author: AINSWORTH, Circuit Judge: GODBOLD, Circuit Judge

text:
    Willie Lee SHEPHARD, Plaintiff-Appellant, v. S/S NOPAL PROGRESS et al., Defendants-Third Party Plaintiffs-Appellees, v. T. SMITH AND SON, INC., Third Party Defendant-Appellee.
    No. 73-2031.
    United States Court of Appeals, Fifth Circuit.
    July 26, 1974.
    Rehearing and Rehearing En Banc Denied Oct. 7, 1974.

      Walter F. Gemeinhardt, New Orleans, La., for plaintiff-appellant.
    John A. Bolles, Benjamin W. Yancey, New Orleans, La., for A/S Sobral and Nopal.
    Maurice C. Hebert, Jr., New Orleans, La., for Smith & Son.
    Before WISDOM, AINSWORTH and GODBOLD, Circuit Judges.
   AINSWORTH, Circuit Judge:

This suit involves a claim for damages of a longshoreman against a ship and its owner, for personal injuries sustained while unloading the vessel. Appellant, Willie Lee Shephard, a longshoreman employed by T. Smith & Son, Inc., was injured on July 14, 1968 while unloading cargo from the M/S NOPAL PROGRESS, owned and operated by A/S Sobral at the port of New Orleans. He filed suit against the ship and its owner under the Jones Act and general maritime law, alleging negligence and unseaworthiness. Defendant A/S Sobral in turn filed a third-party claim for indemnity against the stevedoring company, T. Smith & Son, Inc. The Jones Act claim was subsequently dismissed and the case proceeded to trial before a jury. At the conclusion of plaintiff’s evidence, the trial court sustained defendants’ motion for a directed verdict against plaintiff, based on his finding that the accident was caused solely by the operational negligence of plaintiff’s co-workers. Trial of the third-party complaint against T. Smith & Son, Inc. was stayed by the court pending the outcome of this appeal by Shephard.

Appellant contends that the trial court was in error in granting a directed verdict inasmuch as there was evidence showing that the accident and resultant injuries were caused by the unseaworthinss of the vessel and/or the negligence of A/S Sobral in failing to provide a safe place to work, both of which questions should have been resolved by the jury. We disagree. We find that a directed verdict in favor of defendants was proper and affirm.

On July 14, 1968, T. Smith & Son was discharging a cargo of frozen meat from the No. 3 hold of the M/S NOPAL PROGRESS in the Mississippi River at New Orleans. The cargo was contained in packages which were numbered to distinguish the types of meat. Warm air meeting the refrigerated air caused a foggy or hazy condition to prevail which decreased visibility in the hold. The operation consisted of separating the different packages and loading them on to pallet boards which were lowered by derrick into the refrigerated hold. The pallet boards were taken up from the hold by the use of spreader bars which fit on each side of the pallet board. Four men were working each pallet board, two to each side. After the spreader bars were unhooked by the men the foreman would signal the derrick-man, who would then signal the winch operator to pull up on the load. Two crews of longshoremen were working inside the No. 3 hold. At approximately 2 a. m., plaintiff was hit behind the right ear by a spreader bar and the attached hook when the spreader bar was prematurely released from the pallet board. The accident caused the injuries to plaintiff which form the basis of this complaint.

Appellant contends that the overcrowded and foggy refrigerated hold constituted unseaworthiness and an unsafe working place, and that by permitting such a condition to exist the shipowner was guilty of negligence, which negligence and unseaworthiness were proximate causes of the accident.

It is a familiar and well-established rule that it is the shipowner’s obligation to furnish seamen and longshoremen performing seamen’s work a seaworthy vessel, including seaworthy appurtenances and equipment, as well as a safe place to work, and this obligation extends to the area where the loading and unloading operations are performed. Mahnich v. Southern S. S. Co., 321 U.S. 96, 102, 64 S.Ct. 455, 458, 88 L.Ed. 561 (1944); Strachan Shipping Company v. Alexander, 5 Cir., 1962, 311 F.2d 385, 386; Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). Equally familiar is the rule that the warranty of seaworthiness owed by the shipowner extends to the gear of the stevedore as well as that of the ship. Alaska Steamship Company v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 (1954). Appellant does not contend, however, that any of the stevedore’s hoisting or loading gear nor the ship’s gear to which it was attached was defecfive or malfunctioning. The testimony was unanimous to the contrary. Instead appellant attributes his injuries to the fog and crowded conditions in the hold.

Although there was evidence that the No. 3 hold was crowded, this condition cannot be attributed to the shipowner. It was the stevedore’s decision to use two gangs instead of one. The unloading operation was performed and supervised solely by the stevedoring company. We have held that the mere fact “that the area in which a longshoreman may be obliged to work is cramped or confining does not render the area unsafe as a matter of law.” Wilson v. Societa Italiana de Armamento (Sidarma), 5 Cir., 1969, 409 F.2d 484, 485. Despite the fact that two gangs were working the hold, there was no evidence connecting a crowded condition to the accident, nor was there evidence that such a condition interfered with the usual procedure of lowering or hoisting the gear and cargo or attaching or disengaging the spreader bars.

There is no dispute that the No. 3 hold was filled with vapor or fog because of the frozen cargo. However, there is likewise no dispute that this was normal arid expected. More importantly, there is nothing in the record to show that the fog in any way caused the accident. Appellant places great emphasis on the fact that the haze limited visibility within the hold and that the men had difficulty in separating the packages of meat by identifying numbers. Nevertheless the two holds situated above the No. 3 hold had been unloaded prior to the accident. There is no evidence or indication of mistake having been made by the longshoremen in selecting the wrong packages for loading. Despite the fog, visibility was adequate to enable Elson Jones, a longshoreman working in the No. 3 hold, to observe from a distance of 15 to 17 feet that at the time of the accident one of the spreaders had been disengaged from the pallet board and that Shephard’s spreader was still attached.

In order to prevail plaintiff must show that either the unseaworthiness of the vessel or the negligence of the shipowner proximately caused his injury. This plaintiff failed to do. We have reviewed the entire transcript and the record and find no evidence that either the crowded condition of the hold or the fogginess produced by the frozen cargo proximately caused the accident. On the other hand, there is convincing evidence that the accident and resultant injuries were solely and proximately caused by the operational negligence of employees of the stevedore company. The record shows that immediately prior to the accident empty pallets had been lowered into the hold. Appellant and his three co-workers were in the act of disengaging the spreader bars from a pallet board when the accident suddenly occurred, obviously because of the lack of coordination among the men.

On cross-examination plaintiff was asked:

Q. Mr. Shephard, as I understand it, while you still had your spreader bar engaged, someone heaved on the winch, and the winch moved and the spreader bar moved; is that right?
A. Yes, sir, the winch jacked up.

He was further asked on cross-examination :

Q. I say, it is not unusual for one gang to have their spreader bar out before the other one, isn’t that right?
A. That happens often, two of them —their end might get kind of fouled up or something, and they are kind of slow getting it out, but the other end will stay loose, and they can get it out faster, you know.
Q. In other words, you hadn’t yet tried to pull your end out when this accident happened, is that right ?
A. I was trying to get it out.

The winch operator explained that if a man inadvertently releases the spreader prematurely it may result in injury. He testified on cross-examination:

If you have two men working in the ship’s hold, handling the spreader bar and hooking the load, and if they unhook a spreader bar, and one side gets unhooked, and the other side is not completely unhooked, and someone says “Get up”, and you get up, someone is bound to get hit with the other spreader bar, because the weight is going to pull the bar out of the other fellow’s hand, and it will swing over and hit somebody.

Three fellow workers, eyewitnesses to the accident, corroborated the fact that the spreader hit plaintiff without warning during the unloading operation. In answer to the trial judge’s question Chaz Ward testified to this version of the accident:

When they pull the board, they pull it, you understand, to the coaming, and it was loaded, and then one end was so low down from the way the load was that it jumped loose, and that made the spreader bar swing away from the coaming of the ship, coming this way, to him, and before he could get out of the way, you understand, the man done lowered down the whole spreader bar down on top of his head.

Another eyewitness, Julius Mills, who was working as Shephard’s partner, testified on cross-examination:

They lowered down on him, do you understand what I mean? He wasn’t expecting it, because it just missed me. You know what I mean. It almost got me. The meat was blocked out, you understand, and he had no room to get out of the way.

On direct examination, Elson Jones, who was working in the vicinity, testified:

They landed the board, and the men on the offshore side was unhooking the spreader bars, and the ones on the inside they did not unhook them, and when they got up on the spreader bars, all of a sudden they came down on Willie’s head, and spreader bars and all.

Jones was further questioned on cross-examination:

Q. And you saw the other side disengage their spreader bar from the pallet board, is that what you said?
A. Right.
Q. Had Mr. Shephard gotten his loose yet?
A. No.

The derrickman testified that he had received a signal from the foreman which he relayed to the winchman. The winch operator testified that he received the signal from the derrickman.

Thus the evidence offered by plaintiff shows nothing more than that the negligence of one or more of his fellow workers caused the accident, as the result of ill timing or lack of coordination, occurring at the instant of the mishap.

It is now well settled that the isolated, personal negligent act of a longshoreman’s co-worker does not render a vessel unseaworthy. Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 500, 91 S.Ct. 514, 518, 27 L.Ed.2d 562 (1971). See also Antoine v. Lake Charles Stevedores, Inc., 5 Cir., 1.967, 376 F.2d 443, 447; Grigsby v. Coastal Marine Service of Texas, Inc., 5 Cir., 1969, 412 F.2d 1011; Duncan v. Trans-eastern Shipping Corporation, 5 Cir., 1969, 413 F.2d 1023, 1024; and Robinson v. M/V Merc Trader, 5 Cir., 1973, 477 F.2d 1331, 1333, which stand for the principle that the momentary operational negligence of a fellow worker occurring at the time of injury does not convert an otherwise seaworthy vessel into an unseaworthy one. We find that this case is governed by the cited authorities above. Thus a directed verdict was mandated at the conclusion of plaintiff’s case under the holding of Boeing Company v. Shipman, 5 Cir., 1969, 411 F.2d 365 (en banc). Boeing requires that the district court direct a verdict “[i]f the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict.” 411 F.2d at 374. This was such a case.

Affirmed.

GODBOLD, Circuit Judge

(dissenting).

When all the evidence is considered this was a normal jury case.

(1). How did the accident happen? The majority conclude that it occurred from lack of coordination among the members of the stevedore crew. But merely examining the testimony quoted in the majority opinion reveals that there are two versions. One is that when Shephard’s side of the spreader bar was still engaged and the other side disengaged, the winch lifted up on the spreader, causing the other end to swing around and strike Shephard. The other version (see quoted testimony of Ward and Mills) is that when a pallet was being lowered into the hold the spreader bar struck Shephard on the head. Ward described in detail that, rather than the spreader bar being disengaged by the workmen in the hold, it jumped loose from the pallet because of the manner in which the pallet was loaded, after which, before Shephard could get out of the way, the winchman let the loose spreader down on Shephard’s head.

Choice between these competing versions was for the jury. The selection of versions is important, because, if the jury chose to believe that Shephard was struck during a lowering operation, then this additional testimony of Mills, Shephard’s partner, becomes vital:

A. They lowered down on him, do you understand what I mean? He wasn’t expecting it, because it just missed me. You know what I mean. It almost got me. The meat was blocked out, you understand, and he had no room to get out of the way.
Q. Did that hook that hit him disengage or come loose from the falls?
A. It did not come loose, but it hit him, you understand what I mean? I got out of the way, hut he couldn’t go nowhere hut right there, and it hit him, you understand what I mean.
* * * * * *
A. Wait, Cap, let me tell you. I told you'all exactly how it happened. I said when they lowered the whole thing down, that’s what hit him.
-X- X -X- -X -X X
Q. And that’s [the hook holding the spreader bar] what hit him, is that right?
A. They lowered it down, and it hit him, yes sir.

(2). Crowded conditions in the hold. Two gangs, close to 20 men, were working in the hold under crowded conditions. The gangs were using two pallet boards, on each of which was piled packages of meat, after which the loaded pallet was winched out through the hatch opening. The men were working back to back between the two pallets. The foreman of Shephard’s crew described it as a “dangerous disposition” to have two gangs in this particular hold. He referred to the unloading procedure thusly:

Q. Could you describe the dangerous condition that you said existed in the lower hold at that time ?
A. Well, it was a hazard working like that.
Q. Like what, sir ?
A. I mean, working them men between them boards, two gangs— no way to get out of the way.

Oftentimes two gangs work in the same hold of a refrigerator ship, but the union delegate testified that he had never before heard of two gangs working in the particular hold of this vessel because of its small hatch. Prior to the accident one or more stevedores considered the working conditions so dangerous in the hold that a complaint was made to the union representative. A union delegate was called and came aboard to intercede concerning the dangerous conditions. He told the foreman the hatch was too small for two gangs to be working. The foreman referred him to the superintendent with whom the delegate then discussed the matter. The delegate was still aboard when Shephard was hurt. The delegate stopped one of the gangs from working because of the conditions. The gang was pulled off for about an hour and a half, and was put back to work on orders of the superintendent. After that the accident occurred.

To this evidence, the majority responds with findings to this effect: (a) there was no evidence connecting the crowding to the accident; (b) crowding is not unseaworthiness as a matter of law; (c) in any event, the crowded conditions cannot be attributed to the shipowner because the loading operation was performed and supervised by the stevedoring company.

As to (a), as I already have pointed out, witness Mills squarely relates crowding to the accident. As to (b), the issue is not whether crowding rendered the area unsafe as a matter of law but whether, with evidence having been presented of crowding and of its causal relation to the accident, the trial judge may decline to submit to the jury the issue of the lack of safety from crowded conditions. As to the third reason,

It is well settled that an improper method of handling cargo employed by a stevedore can create an unseaworthy condition. Morales v. City of Galveston, 1962, 370 U.S. 165, 170, 82 S.Ct. 1226, 8 L.Ed.2d 412; Marshall v. Ove Skou Rederi A/S, 5 Cir. 1967, 378 F.2d 193, 196. Thus, the determinative question on this appeal is whether or not defendant employed an improper method of handling cargo.

Baker v. S/S Cristobal, 488 F.2d 331, 332 (CA5, 1974). For a lengthy catalogue of some of the federal cases holding unsafe unloading to be unseaworthiness, see Blassingill v. Waterman Steamship Corp., 336 F.2d 367 at 369 (CA9, 1964). The crowded conditions and the fog were conditions that had been in effect for several hours and are not even arguably “instantaneous unseaworthiness.”

(3). The issue of signals. The winch operator was “blind,” unable to see into the hold because of the construction of the ship. A derrickman was “flagging” the winch by receiving signals from the men in the hold and in turn signaling to the winch operator. The derrickman testified that just before Shephard was hurt a pallet was loaded into the hold, and he saw a man reach around and unhook the spreader bar and give a signal. He described it this way:

I saw the figure of a man, giving me a signal, because it was just that vague, and I hauled up, to bring it to the offshore side to pick up a load, and that’s when somebody hollered, “A man is hurt.”

It was for the jury to decide whether this ambiguous reference related to impaired visibility because of the fog or vagueness of the meaning of a perceived signal. Also the derrickman described the foggy condition in the hold as “really bad down there,” and explained that he could not see all of the men but could see those closer to him.

(4). The foggy condition in the hold. While acknowledging that the hold was filled with vapor or fog, the majority meet appellant’s argument concerning visibility by selectively extracting from the testimony evidence that tends to show that visibility was not impaired — i. e., that the longshoremen were able to identify numbers on the packages of meat and that longshoreman Jones had been able from a distance of 15 to 17 feet to see details of the accident. Only a few of many references in the testimony serve to demonstrate that impairment of visibility was for the jury and not for judges, trial or appellate:

Q. Wait just a minute. What did the fog have to do with the hook hitting him?
A. [Longshoreman Mills, Shephard’s partner] What I mean, well, it was all foggy, and you couldn’t hardly see nothing, you understand. It was awful foggy, and you couldn’t see nobody else down there.
Q. You couldn’t see anything?
A. No, sir, it was awful foggy.
Q. How could you load the pallet board if you couldn't see anything ?
A. Well, we’ve got to try to work anyhow, you understand. You got to do the best you can.
* ******
Q. You say it was foggy. Do you know what was causing that fog?
A. Well, I don’t know what caused the fog, but it was awful foggy. You couldn’t see nothing at all.
-X- * * * * *
A. . After he got hurt, we still kept on working, but it was still too hard to work down there.
Q. Why do you say that, “it was too hard to work” ?
A. Well, you still couldn’t see anything. You can’t see in the hold when it’s foggy like that.
Q. Did they have lights ?
A. Are you kiddin’? Just like I told you, or anybody else, the lights they had on ship, you couldn’t see with the lights. It was just that foggy.

I have not attempted to lay out everything in the record relevant to these issues. This kind of exploration of factual issues is for the trier of fact. I respectfully dissent.

      . 46 U.S.C. § 688.

      . As a result of the 1972 Amendments to the Longshoremen’s & Harbor Workers’ Compensation Act (86 Stat. 1251) this typical Ryan-type [see Ryan Stevedoring Co. v. Pan Atlantic S. S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956) ] indemnity action is no longer permitted. The accident in the present case, however, occurred prior to these Amendments.

      . Julius Mills, longshoreman, testified on cross-examination:
      Q. Mr. Mills, are you saying the chains and spreader bar were attached to the hook?
      A. Wait, Cap, let me tell you. I told you all exactly how it happened. I said when they lowered the whole thing down, that’s what hit him.
      Q. You say nothing came loose?
      A. Nothing came loose, no sir.
      Mills’ testimony was typical. On cross-examination Elson Jones, longshoreman, said:
      A. I seen the whole spreader bar and the hook land on his head.
      BY THE COURT:
      You said, if it came down, the whole thing would come down, is that right?
      A. Right.
      Q. Couldn’t the spreader bar have come loose from the hook and fallen on him?
      A. No.
      Matthew Conner, a Union delegate who was called aboard the vessel, was asked by defense counsel:
      Q. Nothing came loose?
      A. Nothing came loose that I saw.
      Chaz Ward, longshoreman, was asked by the Court?
      Q. Did one end of the spreader bar come loose, and then the hook on the other end hit him?
      A. No, it didn’t come loose.

      . Matthew Conner testified that the fog was “a medium fog probably” and was then asked what caused the fog, to which he replied, “As usual fog will come when you are working with frozen meat down in the lower hold.” Nathan Bell was asked on direct examination if lie had ever worked reefer (refrigerated) cargo in the lower hold. He said that he had and was then asked, “Is it foggy down there when you are working reefer cargo?” He replied, “It is.” Elson Jones on cross-examination said, “Well, with the frozen foods, there’s always a lot of fog; when the food is frozen.”

      . In Wilson v. Societa Italiana de Armamento (Sidarma), 409 F.2d 484, 485 (GA5, 1969), cited by the majority, the district court as finder of fact in a bench trial had found the allegedly cramped area not unsafe. On appeal we found this factual finding not clearly erroneous and held also that cramped conditions were not unsafe as a matter of law. This is hardly authority that where there is evidence of unsafe and dangerous conditions from overcrowding, the court may hold the conditions safe as a matter of law.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Willie PENN, Individually, etc., et al., Plaintiffs-Appellees, v. James R. SCHLESINGER, Individually and as Secretary of Defense, etc., et al., Defendants-Appellants.
    No. 72-3684.
    United States Court of Appeals, Fifth Circuit.
    July 26, 1974.
    Ira DeMent, U. S. Atty., Kenneth E. Vines, Asst. U. S. Atty., Montgomery, Ala., Morton Hollander, David Anderson, Walter H. Fleischer, James C. Hair, Jr., Civil Div., Dept, of Justice, Washington, D. C., for defendants-appellants.

      Morris S. Dees, Jr., Southern Poverty Law Center, Joseph J. Levin, Jr., Charles F. Abernathy, Montgomery, Ala., Orzell Billingsley, Jr., Birmingham, Ala., J. L. Chestnut, Jr., Selma, Ala., for plaintiffs-appellees.
    Before BROWN, Chief Judge, TUT-TLE, Senior Circuit Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
   PER CURIAM:

For the reasons set out in the dissenting opinion of Judge Godbold, Penn v. Schlesinger, 490 F.2d 700, 707-714 (CA5, 1973), the court en bane concludes that the claims of the individual plaintiffs should have been dismissed for failure to exhaust administrative remedies.

The opinion of the panel is reversed. The order of the District Court is reversed and the cause is remanded to the District Court with instructions to dismiss the case.

TUTTLE, Senior Circuit Judge, with whom WISDOM, GOLDBERG and MORGAN, Circuit Judges, join, dissenting:

With deference, I feel that I must dissent from the decision and the opinion of the Court, sitting en banc, in reversing the denial by the trial court of a motion to dismiss this section 1981 suit against the heads of the United States Government departments for racial discrimination in hiring policies, because the named plaintiffs in the class action had failed to exhaust certain Civil Service administrative remedies available to them.

There are two important issues presented to the Court, only one of which could be considered by the original panel because of the rule of stare decisis within the Circuit. The original decision is now reversed by the per curiam opinion of this Court, which adopts the dissenting opinion. For the prevailing and dissenting opinions previously entered see 490 F.2d 700 (5th Cir. 1973).

The two issues which are here presented are: (1) is a black plaintiff and an association seeking to represent black employees and prospective employees of some of the departments of the United States Government, who allege, in a section 1981 complaint, egregious acts of discrimination against blacks as a class in employment and promotion in the various government departments, required to exhaust administrative remedies promulgated as regulations by the Civil Service Commission to implement Executive Order No. 11478, as amended by Executive Order No. 11590 as a condition precedent to their filing either an individual or class action in the United States Courts against United States Government officials who are charged with having been responsible for the acts of discrimination; (2) then, assuming such exhaustion is a prerequisite to the filing of a section 1981 suit, did the conduct of the subordinate officials, acting as Equal Employment counselors, which the plaintiffs claim aborted their efforts to obtain redress through administrative means, satisfy the normal requirements of exhaustion.

When this case was before the original panel the first question was not open for our consideration. This Court had already in the case of Beale v. Blount, 461 F.2d 1133 (5th Cir. 1972) explicitly held that a section 1981 suit could not be brought against the Postmaster General of the United States in a racial discrimination case in federal employment until the plaintiff had exhausted the administrative remedies which we have heretofore referred to. Being bound by that prior decision, as we were, the panel considered merely the second question which is still in issue here. We concluded that what may be considered to be substantial rebuffs of the plaintiffs in their efforts to have their racial discrimination charges considered by their supervisors, who were also EEO counselors, distinguished this case from Beale v. Blount, supra, in that in the latter case the plaintiff was expressly invited to file a complaint with the agency for administrative handling, but he declined to do so, filing the suit in court instead.

Now, however, this Court en banc writes on a clean sheet, it of course being within the competence of the Court sitting en banc to overrule Beale v. Blount, supra, if we conclude that it incorrectly states the law in this important area dealing with efforts to put an end to racially discriminatory hiring practices, whether by private employers, state or local governments, or the United States Government itself.

I conclude that the most striking argument for overruling the Beale decision is the fact, which none denies, that both the Supreme Court and this Court have repeatedly held that where a case of alleged discrimination on account of race is alleged under section 1983 against a state or under section 1981 against a private employer, or against an individual under section 1982 even though there are administrative means which are intended to give the discriminatee an opportunity to achieve his desired results, the early Civil Rights statutes are available to a plaintiff as an alternative remedy to any others that may exist, and he is not denied access to the courts because of his failure to choose the other way round. Damico et al. v. California et al., 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967) is a case brought under 42 U.S.C.A. § 1983 and it is described in the following manner in the per curiam opinion:

“Appellants, welfare claimants under California Welfare and Institutions Code §§ 11250, 11254, and regulation C-161.20 thereunder, sought damages, a declaratory judgment of unconstitutionality and temporary and permanent injunctive relief in this suit under the Civil Rights Act, 42 U.S.C. § 1983, 28 U.S.C. § 1343. Their complaint alleges that the statute and regulation are discriminatory and that the appellees, in administering them and in applying them to appellants, deprived appellants of equal rights secured by the United States Constitution. The three-judge District Court dismissed the complaint solely because ‘it appear [ed] to the Court that all of the plaintiffs [had] failed to exhaust adequate administrative remedies.’ This was error. In McNeese v. Board of Education, 373 U.S. 668 [83 S.Ct. 1433, 10 L.Ed.2d 622], noting that one of the purposes underlying the Civil Rights Act was ‘to provide a remedy in the federal courts supplementary to any remedy any State might have,’ id,., at 672 [83 S.Ct. 1433, at 1435] we held that ‘relief under the Civil Rights Act may not be defeated because relief was not first sought under state law which provided [an administrative] remedy,’ id., at 671 [83 S.Ct. 1433, at 1435]. See Monroe v. Pape, 365 U.S. 167, 180-183 [81 S.Ct. 473, 480-482, 5 L.Ed.2d 492] . .

So far as relates to suits against private employers this Court, in Sanders v. Dobbs House, 431 F.2d 1097 (5th Cir. 1970) made short shrift of the contention that when Congress passed Title VII of the Civil Rights Act of 1964 this preempted the general remedial language of section 1981, insofar as the right to contract for employment is concerned. In Sanders we said:

“Since there is no language in Title VII that can remotely be construed as directly repealing section 1981, the only means of repeal through preemption would be by implication. Repeals by implication, however, are not favored and ‘the intention of the legislature must be clear and manifest . ’ ” citing cases.

We further stated:

“This interpretation also finds support by analogy in Jones [v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189] where the Court ruled that Title VIII of the Civil Rights Act of 1968 did not repeal § 1982 by implication. Moreover, in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 90 S.Ct. 400, 405, 24 L.Ed.2d 386, 393, ... the Court stated:
‘We noted in Jones v. Alfred H. Mayer Co., that the Fair Housing Act of 1968, 82 Stat. 81, in no way impaired the sanction of § 1982. 392 U.S., at 413-417, 88 S.Ct. at 2189-2192. What we said there is adequate to dispose of the suggestion that the Public Accommodations provision of the Civil Rights Act of 1964, 78 Stat. 243, in some way supersedes the provisions of the 1866 Act. For the hierarchy of administrative machinery provided by the 1964 Act is not at war with the principles embodied in § 1982.’ ”

The case of Caldwell v. National Brewing Co., 443 F.2d 1044 (5th Cir. 1971) even more clearly demonstrates the fact that this Court has made it clear that a plaintiff may file suit on a charge of racial discrimination in employment under section 1981 even where he has deliberately bypassed the EEOC administrative remedies under Title VII. This Court said:

“We thus are faced with the fact that we have not ruled on the question whether the E.E.O.C. administrative remedies under Title VII of the Act can be deliberately bypassed by a § 1981 plaintiff. The Third Circuit recently considered this question in Young v. International Telephone & Telegraph Co., 3 Cir., 1971, 438 F.2d 757, a case involving facts virtually identical to those in the case at bar. The holding was that nothing in Title VII either expressedly or impliedly imposes any jurisdictional barrier to a suit brought under § 1981. Pointing to the differences in the scope of the remedies afforded under Title VII and § 1981, such as the applicable statutes of limitations and the provision for appointment of counsel and the award of attorney’s fees under Title VII (§ 2000e-5(e)(k)), the Third Circuit concluded that appellant has an independent remedy under § 1981 without respect to exhaustion under Title VII. We agree.” 443 F.2d 1044, 1046.

Granting the existence of a 1981 remedy against government officials, which is not drawn in issue by the dissenting opinion, which now becomes the opinion of this Court, it completely escapes my comprehension to understand why the Court should fashion a rule that would give federal officials, acting on behalf of the executive department, preferred status over both private employers, real estate dealers and state governments, by hedging about any suit under the Civil Rights law against federal functionaries by a requirement that the agencies be first given an opportunity to police themselves.

I have referred to the allegations of the complaint as complaining of “egregious acts” of discrimination against blacks by the named defendants. These allegations, which must be taken as true for the purpose of this motion to dismiss, allege, for instance, that in the Department of Defense, in which plaintiff Penn is employed, there are 1,899 G.S. (white collar) Air Force employees in Alabama of which thirty-three or 1.7% are black; 14,000 G.S. Army employees in Alabama of which 235 or 1.7% are black; thirty-five Navy G.S. employees in Alabama of which none is black; forty-eight G.S. Defense Activities employees in Alabama of which none is black; and 366 G.S. Defense Supply Agency employees in Alabama of which fifteen or 4.1% are black. The black population of Alabama is 26.4%. These statistics would seem, under all the standards used by this Court, e. g., Morrow v. Crisler, 491 F.2d 1053 (5th Cir. en banc 1974) to show a strong prima facie case of discrimination.

It is alleged that in the district court case of United States v. Frazier, 317 F.Supp. 1079 (M.D.Ala.1970) the United States had brought a broad suit to seek the end to segregated employment by a wide variety of Alabama State agencies to force equal employment of blacks. It is clear that this was the purpose and effect of the Frazier case. It is also alleged that in a recent such suit the Justice Department urged upon the court that it require Alabama State Troopers to hire 25% blacks because Alabama had no black state troopers. See Morrow v. Crisler, supra, and NAACP v. Allen, 5 Cir., 1974, 493 F.2d 614. It was further alleged that Alabama, with 19,296 merit system employees (equivalent to G.S.), exceeds the federal government in percentage of black employees in G.S. positions.

We cannot but take judicial notice of the fact that the United States Department of Justice which is alleged to have 264 G.S. employees in Alabama and had only eleven, or 4.2%, blacks has pictured itself, and has frequently acted out the part of, being the protagonist of the federal policy to put an end to racial discrimination in all facets of our national life that enjoy constitutional protections. This causes me to share the feeling of the trial court where in a footnote to the opinion the court said:

“It is, of course, regrettable that, having so vigorously brought and prosecuted actions against various Alabama agencies to insure equal education and employment for blacks, the United States government should now be forced to interpose such a defense as the doctrine of sovereign immunity to a charge of racial discrimination in employment.” [350 F.Supp. 754.]

I would express that same feeling to the defense put forward by the government in the nature of its claim that the Civil Rights Act of 1866 may still be used against the state and private individuals but may not run except conditionally against federal officials who are derelict in their duties. I therefore express the deep seated feeling that this Court should not undertake to create a barrier to the filing of a section 1981 suit against federal officials which does not exist in similar actions against either state officials or private individuals.

It is also difficult for me to understand the concern expressed in the dissenting opinion touching on the “massive” nature of the law suit in light of the complete lack of hesitancy on the part of the United States to undertake as it did in United States v. Frazier, supra, to compel the State of Alabama to bring all of its merit system employees into compliance with federal guidelines with respect to discriminatory practices. The government did not move in the trial court to have the court determine whether the case should properly proceed as a class action. If, in fact, the case was too “massive” to be properly handled as a class action there would be no restraints upon the trial court’s limiting the action to the class within a single department, the Defense Department, for instance, or even the Air Force, or to limit it to Air Force employees at Maxwell Air Force Base, the site of plaintiff’s employment. Clearly no such objection as this is available on a motion to dismiss.

The fact that the NAACP is also a party to the action further emphasizes the impropriety, to my mind, of the decision by this Court to direct the dismissal of the law suit. Under the regulations that existed in 1971, and which were the only ones in effect at the time the suit was filed, it was expressly provided that such an organization could not attack the discriminatory practices in general but could only appear on behalf of the named plaintiffs. In light of such limitation, it is inconceivable to me that the Court could hold that there was any administrative remedy available for the NAACP as a plaintiff to test out the degree to which the all pervasive discriminatory practices (as alleged) could be alleviated. The amendment to the regulations two weeks after the trial court’s judgment, could not, it seems to me, warrant a dismissal of the suit which, when filed, was not subject to any objection that the NAACP had failed to exhaust any remedies.

We are not here dealing with a case where a plaintiff relies upon a federal statute as the basis of his right of action against federal defendants when the statute relied upon itself prescribes an administrative remedy. The doctrine of exhaustion of administrative remedies is discussed in McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969), a case in which the doctrine was not applied. The Supreme Court quotes with approval the language from Myers v. Bethlehem Ship Building Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938) as saying:

“No one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” (Emphasis added).

Here we are dealing with no “prescribed” remedy.

Such remedy as exists does so simply by virtue of the existence of the Executive Order. It does not, as we have seen, either repeal the basic Civil Rights cause of action nor become an essential part to a plaintiff’s reliance on these Civil Rights sections unless, for reasons satisfactory to us, this Court should declare it to be so.

With all the mandatory and cogent language as is present in the executive order and the regulations quoted in the dissenting (now the Court’s) opinion having brought about the miserably poor results as we must take here to be true, I am not impressed with the plea that “the agency is denied the benefit of the policy that it be permitted to discover and correct its own errors.” One cannot but ask: What, in the name of Justice, has prevented the agency from discovering what must have been apparent to everyone at Maxwell Air Force Base all these years? And what, but a conscious intent not to do so has prevented the proper officials from correcting these crass “errors.”

I would excuse any imagined requirement of exhaustion of administrative remedies, if it otherwise existed, on the massive and pervasive violations of the executive order itself. I shall not attempt to elaborate on what was said in the original opinion in the matter of the aborting of the administrative remedies because of the clearly pleaded callous disregard, as to Penn’s case, and the explicit incorrect response as to Foster, by the persons whose duty it was “to seek a resolution of the matter on an informal basis; to counsel the aggrieved person concerning the issues in the matter; to seek a solution of the matter on an informal basis,” etc., see 713.213 C.F.R.

I conclude only, that if exhaustion is normally required, which I seriously question, then, here there had either been “exhaustion” or such conduct as would require us to find it to be excused ■ — not to “penalize” the EEO counselors for bad performance as suggested by the opinion, but to save a law suit showing on its face so much merit, after all of this time has passed. I am loath to say to Mr. Penn, after his 22 years employment at not exceeding a G.S. Grade 5 and Navy veteran Foster, after his fifteen years of employment at no better than a G.S. Grade 4 that they have no right to maintain this section 1981 suit that has now been pending for two and a half years. In light of the alleged treatment given them I cannot tell them that they are remanded to the system that has, according to the facts alleged, treated them with such callous rejection.

I would affirm the order of the trial court.

      . The order of the District Court, 350 F. Supp. 752 denying the motion to dismiss did not refer to the status of the Alabama State Conference of NAACP, Inc., which joined in the suit as plaintiff alleging that it sued on behalf of its members and of all blacks in Alabama situated similarly to the individual plaintiffs. Pretermitting the numerous other issues that surround NAACP’s claim, it now has an administrative remedy under amended regulations adopted shortly after the District Court denied the motion to dismiss, see 5 Cir., 490 F.2d at 712, footnote 3, and under the circumstances of this case it too should be required to exhaust.

      . This order, in relevant part, reads :
      “Section 1. It is the policy of the government of the United States to provide equal opportunity in federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, or national origin, and to promote the full realization of equal employment opportunity through a continuing affirmative program in each executive department and agency . . .
      “Section 2. The head of each executive department and agency shall establish and maintain an affirmative program of equal employment opportunity for all civilian employees and applicants for employment within his jurisdiction in accordance with the policy set forth in Section 1. It is the responsibility of each department and agency head, to the maximum extent possible, to provide sufficient resources to administer such a program in a positive and effective manner . . .

        “Section 3. The Civil Service Commission shall provide leadership and guidance to departments and agencies in the conduct of equal employment, opportunity programs . . .
      “Section 4. The Civil Service Commission shall provide for the prompt, fair, and impartial consideration of all complaints of discrimination in Federal employment on the basis of race, color, religion, sex, or national origin. Agency systems shall provide access to counselling for employees who feel aggrieved and shall encourage the resolution of employee problems on an informal basis. Procedures for the consideration of complaints shall include at least one impartial review within the executive department or agency and shall provide for appeal to the Civil Service Commission. . . .”

      . Six blacks out of ninety-one state troopers were hired by Mississippi. The court said: “These figures alone negate the State’s argument that its present practices are nondiscriminatory.”

      . Foster alleged that while serving in the Procurement Office at Maxwell Air Force Base he received a certificate in accounting from Floyd Commercial Business School.

      . Of course, I refer only to what is alleged, but by making its motion to dismiss, the government has elected to say “If everything you allege is true, you cannot sue.”


author: JONES, Circuit Judge. COLEMAN, Circuit Judge, THORNBERRY, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Thomas W. MOORE, Jr., Assignee for Benefit of Creditors of Emsco Screen Pipe Company of Texas, et al., Defendants-Appellants.
    No. 73-2951.
    United States Court of Appeals, Fifth Circuit.
    July 26, 1974.

      Thomas Osa Harris, Houston, Tex., for defendants-appellants.
    Hellen M. Eversberg, Asst. U. S. Atty., Houston, Tex., Roger Wesley, Kathryn H. Baldwin, General Claims Section, Civ. Div., U. S. Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before JONES, THORNBERRY and COLEMAN, Circuit Judges.
   JONES, Circuit Judge.

The facts from which this controversy arose were stipulated. In June, 1966, Emsco Screen Pipe Company of Texas entered into separate contracts with the Department of the Navy, the Department of the Army and the Defense Supply Agency for materials and supplies to be furnished thereafter. Emsco defaulted. The Navy terminated its contract on August 31, 1966. The Army terminated on December 6, 1966, and Defense Supply on October 19, 1966. Emsco made a voluntary assignment for the benefit of its creditors on October 20, 1966, to Thomas W. Moore, Jr. It was stipulated that “All of the .... claims were finalized as to exact amounts after the aforesaid assignment.” The assets in the hands of the assignee were insufficient to discharge all claims in full. The United States brought an action against the assignee and asserted priority under 31 U.S.C.A. § 191 . The district court concluded that the statute gave priority and entered judgment for the United States. The assignee has appealed.

The question to be decided is whether there were “debts due to the United States” from Emsco at the time it made its assignment for the benefit of creditors. The statute providing priority and the phrase “debts due” are not new. The present statute is not very different from the version incorporated in the revised statute. The phrase is, it seems, included in an Act of Congress of 1797. See Prince v. Bartlett, 12 U.S. (8 Cranch) 431, 3 L.Ed. 614. The word “debt” has been many times defined and given many varied meanings. The definitions range from the duty to return a social courtesy to legal obligations of many kinds. 26 C.J.S., p. 1, Debt, et seq. It has been said that a debt is an obligation to render something to someone else. In searching for the meaning of a term of so many different meanings in different contexts, we look to the meaning which it had when it was used in the first priority statute enacted by the Congress. At that time the basic law of all of the states, both substantive and procedural, was the common law. One of the common law actions was the action of debts. “The action of debt lies where a party claims the recovery of a debt, i. e. a liquidated or certain sum of money alleged to be due to him.” Stephen, Principles of Pleading, 8th Am. Ed., p. 13, 1859. Such was the meaning of the word “debt” at the time of the earliest priority enactment. Such is the meaning of the word in the present statute. The United States had claims for damages for breach of contract. The stipulation expressly states that the claims were not finalized when the assignment was made. The claims were not for sums certain or which could be made certain by mathematical computation. They were not liquidated. Because the claims of the United States were not for fixed and certain amounts and presently payable, they were not debts due.

Since it is here determined that the claims of the United States were not “debts due,” the judgment of the district court will be reversed and the cause remanded for further appropriate proceedings.

Reversed and remanded.

COLEMAN, Circuit Judge,

Separate Opinion.

Judges Jones and Thornberry reach diametrically opposing results as to how the issue raised in this appeal should be decided. Their written opinions reflect the precedential murkiness surrounding the question. Neither cites a case squarely in point. Thus, they are left to reason from other premises. Obviously, I find myself similarly situated.

I am impressed by the fact that this statute has been on the books since March 3, 1797, and all along the language has remained the “same” or “equivalent”, United States v. Oklahoma, 261 U.S. 253, 43 S.Ct. 295, 67 L.Ed. 638. Thus, it would appear, Congress has considered it adequate to the consummation of its fundamental purpose, which the courts have described as the “protection of the government’s revenue”. It has been content to rely on debts; it has not seen fit to expand the language to include “claims” or such like.

I note, too, that this statute is codified in the official version of the United States Code, United States Government Printing Office, 1971, Chapter 6 of Title 31, under the heading, “Debts Due By, or To, The United States”.

Stripped of language inapplicable to the issue which must be decided, 31 U.S.C., § 191 may be read as follows:

“Whenever any person indebted to the United States is insolvent * -x- the debts due to the United States shall be first satisfied.” (emphasis added).

In other words, there must not only be a “debt”, but it must be “due”.

Let us now look at the case.

In its brief the Government says, “The original claims were against the assignee and Emsco for breach of contract” (emphasis mine). When did the “claim” ripen into a “debt due”? My answer to this has to be, “not until the amount of the damages for the breach had been ascertained by someone with the appropriate jurisdiction to make a determination binding on both the claimant and the defendant”.

The contract which ultimately gave rise to this “debt” (or claim, as the case may be) was made in June, 1966. The contract was an obligation, according to its own terms, but I doubt that either in 1797 or today it could be “liberally construed” to be a debt. The default spawned a claim for breach of the contract, but, again, I cannot construe a claim to be a debt, although it most certainly may ripen into one, as it did here. A claim cannot be a “debt due” until the amount has been ascertained. The assignment for the benefit of creditors was made on October 20, 1966. I have no hesitancy in saying that on that date the United States was not the owner of a debt due from Emsco. It had only a claim. To this point, therefore, I am in agreement with the views expressed by Judge Jones.

I read Massachusetts v. United States, mentioned in Judge Thornberry’s opinion, to mean that priority is to be determined as of the date of the insolvency, not retroactively. The amount owed by Emsco as damages for its default was not finally ascertained until 1973, about seven years after the insolvency.

I, therefore, concur in the reversal of the judgment below and remand for further proceedings.

THORNBERRY, Circuit Judge

(dissenting) :

In this case we are called upon to construe the meaning of “debts due to the United States” as used in 31 U.S.C.A. § 191 (hereinafter the “Priority Statute”). In selecting among the various definitions of “debt” that have been applied in varying contexts, the majority inexplicably turns to the highly technical definition of the common law action of debt. In so doing the majority fails to construe the statute, in accordance with guidance from the Supreme Court, breaks with prior judicial interpretation without discussing the relevant cases, and creates an unexplained and unwise deviation from the interpretation of the term under the Bankruptcy Act, despite the analogous factual bases for application of the two statutes. Therefore, with deference, I dissent.

The Priority Statute is founded on the public policy of securing an adequate revenue to sustain public burdens and discharge the public debts. United States v. State Bank of North Carolina, 1832, 6 Pet. (31 U.S.) 29, 8 L.Ed. 308; Small Business Administration v. McClellan, 1960, 364 U.S. 446, 81 S.Ct. 191, 5 L.Ed.2d 200; City of Sherman v. United States, 5 Cir. 1968, 400 F.2d 373; Viles v. Commissioner of Internal Revenue, 6 Cir. 1956, 233 F.2d 376. The statute is to be liberally construed in order to effectuate that purpose. United States v. State Bank of North Carolina, supra; Bramwell v. United States Fidelity & Guaranty Co., 1926, 269 U.S. 483, 46 S.Ct. 176, 70 L.Ed. 368; United States v. Emory, 1941, 314 U.S. 423, 62 S.Ct. 317, 86 L.Ed. 315; United States v. Gotwals, 10 Cir. 1946, 156 F.2d 692; Lakeshore Apartments, Inc. v. United States, 9 Cir. 1965, 351 F.2d 349. By adopting a narrow, technical definition of “debt” so as to defeat the United States’ priority, the majority, it seems to me, flies in the teeth of these well established general principles of construction.

The few cases that have directly considered whether the Priority Statute applies to unliquidated obligations also point toward an affirmative answer. The strongest case support for the majority’s position is Massachusetts v. United States, 1948, 333 U.S. 611, 68 S.Ct. 747, 92 L.Ed. 968, where the Court held that the option of an assignee for the benefit of creditors to pay state unemployment compensation taxes and take credit against federal taxes was cut off by the insolvency of the debtor. In rationalizing this result, the Court appeared to adopt a narrow definition of “debt” for purposes of the Priority Statute.

[I]t is at least doubtful on the statute’s wording that obligations wholly contingent for ultimate maturity and obligation upon the happening of events after insolvency can be said to fall within the reach of “debts due” as of the time of insolvency.

333 U.S. at 626-627, 68 S.Ct. at 756. In footnote 26, the Court explained further.

[The fact that] all of the decisions sustaining the priority were for debts clearly due and owing, adds force to the clear inferences implicit in the statute’s wording, viz., that Congress not only created a conclusive priority attaching as of the time of insolvency but in doing so drew the line for its operation close to, if not at, the commonly accepted meaning of “debt” as distinguished from other forms of obligation.

68 S.Ct. at 756-757. The Massachusetts case does not directly support the majority’s result in this case, however, since there the Court’s primary concern was the contingency of the very fact of liability. In our case, all the events necessary to fix liability for the excess cost of reprocurement had occurred prior to insolvency, as the majority opinion makes clear. This liability was not contingent in any sense; it was merely unliquidated in amount. Therefore it was not the sort of obligation excluded from the coverage of the Priority Statute in Massachusetts.

Two cases have given priority to government claims that were wholly unliquidated at the time of insolvency. In King v. United States, 1964, 379 U.S. 329, 85 S.Ct. 427, 13 L.Ed.2d 315, the Seeley Tube & Box Company filed a petition for reorganization under Chapter XI of the Bankruptcy Act. Soon thereafter the United States notified Seeley that it intended to terminate two contracts between Seeley and the Picatinny Arsenal due to Seeley’s default. King, Seeley’s president, was appointed as distributing agent. He distributed the bulk of the assets with court approval before the United States liquidated its claim by reletting the contracts at a higher cost. As a consequence, there were insufficient funds remaining to pay all of the Government’s claim. Under these circumstances the Court held King’s estate liable for the unpaid portion because the Government’s claim, though unliquidated at the time of insolvency, had been entitled to its statutory priority. The implicit holding that an unliquidated claim may be a “debt” within the Priority Statute so long as it is capable of liquidation is not directly controlling here, despite the identity of factual settings, since it was not a disputed issue in the case, King having admitted the Government’s priority in oral argument. See United States v. L. A. Tucker Truck Lines, Inc., 1952, 344 U.S. 33, 73 S.Ct. 67, 97 L.Ed. 54; United States v. Mitchell, 1926, 271 U.S. 9, 46 S.Ct. 418, 70 L.Ed. 799; Webster v. Fall, 1925, 266 U.S. 507, 45 S.Ct. 148, 69 L.Ed. 411. Nevertheless the King case provides some support for the proposition that an unliquidated claim may be a “debt” within the Priority Statute, as the district court in our case noted.

Finally, in United States v. Barnes, C.C., S.D.N.Y.1887, 31 F. 705, the court held that a claim of the United States had been entitled to its priority despite the fact that the amount of the claim was the subject of pending litigation both at the time of adjudication of bankruptcy and of distribution of the debtor’s assets. The court said plainly that unliquidated claims of the Government are entitled to priority.

It is established by many adjudications, in which the meaning and effect of these provisions have been discussed, that such priority extends to all classes of debts, whether liquidated or unliquidated, joint or several, legal or equitable ....

Id. at 707. The antiquity of the case, coupled with its explicit reliance on prior adjudications, undercuts the majority’s assertion that its narrow definition was “the meaning of the word ‘debt’ at the time of the earliest priority enactment.” On the contrary, a broad and liberal interpretation of the term was the rule from the first, a rule from which the majority departs today.

The Bankruptcy Act’s analogy also points strongly toward allowance of priority for claims that are unliquidated as of the time of insolvency. In relevant part, the Act provides that

The debts to have priority, in advance of the payment of dividends to creditors, and to be paid in full out of bankrupt estates, and the order of payment, shall be . . . (5) debts owing to any person, including the United States, who by the laws of the United States i[s] entitled to priority

11 U.S.C.A. § 104(a). The Act also provides that

Debts of the bankrupt may be proved and allowed against his estate which are founded upon . . . (8) contingent debts and contingent contractual liabilities ....

11 U.S.C.A. § 103(a). Unliquidated claims are also provable and allowable, so long as the amount of the claim can be fully liquidated or estimated within the time set by the court. 11 U.S.C.A. § 93(d); 1 Collier Bankruptcy Manual, ][ 57.11 (2d ed. 1973).

Both the Bankruptcy Act and the Priority Statute apply to disposition of assets that are insufficient to meet all of the debtor’s liabilities. The issue under both statutes is whether obligations to the United States will be first satisfied in full or only satisfied in the same proportion as other obligations. The public policy of securing an adequate revenue so as to sustain public burdens and discharge public debts applies equally under both statutes. The Government is entitled to fifth priority in Bankruptcy Act proceedings for debts unliquidated at the time of insolvency solely by virtue of the existence of the Priority Statute, which is the only law of the United States giving priority to debts owing to the United States within the meaning of 11 U.S.C.A. § 104(a). 1A Collier Bankruptcy Manual, j[ 64.501 (2d ed. 1973). It seems to me that Congress has clearly shown what it means when it uses the term “debts” in this factual context in § 63 of the Bankruptcy Act, 11 U.S.C.A. § 103, and that definition clearly includes the sort of unliquidated obligation involved in this suit, so long as the claim can be liquidated or estimated, as it was in this case, within a reasonable time so as to avoid undue delay in distributing the debtor’s assets to the creditors. I think we should apply this entirely sensible reading of the term absent some good reason to deviate, and no good reason, in my opinion, has been offered.

      . “finalise to put into final form; to complete,
      “Usage: Finalise is closely associated with the language of bureaucracy in the minds of many careful writers and speakers and is consequently avoided by them.” American Heritage Dictionary, 1969, p. 492. As used in the stipulation the word means determined and agreed upon.

      . “Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed.” 31 U.S.C.A. § 191.

      . “Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority hereby established 'shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed.” R.S. § 3466.


author: PER CURIAM: RIVES, Circuit Judge

text:
    Lester Morris PICKENS, Petitioner-Appellant, v. The STATE OF TEXAS, Respondent-Appellee.
    No. 73-3121.
    United States Court of Appeals, Fifth Circuit.
    July 19, 1974.
    Certiorari Denied Oct. 15, 1974.
    See 95 S.Ct. 145.

      John T. Montford, Lubbock, Tex. (Court-appointed), for petitioner-appellant.
    John L. Hill, Atty. Gen., of Tex., E. Bruce Curry, Thomas W. Choate, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
    Before RIVES, GEWIN and RONEY, Circuit Judges.
   PER CURIAM:

Lester Pickens filed a petition for writ of habeas corpus in the United States District Court seeking to remove a detainer warrant placed on him by the State of Texas. Pickens was serving a Texas 10 year probated sentence for robbery by assault when he participated in activity alleged to be in violation of the terms and conditions of the State probation in that he interfered with a nurse in the exercise of her duties and engaged in disorderly conduct both of which were offenses against Texas law. Texas Penal Code, Art. 472a, Vernon’s Ann.P.C., and Art. 474, V.A.P.C. A. hearing was held in the state court, Pickens was found in violation of the terms of his probation, and the probation was revoked. Subsequently convicted and incarcerated in the Federal Correctional Institution at Fort Leavenworth, Kansas, on federal charges stemming from another occurrence, a detain-er warrant was filed by the State of Texas pertaining to the probation revocation.

After exhausting his state remedies, Pickens seeks to remove the detainer asserting that the probation revocation proceeding was constitutionally infirm because the acts which were found to be violations of the terms and conditions of his probation were in fact protected by the First and Fourteenth Amendments of the United States Constitution. The District Court, in a well reasoned opinion which is appended hereto as an appendix, found that the state trial judge had not abused his discretion in revoking Pickens’ probation and thus denied the relief sought.

The sole issue on this appeal is whether the state trial judge abused his discretion in revoking Pickens’ probation. To grant habeas corpus relief, we must find an abuse of discretion which reaches constitutional magnitude. This we do not find and, consequently, we affirm.

The revocation of a probated sentence is within a trial court’s discretionary powers and will not be disturbed without a clear showing of an abuse of that discretion. United States v. Garza, 484 F.2d 88 (5th Cir. 1973); United States v. Langley, 438 F.2d 91 (5th Cir. 1970); Burns v. United States, 287 U.S. 216, 221, 53 S.Ct. 154, 77 L.Ed. 266 (1932). It is not an abuse of discretion to revoke probation based on a finding that the conduct of the probationer has not been as good as required by the conditions of the probation. United States v. Bryant, 431 F.2d 425 (5th Cir. 1970); United States v. Clanton, 419 F.2d 1304 (5th Cir. 1969); Manning v. United States, 161 F.2d 827, 829 (5th Cir.), cert. denied, 332 U.S. 792, 68 S.Ct. 102, 92 L.Ed. 374 (1947).

Pickens argues that his conduct was not an offense against the State of Texas but was protected by the First Amendment. Before the constitutional question is reached, however, it must be recognized that a “revocation of probation does not require proof sufficient to sustain a criminal conviction.” United States v. Garza, 484 F.2d 88, 89 (5th Cir. 1973); Amaya v. Beto, 424 F.2d 363 (5th Cir. 1970); Manning v. United States, 161 F.2d 827, 829 (5th Cir.), cert. denied, 332 U.S. 792, 68 S.Ct. 102, 92 L.Ed. 374 (1947).

In Manning, the conditions of probation required that the probationer not violate any law. The probated sentence was revoked based on the charge that Manning was using the mails to defraud and was practicing medicine without a license. In answer to Manning’s contention that the evidence was insufficient to support a conviction on either charge, the Court stated that

proof sufficient to support a criminal conviction is not required to support a judge’s discretionary order revoking probation. A judge in such proceeding need not have evidence that would establish beyond a reasonable doubt guilt of criminal offenses. All that is required is that the evidence and facts be such as to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation.

161 F.2d at 829. See United States v. Langley, 438 F.2d 91 (5th Cir. 1970) (Revocation based on allegedly improper state conviction upheld); United States v. Bryant, 431 F.2d 425 (5th Cir. 1970) (Revocation based on alleged insufficient evidence to charge crime upheld); United States v. Clanton, 419 F.2d 1304 (5th Cir. 1969) (Revocation based on dismissed state charge upheld).

The state trial judge found that Pick-ens’ conduct was disorderly. The record supports that finding. His decision to revoke probation did not amount to an abuse of discretion.

In affirming the District Court’s denial of habeas corpus relief to Pick-ens, we do not determine in any manner the scope of First Amendment rights possessed by a probationer. We merely hold that the state trial judge did not abuse his discretion in determining that Pickens’ conduct, other than that which arguably might be protected by the First Amendment, was contrary to the terms of his probation and supported its revocation.

Affirmed.

APPENDIX

MEMORANDUM AND ORDER

Petitioner, Lester Morris Pickens, is presently a federal prisoner by virtue of sentence on June 18, 1971, by the Judge of the United States District Court for the Northern District of Kansas. He had originally been convicted on July 22, 1965 in the 47th Judicial District Court of Potter County, Texas and placed on probation for a period of ten years. On April 16, 1970, the probation in the Texas case was revoked and Petitioner was sentenced to serve ten years in the Texas Department of Corrections. Revocation of probation was affirmed, with two vigorous dissenting opinions, by the Court of Criminal Appeals of Texas. Pickens v. State, 466 S.W.2d 563 (Tex.Cr.App.1971).

While Petitioner’s case was on appeal to the Texas Court of Criminal Appeals he was delivered into the custody of the United States Marshal to answer federal charges pending against him in the Northern District of Kansas. The conviction on those charges resulted in the sentence which he is now serving. State of Texas has placed a detainer with the federal authorities.

Petitioner has filed application for writ of habeas corpus pursuant to Title 28 United States Code, Section 2241 et seq., and is proceeding in forma pauper-is. He is not challenging the federal conviction. He contends that (1) the detainer placed by the State of Texas is invalid because the State of Texas lost jurisdiction over him when it surrendered him to federal authorities and (2) the revocation of probation by the state judge is constitutionally infirm, because the acts urged by the State of Texas as being violations of terms and conditions of probation are in fact protected by the First Amendment and Fourteenth Amendment to the United States Constitution. All available state remedies have been exhausted and the challenges are properly before this Court.

The records of the case conclusively show that Petitioner is entitled to no relief in his contention that the State of Texas has lost jurisdiction to file its detainer. It is well settled that when state authorities surrender a prisoner to federal authorities for prosecution and service of sentence the state has not waived its right to have the prisoner returned to its custody for trial or service of sentence. Dorrough v. Texas, 5th Cir. 1971, 440 F.2d 1063; Montos v. Smith, 5th Cir. 1969, 406 F.2d 1243; Bilton v. Beto, 5th Cir. 1968, 403 F.2d 664.

Petitioner’s contention that his First and Fourteenth Amendment rights were violated presents a more difficult issue. This Court has before it the transcription of the proceedings of the hearing conducted by the trial judge on the state’s application to revoke probation. The fact summary in the opinion of Presiding Judge Onion of the Texas Court of Criminal Appeals is supported by the record and is adopted by this Court:

“The record reflects that on January 11, 1970, one Ronald McDonald, a close friend of the appellant, was shot by one Preston Cheeks near the Club De Lisa in Amarillo and fell face down in the street. When appellant arrived on the scene he obtained permission from the officer in charge to determine if his friend was still alive, and he turned McDonald’s face out of a puddle of mud. Soon a crowd of 100 to 200 people gathered, apparently angry about the shooting, and the delay in getting aid to McDonald, and began yelling ‘honkies’ and ‘pigs’. The witnesses described the disturbance and named the ring leaders, but they did not include the appellant. Only one witness said he observed the appellant yelling ‘honkies’ and ‘pigs’ along with most of the others in the crowd.
The ambulance driver testified that McDonald did not appear to be alive at the scene and upon arrival at the hospital the nurses related he showed no vital signs of life. No doctor was on duty at the time.
The appellant and several others arrived anxious to determine the condition of their friend. When the appellant and three or four others were asked to leave the emergency room he displayed a civil defense card, but was told by the nurse in charge there was no emergency and he would have to retire to the waiting room which he did. Later he re-entered the emergency room attempting to get McDonald’s mother and sister, etc., permission to enter, which was granted. He was again asked to leave and did. He later re-entered asking permission to comfort the mother of the deceased, which was refused and he was again asked to leave. The group outside was estimated to be from 15 to 20 persons during this period of time. Superintendent of Nurses Garrett testified that appellant had entered the emergency room twice before the deceased’s mother arrived; that later McDonald’s mother became upset and hysterical, and though not a patient at the hospital, she began to care for her, bathing her face with a wet cloth, taking her pulse and her blood pressure. She related that when the appellant re-entered the emergency room she had to stop taking the pulse and blood pressure readings and ask him to leave; that if he had not continued to come in she could have attended to her duties on the other floors of the hospital.
While the appellant denied making such statement, two officers testified they heard him urge the 15 to 20 people to rush in as they could not be stopped. No such action ever occurred.
The group of people there was described as ‘orderly,’ many being friends or relatives of the deceased. They remained mostly in the hallway or waiting room of the hospital which was open to the public.
The appellant was not arrested and subsequently left for the funeral home.
The record clearly reflects that each time the appellant was asked to leave, he did, even though reluctantly, without causing any trouble or difficulty.”

The State of Texas filed motion to revoke probation essentially contending that (1) Pickens unlawfully and willfully interfered with a nurse while the nurse was in the exercise of functions intended to contain injury to persons during a disturbance, (2) Pickens engaged in an unreasonable disorderly conduct at the scene of the shooting in such manner to cause or provoke a disturbance and (3) Pickens engaged in an unreasonable disorderly conduct in the hospital in such manner to cause or provoke a disturbance.

The trial court found the allegation concerning disorderly conduct at the scene of the shooting to be without merit and had difficulty finding a violation by Petitioner of the statute concerning interference with a nurse in violation of Texas Penal Code, Art. 472a. He did find that Petitioner had engaged in disorderly conduct in violation of Texas Penal Code, Art. 474 and revoked the probation.

The thrust of Petitioner’s challenge is that the statements alleged to have been made by him and upon which the revocation of probation was based are protected rights under the First and Fourteenth Amendments. He contends further that Texas Penal Code Article 472a and Texas Penal Code Article 474 are unconstitutional in that each of those statutes is overly broad and vague.

The attack on the constitutionality of the statutes cannot be considered by this Court. Neither contention has been meaningfully presented to the Courts of the State of Texas, where the responsibility for initial determination of claims of constitutional deprivation lies. Therefore, the challenges concerning constitutionality of those statutes are dismissed without prejudice.

This Court pretermits determination of the scope of First Amendment rights possessed by a probationer. The law is well settled that revocation of probation is an exercise of the trial court’s broad discretionary powers and such action will not be disturbed in the absence of a clear showing of abuse of that discretion. Proof sufficient to support a criminal conviction is not required to support a discretionary order revoking probation. All that is required is that the evidence and facts reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation. United States v. Langley, 5th Cir. 1970, 438 F.2d 91, 92; United States v. Clanton, 5th Cir. 1969, 419 F.2d 1304; Manning v. United States, 5th Cir. 1947, 161 F.2d 827, 829, cert. den., 332 U.S. 792, 68 S.Ct. 102, 92 L.Ed. 374.

This Court cannot say that the trial judge clearly abused his discretion or in any manner committed error of constitutional dimensions in revoking the probation. Petitioner is not entitled to the writ of habeas corpus.

It is, therefore, ordered that the application of Lester Morris Pickens for writ of habeas corpus be, and it is hereby, denied.

This is a final judgment.

The Clerk is directed to file this Memorandum and Order and to send a true copy to Petitioner and a copy to each attorney of record.

Done at Amarillo, Texas this 6th day of July, 1973.

s/ Halbert O. Woodward United States District Judge

RIVES, Circuit Judge

(dissenting):

The district court adopted and quoted the fact summary in the opinion of Presiding Judge Onion of the Texas Court of Criminal Appeals. See Appendix to this Court’s majority opinion and Pick-ens v. State, 466 S.W.2d 563, 567. The district court then reviewed the contentions made by the State of Texas in its amended motion to revoke Pickens’ probation, and concluded that the Texas trial court found that Pickens had engaged in disorderly conduct in violation of Texas Penal Code, Art. 474. In particular, the Texas trial court made the following remarks in revoking Pickens’ probation:

“Now, much more serious and more substantuating [sic] charge is the last charge against him, in that instead of cooperating and he did engage in unreasonable and disorderly conduct in a manner calculated to provoke disturbance by making the comment that he denied making, but that is testified to by two officers, with reference to overpowering the resistance and getting back into the room, despite the fact that he had been ejected from it at least twice and probably three times, and this sort of thing just cannot be tolerated, because a hospital is a place where people are supposed to be treated and helped, and the fact that these people may have been concerned about whether this man was alive or dead cannot be permitted to disrupt the orderly function of the public hospital.
“I think his action in — in effect, inciting mob violence in this case by advocating that they storm the door of the room is which the nurses and the body and mother of the deceased were, clearly disorderly conduct in a manner to cause or provoke a disturbance. “Therefore, the opinion and judgment of the Court that the defendant has violated the term of his probation, and that his probation should be, and is hereby, revoked.”

With deference, I disagree with the basis of the majority holding — that is, that the state trial court based the revocation on conduct other than that arguably protected by the First Amendment. The above-quoted portion of the opinion of the Texas trial court makes it clear to me that the basis for the revocation of probation was Pickens’ comment concerning rushing into the emergency room.

The federal district court “pretermitted determination of the scope of first amendment rights possessed by a probationer,” stating that,

“The law is well settled that revocation of probation is an exercise of the trial court’s broad discretionary powers and such action will not be disturbed in the absence of a clear show-, ing of abuse of that discretion. Proof sufficient to support a criminal conviction is not required to support a discretionary order revoking probation. All that is required is that the evidence and facts reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation [cases omitted].
“This Court cannot say that the trial judge clearly abused his discretion or in any manner committed error of constitutional dimensions in revoking the probation.”

Since it seems to me that Pickens' comment was the basis for the revocation, I think the district court should have ascertained whether his statement was protected by the First Amendment. Revocation of probation either for speech protected by the Constitution or for violation of a state law, where such violation is based upon speech protected by the Constitution, would surely constitute an abuse of discretion.

In Brandenburg v. Ohio, 1969, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430, the Supreme Court recapitulated the test for whether speech is protected by the First Amendment:

“These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

In the present case, Judge Onion made the following relevant observations:

“While the appellant denied making such statement, two officers testified they heard him urge the 15 to 20 people to rush in as they could not be stopped. No such action ever occurred.
“The group of people there was described as ‘orderly,’ many being friends or relatives of the deceased. They remained mostly in the hallway or waiting room of the hospital which was open to the public.”

Judge Morrison in dissent noted that according to both versions of what Pickens said, Pickens “nowhere made the outright assertion that the persons gathered in the lobby should join together and storm the door, he simply stated what appeared to be a fact; i. e., if they all stormed the door they could get in.” 466 S.W.2d 566. Judge Morrison also noted that Pickens was not hollering or shouting, that he was at most speaking in a tone of voice which was “loud enough to be heard by apparently several of the people in the vicinity.” After Pickens made the statement in question, one of the persons present said, according to Judge Morrison, “Get out of the way and stop this foolishness.”

In light of the facts revealed by the record in this case, there is serious question whether Pickens’ statement was truly “directed to inciting or producing imminent lawless action.” His statement apparently was in a hypothetical form and was not linked with any other remarks of an inflammatory or persuasive nature. Very possibly his statement was meant simply as an expression of anger at being excluded from the presence of his dying friend. Certainly his statement was not “likely to incite or produce such action.” This is demonstrated by the orderliness of the group at all times and the apparent total failure of anyone in the group to do or say anything supportive of Pickens’ suggestion. In fact, one person present told Pickens to “stop this foolishness.” The law enforcement officials themselves apparently took no action to restrain or to arrest Pickens after he made the statement in question. This suggests that they did not really think his statement was likely to cause any trouble. To be removed from the constitutional guaranty of free speech, Pickens’ advocacy of the use of force must both (1) be “directed to inciting or producing imminent lawless action,” and (2) be “likely to incite or produce such action.” Brandenburg, supra, 395 U.S. at 447, 89 S.Ct. at 1829; Hess v. Indiana, 1973, 414 U.S. 105, 109, 94 S.Ct. 326, 38 L.Ed.2d 303. Since requirement (2) clearly was not met, and there is considerable doubt about requirement (1), I conclude that Pickens’ statement constituted speech protected by the First Amendment.

Apparently the Texas trial court revoked Pickens’ probation on the theory that his comment constituted an offense against the laws of Texas, and that Pickens had thereby violated a condition of his release. Since Pickens’ statement was within the protection of the First Amendment, his statement should not be held against him as a violation of a Texas penal statute. Otherwise, the Texas statute involved, Article 474, must be considered unconstitutional as applied to Pickens’ statement.

Alternatively, the Texas trial court may have revoked Pickens’ probation because his comment in and of itself violated the terms and conditions of his probation, regardless of whether the comment violated a Texas penal statute. It now seems clear that first amendment protections of freedom of expression apply to probationers, except possibly where restrictions are justified by government interests similar to those described in Procunier v. Martinez, 1974, - U.S. at---, 94 S.Ct. 1800, 40 L.Ed.2d 224. In cases where some legitimate government interest would justify limitation of a probationer’s first amendment freedom, such limitations should be specifically set out in the terms and conditions of probation so that the probationer is on notice of what is proscribed. In the present case, there is no indication that Pickens was advised that the terms of his probation included curtailment of his first amendment liberties. I therefore conclude that the Texas trial court abused its discretion in revoking Pickens’ probation for speech protected by the First Amendment.

      . Penal Code, Art. Jft2a. Interference with firemen, peace officers, or medical service personnel during riots, etc.

      Section 1. “Interfere” as that term is used herein shall mean to intervene and thereby obstruct passage or free movement, materially delay, or prohibit, by direct or devious means.
      Sec. 2. It shall be unlawful for any person to willfully interfere with any fireman, policeman, or other peace officer in the lawful discharge of his duties, or with any doctor, nurse, or ambulance attendant while any such persons are in the exercise of functions intended to control, reduce or contain injury to persons or property during a riot, civil disturbance, or other public disaster.
      Sec. 3. Any person who shall violate the provisions hereof shall be guilty of a felony and upon conviction shall be confined in the state penitentiary for not less than two nor more than 10 years.
      Sec. 4. The provisions of this Act shall be cumulative of all other penal laws of this state.
      Sec. 5. If any provision of this Act of the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions and applications of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable.

      . Temas Penal Code, Art. Ifil,.. Disorderly conduct.

      Section 1. No person, acting alone or in concert with others, may engage in disorderly conduct. Disorderly conduct consists of any of the following:
      (1) behavior of a boisterious and tumultuous character in a residential area or a public place such that there is a clear and present danger of alarming persons where no legitimate reason for alarm exists; or
      (2) interfering with the peaceful and lawful conduct of persons in or about their homes or public places under circumstances in which such conduct tends to cause or provoke a disturbance; or
      (3) violent and forceful behavior at any time in or near a public place, such that there is a clear and present danger that free movement of other persons will be arrested or restrained, or other persons will be incapacitated in the lawful exercise of business or amusement; or
      (4) behavior involving personal abuse or assault when such behavior creates a clear and present danger of causing assaults or affrays; or
      (5) in a public or private place engages in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct under circumstances in which such conduct tends to cause or provoke a disturbance; or
      (6) wilful and malicious behavior that interrupts the speaker of any lawful assembly or impairs the lawful right of others to participate effectively in such assembly or meeting when such conduct tends to cause or provoke a disturbance ; or
      (7) behavior near a courthouse or other public building wherein judicial proceedings are being held, designed or having the effect of interfering with the administration of justice, whether by disrupting the courts or by intimidating the judges, witnesses, jurors, or other persons having business with the courts ; or
      (8) behavior near any public building wherein matters affecting the public are being considered or deliberated, designed or having the effect of interfering with such proceedings under circumstances in which such conduct tends to cause or provoke a disturbance; or
      (9) wilful and malicious behavior which obstructs or causes the obstruction of any doorway, hall, or any other passageway in a public building to such an extent that the employees, officers, and other persons, including visitors and tourists, having business with the government are denied entrance into, exit from, or free passage in such building; or
      (10) behavior involving the display of any deadly weapon in a public place in such a manner as to alarm or frighten other persons present; or

        (11) enters upon the property of another and for a lewd or unlawful purpose deliberately looks into a dwelling on the property through any window or other opening in it.
      Sec. 2. Any person who violates any of the provisions of Section 1 of this Article shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than Two Hundred Dollars ($200). For any second or subsequent conviction of any of the provisions of Section 1 of this Article such person shall be punished by a fine of not less than One Hundred Dollars ($100) nor more than One Thousand Dollars ($1,000), or by imprisonment in the county jail for not more than thirty (30) days or by both such fine and imprisonment.

      . Statement of Facts. Probation Revocation, March 25,1970, p. 187.

      “Now, much more serious and more substantiating charge is the last charge against him, in that instead of cooperating and he did engage in unreasonable and disorderly conduct in a manner calculated to provoke disturbance by making the comment that he denies making, but that is testified to by two officers, with reference to overpowering the resistence and getting back into the room, despite the fact that he had been ejected from it at least twice and probably three times, and this sort of thing just cannot be tolerated, because a hospital is a place where people are supposed to be treated and helped, and the fact that these people may have been concerned about whether this man was alive or dead cannot be permitted to disrupt the orderly function of the public hospital.
      I think his action in — in effect, inciting mob violence in this case by advocating that they storm the door of the room in which the nurses and the body and mother of the deceased were, clearly disorderly conduct in a manner to cause or provoke a disturbance.
      Therefore, the opinion and judgment of the Court that the defendant has violated the term of his probation, and that his probation should be, and is hereby, revoked.

      . It is evident from Judge Morrison’s dissenting opinion that Pickens’ first amendment claims were considered by the Texas Court of Criminal Appeals. See 466 S.W.2d at 566. Judge Morrison dissents “because of a violation of the First Amendment of the Constitution of the United States.”

      . As reported in the opinion of the majority in the Texas Court of Criminal Appeals, 466 S.W.2d at 565, witness McAdams testified:
      “ T was standing with my back to the doorway, and Deputy Sheriff John P. Allen was standing there by the doors with me, and I heard Mr. Pickens make the statement in a loud voice that — I don’t recall the exact wording of it; it was to the effect that there aren’t very many in there, and that if we all rushed them, we can get in; they can’t stop us, I believe that was the ending of it.’ ”
      Witness Allen stated: “ ‘And he said there is only three or four of them, and if we storm in the door, there is nothing they can do about it.’ ” 466 S.W.2d 563.

      . The majority opinion by Judge Odom in the Texas Court of Criminal Appeals seems to proceed on this theory. See 466 S.W.2d at 565.

      . Pell v. Procunier, 1974, - U.S. -, -, 94 S.Ct. 2800, -, 40 L.Ed.2d -, where Justice Stewart speaking for the Court said: “ * * * a prison inmate retains those hirst Amendment rights that are not inconsistent wiih his status as a prisoner or with the legitimate penological objectives of the corrections system.” Also, see Procunier v. Martinez, 1974, - U.S. -, -, 94 S.Ct. 1800, 40 L.Ed.2d 224 (Justice Douglas concurring, joined by Justices Brennan and Marshall) and---[94 S.Ct. 1800] (Justice Marshall concurring, joined by Justices Brennan and Douglas in Part II).