author: WALLACE, Circuit Judge:

text:
    SECURITIES AND EXCHANGE COMMISSION, Plaintiff-Appellee, v. UNITED FINANCIAL GROUP, INC., formerly known as USI Group, Inc., et al., Defendants-Appellants.
    No. 72-1334.
    United States Court of Appeals, Ninth Circuit.
    Jan. 17, 1973.

      Garry P. McMurry (argued), Patrie J. Doherty, of McMurry, Sherry & Nichols, Portland, Or., Roger V. Holm, Richard Bartlett, of Bartlett & Holm, Portland, Or., David L. Cunningham, R. J. Wolf, of Cunningham, Wolf & Churchill, San Francisco, Cal., for defendants-appellants.
    David Ferber, Sol. (argued), Gerald Boltz, Michael A. Macchiaroli, Harvey L. Pitt, Special Counsel, Jack Redden, G. Bradford Cook, General Counsel, Securities & Exchange Commission, Washington, D. C., Sidney I. Lezak, U. S. Atty., Portland, Or., for plaintiff-appellee.
    Before CHAMBERS, MERRILL and WALLACE, Circuit Judges.
   WALLACE, Circuit Judge:

This case is before us on an interlocutory appeal authorized by 28 U.S.C. § 1292(a)(1) and (2). United Financial Group, Inc. (hereinafter “UFG”), et al. appeal from the ruling of the district court in favor of the Securities and Exchange Commission (hereinafter “SEC”) granting a preliminary injunction and appointing a receiver pendente lite. Our opinion is limited to the issues of whether there is subject matter jurisdiction and whether the district judge abused his discretion in granting the relief mentioned. We affirm.

UFG is a Delaware corporation with its headquarters in Novato, California. The individual appellants are officers and directors of UFG and of various of the appellant companies owned by UFG. UFG is a holding company owning and, from its home base in the United States, controlling quite a large number of service and investment companies incorporated in foreign countries. Such investment companies are commonly referred to as “offshore mutual funds.” Most of such funds, including the ones here, have very substantial investments in companies and property in the United States. Many offshore mutual funds were created subsequent to the passage of the Foreign Investors Tax Act of 1966, 80 Stat. 1541, which made certain tax advantages available to foreign investors and to the companies in which they invested so long as such companies were not engaged in a domestic business.

Although appellants insist that all offers and sales of shares in the mutual funds of the various investment companies were confined to foreigners, there is evidence in the record to the contrary. A 1969 UFG-complex shareholder list disclosed a number of shareholders with addresses in the United States. Appellants advertised in overseas editions of American newsweeklies, which are read widely by Americans residing and traveling abroad. An American serviceman swore that, in response to such an advertisement, he was sold mutual fund shares of one of the appellant companies. A doctor employed by the Veterans Administration who was temporarily living in the Philippines was sold shares after having been informed that such a sale to American citizens temporarily living abroad was not illegal. An American citizen employed overseas by one of the appellant companies swore that she was sold shares in the company and that no purchase restrictions with regard to citizenship were brought to her attention. There is also clear evidence that an offer to exchange shares of one of the appellant companies for shares of another of the appellant companies or for interest in land owned by a third appellant company was made to an American citizen, addressed to him at his residence in the United States.

In short, there are American owners of the shares of some of the appellant companies, and there have been offers and sales of stock to American citizens. Coupled with the other evidence before the district court that the complex of foreign companies was in fact directed and controlled as an integrated whole from the United States, that appellants obtained money from investors by means of untrue statements and omissions of material facts, and that the mails and other facilities of interstate commerce of the United States were used in preparation and distribution of prospectuses, to set up sales meetings and to consummate investment transactions, there was sufficient evidence for subject matter jurisdiction under § 22(a) of the Securities Act of 1933 and § 27 of the Securities Exchange Act of 1934. Compare Schoenbaum v. Firstbrook, 405 F.2d 200, 206 (2d Cir. 1968), rev’d on other grounds, 405 F.2d 215 (2d Cir. 1968) (en banc), cert. denied sub nom. Manley v. Schoenbaum, 395 U.S. 906, 89 S.Ct. 1747, 23 L.Ed.2d 219 (1969); SEC v. Gulf Intercontinental Finance Corp., 223 F.Supp. 987, 994-996 (S.D.Fla.1963).

Although there was a showing of only a few instances involving American investors relative to the total sales volume, jurisdiction may not be resolved by a mere tallying of domiciles of shareholders. The relative number of American citizen shareholders vis-a-vis alien shareholders is not determinative of whether United States courts may assert jurisdiction. In this case, focus should be upon appellants’ activities within the United States and the impact of those activities upon American investors. Here, there was a showing of very substantial activities by appellants within the United States and a showing that, as a result of those activities, at least three American investors now hold nearly $10,000 worth of stock for which there appears to be no market and which appellants have declined to redeem although requested to do so. Since the securities laws have always been construed very broadly to promote the remedial purposes behind them, we find unpersuasive the argument that jurisdiction should be declined because only a very few instances of sales to American citizens have been shown, especially given the practical difficulties present in this case. “That the jurisdictional hook need not be large to fish for securities law violations is well established.” Lawrence v. SEC, 398 F.2d 276, 278 (1st Cir. 1968).

An alternate theory of jurisdiction advanced by respondent is based solely upon appellants’ use of the facilities of interstate commerce. If accepted without qualification, there would be jurisdiction in every case regardless of whether American investors were involved. Such a theory is squarely at odds with appellants’ argument of improper extraterritorial application of legislation. Although the “interstate commerce facilities use” theory may have some merit, it is unnecessary to our decision in this case and we, therefore, express no opinion as to its soundness.

Appellants argue that § 30(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78dd(b), protects them from application of that Act. The section provides:

The provisions of this chapter or of any rule or regulation thereunder shall not apply to any person insofar as he transacts a business in securities without the jurisdiction of the United States, unless he transacts such business in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate to prevent the evasion of this chapter.

Since the Commission has not exercised its rule-making power under this section, the argument runs, the appellants’ activities are exempt from regulation. The difficulty with such a position is that it overlooks the key phrase of “without the jurisdiction of the United States.” (Emphasis added.) Appellants’ argument has apparently construed “jurisdiction” to mean “territorial limits.” It is clear from prior decisions, and we so hold, that it has no such meaning. Another difficulty with appellants’ position is that they neglect to take into account the fact that offers and sales were made to United States citizens and that substantial activities were carried on by them in the United States in order to facilitate the sales of securities abroad. We therefore hold that in the circumstances of this ease, § 30(b) has no application.

Appellants also insist that they were denied due process of law by not being allowed a full evidentiary hearing on the question of subject matter jurisdiction. The basic flaw in such an argument is that, at the time of the hearings, they did not offer to call any witnesses or to introduce any evidence on the question. Apparently content to treat the issue as purely a matter of law, appellants merely filed briefs on the question. Twice the trial judge demonstrated his concern that appellants receive due process by denying the SEC’s motions for a preliminary injunction, emphasizing that the appellants should have a “fair opportunity to be heard on the issuance of a preliminary injunction.”

Since we have found that jurisdiction was proper, the only remaining issue is whether the judge abused his discretion in granting a preliminary injunction and in appointing a receiver. Washington Capitols Basketball Club, Inc. v. Barry, 419 F.2d 472, 475-476 (9th Cir. 1969); Jones v. Board of Regents, 397 F.2d 259 (9th Cir. 1968). “An abuse of discretion is a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.” Bowles v. Quon, 154 F.2d 72, 73 (9th Cir. 1946). A prima facie case of the probable existence of fraud and mismanagement was demonstrated by the SEC. Such a showing is sufficient to call into play the equitable powers of the court. SEC v. Keller Corp., 323 F.2d 397, 403 (7th Cir. 1963). The district court has broad powers and wide discretion to frame the scope of appropriate equitable relief. International Manufacturing Co. v. Landon, Inc., 327 F.2d 824 (9th Cir. 1964); SEC v. Keller Corp., supra. Under the circumstances, we cannot say that the trial court abused its discretion.

      . Appellants also contend that the SEC has consistently led the offshore fund community to believe that it did not seek to regulate offshore funds and that, if the SEC now wishes to change its position, regulation of the industry as a whole is the necessary approach rather than “piecemeal litigation.” However, since such an argument does not go to the legal merits of the jurisdictional question, we find it unnecessary to reach that issue,

      . Section 22(a) of the Securities Act of 1933, 15 U.S.C. § 77v(a), and Section 27 of the Securities Exchange Act of 1934, 15 U.S.C. § 78aa, provide generally that district courts of the United States shall have jurisdiction of violations of the securities laws and the SEC rules promulgated thereunder. The SEC charged UFG with violations of Sections 5(a) and (c) and 17 (a) of the Securities Act of 1933, 15 U.S.C. §§ 77e(a) and (c) and 77q(a) ; of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) ; and of Rule 10b-5, 17 C.F.R. § 240.10b-5.

      . For example, in McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), a Texas life insurance company had only one policyholder in California and yet assertion of personal jurisdiction by California was held not to violate due process.

      . SEC v. Capital Gains Research Bureau, 375 U.S. 180, 195, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963); SEC v. C. M. Joiner Leasing Corp., 320 U.S. 344, 350-351, 64 S.Ct. 120, 88 L.Ed. 88 (1943); Prudential Ins. Co. of America v. SEC, 326 F.2d 383, 386 (3d Cir.), cert. denied, 377 U.S. 953, 84 S.Ct. 1629, 12 L.Ed.2d 497 (1964).

      . As of the day this case was heard, appellants had not yet complied with a subpoena duces tecum for a current shareholder list (among other records) ordered by a federal court some time ago in the case of SEC v. USI Group, Inc., No. C-71-1511 (N.D.Cal.1971).

      . The theory is that the United States has a direct interest in the use to which the facilities of interstate commerce are put, and that, because of its plenary power over the use of the facilities of interstate commerce, Congress may outlaw any use, however incidental, which is connected with fraudulent purposes.

      . Given our ruling in this ease, we also find it unnecesary to render an opinion as to the appropriateness of asserting jurisdiction on the ground of a national interest in protecting this country’s reputation abroad or on the ground that the activities of the appellants have an adverse economic impact upon this country’s economy.

      . Schoenbaum v. Firstbrook, 405 F.2d 200, 207-208 (2d Cir. 1968), rev’d on other grounds, 405 F.2d 215 (2d Cir. 1968) (en banc), cert. denied sub nom. Manley v. Schoenbaum, 395 U.S. 906, 89 S.Ct. 1747, 23 L.Ed.2d 219 (1969); Roth v. Fund of Funds, Ltd., 405 F.2d 421 (2d Cir. 1968), cert. denied, 394 U.S. 975, 89 S.Ct. 1469, 22 L.Ed.2d 754 (1969).

      . Affidavits and depositions presented by the SEC showed, among other indications, the following:
      Prospective investors were never furnished with audited financial reports. Although told of the purported assets of the UFG complex, investors were never told of intra-affiliate transactions that had not been negotiated at arms-length, nor of the arbitrary valuation of the assets of UFG-affiliated companies, nor of the deteriorating financial condition of the complex and the inability of affiliates to pay off loans, nor of the foreclosure or threatened foreclosure of various assets, nor of the insolvency of various affiliated companies. United States Investment Service (USIS) investors were told that an investment of $10,000 would yield $383,000 within 20 years and that the effect of delaying investing for one year would result in a $64,000 penalty, even though there was no basis upon which such a representation could be made. United States Investment . Plan (USIP) advertised a guaranteed income through USIS, but failed to disclose how this income could be guaranteed and that the guarantee was not backed by liquid investments. USIP also stated to prospective investors that money invested went into choice securities, bank deposits and California real estate when, in fact, USIP was investing public-investor funds in speculative securities without a market and in undeveloped real estate.
      United Growth Fund (UGF) failed to disclose to prospective investors that the market price for its shares was nonexistent and that the price was arbitrarily fixed by the complex. UGF also failed to disclose that in some instances the value of real estate held by it bad not been determined by arms-length transactions but had been arbitrarily fixed. UGF’s investments, like those of USIP, were primarily in real estate or in securities of speculative companies which could not be traded. UGF’s prospectus failed to disclose the problem of liquidating these assets in time of need. It held itself out as a fund which did not charge a commission and advertised that invested capital would earn profits immediately. It failed, however, to disclose that a commission was in fact paid to USIS and that almost all income UGF derived from the public’s investment in it went back to UFG.

      . We note also that the district court stayed its order for 15 days in order to preserve the appellants’ claims on appeal. Prior to the expiration of the 15-day stay, appellants sought and obtained from this Court an additional 10-day stay of the district court’s order. On the same day this Court granted them the additional stay, appellants caused one of the corporate appellants (Standard Growth Properties, Inc.) to transfer valuable assets to a newly created corporation, which new company immediately filed a petition in bankruptcy. As a result of these facts, this Court vacated its prior stay of the district court’s order.
      The trial judge also may well have been impressed with the finding of a California Superior Court judge in a related lawsuit involving these appellants that they <s . . . are not proceeding in good faith, [in seeking to set aside a default judgment] but, on the contrary, have adopted a consistent program of evasion and confusion in the development of a very considerable series of corporations, interlocking directorates, subsidiary corporations, overlapping stock ownerships, overlapping operative and controlling officers, and confusing management programs. All of these appear to have been and have been, in fact, adopted, developed and devised for the purpose of avoiding responsibility and evading the jurisdiction of any court which might seek to hold them or any of them to their possible trust and/or contract obligations or for liabilities otherwise incurred in their business transactions.” Goddard v. Pollock, No. 60567 (Cal.Super.Ct., Marin Co., Nov. 24, 1971).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Harry William THERIAULT, Defendant-Appellant.
    No. 71-3332.
    United States Court of Appeals, Fifth Circuit.
    Jan. 26, 1973.
    Certiorari Denied May 14, 1973.
    See 93 S.Ct. 2278.

      James W. Tarlton, III, Mobile, Ala. (Court-appointed), for defendant-appellant.
    Charles S. White-Spunner, U. S. Atty., Irwin W. Coleman, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.
    Before RIVES, WISDOM and RO-NEY, Circuit Judges.
   PER CURIAM:

Defendant’s conviction for escaping from the federal unit of the Mobile City Jail, in violation of 18 U.S.C.A. § 751, is affirmed.

The outcome of the trial was for all practical purposes contingent upon the validity of the defense of insanity. We previously reversed a prior conviction for failure of the trial court to authorize a government paid psychiatrist under the provisions of 18 U.S.C.A. § 3006A(e). United States v. Theriault, 440 F.2d 713 (5th Cir. 1971). At the second trial, the prosecution’s psychiatrist testified that, at the time of the escape, defendant was not insane under the standards of Blake v. United States, 407 F.2d 908 (5th Cir. 1969). Defendant’s psychiatrist did not testify to the contrary. The evidence presented a factual issue which the jury resolved against the defendant.

The several points which defendant raises on this appeal are without merit.

(1) The trial court’s instructions, when read as a whole, did not confuse the burden of the Government to establish defendant’s sanity, and the court’s comments on the defense psychiatrist’s testimony were accompanied by clear instructions that any comments he made on the evidence could be disregarded.

(2) Defendant sought to represent himself, but the district judge, familiar from prior trials with defendant’s propensity for courtroom disruption, appointed “stand-by” counsel who participated in portions of the trial, principally at times when the defendant was excluded from the courtroom by the trial judge in an attempt to control defendant’s contemptuous and disruptive conduct. This procedure appears to have been a good common sense way to handle the situation where the defendant was insisting upon representing himself but was obviously incapable of doing so throughout the entire trial.

(3) Although defendant’s theory was that his insanity was based in his fear of being returned to Parchman Prison in Mississippi, where he claims to have been subjected to brutal treatment, we perceive no error in the court’s refusal to require the Government to produce statements of witnesses and reports upon which the Government relied to intervene in a suit against Parchman concerning prison conditions. The Jencks Act specifically states that such materials are not discoverable, 18 U.S.C.A. § 3500(a), and since defendant’s incarceration was in 1960-1965 and 1967, while the Government report concerned acts alleged to have occurred in 1971, the report was not clearly relevant. Although we are not certain that the point is being raised on this appeal, we would hold that the Government reports, both state and federal, were properly excluded from evidence because they were irrelevant.

(4) Defendant having failed to show either surprise or prejudice, there was no abuse of discretion in allowing the prosecution to amend its bill of particulars.

(5) The law is clear that it is unnecessary to trace a prisoner by documentation from the courtroom to the place from which he escaped in order to sustain an escape conviction, so the argument that the evidence was insufficient to show that he was in the Mobile Jail is without merit.

(6) As to the appeal from the contempt sentences which resulted from some hundred occasions when the defendant directly challenged the trial court’s authority with abusive and disrespectful demeanor, we repeat our comment in another case involving this same defendant that “the careful, restrained, moderate and responsible way the Judge —who was not then, nor had he been, engaged in an embroilment or running controversy with Appellant — handled this situation which was then interfering with the efficient operation of the court comported with Illinois v. Allen, 1970, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 and Mayberry v. Pennsylvania, 1971, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532.”

Affirmed.

      . The escape here occurred several days after the defendant had been convicted for another escape from federal custody by breaking out of this same institution. This Court affirmed that conviction but remanded for resentencing. Theriault v. United States, 434 F.2d 212. (5th Cir. 1970). On his appeal from the new sen-tonco, we affirmed. United States v. Theriault, 467 F.2d 486 (5th Cir. 1972).

      . United States v. Harper, 450 F.2d 1032 (5th Cir. 1971).

      . Kyle v. United States, 402 F.2d 443 (5th Cir. 1968).

      . Mitchell v. United States, 404 F.2d 609 (5th Cir. 1968).

      . United States v. Chapman, 455 F.2d 746 (5th Cir. 1972); United States v. DeCicco, 415 F.2d 799 (5th Cir. 1969).

      . United States v. Theriault, supra, note 1.


author: FEINBERG, Circuit Judge:

text:
    Martin FARNARJIAN, Plaintiff-Appellant, v. AMERICAN EXPORT ISBRANDTSEN LINES, INC., Defendant-Appellee.
    No. 437, Docket 72-1598.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 29, 1973.
    Decided Feb. 20, 1973.

      Edward M. Katz, New York City (Abraham E. Freedman, New York City, on the brief), for plaintiff-appellant.
    Stephen K. Carr, New York City (Haight, Gardner, Poor & Havens, Stephen C. Pascal, New York City, on the brief), for defendant-appellee.
    Before ANDERSON, FEINBERG and MULLIGAN, Circuit Judges.
   FEINBERG, Circuit Judge:

Plaintiff Martin Farnarjian appeals from a judgment for defendant American Export Isbrandtsen Lines, Inc. after a trial in the United States District Court for the Southern District of New York before a jury and Judge Richard H. Levet. Refreshingly, Farnarjian raises only one point on appeal, that the district court erred in charging the jury on proximate cause. Although the charge was incorrect, we find that the error did not prejudice plaintiff’s substantial rights. Accordingly, we affirm the judgment of the district court.

I

Plaintiff’s action joined in familiar fashion a negligence claim under the Jones Act, 46 U.S.C. § 688, and a claim of unseaworthiness under general maritime law. Plaintiff had been employed aboard defendant’s vessel as a saloon messman. On November 7, 1968, he slipped and fell on a soapy deck in the officers’ messroom while walking to the pantry to get hot water to clean the deck. The theory of plaintiff’s case was that the action of his superior, the Chief Steward, in unnecessarily spreading soapy water over the entire messroom deck was negligent and also rendered that part of the ship unseaworthy. Defendant claimed that it was plaintiff’s duty to keep the deck clean and dry, that plaintiff had failed to do his own job properly, that the Chief Steward had spread the soapy water on only part of the deck to demonstrate how the job should be done, and that he had exercised due care in so doing.

The trial was on the liability issue only. The key issues concerned what the Chief Steward had done: In his effort to instruct plaintiff by example, had he covered the entire deck with soapy water, as plaintiff claimed, or only a part of it, as defendant claimed; was the Chief Steward negligent, and was the ship unseaworthy because of an unreasonable accumulation of soapy water ? There was no issue as to whether and how plaintiff had fallen. The question was whether this was the fault of defendant or of plaintiff, or of no one at all.

The issue regarding the judge’s charge arose in the following way. Plaintiff requested the court to charge that plaintiff’s burden was to prove that defendant’s negligence “played some part, however slight, in causing the occurrence in which plaintiff was injured.” For that proposition, plaintiff cited Rogers v. Missouri Pacific R. R., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), and DeLima v. Trinidad Corp., 302 F.2d 585 (2d Cir. 1962). The judge did use the “however slight” language once in his charge, though not in reference to causation, and five times said, in effect, that defendant would be liable if its negligence or the unseaworthiness of the vessel was a proximate cause, in whole or in part, of plaintiff’s fall. The “in whole or in part” language also appeared in two interrogatories submitted to the jury, which are reproduced in the margin. However, in the course of explaining various legal terms, the court charged as follows:

Now what is a proximate cause? An act or an omission to act is a proximate cause of an event that is a substantial factor in bringing about that event. Thus, if you find that the plaintiff has proved by a fair preponderance of the credible evidence that the defendant’s acts or omissions were a substantial factor in bringing about the plaintiff’s alleged accident, the requirement of a proximate cause is satisfied. However, a showing of negligence, without proof of a proximate cause, is, as I have attempted to show you, insufficient.
Stating it in another way, a proximate cause is that cause which in a natural and continuous sequence, unbroken by any efficient intervening cause, is a substantial factor in bringing about the injury. [Emphasis added.] '

Proximate cause was not otherwise defined, although, as indicated above, it was frequently qualified by the “in whole or in part” language.

At the conclusion of the charge, and outside the presence of the jury, counsel for plaintiff excepted to the court’s charge, stating:

MR. KATZ: Your Honor defined proximate cause as an act or omission constituting a substantial factor in causing the injury. I am not a hundred per cent sure, but I think that the charge should have been whether it played a part, however small, in causing the injury, not—
THE COURT: We considered that. I had my clerk check it just before we started out today. I can’t agree with you. AH right. I deny the application. That’s all.

The jury was then given special interrogatories. See note 2 supra. The first question combined proximate causation with the issue of negligence, and the second joined it with the issue of unseaworthiness. The jury answered both questions in the negative, returned a general verdict for defendant and was not required to answer the remaining questions, dealing with contributory negligence.

II

Relying on the authorities cited above, plaintiff argues that the court’s definition of proximate cause in this case was wrong. We agree with plaintiff. There is simply no place in a Jones Act charge for the “substantial factor” language in defining proximate cause, however sensible that phrase may be in other contexts. The Jones Act incorporates by reference the language of the Federal Employers’ Liability Act, which makes an employer liable in damages for injury to an employee “resulting in whole or in part from” the employer’s negligence. 45 U.S.C. § 51. The cases have emphasized this language in a variety of contexts. See, e. g., Rogers v. Missouri Pacific R. R., supra, 352 U.S. at 506, 77 S.Ct. at 448 (inquiry, on sufficiency issue, whether “employer negligence played any part, even the slightest,” in the injury); DeLima v. Trinidad Corp., supra, 302 F.2d at 587-588, (error to refuse to charge that employer is liable if his negligence “played any part, even the slightest, in producing an injury to plaintiff”); accord, Ammar v. American Export Lines, Jnc., 326 F.2d 955, 958-959 (2d Cir.), cert. denied, 379 U.S. 824, 85 S.Ct. 48, 13 L.Ed.2d 34 (1964), reh. denied, 379 U.S. 985, 85 S.Ct. 640, 13 L.Ed. 2d 579 (1965); Page v. St. Louis Southwestern Ry., 312 F.2d 84, 87-92 (5th Cir. 1963). To say that an employer’s negligence was a “substantial factor” in causing an employee’s injury is not the same as saying that the negligence played “any part at all.” The two concepts are simply incompatible, and joining them is at best confusing. Therefore, we would be inclined to reverse the judgment below were it not for two of defendant’s arguments.

The first of these is based on the judge’s repeated statements in his charge that plaintiff was required only to show that defendant’s negligence, if proved, was the proximate cause, “in whole or in part,” of the accident, and on the use of the interrogatories, which again repeated this standard. See note 2 supra. Defendant, therefore, asserts that the charge, taken in context, was proper. Defendant also argues that on the facts of this case the error, if any, in the charge could not have made any difference.

There is some force to the first contention, see Domeracki v. Gulf Oil Corp., 202 F.Supp. 89, 91-92 (E.D.Pa.1962), and the second is quite persuasive. In regard to the latter, the real question for the jury in this case was, as indicated above, whether the Chief Steward had acted improperly. There was no question that plaintiff’s fall had been caused by the soapy water on the deck. The issues were whether its presence there was due to negligence of the Chief Steward and whether it rendered the ship unsea-worthy ; and the court carefully and correctly defined negligence and unseaworthiness. Cause was not an issue in the case since no cause of the accident other than the condition of the deck was ever suggested. Under these circumstances, we do not believe that any “substantial rights” of plaintiff were prejudiced by the error in the charge. Fed. R.Civ.P. 61. Plaintiff’s argument to the contrary is that there was conflicting testimony as to whether the Chief Steward had wet the entire deck or just part of it and that if the jury believed the latter, it might have concluded “that, although this condition played some part, however slight, in causing plaintiff’s injury, it did not rise to the level of constituting a substantial factor in bringing it about.” The difficulty with this argument is that if the Chief Steward wet only a small portion of the deck, there was no basis at all for finding negligence or unseaworthiness.

The judgment of the district court is affirmed.

      . The judge charged:
      Under the negligence doctrine, a ship owner is liable for negligence when the owner, knowingly or carelessly, breaches any duty, however slight, to the plaintiff. [Emphasis added.]

      . 1. Has Plaintiff proved by a fair preponedrance of the credible evidence that defendant was negligent because of an unreasonable accumulation of soapy water on the saloon messroom deck on board the SS Exchester as the same existed on November 7, 1968 and that such negligence was a proximate cause, in whole or in part, of the accident sustained by plaintiff on November 7, 1968?
      Yes
      No
      2. Has plaintiff proved by a fair preponderance of the credible evidence that the SS Exchester was unseaworthy because of an unreasonable accumulation of soapy water on the saloon messroom deck as the same existed on November 7, 1968 and that such unseaworthiness was a proximate cause, in whole or in part, of the accident sustained by plaintiff on November 7, 1968?
      Yes
      No

      . Throughout the transcript, the word “proximate” frequently appears as “approximate.” The parties agree that this is a reporter’s error. We have not perpetuated it.

      . See 1 Committee on Pattern Jury Instructions, Ass’n of Supreme Court Justices, New York Pattern Jury Instructions — Civil, PJI 2:70, at 148-49 (B. Meyer ed. 1965); id. at 57-58 (Supp. 1971).

      . Except for plaintiff’s contributory negligence, which the jury never relied upon according to its answers to the interrogatories.

      . Brief for Plaintiff-Appellant, at 11.


author: FREY, District Judge: KOELSCH, Circuit Judge

text:
    John JANSKY, stockholder in Def. Standard, who is suing Individually on his own behalf and on behalf of Standard and all other stockholders who are not defendants herein, Plaintiff-Appellants, v. O. N. MILLER, as Director, Chairman of the Board of Directors, Chief Executive Officer, all of Standard; Standard Oil Company of California, a corporation (“Standard”), Defendants-Appellees.
    No. 26171.
    United States Court of Appeals, Ninth Circuit.
    Feb. 5, 1973.
    Koelsch, Circuit Judge, concurred specifically and filed opinion.

      John Jansky, Esq., in pro. per.
    Noble K. Gregory (argued), Anthony P. Brown, of Pillsbury, Madison & Su-tro, San Francisco, Cal., for defendants-appellees.
    Before KOELSCH and ELY, Circuit Judges, and FREY, District Judge.

       Honorable William C. Frey, United States District Judge, District of Arizona, sitting by designation.

   FREY, District Judge:

The plaintiff, John Jansky, filed his own complaint against the defendants-appellees. The defendants moved to dismiss the complaint upon the grounds that it failed to state^ a claim upon which relief could be granted. The District Court granted the motion. The defendant refused to amend his complaint, choosing to stand on it; judgment was entered and plaintiff appealed.

Plaintiff’s whole case before this Court is stated on page 7 of his opening brief:

“In a nutshell, the proxy solicitation material of Miller and Standard — now before this Court — violates numerous provisions of the SEC Rule 14a, and thereby Section 14(a) of the 1934 SEC Act. The entire proxy solicitation is nothing but a fraudulent scheme to give Miller proxies to reelect himself, by means of deliberate suppression of facts which Miller was required to disclose. The non-disclosure deprived stockholders of an informed choice whether or not to remove Miller instead of reelecting him. The District Court was in error when dismissing the action. There being no facts in dispute, the decision below should be reversed, and the District Court directed to enter judgment in favor of stockholder.”

This Court’s conclusion, even more briefly summarized, is that plaintiff’s complaint and his briefs fail to establish any violations of SEC Rules or the “1934 SEC Act”. He has failed to state any claim upon which relief could be granted. The District Court properly dismissed his complaint. Plaintiff sought to have all proxies solicited by Standard (and presumably the election at which they were voted) voided because the solicitation material failed to include his personal feud-type charges against defendant Miller. A cause of action filed in California Superior Court contains twenty-seven (27) causes of action which are the basis of the present resolution.

This case involves a proxy statement sent out by the management of Standard Oil Company of California, hereinafter referred to as Standard. Plaintiff-appellant sought to have the following resolution placed in the proxy statement mailed out by Standard:

“Resolved that, O. N. Miller be removed from office of Director of the Company, not re-elected, and disqualified to serve as Director of the Company.”

Standard refused to insert the above resolution in the proxy statement on the grounds that the resolution was an election matter and Standard had the right to exclude it under Rule 14a-4(b), Security and Exchange Commission Regulations, (17 C.F.R. 240.14a-4(b) and 8(c)(2) ).

Standard, however, did include in its proxy under “Other Matter”, the following: “The Company has been advised by a stockholder that he intends to present two proposals to the meeting, if either or both of such proposals, is in fact presented, and is in order, the proxy holders will not vote proxies solicited hereby on such proposals.” This appears to have been done as the result of a ruling in the form of a letter from the Securities and Exchange Commission, which letter was included in plaintiff’s complaint, as an exhibit. Standard thereby did something it did not have to do, i. e., inform the stockholders that the appellant intended to present two matters, one of which is the above resolution. But in so informing them, it failed to fully inform the stockholders of the issue by omitting any mention of the nature of plaintiff’s proposals. Even conceding, arguendo, that Standard’s oblique reference to the Resolution in the proxy material was somewhat misleading, we are convinced, in Mr. Justice Harlan’s words, that “the defect [did not have] ... a significant propensity to affect the voting process .” Mills v. Electric Auto-Lite Co., 396 U.S. 375, 384, 90 S.Ct. 616, 621, 24 L.Ed.2d 593 (1970). As amplified by Judge Friendly in General Time Corp. v. Talley Industries, Inc., 403 F.2d 159, 162 (2d Cir. 1968), cert. denied, 393 U.S. 1026, 89 S.Ct. 631, 21 L.Ed.2d 570 (1969), this test of materiality “is whether, taking a properly realistic view, there is a substantial likelihood that the misstatement or omission may have led a stockholder to grant a proxy .” contrary to the manner in which he would have in the absence of the misstatement or omission.

If we take what seems to be plaintiff’s view, that Standard was soliciting proxies to abstain from voting on plaintiff’s proposals and that Rule 14a-4 and 14a-8 required more than Standard set out in their form of proxy and proxy statement and therefore Standard’s proxy solicitation statement was misleading under Rule 240.14a-9, plaintiff still has not stated any claim because plaintiff did not seek or solicit any proxies himself although he contends he filed the schedule called for in Rule 14a-ll. Further, if Standard had not inserted any statement concerning the plaintiff’s proposal, it could have voted the proxies against his proposal instead of abstaining. It is undisputed that the plaintiff’s resolution is an election matter. Such matter need not be included in the proxy statement, Rule 240.14a-8(a).

Plaintiff contends such election matter must be included in the proxy statement by virtue of the application of Rule 14a-4(a) and 14a-4(b)(l). Thus, he argues, it must be identified clearly and impartially and separately. Rule 14a-4(a), where applicable at all, merely relates to identifying matters “intended to be acted upon, whether proposed by the management or by security holders.” Since the proxy statement clearly indicated no action was to be taken on plaintiff’s proposals, further identification was not necessary and the rule not applicable.

Rule 14a-4(b)(l) is likewise inapplicable, it provides:

“Means shall be provided in the form of proxy whereby the person solicited is afforded an opportunity to specify by ballot a choice between approval or disapproval of each matter or group of related matters referred to therein as intended to be acted upon, other than elections to office. A proxy may confer dis-cretionai'y authority with respect to matters as to which a choice is not so specified provided the form of proxy states in bold face type how it is intended to vote the shares represented by the proxy in each case.” (Emphasis supplied).

Standard initially felt that plaintiff’s proposal was submitted under Rule 240.-14a-8 and therefore complied with Rule 240.14a-8(d) as shown by the exhibits attached to plaintiff’s complaint. Thus, if we take the view as the Securities and Exchange Commission apparently did in its said letter of March 10, 1970, that plaintiff’s proposals fall within the scope of Rule 14a-8, then Rule 14a-8(e)(2) comes into play and justifies the exclusion of plaintiff’s proposals. It appears, in spite of plaintiff’s denials in his brief in this case and his argument submitted to the trial judge, that plaintiff has exhibited a personal feud with defendants.

Plaintiff’s opening brief presents seven questions which he feels are pertinent.

There is no need to detail them here nor to treat them separately. They are all resolved by the foregoing discussion except whether Rule 14a-6 has been complied with.

To dispose of this issue we must point out that for purposes of this case there are two types of Standard stockholders. One type consists of members of Standard’s Stock Plan for Employees; the other type consists of stockholders not members of such Stock Plan. Both types received Standard’s proxy statement. However, the Stock Plan members received a proxy card and letter from the trustee of such Stock Plan, Crocker Citizens National Bank, which differed from that sent out by Standard to the stockholders who were not members of the Stock Plan.

Plaintiff contends that Standard is responsible for the material sent out by Crocker Citizens National Bank, and that such material has not been filed with Pacific Coast Stock Exchange and such material otherwise violates SEC Rule 14a-9.

The conclusions of plaintiff with respect to these allegations are not supported by the regulations he cites. However, plaintiff fails to state any cause of action by virtue of his allegations with respect to these matters. He hasn’t alleged any harm or damage to anyone by virtue of any such acts of Crocker, assuming only for argument that Crocker in some way violated a pertinent rule or law.

There is nothing in the record to indicate any control by Standard over Crocker nor anything by which we can conclude Standard is responsible for what Crocker did or didn’t do. Further, under Rule 14a-2 Crocker’s solicitations are exempt.

Whether Crocker did or did not file anything with the Pacific Coast Stock Exchange is not pertinent or material to the issue before this Court which is whether plaintiff’s complaint against these defendants states a cause of’ ’action upon which relief may be granted. Crocker is not a party to this action.

This appeal simply involves whether plaintiff’s complaint states a proper claim. From a close review of the complaint, giving full consideration to plaintiff’s arguments, it is not clear what cause of action plaintiff feels he has upon which relief may be granted. His complaint contains many allegations, generally personal in nature; however, he alleges nothing which could be of significant impact on the voting process. There are no allegations relevant to actionable harm or damage or loss to himself or anyone else. His complaint is deficient within the purview of Mills v. Electric Auto-Lite Co., (1970) 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593, and J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 which he cites in his opening brief.

Nothing contained in plaintiff’s briefs would justify treating his complaint as stating a valid cause of action.

Judgment affirmed.

KOELSCH, Circuit Judge

(concurring specially):

The court points out and relies upon several bases for decision. It may well be that each is valid. However, I prefer to rest my concurrence upon one which I consider to be incontrovertibly disposi-tive and to express no view concerning any of the others.

As the court indicates, and as I read the relevant rules and regulations of the S.E.C., the solicitor of a proxy must duly advise the shareholder of the power he seeks; he need not state what he does not seek. Consistent with this interpretation, Rule 14a-4(a)(3) (Sec. 240.14a-4) provides in terms that the proxy form must “identify clearly and impartially the subject matter with respect to which the power has been granted.” Standard and Miller complied with these administrative requirements; surely they may not be faulted for gratuitously doing more.


author: AINSWORTH, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Gene Roy TREXLER, Defendant-Appellant.
    No. 72-2889
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 13, 1973.
    Certiorari Denied June 4, 1973.
    See 93 S.Ct. 2759.

      William F. Russell, Lubbock, Tex. (Court-appointed), for defendant-appellant.
    Frank D. MeCown, U. S. Atty., W. E. Smith, Asst. U. S. Atty., Fort Worth, Tex., for plaintiff-appellee.
    Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   AINSWORTH, Circuit Judge.

This is an appeal from a conviction for making false statements to a federally insured bank to influence the action of the bank, 18 U.S.C. § 1014 (1971), in which appellant Gene Roy Trexler raises three points, two about jury instructions on intent and the third on the failure of the Government to prove a fact mentioned in the indictment. We affirm.

In operating a used car business Trex-ler financed the purchase of used cars by pledging the title of each car to a bank insured by the Federal Deposit Insurance Corporation. When he sold a ear, the bank would return the title and he would transfer it to the purchaser. Then by agreement Trexler was obliged to pay the bank with the proceeds from the sale.

On April 6, 1972, Trexler was indicted on seven counts when he did not turn over the proceeds of several sales to the bank. Two of the counts were dismissed prior to trial, and he was convicted on the other five counts.

In point one the appellant emphasizes that the crime charged requires that the defendant make a false statement, so he contends that jury instructions should have limited the jury’s consideration to affirmative acts. We find that it was proper, however, for the District Judge to instruct the jury that for the purpose of deducing the defendant’s intent to commit the crime, the jury could consider what “a defendant does or fails to do.” See United States v. Wilkinson, 5 Cir., 1972, 460 F.2d 725, 730. Appellant’s reliance on United States v. Diogo, 2 Cir., 1963, 320 F.2d 898, is misplaced. In that case the Court concluded that a prosecution for false representations, as opposed to concealment, cannot “be grounded upon the omission of an explanation.” 320 F.2d at 905. Unlike Diogo, the District Judge in the present case required the jury to find that defendant made a false statement before it could find him guilty. At one point the District Judge said the jury must find that the defendant “committed the act of making a false statement.” At another point the Judge said, “The intent to mislead or defraud the bank and the falsity of the statement must be present at the time the statement is made or communicated to the bank.” We believe the instructions were adequate under the circumstances.

In point two appellant complains about the following jury instruction made by the Trial Judge: “Now, it is reasonable to infer that a person ordinarily intends the natural and probable consequences of his knowing acts.” While we do not permit a jury charge which shifts the burden of proof to the defendant through the use of a presumption, this Circuit does approve an instruction permitting the jury to infer intent from the natural and probable consequences of a defendant’s acts. United States v. Wilkinson, 5 Cir., 1972, 460 F.2d 725, 729-31; Estes v. United States, 5 Cir., 1964, 335 F.2d 609, 615-617, cert. denied, 379 U.S. 964, 85 S.Ct. 656, 13 L.Ed.2d 559, reh. denied, 380 U.S. 926, 85 S.Ct. 884, 13 L.Ed.2d 814 (1965); Mann v. United States, 5 Cir., 1963, 319 F.2d 404, 409; Harrison v. United States, 5 Cir., 1960, 279 F.2d 19, 24-25.

The final point is relevant to only two of the five counts. In the indictment Trexler allegedly told the bank he would “pay to the bank the amount of the value received by the defendant from the alleged purchaser of such automobile, whereas, in truth and in fact, after obtaining . . . title [from the bank], the defendant did not pay to the bank the value of such automobile, and the bank was therefore defrauded of the value of the above described automobile.” For the loans involved in these two counts the bank was not actually defrauded, because the bank itself eventually covered its loss by seizing funds which the defendant had in another account in the bank. As a general rule, the Government cannot broaden an indictment so as to convict the defendant on different facts from those charged in the indictment. Stirone v. United States, 361 U.S. 212, 215-216, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960); Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887); United States v. Davis, 5 Cir., 1972, 461 F.2d 83, 90-91 (1972). But the Government need not prove all facts charged in the indictment as long as it proves other facts charged in the indictment which do satisfy the essential elements of the crime. Stevens v. United States, 6 Cir., 1953, 206 F.2d 64, 66. In the present case, the' indictment charges sufficient other facts to satisfy the statute under which the defendant was convicted. The statute, 18 U.S.C. § 1014, only requires proof of a false statement made “for the purpose of influencing in any way the action” of the bank. The indictment charges that the defendant made a false statement “for the purpose of influencing the action of such bank in releasing from the bank’s possession to the defendant a title.” This was sufficient. Accordingly, the Judge properly instructed the jury that “[ajctual loss is not an element of the offense.”

Affirmed.

      . At other places the Judge elaborated on the failure to act:
      In determining the issue as to intent, the jury is entitled to consider any statements made and acts done or omitted by the accused. . . .
      . . . The jury may draw the inference that the accused intended all the consequences which one standing in like circumstances and possessing like knowledge should reasonably have expected to result from any intentional act or conscious omission.

      . To assure that the burden of proof remained with the Government, the District Judge gave the following instructions:
      Now, the burden of proving a defendant guilty beyond a reasonable doubt of every essential element of the crime charged rests upon the government. This burden is upon the government throughout the trial. It never shifts.


author: CHOY, Circuit Judge:

text:
    1st Lt. Richard G. CONWAY, M.D., Petitioner-Appellant, v. Lt. General A. D. SURLES, Commanding General, Sixth United States Army, Presidio of San Francisco, California; Hon. Robert Froehlke, Secretary of the Army, Respondents-Appellees.
    No. 72-1050.
    United States Court of Appeals, Ninth Circuit.
    Feb. 5, 1973.
    Rehearing Denied March 2, 1973.

      Michael H. Weiss (argued), John T. Hansen, of Hansen, Jaffe & Weiss, San Francisco, Cal., for petitioner-appellant.
    Stephen D. Petersen, Capt., Staff Army Judge Advocate (argued), San Francisco, Cal., James L. Browning, U. S. Atty., F. Steele Langford, John Coo-ney, Asst. U. S. Attys., San Francisco, Cal., for respondents-appellees.
    Before TRASK and CHOY, Circuit Judges, and ANDERSON, District Judge.

       The Honorable J. Blaine Anderson, United States District Judge for the District of Idaho, sitting by designation.

   CHOY, Circuit Judge:

Conway appeals from the district court’s denial of a petition for a writ of habeas corpus. Conway, a physician, requested that his draft board classify him as a conscientious objector. The request was denied and he was classified I-A on May 25, 1971. That decision was affirmed by the appeals board. Conway contended that the classification was erroneous, but since he had exhausted all appeals within the Selective Service System he was ordered for induction.

Attached to the induction order was a letter from the Army informing Conway that if he desired to volunteer for a commission as a reserve commissioned officer in the Army Medical service, he could apply for it. Conway’s induction was held in abeyance while he considered applying for the commission. Conway decided to apply for the commission rather than be inducted. On November 30, 1971 he accepted the appointment tendered by the President through the Army and took the oath of office.

Six days later Conway filed the petition for a writ of habeas corpus alleging that he was in the custody of the U. S. Army unlawfully by reason of his improper classification by the Selective Service System. The district court dismissed the petition after concluding that section 10(b)(3) of the Selective Service Act [50 U.S.C.App. § 460] precluded any judicial review in this case. The relevant portion of the Act states:

“No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work.”

The district court concluded that by accepting the commission Conway had neither “affirmatively or negatively” responded to the order to report for induction and therefore was barred from the use of the writ. We disagree with this interpretation of § 10(b)(3) because it is inconsistent with the Congressional intent behind the statute.

The Supreme Court has in the past decided that this section cannot sustain a literal reading. Oestereich v. Selective Service Board No. 11, 393 U.S. 233, 238, 89 S.Ct. 414, 417, 21 L.Ed.2d 402 (1968). However, the difficulties presented by the imprecision of the draftsman’s language can be resolved by a review of the section’s background and legislative history. Oestereich, supra at 246, 89 S.Ct. 414 (Stewart, J., dissenting) . Congress passed this section in an attempt to prevent the judiciary from entering into the selective service classification processes at a premature stage. “Both the House and Senate committees were ‘disturbed by the apparent inclination of some courts to review the classification action of local or appeal Boards before the registrant had exhausted his administrative remedies.’ ” Oestereich, supra at 244, fn. 7, 89 S.Ct. at 420 (Harlan, J., concurring).

Thus “§ 10(b)(3) is purely procedural, specifying when substantive rights may be asserted.” Oestereich, supra at 249, 89 S.Ct. at 423, (Stewart J., dissenting). Congress inserted the clause “after the respondent has responded either affirmatively or negatively to an order to report for induction” to establish at what time it would be appropriate for a court to intervene. Congress was not attempting to limit the scope of judicial review. The statute only limits preinduction review.

Conway did exhaust his administrative remedies. Granting his habeas corpus petition would not do violence to the finality provision embodied in § 10(b)(3). Conway’s acceptance of a commission after the receipt of an induction order was an affirmative response to the induction order and judicial review of his classification at this time is not precluded by § 10(b) (3).

However, this does not necessarily mean that his petition should be granted. A writ of habeas corpus is available only when a petitioner is being unlawfully detained. The Army contends that even if Conway’s induction order were invalid, it could lawfully continue to detain him. The Army maintains that the basis for its detention is not the allegedly invalid induction order, but rather Conway’s voluntary application for and acceptance of a commission.

Conway, however, contends that the Army would not have tendered him a commission had he not been selected for induction; nor would he have accepted the commission, but for the compulsion of the induction order that he contends is illegal.

Army regulations seem to support Conway’s first contention that the tender of his commission was contingent on the existence of an outstanding, valid induction order. If so, then we think there would be a sufficient connection between his present detention and his induction order, so that an invalid induction order would taint his detention.

On the record before us we cannot determine that the Army did in fact rely upon the legality of the induction order in effecting the tender of Conway’s commission. Therefore, we remand the case so that the district court can make this determination. In the light of our disposition of this case it is unnecessary for us to pass on Conway's alternate contention that he would not have accepted the commission but for the compulsion of the induction order; but if necessary this issue could also be considered on remand.

Reversed and remanded.

      . “No one, we believe, suggests that § 10 (b) (3) can sustain a literal reading. For while it purports on its face to suspend the writ of habeas corpus as a vehicle for reviewing a criminal conviction under the Act, everyone agrees that such was not its intent.” Oestereich, supra, at 238, 89 S. Ct. at 417.

      . The legislative history clearly shows Congress’s motivation in enacting this section. The Senate Armed Services Committee stated that “[u]ntil recently, there was no problem in the observance of the finality provision. In several recent cases, however, district courts have been brought into selective service processing prematurely. The committee attaches much importance to the finality provisions and reemphasizes the original intent that judicial review of classifications should not occur until after the registrant’s administrative remedies have teen exhausted and the registrant presents himself for induction.” (emphasis added) S.Rep.No.209, 90th Cong., 1st Sess., 10 (1967).
      A similar statement of intent was included in the report of the House Armed Services Committee:
      “The committee was disturbed by the apparent inclination of some courts to review the classification action of local or appeal boards before the registrant had exhausted his administrative remedies. Existing law quite clearly precludes such a judicial review until after a registrant has been ordered to report for induction and has responded either affirmatively or negatively to such an order. In view of this inclination of the courts to prematurely inquire into the classification action of local boards, the committee has rewritten this provision of the law so as to more clearly enunciate this principle. The committee was prompted to take this action since continued disregard of this principle of the law by various courts could seriously affect the administration of the Selective Service System.” H.R.Rep.No.267, 90th Cong., 1st Sess., 30-1 (1967), U.S. Code Cong. & Admin.News 1967, p. 1333.

      . In certain extreme cases such as Oestereich, supra the statute has been construed so as not to preclude even pre-induction review. But it is clear that pre-induction review would not have been permissible in the instant case. Fein v. Selective Service Board. No. 7, 405 U.S. 365, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972).

      . Army Regulation: No. 601-54, Processing and Commissioning of Medical Specialist Registrants. Ch. 1, 1-1. Purpose. This regulation prescribes the pro-eedures to be followed by area commanders and by The Surgeon General as Executive Agent in processing doctors of medicine all of whom are hereinafter referred to as medical specialists and who are liable for induction into the Armed Forces under the Military Selective Service Act of 1967 . . . (emphasis supplied). See also paragraphs 1-3, 2-1, 2-6 (b), 3-3, 3 — 4 and 3-8 which also tend to support the conclusion that the offer of the commission to Conway was significantly intertwined with the disputed induction order.

      . The district court will of course also have to find that Conway’s classification was improper before his petition could be granted. We do not consider this aspect of the case.


author: LIVELY, Circuit Judge.

text:
    John Wayne REEVES and Sherry Marie Reeves, wife, Plaintiffs-Appellants, v. POWER TOOLS, INC. and Omark Industries, Inc., Defendants-Appellees.

      No. 72-1558.
    United States Court of Appeals, Sixth Circuit.
    Feb. 22, 1973.

      James F. Schaeffer, Memphis, Tenn., for plaintiffs-appellants.
    Leo Bearman, Jr., and W. Frank Crawford, Memphis, Tenn., for defendants-appellees; Law Firm of Leo Bear-man, Leo Bearman, Jr., Memphis, Tenn., and James E. Leary, W. Frank Crawford, Thomason, Crawford & Hendrix, Memphis, Tenn., on brief.
    Before PECK and LIVELY, Circuit Judges, and MORTON, District Judge.

       Honorable L. Clure Morton, United States District Judge for the Middle District of Tennessee, sitting by designation.

   LIVELY, Circuit Judge.

This diversity action was filed by appellants Reeves to recover for serious personal injuries which the husband suffered when a cartridge exploded in a powder-activated tool which he was using in his employment as a sheet metal worker. Reeves was employed by Southern States Contractors, which is not a party to this action, and had several years’ experience using various types of power tools. One of the appellees is Power Tools, Inc., (Power Tools) which owned the tool being used by John Reeves and had furnished it to Reeves’ employer in consideration of an agreement by the employer to purchase all its requirements of studs and cartridges from Power Tools. At the conclusion of the case for the plaintiffs the District Court directed a verdict in favor of Omark, and the case proceeded with Power Tools as the only defendant. After lengthy deliberation the jury was unable to make a verdict and was discharged. Appropriate motions were made by the various parties, and upon reconsideration the court denied the plaintiffs’ motion for a new trial as to Omark and granted the motion of Power Tools for judgment notwithstanding the verdict. Mr. and Mrs. Reeves have appealed both rulings.

The group of which Reeves was a part was engaged in hanging ducts on a building at Memphis State University when the injury occurred. Reeves testified that he noticed one of the hangers was crooked and determined that it would be necessary to replace it. The procedure used involved standing on a stepladder and placing a new stud in the ceiling. This was accomplished by use of a powder-activated tool manufactured by Omark and referred to by the witnesses as a “gun”. The tool resembled a grease gun in appearance and was used to make strong fastenings directly to concrete or steel without the necessity of drilling holes. It had a firing chamber similar to that of a rifle or pistol and used specially loaded blank cartridges. The gun was held flush against the surface to which a fastening was being made and special fasteners were propelled into the concrete or steel. When the muzzle end was pressed against the surface, this cocked the mechanism, and a trigger was used to fire it. The tool was loaded by opening or “breeching” it where it was hinged, between the handle and the firing chamber. The fastener or stud was then inserted, followed by the cartridge, and the tool was closed before use. The cartridges were rim fired and there was an automatic extractor which partially removed the spent shell so that the operator could complete removal by hand.

Appellant John Reeves testified that he climbed a stepladder, loaded the gun with a stud and a shell, pressed it against the ceiling and pulled the trigger. Instead of firing, the gun just “clicked”. He then opened it and discovered that the cartridge was still in the chamber and the extractor had by-passed it and was behind the live shell. He testified that he tried to close the gun, “bumping” it once or twice and that as he reopened it the shell went off. He testified that he was never able to close it completely after the misfire occurred.

The particular tool involved in the accident had been loaned by Power Tools to appellant’s employer on August 20, 1969, and had been purchased from Omark by Power Tools on April 17, 1967. It was the only gun being used on this particular job and two or three men were using it. The workmen had earlier experienced some difficulty with the gun and a field representative of Power Tools had used sandpaper or emery cloth inside the chamber to break up carbon deposits and had cleaned it at the work site. The tool was locked up at night in a “gang box”. When further trouble developed, the same representative picked up the tool one Friday afternoon and took it to the shop of Power Tools. He completely disassembled the gun and cleaned it throughly before returning it the following Monday morning. Ten working days later the accident occurred. This employee of Power Tools testified that it was his job to keep the tools of his employer repaired and in service until some part became worn, at which time they were taken out of service.

Omark delivered printed safety instructions, including procedures in case of misfire, with every new tool. However, Power Tools never loaned new tools and the president of Southern States as well as Reeves and his immediate supervisor testified that no one had ever given them any written safety instructions. No mention of misfire procedures was made to Reeves, who said he had been told only that the tools were dangerous and he should be careful. He had never experienced a misfire in nearly seven years of using powder-activated tools and had never seen an extractor bypass a cartridge, leaving it in the chamber. The printed safety rules directed that in case of misfire, the operator wait fifteen seconds, then pull the trigger again. If the tool did not fire the second time, he was to keep it in place against the surface, open the breech, remove the cartridge and dispose of the cartridge by putting it in a bucket of water. Appellant testified that when the gun misfired, he removed the tool from the ceiling and opened it almost immediately and then attempted to force it closed with the live shell still in the chamber and the extractor above it.

A number of experts testified. Two who were called by the plaintiffs stated that they had taken the tool apart after the accident and found several abnormalities in it. The chamber was “bell-mouthed” or larger at the top than at the bottom and the extractor shaft had a slight bow in it, giving it more play than normal. They both testified that it was possible to fire a cartridge which had been bypassed by slamming the extractor against the rim. It was agreed, however, that the spring on the extractor would not return it to its normal position with sufficient force to ‘cause firing. These two witnesses stated that the enlargement of the chamber and bow in the extractor rod caused the extractor to fail to eject the live cartridge, but the cause of the misfire itself was not shown.

In granting the motion for a directed verdict as to Omark, the District Court held that the plaintiffs had failed to prove the absence of any tampering or opportunity for tampering with the tool and cartridge after they left Omarlt’s control. To recover from a manufacturer under the doctrine of strict liability a plaintiff in Tennessee must show that the product was in a harmful condition when it left the manufacturer’s control. Ford Motor Company v. Lonon, 217 Tenn. 400, 420, 398 S.W.2d 240 (1965). In the Lonon case, the Supreme Court of Tennessee adopted Section 402A of 2 Restatement (Second) Torts (1965). If there is no direct proof of its condition when it left the manufacturer’s control the burden is on the plaintiff to show by a clear preponderance of the evidence that there was no opportunity for the product to have been tampered with after it left such control. Barbeau v. Roddy Manufacturing Company, 431 F.2d 989 (6th Cir. 1970); Coca-Cola Bottling Works v. Crow, 200 Tenn. 161, 166, 291 S.W.2d 589 (1956). The court ruled that the plaintiffs had failed to sustain this burden of proof.

The second theory on which the case had proceeded against Omark was the failure of a duty to warn of the dangers associated with the use of the tool. Neither Reeves nor his immediate supervisor ever saw the printed instructions or received any specific warning about misfires. In Trimble v. Irwin, 59 Tenn.App. 465, 441 S.W.2d 818 (1968), the Tennessee Court held:

“An adequate warning is one calculated to bring home to a reasonably prudent user of the product the nature and the extent of the danger involved in using the product.” 441 S.W.2d at 822.

The District Court found that when Omark delivered to Power Tools the printed instructions with respect to procedures to be followed in event of a misfire, it had a right to expect the warnings to be passed along to the ultimate user.

We believe the trial judge properly disposed of the claims against Omark. There was not sufficient evidence of a defect in the cartridge which misfired and then exploded to justify submitting any issue to the jury related to it. With respect to the tool, or “gun”, the record shows that it was not new, that it had been serviced at least once by Power Tools and that the defects were more likely related to long use than to a harmful condition when it left Omark’s control. There being no evidence of its condition at that time, appellants were required to show a lack of opportunity for tampering thereafter. This they did not do. We also agree that Omark adequately discharged its duty to warn of the dangerous nature of the tool by distributing printed instructions complete with, diagrams and illustrations with each new tool that it sold or delivered. Thus, looking at the evidence and reasonable inferences in the light most favorable to appellants, DeGarmo v. City of Alcoa, 332 F.2d 403 (6th Cir. 1964), Judge Wellford properly concluded that no jury issue existed as to the appellee Omark.

The claim against Power Tools is more difficult. There is no dispute that Power Tools furnished the tool involved in the accident, that it never delivered to Reeves or his superiors at Southern States the printed safety rules prepared by Omark and that its employee cleaned and serviced the tool approximately ten days before the accident. This employee testified that he did not notice that the chamber was bell-mouthed or that the extractor shaft was bowed and he had no instrument to measure the chamber. After inspection he determined that the tool was “Okay” and took it back to Reeves on the job site. One of the complaints which had caused the representative of Power Tools to examine the tool was that the extractor was not working properly, that at times it was ripping the rim off the used cartridges.

The District Court held that even if these acts and omissions of Power Tools constituted negligence, this negligence created a “static” condition of danger which was safe until the appellant tried to bump or slam the chamber shut and then reopened it. The following language from Friendship Telephone Co. v. Russom, 43 Tenn.App. 441, 450, 309 S.W.2d 416, 421 (1958), was cited in support of this finding:

“Some cases do draw a distinction between the ‘cause’ of harm and the ‘condition’ in which the harm happened. It is said that if defendant’s act created only a passive, static condition which made the harm possible, he is not liable. .
“So far as the distinction has any validity at all, it must refer to the type of case where the forces set in operation by the defendant have come to rest in a position of apparent safety, and some new force intervenes. But even in such cases, it is not the distinction between ‘cause’ and ‘condition’ which is important, but the nature of the risk and the character of the intervening cause.”

The judge concluded that appellant’s “injuries were the result of his own conscious act which was sufficiently unpredictable so as not to come within the scope of defendant Power Tools’ reasonable apprehension.” He did not hold that Reeves’ conduct in “bumping” and reopening the tool constituted contributory negligence, but that it constituted an intervening act which was independent and conscious. Ford Motor Co. v. Wagoner, 183 Tenn. 392, 192 S.W.2d 840 (1946). Although Reeves had some seven years experience with power tools and had owned several firearms, he had never been confronted with a misfire or instructed on safety precautions in the event of such a happening. Although he knew that there was a general danger in handling powder-activated tools, the record does not warrant a holding that he must have recognized the precise danger which confronted him when his tool failed to fire.

The defense of independent intervening act does not absolve a tort feasor from liability unless the forces set in operation by him have come to rest in a position of apparent safety before the new force intervenes. Power Tools, as supplier of the tool to appellant’s employer had a duty at least to pass on the warning of danger it had received from the manufacturer. 2 Restatement (Second) Torts § 388 (1965); Trimble v. Irwin, supra, at 822. As the owner-lender of the tool who undertook to maintain it in good working order, Power Tools cleaned and tested it approximately ten days before the accident and did not notice the defects which were found to exist upon expert examination of the tool after the accident.

Judgment notwithstanding the verdict is not proper unless the evidence is such that there can be but one reasonable conclusion as to the proper verdict. It should not be granted if there is a conflict in the evidence, and credibility of evidence is not to be considered in passing on a motion for judgment. Greer v. United States, 408 F.2d 631 (6th Cir. 1969); Moore’s Federal Practice, Par. 50.07(2) (Second Edition). We believe that if this test is applied to the record in the present case there is evidence from which a properly instructed. jury could find that there existed a duty upon Power Tools to warn appellant of the danger of improper handling of the tool following a misfire. Furthermore, a jury could properly find that the defects in the tool should have been discovered by Power Tools when it had the tool in its possession for maintenance. 2 Restatement (Second) Torts (1965) § 403. The jury could further have found that failure to discover the defects created the condition which led directly to appellant’s injury, and that the forces set in motion by the failure to warn of the very danger which appellant faced when the tool misfired had not become static, but were still operating when he undertook to reactivate the tool by forcing it closed. In short, we find that jury issues existed as to whether the acts or omissions of Power Tools were such as to create liability to appellant and also whether the conduct of appellant after the tool misfired constituted an intervening act which was independent and conscious. Ginsburg v. Insurance Company of North America, 427 F.2d 1318 (6th Cir. 1970). Upon another trial, if the evidence is substantially the same, these issues should be presented to the jury along with all other issues properly developed.

The judgment is affirmed as to the appellee Omark Industries, Inc. and reversed as to the appellee Power Tools, Inc. A new trial is granted as to all issues between appellants and appel-lee Power Tools, Inc. Appellants shall pay the costs taxed in their appeal from the judgment in favor of Omark and ap-pellee Power Tools, Inc. shall pay the costs taxed in the appeal from the order granting it judgment notwithstanding the verdict.

      . Sec. 402A. Special Liability of the Seller of Product for Physical Harm to User or Consumer
      (1) One who sells any product in a defective condition unreasonably dangerous to the user or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if
      (a) the seller is engaged in the business of selling such a product, and
      (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
      (2) The rule stated in Subsection (1) applies although
      (a) the seller has exercised all possible care in the preparation and sale of his product, and
      (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

      . § 403
      “Chattel known to be dangerous — One who as an independent contractor makes, rebuilds, or repairs a chattel for another and turns it over to the other, knowing or having reason to know that his work has made it dangerous for the use for which it is turned over, is subject to the same liability as if he supplied the chattel.”


author: JAMESON, District Judge: DUNIWAY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Randall Scott ADKINS, Defendant-Appellant.
    No. 72-2336.
    United States Court of Appeals, Ninth Circuit.
    Jan. 5, 1973.
    Duniway, Circuit Judge, dissented and filed opinion.
    Don H. Marmaduke (argued), of Mar-maduke, Aschenbrenner, Merten & Salt-veit, Portland, Or., for defendant-appellant.
    D. Richard Hammersley, Asst. U. S. Atty. (argued), Joseph E. Buley, Asst. U. S. Atty., S. I. Lezak, U. S. Atty., for plaintiff-appellee.
    Before HAMLIN and DUNIWAY, Circuit Judges, and JAMESON, District Judge.

       Honorable W. J. Jameson, United States Senior District Judge for the District of Montana, sitting by designation.

   JAMESON, District Judge:

Randall Scott Adkins appeals his conviction by the court sitting without a jury of failing to submit to induction in violation of 50 U.S.C.App. § 462. The sole issue is whether his local board violated Selective Service Regulations dealing with the Extended Priority Selection Group (32 C.F.R. § 1631.6(d)(5)) in ordering his induction after April 1, 1971.

Adkins was classified II-S from December, 1967 to December, 1970, when he was reclassified I-A. On January 1, 1971 he was transferred to the Extended Priority Selection Group. On February 5, 1971 he reported for his physical examination and was found acceptable.

On February 11, 1971 the board received a letter from Adkins requesting SSS Form 150, Special Form for Conscientious Objector. This form, which contains the statement, “Complete and return within 30 days”, was mailed to Adkins on the same day. The form was never returned. On February 16, 1971 Adkins was notified of his acceptability for induction.

On April 19, 1971, without any request from Adkins, the board reopened and reviewed his status and retained him in I-A. After a reopening and reclassification a registrant has 30 days to appeal. (32 C.F.R. §§ 1625.13, 1626.2) On May 24, 1971 Adkins was ordered to report for induction on June 7, 1971. On June 2, 1971, he again requested SSS Form 150, and it was mailed to him the same day. On June 8 he reported for induction but refused to submit.

Appellant contends that § 1631.6(d) (5), supra, required that his induction be scheduled for a date prior to April 1, 1971 or that on that date he be transferred to a lower priority selection group.

This court has construed the meaning of the exception in § 1631.6(d)(5) supra permitting an order “to report for induction as soon as practicable” in two recent cases — United States v. Lewis, (unpublished), No. 72-1927 (9th Cir.) decided September 8, 1972, and United States v. Bowen, 467 F.2d 470 (9th Cir.) decided September 29, 1972.

In Lewis we affirmed the district court, incorporating by reference its opinion filed January 21, 1972, 5 SSLR 3134(D.Or.Cr. 71-276). Factually Lewis is similar to this case. In August the local board sent Lewis a SSS Form 150, which he did not return. On December 29, 1970, the board reviewed his II-S status and classified him I-A. On January 12, 1971 he was placed in the Extended Priority Selection Group. On March 2, without a request from Lewis, the board reopened his classification and retained him in I-A. On April 5 he was ordered to report for induction on April 27.

Assuming “that the circumstances' covered by the exception were intended primarily to remedy delays initiated by the registrant,” the court held that it did not follow “that a brief delay caused by board action renders an induction order void”, and suggested that the judicial construction for which Lewis contended “would deny meaning to the words ‘as soon as practicable’ and would frustrate the intent behind the exception.” The court continued in part:

“In the absence of evidence that the board acted arbitrarily, or reopened the defendant’s file for the sole purpose of extending his vulnerability, I must assume that the board acted in good faith and reviewed the file because it had some legitimate reason to do so.” United States v. Lewis, supra.

In Bowen we upheld an order to report for induction on April 26, 1971 where the registrant had appealed his I-A classification following denial of his conscientious objector claim, pointing out that “Bowen was not inducted prior to April 1 because his appeal caused the ‘inability of the local board to act’ in sufficient time” and that the board did “order Bowen to report ‘as soon as practicable.’ ” We again recognized that a local board “has reasonable discretion to direct its operations in accord with its own procedures” and presumed “that the board acted regularly and in the usual course of its business.” United States v. Bowen, supra, 467 F.2d at 472. In Bowen we also reviewed cases in other circuits interpreting the regulation and upholding post April 1 inductions.

Adkins, as did Bowen, relies heavily on United States v. Born, 338 F.Supp. 444 (W.D.Mich.1972), the only case to hold that an induction after April 1 was beyond the jurisdiction of the board. As we pointed out in Bowen, Born is distinguishable: “There, a delay of almost three months was found to have been due solely to board mismanagement.” United States v. Bowen, supra, 467 F.2d at 472.

Adkins’ Selective Service File does not show when the board met in March, 1971. The Government stated in its brief that the board met on March 15. This was 31 days from the date Form 150 was mailed. Particularly in view of the statements in the Form and accompanying notice, the board could reasonably wait at least 30 days to give Adkins an opportunity to complete and return the Form. Allowing time for receipt of communications by mail, we can not say that the board acted unreasonably in deferring action until its April meeting.

While the board was not required to reopen Adkins’ case at its April 19 meeting, there is no evidence that it abused its discretion in doing so. It could not then order induction for another 30 days. On May 24 Adkins was ordered to report on June 7.

While the delay here was longer than in Lewis and Bowen, we again recognize the “necessary administrative flexibility” available to local boards in their efforts to comply with § 1631.6(d)(5). As in Bowen, we “presume that the board acted regularly and in the usual course of its business.” In the absence of any showing of bad faith or mismanagement by the board, or of any prejudice to the registrant, we conclude that Adkins’ local board proceeded with reasonable dispatch to comply with the regulations and that Adkins “was inducted as soon as practicable.”

Affirmed.

DUNIWAY, Circuit Judge:

I dissent. Had Adkins’ board ordered him to report for induction at its April 19 meeting, I would be inclined to agree with the result reached by the majority. However, it did not do so. I would hold that in this case the board failed to comply with the mandate of 32 C.F.R. § 1631.6(d) (5) to issue an induction order “as soon as practicable” after April 1.

Although the majority is correct in stating that Adkins’ file, the only evidence introduced at his trial, is silent regarding a March meeting of his board, the Government has conceded on this appeal that the board met on March 15, one full day after the time within which Adkins was to complete the Form 150 had expired. However, no action was taken at that meeting, despite the fact that the board could have issued an induction order to Adkins. Rather, it waited until April 19, reopened his classification sum, sponte, and retained him in I-A.

No explanation has been offered for this action. The only possible authority for the April 19 reopening is 32 C.F.R. § 1652.2, which provides that a local board “may” reopen on its own motion “if such action is based upon facts not considered when the registrant was classified which, if true, would justify a change in the registrant’s classification. .” The only additional “fact” in Adkins’ file was that over two months before, he had requested a Form 150, which he never returned. By no stretch of the imagination could this request satisfy the requirements of § 1652.2. Thus, under the regulation, Adkins’ board had no authority to reopen his classification on April 19. This being so, there can be no presumption that it acted properly. It follows that there need be no showing such as the majority would require, that there was “bad faith or mismanagement by the board.”

In the usual case, there will be no claim that a reopening was erroneous, because the resulting delay in induction works to the advantage of the registrant. Here, however, the shoe is on the other foot. The prejudice to Adkins is obvious: his exposure as a member of the Extended Priority Selection Group (EPSG) has been extended to half a year. The EPSG regulations create an extraordinary liability to induction which can only have an unsettling effect upon the life of the registrant. While the regulations were not intended to place local boards in a stráStjacket, an open-ended period of vulnerability is precisely the evil which they were designed to prevent.

Moreover, to require a showing of bad faith or mismanagement on the part of the board would, as a practical matter, eliminate the “as soon as practicable” requirement altogether. This ease is a perfect example of how the majority’s interpretation would permit a' local board to play fast and loose with its regulations, issuing an induction order whenever it got around to it. I would hold that “as soon as practicable,” while not an inflexible requirement, obliges the board to act properly and expeditiously after April 1.

Despite the fact that United States v. Lewis, 9 Cir., 1972, incorporating by reference D.Or., 1972, supra, involved a sua sponte reopening of the registrant’s classification with a consequent delay in induction, it is not in point here. In that case it does not appear that the board’s power to reopen on its own motion was challenged. More importantly there the board’s action took place on March 1, well before the obligation to proceed “as soon as practicable” accrued. An induction order was issued promptly upon the expiration of the appeal period. Lewis is thus easily distinguished on its facts.

No court has interpreted the “as soon as practicable” requirement in circumstances even remotely similar to those of this case. With one exception, which, although it resulted in reversal of the registrant’s conviction, is distinguish-lidity of induction orders issued either in March or early April, with induction able, prior cases have involved the va-scheduled for April. Thus, the sole issue of consequence in those cases was whether April 1 is an absolute cutoff date for induction of members of the EPSG. Recognizing that there is often considerable jockeying by registrants immediately prior to induction, and that it is unreasonable to impose inflexible deadlines upon local boards, the cases have uniformly rejected such arguments. I agree with the results of those cases, but they are not relevant here.

In sum, Adkins’ board would receive all of the judicial deference and room for administrative flexibility to which it is entitled if we were to hold that it was not required to issue an induction order on March 15. The further delay occasioned by its improper action on April 19 was unjustified. I would reverse Adkins’ conviction.

      . 32 C.F.R. § 1631.6(d)(5) :
      “(5) Members of the Extended Priority Selection Group who have not been issued orders to report for induction and originally scheduled for a date prior to April 1 shall forthwith be assigned to the lower priority selection group to which they would have been assigned had they never been assigned to the Extended Priority Selection Group; except that members of the Extended Priority Selection Group who would have been ordered to report for induction to fill the last call in the first quarter of the calendar year but who could not be issued orders shall remain in the Extended Priority Selection Group and shall be ordered to report for induction as soon as practicable. Circumstances which would prevent such an order shall include but not be limited to those arising from a personal appearance, appeal, preinduction physical examination, reconsideration, judicial proceeding, or inability of the local board to act.”
      The same regulation was formerly § 1631.7(d)(5). By amendment the numbering but not the language has been changed.

      . A “Notice to Registrant”, transmitting Form 150, reads in part:
      “ * * * The specified thirty-day period is normally sufficient for the completion and filing of this form, together with any supporting letters or affidavits from your minister or priest, teachers or counselors, family or friends, which you may wish to offer to the members of your local board.
      “Although you should make a timely filing, your claim to conscientious objection is a matter that will be taken up by your board at a later date. * * ”

      . Smith v. Tarr, 444 F.2d 251 (2 Cir. 1971); Lawton v. Tarr, 446 F.2d 787 (4 Cir. 1971) cert. denied, 405 U.S. 924, 92 S.Ct. 969, 30 L.Ed.2d 796 (1972); Schemanski v. Tarr, 331 F.Supp. 65 (N.D.Ill.1971).

      . There is no entry in the board’s “Minutes of Action” between February 16, 1971 and April 19, 1971. Nor was any evidence offered at the trial with respect to a March meeting of the board.

      . United States v. Born, supra 338 F.Supp. at 447; United States v. Lewis, supra.

      . While we do not approve of unnecessary delays by draft boards, particularly in the light of the aim and purpose of § 1631.6(d)(5), we cannot say that this board’s inaction exceeded the scope of flexibility granted. Clearly it did not amount to “irregular, unjustifiable and lawless conduct.” United States v. Born, supra 338 F.Supp. at 447.

      . Appellant does not argue that he was prejudiced, but rather that the board failed to comply with Selective Service Regulations. Had the board acted in March, Adkins would have been called for induction at an earlier date. The board’s failure to act in March and the reclassification of Adkins in April simply lengthened the time during which he could assert a claim for conscientious objector status.

      . “As a matter of public record, the board met on Monday, March 15.” (Brief of appellee, p. 4.)

      . In this regard I find it significant that one of the President’s goals in instituting the lottery system was to place precise limits upon a registrant’s period of prime draft vulnerability so as to reduce the uncertainty that accompanies it. See S.Rep. 91-531, 91st Cong. 1st Sess., quoted in 1969 U.S.Code Cong. & Admin.News, pp. 1318, 1321. The EPSG regulations were promulgated in connection with the lottery system. Exec.Order No. 11,563, 3 C.F.R. 972, 974-975 (1966-70 Comp.).

      . The exception is United States v. Born, W.D.Mich., 1972, 338 F.Supp. 444. I do not mean to suggest that the conduct of Adkins’ board approached the level of mismanagement present in that case. The majority and I part company with respect to whether such misconduct is necessary.

      . United States v. Bowen, 9 Cir., 1972, 467 F.2d 470 (March 15 induction order, induction scheduled for April 26); United States v. Lewis, supra (April 5 and April 27); Lawton v. Tarr, 4 Cir., 1971, 446 F.2d 787 (April 5 and April 21); Smith v. Tarr, 2 Cir., 1971, 444 F.2d 251 (March 24 and April 15); Schemanski v. Tarr, N.D.Ill., 1971, 331 F.Supp. 65 (April 5 and April 16). In Levine v. Selective Service Local Bd. No. 18, 2 Cir., 1972, 458 F.2d 1281, there was a dispute as to whether the board had opened the registrant’s classification on March 1 following an interview held on February 23 to discuss his claim for an occupational deferment. An induction order had been issued on April 26, requiring him to report on May 13. While reversing a district court order dismissing the complaint so that the factual issue could be determined, the court observed that, if the board did reopen on March 1, “it would appear that the issuance was ‘as soon as practicable’.” Id. at 1285. Not only was this dictum, but it was clear that the board would have been justified in reopening before April 1, and there was nothing to indicate that it did not issue the order at its first meeting thereafter.