text:
    Ronald MAGNETT, Plaintiff, Appellee, v. Joseph PELLETIER et al., Defendants. William Rhodes, Jr., Defendant, Appellant.
    No. 73-1276.
    United States Court of Appeals, First Circuit.
    Argued Nov. 5, 1973.
    Decided Nov. 26, 1973.

      Paul F. Markham, Boston, Mass., with whom Moulton, Looney, Mazzone, Falk & Markham, Boston, Mass., was on brief, for defendant-appellant.
    Ernest Winsor, Boston, Mass., with whom Paula W. Gold, Boston, Mass., was on brief, for plaintiff-appellee.
    Before COFFIN, Chief Judge, and ALDRICH and CAMPBELL, Circuit Judges.
   PER CURIAM.

In this action under 42 U.S.C. § 1983, plaintiff Magnett sought to recover damages from various police officers, ultimately reduced to Rhodes, a police sergeant, for invading his premises and for an alleged assault causing him physical and emotional injuries. Defendant, concededly without a warrant, had entered plaintiff’s apartment and a room in which plaintiff’s four small children were sleeping. Following trial the court made extensive findings, Magnett v. Pel-letier, D.Mass.1973, 360 F.Supp. 902, disbelieving defendant’s testimony and that of his subordinate officers alleging consent and physical provocation by the plaintiff, and concluding that the intrusion had been unlawful. It also stated, however:

“I am not persuaded that either an assault or a battery was committed on Mr. Magnett by Sergeant Rhodes or Officer Sylvia, nor am I persuaded that any harm was done to any one of the Magnett children. Having in mind that Mr. Magnett conceded that he never consulted a physician subsequent to and because of this incident, and that any loss of time from work he thereafter sustained, was unrelated to this incident, I find that Mr. Mag-nett did not suffer physical or emotional damage.”

The court further found no basis for punitive damages, but concluded as follows.

“Having in mind that the intended purpose of the Civil Rights Act was the protection and vindication of the civil rights of all persons, nominal damages have been proved once an invasion or deprivation of a right to which plaintiff was entitled has been shown. Basista v. Weir, 340 F.2d 74 at 87 (3 Cir. 1965). Nominal damages need not be alleged in a civil rights ease in order to permit their recovery. Accordingly, I find for plaintiff in the amount of $500 against the defendant . . . . ”

We agree with defendant that $500 cannot be properly regarded as nominal damages. Nominal damages are a mere token, signifying that the plaintiff’s rights were technically invaded even though he suffered, or could prove, no loss or damage. Chesapeake & Potomac Tel. Co. v. Clay, 1952, 90 U.S. App.D.C. 206, 194 F.2d 888; “a small or token sum awarded to a person who has been wronged but who has not shown such an injury as to be entitled to compensatory damages.” Webster’s Third New International Dictionary (1968). Other dictionaries use the word “trifling.” E. g., Black’s Law Dictionary 469 (Rev. 4th ed. 1968); Bouvier’s Law Dictionary 2353 (3rd rev. 1914). If a compensable injury has been shown, compensatory damages must be given; if not, nominal damages should not be used to compensate plaintiff in any substantial manner, since he has shown no right to such compensation. We do not accept those decisions that have awarded as nominal damages more than a token amount. Five hundred dollars charged against an individual police officer is no mere token.

This is not to say that in a civil rights action a plaintiff who proves only an intangible loss of civil rights or purely mental suffering may not be awarded substantial compensatory damages. Smith v. Sol D. Adler Realty Co., 7 Cir., 1970, 436 F.2d 344, 350-351; Donovan v. Reinbold, 9 Cir., 1970, 433 F.2d 738, 743; Richardson v. Communications Workers of America, 8 Cir., 1971, 443 F.2d 974, 984-985. It is possible that the court may have misused the word nominal, and really intended to compensate plaintiff for actual, though wholly impalpable, injuries. But if so, a recital of such damages should not be left to a word of art whose ordinary meaning is just the opposite.

Since it is conceivable that the court misspoke itself, fairness dictates a remand for further findings or articulation, if the court deems them warranted in the light of this opinion. If the court does not believe such to be warranted, the award shall be reduced to the sum of $1.00. No costs on this appeal.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Donald JOLLY, Plaintiff-Appellant, v. UNITED STATES of America, and American Federation of Government Employees, etc., et al., Defendants-Appellees.
    No. 73-2292
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 11, 1974.

      John Martin Galese, Carl E. Cham-blee, Birmingham, Ala., for plaintiff-appellant.
    Wayman G. Sherrer, U. S. Atty., Henry Frohsin, Asst. U. S. Atty., Birmingham, Ala., for U. S.
    David J. Vann, Atty., Birmingham, Ala., Raymond J. Malloy, Assoc. Staff Counsel, Washington, D. C., Leonard Schaitman, Dept, of Justice, Donald Etra, Washington, D. C., for American Fed. of Gov. Emps.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

Plaintiff Donald Jolly appeals from the order of the district court dismissing his complaint for lack of jurisdiction. This lawsuit represents plaintiff’s third attempt to obtain relief in state or federal court from the action of the American Federation of Government Employees (AFGE) in suspending him as president of AFGE Local 2206, Birmingham, Alabama, and in imposing a trusteeship on the local union. Plaintiff previously had sought injunctive relief, but both the federal district court and the Alabama circuit court dismissed for want of jurisdiction.

In the instant case, plaintiff seeks a declaratory judgment holding Executive Order 11491 “unconstitutional as contravening procedural due process and equal protection under the law” because it requires government employees to exhaust administrative remedies not demanded of private employees. Plaintiff invoked the jurisdiction, of the federal district court under 28 U.S.C. § 1331 and 28 U. S.C. §§ 2201, 2202. Once again the district court dismissed for want of jurisdiction. We affirm.

The Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, authorizes federal courts to provide declaratory relief; but it does not of itself confer jurisdiction on the federal courts. Skelly Oil Co. v. Phillips Petroleum Co., 1950, 339 U.S. 667, 671-672, 70 S.Ct. 876, 94 L.Ed. 1194, 1197-1200; El Paso Bldg. & Constr. Trades Council v. El Paso Chapter Assoc. Gen. Contractors of America, 5 Cir. 1967, 376 F.2d 797, 799. Consequently, plaintiff’s claim here must rest on the establishment of jurisdiction under 28 U.S.C. § 1331. Section 1331 confers original jurisdiction on the federal courts over “federal question” cases provided that “the matter in controversy exceeds the sum or value of $10,000 ..” Plaintiff has made no allegation that the matter in controversy here exceeds $10,000, and nothing in the pleadings or record indicates that such an amount is involved. Thus, plaintiff has failed to establish that the federal court has jurisdiction under 28 U.S.C. § 1331. Plaintiff has claimed no other basis for federal jurisdiction.

Affirmed.

      . Though neither court stated its reasons for dismissal, it appears that plaintiff had failed to exhaust his administrative remedies under Executive Order 11491 and its. implementing regulations, which provide for resolution of such disputes in administrative proceedings before the Department of Labor.


text:
    UNITED STATES of America, Appellee, v. Claude Bishop MINTON, Appellant.
    No. 73-1598.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 1, 1973.
    Decided Nov. 30, 1973.
    William H. McElwee, , III, North Wilkesboro, N. C. (McElwee & Hall, North Wilkesboro, N. C., on brief), for appellant.

      N. Carlton Tilley, Jr., Asst. U. S. Atty. (Willliam L. Osteen, U. S. Atty., on brief), for appellee.
    Before HAYNESWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and CRAVEN, Circuit Judge.
   PER CURIAM:

Convicted of possession, transportation, and removal of illicit liquor, Claude Bishop Minton has appealed, arguing that his motion to suppress evidence procured by an allegedly illegal search and seizure should have been granted. The search at issue here resulted from surveillance of Minton’s premises by officers of the Alcohol, Tobacco and Firearms Division who were notified by a reliable informant that a whiskey delivery would be made at the appellant’s premises between 6 and 7 p. m. on November 3, 1972. Based on this tip and previous information over a period of two years that Minton was using his property to store illicit liquor, but without a search warrant, the officers stationed themselves at the top of a 12-14 foot high embankment looking down on Minton’s building at a distance of 80 to 90 feet. They observed a van truck arrive at the building shortly after 6 p. m. and by the use of binoculars viewed cartons containing one-gallon plastic containers being unloaded from the vehicle. They also detected the odor of illicit whiskey. Appellant was arrested as he reached into the truck to unload another carton; boxes holding plastic containers of illicit liquor were plainly visible in the truck and through the open doorway of the building. It is not clear that the embankment from which the officers made their observations belonged to Minton, but even if it did, such a location at such a distance is probably not within the curtilage. United States v. Campbell, 395 F.2d 848 (4th Cir. 1968); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), Care v. United States, 231 F.2d 22 (10th Cir. 1956). Nor did the use of binoculars by the officers constitute an extension of their persons so as to put them within the curtilage. United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1926). More important than the rubric of realty, see Wattenburg v. United States, 388 F.2d 853 (9th Cir. 1968); Texas v. Gonzales, 388 F.2d 145 (5th Cir. 1968), there was here, we think, no reasonable expectation of privacy — considering the time of day and all the surrounding circumstances. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Whether or not it might have been wiser (and the better practice) to have procured a search warrant, but cf. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), such a warrant was not necessary since no search occurred until the officers entered upon defendant’s premises and approached the van he was in the process of unloading. At the time of their entrance and approach the officers had probable cause to believe a felony was being committed in their presence.

The seizure of illicit whiskey in the van and in the building may be justified as within the “plain view” doctrine. Coolidge v. New Hampshire, 403 U.S. 443, 464-466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Musgrove v. Eyman, 435 F.2d 1235 (9th Cir. 1971); United States v. Young, 322 F.2d 443 (4th Cir. 1963). The search and seizure of the van itself may further be justified as incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) ; United States v. Young, supra.

Affirmed.

      . Minton’s brief refers to the premises as his “home”; however, the brief further characterizes the structure in question as a “building” in which appellant lived “part of the time” while other parts “were utilized as stor-tage areas (Appellant’s Brief, p. 4). His brief also states that Court’s Exhibit 1 portrays the area. We have examined it, and it looks to us more like a barn or warehouse than a home.


text:
    Clarence Duke McGANN, 20205-145, Appellant, v. U. S. BOARD OF PAROLE & M. R. Hogan, (Warden).
    No. 73-1482.
    United States Court of Appeals, Third Circuit.
    Submitted Nov. 5, 1973.
    Decided Nov. 14, 1973.
    Clarence Duke McGann, pro se.
    John L. Murphy, and Murray R. Stein, U. S. Dept, of Justice, Washington, D. C., S. John Cottone, U. S. Atty., Harrisburg, Pa., Harry A. Nagle, Lewis-burg, Pa., for appellees.
    Before VAN DUSEN, HUNTER and GARTH, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

This appeal challenges a district court order denying a petition for a writ of habeas corpus by a federal prisoner, alleging that his extradition from Jamaica and subsequent confinement as a parole violator are illegal. See McGann v. U. S. Board of Parole & M. R. Hogan, Warden, 356 F.Supp. 1060. Opinion of 4/6/73 (M.D.Pa., H.C.No.1481).

Petitioner was sentenced to 20 years’ imprisonment in 1954 by the United States District Court for the District of Maryland upon his guilty plea to bank robbery. In June 1955, he entered another guilty plea to another charge of bank robbery in the United States District Court for the Southern District of New York and was sentenced to 2Ó years’ imprisonment, subsequently reduced to 19, to run concurrently with the Maryland sentence. In 1966, he was paroled with approximately 2950 days remaining to be served on his Maryland sentence. A condition of this parole was that he was to remain in the Southern District of New York. On April 10, 1969, the U. S. Board of Parole issued a parole violation warrant, charging, inter alia, that he had left the Southern District of New York without permission.

By the summer of 1969, the U. S. Department of Justice, having learned that petitioner had left the United States and gone to Jamaica, started initial steps to extradite petitioner from Jamaica to this country under a treaty (47 Stat. 2122) between the United States and the United Kindgom which is applicable to Jamaica. After hearing, petitioner was extradited for bank robbery, the offense underlying his status as a parolee, which offense is an extraditable offense under the treaty.

After a parole revocation hearing in New York in April 1972, his parole was revoked by the U. S. Board of Parole on May 2, 1972, on the ground that he had left the Southern District of New York without permission.

I.

We reject petitioner’s contention that his extradition was invalid. The holding of Johnson v. Browne, 205 U.S. 309, 316, 27 S.Ct. 539, 51 L.Ed. 816 (1907), precludes any review of the Jamaican court’s decision as to the extraditable nature of the offense, and petitioner’s arguments as to the illegality of American actions in regard to the extradition are all without merit. He was properly extradited for conviction and sentence of the basic bank robbery offense.

II.

Appellant’s contention that the petitioner’s “present incarceration is in violation of [the above-mentioned] treaty” is rejected. The petitioner’s reliance on the treaty language (Article 7) that appellant shall not be kept in custody for “. . . any other crime or offense, or on account of any other matters than those for which the extradition shall have taken place . . .’’is misplaced. Although violation of the terms of parole was the reason for his re-confinement, the crime (18 U.S.C. § 2113(d)) for which he is being held is the bank robbery for which he was convicted by the United States District Court for the District of Maryland. See McGann v. United States, 249 F.2d 431 (4th Cir. 1967); United States v. McGann, 161 F.Supp. 629 (D.Md.1958); United States v. McGann, 150 F.Supp. 463 (D.Md.1957).

III.

The other contentions of petitioner have been considered and rejected.

The April 6, 1973, district court order will be affirmed.

      . A third sentence of 12 years’ imprisonment for another bank robbery was imposed by the United States District Court for the Eastern District of New York. See McGann v. United States, 362 U.S. 214, 80 S.Ct. 629, 4 L.Ed.2d 666 (1960).
      Petitioner has had a series of collateral attacks on his Maryland sentence, including McGann v. United States, 249 F.2d 431 (4th Cir. 1957), cert. denied, 356 U.S. 923, 78 S. Ct. 708, 2 L.Ed.2d 718 (1958) ; United States v. McGann, 161 F.Supp. 629 (D.Md. 1958) ; McGann v. United States, 261 F.2d 956 (4th Cir. 1958), cert. denied, 359 U.S. 974, 79 S.Ct. 891, 3 L.Ed.2d 841 (1959) ; McGann v. Taylor, 289 F.2d 820 (10th Cir.), cert. denied, 368 U.S. 904, 82 S.Ct. 182, 7 L.Ed.2d 98 (1961) ; McGann v. United States, 200 F.Supp. 633 (D.Md.1961) ; McGann v. United States, 370 U.S. 948, 82 S. Ct. 1594, 8 L.Ed.2d 814 (1962) ; McGann v. United States, 372 U.S. 929, 83 S.Ct. 876, 9 L.Ed.2d 734 (1963). In McGann v. United States, 233 F.Supp. 419 (D.Md.1964), aff’d, 347 F.2d 986 (4th Cir. 1965), leave to file petition for a writ of habeas corpus denied sub nom., McGann v. Richardson, 382 U.S. 1007, 86 S.Ct. 632, 15 L.Ed.2d 536 (1966), petitioner’s collateral attack on the volun-tariness of his guilty plea was dismissed after an evidentiary hearing at which he was represented by counsel.
      As to petitioner’s sentence in the Southern District of New York, see United States v. McGann, 245 F.2d 670 (2d Cir. 1957) ; McGann v. United States, 371 U.S. 866, 83 S.Ct. 129, 9 L.Ed.2d 104 (1963) ; McGann v. United States, 390 U.S. 1030, 88 S. Ct. 1422, 20 L.Ed.2d 287 (1968).

      . Petitioner is a Jamaican citizen due to the citizenship of his parents, but is also a United States citizen because of birth in this country.

      . The decision of the hearing court was upheld by the Supreme Court of Appeal of Jamaica on September 22, 1971.

      . See 6 Whiteman, Digest of International Law (1968), at 796-97; In re Edmondson, 352 F.Supp. 22 (D.Minn.1972) ; see also McGann v. U. S. Board of Parole & M. R. Hogan, Warden, supra.

      . These contentions include the following: (1) that the U. S. Board of Parole does not have the authority to enter into international extradition proceedings in order to obtain the presence of an alleged parole violator for hearings as to the revocation of his parole ; (2) that the Secretary of State did not have the authority to issue a warrant of arrest for the appellant, directed to the Jamaican government, based upon an alleged parole violation; (3) that the petitioner cannot be classified as a fugitive criminal for alleged parole violation.


author: WISDOM, Circuit Judge: COLEMAN, Circuit Judge

text:
    Walter J. COBB et al., on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Jerry LEWIS et al., Defendants-Appellees.
    No. 72-2457.
    United States Court of Appeals, Fifth Circuit.
    Jan. 9, 1974.

      Coleman R. Rosenfield, Hallandale, Fla., Baxter L. Davis, Atlanta, Ga., A. Blenn Taylor, Jr., Brunswick, Ga., Jerry S. Cohen, Herbert E. Milstein, Michael D. Hausfeld, Washington, D. C., Harold E. Kohn, P.A., Philadelphia, Pa., for plaintiffs-appellants.
    Edward W. Killorin, Lloyd Sutter, Atlanta, Ga., Simon Rose, Joel M. Leifer, New York City, for Network Cinema Corp.
    Before WISDOM, GEWIN and COLEMAN, Circuit Judges.
   WISDOM, Circuit Judge:

This case presents questions relating to the arbitrability of claims arising under the federal antitrust laws. The plaintiffs-appellants brought this suit seeking damages for, among other things, alleged violations by the defendants of the federal antitrust laws. Before the plaintiffs filed suit, the defendants had started arbitration proceedings in New York under a general arbitration clause in the contract between the plaintiffs and the defendants. Shortly after filing of the suit, the district court entered an order granting a motion by the defendants to stay the suit pending arbitration, and refusing a motion by the plaintiffs for a preliminary injunction against the arbitration proceedings. The plaintiffs appeal from this interlocutory order. We reverse.

I.

On February 12 and December 1, 1970, and on June 10, 1971, the plaintiffs-appellants, owners and operators of motion picture theaters, entered into agreements with Network Cinema Corp., a franchiser of a nationwide chain of motion picture theaters doing business under the name of “Jerry Lewis Cinemas”. Under the terms of the agreement, in several Georgia counties Network granted the plaintiffs the exclusive right to operate motion picture theaters under the trade name of “Jerry Lewis Cinemas”. In return, the plaintiffs promised to purchase, lease, or otherwise acquire from Network or its designees substantially all the signs, equipment, fixtures, furnishings, motion picture films, and short subjects needed in the course of operation of a Jerry Lewis Cinema. The agreement provided for arbitration of all disputes and stated that all questions arising under the agreement would be governed by New York law.

On December 1, 1971, one of the plaintiffs, Michael Solomon, doing business as Solomon Cinemas, Inc., allegedly defaulted on some of his contractual obligations. On December 15, 1971, Network, alleging numerous breaches of the franchise agreement on Solomon’s part, as well as “unfair competition” and “general misrepresentations”, served a demand for arbitration. On December 28, 1971, Solomon filed a motion seeking an extension of time for the filing of an answer and counterclaim in the proceeding. By letter dated January 4, 1972, the American Arbitration Association directed that the answer and counterclaim be filed before January 20, 1972.

On January 17, 1972, Solomon filed its answer and counterclaim with the Association. The answer simply denied Network’s allegations; the counterclaims alleged fraud in the inducement by Network, failure of consideration, breach of contract on Network’s part, and violations by Network of the federal securities and antitrust laws. Solomon’s counterclaim was the first mention in the arbitration proceedings of the federal antitrust or securities laws. By letter, January 24, 1972, Solomon requested the Association to appoint a panel of three arbitrators. On January 25, however, counsel for Solomon informed both the Association and Network that Solomon was rejecting any arbitration and revoking “any and all provisions, stipulations and methods for arbitration proceedings and all reference relating thereto in the franchise agreement”. Two days later, on January 27, Solomon and two other franchisees of Network, the plaintiffs-appellants here, filed this class action, in their own behalf and in behalf of the class comprising all of Network’s franchisees. The complaint substantially restated the allegations of Solomon’s counterclaim in the arbitration proceeding. It alleged violations by Network of section 1 of the Sherman Act, 15 U.S.C. § 1 (1970) (Count I); violations of section 3 of the Clayton Act, 15 U.S.C. § 14 (1970) (Count II); violations of the Securities Act of 1933, 15 U.S.C. § 77e (1970) by Network’s sale of unregistered securities (Count III); common law fraud and misrepresentation (Count IV); violations of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 785(b) (1970), and of the Securities and Exchange Commission’s rule 10b-5, 17 C.F.R. § 240.10b-5 (1972) (Count V); breach of contract and warranty (County VI); and violations of § 2-302 of the Uniform Commercial Code (Count VII). The plaintiffs also requested a preliminary injunction against the New York arbitration proceedings. In its answer, Network denied the appellants’ contentions and requested a stay of the suit, under 9 U.S.C. § 3 (1970), pending the outcome of the arbitration proceedings.

On March 1, the district court entered its opinion and order dismissing Counts III and V of the complaint, denying the plaintiffs’ prayer for a preliminary injunction of the New York arbitration proceedings, and granting the defendants’ application for a stay of the district court suit. The district court’s opinion is reported at 339 F.Supp. 96. On March 10, the plaintiffs filed a motion for reconsideration. After the district court denied that motion on May 3, the plaintiffs filed a motion to appeal under 28 U.S.C. § 1292(b). The district court granted this motion, certifying, as required by § 1292(b), that the case raised controlling questions of law as to which there was substantial ground for difference of opinion. On June 1, 1972, this Court denied the plaintiffs’ motion to appeal under § 1292(b), but at the same time entered an order docketing the cause “pursuant to 28 U.S.C. § 1292(a)”. Section 1292(a) allows appeals as of right from interlocutory orders of the district courts granting or refusing injunctions. At no time did the plaintiffs-appellants file a notice of appeal in the district court, as required in appeals taken as of right under Rule 3 of the Federal Rules of Appellate Procedure.

II.

At the outset, by motion to dismiss, the appellees raise two jurisdictional issues.

A. First, they contend that the appellants failed to comply with F.R.A.P. 3(a) that requires the filing of a notice of appeal with the clerk of the district court. The appellants argue that Rule 3(a) was satisfied by their filing in this Court, within the time for taking an appeal, of their Petition for Leave to Appeal under 28 U.S.C. § 1292(b) and by this Court’s subsequent order denying the plaintiffs’ motion but docketing the cause under § 1292(a).

Courts of appeals have discretion, when the interests of substantive justice require it, to disregard irregularities in the form or procedure for filing a notice of appeal. In Crump v. Hill, 5 Cir. 1939, 104 F.2d 36, for example, we refused to dismiss an appeal for failure to file a notice of appeal under F.R.Civ. P. 73(a), the predecessor of F.R.A.P. 3(a): the appellant had filed a copy of the appellees’ waiver of service of notice of appeal within the time for filing the appeal, the appellee had entered an appearance, and the appellee had joined the appellant in designating the record on appeal. For the Court, Judge Hutcheson wrote:

It is true that Rule 73 does specifically provide that the only thing necessary to be done to perfect an appeal is to file a notice thereof with the Clerk, making it the duty of the Clerk to see that notice thereof is served, and that a literal compliance with the rule requires timely filing of the notice with the Clerk. The reason for the Rule, however, to set the appeal in motion by mere notice without judicial action, makes it quite clear we think that the appellant, when he procured from appellee and filed, her waiver of notice, her acceptance of designation, and her entry of appearance, just as effectively started his appeal as if he had merely filed the notice of appeal with, and left its service to, the Clerk. It is true enough that the starting of an appeal within the time fixed is jurisdictional and that good practice requires conformity to the formal requirements of the Rule. But it would we think be a harking back to formalistic rigorism of an earlier and outmoded time, as well as a travesty upon justice, to hold the extremely simple procedure required by the Rule is itself a kind of Mumbo Jumbo, and that the failure to comply formalistically with it defeats substantial rights.

104 F.2d at 37-38.

We have also held that an application for leave to appeal in forma pauperis is to be regarded as the equivalent of a notice of appeal. Des Isles v. Evans, 5 Cir. 1955, 225 F.2d 235; Roth v. Bird, 5 Cir. 1956, 239 F.2d 257; Tillman v. United States, 5 Cir. 1959, 268 F.2d 422. Accord, Hoover v. United States, 10 Cir. 1959, 268 F.2d 787; Fitzsimmons v. Yeager, 3 Cir. 1968, 391 F.2d 849. In Des Isles, we explained:

The rules have for their primary purpose the securing of speedy and inexpensive justice in a uniform and well-ordered manner; they were not adopted to set traps and pitfalls by way of technicalities for unwary litigants, Alabama Great Southern Railroad Co. v. Johnson, 5 Cir., 1944, 140 F.2d 968. Therefore, substantial compliance with the rules is sufficient, and appellant’s petition for leave to appeal in forma pauperis adequately met the requirements of Rule 73(a).

225 F.2d at 236. In Carter v. Campbell, 5 Cir. 1960, 285 F.2d 68, we held that the appellants’ application to this Court for leave to proceed upon the original record and our order granting such leave constituted adequate notice of appeal.

Other courts have held that the requirement of notice of appeal is - satisfied by a “Brief for Appeal” filed in the Court of Appeals (Frace v. Russell, 3 Cir. 1965, 341 F.2d 901); by a motion for permission to appeal in forma pauperis filed in the Court of Appeals (Gerringer v. United States, 1954, 93 U.S. App.D.C. 403, 213 F.2d 346); by a petition for mandamus filed in the Court of Appeals (Jordan v. United States District Court, 98 U.S.App.D.C. 160, 233 F. 2d 362, vacated on other grounds, 1956, 352 U.S. 904, 77 S.Ct. 151, 1 L.Ed.2d 114); by an “Appeal Bond” filed with the District Court (O’Neal v. United States, 5 Cir. 1959, 272 F.2d 412); or by a notice of appeal filed in the Court of Appeals (Richey v. Wilkins, 2 Cir. 1964, 335 F.2d 1). See also Reconstruction Finance Corp. v. Prudence Securities Advisory Group, 1941, 311 U.S. 579, 61 S.Ct. 331, 85 L.Ed. 364.

These cases teach that the notice of appeal requirement may be satisfied by any statement, made either to the district court or to the Court of Appeals, that clearly evinces the party’s intent to appeal. Such a statement accomplishes the two basic objectives of the Rule 3 notice requirement: (1) to notify the Court of the taking of an appeal; and (2) to notify the opposing party of the taking of the appeal. See FDIC v. Congregation Pioley Tzedeck, 2 Cir. 1946, 159 F.2d 163; 9 Moore’s Federal Practice 203.09 at 728. In the instant case, the plaintiffs filed in this Court, within the time for taking an appeal, a petition for leave to appeal under 28 U. S.C. § 1292(b). We denied the motion but docketed the appeal under 28 U.S.C. § 1292(a)(1). In our judgment, the plaintiffs’ petition for appeal nonetheless satisfied the requirement for a notice of appeal. Both the Court and the opposing parties were put on notice of their intent to appeal. Indeed, the petition for appeal is a considerably more informative and formidable document than is an ordinary notice of appeal. And the plaintiffs’ failure to file a notice in the district court was a good faith error, resulting from the plaintiffs’'reliance on this Court’s order directing the appeal under § 1292(a)(1). The plaintiffs appear to have regarded our order as meaning that the appeal had been perfected and that the filing of a notice of appeal in accordance with the letter of Rule E would be mere surplus-age. The appellees have not shown that they were prejudiced in any way by the appellants’ technical noncompliance with Rule 3.

B. Second, the appellees question whether the order of the district court is appealable as a matter of right under 28 U.S.C. § 1292(a)(1). Section 1292(a)(1) confers jurisdiction on the courts of appeals over appeals from “in-, terloeutory orders of the district courts . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions”.

In this situation, where the district court has both denied a stay of arbitration, and at the same time granted a stay of a district court suit instituted by the party resisting arbitration, it is proper, for the purposes of determining appealability under § 1292(a)(1), to treat the order of the district court as an order granting a stay of the district court suit. This was the course taken by the Second Circuit in American Safety Equipment Corp. v. J. P. Maguire & Co., 1968, 391 F.2d 821, a case on all fours with this case as far as the appealability issue is concerned. The question here is whether the order granting a stay is an “interlocutory order . . . granting [an] injunction” within the meaning of § 1292(a) (1). In Jackson Brewing Co. v. Clarke, 5 Cir., 303 F.2d 844, cert. denied, 1962, 371 U. S. 891, 83 S.Ct. 190, 9 L.Ed.2d 124, we formulated the test for determining whether an order granting a stay of the suit is appealable under § 1292(a)(1): if the claim involved is a legal claim, the order is appealable; if it is an equitable claim, the order is not appealable. This is a matter of settled law. The plaintiffs’ claims here, for damages under the common law and the antitrust laws, were of course legal claims; the order granting the stay was therefore appealable under § 1292(a)(1).

We pass now to the merits of the appeal.

III.

Within the last five years, three of the circuit courts of appeals, the Second, Eighth, and Ninth Circuits, have addressed questions of the appropriateness of arbitration of issues arising under the. federal antitrust laws. All three have decided that claims under the antitrust laws are “of a character inappropriate for enforcement by arbitration”, American Safety Equipment Corp. v. J. P. Maguire & Co., supra, 391 F.2d at 825, quoting Wilko v. Swan, 2 Cir. 1953, 201 F.2d 439, 444, rev’d, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168. Accordingly they have fashioned what the district court in this case characterized as a “general rule to the effect that antitrust claims are not subject to arbitration”. 339 F.Supp. at 99, citing American Safety Equipment Corp., supra, 391 F.2d at 825; A & E Plastik Pak Co. v. Monsanto Co., 9 Cir. 1968, 396 F.2d 710; Power Replacements, Inc. v. Air Preheater Co., 9 Cir. 1970, 426 F.2d 980; see Helfenbein v. International Industries, Inc., 8 Cir. 1971, 438 F.2d 1068. See also Matter of Aimcee Wholesale Corp., 1968, 21 N.Y.2d 621, 289 N. Y.S.2d 968, 237 N.E.2d 223 (issues under New York and federal antitrust laws non-arbitrable in New York as a matter of New York law).

The American Safety Equipment Corp. case outlined three major considerations supporting this rule. The first is the broad range of public interests affected by private antitrust claims. The Court recognized that “[a] claim under the antitrust laws is not merely a private matter”, because private antitrust actions are an integral part of the effort of the antitrust laws “to promote the national interest in a competitive economy”. 391 F.2d at 826. The Second Circuit noted that it is doubtful Congress could have “intended such claims to be resolved elsewhere than in the courts”. Id. at 827. The second is the complexity of the issues and the extensiveness and diversity of the evidence antitrust cases usually involve. These render antitrust claims “far better suited to judicial than to arbitration procedures”. Id. The third is the questionable propriety of entrusting the decision of antitrust issues to commercial arbitrators, who “are frequently men drawn for their business expertise”, when “it is the business community generally that is regulated by the antitrust laws”. Id. at 827.

We are persuaded by these considerations. We agree that “the pervasive public interest in enforcement of the antitrust laws, and the nature of the claims that arise in such cases, combine to make the outcome . . . clear”, American Safety Equipment Corp., 391 F.2d at 828. Accordingly, we join the Second, Eighth, and Ninth Circuits in holding here that, as a general matter, antitrust claims are not appropriate subjects of arbitration.

This, however, does not conclude the question in this case. For, as the district court recognized, there is appropriately an “exception” to this “rule” against arbitration of antitrust issues for situations “when the agreement to arbitrate is made after the dispute arises”. 339 F.Supp. at 99.

Support for such an “exception” comes from several sources. One is dictum in the circuit court cases adopting the “rule”: both American Safety Equipment Corp. and Power Replacements, Inc., expressly left open the question whether post-controversy agreements to arbitrate would be enforceable. 391 F.2d at 827; 426 F.2d at 984. Another support is a pair of cases involving claims under the federal securities acts. Claims under the securities acts have been held inappropriate for arbitration under the Supreme Court’s decision in Wilko v. Swan, 1953, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168. Two cases, however, have held that this rule does not apply to agreements to arbitrate specific disputes. In Moran v. Paine, Webber, Jackson, and Curtis, 1968, 389 F.2d 242, the Third Circuit refused to disturb an arbitral award that had already been handed down, when the proceeding had been held under a special agreement the plaintiff had • made with the brokerage house to arbitrate a particular claim under the federal securities laws. This Court adopted the holding of Moran in a short per curiam opinion in a case involving facts virtually identical to Moran’s, decided under Local Rule 18. Gardner v. Shearson, Hammill & Co., 1970, 5 Cir., 433 F. 2d 367.

The other authority supporting the exception is the Second Circuit’s decision in Coenen v. Pressprich & Co., 1970, 453 F.2d 1209. In that case, the plaintiffs had formed a company that had, in the time after the dispute had arisen, become a member of the New York Stock Exchange. The defendant was also a member of the Exchange; and the Exchange Constitution, which by federal law “constitute [s] a contract between all members of the exchange with each other and with the exchange itself” (Brown v. Gilligan, Will & Co., S.D.N.Y.1968, 287 F.Supp. 766, 769) contains a provision requiring arbitration of all disputes arising between member firms. NYSE Constitution, Art. VII, § 1. The defendant in Coenen invoked this clause to demand arbitration. The Second Circuit held arbitration appropriate, because the agreement to arbitrate contained in the Exchange Constitution had been “made” after the controversy had arisen. In support of its holding, the Court stated that “here the agreement to arbitrate may be regarded as an agreement to arbitrate a specific existing dispute”. 453 F.2d at 1215.

The district court’s order here rested on the court’s conclusion that this case fitted within the “exception” that emerges from these lines of authority. In reaching this conclusion, the district court placed primary emphasis upon the fact that it was the plaintiffs who, by including their antitrust counterclaims in their January 17, 1971, answer in the arbitration proceedings, first sought to inject antitrust issues into the arbitration proceedings. The defendants’ demand for arbitration had concerned only alleged breaches of contract by the plaintiffs. This, the court said, apparently borrowing language from the Moran case, constituted a “voluntary submission of an existing anti-trust controversy to arbitration”, 339 F.Supp. at 99, and sufficed to render inapplicable the general rule against the arbitration of antitrust questions. As additional support for its ruling, the district court took note in the margin of its opinion of § 7503(c) of the New York Civil Practice Law Rules, McKinney’s Consol. Laws, c. 8. That section provides that a party shall be precluded from objecting to the validity of an arbitration proceeding unless he applies for a stay of arbitration within 10 days of being served a notice of arbitration. This the Court read as meaning that under New York law, the failure to file is “apparently treated as an admission of the validity of the arbitration agreement and as - a voluntary submission to arbitration”. 339 F.Supp. at 100 n. 3.

Although we agree and hold that there is an exception to the rule against arbitration of antitrust issues for cases where an agreement to arbitrate is made after a dispute arises and with respect to the specific controversy at hand, we conclude that the district court erred in deciding that this case was an appropriate one for the application of that exception. As a preliminary matter, it is necessary to note that this case falls within a class of cases distinguishable from the class the Power Replacements and American Safety Equipment Corp. courts seem to have had in mind in their dicta about the exception. Those courts seemed to have had in mind situations where the parties made an express agreement to arbitrate after the dispute had arisen, an agreement that referred specifically to the controversy in question. The Moran and Gardner cases typify this class exactly. Here, however, there was no express agreement made after the dispute arose; the only express agreement was the general arbitration clause in the original contract. The rationale for invoking the exception here, therefore, was different from that in cases such as Moran and Gardner: Solomon, by his participation in the arbitration proceeding, essentially “waived” his right to challenge the propriety of arbitrating the federal antitrust issues. His participation constituted an implied or de facto agreement to arbitrate the specific dispute which had arisen; cases where such an “implied” agreement could be found would compose a second class of cases calling for the application of the “exception” to the Power Replacements-American Safety Equipment rule.

We have no quarrel with the proposition that the exception should apply to such a class of cases. At some point a party’s participation in an arbitral proceeding, if it goes far enough, must be held to constitute an agreement to arbitrate. Otherwise a party could avoid any responsibility for choosing a forum to hear his claims: he could simply go along with the arbitration proceeding, hoping for a favorable award, but secure in the knowledge that any award may be attacked successfully in court if it should prove unfavorable. We disagree with the district court here only in our judgment that the acts of the plaintiffs in this case were not sufficient to constitute a de facto agreement to arbitrate the specific controversy. In making this judgment, we have in mind the underlying rationale of the exception. The Second Circuit articulated that rationale in Coenen:

The courts give as reason for this [exception] that the parties already know just what they are agreeing to arbitrate, and also that, as a claimant is not required to sue and is always free to settle a private triple-damage antitrust case, his agreement to arbitrate is in effect an agreement to settle the dispute.

453 F.2d at 1215. See also Pitofsky, Arbitration and Antitrust Enforcement, 44 N.Y.U.L.Rev. 1072, 1079-80 n. 31 (1969). This rationale conditions our view of what is required before a court may decide that the actions of a party resisting arbitration constitute a de fac-to agreement to arbitrate a particular dispute. What is required is that the party’s conduct evidence in some way that the party has made an informed, deliberate, and explicit decision to have his antitrust claims arbitrated, comparable to the kind of decision which would be represented either by a decision to settle or by a decision to enter into an express agreement to arbitrate. We think that this test is necessary to fulfill the underlying policies favoring judicial disposition of antitrust issues.

Here, we think it impossible to say that this standard was met. Neither Solomon’s introduction of the antitrust issues in his counterclaim, nor his failure to seek a stay of arbitration within the time prescribed by New York’s procedural rule, establishes that he made the kind of eyes-open choice necessary to suspend the operation of the rule against arbitration of antitrust questions. Network was scarcely prejudiced by Solomon’s short, one-month delay in electing to have his antitrust claims heard in court. And his right to have them heard there could not be waived by his noncompliance with a restrictive procedural requirement of state law, designed to serve policies other than the federal antitrust policies of concern in this context.

The district court gave a second reason for staying the suit without deciding the antitrust issues. It said that, even assuming those issues were non-arbitrable, they were so insubstantial a part of the case that it was proper for the court to exercise its discretion in granting a stay until the more substantial, concededly arbitrable issues of the case were decided by arbitration. The appellees advance this argument as an alternative ground for affirming the district court. We cannot, however, agree with the district court’s finding that “the preponderating bulk of the dispute appears to concern defendant’s claims of debt and plaintiff’s defenses, primarily fraud, thereto”, or its conclusion that “[u]nder such circumstances the antitrust defenses have only meagre chances of success”. We view the antitrust issues as permeating the entire case, and conclude that they have a reasonable chance of success. It does not appear to us that it would be easy for an arbitrator to separate the antitrust issues from the other issues in the case, and to proceed to decide the ar-bitrable issues without inquiry into the antitrust issues. Consequently, we hold that it was improper for the district court to grant a stay of the suit on this ground.

Reversed and remanded to the district court for further proceedings consistent with this opinion.

COLEMAN, Circuit Judge

(dissenting) :

I regret that I must dissent.

I am convinced beyond any shadow of a reasonable doubt that this Court stands, starkly, without jurisdiction of this appeal.

The chronology of the matter is that:

On May 3, 1972, the District Court entered an order which determined with finality that a preliminary injunction would be denied and a stay of the suit would be granted.

The petitioners sought leave to appeal from this interlocutory order, 28 U.S.C., § 1292(b). On June 5, 1972, a panel of this Court [Judges Bell, Dyer, and Clark] denied the requested leave.

Apparently, however, the panel was under the impression that petitioners had filed notice of appeal from the denial of the preliminary injunction, 28 U. S.C. § 1292(a). Accordingly, the panel further ordered that “this cause be docketed pursuant to 28 U.S.C., § 1292(a)”.

The fatal difficulty is that no such notice had been attempted, much less filed. While the Judges did not know this, the petitioners certainly did.

Under Rule 4(a) of the Federal Rules of Appellate Procedure, the petitioners could as a matter of right have filed the required notice on or before June 3. Upon a showing of excusable neglect, an extension could have been sought at any time prior to July 2. This they made no effort to do.

In the absence of a notice of appeal the panel was without jurisdiction to order the ease docketed under § 1292(a). A petition for leave to appeal is an entirely different animal from a notice of appeal taken as a matter of right.

While the answer to this can never be known, I doubt seriously that the panel would have entered the order to docket under § 1292(a) if it had been made aware that an indispensable jurisdictional prerequisite was entirely non-existent.

In any event, these petitioners had from June 3 to July 2, almost thirty days, in which to have sought the extension allowed by the Rule.

Despite all this, my Brethren hold that we have jurisdiction. This is done, apparently, on the theory that since the panel, in an administrative order, directed the transfer the petitioners ought to be allowed to rely on it. In the oft used words of our late Brother Hutcheson, “This will not do”. Courts cannot confer jurisdiction upon themselves simply by ordering it. Courts of the United States have no jurisdiction except that conferred upon them by constitution or statute. Most assuredly, they cannot exercise jurisdiction in contravention of an express statute.

This is not a criminal prosecution and notice of appeal has not been frustrated or delayed by imprisonment, fraud, or other factors beyond the control of the appellant. In the absence of such complications, most certainly in a civil ease, the lack of a notice of appeal within thirty days, or a permissible extension of time Rule 4(a) F.R.A.P., the Court of Appeals is without jurisdiction.

For some of our most recent cases so holding, see Lawrence v. Wainwright, 5 Cir., 1968, 401 F.2d 177; Gann v. Smith, 5 Cir., 1971, 443 F.2d 352; Jackson v. Decker, 5 Cir., 1971, 451 F.2d 348; Smith v. Southern Bell Telephone Co., 5 Cir., 1972, 460 F.2d 279; Gulf-Tampa Drydock Co. v. Vessel Virginia Trader, 5 Cir., 1970, 435 F.2d 150.

The opinion of the Court says that “Courts of appeals have discretion, when the interests of substantive justice require it, to disregard irregularities in the form or procedure for filing a notice of appeal”, but this case involves no irregularity. There was no notice of appeal, whatever, even though there was a Petition for Leave to Appeal under an entirely different subsection of the applicable statute. I must confess that I am considerably alarmed by subsequent language of the opinion which would lead both the unwary and the subtle to believe that the plainly written, clearly understandable requirements for the attachment of appellate jurisdiction are easily to be circumvented, if a Court should be of the mind to permit it.

I must also point to my disagreement with the “finding of fact” [Page 46 of the Opinion] that the “plaintiffs’ failure to file a notice in the district court was a good faith error, resulting from the plaintiffs’ reliance on this Court’s order directing the appeal under § 1292(a)(1)”. We, of course, are not a fact finding tribunal. If we were, I would point out that the thirty day period for filing the required notice of appeal expired before the entry of the Transfer Order in this Court. If appellants could act in good faith on an occurrence that had not yet taken place they must be congratulated upon the possession of a prescience rarely encountered in human experience.

After all, this appeal is from an interlocutory order and a final hearing on the merits, with the subsequent right of appeal, is yet in the wings.

I would dismiss for lack of jurisdiction.

      . The plaintiffs-appellants are Karlene H. Cobb and Walter J. Cobb and Family Cinemas, Inc., a Georgia Corporation; Chester A. Strycula and Robert R. Bigelow, d/b/a Gaill Enterprises, Inc.; Michael Solomon and Solomon Cinemas, Inc., a Georgia Corporation.

      . 9 U.S.C. § 3 provides:
      If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.

      . The plaintiffs in this ease labelled the relief they sought a “temporary injunction” of the arbitration proceedings, rather than a “stay of arbitration”; and in its opinion, the district court spoke of denying the “temporary injunction”, rather than denying a “stay”. The difference of terminology is of no consequence, however. The authorities cited in the text and in note 4 infra typically refer to an action like the district court’s here as a denial of a stay of arbitration, and so we refer to the court’s order here as a denial of a stay, rather than of a temporary injunction. In any event, the question of jurisdiction under § 1292(a) (1) does not of course turn on differences in terminology.

      . American Safety Equipment Corp. v. J. P. Maguire & Co., 2 Cir. 1968, 391 F.2d at 825. See the cases cited in Jackson Brewing Company, 303 F.2d at 845-846 n. 1, especially Enelow v. New York Life Insurance Co., 1935, 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440; Ettelson v. Metropolitan Insurance Co., 1941, 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176; Morgantown v. Royal Ins. Co., 337 U.S. 254, 69 S.Ct. 1067, 93 L.Ed. 1347; Baltimore Contractors v. Bodinger, 1955, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233. See generally 9 Moore’s Federal Practice, II 110.20[3], [4.-1] (2) at 240-46, 247-48


author: GOLDBERG, Circuit Judge:

text:
    David Lorenzo OSWALT, Plaintiff-Appellant, v. WILLIAMSON TOWING COMPANY, INC., Defendant-Appellee.
    No. 73-2841
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 11, 1974.

      Don O. Gleason, Douglas Abraham, Claude H. Powell, Greenville, Miss., for plaintiff-appellant.
    J. Murray Akers, Greenville, Miss., for defendant-appellee.
    Before THORNBERRY, GOLDBERG, and RONEY, Circuit Judges.

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

   GOLDBERG, Circuit Judge:

In this admiralty action plaintiff seaman appeals from the order of the United States District Court for the Northern District of Mississippi, 357 F.Supp. 304 denying all recovery for injuries allegedly sustained as a result of defendant’s negligence and the unseaworthiness of its vessel, and finding that plaintiff has forfeited his right to maintenance and cure. We affirm the judgment of the court below in assessing no damages, but we reverse and remand this case to the district court for entry of an award of maintenance and cure under the general maritime law.

Plaintiff, while employed as a deckhand in the service of defendant’s towboat, the M/Y GREENVILLE, was injured in the early morning hours of May 27, 1971, when he slipped on a pipe and fell in the process of uncoupling barges. The uncoupling was necessary in order to enable the GREENVILLE’S twelve barge flotilla to clear certain locks on the Mississippi River. Plaintiff asserts that the fall resulted (1) from the absence of adequate lighting of the work area and (2) from defendant’s failure to police the barge deck for pipes and other stray objects and secure them in storage areas. The able district judge found, in regard to plaintiff’s contention of inadequate lighting, that “[t]he clear weight of credible evidence indicates that at the time of plaintiff’s injury his work area was brightly illuminated by mercury vapor floodlights. . ” This conclusion is subject to appellate scrutiny under the clearly erroneous standard, McAllister v. United States, 1954, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20 and can therefore be disturbed only on a finding that the trial court could not “permissably find as it did.” Movible Offshore, Inc. v. M/V Wilken A. Falgout, 5 Cir. 1973, 471 F.2d 268. In this case there is sufficient evidence of adequate lighting to sustain the judgment.

Plaintiff’s argument that a pipe was negligently permitted to remain on the barge deck is likewise refuted by the explicit holding below that plaintiff’s own thoughtlessness in either placing the pipe on the .deck or acting in disregard of its presence was the sole proximate cause of his injury. Since the legal conclusion as to proximate cause is based on properly supported findings of fact, there is no warrant for this Court to create a liability in negligence.

The right of a seaman who becomes sick or injured while in the service of his ship to receive payments for maintenance and cure is entirely unrelated to any fault or negligence on the part of the shipowner. Aguilar v. Standard Oil Company, 1943, 318 U.S. 724, 730, 63 S.Ct. 930, 87 L.Ed. 1107. Such payments, designed to compensate the seaman for sums spent for support and medical expenses during the course of treatment, are predicated on the employment relationship itself, being annexed to the contractual arrangement by operation of law, Cortes v. Baltimore Insular Line, 1932, 287 U.S. 367, 371, 53 S.Ct. 173, 77 L.Ed. 368, and are held forfeit only under certain well-defined and narrowly limited circumstances. One such circumstance is the seaman’s unreasonable refusal to accept medical care offered by his employer, see Brown v. Aggie & Millie, Inc., 5 Cir. 1973, 485 F.2d 1293; and in this case, the trial court rejected the claim for maintenance and cure after finding that plaintiff had refused defendant’s offer of timely and adequate medical care on the basis of nothing more than an unfounded suspicion that it would prove inadequate. We reverse this denial, not out of a conviction that the able district judge erred in his findings of fact, but rather because under the peculiar situation in this case, the interests and principles protected by the rule of forfeiture would not be well served by its application.

A forfeiture for unreasonable refusal is called into play in one of two ways. First, the seaman may simply reject all timely medical attention or quit participation in a course of therapy already begun. In such a case, the right to maintenance and cure is forfeited because the purpose of the award can no longer be achieved. These conjunctive remedies do not operate as substitutes for damages; they are not general compensation, but rather are directed toward the specific objective of providing for the subsistence and medical expenses of a seaman until he has reached the point of maximum possible cure. Farrell v. United States, 1949, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850; Price v. Mosler, 5 Cir. 1973, 483 F.2d 275. When, therefore, that point is either reached or the erstwhile patient voluntarily stops short of its attainment by refusing medical attention, the justification for the payments likewise ceases. Brown v. Aggie & Millie, Inc., supra. In this ease plaintiff did not decline medical care, but rather engaged his own physician whose credentials and course of treatment were not challenged by defendant either in the court below or on appeal. Unquestionably payment of maintenance and cure here would comport with the underlying remedial objective.

The second ground for forfeiture arises from the fact that injured seamen who require extensive convalescence are ordinarily eared for at public health and marine hospitals. When these tax supported facilities are used the seaman incurs no expenses for subsistence or medical care during the recovery period. Consequently, he is entitled to no compensation from, his employer for the non-existent expenditures. Brown v. Aggie & Millie, Inc., supra.; Field v. Waterman SS. Corporation, 5 Cir. 1939, 104 F.2d 849. The logical corollary to this general rule provides that a seaman who unreasonably refuses such free care cannot by his irrational action force the shipowner to bear the added cost of a private physician and recuperative facilities. Bailey v. City of New York, 2 Cir. 1946, 153 F.2d 427. However, the court below found that defendant Oswalt Towing does not engage in the practice of referring its injured employees to a government hospital. The undisputed testimony of defendant’s secretary-treasurer revealed that no master’s certificate for entry to a public health facility was tendered to plaintiff, as none had been tendered to fifty seamen injured before him. Nor does defendant employ a company doctor for the treatment of employees entitled to maintenance and cure. Defendant follows the rather unusual practice of sending its employees to private physicians in Greenville, Mississippi, its center of operations, on an ad hoc basis. The cost of doctors’ bills and subsistence payments during the course of treatment are therefore a regular feature of defendant’s business and would have been paid by defendant even had plaintiff accepted the original offer of care. Plaintiff’s decision to seek treatment in Jackson, however unreasonable in light of the quality of care available in Greenville, did not necessarily result in expenditures that could have been avoided. Indeed, defendant would appear to have abandoned any claim of prejudice as a result of plaintiff’s action by its stipulation that the medical and hospital expenses incurred were reasonable.

The shipowner seeks, in effect, to rest on the bare words of the rule, stripped of all justification in economic reality. Adherence to such a standard in the application of the law of maintenance and cure cannot be reconciled with the Supreme Court’s admonition that they are among the most ancient and pervasive of all the liabilities imposed on a shipowner, Aguilar v. Standard Oil Co., supra, and that “ambiguities or doubts [in their application] are resolved in favor of the seaman.” Vaughan v. Atkinson, 1962, 369 U.S. 527, 532, 82 S.Ct. 997, 1000, 8 L.Ed.2d 88.

We remand this case to the district court, rather than simply rendering judgment in the amount stipulated, in order to permit the court below to determine whether the sum expended for care in Jackson, however reasonable, exceeded the cost of similar care which defendant had tendered in Greenville. The rationale of our decision, indeed the rationale of all decisions on the effect of the seaman’s refusal of care on the award of maintenance and cure, requires that plaintiff receive no more compensation than would have been necessary had he acquiesced in defendant’s program.

Affirmed in part, reversed and remanded in part.


author: DYER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellant, v. J. F. HATTAWAY et al., Defendants-Appellees.
    No. 73-1439.
    United States Court of Appeals, Fifth Circuit.
    Jan. 9, 1974.
    R. Jackson B. Smith, Jr., U. S. Atty., Henry L. Whisenhunt, Jr., Asst. U. S. Atty., Augusta, Ga., Walter H. Fleischer, Donald Etra, Dept, of Justice, Washington, D. C., for plaintiff-appellant.
    Will Ed Smith, Eastman, Ga., for J. F. Hattaway and Bertha H. Hattaway.
    Before GODBOLD, DYER and GEE, Circuit Judges.
   DYER, Circuit Judge:

In this appeal we are called upon to determine whether the Small Business Administration is required to pay attorney’s fees in addition to the defaulted principal and interest of a promissory note secured by mortgage when, although the holder had actual notice of the fee interest of the SBA and its desire to pay the indebtedness, statutory notice to pay within ten days to avoid attorney’s fees was given by the holder only to the maker. The district court entered judgment against the SBA. We reverse.

In January of 1966, Edwin Rocker gave J. F. Hattaway a $50,000 note which included a provision for payment of 15% attorney’s fees for collection of the debt after maturity, a provision which could be enforced only if the creditor complied with Ga.Code Ann. § 20-506. This statute makes enforcement of such a provision contingent on the creditor’s giving written notice that the debt- or can avoid the added expense of attorney’s fees by paying the principal and interest then due within ten days of receipt of the § 20-506 notice.

Rocker’s note to Hattaway was secured by a mortgage on certain real estate in Wheeler County, Georgia. A second mortgage lien on the same land was granted by Rocker to the SBA through a series of deeds from 1967 to 1969. By 1972, the SBA had foreclosed the second mortgage, purchased the property subject to the Hattaway mortgage, and had decided to buy out Hattaway’s interest by paying off Rocker’s note which had been in default since October 15, 1968. An SBA plan to deliver its check to Hat-taway in early January of 1972 was aborted, however, when it was learned that the Hattaways were being sued by Swift Agricultural Chemicals Corp. to set aside as a fraudulent conveyance a transfer of the note and mortgage by Hattaway to his wife in November of 1970. The SBA concluded that the Swift litigation raised the possibility of double liability if payment were made to the Hattaways, hence the government check was cancelled.

Hattaway was present at the SBA foreclosure sale on March 7 and was then advised that the SBA intended to pay off the Rocker indebtedness. An SBA letter to the Hattaways dated March 14 requested an itemization of Rocker's obligation as of March 31, 1972. Another letter from the SBA, received by the Hattaways on March 17, stated: “It is expected that notice of any action taken with regard to your Deed to Secure Debt or the indebtedness secured thereby, will be directed to the attention of this writer at the offices of Small Business Administration . . . . ” However, on March 15 the Hattaways had given Rocker, but not the SBA, notice that unless the debt were paid within ten days a 15% attorney’s fees charge would be added to the amount due. In a letter dated March 29, four days after the expiration of the statutory period, they informed the SBA of having given Rocker the § 20-506 notice, and, in response to the SBA’s request for an itemization of Rocker’s obligation, included the sum of $5,635.45 for “attorney fees as stipulated in note.”

Immediately thereafter the SBA filed an interpleader in the Swift-Hattaway litigation and paid into court the principal and interest which Rocker then owed the Hattaways. That sum was ultimately received by Swift under a consent judgment. The district court ordered the SBA to pay the amount of the claimed attorney’s fees into court, and later ordered the $5,635.45 paid to the Hattaways. From that order came this appeal.

The only issue is whether the court below was correct in concluding: “There is nothing in the record which would justify the Court in denying the attorney’s fees to the Hattaways.” The Hat-taways strenuously urge that by giving notice to Rocker, they did all that was required by Georgia law to entitle them to enforcement of the attorney’s fees provision. The SBA counters, however, that the Hattaways had no intention of collecting the debt from Rocker, but rather gave the § 20-506 notice to the named but nominal debtor in order to enhance their recovery from the SBA as the real party in interest. The government’s position that such a “tactic” constitutes an impermissible use of Georgia law is strongly supported by Security Mortgage Co. v. Powers, 1928, 278 U.S. 149, 49 S.Ct. 84, 73 L.Ed. 236, which considered a predecessor statute to § 20-506 and in which Mr. Justice Bran-déis said:

It is asserted that the suit against the [debtor] was brought, not for the purpose of collecting the debt, but solely for the purpose of enhancing the amount which was obtainable without suit . . . . If this is
true, the statutory provision designed for the protection of the debtor was employed solely as a means of oppression. We will not assume, in the absence of a decision by a Georgia court, that the Legislature intended to permit such use.

Id. at 159, 49 S.Ct. at 87.

Cognizant of the Supreme Court’s admonition that the attorney’s fees statute is not to be given mechanical application, the Hattaways rely on two Georgia cases in support of their contention that notice was required to be given only to the debtor and not to some third party, Woods v. State, 1963, 109 Ga.App. 225, 136 S.E.2d 18, and Guarantee Trust and Banking Co. v. American National Bank, 1915, 15 Ga.App. 778, 84 S.E. 222. It is true that in neither case did the Georgia courts require notice to be given to anyone other than the original debtor even though a third party was required to pay attorney’s fees. The facts in each case, however, can be distinguished from those in the present controversy. In Guarantee Trust, a receiver was appointed for the debtor, but the attorney’s fees notice was given before the appointment and thus before the receiver became the party interested in paying off the debt. From the Woods opinion it is difficult to ascertain whether the § 20-506 notice was given before or after a receiver became involved, but there is no indication that at the time notice was given the creditor had any knowledge of a third party’s interest in the debt.

By contrast, the record in the case sub judice convinces us that the Hattaways had no hope of collecting the debt from Rocker at the time he was given the § 20-506 notice. The SBA clearly was the party from whom the Hattaways expected to collect. Apparently not content with their good fortune in finding a party willing to pay a previously uncollectable obligation, they attempted to invoke the statutory provision to entitle them to a bonus of attorney’s fees from the SBA.

We entertain no doubt that as soon as it became clear to the Hattaways that the SBA was the real party in interest, they were under an equitable duty to give the § 20-506 notice not only to the nominal debtor, but to the SBA as well. To hold otherwise would be to condone fraud by silence.

A failure to speak is fraud by silence, where one uses silence for the purpose of gaining an unconscionable advantage over another by concealing for his own benefit information which in equity and good conscience should be communicated.

Reeves v. B. T. Williams & Co., 1925, 160 Ga. 15, 127 S.E. 293. If there was any doubt about the SBA’s entitlement to notice after it had repeatedly advised the Hattaways of its interest in extinguishing Rocker’s debt, that doubt was certainly dispelled when the Hattaways received the letter specifically asking that it be kept posted of any action taken either on the mortgage or on the underlying obligation. Because they were silent when there was an equitable duty to speak, the Hattaways are estopped from taking advantage of the attorney’s fees statute.

Reversed.

GODBOLD, Circuit Judge, dissents.

      . The relevant section of Ga.Code Ann. § 20-506 provides:
      Obligations to pay attorney’s fees upon any note or other evidence of indebtedness, in addition to the rate of interest specified therein, shall be valid and enforceable, and collectible as a part of such debt, if such note or other evidence of indebtedness be collected by or through an attorney after maturity, subject to the following provisions :
      * sk * * !k
      (c) The holder of the note or other evidence of indebtedness, or his attorney at law, shall, after maturity of the obligation, notify in writing the maker, indorser or party sought to be held on said obligation that the provisions relative to payment of attorney’s fees in addition to the principal and interest shall be enforced and that such maker, indorser or party sought to be held on said obligation has 10 days from the receipt of such notice to pay the principal and interest without the attorney’s fees. If the maker, indorser or party sought to be held on any such obligation shall pay the principal and interest in full before the expiration of such time, then the obligation to pay the attorney’s fees shall be void and no court shall enforce the agreement. The refusal of a debtor to accept delivery of the notice hereinbefore specified shall be the equivalent of such notice.


author: THORNBERRY, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CARLTON McLENDON FURNITURE CO., INC., Respondent.
    No. 73-1598.
    United States Court of Appeals, Fifth Circuit.
    Jan. 9, 1974

      Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., Charles M. Paschal, Jr., Director, Region 15, N. L. R. B., New Orleans, La., Allen H. Feldman, N. L. R. B., Washington, D. C., for petitioner.
    C. Lash Harrison, John Bacheller, Jr., Atlanta, Ga., for respondent.
    Before THORNBERRY, SIMPSON and CLARK, Circuit Judges.
   THORNBERRY, Circuit Judge:

This application for enforcement of a National Labor Relations Board order comes to us after the usual procedural journey has been made. In November 1971, the United Brotherhood of Carpenters and Joiners, Southern Council of Industrial Workers, AFL-CIO (Union) filed a petition for a representation election pursuant to § 9 of the National Labor Relations Act, aimed at Carlton McLendon Furniture Company (Company). The Regional Director of the Board directed an election which ended with 41 votes for the Union, 38 votes against the Union, and 13 challenged ballots, out of approximately 105 eligible voters. After the challenges to ballots had been considered by the Regional Director, the final tally was 44 for the Union and 39 against. The facts surrounding that election furnished the foundation for the Company’s continued resistance.

Within the twenty-four hour period immediately prior to the election, the Union passed out to the employees of the Company a handbill stating that the Union had won a representation election at another company, Bes-Pak, by a vote of 34 to 33. In fact, the election result was 32 for the Union, 33 against, and two challenged ballots.

The Union’s campaign to organize the Company’s employees was conducted concurrently with its effort to organize the Bes-Pak employees. Some of their organizing meetings were held jointly, and it is undisputed by all that the Union was conducting a joint campaign. The Company contended before the Board and argues here that the handbill constituted a material misrepresentation which destroyed the required laboratory conditions and which rendered the election invalid.

Additionally, the Company objects to conduct by the Union observer in the polling area which, it alleges, interfered with the laboratory conditions necessary to a free and fair election by creating an impression that the Union and not the Board was in charge of the election. During the election, and in the presence of six employees in all who were standing in the voting line, the Union observer turned four of these employees away with the demonition “you, you, you, and you can’t vote.” The observer gave no reason for his action, and the Board agent then present did not intercede. The two employees remaining in the line proceeded to cast their ballots, as the four challenged employees left the voting area. The four returned shortly with a Company payroll clerk whose conversation with the Board agent resulted in the four employees voting without further challenge.

The Company argued before the Regional Director and before us that either or both of these objections require that the election be set aside, or alternatively that the Board should be required to hold a full hearing in the face of the Company’s prima facie showing of substantial election irregularities. On the basis of an ex parte administrative investigation, the Regional Director rejected all of the Company’s objections, having found that they presented no substantial or material issues with respect to conduct affecting the results of the election. Undaunted, the Company filed with the Board a request for review of the regional director’s disposition of its objections. The Board denied this request in a four-line telegram which concluded that the Company’s request “raises no substantial issues warranting review.” A motion for reconsideration of the Board’s denial of the Company’s, request for review was likewise denied “as lacking in merit.”

Shortly thereafter, the Union filed unfair labor practice charges alleging that the Company had refused to bargain in violation of §§ 8(a)(1) and (5) of the Act, complaint issued, the Company answered by denying the validity of the Union’s certification, the Board's general counsel moved for summary judgment, and the Board granted the motion, ordering the Company to bargain collectively with the Union. The case has inexorably found its way to this Court.

It will not end with us today, however, for although we do not set the election aside, we deny the Board’s application for enforcement and remand for a full adversary hearing to determine the extent to which the challenged Union conduct affected the results of the election.

We begin our analysis of the Company’s contentions by noting that Congress has vested the Board with broad discretion in dealing with matters relating to representation proceedings. N. L. R. B. v. Muscogee Lumber Co., Inc., 5th Cir. 1973, 473 F.2d 1364, 1366. And thus, before this court can invalidate an election, the party objecting to the enforcement action must prove that union misconduct materially affected the results of the election, and its proof must be such as to show that the Board’s findings to the contrary lack substantial evidentiary support. N. L. R. B. v. Monroe Auto Equipment Co., 5th Cir. 1972, 470 F.2d 1329, 1333; N. L. R. B. v. Golden Age Beverage Co., 5th Cir. 1969, 415 F.2d 26, 30; N. L. R. B. v. White Knight Manufacturing Co., 5th Cir. 1973, 474 F.2d 1064, 1067.

Even though the objecting party is not entitled to have the election set aside, he may still have a right to a full adversary hearing. Rules promulgated by the Board require an investigation if post-election objections are filed. See 29 C.F.R. § 102.69. The Regional Director is permitted to make an ex parte investigation, but if substantial and material factual issues are found to exist, a full hearing is required. N. L. R. B. v. Air Control Products of St. Petersburg, Inc., 5th Cir. 1964, 335 F.2d 245, 249; N. L. R. B. v. Skelly Oil Co., 8th Cir. 1973, 473 F.2d 1079, 1083. A full hearing is required in such cases, not because any statute commands it, but because the Board has promulgated rules requiring a hearing in those circumstances. N. L. R. B. v. Overland Hauling, Inc., 5th Cir. 1972, 461 F.2d 944. And the determination of whether the Company has raised a substantial and material factual issue is “a question of law and ultimately a question for the courts.” Luminator Division of Gulfton Industries, Inc. v. N. L. R. B., 5th Cir. 1972, 469 F.2d 1371, 1374.

In order to secure a hearing, the objecting party must present a prima facie case warranting setting the election aside. United States Rubber Co. v. N. L. R. B., supra, 373 F.2d at 606. This means that there must be “specific evidence of specific events from or about specific people” in support of allegations having a basis in law sufficient to overturn the election. N. L. R. B. v. Douglas County Electric Membership Corp., 5th Cir. 1966, 358 F. 2d 125, 130. As to how specific the evidence must be, the Court in United States Rubber Co., supra, said that the objections must not be “ ‘nebulous and declamatory assertions, wholly unspecified,’ nor equivocal hearsay.” Id., 373 F.2d at 606. We find that the present record is not conclusive as to the impact of the handbill and the Union observer’s conduct, that a substantial and material factual issüe as to impact exists, and that the Company has presented a prima facie case with sufficient specificity to warrant a full adversary hearing. The reasons for our holding and for our conclusion that the Board’s findings to the contrary are unreasonable are set out below.

The Handbill

This Court has devised the following test for evaluating questionable campaign communications: (1) whether there has been a misrepresentation of a material fact; (2) whether the misrepresentation came from a party who was in an authoritative position to know the truth or who had special knowledge of the facts; (3) whether the other party had adequate opportunity to reply and to correct the misrepresentation; and (4) whether the employees had independent knowledge of the misrepresented fact, so that they could effectively evaluate the propaganda. N. L. R. B. v. Southern Foods, Inc., 5th Cir. 1970, 434 F.2d 717, 720; N. L. R. B. v. Cactus Drilling Corp., 5th Cir. 1972, 455 F.2d 871, 874. The Regional Director found:

. that while the results of the Bes-Pak election may have been of some importance to Employer’s employees, those results would not seem to be so material as to require complete certainty that employees were correctly informed of those results, that in view of the fact that Petitioner had unfair labor practice charges pending on behalf of the two challenged voters at Bes-Pak, its representation does not constitute a substantial departure from what it believed the truth to be, and that Employer had an ample opportunity to effectively reply to the handbill and did, in fact, reply by posting the official tally of ballots near to the employees’ time-clock . . .

And thus, the Regional Director concluded, the handbill did not constitute grounds for setting the election aside. The Board summarily concluded that the Company was attempting to relitigate the issues raised and determined in the previous representation proceeding in defiance of the Board’s nonrelitigation rule, and thus affirmed the Regional Director’s findings. In our opinion, the Regional Director did not apply the correct legal standard in part, and in part made findings which have absolutely no support in the record.

First, we believe that the message expressed on the handbill was a misrepresentation and that it was a material misrepresentation. The sole subject of the handbill was the successful election at Bes-Pak. Both companies, though separately owned, were the subjects of a joint organizing effort. The employees of both companies met at joint union organizing meetings. If we accept the maxim that in union there is strength, it strains our credulity to believe that Company employees would not be affected by how employees at another company had voted with respect to the same union, or how they believed employees at another company voted. We find that this misrepresentation could have affected the outcome of this election, and is therefore material.

Second, since the handbill was prepared by the same Union which attempted to organize Bes-Pak employees, the Union was in an authoritative position to know the truth. That much is not disputed by any of the parties.

Third, we find that the Company did not have an adequate opportunity to reply and to correct the misrepresentation. The handbill was not distributed until the eve of the election, even though the Bes-Pak election had occurred a week before. The Company discovered the Union handbill on the day of the election and then placed an official NLRB vote tally of the Bes-Pak election on the bulletin board near the timeclock. At least one Company supervisor attempted to explain to several employees that the handbill was in error. But there is no evidence in the record to indicate that the official tally posted by the Company was read by all or even a majority of the employees, or that the Company supervisor was able to reach more than a few of the Company’s employees with the truth.

An important factor in our determination is that the distribution of the handbill was “apparently timed to deprive the employer of the opportunity effectively to rebut the misrepresentations.” Walled Lake Door Co. v. N. L. R. B., 5th Cir. 1973, 472 F.2d 1010, 1011. While the Company may have had time to frame a reply, there was no effective opportunity to correct the misrepresentation. N. L. R. B. v. Cactus Drilling Corp., supra, 455 F.2d at 875. We fully support the Board’s reluctance to police and censor the statements of parties to a certification election. N. L. R. B. v. Southern Foods, Inc., supra, 434 F.2d at 719. But that reluctance must give way where the employees’ freedom to make an unfettered choice between the competing factions is tainted.

In Luminator Division of Gulfton Industries, Inc. v. N. L. R. B., supra, we found that a company’s opportunity to reply to misrepresentations contained within a leaflet distributed twenty-six hours before the election “certainly raised a question of material fact,” thus necessitating a hearing. In N. L. R. B. v. Houston Chronicle Publishing Company, 5th Cir. 1962, 300 F.2d 273, a union letter containing material misstatements was circulated two days before the election. The Board held that the employer's answer by telegram was sufficient. We disagreed and denied enforcement of the order noting that the requisite laboratory conditions had been destroyed by the propaganda. On the record in this case, there is not substantial evidence to support the conclusion that the Company had an adequate opportunity to reply and to correct the misrepresentation.

Fourth, the record indicates that there was a substantial and material factual issue as to whether the employees possessed the requisite independent knowledge to evaluate the propaganda effectively. Having dispensed with the Company’s objection on other grounds, the Regional Director made no findings as to whether the employees had independent knowledge of the misrepresented fact. In his ex parte investigation, the Regional Director apparently received affidavits from two witnesses who had “heard” that the Union had lost at Bes-Pak before receiving the handbill; a third witness stated that she knew the results of the Bes-Pak election only by the Union handbill. We do not believe that the hearsay information received by two employees rises to the level of “independent knowledge” contemplated by the test. On this record, we would be forced to endow all of the Company employees with “extraordinary powers of perspicacity” in order to sustain the Board’s position. We do not choose that course. N. L. R. B. v. Bill’s Institutional Commissary Corp., 5th Cir. 1969, 418 F.2d 405, 407.

Union Observer’s Conduct

The Regional Director concluded that since the Union observer’s conduct

. was an isolated incident involving only six voters out of 92 voters who east ballots, that [the observer] did not electioneer, that the four persons who were initially denied the opportunity to vote were allowed to vote unchallenged after a short delay, and that, therefore, the Board Agent remedied the questionable conduct,

the Company’s objection does not warrant setting the election aside. We agree that at this time the Company’s objection to the Union observer’s conduct, standing alone, does not warrant setting the election aside. But we hold that this “questionable conduct” should be considered together with the handbill in a full hearing, for the conduct to which the Company objected must be considered cumulatively rather than as isolated incidents. Home Town Foods, Inc. v. N. L. R. B., 5th Cir. 1969, 416 F. 2d 392, 397.

Were the Union observer’s conduct the only objection raised by the Company, we would not remand for a full hearing. N. L. R. B. v. Schwartz Brothers, Inc., D.C.Cir. 1973, 475 F.2d 926, 930. It appears that only two votes could have been affected by the Union observer’s conduct, assuming that human nature would compel the four challenged employees to vote against the Union in any case. Those two votes would be insufficient to change the outcome of the election. But considered with the impact of the handbill, sufficient votes may have been affected to warrant setting the election aside. That can only be determined by a full hearing.

Indeed, we attach some importance to the fact that a change of three votes would have changed the outcome of the election. We have noted before that in close elections, “any minor violation of the Act cannot be dismissed summarily for it could have swayed the crucial vote.” N. L. R. B. v. Overland Hauling, Inc., supra, 461 F.2d at 946. In N. L. R. B. v. Gooch Packing Co., Inc., 5th Cir. 1972, 457 F.2d 361, 362, this Court wrote:

In close vote election situations the Board is required to particularly and carefully scrutinize charges which in other cases would constitute immaterial or insubstantial objections to the election and, when the existence of hard evidence of irregularities is supplied, a full hearing to get at the truth should be accorded

Conclusion

In many ways, this case is similar to Walled Lake Door Co. v. N. L. R. B., supra, 472 F.2d 1010. There the union had mailed a letter to company employees so that it would reach them only shortly before the election. The letter recited a long list of benefits enjoyed by the employees at other unionized plants of the same company and added in a postscript:

“P.S. Join hands with employees of the 4 Walled Lake plants who are represented by unions.”

Only two plants were actually unionized. By a vote of 26 to 22, the union won the election; the company’s objections to the election were rejected after an ex parte investigation; the Board then filed a complaint against the company for refusal to bargain; the company asked for a hearing to develop the case of misrepresentation; and the Board denied the request and granted summary judgment against the company.

This Court denied enforcement of the Board’s order on the ground that substantial and material last-minute misrepresentations had invalidated the election and resulting certification. There the facts were undisputed, and the impact was fully evident from the record. A hearing would have been a senseless formality. But the evidence here is not so conclusive, and substantial and material factual issues as to the impact of Union conduct still exist. Consistent with what we have said today, the Board should conduct a full hearing in order to determine the extent to which the challenged conduct affected the results of the election.

Remanded with directions.

      . The Bes-Pak election was ultimately set aside, and in the subsequent election, the Union'lost by a final vote of 67 against the Union, 58 for.

      . The Company presented two other objections to the Regional Director: (1) that a supervisor assisted the Union in its organizational efforts, and (2) that the Union caused a crowd of nonemployees to assemble at the plant entrance one hour before the election to voice their approval of the Union, and caused a rumor to be circulated among the eligible voters that the crowd would “get” any employee who voted against the Union. The Company also contended that all four of its objections, considered cumulatively, destroyed requisite laboratory conditions. The Regional Director found no merit in these contentions, and the Board agreed. The Company has not sought review of objections (1) and (2), and thus we have no occasion to consider them.

      . The § 8(a) (1) and (5) cases are legion, and the reasoning behind the tortuous path to this Court has been explained many times before. N. L. R. B. v. Golden Age Beverage Co., 5th Cir. 1969, 415 F.2d 26, 28; N. L. R. B. v. Air Control Products of St. Petersburg, Inc., 5th Cir. 1964, 335 F.2d 245, 247 fn. 1; United States Rubber Co. v. N. L. R. B., 5th Cir. 1967, 373 F.2d 602, 604; Home Town Foods, Inc. v. N. L. R. B., 5th Cir. 1969, 416 F.2d 392, 393 fn. 1.

      . Remand for hearings on post-election objections has been deemed inappropriate where the operational facts are undisputed and the matter presented is a question of law, N. L. R. B. v. Cactus Drilling Co., 5th Cir. 1972, 455 F.2d 871, 873, fn. 10, or where the effect of the misconduct is apparent on the record, National Cash Register Co. v. N. L. R. B., 5th Cir. 1969, 415 F.2d 1012, 1015. See N. L. R. B. v. Monroe Auto Equipment Co., supra, 470 F.2d at 1331, fn. 2; N. L. R. B. v. Golden Age Beverage Co., supra, 415 F.2d at 33, fn. 6.

      . We note here that the Regional Director’s finding that the misrepresentation does not constitute a substantial departure from what it believed the truth to be has no support in the record. But more important, whether the Union intended to misrepresent a material fact has never been a part of the test. Hollywood Ceramics Co., 140 NLRB 221, 51 LRRM 1600 (1962) ; see N.L.R.B. v. Houston Chronicle Publishing Company, 5th Cir. 1962, 300 F.2d 273, 278. The Board now admits that the Regional Director was incorrect in concluding that the Union had unfair labor practice charges pending at the time the handbill was distributed. The Union did not file unfair labor practice charges as to two Bes-Pak employees until two days after the Company election. 3ven if intent were a proper consideration, which it is not, we cannot understand how it could help the Union’s position, for we would assume, without evidence to the contrary, that the Union would not have prepared this handbill with only one message unless it intended the handbill to have a material effect on the election.

      . See also United States Rubber Co. v. N.L.R.B., supra, 373 F.2d at 606.