author: STALEY, Circuit Judge. GIBBONS, Circuit Judge

text:
    JULEO, INC., a New Jersey corporation v. COMMISSIONER OF INTERNAL REVENUE, Appellant.
    No. 71-2102.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12 (6) Oct. 20,1972.
    Resubmitted Under Third Circuit Rule 12(6) March 19, 1972.
    Decided June 27, 1973.
    Certiorari Denied Dec. 10, 1973.
    See 94 S.Ct. 737.

      Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Bennet N. Hollander, Robert S. Watkins, Attys., Dept, of Justice, Tax Div., Washington, D. C., for appellant.
    Ralph Mayo, Mayo & Lefkowitz (Robert B. Hendler, New Brunswick, N. J., on the brief), for appellee.
    Submitted Under Third Circuit Rule 12(6) Oct. 20, 1972.
    Before STALEY, GIBBONS and ROSEN, Circuit Judges.
    Resubmitted Under Third Circuit Rule 12(6) March 19, 1973.
    Before STALEY, ADAMS and GIBBONS, Circuit Judges.

       Judge Rosen died before the opinion was filed.

   OPINION OF THE COURT

STALEY, Circuit Judge.

This is an appeal from the decision of the Tax Court that a 16.5 acre tract of land was a capital asset at the time it was transferred to the State of New Jersey as a result of condemnation proceedings. The following is a statement of the Tax Court’s findings as to the basic facts — the actual happenings — in this case.

The taxpayer is a New Jersey corporation organized for the purpose of real estate development, homebuilding, and sales. In 1955 it purchased a 100 acre tract of land for the purpose of development and sale. Shortly thereafter the process of development began. Subdivision maps were filed, engineering work was done, and preliminary approval for the subdivision of the entire 100 acres was obtained. In 1957 final approval was secured from the township for residential development of the section of the tract which included a small portion of the 16.5 acres involved in this case.

During the year 1958 the taxpayer became aware of New Jersey’s plan to condemn approximately 16 acres of the larger tract in highway construction. At that point all planning for the development of the land scheduled for condemnation ceased. Work did continue, however, on the remainder of the 100 acre tract. After the taxpayer learned of the condemnation plans with respect to the 16.5 acre parcel, it advertised and sold residential lots in the remaining portions of the 100 acre tract. In addition, two commercial lots of 5 acres each were sold, and 10 acres on the highway were leased.

On January 7, 1966, the sale to the State of New Jersey was consummated. The income derived from this transaction was reported by the taxpayer as capital gain. On petition for review from the Commissioner’s ruling that the gain represented ordinary income, the Tax Court upheld the taxpayer. The court in so doing held that:

“After the petitioner was notified by the state that 16.5 acres of the 100 acre tract held by the petitioner were subject to condemnation, the petitioner was not holding that portion of the tract ‘primarily for sale to customers in the ordinary course of his trade or business’ within the meaning of section 1221(1). The 16.5 acre portion of the tract was a capital asset at the time of its sale to the state.”

Prior to the condemnation notice, according to the court’s findings, the land in question was held primarily for sale to customers in the ordinary course of trade or business.

In reaching its conclusion that after the condemnation notice the land became a capital asset, the court relied upon

CIR v. Tri-S Corp., 400 F.2d 862 (C.A. 10, 1968). The Tri-S ease was cited as holding that a condemnation notice converted land held primarily for sale to customers in the ordinary course of business into a capital asset. Although this was the reasoning of the Tax Court in Tri-S, the circuit court of appeals did not affirm on that ground. Rather, the appeals court held that the taxpayer never held the land in question for sale in its raw state to customers in the ordinary course of its trade or business. That court did not comment upon the Tax Court’s finding that up to the time of condemnation the land involved was not held as a capital asset. Clearly, the Tax Court’s reliance on the Tri-S case was error.

Of course, this court is not bound by a conclusion induced by an erroneous view of the law. Municipal Bond Corp. v. CIR, 341 F.2d 683 (C.A.8 1965). A condemnation notice does not change land held primarily for sale to customers in the ordinary course of business into a capital asset. See Stockton Harbor Industrial Co. v. CIR, 216 F.2d 638 (C.A.9 1954).

Further, if there had been no condemnation, the land which was part of the development would have been sold as such and the proceeds treated as ordinary business income. When the condemnation took place,, the owner sought to establish a value, for purposes of the condemnation award, that reflected what the owner would have received if the land had been sold as developed. Consequently, to treat the income actually received, which in large part reflected the intent and plan of the owner, as capital gains rather than ordinary income would appear to be inequitable. What development occurred on the remainder of the 100 acres prior to notice of condemnation necessarily enhanced the value of the 16 acres condemned. This is illustrated by the fact that the pro-rated purchase price of the 16 acres was $10,032.62 and the condemnee received $97,650.63. In view of the present concern about the uneven impost of the tax laws, it does not appear warranted to interpret the law in such manner as to confer still another benefit not clearly mandated by the statute and regulations, and as stated above, there is no case authority for doing so. For the foregoing reasons, the decision of the Tax Court will be reversed and the cause remanded for further proceedings consistent with this opinion.

GIBBONS, Circuit Judge

(dissenting).

The taxpayer is a corporation engaged in the business of real estate development and home building. In 1955 it purchased a 100-acre tract of land in Bridgewater Township, New Jersey, intending to develop and sell. Shortly thereafter taxpayer filed subdivision maps and had some engineering work done. Preliminary approval for a subdivision of the entire tract was obtained in 1956. That preliminary approval conferred on the landowner only the limited right, during a three-year period, to submit the whole or parts of the plan for final approval upon the same general terms and conditions of the preliminary approval. N.J.Stat.Ann. § 40:55-1.18. Final approval of sections of the entire tract was requested and obtained in 1957. Only a small part of the 16.5 acres of the tract, sale of which produced the gain involved in this case, was included in such final approval. During 1958 the taxpayer learned that the State of New Jersey contemplated acquiring approximately 16 of the 100 acres for use in the construction of a highway, Route 287. After learning of the State’s plans the taxpayer ceased further development of the 16.5 acre tract. The preliminary subdivision approval as to all of the 16.5 acres for which final approval had not been obtained expired in 1959 under the terms of the Municipal Planning Act. N.J.Stat.Ann. § 40:55-1.18. Thé State’s highway plans were not formalized until 1960. It was not until 1962 that the taxpayer and the State began discussions respecting condemnation. In 1965 the Commissioners of Condemnation made an award of approximately $50,000 for the 16.5 acres. The taxpayer appealed this award to the Superior Court of New Jersey, and in 1965 obtained a judgment in condemnation of $97,650.63. The sale pursuant to the condemnation judgment was not closed until January 7, 1966, and on its 1966 tax return the taxpayer reported a capital gain on that sale in the amount of $70,950.30. The remaining 83.5 acres were developed in accordance with its final subdivision approval and sold or leased. The Tax Court, rejecting the Commissioner’s deficiency notice for 1966, found:

“Ultimate Findings of Fact
After the petitioner was notified by the state that 16.5 acres of the 100 acre tract held by the petitioner were subject to condemnation, the petitioner was not holding that portion of the tract ‘primarily for sale to customers in the ordinary course of his trade or business’ within the meaning of section 1221(1). The 16.5 acre portion of the tract was a capital asset at the time of its sale to the state.”

Under section 1221 of the Internal Revenue Code the term capital asset does not include “property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business. . . .” The word “primarily” means of first importance or principally. Malat v. Riddell, 383 U.S. 569, 86 S.Ct. 1030, 16 L.Ed.2d 102 (1966) (per cur-iam) . When the taxpayer first acquired the 100 acres it did so primarily for sale or lease to customers in the ordinary course of its business as a real estate developer and home builder. Thus, in 1955 no part of the 100 acres was a capital asset. But the nature of the asset, for tax purposes, is determined not at the time of its acquisition, but at the time its sale produces for the taxpayer a taxable gain or loss.

A taxpayer may, for example, acquire a farm intending to operate it. At the time of acquisition it is a capital asset. If years later the taxpayer obtains a subdivision approval and begins selling off lots, the Internal Revenue Service will insist, quite correctly, that at the time of sale the farm was held not as a capital asset but primarily for sale in the former farmer’s new trade or business of land development. The converse is equally true. Land once held primarily for resale may be withdrawn from the market and held for another purpose. See Nadalin v. United States, 364 F.2d 431, 176 Ct.Cl. 1032 (1966); Ackerman v. United States, 335 F.2d 521 (5th Cir. 1964) ; Ridgewood Land Co., Inc. v. Commissioner, 31 CCH Tax Ct. Mem. 39 (1972); Tri-S Corp. v. Commissioner of Internal Revenue, 48 T.C. 316 (1967), aff’d, 400 F.2d 862 (10th Cir. 1968). The Tax Court found as an ultimate fact that such a change in the taxpayer’s purpose for holding the 16.5 acres had taken place.

Such an ultimate finding of fact, representing as it does an inference drawn from other facts, is not in the view of this Circuit subject to the clearly erroneous rule. See Heebner v. Commissioner of Internal Revenue, 280 F.2d 228 (3d Cir.), cert. denied, 364 U.S. 921, 81 S.Ct. 285, 5 L.Ed.2d 260 (1960); Pennroad Corp. v. Commissioner of Internal Revenue, 261 F.2d 325 (3d Cir. 1958), cert. denied, Madison Fund Inc. v. Commissioner of Internal Revenue, 359 U.S. 958, 79 S.Ct. 797, 3 L.Ed.2d 766 (1959); Kaltreider v. Commissioner of Internal Revenue, 255 F.2d 833 (3d Cir. 1958); Philber Equipment Corp. v. Commissioner of Internal Revenue, 237 F.2d 129 (3d Cir. 1956). But see Yara Engineering Corp. v. Commissioner of Internal Revenue, 344 F.2d 113 (3d Cir. 1965) (per curiam). In reviewing such ultimate findings of fact:

“where the ultimate fact reasonably flows from the basic facts and especially where the basic facts are persuasive of the ultimate fact so found, this court will not disturb the finding of the trial court.” Pennroad Corp. v. Commissioner of Internal Revenue, supra, 261 F.2d at 328.

The determination whether real property is held primarily for sale to customers in the ordinary course of business is, of course, a factual determination. E.g., Yara Engineering Corp. v. Commissioner of Internal Revenue, supra; Brough-ton v. Commissioner of Internal Revenue, 333 F.2d 492, 494-495 (6th Cir. 1964); Kaltreider v. Commissioner of Internal Revenue, supra. Several factors, no one of which is determinative, have been said to be significant in making the determination.

“No single factor or test is disposi-tive. Factors considered are: (1) the purpose for which the property was acquired; (2) the purpose for which it was held; (3) improvements, and their extent, made to the property by taxpayer; (4) frequency, number and continuity of sales; (5) the extent and substantiality of the transactions; (6) the nature and extent of taxpayer’s business; (7) the extent of advertising to promote sales, or the lack of such advertising; and (8) listings of the property for sale directly or through brokers.” Kaltreider v. Commissioner of Internal Revenue, supra, 255 F.2d at 838. (footnotes omitted).

In this case (1) the property was originally acquired for resale in the ordinary course of business; but (2) the resale purpose terminated with respect to 16.5 acres by force of necessity, and for eight years the taxpayer held that portion for a purpose other than resale in the ordinary course of business; (3) no improvements were made to the 16.5 acres and even the preliminary subdivision approval expired five years before the sale; (4) there were no sales from the 16.5 acres; (5) the only transaction was the sale pursuant to the judgment of condemnation; (6) retention of the 16.5 acres for eight years was inconsistent with the nature of the taxpayer’s business; (7) the taxpayer did not advertise or promote sale of the 16.5 acres; and (8) the taxpayer did not list the property for resale through brokers. Under these circumstances I simply cannot agree with the majority that the Tax Court’s ultimate findings of facts do not flow from the basic facts or that the basic facts are unpersuasive of the ultimate facts so found. See Pennroad Corp. v. Commissioner, supra. There is no reason for this court to be so zealous of guarding the revenue that we should arrogate to ourselves the task of fact finding which Congress entrusted to the Tax Court. I would affirm.

      . Tri-S Corp. v. CIR, 48 T.C. 316 (1967).


source: Caselaw Access Project

author: MeWILLIAMS, Circuit Judge.

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BEECH AIRCRAFT CORPORATION, Respondent.
    No. 72-1780.
    United States Court of Appeals, Tenth Circuit.
    Aug. 22, 1973.

      David Miller, Atty., NLRB (Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Pre-vost, Asst. Gen. Counsel, and William Wachter, Atty., NLRB, on the brief), for petitioner.
    Richard L. Barnes, Tulsa, Okl. (C. A. Kothe, Kothe & Eagleton, Inc., Tulsa, Okl., on the brief), for respondent.
    Before LEWIS, Chief Judge, LARA-MORE, Senior Judge, and Mc- ' WILLIAMS, Circuit Judge.

       Senior Judge Don N. Laramore, United States Court of Claims, sitting by designation.

   MeWILLIAMS, Circuit Judge.

This is an enforcement proceeding instituted in this court by the NLRB against Beech Aircraft Corporation, a Delaware corporation which manufactures aircraft, aircraft assemblies and aircraft parts at various places, including a plant in Salina, Kansas, which is the particular plant involved in the present proceeding. The order which the Board seeks to enforce concerns two of Beech’s employees in its Salina plant, one Dudley Ryals, and his crew chief, William Landers. Ryals was employed in Beech’s Plastics Department and had a job classification as a Spray Painter. As indicated, Landers was in the same department and was a crew chief.

As concerns Ryals, the • Board found that he had been laid off work by Beech because of protected union activities in violation of Section 8(a)(3) of the Act and as a remedy for this wrongdoing ordered that Ryals be reinstated to his former position as a Spray Painter, or the equivalent thereof, and that he be made whole for any loss of earnings or other benefits. The Board now seeks enforcement of that order.

As concerns the employee Landers, the Board found Beech guilty of an unfair labor practice in that it violated Section 8(a)(1) of the Act by its several interrogations of Landers wherein it attempted to influence Landers regarding the statements he was going to give, and did give, the Board’s agent sent to investigate the Ryals layoff. Although the Board found that Beech attempted to influence and persuade Landers to “go easy” on the information he proposed to give, and did in fact later give, the Board’s investigative agent, the Board declined to find that Landers’ subsequent transfer from the Salina plant to Beech’s Wichita, Kansas, plant was in retaliation for Landers’ statements to the Board’s agent. By way of penalty for this particular violation, the Board ordered Beech to post certain notices to employees, and the Board now seeks enforcement of that order too. Before considering separately the Ryals and Landers matters, reference in some detail to the evidence adduced before the Board’s Administrative Law Judge will put this entire controversy in focus.

Ryals was first employed by Beech in its Salina plant in February 1968, and was initially employed as a bench machinist in the Machine Shop, known also as Department 701. Ryals soon became a member of District Lodge No. 70 of the International Association of Machinists and Aerospace Workers, with which Beech had a collective bargaining agreement. During the ensuing months of his employment, Ryals, under the bargaining agreement between Beech and the Union, instituted some four or five so-called “grievances” with the Union regarding promotions and job assignments. The evidence regarding the details of these grievances is very sketchy and about all we know is that he supposedly “won” most of them. In any event, in the early part of 1970 Ryals was transferred to the Plastics Department, known also as Department 710. Eventually Ryals was given a training course lasting some five weeks as" a Spray Painter, and on October 5, 1970, was given the job classification as a Spray Painter, and, as such, he was the only one in the Plastics Department with that particular job classification. Ryals continued in the Plastics Department with this-same job classification until he was laid off on January 8,1971.

Sometime in May 1970, Ryals was appointed by Beech to serve as a “safety councilman” and, taking his duties most seriously, he thereafter proceeded to direct Beech’s attention to some 50 safety problems, involving such things as traffic aisles being blocked by airhoses and other miscellaneous equipment, problems attendant to electrical wiring, suggested installation of exhaust fans to alleviate a dust problem caused by sanding, cutting and grinding of fiberglass in the Plastics Department, and the like.

Sometime during the last of 1970 and the first week in 1971, Beech determined that there would be a layoff because of economic necessity. We regard the fact that the layoff with which we are here concerned was due to economic necessity to be a significant fact, which fact has never been in dispute. And such was the specific finding of the Administrative Law Judge. So, there was going to be a layoff, because of economic necessity, and there ensued the ticklish question as to who would be laid off. As concerns the Plastics Department, it was determined by management that nine employees would be laid off in that department, and so then the next question was, which nine would be laid off.

The collective bargaining agreement between the Union and Beech had an entire article relating to seniority, namely Article Y. More detailed reference will be later made to Article V. We would simply note here that, with exceptions which will become important to a resolution of this controversy, the agreement provided that, as concerns a reduction of forces and layoff, “seniority shall prevail.” We take this to mean that employees with less seniority will be laid off first.

As indicated, nine were to be laid off in the Plastics Department. As concerns the matter of seniority, Ryals was fifth from the bottom of the seniority list, i. e., four employees in the Plastics Department had less seniority than Ryals, and every other employee in the Plastics Department had more seniority than Ryals, there then being a total of 53 employees in that particular department. It was in this setting that Ryals was given a layoff notice on January 7, 1971. And then the present dispute arose, Ryals claiming that he was being laid off in violation of the bargaining agreement and because of his so-called “union activities”; whereas, Beech’s position in this court, as it was before the Administrative Law Judge, is that Ryals was laid off in accordance with the seniority provision in the collective bargaining agreement.

Two sections of Article V in the collective bargaining agreement between the Union and Beech have bearing on the present controversy. In section 1 of that article appears the following:

“ * * * in aii layoff and recall, the rules of seniority as provided in this agreement shall prevail where seniors are competent. Competency is assumed to include the factors of ability, attendance, efficiency and physical fitness as substantiated by Company records, as well as the capacity and general attitude to work efficiently with other employees to a common purpose.” (Emphasis added.)

Section 13(a) of that article reads as follows:

“13. Reduction of Forces and Layoff
(a) In layoffs, departmental and/or occupational seniority shall prevail where seniors are competent.” (Emphasis added.)

As indicated, when Ryals received his notice of layoff a dispute immediately arose. This dispute was, to some degree at least, the result of a misunderstanding on the part of not only Ryals, but Beech as well, as to just how the seniority rule was to be applied. At least, according to the record, at or about the time of Ryals’ layoff, Beech was not justifying its action on the grounds that it was simply applying the rule of strict seniority. By the same token, Ryals, initially at least, felt the seniority rule did not affect him since he was the only employee holding the job classification of Spray Painter. In this latter connection, the Union’s plant chairman at the hearing before the Administrative Law Judge testified that he had been “straightened out” by his senior business representative to the end that “department” seniority, rather than “occupational” seniority, “is the controlling thing as far as layoffs and bumping back” are concerned. And so, in our view, the fact that Ryals was the only employee with the job classification of Spray Painter is of no real significance, and the important factor is departmental seniority.

Before concluding this rather lengthy resume of the evidence, which we deem necessary to an understanding of the problem and our resolution thereof, we note, as did the Administrative Law Judge, that in the weeks and months preceding Ryals’ layoff, friction had been developing between Ryals and the department foreman and plant manager. The Judge found that Ryals’ institution of the four or five grievances had provoked management, and that similarly all of Ryals’ many suggestions as safety councilman had contributed to the buildup of ill feeling on the part of both Beech and Ryals. We have no doubt that Ryals was regarded by Beech as a “problem child,” a statement which was attributed to, and not denied by, Beech’s plant manager.

To round out the factual picture, as Ryals was being laid off, management began a search within the Plastics Department to find someone who could perform Ryals’ duties as a Spray Painter. An employee named Rhodes, who had filled in for Ryals when he was absent, was asked, but Rhodes declined. Beech then offered the job to one Boyer, who was a clerk and a tool chaser in the Plastics Department. Boyer had seniority over Ryals and although Boyer had no experience, as such, spray painting, management felt he knew the fundamentals of the job. Anyway, Boyer in fact took over Ryals’ duties and in our view the crucial issue in this case is whether there is substantial evidence to support the finding of the Judge that Boyer was not “competent” as that word is used in the bargaining agreement to perform Ryals’ duties as a Spray Painter. If the evidence on this particular point be substantial, then the Board’s finding that Ryals was laid off,- not in accord with the agreement, but because of his protected union activities, should be upheld. If, however, there be no such substantial evidence, then the Board’s finding cannot be upheld. And if this exception to the seniority rule does not come into play, then the seniority rule controls, and Ryals’ layoff resulted from the seniority rule as contained in the agreement between the Union and Beech, not because of Beech’s desire to get even with Ryals for his union activity.

It was on this general state of the record, then, that the Administrative Law Judge found that Ryals was discriminatorily laid off because of his protected union activities, and in so doing rejected the argument that Ryals’ layoff was in accord with the seniority provisions of the agreement and, in this regard, found, in effect, that Boyer was not competent to assume Ryals’ spray painting duties. Our review of the record convinces us that such latter finding is not supported by “substantial evidence on the record considered as a whole,” and accordingly the Board’s order as it relates to Ryals should not be enforced. 29 U.S.C. § 160(e). See also, Universal Camera Co. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1950); Consolidated Edison Co. v. N. L. R. B., 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938); N. L. R. B. v. Meinholdt Manufacturing, Inc., 451 F.2d 737 (10th Cir. 1971); Pacific Intermountain Express Co. v. N. L. R. B., 412 F.2d 1 (10th Cir. 1969); and N. L. R. B. v. Machine Products Co., 198 F.2d 313 (10th Cir. 1952).

In analyzing the evidence before the Board, we are mindful that it is not our task to weigh the evidence or adjudge the credibility to be given the various witnesses. Such is the function of the Board. At the same time, as was said in N. L. R. B. v. Machine Products Co., supra at 316, “we are poignantly aware of our ultimate responsibility for the rationality of the Board’s decision.” If there be no substantial evidence, and we bear down on the word substantial, to support a critical finding of the Board, then its request for enforcement of its order must be denied.

We agree with the Board that there was much evidence that Beech was unhappy, and markedly so, with Ryals’ performance as safety councilman. Certainly there is evidence that certain of Beech’s representatives wanted to “get” Ryals’ job, one way or another. However, as we see it, if Ryals’ layoff was in accord with, and in fact dictated by, the seniority rule, then it simply cannot be found that the layoff resulted from management’s displeasure over Ryals’ protected union activities. The former would preclude the latter. So, if Ryals’ layoff was required by the seniority rule provision in the collective bargaining agreement, the fact that Beech welcomed the opportunity to lay off Ryals does not make the layoff discriminatory or unlawful. See, Cain’s Coffee Company v. N. L. R. B., 404 F.2d 1172 (10th Cir. 1968); Serv-Air, Inc. v. N. L. R. B., 395 F.2d 557 (10th Cir. 1968); N. L. R. B. v. Birmingham Publishing Company, 262 F.2d 2 (5th Cir. 1959); Frosty Morn Meat, Inc. v. N. L. R. B., 296 F.2d 617 (5th Cir. 1961); and Klate Holt Company and Robert Earl Davis, 1967 CCH NLRB Decisions, ¶ 20,950 at 27,090.

As we understand the seniority rule, and in this one particular, at least, the parties appear to be in agreement, Ryals’ layoff would be dictated by the seniority rule and his low seniority rating, i. e., fifth from the bottom of the seniority list, unless the Board’s finding that Boyer was not “competent” to perform Ryals’ duties as a Spray Painter is supported by substantial evidence. If this finding is, supported by substantial evidence, then the seniority rule apparently would not dictate Ryals’ layoff, and assuming that certain other hurdles could be overcome, the Board’s finding that Ryals’ layoff resulted from his protected union activities would be upheld. But, as above indicated, our study of the record convinces us that there is not substantial evidence to support the finding that Boyer was not competent to assume Ryals’ duties. In such circumstance, the seniority rule controls, and Ryals was laid off in accord with the agreement between the Union and Beech. We parenthetically note that seniority rights are valuable rights and in our view the seniority rule should not be lightly departed from. If Ryals is not to be laid off, then someone else higher up on the seniority list will be.

The evidence that Boyer was not competent to assume Ryals’ duties came in the main from Landers. In this regard, we are aware that a foreman who was on vacation when Boyer took over the job of Spray Painter testified that it took Boyer several weeks to attain a satisfactory level of performance. Landers, in response to only a very few questions, did testify that in his opinion the quality of Boyer’s work was “no good” and that some of his work had to be “done over.” Several other witnesses, however, including the Union’s plant chairman, testified that Boyer’s performance on the job was satisfactory. And the fact of the matter is that Boyer was still performing Ryals’ duties as a Spray Painter some nine months later when the Judge held his hearing into the matter. It is on this state of the record that we are simply unable to conclude that there is substantial evidence to support any finding that Boyer was not competent to perform Ryals’ duties as a Spray Painter. There is nothing in this record to indicate that the duties of a Spray Painter are that unique. Absent, then, that critical finding, the strict seniority rule grabs hold and controls. Hence, Ryals’ layoff was not by way of retaliation for any possible union activities, but resulted from the seniority rule.

For all of these reasons, then, we decline to grant enforcement of the Board’s order as concerns Ryals.

LANDERS

As above mentioned, the Board, on request, sent one of its investigative agents to Salina to investigate Ryals’ complaint. This agent made arrangements to talk with Landers about the matter. It was in this setting, according to Landers, that on several occasions he was approached by management with the suggestion that if he would “shade” his statements, he would receive certain favorable treatment from the company. In our view, there is substantial evidence to support this particular finding and the Board’s order in this regard should be enforced.

We fully realize that as concerns the Ryals matter, we are holding that Landers’ testimony does not constitute “substantial evidence” and that as concerns his own complaint, his testimony is sufficient to constitute substantial evidence. Any apparent contradiction disappears, in our view, when Landers’ testimony on these two different issues is examined in context. As concerns Boyer’s competency and capabilities in the art of spray painting, Landers’ testimony was conclusory in nature and singularly lacking in detail. As indicated, only a few questions were asked of him on this particular issue. However, as to his several meetings with management when he was in the process of being interviewed by the Board’s investigative agent, such were explored in much greater depth and detail. It is on this basis that we conclude that Landers’ testimony is insufficient to constitute substantial evidence as to Boyer’s lack of competency in the field of spray painting, but at the same time we conclude that his testimony is sufficient to constitute substantial evidence as to the attempted importuning of him by management.

Accordingly, enforcement of the Board’s order reinstating Ryals and granting him back pay is denied. Enforcement of the Board’s order in the Landers matter is granted.


author: PER CURIAM:

text:
    Nicholas J. CAPUANO, Plaintiff-Appellant, v. Marcella Gail BRIDGES, a/k/a Marcella Gail Leach et al., Defendants-Appellees.
    No. 73-2131
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 5, 1973.
    Nicholas J. Capuano, pro se.
    Adams, Sullivan & Coogler, West Palm Beach, Fla., for Paulus.
    Brandt & Baldwin, North Palm Beach, Fla., for Manning & Simpson.
    J. Michael Burman, Asst. Cty. Solicitor, West Palm Beach, Fla., for Mounts.
    James A. Smith, Miami, Fla., for Weedon.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.

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

   PER CURIAM:

The entry of judgment in the within matter adjudicated the liabilities of fewer than all of the parties in and to the litigation. There has been no entry of final judgment by the district court upon an express determination that there is no just reason for delay as is required by Rule 54(b), F.R.Civ.Procedure. Hence, the judgment lacks the requisite finality to be appealable within the meaning of 28 U.S.C.A. § 1291. International Harvester Credit Corporation v. Belding, 5 Cir., 1972, 462 F.2d 624; Bailey v. Rowan Drilling Company, 5 Cir., 1971, 441 F.2d 57; Cook v. Eizenman, 5 Cir., 1963, 312 F.2d 134.

Dismissed.


text:
    Thomas C. BRACKETT, Plaintiff-Appellant, v. Ealon LAMBERT, Chairman, Alabama Board of Pardons and Paroles, et al., etc., Defendants-Appellees.
    No. 73-1803
    Summary Calendar.

    United States. Court of Appeals, Fifth Circuit.
    Aug. 23, 1973.
    Rehearing Denied Oct. 26, 1973.

      Thomas C. Brackett, pro se.
    William J. Baxley, Atty. Gen., Thomas W. Sorrells, Don C. Dickert, Asst. Attys. Gen., Montgomery, Ala., for defendants-appellees.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

This Section 1983 action was brought against various state officials by a federal prisoner currently serving a valid sentence in the Atlanta Penitentiary. A detainer has been lodged with penitentiary officials by the State of Alabama charging Brackett with a violation of the terms of his parole from state custody. Brackett questions the validity of the state detainer and seeks damages and injunctive relief because the Alabama Board of Pardons and Paroles refuse to afford him a parole revocation hearing prior to his release from federal custody. We find no constitutional infirmity in the application to this case of the Alabama statute which provides that such hearings shall be held on the return of the prisoner to state custody. Ala.Code tit. 42, § 12 (1958).

Affirmed.


author: THORNBERRY, Circuit Judge:

text:
    FRED HALE MACHINERY, INC., Plaintiff-Third Party Plaintiff-Appellee, v. LAUREL HILL LUMBER COMPANY, INC., et al., Defendants-Appellants, Glenn Machine Works, Inc., Third Party Defendant.
    No. 72-2802.
    United States Court of Appeals, Fifth Circuit.
    July 6, 1973.

      Weaver E. Gore, Jr., Jackson, Miss., Richard T. Watson, Woodville, Miss., Thomas H. Watkins, Jackson, Miss., for appellants.
    G. Lowrey Lucas, Alvin M. Binder, Jackson, Miss.,- for appellee.
    Dudley H. Carter, Columbus, Miss., for Glenn Machine.
    Before TUTTLE, THORNBERRY and DYER, Circuit Judges.
   THORNBERRY, Circuit Judge:

Laurel Hill Lumber Company, a Mississippi corporation, appeals from a jury verdict awarding Fred Hale Machinery, a Louisiana corporation, $27,082.62 as the balance owing under a contract to design and supply certain sawmill machinery, and denying Laurel Hill any recovery on its counterclaim for breach of express and implied warranties governing the transaction. We affirm.

In September 1968, after the parties had conducted negotiations in Louisiana and Mississippi, Fred Hale Machinery entered a contract with Laurel Hill to design, furnish plans for, and supply the component parts of a log conveyor and debarker system for use at Laurel Hill’s sawmill in Mississippi. In addition, Fred Hale later agreed to supervise the assembly and the installation of the components. Pursuant to this agreement, Fred Hale designed the system and purchased components to meet Laurel Hill’s specifications from manufacturers in Mississippi and Georgia. The contract called for Laurel Hill to purchase the components from Fred Hale Machinery “f.o.b. point of manufacture”; Fred Hale Machinery apparently had no part in transporting the components from the places of manufacture in Georgia and Mississippi to Laurel Hill’s sawmill. Fred Hale employees, however, played a large role in assembling the components once they arrived at the sawmill; and, in addition to supervising the installation of the system, Fred Hale employees worked intermittently at the sawmill performing various other jobs during the installation process.

It is undisputed that the system functioned poorly after installation was completed in May 1969; but a sharp dispute developed at trial over the cause of the troubles. Laurel Hill blamed Fred Hale’s failure to design and supply components in accordance with contract specifications. Witnesses for Fred Hale, on the other hand, claimed that the difficulties were caused by Laurel Hill’s use of logs that were too large for the system to accommodate, and by its reliance on unskilled and inexperienced employees to operate the system. In any event, Laurel Hill stopped making payments under the contract, claiming that malfunctions in the system were causing it considerable losses due to shut-down time and expenses for replacement parts and labor. Fred Hale sued in the court below to foreclose a laborer’s and mate-rialman’s Jien on the sawmill premises, or alternatively to recover the amount due under the contract. Laurel Hill counterclaimed, seeking incidental and consequential damages for Fred Hale’s alleged breach of express and implied warranties covering the design and operation of the system. From a jury verdict in Fred Hale’s favor, Laurel Hill appeals, raising two contentions.

First, Laurel Hill argues that Fred Hale was prohibited from bringing the instant suit by a Mississippi statute, Miss.Code § 5309-239, which prohibits a foreign corporation not qualified to do business in Mississippi from bringing suit “in any court of this State.” It is without dispute that, at the time of the execution of the contract in question, Fred Hale, a Louisiana corporation, was not qualified to do business in Mississippi. It is equally clear that the phrase “in any court of this State” precludes an unqualified corporation’s resort, not only to Mississippi state courts but also to federal courts in Mississippi, with regard to actions arising out of purely intrastate activities. Woods v. Interstate Realty Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524 (1949). Such statutes as this one, however, cannot be enforced if their application would unreasonably burden interstate commerce by prohibiting suits growing out of transactions in interstate commerce. York Manufacturing Co. v. Colley, 247 U.S. 21, 38 S.Ct. 430, 62 L.Ed. 963 (1918); Transit Bus Sales v. Kalamazoo Coaches, Inc., 6th Cir. 1944, 145 F.2d 804. For reasons adequately stated in the trial court’s Memorandum Order of June 30, 1972, denying appellant’s motion for judgment notwithstanding the verdict, we believe that the facts of this case'— that negotiations were conducted in Louisiana and Mississippi, that appel-lee arranged to supply components from manufacturers in Mississippi and Georgia, and that appellee sent its employees to Mississippi in connection with the assembly and installation of the system— gave this transaction an interstate character, and that application of Miss.Code § 5309-239 would in this case create an unreasonable burden on interstate commerce. Accordingly, we hold that the Mississippi statute did not bar Fred Hale from filing the instant suit in the court below.

Secondly, Laurel Hill claims that it was prejudiced by the trial court’s instruction to the jury that, if Laurel Hill had “accepted” the system by making use of it, then it was barred from all recovery on its counterclaim for breach of express and implied warranties governing the design and operation of the system. The jury, however, found that the system was “designed, manufactured and installed in such a manner that it could be used for its intended purpose,” and that the plans and specifications for the system were “adequate for the purposes for which prepared in accordance with the explanations and instructions” of the president of Laurel Hill. In our view, these findings are tantamount to a determination by the jury that the express and implied warranties governing the sale of the system were not breached. Even if Laurel Hill had not, under Mississippi law, waived its right to assert breach of warranty by “accepting” the system, it could not recover on its counterclaim if it failed to prove that Fred Hale had breached a warranty. In short, the challenged jury instruction was, at most, harmless error.

The judgment is affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Rickey Lee MILLER, Defendant-Appellant.
    No. 73-1741
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 6, 1973.
    Oze R. Horton, Hapeville, Ga. (court appointed), for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., Eugene A. Medori, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

      Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

Rickey Lee Miller was on October 30, 1972, indicted by a Northern District of Georgia grand jury under two counts for violation of Title 21, U.S.C., Section 841(a)(1), knowingly and intentionally distributing certain quantities of heroin hydrochloride, a Schedule I narcotic drug controlled substance, on two occasions in September 1972. It was then discovered that appellant was born on December 18, 1954, and was therefore 17 years of age at the time the offenses were allegedly committed. On March 8, 1973, after explanation of his rights and upon appellant’s signed request to be proceeded against as a juvenile delinquent under Title 18, U.S.C., Section 5031 et seq., an information was filed charging him with juvenile delinquency by knowingly and intentionally distributing .54 grams and 4.31 grams of a Schedule I controlled substance on September 24 and 29, 1972. Miller was tried on these charges upon his plea of not guilty before Judge Freeman of the District Court. The court returned a verdict of guilty for the offense of violating the Federal Juvenile Delinquency Act, Title 18, U.S.C., Section 5032, and imposed a custodial sentence of two years, from which this appeal is taken. We find no merit in either contention raised by appellant and affirm.

Miller’s first assignment of error is that he was entrapped into committing acts which he was not predisposed to commit because of improper inducements by a government agent and an undercover informer working with the agent. Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; United States v. Groessel, 5 Cir. 1971, 440 F.2d 602, 605. The issue of entrapment once it has been sufficiently raised is a question for the trier of fact. Here the trial judge was the fact finder and has resolved this proffered defense against the appellant. Under the facts below we find no error in the court’s determination of disputed facts in favor of the government, despite conflicting evidence introduced by the appellant. Glasser v. United States, 1940, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. The evidence was clearly sufficient to support a view that the government agents merely provided Miller with an opportunity to violate the law, which opportunity he readily accepted on two occasions.

Appellant’s next contention is that he merely acted as the agent of the government officer and informer in securing the heroin and therefore could not be guilty of knowingly and intentionally distributing it in violation of Section 841(a)(1). This contention fails in the light of the definition by Title 21, U.S.C., Section 802(11) of the term “distribute” as meaning “to deliver (other than by administering or dispensing) a controlled substance.” Section 802(8) further defines “delivery” as meaning the actual, constructive, or attempted transfer of a controlled substance, whether or not there exists an agency relationship. We think it clear that by the passage of the Drug Abuse Prevention and Control Act, Title 21, U. S.C., Sections 801-966, Pub.L. 91-513, October 27, 1970, 84 Stat. 1242, the Congress in its broadening of the drug control laws intended to nullify an agency theory of defense with respect to the distribution of controlled substances prohibited by Title 21, U.S.C., Section 841(a)(1). See United States v. Workopich, 5 Cir. 1973, 479 F.2d 1142, Part III; United States v. Johnson, 5 Cir. 1973, 481 F.2d 645.

The trial judge properly found the appellant Rickey Lee Miller to be a juvenile delinquent in connection with his two distributions of drugs in this case.

Affirmed.


author: CLARK, Circuit Judge:

text:
    Mauro Evaristo BLANCO, Plaintiff-Appellant, v. MORAN SHIPPING COMPANY and Sul-phur Carriers Corporation, Defendants-Appellees.
    No. 73-2130
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 20, 1973.
    Rehearing and Rehearing En Banc Denied Nov. 8, 1973.
    Gerald Sohn, Jacksonville, Fla., Charles Maloney, New Orleans, La., for plaintiff-appellant.
    James F. Moseley, Jacksonville, Fla., for defendants-appellees.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   CLARK, Circuit Judge:

Summary judgment at the hands of the district court, based upon an exceptionally strong written release of all claims ended this seaman’s action by Blanco. The motion for summary judgment was based upon depositions by the attorneys who represented Blanco at the time he gave the release. Counter-affidavits were submitted by Blanco and by one of his present attorneys.

The issue is framed in the language of the classic test set out in Garrett v. Moore-McCormick Company, 317 U.S. 239, 248, 63 S.Ct. 246, 252, 87 L.Ed. 239, 245 (1942):

. the burden is upon one who sets up a seaman’s release to show that it was executed freely, without deception or coercion, and that it was made by the seaman with a full understanding of his rights. The adequacy of the consideration and the nature of the medical and legal advice available to the seaman at the time of signing the release are relevant to an appraisal of this understanding.

This circuit has paraphrased the Garrett test in this language:

. the burden is on the party setting up the seaman’s release to show that it was given by the seaman with an informed understanding of his rights and a full appreciation of the consequences of his release.

Cates v. United States, 451 F.2d 411, 414 (1971).

The shipboard accident giving rise to this action occurred on July 24, 1967 in Tampa, Florida waters and resulted in Blanco’s hospitalization in Tampa General Hospital. Following his discharge from this hospital, Blanco went to Jacksonville, Florida where his ship was then in dry dock and came under the care of a doctor there. He subsequently was released from the ship and thereupon employed a Jacksonville attorney who spoke and understood only English. Blanco spoke and understood only Spanish. To make communications more difficult, Blanco subsequently returned to his native Venezuela. When ,a settlement offer eventuated, Blanco’s English-speaking attorney deposed:

I wrote Mr. Blanco in April of 1968 that I needed to get a statement from him as to how his injuries were currently bothering him, what sums he owed for doctors and medicines, the number of times he has been treated by a physician for his injuries since the first of February.

I don’t think I ever got any intelligent reply to that. Every letter I had was not responsive to it, but I believe about the time I associated Victor Ramos in the case and — I’m certain I did by October, 1968.

I see one letter that is translated by Mr. Ramos. It says, and this is from Blanco — “as of this moment I have no report”.

Victor Ramos, referred to in this testimony, is another Jacksonville attorney who was associated by Blanco’s first counsel because of Ramos’ literacy in both Spanish and English. The deposition given by Ramos similarly appears to have been based solely upon the medical reports covering the Tampa hospitalization or the Jacksonville doctor’s treatment.

In his counter-affidavit, Blanco swears that he had accident-related plastic surgery at the University Hospital in Caracas, Venezuela in January, 1969 which was shortly prior to the consummation of the settlement. He further avers that when settlement was first advised by his then attorneys, he demurred because he needed additional such surgery and did not want to bear the expense himself. He also inconsistently declared under oath in the same affidavit that he did not understand the legal effect of the release and executed it because he thought it represented no more than a receipt for his wages aboard ship. The other counter-affidavit, by one of Blanco’s present counsel, contends that Blanco may have a right of action under Liberian law because of the vessel’s registry and an additional action under American law because the vessel might be a “flag of convenience vessel”. The affidavit of counsel further swears that he must have the answers to previously filed but yet unanswered interrogatories to know whether Blanco possessed this additional potential claim at the time he was advised to settle — information which would go to the adequacy and efficacy of the legal advice he then received.

The district court utilized the correct legal test from Garrett. In applying it to the facts the court found that there was no genuine issue as to Blanco’s understanding of the nature and legal effect of the release that he executed or as to the fact that Blanco had intimate knowledge of the various medical procedures which had been performed on his own face. The court also found Blanco had been afforded “adequate legal advice”. The problem lies in this latter finding. The depositions of counsel show that their advice to Blanco was given without knowledge of his Venezuelan surgery. Counsel Ramos described the medical report he examined as “very mild”. The last report referred to by Blanco’s English-speaking counsel was dated September 7, 1967. Obviously if counsel were not aware of the subsequent surgical procedures and their costs and sequelae or any prognosis for further surgery, they were in no position to advise their client as to the adequacy of the proposed settlement. There similarly remains unresolved at this point in this cause the legal status of any dual Liberian-American claim Blanco may be able to assert, it is simply unknown whether either counsel was aware of such potential claim or took it into account in arriving at their evaluation.

Giving Blanco the benefit of all reasonable doubts in determining whether a genuine issue of material fact exists [see C. Wright, Federal Courts 443 (2d ed. 1970)] we must say on the basis of this summary judgment record that such an issue remains and must be tried. Without the slightest intent of intimating any decision on the merits, we vacate the summary judgment entered herein and remand this cause for further proceedings not inconsistent with this opinion.

Vacated and remanded.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. George Darryl HENRIQUEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Carol Ann BUCHHOLZ and Charles Lane Martin, Defendants-Appellants.
    Nos. 72-3645, 73-1060
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 16, 1973.
    Certiorrai Denied Dee. 10, 1973.
    See 94 S.Ct. 728.
    Theodore J. Sakowitz, Federal Public Defender, Miami, Fla., for Buehholz and Martin.
    Barry L. Garber, Miami, Fla., for Henriquez.
    Robert W. Rust, U. S. Atty., Harold F. Keefe, Michael Sullivan, Asst. U. S. Attys., Miami, Fla., for plaintiff-appel-lee.
    Before GEWIN, COLEMAN and ‘ MORGAN, Circuit Judges.

       Rule 18, 5 Cir. See Isbell Enterin-ises, Inc. y. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

The appellants’ primary point of error on appeal is that the lower court improperly admitted into testimony over their objections marihuana seized during a customs inspection on Dodge Island, Port of Miami, on May 27, 1972. Appellants contend that there was no probable cause for 'search of the car in which they were riding.

This court has repeatedly held that border searches may be made without probable cause on the basis of mere suspicion alone, although they are restricted by the constitutional requirement of reasonableness. United States v. Briones, 5 Cir. 1970, 423 F.2d 742; United States v. Rodriguez, 5 Cir. 1961, 292 F.2d 709; United States v. Mag-gard, 5 Cir. 1971, 451 F.2d 502; United States v. Hill, 5 Cir. 1970, 430 F.2d 129.

Furthermore, any individual who has direct contact with the border area is a member of a class of persons where search is allowed if customs officials’ suspicions are aroused. United States v. Glaziou, 2 Cir. 1968, 402 F.2d 8, cert. den. 393 U.S. 1121, 89 S.Ct. 999, 22 L. Ed.2d 126 (1969).

This court, upon review of the record below, finds appellants’ other contentions of error to be without merit. The district court in all respects is

Affirmed.

      . This court is aware of the recent decision in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596, opinion dated June 21, 1973, and finds that it does not apply to the present case.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Isaac STROGER, Defendant-Appellant.
    No. 73-1669
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 8, 1973.
    Rehearing Denied Sept. 5, 1973.
    Demetrius C. Newton, Birmingham, Ala. (court appointed), for defendant-appellant.
    Wayman G. Sherrer, U. S. Atty., Birmingham, Ala., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

Defendant-appellant Stroger was convicted of interstate transportation of a stolen motor vehicle and of concealing the vehicle in violation of 18 U.S.C. §§ 2312, 2313. There is ample evidence to show that he knowingly transported and concealed the stolen car. The arresting officer’s reference in his testimony to Stroger’s disorderly conduct was in reply to defense counsel’s question as to why the officer had requested a check of the license plate and of the stolen automobile. This was not evidence of another crime and its admissibility did not constitute error.

Affirmed.


text:
    Joseph SKIDMORE, Jr., Plaintiff-Appellant, v. TRAVELERS INSURANCE COMPANY et al., Defendants-Appellees.
    No. 73-2100
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 17, 1973.
    Louis R. Koerner, Jr., New Orleans, La., for plaintiff-appellant.
    Ashton R. Hardy, New Orleans, La., for defendants-appellees.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

The complaint in this case rest on the theory that the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678, carries an implied private remedy against executive officers of an employer guilty of violating the Act. For the reasons stated in the opinion of the district court we hold that the Act does not create such an implied remedy. See 356 F.Supp. 670.

Affirmed.


text:
    Terry Eugene SAVAGE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-1424
    Summary Calendar.*
    United States Court of Appeals, Fifth Circuit.
    July 23, 1973.

      Terry Eugene Savage, pro se.
    Robert W. Rust, Miami, Fla., William R. Northcutt, Asst. U. S. Atty., for respondent-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.
   PER CURIAM:

This is an appeal from the denial of a motion to vacate judgment and sentence, filed pursuant to the provisions of 28 U.S.C. § 2255.

We find no error in the district court’s denial of relief concerning Appellant Savage’s allegations of trial court errors and ineffective assistance of counsel. However, Savage’s court-appointed counsel failed to file a petition for certiorari in the Supreme Court after we affirmed his conviction on direct appeal, United States v. Savage, 459 F. 2d 60 (5th Cir., 1972), despite the fact that it now appears his counsel promised Savage that this would be done.

In a recent case very similar on its facts, we took action to accord the appellants their right to petition the Supreme Court for certiorari. Lacaze v. United States, 457 F.2d 1075 (5th Cir. 1972). That is what we now do in this case by recalling our mandate in Savage’s direct criminal appeal cited above and by simultaneously issuing a new mandate reaffirming our prior affirmance of the judgment of conviction. Appellant Savage is hereby advised of his renewed right to petition the Supreme Court for certiorari to review this Court’s affirmance of his direct appeal. Since the appellant has proceeded without counsel in this forma pauperis appeal, we also appoint counsel to assist him in prosecuting his application for certiorari.

The original judgment of this Court on direct appeal is vacated and a new judgment is entered reaffirming the judgment of conviction, and counsel is appointed for the appellant.

      . The Appellant attached to his brief a Xerox copy of a letter addressed to him from his court-appointed counsel to this effect, in support of the allegation made in his § 2255 motion.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joseph John FOURNIER, Defendant-Appellant.
    No. 73-1482
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 24, 1973.

      Joseph John Fournier, pro se.
    Frank D. McCown, U. S. Atty., Richard H. Stephens, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.
    Before JOHN R. BROWNj Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

On August 26, 1971, Appellant Four-nier pleaded guilty to a charge of knowingly transporting a weapon in interstate commerce in violation of 18 U.S.C. A. §§ 922(g)(1), 924(a). On September 17, 1971, the District Court sentenced Fournier to a term of three years in prison.

Although Fournier appealed neither his conviction nor his sentence, he did file a motion under F.R.Crim.P. 35 to correct an illegal sentence. His main contention was that it was a violation of Equal Protection for him to be charged under Section 922 when he could have been charged under 18 U.S.C.A. App. § 1202(a)(1) with a maximum punishment of two years. Initially, on May 11, 1972, the District Court was impressed with this argument and reduced his sentence to two years. On reconsideration at the urging of the Government, however, the District Court, on May 26, 1972, vacated its order of May 11, 1972. The Court vacated this order because, on the authority of United States v. Chakmakis, 5 Cir., 1971, 449 F.2d 315, the original three year sentence was legal.. Therefore, the Court was without jurisdiction to entertain a Rule 35 motion. See F.R.Crim.P. 45(b); United States v. Granville, 5 Cir., 1972, 456 F.2d 1073. On appeal, we affirmed. United States v. Fournier, 5 Cir., 1972, 468 F.2d 952.

Fournier filed another Rule 35 motion on January 12, 1973. The District Court denied all relief and Fournier appeals. We affirm. Our prior opinion is the law of the case.

Affirmed.


text:
    John Samuel AUSTIN, Appellant, v. John W. WARNER et al., Appellee.
    No. 73-1319.
    United States Court of Appeals, Ninth Circuit.
    Aug. 6, 1973.
    Richard P. Fox, Max Gest, Los Ange-les, Cal., for appellant.
    Frederick B. Holoboff, Asst. U. S. Atty., Harry D. Steward, U. S. Atty., Robert H. Filsinger, Asst. U. S. Atty., San Diego, Cal., for appellee.
    Before ELY, WRIGHT, and GOODWIN, Circuit Judges.
   PER CURIAM:

Former Chief Petty Officer John Samuel Austin, who is out of the United States Navy and wants back in, appeals a judgment dismissing his petition for a writ of habeas corpus challenging the constitutionality of his separation from the service.

The litigation in the United States District Court began while Austin was still in the service and a board of officers was considering his retention after he suffered a conviction for an offense against the laws of the Republic of Mexico. The District Court dismissed that action because Austin had not exhausted his administrative remedies, and an action to enjoin the Navy from discharging him was premature. Austin v. United States, 412 F.2d 1187 (9th Cir.), cert. denied, 396 U.S. 973, 90 S.Ct. 465, 24 L. Ed.2d 443 (1969).

Austin now contends that, because he was “in custody” by reason of his enlistment in the Navy at the time he filed his first action, he is still “in custody” for the purposes of maintaining this action under 28 U.S.C. § 2241. The District Court correctly concluded that even the most tolerant interpretation of custody will not reach that far, and dismissed the action.

Austin now charges the District Court with an abuse of discretion in dismissing his petition without leave to amend. Federal courts are encouraged to grant leave to amend under Fed.R.Civ.P. 15(a). See Howey v. United States, 481 F.2d 1187 (9th Cir., 1973). The issue now before us is not whether any useful purpose would be served by a remand to permit Austin once again to try to get the Navy to restore him to its ranks, but whether a dismissal without leave to amend was an abuse of discretion.

At a hearing on a motion for leave to amend, Austin may have explained to the District Court some theory under which relief might be granted. He has brought this court no transcript, however, and we have no basis for holding that a busy trial court has abused its discretion, merely because it did not assist him with his pleadings, or permit him unlimited opportunities to experiment with papers of his own confection. While liberal application of Rule 15(a) is to be encouraged, this is not a case in which this court should speculate about judicial discretion merely to save a would-be litigant a filing fee.

Affirmed.


text:
    Norman B. GORHAM, Petitioner-Appellant, v. Elliot L. RICHARDSON, Attorney General of the United States, Respondent-Appellee.
    No. 73-1859
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 9, 1973.
    Norman B. Gorham, pro se.
    John W. Stokes, Jr., U. S. Atty., Anthony M. Arnold, Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

In his petition for habeas corpus, Gor-ham alleges that the parole board deprived him of fundamental fairness and abused its discretion when it refused to grant him parole. As this Court, sitting en banc, has recently stated, “[i]n the absence of evidence of flagrant, unwarranted, or unauthorized action by the Board, it is not the function of the courts to review such proceedings.” Scarpa v. U. S. Board of Parole (en banc), 5 Cir., 1973, 477 F.2d 278, 283. [Footnote omitted.] The record in the instant case reveals no evidence which would entitle Gorham to relief.

Affirmed.


author: BELL, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Douglas Jack WHITE et al., Defendants-Appellants.
    No. 72-3197
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 9, 1973.

      Roy Q. Minton, Austin, Tex., for White.
    Marvin O. Teague, Houston, Tex., for Palmer and Melody.
    Anthony J.' P. Farris, U. S. Atty., Edward B. McDonough, Jr., James R. Gough, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.

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

   BELL, Circuit Judge:

Appellants were charged in a ten-count indictment with multiple violations of the securities laws. 15 U.S.C.A. §§ 77e(a) (1), 77e(a)(2), 77q(a). They pleaded guilty to the conspiracy count and were sentenced on their pleas. The other counts were dismissed. Prior to sentencing, they moved to withdraw the pleas. The district court denied these motions.

Appellants contend that the district court did not comply with the strict requirements of Rule 11, F.R.Crim.P., in accepting their pleas initially and that it abused its discretion in refusing to grant the motions to withdraw. We agree that the district court did not comply with the requirements of Rule 11 in one fatal particular.

At the arraignment the district court inquired personally of the defendants whether they had conferred with counsel concerning the contents of the indictment, whether they made their pleas willingly and voluntarily, whether any promise or threat had caused them to plead guilty, whether they understood that a guilty plea waived certain constitutional rights, whether they had ever been adjudged of unsound mind, whether they fully understood what they were doing, and whether their attorney agreed with their decision to plead. Further, the district court requested them to execute affidavits. These affidavits verified the appellants’ responses to many of the court’s oral questions and stated as well that the appellants understood the elements of the offenses charged in the indictment, that they were pleading guilty because they were guilty, that they were aware of the maximum sentence provided by statute, that they were not presently under the influence of alcohol, drugs or narcotics, and that they were fully satisfied with the services of their attorneys.

The record reveals, however, that the district court did not undertake to determine the factual basis of the pleas, as required by McCarthy v. United States, 1969, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418. The court received no evidence or testimony which would have enabled it to determine whether acts committed and admitted by the defendants actually fell within the charge. See Reed v. United States, 5 Cir., 1973, 471 F.2d 721; Gilbert v. United States, 5 Cir., 1972, 466 F.2d 533; Cooks v. United States, 5 Cir., 1972, 461 F.2d 530; United States v. Frontero, 5 Cir., 1971, 452 F. 2d 406, 416. These decisions, as well as McCarthy, teach that in the absence of such a determination, the requirements of Rule 11 are not met.

In United States v. Sapp, 5 Cir., 1971, 439 F.2d 817, we upheld the refusal of the district court to allow a defendant to withdraw his guilty plea. The defendant had personally addressed the court and had executed an affidavit similar to the one executed by appellants here. We noted the extent of the representations made in the affidavit. We noted as well that “[i]n addition to the comprehensive nature of this plea, the record reveals that there were ample reasons to satisfy the court that there was a factual basis for the plea of guilty.” 439 F.2d at 819. The government contends that Sapp controls this case. We disagree. Sapp did impliedly approve the use of an affidavit such as the one used here; but Sapp teaches that the record must reveal a factual basis for the plea in addition to representations such as those made in the affidavit. The record in this case is deficient in this one respect.

The government contends that at the time the district court denied the motions to withdraw, it had knowledge of facts sufficient to establish a factual basis for the pleas and that the requirements of Rule 11 were satisfied, in substance, at that point. The contention is that the court gained this knowledge from testimony given at the subsequent trial of two co-defendants, who had pleaded not guilty. Appellants argue that, on the contrary, this testimony established their innocence. We believe, however, that whatever the proper bearing of this collateral proceeding on the district court’s discretionary decision to disallow the withdrawal of guilty pleas already made, Rule 11 requires that a guilty plea cannot be accepted in the first instance unless there is a showing of a factual basis for it. Here there was none. Under McCarthy, appellants must be allowed to plead anew.

Reversed and remanded.


author: BREITENSTEIN, Circuit Judge.

text:
    Phillip Lee WRIGHT, Individually and as Executor of the Estate of Sidney Franklin Wright, Deceased, Plaintiff-Appellant, v. The FIRST NATIONAL BANK OF ALTUS, OKLAHOMA, Defendant-Appellee.
    No. 73-1025.
    United States Court of Appeals, Tenth Circuit.
    July 30, 1973.

      Gerald Weatherly, Dallas, Tex. (Ellis, Frates & Maguire, Oklahoma City, Okl., on the brief), for plaintiff-appellant.
    T. G. Braddock, of Ivester & Braddock, Altus, Okl., for defendant-appellee.
    Before BREITENSTEIN, McWIL-LIAMS and BARRETT, Circuit Judges.
   BREITENSTEIN, Circuit Judge.

This diversity case is here for the second time. In the first appeal we held that the district court, because of the provisions of 12 U.S.C. § 1138, had no jurisdiction over defendant Altus Production Credit Association, a federally chartered association organized under the Farm Credit Act of 1933, 12 U.S.C. § 636 et seq. See Wright v. Altus Production Credit Association, 10 Cir., 468 F.2d 997. On remand the trial court held that Altus was a necessary party and dismissed the action on the motion of defendant-appel-lee First National Bank of Altus, Oklahoma. The present appeal is from the order of dismissal.

Plaintiff-appellant Wright sues in his individual capacity and as executor of the estate of Sidney Wright. The complaint alleges that plaintiff, his decedent, Bonita Wright, and Marcus Wright sold Oklahoma land; that defendant Bank holds in escrow approximately $42,000 of the purchase money to which plaintiff is entitled; that Altus, Bonita, and Marcus claim part of that sum; and that Bank refuses to pay. Plaintiff says that a “final computation” of the division of the purchase money was made and a copy thereof was attached to the complaint. Altus is alleged to have “tacitly admitted” that plaintiff is entitled to the $42,-000. The attachment to the complaint shows total sales of $248,250 and, after deduction of expenses and debts, “Net Payment to Wright brothers $41,972.72” and “Total payment to APC $48,660.11.”

Bonita and Marcus filed disclaimers. The answer of Bank admits the escrow and says that it “stands ready to disburse the funds held by it as directed by a Final Order of this Court.” Altus filed a motion to dismiss because of lack of jurisdiction over it. The district court sustained the motion of Altus and dismissed the action.

On appeal we held that the court had no jurisdiction over Altus. We also held that the failure of jurisdiction over Altus did not destroy federal jurisdiction over the other defendants who had appeared and raised no jurisdictional question, and ordered the case to proceed as to them.

Bank anticipated our November 3, 1972, mandate by filing in the district court on October 19 a motion to dismiss because Altus was an indispensable party. Three days after the filing of the mandate the district court ordered plaintiff to file a brief in five days opposing the motion to dismiss. On November 22, the court entered an order of dismissal.

Rule 19, F.R.Civ.P., provides in its ¶ (a) for joinder if feasible and in its ¶ (b) for determination by the court of action to be taken when joinder is not feasible. A decision to proceed under j[ (a) is a decision that the absent person is merely “necessary” while a decision to dismiss under ¶ (b) is a decision that the absent party is “indispensable.” Provident Tradesmens Bank v. Patterson, 390 U.S. 102, 118, 88 S.Ct. 733, 19 L.Ed. 2d 936.

In its judgment of dismissal the district court found that Altus “is a necessary party to the action.” This is not enough to justify dismissal. The plain wording of ¶ (b) permits dismissal only when a party is indispensable. Accordingly, the dismissal violates the rule and cannot stand.

If the use of the word “necessary” was a mere inadvertence, and nothing shows that it was, the question is whether the other conditions of ¶ (b) have been met. It there says that the court shall determine “whether in equity and good conscience the action should proceed among the parties before it,” ánd in making such determination four factors are to be considered. These are (1) prejudice to the absent party or to those already parties, (2) the lessening or avoiding of prejudice by protective provisions in the judgment, by shaping relief, or by other measures, (3) the adequacy of the judgment which might be entered in the person’s absence, and (4) the adequacy of a remedy if the action is dismissed for nonjoinder.

The trial court made no determination whether “in equity and good conscience” the case could proceed. It said “complete relief cannot be afforded the remaining parties for all the reasons set out in Rule 19, FRCP; that Plaintiffs have an adequate remedy in State Court upon the dismissal of the Petition in this case; * * These conclu-sionary statements are of no value because the court finds no facts to support them. In Provident Tradesmens Bank v. Patterson, 390 U.S. 102, 119, 88 S.Ct. 733, 743, 19 L.Ed.2d 936, the Court said:

“Rule 19 does not prevent the assertion of compelling substantive interests; it merely commands the courts to examine each controvery to make certain that the interests really exist. To say that a court ‘must’ dismiss in the absence of an indispensable party and that it ‘cannot proceed’ without him puts the matter the wrong way around: a court does not know whether a particular person is ‘indispensable’ until it has examined the situation to determine whether it can proceed without him.”

As far as the record before us shows, the trial court made no such determination. It did not comply with the rule.

Plaintiff argues that when we remanded the case with directions to proceed against the persons over whom the court had jurisdiction, we mandated trial. The point is not well taken. In the first appeal we had no question of indispensability presented.

In briefs and oral arguments the attorneys for the parties referred to matters outside of the record. We do not and will not consider matters not appearing in the record. We do not know whether “in equity and good conscience” the case can proceed in the absence of Altus and the trial court did not tell us why it cannot. The generalizations of the trial court are no substitute for the analysis required by the rule. See Provident Tradesmens Bank v. Patterson, 390 U.S. 102, 124, 88 S.Ct. 733, 19 L.Ed.2d 936. We do not know whether a decree can be written that protects everyone, whether present or absent. Ibid, at 124-125, 88 S.Ct. 733.

It is the function of a trial court to make decisions that may be reviewed understandingly by an appellate court. In the case at bar the trial court failed to perform that function. On remand the parties should each be given an opportunity to make such showing as may be appropriate and proper to the determination of whether in equity and good conscience the case may proceed and in deciding whether to proceed the trial court must give consideration to the facts bearing on the factors mentioned in Rule 19(b) and to the possibility of avoiding prejudice by protective provisions in its judgment.

Reversed and remanded for further proceedings in the light of this opinion.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. William Marvin HOLT, Defendant-Appellant.
    No. 73-1809
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 6, 1973.
    Ralph E. Coleman, Birmingham, Ala., for defendant-appellant.
    Wayman Sherrer, U. S. Atty., Albert C. Bowen, Jr., Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

The question here is whether the trial court abused its rather broad discretion in denying Appellant’s motion for severance. Appellant contends that, though initial joinder may have been proper and in accord with F.R.Crim.P. 8(b), the Government’s use of certain out-of-court admissions of his co-defendant, who did not take the stand and which tended to inculpate Appellant, amounted to violation of his Sixth Amendment right to confront the witness against him and should have compelled severance pursuant to that discretion vested in the Court under F.R. Crim.P. 14 We conclude that Bruton v. United States, 1968, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, supports the validity of Appellant’s contention, and that, therefore, the judgment of the District Court must be reversed with directions to grant Appellant a new trial.

The Government argues that, if in fact the prosecution’s use of the inculpating statements are to be construed as error, it has to fall under F.R.Crim.P. 52(a) as harmless error since no substantial rights of Appellant were prejudiced. We cannot agree.

As this ease developed, the defense counsel found himself in the unenviable position of having two clients, a father and a son, which conflicted. At the trial the Government put on the stand Special Agent Starr of the FBI and Pauline Yates, the sister of Appellant’s father. Both of these witnesses related damaging statements purportedly made by James Howard Holt, inculpating the Appellant, William Marvin Holt. Defense counsel could not place James Howard Holt on the stand to deny or explain away the statements as his record would subject both his son and him to being placed in a bad light before the jury. Neither could counsel attack the Defendant Howard Holt’s veracity as he was representing him. Here the Court should have known that this hearsay evidence could not be combatted by open confrontation. Similarly to Bruton, the introduction of the co-defendant’s statements “added substantial, perhaps even critical, weight to the Government’s case in a form not subject to cross-examination, since [the co-defendant] did not take the stand.” Bruton v. United States, supra, 391 U.S. at 128, 88 S.Ct. at 1623, 20 L.Ed.2d at 480. Thus, under Bruton, supra, Appellant was denied his constitutional right to cross-examination, secured by the confrontation clause of the Sixth Amendment. Consequently, the judgment of the District Court must be reversed with directions to grant a new trial. Gray v. United States, 5 Cir., 1969, 407 F.2d 830.

Reversed and remanded.

      . Eule 8(b) Federal Eulese of Criminal Procedure Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

      . Rule 14 Federal Eules of Criminal Procedure : If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by sucli joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection m camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial. As amended Feb. 28, 1966, eff. July 1, 1966.

      . Appellant William Marvin Holt had initially filed a motion for severance pursuant to F.R.Crim.P. 8(b), the ground being that his co-defendant father, James Howard Holt, had a criminal record and to require him to stand trial jointly with his father would prejudice his case if the record of his father was brought out. This motion was denied.


text:
    Carl REED, Jr., Petitioner-Appellant, v. Clarence JONES, Sheriff, et al., Respondents-Appellees.
    No. 73-1882
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 14, 1973.

      Carl Reed, Jr., pro se.
    Henry Wade, Crim. Dist. Atty., Dallas, Tex., for respondents-appellees.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.

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

   PER CURIAM:

For failure to state a claim upon which relief could be granted, the district court dismissed the civil rights complaint of Reed, a Texas prisoner, filed under 42 U.S.C.A. § 1983. In his pro se complaint, petitioner alleged and described acts which were claimed to constitute cruel and unusual punishment. No response of any kind was required from or filed by the defendants. The complaint was referred to a magistrate who recommended dismissal on the basis of the complaint alone, and this recommendation was adopted by the district court. We reverse and remand for further proceedings.

The Supreme Court held in Haines v. Kerner, 1972, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652, that a pro se complaint under § 1983 may not be dismissed for failure to state a claim upon which relief could be granted unless it appears with assurance that under the allegations of the complaint, the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See also Freeley v. United States, 5 Cir., 1972, 465 F.2d 1403. This holding is, of course, binding on the district court just as it is on this court, and we proceed to apply the holding to the instant complaint.

First, petitioner alleges that he was assigned to a tank in Dallas County jail and while there he decided to leave. In doing so, it was necessary for him to go between two safety doors. He remained in the small space between these doors for some fifteen hours. The district court was of the opinion that he could have returned to the tank at any time and thus his predicament was of his own choice. It is not clear to us that he could have extricated himself at any time; he seems to claim to have been left in the space as a punitive measure. Thus a question of fact is presented as to this allegation. Second, he contends that upon leaving the space between the two safety doors, he was jumped upon, kneed and choked by two guards. This allegation presents an issue of fact which has not been resolved. Third, we find an allegation in the complaint that petitioner was denied medical assistance which he had requested at or about the time of the claimed beating. This raises an issue of fact which remains unresolved. We conclude that it does not appear with assurance from the complaint alone that appellant could prove which would entitle him to relief of the kind sought, namely damages.

This is not to say that a trial will be necessary. The Federal Rules of Civil Procedure contain adequate tools for use in the processing of suits of this type. The summary judgment procedure is available and thereunder the matter might be resolved on affidavits. Pretrial hearing is, of course, available. As another example, the defendants might be required to institute discovery proceedings. Moreover, the court, sica sporcte, might require the defendants to formulate and serve a motion for a more definite statement on petitioner under Rule 12(e), F.R.Civ.P., in an effort to ascertain the facts for use in proceedings short of trial. On the other hand, there will be cases where the petitioner will be entitled to a trial, as in any other civil ease where a cause of action is stated and disputed issues of fact remain.

The further proceedings in the district court which will be necessary in this ease, as well as the management of the case, are matters directed to the discretion of the district court. We merely hold that it was error to dismiss for failure to state a claim upon which relief could be granted.

Reversed and remanded for further proceedings not inconsistent herewith.

      . The allegations here are to be distinguished from allegations ■which are in the nature of relief ordinarily available through habeas corpus proceedings, thus requiring exhaustion of available state remedies. Preiser v. Rodriquez, 1973, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439; Jones v. Decker, 5 Cir., 1970, 436 F.2d 954; Johnson v. Walker, 5 Cir. 1963, 317 E.2d 418.

      . The necessity of employing orderly procedures in this pro se type of case will be seen in the large number of such cases in the federal courts. There were 3,348 civil rights suits filed in the United States District Courts by state prisoners in fiscal year 1972. Report of Adm. Off. U.S. Courts, 1972, Table 17, P. 11-29.

      . We assume that the court acted under Rule 12 (b) (6), F.R.Civ.P. There was no motion before the court.


text:
    Nolan J. THIBODAUX, Plaintiff-Appellant, v. PRUDENTIAL MINERALS EXPLORATION CORPORATION, Defendant-Appellee.
    No. 73-1827
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 20, 1973.
    Rehearing Denied Aug. 31, 1973.

      Wilson M. Montero, Jr., John R. Martzell, New Orleans, La., for plaintiff-appellant.
    M. N. Grossel-Rossi, Michael A. Britt, New Orleans, La., for defendant-appellee.
    Before BELL, GODBOLD and IN-GRAHAM, 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:

The appellant sued for personal injuries in July 1970, shortly before the Louisiana one-year prescriptive period had expired, but he named as defendant a company which no longer had any connection with operation of the oil rig on which plaintiff was working when injured. In September 1970, after the prescriptive period had run, the named defendant filed an answer and motion for summary judgment which stated that the company operating the well was not it but was Prudential Minerals. A few days later plaintiff filed an amended complaint naming Prudential Minerals as substituted defendant. Two years later Prudential Minerals filed a motion to dismiss on the ground the suit had prescribed. At the hearing on the motion the court carefully inquired whether the “relation back” requirements of Rule 15(c) F.R.Civ.P. existed, that is, whether prior to the expiration of the prescriptive period Prudential Minerals had received such notice of the accident that it would not be prejudiced in defending and whether it knew or should have known that but for a mistake concerning identity of the proper party the action would have been brought against it. Prudential Minerals denied any such knowledge so the trial judge granted plaintiff four months in which to have discovery on these factual predicates for “relation back.” See Welch v. Louisiana Power & Light Co., 466 F.2d 1344 (CA 5, 1972). So far as the record reveals plaintiff took no action to take advantage of the time allowed by the court, and plaintiff does not even claim that he did. Four and a half months later, the plaintiff having come forward with nothing to show that the necessary factual predicates existed, the court granted the motion to dismiss. On this appeal plaintiff makes the belated argument that he had filed interrogatories to Prudential Minerals in December 1971 that had never been answered and that the answer to at least one of the questions propounded would have borne directly on the facts concerning “relation back.” The trouble with this is' that neither in the long hibernation of this case nor in the bonus period of four months permitted by the trial judge did the plaintiff make use of remedies available for failure of a defendant to answer interrogatories. The plaintiff makes no effort to explain his inaction but merely claims that the trial court lacked power to dismiss the case so long as there were unanswered interrogatories outstanding. This argument is made even though, so far as the record reveals, the court’s attention was never called to the interrogatories or to their subject matter or to any desire of plaintiff that they be answered prior to determination of whether the case had prescribed. The careful trial judge cannot be put into error at this late date by such an argument. The court went the last mile to protect plaintiff from a dismissal, but plaintiff having shown no basis for “relation back” the dismissal must be, and is, affirmed.

      . Wliy this two-y.ear delay occurred and why it was permitted are not revealed.


text:
    Helen MASCUILLI, Administratrix of the Estate of Albert Mascuilli, Deceased, Appellant, v. UNITED STATES of America,
    No. 72-1615.
    United States Court of Appeals, Third Circuit.
    Argued May 22, 1973.
    Decided July 31, 1973.
    Milton M. Borowsky, Martin J. Vig-derman, Freedman, Borowsky & Lorry, Philadelphia, Pa., for appellant.
    Harlington Wood, Jr., Asst. Atty. Gen., Washington, D. C., Robert E. J. Curran, U. S. Atty., Philadelphia, Pa., Alan S. Rosenthal, Michael Kimmel, Walter H. Fleischer, Attys., Dept, of Justice, Washington, D. C., for appellee.
    Before KALODNER, ALDISERT and ADAMS, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

The instant appeal arises out of the death of a longshoreman on May 1, 1959 while employed on the USNS Marine Fiddler in the Port of Philadelphia.

We remanded the case for a new hearing and determination of the issue of damages some four years ago when it came before us for the third time. In doing so we directed the district court to compute earnings of the deceased longshoreman and to “employ when applicable and relevant the actual figures rather than estimates.” Mascuilli v. United States, 411 F.2d 867, 873-874 (1969).

The district court, 343 F.Supp. 439, in calculating loss of earnings used “estimates” instead of “actual” figures, despite the fact that salary figures for longshoremen from the date of death to the date of hearing were adduced in evidence. In doing so it disrgearded our explicit directions.

For the reason stated the judgment of the district court will be reversed and the cause remanded with directions to proceed forthwith in accordance with our stated prior instructions to use actual figures, and not estimates, in calculating loss of earnings.

We deem without merit other contentions advanced by the appellant.


text:
    Alonzo STEVENS, Appellant, v. DOBS, INC., et al., Appellees.
    No. 73-1164.
    United States Court of Appeals, Fourth Circuit.
    Argued June 4, 1973.
    Decided Aug. 2, 1973.
    Sylvia Drew, New York City (Jack Greenberg, New York City, Julius Le-Vonne Chambers, Chambers, Stein, Ferguson & Lanning, Charlotte, N. C., and Michael Davidson, New York City, on brief), for appellant.
    W. C. Harris, Jr., Raleigh, N. C. (Harris, Poe, Cheshire & Leager, Raleigh, N. C., on brief), for appellees.
    Before BRYAN, Senior Circuit Judge, RUSSELL, Circuit Judge, and KNAPP, District Judge.
   PER CURIAM:

Plaintiff sought relief on account of alleged racial discrimination in the refusal to rent him an apartment in an apartment complex owned by the defendant. Jurisdiction was based on Sections 3610 and 3612, 42 U.S.C., Sections 1981 and 1982, 42 U.S.C., and Section 1343 (3) and (4), 28 U.S.C. The District Court denied relief, finding that “the evidence does not establish any racial motive” in the refusal to rent. We reverse the dismissal and remand for further proceedings not inconsistent herewith.

It is well settled that the findings of the District Court are not to be disturbed unless “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Gypsum Co. (1948), 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746. We are, however, firmly convinced that in this case such “mistake has been committed.” The record, it seems clear to us, establishes a denial based on racial grounds.

The plaintiff is black. He personally applied to the receptionists at the defendant’s apartment complex on two occasions to rent an apartment in its Beckanna Apartments: At the time there were no black tenants in the Beck-anna Apartments, nor had there ever been. On the occasions of his application for an apartment the plaintiff gave the suggested information as to financial resources and furnished character references in the manner generally required by the defendant. Neither the manager nor the defendant Coggins, the president and actual owner of the defendant Dobs, Inc., ever saw the plaintiff. Of the two separate receptionists who did interview the plaintiff and accept his application only one testified. In any event, when the plaintiff sought to rent an apartment on February 20 or 21, 1969 no one indicated he was an unacceptable tenant and the defendant thereafter proceeded to conduct a character, credit and income check of the plaintiff. All of these checks were admittedly favorable. It was not until “sometime in March”, after these checks had been made, that the defendant’s manager determined the plaintiff was an unacceptable tenant. The plaintiff’s unacceptability, according to the apartment manager, did not rest on any adverse report of his character, or a want of an adequate income on his part, or any reflection on his credit responsibility. The defendant contends simply that the plaintiff was found unacceptable because, when he came to the apartments on the two occasions he visited them and was interviewed by the receptionists, both receptionists reported to the manager that they had detected “an offensive odor.” The receptionist who testified was unable to identify the exact nature of the odor, describing it merely as “maybe unclean clothing or just a stale odor.” She conceded, however, that when she had seen the plaintiff, the latter was accompanied by a male companion and she admitted she could not say whether the odor emanated from the plaintiff or from his companion, who, incidentally, was white.

The very reason assigned for denying the plaintiff an apartment carried on its face manifest racial overtones, which, considering the flimsiness of the evidence of “offensive odor”, at the least demanded the most careful scrutiny of the circumstances under which the plaintiff was denied an apartment. If the plaintiff was disqualified as a tenant by reason of any really offensive odor detected on his first interview, it would seem reasonable that the receptionist, either after consulting the manager or without so consulting him, would have advised the plaintiff immediately of his unacceptability. After all, it was the burden of the defendant’s testimony that the responsibility for passing on the acceptability of tenants rested with the receptionists and the manager who acted on their own without advice from the owner. But neither the receptionists nor the manager acted promptly on plaintiff’s application' by refusing it. On the contrary, they conducted an income and character cheek of the plaintiff. It was only weeks later, after the various investigations of the plaintiff’s character and income had been completed, that the manager, hesitant about making a decision on his own, requested advice from the owner as to how to deal with plaintiff’s application. Why did he feel so hesitant? He conceded all the investigations of the plaintiff were favorable. The conclusion seems irresistible that it was the plaintiff’s color that prompted the manager to look to the owner for guidance. The owner in turn testified he instructed the manager to treat the application as any other application. But, what was there so unusual or abnormal about the plaintiff’s application as to prompt such an instruction ? The conclusion again seems clear that the unusual fact about the plaintiff’s application was the applicant’s color and that this was an important element in the denial of an apartment to him. The claim of “offensive odor”, freighted as it was with all the trademarks of racial prejudice, was, it would appear, simply an excuse for action that could find no real basis except in racial discrimination. In fact, the receptionist who testified frankly admitted she knew of no reason why the plaintiff was denied an apartment. This candid admission adds further confirmation to the conclusion that the denial of an apartment to the plaintiff was discriminatorily motivated.

We are accordingly constrained on this record to conclude that the District Court erred in dismissing the plaintiff’s action and it is remanded for further proceedings not inconsistent herewith.

      . Though described as receptionists, these employees were more in the nature of office managers. They received and passed on applications to rent; they made the character, credit and reference checks on applicants; and they liad other duties.

      . For a discussion of the prejudice associated with this notion of a peculiar “Negro odor,” see Allport, The Nature of Prejudice at 134-5 (Anchor Ed., 1958) and Myrdal, An American Dilemma, at 50 (Rose’s Cond. vers., Harper Torchbrooks), where, in referring to the belief, among others, that “all Negroes [have] a peculiar odor,” the author adds, “[S]uch beliefs are frequently used to justify discrimination and segregation.”

      . See, Smith v. Sol D. Adler Realty Company (7th Cir. 1971), 436 F.2d 344, 349-350.