author: HASTIE, Circuit Judge:

text:
    Russell G. COURTNEY, Appellant, v. UNITED STATES of America, Appellee.
    No. 72-2304.
    United States Court of Appeals, Ninth Circuit.
    Sept. 27, 1973.
    Paul M. Posner (argued), of Posner & Newman, Beverly Hills, Cal., for appellant.
    John M. Newman, Jr., Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
    Before HASTIE GOODWIN and WALLACE, Circuit Judges.

       The Honorable William H. Hastie, Senior United States Circuit Judge, sitting by designation.

   HASTIE, Circuit Judge:

This proceeding, authorized by Section 2255 of Title 28, United States Code, is a collateral attack by Russell Courtney upon his conviction of obstructing justice in violation of Section 1503 of Title 18, United States Code. The district court denied relief and this appeal followed.

Appellant Courtney and a co-defendant, Barry Kornhaber, were indicted for related federal offenses and were tried together. Both were charged with obstruction of justice. Appellant also was charged in other counts with certain Mann Act violations, in connection with which the obstruction of justice allegedly occurred. A jury convicted appellant on Mann Act counts and on the obstruction of justice count but acquitted Korn-haber of obstruction of justice, the only charge against him. On appeal, this court affirmed Courtney’s conviction on the obstruction of justice count but set aside his Mann Act convictions. Courtney v. United States, 9 Cir., 1968, 390 F.2d 521, cert, denied 393 U.S. 857, 89 S.Ct. 98, 21 L.Ed.2d 126.

Courtney’s principal contention is that the introduction of Kornhaber’s incriminating extra-judicial statements as evidence at their joint trial violated the constitutional prohibition of Bruton v. United States, 1968, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. Although Bruton was decided after Courtney’s conviction, the rule of that case is fully retrospective in its applicability. Roberts v. Russell, 1968, 392 U.S. 293, 88 S. Ct. 1921, 20 L.Ed.2d 1100.

The prosecution’s case in chief against both Courtney and Kornhaber on the charge of obstruction of justice was established by the testimony of Loretta Hoskins, a young woman whom Courtney was alleged in other counts of the indictment to have transported in interstate commerce for the purpose of prostitution. Her testimony included a recital of efforts made by Courtney and Kornhaber to cause her to repudiate statements she had made to investigating officers about Courtney’s role in her prostitution and then to leave town so that she would not be available as a government witness against Courtney. She also testified that Courtney had threatened her and that Kornhaber had loaned her money to get out of town.

At their joint trial Courtney and Kornhaber were represented by the same retained attorney and each of them testified on his own behalf.

This was a second trial. At the first trial the defendants had been represented by separately retained attorneys. After the district court ordered a new trial, some disagreement arose between Kornhaber and his attorney. It was proposed to the court that Courtney’s lawyer be permitted to represent both defendants. Relying upon the acquiescence of both defendants and the assurance of counsel who had participated in the first trial that there would be no conflict of interest, the court approved the joint representation.

The prosecution introduced in evidence, as against Kornhaber alone, several pre-trial statements that he had made to investigating officers. The court charged the jury that these statements should not be considered as evidence against Courtney. But, invoking the rule of Bruton, Courtney now argues that Kornhaber’s statements were damaging to him and that, in the circumstances of the trial, he was denied the opportunity to confront and cross-examine Kornhaber that the doctrine of Bruton’s case guarantees him. More particularly, Courtney argues . that the representation of both defendants by the same trial attorney precluded cross-examination of Kornhaber in the interest of Courtney after counsel had questioned him as a defendant testifying in his own behalf. We agree that counsel was in no position to undertake, in his role as Courtney’s lawyer, any cross-examination or impeachment of his own witness and client Kornhaber.

For this reason, Nelson v. O’Neil, 1971, 402 U.S. 622, 91 S.Ct. 1723, 29 L. Ed.2d 222, does not help the government here. In Nelson, the Supreme Court held that where one defendant, whose extra-judicial incriminating statements were in evidence, had taken the stand in his own behalf, the fact that he could be cross-examined about those statements by a co-defendant’s attorney prevented the co-defendant, whom the statements implicated, from successfully invoking the Bruton rule. But, at Nelson’s trial, he and his co-defendant were represented by separate counsel, each of whom was free and obligated to act solely in the interest of his client. Here, in contrast, Courtney’s lawyer could not undertake to discredit anything harmful to Courtney that had been said by Kornha-ber, at or before trial, without violating his duty to serve his client Kornhaber whom he himself had called to the stand. Thus, technically, Courtney was deprived of a procedural opportunity that the Bruton rule normally safeguards as essential to fair trial.

It remains to consider whether Courtney was prejudiced by his inability to cross-examine Kornhaber in a situation where both defendants testified in what appears to have been a cooperative effort to cause the jury to discredit the prosecution’s case as made through the testimony of Loretta Hoskins. Before considering Kornhaber’s statements, we shall undertake to summarize Hoskins’ testimony and Courtney’s testimony, and then point out the extent of the conflict between them.

Hoskins had once been employed as a waitress by Kornhaber, a night club operator. Returning to the city after an absence during which she had lived with Courtney and worked for him as a prostitute, Hoskins, according' to her own testimony, sought Kornhaber out to inquire about a typewriter she had left at the club. She also pictured herself to Kornhaber as destitute and sought a loan and a job as a waitress. In one of their conversations, Kornhaber told her that Courtney was looking for her, was disturbed about her becoming a witness against him and was ready to offer her several things if she would not appear against him. She said that she feared Courtney and was reluctant to meet him but would do so if Kornhaber also would be present. Thereafter, Kornhaber, purporting to speak for Courtney, offered her $500, a round trip ticket to Hawaii, the return of her furniture which was in Courtney’s possession and the payment of any fine that might be imposed for her failure to appear as a witness.

Hoskins also testified that at a subsequent meeting with Courtney and Korn-haber she had told them that she had made statements about Courtney’s wrongdoing both to the F.B.I. and before a federal grand jury. Courtney upbraided her for thus trying to harm him, threatened to tell her family about her way of life, told her how trouble had been made for another girl who had made similar charges against him and insisted that she retract her charges against him.

Thereafter, she said, frightened and confused she yielded to Courtney’s insistence. More particularly, she copied from a text prepared by him and then signed a note in which she repudiated her charges against him and stated that she had made the charges falsely in a fit of anger.

Testifying in his own defense, Courtney admitted meetings with Hoskins and Kornhaber at which he had discussed with Hoskins the charges she had made against him. However, he denied knowledge that federal charges were involved. He said that he then believed that they were discussing an accusation made to state authorities charging him merely with acting as a pimp or panderer. He testified that he had chided Hoskins for making false charges and had asked her to repudiate them. He denied any coercion or threats. He admitted that Hos-kins had signed the requested repudiation.

Because of these testimonial admissions, the limited conflict that the jury had to resolve concerning the obstruction of justice was between Courtney’s testimony that Hoskins voluntarily repudiated her charges, which he thought were limited to state offenses, and Hos-kins’ testimony that Courtney, aware that she had truthfully charged him with a federal offense, coerced and corruptly induced her to repudiate her charge.

This brings us to consideration of the substance of Kornhaber’s statements, both before and during the trial, and their bearing upon the above defined critical conflict in testimony. Kornha-ber’s testimony for the defense at trial supported important parts of Courtney’s testimony and did not contradict any of its essentials. He unequivocally denied that Hoskins had been coerced by him or by Courtney in his presence. He said that he did not remember any mention that Hoskins’ charge involved a federal offense and that he had been unaware of that circumstance. He also did not remember any mention of another case in which a girl had made and repudiated a charge against Courtney. He was particularly helpful to Courtney in his testimony that the money he handed to Hos-kins in Courtney’s presence was merely his personal loan pursuant to a request she had made before Courtney entered the picture.

Kornhaber’s extra-judicial statements that the government introduced into evidence contradicted each other in one significant particular. In an early statement to an investigating officer, he had denied that any exculpatory note had been discussed with or written by Hos-kins. In a subsequent statement he admitted that Hoskins had written and signed such a note in his presence, but he denied that there had been any coercion. On this appeal it is strongly urged that Kornhaber’s explanation of this self contradiction contained matter hurtful to Courtney upon which Kornha-ber should have been cross-examined. An investigating officer testified that in changing his story Kornhaber had explained that he now realized that “he had been a dope to say what he had” and that “Mr. Courtney was making a dupe out of him and had put him in the middle of this case”. However, in his testimony at the trial Kornhaber undertook to explain differently and more explicitly the thinking that had led him to change his story. He testified as follows :

“When I originally spoke to the people at the FBI Headquarters I denied any knowledge of a note or of Mr. Courtney being there, or a note being signed, because I saw that they were going to see here a note was signed saying Mr. Courtney is innocent, or what-have-you, and then she leaves, and the same day I had lent this girl $400, and I could see where they were going to tie these things together. That’s why at my first interviews there I didn’t tell this to the FBI.”

While Kornhaber’s statement characterizing himself as a “dupe” for Courtney may well have confirmed in some small way the unfavorable impression of Courtney that Hoskins’ testimony, and indeed Courtney’s own testimony, must have created in the jurors’ minds, Korn-haber’s above quoted explanation at trial of his reasons for changing his original statement went about as far as he credibly could have gone in minimizing any damaging impact of his earlier “dupe” language upon Courtney’s defense. Courtney does not suggest and we do not see how cross-examination of Kornhaber by separate counsel for Courtney could have accomplished more than did the direct examination of this manifestly friendly witness by the lawyer who represented both defendants.

We are satisfied that, in the circumstances of this ease, any technical violation of the Bruton rule was harmless beyond reasonable doubt.

What already has been said also disposes of any question whether apart from the Bruton rule, Courtney’s constitutional right to effective assistance of counsel has been respected. The defendants chose to harmonize their defenses and particularly to take the stand and give consistent and mutually helpful accounts of the matters in controversy. To that end, joint representation may well have been helpful. Certainly, it was not obviously prejudicial to Courtney. Having thus chosen a promising cooperative line of defense under the direction of his own lawyer representing both defendants, Courtney cannot now successfully complain that the court violated his constitutional right by permitting the joint representation.

The appellant has briefed and argued other contentions unrelated to the Bru-ton doctrine or to the representation of both defendants by the same attorney. We find no merit in any of them.

The judgment is affirmed.

      . Courtney was released on parole in March 1971 after seving a little more than two years of a four year sentence. He instituted this proceeding while on parole. His parole has now expired. However, jurisdiction to grant relief under section 2255 survives. Carafas v. LaVallee, 1968, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554.


source: Caselaw Access Project

author: IRVING R. KAUFMAN, Chief Judge:

license: Public Domain

text:
    NYAD MOTOR FREIGHT, INC., Plaintiff-Appellant, v. W. T. GRANT COMPANY, Defendant-Appellee.
    No. 37, Docket 73-1454.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 18, 1973.
    Decided Oct. 31, 1973.

      William Biederman, New York City (Alvin Borden, New York City, of counsel), for plaintiff-appellant.
    Frank H. Gordon, New York City (James N. Blair and Rogers, Hoge & Hills, New York City, of counsel), for defendant-appellee.
    Before KAUFMAN, Chief Judge, and LUMBARD and TIMBERS, Circuit Judges.
   IRVING R. KAUFMAN, Chief Judge:

Nyad Motor Freight, Inc. served as a contract motor carrier for W. T. Grant Company from 1960 through 1967, under a permit issued by the Interstate Commerce Commission. In this action Nyad seeks recovery of $130,958.27 which it allegedly failed to charge Grant under its filed contracts and tariffs, and this failure, it claims, violated the Interstate Commerce Act. Nyad admits that the price reductions'were agreed to by the parties, and does not contend that they were objectively unfair. Strict liability is sought to be imposed under the Act solely on the principle that the integrity of the regulatory scheme must be maintained, regardless of the equities of the parties inter se.

Appellant commenced this action in the Supreme Court of New York, New York County. The complaint set forth two causes of action, each arising under § 218 of the Act, 49 U.S.C. § 318(a). Grant removed the case to the United States District Court for the Southern District of New York. Following a bench trial before Judge Bauman, judgment was entered denying recovery on both claims in accordance with an opinion and order dated November 17, 1972, D.C., 350 F.Supp. 692. We affirm as to the first cause of action but reverse as to the second.

Before turning to the particulars of the present app.eal it will be helpful to set forth the governing legal framework. The parties do not disagree on the applicable fundamental principles of law and there is virtually no factual dispute. The controversy is concerned solely with the application of the general rules to the specific circumstances at hand.

As a contract carrier Nyad could legally operate only within the authority granted by its permit. 49 U.S.C. § 309. Unlike a common carrier, however, Nyad was also limited by the scope of its contracts with Grant which, pursuant to ICC regulations, 49 CFR §§ 1053.1, 1053.2, 1053.6, must be in writing and filed with the Commission. In determining the authority of Nyad to perform particular services, therefore, we must look to both the ICC permit and the written contracts on file.

The core provision of the statutory scheme is § 318(a), which requires a contract motor carrier to file schedules setting forth the actual rates, or in some circumstances the minimum rates, it charges for services. It is illegal for the carrier to demand or collect less from the shipper than the filed rates.

It has been clear at least since Justice Hughes’s opinion in Louisville & Nashville R. R. v. Maxwell, 237 U.S. 94, 35 S. Ct. 494, 59 L.Ed. 853 (1915), that a common carrier may, despite its own complicity, recover any illegal differential between its filed rates and the actual charges made. The Court acknowledged the potential harshness of imposing this rule of strict liability, but believed it was necessary to preserve the integrity of the tariff system. The shipper, or, as in Maxwell, the passenger, is charged with constructive knowledge of the carrier’s schedule, and bears a duty equivalent to that of the carrier to abide by it.

This rule has recently been extended to contract motor carriers. Bowser & Campbell v. Knox Glass, Inc., 390 F.2d 193 (3d Cir.), cert, denied, 392 U.S. 907, 88 S.Ct. 2061, 20 L.Ed.2d 1365 (1968). In Bowser, unlike the instant case, it was clear that the services were authorized under both the permit and contract. Without the knowledge of either party, a trade association authorized by the carrier to revise its rates filed a new tariff, increasing the charge for the services in question. The parties continued their transactions for a time under the obsolete schedule until the trucker, having learned of the new rates, brought suit to recover the amounts it had inadvertently failed to collect. The Court of Appeals reversed a judgment of the district court denying the recovery. Although Judge Freedman’s reasoned opinion recognized that the regulation of contract carriers serves a somewhat different purpose from that governing common carriers, it determined that there existed an equal need to encourage strict adherence to rates filed for public consumption and accordingly upheld the right of action asserted.

The ICC, which is charged with enforcing compliance with the tariffs, 49 U.S.C. §§ 304, 312, 322, and which has power to disapprove or suspend proposed rates, 49 U.S.C. § 318(b), (c), must depend upon the filed contracts and schedules if it is to make a knowledgeable determination that the services being rendered and the charges being made are appropriate. Competitors of both the shipper and the carrier also have a right to rely on the filed documents for information throwing light on industry practices and charges. The right of recovery is based, therefore, on the need to ensure compliance with the regulatory scheme. Any price decrease must be submitted to the ICC for approval and public inspection and the shipper must accept the consequences if it is not.

This court dealt with a similar question in Mars Express, Inc. v. David Mas-nik, Inc., 401 F.2d 891 (2d Cir. 1968), a case concerned with a common motor carrier. We approved the principles set forth in Bowser, but held them inapplicable to the particular circumstances before us. Although the trucker had performed the carriage at a rate below its tariff, the particular services were not authorized by its ICC certificate of public convenience, which limited the territorial scope of the carrier’s operations. The reduced rate service had involved routes clearly not granted by the certificate. Since the carriage was itself extra-territorial and thereby illegal, the tariff could not be said to provide an applicable rate. Allowing recovery of the undercharge, we reasoned, would reward violation of the statute and regulations and not encourage compliance.

Our task is made easier by the fact that both parties on this appeal accept the principles which emerge from Bow-ser and Mars. But Nyad asserts that the services involved in the two causes of action were authorized and that it charged less for them than was provided under applicable schedules. It therefore claims the district court erred in distinguishing Bowser and denying recovery. Grant, on the other hand, argues that the services were not authorized by either the permit or the contracts, and that an applicable tariff did not exist. It therefore relies on Mars in urging affirmance of the judgment in its favor. We turn now to the particular facts of this litigation.

I.

The permit issued to Nyad by the ICC on December 29, 1960, limited its authority to carry goods in interstate commerce to the following:

Such commodities, merchandise, supplies and equipment as are handled, used, sold or dealt in by chain or department stores,
Between New York, N. Y., and Me-tuehen, N. J. on the one hand, and, on the other, points in New York, New Jersey, Connecticut, Rhode Island, Massachusetts and Pennsylvania.
Restriction: The operations authorized herein are limited to a transportation service to be performed under a continuing contract, or contracts, with W. T. Grant Company.

Nyad’s first claim concerns services performed between April 1966 and December 1967. Two filed contracts are relevant, one dated January 21, 1964, and another, superseding the 1964 agreement, dated June 16, 1966. Similarly, the services were governed by two successive tariffs, effective March 30, 1964 (“Schedule No. 4”) and August 6, 1966 (“Schedule No. 5”), respectively. The first cause of action alleged that pursuant to an oral agreement, Nyad charged Grant $123,720.57 less for certain services than these schedules required.

The past transactions of the parties furnish a necessary backdrop to this dispute. Prior to 1966, Grant maintained so-called consolidation centers at Pier 22 in Manhattan and at Metuehen, New Jersey. Nyad’s service consisted of picking up merchandise at one of these two depots and delivering it to several Grant stores located in the states listed in the permit. On the return trip the truck, on occasions, delivered goods from one or more of the stores to the consolidation center. In April 1966 Grant moved its main center from Pier 22 to Raritan, New Jersey, several miles from Metuehen. To maintain appropriate coverage of New York City suppliers the company opened a much smaller depot in the Bronx. In other respects, however, the basic service of transporting goods between the new Raritan center and the stores remained the same. The 1966 contract and schedule contained, inter alia, revisions to reflect the relocation of the centers.

Apart from these minor, and for our purposes irrelevant, changes in the basic service, the establishment of depots in the Bronx and Raritan bred a wholly new subsidiary activity that was never explicitly embodied in any written contract and for which a specific rate was never filed. The Bronx location, unlike that of Pier 22 and Metuchen, was not intended to serve as a true consolidation center at which merchandise delivered by wholesalers could be packed into individual containers for shipment to specific stores. Instead, it acted as a mere collection point for goods Grant purchased and shipped in bulk to Rari-tan for consolidation and further shipment from there. To accomplish this purpose, it was necessary to initiate a wholly new transportation service, known to the parties as “Bronx-Raritan switching.” By oral agreement Nyad undertook to pick up bulk-loaded trailers in the Bronx for delivery to Raritan, and to return with empty trailers from Rari-tan for reloading in the Bronx. Nyad’s first claim relates solely to this new shuttle activity.

The two written contracts, one of which was executed after the switching operation began, make no reference to it. The price provisions of these contracts and of the related schedules were based on(_a system of geographical zones. With minor exceptions not pertinent here, the entire state of New Jersey was placed in Zone 1. Both the contracts and tariffs provided a price for each “Zone 1 round trip,” defined as a round trip between “New York, New York and Metuchen, New Jersey, on the one hand” and points in Zone 1 on the other.

In their oral agreement the parties permitted the price for the new service to be determined by reference to the existing tariff, and did not file a specific contract and schedule governing it. Under the basic service to which we have referred, Nyad’s trucks made stops at as many as nine Grant stores in the course of a single Zone 1 round trip. At each store the driver was required to assist in the loading and unloading. A normal Zone 1 round trip consumed about ten hours. By contrast, a switching round trip did not involve any stops, and took only five hours. For these reasons the parties decided between themselves that the price for two Bronx-Raritan round trips would be the same as that provided in the schedule for one Zone 1 round trip.

Nyad, recognizing the barrier to its claim if it seeks recovery on a non-filed contract or schedule, argues that since the Bronx is within “New York, New York” and Raritan is within Zone 1, the service between the two depots must be viewed as a “Zone 1 round trip,” as defined in the filed documents to which we have made reference. We are urged to conclude from all this that Grant illegally paid for only half the number of round trips that Nyad performed. Nyad asserts that between April 1966 and December 1967 it performed the shuttle service 2,204 times but received compensation for only half as many “Zone 1 round trips.” The amount sought to be recovered under the first cause of action was accordingly computed by multiplying 1,102 by the Zone 1 round trip rate.

In denying recovery the district court concluded that the service was beyond the territorial scope of the permit; that it was not authorized by the contracts; and that, in any event, there was no applicable rate that could have been violated. On appeal Nyad concentrates its attack upon the first of these determinations. Appellant argues that the Bronx-Raritan route was within the literal terms of the permit, and therefore must be deemed to have been authorized by it. See T. I. McCormack Trucking Co. v. United States, 251 F.Supp. 526 (D.N.J. 1966). We need not decide this question, however, since we agree with Judge Bau-man’s reasoned conclusions concerning the contracts and schedules, which provide ample support for the judgment rendered.

Nyad asks us to impose a tortured construction upon the documents before us. By focusing solely upon the zone method of price determination contained in the contracts and schedules, appellant does no more than mechanically demonstrate that “Bronx-Raritan switching” may come within the literal definition of a Zone 1 round trip. Nyad would have us totally ignore, however, the other contractual provisions that set forth the nature of the services to which the pricing management applied. Both the 1964 and 1966 contracts described the transportation to be rendered as pickup service at the consolidation centers and delivery to Grant stores in the three zones. Nothing in the filed contracts either expressly or impliedly contemplated transportation service solely between the depots. Similarly, as we have indicated, both contracts stated that Nyad would make as many as nine stops during each Zone 1 round trip. This obviously referred to stops at Grant stores in the zone, and was in conformity with the actual practice of the parties under the basic service. But the switching service did not include any stops at stores. We agree with the district court that the Bronx-Raritan arrangement was not contemplated by the contracts.

We reach a similar conclusion with respect to the rate schedules. The schedules merely set forth the same zone pricing provisions contained in the contracts. Here too, Nyad contends that literally read, the tariffs encompass the shuttle activity. The schedules, however, did not contain any description of the services to be performed. They cannot be viewed in a vacuum and are meaningless without reference to the underlying contracts. Since we have already indicated that the filed contracts did not encompass the services in question, it follows that the zone prices had no application to the switching services.

The rationale for recognizing the contract carrier’s right to recover illegal undercharges is to ensure that accurate and reliable documents are filed. It is the primary duty of the carrier to submit contracts and schedules that adequately describe the services it performs and the rates it charges. We have noted also that the Commission and other carriers and shippers must be able to determine the nature of the operations from the public record. It is insufficient, therefore, for Nyad .to say that the switching service was not explicitly prohibited by the contract. The real issue is whether interested individuals who inspected Nyad’s ICC file could have determined that Nyad was performing the switching service, and, if so, could have concluded that the ICC had approved the Zone 1 rate to govern that operation. We agree with the district court that viewed in this light neither the contracts nor the schedules encompassed Bronx-Raritan switching, and accordingly we affirm the judgment on the first cause of action.

The second claim concerns services performed between March and August 1967, and therefore comes within the ambit of a third filed contract dated January 2, 1967. Schedule No. 5 remained in effect throughout the period. This cause of action relates only to the basic service performed by Nyad, that of carriage of goods between the consolidation centers and Grant stores within the three zones. Nyad asserts that by letter agreement the parties illegally reduced the amounts payable under the tariff to the extent of $7,238.00.

Under the contract Nyad. undertook to keep available 48 tractor-trailer combinations per day, five days per week — 240 in all — for use in Grant’s operations. Grant, for its part, agreed to pay a fixed charge for the equipment regardless of whether it was actually used. For example, if only 200 trips were made in a given week, Grant would pay Nyad for these trips on the basis of the zone price system, and, in addition, would pay a flat rate for the 40 units not used. The rationale behind this arrangement was that Nyad incurred fixed costs for the equipment whether it was actually used or not. Schedule No. 5 expressly stated that Grant was required to pay for trucks .consigned to its use under the contract, whether or not it needed them.

Grant apparently decided it was paying an exorbitant amount for trucks it did not use whether because of holidays, slow periods in its business or poor weather conditions. It therefore induced Nyad to modify the agreement, as set forth in a letter dated March 30, 1967. The parties there agreed that in the future, Grant would not be charged for the equipment portion of any trips in excess of 240 but not exceeding 260. As a result, the price Grant would have paid under the zone system for as many as 20 trips per week was reduced by the fixed charge established for trucks not used. Nyad alleged that by virtue of this un-filed revision of the contractual arrangement Grant was charged $7,238.00 less than it would otherwise have been required to pay.

Judge Bauman properly perceived the reason behind the modification of the contract which was that over a period of time the new arrangement would result in Grant paying only for equipment it actually utilized. The effect would be that Grant would not be charged in busy weeks for trucks it had paid for but had not used because of holidays, slow periods or bad weather. Finding that Nyad had not established that the approximation was inaccurate or that Grant had in fact received anything free of charge, the district court concluded that there had not been an illegal rebate.

We are unable to agree with this analysis. As we have indicated, the issue is not one of fairness but simply — as with the first claim — whether there has been a private deviation from the public tariffs. Nyad was not required to prove that Grant received something for nothing, but merely that the service was authorized, that it was governed by an applicable rate and contract on file, and that Grant was charged less than the rate required.. Accordingly, we reverse the judgment on the second cause of action.

Because of the manner in which he disposed of this claim, Judge Bauman did not make explicit findings concerning the crucial factual issues noted above. Although Grant does not appear to dispute that each of these questions must be resolved in Nyad’s favor, we remand to the district court for specific findings. If, as appears likely, the district court concludes that an illegal undercharge occurred, it will, of course, be necessary for it to compute the sum that Nyad may recover.

      . A contract carrier serving a single shipper may, after one year of operation, file minimum rather than actual rates. This privilege is intended to permit the parties to raise, but not lower, their agreed rates without filing each revision. In the present case Nyad took advantage of the statutory option by filing minimum rate schedules. From time to time it raised its prices under the contracts without filing new schedules. As we indicate infra, note 2, this has given rise to a subsidiary dispute between the parties over the amount Nyad would be permitted to recover if the judgment for Grant on the first cause of action were reversed.

      . Schedule No. 4 lists the Zone 1 round trip rate as $97. Prior to April 1966, however, the parties had privately raised this figure to $102, which is also the amount listed in superseding Schedule No. 5. Nyad contends that computation of the alleged undercharge for services during the period governed by Schedule No. 4 should be based upon the actual rate of $102. Grant, while denying liability, asserts that any recovery for services during this period should reflect only the filed rate of $97. Since we affirm the judgment denying any right of Nyad to further compensation, we need not decide this subsidiary dispute.

      . Appellant’s preoccupation with the territorial scope of its permit may be explained, perhaps, by its desire to distinguish Mars Express, Inc. v. David Masnick, Inc., supra. As we have indicated, that decision denied liability because the services occurred over routes not granted to the carrier by its certificate of public convenience. Mars, however, involved a common carrier. By definition, therefore, we were not required to determine the carrier’s authority under any contracts. Nyad, on the other hand, is a contract carrier. To distinguish Mars, it must demonstrate that the services in question were within the scope oi both its permit and the filed contracts,


author: BUTZNER, Circuit Judge:

text:
    Conrad WHITFIELD, Appellee, v. WARDEN OF the MARYLAND HOUSE OF CORRECTION, Appellant.
    No. 73-1498.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 1, 1973.
    Decided Nov. 8, 1973.

      Josef E. Rosenblatt, Asst. Atty. Gen., of Md. (Francis B. Burch, Atty. Gen., of Md. and Edward F. Borgerding and John P. Stafford, Jr., Asst. Attys. Gen., on brief) for appellant.
    Morton Guth, Baltimore, Md., for ap-pellee.
    Before BUTZNER, RUSSELL and FIELD, Circuit Judges.
   BUTZNER, Circuit Judge:

The State of Maryland appeals from a judgment of the district court sustaining Conrad Whitfield’s claim of double jeopardy and consequently barring his retrial for murder and conspiracy to commit murder. Influenced in part by recent decisions not available to the district judge, we reverse.

The factual background is not complex. The Circuit Court of Carroll County, Maryland, impaneled a jury to try Whitfield and Paul C. Baker jointly. At the close of the prosecution’s case, the jury recessed for lunch, and the court heard motions for judgments of acquittal. During the argument on the motions, one of the jurors entered the courtroom from an adjacent jury room. The trial judge noted this apparently inadvertent intrusion and consulted with counsel for both defendants to determine if the trial should continue. Prom his position in the courtroom, the judge was unable to see the door to the jury room from which the juror had come, but counsel, who were facing the judge, could see it. The judge knew, however, that if the door had been ajar the juror could have heard the argument for acquittal made by Whitfield’s counsel and the judge’s response to certain parts of the argument. Whitfield’s counsel told the court that from his vantage point he thought the door was closed, and he believed that the juror could have heard nothing. Baker’s counsel insisted that the door was open and objected to continuing with the trial. The court then suggested that when the juror returned from his luncheon recess, he should be asked whether he had heard anything. This was agreeable to Whitfield’s counsel, but not to Baker’s. The court then declared a mistrial.

Subsequently, Whitfield’s counsel moved for the dismissal of both charges on the ground that another trial would subject him to double jeopardy. The trial judge denied the motion, and the Court of Special Appeals affirmed, with one judge dissenting. The Maryland Court of Appeals declined to review the case. Having exhausted his state remedies, Whitfield applied to the district court for a writ of habeas corpus, and the district judge granted relief.

The starting point for interpreting the double jeopardy clause of the fifth amendment as it applies to the declaration of a mistrial over a defendant’s objection is United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). Holding that a hung jury did not bar a retrial, Mr. Justice Story set forth broad principles, which have been followed ever since in determining whether reprosecution constitutes double jeopardy:

“We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice whould otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution,- under urgent circumstances, and for very plain and obvious causes; and, in capital eases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office.” 22 U.S. (9 Wheat.) at 580.

In applying the Perez standards to the facts of this case, we must determine whether in the light of all the circumstances the trial court exercised sound discretion in concluding that a mistrial was warranted by manifest necessity or by the ends of public justice. Obviously, there was no manifest necessity in the sense that it was clearly evident that mistrial was unavoidable, as it is, for example, when the jury is unable to agree or a juror becomes incapacitated. See e. g., United States v. Perez, supra; United States v. Potash, 118 F. 2d 54 (2d Cir.), cert, denied, 313 U.S. 584, 61 S.Ct. 1103, 85 L.Ed. 1540 (1941). But the Court has never held that the Perez doctrine of manifest necessity implies an absolute need. Instead, it has- read the requirement of manifest necessity in the light of the Perez concept of public justice. See Illinois v. Somerville, 410 U.S. 458, 461, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). Perez’s public justice policy embraces two components, “a defendant’s valued right to have his trial completed by a particular tribunal,” and “the public’s interest in fair trials designed to end in just judgments.” Ideally, these elements coexist, but in some instances the first must be subordinated to the second. Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949). Expounding this theme, dictum in the Court’s most recent interpretation of the double jeopardy clause notes that the public justice policy of Perez is served by a mistrial when the jury cannot return an impartial verdict. Illinois v. Somerville, 410 U.S. at 464, 93 S.Ct. 1066.

Whitfield relies primarily on United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), in which the Court held that reprosecution was barred after the trial judge discharged the jury to afford government witnesses an opportunity to consult counsel so they would not incriminate themselves. Pointing out that the judge presiding over Jorn’s trial had given no consideration to an alternative course of action such as a continuance, the Court observed that “it seems abundantly apparent that the trial judge made no effort to exercise a sound discretion to assure that, taking all the circumstances into account, there was a manifest necessity for the sua sponte declaration of this mistrial.” 400 U.S. at 487, 91 S.Ct. at 558.

While Jorn is instructive, we think that it is not controlling. Time and again, the Court has refused to formulate rigid rules governing the application of the double jeopardy clause, and it has pointed out that the cases generally turn on their particular facts. See United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Downum v. United States, 372 U.S. 734, 737, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); Wade v. Hunter, 336 U.S. 684, 691, 69 S.Ct. 834, 93 L.Ed. 974 (1949). These cases illustrate that the Court’s discussion of the Perez standard cannot be wrested from its factual context. Thus, the Court’s ruling with respect to alternatives to mistrial when a judge perceives that witnesses have not been adequately cautioned cannot be applied literally to the problem confronting a trial judge who fears that a juror has been exposed to improper influences.

The cases in which mistrials have been declared because of suspected juror bias support the conclusion that Whitfield’s reliance on Jorn is misplaced. See e. g., Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891); Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (1894); United States v. Chase, 372 F. 2d 453 (4th Cir.), cert, denied, 387 U.S. 907, 87 S.Ct. 1688, 18 L.Ed.2d 626 (1967); United States v. Smith, 390 F. 2d 420 (4th Cir. 1968). In each of these cases, after the jury had been impaneled and sworn, the trial judge received information which rendered suspect the ability of one or more of the jurors to reach an impartial verdict. The exercise of the trial judge’s discretion in declaring a mistrial was upheld, and reprose-cution was permitted over objections based on the double jeopardy clause. Significantly, in each case, after the trial judge had ascertained that a juror had received an improper communication, the reviewing court did not require the judge to determine whether the communication had in fact prejudiced the juror. Discovery of the harmful communication in itself afforded grounds for mistrial. And in the recent case of Smith v. Mississippi, 478 F.2d 88 (5th Cir. 1973), a mistrial was held not to bar reprosecution, even though the juror insisted that an improper conversation with a bailiff would not influence his judgment. It is with these precedential applications of the Perez standard in mind that we examine the ruling of the state trial judge.

The district judge, in agreement with the dissenting judge on the Maryland Court of Special Appeals, held that Whitfield’s reprosecution was barred by the double jeopardy clause because the state trial judge acted precipitously instead of scrupulously examining the necessity for mistrial. Quoting from the dissent, he emphasized that the trial judge should have interrogated the juror to find out what the juror had heard and whether he had become prejudiced against either defendant. Furthermore, he concluded that the trial judge should have given greater consideration to impaneling an alternate juror or to severing the defendants and proceeding with the trial of Whitfield.

When the trial judge denied Whitfield’s plea of double jeopardy, he filed a written opinion setting forth his reasons for declaring a mistrial. This opinion and the transcript of the trial proceedings furnish the material for evaluating his discretion. At the outset, we put aside the trial judge’s statement that his sole intent was to protect the interests of the defendants. Although a trial judge’s beneficent motive was considered significant in Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L. Ed.2d 901 (1961), it now can be accorded little or no weight. United States v. Jorn, 400 U.S. 470, 483, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). On the other hand, reprosecution is barred if the purpose of the trial judge’s declaration of a mistrial is to harass the defendant or assist the government. See Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). Here there is no suggestion that either of these factors played any part in the judge’s decision to grant a mistrial.

The trial judge did not act sua sponte. Before declaring a mistrial, he sought the views of counsel for both defendants. Confronted by Baker’s objection to proceeding with the trial, which was tantamount to a motion for mistrial, he suggested interrogating the juror. Only when this proposal proved objectionable to Baker, did he declare a mistrial.

While interrogation of the juror would not have been amiss, the trial judge was not bound to follow this course of action. He already knew that the juror had come into the courtroom during the argument on a motion for a judgment of acquittal. More importantly, Baker’s lawyer, whose credibility the trial judge declined to reject, stated that the door to the jury room was open. Against this assertion, Whitfield’s lawyer could only say that from his vantage point he thought the door was closed. The trial judge knew that with the door ajar the juror was exposed to argument and colloquy between the court and counsel that should play no part in the jury’s consideration of its verdict. Given these circumstances, we believe that there was a reasonable basis for the trial judge’s conclusion that the juror had been subjected to an improper influence. As the cases dealing with the problem of juror disqualification indicate, a trial judge need not explore whether the extraneous communication has in fact prejudiced the juror. When a judge concludes that on the basis of facts and reasonable inferences to be drawn from the facts that a juror has been exposed to information that might taint his verdict, he may withdraw the juror in the exercise of his sound discretion without unconstitutionally subjecting the defendant to double jeopardy. Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891).

Generally, declaration of a mistrial would be improvident if substitution of an alternate juror would permit the trial to proceed to a just verdict. But no inflexible rule prohibits mistrial regardless of the circumstances attending the substitution of the alternate. In his written opinion, the trial judge explained that he did not substitute an alternate juror because the defendants were both black and the disqualified juror was the only black person on the panel. The judge was also concerned about the effect the disqualification of the single black juror would have on the rest of the panel. While it is probable that an all white jury could have rendered a fair verdict with respect to these black defendants, the trial judge acted discreetly in shielding the countenance of justice. Substitution of a white juror for the only black juror over the objection of a black defendant could have needlessly injected a racial issue into the ease that in the eyes of many persons would impugn the integrity of the court over which the judge presided. In this delicate situation, reviewing courts should be particularly careful to avoid substituting their discretion for that of the trial judge, for it is he who is best situated to decide the compelling need for mistrial. Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961).

The claim that the trial judge should have granted a severance for Baker and proceeded with Whitfield as an alternative to mistrial is rejected for reasons stated in United States v. Chase, 372 F. 2d 453, 463 (4th Cir. 1967), cert, denied, 387 U.S. 907, 87 S.Ct. 1688, 18 L. Ed.2d 626 (1967), and its companion case, United States v. Smith, 390 F.2d 420, 422 (4th Cir. 1968). There, in a conspiracy trial, when the judge learned that the jurors had read a news article that was critical of one defendant, he granted a mistrial not only to the defendants who had elected jury trial, but also to those who waived a jury and were simultaneously being tried by the court. Pointing to the problems and prejudices that may arise from the severance of a conspiracy case, we upheld the discretion of the trial judge in granting a mistrial to the non-consenting defendants. Similarly in the case now before us, the trial judge’s written opinion discloses that he was aware that difficulties and prejudice might arise from a severance.

We conclude, therefore, that the trial judge’s declaration of a mistrial satisfies the Perez test, and accordingly we reverse the judgment of the district court and remand the case for entry of a judgment denying the writ.

      . These decisions are Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), and Smith v. Mississippi, 478 F.2d 88 (5th Cir. 1973).
      Understandably, the district court thought that earlier proceedings in Somerville’s case supported Whitfield’s position. See United States ex rel. Somerville v. State of Illinois, 429 F.2d 1335 (7th Cir. 1970) (denying a plea of double jeopardy), vacated and remanded, 401 U.S. 1007, 91 S.Ct. 1250, 28 L.Ed.2d 543 (1971) ; United States ex rel. Somerville v. State of Illinois, 447 F.2d 733 (7th Cir. 1971) (sustaining the plea of double jeopardy). The opinion sustaining the plea was reversed by Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), after the district court filed its opinion in Whitfield’s case.

      . The pertinent part of the trial transcript is quoted in Whitfield v. Warden, 355 F.Supp. 972, 973 (D.Md.1973). An excerpt is also included in Baker v. State, 15 Md.App. 73, 289 A.2d 348, 358 (1972).

      . Baker v. State, 15 Md.App. 73, 289 A.2d 348 (1972).

      . Whitfield v. Warden, 355 F.Supp. 972 (D. Md.1973).

      . The double jeopardy clause of the fifth amendment provides “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” The fourteenth amendment makes this clause applicable to the states. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

      . The trial judge, however, must exercise sound discretion to avoid discharging the jury prematurely. United States v. Lansdown, 460 F.2d 164 (4th Cir. 1972). And now when a juror becomes incapacitated, a discreet judge should ascertain whether the trial can proceed by consent under F.R.Cr.Proc. 23(b).

      . Whitfield also relies on United States v. Walden, 448 F.2d 925 (4th Cir. 1971). This opinion, however, was superseded on rehearing en banc where the decision of the district court with respect to the question of double jeopardy was affirmed by an equally divided court. United States v. Walden, 458 F.2d 36 (4th Cir. 1972).

      . Perhaps the clearest exposition of this rule is Mr. Justice Black’s dictum in Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.E'd. 974 (1949) :
      “[T]here have been instances where a trial judge has discovered facts during a trial which indicated that one or more members of a jury might he biased against the Government or the defendant. It is settled that the duty of the judge in this event is to discharge the jury and direct a retrial. What has been said is enough to show that a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.” [Emphasis added] (footnote omitted)

      . The trial judge’s opinion is not reported, but excerpts are quoted in Baker v. State, 15 Md.App. 73, 289 A.2d 348, 359-360 nn. 22, 23 and 24 (1972).

      . See note 2, supra.


author: PER CURIAM:

text:
    In the Matter of the CENTRAL RAILROAD COMPANY OF NEW JERSEY, Debtor. Appeal of COMMONWEALTH OF PENNSYLVANIA and Pennsylvania Public Utility Commission.
    No. 73-1110.
    United States Court of Appeals, .Third Circuit.
    Argued July 20, 1973.
    Reargued Sept. 12, 1973.
    Decided Sept. 20, 1973.
    As Amended Nov. 2, 1973.
    Israel Packel, Atty. Gen., Harrisburg, Pa., Dante Mattioni, Deputy Atty. Gen., Philadelphia, Pa., Gordon P. Mac-Dougall, Sp. Asst. Atty. Gen., Washington, D. C., Philip P. Kalodner, Counsel, Edward Munce, Alfred N. Lowenstein, Asst. Counsels, Pennsylvania Public Utility Commission, Harrisburg, Pa., for appellants.
    Harlington Wood, Jr., Asst. Atty. Gen., Washington, D. C., Herbert J. Stern, U. S. Atty., Newark, N. J., Morton Hollander, Irwin Goldbloom and James F. Dausch, Attys., Dept, of Justice, Washington, D. C., for United States, appellee.
    Stanley Weiss, Carpenter, Bennett & Morrissey, Newark, N. J., for trustee.
    Roger C. Ward, Pitney, Hardin & Kipp, Newark, N. J., for Manufacturers Hanover Trust Co.
    Charles Danzig, Riker, Danzig, Scherer & Brown, Newark, N. J., for Lehigh Coal & Navigation Co.
    John P. Sheridan, Jr., Trenton, N. J., for State of N. J.
    Argued July 20, 1973.
    Before'VAN DUSEN and WEIS, Circuit Judges.
    Reargued Sept. 12, 1973.
    Before VAN DUSEN, ROSENN and WEIS, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

This appeal challenges the right of a Section 77 reorganization court to deny the Commonwealth of Pennsylvania and its Public Utility Commission leave to file an action in the United States District Court for the Middle District of Pennsylvania to review orders of the Interstate Commerce Commission, concerning tariff routings and authorizing the abandonment by the reorganization trustee of certain lines in Pennsylvania and western New Jersey.

After the debtor had lost more than 100 million dollars from 1958-1971, the trustee presented in 1971 a “blueprint for survival” to deal with a severe liquidity crisis which threatened termination of all its operations. An important part of this “blueprint” involved abandonment of the debtor’s unprofitable operations in Pennsylvania and reduction of the debtor’s operations to six heavily populated and industrialized north-central New Jersey counties. On May 7, 1971, and thereafter the trustee, pursuant to section 77(o) of the Bankruptcy Act (11 U.S.C. § 205(o)), sought the approval of the reorganization court for abandonment of various portions of lines operated by the debtor, including those in Pennsylvania, and these applications eventually resulted in Orders Nos. 410, 451, and 514 approving abandonments. As a result of the May 7, 1971, and subsequent applications, the reorganization court authorized the trustee to file requests for authorizations with the Commission for such abandonments, which requests were granted on August 20, 1971, and May 26, 1972. On December 20, 1971, the reorganization court issued Order 445, directing the trustee to suspend all CNJ operations in Pennsylvania by April 1, 1972, pending the Commission’s final decision on the abandonment application, and enjoining all parties from instituting or maintaining in any other court any action affecting CNJ operations in Pennsylvania, or the abandonment thereof, without the permission of the reorganization court. This court affirmed Order 445, In the Matter of Central Railroad Company of New Jersey, Debtor, 455 F.2d 989 (3d Cir. 1972). On May 26, 1972, the ICC granted the debtor permission to abandon all its lines in Pennsylvania, subject to.certain conditions. Central Railroad Company of New Jersey-Abandonment, 342 I.C.C. 277 (1972). After hearing, the reorganization court, by order No. 514 dated July 5, 1972, authorized (a) compliance by the trustee with such conditions, and (b) the abandonments of the Pennsylvania lines. No appeal was taken from such order. However, by motion returnable December 11, 1972, appellants sought leave to file the action described in the first sentence of this opinion.

We have concluded that the above-quoted language of order No. 550 (note 1) should be affirmed. On the facts presented by this record, including the failure of appellant to appeal from order No. 514 and the affirmance of order No. 445 by this court (455 F.2d 989, supra) resulting in the abandonment of the Pennsylvania lines, the reorganization court had the authority to protect its jurisdiction by precluding review of the abandonment of the Pennsylvania lines in any other district court. See 28 U.S.C. §§ 1336(b) and 1398(b); New Haven Inclusion Cases, 399 U.S. 392, 420-422, 90 S.Ct. 2054, 26 L.Ed.2d 691 (1970); In re Penn Central Transportation Company, 446 F.2d 1109, 1111-1112 (3d Cir. 1971); Bondholders Protective Committee, supra, 432 F.2d at 270-271; In re Huntingdon & Broad Top Mt. R. R. & Coal Co., 213 F.2d 411, 416-417 (3d Cir. 1954), where Judge Biggs made the pertinent observation at 417, “It is time that this chapter in the history of [the railroad] was brought to a close.”

That part of order No. 550 quoted in note 1 of this opinion will be affirmed.

      . Order No. 550 dated December 20, 1972 (D.N.J. Bankruptcy No. 401-67), contained this language, inter alia;

      “It is, . Ordered that the petition for leave to file an action against the United States of America in the United States District Court for the Middle District of Pennsylvania to judicially review certain orders of the Interstate Commerce Commission in Finance Docket No. 26659 and in Investigation and Suspension Docket No. 8667 is denied

      . These operations were to be conducted by the Lehigh Valley Railroad, which operated parallel lines in Pennsylvania at that time.

      . The Commission used this language in its “Conclusions” at 288 and 290-291:
      “The overriding factor with which we are faced, is that since 1967, CNJ has been debtor in reorganization under the Bankruptcy Act before the United States District Court for the District of New Jersey. Its position has continuously deteriorated, as have other railroads serving the New York metropolitan area. CNJ now may be considered in extremis. During and since 1970, its losses have amounted to more than $1 million per month. Under the circumstances, some form of drastic remedial action became imperative. The subject application to abandon, and its various parts, represents CNJ’s election, approved by the Reorganization, to seek to terminate all .operations in Pennsylvania, and to reduce and restructure its lines and operations in New Jersey. The application is properly filed under section 1(18)-(20).
      “[T]he record as it stands does support our concluding that the fully distributed net income deficits in Pennsylvania have been sizeable each year, even prior to payment of the annual lease rental to LC&N for operation over the lines of L&S . . . Also, the record establishes, and we find, that the State of New Jersey for some years has provided various forms of railroad passenger and freight service subsidies and other financial aid to CNJ. Obviously, it sought to assure the capability of CNJ to continue in business as a railroad in New Jersey. On the other hand, the Commonwealth of Pennsylvania has not referred to any present or prospective program of assistance to railroads in which CNJ has been or would be able to participate as a recipient.”
      Its “ultimate findings” at page 304 included this paragraph:
      “Subject to the imposition of traffic protective conditions and employee protective conditions set forth in detail in the ‘Conclusions’ sections of this report, we find in Finance Docket No. 26659 and Finance Docket No. 26659 (Sub-Nos. 1, 2, 3, 5, 9, 10, 11, 12, 14, 15, 21, and 28), that the present and future public convenience and necessity permit abandonment and abandonment of operation by Central Railroad Company of New Jersey and by certain subsidiary companies, all designated hereinbefore and individually identified in title pages of the certificate and order herein, and in greater detail in appendix A, attached to the report.”

      . It is noted that on timely application to the reorganization court at this hearing, it could have convened a three-judge court under 28 U.S.C. §§ 2321-25. Cf. Bondholders Protective Committee v. ICC, 432 F.2d 268, 270-271 (3d Cir. 1970).

      . Because of the basis for the affirmance of the relevant part of Order No. 550 stated below, it is not necessary to determine whether the failure to appeal from such order and the decisions of this court on March 10, 1972 (see Matter of the Central Railroad Company of New Jersey, Debtor, supra, and related cases reported at 455 F.2d 988, 989 and 990) require affirmance of such part of Order No. 550 under the principle of law of the case and res judicata. See Antonioli v. Lehigh Coal and Navigation Co.,. 451 F.2d 1171 (3d Cir. 1971) ; 1B Moore’s Federal Practice, § 0.404(1), pp. 402-03 (2d ed.).

      . Although the parties have not furnished a copy of order No. 410 to this court in the appendices in this appeal, paragraphs 9 and 10 of the Petition of LC&N (Docket 2018 in district court) recite at 24a-1 and 25a of the trustee’s appendix, inter alia:
      “9. On May 25, 1971, by order No. 410, this Court authorized the Trustee to file applications with the Interstate Commerce Commission for permission to abandon certain lines then operated by said Trustee, which lines included the L&S system located in Pennsylvania. By said order No. 410, this Court reserved jurisdiction of the subject matter and directed said Trustee to apply further to this Court for authority to abandon any lines or operations that may be authorized to be abandoned by the Interstate Commerce Commission.
      “10. On May 26, 1971, the Trustee filed with the Interstate Commerce Commission, pursuant to order No. 410, a petition for abandonment of the aforesaid lines }f

      The wording and legislative history of 28 U.S.C. §§ 1336(b) and 1398(b), as well as of § 77(o) of the Bankruptcy Act (11 U.S.C. § 205(o)), show that Congress intended appeals of abandonment orders in railroad reorganization cases to be reviewed in the context of the reorganization proeceeding and not in a court of coordinate jurisdiction. See Leonard Bros. Trucking Co. v. United States, 301 F. Supp. 893, 898 (S.D.Fla.1969) ; House Report 1015, 88th Cong., 2d Sess., to accompany H.R. 7508; see also ICC v. Atlantic Coast Line R. Co., 383 U.S. 576, 579-580, 86 S.Ct. 1000, 16 L.Ed.2d 109 (1966) ; Keller Industries, Inc. v. United States, 449 F.2d 163, 166-167 (5tb Cir. 1971) ; Louisville and Nashville R. Co. v. Knox Homes Corp., 343 F.2d 887, 897 n. 38 (5th Cir. 1965). When § 77 (o) was originally added to the Railroad Reorganization Act in 1935, preliminary drafts of the bill (H.R. 6249, later H.R. 8587, 74th Cong., 1st Sess.) containing that section provided, inter alia:
      “The conclusion of the judge that any property authorized to be abandoned or sold hereunder, unless set aside by a court of competent jurisdiction, shall raise a conclusive presumption that such abandonment or sale was justified and that such trustees were not justified in opposing same.” [Emphasis supplied.]
      The above-guoted language was omitted from the bill adopting § 77(o) as finally passed. See House Report 1283, 74th Cong., 1st Sess.


author: HAMLIN, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SAUK VALLEY MANUFACTURING CO., INC., Respondent.
    No. 73-1569.
    United States Court of Appeals, Ninth Circuit.
    Oct. 29, 1973.

      Paul J. Spielberg (argued), Peter G. Nash, Gen. Counsel, Marcel Mallet-Pre-vost, Asst. Gen. Counsel, NLRB, Washington, D. C., Roy O. Hoffman, Director, Region 20, San Francisco, Cal., Elliott Moore, Steven R. Semler, NLRB, Washington, D. C., for petitioner.
    John W. Holmdahl (argued), Holm-dahl & Ross, Oakland, Cal., Allen W. Teagle (argued), Nancy L. Ober, Littler, Mendelson & Fastiff, San Francisco, Cal., for respondent.
    Before HAMLIN, ALDRICH and HUFSTEDLER, Circuit Judges.

       Honorable Bailey Aldrich, Senior United States Circuit Judge, Boston, Massachusetts, sitting by designation.

   OPINION

HAMLIN, Circuit Judge:

This case is before us upon application of the National Labor Relations Board (Board), petitioner, pursuant to section 10(e) of the National Labor Relations Act (the Act), as amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq. for enforcement of its order issued against the Sauk Valley Manufacturing Company (Company), respondent, on January 31, 1972. The Board has found the Company in violation of section 8(a)(1) and (5) of the Act by its refusal to bargain collectively with the Union, subsequent to the latter’s certification by the Board as the exclusive bargaining representative of the Company’s employees, following election proceedings. We grant enforcement.

In November, 1970, the Union filed a representation petition with the Board, seeking certification as the exclusive representative of the Company’s production and maintenance employees. Pursuant to a directive by the Regional Director, a secret ballot election was held among unit employees on April 8 and 9, 1971, at the Company’s place of business.

The election resulted in a vote of 24 to 8 in favor of the Union, with one ballot challenged. The Company filed timely objections to the election, alleging that numerous material misrepresentations of fact and procedural irregularities on the Union’s part prejudicially affected the election outcome.

In June, 1971, subsequent to an administrative investigation where the parties were allowed to submit evidence, the Regional Director concluded that the Company’s objections were without merit, and certified that the Union had been properly elected by a majority of employees. No evidentiary hearing was held on the objections. In August, 1971, the Board denied the Company’s requested review.

The Company declined to bargain with the Union, in order to obtain judicial review of the Board’s actions. Subsequent to the filing by the Union with the Board of charges alleging the Company’s failure to recognize or bargain with it as the certified bargaining representative of the Company’s employees, the Regional Director issued a complaint, accusing the Company of section 8(a)(1) and (5) violations. The Company admitted its refusal to bargain, but denied the representative status of the Union and the commission of unfair labor practices, again alleging prejudicial improprieties in the conduct of the election.

In December, 1971, the Trial Examiner granted the Board’s prayer for summary judgment, concluding that the Company’s refusal to bargain constituted section 8(a)(1) and (5) violations. On review, the Board affirmed and issued an order requiring the Company to cease and desist from the unfair labor practices and, affirmatively, to bargain collectively upon request with the Union, and to post appropriate notices.

Substantive Issues

The Company raises numerous issues purportedly warranting our denial of the Board’s enforcement petition. Our review of the substantive issues, however, is preceded by a brief examination of the scope of our review.

As we recently noted, “[t]he courts review election conduct to determine whether it inhibited the employees’ free choice in selecting their bargaining representatives.” N.L.R.B. v. G. K. Turner Associates, 457 F.2d 484, 487 (9 Cir. 1972). The applicable standard of review is, however, circumscribed. It is well established that “Congress has entrusted the Board with a wide discretion in conducting and supervising elections.” N.L.R.B. v. W. S. Hatch Co., Inc., 474 F.2d 558, 561 (9 Cir. 1973); N.L.R.B. v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946); N.L.R.B. v. Waterman S.S. Corp., 309 U.S. 206, 226, 60 S.Ct. 493, 84 L.Ed. 704 (1940). Accordingly, the party challenging the election results “carries a heavy burden in charging that * * * coercion prevented a fair election,” Shoreline Enterprises of America, Inc. v. N.L.R.B., 262 F.2d 933, 942 (5 Cir. 1959), for evidence must be furnished overcoming the presumption that “ballots east under the safeguards provided by Board procedure reflect the true desires of the participating employees.” N.L.R.B. v. Zelrich Co., 344 F.2d 1011, 1015 (5 Cir. 1965). See also General Shoe Corp., 77 N.L.R.B. 124, 126 (1968).

In International Tel. & Tel. Corp. v. N.L.R.B., 294 F.2d 393, 395 (9 Cir. 1961), we explained the rationale supporting restrictive judicial review in this area:

“As established by Congress, the NLRB is in a particularly good position to expedite the process of choosing representatives and thereby promoting collective agreements fairly reflective of the wishes of a majority of workers. Repeated appellate court litigation without allowing considerable discretion on the part of the NLRB thwarts this policy by nurturing continuing uncertainty and argument between the parties where decision— even occasionally erroneous decision —tends to disperse attention.”

We examine the Company’s substantive arguments mindful, therefore, of the limited nature of our review.

The Company initially argues that “the Union, by its agents and representatives, categorically promised employees that they would receive specific benefits, including a Union contract, higher wages, sick leave and a medical and dental plan, if the Union won the election.” In purportive support of this charge, the Company presented the affidavits of two employees.

Employee Edwards stated:
“I was told by other employees who had been to Union meetings that if the Union won the election we would have a Union contract and that the Union had promised this and that the Union promised better pay, sick leave, medical and dental plans if the employees voted in the Union.”
Employee Caldwell stated:
“I was told by other employees that if the Union won the election, we would have a Union contract, there would be better pay, a medical and dental plan. I also had the impression myself from what I heard, that there would be a Union contract.”

The Board has traditionally exercised restraint in setting aside representative elections on claims of inaccurate union propaganda. Elections will be set aside

“* * only where there has been a misrepresentation or other similar campaign trickery, which involves a substantial departure from the truth, at a time which prevents the other party or parties from making an effective reply, so that the misrepresentation, whether deliberate or not, may reasonably be expected to have a significant impact on the election.” Hollywood Ceramics Company, Inc., 140 NLRB 221, 224 (1962). See also Stewart-Warner Corp., 102 NLRB 1153, 1158 (1953).

This court has adopted the Board’s test:

“[W]e have held that an election will be set aside only where one party has misrepresented material facts, the other had no opportunity to reply, and the resulting distorted presentation significantly impaired the election process.” N.L.R.B. v. G. K. Turner Associates, supra, 457 F.2d at 487, citing N.L.R.B. v. Winchell Processing Corp., 451 F.2d 306 (9 Cir. 1971). See also Gallenkamp Stores Co. v. N.L.R.B., 402 F.2d 525, 533-534 (9 Cir. 1968).

Under the applicable test, noted supra, we are unable to conclude that the statements contained in the affidavits of employees Caldwell and Edwards constituted grounds for voiding the election.

Initially, we note that these statements cannot be labeled material misrepresentation. G. K. Turner, supra, or substantial departures from the truth, Hollywood Ceramics, supra. Unions exist for the purpose, inter alia, of secur-' ing higher pay, increased benefits, and collective bargaining for its membership. And most representations to this effect are indigenous to any representation election. Indeed, courts have consistently condoned a certain degree of inaccuracy and ambiguity in election campaigning propaganda, recognizing that “[p] rattle rather than precision is the dominating characteristic of election publicity * * Olson Rug Company v. N.L.R.B., 260 F.2d 255, 257 (7 Cir. 1958). See e. g. N.L.R.B. v. Golden Age Beverage Co., 415 F.2d 26, 30-31 (5 Cir. 1969); Baumritter Corp. v. N.L.R.B., 386 F.2d 117, 119-120 (1 Cir. 1967); Wilson Athletic Goods Mfg. Co. v. N.L.R.B., 164 F.2d 637, 639-640 (7 Cir. 1947).

In addition to failing to show that the statements in issue constituted material misrepresentations, the Company has failed to attribute these allegations to union representatives. Neither Caldwell nor Edwards asserted that they were told of the alleged benefits by union officials. The statements are therefore patently hearsay, and their credibility as the official union position is highly questionable. The Board, with judicial concurrence, has long accorded less weight to conduct which, as here, is attributable to neither the union nor the employer. Orleans Manufacturing Co., 120 NLRB 630, 633 (1958); Allied Plywood Corp., 122 NLRB 959, 961 (1959). See N.L.R.B. v. Griffith Oldsmobile, Inc., 455 F.2d 867, 870 (8 Cir. 1972) and cases cited therein.

The Company makes several additional objections, none of which we find meritorious.

The Company alleges that the Board’s form “Notice of Election” confused employees as to their rights not to join a union. The notice incorrectly implies that an employee has an absolute right to decline to join a union, when in fact this right may be limited where a security clause is negotiated. See section 7 of the Act, 29 U.S.C. § 157. We have previously held, however, that although such a notice of election is “potentially misleading, [it] does not provide a basis for setting aside a representation election.” N.L.R.B. v. G. K. Turner Associates, supra, 457 F.2d at 487. Cf. Overland Hauling, Inc., 168 NLRB 870 (1967).

A further Company objection concerns allegations that the Union misled the employees by indicating that a union victory would result in recognition of the union on behalf of all hourly non-supervisory company employees, when actually the appropriate unit specifically excluded office clerical employees. We find this argument specious. The Company has failed to submit any evidence of employee confusion on this issue, and there is no indication that the misrepresentation affected the election outcome. Further, the above misrepresentation was received by the employees more than a week prior to the election date, affording the Company ample opportunity to reply. See Hollywood Ceramics, supra; G. K. Turner, supra.

The Company also asserts that the Board abused its discretion by not ordering the printing of an election notice and ballot in Tagalog, the language native to the Philippines, for use by one Filipino employee who spoke that language, and understood “some English * * * but not very well.” This assertion is untenable. A Board agent did meet with this employee, and read the notice and ballot to him. The employee stated that he would be able to understand the ballot and notice with the aid of relatives if a copy were provided for his personal use. The copy was duly provided. There was certainly no abuse of discretion in the Board’s failure to have the notice and ballot printed in Tagalog. This conclusion is buttressed by the obvious observation that the election resulted in a vote of 24 to 8 in favor of the union, and this one ballot could not possibly have altered the results.

The Company furthér asserts that the election was unreasonably scheduled. The election was held on April 8 and 9, 1971. April 9 was Good Friday, and the Company complains that a number of “devout” Catholic employees failed to vote on that date. Again, we find the objection frivolous. The Company has made no showing that this scheduling precluded any employees from voting. Even assuming the existence of devout Catholics in the work force, nothing prevented their voting on April 8. Moreover, although the Company was given advance notice of the election dates, it waited until after the election, and the adverse results, before protesting the scheduling.

It is also alleged that the Board improperly counted two ballots which should have been deemed void. This assertion is also wholly without merit.

The ballot instructions stated that the voter was to mark one of two large boxes which were designated “YES, SI” or “NO, NO”, with an “X”. Two ballots were marked by the insertion of the Spanish word “si” in the “YES, SI” box. These two ballots were counted by the Board as indicating the voters’ affirmative answer to the question of union representation. The Company claims that these ballots were incorrectly marked, and that they should not have been counted.

It is well established, however, that in representative elections, the Board will count all ballots where the voter’s intent has been clearly manifested, even if the voter has not followed the proper designation procedure, provided that the mode of designation does not reveal the voter’s identity. See, e. g., N.L.R.B. v. Tobacco Processors, Inc., 456 F.2d 248 (4 Cir. 1972); N.L.R.B. v. Titche Goettinger Co., 433 F.2d 1045, 1048 (5 Cir. 1970). N.L.R.B. v. Whitinsville Spinning Ring Co., 199 F.2d 585, 588 (1 Cir. 1952). The ballots were all properly counted.

Finally, the Company alleges that the Board abused its discretion in failing to permit intervention in the election of a machinists union. The record indicates, however, that the union in question was barred from intervention because of failure to comply with rules and regulations promulgated by the Board governing the procedure for such intervention in representative elections. There was no error.

The Denial of the Evidentiary Hearing

“It is well established that a hearing is not required in every case to determine the validity of objections to a Board-conducted election.” N.L.R.B. v. Golden Age Beverage Co., supra, 415 F. 2d at 33. Only where substantial and material factual issues are raised is the Board required to grant an evidentiary hearing. N.L.R.B. v. Medical Ancillary Services, Inc., 478 F.2d 96, 98-99 (6 Cir. 1973). See 29 C.F.R. § 102.69. And the party objecting to the election must supply the Board with evidence establishing a prima facie case for upsetting the results. N.L.R.B. v. Skelly Oil Co., 473 F.2d 1079, 1083 (8 Cir. 1973). See generally N.L.R.B. v. Tennessee Packers, Inc., 379 F.2d 172, 177-178 (6 Cir.), cert, denied 389 U.S. 958, 88 S.Ct. 338, 19 L. Ed.2d 364 (1967).

The Company had a full opportunity to present its ease for setting aside the election. It filed lengthy objections, and furnished the Regional Director with various employee and officer declarations. The Company was also afforded an opportunity to present evidence in its request for review of the Regional Director’s certification before the Board. See Southwestern Portland Cement Co. v. N.L.R.B., 407 F.2d 131, 135 (5 Cir. 1969), cert, denied 396 U.S. 820, 90 S.Ct. 59, 24 L.Ed.2d 71 (1969). We have carefully reviewed the entire record, and concur in the Board’s conclusion that no substantial and material factual issues are here present requiring an evidentiary hearing. Even accepting the facts ’ alleged in the allegations as true, such facts would not warrant setting aside the election. There being nothing to hear, an evidentiary hearing would have been a “senseless and useless formality.” N.L.R.B. v. Air Control Products, 335 F.2d 245, 249 (5 Cir. 1964).

Our attention has been directed to the First Circuit procedure whereby those instituting frivolous challenges to Board orders may be taxed additional costs as a penalty. E. g., N.L.R.B. v. Hijos De Ricardo Vela, Inc., 475 F.2d 58, 61 (1 Cir. 1973); N.L.R.B. v. Smith & Wesson, 424 F.2d 1072, 1073 (1 Cir. 1970). While we decline to institute this procedure in the instant case, we reserve the right to assess such penalties in appropriate future circumstances.

The order will be enforced.

      . The Board’s Decision and Order are reported at 195 NLRB No. 52.

      . Sheet Metal Production Workers, Local Union No. 355, AFL-CIO.

      . The Company is engaged in the manufacture of barbed wire in Oakland, California.

      . The Company’s reliance upon N. L. R. B. v. Houston Chronicle Publishing Co., 300 F. 2d 273 (5 Cir. 1962) and N. L. R. B. v. Southern Foods, Inc., 434 F.2d 717 (5 Cir. 1970) is misplaced. In both these cases, the misrepresentations were unquestionably attributable to union officials. Further, the misrepresentations there in issue were made at a time immediately preceding the election, thereby affording the Company no opportunity to rebut the misstatements.
      Here, the misstatements were not attribuable to the union, and the Company makes no assertion of inadequate rebuttal opportunity.

      . This policy credits employees with the ability to give true weight to the possibly impulsive allegations of fellow employees induced by the heat of a campaign. The Board recognizes that because, as a practical matter, unions and employers cannot prevent misdeeds or misstatements by those over whom they have no control, a rule which gives the “same weight to conduct by third persons as to conduct attributable to the parties [would] substantially dimmish * * * the possibility of obtaining quick and conclusive election results * * Orleans Manufacturing Co., supra, 120 NLRB at 633.
        See also Bush Hog, Inc. v. N. L. R. B., 420 F.2d 1266,1269 (5 Cir. 1969).
      However, elections have been set aside in such cases where the nonparty misconduct is shown to have created “an atmosphere of fear of reprisal such as to render a free expression of choice impossible.” Manning, Maxwell & Moore, Inc. v. N. L. R. B., 324 F.2d 857, 858 (5 Cir. 1963) ; N. L. R. B. v. Griffith Oldsmobile, Inc., 455 F.2d 867, 870 (8 Cir. 1972). No such atmosphere has been shown to exist here.

      . Notices and ballots were printed in both English and Spanish.

      . Columbus Nursing Home, Inc., 188 NLRB No. 131 (1971) is not to the contrary. The Board there recognized the general rule that the ballot will be counted if the voter’s intent is apparent, but on the facts of that case concluded intent had not been clearly manifested.


author: WINTER, Circuit Judge:

text:
    Louis R. HARPER, Jr., et al., Appellees, v. Joseph M. KLOSTER and Stanley C. Leonard, Appellants. Louis R. HARPER, Jr., et al., Appellees, v. Giffen B. NICKOL et al., Appellants. Louis R. HARPER, Jr., et al., Appellants, v. MAYOR AND CITY COUNCIL OF BALTIMORE, a municipal corporation, et al., Appellees.
    Nos. 73-1853 to 73-1855.
    United States Court of Appeals, Fourth Circuit.,
    Argued Aug. 15, 1973.
    Decided Oct. 15, 1973.

      H. Thomas Howell, Baltimore, Md. (Norman P. Ramsey, Richard T. Sampson, and Semmes, Bowen & Semmes, Baltimore, Md., on brief), for appellants in No. 73-1853.
    Kenneth L. Johnson, Baltimore, Md. (Howard, Brown & Williams, Baltimore, Md., Jack Greenberg, William L. Robinson and Jeffrey A. Mintz, New York City, on brief), for appellants in No. 73-1855 and for appellees in Nos. 73-1853 and 73-1854.
    Paul D. Bekman, Baltimore, Md. (William H. Engelman and Kaplan, Heyman, Engelman & Belgrad, Baltimore, Md., on brief), for appellants in No. 73-1854.
    George L. Russell, Jr., City Sol., Baltimore (Gerald S. Klein, Asst. City Sol., Baltimore, on brief), for appellees in No. 73-1855.
    Before WINTER, FIELD and WIDENER, Circuit Judges.
   WINTER, Circuit Judge:

. Four black employees (Harper, et al.) of the Baltimore City Fire Department brought a class action under 42 U.S.C.A. §§ 1981, 1983 and 1988; 28 U.S.C.A. § 2201; and the thirteenth and fourteenth amendments, against Baltimore City and the members of the Board of Fire Commissioners and the Civil Service Commission, in their representative capacity, * to obtain declaratory and injunctive relief against allegedly racially discriminatory practices of the defendants in the appointment and promotion of firemen and various officers of Baltimore City’s fire department. Twenty-six white firemen intervened in the case.

Finding pronounced past racial discrimination, lesser current racial discrimination and significant consequences of past and current racial discrimination, the district court granted substantial relief. Harper v. Mayor and City Council of Baltimore, 359 F.Supp. 1187 (D.Md.1972). It declared invalid and enjoined continued use of the type of written entrance examination which was currently in use for initial appointment and for promotion. It also prescribed how acceptable forms of written examinations could be developed. Because it found that a higher percentage of blacks resided in Baltimore City than the surrounding counties, which had become havens for white flight, it required that city residents be given preference in hiring over non-city residents so long as there were a sufficient number of city residents to fill vacancies. It invalidated existing promotional lists, and it restricted the use of existing eligibility lists for initial hiring. It invalidated seniority for promotions to certain levels for years of past service, accumulated during periods that it found that racial discrimination had been rampant; and it required a reduction of the “time in grade” requirements for promotion to various levels. 359 F.Supp. at 1218-1219.

I Following the district court’s main decision (May 2, 1972), a group of black ’and white non-residents of Baltimore City (Nickol, et al.), who learned on May 12, 1973, that they had passed the firefighters entrance examinations and would be eligible for appointment as firemen but for the district court’s May 2, 1973 decision and the place of their residence, sought to intervene in the proceedings. Leave to intervene was denied by the district court in an oral ' opinion rendered after a hearing.

Plaintiffs, the intervenors, and the would-be intervenors have appealed. No appellant questions the correctness of the district court’s findings of fact, but each raises legal questions.

Plaintiffs contend that the district court should have granted a more drastic remedy to cure past and present racial discrimination and its present discriminating consequences. Specifically, they advocate that the district court fix minimum quotas for black officers of the fire department, the quotas to be achieved by a date certain. With a complete lack of specificity, they contend that the district court “should have completely proscribed all aspects of . [the seniority system] that retard promotions” and that “[s]ince time in grade was not shown to be job related, it should not be used against the victims of discrimination who otherwise demonstrate (sic) the ability to successfully perform the job.” Finally, they argue that there was error in the district court's failing to retain jurisdiction until racial discrimination and the consequences of past racial discrimination have been fully eradicated,

i The intervenors contend that the district court’s invalidation of existing eligibility lists for promotion was error— in sum, that the relief granted by the district court was too drastic. Their contention is grounded upon the dual assertions that the promotional lists were prepared without resort to racially discriminatory criteria and the reduction of “time in grade” requirements for promotion should not have been applied, retroactively (they claim), to invalidate),' current promotional eligibility lists. Í

The would-be intervenors contend that’ they should have been allowed to intervene and to relitigate the case, at least to the extent that it concerned the eligibility of non-residents of Baltimore City for appointment to the fire department.

After the case was argued, Baltimore^ City filed a motion to dismiss the appeals and to vacate the district court’s judgment, on the ground that under City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), the city could not be sued under 42 U.S.C.A. § 1983 by a complaint seeking equitable relief, since it was not a “person” within the meaning of that statute.

We conclude that the appeals are lacking in merit. While we conclude that the motion to dismiss is well taken as to Mayor and City Council of Baltimore, a municipal corporation, the relief decreed by the district court may be fully effective as to the other defendants, and we do not think that Kenosha requires dismissal as to them. Accordingly, except for dismissal of the City of Baltimore as a defendant, we affirm the orders appealed from.

I.

We reject plaintiffs’ argument that the district court should have fixed racial quotas for various categories of employees of the fire department and prescribed a minimum time schedule for those quotas to be met. We agree with the district court’s discussion and conclusion in regard to this issue as set forth in 359 F.Supp., pages 1213-1215 of its opinion, and more need not be said. We agree also that this is not a case in which it would be appropriate for the district court to continue jurisdiction. The district court’s remedies to eradicate present discrimination and the current consequences of discrimination are complete in and of themselves. Counsel for defendants have assured the court that full access to all relevant data and statistics, short of the questions on a particular examination before the examination is administered, to determine if defendants are in compliance with the district court’s decree, will be available to plaintiffs and other interested parties at all times within regular business hours. As the district court correctly observed, it lacks the authority to operate the Baltimore City fire department, although it does have “the responsibility to see that the procedures for hiring and promoting firemen are within the bounds proscribed by applicable constitutional and statutory provisions.” 359 F.Supp. at 1213. We think that the district court did not abuse its discretion when, in accommodating these conflicting interests, it concluded not to retain jurisdiction.

II.

We think that the voiding of existing eligibility lists for promotion was proper, notwithstanding intervenors’ argument to the contrary.

The district court found, and its findings are not only amply supported but unchallenged, that the “time in grade” requirements, seniority and efficiency ratings — all components of promotional lists — had the potential of adverse effect on blacks and that this potential amounted to a denial of equal protection of the laws. 359 F.Supp. at 1211-1212. Under such circumstances, we cannot say that, given the breadth of the district court’s discretion to fashion equitable relief, the district court abused its discretion in voiding existing promotional lists forthwith rather than to let them expire by the passage of time so that certain of the intervenors, all of whom are white, could be promoted to higher classifications before there could be corrective alteration of the promotional lists. Intervenors argue strenuously that they are being unfairly denied promotions to which they are entitled, but we rejected this argument in Robinson v. Lorillard Corporation, 444 F.2d 791, 800 (4 Cir. 1971), cert, dis., 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655, where we approved modification of an offensive seniority system, saying “Where some employees now have lower expectations than their coworkers because of the influence of one of these forbidden factors [i e., race, color, religion, sex or national origin], they are entitled to have their expectations raised even if the expectations of others must be lowered in order to achieve the statutorily mandated equality of opportunity.”

III.

We agree with the district court that, for the reasons set forth in its oral opinion, would-be intervenors’ application to intervene in the proceedings was not timely. Rule 24(a), F.R.Civ.P. It follows that denial of leave to intervene was proper.

The would-be intervenors wish to litigate further the propriety and validity of the aspect of the district court’s decree giving preference to residents of Baltimore City in the initial appointment of firefighters. As the district court stated in denying leave to intervene, “they may seek to bring a separate action on the narrow issue involved which would not require a full review and consideration of the testimony in the five week trial.” We agree. There had been a five week, well publicized trial and the interests of the would-be intervenors had apparently been adequately represented. Additionally, throughout most of the period of the litigation, as well as the trial itself, Baltimore City had been preliminarily enjoined from filling certain positions in its complement of firefighters. The effect of permitting intervention would have continued that disability for even longer. Manifestly, the public interest in efficient, effective firefighting services requires that would-be intervenors be heard in a separate proceeding.

IV.

In City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), the Supreme Court flatly held that a municipal corporation was not a “person” within the meaning of 42 U.S. C.A. § 1983 when equitable relief under that statute was sought. Earlier, it had held in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that a municipal corporation was not a “person” within the meaning of 42 U.S. C.A. § 1983 when damages under that statute were sought. In Monroe, never-, theless, the Court held that § 1983 applied to municipal officers and employees when damages were sought. See also Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). We see no reason to give Keno-sha any wider application.

In the instant case, the district court apparently exercised its jurisdiction under § 1983, although it may well have been exercising federal question jurisdiction under the thirteenth and fourteenth amendments or jurisdiction under 28 U.S.C.A. § 2201. If it exercised jurisdiction on a basis other than § 1983, jurisdiction over the City of Baltimore may be sustainable, as proper in the first instance or under a theory of pendent jurisdiction, because Monroe does not purport to immunize municipal corporations from suit in such instances. See, however, Moor v. County of Alame-da, supra. But we need not explore these possibilities, because there have been named as defendants the individuals who constitute the fire board, the body which makes appointments and promotions, and the Civil Service Commission, the body which recruits, tests, prepares and publishes eligibility lists for appointment and promotion. Monroe holds that jurisdiction attaches as to them and we do not think that Kenosha is to the contrary. The decree of the district court will be just as effective if it applies only to the defendants, excluding Baltimore City, a municipal corporation, as if Baltimore City were also a defendant.

To comply with Kenosha, we must direct the district court to dismiss Baltimore City from the proceedings. In all other respects, the district court’s orders are affirmed.

Modified and affirmed.