author: BREITENSTEIN, Circuit Judge.

text:
    Donald Richard SANDERS, Plaintiff-Appellant, v. H. J. CONINE, Sheriff, Laramie County, Wyoming, 1968, et al., Defendants-Appellees.
    No. 72-1893.
    United States Court of Appeals, Tenth Circuit.
    Argued Nov. 13, 1974.
    Decided Dec. 2, 1974.

      Leonard H. McCain, Brighton, Colo., for plaintiff-appellant.
    John F. Lynch, Cheyenne, Wyo., for defendant-appellee Conine.
    Maxwell E. Osborn, Cheyenne, Wyo., for defendants-appellees Byrd, Simpson and Mutart.
    Before BREITENSTEIN, Me-WILLIAMS and BARRETT, Circuit Judges.
   BREITENSTEIN, Circuit Judge.

In a pro se complaint plaintiff-appellant alleges that he was improperly extradited from Wyoming to Indiana and hence deprived of the rights protected by 42 U.S.C. § 1983. The specific claim is that after arrest without a warrant, and after request for a lawyer, he was never taken before a judge or magistrate as required by 3 Wyo.Stats. § 7-40 and that after Wyoming authorities received a warrant he was not taken before a court as required by § 7-36. The defendants were the Acting Governor of Wyoming, the county attorney, the county sheriff, and three Cheyenne police officers.

Without any response to the complaint, the district court dismissed the action as frivolous within the purview of 28 U.S.C. § 1915(d). On appeal we affirmed as to the Acting Governor and county attorney and remanded for further proceedings as to the other defendants.

On remand the sheriff, Conine, and the police officers, Byrd, Simpson and Mutart, moved for summary judgment with supporting affidavits. The district court again dismissed the action as frivolous. We reverse.

On the basis of a telegram from the sheriff of Montgomery County, Indiana, Simpson and Mutart arrested plaintiff in Cheyenne on July 29, 1968, and took him to the city jail. His demand for a lawyer was ignored. On August 7, sheriff Conine received a fugitive warrant from Indiana, took plaintiff into his custody, and moved him to the county jail. The Wyoming Governor signed the extradition order of August 9 and the sheriff turned plaintiff over to Indiana authorities on August 20. In their affidavits the defendants do not deny the request for, and failure to receive, legal counsel, and do not assert that plaintiff was ever taken before a judge, magistrate or court.

The provisions of the Constitution for the extradition of fugitives, Art. IV, § 2, has been implemented by 18 U.S.C. § 3182. A fugitive in custody “is entitled to invoke the judgment of the judicial tribunals, whether of the state or the United States, by the writ of habeas corpus, upon the lawfulness of his arrest and imprisonment.” Roberts v. Reilly, 116 U.S. 80, 94-95, 6 S.Ct. 291, 299, 29 L.Ed. 544. See also Robb v. Connolly, 111 U.S. 624, 629, 4 S.Ct. 544, 28 L.Ed. 542 and Appleyard v. Massachusetts, 203 U.S. 222, 228, 27 S.Ct. 122, 51 L.Ed. 161. In a habeas proceeding the inquiry is limited to a question of law as to the proper form of the papers and a question of fact as to fugitive status. See Biddinger v. Commissioner of Police of City of New York, 245 U.S. 128, 135, 38 S.Ct. 41, 62 L.Ed. 193; Brewer v. Goff, 10 Cir., 138 F.2d 710, 711-712; Bruzaud v. Matthews, 93 U.S.App.D.C. 47, 207 F.2d 25, 26; and Smith v. State of Idaho, 9 Cir., 373 F.2d 149, 155.

The Wyoming version of the Uniform Extradition Act provides, 3 Wyo.Stats. § 7-40, that a person arrested without warrant upon reasonable information that he is charged in courts of another state for specified offenses “must be taken before a judge or magistrate with all practicable speed and complaint must be made against him under oath setting forth the ground for arrest.” This provision was ignored.

Section 7-36 covers arrest under a fugitive warrant and requires that the accused must be informed of the right to legal counsel and if he or his counsel wish to challenge the arrest, the accused shall be taken before a court of record which shall fix a reasonable time for a habeas application. Plaintiff requested counsel shortly after the arrest without warrant and none was furnished. No advice of right to counsel was given after the arrest under the warrant. Plaintiff was never taken before any judicial officer. Section 7-37 provides that if an officer delivers a prisoner to an agent of the requesting state without compliance with § 7-36, he is guilty of a misdemeanor.

The argument of defense counsel that the extradition statutes are based on comity and are solely for the benefit of the states is not worthy of serious notice. The requirement that a person arrested as a fugitive be advised of his right to counsel and be taken before a court patently benefits the prisoner, not the state. See Pierson v. Grant, N.D.Iowa, 357 F.Supp. 397, 398. The power to extradite arises under the federal Constitution and statutes. In Wyoming the procedure for extradition is governed by state law. A prisoner has the right to test the proceedings by habeas corpus with the issues limited as noted above. A complaint which charges abuse of the extradition power by noncompliance with applicable law states a claim under 42 U.S.C. § 1983 and may not be dismissed summarily as frivolous.

Reversed and remanded for further proceedings.


source: Caselaw Access Project

author: IRVING R. KAUFMAN, Chief Judge:

license: Public Domain

text:
    STAMICARBON, N.V., Appellant, v. AMERICAN CYANAMID COMPANY, Appellee.
    No. 254, Docket 74-1960.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 12, 1974.
    Decided Oct. 4, 1974.

      John E. Haigney, New York City (Ide & Haigney, Ronald M. Glick, New York City, of counsel), for appellant Stamicarbon, N.V.
    Samuel W. Murphy, Jr., New York City (Donovan, Leisure, Newton & Irvine, Kevin D. Brenan,
    P. Michael Anderson, New York City (Stephen T. Waimey, Law Student, of counsel), for appellee American Cyanamid Co.
    Thomas E. Kauper, Asst. Atty. Gen., Dept, of Justice, Washington, D.C. (Carl D. Lawson, Robert B. Nicholson, Attys, on the brief), as amicus curiae urging affirmance.
    Before KAUFMAN, Chief Judge, and SMITH and TIMBERS, Circuit Judges.
   IRVING R. KAUFMAN, Chief Judge:

James Madison probably did not suppose, on suggesting to the House of Representatives its inclusion in the Bill of Rights, that the right to a public trial would one day conflict with someone’s interest in concealing a method for producing a triamino derivative of symmetrical triazine. It is not surprising then, that he gave no advice on how properly to resolve the controversy with which we are now presented. Stamicarbon, N.V. [Stamicarbon], a Netherlands corporation, appeals to us from an order denying its motion for a preliminary injunction to prevent disclosure of its trade secrets by American Cyanamid Co. [Cyanamid], the defendant in a criminal contempt proceeding which has been continued by Judge Brieant pending this appeal. We affirm.

I. FACTS

The rather improbable series of events which culminated in this action began a decade ago, with the entry of a consent decree against Cyanamid for antitrust violations in the production of melamine. The decree prohibited Cyanamid from producing more than 30 million pounds of melamine annually 'for ten years, unless the production capacity of American competitors not in conspiracy with Cyanamid should in the interim increase by 25 million pounds. Imports for the preceding year were to be included in the computation of Cyanamid’s production for any given year. The decree also forbade Cyanamid to expand its production capacity beyond 30 million pounds annually during the ten-year period.

The decree was modified in 1969 to permit Cyanamid to expand its production capacity. At its new facility Cyanamid employed a secret process, acquired from Stamicarbon by license, for producing melamine from urea and ammonia rather than the more commonly used dicycyanamide. Article III of the licensing agreement provided:

Client [Cyanamid] shall treat all Stamicarbon Know-How furnished to Client under this agreement as strictly confidential and shall use its reasonably best efforts to prevent disclosure thereof to third parties.

In March 1974 the United States moved by order to show cause to hold Cyanamid in criminal contempt for violation of the 1964 consent decree. The Government indicated that it would demand a fine in excess of $500 for the alleged violation. It claimed that the nonconspiratorial American melamine production capacity had not increased by 25 million pounds as of January 1, 1973, and that Cyanamid had nonetheless produced more than 30 million pounds in 1972, and imported 569,320 pounds in 1971. Some of the information upon which the Government relied was drawn from a report, made in 1973 by J. Lisle Reed, entitled “U.S. Plant Capacity for the Production of Melamine, An Independent Study Conducted for the Department of Justice and American Cyanamid, Inc.”

Since Cyanamid admits that it produced 33,625,200 pounds of melamine in 1972, the only issue in the contempt trial will be whether the production capacity of Cyanamid’s three American competitors increased by 25 million pounds beween the effective date of the decree and December 31, 1972. The Government will attempt to show, through the testimony of J. Lisle Reed and officers of the three companies, that Cyanamid’s competitors have actual production capacities which are less than their designed outputs because of human and mechanical shortcomings in their production processes. Two of those competitors — Premier Petrochemical Co. [Premier] and Melamine Chemicals, Inc. [MCI] — are licensees of Stamicarbon, and use its secret process for making melamine under contracts similar to that signed by American Cyanamid. On May 8, 1974 Cyanamid for the first time obtained from the Government a copy of the report of J. Lisle Reed, under a stipulation and order which provided:

If said report, documents or information contained therein are used in conjunction with the trial of this case, they shall be utilized in a manner which will maintain the confidentiality of the sensitive commercial or proprietary information contained therein, subject to further order by the Court.

Three days before the contempt trial was scheduled to begin, MCI moved that its testimony relating to production processes be received in camera, in order to maintain the secrecy required of MCI by Stamicarbon’s licensing agreement. The Government agreed to the procedure but Cyanamid objected, and the district judge refused to order in camera proceedings without Cyanamid’s consent. The following day Stamicarbon commenced this independent action before the presiding judge in the contempt trial. The injunction it sought would prevent Cyanamid from disclosing Stamicarbon secrets by requiring receipt of evidence relating to those secrets in camera. The complaint alleged that Cyanamid was required pursuant to its licensing agreement with Stamicarbon to consent to such a procedure.

On July 15, 1974, the day the contempt trial was to begin, a hearing was held on Stamicarbon’s application for a preliminary injunction. The district judge failed to make any finding respecting the contract or the applicability of its provisions, but held that it had “to balance the right to a public trial on the one hand with the right to have the secrets preserved on the other .” Finding that Stamicarbon would suffer irreparable injury from disclosure, the district judge nonetheless indicated that it was unlikely that the trial would elicit the evidence sought to be protected. He concluded “as a matter of law” that he “lack[ed] power under the circumstances of this case” to compel Cyanamid against its wishes to submit to in camera proceedings. The criminal contempt trial was then continued so that Stamicarbon could appeal the denial of the preliminary injunction.

II. ABUSE OF DISCRETION

In denying the application for a preliminary injunction, the district court found that Stamicarbon would suffer irreparable injury if its secret process were in fact disclosed. The court indicated doubt, however, that relevant evidence at trial would touch upon the salient features of that process. Thus the injury alleged by Stamicarbon may well be no more than speculative. It is well established that a party wishing to establish its right to a preliminary injunction must demonstrate either a probability that it will succeed on the merits coupled with a threat of irreparable injury, or a balance of hardship decidedly in its favor together with a serious question regarding the merits of the underlying action. Pride v. Community School Bd. of Brooklyn, N.Y., Dist. #18, 488 F.2d 321, 324-325 (2d Cir. 1973); Gulf & Western Indus. Inc. v. Great Atlantic & Pacific Tea Co., Inc. 476 F.2d 687 (2d Cir. 1973); Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738 (2d Cir. 1953). A district court’s decision to deny a preliminary injunction, after an assessment of these factors, will be overturned only where there has been an abuse of discretion. Société Comptoir de l’Industrie etc. v. Alexander’s Dept. Stores, Inc., 299 F.2d 33, 35 (2d Cir. 1962); Huber Baking Co. v. Stroehmann Bros. Co., 208 F.2d 464 (2d Cir. 1953); 7 Moore’s Federal Practice ¶ 65.04[2] (1974). We are unable to say, upon the record before us that Judge Brieant abused his discretion in finding the threat of irreparable injury insufficiently probable to justify the award of interim relief to Stamicarbon.

There is a further reason for our hesitance in upsetting the decision of the district court in this case. A determination of the propriety of interim injunctive relief cannot always be made simply by reference to the interests of the parties before the court. “Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.” Virginian Ry. Co. v. System Federation, 300 U.S. 515, 552, 57 S.Ct. 592, 601, 81 L.Ed. 789 (1937). To be effective, an injunction would require participation by Stamicarbon in the underlying contempt trial, so that the evidence which should be taken in camera could be identified. Such monitoring of a criminal proceeding ought not lightly to be imposed upon the court and the parties, even if Cyanamid’s right to a public trial may be subordinated to Stamiearbon’s interests. For both the defendant and the public — on whose behalf the consent decree is being enforced — deserve that prosecutions be conducted with dispatch, and without danger of mishap. Before running the risk of miscarriage, we would require a convincing indication from the district judge that the need repeatedly to pass on the merits of claims of secrecy, coupled with the possibly frequent shuttling between public and in camera proceedings, would not prejudice the fair and expeditious conduct of the criminal contempt trial.

III. WAIVER

Stamicarbon raises on appeal two distinct claims of waiver which we must decide without reference to the abuse of discretion standard. It is alleged that Cyanamid’s consent in the licensing agreement to “treat all Stamicarbon Know-How furnished . . . under this agreement as strictly confidential and . . . [to] use its reasonably best efforts to prevent disclosure” implies a waiver of its right to a public trial with regard to the secret information sought to be protected here. Moreover, Stamicarbon suggests for the first time on appeal that Cyanamid’s agreement in the stipulation and order of May 8, 1974 to “maintain the confidentiality of the . . . information contained [in the report of J. Lisle Reed]” implies a similar waiver. We reject both claims.

Although the district court made no express findings, its decision that it could not order in camera proceedings without Cyanamid’s consent necessarily implies a rejection of any waiver claim based upon the terms of the contract. Nevertheless, we decline to rest our holding upon that inference alone, since it is proper for us to proceed upon our own interpretation of the written contract. Emor, Inc. v. Cyprus Mines Corp., 467 F.2d 770 (3d Cir. 1972); University Hills, Inc. v. Patton, 427 F.2d 1094 (6th Cir. 1970); Eddy v. Prudence Bonds Corp., 165 F.2d 157, 163 (2d Cir.) (L. Hand, J.), cert. denied, 333 U.S. 845, 68 S.Ct. 664, 92 L.Ed. 1128 (1948).

In deciding the effect of an alleged contractual waiver, the Supreme Court recently stated that “in the civil no less than the criminal area, ‘courts indulge every reasonable presumption against waiver’ ” of constitutional rights. Fuentes v. Shevin, 407 U.S. 67, 94 n.31, 92 S.Ct. 1983, 2001, 32 L.Ed.2d 556 (1972). We find that the contractual secrecy provision relied upon by Stamicarbon falls far short of establishing with the requisite clarity, see Fuentes, supra, at 95-96, 92 S.Ct. 1983, any waiver by Cyanamid of its right to a public trial. The licensing agreement does not impose an absolute duty of nondisclosure on Cyanamid. Instead, it specifies that only “reasonably best efforts” need be made. If the word “reasonably” in that requirement is to have meaning, however, it must at a minimum excuse Cyanamid from a duty to forego a constitutionally protected right. Moreover, the licensing agreement was signed more than four years before the contempt action was initiated against Cyanamid. It is difficult to suppose that the rather extraordinary circumstances which here threaten disclosure could have been in the contemplation of Cyanamid and Stamicarbon at the time they signed the licensing agreement.

Stamicarbon asserts that it failed to raise in the district court the claim that a waiver was implied by Cyanamid’s agreement to the stipulation and order of May 8, since it did not learn of the existence of that order until after the denial of its motion for a preliminary injunction. Under these circumstances, it may raise the claim on appeal. Cf. F.R.Civ.P. 60(b); Triumph Hosiery Mills, Inc. v. Triumph International Corp., 191 F.Supp. 937, 938 (S.D.N.Y.1961), rev’d on other grounds, 308 F.2d 196 (2d Cir. 1962). There are, however, two difficulties with this assertion.

Although it appears clear that the report contains information gathered from Premier and MCI about Stamicarbon’s secret production process, Stamiearbon offers no indication of its character or extent. Since it may well be that the study contains only some, and perhaps none, of the evidence Cyanamid would seek to elicit at trial, it would be difficult to say that Cyanamid’s agreement to keep the report confidential implied a waiver of the right to a public trial regarding all Stamicarbon trade secrets. Stamicarbon alleges that Cyanamid did not know what was in the report when it was received from the Government, and that the promise of confidentiality made in advance must thus be construed as a waiver of the right to a public trial regarding anything that could have been contained therein. But it is well established that “[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970). Thus, if Stamicarbon is correct in claiming that Cyanamid did not know what was contained in the report, Cyanamid cannot be said “knowingly” and with “awareness of the relevant circumstances” to have waived its right to a public trial.

There is a second flaw in this latter claim of waiver. The order of May 8 provides that its provisions concerning secrecy are “subject to further order by the Court.” Stamicarbon has offered no background relating to this provision. It could well be, for example, that Cyanamid’s agreement to confidentiality was conditioned on use of procedures like those to which it later agreed — assistance of Stamicarbon at trial for the limited purpose of objecting to damaging evidence — and that the order was expressly made subject to revision in case such procedures were not acceptable to Stamicarbon. In the face of such uncertainty surrounding the order, it is impossible to say that Cyanamid agreed to in camera proceedings.

IY. THE CRIMINAL CONTEMPT TRIAL

Although we affirm the denial of the preliminary injunction, we feel we should offer some guidance as to the conduct of the criminal contempt trial. The course of those proceedings may-show that the revelation which now seems too improbable to warrant injunctive relief must in fact be made if relevant evidence is not to be excluded. There are indications in the statement accompanying the denial below which lead us to believe that, even if Judge Brieant had found more likely the danger of disclosure, he believed he was without power to grant the relief requested. We believe he does have the power at least partially to restrict access to the contempt proceedings when testimony which would reveal Stamicarbon’s secrets is received.

Although the right to a public trial has been recognized in this country at least since 1677, see Concessions and Agreements of West New Jersey, chap. XXIII, reproduced in I B. Schwartz, The Bill of Rights: A Documentary History 129 (1971), and has governed criminal proceedings in the federal courts since ratification of the Bill of Rights in 1791, we have only recently begun to probe the outer limits of its force and purpose. Note, The Accused’s Right to A Public Trial, 49 Colum.L.Rev. 110, 111 (1949). Unlike the right to a trial by jury, or the privilege against self-incrimination, strict enforcement of the accused’s demand for public proceedings can occasionally infringe upon other important interests. Some, of course, are personal to the defendant. In such cases the strong policy against curtailment of publicity will yield to his paramount concern. United States v. Sorrentino, 175 F.2d 721, 723-724 (3d Cir.), cert. denied, 338 U.S. 868, 70 S.Ct. 143, 94 L.Ed. 532 (1949). See, e. g., Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). On occasions, however, attendance at criminal trials by the general public will be barred even against the wishes of the accused, in order to implement policies whose importance outweighs the danger of a miscarriage of justice which may attend judicial proceedings carried out in even partial secrecy. This court recently recognized, for example, that the public interest in maintaining the confidentiality of airline “skyjack profiles” may justify the exclusion not only of the public, but of the defendant himself from a limited portion of a suppression hearing. United States v. Bell, 464 F.2d 667 (2d Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 335, 34 L.Ed.2d 258 (1972). Cf. United States v. Clark, 475 F.2d 240, 246 (2d Cir. 1973). It is said that the public also has an interest, which may conflict with that of the accused, in assuring that criminal trials proceed without interruption or improper influence. Effectuation of this concern has at times required the exclusion of the public or of a defendant’s friends from the courtroom when they were thought to pose a threat to orderly proceedings, United States ex rel. Orlando v. Fay, 350 F.2d 967 (2d Cir. 1965), cert. denied, 384 U.S. 1008, 86 S.Ct. 1961, 16 L.Ed.2d 1021 (1966), or to full and honest testimony by Government witnesses. United States ex rel. Bruno v. Herold, 408 F.2d 125 (2d Cir. 1969), cert. denied, 397 U.S. 957, 90 S.Ct. 947, 25 L.Ed.2d 141 (1970).

It is interesting that the right to a public trial has also been limited on occasion to favor an interest held, not by the defendant or by the public at large, but by a private individual. It has long been recognized, for example, that the need to protect young complaining witnesses in rape cases against embarrassment, harassment and loss of reputation will suffice to invoke the shelter of limited privacy upon criminal proceedings. See, e. g., Harris v. Stephens, 361 F.2d 888 (8th Cir. 1966), cert. denied, 386 U.S. 964, 87 S.Ct. 1040, 18 L.Ed.2d 113 (1967); United States v. Geise, 158 F.Supp. 821, 824, 17 Alaska 461 (1958), aff’d, 262 F.2d 151 (9th Cir. 1958), cert. denied, 361 U.S. 842, 80 S.Ct. 94, 4 L.Ed.2d 80 (1959). Cf. N.Y.Jud.Law, § 4 (McKinney 1968); 9A Mass.Laws Anno., c. 278 §§ 16A, 16B; Melanson v. O’Brian, 191 F.2d 963 (1st Cir. 1951); Reeves v. State, 264 Ala. 476, 88 So.2d 561, cert. dismissed, 355 U.S. 368, 78 S.Ct. 363, 2 L.Ed.2d 352 (1957); 21 Halsbury’s Laws of Eng., pt. 7, § 5, ¶ 712, p. 338 (3d ed. 1957). Moreover, disclosure of a witness’s name, address and employment has been made in camera when physical danger to the witness could have resulted from revelation of this vital information in open court. United States v. Palermo, 410 F.2d 468, 472 (7th Cir. 1969), rehearing and rehearing en banc denied, id.

We think that this ease would present an equally convincing justification for limited in camera procedures if, in the course of the contempt trial, the district judge should find that Stamicarbon was likely to suffer irreparable injury, and that protection of its secrets could be achieved with minimal disruption of the criminal proceedings. Stamicarbon asserts, and its estimate is undisputed, that the value of its trade secrets exceeds $1,000,000. It is, of course, impossible to establish a monetary value for the right to a public trial. We do not, however, think it irrelevant to our consideration that the Government here, at most, seeks only a fine against Cyanamid. The precarious balance between private claims and the constitutional right to a public trial may be struck more easily when the accused is not faced with loss of liberty.

Even if the monetary loss likely to be suffered by a private party clearly outweighed the fine to be imposed upon a defendant, however, we would be unwilling without more to test the limits of a right whose observance the constitution commands. In this case, though, we find that the interests served by the right to a public trial could be secured to Cyanamid while still protecting Stamiearbon’s secrets. Perhaps the most frequently cited service rendered by the right of public trial in the restraint on possible abuse of judicial power born of “[t]he knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion . . In re Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 506, 92 L.Ed. 682 (1948). But it would be possible in this case to permit the introduction of public light adequate to avert any possibility of infection in the proceedings. If the district court could not selectively exclude only those who had some interest in appropriating Stamicarbon’s secrets — a possibility which we do not discount— Cyanamid could be permitted to have as many witnesses of its own choice attend as could be accommodated. Putting those attending under oath to keep confidential only the most precise details of ingredients and the compounding process, cf. Paul v. Sinnott, 217 F.Supp. 84 (W.D.Pa.1963), should occasion little chance of prejudice to Cyanamid. Moreover, it must be emphasized that only those portions of the trial which the district court should find likely to destroy the confidentiality of Stamicarbon’s trade secrets would be subject to even this limited restriction. The likelihood that a judge — who must on request make special findings of fact, F.R.Crim.P. 23(c), in a trial where all testimony is recorded — will during those brief periods seize the opportunity to abuse his power is not great.

Another frequently mentioned function served by a public trial is that it “may induce unknown witnesses to come forward with relevant testimony . . . ” Estes v. Texas, 381 U.S. 532, 583, 85 S.Ct. 1628, 1653, 14 L.Ed.2d 543 (1965) (Warren, C. J., concurring). It would ordinarily be true ex hyyothesi that even a group of spectators hand-picked by the defendant could not perform this service. See, e. g., Tanksley v. United States, 145 F.2d 58, 10 Alaska 443 (1944). This, however, is not the ordinary case. The very subject matter of the litigation presumes that the number of persons having knowledge about Stamicarbon’s melamine production process is small indeed. Those persons, moreover, are already under a contractual obligation not to disclose what they know. Of course we cannot overlook the possibility that engineers having expertise in the field, but no acquaintance with the specific compounds and methods which Stamicarbon seeks to guard, would be able to enlighten the court and perhaps aid in the ultimate determination the court must make. But Cyanamid, familiar as it is with the urea/ammonia process, could easily select as witnesses any number of experts with the desired qualifications.

We wish to emphasize the limited nature of the suggestion which we here make. To ignore the undeniable benefits rendered by the assistance of press and public at criminal proceedings would indicate an unawareness of history as well as legal precedent. In almost all cases the interests which would suffer from publicity will merit less attention than the very real concern that the accused might be prejudiced by restricted attendance. It is only under the most exceptional circumstances that limited portions of a criminal trial may be even partially closed. If the district court should after further consideration find such action appropriate in the underlying contempt case, it would only be because Stamicarbon had presented a compelling claim for relief, and the district judge had determined that the full benefit of a public trial could be secured to' Cyanamid by limited restrictions on access.

Because of the more than two-month delay which this appeal has already occasioned in the criminal contempt action, we suggest that the district court proceed with the trial as expeditiously as possible.

Affirmed.

      . I Annals of Congress, June, 8, 1789, reproduced in II B. Schwartz, The Bill of Rights: A Documentary History, 1027 (1971).

      . Sherman Act §§ 1, 2, 15 U.S.C. §§ 1, 2 (1970); Clayton Act § 7, 15 U.S.C. § 18 (1970).

      . Melamine is a compound used in the manufacture of melamine resins, from which are I>roduced adhesives and coatings for certain plastic products.

      . The decree specified that the ten-year period was to commence on the date of disposition of Cyanamid’s Willow Island facility. Willow Island was sold to Fislier Melamine Corp. on November 1, 1964.

      . The decree was again modified on two subsequent occasions. On October 10, 1973, the limitation on production for that year was raised to 44 million pounds. On February 13, 1974 Cyanamid was given permission to-produce 50 million pounds through October 31 of this year, when the original consent decree will expire.

      . Cyanamid waived its right to a jury trial.

      . Cyanamid will attempt to prove, among other things, that the decree contemplates an increase of 25 million pounds in designed capacity, and that the actual capacity relied upon by the Government is irrelevant.

      . In an effort to find a procedure satisfactory to all parties, the district judge suggested that Stamicarbon be allowed to attend the contempt trial, to indicate to the court whenever evidence was being elicited which could divulge its secrets. The court would then exclude the evidence if it were not relevant. Cyanamid agreed to this proposal but both Stamicarbon and the Government objected.

      . The licensing agreement provided that it should “be construed in accordance with the law” of New Jersey. It goes without saying, however, that the New Jersey standard for waiver of a federal constitutional right, which this provision presumably incorporated, cannot be less stringent than the corresponding federal rule. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . We assume, since the damaging evidence is most likely to be elicited — if at all — upon examination of Stamicarbon’s other licensees, that tile participation by Premier and MCI in the trial would adequately serve to alert the district judge of imminent disclosure. Should this assumption prove unwarranted, we do not foreclose the possibility that Stamicarbon may be asked to advise the court about testimony which may touch upon its interests.

      . The need for a sensitive accommodation of both interests involved in this case is emphasized by the fact that no fewer than 20 states during the last nine years have enacted statutes making appropriation or unauthorized disclosed of trade secrets a crime. Arkansas Stats. § 41-3949 et seq.; California Code Anno., Penal Code § 499c; Colo.Rev.Stats.1967, Perm.Supp., section 40-5-33 et seq.; Ga.Criminal Code § 26-1809; SmithHurd Illinois Anno.Stats., c. 38, § 15-1 et seq.; Burns Indiana Stats.Anno., Title 35, § 17-3-1 et seq.; 17 Me.Rev.Stats. Anno. § 2113 (1967). Mass.Laws Anno., c. 266, § 30; Mich. Comp.Laws Anno., § 752.771 et seq.; Minn. Stats.Anno., Title 40, § 609.52; Neb.Rev.Stats. § 28-548-01 et seq.; N.II.Rev.Stats. Anno., § 637:1 et seq.; N.J.Stats.Anno., 2A:-119-5.3 et seq.; New Mex.Stats. 40A-16-23; McKinney’s Consol.Laws c. 46, N.Y. Laws Anno., Penal Law, §§ 155.00, 155.30, & 165.07; Ohio Rev.Code Anno., Title 13, § 1333.51 et seq.; Okla.Stats.Anno., Title 21, § 1732; Purdon Penna.Stats., Title 18, § 4899.2; Tenn.Code Anno. § 39-4238 et seq.; Wisc.Stats.Anno., Criminal Code, § 943.205. Prosecutions under these statutes will inevitably present similar clashes between defendants asserting their rights to public trial, and owners of trade secrets, whom the statutes were enacted to protect. Unyielding preservation of the public trial right would in such cases present trade secret owners with the Hobson’s choice of suffering an unprosecuted theft of their secrets, or allowing a prosecuted thief to broadcast the same secrets at trial.

      . We emphasize that we do not here confront the situation where an individual faces imprisonment for his role in the corporate acts constituting contempt. See Hill v. United States ex rel. Weiner, 300 U.S. 105, 57 S.Ct. 347, 81 L.Ed. 537 (1937). There are no individual defendants in the underlying contempt ease.

      . It has been held that a criminal contempt action is not within those criminal prosecutions to which the sixth amendment right to a public trial applies. Levine v. United States, 362 U.S. 610, 616, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960), rev’d on other grounds, Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965). We decline to suggest the propriety of limited restrictions on public attendance at trial upon that ground, however, because of the procedural safeguards which have recently been extended to defendants in criminal contempt cases. The increase in constitutional protection has not been limited to those charged with contempt in open court, see, e. g., Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974); Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971); Johnson v. Mississippi, 403 U.S. 212, 91 S.Ct. 1778, 29 L.Ed.2d 423 (1971), but has been enlarged as well for contempts not committed in the presence of the judge. Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968). Moreover, the Court stated quite unequivocally in Mayberry v. Pennsylvania that “by reason of the Due Process Clause of the Fourteenth Amendment a defendant in criminal contempt proceedings [in a state court] should be given a public trial . ” 400 U.S. at 466, 91 S.Ct. at 505. See also Bloom v. Illinois, supra, 391 U.S. at 205, 88 S.Ct. 1477. Finally, it is well understood that the most useful function served by the right to a public trial is the prevention it offers against abuses of the judicial power. See infra. And what the Court said in Bloom regarding the constitutional right to a jury trial is equally appropriate with respect to the need for public airing:
      [I]n contempt cases an even more compelling argument can be made [than in ordinary criminal trials] for providing protection against the arbitrary exercise of official power . . . . Even when the contempt is not a direct insult to the court or the judge, it frequently represents a rejection of judicial authority, or an interference with the judicial process or with the duties of officers of the court.

        Id. at 202, 88 S.Ct at 1482.

      . “This is not a ease where it . could be charged that the judge deliberately enforced secrecy in order to be free of the safeguards of the public’s scrutiny . . . .” Levine v. United States, 362 U.S. 610, 619, 80 S.Ct. 1038, 1044, 4 L.Ed.2d 989 (1960).

      . At least two other benefits to the defendant have been recognized to flow from the right to a public trial: “it arguably improves the quality of testimony, . . . [and] it may move all trial participants to perform their duties conscientiously.” Estes, supra, 381 U.S. at 583, 85 S.Ct. at 1653. Once again, however, these functions could in this case be equally well performed by a group of Cyanamid’s own choosing, or by the general public, exclusive of those whose attendance would result in the irreparable injury which Stamicarbon fears. It bears repetition, moreover, that only limited portions of the trial would be so restricted, and the danger to the quality of testimony or the orderly conduct of the proceedings would be minimal.
      There may also be, we recognize, a benefit which accrues to the public at large from the publicity of criminal proceedings. See, e. g., In re Oliver, 333 U.S. 257, 270 n. 24, 68 S.Ct. 499, 92 L.Ed. 682 (1948); United States v. Consolidated Laundries Corp., 266 F.2d 941, 942 (2d Cir. 1959). But it must be acknowledged that the marginal benefit of increased public confidence which would accrue from unrestricted access in this case certainly does not counterbalance Stamicarbon’s interest in secrecy.


author: WEIS, Circuit Judge.

text:
    Gerald G. GOODE et al., Appellants in No. 73-2023, v. Frank L. RIZZO, Mayor, City of Philadelphia, Pennsylvania, et al., Appellants in Nos. 73-2024 and 73-2025. COUNCIL OF ORGANIZATIONS OF PHILADELPHIA POLICE ACCOUNTABILITY AND RESPONSIBILITY et al., Appellants in No. 73-2079, v. Honorable James H. J. TATE et al. Appeal of Frank L. RIZZO et al., in Nos. 73-2077 and 73-2078.
    Nos. 73-2023 to 73-2025 and 73-2077 to 73-2079.
    United States Court of Appeals, Third Circuit.
    Argued June 10, 1974.
    Decided Nov. 1, 1974.
    Certiorari Granted March 31, 1975.
    See 95 S.Ct. 1443.

      Peter Hearn, F. John Hagele, Nancy J. Gellman, Jack J. Levine, Philadelphia, Pa., for appellees in Nos. 73-2024 and 73-2025 and for cross-appellants in 73-2023; Pepper, Hamilton & ' Scheetz, Philadelphia, Pa., of counsel.
    James M. Penny, Jr., Asst. City Sol., John Mattioni, Deputy City Sol., Martin Weinberg, City Sol., Philadelphia, Pa., for appellants in Nos. 73-2024, 73-2025, 73-2077 and 73-2078, and cross-appellees in Nos. 73-2023 and 73-2079.
    William Lee Akers, Philadelphia, Pa., Harry Lore, Philadelphia, Pa., for appellees in Nos. 73-2077 and 73-2078 and cross-appellants in 73-2079.
    Barry S. Kohn, Deputy Atty. Gen., Israel Packel, Atty. Gen., Community Advocate Unit, Philadelphia, Pa., for Commonwealth of Pennsylvania, amicus curiae, on behalf of appellees in Nos. 73-2023 and 73-2025.
    Robert M. Landis, Samuel T. Swan-sen, Stephen M. Cushmore, Philadelphia, Pa., for Philadelphia Bar Assn., amicus curiae, for appellees in 73-2023 to 73-2025 and cross-appellants in 73-2023; Dechert, Price & Rhoads, Philadelphia, Pa., of counsel.
    Charles C. Hileman, III, C. Gary Wynkoop, Philadelphia, Pa., for the Lawyers’ Committee for Civil Rights Under Law, amicus curiae; Schnader, Harrison, Se-gal & Lewis, Philadelphia, Pa., of counsel.
    Frederic L. Ballard, Michael Lehr, Philadelphia, Pa., for Greater Philadelphia Movement, amicus curiae.
    Before STALEY, GIBBONS and WEIS, Circuit Judges.
   OPINION OF THE COURT

WEIS, Circuit Judge.

A delicate balancing between the functions of the federal district court and the police department of the City of Philadelphia is the essence of the controversy presented in this appeal. A finding by the trial court that a modification of internal procedures for handling citizens’ complaints is an adequate remedy for preventing future misconduct by a minority of police officers is sufficiently supported by the record. But, an assessment of counsel fees in this § 1983 case must be remanded for further proceedings.

Two separate cases were filed by different plaintiffs, all purporting, however, to represent essentially the same class of persons. The defendants also were generally the same, being the Mayor and other city and police officials. The two cases were consolidated by the district judge for final disposition, and we therefore, as did he, treat this litigation as unitary.

The plaintiff produced evidence which the district court found adequate to establish a pattern of violations of the legal and constitutional rights of citizens by Philadelphia police, particularly in the areas of “arrest for investigation, charges of resisting arrest when the arrest was initially unlawful, extreme over-reaction to actual or reported assaults upon policemen and in the treatment of people who question or criticize police activity in particular instances. The testimony was presented by victims of police misconduct or witnesses to it and encompassed more than thirty-five incidents, not all of which were found to be examples of improper activity on the part of the officers. The district judge summarized each incident in his voluminous findings of fact and concluded that, while misconduct is attributable to only a small percentage of the members of the police force, the violations take place with such frequency that “they cannot be dismissed as rare isolated instances; and that little or nothing is done by the city authorities to punish such infractions, or to prevent their recurrence.”

The existing police procedures for processing and adjudicating citizen complaints and for enforcing police discipline were evaluated, the court finding that the arrangements then existing were totally inadequate because:

1. The procedures were geared to handle infractions of police regulations but these rules were not framed to cover specific violations of citizens’ constitutional rights;
2. Complaints were handled on a “chain of command” basis which discouraged civilian complaints;
3. There was no adequate opportunity for the complainant to present his case to an objective tribunal;
4. The outcome of the proceedings were not disclosed; and
5. There was a tendency to minimize consequences of proven police misconduct.

Although the plaintiffs had asked for a sweeping equitable decree, including the appointment of a “receiver” to supervise the police department and the civilian review of police activity, the trial court concluded that a much more limited form of relief was appropriate. It required the defendants to revise the procedures within the police department for processing citizens’ complaints against the police, including such matters as:

1. Preparing and distributing appropriate forms for the submission of complaints;
2. Prompt and adequate investigation ;
3. Adjudication by an impartial body insulated from command pressures; and
4. Fair opportunity for both complainants and police officers to present their cases, followed by notification to. the parties of the outcome.

court stated that its guidelines pose no threat to vigorous law enforcement, are consistent with generally recognized minimal standards, and impose no substantial burden on the police departments The district court also concluded that an award of counsel fees and expenses to the plaintiffs was justified and assessed sums totalling $39,417.58 against “the defendants.”

The defendants appeal from the judgments in all respects. The plaintiffs COPPAR and Goode cross-appeal on the ground that the grant of counsel fees is inadequate, and COPPAR cross-appeals from the denial of its request for the appointment of a receiver.

I.

We first consider the defendants’ challenge to the plaintiffs’ standing to maintain this suit on the ground that the requirements set out in O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), have not been met. In that case the Supreme Court found a lack of standing when the complaint did not allege injury on the part of any of the named plaintiffs and no class determination had been made. But, a few months later, in Allee v. Medrano, 416 U.S. 802, 94 S.Ct. 2191, 2201, 40 L.Ed.2d 566 (May 21, 1974), the Court noted, “ . . . Moreover as, to this portion of the decree, directed at police misconduct generally rather than to any particular state statute, named plaintiffs intimidated by misconduct may represent all others in the class of those similarly abusedj. . . ”

In the case sub judice, the named plaintiff, Gerald Goode, alleged in the complaint and established at the trial an incident where he was the victim of an illegal arrest and beating by Philadelphia police. Herbert Brown, another named plaintiff, alleged an illegal beating by the police which presented an arguably constitutional violation.

While the GOODE complaint is loosely drawn, a fair reading shows that the individual plaintiffs allege a series of illegal arrests and unauthorized entry into their homes by police officers. Many of the named plaintiffs did not testify at the hearing. However, at the direction of the trial judge at a pretrial hearing, a list of other names and a description of the incidents in which they were involved were filed with the court. Although somewhat informal, this may properly be considered an amendment to the complaint and was so treated by the district court. Many of these additional parties testified in the district court.

Although more precision and attention to the appropriate procedural rules by the parties would have been helpful, from a practical standpoint we conclude that the requisites for standing have been met.

There is a distinction too between the underlying situation in the O’Shea case and the instant litigation. In O’Shea v. Littleton, supra, the Court was concerned with the fact that the injunction sought by the plaintiffs would affect events which would take place during state criminal trials, thus violating the principles of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Here, on the other hand, the plaintiffs were concerned with alleged police practices which would not come to the attention of a state court in most instances because prosecutions were not instituted or were dismissed at a very early stage. Furthermore, unlike the O’Shea litigation, the Court did determine the applicable class to be all the citizens of Philadelphia and an included [class of all black residents of the City.

II.

The trial court’s conclusion that there were widespread violations of constitutional rights through police misconduct is attacked by the defendants as being inconsistent with the finding that only a small percentage of the officers on the force are accountable for these actions. The defendants also assert that the number of separate incidents presented to the court formed an inadequate basis for a finding of a pattern or practice.

There is no mathematical formula which can be of assistance in determining how many witnesses or how many incidents are needed to establish a pattern of conduct by any group in a community. The trial judge must work with the material that is presented to him and must decide whether sufficient credible data are available to reach a conclusion. It is his responsibility primarily, and an appellate court must accord great deference to that fact finding process. In a case of this nature, too, we are conscious of the weight which must be given to the findings of a trial judge which are dependent upon and interwoven with intensely local conditions and circumstances. Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1974); White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973).

We have noted also, as did the district judge, that the police officials of Philadelphia entered into a consent decree in Alexander v. Rizzo, supra, agreeing to modify the procedures to be followed when a person is to be interrogated in the course of a criminal investigation. Compliance with that decree will serve to prevent recurrence of some of the types of illegal conduct about which the plaintiffs here complained. We need not consider, nor did the district court, whether this consent decree has any collateral estoppel effect as to the existence of a pattern of misconduct by police officers. Nevertheless, it was a factor to which the trial judge could give some weight in arriving at his findings.

Q)ur review of the lengthy record in this case in addition to the contents of the appendix submitted by the parties does not reveal findings of fact which are clearly erroneous or conclusions which are not supported by reasonable interpretation of those underlying facts} See Fed.R.Civ.P. 52; Wright & Miller, Federal Practice and Procedure: Civil §§ 2585, 2587.

tWe conclude that there was an adequate evidentiary record to support the findings of the district court that violations of constitutional rights by the Philadelphia police occurred in an unacceptably high number of instances and that in the absence of change in procedures such violations are likely to recur

That we do not reverse the district court’s conclusions, however, does not mean that we are unaware of the idealism and dedication of the vast majority of police officers. Their duties are difficult and dangerous, and the work which they perform is too often unheralded and unappreciated. Even a casual review of the record of the citations for bravery awarded to some of the offending officers in this case cannot but impress the reader with the fact that often the most routine assignment may suddenly turn into one involving death or serious injury to the policemen. And yet, we place upon these officers the additional burdens of almost superhuman patience and forbearance in the face of hostile and provocative conduct and insist that they accord full legal protection and respect to those who would deny similar treatment to the officers. But such high standards must be maintained because of the tremendous importance of police work to the maintenance of an orderly society without which no rights can survive. We would fail in the respect which we owe the vast majority of policemen should we not fail to correct the derelictions of the few who do not meet the difficult standards which the community requires.

III.

The district court’s order granting relief is limited and moderate in tone indicating its faith in the ability and willingness of the police department to investigate and correct the transgressions of its errant members. [Respite the assertions of the defendants, the court is not thrusting itself into the day to day operations of the police department — a situation which we agree would be inadvisable and inappropriate in the circumstances of this cas^Di Cf. Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966). Indeed, the procedures which the district court required be implemented by the police department for the receipt, investigation, and disposition of civilian complaints are fully in accord with the American Bar Association Standards Relating to the Urban Police Function, which were unanimously approved by the Executive Committee of the International Chiefs of Police in December, 1972.

We agree with the district court in its refusal to appoint a “receiver” for the police department as requested by COPPAR. Whether such action might ever be necessary in the most extreme circumstances, we need not here consider because the factual situation in this case would not warrant such action. See Build of Buffalo, Inc. v. Sedita, 441 F.2d 284 (2d Cir. 1971).

We emphasize that the district judge did not find that the plaintiffs were entitled to a change in the disciplinary procedures of the police department as a matter of constitutional right. The decision on the necessity for relief was based upon violations of constitutional rights which had occurred and which he found would be recurring. [It was only in the context of the proper remedy to be utilized that the district court reviewed the existing procedures and found them inadequate. The revisions were one of the forms of relief available and were ordered because they appeared to have the potential for prevention of future police misconduct.^] Lewis v. Kugler, supra. See also The Federal Injunction as a Remedy for Unconstitutional Police Conduct, 78 Yale L.J. 143 (1968); Injunctive Relief for Violations of Constitutional Rights By the Police, 45 Colo.L.Rev. 91 (1973).

IV.

While we find no error in the injunctive relief decreed in this case, we do not believe that the record adequately explains the award of counsel fees to the plaintiffs.

The district court filed an order as follows:

“1. That the defendants shall pay to the plaintiffs in the Goode case, Civil Action No. 70-491, counsel fees in the sum of $25,000, plus disbursements and costs in the sum of $4,167.58.
“2. That the defendants shall pay to the plaintiffs in the COPPAR case, Civil Action No. 70-2430, counsel fees in the sum of $10,000, plus disbursements and costs in the sum of $250.”

The accompanying memorandum recited that the court’s discretion was exercised in favor of the award of counsel fees because “[t]he cases were brought for the vindication of constitutional rights, significant violations were established, and the plaintiffs succeeded in obtaining relief which should prove beneficial to all of the citizens of Philadelphia.” The court also noted that the parties had been unable to reach an amicable agreement, even after its order setting out guidelines had been filed, and that the results achieved could not have occurred without the need for litigation. Nevertheless, the memorandum concluded that while plaintiffs’ counsel had performed a valuable public service, punitive measures were not called for. The memorandum and orders are ambiguous and leave us in doubt as to the basis on which the court exercised its discretion and by whom the payments were to be made.

Even if statutory authority is lacking, in the exercise of their equitable powers federal courts may award attorneys’ fees when the interest of justice so requires. Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973). Although the rule is broadly stated, in application the power is generally exercised in three categories:

1. Where there has been bad faith, vexation, or oppression. In this class of cases, the punitive aspects predominate. See e. g., Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); Monroe v. Board of Commissioners of City of Jackson, 453 F.2d 259 (6th Cir. 1972).
2. Where a common fund has been created, or closely analogous to this, where a definable class benefits from the litigation and an award enables the court to spread the expense among all who benefit. E. g., Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). Cf. Brewer v. School Board of City of Norfolk, 456 F.2d 943 (4th Cir.), cert. denied 406 U.S. 933, 92 S.Ct. 1778, 32 L.Ed.2d 136, sub nom. 409 U.S. 892, 93 S.Ct. 109, 34 L.Ed.2d 149 (1972).
3. Where the private attorney general theory may have application — that is, where the litigation was instituted to vindicate a policy granted a high priority by a congressional action. See, e. g., Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971).

However, the equitable power may be circumscribed by Congress. Hall v. Cole, supra.

Although 42 U.S.C. § 1983 contains no language dealing with counsel fees, there have been awards under the general equitable power in some cases brought under the terms of the statute. See Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31 (No. 73-1613, 3d Cir., May 3, 1974, amended June 11, 1974), and see the compilation of cases in Gates v. Collier, 489 F.2d 298 (5th Cir. 1973).

The district court did not articulate the basis which it felt justified an award, and we think it important that this be done. Why the fees should be paid has significance in determining who is liable, and we do not feel that we should engage in speculation as to the district court’s rationale.

We have similar difficulty in divining the district court’s intentions as to the source of funds to satisfy the awards. There are two obvious alternatives: the defendants personally or the City of Philadelphia. Each choice, however, poses special problems which require examination by the district court, perhaps with additional fact finding for clarification.

Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), makes clear that officials in the executive department may be personally liable for damages in § 1983 cases. However, a qualified immunity is available as a defense when there is good faith on the part of the defendant. In Skehan v. Board of Trustees, supra, we held that this immunity would apply to assessments for counsel fees as well as to damages.

In the exercise of discretion, too, the district court should consider the fact that the defendants apparently did not personally participate in the incidents which led to the necessity of injunctive relief. Respondeat superior is not applicable in its traditional sense since the defendant officials are not employers. Both subordinates and officials are employees of the governmental unit. Jennings v. Davis, 476 F.2d 1271 (8th Cir. 1973). In Bracey v. Grenoble, 494 F.2d 566 (3d Cir. 1974), this court assumed, arguendo, that no damages for the actions of a subordinate could be imposed upon a governmental official in the absence of his actual knowledge of, acquiescence in, or participation in the unlawful activity. See also Vicarious Liability Under § 1983, 6 Ind.L.Rev. 509 (1973).

Furthermore, we note that some of “the defendants” were not in office at the time the incidents arose and were substituted as parties only after the lawsuits were close to conclusion. Similarly, some of the defendants who were officials during the period when the incidents occurred were not included among those liable since they were not parties at the time the order was entered.

To summarize then, if it is the intention of the district court to find the defendants personally liable for an award of counsel fees, it will be necessary to consider the issues of:

1. official immunity;
2. vicarious liability; and
3. identification of the individuals liable.

Additionally, if it is comtemplated that personal liability will be imposed, the equitable basis for making any award will require analysis. For example, the equities involved in a private attorney general or spreading-the-cost theory are less apparent if individuals are being ordered to reimburse the plaintiffs than if a large entity in which all claim membership is to pay the assessment. Correspondingly, the traditional test of obduracy and intransigence may have far more significance if individual liability is involved.

If it is the thought that the City of Philadelphia, although not a party to this litigation, is to be the source of the funds, then other issues must be passed upon by the district court with appropriate assistance from counsel.

Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), clarified some earlier uncertainty by holding that a city is outside the ambit of § 1983 “for purposes of equitable relief as well as damages” and may not be a named defendant in such a case. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), held that while an injunction could be issued against a state officer, damages or “equitable restitution” could not be imposed when in fact they would come from the state. We held in Skehan v. Board of Trustee, supra, that the prohibition of the Eleventh Amendment extends to an award of counsel fees from the state treasury, although that would not be so if the payment were to be made by a college which was a subsidiary governmental unit.

The district court, therefore, should consider whether under the facts and circumstances present in this case the rationale of Edelman as it deals with sovereign immunity should apply to the statutory exclusion granted a city under § 1983.

Another matter which may be of significance is whether any of the individual defendants would have the power under the city charter or Pennsylvania law to authorize disbursement of funds in this situation. In exercising its discretion to award counsel fees, the district court would no doubt be concerned with the efficacy of its pronouncement.

The issues which would be raised by an award of counsel fees in this case are broad and complex. We believe they should be resolved only upon a record which would clearly specify the grounds upon which the district court relied. Of course, we take no position at this time as to whether fees should be awarded or if so, against whom they should be assessed.

The judgment of the district court will be affirmed as to the injunctive relief granted but will be vacated and remanded as to the award of counsel fees for further proceedings not inconsistent with this opinion.

      . The district court ordered that the Goode case could be maintained as a class action on behalf of all residents of the City of Philadelphia and an included class of all black residents of Philadelphia. The complaint in the OOPPAR case alleged the class to be composed of the plaintiff and black and white persons in the City of Philadelphia expressing political views contrary to defendants and advocating police responsibility to the community. OOPPAR is an acronym for the Council of Organization on Philadelphia Police Accountability and Responsibility.

      . The original complaint in the Goode case named the following defendants :
      James H. J. Tate, Mayor, City of Philadelphia
      Fred T. Corleto, Managing Director, City of Philadelphia
      Frank L. Rizzo, Commissioner of Police, City of Philadelphia
      Robert G. Selfridge, Deputy Commissioner of Police, City of Phila.
      William Murphy, Captain, Police Department, City of Philadelphia
      By Order of Court, dated September 11, 1973, the following defendants were substituted :
      Frank L. Rizzo, Mayor, City of Philadelphia
      Ilillel S. Levinson, Managing Director, City of Philadelphia
      Joseph F. O’Neill, Commissioner of Police, City of Philadelphia
      Morton B. Solomon, Deputy Commissioner of Police, City of Phila.
      William Murphy, Captain, Police Department, City of Philadelphia
      In OOPPAR, the original named defendants were:
      Honorable James II. J. Tate; Frank L. Rizzo; Fred T. Corletto; Arlen Spector.
      The record does not reveal any substitution of the named defendants, despite the court’s order of March 14, 1973, directing the plaintiffs to make appropriate amendments to the caption of the case to reflect changes in personnel.

      . COPPAR v. Rizzo, 357 F.Supp. 1289, 1319 (E.D.Pa.1973).

      . In a suit for damage in the state court against the individual police officers and the City of Philadelphia Goode was given a judgment by a board of arbitration against the City of Philadelphia although no finding was entered against the policemen personally. That case was appealed to the Court of Common Pleas of Philadelphia County.

      . The designation of class was granted by the district court under the provisions of Rule 23(b)(2), which reads :
      “An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: . . . (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole . . . ”
      The defendants have not questioned the class designation on the basis of size or definition and therefore, we do not consider those elements. Cf. Lewis v. Kugler, 446 F.2d 1343 (3d Cir. 1971).
      We also note that the defendants in the case of Alexander v. Rizzo, Civil Action No. 70-992 (KD.Pa.1972), entered into a consent decree in which they stipulated that the final order was “for the benefit of every member of the class of plaintiffs referred to in the Complaint . . .” The Alexander complaint reveals that the action was brought on behalf of all black residents of the City of Philadelphia. (Complaint, para. 5)

      . It is not inappropriate to note that the same district judge decided the case of Hughes v. Rizzo, 282 F.Supp. 881 (E.D.Pa. 1968), where an injunction against alleged police misconduct was denied. That same judge is presently retaining jurisdiction of the case of Commonwealth of Pennsylvania v. Joseph F. O’Neill et al., 345 F.Supp. 305 (E.D.Pa.1972), involving the hiring practices of the Philadelphia police.

      . See note 5, supra.

      . In the Goode case, the court remarked that the efforts of plaintiffs’ counsel were more nearly successful and their efforts were more directly devoted to attempting to obtain a rational solution but in the GOPPAli litigation the plaintiffs were “somewhat less sensitive to the true public interest” and were less inclined toward an amicable settlement along the lines ultimately set out by the court.

      . The Supreme Court expressly declined to rule on this theory in Hall v. Cole, supra, although it discussed it in Newman v. Piggie Park Enterprises, supra, where the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3(b) permitted an award of counsel fees in the court’s discretion. See also Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (May 15, 1974), where the Court noted the high priority particularly accorded desegregation matters. In Northcross v. Memphis Board of Education, 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973), the Court expressly declined to consider whether and under what circumstances an award of attorneys’ fees might be permissible in § 1983 litigation.

      . Many of the cases fail to distinguish between awards made under §§ 1981, 1982 and 1983 even though these sections are derived from separate statutes and the rationale applicable to § 1982, for examjjle, may not apply to § 1983. See, e. g., Lee v. Southern Home Sites Corp., supra, where the court cites the absence of criminal sanctions to enforce § 1982 as one reason to encourage private attorney general actions.

      . See note 2, supra.

      . The former district attorney of Philadelphia would be liable under this order for a share of the counsel fees awarded the plaintiffs even though no member of the district attorney’s staff was in any way involved in the incidents which convinced the court that injunctive relief was required. In Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966), this court held that the district attorney is not liable for damages under § 1983 because of judicial immunity.

      . In discussing fees, the district court did say that “punitive measures are not called for” and that “no conscious policy of permitting or encouraging widespread violations of constitutional rights by police officers” existed.

      . The court’s opinion noted that a cause of action under 28 U.S.C. § 1331 had been asserted and that therefore it was not significant that the college was not a “person” under § 1983. Since the parties to the litigation sub judiee argued only § 1983 jurisdiction, we consider only that theory. Moor v. County of Alameda, 411 U.S. 693, 696 n. 4, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). Convincing proof of the parties’ intent is the COPPAR motion to add the City of Philadelphia as a defendant on the expectation that the Moor v. County of Alameda case, supra, which was then pending in the Supreme Court, would result in a county being declared a “person.” The motion was not acted upon, and the city is a named defendant in neither case. Goode asserted only § 1983 and § 1988 claims. We leave open for district court consideration the question of § 1331 jurisdiction which COPPAR alleged. As to whether Goode could amend to allege such a jurisdictional ground, see 28 U.S.C. § 1653. Similarly, whether the City of Philadelphia could or should be joined under § 1331 is not before us, and in view of such problems as the statute of limitations, laches and respondeat superior, we do not pass upon it.

      . There are numerous cases in which counsel fees have been assessed against school boards without any discussion of whether those entities are “persons” under § 1983. The definition of “person” under this specific statute is far from clear, and there are inconsistencies in the case law. Contrast, for example, U. S. ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84 (3d Cir. 1969), with Scher v. Board of Education of Town of West Orange, 424 F.2d 741 (3d Cir. 1970). For a resume of the cases in this circuit demonstrating the problem, see Thornberry, Suing Public Entities Under the Federal Civil Rights Act: Monroe v. Pape Reconsidered, 43 U.Colo.L.Rev. 105 (1971). The Supreme Court has met the issue only in cases involving cities and counties. Kenosha v. Bruno, supra, Moor v. County of Alameda, supra, and Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Curiously, despite the many cases before the Supreme Court in recent years in which school boards were among the named defendants, the issue of whether the board is a “person” has never been decided by the Court. For the view that the “person” exclusion should be narrowly construed in order to carry out the purpose of the Civil Rights Act, see Kates and Kouba, Liability of Public Entities Under Section 1983 of the Civil Rights Act, 45 S.Cal.L.Rev. 131 (1972).


author: MANSFIELD, Circuit Judge:

text:
    Harold BIGELOW and Virginia Bigelow, Plaintiffs-Appellants, v. AGWAY, INC., and Kemin Industries, Inc., Defendants-Appellees.
    No. 69, Docket 74-1268.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 30, 1974.
    Decided Nov. 21, 1974.

      Peter F. Langrock, Middlebury, Vt. (Langrock & Sperry, Middlebury, Vt., of counsel), for plaintiffs-appellants.
    Lawrence Miller, Rutland, Vt. (Miller & Hill, Rutland, Vt., of counsel), for defendant-appellee Agway, Inc.
    Frederick DeG. Harlow, Rutland, Vt. (Ryan, Smith & Carbine, Rutland, Vt., of counsel), for defendant-appellee Kemin Industries, Inc.
    Before HAYS, ANDERSON and MANSFIELD, Circuit Judges.
   MANSFIELD, Circuit Judge:

In this diversity action in the District of Vermont for recovery of losses sustained by plaintiffs Harold and Virginia Bigelow when a barn on their Vermont farm burned on July 8, 1971, Chief Judge Holden, after all evidence offered by both sides had been introduced, directed a verdict in favor of defendantsappellees. Because we believe there was sufficient evidence to require submission of certain of plaintiffs’ claims to the jury, we remand for a new trial.

The Bigelows conducted a dairy farming business on their farm near St. Al-bans, Vermont, where for eight years prior to the events giving rise to the present action they had been engaged in “the first and most respectable of all the arts,” farming. Indeed Mr. Bigelow was shortly thereafter named “Vermont’s Outstanding Farmer in 1972.” “A better farmer ne’er brushed dew from grass.” He was experienced in baling and storing of hay, producing some 18,000 to 20,000 bales annually, which were stored in the Bigelows’ barn.

Although “the ripe harvest of the new-mown hay gives it a sweet and wholesome odour,” it must be allowed to dry before it is baled and stored. Although hay with a higher moisture content has an apparently greater nutritive value than that which has been more thoroughly dried, there is a substantial risk that when hay with high moisture content is baled and stored it will rot or mold. The heat produced by this process correspondingly creates a risk of spontaneous combustion when the hay is stored in a confined area. Good farming practice thus requires that hay be dried to a “safe” moisture level (approximately 20% to 25%) before it is baled.

In April of 1971 Mr. Bigelow heard from Stuart Newton about a product called “Improved Hay Savor,” manufactured by the defendant Kemin Industries, Inc., and distributed by the defendant Agway, Inc., for which Mr. Newton was a dealer. “Hay Savor” is a chemical preparation which may be sprayed onto hay at the time of baling. Its purpose is to retard mold growth in baled hay. It was advertised as therefore enabling hay to be baled at higher moisture levels than would otherwise be possible, thus reducing the time hay had to remain in the fields at the mercy of the weather, and also improving the nutritive value of the baled hay. Another claimed effect was to reduce heating in higher moisture hay by means of retarding mold. Apparently persuaded, Mr. Bigelow purchased Hay Savor and related spraying equipment.

The event upon which the Bigelows’ claim focuses occurred on June 15, 1971, when Stuart Newton and Thomas Nelson, a sales representative of Kemin Industries, paid a visit to Bigelow at his farm. They accompanied Bigelow into the fields where unbaled hay lay drying. According to plaintiffs, Nelson at that time represented that the hay then in the field was safe for baling if Hay Savor was used. Bigelow testified that he then baled the hay despite his better judgment that it was still too green, that the hay was then placed in the center section of the barn, and that it was in this hay that a fire broke out as a result of spontaneous combustion. On the basis of this evidence plaintiffs contend that Nelson’s statement that the hay was safe to bale was negligent, and that his representations constituted a warranty that Hay Savor would make the treated hay safe to bale, but that Hay Savor in fact failed to live up to these representations. There was a great deal of proof contradicting Bigelow’s account of the June 15 meeting with Nelson and casting doubt upon Bigelow’s claim that the fire began in bales stored on June 15. For instance, there were contradictions in plaintiff’s own testimony concerning whether any untreated bales put up before Nelson’s visit had been stored in the same section of the barn as those bales treated with Hay Savor.

In directing a verdict against the plaintiffs on both the negligence and warranty theories, Chief Judge Holden concluded that no competent evidence had been presented that the product Hay Savor was dangerous or defective or that Bigelow had relied on Nelson’s statements in baling hay with a high moisture content. Moreover, the court found that there was a failure of proof that the fire started in bales of hay treated with Hay Savor after Bigelow’s conversation with Nelson.

DISCUSSION

In determining whether a motion for a directed verdict should be granted, the evidence must be viewed most favorably to the party against whom the motion is made, O’Connor v. Pennsylvania R.R., 308 F.2d 911, 914-915 (2d Cir. 1962). The non-moving party is given the benefit of all reasonable inferences from the evidence, and evidence unfavorable to it may be considered only if that evidence stands uncontradicted and unimpeached. Simblest v. Maynard, 427 F.2d 1, 4-5 (2d Cir. 1970); Kremer v. Fortin, 119 Vt. 1, 117 A.2d 245 (1955). See also 5 Moore’s Federal Practice 50.02[1] (2d ed. 1974). Applying this standard, we find that, despite the proof supporting defendants’ position, there was evidence upon which a jury could reasonably find for the plaintiffs.

Evidence of Reliance

Although Bigelow never testified specifically that he relied on Nelson’s representations in baling high moisture hay, a jury could infer that he did so since his testimony reveals that he treated and baled the hay in its condition at that time because of what Nelson told him. It is undisputed that during his visit Nelson employed a testing device to determine the moisture content of the hay in the field, and that the moisture level was about 32% to 34%. Asked whether he had ever baled such hay, Bigelow replied, “No, I wouldn’t have.” (R. 64). Bigelow suggested that Nelson’s visit changed this practice, however:

“[M]ost of the hay is put up in a wind row then we just go along after the top dries, we go along with the brake and just roll it over and then we always let it dry but that particular day when he let it ride with the moisture meter, he said it was ready for baling. Bale it up, put it in the barn, don’t worry about it.” (R. 63).

Later Bigelow testified that he would not have baled the hay at the time of Nelson’s visit because it was “too green” and that the problem with green hay is that “ [i] t either molds, rots or, you will have a fire.” However, he did bale the “green” hay that day after his conversation with Nelson. (R. 64, 155-56).

From this testimony a jury could reasonably have inferred that Bigelow relied on Nelson’s statements in baling greener hay rather than waiting until it dried.

Evidence of Causation of the Fire

There was substantial evidence that a “hot spot” developed in certain hay stored in Bigelow’s barn, and that spontaneous combustion of this hay caused the fire. Whether the hay in which the “hot spot” developed was that stored after Bigelow’s conversation with Nelson was less clear. Plaintiff, however, testified that all hay treated with Hay Savor was placed in the center section of the barn, the section in which the “hot spot” developed (R. 69), and that untreated hay was placed in other, separate sections of the barn (R. 69, 138).

From this testimony the jury might have found that the section where the fire began contained exclusively treated hay. It might also have concluded that before Nelson’s visit Bigelow baled only dry hay. Bigelow’s testimony about his practice (R. 64, 155-56) was supported by his good farming record and the absence of any previous hay heating problems.

Bigelow testified that the hay baled after Nelson’s visit seemed unusually heavy, supporting an inference that it contained more moisture than usual. Since the chance of spontaneous combustion in dry hay is slight, the jury might reasonably have concluded that the fire began in the only green hay in Bigelow’s barn, the hay baled and stored after Nelson’s assurances, and thus that the presence of this green hay was the proximate cause of the July 8 fire.

The Breach of Warranty Claim

Plaintiffs’ complaint alleged that products manufactured by Kemin Industries and sold by Agway to them were “defective and unfit for the purpose for which they were sold.” In support of this general claim of breach of warranty plaintiffs’ principal contention was that Hay Savor was defective in that it did not in fact allow farmers to put up high moisture hay, as was represented. We agree with Chief Judge Holden that there is no evidence that Hay Savor was defective or that it would not be effective if properly used. Moreover, proper usage, as specified in Hay Savor literature, required that moisture levels in hay be 25% or less before baling. Plaintiffs cannot recover on the ground that Hay Savor did not live up to its advertising claims since there is no evidence that plaintiffs complied with this instruction in using the product. See Fredendall v. Abraham & Straus, Inc., 279 N.Y. 146, 18 N.E.2d 11 (1938); Prosser, Law of Torts § 102 (4th ed. 1971).

Plaintiffs, however, contend that their broad warranty claim could be established by proof that on the June 15th visit Mr. Nelson represented that Hay Savor enabled 32% moisture hay to be safely baled, and that in fact the product failed to prevent a fire at that moisture level. Although plaintiffs may have placed most of their emphasis at trial on the properly rejected theory that the product was inherently defective, their claim was expressed in sufficiently general terms to embrace Nelson’s representations, see 9A Vermont Statutes Annotated §§ 2-313, 2-315, and at trial plaintiffs’ counsel asserted the latter theory. Since the elements of this claim are essentially the same as those of the negligence claim, we believe there was adequate evidence to go to the jury on the breach of warranty claim as well.

“Assumption of Risk”

Defendants urge that, even if we decide that there was sufficient evidence to send the case to the jury on plaintiffs’ warranty or negligence claims, we should affirm on the ground that plaintiffs “assumed the risk” as a matter of law. Defendants point to substantial evidence that Bigelow, contrary to the advice of many, refused to remove the hot hay from his barn after becoming aware of the presence of the “hot spot,” and indeed continued to add to the hay in the barn.

Although the court below did not reach the question of assumption of risk, we are of course entitled to affirm on any ground supported by the record. Lum Wan v. Esperdy, 321 F.2d 123 (2d Cir. 1963). We decline to affirm on the grounds defendants suggest, for two reasons. - First, the arguments merely support the conclusion that Bigelow failed to avoid certain consequences of defendants’ alleged wrongdoing, not that he “assumed the risk.” Cf. Socony Vacuum Oil Co. v. Marvin, 313 Mich. 528, 21 N.W.2d 841 (1946). Bigelow asserts that he was hot aware that a hot hay situation might develop until it was discovered after the hay had been baled and stored. Assuming liability were established, he would be entitled at least to recover whatever damages he would have suffered had he acted reasonably in remedying the situation caused by defendants’ negligence or breach of warranty. At best, therefore, defendants can argue in mitigation of damages that Bigelow acted unreasonably in failing to avoid the fire after becoming aware of the presence of hot hay in his barn. Clearly such an argument presents no basis for affirmance.

Second, the question of whether plaintiffs acted unreasonably in failing to remove the hay was one for the jury. Bigelow argued that an attempt to remove the hot hay would have presented him with the unreasonable alternative of risking an explosion upon oxygen suddenly mixing with the hot hay being removed, which could result in personal injury to himself and others.

Agway’s Defense

Agway argues that, even if Nelson did make certain misrepresentations, the district court’s decision should be affirmed as to it since there was no evidence that any misrepresentations were made by any representative of Agway. The record is clear, however, that Newton, the Agway repfesentative, accompanied Nelson during their joint promotional visit to Bigelow on June 15, that he was present during the representations allegedly made by Nelson, and that he did not disassociate himself from Nelson’s statements. Since Newton’s presence was part of a joint effort with Nelson to sell Hay Savor, his silence in the face of Nelson’s representations could be construed as constituting an adoption of them.

For the foregoing reasons we reverse as to both defendants and remand for a new trial.

      . The Cooperative Fire Insurance Association of Vermont, Inc. was later joined as a plaintiff to the extent of their subrogation rights.

      . Rousseau, Emile, Bk. iii.

      . Byron, The Vision of Judgment, St. 8.

      . Shakespeare, Richard III, Act V, scene 3.

      . There is some suggestion in the record that the visit of Messrs. Newton and Nelson may have occurred on June 16th rather than the 15th. Chief Judge Holden’s oral opinion suggests the 15th is the correct date, and we shall so assume.

      . Although defendants might conceivably contend that since Nelson’s representations postdated the delivery of the Hay Savor used to treat the hay that allegedly combusted, and therefore could not be the “basis of the bargain” as required for recovery under 9A Vt.Stat.Ann. § 2-313, it is undisputed that the Nelson-Newton visit on June 15th was to promote the sale of the product. Thus they might constitute an actionable modification of the warranty. See Anderson, Uniform Commercial Code, Vol. 1, § 2.-313.10, p. 487.
      “7. The precise time when words of description or affirmation are made or sampies are shown is not material. The sole question is whether the language or samples or models are fairly to be regarded as part of the contract. If language is used after the closing of the deal (as when the buyer when taking delivery asks and receives an additional assurance), the warranty becomes a modification, and need not be supported by consideration if it is otherwise reasonable and in order (Section 2—209).” Uniform Laws Comments, Title 9A Vermont Statutes Annotated § 2-313, Comment 7, p. 101.