text:
    HENRY MANUFACTURING CO., INC., Plaintiff-Appellant, v. COMMERCIAL FILTERS CORPORATION, Defendant-Appellee.
    No. 71-1456.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 20, 1972.
    Decided Nov. 8, 1972.

      Barratt O’Hara, Chicago, 111., for plaintiff-appellant.
    John L. Murphy, Crim. Div., Dept, of Justice, Washington, D. C., for defendant-appellee.
    Before SWYGERT, Chief Judge, and CUMMINGS and SPRECHER, Circuit Judges.
   CUMMINGS, Circuit Judge.

After a full trial the district court, D. C., 350 F.Supp. 1015, entered judgment for the defendant and dismissed this patent infringement suit, holding that the patent sued upon was invalid for obviousness and that in any event the patent was not infringed. This appeal followed.

On November 25, 1958, patent No. 2',-861,688 was issued to Harold H. Harms for his liquid clarification system. After two earlier applications relating to this structure had been abandoned, Harms filed an application for the present patent in December 1955. In August 1957, Harms assigned all his rights in the application and any patent that might be granted therefor to plaintiff. Claims 34 and 35 of the issued patent were presented to the Patent Office by way of amendment to the application in April 1958. Earlier, in May 1957, an amendment was offered consisting of two claims disclosing a particle liquid separator admittedly similar to claims 34 and 35, but these were rejected as unpatentable over Hermann patent No. 2,469,197. These rejected claims were rewritten to define applicant’s invention better and to distinguish it further from the disclosure of the Hermann patent; the rewritten claims were finally accepted as numbers 34 and 35. Alleged infringement of claims 34 and 35 is the. sum and substance of the complaint.

Claim 34, divided here for convenience by the letters “a” through “h,” reads as follows:

“A particle liquid separator for separating both lighter and heavier particles than the liquid from said liquid in which they are suspended, comprising:
a. a first liquid chamber permitting flotation of said lighter particles and settling of said heavier particles,
b. a first ramp means extending from a side of said first liquid chamber,
c. a first conveyor means to remove settled particles from the bottom of said first chamber up said first ramp means,
d. a skimming means to remove said lighter particles from the top of the liquid in said first liquid chamber,
e. a second liquid chamber adjacent said first liquid chamber and having at least one wall in common between the liquids in both cham-. bers and receiving liquid from said first liquid chamber for permitting further settling of heavier particles from said liquid,
f. a second ramp means from a side of said second liquid chamber,
g. a second conveyor means to remove settled particles from the bottom of said second liquid chamber up said second ramp means, and
h. an overflow edge on one of said liquid chambers for the liquid passing from that chamber.”

Claim 35 reads as follows:

“A separator according to claim 34 wherein said overflow edge comprises a plurality of parallel weir edges.”

Plaintiff has manufactured and sold liquid clarification systems, more commonly known as separators, for over 14 years. The separators in question are used to clarify or purify liquid coolant in machine tool operations. The usual coolant is a water base oil emulsion which is transferred to the separator from the machine tools with cutting chips and other debris to be separated and removed from the coolant prior to its reuse.

In its memorandum opinion, the district court described plaintiff’s separator as disclosed in the patent in the following findings:

“The apparatus includes upper and lower tanks with the upper tank extending into or nesting in the lower. Separation of lighter particles is performed in the upper tank by reducing the flow of the contaminated liquid so that flotsam or lighter particles will remain on the surface where, by either the entrance of the flowing liquid into the end of the pool or by mechanical means, the flotsam is driven to one end of the tank. Simultaneously, larger sized heavier contaminants settling from the coolant are stopped by a filter screen which forms a part of the upper tank’s bottom. These settled contaminants form a filter bed on the filter screen through which the liquid must pass. A float-controlled scraper or wiper-type conveyor which moves a short distance when the liquid level in the upper tank rises to a certain level scrapes along the top of the screen of the bottom of this upper pool to prevent the filter bed from becoming too thick and reducing the rate of flow of the liquid through the screen. As this conveyor removes set-tlings up a ramp, it simultaneously removes flotsam which has accumulated at the end of the tank. A settling step is effected in the lower tank into which the filter directly discharges

Later separators sold by the plaintiff abandoned the nested tank arrangement and the filter screen between the tanks. The newer separators use adjacent side-by-side liquid chambers to accommodate fine, settlable particles which clogged the filter screen. There is no question that claims 34 and 35 read upon the side-by-side tank arrangement sans filter as well as the earlier nested tank configuration. Defendant allegedly copied plaintiff’s later separators.

The district court concluded that the separators of both parties incorporated an aggregation of old elements and constituted only an improved liquid clarification system to be used in connection with cutting and grinding tools. Relying upon the teachings of seven prior art patents, the court concluded that Harms’ patent was invalid because the subject matter does not involve invention. Accordingly, claims 34 and 35 were voided for obviousness under 35 U.S.C. § 103. We do not reach the question whether defendant’s apparatus infringed these claims because we agree with the district court’s invalidity holding.

In Graham v. John Deere Company, 383 U.S. 1, 17, 86 S.Ct. 684, 694, 15 L.Ed. 2d 545, the Supreme Court set forth three requirements for determining obviousness under 35 U.S.C. § 103:

(1) [T]he scope and content of the prior art are to be determined;

(2) [Differences between the prior art and the claims at issue are to be ascertained; and

(3) [T]he level of ordinary skill in the pertinent art [is to be] resolved.

The district court recognized that in deciding the legal issue it was bound to consider these factual matters and held that upon a consideration thereof, the subject matter of the patented invention would have been obvious to a person skilled in the development of liquid clarification systems.

In reaching its conclusion as to the prior art, the court first relied on Hermann patent No. 2,469,197. Even though the Hermann patent was cited by the Patent Office it may be considered along with uncited art in determining obviousness. Skirow v. Roberts Colonial House, Inc., 361 F.2d 388, 390 (7th Cir. 1966). As has been stated, the Patent Office rejected the prior versions of claims 34 and 35 as unpatentable over Hermann. The reasons given were that “These claims do not recite any structure for forming the two chambers [and that] to make the height of the weir 12 of Hermann adjustable would require no invention.” Plaintiff argued to the Patent Office that its rewritten claims should be allowed despite Hermann because the latter “does not disclose two separate ramp means and separate conveyors therefor in each of the two separate liquid settling chambers as now claimed, nor does it disclose a plurality of parallel weirs as specifically claimed in claim 39 [number 35 in the issued patent].” Ultimately the patent was issued containing the rewritten claims 34 and 35.

Apparently recognizing the similarities of the Hermann and Harms patents, plaintiff argues that the Hermann patent is not available to the defendant as a reference because it failed to give plaintiff a 30-day pretrial notice of reliance, as provided in 35 U.S.C. § 282. As we have at least twice intimated, under certain circumstances this statute permits a trial judge to receive proof of prior patents in the absence of the prescribed 30-day notice if the plaintiff is not thus deprived of an adequate opportunity to present his case. Since plaintiff itself introduced the Hermann patent into evidence and presented expert testimony in regard thereto, it was not surprised at the trial and cannot complain that the district court should not have referred to it. Moreover, plaintiff was intimately familiar with the Her-mann patent because, as noted, it had been first cited by the Patent Office against the Harms application, and plaintiff had consequently rewritten its claims in an attempt to distinguish its disclosure from Hermann’s.

As the district court found, the Her-mann patent discloses a tank with a continuous conveyor which removes from a liquid heavier particles which settle in the tank. Lighter weight particles which float on the liquid are driven by a conveyor chain with flanges to a point at which they encounter the conveyor chain which removes the heavier particles. The clarified liquid leaves the chain under a baffle and flows over a weir to its removal point. Although admitting that the Hermann patent is the best prior art reference, plaintiff attempts to avoid it because the Hermann weir is supposedly not equivalent to an overflow edge providing a continuous quiescent pool. The attempted distinction is unpersuasive, for one of the reasons for the examiner’s original rejection of Harms’ claims 34 and 35 (then claims 36 and 37) was: “To make the height of the weir 12 of Hermann adjustable would require no invention.” Moreover, in presenting the rewritten claims to the Patent Office, Harms sought to distinguish the Hermann patent on the basis of the duality of the chambers, ramp means and conveyors as well as the plurality of parallel wires and did not light upon any supposed, especial, continuous, quiescent pool provided by the Harms weir and unanticipated by the Hermann weir. In this connection it is noteworthy that the Hermann patent provides:

“In the operation of the apparatus, liquid, such as water containing material which floats and which tends to settle at the bottom, is discharged as in the usual way, into the distribution trough 11 from which it enters the main body of the tank, and a liquid level is maintained at a point where the water can flow in a thin body over the weir wall 12, the skimmer plate 13 serving to prevent any floating material from leaving the main sludge chamber.” (Emphasis supplied.)

In our view, the differences between the Harms and Hermann patents merely amount to an obvious modification of the prior art.

The district court also relied on six other patents which were not cited by the United States Patent Office examiner. Ashmead patent No. 1,109,159 utilizes a tank containing a liquid into which a mixture of solids is introduced. The specific gravity of the liquid is used to separate the dry solids that are removed from the tank by two separate conveyors in two compartments. The primary difference between Ashmead and Harms is that Ashmead separates solids as crushed coal and slate, whereas Harms separates debris from a liquid coolant.

Marshall patent No. 1,990,458 discloses a settling tank in which an endless conveyor is used to sweep floating contaminants along the surface of the liquid in the tank, then periodically sweeping them into a box at the end of the tank. This patent uses a settling means by which heavier particles are swept along the bottom of the tank by the same conveyor. The plaintiff’s expert at least admitted that this structure could be used for the removal of contaminants from machine tool coolant “in a half-hearted way” and that it “would probably handle a large volume of liquid,” though he did not believe it would remove all the solids.

Lind patent No. 2,509,933 discloses a tank and utilizes a continuous conveyor for scraping settled contaminants to a position for removal. It uses a welling-up of liquid through a series of square openings which have a saw-toothed weir, and the liquid flows over those notches through a series of channels which lead to an outlet pipe. When questioned whether the structure and method of this patent could be used for the same purposes as the Harms patent, plaintiff’s expert replied: “I suspect that it would be useful only if you had a very small amount of coarse solids in the system.”

Schmidt patent No. 838,515 discloses a sewage clearing vat and also utilizes the welling-up of liquid over weirs from •which it flows into troughs. Plaintiff’s expert testified that the structure of Schmidt “shows a way to handle a large volume of liquid and possibly to remove some of the settlable solids.”

Landreth patent No. 1,483,667 depicts an apparatus which allows the liquid to flow through a perforated screen which catches contaminants. A series of brushes on a continuous conveyor is used to brush off the screen to keep the openings relatively clean. When asked whether the Landreth patent could be used for the same purposes as Harms’, plaintiff’s expert stated: “If the opening were small enough to filter out the type of solids that are dealt with in coolants, I suspect they would require a much more complex system to keep the brushes operating and clean than this one is.”

The final patent relied upon by the district court as prior art is Symington No. 2,162,262 which is used to separate magnetic particles from nonmagnetic particles contained in liquids through use of an electromagnet. Notably the liquid clarified of magnetic particles forms a relatively quiescent pool whose removal is effected over an overflow weir. When asked to compare Syming-ton with Harms, plaintiff’s expert only addressed the magnetic separation, stating: “If it works, it might remove some of the magnetic materials, but it would not remove the nonmagnetic materials; therefore, it would not clean out the total quantity of liquids.”

In the court below and here, defendant also relied on Alexander patent No. 2,151,578, which seeks to separate coal from impurities by suspending the solids in a liquid having a specific gravity intermediate to that of the coolant impurities, so that some of the solids would float and others would sink. The patent employs a small conveyor to skim flotsam from the surface of the liquid and uses an upper and lower tank. Also, the patent discloses three different weirs over which bodies of liquids utilized in the process escape to pursue their designated courses. The distrito court’s opinion does not mention the Alexander patent.

Plaintiff relies upon the presumption of validity that Section 282 of the Patent Code (35 U.S.C. § 282) accords patents. This presumption does not exist against evidence of prior art not before the Patent Office. Even one prior art reference not considered by the Patent Office can suffice to overthrow the presumption. T. P. Laboratories, Inc. v. Huge, 371 F.2d 231, 234 (7th Cir.1966). Plaintiff concedes the Harms patent is a combination patent, and where a patent combines the teachings of the prior art, it would be especially inappropriate to presume validity on the basis of a single prior patent reference cited by the Patent Office, even if it is the most pertinent, in the face of other prior patents defining the scope and state of the art from which the elements of the combination are drawn. See Hewlett-Packard Company v. Tel-Design, Inc., 460 F.2d 625, 628-629 (9th Cir. 1972). Of the above patents, only Hermann was considered by the Patent Office with respect to this application. The other seven patents briefly described, supra, elucidate the teachings of the prior art and demonstrate that the claimed distinctions between the Harms and Hermann patents involve elements clearly known to the prior art. Moreover, all the patents previously described support the district court’s finding that plaintiff’s patent is “only an improved liquid clarification system to be used in connection with cutting and grinding tools.” As defendant’s expert witness testified, “the filter is the only element that is not shown in the prior art” (Tr. 93; see also Tr. 97), and of course plaintiff does not contend that its inclusion was unobvious and in fact no longer employs filters in most of its devices.

Plaintiff relies on the substantially improved separation resulting from its “combination of an ‘overflow edge’ which creates a continuous ‘quiescent pool’ permitting the settling of very fine particles in a second chamber which removes the settled particles.” But as shown, prior patents of others employed overflow weirs and a second tank. As recently reiterated in Hewlett-Packard Company, supra at 629, when old elements are collated for the first time, non-obviousness is not established unless the combination of old elements produces an unusual or surprising result. See Great A. & P. Tea Co. v. Supermarket Equip. Corp., 340 U.S. 147, 152, 71 S.Ct. 127, 95 L.Ed. 162. Like the district court, we are convinced that the combination of the elements of prior art here hardly produces an unusual or surprising result. Each of the elements combined in the Harms patent was known in the prior art, and Harms’ combination of ideas only produced results that would be expected by one of ordinary skill in the art. Defendant’s expert, Charles W. Rummler, demonstrated that all of the elements involved in Harms were fully disclosed in the prior art patents. The claims in suit do not disclose differences which would be unobvious to a man working in the art. For example, Mr. Harms, plaintiff’s president, replied, “I think it is the most natural thing in the world, but [defendant] Commercial Filters doesn’t * * * ” when he was asked, “Now, isn’t it natural, if you find a trough or portion of the tank that is accumulating dust that you didn’t think it would, isn’t it natural to stick a conveyor in it and take it out?”

Since we are satisfied that the district court’s findings amply support its conclusion that claims 34 and 35 are invalid for obviousness under 35 U.S.C. § 103, we need not consider the other arguments presented by defendant in support of the judgment below.

Affirmed.

      . 35 U.S.C. § 103 provides:
      “A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that filtered liquid containing those finer, heavier solid particles which were not retained on the screen or in the filter bed. Those contaminants which sink to the bottom of the second or ‘clean’ liquid chamber are removed by a second conveyor means up a second ramp. The discharge of this second pool is effected by the flow of -liquid over weir edges which maintain the liquid level in the second pool.” 350 F.Supp. at 1016-1017. the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.”

      . Then numbered claims 36 and 37, the pri- or versions of claims 34 and 35, are as follows :
      “36. A particle-liquid separator for separating both lighter and heavier particles than the liquid from said liquid in which they are suspended, comprising : a first liquid chamber permitting flotation of said lighter particles, skimming means to remove said lighter particles from said first liquid chamber, a second liquid chamber below said first liquid chamber for settling the heavier particles in said liquid, said first and second liquid chambers communicating through the bottom of said first liquid chamber, conveyor means for removing the settled heavier particles from the bottom of said second liquid chamber, an overflow edge on said second liquid chamber, means for adjusting the height and level of said edge for controlling the liquid level of both said chambers, and means for collecting the liquid overflow from said edge.
      “37. A separator according to claim 36 wherein said overflow edge comprises a plurality of parallel weir edges.”

      . Compare claim 35 of the issued patent with claim 37 of the prior version rejected by the Patent Office, set forth in note 2, supra.

      . Sutter Products Company v. Pettibone Mulliken Corporation, 428 F.2d 639, 641-642 (7th Cir. 1970); Stiffel Co. v. Sears, Roebuck & Company, 313 F.2d 115, 116-117 (7th Cir. 1963), reversed on other grounds, 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661.

      . As to the presumption of validity against a file wrapper reference patent, see discussion infra.

      . Mr. Rummler discussed the prior art in great detail. The fact that he did not use the word “obvious” in his testimony certainly did not prevent the district court from relying thereon in finding obviousness under 35 U.S.C. § 103. In fact, had the witness used the expression “obvious,” that might have precipitated a “legal conclusion” objection.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Roger KNELL, Plaintiff-Appellant, v. Peter B. BENSINGER, Director Department of Correction of State of Illinois, and John J. Twomey, Warden, Illinois State Penitentiary, Joliet, Illinois, Defendants-Appellees.
    Nos. 72-1571, 72-1788.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 11, 1973.
    Decided Nov. 6, 1973.

      Roger Knell, in pro. per., Edward B. Beis, Cook County Legal Assistance Foundation, Chicago, 111., for plaintiff-appellant.
    Raymond McKoski, Asst. Atty. Gen., William J. Scott, Atty. Gen., Chicago, 111., for defendants-appellees.
    Before KILEY, FAIRCHILD and STEVENS, Circuit Judges..
   PER CURIAM.

The appellant, Roger Knell, an inmate of the Illinois State Penitentiary, State-ville Branch, filed two claims based on 42 U.S.C. § 1983 in the District Court for the Northern District of Illinois. In the first, 72 C 138, the court granted the State’s motion for summary judgment; in the second, 72 C 1104, it granted the State’s motion to dismiss. Both cases arise out of the same factual situation.

Based on the pleadings and affidavits, the following facts appear to be uncon-tradicted. In late 1971, the appellant was accused of writing a letter to an unauthorized person, and of smuggling the letter out of the prison. On or about November 17, appellant was brought before a three-man Prison Disciplinary Committee. The allegation of the rule infraction was read to him and he was allowed to speak in his own defense. He asserted his innocence, and, presumably in order to establish his claim, requested that he be permitted the assistance of an adviser in the person of a “jailhouse lawyer” and the opportunity to call a witness. Both requests were denied, and the Committee found he had violated the regulation. He was thereupon placed in punitive isolation for a period of 15 days, and his case was referred to the Merit Staff for further consideration. While in isolation, appellant was denied mailing privileges including the right, pursuant to a rule no longer in force, to file a writ of habeas corpus with the federal court. Furthermore, during isolation, he was denied the assistance of an adviser and the use of the prison’s law library. After his confinement in isolation ended, appellant appeared before the Merit Staff Committee. As in the previous hearing, he was allowed .to speak on his own behalf, but after asserting his innocence, was again denied either the assistance of an adviser or the opportunity to call a witness. The Merit Staff, in effect, reaffirmed the finding of his guilt and determined both to revoke three months’ statutory good time which he had earned and to demote him in the status by which future good time is computed. These suits followed.

No 72 G 138

In the first of his actions, the appellant claims that his rights were violated both in that he was denied access to the courts, and in that he was not accorded adequate procedural protection at the hearings which led to the imposition of punishment.

Following the decision of the Disciplinary Committee to place him in punitive isolation, the appellant attempted to file a writ of habeas corpus in federal court. There is no dispute that, under the then-applicable prison regulations, he was denied the opportunity to do so. In this action he seeks both injunctive relief against rules inhibiting the access to the courts by prisoners in isolation, and damages for the violation of his civil rights which, he claims, such a denial constituted; The State argues that the request for injunctive relief is now moot since the regulations prohibiting prisoners in isolation from communicating with the courts have been modified; that damages do not lie in these circumstances; and, in any event, that the Constitution prohibits only unreasonable denial of access to the courts.

It is true that, since appellant’s incarceration in isolation, prison regulations concerning the rights of inmates being so disciplined have been changed. The new regulations, issued on February 15, 1972, and implemented by April 3, 1972, as set forth in the State’s Motion to Dismiss or For Summary Judgment, at page 8 of the Record, provide:

“Inmates in disciplinary isolation will :
Receive normal visiting privileges and legal mail privileges.
Visits may be in the presence of an officer.
“Inmates in isolation, segregation or any ‘lock-up’ status shall not be denied the opportunity 'to correspond with the Director of Corrections, the Assistant Director of the Adult Division, their attorneys, or with any State or Federal Court.” (Emphasis added in State’s Brief below.)

Under this regulation, it is clear that a prisoner in isolation would be entitled to file a writ of habeas corpus. The in-junctive relief sought by the appellant is to this extent unnecessary. But the prisoner complained of more. He objected to his inability to consult with an adviser for the purpose of receiving assistance in the preparation of his petition and to the denial of the opportunity to consult materials in the Prison’s Law Library. We do not know whether the quoted portions of the new regulations have changed the prison rules in this regard; if there have been other changes, the State has not brought them to our attention.

In Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 the Supreme Court had occasion to consider the problems prisoners face in articulating legal claims. A Tennessee prison regulation prohibited the petitioner from providing legal assistance to his fellow inmates. Reasoning from the premise that “access of prisoners to the courts for the purpose of presenting their complaints may not be denied or obstructed,” 393 U.S., at 485, 89 S.Ct., at 749, the Court held that “access” meant more than the mere right to file papers with the court. Meaningful access included the right to examine legal materials in order to establish what legally cognizable claims might exist or having the assistance of someone with comparative specialization. The Court reasoned:

“There can be no doubt that Tennessee could not constitutionally adopt and enforce a rule forbidding illiterate or poorly educated prisoners to file habeas corpus petitions. Here Tennessee has adopted a rule which, in the absence of any other source of assistance for such prisoners, effectively does just that. The District Court concluded that ‘[f]or all practical purposes, if such prisoners cannot have the assistance of a “jail-house lawyer,” their possibly valid constitutional claims will never be heard in any court.’ 252 F.Supp. [783] at 784.” 393 U.S. at 487, 89 S.Ct. at 749.

Accordingly, the Court sustained the district court’s holding that the prison regulation was invalid.

Upon the record before us, even under the newly promulgated rules, it is possible that prisoners in isolation in State-ville may be denied effective access to the courts for the purpose of challenging the legality of their confinement. Cf., Gilmore v. Lynch, 319 F.Supp. 105, 110 (N.D.Cal.1970). If effective access is denied to inmates in isolation at State-ville, injunctive or declaratory relief may be required.

Defendants argue that the Constitution requires no more than recusonable access to the courts. We agree. Sigafus v. Brown, 416 F.2d 105, 107 (7th Cir. 1969). But even though the State may regulate the mechanics of prisoner communication with the courts to an extent consistent with “reasonable access,” this appellant has alleged that he was denied any access whatever to challenge the legality of his confinement in isolation during its pendency. The complete frustration of a prisoner’s attempt to consult an adviser or to use the prison law library may constitute an effective denial of access to the courts, quite apart from the denial the right to send mail to the court under the old regulation. Of course, a prisoner in isolation does not have an unlimited right to use the'library or to consult with an adviser. But the complete failure of the regulation to make any provision for assistance to the illiterate and indigent prisoner in isolation may make the new regulation vulnerable.

Defendants next argue that damages are not an available remedy for a prisoner who claims an unlawful confinement in punitive isolation. They assert that the prison officials were enforcing an apparently valid regulation in good faith. The defense raises a question of fact for the district court to resolve in the first instance.

We therefore conclude that the cause must be remanded to the district court to determine whether the regulations in force at Stateville do in fact permit effective challenge of punitive isolation by inmates other than those who have retained counsel or are sufficiently learned in the law to challenge their confinement effectively without advice and without the tools of legal research; and whether appellant can prove damages arising out of his denial of access to the courts during his 15 days in isolation.

The second claim appellant asserts in his first complaint is that he was subjected to punishment without adequate procedural protection. For having been found to have violated prison regulations by writing an unauthorized letter, appellant was subjected to 15 days in punitive isolation, the loss of three months’ statutory good time which he had earned, and the demotion from Grade “A” to Grade “C” affecting his ability to earn future good time. We have no doubt that such punishment constitutes a “grievous loss” which necessitates the procedural safeguards discussed in Miller v. Twomey, 479 F.2d 701 (7th Cir. 1973). This branch of 72 C 138 must therefore be remanded for further consideration in light of Miller v. Twomey.

No. 72 C 110U

In this complaint appellant objects to the diminution of statutory good time. At oral argument defendants suggested that this ■ question is now moot because appellant is presently out of prison on parole. See Ill.Rev.Stat. c. 38, § 1003-3-9(a) (3) (i). Since appellant is still technically “in custody,” and since the record of his past behavior may be relevant for some correctional purposes, this conclusion is doubtful. Cf., Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554. Since appellant’s other claims must be remanded, we believe the district court should, in the same proceeding, review his challenge to the dis-allowance of statutory good time.

Finally, the State objects to the fact that the proceeding was brought under § 1983, rather than as a petition for a writ of habeas corpus. This objection is met by our discussion of Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439, in Miller v. Twomey, supra, 479 F.2d at 703-704.

The judgment in 72 C 1104 is vacated and the cause is remanded to the district court for further proceedings.

      . Appellant was demoted from Grade “A” to Grade “O.” A prisoner with Grade “A” earns 10 days good time per month; a prisoner with Grade “B” earns five days good time per month; and a prisoner with Grade “C” earns no good time to reduce his sentence. Brief for appellant at 3.

      . The regulation apparently permits a prisoner in isolation to consult with his “attorney.” Whether the warden would allow an indigent to consult with a “jailhouse lawyer” is not clear. It is possible that the only inmates intended to benefit by this change are those who are represented by retained counsel.

      . As Chief Judge Swygert lias pointed out, a practical solution to this problem, which does not involve the use of fellow inmates as advisers, is available. See Miller v. Twomey, 7Cir.,479 F.2d 701, 724 n. 3.


author: GIBBONS, Circuit Judge.

text:
    CITIZENS FOR A SAFE ENVIRONMENT and the Environmental Coalition on Nuclear Power, Petitioners, v. ATOMIC ENERGY COMMISSION, Respondent, Metropolitan Edison Company et al., Intervenors.
    No. 73-1312.
    United States Court of Appeals, Third Circuit.
    Argued Oct. 26, 1973.
    Decided Dec. 11, 1973.
    As Amended Feb. 14, 1974.

      Lawrence Sager, Sager & Sager, Associates, Pottstown, Pa., for petitioners.
    Wallace H. Johnson, Asst. Atty. Gen., Raymond N. Zagone, Carl Strass, Attys., U. S. Dept, of Justice, Marcus A. Row-den, Gen. Coun., Jerome Nelson, Sol., Guy H. Cunningham, III, Atty., U. S. Atomic Energy Comm., Washington, D. C., for Atomic Energy Comm.
    George F. Trowbridge, Jay E. Silberg, Wm. Bradford Reynolds, Shaw, Pittman, Potts & Trowbridge, Washington, D. C., for Metropolitan Edison Co., Jersey Central Power and Light Co. and Pennsylvania Electric Co.
    Before McLAUGHLIN, GIBBONS and ROSENN, Circuit Judges.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

This case is before us on a petition, filed pursuant to 28 U.S.C. § 2342(4) and 42 U.S.C. § 2239, to review an order of the Atomic Energy Commission. The petitioners, Citizens For A Safe Environment and The Environmental Coalition on Nuclear Power, were permitted by the Atomic Energy Commission to intervene in a proceeding for the granting of a facility operating license for a nuclear electrical energy generating station filed by Metropolitan Edison Company, Jersey Central Power and Light Company and Pennsylvania Electric Company. Those applicants were granted intervention in this court, and have taken the same position as the respondent Commission. The Commission determined that the petitioners were, or had members who were, “person [s] whose interest may be affected by [the licensing] proceeding.” 42 U.S.C. § 2239. That determination is not before us. Petitioners filed with the Commission a pleading entitled “Financial and Technical Assistance,” which the Commission treated as a motion. In that pleading petitioners requested:

“5. Intervenors request financial assistance for legal fees, technical experts, and witnesses in the amount of $30,000.00 under such conditions and reasonable regulations established by the Commission to assure that the said monetary grant is properly and appropriately spent so as to insure full and complete hearings in the above captioned matter in the most expeditious way.”

This pleading did not allege that the petitioners were indigent. The Commission denied petitioners’ motion, stating:

Petitioners’ filing entitled “Financial and Technical Assistance”, whether considered as a mere request or as a formal motion, is hereby denied. The Commission has neither statutory nor regulatory authority which would authorize the grant of assistance which the petitioners seek.

It is so ORDERED.

From that order petitioners seek review.

All parties contend that the case is properly before us. The parties shared contention does not, however, relieve us of the obligation of making an independent determination of our jurisdiction. The starting point is the Administrative Orders Review Act, 28 U.S. C. § 2342, which provides:

The court of appeals has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of—

(4) all final orders of the Atomic Energy Commission made reviewable by section 2239 of title 42. Section 2239 of title 42 provides:

(a) In any proceeding for the granting ... of any license . . . the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceedings, and shall admit any such person as a party to such proceedings.

(b) Any final order entered in any proceeding of the kind specified in subsection (a) of this section shall be subject to judicial review in the manner prescribed in the Act of December 29, 1950, as amended, and to the provisions of section 10 of the Administrative Procedure Act, as amended.

The present equivalent of the Act of December 29, 1950, as amended, is the Administrative Orders Review Act, 28 U.S.C. §§ 2341-51. Thus if the order denying petitioners’ motion for $30,000 is a final order entered in a § 2239 licensing proceeding, it is reviewable here, and not elsewhere. If it is not such an order, it is not reviewable here in the first instance, but may be reviewable, pursuant to the Administrative Procedure Act and under some other jurisdictional statute, in a district court. See, e.g., Izaak Walton League of America v. Schlesinger, 337 F.Supp. 287 (D.D.C. 1971); Crowther v. Seaborg, 312 F.Supp. 1205 (D.Colo.1970). The jurisdictional question has two aspects: (1) is the order one entered in a proceeding of the kind specified in § 2239(a), and (2) assuming it is of that kind, is it final.

The parties rely on the decision of the Second Circuit in Greene County Planning Board v. Federal Power Commission, 455 F.2d 412, 425-427 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972). In that case the court concluded it had jurisdiction to review an order of the Federal Power Commission which refused to pay expenses and fees of intervening parties asserting interests similar to those of the petitioners before us. That case is not in point, however, because the statutory framework in which orders of the Federal Power Commission are reviewed is quite different. Section 313(b) of the Federal Power Act, 16 U.S.C. § 8251 (b) provides that “[a]ny party to a proceeding . . . aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the United States Court of Appeals . . . .” The jurisdictional grant to the court of appeals is not limited to final orders. Instead the finality requirement has been superimposed by the courts where the same issues could be reviewed upon final hearing. See, e.g., Federal Power Commission v. Metropolitan Edison Co., 304 U.S. 375, 383-385, 58 S.Ct. 963, 82 L.Ed. 1408 (1938). Thus the Second Circuit was acting within its statutory jurisdiction in holding the orders to be reviewable whether or not technically final. Here we must first cross the jurisdictional threshold for the Administrative Orders Review Act is jurisdictional. Port of Boston Marine Terminal Association v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 69, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970). P.B.W. Stock Exchange, Inc. v. Securities and Exchange Commission, 485 F.2d 718 (3d Cir. 1973) presents an analogous problem.

Proceedings under 42 U.S.C. § 2239(a) include both licensing, which the Commission regards as adjudicatory, and rulemaking. See Siegel v. Atomic Energy Commission, 130 U.S.App.D.C. 307, 400 F.2d 778, 785 (1968). This licensing proceeding is, then, an adjudication. Normally in an adjudication a final order is one that disposes of all issues as to all parties. See, e.g., Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911 (1945). Viewed in this light a final order in a licensing proceeding under § 2239(a) would be an order granting or denying a license. Taking this approach leads to the conclusion that the order for which review is sought does not fall within 42 U.S.C. § 2239(b), and hence is not within the jurisdiction conferred by 28 U.S.C. § 2342(4).

The practical difficulties of applying a strict finality test to an order denying an intervenor’s motion for financial assistance were observed by Judge Kaufman in Greene County Planning Board v. Federal Power Commission, supra:

Despite the Commission's argument that petitioners have made an inadequate showing of financial hardship, it is clear to us that a refusal to award petitioners expenses as they are incurred, particularly expenses related to the production of expert witnesses, may significantly hamper a petitioner’s efforts to represent the public interest before the Commission. And, a retroactive award of experts’ fees would be small consolation to a petitioner if the hearings are finished, the record is complete, and these experts were not called because of inadequate funds. 455 F.2d at 426.

But the practical difficulties cannot serve to enlarge the exclusive jurisdictional grant of 28 U.S.C. § 2342(4) or to contract whatever jurisdiction may exist in the district courts. Nor are we dealing with the considerably more flexible, standard of ripeness for pre-enforcement judicial review of agency action under § 10 of the Administrative Procedure Act. See, e.g., Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967); Gardner v. Toilet Goods Association, Inc., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967). In these cases the district court’s jurisdiction did not depend upon the type of order entered by the agency. The concern was the propriety of injunctive or declaratory relief at that stage, not finality. We have no doubt that the order denying petitioners’ motion for $30,000.00 was intended by the agency to be its final action upon that request, and that his final agency action had an immediate substantial impact upon petitioners. Putting these matters beyond doubt, however, does not resolve the doubt as to whether this court has jurisdiction under 28 U.S.C. § 2342(4).

The parties urge that Port of Boston Marine Terminal Association v. Rederi-aktiebolaget Transatlantic, swpra, construing another part of the Administrative Orders Review Act, suggests that we have jurisdiction. The court said:

[t]he relevant considerations in determining finality are whether the process of administrative decisionmaking has reached a stage where judicial review will not disrupt the orderly process of adjudication and whether rights and obligations have been determined or legal consequences will flow from the agency action. 400 U.S. at 71, 91 S.Ct. at 209.

But although we agree that judicial review at this time might not disrupt the orderly processes of adjudication, we cannot say that in the context of the licensing proceeding rights and obligations . have been determined or legal consequences will flow from the agency’s action. Although the ruling was intended as a final agency interpretation of the law on payment of intervenors expenses, the intervenors have been allowed to intervene and participate, they have not pleaded an inadequacy of financial resources to participate effectively, and their claim to be reimbursed for their expenses can be reviewed by this court on a petition to review the Commission’s action on the license application.

In Thermal Ecology Must Be Preserved v. Atomic Energy Commission, 139 U.S.App.D.C. 366, 433 F.2d 524 (1970), it was held that a Commission ruling precluding an intervenor in a licensing proceeding from offering evidence of thermal pollution was not final for purposes of 42 U.S.C. § 2239(b) and 28 U.S.C. § 2342(4). The court pointed out that the evidentiary ruling might be reversed before a final order was entered and would in any event be reviewable on a petition to review the grant of a license.

In City of Trenton v. Federal Communications Commission, 441 F.2d 1329 (3d Cir. 1971), we affirmed the action of a district court which had undertaken, despite the subsection of the Administrative Orders Review Act applicable to the Federal Communications Commission, to consider a challenge to the speed with which the Commission was conducting a proceeding. The challenge was rejected on a ripeness basis, although the plaintiffs contended the agency’s delay was causing irreparable injury. The court recognized the distinction between ripeness for judicial review under the Administrative Orders Review Act and finality of determination under the Administrative Orders Review Act, for it held that the district court and not this court properly considered the case in the first instance.

We conclude that what is reviewable under 42 U.S.C. § 2239(b) and 28 U.S.C. § 2342(4) in this court in a licensing proceeding at the behest of a party thereto is final action on the license. Collateral rulings of the Commission in the course of the proceedings must await review here until that final action is before us. We express no opinion as to whether judicial review of the Commission’s order might, in an action for injunctive, mandamus, or declaratory relief, be available in the district court. Nor do we express any opinion as to the reviewability here or in the district court of an order denying financial assistance to a party who by virtue of indigency is denied effective participation.

The petition for review is dismissed for want of jurisdiction.

      . Neither petitioners nor the other parties have suggested that we need consider any materials other than the pleading filed with the agency and the agency order. See 28 U.S.C. § 2347.

      . Lynchburg Gas Co. v. Federal Power Commission, 284 F.2d 756 (3d Cir. 1966), in which we held an order denying intervention to be nonfinal in the particular circumstances, is like Greene County Planning Board v. Federal Power Commission, supra, an application of a judge-made nonjurisdictional rule of finality. It does not control against the petitioners any more than Greene County controls in their . favor.

      . The Comptroller General has ruled, in the context of a regulatory structure in which intervention is not a matter of right, that the Federal Trade Commission has discretionary authority in some circumstances to use funds appropriated for “necessary expenses” to assure proper ease preparation by indigent inter-venors. Opinion of the Comptroller General B-139703 (July 24, 1972). The petition here contains only the following conclusory allegation :
      “In order to fully assure that a full and thorough review of all pertinent issues concerning the operation of a nuclear reactor generating facility while, at the same time, expediting the proceedings as much as possible, it is necessary that the public inter-venors be granted financial and technical assistance.”
      We do not consider this allegation as having presented an indigency issue to the Commission.


author: LIVELY, Circuit Judge.

text:
    Robert SIMS et al., Plaintiffs-Appellants, v. SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL UNION NO. 65 et al., Defendants-Appel-lees.
    Nos. 73-1264, 73-1265.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 11, 1973.
    Decided Dec. 19, 1973.

      Edward R. Stege, Jr., Cleveland, Ohio, for Robert Sims, and others; C. Lyonel Jones, Isabelle K. Pinzler, Cleveland, Ohio, Dennis R. Yeager, E. Richard Larson, Nathaniel R. Jones, New York City, on briefs.
    Robert T. Moore, Atty., Dept, of Justice, Washington, D. C., for the United States; J. Stanley Pottinger, Asst. Atty. Gen., Frederick M. Coleman, U. S. Atty., David L. Rose, Squire Padgett, James Angus, Francis Cronin, Attys., Dept, of Justice, Washington, D. C., on briefs.
    Edward J. Simerka, Arlene B. Steuer, Cleveland, Ohio, for defendants-appel-lees; David W. Byers, Schwartz, Ein-hart & Simerka, Cleveland, Ohio, on briefs, Cozza, Steuer & Stavole, Cleveland, Ohio, of counsel.
    Before CELEBREZZE, PECK and LIVELY, Circuit Judges.
   LIVELY, Circuit Judge.

This case is concerned with alleged racial discrimination in the sheet metal trades of the Greater Cleveland area. On January 28, 1971 the individual plaintiffs filed a class action for declaratory and injunctive relief and damages for deprivation of rights secured by the Thirteenth and Fourteenth Amendments and by 42 U.S.C. § 1981 and § 1983 and Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). The defendant Sheet Metal Workers International Association, Local Union No. 65 (hereafter Local 65) is the primary source of workers for union construction jobs in the sheet metal crafts in the Greater Cleveland area. The defendant Joint Sheet Metal Apprenticeship Committee (hereafter JAC) is a joint labor-management committee which supervises and controls apprenticeship programs on behalf of Local 65 and the two employer association defendants, with general responsibility for establishing apprenticeship standards. The defendants Sheet Metal and Air Conditioning Contractors National Association (hereafter SMACNA) and Cuyahoga County Sheet Metal Contractors Association (hereafter Cuyahoga Association) together control substantially • all sheet metal contracting work in the area and are signatories to a collective bargaining agreement with Local 65.

On November 11, 1971 the United States of America filed an action against the same defendants charging discriminatory practices in violation of Title VII of the Civil Rights Act of 1964 and interference with the provisions of Presidential Executive Order No. 11246. The two actions were consolidated for trial by an order entered March 9, 1972. There were two hearings before the district court sitting without a jury. The first hearing was on a motion by all of the plaintiffs for a preliminary injunction, and resulted in a denial of the motion. The court did enter an order requiring all parties to preserve the status quo until a final decision on the merits. The order which denied the motion for preliminary injunction also held that the individual plaintiffs could not recover under 42 U.S.C. § 1983 because the defendants were not public agencies or acting under state law.

Thereafter an extended hearing was held on the merits and concluded with an order of the district court filed on December 8, 1972. This order is reported at 353 F.Supp. 22-33. The published order contains a full statement of the facts and the issues before the district court and these details will not be repeated in this opinion. Two of the most significant findings made by the district court are:

Apparent from the record, prior to the summer of 1963, Local 65 and the JAC pursued a historical pattern of racial discrimination in membership admission policies. 353 F.Supp. at 24.

and

Although the record does not support findings of post-Act discrimination the continuing effect of past discriminatory practices in inescapable. 353 F.Supp. at 26.

Based on the findings quoted above and others set forth in the order, the court directed the immediate implementation of a program of affirmative action which is set forth in detail in the order. The individual plaintiffs as well as the government have appealed and the two appeals were heard together in this court. No cross-appeal was filed by any of the defendants. A number of issues are presented and will be treated separately.

The Finding of No Post-Act Discrimination

The finding of a historical pattern of racial discrimination in the membership admission policies of Local 65 and JAC prior to the effective date of the Civil Rights Act of 1964 is not questioned on appeal and is fully supported by the record. Likewise, the finding of continuing effect of the past discriminatory practices is unchallenged here. The admission policies have had a differential impact on minority employment opportunities. The plaintiffs maintain, however, that the standards for admission to Local 65 as a journeyman sheet metal worker adopted after a racial disturbance involving the Cleveland Mall construction project in 1963 and the standards adopted for admission to the apprenticeship program of JAC adopted in 1965 have failed to eliminate the discriminatory policies complained of. Central to this issue is the question of whether the testing procedures adopted by Local 65 and JAC effectively eliminated the discriminatory pattern of the past. A great deal of evidence was received from witnesses on each side who were qualified industrial psychologists. Although it was sharply disputed by testimony of an expert produced by the plaintiffs, the detailed testimony of Dr. John C. Denton, who testified for the defendants, supports the findings of the district court that both the journeyman entry examination of Local 65 and the series of tests used by JAC satisfy the requirements of § 703(h), 42 U.S.C. § 2000e-2(h) and the guidelines on employee selection procedures promulgated by EEOC, 29 CFR § 1607. The district court was justified in finding that the defendants had sustained the burden of proving the validity of both the journeyman’s test and the battery of five tests used in the apprenticeship program. The findings with respect to the facial fairness and validity of the various tests are findings of fact which are not clearly erroneous. Rule 52(a), Fed.R.Civ.P.

However, it is not enough that the tests be fair on their face and be validated as proper measurements of job-related skills. The Equal Employment Opportunity Act of 1964 is concerned with the consequences of employment practices and a test which is designed and intended as a neutral measure of job-related skills and knowledge may violate the Act if its actual use furthers racial discrimination. Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). At the time of the trial of this case, seven years after the effective date of the Civil Rights Act of 1964, Local 65 had approximately 1,000 journeymen members, thirty-five of whom were black. Since 1965 each black applicant for journeyman status in Local 65 has been required to take the journeyman test and none has passed. During this same period several white applicants have been admitted to full membership in Local 65 or allowed to work on permits in spite of having failed the test. No guidelines for grading the test were furnished to the examination committee and the passing grade requirement has not been constant. In addition, a less complicated “decking” test has been administered to at least one white applicant but no black applicant has been advised of the possibility of taking this test rather than the regular journeyman’s test. The “decking” .test is concerned with a specialized area of sheet metal work rather than the general duties of most journeymen. Nevertheless, once admitted to membership, a person who enters by way of the “decking” test has all rights and privileges of a journeyman. In some instances the examination committee has recommended that applicants be admitted to membership without a test upon a vote of the membership. In a union which was all white prior to 1963 as a result of discriminatory practices and whose examination committee remains all white and whose membership is more than 95 per cent white, continued discretion in the testing committee either to require or waive an examination is a means of perpetuating past discrimination. Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972). In Griggs v. Duke Power Co., supra, the Supreme Court held:

Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to “freeze” the status quo of prior discriminatory employment practices. 401 U.S. at 430, 91 S.Ct. at 853.

An examination of the record in this case compels the conclusion that Local 65 has established practices which employ tests that are fair in form, but discriminatory in effect because, as administered, they have failed to remove the vestiges of past discrimination. In accord with the pronouncement in Griggs, this court has held that the present use of a system or procedure which contains no discriminating features may violate Title VII of the 1964 Civil Rights Act if it serves to preserve longstanding past discrimination. Bailey v. American Tobacco Co., 462 F.2d 160 (6th Cir. 1972). The same conclusion was reached in a case decided prior to the decision in the Griggs case. United States v. I.B.E.W., Local No. 38, 428 F.2d 144 (6th Cir.), cert. denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970). We therefore hold that the district court erred in its finding that there was no post-Act discrimination in this case insofar as it relates to the journeyman admission requirements of Local 65. The “clearly erroneous” principle of Rule 52(a) does not apply since this finding resulted from an erroneous application of controlling legal principles. See Rowe v. General Motors Corp., supra, at 356 n. 15.

In contrast to the continued inability of apparently qualified black sheet metal workers to achieve full membership in Local 65, the record of the apprenticeship program conducted by JAC, at least in the four years immediately prior to the trial is impressive. While only two blacks had completed the four-year apprenticeship program at the time of trial and only 3.8 per cent of the fourth-year apprenticeship class was black, on the other hand, blacks comprised 34 per cent, 25 per cent and 16.6 per cent of the third, second, and first-year classes respectively. At that time more than 24 per cent of all indentured apprentices in sheet metal trades were black. This is clear evidence that the steps taken by JAC after the adoption of the Equal Employment Opportunity Act were effective and that the effects of the past discriminatory practices, insofar as the apprenticeship program is concerned, were being eliminated.

The Affirmative Action Program

This case is quite different from United States v. I.B.E.W., Local No. 38, supra, where the district court failed to order affirmative action even though it made a finding of past discrimination, the effects of which continued to the time of the trial, District Judge Krupan-sky formulated and put into effect a comprehensive affirmative action program and has retained continuing jurisdiction of the case for a period of three years from January 1, 1973. The affirmative action program deals with the functions of the JAC and provides detailed procedures which will publicize the availability of apprenticeship programs to minority members of the community and will guarantee a fair selection of minority members for indenture from among those who successfully complete the apprenticeship examination. The only feature of the JAC portion of. the affirmative action program which we find deficient is the restriction of the eligible pool of applicants to those between the ages of 17 and 26. There may be minority members of the Greater Cleveland community who would have qualified for indenture prior to elimination of the weighted oral interview as a basis of a decision for recommendation of candidates and who are now above the age of 26. This may be remedied by retaining the maximum age of 26 for entering the apprenticeship program provided Local 65 is required to waive its maximum age requirement for entering apprenticeship status for all minority group members who, since the effective date of the Act, passed the apprenticeship examination but were not taken into the program. Local 65 should be required to disclose the names of all such, persons to the court and be required to notify these individuals by registered or certified mail of ■ their qualification under this provision.

With respect to the journeyman examination, the district court’s affirmative action should eliminate future discrimination. In order to eliminate the continuing results of past discrimination, all black applicants who have taken and failed the examination prior to implementation of the affirmative action program must be given an opportunity to obtain membership in Local 65 either by successful completion of the journeyman test administered by the Board of Examiners or successful completion of the conditional journeyman program. Local 65 shall notify these persons of this opportunity for seeking membership by registered or certified mail after informing the district court of their ■names. In all other respects we conclude that the provisions in the affirmative action program relating to qualification and procedure for journeyman membership in Local 65 and the complaint procedure with regard to apprenticeship and journeyman status fully comply with our holding in United States v. Local Union No. 212, I.B.E.W., 472 F.2d 634, 636 (6th Cir. 1973) that,

When a court has determined that a violation of Title YII has occurred, it is vested with broad remedial power to remove the vestiges of past discrimination and to eliminate and prevent both present and future barriers “to the full enjoyment of equal job opportunities by qualified black workers.”

All plaintiffs have maintained that the program of affirmative action is deficient in that it fails to require Local 65 to join the Cleveland Equal Employment Plan (CEEP) which is an affirmative action program designed to recruit and train minority individuals for the construction industry. In view of the detailed provisions of the affirmative action program ordered by the district court, particularly the provision for the granting of a conditional rating and those provisions which look to publicity and recruitment from within minority groups, it was not error to fail to require Local 65 to join CEEP. If the affirmative action program proves to be insufficient, the district court may review its CEEP determination at a later date under its retained jurisdiction.

Other Remedies

Having found that post-Act discrimination did occur, we must deal with the demand of the complaint that back pay and attorney’s fees be awarded as provided by 42 U.S.C. § 2000e-5(g) and § 2000e-5(k). We have recently held that, “. . . the clear intent of Congress that the grant of authority under Title VII should be broadly read and applied mandate an award of back pay unless exceptional circumstances are present.” Head v. Timken Roller Bearing Co., 486 F.2d 870 (6th Cir. 1973). Since the district court found no post-Act discrimination, it did not deal with the issue of back pay or attorney’s fees. These are matters within the discretion of the trial judge who should make findings thereon in accordance with our holding in Head v. Timken Roller Bearing Co., supra, and the authorities cited therein. If it is concluded that back pay or attorney’s fees, or both, should be awarded, a determination will have to be made of whether either SMACNA or Cuyahoga Association is an employer within the meaning of the Act.

In view of the relief granted under Title VII it is not necessary to decide whether recovery could have been had under 42 U.S.C. § 1981.

The cause is remanded for the further steps set forth in this opinion, and in all other respects the judgment of the district court is affirmed.


text:
    UNITED STATES of America, Appellee, v. Ronald X. PLEASANT, Appellant.
    No. 73-1343.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 17, 1973.
    Decided Jan. 9, 1974.

      James L. Crabtree, Kansas City, Mo., for appellant.
    William Kitchen, Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before LAY and BRIGHT, Circuit Judges, and EISELE, District Judge.

       G. Thomas Eisele, District Judge, Eastern District of Arkansas, sitting by designation.

   PER CURIAM.

This case is on appeal from the United States District Court, Western District of Missouri. Defendant was convicted of violating Title 18 Appendix, United States Code, Section 1202(a)(1), which makes it a crime for a convicted felon to possess a firearm moving in or affecting interstate commerce. He appeals on two grounds: first, that the evidence produced at the trial was insufficient, as a matter of law, to show that the firearm was traveling in, or affecting, interstate commerce and, secondly, that the shotgun offered in evidence as the firearm illegally possessed should have been suppressed because it was obtained by an unlawful seizure.

As to the second ground, our opinion in United States v. Pleasant, 469 F.2d 1121 (8th Cir. 1972), disposes of the contention that the seizure was illegal and we will not reconsider that issue further here.

Briefly, the facts are these. Defendant drove in to a filling station in Carl Junction, Missouri. He negotiated for the purchase of two tires and offered a credit card in payment. James Broyles, the owner of the filling station, as was his routine practice in all sales for more than a nominal amount, called a credit card validation service to check the credit card offered. The service informed him that the card had been reported stolen and that he should pick it up. Mr. Broyles informed defendant of his conversation, but defendant refused to surrender the credit card. Broyles drove defendant to the nearest bus station, the Greyhound bus terminal in Joplin, approximately eight miles away. Among defendant’s belongings, Broyles saw a shotgun, with a sweater or jacket loosely wrapped around it. Pleasant purchased a ticket to Springfield, Missouri.

He then boarded a bus bound for Springfield. The bus left the Greyhound terminal and stopped next at the Joplin terminal of Continental Trailways Bus Company. There Joplin police investigating the use of the credit card, which had been reported to them by Broyles, removed defendant from the bus and seized his shotgun. Thereafter, he was charged with violating 18 U.S.C. App. § 1202(a)(1), and tried before a jury in the Western District of Missouri, Southwestern Division. He was convicted and sentenced and he appealed. We reversed his conviction on that appeal.

The basis for our reversal was that there was insufficient evidence that the seized shotgun was “in or affecting” interstate commerce as required by United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). In our opinion we suggested five sorts of proof which had not been offered and which might be used to prove the requisite interstate connection.

At retrial the government called witnesses to show three of the five factors suggested. Their testimony was not challenged. In brief, the testimony established the following facts: (1) the bus defendant boarded had originated in Springfield, Missouri, then proceeded to Tulsa, Oklahoma, and was returning to Springfield; (2) the bus was licensed in more than one state; (3) the bus had traveled between Springfield and Tulsa on Interstate Highway 44; and (4) both the Greyhound and Trailways bus terminals in Joplin served passengers and buses traveling from one state to another. Defendant was convicted and sentenced.

The only ground to be considered is whether there was sufficient evidence that the shotgun which defendant had with him when he was removed from the bus in Joplin was “in or affecting” interstate commerce. Defendant first argues that since the shotgun was shown to be moving only within Missouri — from Carl Junction to Joplin to Springfield — it was not sufficiently shown to be traveling in or affecting interstate commerce. We believe this argument rests on an erroneous reading of the Bass case. The Court did not make proof of movement from one state to another the sole method of showing the requisite interstate nexus. It said:

* * * we add a final word about the nexus with interstate commerce that must be shown in individual cases. The Government can obviously meet its burden in a variety of ways. * * * For example, a person “possesses * * * in commerce or affecting commerce” if at the time of the offense the gun was moving interstate or on an interstate facility, or if the possession affects commerce. [404 U.S. at 350, 92 S.Ct. at 524 (our emphasis)].

We believe that the evidence that the bus traveled an interstate route and that the terminals used by the bus served passengers and buses traveling in interstate commerce was sufficient as a basis for the jury to conclude that the bus was an interstate facility. We further believe that the testimony of Mr. Broyles, who drove defendant to the bus station, the bus driver, and the arresting officer that the firearm was visible to them and clearly recognizable as a gun provides sufficient basis for the jury to conclude that the possession of that firearm by the defendant affected the interstate facility.

At oral argument, defendant’s counsel raised another challenge to his client’s conviction: that the proof that the firearm was “in or affecting” interstate commerce was not sufficient to sustain a finding of guilt under the charge given by Judge Hunter, even if it was sufficient under United States v. Bass.

We have examined the instructions, particularly those which define the terms “in or affecting commerce.” While Judge Hunter’s instructions on this issue may have imposed or suggested a higher burden of proof on the Government than the law requires, this obviously benefited appellant. And it is clear that the evidence was sufficient to sustain a conviction even under the charge as given.

Affirmed.


author: PER CURIAM:

text:
    HOLIDAY QUEEN LAND CORPORATION, Plaintiff-Appellant, v. Barton BAKER et al., Defendants, Insurance Company of North America, Defendant-Appellee.
    No. 73-1119.
    United States Court of Appeals, Fifth Circuit.
    Feb. 25, 1974.
    Charles R. Stack, Miami, Fla., for plaintiff-appellant.
    Charles F. Mills, Miami, Fla., John Carruthers, II, Coral Gables, Fla., for Ins. Co. of North America.
    Hugh S. Glickstein, Hollywood, Fla., for King.
    Leroy N. Friedman, Philadelphia, Pa., for other defendants.
    Before WISDOM, AINSWORTH and GEE, Circuit Judges.
   PER CURIAM:

Holiday Queen seeks review of the district court’s refusal to dismiss without prejudice, under Rule 41(a)(2), F. R.Civ.P., Holiday Queen’s action against Insurance Company of North America (INA). Holiday Queen sought voluntary dismissal of, IN A because of Holiday Queen’s inability to present evidence of its claim against INA on the date set for trial. As a result the district court entered judgment in favor of INA and dismissed Holiday Queen’s action with prejudice. We reverse.

INA was one of numerous defendants in a conspiracy and fraud case brought by Holiday Queen. Although the original complaint was filed July 12, 1971, it was not until July 11, 1972, after substantial discovery and joinder of various other defendants, that Holiday Queen joined INA as a defendant. INA answered on September 14, 1972. The court held pretrial conference on November 3, 1972 and denied a motion for continuance submitted by Holiday Queen and three defendants (not including INA). At the conference the court ruled that the deposition in which Holiday Queen discovered the facts underlying its claim against INA would be inadmissible against INA. In addition, the court refused to reopen discovery for purposes of retaking the deposition, with notice to INA. The court also notified the parties that the trial would commence in ten days, on November 13.

At a hearing on November 8, Holiday Queen renewed its motions for continuance and for voluntary dismissal of INA. Over Holiday Queen’s insistence that it could not properly proceed to trial and that no prejudice would befall INA should the dismissal be granted, the district court again denied the motions. On the date of trial the court, upon Holiday Queen’s failure to present evidence, entered its judgment.

As we noted in Durham v. Florida East Coast Ry. Co., 385 F.2d 366 (5th Cir. 1967), a court exercising its discretion in considering voluntary dismissal must:

follow the traditional principle that dismissal should be allowed unless the . defendant will suffer some plain prejudice other than the mere prospect of a second lawsuit. It is no bar to dismissal that plaintiff may obtain some tactical advantage thereby.

385 F.2d at 368 (quoting 2 Barron & Holtzoff Federal Practice and Procedure § 912, Wright’s ed. and adding emphasis).

INA came late to the case and suffered a minimum of expense. Had the court granted a voluntary dismissal, INA faced only the annoyance of a second litigation upon the same subject matter. Despite INA’s insistence that a second suit would be only a perpetuation of the frivolous and spurious, we conclude that INA would not have lost any substantial right by the dismissal.

Accordingly we reverse the judgment against Holiday Queen and remand with instructions that the Holiday Queen’s case be reinstated. On proper motion, the complaint against INA may be dismissed without prejudice upon such terms and conditions as the court deems proper.

Reversed and remanded with instructions.

      . Rule 41(a).
      (2) By order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.


author: LEWIS R. MORGAN, Circuit Judge:

text:
    INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS, LOCAL 66, AFL-CIO, Plaintiff-Appellee, v. LEONA LEE CORP., Insulation & Specialties, Inc., and Jack Tillery, Defendants-Appellants.
    No. 73-1784.
    United States Court of Appeals, Fifth Circuit.
    Feb. 22, 1974.
    Rehearing Denied March 26,1974.

      J. F. Hulse, Stephen B. Tatem, Jr., El Paso, Tex., for defendants-appellants.
    Tom Upchurch, Steve F. Scott, Jr., Amarillo, Tex., Jack N. Price, Longview, Tex., Buddy Wright, Fort Worth, Tex., for plaintiff-appellee.
    Before RIVES, WISDOM and MORGAN, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

In November of 1970, this court affirmed an order of the United States District Court for the Western District of Texas ordering arbitration between the Leona Lee Corporation and the International Association of Heat and Frost Insulators and Asbestos Workers, Local 66, AFL-CIO. Arbitration took place. The union sought and was granted enforcement of the arbitrator’s award by the district court. The Leona Lee Corporation now appeals that enforcement order. We affirm the well-reasoned decision of the lower court.

The factual background leading up to the arbitration order is clearly set out in our prior opinion and need not be fully repeated here. On January 20, 1970, the matter was submitted to the Trade Board in Amarillo, Texas, pursuant to the district court order. The Trade Board deadlocked; therefore, an arbitrator was appointed by the parties in accordance with the district court’s order. Arbitration hearings began on January 12, 1972; 1,300 pages of testimony were taken, numerous exhibits of varying lengths were presented, and both sides filed two sets of briefs. Nineteen months later, the arbitrator rendered his decision in favor of the union. The district court wrote a knowledgeable 25 page memorandum opinion enforcing the arbitrator’s decision. The corporation appeals, alleging six specific errors by the court below.

In a suit to enforce an arbitration award, the court’s role is very narrow. It cannot review the merits of the award, even in deciding the question of arbitrability, nor can the court attempt to interpret the collective bargaining agreement. United States Steel Workers of America v. Enterprise Wheel and Car Corporation, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). Insofar as the arbitrator’s decision concerns interpretation of the collective bargaining agreement, the courts cannot overrule the arbitrator because their interpretation of the agreement is different or because they disagree with the arbitrator's fact findings. International Brotherhood of Pulp, Sulphite & Papermill Workers v. St. Regis Paper Company (5 Cir. 1966), 362 F.2d 711.

This court has carefully reviewed all of Leona Lee’s contentions of error and finds none of those six contentions to have merit. The decision of the district court is hereby

Affirmed.

      . See 434 F.2d 192 (5 Cir. 1970).

      . The appellant-employer, Leona Lee, entered a labor contract with the appellee-union, International Association of Heat & Frost Insulators and Asbestos Workers, Local 66. Local 66 later filed suit for breach of contract, alleging payscale discrepancies. The suit was settled and the parties entered into an' agreement on March 15, 1966. That agreement provided that Leona Lee, a nonunion contractor, would transfer all of its as-sests to I & S, a union contractor, who would then sign a collective bargaining agreement with a different local of the Asbestos Workers Union. The transfer of assets took place and a collective bargaining agreement was signed. I & S then transferred all of its assets to other newly formed nonunion companies and went out of business. Local 66 filed suit in 1967, contending that Leona Lee violated the settlement agreement by transferring its assets to I & S, who then went out of business. The district court determined that the matter should be submitted to the Trade Board and if not resolved there, to an arbitrator. Leona Lee appealed this decision, and the Fifth Circuit affirmed the district court. The Trade Board deadlocked. The arbitrator then awarded damages of approximately $45,000 to the union. The district court upheld this award. Leona Lee then appealed to the Fifth Circuit.


author: PER CURIAM: BY THE COURT:

text:
    Earl VAN BLARICOM, Petitioner-Appellant, v. Donald FORSCHT, as United States Marshal, Respondent-Appellee.
    No. 72-1374.
    United States Court of Appeals, Fifth Circuit.
    Dec. 14, 1973.
    As Amended Jan. 15, 1974.
    Rehearing En Banc Granted Feb. 20, 1974.
    J. V. Eskenazi, Federal Public Defender, Theodore J. Sakowitz, Asst. Federal Public Defender, Miami, Fla., for petitioner-appellant.
    Robert W. Rust, U. S. Atty., Carol M. Anderson, Asst. U. S. Atty., Miami, Fla., for respondent-appellee.
    Before RIVES, WISDOM and RO-NEY, Circuit Judges.
   ON PETITION FOR REHEARING

PER CURIAM:

Our original holding was contained in Part I, “Statutory Requirements,” and was that the procedure employed in revoking appellant’s parole was improper because only two out of three members of the eight-man Board voted for revocation of his parole, while the statutory mandate, 18 U.S.C. § 4207, and the implementing regulation, 28 C.F.R. § 2.40, call for revocation by the “Board.”

Under Part II, “Constitutional Requirements,” we engaged in “a brief discussion of the minimum requirements of due process * * * appropriate for the guidance of the district court and possibly of the Board in such further proceedings as may ensue upon remand.” We adhere to our holding under Part I, “Statutory Requirements” and briefly answer the appellees’ attacks upon that holding.

(1) Appellees argue that 28 C. F.R. § 2.22 which provides for a quorum of two members of the Parole Board in hearings on granting parole, coupled with the succeeding section, § 2.23, contains language broad enough to apply to revocation hearings. We think section 2.22 applies to hearings on granting parole and not to hearings on revoking parole. While section 2.23 does refer to revocation hearings, it merely sets out a procedure for interested persons to petition before the Hearing Board and does not attempt to designate a two-member quorum. Section 2.40 is clearly the section applicable to parole revocations. That section does not seek to provide that a quorum of the eight-member Board shall be anything less than a majority of that Board. We need not, therefore, discuss the validity vel non of an attempt to provide for a two-member quorum for revocation of parole, for the directives of the Board itself make no such attempt.

On original hearing, we held that the Board’s Directive No. 6, 28 C.F.R. § 2.-40, and the Board’s procedural practice pleaded in this case, quoted in footnote 4 to our original opinion, “relieve us of the necessity of deciding whether or not this Circuit should render a decision contrary to the holding of the Tenth Circuit in Earnest v. Moseley, supra [10 Cir., 1970, 426 F.2d 466, at 469].” Moseley was decided April 14, 1970, rehearing denied May 19, 1970. The present edition of C.F.R. would seem to indicate that on October 1, 1970, the Board issued its Directive No. 6, now appearing at 28 C.F.R. § 2.40. The appellees insist that the substance of section 2.40 existed in similar form years prior to the decision in Moseley and that October 1, 1970, was merely the date of an irrelevant amendment to that section. If that much be granted, we do not think that it affects the validity of our holding. Section 2.40 in its present form was expressly published by the Board as effective on and after October 1, 1970, several months after the decision in Moseley.

We find no sufficient reason to depart from our holding that the procedure employed in revoking appellant’s parole did not conform with the then applicable administrative procedure of the Board itself.

We now withdraw that part of our original opinion appearing under Part II, “Constitutional Requirements,” as unnecessary to this decision, except to say that the minimum standards of constitutional due process imposed on the Federal Board of Parole certainly are no less than those imposed on the State Boards of Parole. See Bolling v. Sharpe, 1954, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884. The requirements of due process imposed on state boards by Morrissey (Morrissey v. Brewer, 1972, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed. 2d 484) are made “applicable to future revocations of parole” (408 U.S. at 490, 92 S.Ct. at 2604). Since we have vacated the attempted revocation of appellant’s parole, the minimum requirements of due process applicable to any future revocation hearing would be no less than those prescribed in Morrissey (408 U.S. at 489, 92 S.Ct. 2593). The present case does not involve any question as to the retroactivity vel non of the Supreme Court’s holding in Morrissey. Our further discussion of “Constitutional Requirements” in the original opinion was not appropriate for the guidance either of the district court or of the Board and is, therefore, withdrawn.

The petition for rehearing is denied.

ON PETITION FOR REHEARING EN BANC ¡

Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORN-BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RON-EY, and GEE, Circuit Judges.

BY THE COURT:

A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc.

It is ordered that the cause shall be reheard by the Court en banc on briefs without oral argument.

      . February 21, 1973 was the date of the original decision of this appeal. On March 31, 1973 the respondents (appellees) filed a brief in which, for the first time, they sought to place reliance upon portions of a publication styled “Rules of the United States Board of Parole, effective January 1, 1971.” We are not advised as to whether or where those “rules” have been published in the Federal Register as required by 5 U.S.C. § 552 and 44 U.S.C. § 1507. Suffice it to say that the belatedly cited “rules” have not convinced us of any error in our original holding.
      We adhere to our decision to base that holding on a narrow ground in deference to the holding of the Tenth Circuit in Earnest v. Moseley, 1970, 426 F.2d 466, 469. Nonetheless the doubt which we expressed as to the validity of that holding has been strengthened by the following considerations. Discretion is vested in the eight member Board of Parole (18 U.S.C. § 4201) to revoke an order of parole, terminate the parole, modify its terms and conditions, and require the prisoner to serve all or any part of the remainder of the term for which he was sentenced. (18 U.S.C. § 4207). Federal Trade Commission v. Flotill Products, Inc., 1967, 389 U.S. 179, 183, 184, 88 S.Ct. 401, 19 L.Ed.2d 398, held that absent a contrary statutory provision, the common law rule applies to the ascertainment of the number of members required to act for a collective body. The common law rule, according to that case, is that it requires a majority of a quorum which constitutes a majority of the collective body to act for the body. Under that decision, it would seem that five members would constitute a quorum of the eight member Board and that the discretion vested in the Board could, in no event, be exercised by less than three members constituting a majority of that quorum.


text:
    Roman Columbus BROWN, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1785.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 14, 1973.
    Decided Jan. 15, 1974.
    Roman Columbus Brown, pro se.
    Donald J. Stohr, U. S. Atty., and Richard E. Coughlin, Asst. U. S. Atty., St. Louis, Mo., filed brief for appellee.

      Before BRIGHT and STEPHENSON, Circuit Judges, and STUART, District Judge.

       W. C. Stuart, District Judge, Southern District of Iowa, sitting by designation.

   PER CURIAM.

Appellant Brown appeals from a decision by the United States District Court for the Eastern District of Missouri denying his petition for a correction of his federal sentence.

On May 5, 1972, appellant was arrested by the St. Louis, Missouri, police on a charge of armed robbery. On May 8, 1972, a federal detainer was lodged against appellant for parole violation. On June 15, 1972, the state charge was dismissed and appellant was subsequently returned to federal custody. During the period from May 5 to June 15, appellant was in continuous state custody, unable to secure his release on bail. Appellant seeks to have the time spent in state custody credited against his federal sentence on the theory that the federal detainer was the cause of his inability to make bail.

Title 18, United States Code, § 3568, provides in part:

The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. (Emphasis added.)

Focusing on the “in connection with” language of this section, the Court of Appeals for the Fifth Circuit, in Davis v. Attorney General (5th Cir., 1970), 425 F.2d 238, 240, held that a prisoner denied release on bail by state authorities because of an outstanding federal detainer lodged against him is in custody in connection with a federal offense and entitled to credit against his federal sentence for the time spent in state custody. This court has recognized the authority of Davis. See Shields v. Dagget (8th Cir., 1972), 460 F.2d 1060, 1061.

The court is of the opinion that appellant’s case is within the rule set forth in Davis. Appellant is entitled to relief.

Accordingly, the decision below is reversed, and the case is remanded for entry of an order granting appellant the credit to which he is entitled against his federal sentence.

Judgment reversed and remanded with directions.

      . Since appellant received no credit for the time spent in state custody against any state sentence, there is here no problem of double credit for the time spent in state custody. This case is thus distinguishable from the facts in Shields and in Doss v. United States (8th Cir., 1971), 449 F.2d 1274.

      . Although appellant only seeks to have his federal sentence shortened by five days, it appears from the record that he is entitled to credit for the entire period from May 8, the day the detainer was lodged against him, to June 15, the day he was released from state custody.


text:
    Matthew HUGHRY, Plaintiff-Appellant, v. The ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellee.
    No. 73-3259
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 25, 1974.
    Rehearing Denied March 25,1974.

      Roland C. Lewis, Stephen L. Beach, Jackson, Miss., for plaintiff-appellant.
    Jerome B. Steen, William M. Dalehite, Jr., Jackson, Miss., for defendant-appel-lee.
    Before BELL, SIMPSON and MORGAN, 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:

Plaintiff recovered damages from defendant railroad company arising out of his having been injured by a train in a switching yard. Being dissatisfied with the amount of the award, he claims error in' two particulars and seeks a new trial.

As to the first claim of error, it is not altogether clear that the court instructed the jury that plaintiff was a trespasser in that the instructions to this effect were immediately followed by another instruction that left the issue to the jury. Even assuming the jury was instructed that plaintiff was a trespasser, we find no error. The evidence was “strongly and overwhelmingly” that plaintiff was a trespasser and there was no conflict in the substantial evidence to create a jury question on the trespasser issue. Boeing Co. v. Shipman, 5 Cir., 1969, 411 F.2d 365, 374. On the trespasser question as presented, see Dickerson v. Illinois Central Railroad Company, 1962, 244 Miss. 733, 145 So.2d 913; Murray v. Louisville & Nashville R. Co., 1934, 168 Miss. 513, 151 So. 913.

The real contention is that the damages awarded were inadequate as a result of being reduced by the jury, pursuant to a comparative negligence in-, struction. Plaintiff did not except to the instruction, and there was an evidentiary basis for applying the doctrine with a resultant reduction in damages.

Affirmed.


author: PER CURIAM;

text:
    In the Matter of Data Industries Corporation of Texas, Debtor. DATA INDUSTRIES CORPORATION OF TEXAS, Appellant, v. INTERNAL REVENUE SERVICE, Appellee.
    No. 73-2489.
    United States Court of Appeals, Fifth Circuit.
    Feb. 25, 1974.

      G. Ernest Caldwell, Alvin L. Freeman, Houston, Tex., for appellant.
    Mary L. Sinderson, James R. Gough, Anthony J. P. Farris, U. S. Attys., Houston, Tex., Robert E. Noel, Trial Atty., Scott P. Crampton, Meyer Roth-wacks, Asst. Attys. Gen., Richard Far-ber, Atty., Tax Div., Dept, of Justice, Washington, D. C., for appellee.
    Before BELL, THORNBERRY and DYER, Circuit Judges.
   PER CURIAM;

This is an appeal from the District Court’s order denying a petition for review of the bankruptcy referee’s allowance of tax claims filed by the Internal Revenue Service against Data Industries Corporation. These tax claims arose from the disallowance by IRS of certain bad debt deductions taken by the debt- or-corporation or its subsidiaries prior to the filing of a petition for arrangement pursuant to 11 U.S.C.A. § 722.

Data Industries makes two contentions in its effort to overturn the District Court’s order. First, Data contends that, notwithstanding the prima facie correctness of a claim filed in bankruptcy proceedings, the presumptive correctness arising from the underlying tax assessment cannot be invoked unless the Government produces additional evidence such as a copy of the assessment certificate. This contention simply has no merit, particularly since all pertinent information relating to the IRS assessment was contained in the proofs of claim filed by the Government in the bankruptcy proceedings. Second, Data argues that conflicts in the testimony offered by the IRS were such that the assessment is rendered arbitrary and capricious. A review of the record convinces us that the evidence adduced fully sufficed to sustain the Government’s position.

The judgment of the District Court is

Affirmed.


text:
    Dolphus Jack BROWN, Plaintiff-Appellant, v. Clarence JONES, Sheriff of Dallas County, Texas, Defendant-Appellee.
    No. 73-3256
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 22, 1974.
    Joseph A. Calamia, John L. Fashing, El Paso, Tex., George E. Gilkerson, Travis D. Shelton, Lubbock, Tex., Phil Burleson, Dallas, Tex., for plaintiff-appellant.
    John L. Hill, Atty. Gen., Austin, Tex., Larry York, First Asst. Atty. Gen., Joe B. Dibrell, W. Barton Boling, Asst. At-tys. Gen., El Paso, Tex., for defendant-appellee.
    Before GEWIN, GODBOLD and CLARK, 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 District Court denied a writ of habeas to a Texas state prisoner on the sole basis of the opinion of the Texas Court of Criminal Appeals rendered on petitioner’s direct appeal from his conviction. The habeas judge did not have before him the record of the proceedings in the Court of Criminal Appeals or the trial transcript.

      . The order denying the petition states that the court has “examined the proceedings before the Court of Criminal Appeals,” that the opinion of that court correctly sets forth the law on the matters involved, and that it “finds from this record that none of Petitioner’s constitutional rights have been violated.” After the entry of this order petitioner filed a request with the District Court stating that the decision had been rendered based on the opinion of the Court of Criminal Appeals and asking leave to file as exhibits to be available to the Fifth Circuit Court of Appeals the “Record on Appeal in the Court of Criminal Appeals” which, the motion stated, had not been before the habeas judge. The habeas judge granted that motion but included in his order a statement that he did not consider the said Record necessary to dispose of the case'. From this course of events we dedpce that the denial was based solely upon the opinion of the Court of Criminal Appeals and without examination of the Record.