author: MANSFIELD, Circuit Judge:

text:
    Roslyn FRIEDMAN, Individually and for all other persons similarly situated, Plaintiff-Appellant, v. William MEYERS et al., Defendants-Appellees.
    No. 732, Docket 73-1024.
    United States Court of Appeals, Second Circuit.
    Argued April 23, 1973.
    Decided May 14, 1973.

      Irving Lemov, New York City (Fuchs-berg & Fuehsberg, New York City, of counsel), for plaintiff-appellant.
    Frank R. Cohen, New York City (Far-ber & Cohen, New York City, of counsel) , for defendants-appellees.
    Before BREITENSTEIN, KAUFMAN and MANSFIELD, Circuit Judges.

       Of the United States Court of Appeals for the Tenth Circuit, sitting by designation.

      . Justice Finn’s opinion states: “This is not a class action but was brought solely by plaintiff. ...”

   MANSFIELD, Circuit Judge:

In this purported class action based on alleged fraudulent diversion and misappropriation of funds by promoters and managers of a real estate syndicate Roslyn Friedman, an investor in the venture, appeals from an order of the district court, Sylvester J. Ryan, Judge, granting summary judgment dismissing her complaint. Judge Ryan’s order was based principally on his view that a decision dated November 5, 1970, in an action instituted in the New York Supreme Court, Kings County, by another investor in the venture, determined the issues “adversely to the plaintiff [Friedman] and those she purportedly represented.” However, in January, 1973, while the appeal in the present case was pending, that decision was reversed on the merits by the New York Supreme Court, Appellate Division, Second Department. It further appears that genuine issues as to material facts are raised with respect to all of the other claims and defenses in the action. Accordingly, we reverse the order of the district court.

Plaintiff in the present ease is one of 302 purchasers of part interests in a real estate syndicate known as Gair Industrial Buildings, which consists of 17 commercial buildings located in Brooklyn. The defendants William Meyers and his law partner, Joseph J. Schwartz, organized the venture in 1956, negotiating for the purchase of the buildings and employing a financial statement and salesmen to offer to their clients, friends and relatives the opportunity to invest in it on the understanding that each investor would receive a 12% per annum return on his or her investment. Plaintiff claims that after she invested in the venture the defendants engaged in various fraudulent acts which resulted in their misappropriating syndicate funds for their own use at the expense of herself and other investors similarly situated.

Federal jurisdiction is invoked on grounds of diversity of citizenship. 28 U.S.C. § 1332. Plaintiff is a resident of Connecticut, defendants are residents of New York, and the amount claimed by plaintiff exceeds $10,000. Since no order has been entered permitting maintenance of the action as a class suit, we limit ourselves to consideration of it as an individual diversity action. Plain-tiff’s supplemental complaint alleges that defendant Meyers, after obtaining the sum of $2,790,000 from investors on his representation that he would purchase the Gair premises for the investors in their names, conspired with the other defendants fraudulently to withhold financial benefits from them and to misappropriate their funds by taking title to the premises in the name of defendant Blackmer Realty Corp. and causing Blackmer to lease the premises to Schwartz. It is charged that Meyers, in breach of his fiduciary duties, thereby gained rental income from the premises for the personal benefit of Schwartz and himself, failing to notify plaintiff of the true rental value of the premises and fraudulently representing to investors that the lease was for their benefit.

The complaint sets forth six additional causes of action, including claims that defendants concealed and diverted to their own use money raised in excess of the purchase price of the premises, that they fraudulently caused a new mortgage to be placed on the premises without notifying investors, which decreased the investors’ equity, and that on June 30, 1972, they fraudulently caused the premises to be sold for $6.5 million without the knowledge or consent of the investors pursuant to a scheme whereby defendants received $1,099,273.54 out of the sales price. Plaintiff seeks removal of Meyers as trustee and record owner of the premises, rescission of the lease between Blackmer and Schwartz, and damages.

Defendants deny the material allegations of the complaint and assert various affirmative defenses, including laches, the New York six-year statute of limitations, res judicata, ratification of the original transaction by plaintiff’s acceptance of monthly payments for 16 years, and ratification by 96% of the investors of the June 30, 1972, sale of the premises. The res judicata defense was based on defendants’ allegation that on November 5, 1970, in the New York Supreme Court, Kings County, action “by a member of plaintiff’s class against one of the defendants (William Meyers) for the same claim as set forth in the plaintiff’s complaint herein, judgment was rendered in defendant’s favor dismissing plaintiff’s action on the merits.”

On August 2, 1972, defendants moved for summary judgment pursuant to Rule 56, F.R.Civ.P. Various affidavits in support of their motion, including that of Meyers, give their version of the facts and circumstances surrounding the investment of funds by plaintiff and other investors in the Gair Industrial Buildings syndication, the use of Black-mer as a conduit, the sale of the premises on June 30, 1972, and disclosures made to plaintiff and other investors. Attached to the supporting affidavits is a copy of a decision by Justice John H. Finn of the New York Supreme Court, Kings County, dated November 5, 1970, in an individual action instituted by an investor in the Gair Industrial Buildings syndicate named Brotman against William Meyers, seeking a judgment requiring him to “account concerning the operation, management, sale or transfer or mortgaging of the subject premises [Gair Industrial Buildings] and that he also account for all moneys received or disbursed since 1956.” Although Justice Finn’s opinion does not reveal the exact nature of the claims made by the plaintiff in the action before him or the grounds upon which the ■ accounting was sought, it does state that “There is no charge or claim of any fraud or wrongdoing of any kind on the part of the defendant.” Holding that “the mere acceptance [by Meyers] of a bare agency is not sufficient to entitle the principal to an accounting by the agent,” Justice Finn granted the defendant’s motion to dismiss the complaint and directed the entry of judgment accordingly.

In opposition to defendants’ motion, plaintiff submitted the affidavits of herself, her attorney, and various investors in the syndicate, which directly support her complaint’s principal allegations of fraud and take issue with defendants’ assertions that disclosure was made of the material facts allegedly concealed. With respect to defendants’ contention that the action was barred by laches and the New York statute of limitations, plaintiff and other investors state under oath that they did not learn of the earlier material nondisclosures relied upon by them until 1971, which was less than a year prior to commencement of plaintiff’s suit- Furthermore, the alleged fraudulent sale of the premises in June 1972 post-dated the institution of the action and was incorporated in the supplemental complaint filed with the court’s permission on October 27,1972.

On November 27, 1972, Judge Ryan filed a memorandum decision in the form of a one-page endorsement granting defendants’ motion for summary judgment. After describing defendants’ motion and the general nature of the Gair Industrial Buildings venture, he disposed of the motion as follows:

“The record shows that the property involved in suit has been sold and that accounting claims were tried before Judge John H. Finn in the Supreme Court, Kings County, and determined by him on December 5 [sic], 1970 adversely to the plaintiff and those she purportedly represented.
“The defendants’ motion to dismiss is granted with taxable costs, and the Clerk is directed to enter forthwith judgment dismissing the action on the merits and with taxable costs to defendants.
“So ordered.”

While plaintiff’s appeal in the present case was pending, the New York Supreme Court, Appellate Division, Second Department, filed its opinion 41 A.D.2d at 547, 339 N.Y.S.2d 735, at 736 (1973) reversing on the merits Justice Finn’s decision and stating in pertinent part:

“By this action plaintiff [Brotman] sought an accounting of the operation of the syndicate to determine the present value of her interest and whether her received return properly represented her full interest in the income or profits of the syndication.
“Special Term found only a bare agency, such as did not entitle plaintiff to an accounting. With this we disagree. We find that plaintiff entrusted money to defendants for the purchase of real property to be held in defendant’s name and we further find that the above-mentioned certificate of ownership constituted a declaration of trust, subscribed by the declarant (defendant) and thus in sufficient compliance with section 5-703 of the General Obligations Law. Based thereon, plaintiff is entitled to the relief sought (see Matter of Brown, 252 N.Y. 366, 375, 69 N.E. 612, 614; Hutchins v. Van Vechten, 140 N.Y. 115, 118, 35 N.E. 446).”

Turning to the case before us the defendants, by moving for summary judgment, assumed the burden of establishing that there was no genuine issue with respect to those material facts that would entitle them to dismissal of the complaint, Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Cali v. Eastern Airlines, Inc., 442 F.2d 65, 71 (2d Cir. 1971), including the absence of fraudulent intent on their part and plaintiff’s knowledge of the facts allegedly concealed. Defendants have clearly failed to meet that burden.

We seriously question whether Justice Finn’s decision, even if it had not been reversed, would be binding on the plaintiff here. See, generally, 6 J. Moore, Federal Practice ¶ 56.17 [52] (2d ed. 1972). That action was brought by a different investor who did not purport to act on behalf of Mrs. Friedman, and it involved different claims which did not charge any fraud at all, much less the alleged frauds relied upon by her. However, we need not decide whether that decision would be res judicata. It was reversed on the merits and was thus deprived of any binding effect that it might have had in the present case.

The other claims and defenses in the present suit bristle with genuine issues as to the material facts. For instance, issues are raised as to the state of mind, intent and knowledge of the parties. We have repeatedly stated that summary judgment is particularly inappropriate where, as here, it is sought on the basis of “the inferences which the parties seek to have drawn [as to] questions of motive, intent, and subjective feelings and reactions,” Cali v. Eastern Airlines, Inc., supra at 71, quoting Empire Electronics Co. v. United States, 311 F.2d 175, 180 (2d Cir. 1962). See Union Insurance Society of Canton, Ltd. v. William Gluckin & Co., 353 F.2d 946, 951 (2d Cir. 1965); Cross v. United States, 336 F.2d 431, 433 (2d Cir. 1964). Plaintiff states under oath that she did not discover the 1956 fraud until 1971. Accepting her averment under oath, as we must in the absence of proof conclusively establishing knowledge, her action would not be time-barred, since it was instituted within one year of her discovery of the fraud. See N.Y.C.P.L.R. §§ 203(f), 213(9) (McKinney 1972). At this stage, furthermore, dismissal would not be justified on the ground that she may have received papers which would have lead an investor to suspect the existence of the true facts. Suspicion will not substitute for knowledge of facts from which fraud could reasonably be inferred. Erbe v. Lincoln Rochester Trust Co., 3 N.Y.2d 321, 326, 165 N.Y.S.2d 107, 111, 144 N.E.2d 78 (1957); see Ackerman v. Ackerman, 123 App.Div. 750, 755, 108 N.Y.S. 534 (2d Dept. 1908), affd., 200 N.Y. 72, 93 N.E. 192 (1910). Nor can the essential knowledge be founded on constructive notice based on the recordation of the Schwartz lease in the County Clerk’s office. Cf. Mead v. Bunn, 32 N.Y. 275, 280 (1865).

For the foregoing reasons we reverse.

      . Although diversity, in a class suit, is determined by the citizenship of the named representatives, Supreme Tribe of Ben Hur v. Cauble, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673 (1921); Calagaz v. Calhoon, 309 F.2d 248 (5th Cir. 1962); Boesenberg v. Chicago Title & Trust Co., 128 F.2d 245 (7th Cir. 1942), there is doubt as to whether individual investors claiming less than $10,000 damages could qualify as members of the class. Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969); Zahn v. International Paper Co., 469 F.2d 1033 (2d Cir. 1972), cert. granted, 410 U.S. 925, 93 S.Ct. 1370, 35 L.Ed.2d 585 (1973).

      . The original complaint was filed on February 7, 1972; a supplemental complaint was filed on October 27, 1972.

      . Judge Ryan’s decision also denied plaintiff’s cross-motion for partial summary judgment setting aside and canceling any and all releases obtained by defendants from other investors. This ruling, being interlocutory, is not appealable. See United States v. F. A. Baehner, Inc., 309 F.2d 154 (2d Cir. 1962) ; Rabekoff v. Lazere & Co., 323 F.2d 865 (2d Cir. 1963).


source: Caselaw Access Project

author: CUMMINGS, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. UNITED STATES STEEL CORPORATION, Defendant-Appellant.
    No. 72-1590.
    United States Court of Appeals, Seventh Circuit.
    Heard Feb. 16, 1973.
    Decided May 11, 1973.
    Rehearing Denied June 8, 1973.
    Certiorari Denied Oct. 15, 1973.
    See 94 S.Ct. 229.

      See also D.C., 328 F.Supp. 354.

      Jay A. Lipe, Chicago, III., for defendant-appellant.
    John F. Flynn, Asst. U. S. Atty., Hammond, Ind., William C. Lee, U. S. Atty., Ft. Wayne, Ind., for plaintiff-ap-pellee.
    Before SWYGERT, Chief Judge, and CUMMINGS and STEVENS, Circuit Judges.
   CUMMINGS, Circuit Judge.

This criminal prosecution was based upon a 2-count information alleging violations of Sections 13 and 16 of the Rivers and Harbors Act of 1899 (33 U.S.C. §§ 407 and 411). Count I alleged that defendant discharged refuse matter from a drainpipe into the east branch of the Grand Calumet River on October 11, 1967. Count II alleged that the defendant deposited refuse matter from another drainpipe into the same river on the same date. The refuse matter described in Count I consisted of a “red-brown particulate sediment” and in Count II, of an “oily substance.” After a jury verdict of guilty, the district court assessed the maximum fine of $2,500 on each count, and defendant has appealed from the judgment imposing those fines. The district court’s memorandum opinion is reported at 328 F.Supp. 354 (N.D.Ind.1970).

In this Court defendant admits the discharges in question. In support of reversal it urges the non-applicability of the 1899 Act to the discharges because they did not affect the navigability of the receiving stream and because they occurred after enactment of The Water Quality Act of 1965, the contrariety of its conviction to Congressional intent and to due process in the absence of a regulatory permit program, and the er-roneousness of certain of the trial court’s evidentiary rulings. We affirm.

Applicability of Section IS to Non-Navigation-Threatening Refuse Discharges

Defendant’s principal argument is that Section 13 of the Rivers and Harbors Act of 1899 does not cover these discharges of effluent waste into the Grand Calumet River on the ground that the statute requires an effect on navigation. At the trial, the Government made no attempt to prove that these discharges impeded or obstructed navigation or had a tendency to do so. It contended, as it contends here, that the first clause of Section 13 applies to the present discharges regardless of an effect on navigation.

The statute in question has lately become known as the Refuse Act of 1899. Section 13 thereof provides:

“It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water; and it shall not be lawful to deposit, or cause, suffer or procure to be deposited material of any kind in any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed : Provided, That nothing herein contained shall extend to, apply to, or prohibit the operations in connection with the improvement of navigable waters or construction of public works, considered necessary and proper by the United States officers supervising such improvement or public work: And provide further, That the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material; and whenever any permit is -so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful.” (33 U.S. C. § 407)

The first offense created by this statute, the offense for which defendant was prosecuted, consists in discharging into navigable waters “any refuse matter of any kind or description whatever.” The sole exception to the refuse matter coverage is for municipal sewage. The second portion of the statute addresses the depositing of “material of any kind in any place on the bank of any navigable water * * * where the same shall be liable to be washed into such navigable water * * *.” Such depositing, however, is an offense only if thereby “navigation shall or may be impeded or obstructed.” Although defendant contends Congress intended that this navigational effect limitation also apply to the refuse discharge prohibition of the first portion of the statute, we do not understand it to contend that the adverbial phrase embodying that limitation can properly be read to modify the definition of the first offense. Grammatically it cannot.

Section 13 contains two provisos, only the second of which is pertinent here. That proviso allows “the deposit of any material above mentioned in navigable waters” if upon prior application to him the Secretary of the Army grants a permit therefor. The criterion for granting the permit is the Chief of Engineers’ judgment that “anchorage and navigation will not be injured” by the deposit. The final proviso makes sense only if it is interpreted to apply to both the first and the second offenses enunciated by the statute. There seems to be no question but that it applies to the second portion. Since the first clause is the one referring explicitly to a “deposit * * * into any navigable water,” the proviso fits it most comfortably. If it did not apply to the first clause, no discharge of any refuse matter could ever avoid criminality.

On its face, therefore, the first part of Section 13 proscribes the discharge of “any refuse matter of any kind or description whatever” into navigable waters without a permit. The words of the statute do not impose any limitation of an effect on navigation or tendency to affect navigation on the refuse matter covered. Defendant’s argument for reading in this qualification relies on legislative history as indicative of a Congressional concern only with discharges “which tend to impair navigability.” We think the statute is plain on its face, but since words are necessarily inexact and ambiguity is a relative concept, we now turn to the legislative history, mindful that the plainer the language, the more convincing contrary legislative history must be.

Although statutes dealing with discharges in the navigable waters of New York Harbor were enacted in 1886 and 1888, the first statute of general applicability was enacted in 1890. Section 6 of this statute made it unlawful to empty either from a vessel or from shore “any ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, slag, cinders, ashes, refuse, or other waste of any kind, into any port, road, roadstead, harbor, haven, navigable river or navigable waters of the United States which shall tend to impede or obstruct navigation * * * ” (emphasis supplied). It also prohibited the deposit of such materials on the bank of any navigable waters where it was liable to be washed into the waters and “whereby navigation shall or may be impeded or obstructed.” A proviso excepted deposits under a permit from the Secretary of War designating a place where the deposit would not obstruct navigation. 26 Stat. 453.

In 1894 Congress again legislated on the subject of discharges into navigable waters. Section 6 of the Rivers and Harbors Act of that year made it unlawful to discharge “by any process or in any manner, ballast, refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any other matter of any kind other than that flowing from streets, sewers, and passing therefrom in a liquid state in the waters of any harbor or river of the United States * * * elsewhere than in the limits defined and permitted by the Secretary of War.” 28 Stat. 363. The striking difference between the 1890 and 1894 Acts is the absence of any navigation-threatening qualification in the latter. Moreover, Section 6 of the 1894 Act has a shortened list of enumerated substances and introduced the exception for municipal sewage.

Defendant argues that the absence of any explicit qualification in the 1894 Act relating to navigational impairment does not mean that Congress intended to abandon that qualification. It seems true, as defendant suggests, that the 1894 Act was precipitated by the Corps of Engineers’ complaint that the 1890 Act was difficult to enforce because it contained no provision for an in rem proceeding against a vessel or for liability of the master or engineer; the 1890 Act applied only to persons or corporations owning the vessel. In response, Congress drew on Sections 2 and 4 of the 1888 New York Harbor Act in enacting Sections 7 and 8 of the 1894 Act to supply the lacking features. However, it also borrowed from the New York Harbor Act to enact the substantive provision of the 1894 Act, Section 6, quoted in part above. It has been suggested that this was “redundant” because the Corps only sought additional liability provisions and the 1890 Act had already delineated the substantive offense. Moreover, since the 1894 Act was appended to the annual river and harbor appropriation bill, it • is suggested that there was a limited opportunity for debate and Congress was assured that the bill only prevented discharges which would affect navigation. Although this is all very plausible, it is not a truly satisfactory basis for assuming Congressional oversight of the differences between the 1890 and 1894 statutes. Most probably Congress was primarily concerned with protecting the navigability of navigable waterways, but that is not to say it was exclusively so concerned. As the Supreme Court has said, “ * * * the ‘serious injury’ to our watercourses * * * sought to be remedied was caused in part by obstacles that impeded navigation and in part by pollution * * *." United States v. Standard Oil Co., 384 U.S. 224, 228-229, 86 S.Ct. 1427, 1429, 16 L.Ed.2d 492. But even if Congress was solely preoccupied with protecting navigability, that would not negate Congressional resolve to forbid the discharges of the listed and other foreign substances regardless of their apparent effect on navigation unless specially permitted. To say that Congress was concerned with protecting navigation is not determinative of the scope of the measures Congress took to effect that protection.

In 1896 the Attorney General construed Section 6 of the 1894 Act “as an absolute prohibition” against the discharge of material which, although conceded to be covered by Section 6, would not have affected navigability. 21 Opinions of the Attorney General 305, 307. The “ore washings” involved, however, would have “destroy [ed] the fish, pollute [d] the water so as to destroy its usefulness for domestic purposes, and injure[d] the scenery along the stream.” Id. at 306. Although the Attorney General opined that the Secretary of War was required to issue a permit under these circumstances, he indicated no doubt about the proposition that a permit had to be applied for and that the Secretary’s judgment, rather than the discharger’s, about impairment of navigability was controlling.

Also in 1896, Congress commissioned the Secretary of War to make a compilation of all laws enacted for the protection of navigable waterways and to submit to Congress therewith recommendations “as to revision, emendation, or enlargement of the said laws as, in his judgment, will be advantageous to the public * * *." 29 Stat. 234. The Secretary of War delegated the task to the Chief of Engineers, whose compilation and recommended draft were submitted to Congress. The compilation listed Sections 6 of both 1890 and 1894 Acts, and the recommended draft was an attempt to consolidate these Acts into one Section, which became Section 13 of the Rivers and Harbors Act of 1899.

Section 13 eliminated the enumeration of substances present in both the 1890 and 1894 Acts, substituting for them and their catch-alls the phrase “any refuse matter of any kind or description whatever.” Moreover, as noted previously, the first portion of Section 13 was not modified by the navigation-threatening limitation appearing in the 1890 Act; only the second portion contains that modifier. The absence of the navigational effect limitation in the first portion of Section 13 is best explainable on the basis that Section 6 of the 1894 Act contained no such limitation. Even though the phrase “any refuse matter of any kind or description” must be construed in pari materia with the lists of substances found in the earlier Acts (see United States v. Standard Oil Co., supra at 228-229, 86 S.Ct. 1427), it does not follow that only refuse matter which tends to impede navigation is covered. The enumeration in the 1890 Act ends with the catch-all “or other waste of any kind.” If only materials with an inherent tendency to impede or obstruct navigation are involved, the modifier “whereby navigation shall or may be impeded or obstructed” is superfluous. The enumeration in the 1894 Act ends with the broader catch-all “or any other matter of any kind.” The use of “any other matter of any kind” militates against an overly strict ejusdem generis construction, but in any event, it is obvious that not every discharge of the enumerated substances will tend to affect navigation. For instance, the discharge of “acid” is prohibited, but not every acid will be capable of corroding wharves or ships’ hulls. Yet a discharge of any acid without prior approval of the Secretary of War would certainly seem to be squarely in the teeth of the statutory prohibition.

Thus it is entirely consistent with defendant’s hypothesis that Congress was only concerned with navigational impairment to construe the scheme of the 1899 Act as prohibiting the discharge of any refuse matter of any kind or description unless the Secretary of the Army determined the matter could have no adverse navigational impact. Indeed, assuming defendant’s interpretation, this is a plausible construction because otherwise it would be up to the individual to determine whether his proposed discharge matter could have a tendency to obstruct navigation, and this is surely not a desirable feature if Congress was really intent on remedying the evil of navigational impairments. Much damage could be done by a discharger who considered his discharges harmless to navigation before they were discovered. Moreover, individual, private determination of the capability of refuse matter for affecting navigation is simply inconsistent with the comprehensive language used.

This review of the legislative history of Section 13 of the 1899 Act does not persuade us that the statute means other than what it says. The discharge of any refuse matter, regardless of any apparent effect on navigation, is prohibited in the absence of a permit even if Congress thought at the time of enactment that permits would not or could not be withheld on the ground that the material discharged was merely a pollutant.

Defendant also relies on the administrative interpretation of Section 13 as establishing that the officials charged with the administering of the Act did not believe that it applied to discharges which had no navigational effect. It asks us to “give great weight” to the administrative interpretation in determining the scope of the statute. In effect from 1965 through December 1968, the only regulation pertaining to Section 13 was 33 C.F.R. § 209.395 (1967). But that regulation recites the statutory proscription of deposits in navigable waters of “refuse matter of any kind or description whatever” other than sewage. Although it states that the jurisdiction of the Department of the Army “is limited and directed to such control as may be necessary to protect the public right of navigation” (emphasis supplied), it does not purport to construe Section 13 as allowing, without permission, discharges of refuse matter which the dis-charger has determined to have no tendency to affect navigation. It does not suggest that the Secretary of the Army’s determination of no navigational effect need not be interposed before any discharge of refuse matter is permissible. Furthermore, it states that the Department has directed “action” under Section 13 only “principally” against the discharge of those materials obstructive of or injurious to navigation. This regulation hardly amounts to an administrative interpretation that discharges such as defendant’s are ab initio outside the reach of the statute’s prohibition. The same is true of the 1968 amendment defendant relies on (33 C.F.R. § 209.-200(c)(2).)

Moreover, in addition to the facial frailty of these regulations as support for defendant’s position, earlier court decisions had interpreted the first offense created by Section 13 to have no navigational effect limitation. La Merced, 84 F.2d 444 (9th Cir. 1936); United States v. Ballard Oil Co., 195 F.2d 369 (2d Cir. 1952); see also United States v. Republic Steel Corp., 362 U.S. 482, 490-491, 80 S.Ct. 884, 4 L.Ed.2d 903. Even if these regulations could be interpreted as defendant would like, administrative interpretation is entitled to little weight in the face of contrary judicial construction.

In sum, we conclude that what defendant characterizes as “pure dicta” in United States v. Standard Oil Co., 384 U.S. 224, 230, 86 S.Ct. 1427, 1430, 16 L.Ed.2d 492, was not ill-considered. There the Supreme Court stated that as used in Section 13 of the Refuse Act of 1899, “[t]he word ‘refuse’ includes all foreign substances and pollutants apart from those ‘flowing from streets and sewers and passing therefrom in a liquid state’ into the watercourse.” We so hold in accord with our sister Circuits which have faced the same question. United States v. Pennsylvania Industrial Chemical Corp., 461 F.2d 468, 471 (3rd Cir. 1972), certiorari granted, 409 U.S. 1074, 93 S.Ct. 689, 34 L.Ed.2d 662; United States v. Ballard Oil Co., 195 F.2d 369, 371 (2d Cir. 1951); La Merced, 84 F.2d 444, 446 (9th Cir. 1936).

Accommodation of Refuse Act of 1899 and Amended Federal Water Pollution Control Act of 19k8

Defendant contends that the Refuse Act of 1899 and the Federal Water Pollution Control Act of 1948, as amended at the time of the discharges in question by The Water Quality Act of 1965, (particularly 33 U.S.C. §§ 1151 and 1160), must be accommodated. First it argues that together they mean “that the Corps of Engineers should continue to have the power to deal with the dumping of waste matter having the potential to affect navigation under § 407 [Section 13 of the 1899 Act], while the problem of water pollution generally is to be dealt with through resort to the Federal Water Pollution Control Act, as amended.” Alternatively defendant contends that those discharges of effluent industrial waste which do not violate the applicable Federal Water Quality Standards and Implementation Plan should be considered outside the purview of “refuse matter” in the 1899 Act.

We do not see the necessity for any accommodation. The two statutes are not irreconcilable if the coverage of the Refuse Act of 1899 extends to discharges of pollutant refuse matter, as we have determined it does. Cf. Askew v. American Waterways Operators, 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280. Had defendant secured a discharge permit, it could not have been in violation of the 1899 Act, and any pollution abatement recourse the Government would have had would only be under 33 U.S.C. § 1160. True, compliance with federal water quality standards developed under the amended Federal Water Pollution Control Act would not immunize defendant from prosecution for discharges without a permit under the 1899 Act. However, “ [i]t is crucial to note that beginning with the Water Pollution Control Act of 1948, Congress has on four separate occasions in the past 24 years specifically stated that section 407 of the Rivers and Harbors Act, banning ‘any refuse matter,’ was not affected by the subsequent legislation.” United States v. Pennsylvania Industrial Chemical Corp., supra, 461 F.2d at 472-473. See 33 U.S.C. § 1174. It may be hypothesized that Congress was unaware of the scope of the Refuse Act of 1899 when it consistently preserved its vitality, but in view of the Act’s all-encompassing language and the existence of the early La Merced and Ballard Oil Co. decisions, as well as the Standard Oil Co. pronouncement prior to the latest preservation in 1970, this is a doubtful hypothesis. The Third Circuit has pointed out the Acts’ consistency on the assumption that they “were designed to accomplish what may be viewed as the same end by different means.” United States v. Pennsylvania Industrial Chemical Corp., supra at 473. But even if when enacting and amending the Federal Water Pollution Control Act of 1948 while preserving the Refuse Act of 1899 Congress saw the latter as a “navigational statute,” that hardly means Congress thought pollutant discharges were outside of the Refuse Act’s embrace. On the contrray, it would seem that explicitly preserving the 1899 Act’s vitality in the context of anti-pollution legislation manifests recognition of the statutes’ overlapping coverage. Notably in 1970 Congress directed the Secretary of the Army not to issue any permit unless applicable water quality standards were complied with. 33 U.S.C. § 1171(b)(1). Of course, it is foolhardy to purport to be able always to divine the intentions and assumptions of Congress. But we perceive no conflict so irreducible or evidence of Congressional intent so strong as to nullify application of “the cardinal rule that repeals [of legislation] by implication are not favored.” Id. quoting from Lynch v. Household Finance Corp., 405 U.S. 538, 549, 92 S.Ct. 1113, 1120, 31 L.Ed.2d 424.

Consistency of Defendant’s Convictions with Congressional Intent and with Due Process

Defendant argues that even if its discharges are within the proscription of Section 13 of the Refuse Act, its convictions are “contrary to the intention of Congress” because no regulatory permit program under Section 13 existed in 1967 at the time of the discharges. Relying on the Third Circuit’s decision in United States v. Pennsylvania Industrial Chemical Corp., supra, it contends that in enacting Section 13 Congress intended to establish a regulatory program and in enacting The Water Quality Act of 1965 Congress must have contemplated the existence of such a program under Section 13 or, because of their incompatibility, it would not have preserved the latter statute.

However, Section 13 does not speak in terms of a regulatory permit program. Straightforwardly it provides that upon prior application the “Secretary of the Army * * * may permit the deposit of any material above mentioned in navigable waters * * Section 13 may be contrasted with Section 11 (33 U.S.C. § 404) which specifically contemplates, though does not mandate, a regulatory program. See 33 U.S.C. § 406. And, even under the authority of Section 4 of the Rivers and Harbors Act of 1905, 33 U.S.C. § 419, “the establishing of a permit program by the Secretary of the Army and the Chief of the Corps of Engineers is discretionary with them as opposed to mandatory.” Bass Anglers Sportman Soc’y v. United States Steel Corp., 324 F.Supp. 412, 416 (S.D., M.D. & N.D.Ala.1971), affirmed, 447 F.2d 1304 (5th Cir. 1971). If defendant’s argument is correct, then it would follow that the discharge of anything — navigation threatening or not — is permissible so long as no permit program has been instituted. This stands the statute on its head. Clearly the statute generally proscribes refuse discharges unless in any instance the Secretary of the Army has exercised his discretion to permit it.

Furthermore, the efficacy of the Refuse Act of 1899 is not dependent upon its being construed to embody a formal regulatory program in order to make it compatible with subsequent anti-pollution legislation. After enactment of The Water Quality Act of 1965 allowing discharges which met minimum water quality standards, it could make no difference in terms of the general prohibition of the 1899 Act whether the Secretary of the Army determined the effect of a proposed discharge on navigation on an ad hoc basis or pursuant to a formal regulatory permit program. When in 1970 Congress instructed federal licensing or permitting agencies to disapprove proposed discharges which failed to meet applicable water quality standards (33 U.S.C. § 1171(b)(1)), that did not undermine the across-the-board prohibition of refuse matter discharges absent the Secretary’s issuance of a permit therefor. And this limitation on the Secretary’s permit power is not substantively affected by the manner in which the permit power had theretofore been exercised. Indeed implementation of the water quality restrictions was accomplished through the institution of the Refuse Act Permit Program by Executive Order 11574 in December of 1970, but the fact that practical implementation of the 1970 water quality limitations necessitated a formal administrative permit program is not a sufficient reason to say that the previous absence of such a program rendered the general prohibition of the 1899 Act nugatory. Simply put, neither the 1965 nor the 1970 Act created a right to discharge refuse matter which did not theretofore exist.

Defendant would equate the absence of a regulatory permit program with the non-availability of a permit but cannot make that equation balance. Defendant does not contend that it ever applied for a permit and was refused, but rather argues that any application would have been unavailing. However, subsequent to the decision in United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903, in May 1960, and prior to the time of defendant’s discharges, at least four permits for the discharge of industrial waste were issued, three of which were issued by the Chicago District of the Corps of Engineers — the District having jurisdiction over the Grand Calumet River — to steel producers in the Chicago area allowing the discharge of treated process water into the Calumet River. Although these permits were issued as part of the settlement of the Republic Steel Corp., supra, litigation, they militate against indulging in defendant’s assumption that a permit application would have been unavailing. This Court has previously recognized the Secretary of the Army’s ability to grant a permit on an individual application in the absence of a formal permit program (United States v. Republic Steel Corp., 286 F.2d 875, 879 (7th Cir. 1961)), and we think defendant was not entitled to assume a permit was unavailable. See Poulos v. New Hampshire, 345 U.S. 395, 410 n. 13, 73 S.Ct. 760, 97 L.Ed. 1105.

Since defendant cannot successfully assert a defense that no permit was available, it is unnecessary to consider whether its conviction violated due process if it could not obtain a permit. However, we note that the First Circuit has, with cogency, rejected such a claim. United States v. Granite State Packing, 470 F.2d 303, 304 (1st Cir. 1972).

Next defendant contends that its conviction violated due process because the Army Corps of Engineers had publicly stated that the Grand Calumet River was not a navigable water of the United States over which it exercised “active” jurisdiction. However, the two statements defendant points to, Exhibits C and D, both properly excluded from evidence (see infra), do not support defendant’s reliance. The first statement bore the date of April 8, 1969, one and a half years after the discharges in question. The second statement refers to those bodies of water over which bridges cannot be built without advance approval of the Secretary of the Army. Neither statement purports to be a definitive list of navigable waterways within the District.

Evidentiary Rulings

The defendant assails various evidentiary rulings of the trial court. First under attack are the admissions of Government Exhibits 1 through 7 and 13. The basis of the challenge is their belated disclosure to defense counsel. On June 1, 1970, in its discovery motion, defendant sought to inspect and copy any documents in the Government’s possession “which the government will introduce at the trial of this case or which contain information or evidence favorable to the defendant * * The Government agreed to comply. Although the trial was first set for November 30, 1970, the cause was not actually called for jury trial until October 6, 1971. The Government’s case was tried by Assistant United States Attorney Flynn of Hammond, Indiana, and James Moore of the Department of Justice in Washington, D.C. Mr. Moore came into possession of certain documentary material on the issue of the navigability of the Grand Calumet River in late September 1971. We are advised that the first time that Moore, Flynn and their navigability witness, Peter Machinis of Chicago, had an opportunity to discuss the documents together was on Tuesday morning, October 5, 1971, in Hammond. Defendant admits the receipt of copies of Exhibits 1, 2, 3, 5, 6 and 7 on that afternoon. As the district judge permissibly stated in admitting these exhibits and Exhibit 4, which was first shown to defense counsel on the morning of October 6th before trial commenced:

“The [discovery] motion did not require any materials that the Government may have pertaining to this case, but asks for materials which the Government will introduce at the trial. Until the Government makes that determination to use it, or introduce, or attempt to introduce it at- the trial, there was no duty to disclose.”

Moreover, as the district judge also stated, defense counsel made no prompt motion for a continuance on the ground that there was inadequate opportunity properly to analyze or assess the material.

Exhibit 13, which was a compilation of Exhibits 1, 2 and 3 and was prepared by government witness Machinis and his assistant Mr. Kloker, was also received in evidence over defendant’s objection. Exhibit 13 was first exhibited to defense counsel on October 6th before the opening of the trial. It was prepared on October 1st in six hours, the same day that Machinis received the underlying Exhibits 1, 2 and 3. Copies of Exhibit 13 did not come out of the reproduction room until October 2d, and the first time government trial counsel saw them was on Tuesday October 5th, the day before the trial commenced. Although, as noted, the compilation was not made available to defendant’s counsel until just before the start of the October 6th trial, the basic Exhibits 1, 2 and 3 had been given to defense counsel the day before. Mr. Machinis did not take the stand until October 7th. Our study of the transcript shows that defendant’s trial counsel was able to cross-examine him thoroughly as to the navigation exhibits.

Defendant did not begin its case in chief until October 11th and could have recalled Machinis as its witness or secured another surveyor to testify concerning the exhibits in question. Furthermore, exhibits of this nature were equally available to defense counsel. Since these documents were produced under the discovery motion as documents “which the government will introduce at the trial,” defense counsel was on notice of their prospective use. Therefore, the district judge was justified in overruling as untimely a motion for continuance made after the empaneling of the jury.

We hold that the court’s rulings with respect to the admission of these eight exhibits did not amount to an abuse of discretion. Defendant has not shown that the Government decided to use the exhibits substantially before they were exhibited to defendant. Similar documentary materials were available to defendant. There is no showing of prejudice, and any right to continuance came too late. In these circumstances, Rule 16(g) of the Federal Rules of Criminal Procedure did not require the district court to impose an exclusionary sanction upon the Government. See Hansen v. United States, 393 F.2d 763, 770 (8th Cir. 1968).

Defendant asserts that the district court improperly excluded its Exhibits C and D. These exhibits were offered on the issue of navigability and as support for defendant’s theory that the Government was, in effect, estopped under pain of due process from claiming the river was navigable. Exhibit C consisted of an April 8, 1969, Army Corps of Engineers public notice listing certain waterways within the Chicago District where the Corps of Engineers exercises “active jurisdiction” against obstructions to navigation and requires work permits under Section 10 of the Refuse Act (33 U.S.C. § 403). The portion of the Grand Calumet River adjacent to defendant’s plant is not listed. Exhibit D is a May 9, 1958, public notice of the Army Corps of Engineers showing navigable waters in the Chicago District where the Secretary of the Army’s approval is needed for plans for bridges. The span next to the defendant’s plant on the Grand Calumet River is not included.

This case was tried on the theory that the Grand Calumet River was navigable in its state of nature and must therefore be deemed navigable thereafter as a matter of law. Economy Light & Power Co. v. United States, 256 U.S. 113, 41 S.Ct. 409, 65 L.Ed. 847; United States v. Appalachian Elec. Power Co., 311 U.S. 377, 408, 61 S.Ct. 291, 85 L.Ed. 243. Defendant does not challenge this legal proposition. The district court correctly excluded Exhibit C because whether the Corps of Engineers exercised control of works on a particular waterway would not be determinative of whether the waterway is navigable in the legal sense. Furthermore, the exhibit was issued in 1969 and did not relate to the navigability of the river at the time of these 1967 offenses and, as the district judge remarked, would “only tend to confuse the jury.”

Exhibit D listed certain bodies of water under the heading “Navigable Waters of the United States Within the U.S. Army Engineer District, Chicago, Illinois, Requiring Approval of Bridge Plans by the Secretary of the Army.” The text of the document was to the effect that advance approval for the building of bridges over waterways in the Corps’ Chicago District would no longer be necessary except as to specifically listed waters. The district court was correct in stating “this document has nothing whatsoever to do with navigability and does not so indicate.”

The Government’s historical evidence evidently satisfied the jury that this portion of the Grand Calumet River was once a navigable river. Once found to be navigable, the water remained so. Economy Light & Power Co., supra. Exhibits C and D were properly excluded as not material to the determination of navigability in law.

With respect to the other purpose for which the exhibits were offered —to establish the existence of an administrative policy to treat the Grand Calumet River as non-navigable and thereby estop the Government from claiming defendant should have applied for a permit —the exclusion was likewise correct. Exhibit C was properly excludible by virtue of its chronology alone; defendant hardly could have relied on the 1969 notice in 1967. Upon thorough examination of Exhibit D, the court below correctly found, “it certainly is not an indication of any policy by the Corps of Engineers to the effect that those [waters] over which the prior approval of bridges will not be required [are] considered by them as nonnavigable.” It was stipulated that between the date of Exhibit D in May 1958 and that of Exhibit C in April 1969, there were no known public notices dealing generally with the subject of navigable waters.

We have considered the remaining arguments asserted by defendant and deem them to be without merit. Therefore, the judgment is affirmed.

Affirmed.

Before SWYGERT, Chief Judge, and CUMMINGS and STEVENS, Circuit Judges.

ON APPELLANT’S PETITION FOR REHEARING.

ORDER

In support of its petition for rehearing defendant argues, in part, that the Supreme Court’s recent opinion in United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973), requires that defendant have the opportunity to prove that it was affirmatively misled by regulations and other official pronouncements of the Corps of Engineers into believing that 33 U.S.C. § 407 did not apply to its discharges. However, in that case the defendant offered to prove at trial that it relied in good faith on 33 C.F.R. § 209.395 (1966) and 33 C.F.R. § 209.200(e)(2) (1969) in concluding its discharges were permissible under law, and it raised the exclusion of such proof as an issue on appeal. Here, in contrast, although defendant invokes the same regulations, it has pointed to no attempt in the trial below to prove that it actually relied upon them in making its discharges, and on appeal defendant utilized those regulations solely in an effort to establish an administrative interpretation to which, it argued, the Court should give great weight in construing 33 U.S.C. § 407. It did not argue that it had relied on these regulations in discharging the refuse matter, nor did it argue that any proof of reliance thereon was submitted and improperly excluded below. Insofar as Exhibits C and D are concerned, for the reasons set forth in the Court’s opinion, their exclusion from evidence was justified. Had they been admitted, they could not have formed a sufficient basis to justify reasonable reliance, as the district court indicated in its ruling.

The petition for rehearing is denied.

      . For violations of Section 13, Section 16 of this statute imposes fines from $500 to $2500 or imprisonment for 30 days to a year or both. (33 U.S.C. § 411)

      . See United States v. Republic Steel Corp., 362 U.S. 482, 490, 80 S.Ct. 884, 4 L.Ed.2d 903.
      This exception had its genesis in an 1888 Act relating to discharges into New York Harbor (25 Stat. 209, as amended, 33 U.S.C. § 441). It is found in Section 6 of the Rivers and Harbors Act of 1894 (28 Stat. 363), which is drawn from the 1888 Act, and was carried through to Section 13 of the Rivers and Harbors Act of 1899. The district court observed it would be anomalous to have an exception for refuse matter “flowing from streets and sewers and passing therefrom in a liquid state” if the statute was aimed solely at materials which obstructed navigation because the excepted matter had no apparent tendency to obstruct navigation in the first place. 328 F.Supp. at 357. Of course, sewage “may contain some articles in suspension that settle out and potentially impair navigability.” United States v. Republic Steel Corp., supra 362 U.S. at 491, 80 S.Ct. at 889, but permanent shoaling only occurs “in a few instances” and generally the suspended organic matter will decompose and pose no problem. Id. at n. 6. The exception addresses matter which typically will not affect navigability, but, on the other hand, does not exempt from a class of possibly obstructing material only that which could not impair navigation since it excepts all “liquid” sewage discharges.

      . 24 Stat. 329.

      . 25 Stat. 209, as amended, 33 U.S.C. § 441.

      . H.Exec.Docs.No.123, 53d Cong., 2d Sess. (1894).

      . Comment, Discharging New Wine Into Old Wineskins: The Metamorphosis of the Rivers and Harbors Act of 1899, 33 Univ. of Pitt.L.Rev. 483, 499 n. 59 (1972).

      . Id. at 499-500.

      . The Attorney General’s view that the Secretary’s discretion extended only to considerations affecting navigability was premised on a restrictive interpretation of Congressional power under the Commerce Clause. However, that interpretation was not universally espoused even at the turn of the century (see Scow No. 36, 144 F. 932, 934 (1st Cir. 1906)) and, although likely, it was not necessarily that of the Fifty-third Congress. In any event, this restrictive interpretation is no longer viable; Congress does have the underlying power enabling the Secretary of the Army to decline to issue a permit on ecological grounds. See, e. g., Zabel v. Tabb, 430 F.2d 199, 203-204 (5th Cir. 1970); Kalur v. Resor, 335 F.Supp. 1, 11-13 (D.D.C.1971).

      . H.R.Doc.No.293, 55th Cong., 2d Sess. (1897).

      . United States v. Standard Oil Co., 384 U.S. 224, 227, 86 S.Ct. 1427, 16 L.Ed.2d 492.
      The person who did the actual work of compilation, later Judge Koonce, stated in lecturing on the evolution of the 1899 Act: “Under Section 10 as well as Section 13 relating to the discharge or deposit of refuse matter in navigable waters, the commission of any of the acts forbidden, not their results, constitutes the offense and the commission subjects the offending party to the prescribed penalty regardless of whether or not there is any actual injury to navigation,” Lecture by Judge G. W. Koonce, O.C.E., before the Company Officers Class, The Engineer School, Fort Humphreys, Virginia, April 23, 1926, as reported in “Water Pollution Control Legislation — 1971 (Oversight of Existing Program),” Hearings Before the H. Comm. on Pub. Works, 92nd Cong., 1st Sess. 284, 290 (emphasis added).

      . See Warner-Quinlan Co. v. United States, 273 F. 503, 505 (3d Cir. 1921).

      . That regulation provided:

        “Deposit of Refuse. Section 13 of the River and Harbor Act of March 3, 1899 (30 Stat. 1152; 33 U.S.C. 407), prohibits the deposit in navigable waters generally of ‘refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state’. The jurisdiction of the Department of the Army, derived from the Federal laws enacted for the protection and preservation of the navigable waters of the United States, is limited and directed to such control as may be necessary to protect the public right of navigation. Action under section 13 has therefore been directed by the Department principally against the discharge of those materials that are obstructive or injurious to navigation.” 33 C.F.R. § 209.395 (1967).

      . That regulation provides:
      “Section 13 of the River and Harbor Act of March 3, 1899 (30 Stat. 1152; 33 U.S.C. 407) authorizes the Secretary of the Army to permit the deposit of refuse matter in navigable waters, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, within limits to be defined and under conditions to be prescribed by him. Although the Department has exercised this authority from time to time, it is considered preferable to act under Section 4 of the River and Harbor Act of March 3, 1905 (33 Stat. 1147; 33 U.S.C. 419). As a means of assisting the Chief of Engineers in determining the effect on anchorage of vessels, the views of the U.S. Coast Guard will be solicited by coordination with the Commander of the local Coast Guard District.” 33 C.F.R. § 209.200(e)(2).

      . Defendant relies on dicta in Guthrie v. Alabama By-Products Co., 328 F.Supp. 1140 (N.D.Ala.1971), affirmed, 456 F.2d 1294 (5th Cir. 1972), which held that 33 U.S.C. § 407 did not create a federal cause of action in favor of private plaintiffs claiming pollution damage to their riparian lands. It did not focus on the issue here. Bass Angler Sportsman Soc’y v. United States Steel Corp., 324 F.Supp. 412 (S.D.M.D. & N.D.Ala.1971), affirmed, 447 F.2d 1304 (5th Cir. 1971), also relied on by defendant, held that no “qui tarn” action to recover fines imposable under 33 U.S.C. § 411 for violations of 33 U.S.C. § 407 could be maintained. This holding is not revelant to the present issue. See Jacklovich v. Interlake, Inc., 458 F.2d 923 (7th Cir. 1972). Finally, defendant adverts to Kalur v. Resor, 335 F.Supp. 1 (D.D.C.1971), which held that the Secretary of the Army’s permit regulations of April 7, 1971, 33 C.F.R. § 209.131, were beyond statutory authorization insofar as they covered non-navigable tributaries. Its holding is likewise not relevant here.

      . The Federal Water Pollution Control Act of 1948 underwent further amendment in 1966 (80 Stat. 1246), but that amendment is immaterial here. Subsequent to the discharges in question, the Act was again amended in 1970 (84 Stat. 91), and was thoroughly revised in 1972. See 33 U.S.C. § 1251 et seq.

      . 33 U.S.C. § 419 provides, in pertinent part:
      “The Secretary of the Army is authorized and empowered to prescribe regulations to govern the transportation and dumping into any navigable water, or waters adjacent thereto, of * * *■ refuse materials of every kind or description, whenever in his judgment such regulations are required in the interest of navigation.”

      . 35 Fed.Reg. 19627 (Dec. 25, 1970); 3 C.F.R. p. 309 (1973).

      . “Effects of Mercury on Man and the Environment,” Hearings Before the Subcomm. on Energy, Natural Resources, and the Environment of the S. Comm. on Commerce, 91st Cong., 2d Sess., pt. 2 at 168, 201 (1970).

      . The district court refused to receive Government Exhibits 16 and 17 into evidence because of their late disclosure on the morning the trial commenced. Exhibits 4 and 13 were admitted despite equally late disclosure, apparently because Exhibit 4 was just an additional map and because Exhibit 13 was just a compendium of Exhibits 1, 2 and 3. Furthermore, no separate objection appears to have been made that Exhibit 4 was not displayed to defendant until October 6th.

       The latter regulation was promulgated after the discharges in question.


author: WILLIAM E. MILLER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joseph Wayne KING, Defendant-Appellant.
    No. 72-2222.
    United States Court of Appeals, Sixth Circuit.
    Argued April 10, 1973.
    Decided June 29, 1973.
    Certiorari Denied Dec. 3, 1973.
    See 94 S.Ct. 594.
    A. Duane Schwartz, Asst. U. S. Atty., for defendant-appellant; George J. Long, U. S. Atty., Louisville, Ky., on brief.
    Stuart L. Lyon, Louisville, Ky., for plaintiff-appellee.
    Before PECK, McCREE and MILLER, Circuit Judges.
   WILLIAM E. MILLER, Circuit Judge.

Defendant was charged with violations of various federal statutes, inter alia 18 U.S.C. §§ 842(h), 844(a), 844(f) and 844(i), arising from an incident in Louisville, Kentucky when a high school was damaged by the use of stolen explosives. At the time of the alleged offense the defendant was 17 years of age, and he consented to be tried as a juvenile delinquent under the provisions of the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5037. After a trial before the district court without a jury, the court found the defendant to be a juvenile delinquent and committed him for the duration of his minority under the Act, 18 U.S.C. § 5034. In the court below the defendant challenged the constitutionality of the Act upon the ground that it required him as a condition to being tried under the Act rather than as an adult offender to waive any right to be tried by a jury. Although he consented to be tried under the Act, he effectively preserved (at least we so assume since it is not questioned by the appellee) the right to raise the constitutional issue on appeal. We are urged to hold that the Federal Juvenile Delinquency Act is unconstitutional insofar as it requires a juvenile to waive a jury trial as a condition to receiving the benefits of the Act.

This contention is supported, as far as we have been able to discover, only by the ruling of a 3-judge district court in Nieves v. United States, 280 F.Supp. 994 (S.D.N.Y.1968). It was held in that case that a juvenile charged with violating statutes regulating marijuana who sought to gain the privileges granted by the Federal Juvenile Delinquency Act but was thereby required to waive a trial by jury was faced with an impermissible choice. The waiver was thus found to be invalid. The ruling in Nieves was predicated upon the sixth amendment inasmuch as the court equated a proceeding under the Federal Juvenile Delinquency Act with a criminal prosecution. However, as pointed out by the district court in the present case, Nieves was decided before the decision of the Supreme Court in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). In that case the Court sustained the constitutionality of the Juvenile Delinquency statute of Pennsylvania which was challenged on the ground that it dispensed with jury trials in proceedings under the Act. It is true that McKeiver directly dealt only with the question in terms of the impact of the due process clause of the fourteenth amendment upon the states, but an examination of the principal opinion, as well as the concurring opinions, indicates that the Court regarded the juvenile delinquency law under consideration, which was not significantly different from the federal statute, as not being of a criminal nature so as to invoke all of the protections required in a criminal prosecution. On the contrary, the Court regarded juvenile delinquency proceedings to be of a distinctive character not requiring all of the formalities of the criminal adjudicative process. The Court specifically recognized its prior rulings requiring certain specific safeguards for the defendant in state juvenile delinquency proceedings, including Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), (dealing with admissibility of a confession taken from a 15-year old boy on trial for first degree murder); Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), (involving the question of waiver of jurisdiction by a juvenile court after a full investigation as permitted by the applicable statute) ; In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), (holding that due process required in state delinquency proceedings, adequate notice, the right to counsel, the right of confrontation and the right of cross-examination) ; and In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), (holding that the due process clause requires in state delinquency proceedings proof beyond a reasonable doubt of every fact necessary to constitute the crime with which the delinquent is charged). Nevertheless, the Court made clear that these rulings dealt with selective aspects of the due process clause and were not determinative of the right to trial by jury in juvenile delinquency proceedings. We think it is clear from the result reached in McKeiver and the rationale of the various opinions in that case that the Supreme Court would apply the same principles to the Federal Juvenile Delinquency Act and hold that its requirement for waiver of jury trial is not prohibited by any provision of the Bill of Rights, including the sixth amendment.

This conclusion is fortified by the character of the Federal Act which was enacted as far back as 1948. A “juvenile” is defined under the Act as any person who has not attained his eighteenth birthday; and “juvenile delinquency” is defined as the violation of a law of the United States committed by a juvenile and not punishable by death or life imprisonment. 18 U.S.C. § 5031. Unless the Attorney General in his discretion has expressly determined otherwise, a juvenile alleged to have committed one or more acts in violation of a federal law not punishable by death or life imprisonment shall be proceeded against as juvenile delinquent “if he consents to such procedure.” In that event he shall be proceeded against by information and no criminal prosecution shall be instituted for the alleged violation. 18 U.S.C. § 5032. District courts are given jurisdiction of such proceedings and may be convened at any time or place within the district, in chambers or otherwise, and the proceedings shall be without a jury. The judge is required fully to apprise the juvenile of his rights and of the consequences of his consent. It is provided that the consent shall be deemed to be a waiver of trial by jury. 18 U.S.C. § 5033. The judge is vested with wide latitude in imposing sentence. He may place the delinquent on probation for a period not exceeding his minority, or commit him to the custody of the Attorney General for a like period. It is specifically provided that such commitment shall in no event exceed the term which might have been imposed had the juvenile been tried and convicted of the alleged violation. The Attorney General may designate any public or private agency or foster home for the custody, care, subsistence, education and training of the juvenile during the period for which he was committed. Provision is also made for the court to obtain more detailed information before imposing sentence by committing the delinquent to the custody of the Attorney General at an appropriate classification center or agency. 18 U.S.C. § 5034. Elaborate provision is made to separate the juvenile delinquent after arrest from adult prisoners and to afford facilities for confinement in juvenile or foster homes and not in jails or similar places of confinement. 18 U.S.C. §§ 5035 and 5036. An important provision is that release on parole may be granted at any time in the discretion of the Board of Parole. 18 U.S.C. § 5037.

It is thus clear that proceedings under the Federal Juvenile Delinquency Act have many important characteristics distinguishing them from an ordinary criminal prosecution and we are convinced that the logic of the McKeiver decision requires us to hold that the Act is not unconstitutional. The principal purpose of the Federal Act is not punishment in the criminal sense but rehabilitation of the youthful offender. It has been held that a proceeding under this chapter results in an adjudication of a status rather than in a conviction for a crime with the stigma that would attach to such conviction. United States v. Borders, 154 F.Supp. 214 (1957) aff’d. 256 F.2d 458 (5th Cir. 1958). The constitutionality of the Act was specifically upheld by the Eighth Circuit against the same challenge as presented here in Cotton v. United States, 446 F.2d 107 (8th Cir. 1971). We find that the defendant’s consent to be tried under the Act was intelligently and voluntarily given and that the Act itself is free from constitutional infirmity.

The judgment of the district court is therefore affirmed.

      . His commitment as a juvenile delinquent was for a shorter period than the maximum that could have been imposed if lie had been tried as an adult.

      . Indeed, in Duncan v. Louisiana, 891 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the Supreme Court held that since trial by jury in criminal cases is fundamental to the American scheme of justice the fourteenth amendment guarantees a jury trial in such cases which, were they tried in federal court, would come within the sixth amendment.


author: DYER, Circuit Judge:

text:
    Malcolm JETER, Plaintiff-Appellant-Cross Appellee, v. STAR FISH & OYSTER COMPANY, Defendant-Appellee-Cross Appellant.
    No. 73-1007
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 7, 1973.
    R. C. Edwins, Baton Rouge, La., Donald E. Brutkiewicz, Mobile, Ala., for plaintiff-appellant-cross appellee.
    Thomas M. Galloway, Robert H. Smith, Mobile, Ala., for defendant-appel-lee-cross appellant.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   DYER, Circuit Judge:

Pursuant to the Jones Act and general maritime law, seaman Jeter seeks to recover damages as well as maintenance and cure for injuries sustained as a result of the alleged negligence of Star and the unseaworthiness of its vessel, the M/V BABY ANN. The district court awarded Jeter maintenance and cure, including attorneys fees, but denied him damages. We affirm in part and reverse in part.

Jeter was the captain of the BABY ANN, a 70-foot fishing boat, which returned to Star’s pier in Mobile, Alabama on the morning of November 11, 1970, from a 20-25 day fishing voyage with a catch of some 18,000-pounds. As was his usual custom, Jeter hired Hicks to tally his fish for him as they were unloaded and weighed. Star’s unloading procedure was apparently somewhat unusual in that, instead of using a conveyor to transport the fish from the ship to land side, it hoisted the fish from the hold in wire baskets, weighed them on scales at the end of the pier, then placed the baskets on dollies and pushed them up the pier, which was uneven and inclined at about 15 degrees, to the fish house. Large fish often had to be weighed individually and were then manually dragged up the pier. As a result of pushing the fish-laden dollies up the pier and physically dragging the large fish across it, the dock became virtually covered with fish slime.

Jeter slipped and broke his ankle as he was walking down the pier to pick up his tally sheet from Hicks and to get his crew fish. Although Jeter had left the pier earlier and had turned over his tallying duty to Hicks, it is undisputed that he was on call at the time of his accident and, indeed, that he had to obtain the tally sheet to compare it with the company’s tally before he could receive the crew’s pay. The evidence is uncon-troverted that Jeter slipped on fish slime, which is a natural secretion of fish that is generated during storage over a course of a voyage and that tends to act as a built-in preservative. Although a water hose was placed in the hold of the ship to melt the ice and improve the appearance of the fish by washing off some of the slime, no attempt was made to wash off all of the slime before the fish were removed from the hold. Despite previous complaints by Jeter and others concerning the unsafe condition of the pier caused by the presence of fish slime, particularly in light of the unevenness and incline of the pier, Star failed to take adequate remedial measures. While there is a sharp conflict in the evidence as to whether Star spread sand over the dock on the day in question prior to Jet-er’s accident and even though the district court failed to make a finding of fact on this point, on reviewing the entire record we find that the weight of the evidence is that Star failed to do so. In any event, it is undisputed that the pier was covered with fish slime at the time of the accident, that Jeter slipped on the fish slime, that Star failed to wash all of the slime off the fish before they were unloaded, and that the pier was uneven and inclined with no hand rails. After carefully reviewing all of the evidence, we are convinced that the district court’s finding of fact that “[t]here was no evidence presented regarding the substance which caused Jeter to fall” is clearly erroneous. Accordingly, we also find that the court’s conclusion of law that “it is impossible to conclude that plaintiff was injured as a proximate result of defendant’s maintenance of its docks” is without foundation in fact. We hold, as a matter of law, that Jeter slipped on fish slime and injured himself and that “such injuries were proximately caused by [Star’s] negligence. . ” Gutierrez v. Waterman S.S. Corp., 1963, 373 U.S. 206, 207, 83 S.Ct. 1185, 1187, 10 L.Ed.2d 297.

Contrary to the court’s holding below, Gutierrez is clearly applicable to the ease sub judice. To us there is virtually no distinction between unloading defective bags of beans, the beans spilling onto the pier, and a seaman or longshoreman being injured by slipping on the beans and the present situation where Star failed, in light of the condition of its pier, to properly wash off the slime from the fish before they were unloaded, the pier consequently becoming covered with fish slime, and Jeter breaking his ankle by slipping on the fish slime. In view of our conclusion that Star was, in the circumstances here present, negligent in not thoroughly washing off the fish slime prior to unloading, we need not and do not decide if the presence of the slime on the fish — a desired condition as long as the fish are stowed — during unloading rendered the ship unseaworthy. But see Gutierrez, supra at 213-214, 83 S.Ct. 1185.

Because the district court concluded that Star had -not been negligent, it did not consider the question of Jeter’s comparative negligence. Jeter was familiar with the condition of the dock. Yet, at the time of his accident, he was wearing a pair of urdaced tennis shoes. It is unclear whether the soles of the shoes were smooth or had treads. It is clear, however, that on at least two occasions on the day in question Star’s vice-president warned Jeter prior to his accident that his shoes were unsuitable for walking on fish slime, that he should change into a pair of shoes with cleats for better footing, and that if he continued to walk on the pier in the shoes he was wearing he was going to hurt himself. These warnings went unheeded. On remand, the district court is directed to make findings of fact and conclusions of law regarding Jeter’s comparative negligence.

With regard to the district court’s judgment of maintenance and cure to Jeter and the award of attorneys fees, we have carefully reviewed the record and find Star’s contentions to be without merit. In this respect, the court’s judgment is affirmed.

The case is remanded for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded with directions.


author: CHOY, Circuit Judge:

text:
    WASHINGTON MUTUAL SAVINGS BANK and Grays Harbor Savings & Loan Association, Plaintiffs-Appellees, v. FEDERAL DEPOSIT INSURANCE CORPORATION, Defendant-Appellant.
    No. 72-2972.
    United States Court of Appeals, Ninth Circuit.
    July 12, 1973.
    Payne Karr (argued), Martin T. Crowder, of Karr, Tuttle, Koch, Campbell, Mawer & Morrow, Seattle, Wash., J. William Via, Jr. (argued), Edward Bransilver, Gen. Counsel, Eric F. Kap-lan, Atty., Fed. Deposit Ins. Corp., Washington, D. C., Arnold & Porter, Washington, D. C., for defendant-appellant.
    John D. Hawke, Jr., Washington, D. C. (argued), Louis H. Pepper, of Ashley, Foster, Pepper & Riviera, Seattle, Wash., for plaintiffs-appellees.
    Before CARTER, CHOY and GOODWIN, Circuit Judges.

      . 12 U.S.C. § 1828(c)(5) provides as follows:
      The responsible agency shall not approve—
      (A) any proposed merger transaction which would result in a monopoly, or which would be in furtherance of any combination or conspiracy to monopolize or to attempt to monopolize the business of banking in any part of the United States, or
      (B) any other proposed merger transaction whose effect in any section of the country may be substantially to lessen competition, or to tend to create a monopoly, or which in any other manner would be in restraint of trade, unless it finds that the anticom-petitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.
      In every ease, the responsible agency shall take into consideration the financial and managerial resources and future prospects of the existing and proposed institutions, and the convenience and needs of the community to be served.

   CHOY, Circuit Judge:

The Federal Deposit Insurance Corporation (FDIC) appeals from an order enjoining it from withholding its approval of a bank merger. We affirm.

I. THE CASE.

Washington Mutual Savings Bank is the largest thrift institution in the State of Washington holding $744 million or 22.9% of the deposits as of June 30, 1970. Washington Mutual has its main offices in Seattle and twenty-two branches throughout the state, principally in the Seattle area.

Grays Harbor Savings & Loan Association is one of the smallest thrift institutions in Washington holding $4.7 million or 0.15% of the deposits. Grays Harbor is the fourth largest of five thrift institutions in Aberdeen, Washington and is located fifty miles from Washington Mutual’s nearest branch. Because of a management succession problem, Grays Harbor sought out Washington Mutual as a merger partner in 1970. After entering into a merger agreement both banks sought approval from state and federal banking authorities.

Washington law requires the approval of the State Supervisor of Banking. 12 U.S.C. § 1828(c)(2)(C) requires the written approval of the FDIC when the acquiring bank is a nonmember insured bank. Federal law also requires the FDIC to request reports on the competitive factors involved in a bank merger from the Attorney General and the two other banking agencies.

The Washington State Supervisor of Banking approved the proposed merger on August 14, 1970. The FDIC field examiner, Division of Research and the FDIC Board of Review all reported favorably on the proposed merger, as did the Antitrust Division of the Department of Justice, Comptroller of Currency and Federal Reserve Board. Despite these unanimous recommendations of approval, the FDIC Board of Directors, by a vote of 2-1, disapproved the proposal on December 18, 1970. After reconsideration, the Board affirmed its denial on July 30, 1971. The Board determined that although banking factors were consistent with approval and the proposed merger would not violate the antitrust laws of the United States, the merger would be a significant precedent for approval of additional mergers in highly concentrated markets. The Board’s decision to apply a competitive standard stricter than the antitrust laws was grounded on the Bank Merger Act of 1966, 12 U.S.C. § 1828(c) (5).

Washington Mutual and Grays Harbor commenced an action to compel the FDIC to approve the merger and sought a declaratory judgment that the Board’s action was arbitrary, capricious and not in accordance with the law. Summary judgment for the banks was granted on July 21, 1972. The district court’s decision was based primarily on the FDIC’s failure to apply relevant factors under the antitrust laws as Congress had intended in enacting the Bank Merger Act of 1966. On remand to the FDIC, the Board confirmed that the proposed merger did not violate the antitrust laws of the United States, but refused to approve the merger, alleging discretionary power to impose stricter standards. The district court, on October 25, 1972, enjoined the FDIC from continuing to withhold its approval and this appeal ensued.

The parties raise a number of issues, only one of which we need discuss in detail: Did the district court err in holding that the FDIC does not have the discretionary power under the Bank Merger Act of 1966 to deny a merger application based on a competitive standard more stringent than the antitrust laws of the United States ?

Prior to reaching this issue, a review of the history of bank mergers and the antitrust laws and the role of the FDIC is necessary.

II. HISTORICAL BACKGROUND

a. Pre-1960. Although this country repeatedly suffered from unregulated and uncontrolled competition in the field of banking, there was no effective regulation of bank mergers through the antitrust laws prior to 1950. The Sherman Act had been considered inapplicable to all but the most serious restraints, while the Clayton Act was a dead letter so far as bank mergers were concerned. Section 7 of the Clayton Act proscribed stock acquisitions by corporations, but bank mergers were normally accomplished without an “acquisition” of “stock.” To reach undue concentrations of economic power or monopoly in their incipiency, Section 7 was amended in 1950 extending the statute’s reach to any “corporation subject to the jurisdiction of the Federal Trade Commission.” Since banks were not subject to the Commission’s jurisdiction, the prevalent view was that bank mergers had successfully eluded the grasp of the antitrust laws. Congress became increasingly concerned with this problem in the 1950’s.

The Federal Deposit Insurance Corporation was created in 1933 to insure depositors against loss resulting from bank failures and to restore public confidence in banks. The Federal Deposit Insurance Act was amended in 1950 and for the first time the FDIC was required to approve all mergers and consolidations between insured and nonin-sured banks. But the standard for approval was a purely mechanical one without any guidance as to the significance to be attributed to the anticompet-itive effects of a proposed union. The upshot of congressional concern over the increasing concentration of banking resources and the absence of standards for the bank supervisory agencies was the short-lived Bank Merger Act of I960.

b. The Bank Merger Act of 1960. The 1960 Act was .intended to effect greater control over bank mergers by requiring pre-merger approval by one of the three federal banking agencies. Seven factors were to be balanced by the appropriate agency with no controlling effect given to any one factor. There were six “banking factors”: financial history and conditions of each bank, adequacy of capital structure, future earnings prospects, general character of management, convenience and needs of the community to be served, and consistency of a bank’s corporate powers with the purposes of the Federal .Deposit Insurance Act. The seventh factor was the effect of the transaction on competition. In the interest of uniform regulation and to preserve the integrity of the dual banking system, the Attorney General and the other two banking agencies, Comptroller of Currency and Federal Reserve Board, were required to submit reports on the competitive effects of a proposed merger.

Congress determined that since banks had traditionally been the subject of special regulation and a bank failure was a community disaster, the strict rule of section 7 of the Clayton Act was inappropriate. An anticompetitive merger could be approved under the 1960 Act if, on balance, public interest demanded it.

The 1960 Act not only failed to accomplish its purpose of curtailing the number of bank mergers, but prevented uniform application by the banking agencies because of the absence of guidelines for balancing the seven factors. Then, in a surprising decision, the United States Supreme Court nullified the Act almost completely.

c. The Philadelphia Bank Decision. The draftsmen of the 1960 Act had operated from the premise that Section 7 did not apply to banks. Indeed, the Sherman and Clayton Acts were left intact as Congress sought to provide administrative rather than judicial control over bank mergers. Philadelphia Bank undermined both the provisions and the theory of the 1960 Act by holding that Section 7 did apply to bank mergers. The Court criticized the absence of a requirement to give particular weight to the competitive factor in the 1960 Act. A bank merger that violated the antitrust laws could not be saved despite favorable weight attributed to banking factors.

d. The Bank Merger Act of 1966. The 1966 Act was a direct response to the Philadelphia Bank decision and an attempt to reconcile the goals of the 1960 Act with the antitrust laws. The 1966 Act provides that a single set of standards for bank mergers be uniformly applied by the banking supervisory agencies, the Department of Justice and the judiciary. The standards are the Sherman and Clayton Acts. The exact language of the principal antitrust laws was incorporated into the 1966 Act, not by coincidence, but to draw on the seventy-five year history of their judicial construction.

The Supreme Court’s application of the antitrust laws to banks was thus retained, but Congress made an exception for certain bank mergers. If a proposed merger would violate Section 7, the banking factors, represented by “convenience and needs of the community to be served,” are to be balanced against the competitive factor. In contrast to the 1960 Act, competition is preeminent. If the anticompetitive effects are outweighed by the convenience and needs of the community, the merger can be permitted.

The requirement of reports from the Attorney General and the two other banking agencies on competitive factors involved was retained to insure uniformity and avoid a particular agency’s being either too lenient or too strict.

The Supreme Court has had several opportunities to construe the provisions of the 1966 Act. In United States v. Third Nat. Bank, 390 U.S. 171, 88 S.Ct. 882, 19 L.Ed.2d 1015 (1967), the Court noted that the 1966 Act was designed to make substantial changes in bank merger law. Regarding the application of the 1966 Act, the Court stated:

We find in the 1966 Act, which adopted precisely that § 7 Clayton Act phrase [substantially to lessen competition] as well as the ‘restraint of trade’ language of Sherman Act § 1, no intention to adopt an ‘antitrust standard’ for bank cases different from that used generally in the law. Only one conclusion can be drawn from the exhaustive legislative deliberations that preceded passage of the Act: Congress intended bank mergers first to be subject to the usual antitrust analysis; if a merger failed that scrutiny, it was to be permissible only if the merging banks could establish that the merger’s benefits to the community would outweigh its anticom-petitive disadvantages, (at 181-182, 88 S.Ct. at 889).

Although there has been vigorous disagreement on the Court as to whether a particular bank merger violates the antitrust laws, the Justices have been unanimous that Congress intended the two-pronged approach enunciated in Third National Bank. United States v. Phillipsburg National Bank, 399 U.S. 350, 353, 90 S.Ct. 2035, 26 L.Ed.2d 658 (1970). See also Phillipsburg at 374, 90 S.Ct. 2035 (Harlan, J., dissenting).

III. ANALYSIS.

The scope of our review in this case is limited. There is no dispute that the FDIC acted within the scope of its authority. Therefore, we must determine whether the FDIC’s action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) .

The FDIC offers a number of arguments in support of its claims of discretionary power to deny a merger application on the basis of alleged anticompeti-tive effects which do not violate the antitrust laws of the United States. The FDIC argues: (1) the Bank Merger Act of 1966 did not replace the 1960 Act and thereby divest the banking agencies of any discretion they had under the 1960 Act; (2) the 1966 Act cannot be interpreted so as to make the antitrust laws the sole competitive standards; and (3) the 1966 Act authorizes the banking agencies to consider the convenience and needs of the community in every ease, that concept including anticompetitive effects which do not violate the antitrust laws. In light of legislative history and Supreme Court decisions, we disagree.

The principal aim of the 1966 Act was to curtail the discretion of the banking agencies. There had been significant variances in the application by the agencies of the seven factors in the 1960 Act and agency-shopping was feared. Congress sought the uniform application of a single set of standards by both agencies and the courts. Reports from the Attorney General and the two other banking agencies on the competitive factors involved in a merger were to insure uniformity. Acceptance of the FDIC position would make uniformity fortuitous and though it is a possible interpretation of the 1960 Act, would directly contravene the thrust of the 1966 Act.

Legislative history and subsequent Supreme Court interpretation of the 1966 Act indicate that all bank merger applications are first to be subjected to traditional antitrust analysis. If a violation of either the Sherman or Clayton Act is discerned, a balancing of banking factors and anticompetitive effects is made. Congress specified that the antitrust laws be the sole competitive standard not only to insure uniformity, but also to afford the banking agencies a discernible body of law upon which to base their decisions. The FDIC’s contention that a competitive standard more stringent than the antitrust laws can be applied is not acceptable. While it is true that the 1966 Act specifies a stricter competitive standard than the 1960 Act, the overall effect of the 1966 Act is to afford banks special treatment, less rigorous than the dictates of the antitrust laws, by allowing bank mergers where anticompetitive factors are outweighed by banking factors.

Convenience and needs of the community has traditionally been regarded as a banking factor. Congress lifted the term out of prior regulatory legislation for the 1960 Act. By 1966, Congress regarded the traditional banking factors as archaic and substituted “convenience and needs of the community” for all of them in the 1966 Act. Certainly in the broadest sense, the convenience and needs of the community concerns competition. But the history of the bank merger provisions indicates that banking factors and anticompetitive effects are to be separated and balanced against each other.

The final paragraph of § 1828(c)(5) recognizes that the FDIC retains its traditional role of evaluating banking factors. All bank supervisory agencies can reject merger applications if the banking factors are unfavorable whether or not a potential antitrust violation is present. In the case before us the FDIC found the banking factors favorable and improperly rejected the merger on the basis of alleged anticompetitive effects.

The FDIC does not have the power under the Bank Merger Act of 1966 to deny a merger application on the basis of a competitive standard more stringent than the antitrust laws of the United States. The decision of the district court is affirmed.

      . Thrift institutions in Washington arc mutual savings banks and savings and loan associations.

      . 12 U.S.C. § 1828 (c) (2) provides as follows :
      No insured bank shall merge or consolidate with any other insured bank or, either directly or indirectly, acquire the assets of, or assume liability to pay any deposits made in, any other insured bank except with the prior written approval of the responsible agency, which shall be—
      (A) the Comptroller of the Currency if the acquiring, assuming, or resulting bank is to be a national bank or a District bank;
      (B) The Board of Governors of the Federal Reserve System if the acquiring, assuming, or resulting bank is to be a State member bank (except a District bank);
      (C) the Corporation if the acquiring, assuming, or resulting bank is to be a nonmember insured bank (except a District bank).
      A nonmember insured bank is one insured by the FDIC but is not a member of the Federal Reserve System nor a national or District bank.

      . 12 U.S.C. § 1828(c)(4) provides as follows :
      In the interests of uniform standards, before acting on any application for approval of a merger transaction, the responsible agency, unless it finds that it must act immediately in order to prevent the probable failure of one of the banks involved, shall request reports on the competitive factors involved from the Attorney General and the other two banking agencies referred to in this subsection. The reports shall be furnished within thirty calendar days of the date on which they are requested, or within ten calendar days of such date if the requesting agency advises the Attorney General and the other two banking agencies that an emergency exists requiring expeditious action.

      . The district court did not abuse its discretion in ordering production of the FDIC’s “internal file” after its in camera inspection.

      . 347 F.Supp. 790 (W.D.Wash.1972).

      . S.Rep.No.196, 86th Cong., 1st Sess. 16-18 (1959).

      . Lifland, The Supreme Court, Congress, and Bank Mergers, 32 Law & Contemp. Prob. 15, 16 (1967).

      . Clayton Act, § 7, 15 U.S.C. § 18 (1964).

      . Comment, The 1966 Amendment To The Bank Merger Act, 66 Colum.L.Rev. 764, 766-67 (1966).

      . United States v. Philadelphia Nat. Bank, 374 U.S. 321, 377, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963) (Harlan, J., dissenting) .

      . Randall, The FDIC: Regulatory Functions and Philosophy, 31 Law & Contemp.Prob. 696 (1966).

      . 64 Stat. 892 (1950).

      . 74 Stat. 129 (1960).

      . S.Rep., supra note 6, at 21, 22.

      . S.Rep., supra note 6 at 2, 22.

      . S.Rep., supra note 6, at 2; H.R.Rep. No.1416, 86th Cong., 2nd Sess. 12 (1960).

      . S.Rep., supra note 6, at 20.

      . S.Rep., supra note 6, at 20.

      . Comment, supra note 9, at 770.

      . Legislation, The 1966 Amendment to the Bank Merger Act: Economic Perspective and Legal Analysis, 20 Vand.L. Rev. 200, 219 (1966).

      . United States v. Philadelphia Nat. Bank, 374 U.S. 321 (1963).

      . H.R.Rep., supra note 16, at 9.

      . Philadelphia Nat. Bank at 351-52.

      . Philadelphia Nat. Bank at 371.

      . H.R.Rep.No.1221, 89th Cong., 2nd Sess. 1, U.S.Code & Admin.News 1966, p. 1860; 112 Cong.Rec. 2440 (1966) (Remarks of Congressman Smith).

      . 112 Cong.Rec. 2441 (1966) (Remarks of Congressman Patman); Comment, Bank Mergers: A New Standard of Evaluation?, 46 Texas L.Rev. 81, 85 (1967); Edwards, Bank Mergers And The Public Interest: A Legal and Economic Analysis of The 1966 Bank Merger Act, 85 Banking L.J. 753, 756 (1966).

      . 112 Cong.Rec. 2444 (1966) (Remarks of Congressman Reuss) ; 20 Vand.L.Rev., supra note 20, at 223.

      . H.R.Rep., supra note 25, at 5; 112 Cong.Rec. 2444 (1966) (Remarks of Congressman Reuss).

      . 112 Cong.Rec. 2441 (1966) (Remarks of Congressman Patman); 112 Cong. Rec. 2444 (1966) (Remarks of Congressman Reuss).

      . Contrary to the contention of tile FDIC, there has been disagreement among the bank supervisory agencies as to the proper application of the Bank Merger Act of 1966. In United States v. First National Bancorporation, 410 U.S. 577, 93 S.Ct. 1434, 35 L.Ed.2d 507 (1973), Northwest Bancorporation, - Fed.Res.Bull. - (Feb. 26, 1973) and First Florida Bancorporation, - Fed. Res.Bull. - (February 16, 1973), the Federal Reserve Board evaluated the proposed bank mergers in terms of the Sherman and Clayton Acts. In United States v. Marine Bancorporation, Civil No. 237-7102 (W.D.Wash. January 31, 1973), the Comptroller of Currency applied a standard based on the antitrust laws while the FDIC, Federal Reserve Board and Antitrust Division of the Department of Justice advocated a standard more stringent than the antitrust laws. Therefore, not only is there inter-agency conflict but inconsistent treatment administered by the individual agencies.

      . Comment, supra note 9, at 769.

      . The FDIC can draw some support for its position in several law reviews. Comment, supra note 9, at 784-85; 20 Vand. L.Rev., supra note 20, at 226-27.