source: Caselaw Access Project

author: ALDISERT, Circuit Judge. ADAMS, Circuit Judge

license: Public Domain

text:
    Harry WILLIAMS, Appellant, v. INDEPENDENT NEWS CO., INC., and National Periodical Publications, Inc.
    No. 73-1001.
    United States Court of Appeals, Third Circuit.
    Argued June 18, 1973.
    Decided Sept. 11, 1973.
    As Amended Oct. 23, 1973.

      David H. Pittinsky, Carl Hanzelik, Dilworth, Paxson, Kalish, Levy & Coleman, Philadelphia, Pa., for appellant; William Pomerantz, Philadelphia, Pa., of counsel.
    K. Robert Conrad, Barbara W. Mather, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for appellees.
    Before VAN DUSEN, ALDISERT and ADAMS, Circuit Judges.
   OPINION OF THE COURT

ALDISERT, Circuit Judge.

This appeal from a judgment for the defendants entered upon a jury verdict in a private antitrust action calls for an examination of certain practices in the distribution and sale of comic books to determine whether they constituted per se violations of the antitrust laws. We find that no per se violations occurred, that the trial court committed no reversible error, and will affirm.

Appellant Williams, plaintiff in the action below, was a distributor of off-sale full-copy return comic books. An off-sale full-copy return comic book is a comic book which (1) was not purchased by the public and which is no longer current, either because a newer issue has been distributed, or because the period for its distribution has expired, and (2) has been returned back up the chain of distribution from the retailer to the wholesaler to the distributor to the publisher, without either the cover or any part of the contents of the comic book removed.

Independent News (Independent) was a national distributor of magazines and periodicals, including comic books. National Periodical Publications (National) was a publisher of magazines and periodicals, including comic books. During the period in question, Independent was a wholly-owned subsidiary of National, and was the exclusive distributor of comic books published by National. Magazine Management (Magazine) was the publisher of a line of comic books known as “Atlas” comics, for which Independent was the exclusive distributor.

Williams was in the business of purchasing and reselling the off-sale full-copy return comic books of several publishers, including Magazine’s Atlas comics. His sole source of supply for off-sale full-copy return Atlas comic books was one Israel Waldman, a middleman, who from 1959 to 1963 purchased off-sale full-copy return Atlas comics from Magazine and resold some of them to Williams. During this period, Williams, purchasing approximately 350,000 off-sale full-copy return Atlas comics from Waldman each month, distributed all of these comics to wholesalers who would sell to retailers for resale to the public at a fraction of the cost of a current cover comic book.

In 1957, prior to Williams’ entry into the off-sale full-copy return comic book business, Independent contracted with Magazine for the exclusive distribution rights to Magazine’s Atlas comics. Pursuant to that agreement, Magazine would deliver to Independent its most current issue of Atlas comics. Independent then distributed these comics to its regional wholesalers throughout the country. The wholesalers then distributed these current Atlas comics to retailers who sold them to the public.

About the same time that new Atlas comics arrived at the retail level, the retailers gathered together any previously distributed Atlas comics which had not been sold, and returned them, with covers and bodies intact, to Independent’s wholesalers, who in turn shipped them to Magazine. These returns constituted Magazine’s off-sale full-copy return Atlas comics.

After receiving these off-sale full-copy return comics, Magazine sold a portion for use overseas, and also sold some to Waldman, allegedly under the representation that Waldman would use the comics as “premiums.” As previously stated, however, Waldman sold a large quantity of these comics to Williams, who in turn placed them in the general sales market, and did not limit their use as “premiums.” After Williams resold to wholesalers and retailers, these off-sale full-copy return Atlas comics competed at the retail level with current cover Atlas comics. When Independent’s wholesalers and retailers complained they were losing sales of current cover comic books because of the competition with full-copy returns sold at a discount, Independent reminded Magazine that their contract provided for the distribution of Atlas comics to news dealers and wholesalers solely through Independent, and suggested that Magazine investigate the source of these returns. Specifically, Independent advised Magazine to police their off-sale full-copy return sales to Waldman by making certain he was using the comics as premiums. When Magazine learned that Waldman was not using them as premiums, but rather was reselling these issues for distribution in competition with its current cover comic books, Magazine terminated its sale of Atlas comics to Waldman. As a result, Waldman could no longer supply Williams.

On January 23, 1968, Williams commenced this private antitrust action against Independent and National under Section 16 of the Clayton Act, 15 U.S.C. § 26, for equitable relief, and under Section 4 of the Clayton Act, 15 U.S.C. § 15, to recover treble damages against the defendants for violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. The district court granted a motion for a directed verdict with respect to National, finding insufficient evidence of a conspiracy involving National to submit the question to the jury. The court did submit to the jury, however, the question of Independent’s participation in a conspiracy to terminate appellant’s supply, and the question of the legality of Independent’s contract with Magazine. The jury returned a general verdict in favor of Independent. The court, D.C., 350 F.Supp. 159, denied Williams’ motions for judgment n.o.v. or a new trial, and this appeal followed.

Distillation of appellant’s numerous assignments of error yields two cognizable arguments:

(1) the agreement between Independent and Magazine for the exclusive distribution of Atlas comic books, and their conduct which eliminated Williams as a competitor, constituted a per se violation of Section 1 of the Sherman Act; and

(2) the trial court’s instructions to the jury were erroneous, confusing and misleading, and the trial court committed several additional prejudicial errors.

I.

In United States v. Arnold, Schwinn & Co., 388 U.S. 365, 379, 382, 87 S.Ct. 1856, 1865, 1867, 18 L.Ed.2d 1249 (1967), the Supreme Court held that an agreement which permits a party to retain control over either the destiny or the conditions of resale of a product after parting with title, dominion and risk over it, is a per se violation of Section 1 of the Sherman Act:

Under the Sherman Act, it is unreasonable without more for a manufacturer to seek to restrict and confine areas or persons with whom an article may be traded after the manufacturer has parted with dominion over it.
. Such restraints are so obviously destructive of competition that their mere existence is enough. If the manufacturer parts with dominion over his product or transfers risk of loss to another, he may not reserve control over its destiny or the conditions of its resale.
******
Once the manufacturer has parted with title and risk, he has parted with dominion over the product, and his effort thereafter to restrict territory or persons to whom the product may be transferred — whether by explicit agreement or by silent combination or understanding with his vendee- — is a per se violation of § 1 of the Sherman Act.

See also United States v. Topco Associates, Inc., 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972).

The agreement between Magazine and Independent gave Independent the exclusive right to distribute all of Magazine’s Atlas comic books. Williams does not attack this agreement insofar as it was limited to the exclusive right to distribute Magazine’s current cover comic books. Rather, appellant argues that this contract was treated and understood by the parties to encompass Magazine’s off-sale full-copy return Atlas comic books as well as current cover books, notwithstanding the fact that Independent never distributed Magazine’s off-sale full-copy return Atlas comics. Thus, appellant continues, “the common understanding of the parties was that the agreement between Magazine Management and Independent prohibited Magazine Management from selling its off-sale full-copy return Atlas comic books without Independent’s prior approval.” Appellant concludes that because Independent never distributed off-sale full-copy return Atlas comic books, and because Independent was without title, dominion and risk of loss over these comics, it was a per se violation of Section 1 of the Sherman Act for Independent to control the destiny and conditions of resale of these comics.

We take as our starting the language of the contract between Independent and Magazine:

1. THE PUBLISHERS AGREE:

(a) To give and grant and they hereby give and grant to the Distributor the exclusive right to sell and distribute throughout the world the aforementioned magazines and periodicals. . . .

On its face, this statement contains no indication what Magazine might do with the comics after their return. There is no restriction in the contract on the distribution by Magazine of off-sale full-copy return Atlas comics. And there is no provision requiring Independent’s approval before Magazine’s distribution of these books. Although at one point, there is a mention of full-copy returns, the contract is in no way conclusive as to whether the returns are covered by the grant of exclusive distribution rights. Thus, the jury could well have concluded, as it apparently did, that Independent’s exclusive distribution rights did not extend to returns.

Assuming that this contract did grant Independent distribution rights in off-sale returns as well as current cover comics, such an interpretation of the agreement would not present a per se violation of the Sherman Act. Presented would be merely an exclusive dealing agreement covering current as well as off-sale comic books. Exclusive dealing agreements are, of course, not illegal per se. Colorado Pump & Supply Co. v. Febco, Inc., 472 F.2d 637 (10th Cir. 1973); Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 76 (9th Cir. 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970). In United States v. Arnold, Schwinn & Co., supra, the Court stated:

[A] manufacturer of a product other and equivalent brands of which are readily available in the market may select his customers, and for this purpose he may “franchise” certain dealers to whom, alone, he will sell his goods. ... If the restraint stops at that point — if nothing more is involved than vertical “confinement” of the manufacturer’s own sales of the merchandise to selected dealers, and if competitive products are readily available to others, the restriction, on these facts alone, would not violate the Sherman Act.

Judged by this standard, the only restraint imposed by this agreement was a vertical one between Magazine and Independent. By definition an exclusive dealing contract excludes potential competitors from competition with the exclusive dealer. Such a restraint is not per se unreasonable. Therefore, accepting appellant’s argument in full force, we conclude that he failed to prove more than the existence of an exclusive dealing contract.

Alternatively, appellant argues that its proof at trial of the relationship between Magazine and Independent demonstrated the existence of a combination or conspiracy in violation of the Sherman Act as a matter of law. Albrecht v. The Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968); United States v. General Motors Corp., 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed. 415 (1966); and Ford Motor Co. v. Webster’s Auto Sales, Inc., 361 F.2d 874 (1st Cir. 1966). While it is true that Independent approached Magazine when off-sale full-copy returns began appearing in Independent’s market areas, Paul Sampliner, then President of Independent, testified that he never told Magazine it would have to terminate its sales to Waldman:

Q. And at that point in time did you, on behalf of Independent News, tell either Mr. Hayes or Mr. Goodman that they would have to terminate their sales to Mr. Waldman—
A. No, I never told him that. I told him that they had to police them better, that if they wanted to continue their sales that they had to see to it that they went through the proper channels that Mr. Waldman promised.

Stated otherwise, Sampliner told Magazine that it could continue to sell off-sale full-copy returns if they were distributed as premiums. Moreover, John Hayes, then assistant to the President of Magazine, and appellant’s own witness, testified that Waldman was terminated because Magazine, for its own best business interests, had no intention to sell comics to him other than for premiums.' When Waldman confessed that he was reselling into a retail market, he was terminated for that reason. This is hardly sufficient evidence upon which to find a conspiracy to violate the antitrust laws.

Even assuming that Independent directed Magazine to terminate Waldman, we believe Independent had the right to take steps to enforce its exclusive dealing contract. Williams could not have complained if, in violation of the exclusive dealing provisions of Magazine’s distribution contract with Independent, Magazine had sold current cover comics to Waldman, and then ceased such sales at Independent’s insistence. A fair evaluation of all the evidence, both documentary and oral, could support an interpretation of the agreement that Independent had the right to distribute off-sale full-copy return Atlas comics to the exclusion of all others, including Magazine. Although Independent may be said to have consented to Magazine’s limited distribution of these comics, there is no specific evidence in the record that Independent waived all distribution rights thereto.

Thus, Independent’s efforts to enforce its exclusive distribution rights are clearly distinguishable from those activities found illegal in Ford and General Motors, supra. In those cases, no exclusive dealing arrangement existed. Instead, dealers who had no enforceable exclusory rights sought to eliminate competition from other dealers by conspiring with the competitor’s supplier. Could appellant complain of an antitrust violation if Independent had taken steps to specifically enforce its contractual rights in a court of equity? If not, how can Independent’s efforts to resolve a dispute amicably with Magazine, without resort to litigation, be transformed from the acts of an aggrieved contract party to those of a violator of antitrust laws? The short answer is they cannot be. We therefore reject this contention of appellant.

II.

Appellant mounts a number of attacks upon the charge as given, assigns as error the district court’s refusal to charge as requested, and additionally claims prejudicial error occurred in other aspects of the trial.

Appellant alleges a violation of F.R.Civ.P. 51 in that the trial judge did not rule on the jury instructions proposed by the parties prior to their arguments to the jury, the judge having reserved the right to fashion his instructions until after having heard these arguments. Appellant contends he was thus deprived of the opportunity of arguing his Schwinn contention properly. Although the district court’s procedure was irregular, the same can be said about the proposed instructions submitted by counsel. Implicit in Rule 51 is the reception by the court of specific points for charge, preferably numbered, and so framed that they have the capability of being affirmed or refused, point. by point. What counsel did in this case was to present to the court a written instrument which was tantamount to a complete jury charge. Such submissions are not envisioned in the conceptual basis of Rule 51. While it may have been more prudent for the court not to have encouraged requests in this form and to have insisted that traditional practice be observed, we cannot say that the court’s action constituted reversible error. A fair reading of the record has convinced us that appellant was forewarned prior to his closing jury speech as to the critical instructions which were ultimately delivered by the court.

Appellant’s first group of attacks upon the jury instructions relate to appellant’s Schwinn theory of liability. Appellant claims issues of law were submitted to the jury as questions of fact. To the extent that this was done, we conclude that the legal issues should have been resolved adversely to appellant, and that appellant suffered no prejudice by their submission to the jury. Appellant complains of the trial court’s refusal to charge on the applicability of the per se rule. We have already concluded that the per se rule was inapplicable to this ease; therefore, the trial court’s refusal to charge on the per se rule was not error.

Appellant’s final attack on the ScMvinn instructions relates to the trial judge’s correction of an error in the charge as originally given; appellant claiming the court’s efforts to correct the error were inadequate. We are satisfied that the charge, both as originally given and as modified, was more than fair to appellant’s position and that no further steps were required of the district judge to amplify the jury’s understanding of the appropriate law. The alleged error in the original charge related to the question whether the comics were distributed on an agency and consignment basis or a sale basis; appellant contending either system could be violative of the antitrust laws. We have already resolved that as a matter of law the contract was one for exclusive dealing embracing both current cover and off-sale full-copy return Atlas comic books. In light of this determination, the consignment versus sale issue becomes moot and any error in the jury’s consideration of the issue was not prejudicial.

Additionally, appellant assigns as reversible error that portion of the jury instructions describing the conspiracy theory of antitrust liability. The charge on this point is set forth in the margin. Appellant contends this charge required the jury to find that Independent “coerced” or “pressured” Magazine into terminating Waldman as a prerequisite to finding a conspiracy. A careful reading of this portion of the instruction demonstrates that the words now found objectionable by appellant appeared as part of the court’s explanation to the jury of appellant’s conspiracy theory of liability. This explanation was, we believe, accurate. Any difficulty or prejudice inhering in the use of the words “coerce” or “pressure” were not injected into the case sua sponte by the trial judge but resulted from appellant’s theory and the manner in which the case was presented. Moreover, as heretofore observed, the distribution agreement may be interpreted as granting to Independent exclusive distribution rights in off-sale full-copy returns. Also, because we have concluded that under the exclusive dealing arrangement Independent could take the steps it did to enforce its exclusive distribution rights without incurring antitrust liability, appellant was not prejudiced by the conspiracy charge as given.

We have considered appellant’s other assignments of error relating to the jury instructions and other aspects of the trial and find them uniformly lacking in merit.

The judgment of the district court will be affirmed.

ADAMS, Circuit Judge

(’dissenting).

My interpretation of the operative facts of this case leads to the conclusion that the principles of per se liability formulated in United States v. Arnold, Schwinn & Co. have a controlling impact on the issue of the defendant’s liability. Therefore, I am impelled to this separate opinion.

The distribution system employed during the period in question by the publisher of Atlas comics, Magazine Management (Magazine), may be effectively analyzed as a series of steps or links. Magazine would deliver the most recent issue of Atlas comics for distribution, pursuant to an exclusive distribution contract, to Independent News (Independent), defendant-appellee. Independent would then distribute the comics to wholesalers who would in turn distribute to retailers.

Roughly contemporaneously with the arrival of current comics, the retailers would return all previously-received, unsold comics, back through the distribution chain, to Magazine. As the new comics had been distributed down to the retailers, payment for the shipments had been made at each step. As the unsold comic books were returned up the chain to Magazine, credits for the returns were granted.

Upon receipt of these returned comics, Magazine resold them to I. Waldman on the condition that Waldman was to resell them only to those who would use the comics as premiums. However, Wald-man sold the return comics to Harry Williams, plaintiff-appellant here, who in turn sold them to retailers for sale at a price below the newsstand price of the current issue of Atlas comics.

The sellers of current Atlas comic books, objecting to the presence on the market of Atlas comic books that were now being sold at a lesser price because they were no longer “current,” registered their dissatisfaction to Independent. The Vice President of Independent conveyed its displeasure at such sales of returned comic books for other than premium purposes; thereafter, Magazine terminated its sales to Waldman.

Although the written contract between Independent and Magazine recited that Independent was to have “the exclusive right to sell and distribute [Atlas comics] throughout the world . . .testimony of the President of Independent clearly indicates that the understanding between them was that Magazine could sell off-sale comics to other parties so long as the others were required to confine their sales to certain types of customers, i.e., those who would distribute the off-sale comics as premiums.

Thus, the majority paraphrases the testimony of the President of Independent on this point, as follows:

“Stated otherwise, Sampliner [the President of Independent] told Magazine that it could continue to sell off-sale full-copy returns if they were distributed as premiums.”

Such evidence, it is suggested, takes the present suit out of the classic “exclusive dealing” group of cases, or at least forms the basis by which the jury might conclude that the exclusive dealing arrangement did not, in fact, cover the sale of the books returned, although there was testimony by Sampliner that it did.

In contrast, the majority views, the facts as constituting a typical exclusive dealing situation. It points out that if a manufacturer or distributor, who does not have a monopoly over sales of a product, chooses to sell its product exclusively to one dealer, that is not, by itself, an antitrust violation. Firstly, if the new and off-sale books are considered as one product, Magazine did not choose to sell such product to one dealer. Under this concept of one product it admittedly chose to sell a portion of such product to Independent and a portion of such interest in Waldman. Secondly, there is nothing in this case that would prevent the jury from finding that the comic books involved here constitute, from a marketing standpoint, two separate products, depending on which stage of the distribution chain is considered. Thus, there are new comic books, and there are off-sale comic books. Although the written contract is not clearly so restricted, there is ample evidence that would indicate that Independent had an exclusive contract to sell Magazine’s new comic books. Consequently, the jury might well have found that Independent had no exclusive agreement to sell the off-sale or returned books — the product which really forms the basis of the complaint. And the fact is that Magazine sold the off-sale or returned books through other than Independent, with Independent’s acquiescence.

Once it is recognized that there is credible evidence in the record that would permit the jury to find that this is not an “exclusive dealing” ease, at least so far as the off-sale or returned books are concerned, it becomes necessary to focus on the two steps in the distribution chain of off-sale comic books — the link which sends these comics from Independent or its wholesalers to Magazine, and the next step, the sale of the off-sale comics by Magazine to Waldman. Proper evaluation of these steps is crucial in any attempt to measure the facts of this case against the standards of the antitrust laws.

At the Independent-Magazine step, there is evidence that Magazine credited Independent for returned, off-sale, comic books. This crediting may be viewed as a complete transfer of ownership to Magazine, removing all risk and dominion over the books from Independent. Regardless of the characterization of earlier steps, it is apparent that at this point in the distribution arrangement Magazine fully owned the off-sale comic books.

The very next step, the transaction between Magazine and Waldman covering the off-sale comics, was an outright sale. Magazine relinquished its full interest in the comics and thereby passed to Waldman full title, risk and dominion. Waldman, however, was allegedly to be restricted as to the type of customers to whom he could resell these comics. There is credible testimony from which the jury could find that Waldman’s violations of this restriction led to both warnings of termination and actual termination of sales from Magazine to him.

The charge of the trial court did not ask the jurors to focus separately on either of the two discrete links in the distribution chain, the one from Independent to Magazine, and the one from Magazine to Waldman. Rather, a significant portion of the charge instructed the jurors that they were to determine “What kind of distribution system was this?” (N.T. 496) The jury was then advised that if it was a consignment or agency arrangement, then there should be a finding for the defendant on the first theory [the per se violation theory]. (N.T. 496)

Further, the trial court emphasized for the jurors the term “conspiracy” as used in Section One of the Sherman Act. The proscription of the Act, however, is not limited to conspiracies, but makes a “combination” illegal as well, and the “combination” concept was referred to, but was not sufficiently developed so as to be meaningful to the jury. (N.T. 498)

In Schwinn, a chain of distribution quite similar to that here was examined by the Supreme Court. Schwinn, a leading manufacturer of bicycles, employed several different patterns of distribution. One system consisted of Schwinn, the manufacturer, selling the bicycles to cycle distributors, to a large tire company, and to hardware jobbers. These groups of wholesalers “were instructed to sell only to franchised Schwinn accounts and only in their respective territories which were specifically described and allocated on an exclusive basis.” A second arrangement had Schwinn selling directly to franchised retailers who were “authorized to sell only to consumers, and not to unfranchised retailers.” The third method of distribution utilized consignment shipments to the wholesalers.

Schwinn “resolutely policed” the restraints contained in the two “sale” patterns of distribution, its power to enforce them being “grounded upon the communicated danger of termination.”

The United States brought a civil antitrust suit against Schwinn, asserting, inter alia, that the restrictions as to customers and territories imposed by Schwinn constituted per se violations of Section One of the Sherman Act.

The Supreme Court, asserting that restrictions imposed upon customers who had acquired title, risk and dominion offended the “ancient rule against restraints on alienation,” held that Schwinn’s attempt to limit its distributors’ choice of customers was a per se violation.

“Once the manufacturer has parted with title and risk, he has parted with dominion over the product, and his effort thereafter to restrict territory or persons to whom the product may be transferred — whether by explicit agreement or by silent combination or understanding with his vendee — is a per se violation of § 1 of the Sherman Act.”

Returning to the off-sale comic book distribution arrangement, two links in that chain bear a marked resemblance to the wholesaler sales and retailer sales in the Schwinn ease.

Focusing first on the Independent-Magazine link, the evidence indicates that the procedure employed consisted of Independent returning the comics to Magazine and receiving, at that time, full credit for those returns. At that juncture, so far as the record indicates, the interest of Independent in the off-sale books was extinguished, and all title, risk and dominion was vested in Magazine. Nonetheless, Magazine was not free to deal with the comic books as it chose. Rather, evidence was introduced which showed that although Magazine was in a position to sell "these off-sale comics to certain types of eustomers, it could not sell to all types of customers — -at least not free from pressure exerted by its important customer, Independent. Up to this point, the analogy to Schwinn is quite close, if not perfect. Both cases involved restrictions as to customers, imposed on a purchaser who has acquired complete title, risk and dominion.

What is missing to complete the analogue is a finding that the customer restrictions imposed on the purchaser, here Magazine, were imposed and enforced by Independent. There was evidence adduced which, if believed, would support a finding that Independent did impose and enforce such a restriction.

It was not sufficient that the charge in this regard should have merely requested the jury to consider the characterization of the Independent-Magazine arrangement. Rather, the charge should have requested the jury to determine whether or not Independent exercised control over Magazine’s sale of the off-sale comics. Although the trial court did advert to this point, the reference was not sufficiently clear to make it understandable in light of the complex factual situation that obtained. A finding by the jury that Independent did impose such restriction on Magazine would have been a basis for concluding that Independent was liable for a per se violation of § 1 of the Sherman Act, as interpreted by Schwinn.

Shifting the examination to the Magazine-Waldman link leads to a similar conclusion.

The comparison between the distributor or retailer link in the Schwinn chain on the one hand, and the MagazineWaldman link in the Atlas comic chain on the other, is not difficult to draw. Magazine, like Schwinn, sought to limit the type of customers to whom its purchaser could sell. Both Magazine and Schwinn had relinquished title, risk and dominion to their respective purchasers. Then, both attempted to enforce the limitations by the “communicated danger of termination.” Magazine, in fact, went one step further and did terminate its recalcitrant purchaser.

The termination of Waldman directly injured Williams, ending his source of off-sale comic books. Thus, were this a suit by Williams against Magazine, it might well be found that Magazine had committed a per se violation as to Williams.

This does not, however, conclude the inquiry, because the defendant in the suit is Independent, not Magazine. Nonetheless, if Independent brought pressure to bear on Magazine for the purpose of having Magazine limit Wald-man’s use of the off-sale comic books for premiums or else be terminated, that exertion of influence might be found by

the jury to be a combination to restrain trade. Such a combination would render those who join it guilty of a violation of § 1 of the Sherman Act. Testimony was introduced which showed that Independent had brought pressure to bear on Magazine. Thus, the majority states:

“. . . Independent reminded Magazine that their contract provided for the distribution of Atlas comics to new dealers and wholesalers solely through Independent, and suggested that Magazine investigate the source of these returns. Specifically, Independent advised Magazine to police their off-sale full-copy return sales to Waldman by making certain he was using the comics as premiums." (Emphasis added)

Based on such evidence, the jury should have been instructed that they were to determine whether there existed a combination between Independent and Magazine.

Whether viewed from the standpoint of the Independent-Magazine link or from the standpoint of the MagazineWaldman link, it appears that the charge of the distinguished trial judge was not correct. It did not present to the jury an accurate description of when the rule of reason could or could not be-applied. Thus, the case should be remanded to the district court for a new trial, conducted in conformity with the legal theories set forth by the Supreme Court in Schwinn.

Although the conclusion reached in this dissenting opinion is predicated heavily on Schwinn, it would be remiss not to point out the criticism that has been directed at that case. The commentators make clear that the Supreme Court’s adoption of a per se rule applicable to products passing through the chain of distribution by sale created an unnatural distinction between sales and agency arrangements. Further, they strongly suggest that in certain circumstances the restrictions condemned in Schwinn appear to serve salutary purposes, and their illegality should be based on a benchmark of reasonableness rather than condemned out of hand by a per se rule.

However, such contentions, presumably considered in Schwinn, were rejected by the Supreme Court in that very case. And the position established in Schwinn has been reiterated by the Court just this term: “The promotion of self-interest alone does not invoke the rule of reason to immunize otherwise illegal conduct.”

Moreover, the Supreme Court has not only had recent occasion to refer to language used in Schwinn, but has made it clear that the principle enunciated there has continuing vitality.

An intermediate appellate court may not pursue its own ideas as to the economic wisdom of a certain practice or as to the legality of that practice. Kather, if the way is illumined by the Supreme Court, we are duty-bound to follow the path.

Therefore, I would remand this case to the district court for a new trial in which the rule of the Schwinn case would be appropriately applied

APPENDIX

      . The cognoscenti will recognize “Atlas” as a tradename of “horror and mystery type” comics, of interest mainly to adults and older children. Specific titles include “Daredevil,” “Venture into the Unknown,” “Astounding Tales,” “Tales to Astound,” and “Sergeant York.”

      . Apparently there exists a good size market for these no longer current comics. There was testimony that these off-sale comics were distributed by Williams’ wholesalers to “mom and pop” type stores which did not handle current cover comic books, and which could sell these off-sale comics for only four or five cents per copy. As appellant testified: “A comic book, if a certain person has never read it . . . it is the same as new to the party purchasing it.”

      . A premium is a comic book given away to children by a businessman as a gift or in a prize-bag in order to attract business. Comic book premiums do not compete with current cover comics because they are not sold to the public.

      . This court has reviewed various aspects of similar litigation between these parties in the past. See Independent News Co. v. Williams, 293 F.2d 510 (3d Cir. 1961), where we framed the issue:
      Can a second-hand periodical dealer who purchases cover-removed comics from waste paper dealers be enjoined under any one of six different legal theories, from marketing them as reading material?
      293 F.2d at 511. (Etaphasis supplied.)
      More recently, in 1968, Independent unsuccessfully sought an injunction against what it considered conversion by Williams of its literary property right in certain coverless comic books. 404 F.2d 758 (3d Cir. 1968).
      Appellee contends that the present action is is barred by Rule 13(a), F.R.Civ.P., because it should have been asserted as a counterclaim to one of these earlier actions because it arose out of the same “transaction or occurrence” which was the subject matter of Independent’s claim. Appellant argues that the factual, and legal issues involved here bear no relationship to the issues of the earlier litigation, primarily because those eases dealt with coverless comics, an item which appellant deems an essentially different commodity from full-cover comic books. Because we affirm the judgment of the district court on the merits, we need not decide whether there exists the requisite relationship between these issues to bar this action.

      . The contract states :
      (g) . . . In the New York metropolitan area, and in such other areas as Publishers request in writing, Distributor will use best efforts to obtain full copy returns, and in such case Publishers agree to pay for return transportation and such handling charges as are required. . .

      . The dissent strives to dilute the exclusive dealing arrangement. This sentence is quoted at 1109 and the suggestion is made that it forms the basis from which the jury might conclude that the exclusive dealing arrangement did not cover the sale of returned comics. Having said this, the dissent immediately concedes that Sampliner testified that the agreement extended to off-sale full-copy returns as well as current comics. Specifically, this was tlie testimony:
      Q. In other words, Mr. Sampliner, it was your understanding that under the terms of your agreement with Magazine Management, P9, that Independent News was the exclusive distributor for the off sale full copy returns of Magazine Management comics?
      A. The answer is yes.
      Moreover, the dissent neglects appellant’s express concession (Brief at 19) that the “midisjmied testimony adduced at trial established that . . . [the] contract was treated and understood by the parties thereto to encompass Magazine Management’s off-sale full-copy return Atlas comic books as well as its current cover comic books. . . . ”

      . Q. Now, you had a verbal agreement with Mr. Waldman with respect to the sale of some part of your full cover returns. Is that correct?
      Mr. Carpeney: Mr. I. Waldman.
      A. I don’t understand the question. I pointed out before that I. Waldman was doing business with Magazine Management many years before I arrived at that position.
      Number two, the verbal agreement we had with him was that the comics were being channeled into premium accounts.
      Q. Did you ever authorize Mr. I. Wald-man to sell your full-copy returns for resale to the general public?
      A. No.
      Q. Do you know why such authority was not given to Mr. Waldman?
      A. For the simple reason we would fun into all kinds of problems with our distributor, a national distributor and wholesalers, and just like everybody else it is just not done in our trade.
      'Q. It was in your best interests not to conflict the profitability of your current line, is that correct?
      A. That is correct.

      . The dissent questions the clarity of the court’s Schwinn charge in light of the complexity of the facts adduced at trial. We do not agree. The court charged:
      If on the other hand you find that there was a sale, that Magazine Management sold to Independent and Independent resold the magazine, then you have the question of whether there was an agreement between Independent and Magazine Management under the terms of which Magazine Management, for the benefit of Independent, would restrict the resale of these magazines.
      You see, what the plaintiff is suggesting to you, to sort of turn the facts of Schwinn around and consider the flow back of the magazines after they have gone down the chain of distribution, gone down to the retailer, and started back up, and their argument is this: at the time they get to
      Independent, Independent is really the owner of the magazines, and it, in effect, by returning them to Magazine Management and getting a credit from Magazine Management is selling them back to Magazine Management, and if that is what it is doing, if it is conditioning its sale to Magazine Management on an agreement that Magazine Management will not resell except for premiums, so forth and so on, then that agreement is a violation of the Sherman Act, section one, as in the Schwinn case.
      (App. 532a-33a).
      These instructions made it clear to the jury that they must find not only a sale from Independent to Magazine, but also an agreement to restrict the resale of these comics. United States v. Arnold Schwinn & Co., supra, 388 U.S. at 382, 87 S.Ct. 1856.

      . Now the second theory of recovery that has been advanced to you by the plaintiff, is a conspiracy theory, and a conspiracy is basically an agreement between two or more persons. You have to have at least two persons to have a conspiracy, to do either an unlawful act or to do an act which in and of itself is lawful, but which accomplishes an unlawful result, and the theory here is the latter, that even though there is no question that Magazine Management independently has the right to sell or not to sell to whomever it wants to, if in combination with Independent News it determined not to sell to Waldman for the purpose of preventing Williams from competing with Independent News, then that is a combination or conspiracy which violates the antitrust laws.
      Now, on this issue you have some credibility questions that you have got to resolve, and basically the question, I think, gets down to, well, why did Magazine Management stop selling to Waldman? And there are two theories advanced to you on that issue, and they are as follows: The plaintiff’s theory is that Magazine Management was getting rid of a lot of these off-sale copies through Waldman, and Waldman in turn was selling them to Williams, and that Magazine Management was perfectly content to have Waldman sell Williams, who in turn resold in the domestic market until the retailers and wholesalers of Independent News started to complain to Independent News, and then according to the plaintiff’s theory Independent News brought these complaints to the attention of Magazine Management and coerced Magazine Management into cutting Waldman off, not because of any reasons, good business reasons of Magazine Management, but because they yielded to the pressure of Independent News to prevent Williams from competing with the wholesalers and retailers of Independent News. That, I think, basically is the theory of the plaintiff; that Magazine Management really didn’t care about what happened in the after-market after they sold them to Wald-man until they were pressured by Independent, which was complaining about the pressure it was getting from its wholesalers and retailers, and therefore yielding to that pressure they cut off Waldman for the purpose of injuring Williams and driving him out of competition, and if you accept that version of the facts, if you think that that is the proper version of the facts, then you can find from this evidence that there was a combination or conspiracy which was a violation of the antitrust laws, and then you would have to determine to what extent, if any, did that combination or conspiracy resulting in William being cut off, cause him economic injury.
      The dissent concludes at 1110 that the combination element of § 1 of the Sherman Act should have been more meaningfully developed by the court in its charge to the jury, suggesting that if Independent brought pressure to bear on Magazine, the jury might find such pressure to be a combination to restrain trade. Since testimony was introduced relating to Independent’s pressure, the dissent concludes that the jury should have been instructed to determine whether there existed a combination between Independent and Magazine. A fair reading of the court’s charge discloses that this was exactly what the jury was instructed to determine.

      . 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967).

      . National Periodical Publications, the owner of Indeijendent, was named as a defendant in the original action. Its motion for a directed verdict was granted by the trial court, and I concur in the majority’s affirmance of that action.

      . Premiums are defined at footnote 3 of the majority opinion.

      . The majority discusses, at some length, the rules to be employed in considering the legality of exclusive dealing contracts. See text following note 5 of majority opinion. Justice Fortas, in Schwinn, stated: “At the other extreme, a manufacturer of a product other and equivalent brands of which are readily available in the market may select his customers, and for this purpose he may ‘franchise’ certain dealers to whom, alone, he will sell his goods ... If the restraint stops at that point — if nothing more is involved than vertical ‘confinement’ of the manufacturer’s own sales of the merchandise to selected dealers, and if competitive products are readily available to others, the restriction, on these facts alone, would not violate the Sherman Act.” (388 U.S. at 376, 87 S.Ct. at 1864). (Emphasis added.)

      . See appendix for schematic representation illustrating the distribution or sale of new comics and the return and sale of off-sale comic books.

      . The district court may have had in mind the statement in Schwinn that if there is an agency relationship, the transfer from the manufacturer to its distributor might be accompanied by a restriction without creating a per se violation. 388 U.S. at 371, 87 S.Ct. 1856.
      However, there was no evidence that the arrangements vis-a-vis Magazine and Waldman amounted to an agency, consignment, or franchise.

      . 15 U.S.C. § 1.

      . 388 U.S. 365, 87 S.Ct. 1856 (1967).

      . 388 U.S. at 371, 87 S.Ct. at 1861.

      . Id.

      . Id. at 372, 87 S.Ct. at 1862.

      . 15 U.S.C. § 1. That section provides that: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade ... is declared to be illegal.
      A practice deemed to be per se illegal is one in which the Court finds that its anti-competitive effects are such as to preclude the possibility of legally cognizable business justifications. As Justice White put it in Schwinn (388 U.S. at 379, 87 S.Ct. 1865) : “Such restraints are so obviously destructive of competition that their mere existence is enough.”

      . 388 U.S. at 380, 87 S.Ct. at 1866.

      . Id. at 382, 87 S.Ct. at 1867.

      . Analyzed in this way, Independent assumes the position of Schwinn and Magazine, the role of the distributors and retailers. In other words, at this stage in the distribution chain of off-sale books, Independent is a “seller” and Magazine its “purchaser.”

      . Although this approach is not suggested by the plaintiffs, it, too, seems to be mandated by an application of the principles in Schwinn to the facts of this case.
      As Justice Fortas stated: “Under the Sherman Act, it is unreasonable without more for a manufacturer to seek to restrict and confine areas or persons with whom an article may be traded after the manufacturer has parted with dominion over it. Such restraints are so obviously destructive of competition that their mere existence is enough. If the manufacturer parts with dominion over his product or transfers risk of loss to another, he may not reserve control over its destiny or the conditions of its resale. . On the other hand ... we are not prepared to introduce the inflexibility which a per se rule might bring if it were applied to prohibit all vertical restrictions of territory and all franchising, in the sense of designating specified distributors and retailers as the chosen instruments through which the manufacturer, retaining ownership of the goods, will distribute. them to the public.
      “This does not, of course, excuse or condone the per se violations which, in substance, consist of the control over the resale of Schwinn’s products after Schwinn has parted with ownership thereof. Once the manufacturer has parted with title and risk, he has parted with dominion over the product, and his effort thereafter to restrict territory or persons to whom the product may be transferred — whether by explicit agreement or by silent combination or understanding with his vendee — is a per se violation of § 1 of the Sherman Act.” 388 U.S. at 379-380, 382, 87 S.Ct. at 1865-1866, 1867.

      . In this approach, Magazine assumes Schwinn’s station, and Waldman’s position is the same as that of Schwinn’s distributors and retailers. Cf. fn. 15.

      . 388 U.S. at 372, 87 S.Ct. at 1862.

      . See Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968).

      . 15 U.S.C. § 1.

      . As the majority points out, the fault was not entirely that of the trial judge, since through some misunderstanding the requests for charge had been submitted in narrative form. However, after the charge, plaintiff sought a clarification regarding the use by the court of the rule of reason in connection with the transfer by Independent to Magazine of the off-sale comics on the ground that if such transfer were accompanied by a restriction, a per se violation may well have occurred. (N.T. 506) The trial court did not clarify this point, but instead repeated the use of the rule of reason in connection with the restriction allegedly imposed on Magazine so far as the resale of the off-sale comics was concerned. (N.T. 511).

      . See Handler, The Twentieth Annual Anti-trust Review, 53 Va.L.Rev. 1667, 1680-89 (1967). Note, The Supreme Court, 1966 Term, 81 Harv.L.Rev. 69, 235-9 (1967).

      . Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973) quoting United States v. Arnold, Schwinn & Co., 388 U.S. at 375, 87 S.Ct. 1856.
      In Tripoli Co. v. Wella Corp., 425 F.2d 932 (3d Cir. 1970) (en banc) this Court held that the rule of Schwinn did not invalidate certain resale restrictions imposed by a manufacturer upon a wholesale distributor, even though there had been a completed sale by the former to the latter. However, the manufacturer alleged, as justification for the restrictions, that they served to protect the public against physical injury, and to protect the manufacturer against potential product liability. Tripoli is thus readily distinguishable from this case, since no such justifications were proffered here.

      . See United States v. Topco Assoc., Inc., 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972).

      . In Schwinn, the Supreme Court remanded with the instruction that: “[T]he decree should be revised to enjoin any limitation upon the freedom of distributors to dispose of the Schwinn products, which they have bought from Schwinn, where and to whomever they choose.” 388 U.S. at 378, 87 S.Ct. at 1865.
      Issues of collateral estoppel and compulsory counterclaim have been raised on this appeal. The majority, deciding the case on the merits, does not address these procedural questions. Although the problems presented are not without some merit, in view of the fact that this is a minority opinion, further discussion of these issues would not appear fruitful.


text:
    Jaroslav SEDIVY v. Elliot L. RICHARDSON, Secretary of Defense of the United States of America, et al., Appellants.
    No. 72-2065.
    United States Court of Appeals, Third Circuit.
    Argued June 21, 1973.
    Decided Sept. 26, 1973.
    Harlington Wood, Jr., Asst. Atty. Gen., Herbert J. Stern, U. S. Atty., Anthony J. Steinmeyer, Walter H. Fleischer, Attys., Dept, of Justice, Civil Division, Washington, D. C., for appellants.
    Alexander D. Lehrer, Anschelewitz, Barr, Ansell & Bonello, Asbury Park, N. J., for appellee.
    Before VAN DUSEN, ALDISERT and ADAMS, Circuit Judges.
   OPINION OF THE COURT

ALDISERT, Circuit Judge.

We are called upon to review the propriety of a permanent injunction issued by the district court, a federal civilian court, which prohibits the trial of an army sergeant by court-martial on the theory that the military court lacked jurisdiction under O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969). The Secretary of Defense, the Secretary of the Army, and the court-martial’s convening authority, a general officer, have appealed.

A general court-martial had been convened to try Army Sergeant First Class Sedivy for possession of amphetamines and marijuana in violation of Articles 92 and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 892, 934. By the terms of the permanent injunction issued by the district court, the military authorities were enjoined from proceeding against Sedivy on these charges. The district court made findings of fact, drew legal conclusions therefrom, and held that Sedivy’s conduct was not service connected, and, therefore, under O’Callahan the military court lacked jurisdiction to try him.

The military prosecution emanated from a December 10, 1971, raid on Sedivy’s off-post house trailer. Civilian and military law enforcement officials conducted the raid, acting pursuant to a search warrant issued by a New Jersey state judge. The authorities found a quantity of amphetamines and marijuana on the premises and arrested Sergeant Sedivy and three other enlisted men attached to Fort Monmouth, New Jersey. At that time Sergeant Sedivy served as acting first sergeant of the 241st Military Police Company and was the senior non-commissioned officer of that unit. The threshold inquiry concerns the authority of the district court to find the facts and reach the legal conclusions on the O’Callahan issue.

I.

We immediately notice an issue neither argued nor briefed here or in the district court. It was incumbent upon Sergeant Sedivy to assert a claim cognizable under the general federal question jurisdictional statute, 28 U.S.C. § 1331, with the prerequisite $10,000 amount in controversy. Cf., Spock v. David, 469 F.2d 1047 (3d Cir. 1972). This he did by appropriate averments in both the First and Fourth Counts of his complaint. As the concurring opinion indicates, the appellants filed no answer, but in a brief colloquy at trial their counsel refused to stipulate to the court’s jurisdiction. It cannot thus be said that the question of jurisdiction was properly traversed by a pleading or by .a motion under F.R.Civ.P. 12(b)(1). As was the case of the trial court in Spock, “[t]he district court assumed that jurisdiction of the federal court was.not in issue.” “Since as the record of the district court comes before us the allegation of jurisdictional amount remains untraversed, ... we cannot say as a legal certainty that [Sedivy] would never be able to establish [his] jurisdictional amount claim.” Spock v. David, supra, 469 F.2d at 1052. Although the jurisdiction averments were not traversed at trial, we are permitted to raise the question sua sponte. “An objection to the adjudicatory power of a tribunal may generally be raised for the first time at any stage of the litigation. See, e. g., Flast v. Cohen, 392 U.S. 83, 88 n.2, [88 S.Ct. 1942, 20 L.Ed.2d 947] (1968); United States v. Griffin, 303 U.S. 226, 229, [58 S.Ct. 601, 82 L.Ed. 764] (1938); Fortier v. New Orleans National Bank, 112 U.S. 439, 444, [5 S.Ct. 234, 28 L.Ed. 764] (1884).” Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973) (Marshall, J., dissenting) (footnote omitted). Because the very nature of this action presents an arguable question whether the jurisdictional amount could be satisfied, this is the type of ease most appropriate for factual findings relating to subject matter jurisdiction. Nevertheless, we find it unnecessary to remand for such findings, first, because we are not required to, Spock v. David, supra, and, second, because of the view we take of these proceedings. For the guidance of the district courts, we emphasize the desirability to find jurisdictional facts in all eases arising under the general federal question statute, 28 U.S.C. § 1331, or the diversity statute, 28 U.S.C. § 1332, Nelson v. Keefer, 451 F.2d 289 (3d Cir. 1971). It is the Congressional mandate to restrict federal jurisdiction in these areas and it is incumbent upon the courts to implement this mandate.

II.

The precise question we address is whether the federal civilian courts may prevent absolutely the military from finding the facts and determining whether they have jurisdiction under O’Callahan. The Constitution specifically provides for military punishment of military related offenses, Article 1, § 8, cl. 14; amend. V. . . Congress, in the exercise of its power to ‘make Rules for the Government and Regulation of the land and naval Forces,’ has never given . . . [the Supreme] Court appellate jurisdiction to supervise the administration of criminal justice in the military. When after the Second World War, Congress became convinced of the need to assure direct civilian review over military justice, it deliberately chose to confide this power to a specialized Court of Military Appeals, so that disinterested civilian judges could gain over time a fully developed understanding of the distinctive problems and legal traditions of the Armed Forces.” Noyd v. Bond, 395 U.S. 683, 694, 89 S.Ct. 1876, 1883, 23 L.Ed.2d 631 (1969) (footnote omitted).

If the Supreme Court articulates such a rule relating to the exercise of appellate jurisdiction over military court-martial matters, it would seem a fortiori that the inferior Article III courts are precluded from injunctive interference with the trial process of a military court. Civilian federal courts have approached ongoing courts-martial gingerly, and generally only through the means of federal habeas corpus.

We recently have had occasion to observe that federal habeas corpus preserves the jurisprudential integrity of the military system, because federal habeas corpus, an inquiry into “detention simpliciter,” is not a direct review of a state or military court judgment:

Initially, it is necessary to identify the limited contours of a civilian court’s jurisdiction when presented with a habeas corpus petition from a federal prisoner whose incarceration was ordered by a court-martial. Our statement of this issue is deliberate, for we avoid the imprecise label “review.” Title 10 U.S.C. § 876 provides that military criminal proceedings shall be “final and conclusive,” and “binding upon all departments, courts, agencies, and officers of the United States.” That is, as in the case of petitions for habeas corpus filed by state prisoners under 28 U.S.C. § 2254, where there is no jurisdiction to review the state judgment, here there can be no review of the final judg merit of the court-martial. Naturally, however, a federal court has jurisdiction to examine state prisoner habeas corpus cases, and the basis of this jurisdiction was made clear in Fay v. Noia, 372 U.S. 391, 430-431, [83 S.Ct. 822, 844, 9 L.Ed.2d 837] (1963): “The jurisdictional prerequisite is not the judgment of a state court but detention simpliciter. . . . Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him. Indeed, it has no other power; it cannot revise the state court judgment; it can act only on the body of the petitioner. Medley, Petitioner, 134 U.S. 160, 173, [10 S.Ct. 384, 388, 33 L.Ed. 835].” Thus the federal court inquiry into “detention simpliciter” is not, jurisprudentially speaking, a review of the state judgment, but an inquiry into whether the constitutional rights of the prisoner were properly vindicated in the proceedings which caused his detention.

Levy v. Parker, supra, 478 F.2d at 779. (footnote omitted)

Even under habeas corpus, the opportunity for its exercise is strictly contained. “Gusik v. Sehilder, 340 U.S. 128, [71 S.Ct. 149, 95 L.Ed. 146] (1950), established the general rule that habeas corpus petitions from military prisoners should not be entertained by federal civilian courts until all available remedies within the military court system have been invoked in vain.” Noyd v. Bond, supra, 395 U.S. at 693, 89 S.Ct. at 1882

III.

Because our issue is tightly constrained, it is important to emphasize what is not before us. This is not habeas corpus. This is not an inquiry into the present detention of a military prisoner following a court-martial adjudication. Noyd v. Bond, supra; O’Callahan v. Parker, supra; Levy v. Parker, supra; Cole v. Laird, 468 F.2d 829 (5th Cir. 1972). See Fay v. Noia, 372 U.S. 391, 430-431, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). What we have is an equity action preventing the military courts from making findings of fact or from interpreting the law pronounced by the Supreme Court. Our research has disclosed no reported case which has denied military courts the opportunity of finding facts relating to the exercise of their jurisdiction, except Moylan v. Laird, 305 F.Supp. 551 (R.I.1969), which we expressly decline to follow. The Moylan court appears to have ignored the Congressional limitations of 10 U.S.C. § 876 as well as every reported case on the subject. Moreover, experience discloses that . . review of military proceedings is characterized by the law-fact dichotomy articulated most precisely by the Court of Claims: issues of fact are not reviewable; issues of law are. . . . Shaw v. United States, 357 F.2d 949, 953-954, 174 Ct.Cl. 899 (1966). . . .” Levy v. Parker, supra, 478 F.2d at 783.

Statutory proscription and precedent aside, it is important to place the military court system in its proper prospective. “Military courts are legislative courts; their jurisdiction is independent of Art. Ill judicial power.” Parisi v. Davidson, 405 U.S. 34, 41 n.7, 92 S.Ct. 815, 819, 31 L.Ed.2d 17 (1972). They function in a procedural and jurisprudential environment tailored to meet military conditions. Justice Harlan addressed “. . . considerations [which] require a substantial degree of civilian deference to military tribunals. In reviewing military decisions, we must accommodate the demands of individual rights and the social order in a context which is far removed from those which we encounter in the ordinary run of civilian litigation, whether state or federal. In doing so, we must interpret a legal tradition which is radically different from that which is common in civil courts.” Noyd v. Bond, 395 U.S. at 694, 89 S.Ct. at 1883.

Generally speaking, a service man must exhaust remedies within the military judicial system even before habeas corpus recourse may be had to a federal court. “Exhaustion in this context requires completion of all the steps of review provided within the military. Prior to completion of this process, the civilian courts have not entertained petitions for habeas corpus. See Brown v. McNamara, 387 F.2d 150 (3d Cir. 1967). . . . Exhaustion of these administrative remedies generally seems appropriate under Professor Jaffe’s analysis. There is reason to have the military develop and decide the disputed questions of fact; the military is theoretically part of a coordinate branch of government entitled to some deference. L. Jaffe, Judicial Control of Administrative Action 424-26 (1965).” McCormack, Federal Court Intervention in Military Courts — Interrelationship of Defenses and Comity, 6 Ga.L.Rev. 532, 553-54 n.89.

Justice Marshall has recently explained the exhaustion requirement within the military justice system:

“The exhaustion doctrine evolved in the context of collateral attack on state criminal proceedings. See, e. g., Ex parte Hawk, 321 U.S. 114, [64 S.Ct. 448, 88 L.Ed. 572] (1944); Ex parte Royall, 117 U.S. 241, [6 S.Ct. 734, 29 L.Ed. 868] (1886). It generally requires state petitioners to utilize available state court remedies before resorting to federal habeas corpus, and thus serves both to ensure the orderly functioning of state judicial processes, without disruptive federal court intervention, and to allow state courts to fulfill their roles as coequal partners with the federal courts in the enforcement of federal law, thus often eliminating the need for federal court action, and avoiding unnecessary friction between state and federal courts. These same considerations inhere in the context of collateral attack in federal court upon the judgments of military tribunals, which constitute a judicial system — a system with its own peculiar purposes and legal traditions— distinct from the federal judicial system much like the independent state judicial systems. Accordingly, this Court normally has required that military petitioners exhaust all available remedies within the military justice system. See Noyd v. Bond, 395 U.S. 683, 693, [89 S.Ct. 1876, 1882, 23 L.Ed.2d 631] (1969); Gusik v. Schilder, 340 U.S. 128, 131-132, [71 S.Ct. 149, 151-152, 95 L.Ed. 146] (1950).” Gosa v. Mayden, supra, 413 U.S. 665, 711, 93 S.Ct. 2926, 2953, 37 L.Ed.2d 873 (Marshall, J., dissenting) (footnotes omitted).

We perceive the presence of no countervailing circumstances to necessitate a departure from the normal requirement of exhaustion of military remedies before recourse to federal civilian courts. The military court system — including the general court-martial, the Army Court of Military Review, and the Court of Military Appeals — are required to follow the mandate of O’Callahan as further explicated in Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971).

It is in the military court that Sergeant Sedivy may present the facts and the appropriate motion to oust military jurisdiction. Those tribunals may freely make the necessary factual determinations and draw conclusions from all the evidence present, including but not limited to the nature of the charges lodged against Sergeant Sedivy, that the seizure of the incriminating evidence was pursuant to a civilian court order, that the incident occurred off-base, that it did not occur in time of war, that Sergeant Sedivy was not on duty, that he was the ranking non-commissioned officer of the Fort Monmouth Military Police Company, that a sign on his house trailer announced that he was a first sergeant in the military police, that arrested with him were three Fort Monmouth enlisted men of inferior rank, that a fourth enlisted man under his command arrived at his trailer while the raid was in process.

Accordingly, we conclude that it was error for the district court to have made the fact findings in the first instance, to have decided the O’Callahan issue, and to have issued the injunction pursuant to a decision on the merits. The district court should have required the appellee to exhaust remedies in the military court system and not have interfered with its orderly process.

IV.

Although we recognize that a jurisprudential premise of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), is the recognition of comity between courts of two co-equal sovereigns, federal and state, a persuasive ease can be made that the doctrine applies equally to mutual non-intervention by two coordinate courts of the same sovereign. It can be contended that the equity postulates of Younger bade fealty to a traditional principle that one court system should not intrude when another court system holds out hope of an adequate remedy. Moreover, here, as emphasized in Younger, there appears to be no'barrier to the assertion of Sergeant Sedivy’s constitutional defense in a single criminal proceeding. So conceptualized, we arrive at the same result. Whether it be said that Sergeant Sedivy failed to exhaust avenues for relief in the military court system, or that he had available an adequate remedy at law, he was not entitled to the equitable relief granted by the district court.

The judgment of the district court will be reversed and the proceedings remanded with a direction to vacate the injunction and dismiss the complaint.

ADAMS, Circuit Judge

(concurring):

I concur with the result reached by the majority but feel constrained to add that the question whether the $10,000 “matter in controversy” requirement of 28 U.S.C. § 1331 is, or must be, met in this type case deserves, at some point, more serious consideration than it has been given thus far by the federal courts.

Sedivy’s complaint alleges, among other things, violations of his Fifth and Sixth Amendment rights and a matter in controversy exceeding $10,000, exclusive of interest and costs. He sought temporary, preliminary, and permanent restraint against the military authorities, and damages consisting specifically of counsel fees and costs of suit totaling $12,500. For reasons unclear in the record, the Government did not file an answer to Sedivy’s complaint. But an indication of dispute as to the jurisdiction of the district court to hear the case consisted of a brief colloquy between the court and counsel at trial, during which Government counsel declined to stipulate to the court’s jurisdiction.

1331(a) provides as follows:

“The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.”

To meet this $10,000 requirement, the 'sum asserted by a plaintiff controls unless it appears “to a legal certainty that the claim is really for less than the jurisdictional amount.” Sedivy’s $12,500 claim consists of costs, expressly excluded by the statute, and legal fees, traditionally not awarded by federal courts unless their recovery is provided for by statute or contract. It appears, therefore, that Sedivy’s claim, at least at this point of the litigation, does not satisfy § 1331. The fact that the Government has not answered the complaint should not bind it to Sedivy’s jurisdictional allegation, especially in light of the Government’s specific refusal to stipulate jurisdiction at trial.

Furthermore, since the federal courts are courts of limited, not general, jurisdiction, it is incumbent on them to exercise utmost care that they do not act beyond the bounds set for them by Congress or the Constitution. Even if the Government had stipulated as to jurisdiction, it remained the duty of the district court to satisfy itself that Sedivy’s claim did not appear “to a legal certainty” to be less than $10,000. Parties may not through the stipulation device confer jurisdiction on a federal court when jurisdiction does not otherwise exist.

The majority asserts that Spock v. David does not require a remand for jurisdictional findings. The Spock case differs from this case in three significant respects. First, in Spock there was no specific declination to stipulate, as there is here, to the district court’s jurisdiction. Secondly, although some of Sedivy’s constitutional rights arguably are at issue, he does not claim that his First Amendment rights are implicated. The plaintiffs in Spock, on the other hand, sought an injunction against interference with rights applicable to freedom of speech and when First Amendment rights are allegedly abridged, courts are likely to be more generous in finding jurisdiction. Finally, and probably most importantly, the Spock case involved an appeal from a denial of a preliminary injunction. The Court recognized that the need for expedition at the preliminary hearing in First Amendment cases precluded detailed examination as to whether the “matter in controversy” requirement had been met. Such a determination, this Court reasoned, could be made at the final hearing:

“The district court assumed that jurisdiction of the Federal court was not at issue, at least with respect to the preliminary injunction. In these circumstances it was understandable that no effort was made to introduce evidence directed specifically to the value of the claimed rights. This was, after all, not a final hearing, but a hearing on a motion for a preliminary injunction. Since as the record of the district court comes before us the allegation of jurisdictional amount remains untraversed, and we cannot say as a legal certainty that the plaintiffs will never be able to establish their jurisdictional amount claim, we must proceed on the same assumption as did the district court.” (Emphasis supplied)

The Court in Spock went on to indicate that there was a strong likelihood at a final hearing that the plaintiffs could meet the $10,000 requirement. The case at hand is in a much different posture. After a hearing, the military authorities were permanently enjoined. There is no further proceeding in which the district court can consider fully the jurisdictional issue. Unless there is a reversal by an appellate court, Sedivy will, in fact, never be called upon to meet the $10,000 requirement. In sum, Spock would appear to be inapposite.

If consideration of the jurisdictional problem ended here, I would be impelled to urge a dismissal of this case, since it does not appear from the record that the $10,000 requirement has been met. But the Supreme Court, in cases involving pre-induction challenge to the authority of local boards to draft particular individuals, has exhibited some willingness to overlook suspect allegations of amounts in controversy, decide the merits of the dispute, and then remand for a jurisdictional determination if the decision on the merits was in favor of the petitioner. The pre-induction challenge cases are somewhat similar to the present one in that the plaintiffs in both seek to enjoin imminent detention rather than delay their challenges to the detaining agencies’ authority until those agencies have acted.

In Oestereich v. Selective Service System Local Board No. 11, a ministry student sought an injunction in a district court after a draft board had withdrawn his exemption. The Supreme Court held that the Government could not deprive a ministry student of his statutory exemption after he had turned in his registration certificate to the Government in protest of the Viet Nam War, even though the statute on its face precluded preinduction judicial review of a registrant’s classification. However, the Supreme Court, reversed and remanded to the district court “where petitioner must have the opportunity ... to demonstrate that he meets the jurisdictional requirements of 28 U.S.C. § 1381.”

The approach to the jurisdictional question in Oestereich is troublesome. It would seem that if the district court in Oestereich lacked original jurisdiction under § 1331, the Supreme Court would also lack jurisdiction to reach the merits of the petitioner’s claim. If this be so, it might logically be contended that the question of the district court’s jurisdiction should have been addressed and determined in petitioner’s favor before an appellate court could have appropriately reached the merits of petitioner’s claim.

In Fein v. Selective Service System Local Board No. 7, the Supreme Court again addressed question whether a petitioner was entitled to pre-induction review without first determining whether § 1331 jurisdiction was properly invoked. There, the Court held that the petitioner had no right to pre-induction review and that this holding made it “unnecessary to consider in any detail” the § 1331 question. Thus, it appears to be a developing practice by the Supreme Court to defer determination of the § 1331 question, at least in cases involving detention similar to that present here, until after deciding whether petitioner would be entitled to review vel non.

Although this approach might be considered inconsistent with the conventional jurisprudence that jurisdictional determinations be resolved prior to consideration of the merits, it does permit a court to avoid constitutional questions of the type suggested by Justice Harlan in a footnote in his concurring opinion in Oestereich. There he asserts that “[i]t is doubtful whether a person may be deprived of his personal liberty without the prior opportunity to be heard by some tribunal competent fully to adjudicate his claims.” If a person is detained by any authority prior to hearing and is unable to bring suit in federal court because he cannot claim $10,000 in damages, then Justice Harlan’s concern must be considered. Admittedly, the availability of state court review and the federal writ of habeas corpus may remove the constitutional objections to the absence of § 1331 jurisdiction. But until the constitutional questions posed by Justice Harlan are briefed, argued and decided, they remain open.

In reversing the district court here, we would appear to be following the Supreme Court’s lead in Fein. There, as we do here, the Supreme Court found against the petitioner on the merits, thereby rendering a remand to the district court for a jurisdictional determination unnecessary.

A decision that the § 1331 “matter in controversy” requirement was not met on the record before us would ordinarily require a dismissal. If, in a subsequent suit, Sedivy did successfully invoke § 1331 jurisdiction and the district court then granted relief, we would be required to reverse because of the views enunciated by the majority regarding the merits of the controversy. Thus, by reaching the merits now, we may be conserving, in the long run, judicial resources. Although we are following the Supreme Court’s lead and possibly promoting the conservation of judicial resources, there nonetheless remains the perplexing, perhaps nagging, question whether we are being properly deferential to our limited role in the federal system.

      . Article 134, 10 U.S.C. § 934 has been declared unconstitutional. Levy v. Parker, 478 F.2d 772 (3d Cir. 1973).

      . The Army’s Article 32 investigation discloses that arrested with Sedivy were Specialists Clonnie W. Adkins and Michael Salud and PFC Joseph M. Lunt. Specialist Kenneth E. Hinson, assigned to Sedivy’s MP Company, arrived on the premises while the raid was in progress.

      . But see Councilman v. Laird, 481 F.2d 613 (10th Cir., 1973), discussed in footnote 5, infra.

      . “Mr. Justice Douglas, for a unanimous Court [in Gusik v. Sehilder, supra] explained some of the important reasons which require civilian courts to respect the integrity of the military court system that Congress has established:
      ‘An analogy is a petition for habeas corpus in the federal court challenging the jurisdiction of a state court. If the state procedure provides a remedy, which though available has not been exhausted, the federal courts will not interfere. . . . The policy underlying that rule is as pertinent to the collateral attack of military judgments as it is to collateral attack of judgments rendered in state courts. If an available procedure has not been employed to rectify the alleged error which the federal court is asked to correct, any interference by the federal court may be wholly needless. The procedure established to police the errors of the tribunal whose judgment is challenged may be adequate for the occasion. If it is, any friction between the federal court and the military or state tribunal is saved. Such a principle of judicial administration is in no sense a suspension of the writ of habeas corpus. It is merely a deferment of resort to the writ until other corrective procedures are shown to be futile.’ Id., 340 U.S. at 131-132, 71 S.Ct. 151-152.”
      Noyd v. Bond, supra, 395 U.S. at 693-694, 89 S.Ct. at 1882.

      . In Councilman v. Laird, supra, the court of appeals affirmed an injunction restraining the continuance of a court-martial proceeding after an O’Callalian issue was first presented and rejected by the presiding judge of the court-martial. The issue of prior exhaustion of military remedies was not discussed in the opinion; an examination of the briefs discloses that the point was not raised. The sole question on appeal was whether the offense was “service-connected.” Accordingly, the case has no precedential value for our purposes. See Bishop, Civilian Judges and Military Justice: Collateral Review of Court Martial Convictions, 61 Colum.L.Rev. 40 (1961); Weckstein, Federal Court Review of Courts-Martial Proceedings : A Delicate Balance of Individual Rights and Military Responsibilities, 54 Mil.L.Rev. 1 (1971).

      . In a perceptive analysis, Judge Edward D. Re, formerly Professor of Law at St. John’s Law School, has written: “Although courtsmartials are not strictly a part of the judicial system of the United States since they are not ‘ . . . such inferior Courts as the Congress may from time to time ordain and establish,’ they are, nevertheless, important administrative military tribunals to which far-reaching powers are entrusted. The fact that they are adjuncts of the executive power does not necessarily lead to the conclusion that they are ‘ . . . simply instrumentalities of the executive power, provided by Congress for the President as Commander-in-Chief, to aid him in properly commanding the army and navy and enforcing discipline therein.’ Winthrop, Military Law and Precedents 49 (2d ed. 1920).” Re, The Uniform Code of Military Justice, 25 St. John’s L.Rev. 1, 9-10 (1951) (footnotes omitted.

      . Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955), was a federal habeas corpus challenge to the right of a military court to try a civilian. The proceeding was a direct challenge to the constitutionality of legislation purporting to give the military court jurisdiction. Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), was a habeas corpus challenge to the constitutionality of the application of Article 2(11) of the Uniform Code of Military Justice to the trial, in capital offenses, of civilian dependents accompanying members of the armed forces overseas. Similarly McElroy v. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282 (1960), applied the same holding to the trial of civilians in non-capital offenses. Putting aside the procedural context in which these cases arose — each was federal habeas corpus — these three cases did not require a finding of what facts constituted the offense. Rather, each case turned on the civilian status of the relator.

      . Parisi v. Davidson, supra, does not undercut these principles. Although the Court used language which questioned the label “exhaustion,” preferring “appropriate demands of comity,” it does not appear that the Supreme Court is diluting the jurisprudential doctrine of exhaustion of remedies in another court system, considering how ingrained is this principle in federal collateral review of state criminal proceedings. Fay v. Noia, supra. The issue before this court — a civilian federal “court’s direct intervention in a case arising in the military court system” —was not before the Court in Parisi. 405 U.S. at 41, 92 S.Ct. 815.
      In Parisi the Court stated :
      Although this argument, too, is framed in terms of “exhaustion,” it may more accurately be understood as based upon the appropriate demands of comity between two separate judicial systems. Requiring the District Court to defer to the military courts in these circumstances serves the interests of comity, the respondents argue, by aiding the military judiciary in its task of maintaining order and discipline in the armed services and by eliminating “needless friction” between the federal civilian and military judicial systems. The respondents note that the military constitutes a “specialized community governed by a separate discipline from that of the civilian.” Orloff v. Willoughby, 345 U.S. 83, 94, 73 S.Ct. 534, 97 L.Ed. 842; Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146, and that in recognition of the special nature of the military community, Congress has created an autonomous military judicial system, pursuant to Art. I, § 8, of the Constitution. They further point out that civilian courts, out of respect for the separation-of-powers doctrine and for the needs of the military, have rightly been reluctant to interfere with military judicial proceedings.
      405 U.S. at 40-41, 92 S.Ct. at 819. (footnotes omitted)
      The concept of “exhaustion” in the context of the demands of comity between different judicial systems is closely analogous to the doctrine of abstention. For a discussion of the exhaustion and abstention doctrines in the federal-state context, see generally, C. Wright, Handbook of the Law of Federal Courts 186-188, 196-208 (2d ed. 1970).
      405 U.S. at 40, n. 6, 92 S.Ct. at 819.
      We must confess to a less than complete understanding liow the doctrine of comity may properly apply to two court systems functioning under the same sovereign, since the doctrine is conceptualized on court systems of separate sovereigns. Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 (1895). Justice Douglas observes:
      Comity is “a doctrine which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concur-' rent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.” Darr v. Burford, 339 U.S. 200, 204, [70 S.Ct. 587, 598, 94 L.Ed. 761], But the Pentagon is not yet sovereign. The military is simj)ly another administrative agency, insofar as judicial review is concerned. Cf. Comment, 43 S. Cal.L.Rev. 356, 377-378. While we have stated in tiro past that special deference is due the military decision-making process, Gusik v. Schilder, 340 U.S. 128, [71 S.Ct. 149, 95 L.Ed. 146,] this is so neither because of “comity,” nor the sanctity of the Executive Branch, but because of a concern for the effect of judicial intervention on morale and military discipline, and because of the civilian judiciary’s general unfamiliarity with “extremely technical provisions of the Uniform Code [of Military Justice] which have no analogs in civilian jurisprudence,” Noyd v. Bond, supra, at 696, 89 S.Ct. at 1884.
      Parisi v. Davidson, 405 U.S. at 51, 92 S.Ct. at 825 (concurring in the result).
      Perhaps the concept of “exhaustion” in the context of district court-military court relations is more closely analogous to the doctrine of primary jurisdiction. “The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. ‘Exhaustion’ applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process lias run its course. ‘Primary jurisdiction,’ on the other hand, applies where a' claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case, the judicial process is suspended pending referral of such issues to the administrative body for its views. General American Tank Oar Corp. v. El Dorado Terminal Co., 308 U.S. 422, 433, [60 S.Ct. 325, 331, 84 L.Ed. 361].” United States v. Western Pac. R. Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956).

      . Indeed, the Supreme Court has recognized that the Court of Military Appeals has some power to issue writs over military courts of inferior jurisdiction, although recognizing some uncertainty as to whether that court has original power to issue a writ of habeas corpus. Parisi v. Davidson, supra, 405 U.S. at 44, 92 S.Ct. 815.

      . “ . . . , American courts are heirs to a long standing principle of the common law which finds its historical foundation in the forbearance through which courts exercising coordinate jurisdiction in the name of a single sovereign refrained from interfering with the process of one another and, thereby, direct conflicts with each other were avoided. The utility produced by this concord was alone sufficient justification for its continued existence.” Jennings v. Boenning & Co., 482 F.2d 1128 (3d Cir., 1973).

      . Darr v. Burford, supra, 339 U.S. at 204, 70 S.Ct. 587 (1950); Covell v. Heyman, 111 U.S. 176, 182, 4 S.Ct. 355, 28 L.Ed. 390 (1884).

      . Transcript, pp. 4-5.

      . St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 82 L.Ed. 845 (1938).

      . Wright, Federal Courts § 35 (2d ed. 1970). If a statute or contract provides for attorney fees, then such fees may be used in determining the amount in controversy. Id.

        . Sedivy’s complaint sought to assert a cause of action based on false imprisonment. At oral argument his counsel adverted to pension benefits Sedivy risked losing if the military authorities were not enjoined. Had Sedivy linked a money claim to the false imprisonment charge, or set out in his complaint the amount of pension benefits that would be lost if the military prosecution were successful, he might have met the requirements of § 1331.

      . “Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the case.” Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868).

      . St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 82 L.Ed. 845 (1938).

      . See Mansfield, Coldwater & Lake Michigan Ry. v. Swan, 111 U.S. 379, 383, 4 S.Ct. 510, 28 L.Ed. 462 (1884); Fed.R.Civ.P. 12(h) (3).

      . 469 F.2d 1047 (3d Cir. 1972).

      . See generally Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv.L.Rev. 1362 (1953).

      . Cf. Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).

      . 469 F.2d at 1052.

      . Id. at 1053.

      . Sodivy was confined in the Fort Monmouth MP Station immediately after the discovery of narcotics in his housetrailer, and taken to the Fort Dix stockade the next day. Ilis detention was not preceded by any hearing whatsoever.

      . 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968).

      . Id. at 239, 89 S.Ct. at 417.

      . The Supreme Court’s remand in Oestereich for a jurisdictional determination seems especially puzzling in light of the district court’s prior determination that “[t]he failure of jurisdiction of this court under 28 U.S.C. § 1331 appears on the face of the complaint for its failure to allege facts showing that the matter in controversy exceeds the sum or value of $10,000 exclusive of interest and costs, or to show facts from which such jurisdictional requirement may be inferred.” Oestereich v. Selective Serv. Sys. Local Board No. 11, 280 F.Supp. 78 (D. Wyo.1968).

      . 405 U.S. 365, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972).

      . Id. at 377. The Supreme Court took this approach despite the fact that Judge Hays, concurring, and Judge Lumbard, dissenting, specifically reached the jurisdictional question in their opinions. Fein v. Selective Serv. Sys. Local Bd. No. 7, 430 F.2d 376, 380, 384-385 (2d Cir. 1970).

      . 393 U.S. 233, 243-244, n. 6, 89 S.Ct. 414, 21 L.Ed.2d 402.

      . Id. at 243, n. 6, 89 S.Ct. at 419.

      . Justice Stewart, in response to Justice Harlan’s suggestion that prehearing detention is unconstitutional, points out that the typical arrest situation involves just such prehearing detention. Id. at 249-250, 89 S.Ct. 414 (Stewart, dissenting).

      . See Fein v. Selective Serv. Sys. Local Bd. No. 7, 430 F.2d 376, 384-385 (2d Cir. 1970) (Lumbard, dissenting).

      . § 1331 jurisdiction by the district court would, in reality, serve no purpose. In contrast to the disposition in Fein, the Court found for the petitioner on the merits in Oestereich, making a jurisdictional finding of practical significance in terms of the ultimate result.

      . If, however, the majority’s admonition to the district courts that it is important for them to be satisfied that they have jurisdiction under § 1331 before reaching the merits of the controversy should go unheeded, many cases may reach the federal courts that are not properly there. Of course, it would be our duty, at some point, to stem any such flow of litigation. It is arguable that a remand for a jurisdictional determination here would have a greater prophylactic effect than a mere admonition.