author: COFFIN, Chief Judge.

text:
    Robert F. BRADLEY et al., Plaintiffs-Appellees, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, et al., Defendants-Appellants.
    No. 73-1014.
    United States Court of Appeals, First Circuit.
    Heard and Argued June 5, 1973.
    Decided July 31, 1973.

      William A. Brown, Asst. U.S. Atty., with whom James N. Gabriel, U.S. Atty., Boston, Mass., Thomas E. Kauper, Asst. Atty.' Gen., Anti-Trust Div., George Edelstein, Atty., Dept, of Justice, Peter Barton Hunt, Asst. Gen. Counsel, Joanne S. Sisik, Chief, App. and Sp. Proceedings Branch, and Arthur N. Levine, Atty., Food, Drugs, and Produce Safety Div., U.S. Dept, of Health, Ed. and Welfare, Washington, D.C., were on brief, for defendants-appellants.
    Neil L. Chayet, Boston, Mass., with whom Harvey W. Freishtat, and Chayet & Sonnenreich, Boston, Mass., were on brief, for Robert F. Bradley and others, plaintiffs-appellees.
    Before COFFIN, Chief Judge, and ALDRICH and McENTEE, Circuit Judges.
   COFFIN, Chief Judge.

Plaintiffs, 178 physicians who treat diabetes and one diabetes patient who use oral hypoglycemic agents to control the disease by lowering the blood sugar level, brought suit to enjoin the defendants Secretary of Health, Education and Welfare and the Commissioner of the Food and Drug Administration (FDA) from enforcing and the defendant drug companies from complying with the FDA’s proposal for altering the labeling of those drugs. The district court granted a preliminary injunction, being persuaded that there was a reasonable likelihood of success in showing that the FDA had failed to comply with the statutes and its own regulation requiring that under some circumstances labeling make reference to the existence of a serious medical controversy. We vacate the injunction for reasons important to the proper judicial role in reviewing administrative actions.

This controversy revolves around a long-term, federally funded study undertaken by the University Group Diabetes Program (hereafter the UGDP study) to determine the effects of oral hypoglycemic agents on vascular complications in patients with adult-onset diabetes. The study, involving twelve clinics and 1200 patients, consisted of four treatment groups: diet alone, diet plus regular insulin doses, diet plus varying insulin doses and diet plus fixed doses of either tolbutamide or phenformin (two hypoglycemic agents). After monitoring the patients for from five to eight years, the study concluded that the combination of diet and either tolbutamide or phenformin was no more effective than diet alone in prolonging life but that those oral agents might be more hazardous than diet or diet plus insulin insofar as cardiovascular mortality was concerned. The latter conclusion, which led the investigators to discontinue use of the agents in the study as an unethical risk, was based on findings that patients treated with the two agents used in the study suffered more than twice as many cardiovascular deaths than patients receiving the other treatments.

After the study received much publicity and criticism, the FDA convened an ad hoc committee of experts on May 21, 1970 to evaluate the study’s findings and the following day issued a press release agreeing with the UGDP study’s conclusions and indicating that the agency would require labeling changes to reflect those views. After more extensive evaluation, the FDA concluded that protection of the public required a strong warning to physicians recommending use of an oral agent only if other treatments were inadvisable and noting the UGDP’s findings regarding the apparently increased danger of cardiovascular mortality. This evaluation and proposed labeling change was first formally published in the FDA Drug Bulletin of June, 1971.

On October 7, 1971, the Committee on the Care of the Diabetic, consisting of eminent doctors and experts in the field including some of the plaintiff doctors, submitted through its counsel a petition to the FDA. It asked the FDA to rescind its labeling recommendation, insure that all future FDA comments on the UGDP study include references to its alleged deficiencies and controversial nature, provide petitioners with the complete raw data of the study, and, “in accord with its policy of fair balance”, disseminate with equal emphasis and frequency studies and individual expert opinions differing with the study. The petition was accompanied by a detailed scientific critique of the UGDP study and some 250 pages of scientific studies, papers and comments illustrating the nature and extent of the opposition viewpoint. The study was primarily criticized for inadequate patient selection controls and use of fixed, rather than variable, doses of the drugs, contrary to allegedly accepted medical practice. The FDA proposal was attached for extending the study’s findings to all oral agents and patients despite the study’s own warning that such extrapolation could not be made on a statistical basis. The petition also referred to two smaller studies which indicated no cardiovascular complications from oral agents. It was supplemented in January, 1972, by another 220 pages of scientific materials.

In the May, 1972, Drug Bulletin, the FDA published the “Final Labeling Approved For Oral Hypoglycemic Drugs”, which proposed changes in the “indications” section of the label and the addition of a “special warning” section. The proposal speaks of “the increased cardiovascular hazard which appears to be associated with oral hypoglycemic agents”, notes that the UGDP study was the basis for the change, recites its findings, states that these conclusions apply to all oral agents, not just those employed in the study, and ends with the comment that “Further studies are being undertaken to shed additional light on the role” of the oral agents. On June 5, 1972, the Commissioner formally replied to the Committee’s position with an eleven-page, single-space letter addressing generally the legal and medical issues and with a 100 page appendix dealing specifically with the scientific criticisms of the study, criticizing the two contrary studies referred to by the petition, and appending the comments of major medical groups and various scientific papers supportive of the FDA’s position. The Committee’s counsel responded on July 13 with a four-page letter suggesting that the FDA’s label might constitute misbranding in violation of two cited statutes, that this was one of the “rare cases” suggested by the Commissioner in which “substantial evidence” exists on both sides of an issue, making appropriate reflection of the controversy in the package insert. Counsel requested a formal evidentiary hearing, a stay of any further action pending final resolution, and the full patient records from the study. The Cpm-missioner’s response of August 3 stated that the petitioners were not entitled to a hearing and that only clinical studies were substantial evidence of drug effectiveness. He concluded by saying that, “we do not contend that you do not have standing either to prosecute your peition [sic] or to pursue an appeal to the courts” and that his two letters constituted final agency action reviewable by the courts pursuant to the Administrative Procedure Act.

This suit was filed on August 11, 1972 and a temporary restraining order issued that day. After a hearing and submission of affidavits of experts by both sides, the emergency district judge denied the preliminary injunction on August 30, finding that whatever irreparable injury might be suffered by the plaintiffs did not outweigh that suffered by the public represented by the defendants and that the plaintiffs had not demonstrated “a reasonable probability” of showing that the FDA’s decision to require the warning was arbitrary or capricious. A second motion for a preliminary injunction was denied on September 21 by the judge to whom the ease was permanently assigned because no new evidence or amendment of the complaint had been presented.

On October 17, 1972, the litigation entered an entirely new phase. On that date, plaintiffs filed a motion for leave to amend their complaint, supported by 13 affidavits by diabetes experts attesting to the controversy over the UGDP study, and new motions for a temporary restraining order and a preliminary injunction. The motions presented for the first time the argument that the FDA’s proposed label was itself misleading and thus rendered the drug misbranded in violation of the statute, because it failed to reveal the existence of a “material weight of contrary opinion” among “experts qualified by scientific training and experience” as allegedly required by the agency’s own regulation, 21 C.F.R. § 1.3. After oral argument, at which plaintiffs’ counsel admitted this was an. unprecedented case, being brought by the doctors and seeking to apply that regulation to the agency’s own labeling recommendation, the district court in a Memorandum and Order granted-on November 3, 1972, the motions to amend the complaint and for a preliminary injunction. It noted that “The application for preliminary injunction was heard on the affidavits filed by plaintiffs and defendants, and their arguments both oral and written” and stated that “the court is satisfied plaintiffs have made a showing that there is reasonable likelihood upon a full hearing on the merits they would be successful in establishing the defendants . . . have not in the order described in the May 1972 Bulletin complied with 21 C.F.R. § 1.3.; 21 U.S.C. § 321 (n) and 21 U.S.C. § 352(a).”, and that “there is [absent an injunction] a likelihood of irreparable injury to the plaintiffs” greater than would be visited üpon the defendants by such relief.

The district court had jurisdiction to review the administrative action under the Administrative Procedure Act (APA), 5 U.S.C. § 704, because it was “final agency action for which there is no other adequate remedy in a court.” See Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Weinberger v. Hynson, Wescott & Dunning, Inc., 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207 (U.S.1973). There is no dispute over the scope of re view — whether the agency action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2) (A). The action challenged was informal agency action, subject to judicial review under-that standard. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (X1973).

. Significantly, there is also no controversy over the basis for judicial review — “the full administrative record that was before the [Commissioner] at the time he made his decision.” Overton Park, swpra, 401 U.S. at 420, 91 S.Ct. at 825. Yet, as the district court’s brief memorandum indicates, the preliminary injunction was based not on a review of that record but on the affidavits presented by both sides to the court. As the Supreme Court has only recently re-itérated, “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, supra, 411 U.S. at 142, 93 S.Ct. at 1244. There are strong policy reasons behind this requirement. Litigation affidavits are often “merely ‘post hoc’ rationalizations which have traditionally been found to be an inadequate basis for review.” Overton Park, supra, 401 U.S. at 419, 91 S.Ct. at 825; see Trailways of New England, Inc. v. C.A.B., 412 F.2d 926, 931 (1st Cir.1969). Moreover, this rule is significant in limiting courts to their proper role. Courts are to determine whether an agency’s action was arbitrary or capricious in light of the information it confronted. It is a re-view, Ía second look at the same material, not a re-doing. And, of course, limiting review to the existing administrative record also saves judicial time.

The requirement that review be on the administrative record parallels and supports the exhaustion of administrative remedies doctrine which reflects similar policies. To the extent that the record reflects consideration of arguments made and evidence submitted, it also reflects the focus which the agency had in bringing to bear its expertise. The exhaustion requirement, as it applies to administrative agencies, is no mere technical rule to enable courts to avoid difficult decisions. It is grounded in substantial concerns not only of fairness and orderly procedure, N.L.R.B. v. Rexall Chemical Co., 370 F.2d 363, 365-366 (1st Cir.1967); United States v. Tucker Truck Lines, Inc., 344 U.S. 33, 36-37, 73 S.Ct. 67, 97 L.Ed. 54 (1952), but also of competence. Courts are not best equipped, as both sides here readily agree, to judge the merits of the scientific studies and the objections to them. Specialized agencies like the FDA are created to serve that function. In this case, the regulation which, in their motion to amend, plaintiffs contend specifically governs the content of a balanced label, 21 C.F.R. § 1.3, was never presented to the Commissioner nor referred to in the administrative record. It is the significance of this omission that governs our disposition.

Plaintiffs argue that while this regulation was never mentioned in the administrative proceedings, the concept of “fair balance” which it represents was fully presented and argued by them in their initial petition, was explicitly rejected by the Commissioner in his initial letter, and that the specific statutes under which this regulation was promulgated were mentioned in plaintiffs’ letter of response. While we recognize that the concept was put forward, are fully aware of the disavantages of further delay, and do not wish to render the exhaustion doctrine a rigid and technical barrier, several factors in this case lead us to insist that the specific argument now pressed be first thrashed out in the administrative arena.

Most significantly, this is an unprecedented argument. As plaintiffs’ counsel readily admitted in oral argument before the district court, there appears to be no prior case in which an FDA drug labeling decision was challenged not by the producer but by concerned medical practitioners, and no case in which the misbranding statutes and regulations were sought to be applied not to the manufacturer’s label but to the FDA’s proposal for alteration of the label in light of new information. It is thus not surprising that the dialogue that did occur regarding “fair balance” was on an entirely different plane. The Food, Drug and Cosmetic Act as amended in 1962 requires that applicants seeking approval for marketing of new drugs present “substantial evidence” of the drug’s effectiveness as well as evidence of its safety. The term “substantial evidence” is defined' in the statute to mean “adequate and well-controlled investigations, including clinical investigations, by experts qualified by scientific training and experience to evaluate the effectiveness of the drug involved”. 21 U.S.C. § 355(d). The FDA has promulgated a detailed regulation to further refine and clarify that definition. 21 C.F.R. § 130.12. See Hynson, supra. Yet the statute provides that approval of an application may be refused or withdrawn not only because “there is a lack of substantial evidence that the drug will have the effect'it purports or is represented to have”, 21 U.S.C. § 355(d)(5), (e)(3), or there is “insufficient information to determine whether such drug is safe”, § 355(d)(4), see also § 355 (e)(2), but also if “based on a fair evaluation of all material facts”, the drug’s labeling is “false or misleading in any particular.” § 355(d)(6), (e)(4) (second sentence).

The Commissioner, in his ruling on plaintiffs’ petition, rejected the argument for “fair balance” because he said that Congress had determined in 1962 that “unsubstantiated expert opinion could no longer suffice to establish the effectiveness of drugs”, and that “Except perhaps in rare instances where there is substantial evidence on both sides of an issue, therefore, it is inappropriate to utilize the package insert to present all aspects of the evidence relating to safety and effectiveness.” Since he found that not the situation here, he saw “no basis” for a balanced label. Plaintiffs’ reply, although noting the possibility that the PDA’s proposal might constitute misbranding under the relevant statutes, see infra, primarily argued that “this is in fact one of those rare instances” in which “substantial evidence” exists on both sides of an issue and thus, as the Commissioner’s letter suggested, warranted balanced labeling treatment. The Commissioner’s reply was that the plaintiffs had not in fact presented “substantial evidence” as defined by Congress.

Now, aware of the stringency of the substantial evidence test, see Hynson, supra, the plaintiffs argue that the mis-branding statutes and regulation apply. Section 502 of the statute, 21 U.S.C. § 352, declares that “A drug . shall be deemed to be misbranded — (a) if its labeling is false or misleading in any particular.” The definitional statute (21 U.S.C. § 321 (n)) provides: “If an article is alleged to be misbranded because the labeling is misleading, then in determining whether the labeling is misleading there shall be taken into account (among other things') not only representations made or suggested . but also the extent to which the labeling fails to reveal facts material in light of such representations or material with respect to consequences which may result from the use of the article to which the labeling relates.” Implementing the latter definition is regulation 1.3:

“The existence of a difference of opinion, among experts qualified by scientific training and experience, as to the truth of a representation made or suggested in the labeling is a fact (among other facts) the failure to reveal which may render the labeling misleading, if there is a material weight of opinion contrary to such representation.”

One reading of this regulation would suggest that unsubstantiated individual clinical opinions of qualified experts, which are insuffcient under the “substantial evidence” test enacted in the effectiveness section, might be sufficient to create a fact omission of which might render the labeling misleading.

The Commissioner never considered the meaning of this regulation, its relationship to the substantial evidence test, the intersection of the safety, effectiveness, and misbranding requirements, or the applicability of the misbranding requirements, both statutory and regulatory, to an FDA proposal for re-labeling, for the simple reason that the issue was not presented to him. Arguably these are simply issues of law which we are fully capable of resolving without administrative assistance. But as the Supreme Court has very recently noted in similarly resolving a closely analogous case, the interpretation of even definitional sections in the drug law will often involve expert knowledge and the ability to evaluate the scientific evidence that becomes relevant. Weinberger v. Ben-tex Pharmaceuticals, Inc., 412 U.S. 645, 650, 93 S.Ct. 2488, 2492-2494, 37 L.Ed. 2d 235 (1973). Moreover, we have here not only novel issues concerning the interpretation of the statute, which the specialized enforcement agency should first undertake, but also unprecedented inquiries as to the meaning of the agency’s own regulations. It is thus no answer to say that an agency need not be reminded of its own regulations. Finally, both the definitional statute and its implementing regulation on which the district court relied explicitly anticipate the exercise of administrative discretion, since they require only that the omission of expert differences of opinion be considered, along with all other relevant facts, in determining whether a label is misleading. As the Court recently reaffirmed: “uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.” Ben-tex, supra at 654, 93 S.Ct. at 2494.

An equally important reason for insisting on exhaustion here is that insofar as the record reveals the administrative process seems to have been working well in this instance. The initial ad hoe advisory committee convened by the agency included several eminent critics of the UGDP study, indeed some of the plaintiffs here. While the response to Dr. Bradley’s initial communications may not have been fully satisfactory, the response to the Committee’s petition was both lengthy, detailed, and technical. Even the rebuttal letter, essentially in the form of a petition for reconsideration, a useful procedure in insuring that objections to even the supposedly final agency decision are first brought to its attention, received a specific and complete response. Arguments, studies, and materials, were not ignored; difficult problems were not swept under the rug. The communications evidenced agency recognition of the plaintiffs’ expert status, and, as the concession of standing indicates, receptivity to criticism. Additionally, we were informed at oral argument that extensive negotiations between the parties to arrive at a mutually acceptable solution to the labeling problem had been carried on during much of this litigation. We thus have more than a pious hope that a remand to the agency will not only not be futile, but could well produce the most informed and responsible solution possible.

Because the plaintiffs failed to exhaust their administrative remedies regarding the issues they now present and, consequently, the district court reviewed the agency decision on something other than the administrative record, we must vacate the injunction.

Injunction vacated; case remanded for further proceedings consistent with this opinion.

      . The right to petition the court of appeals for review under 21 U.S.C. § 355(h) is available only to a drug-marketing applicant after an order refusing or withdrawing approval of a drug application. Although the FDA has no direct statutory power to compel labeling changes, it may refuse or withdraw approval of an application, under § 355(d) or (e), if new information demonstrates that the labeling is “false or misleading.” Since the drug companies here were willing to amend their labels in accordance with the PDA proposal, no withdrawal procedures were ever begun and thus the agency action was final in a meaningful sense. Abbott, supra.

      Before this court, the government, for the first time, argued that plaintiffs did not have standing to sue, not being persons “adversely affected or aggrieved by agency action within the meaning of a relevant statute” as required by 5 U.S.C. § 702.’ Even assuming that the government may still raise this claim notwithstanding an explicit concession of standing by the specialized agency charged with interpretation and enforcement of the relevant statute, the case is properly before us. While there might be some doubt whether the plaintiff doctors, who clearly alleged “injury in fact”, Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) ; United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (U.S.1973), because of the impact of the label changes on their medical practice and on malpractice suits, have an interest “arguably within the zone of interests to be protected or regulated”, Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1969), there can be no question that the plaintiff patient’s interest is in the very center of that zone.

      ; While the plaintiffs now also contend that the agency’s failure to follow its own regulations is a violation of due process, thus apparently also invoking the review standard of § 706(2) (B), “contrary to constitutional right, power, privilege, or immunity”, that approach would change neither the nature of the review nor the result. If an agency action violates a regulation, it is “not in accordance with law” as well as violative of due process, United States v. Griglio, 467 F.2d 572 (1st Cir. 1972). Moreover, courts must review agency actions under both standards in all cases. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). If, however, a regulation has been violated, there would seldom be occasion to decide the constitutional issue.

      . Plaintiffs do not now claim that they are entitled to an evidentiary administrative hearing.

      . The plaintiffs insist that the record must include not only their petition and the Commissioner’s response, which the record before us contains, but also the original patient records of the UGDP study, any intra-agency and other memoranda, factual reports and scientific studies before the Commissioner, and the minutes taken during the deliberations of the ad hoc advisory committee convened by the PDA the day before its first press release regarding the study. While in light of our discussion we need not resolve the propriety of each of these requests, we reiterate what we recently stated in an analogous situation: “We think the law requires production of the entire administrative record .... While there may be some instances in which the entire record need not be filed, where the correctness of factual findings are involved or where the complainants request the full record, we think the agency must produce it in court. Cf. 28 U.S.C. § 2112(b).” Silva v. Lynn, 482 F.2d 1282 at 1283 n. 1 (1st Cir. 1973).

      . Similarly lie never considered the applicability or meaning of 21 C.F.R. § 1.106(b) (3) (i), which plaintiffs refer to as the “full disclosure” regulation, but which they failed to disclose hot only to the Commissioner but to the district court. Obviously, the relevance and impact of that regulation should also first be presented for administrative consideration.

      . We therefore need not decide whether reversal would have been required, as argued by the defendants, because the district court, in granting the injunction, did not, as required by Fed.R.Civ.P. 52(a), “set forth the findings of fact and conclusions of law which constitute the grounds of its action”. AA’hile the context will often render obvious the grounds of decision, district courts should generally follow the rule’s mandate to obviate any possibility of misunderstanding, unnecessary reversal and/or delay.


source: Caselaw Access Project

author: STAPLETON, District Judge. ADAMS, Circuit Judge

license: Public Domain

text:
    AFFILIATED FOOD DISTRIBUTORS, INC., Appellant, v. LOCAL UNION NO. 229, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Appellee.
    No. 72-1855.
    United States Court of Appeals, Third Circuit.
    Submitted May 24, 1973.
    Decided Aug. 14, 1973.
    Melvin S. Katzman, Jackson, Lewis, Schnitzler & Krupman, New York City, for appellant.

      John J. Dunn, Sr., Scranton, Pa., for appellee.
    Before ALDISERT and ADAMS, Circuit Judges, and STAPLETON, District Judge.
   OPINION OF THE COURT

STAPLETON, District Judge.

The sole question on this appeal is whether the appellant-employer is bound to arbitrate its damage claim against the appellee-union for breach of a no-strike clause. Appellant, Affiliated Food Distributors, Inc. (“Affiliated”) brought this action pursuant to Section 301 of the Labor Management Relations Act, 29 U.S.C.A. § 185 (1965). On motion of the appellee, Local Union No. 229, the district court ordered a stay of the action pending arbitration. Affiliated appealed from this interlocutory order, and urges that the. collective bargaining agreement between the parties does not require arbitration of its damage claim. We agree and reverse.

There is a clear congressional policy favoring private, extra-judicial resolution of labor-management disputes. In furtherance of this policy, the Supreme Court of the United States issued the following mandate in United Steel Workers of America v. Warrior and Gulf Nav. Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960):

An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.

However, even in the presence of this clear congressional policy, it remains the rule that parties are bound to arbitrate only those disputes which, under a fair construction of their collective bargaining agreement, they have bound themselves to arbitrate. As the Supreme Court noted in Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 1320, 8 L.Ed.2d 462 (1962) :

Under our decisions, whether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties. . “ [Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.”

At the heart of this matter, therefore, is the intention of the parties when they negotiated and signed their collective bargaining agreement. The parties chose the following words to evidence their agreement regarding arbitration:

Article XXIII — Arbitration

Any difference, grievance, or dispute between the Company and the Union arising out of, or relating to this Agreement, or its interpretation or application, or the enforcement thereof, except as otherwise specifically provided herein, shall be subject to the following procedure:

A. Any grievance which arises may be taken up by the Union Steward (s) with a representative of the department involved, or with an official of the Company. Grievances must be presented in writing.

B. In the event that the grievance should not have been resolved within three (3) working days, the Business Representative of the Union shall take the subject matter up with the Employer. If the Business Representative of the Union and the Employer cannot reach a satisfactory agreement within three (3) working days, the subject matter shall be referred to arbitration immediately. The arbitrator may be selected by mutual agreement between the Company and the Union. If no agreement is reached on the selection of the arbitrator within five (5) days, the arbitrator shall be selected from a panel of the American Arbitration Association.

It is to be clearly understood that the Arbitrator shall not have the power to alter any of the terms of the Agreement. Decisions of the Arbitration Board shall be final and binding on both parties. Pending the decision of the Arbitration Board, the Union will not permit any strikes or interferences with the regular routine of business. The cost of the arbitrator shall be borne equally by the parties to this Agreement.

The court below observed that “the preamble clause in and of itself is broad enough to cover the issue of whether there was a violation of the no-strike clause.” It then noted Affiliated’s contention that “the procedure through which ‘any difference, grievance or dispute’ must pass provides only for the initiation of Union grievances.” The district court concluded, however, that the contract provisions relating to procedure did not “supply the ‘positive assurance’ requisite to deny the defendant’s motion to stay.” It held:

After careful study of the arbitration clause presented here as well as the cases which have attempted to interpret similar clauses, we are unable to ascertain the true intent of the parties and therefore hold that since it is not certain that the company’s claim for damages resulting from a violation of the no-strike clause is not subject to arbitration, the Union’s motion to stay must be granted.

The principle that doubt should be resolved in favor of arbitration does not relieve a court of the responsibility of applying traditional principles of contract interpretation in an effort to ascertain the intention of the contracting parties. When a contract, fairly read with these principles in mind, is susceptible of a construction that dictates arbitration, the congressional policy favoring that form of dispute resolution may require the denial of judicial relief despite the possibility of fairly reading the contract to evidence a contrary intent. But, there is no occasion to resort to this congressional policy in a case where the contract, fairly read as a whole, is not susceptible of a construction that the parties bound themselves to arbitrate the dispute before the court. We conclude that this is such a case.

It is, of course, well, established that contract language must be read in context and that “a subsequent specification impliedly limits the meaning of a preceding generalization.” A careful reading of this agreement and an application of these principles to it, lead us to the firm conviction that the parties bound themselves to arbitrate only employee grievances. Article XXIII does not state that “any difference, grievance or dispute arising out of, or relating to this agreement, or its interpretation or application or the enforcement thereof” shall be the subject of arbitration. Rather it provides that any such difference, grievance or dispute “shall be subject to the following procedure.” The procedure that follows, as articulated in paragraphs A and B can fairly be read only as applying to employee grievances.

These paragraphs specify three successive steps in an arbitration process. “The grievance” referred to in the first sentence of paragraph B must be the written grievance presented pursuant to paragraph A and the third party-arbitrator provisions of the second sentence of paragraph B, read in context, must refer to grievances unresolved after the two preceding steps.

Initially, any grievance “may be taken up by the Union Steward(s) with a representative of the department involved, or with an official of the Company.” At the second stage, “the Business Representative of the Union shall take the subject matter up with the Employer.” Thus, at both stages the initiative is with the union. It would be a strained construction at best which would attribute to the parties the thought that a company official would refer an employer’s grievance to a union steward who would, in turn, refer the grievance to “a representative of the department involved” or to “an official of the com-, pany”.

In short, we think it may be said with positive assurance, as in Atkinson, that the arbitration clause of this collective bargaining agreement is not susceptible of a fair construction that the parties bound themselves to arbitrate employer grievances of the kind here involved.

The order of the district court granting appellee’s motion to stay will be vacated and this case will be remanded for further proceeding consistent with the views we have here expressed.

ADAMS, Circuit Judge

(dissenting):

A different understanding of the mandate of United Steelworkers of America v. Warrior & Gulf Nav. Co. and the application of that mandate to the present case compels this dissent.

The district court, confronted with the employer’s suit seeking damages from the union for violation of a no-strike clause, stayed that action pending arbitration. The majority, holding that the terms of the collective bargaining agreement did not require the employer to submit its claim to arbitration, reversed the district court. I believe that the collective bargaining agreement, read with the admonitions of Warrior & Gulf firmly in mind, requires that this dispute be submitted to arbitration. Therefore, I would affirm the district court.

As the majority points out, the arbitration clause of the collective bargaining agreement controls the determination whether or not a particular type of dispute is to be arbitrated. Explicit language in the agreement committing a question to arbitration or withholding it from arbitration is determinative. It is in the absence of such specificity that problems arise. Such is the situation here.

Warrior & Gulf states the Supreme Court’s basic understanding of Congress’ philosophy in favor of resolution of disputes through the machinery of arbitration.

To achieve the Congressionally required end, the Supreme Court has promulgated strict rules for the interpretation of the collective bargaining agreement.

“Apart from matters that the parties specifically exclude, all of the questions on which the parties disagree must therefore come within the scope of the grievance and arbitration provisions of the collective agreement.”
“An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.
“In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad.”

Rules of contract construction applicable in a normal commercial context are to be eschewed in the interpretation of the arbitration clause of a collective bargaining agreement.

It is against these dictates of Warrior & Gulf that the arbitration clause of the collective bargaining agreement in issue must be measured. First, Article XXIII is titled “Arbitration,” not “Grievance Procedure.” Second, the preamble of Article XXIII, by its terms, includes “Any difference, grievance, or dispute between the Company and the Union. .” However, as the majority points out, the procedures outlined in paragraphs A and B of Article XXIII appear to be directed towards the resolution of employee grievances. Applying “traditional principles of contract interpretation,” the majority concludes that the presence of the detailed procedure gives “positive assurance” that the arbitration clause “is not susceptible to a fair construction that the parties bound themselves to arbitrate employer grievances of the kind here involved.” I do not believe that Warrior & Gulf states that such a construction is dispositive. Rather, it appears to command that the arbitration clause be “not susceptible of an interpretation that covers the asserted dispute.” (Emphasis added). The clause in question here, I believe, is susceptible to an interpretation that would cover the matter in dispute.

Under the majority’s interpretation of the arbitration clause of the collective bargaining agreement, only employee grievances would be included within the arbitration process. This would exclude all differences, grievances and disputes raised by the employer. Yet, these items are explicitly included in the arbitration Article. Such a combined construction would appear to be a limitation on the arbitration article arguably not warranted by the language of the Article. Indeed, the thrust of the preamble, as well as its specific language, indicates a more spacious role for arbitration. While the majority’s interpretation might be the better one were ordinary rules of contractual construction applicable, the teachings of Warrior & Gulf require that if an ambiguity exists, and I believe that there is such an ambiguity, the clause must be interpreted to remit the parties to arbitration.

Analysis of cases dealing with the question of the sweep of an arbitration clause reveals that there are available to drafters of ’ collective bargaining agreements an apparently limitless variety of combinations of headings, inclusions, exclusions and procedures. Detailed disr cussion of these cases is not fruitful in connection with our problem. Similarities to the present case and differences from the present case can be found in opinions holding that questions are within the arbitration clause and those holding that a question is without. The conclusion that may properly be drawn is that each arbitration clause must be examined independently, with the mandates of Warrior & Gulf firmly in mind. Having done this, I believe that the issue raised in the district court is within the scope of the arbitration article of the collective bargaining agreement present here.

Accordingly, I respectfully dissent.

      . 28 U.S.C.A. § 1292(a).

      . 29 U.S.C.A. § 171 (1965).

      . G. T. Schjeldahl Co. v. Local Lodge 1680, 393 F.2d 502, 505 (1st Cir. 1968); Boeing Co. v. International Union, 370 F.2d 969 (3rd Cir. 1967); Illinois Bell Telephone Co. v. Local Union No. 399, 330 F.Supp. 302 (S.D.Ill.1971).

      . We are not here presented with the question of whether and under what circumstances a district court should consider tendered evidence other than the contract itself in attempting to determine whether there is “positive assurance” that arbitration was not contemplated by them. See Strauss v. Silvercup Bakers, Inc., 353 F.2d 555 (2nd Cir. 1965).

      . G. T. Schjeldahl Co. v. Local Lodge 1680, 393 F.2d 502, 504 (1st Cir. 1968).

      . Cf. Boeing Co. v. International Union, 370 F.2d 969 (3rd Cir. 1967) ; G. T. Schjeldahl Co. v. Local Lodge 1680, 393 F.2d 502, 505 (1st Cir. 1968).

      . 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).

      . The damages claimed by the employer are for injury suffered from a strike occurring between November 1, 1971 and November 3, 1971.

      . See Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962) quoted by the majority.

      . See Independent Oil Workers at Pauls-boro, N. J. v. Mobil Oil Corp., 441 F.2d 651 (3d Oir. 1971). In that ease, this Court stated that the presence of a clause which provided that “ ‘nothing in this agreement shall prevent’ application to a court of competent jurisdiction” operates as “an ‘escape’ clause which nullifies the mandatory terms of the earlier language and makes arbitration optional.” Id. at 653-654.

      . United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).

      . Id. at 581, 80 S.Ct. at 1352. (Emphasis added.)

      . Id. at 582-583, 80 S.Ct. at 1353. (Emphasis added.)

      . Id. at 584-585, 80 S.Ct. at 1354. (Emphasis added.)

      . The Supreme Court in Warrior & Gulf stated:
      “In the commercial case, arbitration is the substitute for litigation. Here arbitration is the substitute for industrial strife. Since arbitration of labor disputes has quite different functions from arbitration under an ordinary commercial agreement, the hostility evinced by courts toward arbitration of commercial agreements has no place here.” Id. at 578, 80 S.Ct. at 1351.

      . Compare G. T. Schjeldahl Co. v. Local Lodge 1680, International Association of Machinists, 393 F.2d 502 (1st Cir. 1968).

      . To the extent that the majority relied on language in this Court’s opinion in Boeing Co. v. International Union, 370 F.2d 969 (3d Cir. 1967), for the proposition that a “fair construction” of the provision is the standard, I believe such reliance to be misplaced. First, the Supreme Court in Atkinson v. Sinclair Refining, supra, found that, regarding the arbitration clause in question there, “We think it unquestionably clear that the contract here involved is not susceptible to a construction that the company was bound to arbitrate.” 370 U.S. at 241, 82 S.Ct. at 1321. (Emphasis added.)
      Moreover, this Court, in Boeing, held that “the arbitration clause is not susceptible of a construction that the plaintiff was bound to arbitrate.” 370 F.2d at 971. (Emphasis added.)

      . See Atkinson & Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962); Drake Bakeries Inc. v. Local 50, American Bakery & Confectionery Workers International, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962); Independent Oil Workers at Paulsboro, N. J. v. Mobil Oil Co., 441 F.2d 651 (3d Cir. 1971); Boeing Co. v. International Union, 370 F.2d 969 (3d Cir. 1967) ; G. T. Schjeldahl Co. v. Local Lodge 1680, 393 F.2d 502 (1st Cir. 1968) .


author: KERR, District Judge.

text:
    Everett TUCKER, Petitioner-Appellant, v. Park J. ANDERSON, Warden, Oklahoma State Penitentiary, McAlester, Oklahoma, Respondent-Appellee.
    No. 72-1588.
    United States Court of Appeals, Tenth Circuit.
    July 23, 1973.

      Arthur L. Fine, Denver, Colo., for petitioner-appellant.
    Paul Crowe, Asst. Atty. Gen., Oklahoma City, Okl., for respondent-appellee.
    Before BREITENSTEIN and DOYLE, Circuit Judges, and KERR, District Judge.
   KERR, District Judge.

Appellant, Tucker, appeals from the dismissal of his petition for a Writ of Habeas Corpus by the United States District Court for the Northern District of Oklahoma.

Tucker alleged he was denied the right of counsel and was coerced into pleading guilty. He first sought relief in state courts, where one evidentiary hearing was held, but was denied relief in all eases. Having exhausted his state remedies, Tucker filed his petition in federal court, which also denied relief without affording appellant an eviden-tiary hearing.

The basis of Tucker’s petition stems from his conviction and sentencing for murder in 1935. Tucker, then nineteen years of age, and his brother were charged with first degree murder of Betty Stewart. They were brought before the Justice of the Peace and according to a brief statement found in the “Record of Proceedings” waived their rights to a preliminary hearing. Two days later they appeared in District Court, without counsel, after having allegedly waived their right to counsel, and pled guilty to first degree murder. Appellant was then sentenced to life in prison.

The central issue which arises is whether Tucker intelligently waived his right to counsel. The record in the state court evidentiary hearing on Tucker’s habeas application shows that he was brought before a Justice of the Peace and “after complaint had been read and [his] rights explained to [him] [he] waived preliminary hearing, and [was] committed to the Osage County jail to await trial”. Two days later he was arraigned in state district court. A clerk’s minute entry shows that he said he did not have an attorney, did not desire one, and pled guilty to murder. At the state post conviction hearing, Tucker was the only witness. He testified that he had not been advised by the district court of his right to counsel and was not aware of that right. He admitted saying that he did not desire an attorney. When questioned about the proceedings before the Justice of the Peace, he said that he did remember having been taken before a Justice of the Peace. This court has previously stated “. the record must plainly show that the accused was offered the assistance of counsel but intelligently and understandingly rejected the offer.” Berryhill v. Page, 349 F.2d 984 (10th Cir. 1965) (Emphasis supplied). Furthermore, the United States Supreme Court has held that a court may not presume waiver of counsel from a silent record and evidence must be produced to prove the accused waived his right intelligently and understandingly. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). The notation in the record of the Justice of the Peace court that Tucker was advised of his “rights” is insufficient. Browning v. Crouse, 356 F.2d 178, 180, cert. denied 384 U.S. 973, 86 S.Ct. 1864, 16 L.Ed.2d 683.

It is requisite for this court to view the special circumstances which existed when appellant allegedly waived his right to counsel. As previously stated, Tucker was nineteen years old, with only a second grade education. He was unable to either read or write. Having never been in trouble prior to the arrest for murder, Tucker was totally unfamiliar with the law and courts. Facts such as these led this court in the case of Cordova v. Cox, 351 F.2d 269 (10th Cir. 1965), to hold that Cordova had sustained his burden of proving his plea of guilty was not made intelligently and understandingly and further that he had established a prima facie case.

The most controlling authority in this matter is the case of Berryhill v. Page, supra. The facts in that case so closely parallel the case now before this court, that little more can be added. Although Berryhill was about forty at the time he pled guilty in 1940, the fact Tucker was only nineteen when he pled guilty lends even more credence to the fact he did not intelligently waive his right to counsel. See also Lesley v. State of Oklahoma, 407 F.2d 543 (10th Cir. 1969).

This court has also kept in mind that a presumption against valid waiver arises where a defendant appears in court without counsel. Humphries v. State of Oklahoma, 373 F.2d 200 (10th Cir. 1967).

The federal court held no evidentiary hearing in this matter and said that the file and transcript of the state post conviction proceedings sustained the findings and conclusions of the state court. We disagree. That record contains no facts to support either the findings or the conclusions that Tucker intelligently and voluntarily waived his right to counsel.

It might be well to note that notwithstanding the clear import of the law, this court is reluctant to reverse the lower court since appellant chose to wait thirty-six years to raise the issue when all who were involved, including his brother, were deceased, and we recognize the great responsibilities and hardship placed on the state courts to hear such matters after so many years have passed. Another factor which has troubled the court was that Tucker, after having been free some fourteen years, raised the issue only after he returned to prison for parole violation.

Since the law pertaining to this matter is so absolute, the order dismissing the petition for Writ of Habeas Corpus is reversed and the cause is remanded to the United States District Court with directions that the case be held in abeyance for a period of ninety days from the date of the issuance of the Mandate. If within that time the state takes corrective measures that protect the appellant’s constitutional rights, the petition for Writ of Habeas Corpus shall be dismissed. If the state does not take such measures, the appellant shall be released at the end of ninety days.


author: PER CURIAM:

text:
    HARTFORD FIRE INSURANCE COMPANY, Plaintiff-Appellee, v. Leda HERRALD, as administratrix of the Estate of Hoyt W. Herrald, Deceased, and Leda Herrald, Individually, Defendant-Appellant.
    No. 71-1997.
    United States Court of Appeals, Ninth Circuit.
    Aug. 13, 1973.

      Haig A. Harris, Jr. (argued), of Scampini, Mortara & Harris, San Francisco, Cal., for defendant-appellant.
    Augustus Castro (argued), Paul A. Renne, Thomas A. H. Hartwell, of Cooley, Crowley, Gaither, Godward, Castro & Huddleson, San Francisco, Cal., for plaintiff-appellee.
    Before CHAMBERS and TRASK, Circuit Judges, and TAYLOR, District Judge.

       The Honorable Fred M. Taylor, Senior Judge of the United States District Court for the District of Idaho, sitting by designation.

   PER CURIAM:

Hartford brought this action for a declaratory judgment that it had no liability on a homeowner’s policy and on a scheduled/valued policy, both of which were issued to the Herralds. The Her-ralds had filed claims for losses due to theft from their home of several art objects and other items. Hartford claimed no liability because of failure of the Herralds to make certain disclosures in their applications for insurance and for failure of the Herralds to cooperate with counsel for Hartford after the claims had been made. The Herralds counterclaimed for the amounts of the policies and for damages.

After trial to a jury, the jury rendered a general verdict against the Her-ralds on their counterclaim. . The jury also answered several interrogatories submitted by the judge, on the basis of which answers the judge entered judgment in favor of Hartford on the declaratory judgment action. Mrs. Herrald, representing herself and the estate of Mr. Herrald, who died during the pen-dency of this case, has appealed.

The Herralds were entitled to a jury, if timely demanded, under Beacon Theatres v. Westover, 359 U.S. 500, 79.S.Ct. 948, 3 L.Ed.2d 988 (1959), since they would have been so entitled if they had initiated the action. They did make timely demand. There is confusion in the record whether on the declaratory judgment questions the trial court treated its interrogatories as addressed to an advisory jury under Rule 39 F.R.Civ.P. or as addressed to the jury as the fact-finder under Rule 49 F.R.Civ.P. We decline to attempt to unravel this confusion. The jury found against the Herralds in a general verdict on the counterclaim. The questions on the counterclaim were so close to identical to the questions on the declaratory judgment that there was no denial of the right to jury trial; and there was no prejudice to the Herralds in the handling of the interrogatories.

The court did not abuse its discretion in the manner in which it chose to deal with the objectionable conduct of counsel for Hartford.

The judgment is affirmed.


author: CHAMBERS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff and Appellee, v. Roberto Able GAMBOA, Defendant and Appellant.
    No. 73-1597.
    United States Court of Appeals, Ninth Circuit.
    Aug. 20, 1973.
    Rehearing Denied Oct. 4, 1973.
    George Haverstick (argued), San Diego, Cal., for defendant and appellant.
    William A. Bower, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty., San Diego, Cal., for plaintiff and appellee.
    Before HASTIE, CHAMBERS and CHOY, Circuit Judges.
   CHAMBERS, Circuit Judge.

The judgment of conviction in this narcotics case is affirmed.

The main issue on the appeal is whether the court erred in denying a motion to reveal the identity of an informer.

Gamboa was stopped at the San Ysi-dro, California, border check station on September 2, 1972, as he entered from Mexico. The automobile was not Gam-boa’s and it had no registration paper. But it did have a lot of seconal secreted in the panels of the body of the car.

Narcotics “intelligence” is stored in some sort of a government computer. A government agent signals in the number of an automobile’s license plate. If there is a record, he gets back what is called a “cadpin” printout.

When the car driven by Gamboa came across the border, the computer was queried by submitting the car’s license number. Back came a “printout” alerting the border agent, a careful search of the car following. The search was rewarding.

The district court, the United States attorney, and we have seen the printout. Defendant and his counsel have not.

Naturally, the government does not want to put its information on the bulletin board. While the printout is confidential, we think we can use common sense and partially reveal its contents and also state what it does not contain.

The printout did not mention Gamboa at all. The information went into the computer about six weeks prior to the event of September 2, 1972. It did mention another, presumably the car’s owner, and some of his associates.

Anyway, there is nothing to suggest that there was an informer as to Gam-boa’s particular transaction. Thus, disclosure of the cadpin report could not have served the interest of Gamboa very well. Public interest therefore outweighs any position Gamboa has.

In sum, there was no informer on Gamboa or the day’s events. If Gamboa did not know the owner of the car, he could have obtained his name from the California Motor Vehicle Department.

On the question of sufficiency of the evidence, we find it adequate.


author: RONEY, Circuit Judge:

text:
    Mrs. Yvonne Reed LEGER, Individually and as tutrix of her minor children, et al., Plaintiffs-Appellants, v. WESTINGHOUSE ELECTRIC CORPORATION and Liberty Mutual Insurance Company, Defendants-Third Party Plaintiffs-Appellees, v. CITIES SERVICE OIL COMPANY et al., Third Party Defendants-Appellees.
    No. 72-3411.
    United States Court of Appeals, Fifth Circuit.
    July 25, 1973.
    Rehearing Denied Aug.- 28, 1973.
    W. D. Atkins, Jr., Lafayette, La., for plaintiffs-appellants.
    W. R. Tete, Lake Charles, La., for Cities Service & Ins. Co. of N. A.
    Meredith T. Holt, Edmund E. Wood-ley, Lake Charles, La., for Kellog.

      A. Lane Plauche, Lake Charles, La., for Transformer.
    James J. Davidson, Jr., Robert M. Ma-hony, Lafayette, La., for appellees.
    Reginald W. Farrar, Jr., Lake Charles, La., for Westinghouse Elec. Corp. and Liberty Mutual Ins. Co.
    Before THORNBERRY, AINS-WORTH and RONEY, Circuit Judges.
   RONEY, Circuit Judge:

Conversations between a juror and the defendant insurance company’s representative during trial recess require this jury verdict to be set aside under United States v. Barfield, 359 F.2d 120 (5th Cir. 1966), unless the District Court was correct in holding that the evidence was insufficient to present a jury question. Holding that there was sufficient evidence for a jury issue, we reverse.

Joseph D. Leger was fatally burned on November 6, 1969, when a large high voltage switch manufactured by Westinghouse Electric Corporation exploded at the Cities Service Oil Company Refinery in Lake Charles, Louisiana, where he was employed by Sline Industrial Painters.

In this diversity action for wrongful death against Westinghouse and its insurer, the jury found no defect in the design of the switch and no negligence on the part of Westinghouse which was a proximate cause of Leger’s death.

On two or three occasions during the lengthy trial, however, a representative of Liberty Mutual Insurance Company conversed with a juror about the weather, antiques, and the insurance man’s father’s retirement. One conversation, in the coffee room, lasted some twenty-five minutes. The trial court denied plaintiffs’ motion to have the juror removed and replaced with an alternate juror on the basis that the subjects of the conversations apparently did not concern the case.

After the adverse jury verdict, plaintiffs filed motions for new trial and judgment notwithstanding the verdict based on several alleged errors, including the two involved in this appeal.

Although it thought the juror’s conversations harmless, the District Court, 54 F.R.D. 574, stated that, under United States v. Barfield, supra, it would grant a new trial unless it were clear that there was no substantial evidence which could have supported a contrary verdict. After further consideration, the Court concluded that there was insufficient evidence to support a verdict for plaintiffs and a new trial would be useless.

Plaintiffs’ multiple theory of recovery was comprised of the Louisiana doctrine of res ipsa loquitur-, Westinghouse’s negligence in manufacturing, failing to warn, and failing to instruct properly as to operation and maintenance; and strict products liability.

The evidence showed that Joseph Leger, a painter, was preparing'to work inside a transformer substation when the high voltage switch exploded and he was fatally burned by flaming oily material. The exact cause of the explosion could not be proved. One primary expert witness was called by each side, and several consultants gave peripheral testimony. Plaintiffs’ principal witness, a well qualified consulting engineer, pointed out several design weaknesses, about which the manufacturer should have provided warning. He explained that any of several technical external factors could have triggered one of these defects and caused the accident.

Westinghouse’s senior design engineer, although claiming that the devices were not defective, admitted in his testimony that the alleged weaknesses could have been avoided and that the equipment’s instructions did not warn of the dangers which could cause failure. The device’s twenty-six years of usage notwithstanding, no expert contended that the accident resulted from normal usage, except that natural factors, such as moisture and vibrations, likely triggered the flaw.

In considering the sufficiency of the evidence, we must consider all the evidence “in the light and with all reasonable inferences most favorable to the party opposed to the motion.” Boeing v. Shipman, 411 F.2d 365 (5th Cir. 1969). The explanation of the accident posed by plaintiffs’ expert — design defects, inadequate operation and maintenance instructions, triggering by natural, physical factors — is not implausible. The competence and credibility of the witnesses were challenged. The evidence was of “such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might [have reached] . . . different conclusions,” Boeing v. Shipman, supra, at 365, and the evidence, therefore, was sufficent to go to the jury.

Having found a jury issue, we agree with the District Court that this case is controlled by United States v. Barfield, supra, and that a new trial is required.

In Barfield, an action for federal income tax refund, this Court held that the elevator conversations between the president of the corporate taxpayer and the jurors about family relationships created such inherent harm that a new trial was necessary. Although' it was alleged that no harm was done, the Court reasoned that

[o]ur system of trial by jury presupposes that the jurors be accorded a virtual vacuum wherein they are exposed only to those matters which the presiding judge deems proper for their consideration. This protection and safeguard must remain inviolate if trial by jury is to remain a viable aspect of our system of jurisprudence. Any conduct which gives rise to an appearance of evil must be scrupulously avoided.

359 F.2d at 124.

In the case at bar, the exchanges between the juror and the litigants’ representative were deliberate conversations, not inadvertent exchanges or greetings. The insurance man was not a novice at personal injury litigation, and his failure to terminate the conversations immediately evidences his inclination to identify himself to the juror. Although their exchange did not broach upon the litigation, their discussion of common interests constituted the sort of personal involvement prohibited by Barfield, where the conversation was even more public than those in question. Barfield teaches that the harm is inherent in the deliberate contact or communication between juror and litigant.

This result necessarily requires the vacating of the ordered dismissal of the other defendants inasmuch as that order was based on the exoneration of Westinghouse.

Vacated, reversed and remanded.


text:
    Maria F. G. MENDOZA, individually and on behalf of all other persons similarly situated, Plaintiff-Appellee-Cross Appellant, v. CITY OF MIAMI and David Kennedy, as chief legislative officer of the City of Miami, et al., etc., Defendants-Appellants-Cross Appellees.
    No. 73-1672
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 14, 1973.
    Rehearing Denied Sept. 6, 1973.

      Alan H. Rothstein, City Atty., S. R. Sterbenz, Asst. City Atty., Miami, Fla., for defendant-appellants-cross-appellees.
    Luis P. Salas, Miami, Fla., Russell E. Carlisle, Kenneth F. Tworoger, Fort Lauderdale, for plaintiff-appellee-cross-appellant.
    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:

These are cross-appeals from a summary judgment entered against the Mayor, the City Manager, and the Chairman of the Civil Service Board of the City of Miami, Florida, in a suit brought by the appellee, an alien, concerning discrimination against aliens in the City’s employment practices. We affirm.

1. The Court correctly held the civil service rule excluding aliens from employment to be unconstitutional. Sugarman v. Douglass, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973). The unconstitutionality of excluding aliens being the only issue in the case, the District Court’s order striking Rule V, Section 3 of the City of Miami Civil Service Rules and Regulations must be construed to affect only the clause pertaining to citizenship.

2. There was no abuse of discretion by the trial judge in finding that $2,800 was sufficient compensation to be awarded the cross-appellants’ attorneys, which amount was supported by the affidavits introduced into evidence.

3. The City of Miami and the City of Miami Civil Service Board were properly dismissed from the suit due to improper service of process: wives are not authorized to receive service for the respective chief executive officers in their official capacities. F.R.Civ.P. 4(d) (6) ; F.S.A. §§ 48.111 and 120.071.

4. The cause is remanded to the District Court for consideration of an award of attorney’s fees for the prosecution of this appeal.

Affirmed and remanded for consideration of attorney’s fees.


text:
    UNITED STATES of America, Plaintiff and Appellee, v. Francis Leo CAPPAERT et al., Defendants and Appellants, and State of Nevada ex rel. Roland D. Westergard, State Engineer, Intervenor and Appellant.
    No. 73-2168.
    United States Court of Appeals, Ninth Circuit.
    Aug. 20, 1973.
    Samuel S. Lionel, of Lionel, Sawyer, Collins & Wartman, Las Vegas, Nev., for defendants and appellants.
    DeVoe Heaton, U. S. Atty., Peter D. Laxalt, George Allison, Sp. Deputy At-tys. Gen., Carson City, Nev., for plaintiff and appellee.
   ORDER

Before CHAMBERS and WALLACE, Circuit Judges, and SCHWARTZ, District Judge.

PER CURIAM:

This court is of the view that the preliminary injunction issued in the district court should be modified there to provide that the pumping of defendants be restricted to the extent necessary to maintain the water level of Devil’s Hole at its level existing as of the date of the filing of this order; that is, as best the actual level as of this date can be ascertained; or at the level existing on August 7,1973, whichever is higher.

This more nearly serves to preserve the status quo than the temporary injunction granted in District Court.

We regard the circumstance that there is apparently no recourse to defendants-appellants for damages (if the preliminary injunction was improvidently issued) as a strong equity to weigh in the balance for the defendants.

Further, on our present record there is little reason to believe that the present order we now direct will result in the extinction as a species of the pup-fish in Devil’s Hole.

Further, we make this comment: We see no reason that the government should not have here now sought to get this case to trial on the merits and a final decree entered. It is doubtful if there is much more evidence to be presented. And it is not right for the government to prolong the entire litigation one day longer than is necessary.

Our decision is effective immediately as a judgment and mandate.

If the government can represent that it can and would legally indemnify the defendants against loss if it eventually develops that the original temporary injunction was improvidently issued, the court as now constituted would be willing to entertain a motion to reconsider this order.

Remanded for proceedings consistent herewith.

       The Honorable Edward J. Schwartz, United States District Judge for the Southern District of California, sitting by designation.


text:
    Ronald BOWMAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-2921.
    United States Court of Appeals, Fifth Circuit.
    Aug. 20, 1973.
    Anthony J. P. Farris, U. S. Atty., Houston, Tex., for respondent-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

       Chief Judge Brown did not participate in this decision.

   PER CURIAM:

Ronald Bowman has applied to this Court for leave to appeal in forma pauperis from the district court’s denial of his motion to vacate judgment and sentence, 28 U.S.C. § 2255. We grant the motion and summarily remand the cause.

Bowman, acting as his own attorney, was convicted by the district court, sitting without a jury, of four counts charging violations of 21 U.S.C. §§ 176a and 174. On June 9, 1969, he was sentenced to serve four concurrent ten-year sentences. In his § 2255 motion filed below, the denial of which he now seeks to appeal, he challenged the validity of the convictions on grounds that: (1) the presumption that the marihuana was illegally imported, as proscribed by Leary v. United States, 1969, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, was used against him; (2) the evidence was insufficient to convict him; (3) evidence obtained pursuant to an illegal arrest and search .was admitted against him; (4) his waiver of counsel was not understandingly made; and (5) he was denied his right to take a direct appeal in for-ma pauperis. The district court summarily denied the motion, finding no merit to any of the claims made.

Pretermitting decision on any of the other contentions, we believe the district court erred in its finding that Bowman was not denied his appellate rights.

The record before this Court shows that at the time he was sentenced, the trial court was aware that Bowman was indigent, having previously appointed counsel to represent him. The record further reveals that after sentence was imposed, the court technically complied with Rule 32(a)(2), F.R.Cr.P., which requires the Court to advise a defendant of his right to appeal as a pauper. The transcript of the sentencing discloses the following exchange between Bowman and the court:

“THE COURT:
-X- * * * * *
Now, it is my duty to tell you that you are entitled to take an appeal from this conviction if you desire to do so. If you are an indigent person you may make application to the Court for leave to appeal in forma pauperis. And if you desire -that the Clerk do so, she will enter your notice of appeal at this time. And you also may request of the Court of Appeals for the Fifth Circuit at New Orleans appointment of counsel to help you with the appeal. And if you desire to appeal, I recommended to you that you take that action, just as I recommended to you that you be represented by counsel here, despite the fact that you did not take that advice.
That is all for now.
THE DEFENDANT:
Sir, could I have an appeal bond set, Sir?
THE COURT:
Yes, I will fix an appeal bond at $25,000.”

While Bowman never specifically stated to the court that he intended to appeal the conviction, and the court did not specifically inquire as *to his wishes in this regard, it is clear from his request for an appeal bond that he did in fact desire to appeal, and the court should have directed its Clerk to file a notice of appeal on his behalf.

The record before this Court also shows that for some time after his sentencing Bowman was under the impression that he did have a direct appeal pending. Within two weeks after being sentenced, he wrote the district judge requesting that his bond be lowered and inquiring as to the procedure for obtaining his trial transcript for appellate purposes. .He was advised by letter of June 25, 1969 that his bond would not be reduced, and that the court reporter was the proper party to contact with respect to his transcript. Bowman apparently believed that his appeal was still pending as late as January, 1970, when he wrote to this Court seeking appointment of counsel to represent him on the appeal. It was at that time he learned that notice of appeal had never been filed, and thus he had no appeal pending. Shortly thereafter Bowman began his efforts to remedy the situation by filing various petitions in the district court, among them, a § 2255 motion filed in 1970, a motion for leave to file a notice of appeal out of time, filed in 1971, and finally, the § 2255 motion sub judice.

In view of the circumstances above described, we are compelled to conclude that Bowman was denied his right to take a direct appeal from his conviction, which was a result of no negligence on his part, but arose because of his lack of the wherewithall to perfect it on his own. We therefore remand the cause to the district court with directions that its Clerk file notice of appeal in forma pau-peris on Bowman’s behalf nunc pro tunc as of June 9, 1969, and directions that the court appoint counsel to represent Bowman on the appeal if he so desires.

Remanded.

      . 28 U.S.C. § 1915.

      . It is appropriate to dispose of this case summarily. See Groendyke Transportation, Inc. v. Davis, 5th Cir. 1969, 406 F.2d 1158.

      . Counsel was apparently relieved of his appointment pursuant to Bowman’s request.


text:
    UNITED STATES of America, Appellee, v. Ellen MORGAN, Appellant.
    No. 73-1039.
    United States Court of Appeals, Tenth Circuit.
    Aug. 15, 1973.
    Theodore S. Halaby, Denver, Colo. (James L. Treece, U. S. Atty., Theodore S. Halaby, Asst. U. S. Atty., Denver, Colo., on the brief), for appellee.
    Philip M. Jones, Denver, Colo. (Henry V. Ellwood, Denver, Colo., on the brief), for appellant.
    Before JONES, HILL and SETH, Circuit Judges.

       Of the Fifth Circuit, sitting by; designation.

   PER CURIAM:

Ellen Morgan, was convicted under an indictment charging her with the possession of a check stolen from the mail in violation of 18 U.S.C.A. § 1708. The check was payable to a Linda Wilkerson who lived above the appellant. The evidence showed that the check was a welfare check which in due course of the operation of the welfare department of the city and county of Denver would have been mailed for delivery to the payee on November 2, 1970. On this date the check was cashed at a Denver bank bearing the forged endorsement of the payee. A handwriting expert testified for the Government that the endorsed signature was forged by the appellant. As her only witness the appellant testified that she had never seen and did not endorse the check. In rebuttal the Government called another handwriting expert who had been appointed for and on the application of the appellant, but who was not called by her to testify. This witness gave his opinion that the endorsement was made by the appellant.

The principal contention of the appellant is that the evidence was insufficient to sustain the conviction. This issue is resolved against the appellant by Webb v. United States, 10th Cir. (1965), 347 F.2d 363, where the facts are substantially the same as those presented on this appeal.

It is urged by the appellant that the Government should not have been permitted to call as its witness on rebuttal the handwriting expert who had been appointed at her request. She raises the unique but hardly plausible contention that Government counsel would never have heard of and hence would not have called this witness if he had not been appointed on her behalf. There might' be some basis for asserting that the testimony of this witness was not proper rebuttal. If the admission of such testimony was error, such error was harmless. See United States v. Milano, 10th Cir. (1971), 443 F.2d 1022; cert. den., 404 U.S. 943, 92 S.Ct. 294, 30 L.Ed.2d 258.

The other matters raised by the appellant have been considered and found to be without merit. The judgment of the district court is

Affirmed.


author: JAMES M. CARTER, Circuit Judge.

text:
    In the Matter of Cecil STATHAM, Bankrupt. Cecil STATHAM, Bankrupt-Appellant, v. W. Stanley RIDDLE, Jr., Trustee-Appellee.
    No. 72-1260.
    United States Court of Appeals, Ninth Circuit.
    Aug. 7, 1973.
    Certiorari Denied Dec. 3, 1973.
    See 94 S.Ct. 578.
    Jack Steinberg (argued), Seattle, Wash., for bankrupt-appellant.
    W. Stanley Riddle, Jr. (argued in pro. per.), of Riddle & Hines, Seattle, Wash., for trustee-appellee.
   OPINION

Before CHAMBERS, CARTER and GOODWIN, Circuit Judges.

JAMES M. CARTER, Circuit Judge.

Appellant Statham attacks the constitutionality of the Homestead Laws of the State of Washington under the Equal Protection Clause of the Fourteenth Amendment.

On August 16, 1970, appellant, a single man without dependents, recorded a declaration of homestead on real property in the State of Washington. The following day, August 17, 1970, he filed a voluntary petition in bankruptcy and was adjudicated a bankrupt. Thereafter he claimed the real property as exempt under Washington law. The Bankruptcy Act laws exemptions provided by State law, Section 6 of the Act, 11 U.S.C. § 24.

The claim was disallowed by the trustee and the referee, and a petition for review was denied by the district court.

Statutes of the State of Washington permit a homestead to be selected by an unmarried person who is the head, of a family. R.C.W. 6.12.020. “Head of a Family” is defined as a person who has residing on the premises with him [or her] and under his [or her] care and maintenance various relations listed therein. R.C.W. 6.12.290(2) (a) through (e).

R.C.W. 6.12.290(1) lists as the head of a family:

“The husband or wife, when the claimant is a married person; or a widow or widower still residing upon the premises occupied by her or him as a home while married.”

Otherwise, a single person is not included as eligible for a homestead.

In the field of economics and social welfare, legislation does not violate the Equal Protection Clause of the Fourteenth Amendment if “the State’s action be rationally based and free from invidious discrimination.” Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (Aid for Dependent Children); accord McGowan v. Maryland, 366 U.S. 420, 425-428, 81 S.Ct. 1101, 6 L.Ed.2d 393 (Sunday Blue Laws).

In United States v. Kras, 409 U.S. 434, 446, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973) the Court held that “bankruptcy legislation is in the area of economics and social welfare. This being so, the applicable standard, in measuring the propriety of Congress’ classification, is that of rational justification.” (Citing Dandridge, supra, inter alia.) The Court also held there was no due process or equal protection right to a discharge in bankruptcy without payment of the required filing fees. The Court rejected Kras’ claim that bankruptcy involved a fundamental interest and represented the sole means of discharging one’s debts, at least for the poor. The Court said, “We see no fundamental interest that is gained or lost depending on the availability of a discharge in bankruptcy.” Id. at 445, 93 S.Ct. at 638. And further, “There is no constitutional right to obtain a discharge of one’s debt in bankruptcy.” Id. at 446, 93 S.Ct. at 638. See Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971) (Social Security Act).

We hold that the State of Washington, in its statutes concerning homesteads, had a rational basis for the legislation and its treatment of a single person without dependents. By reasonable inference from the scheme of the Washington statutes, they evince a legislative purpose to protect the “family” from loss of its homestead in case of economic distress. Appellant argues that the scheme instead exists to protect not only the family, but the individual debtor himself — including single debtors without dependents such as appellant. We cannot agree. The “head of a family” and his family are clearly the persons protected, defined broadly to include certain dependents not members of one’s immediate family.

Appellant points out that the statute does protect single persons without dependents, who also happen to be widow(er)s still living in the former marital domicile. We think that protection of the former family, one of whose members has died, from the loss of the homestead at such a tragic time, constitutes a rational basis for differentiating between widow(er)s and other single persons without dependents who by definition would not be subject to such a loss.

The judgment is affirmed.

      . That classification does not endanger a fundamental personal right. See Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972) (legitimacy).


text:
    The FIDELITY AND CASUALTY COMPANY OF NEW YORK and E. F. Hutton and Co., Inc., Plaintiffs-Appellants, v. The KEY BISCAYNE BANK, Defendant-Third-Party Plaintiff-Appellee, v. Charles L. LEWIS, Third-Party Defendant-Appellee.
    No. 72-2545
    United States Court of Appeals, Fifth Circuit.
    Aug. 22, 1973.
    James E. Tribble, John B. Kelley, John R. Hoehl, Mark Hicks, Miami, Fla., for plaintiffs-appellants.
    Peter Fay, Alan G. Greer, Miami, Fla., Charles L. Lewis, Breadbasket Corp., Atlanta, Ga., for defendants-ap-pellees.
    Before TUTTLE, GODBOLD and MORGAN, Circuit Judges.
   PER CURIAM:

Fidelity & Casualty (F & C) sued the bank charging that the bank converted 900 shares of IBM stock, the property of Hutton, a brokerage firm covered by a surety bond written by F & C. F & C alleged that it had paid to Hutton $284,850.00, the value of the stock, and was subrogated to Hutton’s rights.

In a nonjury trial F & C first established ownership of the stock by Hutton and its disappearance. The stock was held in what is known as street form, that is, on the face of the nine 100-share certificates Hutton was shown as owner and on the reverse side each certificate was endorsed by Hutton in blank. Next, F & C called as an adverse witness the president and chairman of the bank, who testified to the bare skeletal details of acceptance of the nine certificates as collateral in a loan transaction with Charles L. Lewis. The bank had later called Lewis’s loan and at his direction had sold the stock and discharged his loan. On cross-examination of the president-chairman and over objection by plaintiff, the bank was permitted to inquire into matters which, according to plaintiff, went beyond the scope of the direct examination. Plaintiff claims that its direct examination was limited to proving that the bank had appropriated the stock by accepting it as security for a loan, while the cross examination went into numerous details tending to show that the bank had acted in good faith and without any knowledge of any infirmity in Lewis’s ownership rights in the stock.

By its third and last witness, F & C established the amount and payment of the loss and its rights as subrogee. Both parties moved for a directed verdict at the conclusion of plaintiff’s case, and the court granted defendant’s motion.

On appeal we are presented with these issues. First, is the suit one for common law conversion of negotiable stock or has that action been abolished by the Uniform Commercial Code as adopted in Florida? Second, under the applicable law, statutory or common, is plaintiff required to prove defendant’s lack of good faith as a part of its prima facie case, or is good faith an affirmative defense to be proved by the defendant? Third, did the court err in overruling plaintiff’s objection to cross examination of the president-chairman? See F.R. Civ.P. 43. Fourth, once these prior questions have been answered, is the evidence sufficient under applicable standards to support the granting of a motion under F.R.Civ.P. 41(b) at the conclusion of the plaintiff’s case? That rule provides :

After the plaintiff, in an action tried by the court without a jury, has com-. pleted the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a).

In this instance the court rendered judgment on the merits against the plaintiff but did not enter findings and conclusions as provided in F.R.Civ.P. 52(a). The trial judge announced his decision from the bench and gave his reasons, but the transcript of his statements does not enable, us to answer with assurance the issues presented to us on appeal. The case must be remanded in order that the trial court can “find the facts specially and state separately its conclusions of law” as required by Rule 52(a).

Vacated and remanded.

      . The bank joined Hutton as third party defendant alleging negligence by it and claiming recovery over for any amounts it was required to pay F & C. Hutton was realigned as plaintiff and the bank’s claim against it treated as a counterclaim.


author: PER CURIAM.

text:
    STATE OF MAINE et al., Plaintiffs-Appellees, v. Robert W. FRI, etc., et al., Defendants-Appellants.
    Misc. No. 73-8042.
    United States Court of Appeals, First Circuit.
    Submitted July 12, 1973.
    Decided July 17, 1973.
    As Amended Aug. 20, 1973.,

      Walter H. Fleischer and William D. Appier, Attys., Dept, of Justice, Washington, D. C., for appellants upon motion for stay pending appeal.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   PER CURIAM.

Appellees sought relief in the district court against the acting administrator of the Environmental Protection Agency and a regional administrator, seeking to require compliance with Title II of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1281 et seq. In particular, it was alleged that appellants were illegally refusing to allot funds appropriated by Congress under 33 U.S.C. § 1287 and that this refusal, if continued beyond June 30, 1973, would result in the absolute loss of these monies to the State of Maine. At a hearing on June 29, at which appellants were represented by the United States Attorney who allegedly received but a few hours notice of this complaint, the district court, acting after hearing the parties and looking to appellees’ affidavits, granted a temporary restraining order requiring appellants to allot the sums in question, such order “to remain in effect until further order of this Court.” The court also stated, however, that the funds allotted “shall not be available for obligation under [§ 1285(b)] until further order of this Court.” On July 6 a hearing was held on appellants’ motion to vacate the restraining order. The district court denied the motion and a. notice of appeal was immediately filed. At this juncture we are asked to grant a stay pending appeal of the district court’s order. We reject this request and dismiss the appeal at this time because we have determined that we do not have appellate jurisdiction.

Appellants contend that the district court’s “order is not limited to ten days and in fact adjudicates the merits of the action” so that it “must be fairly described as a preliminary injunction”. It is true that we have said that where the denial of a request for a restraining order, taken after a full presentation of both sides, has the effect of the denial of a preliminary injunction, appellate jurisdiction lies, I. T. T. Lamp Division of I. T. T. v. Minter, 435 F.2d 989 (1st Cir. 1970); Graham v. Minter, 437 F.2d 427 (1st Cir. 1971). But appellants’ attempts to apply that rationale here must fail. First, as appellants acknowledge, we could not say that the “full presentation” envisioned by I. T. T. Lamp and Graham has occurred here so that the district court’s restraining order should be viewed as a preliminary injunction. Second, the district court clearly indicated that it was issuing only a temporary restraining order and that a full hearing on the issuance of a preliminary injunction would soon follow. Although the court did not expressly limit the duration of the restraining order, it is limited by F.R.Civ.P. 65(b) to ten days, though it may be extended, on good cause shown, for an additional ten days. The court’s refusal to dissolve the restraining order on July 6 must be taken, in the context of this case, as but an extension of the original order for an additional ten days beyond the initial date of expiration. We must assume, at this point in time, that the court realized that a temporary restraining order cannot be extended indefinitely, and that it intends to conduct a hearing on the issuance of the preliminary injunction within the twenty day period or very shortly thereafter, unless appellants request a continuance of the hearing or consent to an extension of the restraining order, as indeed they might consider doing.

If a hearing is not held within the appropriate time period, appellants are free, of course, to file a new notice of appeal and request for a stay pending appeal, for a strong argument might be made that “any order extended beyond twenty days without the restrained party’s consent becomes a preliminary injunction, at least for purposes of seeking an appeal”, 11 Wright & Miller, Federal Practice & Procedure: Civil § 2953 at 519-520 (1973), though some leeway in the time period might be possible. See Connell v. Dulien Steel Products, Inc., 240 F.2d 414 (5th Cir.), cert. denied, 356 U.S. 968, 78 S.Ct. 1008, 2 L.Ed.2d 1074 (1957); 11 Wright & Miller, supra at 520-521. And, of course, as long as the hearing on the preliminary injunction is held expeditiously within the appropriate time frame, the district court should be able to extend the restraining order while it prepares its decision. 7 Moore’s Federal Practice, ¶ 65.07 n. 11, at 65-81, 65-82 (1972). But at this time, there is nothing this court may properly do.

Stay denied; appeal dismissed.

       Restraining orders may be extended beyond twenty days, however, if the moving party has exercised good faith in seeking the preliminary injunction hearing, but has been unsuccessful, and if the danger of irreparable injury continues. 11 Wright and Miller, Federal Practice & Procedure: Civil § 2953 at 521 (1973).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Reginald Max GOLDSMITH, Jr., Defendant-Appellant.
    No. 73-1757
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 20, 1973.

      Glenn Zell, Atlanta, Ga., Philip J. Hirschkop, Alexandria, Va., for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., Robert Cooper, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    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:

Reginald Max Goldsmith, a private investigator, was charged with intercepting private telephone conversations by wiretaps on two separate telephone lines in violation of 18 U.S.C.A. § 2511(1) (a) and 18 U.S.C.A. § 2. The jury found him guilty as to only one of the two counts. Defendant seeks reversal asserting that (1) the admission of certain testimony regarding other acts of similar uncharged misconduct, without proper instructions to the jury, denied him due process of law, (2) he received ineffective assistance from retained counsel and was thus denied his constitutional right to counsel, (3) the trial court improperly refused to order the discovery of material in possession of the Government, (4) there was a fatal variance between the pleading and the proof, which was insufficient to support the conviction. Finding no merit to any of defendant’s arguments, we affirm.

(1) Testimony of telephone company employees and the individuals whose telephones had been tapped established the existence of the wiretaps, but the defendant was connected with the unlawful activity only by the testimony of. two former employees, who discussed previous electronic eavesdropping assignments completed for Goldsmith. This evidence was admitted, with prior instructions to the jury limiting the purpose of the testimony to the establishment of modus operandi. Defendant contends that he was denied due process by the Court’s admitting this evidence with merely prior limiting instructions to the jury.

Although evidence of criminal conduct not charged in the indictment may not be admitted if its only relevance is to demonstrate the defendant’s bad character, Michelson v. U. S., 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), see Boyd v. U. S., 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892), such evidence will be received for the purpose of showing knowledge, intent, motive, design, or scheme where such element is an essential element of the commission of the offense. Ehrlich v. U. S., 238 F. 2d 481, 484 (5th Cir. 1956); U. S. v. Payne, 467 F.2d 828 (5th Cir. 1972); U. S. v. McGlamory, 441 F.2d 130 (5th Cir. 1971) ; U. S. v. Pittman, 439 F.2d 906 (5th Cir. 1971), cert. denied, 404 U.S. 842, 92 S.Ct. 138, 30 L.Ed.2d 77. See 2 C. Wright, Federal Practice and Procedure § 410 (1969). If the evidence of extrinsic crimes is relevant to a material fact in issue, the trial court must then weigh the probative value of the evidence against its inherent improper prejudicial effect. See U. S. v. Lawrance, 480 F.2d 688, p. 690 n.3 (5th Cir. 1973).

The challenged testimony in this case was admitted to establish Goldsmith’s modus operandi of employing telephone wiretaps in his private investigations. The trial court, on two occasions, cautioned the jury that the testimony was intended only to demonstrate the defendant’s professional designs and techniques. We find these curative, limiting instructions sufficient to have eliminated any improper prejudicial effects of the admission of evidence of prior, similar criminal acts.

(2) Failure to object to testimony and to support adequately his own motions are cited to illustrate the alleged inadequacy of counsel. A conviction will not be set aside on the ground of incompetent counsel, however, merely because an attorney may have erred on occasion when he rendered reasonably effective assistance. Sloan v. Wainwright, 469 F.2d 390 (5th Cir. 1972). The “errors” here alleged do not sustain the claim that defendant was denied a fair trial.

(3) Defendant fails to show any specific instance where the Government failed to comply with the discovery rules, and there is no indication that the District Court abused its discretion barring the discovery of material which the Government declined to provide.

(4) Since defendant was charged not with installation of the wiretaps, but with “wilfully, knowingly and unlawfully [intercepting] and [endeavoring] to intercept wire communications,” the failure to prove how the eavesdropping devices were installed is not fatal to the Government’s case. Employees of Goldsmith testified that he took them to the telephone pole, that he had previously shown them how to connect the recorder, and that they changed tapes and presented them to him, all at his instruction and direction. This testimony, if believed, was sufficient to prove the indictment and to support the conviction.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Ervin JOHNSON, Defendant-Appellant.
    No. 73-1780
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 20, 1973.
    J. Kennedy Hutcheson, Jacksonville, Fla. (Court appointed) for defendant-appellant.
    John L. Briggs, U. S. Atty., John J. Daley, Jr., Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

Lloyd Ervin Johnson takes this appeal from his conviction of violating 18 U.S. C. § 914. That statute provides criminal penalties for “[wjhoever falsely person-ates . . . any' person entitled to any annuity, dividend, pension, wages, or other debt due from the United States, and, under color of such false personation, . . . receives or endeavors to receive . . . the money of any person really entitled to receive such annuity, dividend, pension, wages, or other debt . . . . ” Johnson’s only claim on appeal is that the evidence was insufficient to allow the jury to find the requisite false personation. The facts showed that Johnson somehow came into possession of a stolen Social Security check which had been endorsed in blank by the named payee, Charles Guyton. Johnson attempted to cash the check at a local grocery store, but, unfortunately for Johnson, the store’s proprietor had been notified by telephone to be alert for anyone attempting to pass the stolen check. The proprietor notified his cashier, who refused to cash the check when presented by Johnson. The proprietor testified as follows:

A And so, I took the check and asked him, “Is it your check?” And he [defendant] said, “Yes.”

And I assumed from the phone call that it wasn’t his. So, I asked for his ID and he said he didn’t have any. Then I told him that I had received a phone call that the check was stolen and I didn’t think it was his check. He claimed that it was. And I said, "Well, I’m not going to cash it.” And he said, “Well, give it back to me.” And I said, “I’m going to keep it.”

•X- * -X- *x* * -x-

A He said he was going to call the police. And I said, “Well, I’ll call them for you.”

So, I called them and he went out the door.

•X* ve ■Jfr -X- *X* *X*

A Well, he just — well, he just put on a good act like it was his cheek. That’s all.

* * * « -X- -x-

Viewing the evidence in light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), we find that the jury could have found beyond a reasonable doubt that Johnson by words and conduct represented himself to be Charles Guyton. Therefore, we need not reach the question of whether Johnson could have been convicted under 18 U.S.C. § 914 had he represented that, though he was not the named payee, still he was the one entitled to receive payment of the check.

Affirmed.