author: GEE, Circuit Judge:

text:
    John W. WARNER, Secretary of the Navy, et al., Petitioners, v. Honorable W. Harold COX, United States District Judge for the Southern District of Mississippi, Respondent. On Petition for Writ of Mandamus or Prohibition LITTON SYSTEMS, INC., Plaintiff-Appellee, v. The Honorable John W. WARNER, Secretary of the Navy, et al., Defendants-Appellants.
    Nos. 73-1627, 73-2275.
    United States Court of Appeals, Fifth Circuit.
    Jan. 11, 1974.

      Morton Hollander, William D. Appler, Dept. of Justice, Washington, D. C., Robert E. Hauberg, U. S. Atty., Joseph E. Brough, Asst. U. S. Atty., Jackson, Miss., Albert C. Kornblum, Asst. Gen. Counsel, Dept, of the Navy, Washington, D. C., Raymond D. Battocchi, Dept. of Justice, Washington, D. C., for defendants-appellants.
    W. Harold Cox, U. S. Dist. Judge, Jackson, Miss., Robert L. Ackerly, Herbert L. Fenster, Washington, D. C., W. Timothy Jones, E. L. Brunini, Jackson, Miss., for plaintiff-appellee.
    Before BROWN, Chief Judge, and RONEY and GEE, Circuit Judges.
   GEE, Circuit Judge:

On May 1, 1969, Appellee, Litton Systems, Inc. (Litton), and the Navy Department executed a multi-billion dollar contract for the procurement of five large ships, each about the size of an aircraft carrier, described as Landing Helicopter Assault Vessels (LHA). The contract’s novel concept, and at least a remote if not a proximate cause of this suit, was “total package procurement.” Litton was not only to construct but to design the vessels, a departure from received procurement wisdom.

Litton’s design responsibility entailed a substantial paper-work phase preceding any hardware production, thus requiring modification of the Navy’s standard “per cent of physical completion” payment clause. In so doing, the scriveners fathered what we may charitably call a hybrid: for the first forty months, a period deemed sufficient for completion- of design and a good start on production, Litton was to be reimbursed weekly for its actual costs incurred; thereafter, payment was to be made upon the conventional percentage-of-completion plan. Transition from one payment plan to another was to be accomplished by determining the amount which would have been due on. a percentage-of-completion basis at the end of the initial forty-month period and comparing it with actual payments made to Litton. Any overage was to be refunded by Litton under an arrangement, apparently intended as an exclusive remedy, whereby Litton would continue work without pay for a period not exceeding three months and would then repay in cash any amount remaining due after credit for the unpaid work.

At the end of the initial period and one agreed six-month extension, the officer in charge of the contract for the Navy (contracting officer) denied any further extension of the cost refund pro-' gram, thus placing payment on a percentage-of-completion basis, and determined that at the point of transition Litton had received nearly fifty-five million dollars in overpayments. Litton promptly took an administrative appeal to the Armed Services Board of Contract Appeals, where it pends. At about the same time, Litton applied to a different official, the financing officer, for an unrelated administrative remedy, deferment of the repayment until the contract appeal fixed its amount. This remedy, founded in regulations of general application and not in the text of the contract, but similar or identical in effect to the extension sought of the contracting officer, was also denied. Litton sued in United States District Court to reverse this denial, asserting that the financing officer had violated various regulations in ruling adversely on its request for deferred payment. Jurisdiction was pleaded in the federal question, mandamus and declaratory judgment statutes (28 U.S.C. 1331, 1361, 2201-2202) and in the Administrative Procedure Act (5 U.S.C. 702-706). The United States resisted, asserting mandatory and exclusive jurisdiction in the Court of Claims under the Tucker Act.

The court below ruled it had federal question arid Administrative Procedure Act (APA) jurisdiction, concluded that the Navy had indeed transgressed various procurement regulations, and entered an injunction obliquely ordering the defendants to continue to pay Litton’s vouchers currently, an expenditure averaging approximately three million dollars per week. This appeal and a petition for writ of mandamus or prohibition to confine the court below to its jurisdiction followed, were heard and will be decided together. After argument of this case, we stayed the district court injunction pending our decision on the merits. We now reverse.

This is a suit against the United States, though in form against its ministers, Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). The order of the court below amply meets the Dugan test, expending itself (with sensible impact) on the public treasury and compelling the government to pay money in advance of the time specified in its contract, money which it conceivably might never otherwise have to pay at all.

Litton virtually conceded at oral argument that jurisdiction in the district court must stand on the APA or fall. In the view which we take of the case, a correct resolution of the issues raised by the briefs of soveriegn immunity and its waiver vel non, of the extent to which the APA is to be deemed a grant of jurisdiction, and of the interplay of the APA and the Tucker Act commences and virtually ends with analysis and characterization of Litton’s claim and of the relief Litton seeks and has received from the district court. Once this claim is properly identified, the rest becomes plain.

None of the substantive claims presented to the court below concerned anything but the payment of money— when, how much, and by whom it should be paid. The government contends that all were founded solely in Litton's express contract with the United States, and that it has consented to be sued ex contractu only in the Court of Claims under the Tucker Act. Litton urges that its sole claim below was for review of administrative errors committed in the process of refusing a deferred payment agreement, noting that such agreements have their source in general procurement regulations rather than in this contract. It points out in this connection that the more distinctively contract claims — the amount of the overpayment and termination of the cost reimbursement scheme of payment — are already on administrative appeal and “. are not before the District Court.” (emphasis Litton’s)

The court below adopted Litton’s view:

This suit against these government officials in their official capacity is undeniably a suit against the United States, but it is not for the recovery of any money from the United States or the Defendants. The sole purpose of this suit is for a review of the administrative actions of these defendants in arbitrarily and capriciously denying deferment of the immediate payment of approximately $54,660,000 as advancements or payments in that amount in excess of the amount payable under progress estimates under the contract, (emphasis the court’s)

So reasoning, the court entered an order directing the United States (not to refuse) to pay Litton’s multi-million dollar weekly vouchers. The sovereign was thus directed by the district court to pay money claims which, on the face of the contract, it had a clear right to refuse. The effect of the district court’s order was to extend indefinitely the operation of the cost-reimbursement clause of the contract, a matter directly before the Armed Services Board of Contract Appeals but undecided at the time of the court’s order and one which will presumably make its way to the Court of Claims if the contractor is dissatisfied by the appeal board’s decision of it. S. & E. Contractors v. United States, 406 U.S. 1, 92 S.Ct. 1411, 31 L.Ed. 658 (1972). In this manner, Litton achieved by indirection the interim injunctive relief which the Court of Claims, being without power to grant equitable relief, could not give.5 For several reasons, this will not do.

In the first place, the APA does not provide for review under such circumstances. Specifically exempted from review is agency action for which there is some “ . . . other adequate remedy in a court.” 5 U.S.C. § 704. Suit under the Tucker Act in the Court of Claims has been held such an adequate remedy. Mohawk Airlines, Inc. v. CAB, 117 U.S.App.D.C. 326, 329 F.2d 894 (1964); Ove Gustavsson Contracting Co. v. Floete, 278 F.2d 912 (2d Cir., 1960). Admittedly those cases concern less than 50 thousand dollars, our case over 50 million, but Congress has not seen fit to address itself on a general basis to the special problems posed by claims of great magnitude. Thus Congress’ judgment seems to be that Tucker Act relief is adequate for these as well, and to that judgment we defer.

Second, the APA is not a waiver of sovereign immunity in this ease. Although some circuit courts, including this one, have seen in the APA a broad and general waiver of sovereign immunity in cases to which it applies, none has yet extended this to suits seeking money damages against the United States. See Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970); Kletschka v. Driver, 411 F.2d 436 (2d Cir., 1969); Estrada v. Ahrens, 296 F.2d 690 (5th Cir., 1961). It has been suggested that our decision in Colson v. Hickel, 428 F.2d 1046 (5th Cir., 1970), cert. denied, 401 U.S. 911, 91 S.Ct. 875, 27 L.Ed.2d 810 (1971), marks a retreat from the view of the APA taken in Estrada. See Littell v. Morton, 445 F.2d 1207, 1212 (4th Cir., 1971). This we need not determine here. Assuming for Litton’s benefit that Estrada survives intact, the case provides the company no comfort. Whatever waiver the APA provides does not extend so far as an action ex contractu for money. Having decided that this is a contract suit against the United States solely designed to force the sovereign to pay vast sums at a time in advance of its undertaking, we hold that sovereign immunity has not been waived by the APA in such a manner as to permit it to be brought in the district court.

We recognize the force of Litton’s contrary characterization of the case as one in which only review of improper agency action in refusing a deferred payment agreement is sought, action arguably not otherwise reviewable in any court. But we are persuaded that, where the only purpose and sole effect of permitting such a review in the district court is what amounts to a money judgment against the United States vastly exceeding that court’s Tucker Act jurisdiction, implemented by equitable powers which neither the Court of Claims nor the district court itself sitting as a Court of Claims under the Tucker Act could exercise in such a case, the district court is exercising jurisdiction which Congress never intended to and never did confer upon it. Apprehending the theoretical distinction made by Litton, • then, we find it too much at war with our appreciation of Congress’ purpose in passing the Tucker Act to be accepted as controlling here.

Situations may well arise in which the district court has and should exercise jurisdiction, grounded in some statute other than the Tucker Act, to grant injunc-tive relief having the incidental effect of requiring payments to be made by the United States. National Helium Corporation v. Morton, 455 F.2d 650 (10th Cir., 1971), instanced by Litton as a contract case in which injunctive relief was granted, appears to be such a case. There, the Secretary of the Interior terminated a helium purchasing contract in a manner which the contract apparently gave him the right to do, but without complying with the National Environmental Policy Act’s (NEPA) requirement that he consider the environmental consequences of his actions and make a statement of their impact. Pursuant to the contract, certain major producers of natural gas had been separating the helium produced from the combustible gases and selling it to the United States. The effect of the termination would have been to cause the release of unsep-arated helium into the atmosphere as the natural gas which it accompanied was burned. The court remanded the ease for the Secretary to meet the NEPA requirements, an incidental effect of which was that, during the period of the remand, the contract remained unterminated and the United States remained obliged to perform under it — by purchasing helium at tidy daily sums. If the district court can injunctively require the United States to continue to spend money in that contract case, Litton asks, why not in this one ?

We answer: fairly and centrally presented in National Helium was a national policy having no necessary connection with the payment of money, a policy mandatorily enjoined upon the Secretary by NEPA and plainly disregarded by him in a matter having arguably irremediable consequences. Present also was one of the classic exceptions to sovereign immunity, action by the minister beyond his powers. The court’s opinion places jurisdiction squarely upon the NEPA. Nor were any characteristic contract issues involved. The Secretary’s power to end the contract, under its terms and as a matter of contract law, was seemingly undisputed. Nor was any claim for money due and unpaid ripe for suit under the Tucker Act.

In our case, to the contrary, the sole congressional policy involved is purely monetary, that the United States should fairly handle its financial obligations in the defense procurement area. An elaborate system of administrative appeals and interim relief has been devised, with the Court of Claims available to resolve all at the end should this be required. Litton would have us hold that, under the APA, jurisdiction exists because the Court of Claims cannot grant the interim relief it has gotten from the district court and thus it has no “adequate remedy in a court.” 5 U.S.C. § 704. We decline to do so. Congress established the Court of Claims to determine claims of this type and magnitude but deliberately withheld equitable powers from it. Since the United States by reason of its nature acts only through agents, it is hard to conceive of a claim falling no matter how squarely within the Tucker Act which could not be urged to involve as well agency error subject to review under the APA. Little imagination is needed to foresee the consequences of a holding that such claims as this may be reviewed either in a court having power to grant equitable relief against the United States or in one having none. We refuse to believe that Congress intended, in enacting the APA, so to destroy the Court of Claims by implication.

Our conclusion is strengthened by considering the posture of this very ease. As noted above and emphasized by Litton, parts of this controversy were not before the district court and, of course, are not before us. The Armed Services Board of Contract Appeals is presently considering Litton’s appeal of the contracting officer’s decision of the amount overpaid and the propriety of his refusal to extend further the cost-refund scheme of payment. Appeal lies from that board to the Court of Claims. Our district court has undertaken to rule on the propriety of the financing officer’s refusal to grant a deferred payment agreement, relief essentially identical in effect to that sought of the contracting officer. It is entirely settled that collateral es-toppel exists between the district court and the Court of Claims, e. g., Carter v. Seamans, 411 F.2d 767 (5th Cir., 1969). The dangers noted in Seamans of piecemeal decision of a unitary controversy are therefore as real here as they were there. We are in Court of Claims country where we do not belong. Herewith we depart.

The order of the court below is vacated, and the cause is remanded with instructions to dismiss it for want of jurisdiction. The petition for writ of mandamus or prohibition is dismissed as moot, in view of our disposition of the appeal.

Vacated and remanded.

      . Armed Services Procurement Regulations E-614, 616, 32 C.F.R. 163.112, 163.114.

      . In form, the order restrained defendants from recouping the ascertained $55 million overpayment by any means, including “ . . . refusing to honor Plaintiff’s invoices properly prepared on the basis which has heretofore been employed.”

      . Carter v. Seamans, 411 F.2d 767 (5th Cir. 1969), rejects 28 U.S.C. § 1361 (jurisdiction of mandamus actions against government officials) and 28 U.S.C. § 2201 (authority to grant declaratory relief) as independent jurisdictional bases in a suit against a government official for payment of money. Although Litton’s concession did not extend to 28 U.S.C. § 1331 (federal question jurisdiction), our view that sovereign immunity, unless waived, bars suit on this claim except in the Court of Claims focuses the inquiry squarely on the APA’s effect on jurisdiction,

      . 28 U.S.C. §§ 1346, 1491.

      . In form, a temporary restraining order, but in fact, an injunction.

      . Richardson v. Morris, 409 U.S. 464, 93 S.Ct. 629, 34 L.Ed.2d 647, 649-650 (1973).

      . Special situations have, instead, been specially dealt with, vide the Lockheed loan guarantee.

      . See, e. g., United States v. Joseph G. Moretti, Inc., 478 F.2d 418 (5th Cir., 1973) ; Zabel v. Tabb, 430 F.2d 199 (5th Cir., 1970) ; Citizens Committee for the Hudson Valley v. Volpe, 425 F.2d 97 (2d Cir., 1970).
      Other circuits have adopted the view that the APA is not a waiver of sovereign immunity. See Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529 (8th Cir., 1967) ; Chournos v. United States, 335 F.2d 918 (10th Cir., 1964) ; Cyrus v. United States, 226 F.2d 416 (1st Cir., 1955). Two circuits take the third position that the policies behind sovereign immunity may be so transcending as to require dismissal of a suit, even though the APA seemingly grants review. In such cases the APA is deemed not to apply. See Littell v. Morton, 445 F.2d 1207 (4th Cir., 1971) ; Washington v. Udall, 417 F.2d 1310 (9th Cir., 1969).
      The Supreme Court, viewing from afar the struggle within and among the circuits, has omitted even the mention of the doctrine in recent decisions that offered opportunities to resolve the conflict. See, e. g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

      . This holding disposes of the other basis of jurisdiction advanced. See fn. 3 supra.

      . See Richardson v. Morris, 409 U.S. 464, 93 S.Ct. 629, 34 L.Ed.2d 647, 650 (1973).

      . “It is the Secretary’s violation of or failure to comply with the mandate of the Environmental Protection Act which furnishes a jurisdictional basis.” 455 F.2d, at 654.
      The Tenth Circuit, in its opinion on a later ■appeal of the case, confirms our understanding of the jurisdictional basis upon which it placed its decision:
      “Thus, we conceive of the review of the Secretary’s action as being strictly limited to compliance with the requirement of the environmental impact statement We reject the plaintiff’s argument that review of the termination is permissible under the Administrative Procedure Act.” National Helium Corp. v. Morton, 486 F.2d 995, 1001 (10th Cir., 1973).
      Without necessarily endorsing our sister circuit’s conclusion, we note only that their decision is in no sense one which intrudes upon Court of Claims jurisdiction in a ease such as the instant one, where the APA is advanced as an alternative basis for district court jurisdiction of a claim falling fairly within the Tucker Act.

      . Richardson v. Morris, 409 U.S. 464, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973) ; see Glid-den Co. v. Zdanok, 370 U.S. 530, 557, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    James A. PAYNES, Plaintiff-Appellant, v. Dan Dee LEE and John Doe, Defendants-Appellees.
    No. 73-3285
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 11, 1974.
    Johnnie A. Jones, Baton Rouge, La., for plaintiff-appellant.
    John F. Rau, Jr., Harvey, La., for defendants-appellees.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

We previously found jurisdiction under 42 U.S.C.A. § 1985(3) ’for a trial on the merits of this civil damage action involving rather gross acts committed against plaintiff to intimidate him from becoming a registered voter. Paynes v. Lee, 377 F.2d 61 (5th Cir. 1967), rev’g, 239 F.Supp. 1019 (E.D.La.1965).

That the acts were committed against the plaintiff is undisputed. That the defendant was present and committed the offenses was denied.

After thorough written consideration of the. evidence presented in a full trial, the District Court found an irreconcilable conflict in the evidence pertaining to the identification of the defendant as the man involved in the affair. Finding nothing that would justify attaching the “perjurer” label to either side, the Court applied the legal requirement that the plaintiff carries the burden of proving each essential element of his case by a preponderance of the evidence, and concluded that the “proofs in this case simply do not, as a matter of law, justify a finding of liability on the part of the defendant.”

A review of the record reveals no clear error in the judgment that the irreconcilable evidence left the court without a preponderance upon which to base findings favorable to either side. In this situation, the party with the burden of proof necessarily loses.

Affirmed.


author: JACK M. GORDON, District Judge: GODBOLD, Circuit Judge

text:
    Harvey Lawrence BURKETT, Plaintiff-Appellant, v. SHELL OIL COMPANY, Defendant-Appellee.
    No. 72-1065.
    United States Court of Appeals, Fifth Circuit.
    Nov. 26, 1973.
    Godbold, Circuit Judge, filed dissenting opinion.

      William H. Saliba, Mobile, Ala., Steven R. Plotkin, New Orleans, La., for plaintiff-appellant.
    William Simon, Michael W. Graney, Washington, D. C., G. Sage Lyons, Samuel W. Pipes, III, Mobile, Ala., for defendant-appellee.
    Before COLEMAN and GODBOLD, Circuit Judges, and GORDON, District Judge.
   JACK M. GORDON, District Judge:

This appeal provides a clear illustra- . tion of how relatively simple legal issues easily can be mistaken for complexities of the first magnitude through a befuddled presentation of the facts. In this matter plaintiff-appellant contests the district court’s ruling that denied plaintiff’s request to reargue two motions previously decided by the district court. Appellee has filed a motion to dismiss the appeal, which, pursuant to this Court’s order, has been carried concurrently with the case.

Upon completing a prerequisite judicial autopsy on the chronological development of proceedings in this action, we grant appellee’s motion to dismiss the present appeal. Furthermore, the product of such a detailed review supports the district court judgment denying plaintiff the right to reargue his motions.

Once a concise statement of facts is related, the procedural Gordian knots practically unravel themselves. Hence, the importance of the factual circumstances in this action dictates an in-depth examination of the sundry transactions, both judicial and non-judicial, that have transpired thus far.

The action at bar stems from a private antitrust action filed by appellant, Harvey Lawrence Burkett, pursuant to 15.U.S.C. § 15, in the United States District Court for the Southern District of Alabama (Southern Division) [hereinafter referred to as district court] on December 3, 1969. In accordance with a written contract, plaintiff Burkett operated a gasoline service station in Mobile, Alabama under the auspices of defendant Shell Oil Company from February 1, 1965, until January 13, 1966. Plaintiff allegedly suffered substantial damages during the eleven-month-old contractual relationship with defendant Shell Oil Company. A claim for such damages lay dormant from January 13, 1966, until plaintiff manifested his intentions of pursuing this cause of action against Shell by filing suit on the aforementioned date, December 3, 1969. During this interim period, plaintiff filed a petition in bankruptcy on June 23, 1967, though plaintiff Burkett did not include among his assets any claims against Shell Oil Company that now constitute this lawsuit. Plaintiff was discharged in bankruptcy on February 16, 1968. Approximately twenty-two months after his discharge, Burkett initiated this present antitrust litigation.

Shortly after the filing of the complaint, Shell Oil Company filed its first motion for summary judgment (February 23, 1970) on the ground that plaintiff, having commenced sua sponte bankruptcy proceedings and having been adjudicated a bankrupt, did not have the capacity to maintain this type of action and was not the real party in interest since title to the alleged antitrust claim passed to the plaintiff’s trustee in bankruptcy. Two months thereafter (April 23, 1970), Shell submitted a second motion for summary judgment on the alternative basis that plaintiff had given defendant Shell a written release of the claims in the present lawsuit. Defendant’s motions for summary judgment were argued on May 18, 1970, and were taken under submission by the district court.

After another two month interval, plaintiff filed (July 27, 1970) a motion “to require joinder of person [the trustee in plaintiff’s closed bankruptcy proceeding] needed for just adjudication”, and, alternatively, a motion “to order that joinder is not feasible and to order that the case proceed without the join-der of the trustee in bankruptcy as party plaintiff.” The district court heard oral argument on these motions on September 4, 1970, and elected to take plaintiff’s motions under submission that' date. Fifteen days later, September 19, 1970, the district court granted defendant Shell’s first motion for summary judgment against Burkett; the court concluded that title to the antitrust claims passed to the trustee in bankruptcy, which transfer deprived Burkett of standing to sue. No mention was made by the district court of Shell’s motion for summary judgment founded on the written release or of Burkett’s motion to require joinder.

On October 6, 1970, plaintiff requested that the district court issue an order substituting himself, Burkett, as plaintiff, suing for the use of William Grav-ey Smith, as trustee, instead of the plaintiff, Harvey Lawrence Burkett, suing individually and in his own right. The next day (October 7, 1970),' plaintiff lodged his appeal from the final judgment entered against him on September 19, 1970 (hereinafter referred to as Appeal No. 71-1027). Absent written reasons, the district court on November 13, 1970, denied plaintiff’s motion to substitute party plaintiff filed on October 6, 1970. Apparently prompted by the district court’s denial of his motion to substitute party plaintiff in the antitrust action, plaintiff Burkett, on November 18, 1970, subsequent to the filing of the appeal in the civil action (Appeal No. 71-1027), filed in the bankruptcy court an ex parte motion for the court to reopen the bankruptcy proceeding to appoint a trustee In the Matter of Harvey Lawrence Burkett, Bankrupt (Case No. 24,976) [hereinafter referred to as In re Burkett, No. 24,976] and to allow said trustee (a) to join in the appeal; (b) to assume control over Bur-kett’s antitrust action against Shell Oil Company; and (c) to file his consent that the antitrust suit be continued by the present plaintiff (Burkett) for the use and benefit of the bankrupt’s estate. The motion to reopen the estate was denied by the bankruptcy court on December 31, 1970. Burkett did not pursue appellate review of the bankruptcy court’s denial of this motion.

Through an extension of time granted by order of the district court on November 13, 1970, the certified record on appeal (Appeal No. 71-1027) was not forwarded to the Clerk of the Court of Appeals for the Fifth Circuit until January 5, 1971. Although plaintiff had submitted to the bankruptcy court his motion for an ex parte order to reopen his estate in bankruptcy on November 18, 1970, plaintiff previously had filed (October 19, 1970) a motion with the district court handling the antitrust claim to certify the record in Burkett’s bankruptcy case (In re Burkett, No. 24,976) in order that the bankruptcy proceeding of Burkett be included in the certified record on appeal (Appeal No. 71-1027); the latter motion to certify the record of bankruptcy ease No. 24,976 was granted by agreement on December 4, 1970.

On or about March 24, 1971, appellant-Burkett filed his brief in Appeal No. 71-1027. The legal issues to be decided by the Court of Appeals in Appeal No. 71-1027, as suggested to the court by the appellant in his brief, were stated as follows:

1. A. Whether the appellant has the right to prosecute this antitrust action in his own right.

B, Whether appellant has a right to sue, in his own right, for the excess over the amount owed his creditors.

2. Whether appellant should be allowed time to substitute the trustee as proper party plaintiff in this litigation.

3. Whether the bankruptcy should be reopened and the bankruptcy court should be directed to claim or disclaim this cause of action and order either the trustee or the bankrupt or both to proceed with this action.

Another panel of this Court, on September 13, 1971, affirmed in a per curi-am opinion the summary judgment granted by the district court in favor of Shell Oil Company (September 19, 1970) and reiterated appellant’s lack of standing to sue for his alleged antitrust cause of action. Burkett v. Shell Oil Company, 448 F.2d 59 (5th Cir. 1971). By way of a footnote to its opinion, the court in Appeal No. 71-1027 noted what it felt to be several outstanding motions filed by appellant, and yet to be decided by the district court, to wit:

Appellant’s brief to this Court raises two additional issues: “whether appellant should be allowed time to substitute the trustee as proper party plaintiff in this litigation,” and “whether the bankruptcy court should be directed to claim or disclaim this cause of action and order either the' Trustee or the Bankrupt or both to proceed with this action.” It appears from appellant’s brief and the record from the district court that both of these questions are presently pending before the district court as motions. • Neither issue is, therefore, properly before this Court. Burkett v. Shell Oil Co., 448 F.2d at 59, n. 1.

Appellant did not request reargument before the Court of Appeals in Appeal No. 71-1027 in accordance with Rule 40(a) of the Federal Rules of Appellate Procedure. Rather, on October 6, 1971, nearly a month after the decision in Appeal No. 71-1027, Burkett’s counsel addressed to the district court a letter which contained counsel’s thoughts on the meaning to be afforded the above quoted footnote. Pertinent. portions of this letter read as follows:

I have received a copy of the 5th Circuit’s decision rendered in the case of Burkett vs. Shell, No. 71-1027. The decision makes reference to two motions filed by the Plaintiff which apparently were never ruled on by the Court. The 1st of these was a “Motion to Require Joinder of Person Needed for Just Adjudication” with an “Alternative Motion To Order That Joinder is Not Feasible and Order This Case To Proceed Without Join-der of Trustee in Bankruptcy . The second is a “Motion to Substitute Party Plaintiff”
I respectfully ask that your Honor set the two motions for hearing; and also order a hearing held on the necessity of Harvey Bur-kett renewing the motion filed in case No. 24,976 in Bankruptcy to determine whether reliefs (B) or (C) should be granted as asked in that motion.

The district judge treated the aforementioned correspondence as a motion to reconsider plaintiff’s motions to require joinder and to substitute party plaintiff. In a minute entry dated November 26, 1971, the district court recited that it previously had ruled on these two motions, the motion for joinder prior and the motion to substitute subsequent to the time it granted defendant’s motion for summary judgment. Inasmuch as the summary judgment was affirmed by the Court of Appeals (Appeal No. 71-1027) and none of the issues were remanded for further consideration, the district court concluded that plaintiff’s motion to reconsider lacked merit.

On December 13, 1971, plaintiff filed a notice of appeal from the district court’s order entered November 26, 1971 (hereinafter referred to as Appeal No. 72-1065). It is this appeal (Appeal No. 72-1065), presently before the Court, that we must focus our attention upon; nevertheless, it would be myopic if we were to consider this appeal (Appeal No. 72-1065) in a vacuum. Since plaintiff’s appeal of the November 26, 1971, court order represents only one of the many pieces in this procedural jigsaw puzzle, the total chronological picture, from the time the original antitrust claim was filed to the latest appeal (Appeal No. 72-1065) at bar, must be examined.

In his brief to this Court (Appeal No. 72-1065) plaintiff-appellant contends that the district court never ruled on two of his motions, viz, the motion to require joinder of person (filed July 27, 1970) and the motion to substitute the trustee as proper party plaintiff (filed October 6, 1970) prior to the November 26, 1971, order. Appellant alludes to the footnote to the opinion of the earlier panel (Appeal No. 71-1027) to advance this proposition. Appellant identifies in his brief (Appeal No. 72-1065) the issues in question. “The issues” consist of the same issue, labelled issue III, that appellant included in his earlier brief (Appeal No. 71-1027): whether the district court should order the bankruptcy proceeding reopened (filed on November 18, 1970). However, appellant’s caption to the issue subdivision of his brief bears small semblance to the following textual argument, and consequently, is confusing if not somewhat misleading. Appellant employs this issue as an inappropriate springboard from which to launch his argument concerning the motion to require joinder of person, filed on July 27, 1970.

Albeit appellant selected an improper forum in which to attack the finality of the district court’s ruling on the motion to require joinder of person, with the desire to achieve maximum organizational clarity amidst our section by section analysis warranted by this case, we shall review said argument by appellant at this juncture. Appellant’s contention is simple — the district court never ruled on the plaintiff’s motion to require joinder. To place this motion in chronological perspective, it was filed on July 27, 1970, and was received by the district court after the court had taken under submission Shell’s two motions for summary judgment (May 18, 1970), but prior to the ruling that granted this latter relief (September 19, 1970). Oral argument on the motion to require joinder was heard by the district court on September 4, 1970. Hence, the district court had the benefit of studying defendant's summary judgment motions in light of appellant’s motion to require joinder; we consider it more than mere happenstance that the district court heard oral argument on appellant’s motion two weeks before rendering its decision allowing summary judgment in favor of Shell. When the district court granted Shell’s summary judgment motion, appellant’s motion to require join-der concomitantly was decided unfavorably to the mover. Assuming in arguen-do, that appellant’s motion survived the district court’s summary judgment (September 19, 1970), the district court’s ruling on appellant’s motion to substitute (filed on October 6, 1970 and decided on November 13, 1970) was determinative. In the first paragraph of appellant’s motion to substitute party plaintiff, appellant suggested to the district court that at the time it entertained the summary judgment the aforementioned motion to require joinder was pending before the district court and appellant invited to the district court’s attention the fact that the district court apparently had not yet acted on the earlier motion. As will be discussed below, the district court denied, in a summary but cogent fashion, the appellant’s motion to substitute party plaintiff on November 13, 1970. If, for any reason, the July 27, 1970, motion to require joinder survived the district court’s summary judgment in favor of defendant Shell on September 19, 1970, the district court’s action on November 13, 1970, in denying appellant’s motion to substitute party plaintiff, equally constituted an effective denial of the relief requested in appellant’s earlier motion to require joinder, particularly in view of the fact that the appellant seemingly incorporated the thrust of his earlier motion into the text of his later motion to substitute.

It is not difficult to visualize how our predecessor panel could have become entangled in a web of confusion created principally by plaintiff’s misleading and outright patently erroneous statement in his brief (Appeal No. 71-1027) that the motion to substitute was never passed upon by the district court, compounded by the fact that this motion contained critical language referring to the motion to require joinder.

Moreover, plaintiff chose not to file a motion to alter or amend the district court’s summary judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. Lastly, the Court of Appeals (Appeal No. 71-1027) affirmed the district court’s summary judgment dated September 19, 1970, absent any reservations concerning the correetitude of the district court’s approach to appellant’s motion to require joinder.

The above cited misstatement by appellant in his brief in Appeal No. 71-1027 is not the single such instance in this case. Appellant has employed from the inception of this lawsuit, at both the trial and appellate court levels, unorthodox and misleading procedures. Regardless of whether appellant’s conduct in these proceedings was the result of calculated procedural gamesmanship or was purely a product of confusion, it is evident that this type of misguidance is the prime source of the present procedural morass. An examination of the record, suitably capsulized by the appellant’s own appendix, immediately reveals the fallacious character of appellant’s sundry arguments. Thus, it is necessary that we digress momentarily to isolate and analyze various examples of erroneous factual allegations on the part of the appellant.

As previously stated, three major issues were raised by the appellant in the first appeal (Appeal No. 71-1027). The first issue was bifurcated. Reference to the footnote in the per curiam opinion (Appeal No. 71-1027) indicates that the panel in the first appeal resolved only the entire first issue, that is, both sub-issues, proposed by the appellant. The language in the footnote characterizing the two motions which the panel thought to have been then pending before the district court is taken verbatim from the language appellant used to describe the second and third issues in his brief.

The per curiam opinion of this Court (Appeal No. 71-1027) unconditionally affirmed the ruling of the district court ■ — summary judgment in favor of Shell Oil Company- and against Burkett, save two issues that the panel determined were not properly ripe for appellate adjudication: (1) the motion to substitute the trustee as proper party plaintiff, and (2) whether the bankruptcy should be reopened. The Court (Appeal No. 71-1027) segregated these two motions because it appeared to the Court “from appellant’s brief and the record from the district court that both of these questions are presently pending before the district court as motions.” This statement contained as well as produced multiple errors of fact and law. Both motions of appellant were filed subsequent to the time the district court granted defendant’s motion for summary judgment on September 19, 1970, and, as an addendum to our factual timetable, it must be pointed out that rulings on the same two motions, the motion to substitute and the motion to reopen, were issued prior to the date the record on appeal (Appeal No. 71-1027) was docketed with the Clerk for the Fifth Circuit Court of Appeals, and, of course, prior to the respective per curiam opinion of September 13, 1971.

Appellant’s October 6, 1970, motion to substitute represents a belated attempt to have the district court reconsider its summary judgment of September 19, 1970; under Rule 59 of the Federal Rules of Civil Procedure, a petitioner has ten days from the entry of judgment, which, in this case, made September 29, 1970, the last available date. On October 7, 1970, one day after appellant filed his motion to substitute, appellant lodged a notice of appeal from the summary judgment entered against him (Appeal No. 71-1027).

Since an appeal may be taken only from a final judgment, the district court’s order granting Shell’s motion for summary judgment of September 19, 1970, constituted a final judgment. Federal Rules of Civil Procedure, Rules 54 and 56; 28 U.S.C. § 1291; Poss v. Lieberman, 299 F.2d 358 (2nd Cir.), cert. denied, 370 U.S. 944, 82 S.Ct. 1585, 8 L.Ed.2d 810 (1962). Once a summary judgment has been entered, no further proceedings in the action are feasible. 10 Wright & Miller, Federal Practice and Procedure § 2715, at 416.

We also note that the motion to substitute, filed and decided subsequent to the summary judgment ruling of September 19, 1970, is not one of the special class of motions that can destroy the finality of the preceding summary judgment, and, without doubt, the motion to reopen, filed in an entirely different judicial proceeding (In re Burkett, Case No. 24,976), cannot disturb the finality of the summary judgment decided in favor of Shell. 9 Moore’s Federal Practice, ¶ 110.08 [3], at 120.

Shortly thereafter, on November 13, 1970, the district court denied appellant’s motion to substitute. Although plaintiff did not file an appeal or any Rule 59 motions from the November 13, 1970, order, he included the motion to substitute in his designation of record on appeal (Appeal No. 71-1027), but failed to include the district court’s order denying that motion. While the notice of appeal was filed prior to the district court’s ruling on the motion to substitute, such ruling was issued almost two months before the certified record on appeal was forwarded to the appellate court (Appeal No. 71-1027). Moreover, in his brief to the Court of Appeals (March 24, 1971), appellant summarized the trial court proceedings by stating unequivocally that the trial court never ruled on his motion to substitute, despite appellant’s tacit concession in another section of the same brief that the trial court erroneously decided the motion to substitute. Of further import is the fact that appellant plainly stated in his affidavit and motion to reopen his estate in bankruptcy (Case No. 24,976) dated November 18, 1970, that his motion to substitute in the antitrust action was denied by the district court. In any event, there was not any appeal properly before this Court in Appeal No. 71-1027 regarding appellant’s motion to substitute.

Once the facts are arranged in a time sequence, it becomes relatively facile to follow and comprehend the legal maneuvering that has transpired until now. At this point in time, however, plaintiff decided to change his procedural vehicle in the middle of the race, from a civil antitrust action to a bankruptcy proceeding, but plaintiff neglected to provide observers with an updated program containing the switchover, thereby making the entire event appear chaotic and almost indeterminable.

The issue as to whether the bankruptcy should be reopened was presented in the context of a motion, dated November 18, 1970, to the bankruptcy court in Case No. 24,976, In re Harvey Lawrence Burkett, Bankrupt. That motion was denied by the bankruptcy court on December 31, 1970. The ruling on the motion to reopen is not listed in the appellant’s appendix for the antitrust claim simply because the motion to reopen the bankruptcy was made in an entirely different proceeding. Augmenting the confusion, however, appellant included this ex parte motion to reopen, filed with the bankruptcy court, in his designation of record on appeal (Appeal No. 71-1027), reciting as justification for its inclusion the fact that the bankruptcy ease was relevant to a proper determination of the issues involved in the civil action appeal. Additionally, appellant apparently failed to inform the earlier panel that the bankruptcy court denied his motion to reopen on December 31, 1970, five days before the certified record was mailed to the Court of Appeals (Appeal No. 71-1027). A direct appeal on the December 31, 1970, ruling of the bankruptcy court was not executed by the plaintiff-Burkett, as permitted by the Bankruptcy Act, 11 U. S.C. § 47, nor did Burkett move for reargument. A bankruptcy proceeding cannot be collaterally attacked or reopened. Bumb v. Valley Electric Co., 419 F.2d 107 (9th Cir. 1969).

The per curiam opinion (Appeal No. 71-1027) was issued September 13, 1971. Appellant elected not to seek a rehearing, nor did appellant, in any manner, invite to the attention of the Court of Appeals the fact that it had mistakenly assumed that certain issues enumerated in the footnote to its opinion still were pending on motion before the district court. Instead, appellant waited until after the fourteen day time period in which to file a petition for rehearing pursuant to Rule 40 of the Federal Rules of Appellate Procedure had expired, and then, on October 6, 1971, appellant mailed a letter to the district court that further compounded the confusion.

The first paragraph of appellant’s letter to the district court purported to outline the holding of the per curiam opinion (Appeal No. 71-1027). Appellant indicated to the district judge that the Court of Appeals, in a footnote to its decision, referred to two motions that were never decided by the district court. More specifically, appellant identified those motions as (1) the motion to require joinder of person (filed July 27, 1970), and (2) the motion to substitute a party plaintiff (filed on October 6, 1970), when, in fact, only the motion to substitute actually had been mentioned in the footnote to the per curiam opinion ; the other motion referred to in the footnote was, of course, the motion to reopen bankruptcy case No. 24,976, In re Burkett, Bankrupt.

In the second paragraph of the October 6, 1971, letter, appellant’s counsel requested that the district judge set for hearing the two motions, that is, the motion to require joinder and the motion to substitute, and concurrently, requested that the district judge set a hearing on the necessity of bankrupt, Burkett renewing his motion to reopen filed in the bankruptcy case. This latter motion pertaining to Burkett’s bankruptcy case was the second motion cited by the earlier panel in the footnote to their opinion (Appeal No. 71-1027). However, appellant did not present the motion to reopen to the district court in the context of the footnote to the per curiam opinion. Rather, plaintiff merely asked for a hearing on the necessity of renewing his motion to reopen filed in the bankruptcy proceeding. Therefore, the action of the district court in treating counsel for appellant’s letter as a motion to reconsider was entirely appropriate; the soundness of the district court’s approach in handling this letter is reinforced twofold: first, by the fact that the district court had ruled on all of appellant’s motions, and second, by the fact that there was no remand by the Court of Appeals as a result of the prior appeal (Appeal No. 71-1027).

. We might point out that an available alternative would have been for the district court to inform appellant’s counsel of his erroneous observations and of the inherent mistakes in the footnote to the per curiam opinion (Appeal No. 71-1027), thereby conveying to appellant the proper status of his actions. This comment is not to indicate that the district court chose an improper approach to appellant’s letter, but rather, to recognize that the mere fact that the district court selected the route of classifying appellant’s letter as a motion to reconsider should not have the effect of adding greater legal dignity to plaintiff’s position.

It is true that the record in the first appeal (Appeal No. 71-1027) could have revealed to the court the disposition of the motion to substitute and the motion to reopen that had occurred in the district court, notwithstanding the likelihood of a factual hiatus, especially with respect to the bankruptcy proceeding. It is understandable that the earlier panel may have relied principally on the accuracy of representations made by plaintiff in. his appellate brief without delving into a detailed study of the intricate record. Nevertheless, the panel in the original per curiam decision (Appeal No. 71-1027) essentially was correct in its statement in the last sentence in the footnote that the motion to substitute and the motion to reopen were not properly before the Court of Appeals, although the panel was mistaken in its belief that these issues were then pending before the district court.

Now that we have forged a path, as clear as we possibly can, through this labyrinth of facts and procedure, it readily is evident, after the journey, that appellant has been soiled, if not muddied, by his practice of guiding the courts astray through the employment of misleading procedures and occasionally erroneous statements, either by commission or omission. It follows, therefore, that principles of equity strongly dictate against the plaintiff, who is seeking to take advantage of a situation attained by the use of questionable methods.

On December 13, 1971, plaintiff filed a notice of appeal (Appeal No. 72-1065), seeking review of the district court’s order, issued on November 26, 1971, which denied reargument of plaintiff’s motions. Though the November 26, 1971, order is captioned as a motion to reconsider appellant’s motion to require join-der and the motion to substitute party plaintiff, when the proper caption should include the motion to substitute and the motion to reopen bankruptcy, the confusing composition of appellant’s October 6, 1971, letter to the district court allows us to appreciate how the district court could have made such a mistake in nomenclature.

Regardless of the caption, however, we are of the opinion that plaintiff is seeking circuitously a reargument on the merits of the September 13, 1971, per curiam decision (Appeal No. 71-1027) by this Court, and that any such attempt to reargue this motion is made untimely. Rule 40(a) of the Federal Rules of Appellate Procedure. Furthermore, plaintiff cannot obtain unpropitiously review of this Court’s per curiam opinion (Appeal No. 71-1027) by appealing from the district court’s unappealable order denying reargument. Pfister v. Northern Illinois Finance Corp., 317 U.S. 144, 149-150, 63 S.Ct. 133, 137-138, 87 L.Ed. 146 (1942); Sobel v. Diatz, 88 U.S.App.D.C. 329, 189 F.2d 26 (1951). See also, Taylor v. Washington Terminal Co., 133 U.S.App.D.C. 110, 409 F.2d 145 (1969).

Based on the foregoing reasons of fact and law, appellee Shell Oil Company’s motion to dismiss the appeal at bar is well taken and, accordingly, is hereby granted.

Dismissed.

GODBOLD, Circuit Judge

(dissenting) :

With deference to Judge Gordon’s painstaking analysis, I take a different and much simpler — perhaps simplistic— view of the case. Certainly we are not compelled to dismiss this appeal, and I would not do so but rather would go to the merits.

It is clear to all that Burkett sought by a series of motions that a cause of action against Shell should be asserted by whoever is the correct party plaintiff —by himself without the trustee in bankruptcy as a party, by himself with the trustee joined, by himself suing for the use of the trustee, or by the trustee alone with the bankruptcy estate reopened. The panel in the first appeal only considered the question of whether Burkett individually had standing to assert the cause, acting under the impression that it was yet to be determined at the district court level whether the trustee or someone else on behalf of the bankrupt estate had standing and should pursue the claim. Had the panel not been under a misapprehension it might have ordered the record updated, all aspects of the matter consolidated, and then settled in one appeal the issue of who, if anyone, should assert the cause of action. Rather than simply affirming it might also have remanded to the District Court for further consideration of who, if anyone, would be a proper plaintiff. Or by dictum or supervisory order it could have given some guidance to the District Court to be employed by it upon reconsideration of the motions. In short, it could have entered such orders as justice might require, bearing in mind that the most likely beneficiaries of any recovery on plaintiff’s cause of action would be the creditors of the bankrupt estate.

But because of the misunderstanding at the appellate level, and the subsequent response by the District Court (which was not a reconsideration on the merits but a denial on the ground it had already denied the motions), followed by the majority’s action on this second appeal, the issues that the first panel thought it need not reach can never have appellate review.

The first panel is not to be faulted. The facts are confusing, the records fragmentary, some of the papers barely legible, and the briefs of little help. The precise history spelled out by Judge Gordon is the result not of what is apparent but of laborious pick and shovel work on his part. The plaintiff is to be faulted, and the majority do that with vigor. They overlook, however, that Shell was chargeable with the same knowledge of the facts as was plaintiff’s counsel, and is the beneficiary of an affirmance (on the first appeal) which knocked out Burkett as plaintiff but which contains a recital or predicate that Shell knew to be incorrect. Shell perceived that it had no duty to call to the deciding panel’s attention that the footnote was not accurate. Having failed to speak, it then considered that, while enjoying the benefit of the unconditional affirmance, its silence was neither bar nor hindrance to urging dismissal of the second appeal, thereby removing other possible plaintiffs. I am not willing to say in a one-judge dissenting opinion, and I do not say, that Shell’s actions were improper. But I do say that we need not confer upon Shell affirmative benefit from its silence in the face of what it knew to be a judicial misconception of the overall posture of the case.

Perhaps the cause of action should not be asserted at all, or under bankruptcy law cannot now be asserted, or if asserted it may be wholly lacking in merit. But these are matters which ought to be settled by judicial decision, not by mischance. The victims, if there are any, are the creditors in bankruptcy.

      . Inasmuch as the Court of Appeals (Appeal No. 71-1027) did not remand the case to the district court in the per curiam opinion, the footnote to the per curiam opinion did not constitute a controlling appellate order. Assuming for the moment that the case had been remanded, the appellate court’s footnote to the per curiam decision could not be the law of the case as to the legal issues since th" substance of the footnote was clearly erroneous and adherence to it would work a manifest injustice. United States v. Habig, 474 F.2d 57 (7th Cir. 1973) ; Toucey v. New York Life Ins. Co., 112 F.2d 927 (8th Cir. 1940) cert. granted, 311 U.S. 643, 61 S.Ct. 440, 85 L.Ed. 410, aff’d, 313 U.S. 538, 61 S.Ct. 833, 85 L.Ed. 1507, vacated 313 U.S. 596, 61 S.Ct. 938, 85 L.Ed. 1549, rev’d, 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100 (1941) ; Atchison, T. & S. F. Ry. Co. v. Ballard, 108 F.2d 768, (5th Cir.), reh. denied, 109 F.2d 1012, cert. denied; 310 U.S. 646, 60 S.Ct. 1096, 84 L.Ed. 1413 (1940). Cf. Lincoln Nat’l Life Ins. Co. v. Roosth, 306 F.2d 110 (5th Cir. 1962).


author: BELL, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Walter H. JOHNSON, Defendant-Appellant.
    No. 73-1225.
    United States Court of Appeals, Fifth Circuit.
    Jan. 11, 1974.
    Rehearing Denied Feb. 20, 1974.

      Cecil M. Burglass, Jr., F. Irvin Dy-mond, New Orleans, La., for defendant-appellant.
    Donald E. Walter, U. S. Atty., D. H. Perkins, Jr., Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee.
    Before TUTTLE, BELL and GOLDBERG, Circuit Judges.
   BELL, Circuit Judge:

The result of this disjointed and to some extent obfuscated appeal is an af-firmance in part and a remand in part for determinations on two matters. The first is whether a key prosecution witness’ post-trial deposition warrants a new trial on grounds of newly discovered evidence. The second is whether prosecutorial misconduct suggested by the deposition actually occurred, and if so whether it accords appellant the right to a new trial.

In a jury trial, appellant was found guilty of mail and securities fraud in his activities as principal salesman of the promissory notes of Professional Service Corporation (P.S.C.). It is largely uncontroverted that he sold some $4 million of these securities over an eleven-year period, that he received over $750,000 for his efforts, and that he made grossly erroneous representations to potential investors. His primary defense was that he lacked the requisite scienter, in that he was unaware of P.S.C.’s insolvent and profitless condition. This defense was attacked most directly by Parker, a co-defendant turned government witness, who testified to appellant’s familiarity with P.S.C’s finances and to his knowing participation in the production of fraudulent sales literature. In August, 1972, five months after the trial, Parker recanted his testimony, claiming that he had perjured himself under the “programming” of government agents, and that he had done so in order to preserve a plea bargain relieving him of all but one count of his own' six-count indictment. Appellant then filed a motion for judgment of acquittal, and supplemented an earlier motion for a new trial. On September 1, 1972, the trial court denied each motion and imposed sentence. In February, 1973, some five months after this appeal was filed, appellant filed three additional motions, for a new trial, to vacate judgment, and to recuse the trial judge from consideration of these motions. The grounds asserted were that Parker had been indicted for perjury and that the judge had displayed prejudice. These motions also were denied and appellant’s brief incorporates his appeal from their denial into this appeal from the original post-trial rulings.

I.

We will initially dispose of the three motions filed in 1973. When a case is on appeal the trial court has no jurisdiction to entertain such motions. United States v. Warren, 2 Cir., 1972, 453 F.2d 738, 744; United States v. Brown, 2 Cir., 1964, 335 F.2d 170; Rule 33, F.R.Crim.P. Thus the trial court’s order denying these motions must be vacated.

The proper procedure for obtaining judicial consideration of post-appeal motions is to move that the circuit court remand for good cause shown. Cf. Beckwith v. United States, 10 Cir., 1966, 367 F.2d 458, 461. In order to prevent repetitive rulings, we have treated the post-appeal motions as directed to this court in accordance with accepted procedure. We find that they raise no. grounds for post-trial relief that were not raised in the original post-trial motions. Thus they are wholly insufficient to justify remand for further trial court consideration. Cf. Horne v. United States, 4 Cir., 1931, 51 F.2d 66.

II.

As for the original post-trial motions, the motion for judgment of acquittal was not timely filed. See Rule 29(c), F.R.Crim.P. Thus on remand the district court should vacate its order and dismiss the motion for want of jurisdiction. See Rowlette v. United States, 10 Cir., 1968, 392 F.2d 437, 439.

The trial court’s denial of the original motions for new trial is properly before this court. We will first deal with three issues raised in the motion filed shortly after the jury verdict. We will then consider the more difficult issues raised by the subsequent motion based on the newly discovered evidence contained in Parker’s recantation.

Appellant contends his right to counsel was violated by arraignment without counsel. This contention is without merit. The arraignment was a perfunctory proceeding at which the judge entered an automatic plea of not guilty as to all defendants and allowed sixty days for further pleadings. Appellant was offered appointed counsel but declined the offer because he wished to retain a lawyer on his own. In addition, appellant was accompanied at arraignment by his brother, a lawyer. Finally, no objection to the arraignment procedure was made until almost two years later, after trial had commenced.

Appellant also contends that the prosecution deliberately suppressed certain documentary evidence tending to impeach Parker’s credibility. Involved are four checks, payable to appellant, on which Parker had forged appellant’s endorsement. This contention is without merit for several reasons. First, nothing suggests the government was responsible for the checks being unavailable — they were somewhere among several truckloads of documents involved in P.S.C.’s bankruptcy proceedings; while known to appellant throughout the criminal proceedings, he did not subpoena them until after the trial commenced. Second, appellant was not harmed by his inability to introduce the checks into evidence, inasmuch as Parker admitted before the jury that he had made such forged endorsements (he explained that he had done so with appellant’s permission).

The final point on appeal from the initial motion for new trial concerns the trial judge’s participation by way of anecdotes, rambling stories and questioning of witnesses. The only specific incident discussed in appellant’s brief concerns the judge’s analogy to a case tried by his father in which a former Louisiana governor, Richard Leche, was convicted of mail fraud. While we do not endorse this potentially prejudicial method of explaining the law to a jury, we note that the matter arose in the limited context of the nature of the intent to use the mails required by the mail fraud statutes — a matter as to which there was no factual dispute in this case. The trial judge did not otherwise suggest that appellant’s case was like Leehe’s and we cannot conclude that denial of the motion for new trial was an abuse of the trial court’s discretion.

Appended to appellant’s brief is an affidavit in which his trial attorney lists other rambling anecdotes, and also charges the trial judge with visible bias and improper participation in the questioning of witnesses. Since this affidavit is not part of the record, and since it is argumentative and conclusory, we will treat it not as factual material but as part of the brief. Dispite its charges of bias and prejudice, nowhere does it direct us to specific points in the record where the trial judge behaved improperly, where objections to his comments were made, or where objections were made to omissions by the court reporter of the judge’s comments. Noting further that the charge to the jury was entirely correct and unbiased, and that it clearly delineated the judge’s role in the fact-finding process, we conclude that denial of the motion for new trial on these grounds was not erroneous.

III.

Appellant’s primary attack on his conviction is contained in the supplement to his original motion for new trial. It is based on Parker’s testimony and subsequent recantation, and on the prosecution’s conduct with regard to that testimony. We understand his claim to be two-fold: first, that the new evidence created by the recantation justifies a new trial; and second, that a similar result should follow from each of three instances of possible prosecutorial misconduct, two alleged in Parker’s recantation, and the other apparent on the face of the record. Before turning to the recantation,-we will consider the last-mentioned instance of questionable conduct. To do so it is necessary to more fully develop the facts involved.

Parker was the primary promoter of P.S.C., and had been indicted on six counts of mail and securities fraud. Shortly before trial he agreed to plead guilty to one count with the understanding that the remaining counts would be dropped if he testified fully and truthfully against the other defendants. So far as was revealed at trial, no promises whatsoever were made as to his sentence, and he correctly understood the maximum to be 5 years and a $10,000 fine.

After his damaging direct testimony, Parker was subjected to several days of intense cross-examination by attorneys for appellant and his co-defendant. One attack on Parker’s credibility focused on whether he was motivated by a government promise of favorable treatment. The following occurred:

MR. DYMOND: [Attorney for appellant’s co-defendant]: “Mr. Parker, am I correct in understanding — you are sitting there under oath now — you are telling me you have no understanding as to the intended dismissal by the Government of the first five counts of this indictment against you ?
MR. PARKER: “I am telling you I have no deal with the Government. I pleaded guilty to a count that carries a five year prison term and $10,000 fine.”
MR. DYMOND: “Have you been led to believe by anybody that the remaining counts are going to be dismissed against you?”
MR. PARKER: “I been led by nobody about anything.”
MR. DYMOND: “If you don’t know what is going to happen to those other five counts, what are you doing testifying?”
MR. PARKER: “My attorney advised me to do this and I did it exactly as he advised me.”
MR. DYMOND: “You wouldn’t say you are doing this through a sense of rightousness ?”
MR. PARKER: “I did it because my attorney advised me to do it as I testified before.”
MR. DYMOND: “Did your attorney tell you the remaining five counts were to be dismissed against you?” MR. PARKER: “My attorney did not.”
MR. DYMOND: “Has anybody told you that?”
MR. PARKER: “I don’t recall anybody telling me that.”
MR. DYMOND: “You don’t have any doubt you would recall that if it was told you, do you, Mr. Parker ?”
MR. PARKER: “I don’t believe I have any doubt.”
MR. DYMOND : “Would you definitely and unequivocably state nobody told you these five counts would be dismissed against you ?”
MR. PARKER: “No, sir, I have not been told.”
THE COURT: “There were no plea bargains made by this Court and I specifically asked Mr. Parker whether anyone connected with the Government, or anyone else, including his attorney, had made any promises, or threats, or inducements, coercion, or anything of that nature, to cause him to enter a plea guilty.”
MR. DYMOND: .“If the Court please, I would like to call on the Government right now to inform the Court whether an agreement has been made to dismiss the remaining five counts against Mr. Parker.”
MR. PERKINS: “The answer is ‘No’.”
MR. DYMOND: “As to whether any suggestion that will be done has been made to the attorneys, to Parker or anyone else?”
MR. PERKINS: “We haven’t talked to Mr. Parker about this matter at all. Mr. Walter is the United States Attorney and he talked to Mr. Parker’s counsel about this matter. His name is Winsberg. He had a discussion with him about this case. When I saw Mr. Parker, I saw him in the courtroom when he entered a plea and I didn’t have any discussion with him at all.”

Were this the end of the affair appellant would clearly be entitled to a new trial under Giglio v. United States, 1972, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104, in which the prosecution’s failure to disclose a plea bargain with one of its witnesses was held to be a denial of due process. See also Brady v. Maryland, 1962, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.

However, here a recess was held shortly after the quoted testimony, and before trial resumed the judge was apprised of the bargain. Further, Parker’s attorney, Winsberg, was called to testify about the plea bargain, and was not cross-examined by the government. Defense attorneys made no motions for directed verdict or mistrial, and clearly were satisfied to have Winsberg truthfully reveal the bargain to the jury. They subsequently pointed to both the bargain and Parker’s disclaimer of it in attacking his credibility. The trial judge twice instructed the jury that inducements to testify are to be considered in determining credibility, and he did so specifically in the context of plea bargaining. Finally, in the prosecution’s rebuttal arguments to the jury, the fact of the bargain was tacitly acknowledged.

In these circumstances we cannot conclude that the prosecution’s initial lack of candor deprived appellant of due process. We are not, however, favorably impressed by the prosecution’s conduct. Initially denying a bargain created confusion that was remedied only after the unnecessary expense and delay of several conferences and the testimony of an out-of-town attorney. The prosecuting attorney explained to both the trial court and' this court that he thought he was responding to questions whether he personally had bargained directly with Parker, and whether Parker had been unconditionally promised that the other five counts would be dismissed (whereas their dismissal was conditioned on Parker’s truthfully testifying). Without commenting on this explanation, we do express the opinion that it would be preferable for the prosecution to accord more attention to the substance of the defense’s inquiry and less to hair-splitting distinctions.

IV.

This brings us to Parker’s recantation of his trial testimony by means of a sworn deposition made in prison after he received the maximum sentence of 5 years and a $10,000 fine. The gist of the deposition is that Parker had been “programmed” by government attorneys to give the testimony they wanted. This was accomplished, says Parker, by repeated threats to prosecute him on the remaining counts in the indictment, and by repeated suggestions that he ■ “really meant” something other than he initially stated and believed to be true. We have carefully studied Parker’s deposition. For the most part it establishes no more than that he underwent intensive coaching prior to trial, in order to freeze his testimony, to prevent unexpected responses, and to assure that he would provide critical information in his initial answers and without the necessity of tedious, repetitive pinpoint questioning. This is not improper, so long as the testimony actually given is truthful. In this regard, Parker specifically points to only one area of testimony, that concerning the plea bargain, as having been perjured. He acknowledges that he knew of the deal, and further claims that the government attorneys promised to intercede in his behalf to assure a sentence of no more than three years. In addition he suggests that he lied, in conformity with prosecution instructions, when he testified that he and appellant had been aware of P.S.C.’s financial plight since 1959 — -Parker now claims he initially and truthfully told the government attorneys that this date was 1968, although his deposition is so imprecise that it does not logically exclude the possibility that appellant had the requisite scienter.

As noted above, Parker’s deposition is presented as grounds for retrial on two different theories, that of newly discovered evidence and that of prosecutorial misconduct. We first consider the new evidence approach. In this regard we must be mindful that, “motions for a new trial based on recanted testimony of a material witness are looked upon with the utmost suspicion,” United States v. Nolte, 5 Cir., 1971, 440 F.2d 1124, 1128, and that, “Testimony which is merely impeaching or cumulative is not a sufficient basis for a new trial based on newly discovered evidence.” United States v. Dara, 5 Cir., 1970, 429 F.2d 513, 514. Applying these standards, Parker’s revelations about his plea bargain are not grounds for a new trial — the substance of the deal was before the jury through the Winsberg testimony, and the claimed promise of a low sentence would have served only as minor additional impeachment of Parker’s trial testimony (we note that its credibility had already been heavily attacked by the existence of the deal, by Parker’s initial disclaimer of it, and by other inconsistencies developed on cross-examination).

As for the testimony concerning knowledge of P.S.C.’s insolvent condition, we disagree with the trial court’s conclusion that Parker’s deposition fails to indicate he told a material lie during the trial. While the deposition does not state precisely what testimony Parker considers untruthful, or precisely what his new testimony would be, we think it strongly suggestive of perjured material testimony. We thus find it necessary to remand for a hearing directed to two issues: first, whether Parker’s deposition is credible, in light of cross-examination and impeaching testimony from government witnesses, cf. United States v. Nolte, supra; and second, precisely what would be his new, credible testimony, if any, and whether it would satisfy the requirements for a new trial based on newly discovered evidence. See United States v. Dara, supra; United States v. Jacquillon, 5 Cir., 1972, 469 F.2d 380, 388.

v.

There remains appellant’s claim that prosecutorial misconduct justifies a new trial. We have already dealt with the alleged misconduct of failing immediately to inform the court of Parker’s plea bargain. See pp. 1322-1324 supra. We now consider the deposition’s suggestion of two specific instances of misconduct, to wit, the alleged promise of a low sentence which the prosecution did not reveal, and the prosecution’s alleged instigation and tolerance of untrue testimony about appellant’s knowledge of P.S.C.’s financial condition. Our guide in this matter is Giglio v. United States, supra, and the series of Supreme Court cases discussed therein. The rule is that presentation of known false evidence, and nondisclosure of evidence affecting credibility, are grounds for retrial if the deception was material, that is if, it might “in any reasonable likelihood have affected the judgment of the jury.” Giglio, supra, 405 U.S. at 154, 92 S.Ct. at 766, 31 L.Ed.2d 108. We are unable to say on this record that the deception alleged in Parker’s deposition is not material within this definition. Thus it is necessary to remand for an adversary hearing to determine the truth about the prosecution’s conduct of this case. Should the trial court determine that misconduct occurred, then it must proceed to determine whether the effect was material within the meaning of Giglio.

In sum, we affirm in all respects save for two particular issues as to which we remand for evidentiary hearing and factual determinations, and save for our directions that the trial court vacate its orders concerning four post-trial motions over which it had no jurisdiction. The first of the remanded issues concerns the possibility that Parker presented perjured material testimony as to appellant’s knowledge of P.S.C.’s finances. The trial court should consider this matter according to the standards governing recanted testimony of prosecution witnesses and retrials based on such newly discovered evidence. Second, the trial court must determine whether the prosecution engaged in misconduct by failing to reveal a promise to Parker of a low sentence, and by instigating and/or tolerating incorrect testimony about appellant’s knowledge of P.S.C.’s finances. On this issue, the appropriate standards are those of Giglio v. United States, supra.

Affirmed in part, remanded in part with directions.

      . The indictment charged violations of 15 U.S.C.A. § 77g(a), 18 U.S.C.A. § 1341, and 18 U.S.C.A. § 371.

      . Appellant’s co-defendant, who had been P.S.C.’s attorney as well as an officer, director, and stockholder, was acquitted by the same jury.

      . We will consistently refer to Parker’s “recantation,” or to his having “recanted.” In so doing we do not suggest that he has disclaimed all or even large portions of his testimony. As will be developed below, he has directly and specifically challenged very little of what he stated at trial.

      . The original post-trial motions raised the claim that Parker’s testimony was perjured. The only additional material in the post-appeal motions to vacate judgment and for a new trial was the fact that Parker’s recantation had resulted in a perjury indictment. However, this indictment specifies as acts of perjury not his testimony at appellant’s trial,, but rather his subsequent testimony that he had, under government “programming,” perjured himself at the trial. Thus, by indicting Parker the government in no way vouched for the claim, presented to. the trial court and, by appeal, to this court, that appellant’s conviction was the product of perjured testimony and government misconduct.
      As for the motion to recuse the trial judge from consideration of the post-appeal motions, it does present new material, but it is mooted by our disposition of the motions to vacate judgment and for a new trial.

      . We note that while this disposition of the motion for judgment of acquittal deprives appellant of a potential remedy on this appeal, it does not limit the scope of our review of the proceedings below. This is because the motion for judgment of acquittal raised no contentions not also raised in the motions for new trial.

      . We also note, with disapproval, the silence of the second government attorney; unlike the government’s principal trial counsel, he had been present when the plea bargain was struck with Parker’s attorney.

      . In January, 1973, Parker testified, to similar effect,'at a hearing on his own motion to reduce sentence. It was this subsequent testimony that led to his perjury indictment. This testimony is not a part of the record of appellant’s, ease and has not been considered by this court.

      . In his testimony Parker swore to appellant’s knowledge as of 1959 that P.S.O. was not making a profit and was in some sense “insolvent.” In the deposition he appears to acknowledge that appellant had long been aware that P.S.O. was profitless, but also claims that it was not until 1968 that he and appellant were aware P.S.O. would never be profitable.

      . It is not inconsistent to remand to consider the alleged promise of a low sentence in this prosecutoral misconduct context, but not in the context of the newly discovered evidence issue. The standards applicable in each instance are quite different, as should be apparent from a- comparison of controlling cases. Compare United States v. Jacquillon, supra, with Giglio v. United States, supra.


author: SETH, Circuit Judge.

text:
    Thomas J. BRANTNER, Appellant, v. Carl POOLE, d/b/a Utah Sanitary Company, Appellee.
    No. 73-1406.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Oct. 17, 1973.
    Decided Dec. 3, 1973.
    Ray R. Christensen, Christensen, Gardiner, Jensen & Evans, Salt Lake City, Utah, for appellant.
    Raymond M. Berry, Worsley, Snow & Christensen, Salt Lake City, Utah, for appellee.
    Before SETH and DOYLE, Circuit Judges, and TALBOT SMITH, District Judge.

       Of The Eastern District of Michigan, sitting by designation.

   SETH, Circuit Judge.

Thomas J. Brantner appeals from the order of the United States District Court for the District of Utah granting summary judgment to the defendant-ap-pellee, Carl Poole. This is a diversity suit for the recovery of damages resulting from a truck accident in which appellant Brantner was seriously injured.

The basic issue on appeal is, of course, whether the pleadings, depositions, and affidavits in the record “show that there is no genuine issue as to any material fact and that the [defendant] is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). This record is to be examined “in the light most favorable to the party opposing the motion.” Frey v. Frankel, 361 F.2d 437 (10th Cir.); see also James v. Atchison, T. & S. F. Ry., 464 F.2d 173 (10th Cir.).

Appellant Brantner and a friend, William Hutchinson, were hitchhiking in the area of Alta, Utah. They were given a ride en route to Salt Lake City, Utah, by Dennis Jarvis who was driving a sewage tank truck owned by Poole and then being used in his sewage disposal business. The route from Alta to Salt Lake City follows downhill what is called Little Cottonwood Canyon, and the road is narrow and winding with grades of ten per cent at various points. After going down the canyon for some distance, the two-speed gear in the truck’s rear transmission disengaged or “kicked out,” apparently without warning, and consequently the truck was “freewheeling.” Unrestrained by the braking force of the gears and engine, the truck, which had been traveling at what has been estimated as between seven and twenty-five miles per hour, started gaining speed. The driver attempted to reengage the two-speed gear by accelerating the engine but to no avail. He then tried to apply the airpowered brakes; this too was unsuccessful as the engine was not running and the truck continued to gain speed. In approximately thirty seconds to a minute the truck was going somewhere in the range of sixty to seventy miles per hour down the narrow, winding canyon road. The driver decided that the only course was to “ditch it” by running into the side of the mountain. He did so, and the truck overturned. Mr. Brantner, who was sitting next to the right-hand passenger door, was thrown out of the truck’s cab and sustained fractures of his neck. He is now a permanent quadriplegic.

Following the accident, two mechanics hired by the appellant and appellee, respectively, examined the wreckage of the truck. It was found that the truck was, prior to the accident, in a deplorable state of repair. The appellee’s mechanic, while examining the truck, stated that “whoever put this truck on the road ought to be shot.” The truck was a 1961 International model which defendant Poole had purchased in July 1971, and had equipped with a sewage tank which at the time of the accident was filled nearly to its capacity of 1,175 gallons. The truck was not equipped with taxi or “fail safe” brakes with which, according to the appellee’s mechanic, the truck should have been equipped for use in such a canyon as Little Cottonwood. The air lines for the brakes had been ruptured prior to the time of the accident and an attempt had been made to patch up the breaks with friction tape. The brake drums were so worn that they apparently could not have passed a state safety inspection. The worn condition of the left wheel bearing would result in the generation of excessive heat, transmitted to the brake shoes and drums, and thereby further reducing the braking efficiency. Most importantly, the teeth in both the high and low range of the two-speed gears were so badly worn as to be susceptible to disengagement.

Dennis Jarvis, the driver, stated by way of his deposition testimony that Mr. Poole, the appellee, had previously warned him about the possibility of the gears disengaging, but had not given him any specific instructions in this regard. All of the maintenance on the truck was done by Mr. Poole, apparently because the garages did not like the truck’s usual cargo. Although the state of repair of the gears would not necessarily have been apparent, the defendant did the work on the truck, including a replacement transmission, and work on the brakes, and he was obviously familiar with the mechanical condition of the truck. His warning to the driver of the possibility that the gears in the rear axle would disengage is a significant factor relating to the cause of the accident.

All parties recognize that the single issue before us is whether there were fact issues unresolved which required that the case be submitted to a jury.

Whether there were such issues, of course, depends upon the application of the Utah Guest Statute, and the determination of the applicable legal doctrines thereunder. It is conceded that appellant Brantner comes within the definition of a “guest” as used in the statute. The Utah Guest Statute, Utah Stat.Ann. § 41-9-1 (1951) (Repl.Vol. 5A, 1970), in material part provides:

“Any person who as a guest accepts a ride in any vehicle, moving upon any of the public highways of the state of Utah, and while so riding as such guest receives or sustains an injury, shall have no right of recovery against the owner or driver or person responsible for the operation of such vehicle . . . Nothing in this section shall be construed as relieving the owner or driver or person responsible for the operation of a vehicle from liability for injury to or death of such guest proximately resulting from the intoxication or willful misconduct of such owner, driver or person responsible for the operation of such vehicle; ft

The burden of establishing that wilful misconduct was the proximate cause of injury or death is upon the plaintiff. Utah Stat.Ann. § 41-9-1 (1951) (Repl. Vol. 5A, 1970).

The Supreme Court of the State of Utah has had occasion to define wilful misconduct as that term is found in the Utah Guest Statute as “the intentional doing of an act, or intentional failure to do an act, with knowledge that serious injury is a probable result.” Brown v. Frandsen, 19 Utah 2d 116, 426 P.2d 1021 (1967).

The courts of that state have held that such acts or omissions as falling asleep at the time of an accident, Brown v. Frandsen, supra; inadvertence in reaching for a cigarette, Milligan v. Harward, 11 Utah 2d 74, 355 P.2d 62 (1960); driving on the shoulder and, in the wrong direction on a multilane highway, Roylance v. Davies, 18 Utah 2d 395, 424 P.2d 142 (1967); and driving on a curved road at fifty miles per hour without keeping a proper lookout and failing to observe that the curve could not be negotiated at that speed, Mukasey v. Aaron, 20 Utah 2d 383, 438 P.2d 702 (1968), all do not constitute wilful misconduct within the meaning of the Utah Guest Statute’s use of that term.

The Utah decisions relating to the Guest Statute are concerned for the most part with affirmative acts of negligence in the operation of a car, rather than with its mechanical condition. The question is whether the state of disrepair of the truck here concerned had proceeded to a degree, combined with the owner’s knowledge thereof, that it could give rise to genuine issues of fact which are material under the Utah Guest Statute. The question thus becomes whether the disrepair of a motor vehicle can be so gross as to constitute “wilful misconduct” and be the proximate cause of the damages. We must conclude under the Utah decisions that this type of conduct is within the Guest Statute, and the statute is not limited to the manner in which a vehicle is operated.

The Utah case of Milligan v. Harward, 11 Utah 2d 74, 355 P.2d 62, considered the Guest Statute provisions in a manner of operation case, and concluded that the intentional doing or failure to perform an act with knowledge that serious injury was probable and not merely possible, was within the statute. The decision also held that gross negligence does not constitute wilful misconduct as the term is used in the Act. The reference in the Milligan case to a failure to act is significant on the issue here. Under the record the extent of the failure of the defendant to keep the truck in repair, or his inaction in permitting the truck to deteriorate to the extent it did, raised issues of fact which were material under the Guest Statute as construed by the Utah court. The statute, in our opinion, includes the mechanical condition of the vehicle in addition to the manner in which it was operated.

Since there are these material issues remaining under this construction of the statute, the summary judgment must be and is vacated, and the case is remanded for further proceedings consistent with this opinion.


text:
    In the Matter of BALASCO INDUSTRIES, INC., et al., N. Campbell NAPIER, Appellant, v. Nolan B. HARMON, Trustee of Balasco Industries, Inc., et al., Appellees.
    No. 73-2226.
    United States Court of Appeals, Fifth Circuit.
    Dec. 20, 1973.
    M. H. Blackshear, Jr., Richard P. Decker, Decatur, Ga., for appellant.
    Oscar N. Persons, Ben F. Johnson, III, Atlanta, Ga., for appellees.
    Before COLEMAN, AINSWORTH and GEE, Circuit Judges.
   PER CURIAM:

After a careful consideration of the briefs and record in this matter, we conclude that the decision of the Referee, confirmed by the order of the district court, is correct in all respects and should be affirmed.


text:
    Lee CHAGRA, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 73-2122.
    United States Court of Appeals, Fifth Circuit.
    Dec. 21, 1973.
    Rehearing Denied Jan. 25, 1974.
    Towner Leeper, El Paso, Tex., for plaintiff-appellant.
    Scott P. Crampton, Asst. Atty. Gen., Ernest J. Brown, Acting Chief, App. Sec., Tax Div., Dept. of Justice, Lee H. Henkel, Jr., Act. Chief Counsel, IRS, Washington, D. C., and Ralph E. Harris, Asst. U. S. Atty., William S. Sessions, U. S. Atty., San Antonio, Tex., Crombie J. D. Garrett, James H. Bozarth, David English Carmack, Attys., Tax Div., Dept. of Justice, Washington, D. C., for defendant-appellee.
    Before TUTTLE, GEWIN and RO-NEY, Circuit Judges.
   PER CURIAM:

The judgment of the trial court is affirmed. We conclude that the delivery of the check to Chagra by Blott was not such assignment of the funds in the farmer’s bank account as would defeat the priority of the Government’s tax lien levied before the check cleared the bank. See Farmers State Bank of Center v. Latham, 181 S.W.2d 972 (Tex.Civ.App. —Texarkana, 1944), no writ.

We do not reach the alternative theory of res judicata which was applied by the trial court.


text:
    Michael KOZEMCHAK et al., Appellants, v. The UKRAINIAN ORTHODOX CHURCH OF AMERICA and the most Reverend Bishop Andrei Kuschak, Ruling Bishop of the Ukrainian Orthodox Church of America, Appellees.
    No. 36, Docket 73-1425.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 26, 1973.
    Decided Nov. 30, 1973.
    John F. Grimes, Staten Island, N. Y. (Connolly, Grimes & Cawse, Staten Island, N. Y., on the brief), for appellants.

      William P. McHale, Hempstead, N. Y. (Gehrig, Ritter, Coffey, McHale & McBride, Hempstead, N. Y., on the brief), for appellees.
    Before MOORE, HAYS and TIMBERS, Circuit Judges.
   PER CURIAM:

We affirm for substantially the reasons given in the memorandum of the district court.


text:
    R. W. REYNOLDS, Plaintiff-Appellee, v. Asa D. KELLEY, Jr., Defendant-Appellant.
    No. 73-2494
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 11, 1973.
    Arthur K. Bolton, Atty. Gen., Courtney W. Stanton, David L. G. King, Jr., Dorothy T. Beasley, Asst. Attys. Gen., Atlanta, Ga., for defendant-appellant.
    P. Z. Geer, Jr., D. C. Campbell, Jr., Burt, Burt & Rentz, Albany, Ga., for plaintiff-appellee.
    Before BELL, GODBOLD and GEE, Circuit Judges.

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

   PER CURIAM:

It appearing that the matters giving rise to this appeal are moot, the judgment of the district court is vacated and the cause is remanded with direction to dismiss the proceeding as being moot. Cf. United States v. Munsingwear, 1950, 340 U.S. 36, 39-40, 71 S.Ct. 104, 95 L. Ed. 36; Troy State University v. Dickey, 5 Cir., 1968, 402 F.2d 515, 516-517; Lebus, Regional Director v. Seafarers’ Int’l Union, 5 Cir., 1968, 398 F.2d 281, 283, on the procedure to be followed by the court of appeals in dismissing a case by reason of mootness.

Vacated and remanded with directions.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The GERSTENSLAGER COMPANY, Respondent.
    No. 73-1443.
    United States Court of Appeals, Sixth Circuit.
    Submitted on Briefs without oral argument Dec. 6, 1973.
    Decided Dec. 13, 1973.
    Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Asst. Gen. Counsel, Stuart M. Rosenblum, Atty., National Labor Relations Board, Washington, D. C., on brief, for petitioner.
    Arthur W. Moore, Wooster, Ohio, on brief, for respondent.
    Before WEICK, McCREE and MILLER, Circuit Judges. ,
   ORDER

The Board has petitioned for enforcement of its decision and order reported at 202 NLRB No. 40, which found that the company violated Sections 8(a)(5) and (1) of the Act by failing and refusing to bargain collectively and in good faith with the union, by refusing permission for the union to conduct its own time-study, by dealing directly with and entering into personal employment contracts with employees of the union and by-passing the union, and by abrogating oral agreements and proposing more stringent provisions without reasonable cause.

The evidence was taken before an Administrative Judge, who made credibility assessments and drew inferences from the evidence, and who found that the company did violate the Act in the manner charged. His findings of fact and conclusions of law were adopted by the Board.

We find there was substantial evidence to support the findings of fact and conclusions of law.

It is therefore ordered that the decision and order of the Board be and it is hereby enforced.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MARI-WEATHER, INC. d/b/a Mackinac Jacks, Respondent.
    No. 73-2118.
    United States Court of Appeals, Sixth Circuit.
    Dec. 13, 1973.
    Elliott Moore, Asst. Gen. Counsel, National Labor Relations Board, Washington, D. C., Bernard Gottfried, Director, Region 7, N.L.R.B., Detroit, Mich., for petitioner.
    Michael C. Kovaleski, Warren, Mich., for respondent.
    Before CELEBREZZE, PECK and McCREE, Circuit Judges.
   ORDER

On petition to enforce an order of the National Labor Relations Board.

This cause came on to be heard on the Board’s application for summary entry of a judgment enforcing such order.

The Board states that the Respondent failed to file a statement of exceptions to the Decision of the Administrative Law Judge in this ease before August 13, 1973, the deadline for filing exceptions to the Decision. The Board issued its Order on August 29, 1973, adopting the Decision of the Administrative Law Judge. The Board’s Order has, been served on Respondent in proper fashion.

Under section 10(e) of the National Labor Relations Act, as amended, 29 U. S.C. § 160(e), “No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the [enforcing] court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” In view of the Respondent’s failure to file exceptions to the Administrative Law Judge’s Decision in this case and its failure to file with this Court any indication of extraordinary circumstances which would excuse such failure, summary enforcement of the' Board’s order is appropriate. Therefore, it is ordered that the Order of the National Labor Relations Board in this cause be, and it hereby is, enforced.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Freeman Jesse ARNOLD, Defendant-Appellant. In re I. A. KANAREK.
    No. 73-3101.
    United States Court of Appeals, Ninth Circuit.
    Dec. 11, 1973.
    Sanford H. Monroe, Los Angeles, Cal. (I. A. Kanarek, Van Nuys, Cal., former counsel), for defendant-appellant.
    William D. Keller, U. S. Atty., Richard Stiltz, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
    Before CHAMBERS and BARNES, Circuit Judges, and KING, District Judge.
   ORDER ASSESSING PENALTY

For failure to prosecute the appeal of Freeman Jesse Arnold with due diligence, I. A. KANAREK is assessed a penalty of Two Hundred Dollars under Rule 46(c) of the Federal Rules of Appellate Procedure.

The said sum is to be paid into the registry of the United States District Court for the Central District of California within 14 days from the date of the filing of this order.


text:
    SOUTH GWINNETT VENTURE, a partnership composed of South Gwinnett Apartments, Inc., et al., Plaintiffs-Appellants, v. W. R. (Dudge) PRUITT et al., Defendants-Appellees. ROCKBRIDGE ASSOCIATES, LTD., a Georgia Limited Partnership, Plaintiff-Appellant, v. W. R. (Dudge) PRUITT et al., Defendants-Appellees.
    Nos. 71-3420, 71-3421.
    United States Court of Appeals, Fifth Circuit.
    Dec. 3, 1973.
    Robert F. Cook, Dean Booth, Atlanta, Ga., for plaintiffs-appellants.
    Homer M. Stark, Lawrenceville, Ga., for defendants-appellees.
    Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
   BY THE COURT:

A majority of the Judges in active service, on the Court’s own motion, having determined to have these cases reheard en banc,

It is ordered that these causes shall be reheard by the Court en banc on briefs without oral argument. The Clerk will specify a briefing schedule for the filing of supplemental briefs.


author: PER CURIAM.

text:
    Emanuel ST. ETIENNE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-2957
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 14, 1973.
    Emanuel St. Etienne, pro se.
    Gerald J. Gallinghouse, U. S. Atty., May Williams Cazalas, Asst. U. S. Atty., New Orleans, La., for respondent-appel-lee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM.

We vacate the district court’s order summarily denying St. Etienne’s motion to vacate sentence filed pursuant to 28 U.S.C.A. § 2255, and remand the cause with instructions to resentence the appellant in conformity with our opinion in Caille v. United States, 5 Cir. 1973, 487 F.2d 614.

Vacated and Remanded.