author: DUNIWAY, Circuit Judge: KILKENNY, Circuit Judge

text:
    Alec S. HAMILTON, Jr., a minor, By and Through his guardian Ad Litem, Ida Laverne Hamilton, Ida Laverne Hamilton, Individually and as Executrix of the Estate of Alec Sydney Hamilton, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. James P. Van GILDER, Plaintiff-Appellant, v. UNITED STATES of America, a sovereign nation, Defendant-Appellee. Debra Ann WHITLOW, a minor, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. LEWIS & CLARK TRADING COMPANY and H. J. Stockman, dba Lewis & Clark Trading Company, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
    Nos. 72-1346, 72-1384, 72-1335 and 72-1349.
    United States Court of Appeals, Ninth Circuit.
    May 9, 1974.

      Ned Good (argued), Los Angeles, Cal., for plaintiffs-appellants in 72-1335.
    Albert R. Abramson, of Hoberg, Finger, Brown & Abramson, San Francisco, Cal., for plaintiff-appellant in 72-1346.

      Gilmore F.' Diekmann, Jr. (argued), Edward H. Cummings, of Bronson, Bronson & McKinnon, San Francisco, Cal., Ropers, Majewski & Phelps, Redwood City, Cal., for plaintiff-appellant in 72-1349.
    Edward M. Digardi (argued), of Nichols, Williams, Morgan & Digardi, Bryant M. Bennett, of Bennett, Van De Poel, Campbell & Ginder, Oakland, Cal., for plaintiff-appellant in 72-1384.
    Raymond D. Battocehi (argued), Morton Hollander, Kathryn H. Baldwin, Civil Div., Dept, of Justice, Washington, D. C., James L. Browning, Jr., U. S. Atty., William B. Spohn, Asst. U. S. Atty., E. Grey Lewis, Acting Asst. Atty. Gen., San Francisco, Cal., for defendant-appellee.
    Before KOELSCH, DUNIWAY and KILKENNY, Circuit Judges.
   DUNIWAY, Circuit Judge:

OPINION

These four suits were brought against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq., as the result of a February 17, 1967, mid-air collision at Oakland Airport between two aircraft, a Cessna 310 and a Piper Apache. Nos. 72-1346 and 72-1335 are wrongful death actions brought by the representatives of the two pilots of the Cessna, who were killed in the collision. No. 72-1384 is a personal injury action brought by the pilot of the Apache, who was injured in the collision. No. 72-1349 is an action for property damages brought by the purported owners of the Cessna.

In all four actions the plaintiffs’ claims were based on allegations of negligence on the part of Federal Aviation Agency (FAA) employees in the air traffic control tower at Oakland Airport. The cases were consolidated for trial on the issue of liability, the damages issues to be heard at a later date if necessary. After a 16-day trial, the district court determined that the air traffic controllers were not negligent and that the proximate cause of the accident was the negligence of the pilots of each aircraft. We affirm.

The facts, as found by the district court, are these:

Oakland Airport has two parallel runways, 27 right (27R) and 27 left (27L), which run east to west. At the time in question all aircraft were landing at the east threshold of the runways and taking off toward the west; air traffic was moderate to heavy. The air traffic control tower, which is located approximately one mile south of runways 27 near their eastern ends, was manned by Mr. Story, an experienced air traffic controller who had recently transferred to the Oakland Airport. Mr. McCready, an experienced controller who had been working at the Oakland Airport for ten months prior to the accident, was monitoring the activities of Story, who was a trainee.

At the time of the accident, flight visibility was approximately four miles, and Visual Flight Rules (VFR) were in effect. Under VFR conditions (also called “see and be seen” or “see and avoid” conditions), as opposed to Instrument Flight Rules (IFR), pilots navigate aircraft and execute takeoffs and landings visually and not by instruments. Because of haze and smoke toward the east, and because of the outlying hills, the air traffic controllers’ ability to see aircraft approaching from the east was decreased.

At Oakland Airport all aircraft which have established radio communication with the tower receive and transmit their communications on the same frequency. Under 14 C.F.R. § 91.87(b), all pilots flying within an airport traffic area must maintain two-way radio contact with the control tower. This area is defined as the airspace below 2,000 feet within a circle having a horizontal radius of five miles from the geographical center of the airport. Thus, the pilots of the Cessna and the Apache could hear all the transmissions between the tower and all aircraft within the airport traffic area.

At 2:18:45, the Cessna radioed the tower that it was over Castro Valley, which is approximately eight miles east from the airport, and stated an intention to land. Story authorized the Cessna to make a straight-in approach to runway 27R, and further instructed it to report to the tower on “two mile final,” i. e., when it was two miles from the threshold of the runway. The Cessna acknowledged receipt of this instruction and Story then communicated with at least eleven other aircraft during the next four and one-half minutes. After four and one-half minutes, the Cessna not having reported as expected, and at 2:23:18, Story called the Cessna and asked its position. He received no answer. At 2:23:25, seven seconds later, Story again called the Cessna and again received no reply. At 2:23:46, Story called the Cessna and for a third time received no answer.

Two seconds later, at 2:23:48, appellant Van Gilder, the pilot of the Apache, contacted the tower, and six seconds later radioed that he was “5 DME miles from the airport on the two seven right localizer.” At 2:24:20, the tower authorized the Apache to continue on its straight-in approach for runway 27R, and further instructed it to report “crossing the freeway on the two mile final.”

At 2:25:06, over six minutes after it had first reported to the tower, within which time it would normally have traveled about 12 miles, the Cessna finally radioed to report that it was coming up on the freeway towards runway 27R. Story authorized the Cessna to continue its straight-in approach. Van Gilder, the Apache pilot, not only heard this communication over his radio, but was also expressly informed of it eleven seconds later, when the tower told him that a Cessna was reported approaching the freeway on a two mile final.

In the next thirty seconds, Story communicated with two other aircraft. One of these, “four nine Juliette” (49J), was travelling due east on a line parallel to and south of runway 27L, and Story cleared it for a “touch and go” landing on 27L.

Although Van Gilder, the Apache pilot, had been told to radio the tower when he crossed the freeway two miles from the threshold of the runway, he did not do so, but called the tower at 2:25:50, stating that he was “only about a mile from the end of the runway. I don’t have the Cessna in sight. He must be either right under me or below me or behind me.” At this point, both Story and McCready, his monitor, looked to the east and for the first time spotted one of the planes. At 2:26:04, Story asked zero eight delta whether he was a twin Cessna; the Cessna replied affirmatively at 2:26:07.

McCready then immediately spotted the Apache and assumed control from Story. He also saw the Cessna. At this point, 49J was about to make a left turn and execute a touch and go landing on 27L, while the Cessna and Apache were approaching 27R to land. From Mc-Cready’s perspective, the Apache appeared to be behind, above, and to the right of the Cessna. Within three seconds, at 2:26:10, he ordered 49J to make a right 360 degree turn, but then observed that it had already begun to make a left turn. Accordingly, at 2:26:13, he instructed 49J to continue its left 360 degree turn, cleared the Apache to land on 27R and ordered the Cessna either to land on 27L or go around.

McCready then observed the Cessna begin to make what appeared to be a left turn, concluded that the two planes would land on the respective runways, and therefore turned his attention to two other planes in the traffic pattern. Shortly thereafter the Cessna and Apache collided, with the Apache apparently descending on to the top of the Cessna.

The district court found that the air traffic controllers were not negligent in the performance of their duties, and, moreover, that the proximate cau.se of the accident was the negligence of the pilots of the two planes. Because we conclude that these findings are not clearly erroneous, we affirm the judgment of the district court. Fed.R.Civ.P. 52(a).

I. Government Negligence

Appellants argue first that air traffic controllers owe pilots a duty to exercise due care to avoid mid-air collisions regardless of weather and flight conditions. We agree with this proposition, but it tells only half of the story. According to the regulations promulgated under the Federal Aviation Act of 1958, 49 U.S.C. § 1301 et seq., “the pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of the aircraft.” 14 C.F.R. 91.3(a). Thus, the duty to exercise due care is a concurrent one, resting on both the control tower personnel and the pilots. Spaulding v. United States, 9 Cir., 1972, 455 F.2d 222, 226; United States v. Miller, 9 Cir., 1962, 303 F.2d 703, 711. Moreover, under YFR conditions, ultimate responsibility for the safe operation of aircraft rests with the pilots, regardless of the air traffic clearance. Tilley v. United States, 4 Cir., 1967, 375 F.2d 678, 682-684; United Air Lines, Inc. v. Wiener, 9 Cir., 1964, 335 F.2d 379, 389; United States v. Miller, supra, 303 F.2d at 710; United States v. Schultetus, 5 Cir., 1960, 277 F.2d 322, 328.

Appellants next argue that the air traffic controllers were negligent in three ways:

1. They placed the two aircraft in a position of peril by authorizing two simultaneous straight-in approaches.

2. They failed to warn the aircraft that an emergency situation existed and failed to inform each aircraft of the other’s position.

3. They gave instructions which directly caused a collision. We will consider these arguments seriatim.

Appellants’ first argument has two parts. First, the control tower should have authorized a “pattern” approach rather than a “straight-in” approach. Second, the control tower negligently authorized two simultaneous straight-in approaches.

A pattern approach requires the pilot to parallel the runway in the opposite direction from his landing (along the down-wind leg), make a 90 degree turn toward the runway (along the base leg), and then make another 90 degree turn to approach the runway for a landing. Such an approach is less dangerous than a straight-in or direct approach because it forces the pilot to make two turns, during which he can observe conflicting traffic. On a straight-in approach a pilot, whose view is partially obstructed by his plane, will normally make clearing turns only if he has reason to believe that potentially conflicting traffic is in his vicinity.

The trial judge necessarily found that the mere act of authorizing straight-in approaches in this situation was not negligence. This finding is not clearly erroneous. Straight-in approaches are allowed at airports with control towers, and the question of whether a controller is negligent in deciding to authorize a straight-in approach depends on the facts of the case. To do so is not negligence as a matter of law.

Appellants then argue that the controller was negligent in authorizing two simultaneous straight-in approaches on the same runway. We cannot agree. Although the controller did authorize each aircraft to make a straight-in approach on runway 27R, he did not know, and had no reason to believe the planes would approach the runway simultaneously. The Cessna reported itself about eight miles east of the airport at 2:18:45. At a speed of 120 miles an hour, it should have arrived at two mile final at about 2:21:45. The Apache reported itself about five miles east of the airport at 2:23:48. At the same speed, it should have arrived at two mile final at about 2:25:18 — some three minutes 23 seconds behind the Cessna — or over six miles behind it. When the controller was apprised of the emergency, which, as the court found, had been caused by the pilots’ negligence, he did not authorize simultaneous approaches on the same runway, but rather cleared the Apache to land on 27R and authorized the Cessna to land on 27L or go around and he saw the Cessna start to turn left, as if heading for 27L. Appellants’ reliance on Eastern Air Lines v. Union Trust Co., 1955, 95 U.S.App.D.C. 189, 221 F.2d 62, is therefore misplaced; the controller in that case did authorize two aircraft to land on the same runway at the same time. Id. at 79.

Appellants next argue that the controllers negligently failed to warn the aircraft of an emergency situation and negligently failed to inform each aircraft of the other’s position. This argument is wholly without merit. As discussed infra, the pilot’s own negligence caused the emergency to develop at 2:25:50. At 2:26:07, the controller had both aircraft in view and he acted immediately ; within three seconds he started to give instructions to try to extricate the aircraft from the dangerous predicament they had created. Appellants, in effect, are urging us to hold that when an emergency develops, a controller is negligent if he does not warn the aircraft involved. Clearly a controller is under an obligation to act when he has reason to know that an emergency situation exists. Furumizo v. United States, 9 Cir., 1967, 381 F.2d 965, 968. Moreover, when there is sufficient time to do so, the controller must warn of dangers reasonably apparent to him. American Airlines, Inc. v. United States, 5 Cir., 1969, 418 F.2d 180, 197; Eastern Air Lines v. Union Trust Co., supra Ideally, the controller should both warn of the danger and give instructions to prevent an accident. But when, as here, the controller must make a split-second decision, it is more important that he try to avoid the collision by giving instructions than warn-the pilots that an emergency exists. The controller here did just that, and the court’s finding that his failure to warn did not constitute negligence is not clearly erroneous.

Nor was the controller negligent in failing to inform each aircraft of the other’s position. No case has been brought to our attention, nor have we been able to find one, which holds that under VFR conditions a controller is under a duty to inform aircraft in the same vicinity of each other’s position. Such a holding would be wholly unwarranted here. Under the radio system in use at Oakland the Cessna and the Apache could hear all communications between the tower and the other aircraft. Thus, the Cessna pilots were put on notice at 2:23:54 that an Apache would be approaching runway 27R from the east, and the Apache was put on notice at 2:25:06 that a Cessna was coming up on the freeway. Moreover, even though under VFR conditions a controller is not under a duty to inform aircraft of each other’s position, the controller nevertheless expressly informed the Apache at 2:25:17 that the Cessna had just reported approaching the freeway.

Appellant’s last argument concerning the tower’s negligence is that the controller’s instructions to the Apache and the Cessna at 2:26:13 were negligent and caused the collision. From the controller’s perspective, it appeared that the Apache was above, behind, and to the right of the Cessna. He therefore cleared the Apache to land on 27R and authorized the Cessna to land on 27L or go around. There was, however, testimony at the trial that the Apache was above, behind, and to the left of the Cessna, and that a plane below and in front of another aircraft should never be told to go around while the upper aircraft is told to land. The appellees’ experts, on the other hand, testified that the instructions given were proper and followed the usual and common practice. The district court’s finding that the tower was not negligent was supported by substantial evidence and is not clearly erroneous.

Moreover, the controller was not necessarily negligent when, after giving the instructions at 2:26:13 and observing the Cessna begin to make what was seen by him to be a left turn, he turned his attention to other aircraft in the traffic pattern. Once the controller had reason to believe that his instructions were being carried out, he would have been delerlict in his duties if he had not turned his attention to other aircraft. An air traffic controller “is not supposed to give his attention to any one aircraft in the control zone if other aircraft are present. All aircraft within the control zone should have the controller’s attention.” Franklin v. United States, 7 Cir., 1965, 342 F.2d 581, 585.

II. Pilot Negligence

We also find not clearly erroneous the district court’s conclusion that the pilots’ negligence was the proximate cause of the collision. The district court found the Cessna pilots negligent in several respects.

1. The pilots violated 14 C.F.R. 91.-65(a), which prohibits the operation of “an aircraft so close to another aircraft as to create a collision hazard.” Appellants do not challenge this finding as clearly erroneous, which it is not, but argue instead, citing Hartz v. United States, 5 Cir., 1968, 387 F.2d 870, 873, that before a pilot can be held to have violated this provision, knowledge of the proximity of the other aircraft must be shown or presumed. We agree with the appellants’ argument, but its premise is here present. Knowledge of the proximity of the Apache is presumed, since the Apache twice called in to the tower to report its position.

2. The pilots failed to acknowledge three separate requests for a location report from the tower. Appellants argue that when the Cessna originally reported from Castro Valley at 2:18:45, the controller instructed it to conduct a straight-in approach and report on two mile final, and that because the Cessna.did report at the two mile final, it was not negligent in failing to respond to the three requests for a location report. This argument borders on the irresponsible; no controller can properly perform his function if aircraft do not comply with his instructions to radio location reports. When the controller called the Cessna, it should already have been at two mile final, but was not there.

3. The Cessna pilots either failed to monitor their radio or failed to pay attention to the location report from the Apache at 2:23:54. This report put the Cessna on notice that an Apache would be approaching runway 27R from the east. As in United States v. Miller, supra, the pilots then had a duty “to look thoroughly and diligently in the area in which the [Apache] was flying” and “should have made a thorough surveillance of that area [their] prime concern.” 303 F.2d at 708.

The district court also found “some valid and credible evidence that the [Cessna] probably executed a 360° turn just prior to the accident,” a maneuver that might explain its late arrival at two mile final, and was therefore negligent in several additional respects. As to Van Gilder, the pilot of the Apache, the district court also found him to be negligent in violating 14 C.F.R. 91.65(a), not observing the Cessna after he approached the control zone, and not having taken evasive action once he concluded that the Cessna was right under him or right behind him. As above, none of these findings was clearly erroneous.

Affirmed.

KILKENNY, Circuit Judge

(dissenting) :

Even though Judge Duniway has squeezed from the record every gram of evidence which might support affirmance, I remain unconvinced. The record is undisputed on the salient facts and we are in as good a position as the trial judge to apply the law to those facts. I would hold that the FAA employees in the Air Traffic Control Tower were negligent as a matter of law. Had the control tower been manned by McCready, an experienced controller, rather than Story, who had experience, but was not familiar with the Oakland airport problems, the accident would not have occurred. The record is clear that the tower created a death trap when it cleared the planes to land on the same runway at approximately the same time. Those in charge of airport towers, to whose eyes and ears are committed the lives of millions of passengers, let alone the lives of thousands of aircraft personnel, must be held to an exceptionally high degree of care.

It is well established that the degree of care necessarily increases in proportion to the degree of risk involved. Advising incoming pilots at a busy airport is a highly dangerous and mighty risky business.

Having obtained clearances, each of the pilots was entitled to rely on the tower invitation and proceed to land. Not having eyes in the seat of his pants, nor in the top or back of his head, neither pilot had any way of knowing, other than through the tower, that the other plane was in the immediate vicinity.

I would hold: (1) that the tower operator was negligent as a matter of law; (2) that the pilots’ conduct was reasonable and prudent as a matter of law; and (3) in any event, that the findings of the trial judge are clearly erroneous.

      . When an air traffic controller transfers from one airport to another, he usually serves in a “trainee” status for a few months at the new airport until he becomes familiar with its procedures and particularities.

      . Under 14 C.F.R. § 91.105, when flight visibility is at least three miles pilots may fly under VFR conditions. When visibility is less than three miles, pilots must fly under IFR conditions (14 C.F.R. §§ 1.1, 91.105); flight plans must be filed prior to flight and aircraft are flown primarily by instruments.

      . All times are P.M. 2:18:45 means 18 minutes and 45 seconds after 2 :00 P.M.

      . DME miles are nautical miles, and the 27R localizer is a diverging electronic signal, the centerline of which may be visualized as an extension of the runway 27R centerline. Thus the Apache was on the outer border of the traffic control zone, approximately four to five statute miles from the threshold of runway 27R.

      . Since the Nimitz Freeway in Oakland intersects a straight path to runway 27R two miles from the runway threshold, this instruction is synonymous to an instruction on “two mile final,” supra.

      . In communications between towers and aircraft planes are generally referred to by the last three symbols of their registration numbers. For example, the Cessna, whose registration number was N3608D, was referred to as “zero eight delta” (08D) ; the Apache is “four three papa (43P).

      . In a “touch and go” landing, the pilot allows the wheels of the plane to touch the runway and then applies full power so that the plane immediately takes off; it is a maneuver commonly used to practice landings and takeoffs.

      . It is a common and permissible practice at Oakland Airport to allow one plane to land on runway 27R at the same time ano^ier lands on 27L. The two runways are 1,000 feet apart.

      . Only 49J had received a clearance to land pn 27L; neither the Cessna nor the Apache had been cleared to land.

      . When a pilot “goes around,” he applies power to the plane before landing so that it ascends over the runway and reenters the rectangular traffic pattern.

      . See United States v. Miller, supra, 303 F 2d at 705, n. 5.

      . For example, in Eastern Air Lines, the district court concluded that “ ‘ [f ] or an adequate period of time before the collision, both planes were visible to the control tower personnel who observed said planes, and said personnel had an adequate opportunity to give timely warnings and instructions to each plane.’ ” 221 F.2d at 79.

      . This is not to say, however, that a controller must never warn. When a controller is aware of dangerous conditions, his failure either to warn or to give instructions, i. e., his failure to act at all, may constitute negligence. Furumizo v. United States, supra,; Stork v. United States, 9 Cir., 1970, 430 F.2d 1104; Ingham v. Eastern Air Lines, Inc., 2 Cir., 1967, 373 F.2d 227, 235.

      . Nor do we disagree with Harte. The court there held that a pilot on the runway studying his cockpit instrument panel and awaiting take-off instructions is less able to judge movement, time and distance on an airfield than a controller stationed high above the field with a commanding view of all the aircraft upon and in the vicinity of the airport. The controller therefore had a duty not only to warn a small aircraft of the possible danger of wing tip vortex, but also to delay take-off clearance of the small plane for such period as was reasonably necessary to permit such turbulence from the large plane to dissipate.

      . The district court also stated that the Cessna pilots “may have” violated 14 C.F.R.. § 91.67(f) by cutting in front of the Apache, We do not consider this statement to be a finding of negligence, and therefore decline to review it.

      . We decline to rule whether the negligence of the Cessna pilots can be attributed to the Cessna’s owners. That question. was not tried. The district court’s findings and judgment were limited to the issue of government liability, and no findings were even made as to who owned the Cessna,


source: Caselaw Access Project

author: DUNIWAY, Circuit Judge:

license: Public Domain

text:
    In re LETTERS ROGATORY FROM the CITY OF HAUGESUND, NORWAY, Harvey D. Emett, Appellant.
    No. 72-1680.
    United States Court of Appeals, Ninth Circuit.
    May 10, 1974.
    Edwin J. Welsh (argued) Welsh & O’Donnell, Portland, Or., William G. Dick, Dick & Dick, The Dalles, Or., for appellant.
    Bruno A. Ristau, Washington, D. C. (argued), Morton Hollander, Harlington Wood, Jr., Acting Asst. Atty. Gen., Civ. Div., Dept, of Justice, Washington, D. C., Sidney I. Lezak, U. S. Atty., Portland, Or., for appellee.
    Before DUNIWAY and SNEED, Circuit Judges, and BEEKS, District Judge.

       The Honorable William T. Beeks, Senior United States District Judge for the Western District of Washington, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

In November, 1971, the Norwegian Embassy in Washington, D. C., pursuant to 28 U.S.C. § 1781, transmitted to the United States government a request for judicial assistance under 28 U.S.C. § 1782 in connection with a letter rogatory issued by the City Court of Haugesund, Norway. The letter rogatory sought testimony from appellant Emett regarding a paternity suit instituted against him in Norway and also requested delivery to Emett of a “Notice to Party to Appear at Final Hearing” if he refused to waive notice of subsequent court proceedings in Norway.

A United States Magistrate was appointed by the United States District Court for the District of Oregon to carry out the requests of the letter rogatory. A notice of deposition was then served on Emett on November 30, 1971. He moved for a protective order to stay the taking of his deposition and the service upon him of the Norwegian notice, but this motion was denied by the Magistrate and a hearing was held on January 20, 1972. At the hearing Emett was asked whether he had been in Norway in 1969. He refused to answer on the ground that to do so might incriminate him in Norway. He was asked this question again and was directed by the Magistrate to answer, but he again refused, whereupon the Magistrate asked him whether he waived notice of later court proceedings in Norway. Emett refused to waive notice, so he was served with the “Notice to Party to Appear at Final Hearing.” Emett then moved in the district court to quash service of the Norwegian notice and appealed the ruling of the Magistrate to the district court. That court denied his motions for a protective order and to quash service of the “Notice to Party” and further ordered him to answer the questions put to him in the proceedings. This appeal followed, purportedly under 28 U.S.C. § 1291. We dismiss the appeal from the district court’s order directing Emett to answer and affirm the district court’s denial of his motion for a protective order and to quash service.

I. The Refusal to Answer.

28 U.S.C. § 1291 provides for appeals from “final decisions of the district courts. . . .” (emphasis added)

Alexander v. United States, 1906, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686, is in point. In that case the government had filed in the Circuit Court of the United States for the District of Minnesota an antitrust case against a number of corporations. That court appointed a special examiner to take the testimony of certain witnesses in Wisconsin. It also issued a subpoena duces tecum for the witnesses. The witnesses appeared but declined to testify or to produce the demanded papers. The government petitioned the then Circuit Court for the District of Wisconsin for an order requiring the witnesses to testify and to produce the documents. Such an order was entered, and the witnesses appealed to the Supreme Court. The Court dismissed the appeals because the orders were not final judgments:

Let the court go further and punish the witness for contempt of its order, then arrives a right of review, and this is adequate for his protection without unduly impeding the progress of the case. . . . This power to punish being exercised the matter becomes personal to the witness and a judgment as to him. Prior to that the proceedings are interlocutory in the original suit. Id. at 121-122.

See also Cobbledick v. United States, 1940, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783.

The court so held in spite of the fact that the proceeding in the Circuit Court for the District of Wisconsin was a separate proceeding, ancillary to the case pending in the District of Minnesota.

The Alexander principle applies to the case at bar, although here the proceeding is ancillary to a case pending before a foreign tribunal, rather than to a case pending in another district in this country. The authority of the court from which appeal is taken should be fully exercised before its order can be said to be final. Cf. Bova v. United States, 2 Cir., 1972, 460 F.2d 404.

Emett cites In re Letters Rogatory Issued by Director of Inspection of Government of India, 2 Cir., 1967, 385 F.2d 1017, to support his argument that the district court’s order here is final and therefore appealable. Government of India involved an investigation by the Director of Inspection to enable him to assess the tax liability of one A. K. Jain, a Calcutta taxpayer. A district court, pursuant to letters rogatory from the Director of Inspection, appointed a commissioner and a subpoena duces tecum was issued to Brown Brothers, Harriman & Co. to produce records and other information relevant to the determination of the amount Jain should be assessed. Jain and Brown Brothers, Harriman & Co. moved to vacate the order of the district court and to quash the subpoena. The motion was denied, and the appeal was from the order of denial. The Second Circuit held the order appealable, on the ground that “the proceeding before the district court to compel testimony stands separate from the main controversy.” 385 F.2d at 1018. That, however, was also the situation in Alexander. In Cobbledick, the appellant was a witness subpoenaed to testify before a grand jury. In a sense, he, too, was “separate from the main controversy.”

In the only other case involving letters rogatory that has come to our attention, Janssen v. Belding-Corticelli, Ltd., 3 Cir., 1936, 84 F.2d 577, the holding as to appealability was similar to that in Government of India, supra. There, the letters rogatory were ancillary to a law suit pending in Canada, and the subpoenaed witness in this country had no direct connection with the law suit.

It is perhaps significant that in both Government of India and Janssen, supra, the ultimate holding was that the court had no authority to respond to the letters rogatory at all. In Government of India this was on the ground that the Indian Director of Inspection was not a “tribunal” within the meaning of 28 U.S.C. § 1782(a). In Janssen the ground was that there was at that time no statute authorizing the procedure, a lack of which was remedied in 1964 by the enactment of 28 U.S.C. §§ 1781-1784. We also find it significant that § 1784 expressly provides for the contempt remedy relied upon by the Court in Alexander and Cobbledick, supra, in holding that the orders there involved were not “final.”

We need not, however, decide whether we would follow Government of India and Janssen in an appropriate case. We find them not in point here. The main controversy in the present case directly involves Emett. It is the paternity suit of Bjorg H. Johnsen and her daughter born on 9 June 1970 v. Harvey D. Emett, currently pending in the City of Court of Haugesund, Norway. Emett is no stranger to that proceeding, and the information sought by the letter rogatory and the questions asked him directly relate to that litigation. Under the rationale of Alexander and Cobble-dick, therefore, the district court’s order was interlocutory, not final, and we cannot review it.

II. Service of Norwegian Notice.

28 U.S.C. § 1696(a) provides, in pertinent part, that

The district court of the district in which a person resides or is found may order service upon him of any document issued in connection with a proceeding in a foreign or international tribunal. The order may be made pursuant to a letter rogatory issued . by a foreign . . . tribunal. . . . Service pursuant to this subsection does not, of itself, require the recognition or enforcement in the United States of a judgment, decree, or order rendered by a foreign . tribunal.

Emett argues that service upon him of the Norwegian notice will render him liable to a personal judgment, and that service should therefore be quashed, citing In re Letters Rogatory Out of First Civil Court of City of Mexico, 261 F. 652 (S.D.N.Y.1919). The court there refused to honor a Mexican court’s request to service process on a New York resident. Under Mexican law, the court reasoned,

it is apparently possible through the aid of this court to render the person sought to be served subject to a personal judgment in Mexico, because the contract sued upon was to be performed there. Such a result is contrary to our own system of jurisprudence, which treats the legal jurisdiction of a court as limited to persons and property within its territorial jurisdiction. ... I should hardly feel inclined to assume such a novel jurisdiction as is proposed without statutory authority. ... Id. at 653 (emphasis supplied).

The court in In re Romero, 56 Misc. 319, 107 N.Y.S. 621 (Sup.Ct.1907), reached a similar result.

We note, first, that these cases were decided long before the modern development of “long arm” jurisdiction. See, e. g., Duple Motor Bodies, Ltd. v. Hollingsworth, 9 Cir., 1969, 417 F.2d 231. We note, second, that these cases long preceded the enactment of § 1696(a) in 1964. That section provides the statutory authority to serve upon appellant any document related to a foreign proceeding. The House Report confirms the reach and limits of the statute:

. U.S. courts have been reluctant to comply with a letter rogatory containing a request for local service. (See [City of Mexico and In re Romero, swpm] . . . .)
Subsection (a) of section 1696 permits desirable cooperation with foreign countries in the making of service within the United States. First, it makes clear that the inherent authority of U.S. courts to grant international judicial assistance includes the power to comply with requests for the making of service contained in a letter rogatory issued abroad. [Citation.] Second, it specifically provides that judicial assistance under this subsection shall not, as a matter of Federal law, add any weight to the claim that the judgment, decree, or order rendered abroad is entitled to recognition in the United States. H.R.Rep.No.1052, 88th Cong., 1st Sess. 6-7 (1963).

Service of the notice on Emett was proper.

Emett’s appeal from the order directing him to answer questions put to him is dismissed. The denial of Emett’s motion for a protective order and motion to quash service of the “Notice to Party to Appear at Final Hearing” is affirmed.

      . 28 U.S.C. § 1782 provides in part:
      (a) The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. The order may be made pursuant to a letter rogatory issued . . . by a foreign . . . tribunal . . . and may direct that the testimony or statement be given, or the document or other - thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement.
      A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.


author: PHILLIPS, Chief Judge.

text:
    Alvin L. GOLDMAN and Elisabeth C. Goldman, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
    No. 73-2079.
    United States Court of Appeals, Sixth Circuit.
    Argued April 8, 1974.
    Decided May 30, 1974.
    Alvin L. Goldman, pro se.
    Jonathan S. Cohen, Washington, D. C., for respondent-appellee; Scott P. Crampton, Asst. Atty. Gen., Meyer Roth-' wacks, Bennet N. Hollander, Arthur L. Bailey, Attys., Tax Div., Dept, of Justice, Washington, D. C., on brief; Lee H. Henkel, Chief Counsel, Internal Revenue Service, Washington, D. C., of counsel.
    Before PHILLIPS, Chief Judge, EDWARDS and McCREE, Circuit Judges.
   PHILLIPS, Chief Judge.

Mr. and Mrs. Alvin L. Goldman (taxpayers) appeal from an adverse decision of the United States Tax Court, upholding the Commissioner’s determination of a $150.50 deficiency in taxpayers’ 1968 joint federal income tax return. We affirm.

For a comprehensive statement of the facts, reference is made to the opinion of Judge Irene E. Scott. T. C. Memo 1973-182.

Mr. Goldman, a law professor at the University of Kentucky, located in Lexington, Kentucky, took a year’s leave of absence beginning in August 1967 to join the staff of a member of the National Labor Relations Board in Washington, D. C. Mr. Goldman moved his wife and child to Washington where the family resided for approximately one year. In August 1968, the family returned to Lexington where Mr. Goldman resumed his professorial duties.

On their joint income tax return for 1968, taxpayers claimed deductions under § 162(a)(2) of the Internal Revenue Code of 1954, 26 U.S.C. § 162(a)(2), in the amount of $2,469.72 for travel expenses incurred while temporarily “away from home” in pursuit of a trade or business. Most of these deductions were for expenses incurred while in Washington, e. g., lodging for seven and a half months during 1968 at $200 per month, meals for Professor Goldman (34 weeks at $21 per week), etc. The Commissioner allowed all of these claimed deductions.

In addition, taxpayers also claimed a deduction on their 1968 return of $726.-75 for the expenses of moving from Washington back to Lexington. Taxpayers asserted that these moving expenses were deductible under § 217(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 217(a), as moving expenses paid in commencement of employment “at a new principal place of work.” The Commissioner disallowed all of these claimed expenses except $82.30, which amount represented Mr. Goldman’s separate travel expenses on the trip from Washington to Lexington.

Thereafter, the Commissioner asserted a deficiency of $152.38, and the taxpayers initiated this action in the Tax Court. Judge Scott rejected the contentions of the taxpayers but, consistent with a concession of the Commissioner with respect to Mr. Goldman’s actual travel expenses from Washington to Lexington, reduced the deficiency to $150.50.

On appeal to this court, taxpayers make two contentions: 1) They should be permitted to deduct under § 217 their personal and family moving expenses incurred in returning from Washington to Lexington. 2) If those moving expenses are not deductible under § 217, then that portion of those expenses which are attributable to Mr. Goldman should be deductible as “away from home” travel expenses under § 162(a)(2). We reject both contentions.

Section 1.217—1(c) (3) (iii), Income Tax Reg., which squarely governs disposition of this case, provides as follows:

“In general, a place of work is not considered to be the taxpayer’s principal place of work for purposes of this section if the taxpayer maintains an inconsistent position, for example, by claiming an allowable deduction under section 162 (relating to trade or business expenses) for traveling expenses ‘while away from home’ with respect to expenses incurred while he is not away from such place of work and after he has incurred moving expenses for which a deduction is claimed under this section.”

In Schweighardt v. Commissioner, 54 T. C. 1273 (1970), the Tax Court, per Judge Scott, specifically upheld this regulation.

Congress has delegated to the Commissioner the responsibility for prescribing “all needful rules and regulations for the enforcement” of the Internal Revenue Code. 26 U.S.C. § 7805(a). When, as here, Congress has expressly delegated authority to the Commissioner to promulgate regulations under a specific Code section, the resulting legislative regulations are accorded even greater weight than that normally accorded interpretative regulations. 1 Mertens, Law of Federal Income Taxation, § 3.20, at 41 (Rev. ed. 1969).

Section 1.217-l(c) (3) (iii) of the regulations is consistent with § 217 of the Code and its underlying congressional purpose. The regulation, in effect, provides that taxpayer’s employment at a new location be on a permanent or indefinite basis and not merely temporary in order to meet the “new principal place of work” requirement of § 217. This regulation is entirely consistent with § 217, which obviously was designed to preclude a deduction for expenses in moving to temporary job sites. In fact, § 217(c)(2) of the Code provides that the deduction is not allowed unless the taxpayer is employed full time at the new location for 39 weeks in the twelve month period following the move. See also H.Rep.No.749, 88th Cong., 1st Sess., p. 60 (1964-1 Cum.Bul. (Part 2) 125, 184).

In this case, although taxpayers resided in Washington more than the requisite 39 weeks, they were permitted to deduct certain Washington expenses under § 162 for being “away from home”. It would be patently inconsistent with the language and intent of § 217 to allow them to deduct under § 217 moving expenses to a “new principal place of work” when, in fact, they were returning to their previous home, Lexington. We, therefore sustain Income Tax Reg. 1.217-1 (c) (3) (iii) and affirm the Tax Court’s denial of taxpayers’ claimed § 217 deductions.

With respect to taxpayers’ alternative contention, Wilson v. Commissioner of Internal Revenue, 412 F.2d 314 (6th Cir. 1969) controls. In Wilson, this court followed Commissioner of Internal Revenue v. Dodd, 410 F.2d 132 (5th Cir. 1969) which held that unreimbursed moving expenses are not deductible as ordinary and necessary business expenses under § 162(a) or as travel expenses while away from home under § 162(a)(2).

Assuming that taxpayers were able to prove that the cost of moving Mr. Goldman’s furnishings from Washington to Lexington is an ordinary and necessary business expense under the facts of this case, Wilson would preclude taxpayers' use of the § 162 deduction. Accordingly, the Tax Court’s denial of taxpayers’ claimed § 162 deduction is affirmed.

We agree with the Tax Court that the taxpayers should not be allowed double tax relief which was not intended by Congress. Taxpayers were permitted to deduct such Washington living expenses as rent, meals and laundry on the basis that they were away from home. The sum of these deductions which were allowed approximated four times the amount of the disallowed deductions. Taxpayers contend that the decision of the Tax Court impairs labor mobility. We find no such impairment under the facts of this case. In any event, this is a matter for concern of the Congress not of the courts.

Affirmed.


author: VOGEL, Senior Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Robert Darrell BURDEN, Jr., Appellant.
    No. 74-1170.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 15, 1974.
    Decided June 13, 1974.
    Rehearing Denied July 12, 1974.

      Henry J. Osterloh, Little Rock, Ark., for appellant.
    John F. Forster, Jr., Little Rock, Ark., for appellee.
    Before VOGEL, Senior Circuit Judge, and GIBSON and WEBSTER, Circuit Judges.
   VOGEL, Senior Circuit Judge.

Robert Darrell Burden, Jr., appellant herein, was, after indictment, tried and found guilty by a jury of a violation of 21 U.S.C.A. § 841(a)(1) — possession of marijuana with intent to distribute. This is a direct appeal from the judgment of conviction.

On September 21, 1973, the appellant and one Morgan Danny Watson were arrested in Little Rock, Arkansas. At the time of the arrest, the appellant and Watson were in a 1969 blue Ford pickup truck which belonged to Watson and which contained a large quantity of alleged marijuana they had transported from Texas. An undercover agent for the United States had pre-arranged with Watson to purchase approximately 150 pounds of marijuana. At the time of the arrest the government agents confiscated the alleged marijuana. Subsequent to indictment, and after the appellant had entered a plea of not guilty, defense counsel filed a motion for a bill of particulars which was granted in part by the trial court by order dated January 21, 1974. The United States Attorney's office responded to the court’s order by letter to the appellant’s attorney dated January 25, 1974. On motion of the government because of the absence of a key witness, the case was continued until February 7, 1974. On the morning of the trial, defense counsel moved for a continuance, alleging that the government failed to comply with the court’s order on its motion for a bill of particulars, completely ignoring the government’s response of January 25, 1974. The trial court denied the motion for a continuance. After a jury verdict of guilty, returned after less than 15 minutes’ deliberation, the appellant was sentenced to three years’ confinement.

The appellant on this appeal raises numerous claims of error. We have considered all of them and find that but three require brief discussion. We affirm.

Appellant’s first contention is that the government failed to file timely responses to his motion for bill of particulars and the court’s order thereon. The motion for bill of particulars was filed on December 14, 1973. On January 21, 1974, the trial court entered an order granting certain portions of defendant’s counsel’s motion and denying others. On January 25, 1974, the United States Attorney’s office responded to the court’s order by letter, furnishing a copy thereof to the court. In the interim, on January 23, 1974, defense counsel had filed a motion for a continuance based upon failure to receive the items set forth in the court’s order. On February 6, 1974, the United States Attorney’s office filed a supplementary affidavit for record purposes pursuant to Rule 16(g) of the Federal Rules of Criminal Procedure. Based thereon, the appellant moved for a continuance on the morning of the trial. This motion was denied. We note that the letter forwarded to defense counsel on January 25, 1974, included a list of all prospective witnesses as well as laboratory tests conducted upon the seized substance. From the record before us, this appears to be all the information the government at that time possessed. We, as did the trial court, consider it a reasonable response to the demand for bill of particulars and the court’s order thereon. Defense counsel knew that the government was alleging possession of marijuana from a clear reading of the indictment. We likewise note that the appellant could have used Rule 16 of the Federal Rules of Criminal Procedure for discovery purposes. A motion for continuance directs itself to the sound discretion of the trial court. Unless an abuse of discretion can be shown, an appellate court may not disturb the trial court’s ruling. United States v. Harrelson, 477 F.2d 383 (5th Cir. 1973); Hemphill v. United States, 392 F.2d 45, 49 (8th Cir. 1968); Butler v. United States, 351 F.2d 14, 18 (8th Cir. 1965).

In denying the motion for continuance, the trial court stated:

I am going to overrule the motion. It’s been clear since the indictment was filed that the government was contending this was marijuana and, if that was a real issue in the case, defendant could have at any time from that point on, asked for an opportunity to examine tests or otherwise determine whether the material was marijuana. If it has not chosen to do so until this date, I am not going to continue it on that record.
I think the order was that they would provide you what information they had about the criminal records of witnesses.
MR. OSTERLOH: [Attorney for appellant] Yes, sir.
THE COURT: I didn’t ask them to make any investigation of the matter, but just simply to make available to you that information along with any exculpatory evidence—
MR. OSTERLOH: Yes, sir.
THE COURT: —which, by the way, would include any scientific tests which would reflect doubt upon whether this was marijuana, if any.

Ever since the indictment it was patent to the appellant and his counsel that the charge, possession of marijuana with intent to distribute, would naturally call for an identification of the substance involved. No proper justification was shown in support of the motion for continuance. There was no error in denying it.

Appellant’s second major contention is the admission of the testimony of the government’s expert Mr. Harold Hanel was error. It is his contention that Hanel’s qualifications were deficient and that as such he should not have been allowed to express an expert opinion on the material analyzed or the tests involved therein. He also claims that Hanel neither stated nor proved that the substance in question was Cannabis Sativa L. as defined in 21 U.S.C.A. § 802(15). Whether or not a witness may be allowed to testify as an expert is determined by the trial court. The weight and sufficiency of such testimony, once received, rests entirely with the jury. Harnett v. Ulett, 466 F.2d 113, 118 (8th Cir. 1972); United States v. Brumley, 466 F.2d 911, 916 (10th Cir. 1972); Fineberg v. United States, 393 F.2d 417, 421 (9th Cir. 1968). Mr. Hanel was a forensic chemist employed by the Drug Enforcement Administration. In examining the record as it discloses his educational background and experience, we are convinced that the trial court did not abuse its discretion in allowing him to testify as an expert. Where an expert’s qualifications are challenged, as they were here, and he nevertheless is allowed to testify, the weight that should be afforded his testimony becomes a matter for the jury as the finder of the facts. Again we find no error.

Lastly, appellant advances the contention that the government failed to prove that the substance possessed by the appellant was Cannabis Sativa L. as required by 21 U.S.C.A. § 802(15). Mr. Hanel, the government’s expert, testified clearly and unequivocally that the vegetable matter in question and found in the possession of the appellant and Watson was marijuana or Cannábis Sativa L. Appellant’s contentions in this respect are without merit. See United States v. Moore, 330 F.Supp. 684 (D.C.E.D.Pa.1970), aff’d, 446 F.2d 448 (3rd Cir. 1971), cert. denied, 406 U.S. 909, 92 S.Ct. 1617, 31 L.Ed.2d 820 (1972).

Affirmed.

      . Morgan Danny Watson subsequently pleaded guilty to a violation of 21 U.S.C.A. § 841(a)(1). He was sentenced and appeared as a government witness in this appellant’s trial.


author: PER CURIAM.

text:
    Richard L. MANUEL, Petitioner-Appellant, v. William D. SALISBURY, Warden, Respondent-Appellee.
    No. 73-1229.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 10, 1973.
    Decided May 17, 1974.
    David P. Hiller (Court Appointed), Columbus, Ohio, for petitioner-appellant.
    Thomas D. Rooney, Asst. Atty. Gen., for respondent-appellee; William J. Brown, Atty. Gen., Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, on brief.
    Before EDWARDS and PECK, Circuit Judges, and CECIL, Senior Circuit Judge.
   PER CURIAM.

This is an appeal from an order of the United States District Court for the Southern District of Ohio, Eastern Division, denying the petition of the appellant, Richard L. Manuel, for a writ of habeas corpus. The case was previously before this Court in Manuel v. Salisbury, 446 F.2d 453 (1971).

We vacated the judgment of the District. Court, granting the writ to the petitioner, and remanded the case with instructions to conduct an evidentiary hearing. The basic facts are not in dispute and are stated in our opinion. In the initial proceeding before the District Court the district judge held that there was a per se denial of due process where a lawyer who participated in the prosecution of the criminal trial was a member of the law firm whose member, other than the prosecutor, was consulted with reference to the defense of the petitioner.

We said in our opinion, p. 455,

“The short answer to this postulate is that the courts are not free to presume, without evidence to the contrary, that their officers, given opportunities to disclose their clients’ confidences, so casually betray them even to members of their law firms. On the contrary, the courts must indulge every reasonable presumption that lawyers for criminal defendants will behave in a lawful, ethical manner and in good faith. The Appellee levels some strong charges and they must be supported by evidence. They do not follow logically, or reasonably, from the mere fact that the Appellee ‘discussed the facts’ of his case with an attorney who was in the same law firm as the attorney who prosecuted him. The more reasonable inference, on this record, is that the apparent conflict was, if at all, an inadvertent one, and that Abrahamson made no disclosures whatsoever. We are conscious of the need to maintain public respect for law, however we are not ready to presume, as a matter of law and without clear proof to the contrary, that attorneys entrusted with their clients’ secrets so casually betray them ‘over lunch . . .’ etc. Such a presumption would irreparably undermine public trust in the administration of justice, and, having no basis in fact, would do so unjustifiably.”

On remand the district judge conducted an extensive evidentiary hearing. He found that there was an attorney-client relationship between a member of the firm of which Mr. Saeks, the prosecutor, was a member and the petitioner. He also found that the petitioner had discussed the facts of his case with Mr. Abrahamson and Mr. Arnovitz, the two partners of Mr. Saeks. While he.concluded that there were numerous opportunities for the disclosure of confidential information by Mr. Abrahamson to Mr. Saeks he could not find any evidence that either partner had ever disclosed any confidential information to him. These facts are supported by the evidence. Upon these facts, in accordance with our opinion, the district judge concluded that the petition was without merit and denied it.

It is the essence of the Due Process clause of the Fourteenth Amendment to the Constitution of the United States that one on trial on a criminal charge have a fair trial.

“The requirement of the Fourteenth Amendment is for a fair trial.” Massey v. Moore, 348 U.S. 105, 108, 75 S.Ct. 145, 147, 99 L.Ed. 135.

In Hendrix v. Hand, 312 F.2d 147, at pp. 148-149 (C.A.10), the Court said:

“Denial of due process in the trial of a criminal case in the state court sufficient to constitute an impingement of rights to a fair trial within the meaning of the Constitution of the United States justifying federal court interference is ‘the failure to observe that fundamental fairness essential to the very concept of justice.’ ”

An examination of the transcript of the record of the trial in the state court indicates clearly that the petitioner had a fair trial. There is no indication of any reference to any eonfidential information that could have been communicated to -prosecutor Saeks by a partner of his law firm. Finally, the petitioner was represented by counsel other than the member of Mr. Saeks’ law firm with whom he first counselled after his arrest. The trial attorney conducted a vigorous defense and in no way can the petitioner say he was denied the effective assistance of counsel.

There is no merit to petitioner’s claim that he was prejudiced by police surveillance and obstruction of defense counsel’s access to a key witness. This was resolved in our opinion reported in 440 F.2d 453, supra. The district judge also found in the rehearing that the petitioner failed to prove prejudice by the witness’ visit to the office of Saek’s law firm.

It is argued in appellant’s brief, “ * * * this tainted trial resulted in the imposition of a cruelly excessive sentence which will keep the petitioner in prison for the remainder of his natural life.” We do not find the trial tainted as alleged, and while the sentence was a long one, it was within the limits fixed by law (Ohio Rev.Code, Section 3719.-99(D) and (F)) and is not otherwise before us.

The judgment of the District Court on remand is affirmed.


text:
    David DOTLICH and Kimberly Ann Dotlich, his minor daughter, Plaintiffs, v. Stanley D. KANE et al., Defendants.
    No. 74-1114.
    United States Court of Appeals, Eighth Circuit.
    May 20, 1974.
    David Dotlick, pro se.
    Frank X. Cronan, Minneapolis, Minn., for defendants.
    Before HEANEY, BRIGHT and ROSS, Circuit Judges.
   PER CURIAM.

This appeal is before the screening panel of this court pursuant to 8th Cir. R. 6. The court on its own motion and pursuant to 8th Cir. R. 9(a) dismisses this civil rights action as to each defendant.

This action arises out of a divorce proceeding in Hennepin County, Minnesota. On or about March 14, 1973, the Hon. Thomas Pallakson issued a judgment and decree ordering plaintiff herein to transfer all rights, title, and interest in his and his wife’s homestead to his wife only. On June 25, 1973, the plaintiff was held in contempt by the Hon. Stanley D. Kane for refusing to comply with Judge Pallakson’s order. Subsequently, plaintiff was served with a show cause order issued to compel the transfer of title to his wife.

Plaintiff brought this civil rights action, pro se, under 42 U.S.C. §§ 1981-1986 and 1994, requesting injunctive, declaratory, and monetary relief. Defendants are Judge Pallakson, Judge Kane, the Hon. A. Paul Lommen, the Hon. Luther Sletten (all judges of the District Court of the Fourth Judicial District of the State of Minnesota), Marshall K. Sigford (examiner of titles of Hennepin County, Minnesota), Gerald R. Nelson (Clerk of the District Court of Hennepin County), Diana S. Eagon (a private attorney who represented the wife in the divorce proceedings), and other unnamed persons. The district court dismissed all defendants, and plaintiff appeals. We affirm the dismissal of the action.

First, it is clear that dismissal with respect to plaintiff’s claim against the state court judges was proper since they were acting within the scope of their official duties and are therefore immune from suit. Glasspoole v. Albertson, 491 F.2d 1090 (8th Cir. 1974); Barnes v. Dorsey, 480 F.2d 1057 (8th Cir. 1973); Serbus v. Hoffman, 450 F.2d 296 (8th Cir. 1971). Dismissal as to the clerk and examiner of titles was also correct in that there is no allegation that either was improperly performing his ministerial duties. See Barnes, supra at 1060.

The dismissal as to the private attorney was proper because she did not act under color of state law within the meaning of the Civil Rights Acts. See Barnes, supra, and Glasspoole, supra.

Additionally, although alleging that defendants participated in a conspiracy to deprive plaintiff of his property interest in the family homestead without due process of law, Dotlich makes reference only to his divorce proceedings in state court to support such a claim.' Such a claim, arising as it does from the ordinary disposition of a divorce action in state court, raises no federal question. See Milligan v. Milligan, 484 F.2d 446 (8th Cir. 1973).

In sum, the complaint states no federal claim against any of the defendants and, additionally, the subject matter of the complaint — an objection to the distribution of property in a divorce action — is not within the jurisdiction of the federal district court. Thus, we affirm the dismissal of the action.

Affirmed.


author: J. JOSEPH SMITH, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. James DIGGS, Appellant.
    No. 988, Docket 73-2793.
    United States Court of Appeals, Second Circuit.
    Argued April 18, 1974.
    Decided May 8, 1974.

      Sheila Ginsberg, New York City (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City), for appellant.
    John N. Bush, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S.D.N.Y., John D. Gordan, III, Asst. U. S. Atty., of counsel), for appellee.
    Before KAUFMAN, Chief Judge, CLARK, Associate Justice, and SMITH, Circuit Judge.

       United States Supreme Court, retired, sitting by designation.

   J. JOSEPH SMITH, Circuit Judge:

James Diggs, convicted and sentenced on trial to the jury in the United States District Court for the Southern District of New York, Milton Pollack, Judge, appeals on two grounds, admission into evidence of a statement obtained in violation of his right to counsel, and admission of evidence of earlier police observation of appellant and his alleged co-robbers. We find no error and affirm the judgment.

New York police officers observed Diggs and two companions looking into parked cars, store windows and a branch bank. One entered the bank, came out, joined the others and engaged in conversation with them for some ten or fifteen minutes across the street from the bank. One then re-entered the bank, the second stood outside and Diggs went to a taxi stand. When the apparent lookout waved, Diggs attempted to engage a cab, was unsuccessful, hurried off and was pursued and apprehended by police.

The other two robbed the bank of $700 and left the area without Diggs.

After a statement later suppressed, Diggs was given Miranda warnings and interrogated by police. He eventually admitted knowing the two robbers, but denied knowledge of the robbery plan. The next day he was taken to the state criminal court where he was lodged in a detention cell. There, after further Miranda warnings by F.B.I. agents he was asked for the names of the two robbers. His response was, “What can you do for me if I tell you who the two fellows were who went in the bank?” At this point an attorney who had been appointed for Diggs in the state court proceedings appeared and objected to questioning in his absence.

At the trial, the above statement by appellant was placed in evidence, with testimony of the observations of the officers, conflicting statements by the two robbers as to Diggs’ involvement, and testimony of a New Jersey officer that he had observed Diggs with the other two often over a period of some six years.

The government contends that the present objection to the use of Diggs’ statement as in violation of his right to counsel was not sufficiently brought to the attention of the trial judge and so is not now available under United States v. Indiviglio, 352 F.2d 276, 278-280 (2d Cir. 1965) (en banc), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). The testimony at the suppression hearing, particularly emphasizing the outrage of counsel when he appeared on the scene, makes any such claim dubious, however. Nor do we consider that the fact that Diggs was charged on state rather than federal charges at the time of the interrogation deprived him of his right to counsel at the federal interrogation, for here in contrast to United States v. Dority, 487 F.2d 846 (6th Cir. 1973), relied on by the government, the state and federal charges were for the same crime, the federal people knew it, and should have known of his situation as to counsel.

But here a finding of waiver is fully justified. Diggs had been advised of his rights at least three times, twice by the police and once by the F.B.I. agents. Moreover, the content of the statement was similar to the position he had by then adopted in his statement to the police after proper warnings, and persisted in through the trial, that he knew the other two, but was not a participant in the robbery. This was not inconsistent with the statement’s voluntariness.- We find no error in the admission of the statement. See United States v. Barone, 467 F.2d 247, 249 (2d Cir. 1972).

The contention that admission of the New Jersey police testimony is reversible error is without merit. The evidence was admissible to show close acquaintance of Diggs with the others. It contained no direct evidence of other criminal activity, nor indeed any substantial grounds for inference of any.

Affirmed.

      . Diggs claims that the Miranda warnings given by the F.B.I. agents were insufficient solely for the reason that he was not expressly advised he had the right to counsel during the immediate interrogation. We recently disposed of a virtually identical claim in United States v. Floyd, 496 F.2d 982 (2d Cir. 1974), there enunciating the rule which unquestionably governs in this circuit:
      We have held that “words of Miranda do not constitute a ritualistic formula which must be repeated without variation”, but that “[w]ords which convey the substance of the warning along with the required information are sufficient.” United States v. Vanterpool, 394 F.2d 697, 698-699 (2d Cir. 1968). In United States v. Lamia, [429 F.2d 373, 376 (2d Cir.), cert. denied, 400 U.S. 907, 91 S.Ct. 150, 27 L.Ed.2d 146 (1970)] . . ., defendant was told that he had the “right to an attorney” and if he was not able to afford an attorney one would be appointed by the court. On appeal Lamia contended, as Miller does here, “that this warning did not apprise him that he had the right to the ‘presence’ of an attorney during questioning.” Ibid. We rejected this contention and held that the warning given adequately informed Lamia of his rights under Miranda:

      Lamia had been told without qualification that he had the right to an attorney and that one would be appointed if he could not afford one. Viewing this statement in context, Lamia having just been informed that he did not have to make any statement to the agents . . ., [he] was effectively warned that he need not make any statement until he had the advice of an attorney.
      429 F.2d at 376-377.
      United States v. Floyd, supra at 988-989. But see Sanchez v. Beto, 467 F.2d 513 (5th Cir. 1972), cert. denied, 411 U.S. 921, 93 S.Ct. 1548, 36 L.Ed.2d 314 (1973).

      . It appeared at the time of sentencing that he was no stranger to criminal proceedings, having been arrested some 21 times before.

      . We are not unmindful of the district court’s decision in United States ex rel. Lopez v. Zelker, 344 F.Supp. 1050 (S.D.N.Y.), aff’d without opinion, 465 F.2d 1405 (2d Cir.), cert. denied, 409 U.S. 1049, 93 S.Ct. 529, 34 L.Ed.2d 501 (1972), our affirmance of which, of course, has no precedential value. See, Local Rule § 0.23 of the United States Court of Appeals for the Second Circuit; United States v. Joly, 493 F.2d 672, at 675-677 (2d Cir. March 12, 1974). In Lopez, Judge Frankel concluded that a waiver of right to counsel was ineffective when made without knowledge that a first degree murder indictment was outstanding. The facts of this case are clearly distinguishable from Lopez, supra, however, for Diggs, who had not yet' been indicted, had full knowledge of the crime of which he was suspected.


author: PER CURIAM:

text:
    RONSON CORPORATION, Appellant, v. LIQUIFIN AKTIENGESELLSCHAFT, LIQUIGAS, S.p.A., et al., Appellees.
    No. 74-1085.
    United States Court of Appeals, Third Circuit.
    Argued April 3, 1974.
    Decided April 19, 1974.
    Raymond L. Falls, Jr., Cahill, Gordon & Reindel, New York City, McCarter & English, Newark, N. J., for appellant.
    Donald J. Zoeller, Mudge, Rose, Guthrie & Alexander, New York City, Carpenter, Bennett & Morrissey, Stryker, Tams & Dill, Newark, N. J., Cravath Swaine & Moore, New York City, Hannoch, Weisman, Stern & Besser, Newark, N. J., for appellees; Robert S. Rifkind and Paul C. Saunders, New York City, Milton Kunen, Mark C. Zauderer, of Kaye, Scholer, Fierman, Hays & Handler, New York City, of counsel.
    Before KALODNER, VAN DUSEN and WEIS, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

After careful review of this case, we conclude that the judgment of the district court should be affirmed. In so doing we wish to emphasize the limited nature of the roles that the district court and this court are called upon to pursue in a matter of this nature.

Briefly stated, the plaintiff has contended that the defendants have failed to make adequate disclosure of certain factual data as required by the terms of the Williams Act, 15 U.S.C. §§ 78m, 78n. After a number of amendments to the tender offer were made during the course of the proceedings in the district court, the trial judge concluded that the defendants had adequately met the objections asserted by the plaintiff.

The law requires disclosure of certain basic facts to the shareholders to enable them to make an informed decision to sell or hold their stock. Obviously, that choice is a matter of individual judgment. In no way should our action be taken as approval or disapproval of the tender offer, or of the wisdom of acceptance or rejection by the shareholders. Such functions are not entrusted to the courts.

We recognize that in a case of this nature involving as it does the extremely complex relationships between numerous foreign corporations and individuals, there may be practical problems connected with the production of important information. Generally the burden of proof is on the plaintiff. However, in some circumstances the burden of going forward with the evidence may shift so as to make it necessary that the principal controlling individual of a foreign entity making the tender offer should be called to testify in person before the trial court. Similarly, broad discovery must be granted in this type of case to compensate for the lack of available data subject to the subpoena powers of the court. Our review of the district court’s rulings in meeting those situations here does not disclose error.

The judgment of the district court will be affirmed. The mandate or certified judgment in lieu of mandate shall issue forthwith.

      . The motion by appellees for enforcement of the February 15, 1974 Order of this Court and the motion by appellant to supplement the record filed March 15, 1974 and related papers later filed are denied as moot, in view of the agreement of counsel, stated during oral argument, that the dispute underlying such motions would be resolved by counsel.


author: BELLONI, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Hugh Franklin MURPHREE, Defendant-Appellant.
    No. 73-3393.
    United States Court of Appeals, Ninth Circuit.
    May 13, 1974.
    Certiorari Denied Oct. 15, 1974.
    See 95 S.Ct. 116.
    Michael J. McCabe (argued), Lewis A. Wenzell, of Federal Defender of San Diego, San Diego, Cal., for defendant-appellant.

      Stephen W. Peterson, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.
    Before KOELSCH and WRIGHT, Circuit Judges, and BELLONI, District Judge.

       Honorable Robert C. Belloni, United States District Judge, District of Oregon, sitting by designation.

   BELLONI, District Judge:

Appellant attacks his conviction for importing heroin, in violation of 21 U.S.C. §§ 952, 960 and 963, and his sentence as a narcotic addict under Chapter 314 of Title 18, United States Code. We affirm his conviction but vacate his sentence and remand for re-sentencing.

Appellant and two companions entered the United States from Mexico in the primary pedestrian inspection lanes at the San Ysidro, California, port of entry. They declared paper flowers and plaster articles. The inspector, after learning they were together, noticed they were nervous and that their complexions were chalky. The inspector also learned that they had been in Mexico only a short time and that, while all three lived in the United States, none lived in California. All three were asked to proceed to a secondary inspection area.

There, further inspection was conducted by an inspector who had spoken with the first inspector and had been told what he knew. The three entrants were patted down for weapons and then requested to empty their pockets. A more thorough patdown took place during which the inspector noticed the entrants’ more rapid than normal heartbeat. The inspector asked the three to roll up their sleeves. Needle marks, some recent, were found on the inside of the elbow joints of all three. Appellant’s companions admitted to past use of heroin but denied current use. Appellant made no comment. Further discussion revealed that this entry was the second made by the three that day.

Upon this information strip searches of all three were ordered. Appellant was found to be carrying a quantity of a substance, later found to be heroin, in a body cavity. Appellant was indicted and convicted of illegally importing heroin.

Before trial appellant brought a motion to suppress the fruits of the strip search at the port of entry. The motion was denied, and that denial is appellant’s ground here for challenging his conviction.

Appellant does not argue that there was insufficient cause for the strip search when the search was conducted. Rather, it is argued that a portion of the factual basis for the strip search was illegally obtained and that the strip search is the fruit of a poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Ward, 488 F.2d 162, 167, 170 (9th Cir. 1973) (en banc). Specifically, appellant challenges the legality of the border inspector’s requiring him to roll up his sleeves exposing most of his arms. Appellant argues that this is the beginning of a strip search and as such must be justified by “real suspicion.” See Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967).

We hold that border inspectors may require persons entering the United States to roll up their sleeves even though the inspectors do not have real suspicion of smuggling directed to the individual.

First, few, if any, of the considerations of personal privacy and dignity which confronted this court in Henderson v. United States, supra, are present in this case. There, the court considered the degree of suspicion to be required before a person entering this country could be asked to undress completely. Here, the only issue before the court is exposure of the surface of the arms. Exposure of the arms in public is a common practice for the vast majority of persons living in this country. To that vast majority there is no loss of dignity or significant intrusion into privacy in exposing the arms. Therefore, the rationale of Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), upon which Henderson is based, does not compel this court to require real suspicion by border inspectors before they may ask an entrant to roll up his or her sleeves.

Second, it is reasonable under the Fourth Amendment, see Blackford v. United States, 247 F.2d 745, 750 (9th Cir. 1957), for border inspectors to inspect the arms of entrants for needle marks. Where illegal importation of narcotic drugs is of substantial concern to border authorities, such an inquiry is a well-defined and narrowly circumscribed attempt to find a connection between the entrant and use of drugs.

Appellant’s conviction is affirmed.

However, appellant’s sentence must be vacated and the case remanded for re-sentencing on the authority of United States v. Mason, 496 F.2d 1091 (9th Cir. 1974).


author: BURNS, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Thomas Frederick JOHNSTON, Defendant-Appellant.
    No. 73-3499.
    United States Court of Appeals, Ninth Circuit.
    May 1, 1974.
    Hugh John Gibson (argued), Beverly Hills, Cal., Robert N. Harris, Jr., Los Angeles, Cal., for defendant-appellant.
    James W. Meyers, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.
    Before DUNIWAY and GOODWIN, Circuit Judges, and BURNS, District Judge.

       Honorable James M. Burns, United States District Judge, District of Oregon, sitting by designation.

   OPINION

BURNS, District Judge:

Johnston appeals from a conviction for possession of a controlled substance (50 pounds of marijuana) with intent to distribute in violation of 21 U.S.C. § 841(a)(1). We affirm.

Johnston purchased a one-way Amtrak ticket from San Diego to New York City on June 14, 1973, with roomette accommodations from Los Angeles to New York. Acting on a previous request to inform him of persons making such arrangements, Amtrak personnel notified a federal drug agent of Johnston’s ticket purchase. The agent proceeded to the San Diego Amtrak station and commenced observation of Johnston.

The agent noted that Johnston fit an informal “profile” of suspected marijuana couriers he had previously developed in that Johnston: (a) bought tickets of the sort described above; (b) carried heavy luggage (two suitcases); and (c) handled his luggage himself rather than checking it with the railroad. The agent maintained his surveillance and followed Johnston as the latter boarded the train.

The train was crowded and the luggage compartments in the coach were filled. Hence, like many passengers that day, Johnston placed his luggage in the vestibule area between two cars. After Johnston left the vestibule area, the agent approached the luggage, visually examined its exterior, and then, bending down, sniffed the strong odor of marijuana coming from each suitcase. Not having keys to open them, he forced open the locked suitcases. They contained a number of kilos of marijuana in the usual wrappers. This discovery occurred about three minutes before the train was to leave San Diego. The agent then approached Johnston, advised him of his official identity, and then arrested and removed him and his luggage from the train. The agent had neither a search warrant nor Johnston’s consent.

All these facts were brought out on the motion to suppress, which was denied by the District Court. Thereafter, Johnston waived his right to jury trial and submitted the case to the Court on a stipulated set of facts, which incorporated, by reference, the facts developed at the hearing on the motion to suppress. The Court found Johnston guilty; this appeal followed.

Johnston claims the action of the narcotics agent in approaching his luggage and bending down and sniffing constituted a search forbidden by the Fourth Amendment because it was without warrant or probable cause. Alternatively, Defendant contends, that even if the sniffing activity was lawful and appropriate, the forcing of the locks and opening of the luggage itself was an illegal search absent a warrant, because no exigent circumstances existed which would justify an exemption from the warrant requirements of the Fourth Amendment.

We reject Johnston’s argument that he had a reasonable expectation of privacy from drug agents with inquisitive nostrils. He admits he should have reasonably expected fellow passengers or railway employees to handle his luggage. While we have held that squeezing a suitcase is a search under some circumstances, Hernandez v. United States, 353 F.2d 624, 626 (9th Cir. 1965), we are not prepared to hold that, under the circumstances here, suitcase sniffing (whether the sniffer is erect or bending over) is a search within the meaning of the Fourth Amendment. United States v. Martinez-Miramontes, 494 F.2d 808 (9th Cir. 1974).

We also reject Johnston’s claim that the agent, upon detecting the presence of marijuana in the suitcases, should then have secured a warrant. The train was due to leave in three minutes. Even though Defendant had a ticket from San Diego to Los Angeles and thereafter to New York City, the agent was not required to assume that Defendant would stay on the train with the marijuana in the suitcases all the way to New York City. The agent could properly have believed that Defendant would depart with the suitcases at some stop along the way. Indeed, the agent could properly have believed that Defendant might well discharge one or both suitcases at some intermediate point to an accomplice in the criminal enterprise. We conclude that the circumstances here were sufficiently exigent to justify the warrantless search. Hernandez v. United States, supra at 627.

The conviction is affirmed.


author: KALODNER, Circuit Judge.

text:
    Joseph FETSKO, Administrator of the Estate of Patricia Ann Fetsko, Deceased, Appellant, v. GREYHOUND LINES, INC. Joseph G. GRESS, Administrator of the Estate of Mary Ellen Gress, Deceased, Appellant, v. GREYHOUND LINES, INC. v. Joseph FETSKO, Administrator of the Estate of Patricia Ann Fetsko, Deceased. Joseph G. GRESS, Administrator of the Estate of Mary Ellen Gress, Deceased, v. GREYHOUND LINES, INC. v. Joseph FETSKO, Administrator of the Estate of Patricia Ann Fetsko, Deceased, Third Party Defendant, Appellant.
    Nos. 73-1392 to 73-1394.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) Nov. 26, 1973.
    Decided May 15, 1974.
    Donald E. Ziegler, Catalano, Ziegler & Maloney, Pittsburgh, Pa., for appellants in Nos. 73-1392, 73-1393.
    Herman C. Kimpel, Dickie, McCamey & Chilcote, Pittsburgh, Pa., for appellee, Greyhound Lines, Inc.

      Richard H. Galloway, Greensburg, Pa., for appellant in No. 73-1394.
    Before KALODNER, ADAMS and ROSENN, Circuit Judges.
   OPINION OF THE COURT

KALODNER, Circuit Judge.

In Fetsko v. Greyhound Corporation, 461 F.2d 754 (3rd Cir. 1972), we reversed the district court’s order dismissing these diversity wrongful death actions, and remanded for a new trial. After completion of plaintiffs’ case at the second trial, the district court once again dismissed these actions. The critical issue presented by the instant appeals is whether the district court acted in disregard of our prior ruling by dismissing for a second time.

These actions stem from a collision on March 3, 1968 between a car and a Greyhound bus. The car, carrying Patricia Ann Fetsko and Mary Ellen Gress, the driver and passenger, respectively, was travelling in the northbound passing lane on Route 51, Elizabeth Township, Allegheny County, when it skidded across the center divider and was struck head on by the bus, which was travelling in the southbound passing lane. The car’s occupants died as a result of the collision, and these suits were brought by the administrators of the Fetsko (C. A. 68-1071) and Gress (C.A. 68-1073) Estates. The defendant subsequently impleaded the Fetsko Estate as a third-party defendant.

Following completion of the plaintiffs’ liability portion of the case in the first trial of these suits, the district court granted a directed verdict in favor of the defendant on the ground that “there is no evidence of negligence on the part of the defendant.” The court went on to state that its ruling was “apart from any question of contributory negligence which I think would be a jury question.”

In reversing and remanding for a new trial, we said:

“We conclude that there was some evidence tending to show that the deaths of plaintiffs’ decedents were caused by the inability of the Greyhound bus driver to take available evasive action, and that this inability was the result of his excessive speed and inattention. That evidence was sufficient to avoid a directed verdict. The case on liability was hardly a strong one, but it was sufficient to require submission of that issue to the jury.” 461 F.2d at 757. (emphasis supplied).

On the question of Fetsko’s contributory negligence we said:

“The district court properly concluded that a jury question was presented, as to the contributory negligence of the decedent Fetsko, the driver, by the evidence that gravel in the roadway caused her car to skid into the southbound lane.” 461 F.2d at 756. (emphasis supplied).

Upon remand, plaintiffs presented liability evidence which was virtually identical to that reviewed in our prior opinion.

The district court stated at the close of plaintiffs’ evidence that it “would be inclined now on the basis of what we have heard at this trial both to find that as a matter of law there was contributory negligence on the part of the driver” and “that there has been no proof of any . . . operative negligence on the part of the Defendant.”

The district court later that day granted the defendant’s written alternative motions for an involuntary dismissal under Fed.R.Civ.P. 41(b) and/or for a directed verdict under Fed.R.Civ.P. 50, and the actions were docketed as dismissed.

We are of the opinion that the district court erred in holding that jury questions were not presented by plaintiffs’ evidence on the issues of defendant’s negligence and decedent Fetsko’s contributory negligence.

In doing so the district court acted in inexplicable disregard of our prior holding that plaintiffs’ virtually identical testimony at the first trial respecting liability presented jury questions.

For the reasons stated, the Orders of the district court will be reversed and the cause remanded for a new trial.

      . We note that a motion for involuntary dismissal is unavailable under Rule 41(b) in cases, as this one, which are tried before a jury. Notes of Advisory Committee on 1963 Amendments to Rule 41(b); Carroll v. Seaboard Air Line Railroad Co., 371 F.2d 903, 904 n. 3 (4th Cir. 1963). We do not view this as reversible error, since, apart from the fact that the district court did grant defendant’s alternative motion for a directed verdict, motions for involuntary dismissal in jury cases have been treated as motions for a directed verdict. See, e. g., Woods v. National Life & Accident Ins. Co., 347 F.2d 760, 768-769 (3d Cir. 1965).


text:
    Thomas HART, Plaintiff-Appellant-Appellee, v. LOCAL UNION 1292, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS, and the District Council of Nassau County, United Brotherhood of Carpenters and Joiners, Defendants-Appellees-Appellants.
    Nos. 470, 622, Dockets 73-2173, 73-2063.
    United States Court of Appeals, Second Circuit.
    Argued April 1, 1974.
    Decided May 8, 1974.
    Burton H. Hall, New York City, for plaintiff-appellant-appellee.
    Samuel Harris Cohen, New York City (Delson & Gordon, New York City, on the brief), for defendants-appellees-appellants.
    Before HAYS and OAKES, Circuit Judges, and CHRISTENSEN, District Judge.

       Honorable A. Sherman Christensen, Senior Judge of the United States District Court of the District of Utah, sitting by designation.

   PER CURIAM:

The facts in this case are fully set out in the opinion of the district court, which is reported at 341 F.Supp. 1266. Briefly, in December 1965, Thomas Hart was tried in a union disciplinary action by a trial committee of the District Council of Nassau County, United Brotherhood of Carpenters, on the charge that he threatened the life of the Local Union 1292 business representative. The committee found him guilty, and the District Council ordered him expelled from the union. Hart appealed to the General President of the Brotherhood, who reversed the District Council and ordered a new trial on the ground that there had been no stenographic record at the original trial. In June 1967, after failing to appear on due notice, Hart was tried in absentia and found guilty of the same charge. The District Council imposed fines totalling $200.

Hart brought an action under section 609 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 529 (1970). The district court awarded him damages for his injury resulting from the December 1965 disciplinary action. It dismissed his complaint as to the June 1967 proceeding. Hart appeals from the dismissal; the union appeals from the award of damages.

Hart’s main point relates to section 57C of the constitution of the Brotherhood, which makes posting a $50 deposit a condition of appeal to the General President of the Brotherhood in cases imposing fines greater than $50. Hart concedes that he did not pay this deposit after the June 1967 trial. Under the, terms of the Brotherhood constitution, his failure to make the required deposit resulted in his appeal to the General President not being perfected. Section 56A of the Brotherhood constitution requires that a member exhaust union appeals before “taking his case to the civil courts.” The district court dismissed Hart’s claim resulting from the 1967 proceeding because he did not exhaust union remedies. Hart’s contention on this appeal is that the $50 deposit does not come within the meaning of the term “reasonable hearing procedures” as it is used in the first proviso to section 101(a)(4) of the LMRA, 29 U.S.C. § 411(a)(4) (1970), and that his failure to post the $50 deposit therefore cannot bar judicial relief.

The district court acted well within its discretion in holding that Hart had to post the deposit and exhaust the union appeal. The procedure provided by the union constitution is reasonable. Hart's successful pursuit of the intra-union appeal in 1965 makes it clear that resort to the union appeal was not futile, compare Farowitz v. Associated Musicians Local 802, 330 F.2d 999, 1002-1003 (2d Cir. 1964), and that the internal union remedy was neither uncertain nor unknown to him. Compare Detroy v. American Guild of Variety Artists, 286 F.2d 75, 81 (2d Cir.), cert. denied, 366 U.S. 929, 81 S.Ct. 1650, 6 L.Ed.2d 388 (1961).

There is no claim that Hart was indigent.

The Brotherhood may require members seeking to appeal from fines to post a reasonable deposit to prevent overloading the union appeals procedure. with frivolous appeals.

We have examined the other contentions of Hart and the union and find them to be without merit.

The judgment and order of the district court is affirmed.


author: P$R CURIAM.

text:
    Josephine JURINKO and Ida M. Seibert, Appellants, v. EDWIN L. WIEGAND COMPANY, a corporation and Local 1020, UAW, an un-incorporated association. Josephine JURINKO and Ida M. Seibert v. EDWIN L. WIEGAND COMPANY, Appellant, a corporation, and Local 1020, UAW, an unincorporated association.
    Nos. 72-1043, 72-1044.
    United States Court of Appeals, Third Circuit.
    June 7, 1974.
    Irving L. Bloom, Dent & Bloom, Greensburg, Pa., Robert Allen Sedler, College of Law, University of Kentucky, Lexington, Ky., for cross-appellants Josephine Jurinko and Ida M. Seibert, and appellees Edwin L. Wiegand Co.
    Arnold D. Wilner and Theodore Goldberg, Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, Pittsburgh, Pa., J. Roger Edgar, Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., Eric P. Reif, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for appellees Josephine Jurinko and Ida M. Seibert and appellant Edwin L. Wiegand Co.
    Before BIGGS, GIBBONS, Circuit Judges, and HUYETT, District Judge.
   P$R CURIAM.

Our decision in this case was in favor of the plaintiffs-appellants, Jurinko v. Edwin L. Wiegand Co., 477 F.2d 1038 (3 Cir. 1973), and, after the denial of a petition for rehearing, certiorari was granted by the Supreme Court, sub nom. Edwin L. Wiegand Co. v. Jurinko, 414 U.S. 970, 94 S.Ct. 293, 38 L.Ed.2d 214 (1973), our judgment was vacated, and the cause remanded to us on October 23, 1973, for further consideration in the light of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). In that case, the Supreme Court enumerated the elements which generally must be shown in order to establish a prima facie case of discrimination under Title VII, as follows: “(i) that he [the complainant] belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” (Footnote omitted).

On May 14, 1974, we vacated our judgment, entered concurrently on February 21, 1974, with the per curiam opinion of that date, after the remand to us by the Supreme Court. We now deem it necessary to remand the case to the district court for consideration of the record in the light of McDonnell Douglas Corporation, and for such further findings of fact and conclusions of law, if any, which may be necessary in the light of that decision of the Supreme Court.

We will remand the case to the district court for further action in accordance with this opinion.


text:
    Leola NICHOLS, for herself and all others similarly situated, Appellant, v. TOWER GROVE BANK, a banking corporation for itself and all others similarly situated as a class of defendants, et al., Appellees.
    No. 73-1621.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 17, 1974.
    Decided May 13, 1974.
    D. Sherman Cox, St. Louis, Mo., for appellant.
    C. Perry Bascom, St. Louis, Mo., for Tower Grove Bank.
    Mark D. Mittleman, Asst. Atty. Gen., Jefferson City, Mo., for state officials.
    Before MATTHES, Senior Circuit Judge, HEANEY, Circuit Judge, and SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   PER CURIAM.

The issue on appeal is whether the self-help repossession and sale of appellant’s automobile, after appellant defaulted on payments under a contract which provided for repossession and sale, were acts under color of state law giving rise to an action under 42 U.S.C. § 1983.

The District Court held that the actions of the creditor in repossessing and selling were of a private nature and did not amount to state action. It dismissed the appellant’s action for lack of subject matter jurisdiction.

The facts, as summarized in the District Court’s opinion, follow:

* * * In September, 1971, plaintiff purchased a used 1969 Chevrolet automobile from a dealer, and in connection with such purchase executed an installment promissory note and a retail installment contract which set forth the terms and conditions of the security arrangement pursuant to which the automobile was purchased. The contract expressly authorized the secured party to repossess the automobile in the event of default. It provides for notice to be given to the buyer prior to any sale, public or private.
A certificate of ownership was issued in plaintiff’s name. Shortly thereafter the contract and note were assigned to Tower Grove Bank and Trust Company (Bank), the Bank’s lien being noted on the certificate of title as provided for under Section 301.600, V.A.M.S. Plaintiff defaulted in making at least three monthly installment payments, following which the Bank accelerated the note in accordance with its terms and peacefully exercised its right under the contract to repossess the automobile without judicial notice or assistance.
Subsequently, the Bank proceeded to foreclose its security interest in the automobile by selling it at private sale. There is no contention that the sale was not conducted in a commercially reasonable manner as required by Section 400.9-504(3), V.A.M.S. In connection with the repossession and sale, the Bank mailed an Affidavit of Repossession to the Department of Revenue of-the State of Missouri and in due course received a “repossessed title” which it delivered, duly assigned, to the purchaser at private sale. The procedure it followed was mandated by Section 301.215, V.A.M. S. [Footnote omitted.]

362 F.Supp. 374, 375-376 (E.D.Mo. 1973) .

The appellant first contends the State of Missouri’s enactment of §§ 9-503 and 9-504 of the Uniform Commercial Code, which authorized the actions taken by the secured party here, amounted to such significant state involvement as to constitute action taken under color of state law. This same contention was recently rejected by this Court in Nowlin et al. v. Professional Auto Sales, Inc., and Mayhugh v. Bill Allen Chevrolet Co., et al., Nos. 73-1348 and 73-1450, 496 F.2d 16 (8th Cir. 1974). See also, Bichel Optical Lab., Inc. v. Marquette Nat. Bk. of Mpls., 487 F.2d 906 (8th Cir. 1973); Adams v. Southern California First National Bank, 492 F.2d 324 (9th Cir. 1973). On the basis of this prior authority, we must reject this contention.

The appellant also contends that the repossession and sale were conducted under color of law because the State of Missouri must issue a certificate of ownership for the automobile to allow its transfer by the secured party to the purchaser at the sale after repossession. We disagree. A similar argument was rejected by the Ninth Circuit in Adams v. Southern California First National Bank, supra. Cf., Shirley v. State Nat’l Bank, 493 F.2d 739, 743 n. 5 (2nd Cir. 1974). See also, Burke & Reber, State Action, Congressional Power and Creditors’ Rights: An Essay on the Fourteenth Amendment, 47 S.Cal.L.Rev. 1, 19-23 (1973).

We affirm the dismissal of appellant’s action by the District Court. In doing so, we note that the proper ground for dismissal is failure to state a claim upon which relief can be granted rather than that the District Court lacked subject matter jurisdiction. See, Adams v. Southern California First National Bank, supra at 338, 5 Wright & Miller, Federal Practice and Procedure § 1350 (1969).

Affirmed.

      . V.A.M.S. §§ 400.9-503 and 400.9-504.