, and that the defense in any event could not have been met on the facts of this case. We reject both claims.

This court explicitly stated in Bivens that the defense described therein was “the same defense held applicable to cases arising under Section 1983,” 456 F.2d at 1347. Other Circuits have reached the same conclusion. See, e. g. Hill v. Rowland, 474 F.2d 1374, 1377 (4 Cir. 1973); Rodriguez v. Jones, 473 F.2d 599, 605 (5 Cir.), cert, den., 412 U.S. 953, 93 S.Ct. 3023, 37 L.Ed.2d 1007 (1973). The police officers acted in good faith and in the reasonable belief that arrests made in these circumstances would be valid.

Assuming that the district court had the power in its discretion to consider the plaintiffs’ claim under state law as well as the federally based action, and recognizing that the court exercised its discretion in favor of such consideration under the doctrine of pendent jurisdiction, United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Whirl v. Kern, 407 F.2d 781, 793 (5 Cir. 1968), nevertheless the conclusions and judgment ordering the officers to pay damages for participating in an eviction without a warrant of dispossession and sufficient notice as required under New York law were error and the judgment is therefore reversed.

The policemen were not called to effect the eviction of a tenant but were acting on a trespass complaint by Mrs. Black. In the course of looking into it, they quelled a late, nighttime distur-banee. At most, their conduct should be judged by the standards governing arrests, with the defenses available to them under New York Code of Criminal Procedure, § 177.

We have neither been directed to nor found any New York case which has imposed liability on policemen in any circumstances remotely analogous to the case before us; particularly where, as here, the plaintiffs themselves actively participated in creating and exacerbating the situation so that the police were deceived as to the true legal interests and relations of the parties. The police acted in a reasonable and restrained manner in their principal endeavor which was to preserve the public peace. Cf. Quinn v. McCochrane, 210 App.Div. 569, 206 N.Y.S. 550 (1924).

The judgment of the district court is affirmed in part and reversed in part and the complaint is ordered dismissed.

      . Although the thrust of the holding is not altered, the opinion erroneously mentions Bivens as a “§ 1983 case for damages against federal narcotics agents,” 473 P.2d at 605.