author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Ronald A. NEVE, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Elizabeth D. JOHNSON, Defendant-Appellee.
    Nos. 73-1532, 73-1533.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 6, 1973.
    Decided Feb. 1, 1974.
    John O. Olson, U. S. Atty., James M. Bablitch, Asst. U. S. Atty., Madison, Wis., for plaintiff-appellant.
    Percy L. Julian, Jr., Madison, Wis., for defendants-appellees.
    Before HASTINGS and KILEY, Senior Circuit Judges, and CAMPBELL, Senior District Judge.

       Senior United States District Judge William J is sitting by designation. Campbell of the Northern District of Illinois

   PER CURIAM.

In appeal No. 73-1532, it was shown that defendant Ronald A. Neve was charged on September 29, 1972, by information filed in the district court with possessing marijuana, in violation of Title 21, U.S.C. § 844(a).

In appeal No. 73-1533, it was shown that defendant Elizabeth D. Johnson was charged by information filed in the same court in identical terms.

Both cases proceeded together in the district court and were determined by the trial court with similar results. They were consolidated for briefing and oral argument on appeal.

Each defendant was represented in the district court and in this appeal by the same counsel. When called for arraignment on November 8, 1972, each defendant entered a special appearance for the purpose of challenging the jurisdiction of the court. The informations were read to them and certain inquiries were made by the court. Noting that defendant Neve was 21 years of age and defendant Johnson was under the age of 26, the court requested the United States Attorney to advise the defendants of the maximum penalty to which they might be subjected if convicted of the offense charged. Defendants were told that for a first offense the maximum penalty for violating 21 U.S.C. § 844(a) was a term of imprisonment of not more than one year, a fine of not more than $5,000, or both such fine and imprisonment. They were also told, however, that they were subject to the provisions of the Youth Corrections Act (18 U.S.C. § 5005 et seq.), under which a youth offender may be sentenced to the custody of the Attorney General for treatment and supervision for a term of up to four years, plus two years of supervision following conditional release. See 18 U.S.C. §§ 5010(b), 5017(c) and 5017(d), and 18 U.S.C. § 4209.

In passing, we note that it is conceded that while in the custody of the Attorney General, the youth offender may be transferred to a federal prison. Of course, the commitment more often is to some other type of institution.

On November 28, 1972, the defendants moved to dismiss the informations on the ground, inter alia, that the offenses which the Government sought to charge in the informations were not offenses which, consistent with the Fifth Amendment to the United States Constitution and Rule 7 of the Federal Rules of Criminal Procedure, 18 U.S.C., can be prosecuted by an information, where, as in these cases, the defendants had not waived their right to be proceeded against by indictment.

Upon consideration of briefs and oral argument, the trial court concluded that the youth defendants in these cases could be proceeded against only by indictment by a grand jury and not by information. The motions to dismiss the informations were granted and it was so ordered.

The district court filed a well considered written opinion and order in the Neve case, Which is reported as United States v. Neve, W.D.Wis., 357 F.Supp. 1 (1973).

In an unreported brief written opinion in United States v. Johnson, filed on April 18, 1973, the trial court ordered that the defendant’s motion to dismiss the information be granted for the reasons stated in its reported opinion in United States v. Neve, supra.

Since we are satisfied that Judge Doyle in his decision has reached a correct result and for reasons which we approve, we adopt his reported decision and order as our own and on that authority affirm the judgment orders in both cases.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    ENVIRONMENTAL DEFENSE FUND et al., Plaintiffs-Appellants, v. TENNESSEE VALLEY AUTHORITY et al., DefendantsAppellees.
    No. 74-1139.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 7, 1973.
    Decided Feb. 22, 1974.

      Jon T. Brown, Washington, D.C., for plaintiffs-appellants; Wallace L. Duncan, Fredrick D. Palmer, Washington, D.C., on brief; James Tripp, Lawrence R. Reno, of counsel.
    Beauchamp E. Brogan, Knoxville, Tenn., for defendants-appellees; Robert H. Marquis, Gen. Counsel, Thomas A. Pedersen, Beverly S. Burvage, Tennessee Valley Authority, Knoxville, Tenn., on brief.
    Before WEICK, McCREE and MILLER, Circuit Judges.
   PER CURIAM.

This action was instituted in the court below to enjoin T.V.A. from completing construction of the Tellico Dam Project on the Little Tennessee River in Tennessee. The district court first enjoined completion of the project because of its conclusion that T.V.A. had not complied with the National Environment Policy Act (NEPA), 42 U.S.C. Sec. 4331 et seq., by filing an adequate impact statement. Environmental Defense Fund, et al. v. T.V.A., 339 F.Supp. 806 (E.D. Tenn.1972). On appeal, it was contended that NEPA did not apply since the Project had been planned and its construction begun before the effective date of the Act. This court, in an opinion written by Circuit Judge McCree, rejected this contention and affirmed the judgment of the district court. Environmental Defense Fund, et al. v. T.V.A., et al., 468 F.2d 1164 (6th Cir.1972). On remand, the district court held a hearing on the merits (from September 17th through September 20th). It considered the final impact statement filed by T.V.A. on February 10, 1973. It pointed out in its extensive opinion that the final statement consisted of three volumes totaling approximately 600 pages and found that the statement was an adequate compliance with the requirements of NEPA. Environmental Defense Fund et al. v. T.V.A. et al., 371 F.Supp. 1004 (E.D.Tenn.1973). The court also rejected the contention that the Project was in violation of any other federal law, including the National Historic Preservation Act, 16 U.S.C. Sec. 470f and Executive Order No. 11573, and the Federal Water Pollution Control Act Amendments of 1972.

A succinct description of the Project is set forth by the district court in its latest opinion:

This litigation stems from the construction of a concrete and earthfill dam near the mouth of the Little Tennessee River. TVA will ultimately acquire thirty-eight thousand acres for development of the project. Sixteen thousand, five hundred acres will be inundated upon completion of the reservoir; the remaining acreage will be developed for industrial, commercial, residential, and recreational purposes. The project plan also contemplates the creation of a new city, Timberlake, with a population of fifty thousand persons.
The project calls for the impoundment of the first thirty-three miles of the Little Tennessee River. The river and its environs present an extremely attractive setting, and are the source of thousands of annual fishing and boating trips. The area contains rich agricultural land with approximately twenty-five thousand, five hundred acres of the total acreage taken in land use Classes I, II, III. Fort Lou-doun, an eighteenth century English fortification, is located on the south bank of the river. This historic site will be saved from inundation but will lose its river setting. Historically, the river bottomland is also important as the ancestral homeland of the Cherokee Indians. Several early Indian villages have been identified, including Chota and Citico and considerable archeological work has been underway for the past few years.
The Tellico Project is a multi-pur-pose water resource and regional development project. The reservoir and connecting canal with Fort Loudoun reservoir will serve to develop navigation, flood control, and electric power generation. Other direct benefits claimed by the project are recreational development, fish and wildlife use, water supply, shoreline development, and redevelopment. The project was first authorized by Congress on October 15, 1966. Construction on the concrete portion of the dam began March 7, 1967 and was completed on March 28, 1969. To date, $45,465,000 has been appropriated for the project, and over $35,000,000 has been spent. The current estimated project cost is $69,000,000.

A more detailed description of the background of the case and the nature of the Project is contained in the opinion of this Court on the first appeal and in the district court’s first opinion.

We have carefully considered the contentions of appellants on the present appeal in light of the lengthy record, including the briefs and oral arguments of the respective parties, and we find no error on the part of the district court in dissolving the preliminary injunction and in dismissing the action.

For the reasons fully set forth in its well-reasoned opinion the judgment of the district court is

Affirmed.

      . Our examination of the final impact statement indicates that it is as thorough and complete on all pertinent features as could reasonably be expected. N.E.P.A., although rigorous in its requirements, does not require perfection, nor the impossible. In assessing the adequacy of such statement, practicability and reasonableness (See Environmental Defense Fund v. Corps of Eng., D.C. 342 F.Supp. 1211 at 1217) are to be taken into account along with the broad purposes of the Act to preserve the values and amenities of the natural environment. This involves of course a balancing process which we think the district court correctly recognized and applied to this multi-purpose project, a project admittedly entailing considerable ecological damage and disturbance but many off-setting economic and social benefits. The specific objections of appellants to the final statement appear to us to be overly technical and hypercritical.


author: GOLDBERG, Circuit Judge:

text:
    Maude SPRINKLE, wife of and A. Fred Sprinkle, Plaintiffs-Appellants, v. FARM BUREAU INSURANCE COMPANIES, Crawford & Company, Adjusters and Pete E. Thomas, Defendants-Appellees.
    No. 73-1269.
    United States Court of Appeals, Fifth Circuit.
    April 12, 1974.

      Garic Kenneth Barranger, Covington, La., for plaintiffs-appellants.
    John J. Hainkel, Jr., Geoffrey H. Longenecker, New Orleans, La., for defendants-appellees.
    Before BROWN, Chief Judge, and GEWIN and GOLDBERG, Circuit Judges.
   GOLDBERG, Circuit Judge:

On December 26, 1970, plaintiffs-appellants, Maude and Fred Sprinkle, elderly residents of North Carolina, were injured in an automobile accident near Covington, Louisiana. On February 2, 1972, pursuant to 28 U.S.C. § 1332 (1970), they filed suit in the United States District Court for the Eastern District of Louisiana against Farm Bureau Insurance Companies, Crawford and Company, Adjusters, and Pete E. Thomas. Defendants answered, and moved to dismiss the complaint on grounds of prescription under Louisiana law. After hearing oral argument from counsel for both sides, the district court on November 15, 1972, granted defendants’ motion and dismissed the case. Asked to review the propriety of the district court’s ruling that plaintiffs’ complaint was barred by prescription, we reverse and remand the case for further proceedings.

After defendants filed their motion to dismiss but before the hearing on the motion, plaintiffs were deposed and filed their depositions with the court. For purposes of the motion to dismiss for prescription defendants apparently have chosen not to dispute plaintiffs’ allegations. Accordingly, in reviewing the district court’s order of dismissal we accept as true plaintiffs’ allegations as outlined in the original complaint and detailed in' the depositions.

Plaintiffs alleged that the automobile accident in which they were injured was caused by the negligence of the other driver in driving on the wrong side of the road while intoxicated. The other driver fled the scene, but shortly thereafter was identified as defendant Pete E. Thomas. Initially Thomas “fraudulently denied that he had any insurance,” but approximately two months after the accident plaintiffs learned that Thomas was insured by defendant Farm Bureau Insurance Companies.

According to plaintiffs, they were approached at their home in North Carolina by representatives of defendant Crawford and Company, adjusters acting for and on behalf of Farm Bureau, who led plaintiffs to believe that they would receive a settlement of their claim against defendants. Plaintiffs reported telephone calls from Crawford and Company on the average of once a month, generally advising them that “everything was all right and if [they] could do anything to help to call.” Plaintiffs also introduced various letters from the Asheville, North Carolina, office of Crawford, the first dated March 30, 1971, the last dated November 5, 1971. A letter dated September 14, 1971, said: “Please contact me by phone as we still have your interest in mind and we would like to attempt to settle your claim.”

In late November or early December 1971, a representative of Crawford told plaintiffs that their physician should forward copies of a final medical report to Crawford in Asheville, and that after a review of the records Crawford would contact plaintiffs again. According to Mr. Sprinkle, at that time the Crawford representative advised them “to be sure we are all right, to take our time, that we had plenty of time.” Plaintiffs alleged that they had an appointment with their physician on the first available date, December 9, 1971, and that the medical report was forwarded to Crawford. They never heard from Crawford again, however, but instead received a letter from Farm Bureau, dated January 19, 1972, advising them that their claim had prescribed and was now barred by law, and no settlement would be made. Plaintiffs alleged that although they knew North Carolina had a. three year statute of limitations for claims like theirs, they were never advised by defendants that a settlement would have to be effected prior to December 26, 1971, under Louisiana law. According to plaintiffs, through guile and subterfuge defendants deliberately misled them into believing a settlement was forthcoming, and thereby lulled them into a false sense of security, to their ultimate prejudice.

In the complaint filed in the district court, plaintiffs stated two causes of action. Their first cause of action claimed damages arising out of the automobile accident, though it did not state which defendants were to be liable for such damages. As a second cause of action, separate and independent of that arising from the accident itself, plaintiffs claimed damages against Farm Bureau and Crawford for their “separate and distinct torturous [sic] conduct.” The district court’s order dismissing the case on grounds of prescription apparently encompassed both causes of action. We treat first the dismissal of the cause of action arising from the automobile accident.

It is undisputed that Louisiana law applicable to the first cause of action commands a one year prescription period. Appellants have sought to deflect the statutory command with the doctrine of contra non valentem agere non currit prescripto (No prescription runs against a person who is unable to bring an action). Both parties agree that contra non valentem, though originally a common law doctrine, has been granted explicit, albeit limited, recognition in the law of Louisiana. See R. J. Reynolds Tobacco Company v. Hudson, 5 Cir. 1963, 314 F.2d 776, 786-787. They disagree about whether this case falls within one of the limited circumstances in which the doctrine operates.

Appellees rely primarily on Thompson v. Staples, 5 Cir. 1965, 341 F.2d 536, a case very similar to the one at bar. There the plaintiff sought to avoid the prescription statute by alleging that an insurance adjuster representing one of the defendants had in word and deed made deliberate misrepresentations which led plaintiff reasonably to believe that the insurance company intended to settle the claim. According to the plaintiff, these misrepresentations caused her to forego taking any legal action on her claim during the year prior to the running of the prescriptive period. The district court, applying Louisiana law as it was bound to do under Erie R. R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, determined that the plaintiff had not set forth a claim for avoidance of the prescription statute, and this court affirmed that decision.

Judge Tuttle recently wrote:

We are bound by this Court’s prior decisions on what is the law of a state in a diversity case, just as we are bound by prior decisions of this Court on what is federal law. Stare decisis requires that we follow our own earlier determination as to the law of a state in the absence of any subsequent change in the state law.

Newell v. Harold Shaffer Leasing Co., 5 Cir. 1974, 489 F.2d 103, 107. Plaintiffs seek to avoid the apparent command of Staples with the argument that Louisiana law has changed in the years since that decision. Notwithstanding the vig- or and eloquence with which counsel for appellants briefed and argued this issue, we are not persuaded.

Four of the cases cited by appellants to support the argument that their position under Louisiana law has waxed while that of defendants has waned arose under the Louisiana workmen’s compensation laws. We find these cases inapposite. The workmen’s compensation framework comprehends a more flexible attitude toward recovery for injuries than ordinary tort law, and recovery-oriented decisions in workmen’s compensation cases, though consistent with the overall approach in that area, are not necessarily indicative of a court’s attitude in ordinary personal injury cases. For an indication of the Louisiana courts’ attitude toward estoppel to assert prescription in non-workmen’s compensation cases we need look no further than three recent decisions cited by appellees: Perrodin v. Clement, 254 So.2d 704 (La.Ct.App.1971); Gaspard v. Liberty Mutual Insurance Co., 243 So.2d 839 (La.Ct.App.1971); Dagenhart v. Robertson Truck Lines, Inc., 230 So.2d 916 (La.Ct.App.1970). All three decisions indicate that contra non valentem continues to flourish in Louisiana law, but nothing in them signals any recent flowering of the doctrine beyond its pruned and cropped appearance in Staples. The law of Louisiana continues to be that a defendant seeking shelter in the truncated Louisiana period of limitations need not rest his hopes for litigious repose on his opponent’s natural somnia, but may, if he chooses the lyrics with care, sing his opponent a fatal lullaby.

Though Staples continues to be binding precedent in this Court on the law of Louisiana, we discern one possibly significant difference between that case and the one sub judiee. According to appellants, defendant Thomas’ allegedly fraudulent statements and misrepresentations prevented them from discovering the fact that he was insured until nearly two months after the accident, or sometime in February 1971. The Louisiana law has been and continues to be that contra non valentem applies where fraudulent conduct has concealed the identity of parties, at least where the plaintiff has exercised reasonable diligence in seeking the facts. See Dagenhart v. Robertson Truck Lines, Inc., 230 So.2d 916, 919-920 (La.Ct.App.1970).

The district court apparently did not consider the possibility that acts or statements by defendant Thomas might operate to trigger contra non valentem against one, some, or all of the defendants named in appellants’ suit. From the papers now before us we are unable to determine the exact nature of Thomas’ actions, or if they would amount to the kind of fraud necessary under Dagenhart. It does appear, however, that the suit was filed within one year of the discovery of the identity of defendant Farm Bureau Insurance Companies as insurer of defendant Thomas. Accordingly, we reverse the district court’s holding that the first cause of action was barred by prescription, and remand for the purpose of determining the possible existence of Dagenhart-type circumstances for the application of contra non valentem.

We also conclude that the district court erred in dismissing the second cause of action against Farm Bureau and Crawford for “separate and distinct [tortious] conduct.” We recognize that the claim is pleaded with something less than model precision and clarity, though the district court dismissed for prescription rather than for failure to state a claim. In their briefs appellants refer to it as possibly an action for “injurious words,” which under La.Civil Code art. 3536 and art. 3537 prescribes within one year from the date “on which the injurious words, disturbance or damages were sustained.” This would be later than the date of the accident, and possibly as late as November or December 1971. Moreover, the alleged representations by Crawford may constitute a tort occurring in North Carolina, requiring the district court in Louisiana to consider which state’s prescriptive period would apply, what its duration would be, and whether that period has been tolled for any reason. Accordingly, we reverse as to the second cause of action, and remand for further proceedings consistent with this opinion.

Reversed and remanded.

      . “The following actions are also prescribed by one year: . . . [T]hat ... resulting from offenses or quasi offenses.” La. Civil Code art. 3536.

      . In affirming we relied on Green v. Grain Dealers Mutual Ins. Co., 144 So.2d 685 (La. App.1962), another case on which appellees in the case sub judice put much weight. In Green an insurance adjuster for one of the defendants told the plaintiffs that they had two years in which to bring suit for injuries suffered in an automobile accident. The Louisiana court recognized that contra, non valentem was recognized in the law of Louisiana under some circumstances:
      The rule ... is applied to prevent the injustice of an innocent party being lulled into a course of inaction in the enforcement of his right by reason of concealment or fraudulent conduct by defendant, or because of the defendant’s failure to perform a legal duty causing the plaintiff to be kept in ignorance of his rights.
      144 So.2d at 687.
      The court refused, however, to apply the doctrine to the case before it because the misrepresentation was one of law, not facts, made by a layman upon whose legal advice reliance should not have been placed. The court noted that in any event under Louisiana law ignorance of the law is specifically rejected as an excuse to avoid prescription. The court added that misrepresentation of facts would rarely be enough to satisfy the doctrine when the true facts are equally accessible to both parties, and commented that Louisiana had not extended the notion of “equitable estoppel to claim prescription” as far as other juris-tions cited by the plaintiffs.

      . Landry v. Ferguson, 279 So.2d 185 (La. 1973); Dupaquier v. City of New Orleans, 260 La. 728, 257 So.2d 385 (1972); Price v. Gas & Well Operating Service, 267 So.2d 598 (La.Ct.App.1972); Zeringue v. Liberty Mutual Insurance Co., 248 So.2d 83, 87 (La. Ct.App.1971).

      . This is especially likely to be true of decisions dealing with estoppel to assert limitations. The limitations period in workmen’s compensation cases derives from a statute of peremption, La.Kev.Stat. § 23:1209, rather than from the statute of prescription applicable in most personal injury cases. Blanchard v. Liberty Mutual Ins. Co., 280 So.2d 592, 595 (La.Ct.App.1973). Under Louisiana law “peremption” formally extinguishes the right to recovery by destroying the cause of action, while “prescription” bars recovery in the courts of Louisiana but does not under Louisiana conflicts law close the doors to suit outside the Louisiana forum. Chevron Oil Co. v. Huson, 1971, 404 U.S. 97, 102, 92 S.Ct. 349, 30 L.Ed.2d 296, 303. That the courts of Louisiana carefully protect the special cause of action created by the workmen’s compensation statutes against accidental or untoward extinction does not necessarily indicate a trend toward liberalizing escape from prescription in personal injury cases. Indeed, it seems rather unlikely that the Louisiana courts would mean for the doctrine of estoppel to assert limitations outlined in the workmen’s compensation cases to apply in non-workmen’s compensation cases without saying so explicitly, given the rather significant difference between that doctrine and the application of contra non valentem in cases such as Green v. Grain Dealers, supra note 2. Yet .the recent workmen’s compensation cases make no mention of the contra non valentem decisions.

      . Nor do we find in Bewley Furniture Co. v. Maryland Casualty Co., 271 So.2d 346 (La.Ct.App.1972), the support sought by appellants. In Bewley plaintiff attempted to recover for damages caused by leaks in a defective roof, but did not file suit for nearly two years after the leaks first began. The court held that contra non valentem applied because various representatives of the defendants had for most of the two years assured the plaintiff that the roof was not defective and that the leaks would be repaired; when the plaintiff finally discovered the truth, he filed timely suit. The court reasoned that the representations made by the defendants lulled plaintiff into a false sense of security by disguising and hiding the existence of a cause of action. Though the leaks were apparent, that they were a basis for a cause of action was not evident until defendants ceased promising the plaintiff that the leaks would stop or be repaired. This application of contra non valentem is completely consistent with the Louisiana law before Staples, see, e. g., Kennard v. Yazoo & M.V.R. Co., 190 So. 188, 190-191 (La.Ct.App.1939). More important, Bewley is of no help in the case at bar because here though plaintiffs were perhaps lulled into a false sense of security by representations from defendants, they were at no time misled about the existence of a legal cause of action. The statements allegedly made by Crawford representatives may have fooled appellants about the need to seek legal enforcement of the claim, but they did not disguise the fact that there was a claim.

      . We do not mean to limit the district court’s freedom of inquiry on remand, but we do note that at oral argument counsel for appellants conceded that Thomas’ flight immediately after the accident concealed his identity for only a very short time, and did not materially affect the filing of the suit.


author: SIMPSON, Circuit Judge:

text:
    VOLKSWAGENWERK AKTIENGESELL-SCHAFT, Plaintiff-Appellee, v. Edward T. RICKARD, and Bessie Rickard, Individually, etc., Defendants-Appellants,
    No. 72-3186.
    United States Court of Appeals, Fifth Circuit.
    April 10, 1974.
    Partial Rehearing Denied June 12, 1974.

      Herbert H. Landau, Peter S. Chamberlain, Dallas, Tex., for defendants-appellants.
    Fletcher L. Yarbrough, Dallas, Tex., Judith S. Scheier, New York City, for plaintiff-appellee.
    Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

Defendants-appellants seek review of an adverse judgment and injunction pursuant thereto. Volkswagenwerk Aktien-gesellschaft (VWAG) sued Rickard, who does business as “The Bug Shop”, for trademark and service mark infringement and unfair competition, seeking only injunctive relief. We approve the findings of the district court as amply supported by the record, and affirm with slight modification the injunctive decree based thereon.

The facts, neither complicated nor in substantial dispute, require only condensed recital. Rickard, with prior experience in both car repair and advertising, opened “The Bug Shop” in Dallas, Texas in 1967. He specialized in service work for Volkswagen (VW) autos. He was not then and has never been affiliated with VWAG, its wholly owned subsidiary Volkswagen of America (VWoA), or any authorized dealer-franchisee of VWoA. His admitted objective was to secure a foothold in the “after-market”, that portion of the automobile business comprising the servicing and repair of cars sold by authorized VW dealers.

Rickard pursued this objective by doing extensive advertising in and around the Dallas area. His principal methods of communication with the VW owning public were newspaper ads, display ads in the telephone directory yellow pages, and direct mailing of advertising literature. This advertising concerned only one type of automobile, the VW, though Rickard testified at trial that he intended later to branch out into the service of other foreign cars. Based upon his past experience Rickard designed most of his own advertising copy. This promotional material and some of the display advertising signs at his place of business utilized five different marks generally associated with VW automobiles: (1) the letters VW; (2) the VW logo or emblem, the V over the W and encircled, the points of the letters touching the inside of the circle; (3) the full name “Volkswagen;” (4) the word “bug”; and (5) the bug silhouette of the classic sedan made by VWAG. These marks have been extensively used by Rickard in describing the type of work he does, the parts and accessories he sells, and the cars upon which he specializes.

VWAG alleged trademark and service mark infringement and unfair competition with respect to Rickard’s use of the five marks described above. The first three, VW, Volkswagen, and the symbol, are registered as trade and service marks under the Lanham Act, Title 15, U.S.C. Sec. 1051 et seq. The word “bug” and the bug silhouette are claimed by VWAG to be common law trade and service marks entitled to the same protection, and the district court so found. The registered marks include lettering in distinctive “Memphis Bold” type which style was also adopted by Rickard.

VWAG has invested considerable funds in promoting its ability to perform service and repair work on the cars it sells better than competitors are able to provide. Replacement parts and accessories are either manufactured by VWAG or purchased elsewhere, subjected to quality inspection and testing, then marketed under VWAG sponsorship. Mechanics are specially trained for VW work, and VWAG distributes manuals and service bulletins to its dealers for use in repair work. VWAG expends large sums of money in advertising the quality of its work and contends that Rickard’s infringement does irreparable harm to the goodwill it has created in its service by advertising which utilizes the marks in question.

Authorized dealerships are free to use any and all of the five marks, and virtually all do. Some use the word “bug” in their franchise name, including at least one in Dallas, (“The Bug House”) instead of the more traditional “Volkswagen”. Many also have separate facilities for servicing of ears, distinct from the new car sales location. VWAG alleged that this, together with Rick-ard’s extensive unauthorized use of the VWAG marks, unquestionably led to confusion amongst potential customers and hence unfair competition. The district court agreed and entered a detailed permanent injunction against Rickard, from which he appeals.

Rickard advances numerous claims of error below, which may be summarized as follows: (1) the trial court erroneously found that VWAG has a common law trademark and service mark in the word “bug” and is therefore entitled to injunctive protection of it, (2) the court erroneously held that the evidence supported a finding of intent to deceive by Rickard and that there was in fact deception of the public, (3) Rickard’s use of any or all of the five marks did not constitute unfair competition as found by the trial court; and (4) the injunctive decree was unnecessarily overbroad.

THE “BUG” MARK

The district court specifically found that “(p.)rior to defendant’s commencement of business under the trade name ‘The Bug Shop’, ‘Bug’ had acquired a strong secondary meaning in the automotive field referring to plaintiff and the products and services marketed in the United States through the Volkswagen organization.” App. at 15-16. The secondary meaning doctrine referred to by the court holds that words which have a primary meaning of their own, such as bug, may by long use in connection with a particular product, come to be known by the public as specifically designating that product. See generally 87 C.J.S. Trade-Marks, Trade-Names, and Unfair Competition § 90, Doctrine of Secondary Meaning; 3 Call-man, Unfair Competition, Trademarks, and Monopolies Sec. 77, Acquisition by Priority of Secondary Meaning. Thus in the judgment of the trial court, the word “bug” as used in the automotive field has become so associated with the Volkswagen that VWAG is entitled to trademark rights in the word.

The existence vel non of secondary meaning is an issue for the trier of fact, here the trial court sitting without a jury. 87 C.J.S. Trade-Marks, Trade-Names, and Unfair Competition § 90, at 324; 3 Callman, Unfair Competition, Trademarks, and Monopolies at 358. Our review of this question is limited therefore by F.R.Civ.P. 52(a), and the trial court’s judgment may be overturned only if “clearly erroneous.” “(A) finding of fact is clearly erroneous if it is without substantial evidence to support it, or the district court misapprehended the effect of the evidence, or the reviewing court is left with the ‘definite and firm conviction’ that a mistake has been committed after inspecting the record as a whole.” Lentz v. Metropolitan Life Ins. Co., 5 Cir. 1970, 428 F.2d 36, 39.

The variables to be considered in determining whether or not a word has acquired a secondary meaning in a particular field are well recognized. “(I)t is appropriate to consider (1) the length and manner of its use, (2) the nature and extent of advertising and promotion of the mark and (3) the efforts made in the direction of promoting a conscious connection, in the public’s mind, between that name or mark and a particular product or venture.” 3 Call-man, Unfair Competition, Trademarks, Monopolies at 349. VWAG at trial introduced evidence of individual consumers who associate “bug” with the VW auto, of competitors who so associate it and customarily use it in their competitive advertising, and public opinion surveys showing substantial public association of the two. VWAG has also, as the exhibits reveal, employed the term “bug” in its own advertising for many years. The district court’s judgment in this matter is not only not clearly erroneous, it is clearly correct.

UNFAIR COMPETITION BY RICKARD

In addition to trademark infringement, the district court found Rickard to have engaged in unfair competition, and grounded injunctive relief on these dual findings. Unfair competition being also a question of fact, 87 C. J.S. Trade-Marks, Trade-Names, and Unfair Competition § 100, at 346, our review is again narrowly circumscribed by F.R.Civ.P. 52(a). Unfair competition is almost universally regarded as a question of whether the defendant is passing off his goods or services as those of the plaintiff by virtue of a substantial similarity between the two, leading to confusion on the part of potential customers. 87 C.J.S. Trade-Marks, Trade-Names, and Unfair Competition § 87 et seq., Unfair Competition. The only question to be resolved on appeal with respect to this issue is whether there is substantial evidence to support the finding of the trial court. Lentz v. Metropolitan Life Ins. Co., supra. Our disposition of this matter in appellee’s favor renders unnecessary any discussion of Rickard’s allegedly deceitful intent, as intent is not a necessary element of the tort of unfair competition. 87 C.J.S. Trade-Marks, Trade-Names, and Unfair Competition § 93, Fraudulent intent; 3 Callman, Unfair Competition, Trademarks, and Monopolies Sec. 86.-1(a), Intent of the Defendant (the Fraud Rule).

Numerous facts in the record fully support the district court on this point. While a showing of likelihood of confusion is sufficient without proof of actual confusion, plaintiff in fact demonstrated that actual confusion existed on the part of some “Bug Shop” customers as to whether that establishment was an authorized franchisee. Also, Rickard used not only marks of a similar nature to those of VWAG, he also persistently used identical marks for the purpose of advertising his establishment. That advertising was done in precisely the same place and manner as that of authorized shops, and Rickard continued the use of VWAG marks for purposes of interior and exterior advertising of his place of business and the type of service offered. Since some authorized dealerships employ separate facilities for new car sales on the one hand and service work on the other, the absence of a showroom or new car sales department did not distinguish Rickard’s shop from those authorized dealers who so divide their operations. Finally, Rickard utilized not one, but five of VWAG’s marks, the cumulative effect of which is greater likelihood of confusion.

Rickard would have us follow the rule of Volkswagenwerk Aktiengesellschaft v. Church, 9 Cir. 1969, 411 F.2d 350, and argues that to do so requires reversal of the district court. We disagree. In Church the district court had found that there was not a likelihood of confusion, based largely upon the fact that the defendant had cooperated with the plaintiff in modifying his use of VW and Volkswagen with use of the word “independent”. Rickard has so modified his use only once on a single exterior sign at the original location. Rickard also uses three additional marks of VWAG, which defendant Church did not do. The Ninth Circuit holding was simply that the district court’s factual findings were not clearly erroneous. This is the same result we reach in this case, though the two district courts, because of the distinguishing facts of the respective cases, reached opposing results. Cf. Volkswagenwerk Aktiengesellschaft v. Volks City, Inc., 3 Cir. 1965, 348 F.2d 659 (preliminary injunction upheld on basis of likelihood of confusion).

THE INJUNCTIVE DECREE

Despite our complete agreement with the factual findings of the district court, we feel that the injunction entered is to a slight extent overbroad, and modify it accordingly.

Provision number two of the injunction (see note one, supra) covers use of the VW logo or symbol which has already been described. It is the only one of the five marks which Rickard has been completely enjoined from using, under any circumstances. However, this would prohibit him from using the original containers for selling and displaying parts and accessories which actually originated with VWAG or one of its suppliers. To this limited extent the injunction is overbroad, but in all further respects the emblem is entitled to trademark protection as directed by the in-junctive decree.

The district court prescribed in detail the qualifications to govern Rickard’s use of “Volkswagen,” “VW”, and “Bug” (provision three) and the silhouette (provision four) with identical limitations. They are specific, and we approve them in all but two minor aspects.

Provisions 3(a) and 4(a) both require that use of the VWAG marks must be set forth on the same line as both the advertising and qualifying language. This restriction seems to us to be unnecessarily burdensome. Many appropriate and harmless sentences descriptive of the services offered would simply be too long to be put in a single line using conventional advertising formats. Since use of a VWAG mark may not be a dominant factor of any advertising (provisions 3(d) and 4(d)), there should be no harm to the protected marks in allowing Rickard the use of more than one line in which to advertise.

Provisions 3(c) and 4(c) prohibit Rickard from advertising in the color blue, even though the use of any mark is properly qualified. Generally speaking, the protection of color as an element of a trademark is limited to instances in which it is impressed in a particular design or has acquired a secondary meaning of its own. 87 C.J.S. Trade-Marks, Trade-Names, and Unfair Competition § 47 Color; 3 Callman Unfair Competition, Trademarks, and Monopolies, Sec. 71.5 Color; cf. Life Savers Corp. v. Curtiss Candy Co., 7 Cir. 1950, 182 F.2d 4. We see nothing in the mere use of the color blue amounting to infringement or unfair competition by Rickard if it is used in a properly qualified fashion for advertising. Moreover, since the very qualification of a VWAG mark and prohibition upon its being a dominant feature of any advertising guarantee that no confusion amongst potential customers is likely to occur, we think proscription against use of the col- or blue is unwarranted.

The district court is directed to modify its injunctive decree in the particulars noted. As so modified, its judgment is affirmed.

      . Though lengthy, the entire injunctive decree is so germane to our disposition of this case that we quote its language fully, omitting only formal parts:
      ORDERED, ADJUDGED, AND DECREED that the defendants, Edward T. Rickard and Bessie Rickard, each of them, and their respective agents, servants, employees, successors, and assigns, and all persons acting in concert witli them or any of them, and each of them, are hereby permanently enjoined and restrained from continuing or resuming any of the following acts in connection witli their business :
      1. Using “The Bug Shop” as their trade name;
      2. Using any reproduction or colorable imitation of or symbol similar to the Encircled “VW” Emblem, plaintiff’s registered trademark and service mark composed of the letters “V” and “W” arranged vertically, the “V” on top of the “W” framed by and in contact with a circle;
      3. Using the word “Volkswagen,” the letters “VW,” the'word “Bug,” or any other mark belonging to plaintiff, or any reproduction or colorable imitation of any of them (e. g., without limitation, “Volkswagen,” “Volks,” “Polks,” “Vagen,” “Wagon,” “V,” “W” and “Beetle”), as a part of any corporate or trade name or as an adjective to denote or describe their business, products sold by them, or services sold by them, except that defendants may use the word “Volkswagen,” the letters “VW,” or the word “Bug” as an adjective to refer to products originating with plaintiff, in order truthfully to advise prospective purchasers that defendants offer to service automobiles manufactured by plaintiff or offer for sale new or rebuilt parts and accessories therefor in factual phrases similar to “We .Service Volkswagen Cars,” “Parts for VW Autos,” or “Rebuilt Barts for Bug Cars” ; in any such factual phrase the following conditions must be adhered to:
      (a) The word “Volkswagen,” the letters “VW,” or the word “Bug” must not bo set out alone, but must be set forth on the same line as and be preceded and followed by the other words in the factual phrase of which it forms a part and must appear in the same type, lettering, print, color, mounting, spacing, illumination, size, format, and material as those other words ;
      (b) “Memphis Bold” lettering must not be used;
      (c) The color blue may not be used in connection with such phrase; and
      (d) The use of plaintiff’s marks must not be a dominant factor of defendants’ advertising or signs on their premises;
      4. Using any silhouette, picture, caricature, or reproduction of the shape or appearance of the Volkswagen sedan (hereinafter referred to as a “silhouette”), except that defendants may use a silhouette as an adjective synonymous with the word “Volkswagen” to refer to products originating with plaintiff, in order truthfully to advise prospective purchasers that defendants offer to service automobiles manufactured by plaintiff or offer for sale new or rebuilt parts and accessories therefor in factual phrases similar to “We Service [silhouette] Cars,” “Parts for [silhouette] Autos,” or “Rebuilt Parts for [silhouette] Cars”; in any such use of a silhouette the following conditions must be adhered to:
      (a) The silhouette must not be set out alone, but must be set forth on the same line as and be preceded and followed by words in the factual phrase of which it forms a part and must appear in the same color, mounting, spacing, illumination, size, format, and material as those words ;
      (b) “Memphis Bold” lettering must not be used for the words which precede and follow the silhouette in such a phrase;
      (c) The color blue may not be used in connection with such phrase; and
      (d) The use of the silhouette must not be a dominant factor of defendants’ advertising or signs on their premises;
      5. Using the word “Volkswagen,” the letters “VW,” the word “Bug,” or any other mark belonging to plaintiff to describe any " new or rebuilt automobile part or accessory, which did not originate with plaintiff, in phrases such as “Volkswagen Part,” “VW Part,” “Volkswagen Accessory,” “VW Accessory,” “Volkswagen Replacement Part,” “VW Replacement Part,” “Rebuilt Volkswagen Part,” “Rebuilt VW Part,” “Volkswagen Rebuilt Assembly,” “VW Crankcase,” and “VW Adaptors”;
      6. Making in any manner whatsoever any statement or representation or performing any act likely to lead the public or individual members of the public to believe that defendants are in any manner, directly or indirectly, associated or connected with, or licensed, authorized, franchised, sponsored, or approved by plaintiff or that their business forms part of the authorized Volkswagen organization; and
      7. Committing any other act which infringes any of plaintiff’s trademarks or service marks or amounts to an act of unfair competition.
      It is further ORDERED, ADJUDGED, AND DECREED that, in accordance with 15 U.S.C. § 11ÍC, defendants be and they hereby are required to file with the Court and to serve on plaintiff’s counsel within ninety (90) days after service of this Final Judgment and Permanent Injunction a report in writing, under oath, setting forth in detail the manner and form in which defendants have complied with this Final Judgment and Permanent Injunction.


author: INGRAHAM, Circuit Judge: AINSWORTH, Circuit Judge

text:
    Robert FIXEL, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.
    No. 72-3714.
    United States Court of Appeals, Fifth Circuit.
    April 10, 1974.

      Jerome M. Rosenblum, Hollywood, Fla., for petitioner-appellant.
    Robert L. Shevin, Atty. Gen., William Rogers, Asst. Atty. Gen., Tallahassee, Fla., for respondent-appellee.
    Before AINSWORTH, GODBOLD and INGRAHAM, Circuit Judges.
   INGRAHAM, Circuit Judge:

Petitioner Robert Fixel appeals from the district court’s dismissal of his petition for a writ of habeas corpus. Fix-el’s claim is that his conviction was based on evidence obtained as a result of an illegal search and seizure.

In late April 1970 Detective Sergeant - Joseph A. Valdes procured a search warrant to search petitioner’s home, an apartment in a four-unit apartment building, in Key West, Florida. Valdes, accompanied by Deputy Sheriff Sergeant George Knapp, proceeded to petitioner’s home to execute the warrant. When the officers arrived, Valdes instructed Knapp to conceal himself at the rear of the building and observe any activities that might occur. While watching the rear of the house, Knapp observed petitioner Fixel on three occasions leave the house and go to a particular place in the backyard. On each occasion Knapp watched petitioner remove a black shaving kit from beneath some rubbish located underneath a tree, but was unable to identify any object that petitioner was either removing or placing in the shaving kit.

While Knapp was watching the backyard, Valdes observed the front of petitioner’s house. Over a forty-five minute period, Valdes saw five or six people enter the building. Apparently each time someone entered Fixel woud go to the backyard, return and go back inside the building and then the visitors would leave. Finally, Valdes concluded his surveillance, met with Knapp and, while Knapp went into the backyard and got the shaving kit, Valdes executed the search warrant. Fixel was found in the apartment with three other persons, but no narcotics were discovered. Valdes testified that Knapp entered the apartment within two minutes after Valdes entered and had in his possession the black shaving kit from underneath the tree in the backyard. The bag and its contents were delivered to a chemical analyst, Henry Purcel, who testified at petitioner’s trial that the bag contained heroin. On the basis of this evidence, the jury found petitioner guilty for possessing the proscribed substance.

Petitioner appealed his conviction to the Florida Court of Appeals and that court affirmed his conviction. Without relying on the search warrant, the court of appeals held that “[t]he seizure was,, we think, incident to the lawful arrest.” Fixel v. State, 256 So.2d 27, 29 (Fla. App., 1971). The Florida Supreme Court denied certiorari without rendering an opinion.

Fixel petitioned for a writ of habeas corpus in the United States District Court for the Southern District of Florida. The court upheld the validity of the search because it felt that probable cause for Fixel’s arrest was established independently of the warrant. As the arrest and search were substantially contemporaneous, the court stated that the trial court did not err in refusing to suppress the heroin. With regard to the warrant, the court noted that “the record is clear that the state abandoned the claim that the seizure was made through the issuance of said warrant.” Likewise, our analysis proceeds on the premise that the search here was war-rantless.

I.

The first issue is whether the search and seizure that revealed the heroin can be sustained as incident to a lawful arrest. The Supreme Court in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), outlined the standard for conducting a search incident to a lawful arrest as follows:

“. . . When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest "itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. . There is ample justification, therefore, for a search of the arres-tee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.”

Id. at 762-763. Measured against this standard, the facts of this case do not support a lawful search of the black shaving kit. When Valdes entered Fixel’s home, Fixel was in the apartment, obviously not within reach of the black shaving kit hidden in the backyard. Indeed, Knapp obtained the shaving kit from the yard and brought it inside the apartment. There is simply no convincing argument that the shaving kit, concealed in the backyard of the building, was within the “immediate control” of petitioner, who was inside the apartment. Thus we cannot conclude that “the law enforcement officials on the scene reasonably expect [ed] the arrested person to gain hold of a weapon or evidence in the area searched.” United States v. Jones, 475 F.2d 723, 728 (5th Cir., 1973); see United States v. Harrison, 461 F.2d 1127, 1128-1129 (5th Cir., 1972), cert. den. 409 U.S. 884, 93 S.Ct. 174, 34 L.Ed.2d 140 (1972).

We find support for this conclusion in our recent decision of United States v. Bell, 457 F.2d 1231 (5th Cir., 1972). In Bell the defendant was arrested at the door of his home. After Bell was removed from the premises to be taken before the magistrate, the investigating officers began to search his home and yard. Invalidating the officers’ search of the yard under the even broader pre-Chimel standard, see Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), Judge Clark, writing for the court, specifically noted that “we have found no case that would permit this search to extend to the yard. The search of the yard was clearly too remote in time or place from the arrest to be incident to that arrest. The search began after Bell had been taken away and continued for more than two hours.” United States v. Bell, supra, 457 F.2d at 1240. Although the facts in Bell reflect a search more remote in time and place than in the instant case, we feel that the search of petitioner’s backyard exceeded the limitations enunciated in Chimel.

II.

The second issue is whether Fixel’s right against unreasonable searches and seizures was offended when the officer physically entered his backyard and seized and searched the shaving kit thus revealing the heroin. The sacredness of a person’s home and his right of personal privacy and individuality are paramount considerations in our country and are specifically protected by the Fourth Amendment. The Fourth Amendment’s protection, however, extends further than just the walls of the physical structure of the home itself. The area immediately surrounding and closely related to the dwelling is also entitled to the Fourth- Amendment’s protection. In defining the surrounding area entitled to such protection, the courts historically have found helpful the common law concept of curtilage, meaning “yard, courtyard or other piece of ground included within the fence surrounding a dwelling house.” Marullo v. United States, 328 F.2d 361, 363 (5th Cir., 1964), quoting Webster’s Third New International Dictionary (1962). See United States v. Molkenbur, 430 F.2d 563, 566 (8th Cir, 1970); United States v. Davis, 423 F.2d 974, 977-978 (5th Cir, 1970); United States ex rel. Boyance v. Myers, 398 F.2d 896, 899 (3rd Cir, 1968); United States v. Mullin, 329 F.2d 295, 298 (4th Cir., 1964). When officers have physically invaded this protected area, either to seize evidence or to obtain a view of illegal activities, we have readily condemned such an invasion as violative of the Fourth Amendment. United States v. Davis, supra, 423 F.2d at 977; Texas v. Gonzales, 388 F.2d 145, 147-148 (5th Cir., 1968); Brock v. United States, 223 F.2d 681, 685 (5th Cir, 1955); see Gil v. Beto, 440 F.2d 666, 667 (5th Cir., 1971).

Applying these traditional property concepts to the facts of the instant case, we are convinced that Fixel’s constitutional right has been violated. Although the record is unclear whether Knapp was physically encroaching on a constitutionally protected area when he made his initial observations, it is absolutely clear that Knapp unlawfully encroached on a protected area when he actually entered the backyard, seized the black shaving kit and searched it. Regardless of how suspicious the agents were that contraband was located on the premises, this fact alone does not justify a search of petitioner’s premises in the absence of a search warrant.

The government argues that, even assuming that this dwelling is Fixel’s home and that Fourth Amendment protections are normally afforded such places, the multi-unit character of this residence results in a relinquishment of any right of privacy relating to the backyard. Because it is located in a four-unit apartment building, the government contends that Fixel’s home should not be entitled to the protection usually afforded the curtilage of a purely private residence. Like a motel or large apartment complex, this backyard is an area common to or shared with other tenants, is open to the neighbors in the adjacent building and thus not within the guarantees of the Fourth Amendment. United States v. Stroble, 431 F.2d 1273, 1276 (6th Cir., 1970); United States v. Freeman, 426 F.2d 1351, 1353 (9th Cir., 1970); Marullo v. United States, supra, 328 F.2d at 363; United States ex rel. Fletcher v. Wainwright, 269 F.Supp. 276, 278 (S.D.Fla., 1967). We cannot agree.

The backyard .of Fixel’s home was not a common passageway normally used by the building’s tenants for gaining access to the apartments. United States v. Freeman, supra, 426 F.2d at 1353. Nor is the backyard an area open as a corridor to salesmen or other businessmen who might approach the tenants in the course of their trade. Polk v. United States, 291 F.2d 230, 232 (9th Cir., 1961), after remand 314 F.2d 837, 838 (9th Cir., 1963). This apartment was Fixel’s home, he lived there and the backyard of the building was completely removed from the street and surrounded by a chain link fence. See Hobson v. United States, 226 F.2d 890, 894 (8th Cir., 1955). While the enjoyment of his backyard is not as exclusive as the backyard of a purely private residence, this area is not as public or shared as the corridors, yards or other common areas of a large apartment complex or motel. Contemporary concepts of living such as multi-unit dwellings must not dilute Fix-el’s right to privacy any more than is absolutely required. We believe that the backyard area of Fixel’s home is sufficiently removed and private in character that he could' reasonably expect privacy. Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Thus Knapp’s actual invasion into this protected area and search of the shaving kit violates the Fourth Amendment.

Finally, we emphasize that “[w]e do not release a criminal from jail because we like to do so, or because we think it wise to do so, but only because the government has offended constitutional principle in the conduct of his case.” Having concluded that the search of Fixel’s backyard so offends constitutional principle, we order that his petition for habeas corpus be granted.

Reversed.

AINSWORTH, Circuit Judge

(dissenting) :

Petitioner Robert Fixel was convicted of possession of heroin in violation of Fla.Stat. 398.03. His conviction was affirmed by the Florida Court of Appeals (3d Dist.), 256 So.2d 27 (1971), and cer-tiorari was denied by the Florida Supreme Court. The Florida state courts, trial court, Court of Appeals and Supreme Court, found no constitutional infirmity in the conviction. Having exhausted state remedies Fixel brought this petition for habeas corpus, which was denied by the United States district judge below who found, as had the Florida state courts, that there was no violation of the Constitution in Fixel’s conviction.

Now the majority opinion of a panel of this Court has decreed that Fixel’s conviction was unlawful because it was based on an alleged unlawful search and seizure of the contraband narcotics. Despite overwhelming evidence of Fixel’s guilt, and strong evidence of probable cause to effect the seizure, the majority concludes that habeas corpus must be granted and Fixel, who has been at large on bond throughout these lengthy proceedings in the state and federal courts, must go unpunished for his crime in a misapplication of the exclusionary rule.

The pertinent facts are set forth fully, because they so emphatically support af-firmance of the conviction and denial of habeas corpus. Detective Sergeant Valdes of the Sheriff’s Department at Key West, Florida, applied for a search warrant to the Florida state court on April 24, 1970, for the premises 419 United Street, front downstairs apartment. His affidavit recited in part as follows:

“I have had 419 United Street, Front apartment, downstairs, (a wooden structure), Key West, Florida under surveillance for the past 30 days. During this time I have observed known narcotic pushers and users entering and leaving the premises. I have received information from a reliable informant that at this time there is a large quantity of marihuana and narcotic drugs being kept and sold on the premises. I have from a short distance observed this informant enter the premises described herein and exit these premises by way of the front entrance. Prior to this informant entering these premises, the informant was searched and was not in possession of any type of narcotic drug or marihuana. After observing this informant exit these premises I kept the informant within my sight for a short distance. I then searched this informant a second time and received a matchbox of suspected marihuana described by this infox'-mant as having been purchased within these premises. A conformatory test (Duquomoise Test) conducted on the substance within the matchbox indicated the weed substance to be marihuana. This matchbox of (tested) marihuana is being introduced before the judge as further evidence in support of the affidavit. This infox’mant has within the past five months furnished information that has led to 10 narcotic arrests.”

A search warrant was issued by the court on the same date for the premises 419 United Street, front downstairs apartment.

Detective Sergeant Valdes in company with several police officers, including Sergeant Knapp of the Sheriff’s Office, then proceeded to 419 United Street to execute the warrant. On arriving at the scene they decided first to engage in additional surveillance. The property was well known to Sergeant Valdes; in fact, it was owned by his gx'andfather and Valdes had been there many times. It consisted of a six-apartment complex, •made up of two houses: 419 United Street with four apartments, a front downstairs, a back downstairs, a fx’ont upstairs and a back upstairs apartment, and 421 United Street which consisted of two apartments, one downstairs and one upstairs. The two houses were not separated by a fence but had a common pathway between them, and there was one “big” back yard in common for the use of all the tenants of the six apartments, surrounded by a chain link fence. At the corner of United Street and Du-val Street was a house 1224 Duval Street which immediately abutted the common back yard of 419 and 421 United Street. Detective Sergeant Valdes placed Sergeant Knapp in a garage at 1224 Duval Street where he could overlook the common back yard at 419 and 421 United Stx'eet. He had a good view of the yard, which was being observed at noon in clear daylight. Valdes then went to the front of 419 United Street where he maintained surveillance.

The sux'veillance of the police officers lasted about 45 minutes. During that time Detective Sergeant Valdes saw five or six people enter separately from time to time in the front downstairs apartment at 419 United Street (the one for which he held a search warrant). He also observed the defendant Fixel come out of the front of the apartment on sevex’al occasions and walk through the common pathway between the two apartment buildings toward the back yard. Fixel was then picked up by the surveillance of Sergeant Knapp who saw him on three occasions go to a place in the back yard, remove a black shaving kit from a rubbish pile under a tree and take something from it each time. Sergeant Knapp could not see what was being taken from the kit, but he would have been more naive than we should expect of a prudent policeman if he had not realized .under all of the pertinent circumstances what was occurring. The officers did not enter the property or yard at any time during the surveillance. When Valdes returned to the garage Knapp told him what he had observed. Knapp then walked around to the front of 419, thence down the common pathway into the common back yard, secured the black kit, and joined Valdes who had just entered the front downstairs apartment and executed the search warrant. The defendant Fixel was found in the apartment and arrested with three other persons. A search was made of the apartment but no contraband was found. The shaving kit was found to contain eleven packets of heroin.

The State of Florida does not contend that the seizure of contraband narcotics in the yard of the apartment complex was authorized by the original search warrant. But it urges that the arresting officers acted with probable cause, that the seizure was incident to the arrest, that the common yard of the six-apartment complex was not protected by the Fourth Amendment against illegal activity conducted in plain view of the police, and therefore that the seizure was lawful. Fixel likewise had no reasonable expectation of privacy of objects hidden in the rubbish of a common back yard, open to the use of all the tenants of the complex.

The majority opinion concedes that there was probable cause for the initial arrest of Fixel. In footnote 1 of the majority opinion we find the following statement:

“Probable cause for the initial arrest of petitioner Fixel was established. An informer told law enforcement officials that a large quantity of narcotics was being sold on these premises. Using this same informer,’ the officers conducted a controlled purchase of marijuana, although it is not stated when the purchase occurred or if it was from Fixel. Furthermore, known traffickers in narcotics had been seen entering and leaving these premises. But most importantly, the officers observed the extremely suspicious actions of petitioner making trips to the backyard of his home and concealing the shaving kit there on the day of the arrest. In light of these circumstances, we think the agents could reasonably believe that a crime had been or was being committed. Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Gonzalez-Perez, 426 F.2d 1283, 1286 (5th Cir., 1970); Johnson v. Middlebrooks, 383 F.2d 386, 387 (5th Cir., 1967).”

But there likewise was probable cause for the seizure of the heroin found in the shaving kit in the common back yard. When all of the circumstances are considered, the seizure was not unreasonable within the intendment of the Fourth Amendment. The apartment had been under surveillance for 30 days and known narcotics pushers and users had been observed entering the premises. A reliable informant stated that there was a large quantity of narcotics being kept and sold on the premises. The informant made a controlled purchase of marihuana in the premises under supervision of the police officers. Then on a surveillance of the common back yard of the apartment complex, immediately preceding the serving of the search warrant, the police had ample reason to believe from their own observation that a felony was being committed in their presence and to act accordingly. See Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968); Walker v. Beto, 5 Cir., 1971, 437 F.2d 1018, 1019; United States v. Salvo, 5 Cir., 1971, 447 F.2d 474, 475.

It was not necessary under these circumstances for the police officers to secure a search warrant for, as the Supreme Court said in Cooper v. State of California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967):

“It is no answer to say that the police could have obtained a search warrant, for ‘ [t] he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.’ United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 435, 94 L.Ed. 653.”

Probable cause exists if the facts known to the officer cause him as a prudent man to believe that an offense has been committed; however, evidence sufficient to establish guilt is not required. Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959). See also Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); Brinegar v. United States, 338 U.S. 160, 164, 69 S.Ct. 1302, 1305, 93 L.Ed. 1879 (1949); United States v. Lipscomb, 5 Cir., 1970, 435 F.2d 795, 798 (the “prudent” man who “reasonably” believes the arrested person has committed an offense); United States v. Skinner, 8 Cir., 1969, 412 F.2d 98, 101 (probable cause turns upon the facts of the particular case).

Reasonableness is the touchstone, as the Supreme Court and this Court have often pointed out. “The Fourth Amendment does not denounce all searches and seizures, but only such as are unreasonable.” Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 283, 69 L.Ed. 543 (1925). Thus “[t]he ultimate standard set forth in the Fourth Amendment is reasonableness.” Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973). And as we said, for example, in United States v. Ragsdale, 5 Cir., 1972, 470 F.2d 24, 30:

“Reasonableness — as its more usual concomitant, probable cause — is founded not on technicalities, but on ‘factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ”

This is a slim case, indeed, to apply the exclusionary rule when the facts as recited so clearly show that the police had probable cause to seize the contraband narcotics. My strongly held belief is that the seizure here was reasonable under the facts and circumstances. No difficult question of law is presented. The case should have been resolved on its facts, which, as I view it, as did the several Florida state courts and the federal district judge below, required dismissal of Fixel’s petition of habeas corpus.

      . Probable cause for the initial arrest of petitioner Fixel was established. An informer told law enforcement officials that a large quantity of narcotics was being sold on these premises. Using this same informer, the officers conducted a controlled purchase of marijuana, although it is not stated when the purchase occurred or if it was from Fixel. Furthermore, known traffickers in narcotics had been seen entering and leaving these premises. But most importantly, the officers observed the extremely suspicious actions of petitioner making trips to the backyard of his home and concealing the shaving kit there on the day of the arrest. In light of these circumstances, we think the agents could reasonably believe that a crime had been or was being committed. Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Gonzalez-Perez, 426 F.2d 1283, 1286 (5th Cir., 1970); Johnson v. Middlebrooks, 383 F.2d 386, 387 (5th Cir., 1967).

      . We emphasize that the warrant issued ostensibly authorizing the search of Fixel’s apartment, was not relied on by either the Florida Court of Appeals or the district court to justify the search and seizure of the heroin. Additionally, in oral argument the state conceded that tiie warrant was not such that it would authorize the search of the backyard.

      . While our analysis holding the search here unlawful is founded largely on property law concepts, more recent Supreme Court decisions tend to discard such concepts when defining the individual’s “right to be let alone,” recognizing that they alone may be insufficient to protect this right. Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Texas v. Gonzales, supra, 388 F.2d at 148. We rely on these principles simply because they assist in establishing the perimeters of the Fourth Amendment guarantees as they relate to the home. Therefore, we feel it is unnecessary to discuss the more nebulous concept of whether there could be a visual in-trusión in violation of the Fourth Amendment in the absence of an actual encroachment on the premises.

      . The state attempts to justify the search and seizure of the shaving kit based on the “plain view” doctrine. It is argued that, when Knapp made his initial observations of petitioner in his backyard, he observed the bag and thus could seize and search it. This contention is unacceptable. As the Supreme Court delineated in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 504 (1971):
      “ . . . [Pjlain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a war-rantless search or seizure absent ‘exigent circumstances.’ Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.”

        Id. at 468. It is undisputed that Knapp actually entered the backyard and obtained the shaving kit. Because there was no warrant authorizing such an encroachment, the search and seizure were unlawful.
      An additional difficulty with the state’s contention is that the law enforcement officers did not “plain view” the narcotics contained in the shaving kit, but only suspicious activities and the kit itself. The testimony at trial clearly establishes that Knapp could not identify any object that was being placed in or taken out of the bag. But in an attempt to verify his suspicions that the bag contained narcotics, Knapp entered the premises, seized the bag and searched it in contravention of petitioner’s Fourth Amendment rights.
      The state also urges that “exigent circumstances” were present which justify the war-rantless search and seizure. It reasons that if the officers had not entered the premises and seized the shaving kit, subsequent sales of the narcotics would have depleted the evidence. How petitioner could have sold or otherwise disposed of the narcotics after the officers placed him under arrest and he was in their custody is inconceivable. After arresting the petitioner, the agents had ample opportunity to resort to the judicial process for the issuance of a warrant without fear of additional sales depleting the evidence. See United States v. Sokolow, 450 F.2d 324, 325 (5th Cir., 3971). See also United States v. Conner, 478 F.2d 1320, 1324 (7th Cir., 1973).

      . Desist v. United States, 394 U.S. 244, 258, 89 S.Ct. 1030, 1039, 22 L.Ed.2d 248 (1909) (Harlan, J., dissenting).

      . The district court (Judge Eaton) in a well-reasoned opinion concluded:
      “On the basis of the facts set out in the testimony we agree with the holding of the [state] trial court that probable cause existed to justify Fixel’s arrest without a warrant. It follows that the trial court did not err in denying Fixel’s motion to suppress the evidence. Under the circumstances here, the arrest and the search were substantially contemporaneous. This being so the seizure of tlie evidentiary items was not violative of tlie Fourth Amendment ahd said items were, therefore, properly admitted at petitioner’s trial.”

      . Compare the following cases relative to search of common areas, which, though not precisely in point, are applicable in principle: United States v. Stroble, 6 Cir., 1970, 431 F.2d 1273; United States v. Freeman, 9 Cir., 1970, 426 F.2d 1351; Marullo v. United States, 5 Cir., 1964, 328 F.2d 361.

      . The majority’s reliance on Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), is misplaced. Mr. Justice Stewart, author of the opinion, was careful to point out that Coolidge “is not a case involving contraband or stolen goods or objects dangerous in themselves.” (403 U.S. at 472.)
      It should also be emphasized that the quoted language of the Coolidge opinion (403 U.S. at 468) in the majority opinion herein, is found in the Supreme Court Reporter under key numbers 23-25 and the syllabi thereunder indicate the following:
      “Per Mr. Justice Stewart with three Justices concurring and one Justice concurring in the judgment.” (Mr. Justice Harlan who concurred in the judgment declined to concur in that part of the opinion quoted by the majority in the present case.)
      Thus it appears that less than a majority of the Court concurred in the cited language. Nevertheless, we disagree with the majority ia the present case that there were no “exigent circumstances” to justify the seizure. The majority concludes that it is “inconceivable” that Fixel could have disposed of the contraband narcotics while the police were obtaining another search warrant, since Fixel was then under arrest. Whether Fixel could have been held without the contemporaneous seizure of the narcotics, whether he was in league with others who might make off with the contraband, and whether the police should believe as a practical matter that the contraband would remain in the kit under the tree, are all subjects of speculation, as is the majority’s view, but certainly not “inconceivable.” The officers had a duty to preserve the evidence and the taking of prompt action by them was amply justified and' reasonable under the circumstances.


author: GEE, Circuit Judge:

text:
    STATE OF FLORIDA et al., Plaintiffs-Appellants, v. Caspar W. WEINBERGER, Secretary, Health, Education and Welfare, Defendant-Appellee.
    No. 73-1728.
    United States Court of Appeals, Fifth Circuit.
    April 10, 1974.

      Robert L. Shevin, Atty. Gen., S. Strome Maxwell, Asst. Atty. Gen., Tallahassee, Fla., Eli H. Subin, Orlando, Fla., William A. Geoghegan, George D. Webster, Washington, D. C., William L. Rogers, Asst. Atty. Gen., Miami, Fla., for plaintiffs-appellants.
    Stewart J. Carrouth, Asst. U. S. Atty., Tallahassee, Fla., Harlington Wood, Jr., Asst. Atty. Gen., Robert E. Kopp, Robert S. Greenspan, David Cohen, Civil Div., Appellate Section, U. S. Dept. of Justice, Washington, D. C., for defendant-appellee.
    Before GODBOLD, DYER and GEE, Circuit Judges.
   GEE, Circuit Judge:

The State of Florida, joined by its own licensing board for nursing home administrators and its members, as well as by various national and state associations of examiners, nursing homes and administrators, seeks a determination of the validity of a regulation promulgated by defendant, Caspar W. Weinberger, in his capacity as Secretary of the United States Department of Health, Education and Welfare. The regulation (45 C.F.R. § 252.10) redefines what sort of a state licensing board for nursing home administrators will qualify for the Medicaid program. The major revision of the original definition alters it so that a board containing a majority of nursing home administrators will no longer pass muster. Florida, having acted under the former definition, has such a board. Other provisions of the regulations are also attacked. The court below refused the injunctive and declaratory relief sought and, finding neither ripeness for review in the cause nor standing in any plaintiff, dismissed the case. Finding both, we reverse and remand for a determination of the merits.

I.

The Case and Its Posture

Medicaid is a program established by Congress under which participating states receive funds for use in providing medical assistance to the aged, blind, disabled and others under certain specified disadvantages. States such as Florida wishing to participate must secure the Secretary’s approval of a medical assistance plan meeting the requirements of 42 U.S.C. § 1396a. Among these are providing an agency to license nursing home administrators, if such homes are to figure in the plan. Any omnibus agency established by state law to license the healing arts is to perform the function; if there is none, a board is to be created to do so which is “. representative of the professions and institutions concerned with care of chronically ill and infirm aged patients . . . 42 U.S.C. § 1396g(b). A brief chronology may be of assistance in understanding how the parties arrived at the posture in which we find them.

Prior to the issuance of regulations by the Secretary relating to the requirements for such boards, his official position regarding their composition was contained in a letter of January 29, 1970, reading in part as follows:

The Department of Health, Education and Welfare . . . would not object to a State board consisting of a simple majority of members representing one group, provided the remainder of the board membership is representative of the other professions and institutions concerned with the care of nursing home patients. As an example, a nine-man board might consist of five nursing home administrators, with the remaining four members representative of such other professions as the medical, nursing, hospital administrators, or educators in the health disciplines.

On February 28, 1970, interim regulations were published by the Secretary which tracked the statutory language without significant change.

Effective July 7, 1970, Florida passed its statute governing the composition of its board, establishing an 11-member board consisting of six licensed nursing home administrators and five other members drawn from the ranks of other germane callings. Florida Statutes § 468.166, F.S.A.

On September 9, 1971, the Secretary proposed a regulation adding to the definition of the term “board” as used in his regulation the following language:

provided that less than a majority of the board membership shall be representative of a single profession or institutional category, and provided further that the non-institutional members shall have no direct financial interest in nursing homes.

On March 29, 1972, this regulation was adopted as a final one. It became effective on July 1,1973.

Thus, at this time, Florida law requires a majority of nursing home administrators on its licensing board, and the Secretary’s regulation forbids one.

Joined by various professional groups, Florida brought suit. asserting that the amended regulation exceeded the Secretary’s powers in this and other respects and seeking declaratory and injunctive relief. Jurisdiction was alleged under federal question, declaratory judgment and administrative procedure act heads. The Secretary sought dismissal of the action for failure to state a claim upon which relief could be granted, lack of personal and subject matter jurisdiction, and want of standing to sue. Cross-motions for summary judgment were filed and plaintiffs’ application for injunction pendente lite was noticed. Upon hearing the court denied the relief requested by plaintiffs, granted defendant’s motion for summary judgment and dismissed the complaint on grounds of want of standing in any plaintiff save Florida, lack of ripeness of the controversy for decision, and the existence of an adequate remedy at law.

Plaintiffs’ appeal presents only the issues of standing and ripeness for review. The Secretary counters, treating these two issues under the general rubric of standing and asserting as well both sovereign immunity and the correctness of his position on the merits— that is, that the regulation is a valid exercise of his authority. Since our disposition does not reach the merits, we emphasize at the outset that nothing herein is intended as intimating any views whatever upon them.

II.

Ripeness for Review

The standards which must guide our decision of this issue are provided by Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), and the companion cases of Toilet Goods Association v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967), and Gardner v. Toilet Goods Association 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967). They are succinctly stated in the Abbott majority opinion, at 387 U.S. 148-149:

Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and. also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.

The basic rationale stated -by Mr. Justice Harlan seems amply fulfilled here. There is nothing abstract about this disagreement, and the Secretary has set a collision course with Florida law in a formal and final regulation which is backed by grave sanctions and which demands, if valid, immediate compliance.

As for the Court’s specific, two-pronged test, the issue posed on the merits is a classic one for judicial treatment: whether particular regulations promulgated by the Secretary are within his authority. As in Abbott, both sides have moved for summary judgment, and no claim is made that further administrative proceedings are contemplated. And as in Abbott, the Secretary’s full-dress argument to us on the merits of the regulation’s validity proceeds entirely in terms of congressional intent and makes little or no appeal to factual justifications. The regulation is final and is formally and actually in effect. Indeed, the Secretary seems obliquely to concede fitness of the issue for judicial decision by quoting the Abbott test in both its aspects but disputing only its hardship facet.

As for that hardship, the state is presently faced with the dilemma whether to bow to the Secretary’s volte-face and amend its laws and procedures, with all the likely financial outlay and certain legislative and administrative effort which that process entails, or to risk the at least temporary loss of funding which a conformity hearing by the Secretary could well produce. Indeed, only the holding of such a hearing stands between Florida and these consequences as we write. In the process of enacting his regulation, the Secretary has already necessarily determined that it complies with the Act, and if it does, plainly Florida law does not. One consequence of such a finding by him in a conformity hearing is an immediate and mandatory termination of funding, either of the non-conforming portion of Florida’s plan or, in the Secretary’s discretion, of the entire Florida Medicaid program. 42 U.S.C. § 1396c. The calamitous prospect of such a loss of funding, even for a short period, to the state and to the disadvantaged citizens for whom it stands parens patriae is so grave as to suffice for such hardship as may be required. Faced with the serious risk of such sanctions, there is no need for Florida to stand by while the Secretary ticks, hoping that he will not go off.

A similar situation was dealt with by the Supreme Court in Columbia Broadcasting System v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942), a suit under the Urgent Deficiencies Act, 38 Stat. 219. Held reviewable was a Federal Communications Commission regulation proscribing certain contractual arrangements between chain broadcasters and local stations. The regulations sought to be reviewed merely advised that stations maintaining such network contracts would not be licensed, though the FCC had no authority to regulate such contracts directly. At a time when no license had been denied or revoked, the Supreme Court held:

The regulations are not any the less reviewable because their promulgation did not operate of their own force to deny or cancel a license. It is enough that failure to comply with them penalizes licensees, and appellant, with whom they contract. If an administrative order has that effect it is reviewable and it does not cease to be so merely because it is not certain whether the Commission will institute proceedings to enforce the penalty incurred under its regulations for noncompliance.

316 U.S. at pages 417-418.

See also Frozen Food Express v. United States, 351 U.S. 40, 76 S.Ct. 569, 100 L.Ed. 910 (1956), and United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081 (1956).

As in Abbott, supra, the Secretary’s regulations constitute, an authoritative interpretation of a statutory provision governing the composition of Florida’s nursing home administrator licensing board, one which the state ignores at its peril. .The Secretary points out that, in the event of a conformity hearing and an adverse ruling, an application to this Court to stay the enforcement of his order can be made by the state. There is, however, no guarantee that such a stay would issue and, should one issue and Florida nevertheless lose its appeal, the stay would presumably be dissolved and an unseemly legislative scramble precipitated. We are unable to see the reason, especially where the confrontation has been the result of the Secretary’s adoption of a regulation at variance with his former policy upon which the state presumably relied in constructing its statutory agency, in placing the sovereign state of Florida at such risk when so little would be gained by doing so and so much might be lost. The lines are drawn, the positions taken, and the matter is ripe for judicial review.

III.

Standing

The basic concept of standing to invoke the judicial process is epitomized in Mr. Justice Brennan’s concurring opinion in Association of Data Processing Service Organizations, Inc. v. Camp and Barlow v. Collins, where he wrote:

Although Flast v. Cohen, [392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947] was not a ease challenging agency action, its determination of the basis for standing should resolve that question for all cases. We there confirmed what we said in Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), that the “gist of the question of standing” is whether the party seeking relief, has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult * * * questions.” “In other words,” we said in Flast, “when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue” and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant’s action invaded. 392 U.S., at 99-100, 88 S.Ct. 1942, 1952-1953, 20 L.Ed.2d 947. The objectives of the Article III standing requirement are simple: the avoidance of any use of a “federal court as a forum [for the airing of] generalized grievances about the conduct of government,” and the creation of a judicial context in which “the questions will be framed with the necessary specificity, * * * the issues * * * contested with necessary adverseness and * * * the litigation * * * pursued with the necessary vigor to assure that the * * * challenge will be made in a form traditionally thought to be capable of judicial resolution.” Id., at 106, 88 S.Ct. at 1955-1956. Thus, as we held in Flast, “the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.”

It seems clear that, considerations of ripeness and sovereign immunity aside, the State of Florida has standing, arising from its clear interest both in the manner in which the Medicaid program is administered vis-a-vis its citizens and in being spared the reconstitution of its statutory program, to litigate the merits of this case. Indeed, it is very doubtful that the court below found otherwise. We hold that Florida has standing. As to the other categories of plaintiffs presented by the record, the matter is more dubious; and, in view of the remand which we order, it becomes necessary for us to consider each to determine his standing or want thereof at a trial of the merits.

From Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970), we learn that standing such as the non-state plaintiffs herein assert under Section 10 of the Administrative Procedure Act exists only in those who allege that the Secretary’s regulation, if upheld, will cause them an injury in fact, and that the injury, moreover, will be to an interest arguably within the zone of interests to be protected or regulated by the statute which the Secretary’s regulation authoritatively interprets. By Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), we are cautioned that a mere special concern with the purposes of the statute, no matter how devout or long-maintained, will not suffice; an interest, economic or otherwise, must be alleged to be at stake. Finally, from United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), we learn that this interest, if genuine, may be small — no more than “an identifiable trifle.” We add, from a consideration of the above authorities and others, that injury to the interest must, in the event of a decision adverse to the position of the party asserting standing, be not conjectural or speculative, but certain.

Applying these tests to the non-state plaintiffs who are before us on this appeal produces the conclusion that all have standing except plaintiffs Mary R. Tracy, William R. Stinger, M. D., the Florida Nursing Home Association and the American Nursing Home Association.

The Florida licensing board itself appears to have alleged a proper concern with statutes governing its own composition and an interest of a substantial nature in the continuation in office of two of its present members who are clearly disqualified by the Secretary’s regulation. (In so stating, here and hereinafter, we use the term “concern” as a shorthand rendition of the presence of an interest advanced by a party which is arguably within the zone of interest to be regulated or protected by the statute under consideration.)

The nursing home administrator members of the board likewise plead such a. proper concern, and each has alleged a sufficient interest at stake in that one among them will necessarily lose his seat on the board if the regulation is upheld. Which one cannot now be known.

The remaining plaintiffs have each alleged a proper concern with the interpretation of the statute in the sense stated, and all but the four noted above have likewise alleged at least a small but genuine interest at stake. One of the other board members, Lois Knowles, R. N., presents herself as a non-institutional board member having a direct financial interest in a nursing home. As such, she is affected by the portion of the regulation which disqualifies such persons for board membership. The other two board members, however, one a physician alleging no direct interest in such a home, and the other a member of the public at large alleging no such interest, will not be disqualified by the upholding of the Secretary’s regulation and have no direct interest at stake.

The remaining plaintiffs are all associations of one kind or another.

The National Association of Boards of Examiners for Nursing Home Administrators, on the principle of SCRAP and Sierra Club v. Morton that associations may participate in defending the interests of their members, derives standing from that found above in the Florida board which, on a liberal construction of the pleadings, is alleged to be a member of that association.

The Florida Nursing Home Association, an association of Florida nursing homes, and the American Nursing Home Association, the parallel national association, have alleged no discernible interest at stake, however proper their concern may be with the qualifications of the administrators in their field. They come closest to doing so in attacking the portion of the regulation which permits provisional licensing of administrators who do not meet all qualifications, apparently a mild species of grandfather clause; however, in our view, they fail even in this, since the homes which they represent are not required to hire any such provisionally licensed administrator. It may be that a basis for standing in these groups is intimated by the complaint’s allegations that the regulations improperly exempt from hiring licensed administrators those nursing homes which are separate and distinct parts of hospitals, but in the present state of the pleadings no allegations designate or particularize any interest in the nursing homes not exempted which is injured by this distinction.

The American College of Nursing Home Administrators, however, stands upon sounder, if somewhat slender, footing. Its members, together with the present members of the Florida board who are nursing home administrators, appear to us to have alleged standing derived from an interest in not being required to admit into the profession (and perforce compete with) persons provisionally licensed under the regulation mentioned next above, who are characterized as “unqualified.” They also assert standing grounded in the loss of public respect for their members’ profession which will be occasioned by a determination, such as the Secretary has made in the principal regulation attacked, that the nursing home administrators’ profession is not of such a status as to be trusted to regulate the licensing of its own members by a majority on its licensing board. This is a faint and tenuous interest; however, obedient to our apprehension of the SCRAP opinion, supra, we are convinced that, if real, it is at least “an identifiable trifle.” Nor can we say that the dignity of a decisive degree of self-regulation of any aspect of a profession is one of no value to its members, either as a matter of fact or of prestige.

If these be thought gossamer distinctions, we can only rejoin that SCRAP’S ingenious law students have caused us to be translated to ethereal realms, where we must function as best we are able.

The Secretary perfunctorily advances sovereign immunity. To this contention a sufficient answer is that the complaint contains the classic allegations of action beyond the minister’s delegated powers and that these, should plaintiffs prevail on the merits, must perforce be established since his regulations are challenged on no other ground.

Reversed and remanded.

      . We read the order below as finding standing to sue on the part of Florida, though the court’s opinion entwines this question with that of ripeness for review in such a manner as to render its decision of this issue unclear.

      . Under the regulations, for example, two of the plaintiffs here presently hold their positions on the board illegally, as will appear more fully later in our opinion.

      . 397 U.S. 150, 99 S.Ct. 827, 25 L.Ed.2d 184 and 397 U.S. 159, 170-171, 90 S.Ct. 832, 840, 25 L.Ed.2d 192 (1970).

      . Handed down after the decision below, so that the court below had benefit neither of its language nor its thrust.