author: PER CURIAM; RIVES, Circuit Judge,

text:
    Earl VAN BLARICOM, Petitioner-Appellant, v. Donald FORSCHT, as United States Marshal, Respondent-Appellee.
    No. 72-1374.
    United States Court of Appeals, Fifth Circuit.
    April 18, 1975.
    J. V. Eskenazi, Federal Public Defender, Theodore J. Sakowitz, Asst. Federal Public Defender, Miami, Fla., for petitioner-appellant.
    Robert W. Rust, U. S. Atty., Carol M. Anderson, James L. Whitten, Asst. U. S. Attys., Miami, Fla., for respondent-appellee.
    Before BROWN, Chief Judge, and RIVES, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
   PER CURIAM;

This cause has already received extensive consideration by our Court, both en panel and en banc. In our earlier en banc opinion, we vacated the panel opinion and declined to consider Van Blaricom’s appeal on the ground that he was unlawfully at large, had violated the conditions of his appeal bond, and was therefore not available and subject to any judgment we might enter. Van Blaricom moved for reinstatement of this appeal since he was in federal custody under another name in California. We granted his motion. He is at last report serving a five year sentence on another conviction at McNeil Island, Washington. He has 69 days remaining to be served for the parole violation.

Since the facts of the case are detailed in our earlier opinions, we will say no more here than that Van Blaricom admittedly violated the conditions of his federal parole, as a result of which it was revoked by a vote of two out of three members of the eight-man Parole Board, employing procedures which did not meet Morrissey standards of procedural due process — but before Morrissey came down. The district court’s denial of Van Blaricom’s petition for habeas corpus was originally reversed by our panel on both statutory and constitutional grounds. On rehearing, however, the panel withdrew the portion of its opinion discussing constitutional matters as unnecessary to its decision. The panel’s holding, then, upon which we granted en banc consideration, was grounded solely in construction of the relevant statute: . . that the procedure employed in revoking appellant’s parole was improper because only two out of three members of the eight-man Board voted for revocation of his parole, while the statutory mandate, 18 U.S.C. § 4207, and the implementing regulation, 28 C.F.R. § 2.40, call for revocation by the Board.” . En banc, both the constitutional and statutory issues were reargued and we consider both here. For reasons to be stated, the panel opinion having been vacated by our earlier en banc opinion, we affirm the judgment of the district court.

Statutory Matters

As our original panel opinion notes, the statutory procedural requirements for revocation of parole of a federal prisoner are succinctly stated in three one-sentence paragraphs in 18 U.S.C. § 4207:

A prisoner retaken upon a warrant issued by the Board of Parole, shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board.
The Board may then, or at any time in its discretion, revoke the order of parole and terminate such parole or modify the terms and conditions thereof.
If such order of parole shall be revoked and the parole so terminated, the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced.

Our panel concluded that, since the statute required revocation by “the Board,” action by a quorum consisting of at least a majority of the eight-member Board was necessary to revoke a parole. Since Van Blaricom’s had been revoked by vote of two of a three-member panel of the Board, that action was therefore deemed invalid. We have concluded that this view of the Board’s power over its own internal arrangements and procedures represents an unduly restrictive construction of 18 U.S.C. § 4207.

We elect instead to follow, as the sounder view, the reasoning and holding of the Tenth Circuit on the same question, which was presented in its cause of Earnest v. Moseley, 426 F.2d 466 (1970):

Title 18 U.S.C. § 4207 provides for a revocation hearing before the Board, a member of the Board, “or an examiner designated by the Board.” It then provides:
“The Board may then, or at any time in its discretion, revoke the order of parole and terminate such parole or modify the terms and conditions thereof.”
We see nothing in this language which would compel the conclusion that the entire Board must decide on every parole revocation. The creation of the Board and Congress’ vesting in it a very broad discretion carries with it an inherent authority to establish such procedures as will best effectuate Congress’ purpose in establishing the Board and the parole system. The Court in Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 242 n. 14, noted that for the fiscal year 1960 the Parole Board held 12,640 hearings of all types and issued 1,016 warrants for the arrest of parole violators and 670 warrants for the arrest of mandatory release violators. To too narrowly circumscribe the authority of the Board to establish its own internal procedures and effectively distribute its work load would impose an undue burden on the Board and, indeed, the entire parole system. As this court said in Christianson v. Zerbst, 89 F.2d 40 (10th Cir.), the proceedings of the Board in revoking the parole or conditional release are presumptively correct. Unless it is clearly shown that the procedures established by the Board are clearly discriminatory or so lacking in fundamental fairness as to deprive the parolee or releasee of due process, or that those procedures are clearly contrary to the statutes creating and regulating the Board, the court will not attempt to substitute its judgment for that of the Board. 426 F.2d at 469.

The Constitutional Claims

Van Blaricom contends that the Morrissey due-process requirements, though expressly made “applicable to future revocations of parole” by that opinion, are not so made non-retroactive as to federal revocations and that, moreover, the requirements of Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), handed down before the Board’s action on his parole, should apply to invalidate its revocation. We are not persuaded.

It is true that Morrissey concerned the rights of a state parolee, and perforce addressed itself to these. The Court spoke, however, of due process; it has not indicated, nor do we see any reason why, these due process requirements should differ significantly in their direct application to the Federal parole authority from their indirect application to the State’s via the 14th Amendment. And in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, the Court seemingly went out of its way to characterize Morrissey as non-retroactive as to both types of sovereign:

“If Morrissey-Scarpelli rules are not retroactive out of consideration for burden on federal and state officials, this case is a fortiori.” 418 U.S. 539, 94 S.Ct. at 2983, 41 L.Ed.2d at 961.

If these be dicta, they are dicta from on high, and we are not inclined to disregard their counsel.

Nor are we inclined to achieve the same result — retroactivity of Morrissey —by applying the principles of Goldberg to Van Blaricom’s hearing. Morrissey represents little more than an extension and application of Goldberg principles from its welfare context to that of parole matters. But principles of due process are flexible, not subject to uncritical transfer from one factual setting to another; and the decision so to extend them is itself one of weight and moment. Goldberg did not by its terms control parole contexts, nor was its extension to them foreordained by it. The Supreme Court has indicated that they are to apply to parole hearings from Morrissey’s time forward, not from Goldberg’s. There it ends.

Affirmed.

RIVES, Circuit Judge,

with whom

WISDOM, GOLDBERG, and GODBOLD, Circuit Judges, join, dissenting.

I respectfully dissent for the reasons stated in Part I of the original panel opinion, 473 F.2d 1323 at 1326-1328, and in the panel opinion on rehearing, 489 F.2d 1034-1036.

      . Van Blaricom v. Forscht, 473 F.2d 1323 (1973) (original panel opinion); 489 F.2d 1034 (1974) (panel opinion on rehearing); 490 F.2d 461 (1974) (prior en banc opinion).

      . Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

      . 473 F.2d 1323 (1973).

      . 489 F.2d 1034 (1974).

      . And a Board regulation implementing it.

      . Emphasis added. 489 F.2d at 1034.

      . In its form at the time, the implementing regulation fleshed out the statute considerably, but imposed no additional requirements relevant to our decision:
      “28 C.F.R. § 2.40 Revocation by the Board.

        “A prisoner who is retaken pursuant to a warrant issued by the Board or a member thereof shall, while being held in custody under authority of such warrant awaiting possible return to a Federal institution, be afforded a preliminary interview by an official designated by the Board. Following receipt of a summary or digest of the preliminary interview, the Board shall afford the prisoner an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board. If the prisoner requests a local hearing prior to return to a Federal institution in order to facilitate the retention of counsel or the production of witnesses, and if he has not been convicted of a crime committed while under community supervision, and if he denies that he has violated any condition of his release, he shall be afforded a local revocation hearing reasonably near the place of the alleged violation (or one of the alleged violations if more than one is alleged). Otherwise, he shall be given a revocation hearing after he is returned to a Federal institution. Following the revocation hearing, the Board may then or at any time within its discretion revoke and terminate the order of parole or mandatory release or modify the terms and conditions thereof. Whenever a parole or mandatory release is thus revoked, the prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced, less such good time as he may earn following his recommitment.”

      . “The few basic requirements set out above, which are applicable to future revocations of parole, should not impose a great burden on any State’s parole system.” 408 U.S. at 490, 92 S.Ct. at 2604, 33 L.Ed.2d at 499.


source: Caselaw Access Project

author: PER CURIAM: CLARK, Circuit Judge, PER CURIAM:

license: Public Domain

text:
    Horace E. and Edith B. NICHOLS, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 73-3159.
    United States Court of Appeals, Fifth Circuit.
    April 18, 1975.
    Rehearing Denied June 11, 1975.
    H. E. Nichols, pro se.
    Edith B. Nichols, pro se.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Tax Div., U. S. Dept, of Justice, Lawrence B. Gibbs, Acting Chief Counsel, Stephen M. Friedberg, I. R. S., Bennet N. Hollander, Jeffrey S. Blum, Attys., Tax Div., Dept, of Justice, Washington, D. C., for respondent-appellee.

      Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORN-BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

       Judge Morgan did not participate in the consideration or decision of this case.

       Judge Morgan did not participate in the consideration or decision of this case.

   PER CURIAM:

The taxpayer, Horace E. Nichols, is now Chief Justice of the Georgia Supreme Court. On this appeal he argues that the Tax Court erroneously determined that the fee he paid to have his name placed on the ballot in the 1968 Georgia Democratic Primary was not deductible under either section 162, 212 or 164 of the Internal Revenue Code of 1954. We affirm.

The facts as stipulated and relevant to this appeal are as follows. The taxpayer was appointed effective November 16, 1966 to fill an existing vacancy on the Georgia Supreme Court until the next general election on November 5, 1968. In May 1968 he qualified under Georgia law to run in the Democratic Primary Election for the unexpired portion of the regular term (November 6, 1968 through December 31, 1968) and for a succeeding term beginning January 1, 1969. In order to have his name placed on the primary ballot as a candidate, the taxpayer was required to pay an 1,800 dollar qualification fee to the Georgia Democratic Party. Although its amount was set by the party’s executive committee, 75% of this assessment was used to defray the cost of the 1968 primary, and the remaining 25% was subsequently used to finance a 1970 primary run-off. No part of the fee was used to espouse the causes of party candidates in the general election. The taxpayer was unopposed in the primary and the general election and was elected both to fill the remainder of the unexpired term and to serve for the next succeeding term. On his 1968 federal income tax return, he subtracted the amount of the primary qualification fee as an adjustment to income, but deduction of this sum was disallowed by the Commissioner. The propriety of this disallowance is the sole appellate issue.

The alpha and the omega of our consideration of the deductibility of this qualification fee is McDonald v. Commissioner, 323 U.S. 57, 65 S.Ct. 96, 89 L.Ed. 68 (1944). The taxpayer in McDonald was appointed to serve an unexpired term as judge of the Court of Common Pleas of Lucerne County, Pennsylvania, his continuance in office for a full term being dependent upon success in his party’s primary and the next general election. To obtain the support of his party organization, Judge McDonald had to pay an “assessment” to the party’s executive committee. The proceeds of these assessments “went to the general campaign fund in the service of the party’s entire ticket.” The Commissioner disallowed Judge McDonald’s deduction of this assessment and of the expenses he incurred in a losing campaign seeking election. The Supreme Court held that deduction of both amounts was improper under then existing sections substantially equivalent to present sections 162 and 212. Since “his [McDonald’s] campaign contributions were not expenses incurred in being a judge but in trying to be a judge for the next ten years,” they were not expenses incurred in “carrying on a trade or business” under section 162’s predecessor. Describing the antecedent of section 212, the Court stated “[it] merely enlarged the category of income with reference to which expenses were deductible [and] did not enlarge the range of allowable deductions of ‘business’ expenses.” Therefore, “[t]hey [the campaign expenses] were not incurred in ‘carrying on’ his ‘business’ of judging.” The Court went on to indicate that sound policy reasons supported the limitation of tax deductibility to items clearly authorized by Congress because they constituted so integral a part of the political process. As McDonald observes, allowing the deduction of campaign expenses involves such potentially subtle ramifications on the entire political process that express legislative rather than interpretive judicial consideration is necessary.

Our decision in Campbell v. Davenport, 362 F.2d 624 (5th Cir. 1966), is dispositive of all issues here. In Campbell the taxpayer sought to deduct a primary qualification fee, the proceeds of which were used by his party’s executive committee to defray the costs of holding the primary. We held that such an expenditure was deductible as a tax under section 164 as it existed prior to amendment. Before doing so, the argument that this fee was deductible under either sections 162 or 212 was rejected in the following terms:

“[T]hough the assessment in the present case differs in some ways from that in McDonald the rationale of McDonald prevents the reaching of a different result here. Judge Davenport’s assessment was incurred as an expense of attaining the office, not in performing the judicial function. For this reason, the deduction of the assessment as an ordinary and necessary expense incurred in carrying on a trade or business or in the production of income was properly denied by the Commissioner.”

While Campbell confirms that the fee paid by the taxpayer in the instant case constitutes a tax, the post Campbell amendment of section 164 causes it to have the effect of denying deductibility. This is so because sectipn 164 now limits the tax which Justice Nichols can deduct to those covered by sections 162 and 212. Thus Campbell’s interpretation of these latter sections, both confirms tax status and denies deductibility. We

Affirm.

CLARK, Circuit Judge,

with whom

BELL, COLEMAN, RONEY and GEE, Circuit Judges, join, dissenting:

The filing fee paid by Justice Nichols was not paid into a political party general campaign fund. Rather, it was used to defray the necessary cost of conducting the party primary. Justice Nichols was not opposed in the primary or in the general election; therefore, merely entering the primary was tantamount to election. He had to pay the fee to continue in the only job he had. In no pragmatic sense could it be said that he incurred the expense in “trying to be a judge.” Whether the fee is viewed as a tax or as an ordinary and necessary expense, to be deductible, it must be incurred in carrying on a trade or business under section 162 or an activity described under section 212. Justice Nichols

paid the fee because it was an absolute business necessity to the continued production of his livelihood.

The Supreme Court in McDonald, and this court in Campbell, foreclosed deductibility in a conscious effort to stay out of the political thicket. I cannot dispute the wisdom of such reasoning. However, business deductions which can be as easily segregated from political considerations, such as this fee exacted from Justice Nichols for the right to retain his job, pose no danger to the public policy consideration underlying the decision in McDonald.

While Campbell is not distinguishable on its facts from the case at bar, McDonald is. Judge McDonald not only paid a substantially larger fee than Justice Nichols, Judge McDonald’s fee went into a political party “war chest” to defray all manner of campaign expenses. Judge McDonald was opposed and, in fact, lost the election. His contribution was necessary to obtain party support and to influence voters. He was trying to win an election to be a judge in the future. In McDonald the Court also dealt with a deduction for “campaign expenses”. In the case at bar, there were no related campaign expenses because there was no campaign.

At the conclusion of the opinion in McDonald, the Supreme Court clearly indicated that it was depending on the Tax Court to apply the principle it there announced to the “quagmire of particularities” involved in a “detailed analysis of the special circumstances of various ‘businesses’ and expenses incident to their ‘carrying on’.” The Tax Court has exercised this function and allowed deductions in situations analogous to the case at bar, notably in the area of employment agency fees.

Fees paid to employment agencies have been held to be deductible on the basis that the expenditures were incurred by the taxpayer in carrying on his trade or business. The expense is deemed ordinary and necessary to improving the taxpayer’s position in his trade or business albeit under a different employer. See Primuth v. Commissioner, 54 T.C. 374 (1970); Kenfield v. Commissioner, 54 T.C. 1197 (1970); Cremona v. Commissioner, 58 T.C. 219 (1972). In Primuth the Tax Court determined that Primuth was in the trade or business of being a corporate executive. The court also refused to condition deductibility on whether the fee was contingent on obtaining employment or not. The Tax Court allowed the deduction in Kenfield even though the taxpayer did not accept the job offer which resulted from the employment agency’s efforts. In Cremona the fee was deductible despite the lack of success in finding employment for the taxpayer. There is no valid reason for allowing the deduction for the fees paid by these taxpayers as a prerequisite for obtaining a better position and disallowing the deduction for the fee paid by Justice Nichols as a prerequisite for continuing in his job.

It would not be inconsistent with McDonald, for the court en banc to depart from that portion of its decision in Campbell which denies deductibility to the fee paid by one situated as Justice Nichols. Campbell unnecessarily restricts McDonald and precludes the exercise of the discretion that holding granted to the Tax Court to analyze specific deductions claimed to constitute proper business expenses.

ON PETITION FOR REHEARING

Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN , CLARK, RONEY and GEE, Circuit Judges.

PER CURIAM:

It is ordered that the petition for rehearing filed in the above entitled and numbered 'cause be and the same is hereby denied.

BELL, COLEMAN, CLARK AND GEE, Circuit Judges, would grant the petition for rehearing for the reasons stated in Judge CLARK’s dissent to the opinion of the court en banc.

      . 26 U.S.C. § 162 provides in relevant part: “There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.”
      Section 212 provides:
      “In the case of an individual, there shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year—
      (1) for the production or collection of income;
      (2) for the management, conservation, or maintenance of property held for the production of income; or
      (3) in connection with the determination, collection, or refund of any tax.”
      Section 164 provides in relevant part:
      “(a) General rule. — Except as otherwise provided in this section, the following taxes shall be allowed as a deduction for the taxable year within which paid or accrued:
      (1) State and local, and foreign, real property taxes.
      (2) State and local personal property taxes.
      (3) State and local, and foreign, income, war profits, and excess profits taxes.
      (4) State and local general sales taxes.
      (5) State and local taxes on the sale of gasoline, diesel fuel, and other motor fuels. In addition, there shall be allowed as a deduction State and local, and foreign, taxes not described in the preceding sentence which are paid or accrued within the taxable year in carrying on a trade or business or an activity described in section 212 (relating to expenses for production of income).”

      . See also United States v. Gilmore, 372 U.S. 39, 83 S.Ct. 623, 9 L.Ed.2d 570 (1963).

      . The Court stated:
      “The relation between money and politics generally — and more particularly the cost of campaigns and contributions by prospective officeholders, especially judges — involves issues of far-reaching importance to a democracy and is beset with legislative difficulties that even judges can appreciate. But these difficulties can neither be met nor avoided by spurious interpretation of tax provisions dealing with allowable deductions.”
      323 U.S. at 63, 65 S.Ct. at 98, 89 L.Ed. at 70.

      . The Tax Court, in Carey v. Commissioner, 56 T.C. 477, 480 (1971), recently discussed some of these policy considerations in denying a deduction of campaign expenses to an unsuccessful candidate for reelection as president of a union.

      . See also Nichols v. United States, 223 F.Supp. 709 (N.D.Ga.1963); and Maness v. United States, 367 F.2d 357 (5th Cir. 1966).


author: MANSFIELD, Circuit Judge:

text:
    UNITED STATES of America, Petitioner, v. Jack B. WEINSTEIN, United States District Judge, Respondent.
    No. 609, Docket 74-2595.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 6, 1975.
    Decided Jan. 30, 1975.

      Edward R. Korman, Chief Asst. U. S. Atty. (David G. Trager, U. S. Atty. for

      the Eastern District of New York, Brooklyn, N. Y., of counsel), for petitioner.
    Louis Lusky, New York City, for respondent.
    Michael E. Tigar, Washington, D. C. (Williams, Connolly & Calif ano, Washington, D. C., of counsel), amicus curiae urging denial.
    Before KAUFMAN, Chief Judge, and FEINBERG and MANSFIELD, Circuit Judges.
   MANSFIELD, Circuit Judge:

Pursuant to 28 U.S.C. § 1651 the Government seeks a writ of mandamus directing United States District Judge Jack B. Weinstein (“respondent”) to vacate orders entered by him in November 1974, United States v. Lockwood, 386 F.Supp. 734 (E.D.N.Y.) requiring the Government to produce the Selective Service files of 23 delinquent registrants who have failed to appear in criminal proceedings pending against them. Judge Weinstein ordered that the files be made available for discovery and inspection by an attorney appointed by him to represent the fugitive defendants without their authority and by another attorney appearing as amicus curiae.

Since the purpose of the court-initiated discovery was to determine whether motions might be made by the court-appointed representative for dismissal of the indictments, the Government also seeks an order barring respondent from entertaining such motions. We agree with the Government that the respondent lacks the power to order the Government to make the discovery directed by him and that, absent consent by the defendants, the court-appointed counsel lacks authority to represent them. Accordingly, the petition is granted.

On September 10, 1974, respondent on his own initiative entered an order declaring that the defendants in some 26 Selective Service criminal cases pending before him were allegedly fugitives without representation. He took judicial notice that the President and Congress were considering some form of amnesty for fugitives in such cases, which might affect their rights. Without notice to the Government or to the defendants he thereupon appointed Professor Louis Lusky of the Columbia University School of Law to represent the defendants.

Upon learning of the order the Government advised the court that, if the fugitive defendants should return to the United States, it would be willing to cooperate in the handling of the charges against them in a manner consistent with the formulation of new guidelines for such cases, but that in its opinion the court’s order was invalid. Following a short stay, respondent held a hearing and within a few hours filed a memorandum decision and order upholding his earlier ex parte order. His memorandum decision took the view that fugitive cases were artificially inflating the caseload of the court and the prosecutor. In order to guarantee “prompt disposition” of these cases he proposed to call them up in accordance with the practice followed by him in the handling of fugitive cases, which was to determine whether the Government was making reasonable efforts to apprehend the fugitives, whether the public or the defendants were being prejudiced by the delay, and whether the indictments should not be dismissed.

Respondent did not state the manner in which the fugitive defendants (or, for that matter, anyone else) might be prejudiced by the pendency of the Selective Service indictments other than to suggest that the President’s Amnesty Proclamation, characterized by respondent as a “pretrial diversion or deferred prosecution scheme,” might present an unfair choice to guiltless defendants since some of the indictments might turn out to be “invalid” and the President’s proposal might subject innocent defendants to pressure to accept the Amnesty Plan “alternative service” rather than face trial. However, respondent did not suggest that, if a fugitive should return to the jurisdiction, he could not obtain a fair trial in which, if the Government should fail to prove its case beyond a reasonable doubt, the defendant would be acquitted. Respondent therefore proposed to “screen” the Selective Service cases in question to determine whether some or all might be dismissed on the basis of defenses disclosed by the Selective Service files. Toward that end, notwithstanding the defendants’ absence as fugitives from the jurisdiction and their failure to authorize any such action to be made on their behalf, respondent denied the Government’s motion to set aside his September 10, 1974, order.

In proposing to proceed without the presence or authorization of the defendants to decide motions that might be made by respondent’s appointee on their behalf, respondent relied upon decisions upholding the court’s power, pursuant to Rule 12(b)(2), F.R.Cr.P., sua sponte to dismiss an indictment appearing insufficient on its face and to dispense with the defendants’ presence upon hearing pretrial motions. However, no authority was cited for the proposition that a trial court might, without a defendant’s presence or consent, make an evidentiary disposition of a criminal case upon motion of an attorney acting without the defendant’s knowledge or consent.

Having appointed Professor Lusky to represent the fugitive defendants, respondent proposed to entertain motions on their behalf to dismiss the indictments on the ground that the defendants had been denied a prompt trial in violation of the defendants’ Sixth Amendment rights, even though prompt trials had been rendered impossible by the defendants having fled the jurisdiction and their never having sought a trial. When the Government submitted affidavits attesting to the fugitive status of 23 of the defendants and the Government’s good faith efforts to locate and arrest them, respondent denied the motions of his appointed representative, Professor Lusky, to dismiss the indictments for lack of a speedy trial. However, while apparently unable to find the indictments defective on their face, respondent accepted the suggestion of an amicus curiae, Michael Tigar, Esq., that Professor Lusky be permitted to inspect the defendants’ Selective Service files with a view to determining whether motions might lie to dismiss the indictments on the basis of defenses appearing in the files. When the Government objected on the ground that the court lacked the power to direct such discovery, respondent ordered that the files be turned over to him so that he might make copies available to Professor Lusky and Mr. Tigar. The Government, while refusing to turn over the files for inspection by Messrs. Lusky and Tigar, advised respondent that it was willing to provide a copy of each defendant’s file to the defendant or his authorized representative.

On November 26, 1974, respondent granted the Government’s request for a 14-day stay pending its filing of the present petition, which was lodged on December 9, 1974.

DISCUSSION

The extraordinary writ of mandamus, which is rarely granted in civil cases, is even less frequently issued in criminal proceedings, principally because of policy reasons based upon the defendant’s rights under the Speedy Trial and Double Jeopardy provisions of the Constitution. Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967). Use of the writ as a substitute for appeal or as a means of circumventing the Criminal Appeals Act is barred. Id. pp. 96-97, 88 S.Ct. 269; United States v. Weinstein, 452 F.2d 704 (2d Cir. 1971), cert. denied sub nom. Grunberger v. United States, 406 U.S. 917, 92 S.Ct. 1766, 32 L.Ed.2d 116 (1972). However, in the unusual case where a district judge has clearly exceeded his powers the petition for a writ of mandamus may be granted, see, e. g., United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947); Ex parte United States, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283 (1932); Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916); United States v. Mayer, 235 U.S. 55, 35 S.Ct. 16, 69 L.Ed. 129 (1914); United States v. Dooling, 406 F.2d 192, 198-199 (2d Cir.), cert. denied sub nom. Persico v. United States, 395 U.S. 911, 89 S.Ct. 1744, 23 L.Ed.2d 224 (1969); United States v. Lasker, 481 F.2d 229 (2d Cir. 1973), cert. denied, 415 U.S. 975, 94 S.Ct. 1560, 39 L.Ed.2d 871 (1974); United States v. Weinstein, supra, even with respect to an interlocutory procedural order, United States v. Carter, 493 F.2d 704 (2d Cir. 1974); Hilbert v. Dooling, 476 F.2d 355 (2d Cir.) (en banc), cert. denied, 414 U.S. 878, 94 S.Ct. 56, 38 L.Ed.2d 123 (1973).

We believe this to be one of those rare, sui generis cases in which unique circumstances require that the writ be granted. For reasons noted below, we are satisfied that the district judge has clearly exceeded his powers. Issuance of the writ will not affect any defendant’s constitutional right to a speedy trial, since each is a long-time fugitive who has not sought trial but, on the contrary, by fleeing the jurisdiction, has prevented his case from being brought promptly to trial. Should the indictments be dismissed for failure to comply with the discovery order, the Government is not assured of the right to appeal under 18 U.S.C. § 3731. Indeed such an appeal would probably not lie with respect to those cases in which the indictment was filed prior to January 2, 1971, when § 3731 in its present form was enacted, see United States v. Apex Distrib. Co., 270 F.2d 747 (9th Cir. 1959) (en banc), and there is the risk that the Government might be precluded on double jeopardy grounds from appealing dismissals based on' facts not appearing on the face of the indictments, see United States v. Jenkins, 490 F.2d 868 (2d Cir. 1973), cert. granted, 417 U.S. 908, 94 S.Ct. 2603, 41 L.Ed.2d 211 (1974); United States v. Velazquez, 490 F.2d 29 (2d Cir. 1973) (dissenting opinion of Chief Judge Kaufman); Note, Government Appeals of “Dismissals” in Criminal Cases, 87 Harv. L.Rev. 1822 (June 1974).

Turning to the merits, we are satisfied that respondent lacks statutory or inherent power to enter the order challenged by the Government. None of the rules relied upon by respondent supports his action. Rule 16(b), F.R.Cr.P., is unavailing since it authorizes discovery of documentary evidence only upon the defendant’s motion and no fugitive defendant in the present case has authorized Professor Lusky to act as his counsel, much less to file such a motion on his behalf. Similarly Rule 17 permits the issuance of a subpoena only upon the request of a “party,” which has not been made here. Rule 12(b)(2), which authorizes the court to notice “lack of jurisdiction or the failure of the indictment or information to charge an offense,” is limited in scope. See, e. g., Hughes v. Thompson, 415 U.S. 1301, 94 S.Ct. 829, 39 L.Ed.2d 93 (1974). It does not authorize action of the type undertaken by respondent, such as a court-initiated discovery designed to uncover evidence of non-jurisdictional defenses not appearing on the face of the indictment, which might then become the subject of unauthorized motions to dismiss, even though such defenses may be waived if not raised by the defendants, see, e. g., United States v. Sisson, 399 U.S. 267, 301, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1969); United States v. Sandbank, 403 F.2d 38, 40 (2d Cir. 1968), cert. denied, 394 U.S. 961, 89 S.Ct. 1301, 22 L.Ed.2d 562 (1969).

Assuming that the Selective Service files were introduced as exhibits before the Grand Jury which filed indictments against the fugitive defendants, Rule 6(e), F.R.Cr.P., which permits disclosure of matters occurring before the Grand Jury “only when so directed by the court,” was not designed as an authorization for pretrial discovery. Its purpose, on the contrary, is to protect the secrecy of the Grand Jury proceedings by restricting disclosure to the exceptional case where a particularized need is shown. Since Selective Service files are confidential in nature, see United States v. Weintraub, 429 F.2d 658, 661 (2d Cir. 1970), cert. denied, 400 U.S. 1014, 91 S.Ct. 572, 27 L.Ed.2d 627 (1971); United States v. Strayhorn, 471 F.2d 661, 665 n.4 (2d Cir. 1972); 32 C.F.R. § 1608.-2, they should not be disclosed to persons other than the government officials concerned or to the defendant or his authorized representative. Neither Prof. Lusky nor Mr. Tigar has been authorized by the defendants to inspect their respective files. In any event the indictments are “not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence.” United States v. Calandra, 414 U.S. 338, 345, 94 S.Ct. 613, 618, 38 L.Ed.2d 561 (1974).

Nor can support for respondent’s action be found in Rule 48(b), which permits the court on its own motion to dismiss an indictment, information or complaint “if there is unnecessary delay in bringing a defendant to trial.” Aside from the fact that the delay here is attributable to the defendants’ flight, the Selective Service files would not be probative on the issue of a delay that must necessarily have occurred after the action taken by the local Selective Service hoards.

Lastly respondent’s action cannot be analogized to the appointment of counsel to represent absent or legally incompetent persons in civil proceedings. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). In such proceedings the judgment of the court is binding on the absent or incompetent party, provided due process requirements are satisfied, whereas in a criminal proceeding any action taken by the court at the behest of a representative appointed without the defendant’s knowledge or consent could not bind the fugitive defendant. While a defendant may waive his own presence at a hearing of pretrial motions in a criminal case, see Rule 43, F.R.Cr.P., the attorney moving on his behalf must at least have been authorized by the defendant to act as his counsel in the case. None of the decisions cited by respondent supports the proposition that the court may act upon a motion by an unauthorized attorney appointed by the court itself.

The absence of any statutory or inherent authority for district court action of the type taken by respondent is not surprising. The challenged orders violate a fundamental premise underlying our method of administering justice. Ours is essentially an adversarial, not an inquisitorial, system. Whatever may be the judge’s role in countries governed by a system of Civil Law, where the judge may by custom engage in investigative or prosecutorial activities, we have chosen to administer justice through courts which are limited to the adjudication of cases and controversies in an adversarial setting. See Art. III, U. S. Constitution; Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). With rare exceptions a federal court is not authorized to act sua sponte; an adversarial interest is essential. Jenkins v. McKeithen, 395 U.S. 411, 423, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). Although district judges possess the power to issue writs “in aid of their respective jurisdictions and agreeable to the usages and principles of law,” 28 U.S.C. § 1651, no usage or custom exists that permits a judge to appoint himself or a stranger as the representative of a defendant who has fled the jurisdiction in order to avoid facing criminal charges, at least without the fugitive’s authority or consent. Indeed, controlling precedent is to the contrary. The flight of a defendant for the purpose of avoiding prosecution or punishment “disentitles [him] to call upon the resources of the Court for determination of his claims,” Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 499, 24 L.Ed.2d 586 (1970); see Bonahan v. Nebraska, 125 U.S. 692, 8 S.Ct. 1390, 31 L.Ed. 854 (1887); United States v. Sperling, 506 F.2d 1323 (2d Cir. 1974), Slip Opin. 5637, 5673 n.33; Dawkins v. Mitchell, 141 U.S.App.D.C. 213, 437 F.2d 646 (1970); People v. Genet, 59 N.Y. 80 (1874). Moreover, at one time the penalty for failure to appear could be an order outlawing the defendant. See Chitty, A Practical Treatise on the Criminal Law (1819 ed.), p. 284.

The administration of justice is not served by the court’s unilateral effort to activate the defense of a criminal case in which prosecution has been frustrated by the defendant’s flight from the jurisdiction. In the present cases, for instance, the dormant files are mere statistics which do not preclude the active prosecution of hundreds of other pending viable criminal cases against persons located within the jurisdiction. Nor should the pendency of indictments against fugitives who may be innocent inhibit them from returning to the jurisdiction or coerce them into the performance of alternate service under an amnesty plan. The remedy of a guiltless fugitive, assuming some of the defendants may be so classified, is to avail himself of his Sixth Amendment right to a speedy and public trial, with all the constitutional guarantees associated with it. The Government’s failure to prove guilt beyond a reasonable doubt will then lead to his acquittal. In the meantime, no public interest is served by proceeding without his consent or authorization.

For the foregoing reasons the petition is granted. A writ will accordingly issue directing respondent (1) to vacate the orders entered by him on November 1, 21 and 26, 1974, ordering that the Selective Service files of each of the above-named 23 fugitive defendants be made available for disclosure to and inspection by Professor Louis Lusky and Michael E. Tigar, Esq., without authority from the defendant whose file is sought, and (2) to cease entertaining motions on behalf of any of the 23 defendants raising non-jurisdictional defenses to the indictments against such defendants, without authority from the defendant or defendants to act on their behalf.

We should make it clear that we do not intend to preclude Judge Weinstein from entertaining motions on behalf of fugitive defendants who have agreed that Professor Lusky or any other attorney represent them. Compare In re Federal Public Defender (D.Ore.1974) (tentative appointment of lawyer under Criminal Justice Act for fugitive Selective Service defendants, subject to their agreement to be represented and their showing of eligibility under the Act).

      . United States v. David Arthur Lidov — 68 Cr. 67;
      United States v. Michael Rosenbaum — 68 Cr. 204;
      United States v. Barry Lawrence Friedman —69 Cr. 54;
      United States v. Alan Stephen Dorn — 69 Cr. 57;
      United States v. Arthur Marc Campus — 69 Cr. 182;
      United States v. Maurice A. Henry — 71 Cr. 1338;
      United States v. James Ralph Blumer — 72 Cr. 478;
      United States v. Thomas Martin Austin — 72 Cr. 494;
      United States v. Ronald Edward Territo— 72 Cr. 622;
      United States v. Paul Parker — 72 Cr. 739;
      United States v. Sidney E. Salzmann — 72 Cr. 740;
      United States v. Charles Penn Sleeth — 72 Cr. 757;
      United States v. Alvin Marris Higgs — 72 Cr. 780;
      United States v. Robert Richard Perez. — 11 Cr. 803;
      United States v. Albert Antonio Martinez— 72 Cr. 810;
      United States v. Edward James Luerssen— 72 Cr. 824;
      United States v. Michael David Frazier — 72 Cr. 834;
      United States v. Thomas John Collura — 72 Cr. 1028;
      United States v. James Thomas Bezousek— 72 Cr. 1290;
      United States v. Paul Estremera — 72 Cr. 1291;
      United States v. Lester Patrick Nolan — 73 Cr. 41;
      United States v. Michael David Powers — 73 Cr. 126;
      United States v. Kenneth Paul Albanese— 73 Cr. 132.
      On January 27, 1975, the Government advised that it no longer seeks relief with respect to defendant Paul Estremera, 72 Cr. 1291, for the reason that, upon being extradited to the United States on other charges, Estremera appointed Jesse Berman, Esq., to represent him in lieu of Professor Lusky, and the Government proposed to turn over his Selective Service file to Mr. Berman for review.

      . One of the 26 cases in which respondent’s orders were entered has beén terminated by reason of the defendant’s death (United States v. Lockwood, Cr. 43456 (1954)). The Government has moved to dismiss two others, one because of the inadvertent destruction of the defendant’s Selective Service file (United States v. Wilson, 69 Cr. 155) and the other because the defendant’s induction order had been improperly accelerated on account of his failure to complete and return a form claiming conscientious objector classification (United States v. Dewey, 66 Cr. 456). Thus the number of cases was reduced to 23 by the time the present petition was filed.

      . Although Judge Weinstein did say “Efficiency rather than fairness may result in the ‘relaxation of standards of evidence and a presumption of guilt.’ See R. W. Balch, Deferred Prosecution: The Juvenilization of the Criminal Justice System, 38 Federal Probation 46, 50 (June 1974),” we do not construe this as meaning that the Government would be relieved of its usual burden of proof.

      . The Government has supplied Professor Lusky and Mr. Tigar with the last known addresses of each of the defendants. Upon oral argument Professor Lusky advised that he had communicated with the defendants and expected to be retained by some of them.

      . In any event it is questionable whether Rule 6(e) applies to documents marked as exhibits before the Grand Jury. Cf. United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960).

      . Section 1608.2 provides in pertinent part that the “records in a registrant’s file and the information contained in such records shall be confidential.” The regulation appears to have the force and effect of law, see Paul v. United States, 371 U.S. 245, 255, 83 S.Ct. 426, 9 L.Ed.2d 292 (1963); United States v. Short, 240 F.2d 292, 298 (9th Cir. 1956).

      . Molinaro was presaged by Justice Frankfurter’s dissenting opinion in Eisler v. United States, 338 U.S. 189, 192, 69 S.Ct. 1453, 93 L.Ed. 1897 (1949), to the effect that Eisler’s flight from the United States deprived the Court of jurisdiction. “Since the Court is without power effectively to decide against him, it is without power to decide at all.”

      . Respondent erroneously suggests that, because a large proportion of Selective Service indictments have been dismissed, the indictments which are the subject of his orders may be vulnerable to dismissal on the ground that they “will not be supported by the record.” However, the vast majority of such dismissals are attributable to the Government s adherence to a policy of consenting to dismissal upon a defendant s compliance with an order to report for induction or alternative civil work. Hearings before Subcommittee on Administrative Practice and Procedure of the Committee on the Judiciary, 92nd Cong., 2d Sess. p. 396 (1972). The percentage of dismissals because of such compliance with induction orders in the Eastern District of New York is estimated at 85-90%.

      . indeed, should a defendant’s Selective Service file reveal undisputed facts constituting a valid defense to a charge of failure to report for induction, he might seek a dismissal or judgment of acquittal by moving under Rule 12(b)(4), F.R.Cr.P.


author: JOHN R. BROWN, Chief Judge:

text:
    Adelaido GONZALES, Jr., et al., Plaintiffs-Appellees—Cross-Appellants. v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant-Appellant—Cross-Appellee.
    No. 73-3799.
    United States Court of Appeals, Fifth Circuit.
    April 18, 1975.
    Rehearing Denied May 12, 1975.

      Thomas G. Sharpe, Jr., Brownsville, Tex., for defendant-appellant.
    Burch Downman, Houston, Tex., for plaintiffs-appellees.
    Before BROWN, Chief Judge, and AINSWORTH and DYER, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

This appeal of a personal injury diversity suit raises two questions — first, whether the Trial Judge erred in failing to submit the issue of sole proximate cause to the jury once that issue had been fairly raised by the defendant and second, whether the plaintiff was entitled to $8,329.71 in stipulated medical expenses where the jury’s answers to special interrogatories established defendant’s liability and a lack of causal negligence on the part of plaintiff. We answer no to the first question and yes to the second.

On the 17th of June 1972, Adelaido and Mary Gonzales were married in Hearne, Texas. That evening they set off on Farm to Market Road 1644 to a dance in Cameron, Texas. The Missouri Pacific Railroad Company operates a switching track on FM 1644 and at the time Mr. and Mrs. Gonzales arrived at the intersection of the railroad track and the road a switching operation was in progress. The Gonzales automobile crashed into a gondola car of the train which was blocking the crossing. Both Adelaido and Mary suffered serious injuries.

At a trial in the District Court the jury, in answer to special interrogatories submitted to it under F.R.Civ.P. 49(a), determined that (i) the crossing was extra-hazardous, (ii) the failure of the railroad to have a warning device at the crossing was a proximate cause of the accident, and (iii) although Adelaido was negligent in his operation of the automobile, this negligence was not a proximate cause of the collision. The jury awarded Mary $25,000.00 for past pain and suffering, $25,000.00 for future pain and suffering, $4,000.00 for loss of earnings in the past, and $40,000.00 for loss of future earning capacity. Adelaido was awarded nothing.

Adelaido appeals the zero damage award and the railroad appeals the finding of liability against it.

The railroad contends that Texas law required the submission of a special interrogatory to the jury on the issue of sole proximate cause. Under Texas community property law, those elements of the recovery constituting community property would be barred by a finding of causal negligence on the part of either of the marital couple. On the other hand, if it could be shown that Adelaido’s negligence was the sole proximate cause of the accident, even that part of Mary’s recovery that was her separate property would be barred since on such hypothesis the railroad’s negligence would not have been a cause of the collision. Thus, the railroad’s complaint is that the denial of their request for a special interrogatory on Adelaido’s sole proximate cause destroyed any hope that it had for complete defense to the suit.

There are at least three answers to this contention. First, it is quite clear that a finding that the crossing was extra-hazardous and that this condition was a proximate cause of the accident completely precluded any chance of Adelaido’s negligence constituting the sole proximate cause. Sole proximate cause means exactly that— there is no other cause. Here, the jury had already found in their answer to Interrogatory No. 2 that there was at least one other cause. Thus the only purpose to be served by the requested issue was to cross-examine the jury to ascertain whether they really meant what they said.

The second answer is that the special interrogatories a Federal District Judge submits under F.R.Civ.P. 49(a) need not be identical to those a Texas Judge must submit under Texas Rules Civil Procedure 277. Special interrogatories under F.R.Civ.P. 49(a) are matters of federal procedure not governed by state rules. Travelers Insurance Company v. Truitt, 5 Cir., 1960, 280 F.2d 784, 789; De Eugenio v. Allis-Chalmers Mfg. Co., 3 Cir., 1954, 210 F.2d 409; Lowery v. Clouse, 8 Cir., 1965, 348 F.2d 252; Southern Pacific R. R. v. Montalvo, 5 Cir., 1968, 397 F.2d 50; 5A Moores Federal Practice, ¶ 49.03[1],

Third, without the necessity of charting the one time tortuous path through the tangled and thorny thicket of Texas special issue submission, it is our understanding that the recent changes to Tex.R.Civ.P. 277 which became effective shortly after this trial eliminate the necessity of the submission of inferential rebuttable issues like sole proximate cause. See Pope and Lowerre, Revised Rule 277 — A Better Special Verdict System for Texas, 27 Sw. L.J. 577, 590 (1973). Texas has seen the light. And the light here is Federal good sense and practice — a sort of Erie in reverse. See, Brown, Federal Special Verdicts: The Doubt Eliminator, 1967, 44 F.R.D. 338.

The judgment for Mary is affirmed.

Adelaido appeals from the denial of his motion under F.R.Civ.P. 59(b) to amend the judgment to include $8,329.71 in medical damages stipulated to before trial by both Mr. and Mrs. Gonzales and the railroad or in the alternative to order a new trial on the question of damages. Despite the railroad’s contentions to the contrary on appeal, the clear import of the stipulation is not only that it did not dispute that these amounts were spent but also that the expenses were reasonable in amount and necessarily incurred.

Adelaido’s contention is that the jury award of no damages after finding no causal negligence was so inconsistent as to require the judgment to be amended or in the alternative a new trial. The Seventh Amendment mandates this Court to search for a view of the case that makes the jury’s answers consistent. Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 1962, 369 U.S. 355, 364, 82 S.Ct. 780, 7 L.Ed.2d 798. Bearing in mind our duty to harmonize the jury’s answers, if it is possible under a fair reading of them, Gallick v. Baltimore & Ohio R. R., 1963, 372 U.S. 108, 83 S.Ct. 659, 92 L.Ed.2d 618; Griffin v. Matherne, 5 Cir., 1973, 471 F.2d 911; Stockton v. Altman, 5 Cir., 1970, 432 F.2d 946; R. B. Company v. Aetna Ins. Co., 5 Cir., 1962, 299 F.2d 753; Rorem v. Halliburton Well Cementing Co., 5 Cir., 1957, 246 F.2d 427; we modify the judgment to include an award to Adelaido of the stipulated medical damages. Read in the light of the attendant circumstances, Gallick v. Baltimore & Ohio R. R., supra; McVey v. Phillips Petroleum Co., 5 Cir., 1961, 288 F.2d 53; we feel that while we cannot question the jury verdict on the other items in Adelaido’s claim there was no need for any submission on the items stipulated to. Indeed the questions submitted in Interrogatory No. 6 did not in subdivision a, b, c or d even remotely refer to medical expenses. We leave intact the jury verdict and merely direct the entry of a judgment for those items on which they were in effect entitled to an instructed verdict, conditioned only on the finding of negligence of the railroad. Finding the railroad’s other contentions to be without merit we modify the judgment to include an award to the community of $8,479.71 and affirm.

Modified and affirmed.

      . “INTERROGATORY NO. 1: Do you find from a preponderance of the evidence that the railroad crossing in question was an extra hazardous nighttime crossing, as that term has been defined to you?
      The jury will answer “It was an extra hazardous nighttime crossing” or “It was not an extra hazardous nighttime crossing.” We the jury, answer: “It was”.

      If you have answered “It was not an extra hazardous nighttime crossing,” then you need not answer any further interrogatory. If you have answered “It was an extra hazardous nighttime crossing”, then you will answer the following interrogatory;
      INTERROGATORY NO. 2: Do you find from a preponderance of the evidence that the failure of the Railroad to have a warning devise at the crossing in question, on the occasion in question, was a proximate cause of this accident?

      The jury will answer “It was” or “It was not”.
      We, the jury answer: “It was”.

      INTERROGATORY NO. 3: Do you find from a preponderance of the evidence that Adelaido Gonzales, Jr. was negligent in any respect?
      The jury will answer “He was” or “He was not”.
      We, the jury, answer: “He was".

      If you have answered Interrogatory No. 3 “He was” then you will answer Interrogatory No. 4;
      INTERROGATORY NO. 4: Do you find from a preponderance of the evidence that the negligence you found in Interrogatory No. 3 was a proximate cause of the collision in question?
      The jury will answer: “It was” or “It was not”.
      We, the jury, answer: “It was not".

      INTERROGATORY NO. 5: What amount of money, if paid now in cash, do you find will compensate Adelaido Gonzales, Jr. for his injuries?
      The jury will answer in dollars and cents. We, the jury, answer: “Zero”.

      INTERROGATORY NO. 6: What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate Mary Gonzales for her injuries, if any, which you find from a preponderance of the evidence resulted from the occurrence in question?

        Answer separately in dollars and cents, if any, with respect to each of the following elements:
      a. Physical pain and mental anguish and embarrassment in the past. ANSWER: $25,000.00.

      b. Physical pain and mental anguish which, in reasonable probability she will suffer in the future.
      ANSWER: $25,000.00.

      c. Loss of earnings in the past. ANSWER: $4,000.00.

      d. Loss of earnings of earning capacity which, in' reasonable probability she will sustain in the future.
      ANSWER: $40,000.00.

      DATE: May 11, 1973.
      VIOLETTE L. SOOTER, Foreman,”
      * * Jfc * * *

      . Mary Gonzales was awarded $50,000.00 for past and future pain and suffering (Int. No. 6a, b) and $44,000.00 for loss of earnings in the past and future (Int. No. 6 c, d). Under Graham v. Franco, Tex., 1972, 488 S.W.2d 390, the pain and suffering are separate property and the loss of earnings are community property.


author: GEWIN, Circuit Judge:

text:
    Owen D. ROANE, Plaintiff-Appellee, v. CALLISBURG INDEPENDENT SCHOOL DISTRICT et aL, Defendants-Appellants.
    No. 74-1055.
    United States Court of Appeals, Fifth Circuit.
    April 18, 1975.

      Belvin R. Harris, Gainesville, Tex., Jack G. Kennedy, Professional Corp., James R. Fry, Sherman, Tex., for defendants-appellants.
    Frank Hill, Arlington, Tex., for plaintiff-appellee.
    Before GEWIN, AINSWORTH and GEE, Circuit Judges.
   GEWIN, Circuit Judge:

This dispute, involving the right to continued public employment, requires that we give content to the elusive Fourteenth Amendment proscription on denial of “property” without due process of law. The appellee Roane, seeking injunctive relief and damages, initiated this suit against his school board employer pursuant to the Civil Rights Act of 1871, 42 U.S.C. §§ 1981 and 1983. Jurisdiction is based on 28 U.S.C. § 1331. In essence, Roane claims that the school board discharged him in violation of the Fourteenth Amendment when, without a hearing, it refused to permit him to complete his contractual term of employment. We affirm in part and reverse in part.

Due process protections for liberty and property interests, particularly in the educational field, were rejuvenated in the recent Supreme Court decisions of Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). In those cases, the Court extensively reviewed the types of interests subject to such protection. Most significantly for this case, Sindermann held that property interests may include more than mere contractual and statutory rights and that an educational institution can be bound by a “de facto” tenure system if the “policies and practices of the institution” indicate that a teacher may realistically anticipate renewal of his employment contract. Sindermann thus provides the logical starting point for our analysis. As in most areas of the law, however, the recognition that a leading case may be relevant does not resolve the dispute. Small variations and nuances of fact may distinguish present cases from established precedent. We turn therefore to a careful scrutiny of the factual background of this dispute.

I. Facts

The plaintiff Roane, a retired Air Force officer, is a school teacher and administrator. At the time of trial, he held degrees of Bachelor of Education and Master of Education and in addition had almost completed work on a Doctorate of Education. He was first employed by the defendant Callisburg Independent School District in June, 1963 when he became a teacher of mathematics and part-time principal. Two years later he became a full time mathematics teacher. In 1966, he resigned from the defendant school district and taught for a year within another school system. The Callisburg Independent School District rehired him during the summer of 1967, this time as principal of the entire school system. Shortly thereafter, prior to the beginning of the 1967 — 68 school year, Roane was offered and accepted the position of superintendent of the school district. In 1968 his contract was renewed for a term of one year and in 1969 and 1970 it was verbally renewed for unspecified periods. He held this position until the school district’s board of trustees terminated his services as of June 30, 1971.

Roane and the school board of trustees never entered into a written contract. At the time Roane accepted the position as superintendent, however, hiring procedures were governed by the school district’s “Written Rules and Regulations.” These provided that

The Superintendent of schools shall receive as his first contract a term of not less than one year. Thereafter, he shall be elected for a term of from two to five years, at the first regular meeting in January of the year in which his term of office expires. On the first day of July thereafter the term shall begin, continuing for a period of time elected until his successor is elected and qualified.

Both Roane’s predecessor and successor were hired in accordance with this policy of granting two year contracts, renewable at the beginning of each year. Evidence adduced at trial suggested that the purpose of this hiring policy was to provide the superintendent with a sense of job security. The written regulations further stated that the superintendent’s contract could be terminated upon thirty days notice at the discretion of the school district board of trustees for “failure to abide by policies of the board,” “failure to cooperate with the board,” and incompetency.

Roane’s relationship with his employers apparently began to deteriorate during 1970 after he vocally disagreed with the school board’s classroom construction plans. He had recommended the construction of six new classrooms at one site within the district while a majority of the board advocated that two classrooms be built at each of two sites. Two members of the seven-man board supported Roane’s position.

While the parties dispute the reasons for the board’s action, the board decided late in 1970 to terminate Roane’s employment. He learned of the board’s intentions and consequently tendered his resignation at the regularly scheduled meeting on January 4, 1971, apparently to avoid the embarrassment of being fired. The secretary recording the events of the meeting took notes in longhand, and recorded only that Roane submitted his resignation. Roane, in his own handwriting, amended these notes by inserting the words “at the end of his present contract (June 30, 1972)” after that portion of the minutes reporting his resignation. The minutes, containing this addendum, were subsequently typed, approved, and signed by the board at the next meeting. One member testified that he noticed that the date of resignation had been added to the motion and therefore declined to sign the minutes.

In May, 1971, after relations between Roane and the board had eroded still further, the board adopted a motion, over Roane’s objection, terminating his service on June 30, 1971. He received no hearing prior to this date, but two weeks later the board held a hearing at which it presented Roane with a list of fourteen reasons for his discharge. These reasons consisted primarily of a series of minor administrative deficiencies such as failure to secure needed repairs, delays in replacing school equipment, and unauthorized transfer of students among schools.

Roane first appealed his discharge to the county school board but that body concluded after a hearing that he had no remedy since he had no written contract. He then filed suit in federal district court. 'The district court concluded that the Callisburg Independent School Board operated under a de facto tenure system by virtue of its employment practices and written regulations and that Roane therefore enjoyed a “property interest” in continued employment through June 30, 1972. The court further determined that, even assuming that the post-discharge hearings satisfied due process, the school board presented no constitutionally permissible grounds for the dismissal. The list of incidents of managerial failures, it concluded, resulted from the board’s realization that the difference of opinion over the location of new classrooms was insufficient justification for discharge. The district court accordingly awarded Roane $12,504, the amount of one year’s salary, plus $6,000 in attorney’s fees and directed an ex-pungement from the board’s records of all references to his discharge.

II. Property Interest

That Roane sought a remedy under the Civil Rights Act and the Due Process Clause of the Fourteenth Amendment does not narrow our inquiry to federal constitutional questions. As the Supreme Court suggested in Roth, the Due Process Clause cannot operate in a vacuum; it is only activated when there is some substantial liberty or property interest which is deserving of procedural protections. By its terms, it safe-

guards “life, liberty, or property.” The gravamen of Roane’s task, therefore, is to establish that he possessed a protectible property interest prior to his dismissal. Robinson v. Jefferson County Board of Education, 485 F.2d 1381 (5th Cir. 1973); Skidmore v. Shamrock Ind. School District, 464 F.2d 605 (5th Cir. 1972). Absent some legislative or constitutional provision or some type of contractual or de facto tenure arrangement, the school board enjoys the same power to discharge Roane as it did to hire him. See Harnett v. Ulett, 466 F.2d 113 (8th Cir. 1972).

The Supreme Court in recent years has significantly expanded the number of property interests which are subject to Fourteenth Amendment procedural protection. The legitimate receipt of welfare benefits pursuant to statutory authority, Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), the continuation of public employment after a grant of tenure, Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956), the right of a college professor or administrator to complete the term of their contracts, Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952), the expectancy of employment of a college teacher who worked under a system of “de facto tenure”, Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), and a student’s legitimate claim of entitlement to public education under state law, Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725, (1975), are property interests which may not be infringed without resort to proper procedures.

Yet as Roth has established, “the range of interests protected by procedural due process is not infinite.” 408 U.S. 570, 92 S.Ct. at 2705, 33 L.Ed.2d at 556 — 7. To merit due process protections, a person must have more than an “abstract desire” or even a compelling personal need for the interest in question; he must be able to establish a “legitimate claim of entitlement to it.” Id. at 577, 92 S.Ct. at 2709, 33 L.Ed.2d at 561. Thus, the mere failure to rehire an employee without restricting his opportunity to search for other employment does not reach constitutional proportions. Id. at 574, 92 S.Ct. at 2696, 33 L.Ed.2d at 560. Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Moreover, the test is necessarily objective. That Roane himself had a unilateral “expectancy” of continued employment is not determinative absent reasonable indicia of a school board policy or understanding. E.g., Sims v. Fox, 505 F.2d 847 (5th Cir. 1974) (en banc); Bradford v. Tarrant County Ind. College District, 492 F.2d 133 (5th Cir. 1974); Zimmer v. Spencer, 485 F.2d 176 (5th Cir. 1973); Skidmore v. Shamrock Ind. School District, supra.

The Constitution itself gives little content to the concept of property. In determining whether Roane enjoyed a protectible property interest, it is therefore necessary to evaluate his claim within the context of Texas law. Pursuant to Roth, we must determine whether existing policies, “rules and understandings” of the school district created an entitlement to continued employment through June 30, 1972.

We find that the “common law” of the Callisburg Independent School District, comprised of both written policies and actual practices, gave Roane the equivalent of tenure in his administrative post through June 30, 1972. Most significantly, the “Written Rules and Regulations, Callisburg Public School Board of Education” in effect during the course of Roane’s employment, provided that after the first year, the Superintendent shall be elected for a term of “from two to five years.” Evidence adduced at trial indicated that both Roane’s predecessor and successor were hired pursuant to this understanding. When the school board renewed Roane’s contract in 1970, it gave no indication that it was creating other than a two year contract. Additionally, Roane took steps to amend the minutes of the meeting at which he tendered his resignation to explicitly indicate that he did not intend to relinquish his position prior to June 30, 1972. The minutes as amended were ratified by the board. The confluence of these policies and events supports the conclusion that Roane enjoyed “a legitimate claim of entitlement” to employment for the remainder of a two year term. See, e. g., Perry v. Sindermann, supra; Zimmer v. Spencer, supra; Hostrop v. Board of Junior College Dist. No. 515, 471 F.2d 488 (7th Cir. 1972), cert. denied, 411 U.S. 967, 93 S.Ct. 2150, 36 L.Ed.2d 688 (1973).

A finding that Roane enjoyed a property right in the nature of de facto tenure in his position does not, of course, unalterably shield him from discharge; it merely insures that he may not be dismissed without “good cause.” Perry v. Sindermann, supra; Zimmer v. Spencer, supra. An opportunity for a hearing, the very cornerstone of due process, is normally required in these circumstances to evaluate whether such cause exists and to permit the employee to challenge the board’s reasons for dismissal. The possibility of arbitrary, undocumented action will not be tolerated when protected rights are at stake.

The determination of a school board, made in accordance with proper procedures and supported by substantial evidence, would normally be entitled to deference by a federal court evaluating a claim of impermissible discharge. Callahan v. Price, 505 F.2d 83 (5th Cir. 1974); Toups v. Authement, 496 F.2d 700 (5th Cir. 1974); Thompson v. Madison County Board of Education, 476 F.2d 676 (5th Cir. 1973). In this case, however, the school board acted without providing Roane a pre-termination hearing and made no adequate findings of fact. The district court did not decide whether the two post-termination hearings satisfied the dictates of the Fourteenth Amendment but concluded that even if they did, the board nevertheless lacked “good cause” for Roane’s dismissal. Upon a review of the record we are unable to conclude that this finding was clearly erroneous. Furthermore, we agree that the record suggests that the post-hoc list of administrative deficiencies presented to Roane was an effort to rationalize a decision stemming from differing views on classroom construction. That the school district “Written Rules and Regulations” permit discharge for failure to cooperate and abide by board policy does not mitigate the “good cause” standard or otherwise authorize the denial of protected interests.

III. First Amendment Claim

Roane has claimed throughout this litigation that the fundamental reason for his discharge was not the various managerial oversights on which the school board relied but rather his expressed difference of opinion with the board’s classroom construction program. The First Amendment, he contends, bars such retaliatory action against a public employee. The school board counters that Roane may be fired for general “non-cooperation”, evidenced in part by his disagreement with the board’s program of classroom construction.

It is axiomatic that the failure to renew the contract of even a non-tenured public employee may be predicated on his exercise of First Amendment rights only in unusual circumstances. Perry v. Sindermann, supra, 408 U.S. at 597, 92 S.Ct. at 2697, 38 L.Ed.2d at 577. See also Lewis v. Spencer, 468 F.2d 553 (5th Cir. 1972). Under the Supreme Court’s standard in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) and its progeny, a state agency may not restrict an employee’s freedom of expression by discharge or other means unless that employee’s statements are shown to substantially impede the legitimate operation of that agency. See Zimmer v. Spencer, supra. See also Duke v. North Texas State University, 469 F.2d 829 (5th Cir. 1973).

We find it unnecessary to rule on this additional constitutional claim in view of our conclusion that Roane enjoyed a protected property interest in employment through June 30, 1972 and that the school board lacked “good cause” for his discharge. These circumstances alone present a sufficient legal basis for the district court’s award of damages for the remainder of Roane’s salary.

IV. Mitigation of Damages

The school district contends on appeal that even if it improperly discharged Roane, it is not liable for the full year’s salary since he completely failed to mitigate damages by using reasonable diligence to secure other employment. The trial court properly determined that the burden of proving this issue rested on the school district and that the district simply failed to present any evidence in support of its claim. Both Texas law, Mr. Eddie, Inc. v. Ginsberg, 430 S.W.2d 5 (Tex.Civ.App.1968), and the law of this circuit, Sparks v. Griffin, 5 Cir., 460 F.2d 433, indicate that the employer must establish that the dismissed employee failed to use reasonable diligence in securing new employment. The school district in this case has failed to meet this burden.

V. Attorney’s Fees

In addition to the damages the district court entered an award of $6,000 in attorney’s fees against the defendant. In its findings of fact, that court noted that “this civil action was necessary to bring about compliance with the Fourteenth Amendment . . . and Section 1983 . . . .” While we concur that plaintiff’s attorney assisted in the vindication of constitutional and statutory rights, we feel that an award of attorney’s fees in this case is improper. As the Supreme Court has recently noted in F. D. Rich Co., Inc. v. Industrial Lumber Co., 417 U.S. 116, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974), federal courts have made but three exceptions to the “American Rule” that such fees are not recoverable in the absence of a statute or contractual provision:

We have long recognized that attorneys’ fees may be awarded to a successful party when his opponent has acted in bad faith, vexatiously, wantonly, or for oppressive reasons, or where a successful litigant has conferred a substantial benefit on a class of persons and the court’s shifting of fees operates to spread the cost proportionately among the members of the benefited class. The lower courts have also applied a rationale for fee shifting based on the premise that the expense of litigation may often be a formidable if not insurmountable obstacle to the private litigation necessary to enforce important public policies [the “private attorney general” rationale]. 417 U.S. at 130, 94 S.Ct. at 2165, 40 L.Ed. 714.

The mere fact that the litigation in this case involves issues of civil rights does not in itself justify an award of attorney’s fees. The plaintiff sued only in his own behalf and the judgment does not directly benefit any other persons or class. This is not a case in which a damage award was unlikely or in which the costs of proving a case for injunctive relief were disproportionately high. The applicability of § 1983 does not automatically justify an award of attorney’s fees to the injured party.

The decision of the district court concerning the school board’s liability for the appellee’s salary through June 30, 1972 is affirmed. That portion of the district court’s award relating to attorney’s fees is reversed.

Affirmed in part; reversed in part.

      . It is not clear whether an “independent school district”, organized pursuant to state law for the purpose of operating public schools, should be treated as a “person” for purposes of the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its jurisdictional sibling, 28 U.S.C. § 1343. The Supreme Court has ruled, of course, that a municipality may not be held liable under this provision for either damages, Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), or equitable relief. City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). These decisions leave open the possibility of basing jurisdiction on the general federal jurisdictional statute, 28 U.S.C. § 1331, and this court has found that such a basis may be appropriate. United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, 493 F.2d 799, 803 (5th Cir. 1974); Traylor v. City of Amarillo, 492 F.2d 1156, 1157 n. 2 (5th Cir. 1974). Regardless of whether a school district is treated as a municipality, see, e. g., Love v. City of Dallas, 120 Tex. 351, 40 S.W.2d 20 (1931), or a “person”, the record in this case indicates that the plaintiff Roane satisfied the jurisdictional requisites of § 1331. Furthermore, Texas law specifically authorizes suits against school districts. Tex. Educ.Code, § 23.26(a), V.T.C.A.

      . We do not view the Supreme Court’s most recent pronouncement in this area, the plurality opinion in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), as undermining the applicability of the Roth-Sindermann duet to this case. Arnett held that federal employees are adequately protected under the Lloyd-LaFollette Act, 5 U.S.C. § 7501 (1970) and thus are not entitled to Fourteenth Amendment due process hearings prior to discharge. Texas law affords no similar protections to school district employees.

      . Roth and Sindermann dealt specifically with the rights of teachers to continued employment. While there may be some conceptual distinctions between teachers and school administrators because of the need to protect academic freedom in the classroom, the Fourteenth Amendment, as construed under these and similar cases, does not suggest that these distinctions compel differing legal treatment. So long as a public employee can establish a property or liberty interest in his employment, he is entitled to due process protections, regardless of the nature of his employment. E. g., Sims v. Fox, 505 F.2d 857 (5th Cir. 1974) (en banc); McDowell v. State of Texas, 465 F.2d 1342, 1347 (5th Cir. 1971).

      . The minutes of the January 4, 1971 meeting contained the following statement:
      A motion was made by Mr. Russell, seconded by Mr. Dobbs, to accept the resignation of Mr. Owen Roane as Superintendent of Callisburg Schools. This resignation is to become effective at the end of his present contract, June 30, 1972. The motion carried unanimously.
      These minutes were read and approved by the school board at the next meeting, held January 18, 1971. Only one member of the board who signed the January 18 minutes, a Mr. Dobbs, testified at trial that he had not thereby intended to approve the minutes of the January 4 meeting. He stated that he signed these minutes sometime later, not realizing that he was approving the minutes of the January 4 meeting which he considered improperly altered as to the effective date of Roane’s resignation.

      . We note that in discharging Roane the school board did nothing to impugn his honesty, loyalty or morality and thereby “seriously damage his standing and associations in his community.” Board of Regents v. Roth, 408 U.S. at 573, 92 S.Ct. at 2707, 33 L.Ed.2d at 558. Cf. Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). See also Bradford v. Tarrant County Ind. College District, 492 F.2d 133 (5th Cir. 1974).

      . Texas law now provides for so-called “probationary contracts” for teachers and requires that a hearing be held should the board of trustees wish to terminate a teacher’s employment at the end of his current contract period or for cause during the term of his contract. Tex.Educ.Code §§ 13.101-13.116 (1972). These provisions, on their face, apply only to teachers, not school administrators.

      . These regulations are entirely local. Texas law specifies the maximum term of office for school superintendents, Tex.Educ.Code § 23.-28 (1972), but is silent as to minimum terms. As the district court suggested, the authority to establish minimum terms is by implication left to the local school district board of trustees.

      . The plaintiff Roane argued at trial and urges on appeal as an alternative ground for affirmance that he had, under Texas law, an implied contract or an oral contract of employment through June 30, 1972. Our conclusion that Roane enjoyed a legitimate claim of entitlement to an additional year of employment precludes the need for evaluating this state law contention.

      . The Rich case was decided subsequently to the district court’s ruling in the instant case.


author: DYER, Circuit Judge:

text:
    Milton E. DUPUY, Plaintiff-Appellant, v. Clarence O. DUPUY, Jr., Defendant-Appellee.
    No. 74-2170.
    United States Court of Appeals, Fifth Circuit.
    April 16, 1975.
    Rehearing Denied May 14, 1975.
    C. Ellis Henican, Jr., Carl W. Cleveland, New Orleans, La., for plaintiff-appellant.
    Milton E. Brener, New Orleans, La., for defendant-appellee.

      Before DYER, MORGAN and GEE, Circuit Judges.
   DYER, Circuit Judge:

This appeal presents a narrow question of law — Does the making of intrastate telephone calls satisfy the jurisdictional requirement of “use of any means or instrumentality of interstate commerce” found in § 10 of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78j, and Securities and Exchange Commission Rule 10b-5, 17 C.F.R. 240.10b — 5. The district court held that it did not, and granted the defendant’s motion for summary judgment on a complaint which alleged intrastate calls as the only basis for federal jurisdiction. We reverse and remand for further proceedings.

Plaintiff Milton Dupuy [Milton] and defendant Clarence Dupuy [Clarence] are brothers living in the same apartment complex in New Orleans, Louisiana. Together with their mother, they had engaged in a number of joint commercial ventures, including in 1971 the formation of the Lori Corporation for the purpose of building, owning, and operating a hotel in the French Quarter of New Orleans. Initially, each brother owned 47% of the Lori Corporation shares, with their mother owning the remaining 6%. However, Milton’s subsequent illness necessitated both his withdrawal from active participation in the management of the corporation and, ultimately, the sale of his shares to Clarence.

The gist of Milton’s lawsuit, which is grounded both on a Rule 10b-5 violation and a pendent fraud claim under state law, is that during the negotiations for the sale of his shares, Clarence misrepresented certain material facts and concealed others in order to induce Milton to part with his interest for only a small fraction of its true value. For example, he alleged that Clarence told him the hotel project was stalled when in fact it was not, and also that he failed to disclose that ■ the corporation had entered into a partnership agreement whereby its chief asset, the ground lease for the hotel site, had been assigned to the partnership at a valuation of $1,000,000.

As a basis of federal jurisdiction, Milton further alleged that the sale negotiations had in large measure been conducted through intrastate telephone conversations between his brother and himself. Clarence, while denying that such conversations occurred, moved for summary judgment on the ground that, even if held, intrastate telephone conversations were legally insufficient to confer federal jurisdiction over a 10b-5 claim. The district court granted the motion,. and Milton appealed.

In determining whether intrastate telephone calls may confer federal jurisdiction under § 10 of the Securities Exchange Act, we are of course dealing exclusively with a question of Congressional intent, not Congressional power. It is well-established that Congress may regulate intrastate activity when necessary for the protection of interstate commerce. Weiss v. United States, 1939, 308 U.S. 321, 327, 60 S.Ct. 269, 84 L.Ed. 298. Indeed, none of the cases which have considered the issue before us have suggested that Congress lacked the ability to reach the activities in question here.

The starting point in a search for legislative intent is of course the pertinent statutory language. The jurisdictional phrase at issue here requires “the use of any means or instrumentality of interstate commerce.” (Emphasis added). This wording is opposed to language often found in the Securities Act of 1933, which requires as a jurisdictional prerequisite the “use of any means or instruments of transportation or communication in interstate commerce.” (Emphasis added). See, e. g., 15 U.S.C.A. §§ 77e, 777, 77q. While there is nothing in the legislative history to indicate the reasoning, if any, behind this use of varying phraseology, a number of courts have considered use of the preposition “of” rather than “in” in itself highly persuasive that intrastate telephone communications are within the purview of the 1934 Act. See, e. g., Aquionics Acceptance Corp. v. Kollar, 6 Cir. 1974, 503 F.2d 1225; Heyman v. Heyman, S.D.N. Y.1973, 356 F.Supp. 958.

This is certainly a permissible interpretation of the phrase, and other recognized indicia of legislative intent convince us it is the correct one. Most persuasive is the well-known canon of construction that statutes should be interpreted in harmony with their dominant purpose. Kokoszka v. Belford, 1974, 417 U.S. 642, 650-51, 94 S.Ct. 2431, 41 L.Ed.2d 374; F. T. C. v. Fred Meyer, Inc., 1968, 390 U.S. 341, 349, 88 S.Ct. 904, 19 L.Ed.2d 1222.

The primary thrust of the Securities Exchange Act is of course clear. It and its companion acts embrace

[a] fundamental purpose ... to substitute a philosophy of full disclosure for the philosophy of caveat emptor and thus to achieye a high standard of ethics in the securities industry.

S.E.C. v. Capital Research Bureau, 1963, 375 U.S. 180, 186, 84 S.Ct. 275, 280, 11 L.Ed.2d 237.

To accomplish these broad anti-fraud objectives, the Supreme Court has repeatedly held that the Act must be construed “flexibly, not technically and restrictively.” Superintendent of Insurance v. Bankers Life & Casualty Co., 1971, 404 U.S. 6, 12, 92 S.Ct. 165, 30 L.Ed.2d 128. In response, this Court has also frequently given Rule 10b-5 a generous and hospitable reading. As we noted in Herpich v. Wallace, 5 Cir. 1970, 430 F.2d 792, 802:

The operative terms of Rule 10b-5— “fraud,” “deceit,” “purchase,” “sale,” and “security,” as well as the phrase “in connection with” — are infused with special meanings. Their construction, the Supreme Court has admonished, must be broad and flexible so that the remedial purposes of the section and the rule will be effectuated. Tcherepnin v. Knight, 389 U.S. 332, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967); SEC v. Capital Gains Research Bur., 375 U.S. 180, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963).

Appellee has not advanced, nor do we perceive, any reasoned justification for treating the Rule’s jurisdictional phrase, “use of any means or instrumentality of interstate commerce,” in a different manner. Indeed, it seems somewhat anomalous to assume, in the absence of express indication of such an intent, that on the one hand, Congress and the S.E.C. meant to erect a comprehensive statutory scheme for the prevention of securities fraud, and on the other, intended to narrowly circumscribe its scope of operation. Therefore, we align ourselves with the great majority of courts which have considered this issue, and hold that intrastate use of the telephone may confer federal jurisdiction over a private action alleging violation of § 10 of the Securities Exchange Act of 1934 and S.E.C. Rule 10b-5.

Reversed and remanded.

      . The consideration ultimately paid for Milton’s 47% interest was $10,000 plus an agreement to assume any liability arising from Milton’s personal endorsement of certain corporate notes.

      . The “securities industry” encompasses more than the organized securities market.
      [W]e read § 10(b) to mean that Congress meant to bar deceptive devices and contrivances in the purchase or sale of securities whether conducted in the organized markets or face to face.
      Superintendent of Insurance v. Bankers Life and Casualty Co., 1971, 404 U.S. 6, 12, 92 S.Ct. 165, 169, 30 L.Ed.2d 128.

      . Aquionics Acceptance Corp. v. Kollar, 6 Cir. 1974, 503 F.2d 1225; Kerbs v. Fall River Industries, Inc., 10 Cir. 1974, 502 F.2d 731; Myzel v. Fields, 8 Cir. 1967, 386 F.2d 718, cert. denied 1968, 390 U.S. 951, 88 S.Ct. 1043, 19 L.Ed.2d 1143; Starck v. Dewane, N.D.Ill. 1973, 364 F.Supp. 466; Heyman v. Heyman, S.D.N.Y.1973, 356 F.Supp. 958; S.E.C. v. Crofters, Inc., S.D.Ohio 1972, 351 F.Supp. 236; Reube v. Pharmacodynamics, Inc., E.D. Pa. 1972, 348 F.Supp. 900; Levin v. Marder, W.D.Pa.1972, 343 F.Supp. 1050; Childs v. RIC Group, Inc., N.D.Ga.1970, 331 F.Supp. 1078, aff’d per curiam, 5 Cir. 1971, 447 F.2d 1407; Ingraffia v. Belle Meade Hospital, E.D. La.1970, 319 F.Supp. 537; Bredehoeft v. Cornell, D.Or.1966, 260 F.Supp. 557; Lennerth v. Mendenhall, N.D.Ohio 1964, 234 F.Supp. 59; Nemitz v. Cunny, N.D.Ill.1963, 221 F.Supp. 571. Contra, Burke v. Triple A. Machine Shop, Inc., 9 Cir. 1971, 438 F.2d 978; Arber v. Essex Wire Corp., N.D.Ohio 1971, 342 F.Supp. 1162; Rosen v. Albern Color Research, E.D.Pa.1963, 218 F.Supp. 473.

      . Our holding today should not be taken to infer that use of any instrumentality related to interstate commerce is sufficient to confer 10b-5 jurisdiction. As we also noted in Herpich v. Wallace, supra:

      In this area especially, ... a case-by-case approach is necessary to the proper development of controlling precedent.
      430 F.2d at 802.