text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert F. DEVITT, Defendant-Appellant.
    No. 73-1691.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 6, 1973.
    Decided July 2, 1974.

      Julius Lucius Echeles, Chicago, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., Dan K. Webb, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee.
    Before HASTINGS and KILEY, Senior Circuit Judges, and CAMPBELL, Senior District Judge.

       Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.

   WILLIAM J. CAMPBELL, Senior District Judge.

Defendant Robert F. Devitt, a Chicago police officer, was indicted in a one count indictment for having made false statements before a grand jury in violation of 18 U.S.C, § 1623. Upon the jury’s verdict of guilty, defendant was sentenced to three years’ imprisonment.

The indictment charged that the defendant :

“did knowingly declare in substance before said Grand Jury with respect to the aforesaid material matters that he did not recall, remember, or have any knowledge, while in the performance of his duties as a Chicago police officer of ever accepting money from any person; that he did not recall, remember, or have any knowledge while in the performance of his duties as a Chicago police officer, of ever having accepted any money from any owner, operator, employee or agent of any tavern or business.”

18 U.S.C. § 1623 provides, in pertinent part:

“(a) Whoever under oath in any proceeding before [a] ... grand jury . . . knowingly makes any false material declaration . . ., shall be fined not more than $10,000.-00 or imprisoned not more than five years, or both.
# * *
(e) Proof beyond a reasonable doubt under this section is sufficient for conviction. It shall not be necessary that such proof be made by any particular number of witnesses or by documentary or other type of evidence.

At trial, the government presented testimony of four witnesses, each of whom operated a tavern in Chicago, Illinois, and each of whom testified to having paid money to defendant while Devitt was in the performance of his duties as a Chicago police officer. Defendant testified in his own behalf and denied receiving any such payments.

Defendant’s first contention on appeal is that the indictment did not sufficiently allege, and the evidence was insufficient to prove, that, at the time he appeared before the grand jury, defendant was under oath administered by one authorized by law to administer oaths. The indictment in the instant case charged that defendant knowingly made a false material declaration “while under oath as a witness before the Special February 1971 Grand Jury of the United States of America, duly empaneled and sworn in the United States District Court for the Northern District of Illinois . . . ”. The indictment clearly alleged that defendant was under oath at the time he made the alleged false material declarations. The fact that the indictment does not allege that the oath was “administered by one authorized by law to administer oaths” is of no consequence. 18 U.S.C. § 1623 contains no such requirement.

Regarding the sufficiency of the evidence, the Justice Department attorney present during the grand jury proceedings testified at trial that Devitt was administered the oath by the foreman of the grand jury on February 23, 1972. The transcript of Devitt’s testimony was subsequently introduced into evidence. We find no merit to defendant’s contention that this evidence was insufficient to prove that he testified under oath.

INSTRUCTIONS

We also reject defendant’s assertion that the trial court invaded the province of the jury in failing to instruct the jury that the defendant must be found to have been under oath administered by one competent to administer oaths. As previously noted, 18 U.S.C. § 1623 requires neither that the indictment allege nor that the government prove that the accused took an oath “administered by one authorized by law to administer oaths”. Moreover, defendant neither objected to the instructions relating to the administration of the oath nor tendered to the district court proposed instructions reflecting the position now advanced on appeal.

Defendant also argues that Instruction 29 was erroneous because it did not require that Devitt be found to have accepted money from any one or more of the tavern owners named in the indictment “in the performance of his duties as a Chicago police officer”, as alleged in the indictment. The _ instructions, in their entirety, repeatedly advised the jury that defendant must be found to have accepted money “in the performance of his duties as a Chicago police officer”, and viewed in their entirety, we- find the instructions to the jury more than adequate. United States v. Esquer, 459 F.2d 431, 435 (7th Cir. 1972).

MATERIALITY

To sustain a conviction under 18 U.S.C. § 1623, the defendant’s false declarations must be “material”. Conceding that the issue of materiality under 18 U.S.C. § 1623 is a question of law to be determined by the court, United States v. Wesson, 478 F.2d 1180, 1181 (7th Cir. 1973); United States v. Rivera, 448 F.2d 757 (7th Cir. 1971); United States v. Parker, 447 F.2d 826, 830 (7th Cir. 1971), defendant contends that his allegedly false declarations were not material, as a matter of law, for two reasons:

(1) The grand jury’s inquiry pertained to “purely local conduct”, and was therefore not a proper subject for investigation under the Hobbs Act, 18 U.S.C. § 1951.
(2) The grand jury’s examination of the defendant “was not pursuant to any legitimate grand jury function” because the grand jury had already amassed information from independent sources sufficient to seek an indictment against defendant without summoning him.

Contending that the grand jury’s investigation “involved nothing more than alleged ‘pay-offs’ by tavern owners to policemen” and that the “Hobbs Act, 18 U.S.C. Sec. 1951 cannot properly be applied to such purely local activities”, defendant argues that the questions asked of him during that investigation were not “material”. The underlying proposition advanced by defendant — that the conduct under investigation was not properly subject to federal criminal jurisdiction — has previously been rejected by this court in United States v. DeMet, 486 F.2d 816 (7th Cir. 1973). There, confronted with the same arguments now advanced by Devitt, the court held that “Section 1951 clearly contemplates a full application of the commerce power. It proscribes extortion which ‘in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce . . 486 F.2d at 821.

The DeMet court found that commerce had been affected by the same kind of extortionate activities which were under investigation by the grand jury in the instant case. Moreover, the victims of extortion in DeMet were, as here, retail liquor establishments. Judge Fairchild, speaking for the court, rejected the argument that commerce had not been affected, holding that:

“Where the victim of extortion, as here, customarily obtains inventory which has come from outside the state, obstruction and delay of, and effect upon commerce may, for the purpose of the Hobbs Act, be found in curtailment of the victim’s potential as a buyer of such goods. This may be traced either through the depletion of his assets by his fulfillment of the extortionate demands or the harm which would follow if the threats were carried out.” 486 F.2d at 822.

Since the grand jury’s investigation concerned conduct which might properly be made the subject of federal criminal prosecution, defendant’s false testimony concerning such activities was not immaterial.

Defendant’s second contention respecting materiality is that the allegedly false testimony did not influence, impede or dissuade the grand jury in connection with its investigation. Defendant argues that the questions directed to him did not concern “official corruption” generally, but rather were limited solely to his conduct while in the performance of his duties as a Chicago police officer. Since the grand jury had previously heard testimony from the four tavern owners who ultimately testified against defendant during his trial, defendant maintains that no further “fruitful investigation” would have resulted from truthful responses to the questions asked of him by the grand jury.

False testimony before the grand jury is material if it “has the natural effect or tendency to impede, influence or dissuade the grand jury from pursuing its investigation. United States v. Stone, 429 F.2d 138, 140 (2nd Cir., 1970), and • cases cited therein. Moreover, if the false statement “potentially interferes with the grand jury’s line of inquiry, materiality is thereby established even though the perjured testimony does not actually impede the investigations.” United States v. Wesson, 478 F.2d 1180, 1181 (7th Cir., 1973). See also, Vitello v. United States, 425 F.2d 416, 424 (9th Cir. 1970); United States v. Henderson, 185 F.2d 189, 191 (7th Cir. 1950).

In the instant case, the grand jury was engaged in an investigation of possible extortionate conduct by certain Chicago Police Department personnel in violation of the Hobbs Act. Defendant’s false declarations potentially interfered with and impeded that investigation insofar as defendant’s false answers rendered further inquiry on the subject a meaningless exercise. Had defendant answered honestly, the grand jury would have been advised that he had, in fact, accepted money from tavern owners while in the performance of his duties as a Chicago police officer. The grand jury would then have been in a position to determine the identity of other extortion victims, if any, who had not previously been identified. Potentially, honest responses to the questions asked of defendant might have led to a determination of the identity of other police officers, if any, engaged in similar practices.

In short, the fact that the questions which defendant failed to answer truthfully related only to his conduct as a Chicago police officer is not dispositive. Truthful answers to those questions might well have served as the foundation for a more “fruitful investigation” into the broader subject matter of the grand jury’s inquiry. Accordingly, we find that the district judge correctly determined the materiality of Devitt’s allegedly false statements.

EQUAL PROTECTION

Defendant next claims that he was denied equal protection of the law because he was indicted and convicted under 18 U.S.C. § 1623 (proscribing false material declarations before a grand jury or a court) rather than 18 U.S.C. § 1621 (perjury). Defendant argues that § 1621 has been construed to require that the falsity of each allegedly perjurious statement be proven either by the testimony of two witnesses or by the testimony of a witness, corroborated by other evidence. United States v. Rivera, 448 F.2d 757 (7th Cir. 1971).

§ 1623 specifically provides that the “two-witness rule” is not applicable to prosecutions thereunder:

“It shall not be necessary that such proof be made by any particular num-. ber of witnesses or by documentary or other type of evidence.” 18 U.S.C. § 1623(e).

Defendant cites no case in support of the novel proposition that where conduct is proscribed by two or more separate criminal statutes, the government must elect to prosecute under the statute imposing the greatest burden of proof. As did the court in United States v. Ruggiero, 472 F.2d 599, 606 (2d Cir. 1973), we find defendant’s contention in this regard entirely without merit. If anything, the government would be expected to proceed under § 1623 rather than § 1621, on the ground that a statute aimed at specific conduct prevails over an otherwise applicable general statute. See, United States v. Kahn, 472 F.2d 272 (2d Cir. 1973).

BAD FAITH

Defendant argues that he was questioned by the grand jury regarding matters as to which the statute of limitations pertaining to substantive criminal prosecution had expired. Conceding that the grand jury may seek information which predates the applicable limitation period, United States v. Cohn, 452 F.2d 881, 883 (2d Cir., 1971), defendant nonetheless contends that, in the instant case, inquiry along these lines constituted bad faith conduct by the grand jury, since the information sought had already been obtained from sources other than the defendant. Defendant concludes that the sole purpose of calling him before the grand jury was “to try to get him to perjure himself” and that since the grand jury was not attempting to seek useful information in connection with its investigation, “it was not functioning as a competent entity.”

We need not reiterate what has been said regarding the materiality of defendant’s testimony. Suffice it to say that because truthful answers potentially could have led to a more fruitful investigation, the grand jury’s inquiry cannot be viewed merely as a device to “get him to perjure himself”. As the court stated in United States v. Cohn, supra, the scope of the grand jury’s inquiry “is' not limited to events which themselves may result in criminal prosecution, but is properly concerned with any evidence which may afford valuable leads for investigation of suspected criminal activity during the limitations period.” 452 F.2d 881, 883. See also, United States v. Wesson, 478 F.2d 1180, 1181 (7th Cir. 1973).

The record in the instant case does not support defendant’s assertion that the grand jury was not attempting to obtain useful information in furtherance of its investigation. Consequently, we find no basis for the speculative conclusion that the grand jury was acting in bad faith.

SUFFICIENCY OF THE EVIDENCE

Devitt’s allegedly false statements consisted of declarations that he had no knowledge of, or could not recall, any instance in which he had accepted money from any tavern owner while in the performance of his official duties as a Chicago police officer. Defendant argues that the evidence was insufficient to prove beyond a reasonable doubt that at the time he testified, he knew his answers to be false. Defendant relies heavily upon the fact that the incidents regarding which the government’s witnesses testified pre-dated his testimony by as much as eight years, and intimates that defendant might have confused these incidents with those in which he accepted gifts legitimately from local businessmen for “meritorious service”.

Whether defendant knew at the time he testified that his statements were false may be proven by circumstantial evidence, United States v. Nicoletti, 310 F.2d 359 (7th Cir. 1962), and “generally, a belief as to the falsity of testimony may be inferred by the jury from proof of the falsity itself.” Young v. United States, 94 U.S.App.D.C. 54, 212 F.2d 236, 241 (1941). Although the testimony of the tavern owners did not directly establish that defendant actually remembered receiving money from them, their testimony did establish that the money was paid to the defendant while in the performance of his duties as a Chicago police officer. These witnesses testified in detail regarding veiled threats made by defendant to the effect that he would use his official position to their economic detriment unless he was paid a certain sum of money. Each witness testified that money was subsequently paid to the defendant. Defendant testified in his own behalf and denied accepting the money from any of the four tavern owners. On cross examination, he testified that if he had ever “shaken down any taverns”, he would remember it. The jury apparently concluded that, contrary to his testimony at trial, defendant had accepted money from the four tavern owners and that he remembered doing so. We find the circumstantial evidence here substantially greater than that presented in United States v. Clizer, 464 F.2d 121 at 125 (9th Cir. 1971), and viewed in the light most favorable to the appellee, sufficient to prove beyond a reasonable doubt that at the time defendant testified before the grand jury he knew his testimony to be false.

CHICAGO POLICE DEPARTMENT RULE 51

Approximately one week before oral argument in the instant appeal, this court decided Confederation of Police, et al. v. Conlisk, et al., 489 F.2d 891 (7th Cir. 1973), holding Chicago Police Department Rule 51 unconstitutional. Rule 51 prohibited Chicago police officers from:

“Failing to give evidence before the Grand Jury . . . when properly called upon to do so, or refusing to testify on the grounds that such testimony might incriminate the member, or refusing to sign a waiver of immunity when requested to do so by a superior officer.”

Each of the plaintiffs in Confederation of Police was a police officer who had invoked the privilege against self-incrimination and refused to testify before a federal grand jury. Plaintiffs were thereafter either suspended or discharged for violating Rule 51.

After tracing the development of the law from the Supreme Court’s decision in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), to its decisions in Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968) and Uniformed Sanitation Men Ass’n, Inc. v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968), this court held that “Rule 51, to the extent that it denies police officers the privilege against self-incrimination where criminal prosecution may follow, is constitutionally invalid.” 489 F.2d at 895.

Where a public employee testifies before a grand jury under the threat that his refusal to testify will result in disciplinary proceedings against him, the use of evidence so obtained against that witness in a subsequent criminal prosecution is improper. “[T]he protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office.” Garrity v. New Jersey, 385 U.S. at 500, 87 S.Ct. at 620.

Nor may disciplinary action be taken against the witness for his refusal to testify, unless he is first advised that, consistent with the holding in Garrity, evidence obtained as a result of his testimony will not be used against him in subsequent criminal proceedings. Gardner v. Broderick, supra; Uniformed Sanitation Men Ass’n, Inc. v. Commissioner of Sanitation, supra.

In Confederation of Police, where the plaintiffs were suspended or discharged for refusing to testify after being first advised that anything they said could be used against them in subsequent criminal proceedings, the disciplinary action taken against them was held to be constitutionally infirm under the holdings in Gardner and Sanitation Men:

“These discharges were clearly unconstitutional under the rulings of Gardner and Uniformed Sanitation Men. The IAD inquiry was in no sense an ‘accounting of public faith’ as the questions were not ‘specifically, directly, and narrowly’ related to official duties and the officers were not advised that their answers would not be used against them in criminal proceedings.” Confederation of Police v. Conlisk, 489 F.2d at 895.

In the instant case, defendant argues that (1) at the time he testified Rule 51 was in force and effect and represented a clear threat of discharge or suspension if he refused to testify; (2) his testimony was therefore coerced in the same sense as was the testimony in Garrity because he was faced with the prospect of disciplinary action if he refused to testify; (3) the coerced testimony was subsequently used against him as an essential part of the Government’s casein-chief, and was the sole basis for his conviction; and (4) since “the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office”, 385 U.S. at 500, 87 S.Ct. at 620, his conviction should be reversed.

We believe defendant’s reliance upon the aforementioned decisions is misplaced. Had defendant admitted extorting money from tavern owners, neither his testimony nor the fruits thereof could have been used against him in a subsequent prosecution. Garrity v. New Jersey, supra. Had he exercised his Fifth Amendment privilege, he could have attacked the legality of any subsequent disciplinary action against him on the basis of Gardner and Sanitation Men. But we find nothing in these decisions or in this court’s holding in Confederation of Police which grants a witness before the grand jury the third alternative which, in substance, is proposed by the defendant in the instant case: the right under such circumstances to knowingly make a false material declaration while testifying under oath before a grand jury.

As the Second Circuit Court of Appeals stated in United States ex rel. Annunziato v. Deegan, 440 F.2d 304 (2nd Cir. 1971), upholding the conviction of a public employee for perjury based upon testimony obtained under threat of discharge:

“[A]ppellant was not prosecuted for past criminal activity based on what he was forced to reveal about himself; he was prosecuted for the commission of a crime while testifying, i. e., perjury. In short, while a public employee may not be put to the Hobson’s Choice of self-incrimination or unemployment, he is not privileged to resort to the third alternative, i. e., lying.” 440 F.2d at 306.

In sum, Garrity and its progeny do not proscribe the use, in a criminal prosecution under 18 U.S.C. § 1621 or § 1623, of a defendant’s allegedly perjurious statements, even if obtained under circumstances such as those of the instant case. Garrity provides the witness with adequate protection against the government’s use, in subsequent criminal proceedings, of information obtained as a result of his testimony, where his refusal to testify would form the basis for disciplinary action against him. Gardner and Sanitation Men provide the witness with a shield against such disciplinary action based upon his refusal to testify, in cases in which he refuses to do so, believing that his testimony or the fruits thereof can be used against him in subsequent criminal proceedings.

Together, these decisions provide adequate protection of the witness’s Fifth Amendment rights. We find no reason or justification for extending this umbrella of protection to shield a witness against prosecution for knowingly giving false testimony.

The judgment of the district court is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: SWYGERT, Chief Judge.

license: Public Domain

text:
    Eugene R. SIGNORILE, Plaintiff-Appellee, v, QUAKER OATS COMPANY, Defendant-Appellant.
    No. 73-1687.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 27, 1974.
    Decided July 8, 1974.

      William D. Maddux, Gary M. Elden, Chicago, 111., for defendant-appellant.
    Norman Lettvin, George H. Gerstman, Chicago, 111., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, and STEVENS and SPRECHER, Circuit Judges.
   SWYGERT, Chief Judge.

Defendant-appellant Quaker Oats Company appeals from a judgment awarding attorney’s fees to plaintiff-appellee Eugene Signorile after the dismissal of his action. Signorile sought damages for the misappropriation of a trade secret. The district court dismissed the action for lack of diversity. The only issue is whether the court properly ordered the defendant to pay plaintiff his attorney’s fees incurred during the pendency of the aborted lawsuit.

The plaintiff based federal court jurisdiction in an allegation that he was an Illinois resident and that the defendant was a New Jersey corporation with its principal place of business in that state. Quaker Oats admitted in its answer that it was a corporation organized under the laws of New Jersey and that its principal place of business was in that state. Some ten months after the answer was filed an attorney different than the one originally assigned but from the same law firm that represented Quaker Oats looked at the case. Upon investigation, this new attorney became aware that the principal place of business of the company was in Illinois not New Jersey and concluded correctly that there was no federal jurisdiction under section 1332, 28 United States Code. The attorney then informed Signorile’s counsel of this fact and moved in the district court to dismiss the complaint for lack of jurisdiction. In doing so he offered to stipulate that all discovery in the federal court could be used in a state court proceeding. The plaintiff opposed the motion, arguing that Quaker Oats was estopped after discovery had proceeded from refuting that its principal place of business was in New Jersey and that in any event the defendant had failed to show that its principal business was in Illinois. Alternatively, plaintiff requested that if jurisdiction was absent, he • was entitled to an award of costs because of the “substantial prejudice” caused him by the defendant’s faulty admission.

The district judge, after finding that defendant’s principal place of business was in Chicago and rejecting plaintiff’s estoppel argument, dismissed the action. (See Rule 12(h)(3), Fed.R.Civ.P., and Page v. Wright, 116 F.2d 449 (7th Cir. 1940).) In his dismissal order the judge indicated that plaintiff should recover a portion of his costs “by reason of defendant’s culpable delay in filing its motion [to dismiss].” After receiving memoranda and conferring with counsel representing the parties, the court entered judgment for Signorile in the amount of $3,548.88. Included in that sum was $3000 representing attorney’s fees which was, according to the judge, “the result of defendant’s culpable negligence in filing a false answer.”

I

Defendant contends that because this is a diversity case, Illinois law governs and according to Illinois court decisions, recovery of attorney’s fees is not permitted, unless statutorily authorized, citing House of Vision, Inc. v. Hiyane, 42 Ill.2d 45, 245 N.E.2d 468, 472 (1969). The only statute arguably applicable according to the defendant is a provision in the Illinois Civil Code, 111. Rev.Stat.1971, ch. 110 § 41, which deals with false allegations and denials in pleadings. Defendant argues that under the facts here that section is inapplicable. We would be inclined to agree if we were to reach the issue. But we are of the view that Illinois law, decisional or statutory, does not govern. Since diversity was lacking, jurisdiction never attached in the federal court. Factually, of course, there was an action, but one not stemming from diversity.

II

Turning to the authority to award costs, upon the dismissal of action filed in a federal court an early Supreme Court case dealt with the question. In McIver v. Wattles, 9 Wheat. 650, 22 U.S. 650, 6 L.Ed. 182 (1824), Chief Justice Marshall, speaking for the Court, said that “in all cases where the cause is dismissed for want of jurisdiction, no costs are allowed.” Since the Court said no costs were allowable perforce that holding covered attorney’s fees. The inability of the federal courts to award costs upon dismissal as announced in McIver was subsequently later remedied by statute. The present statute, 28 U.S.C. § 1919 provides:

Whenever any action or suit is dismissed in any district court for want of jurisdiction, such court may order the payment of just costs.

The immediate predecessor of section 1919 was 28 U.S.C. § 80, 1940 ed. (Act of March 3, 1911, ch. 231, § 37, 36 Stat. 1098). That statute provided in relevant part that the courts “shall make such order as to costs as shall be just.” The change from “costs as shall be just” to “just costs” was one of phraseology and not of substance. H.R. Report No. 308, 80th Cong., 1st Sess. 162 (1947). With the current statute in mind, we must decide whether the word “costs” was meant to include attorney’s fees.

Apparently the only reported case to discuss the precise question we posit is Hylte Bruks Aktiebolag v. Babcock & Wilcox Co., 305 F.Supp. 803, 810 (S.D.N.Y.1969). There Judge Cooper, the district judge, said that the permitting of the taxing of “just costs” under section 1919 may be seen as enhancing the district court’s “discretion to tax extraordinary items of costs, such as attorney’s fees.”

In Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967), the word “costs” was interpreted in an analogous statute, 28 U.S.C. § 1920, which provides:

A judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title. A bill of costs shall be filed in the case and, upon allowance, included in the judgment of decree.

There Chief Justice Warren compared the English practice of awarding attorney’s fees as part of the costs with the American rule of not ordinarily allowing attorney’s fees to be recovered absent a statute or enforceable contract providing for such recovery. He reviewed the exceptions to the American rule in admiralty cases, civil contempt proceedings, and actions that benefit persons other than the immediate parties to the suit. Finally, the Chief Justice rejected the contention that the statutory definition of that term “costs” in section 1920 includes attorney’s fees since, according to his view, that would require the Court “to ascribe to Congress a purpose to vary the meaning of that term without either statutory language or legislative history to support the unusual construction.” 386 U.S. at 720, 87 S.Ct. at 1408. We thinkjhat that statement applies with equal force to section 1919.

Ill

Although plaintiff concedes that attorney’s fees cannot ordinarily be awarded in federal cases absent statutory authority, he nonetheless maintains that such fees are allowable “where the circumstances so warrant,” and in the interest of justice, citing Mills v. Electric Autolite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), and Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). In Mills the Supreme Court held that “[t]he absence of express statutory authorization for an award of attorney’s fees . . . does not preclude such an award. . . .” 396 U.S. at 390, 90 S.Ct. at 624. The Court went on to say:

While the general American rule is that attorneys’ fees are not ordinarily recoverable as costs, both the courts and Congress have developed exceptions to this rule for situations in which overriding considerations indicate the need for such a recovery. 396 U.S. at 391-392, 90 S.Ct. at 625.

In Sprague, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939), the Court stated:

Plainly the foundation for the historic practice of granting reimbursement for the costs of litigation other than the conventional taxable costs is part of the original authority of the chancellor to do equity in a particular situation. 307 U.S. at 166-167, 59 S.Ct. at 780. (Emphasis added.)

Under the foregoing theory, the question is whether there were any extraordinary circumstances in this case which would permit attorney’s fees to be awarded to plaintiff. We find none. The factual situations in Mills and Sprague are so dissimilar to the situation here as to render those eases readily distinguishable.

In the case at bar there was no showing of any financial burden or hardship to plaintiff. His access to the state courts to refile his lawsuit was unimpaired. The district court found that the discovery undertaken while the case was pending in the district court could be used in a subsequent state court action. Finally, there was no showing that defendant’s faulty admission was deliberate; rather, it can best be characterized as inadvertent or, at worst, negligent.

The award of attorney’s fees was error; accordingly, that part of the judgment below is reversed. The ease is remanded with instruction that the district court enter an order awarding the plaintiff $548.88. Costs on appeal are awarded to the appellant.

      . The district judge found the discovery obtained during the pendency of the case will be substantially usable in any subsequently filed state court action.

      . The district court in Hylte Bruks Aktiebolag v. Babcock & Wilcox Co., supra, did not award attorney’s fees when it dismissed the appeal for want of jurisdiction since there was no indication of “fraud or trickery” practiced upon the court or the other party. ,


author: WEIS, Circuit Judge.

text:
    KEYSTONE AERONAUTICS CORPORATION, a corporation, Appellant, v. R. J. ENSTROM CORPORATION, a corporation v. FOUNDRY ALLIED INDUSTRIES, INC., a corporation.
    No. 73-1915.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 27, 1974.
    Decided June 26, 1974.

      Kenneth S. Robb, Raymond H. Conaway, Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, Pa., for appellant.
    Gilbert J. Helwig, John T. Tierney, III, Alan G. Keith, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for appellee, R. J. Enstrom Corp.
    Before HUNTER and WEIS, Circuit Judges and BECKER, District Judge.
   OPINION OF THE COURT

WEIS, Circuit Judge.

When a purchaser claims damages from a seller because of a defective . product, there is often a need to evaluate the proper roles of Section 402A of the Restatement of Torts 2d and the Uniform Commercial Code. This appeal presents such an occasion. Specifically, we are confronted with the question of whether a seller may disclaim responsibility for any potential liability under § 402A, and, if so, what conditions must be met.

This is a diversity case, and we must be guided by the Erie light of Pennsylvania law, an uncertain illumination at best since the appellate courts of that state have not yet addressed themselves to the issue. We are mindful that our assigned role is to predict and not to form state law and so will utilize those guide posts which are available.

The factual background arises from three transactions in which the plaintiff Keystone purchased used helicopters from the defendant, R. J. Enstrom Corporation, which manufactured them. The first sale of No. 24 occurred on December 11, 1969 and was accompanied by a printed “Purchase Agreement” prepared by the defendant manufacturer. On the back of this document appeared a “Warranty” purporting to limit the obligation of the manufacturer to replacement of defective parts occurring within six months after delivery or 400 hours of operation, whichever would first occur. This undertaking was stated to be in lieu of all other warranties and “all other obligations and liability, direct or consequential . . . ”

The second purchase occurred on March 27, 1970 when two demonstrators, Nos. 46 and 34, were obtained by the plaintiff. On this occasion, there was added to the front page of the purchase agreement form the following provision:

“Customer takes ‘as is’ without warranty of any kind except Enstrom will convey good title.”

On the back of the form, the standard warranty provision was “X’ed” out, and the following language inserted:

“WARRANTY EXCLUSIONS
“The R. J. Enstrom Corporation will be held harmless of any liability in connection with this sale.
Sale of these helicopters is unconditional and no warranty of any kind is made or implied.”

On September 23, 1970, No. 46 crash-landed while being flown by a Keystone pilot. There was no personal injury, but the aircraft was damaged substantially.

At the request of the Federal Aviation Administration, Keystone grounded Nos. 24 and 34, the remaining undamaged craft, until the cause of the crash could be determined and necessary corrections made, if needed.

Keystone brought suit in the district court for damages, alleging liability under theories of negligence, strict liability under § 402A, and breach of warranty. The last ground was abandoned by the plaintiff in the trial court, and we do not consider it here.

The district court granted summary judgment for the defendant, holding that in the commercial setting involved here the provisions of § 402A could be waived by the parties and that the language in the purchase agreement was effective both as to that cause-of action and negligence as well.

While Pennsylvania has adopted § 402A, its courts have not yet had the opportunity to pass upon comment m which reads, inter alia:

“The rule stated in this Section is not governed by the provisions of the Uniform Sales Act, or those of the Uniform Commercial Code, as to warranties ; and it is not affected by limitations on the scope and content of warranties, or by limitation to ‘buyer’ and ‘seller’ in those statutes. Nor is the consumer required to give notice to the seller of his injury within a reasonable time after it occurs, as is provided by the Uniform Act. The consumer’s cause of action does not depend upon the validity of his contract with the person from whom he acquires the product, and it is not affected by any disclaimer or other agreement, whether it be between the seller and his immediate buyer, or attached to and accompanying the product into the consumer’s hands. In short, ‘warranty’ must be given a new and different meaning if it is used in connection with this Section. It is much simpler to regard the liability here stated merely as one of strict liability in tort.”

The Supreme Court of Pennsylvania has tended to adopt other comments to this section of the Restatement, and we expect similar consideration of comment m. However, the interpretation of the district court is not necessarily in conflict.

In essence, the district court reasoned that while sound public policy would prohibit disclaimer of the benefits of § 402A in the “garden variety” consumer situation, the same result need not follow where the sale was a pure commercial transaction between two knowledgeable corporations which have consciously negotiated terms and price, and only property damage is at issue.

The trial court held that freedom of contract should be permitted so that a corporate purchaser may exercise its business judgment to forego claims for liability against the seller in exchange for a lower price. There is much to be said for this approach and its recognition that relief from restrictions in a commercial context is not inconsistent with the purposes of § 402A, i. e., protection of the average consumer who is not really in a position to bargain effectively or intelligently.

If a disclaimer on the label of a product or in a printed form sales contract would be effective to limit liability under § 402A, then obviously sellers would utilize such devices to nullify their responsibility. And it is significant that the application of § 402A is limited to a “ . . . product in a defective condition unreasonably dangerous . . . ” A social policy aimed at protecting the average consumer by prohibiting blanket immunization of a manufacturer or seller through the use of standardized disclaimers engenders little resistance. But when the setting is changed and the buyer and seller are both business entities, in a position where there may be effective and fair bargaining, the social policy loses its raison d’etre. The transaction then tends to be more influenced by gravitational pull of the Uniform Commercial Code than by the consumer oriented § 402A.

Since the Code is tolerant of disclaimers and limitation clauses within certain defined limits, that same philosophy would be equally approving of a negotiated waiver of § 402A. Such a limitation on comment m would avoid the not unfamiliar result of “overkill” when a legal principle completely valid in its original context is extended so far that the mischief caused may be equal to the original disorder sought to be remedied.

We have no reason to believe that the courts of Pennsylvania would not come to the same conclusion as we do. Exculpatory clauses to relieve a person of his own negligence have been enforced in less favorable circumstances, and it would appear that the advantages of freedom of contract would overcome any inclination to adopt a narrow and restrictive interpretation of comment m.

We conclude therefore that Pennsylvania law does permit a freely negotiated and clearly expressed waiver of § 402A between business entities of relatively equal bargaining strength. Nevertheless, we must reverse the entry of summary judgment here because the language used in the sales agreement, the only evidence of the disclaimer before the district court, fails to show a clearly expressed waiver. While Pennsylvania does give effect to exculpatory clauses against liability for negligence, stringent standards have been imposed upon their recognition. See Employers Liability Assurance Corp. v. Greenville Business Men’s Ass’n, 423 Pa. 288, 224 A.2d 620 (1966); Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 192 A.2d 682 (1963). Equally demanding requirements are appropriate when § 402A is under consideration. The defendant claims that both negligence and § 402A were comprehended by the immunizing language and we will apply the same criteria to them.

.In Employers Liability Assurance Corp. v. Greenville Business Men’s Ass’n, supra, the Pennsylvania Supreme Court set out four prerequisites which must be met before an exculpatory claim will be effective:

1. Such clauses must be strictly construed ;
2. With every intendment against the party who seeks immunity from liability;
3. The contract must spell out the intention of the parties with the greatest of particularity; and
4. The burden is upon the party asserting the immunity.

In reviewing Pennsylvania law on the point, this court in Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205 (3d Cir. 1970), said:

“ . . . the provisions and terms of the contract [must] clearly and unequivocally spell out the intent to grant such immunity and relief from liability.”

As the court pointed out in Neville, supra, and as is true in this case, the agreement does not contain the word “negligence” or others of similar import. The exculpatory clause is no more definite than that found in Greenville, supra.

Under Pennsylvania law, a limitation or exclusion of warranty does not, in and of itself, work an absolution of negligence. Therefore, to the extent that the language in the purchase agreement purports to release liability for breach of warranty, it would not be effective as to claims of negligence or its tort brother, strict liability. Moreover, the clause, “The R. J. Enstrom Corporation will be held harmless of any liability in connection with this sale,” is inadequate to express the clear and unequivocal intent necessary to exculpate the defendant from negligence or strict liability claims.

A review of the record shows that the district court was called upon to consider only the phraseology of the purchase agreement itself. No discovery was had, nor were there any affidavits filed to establish whether the “purchase agreement” was only a part of a more comprehensive contract. Furthermore, no request was ever made to the district judge that testimony be taken .to resolve the meaning of “ . . . held harmless of any liability in connection with this sale . . . ” as found in the agreement.

Since the entry of summary judgment was error, the case will be remanded. We do so without prejudice to the rights of the parties to introduce further testimony or documentation, if such be available, after due consideration of the provisions of the parol evidence rule.

When language used is unclear and ambiguous, evidence of attendant circumstances may enable the court to determine what the parties intended by a writing. In re Plasterer’s Estate, 413 Pa. 513, 198 A.2d 525 (1964). Similarly, parol evidence is admissible to show that the writing in question was not intended to and did not properly state the entire agreement between the parties. Dunn v. Orloff, 420 Pa. 492, 218 A.2d 314 (1966).

If there is no further testimony which can be added or if it fails to give the agreement the explicitness required by the decisions of the Pennsylvania appellate courts, then the case must proceed to disposition on the merits of the negligence and § 402A claims.

The judgment of the district court will be reversed, and the case will be remanded.

      . The warranty period as to No. 24 had expired before the critical events in this suit occurred.

      . Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966).

      . As to the advantages of disclaimers, see Donnelly, After the Fall of the Citadel: Exploitation of the Victory or Consideration of All Interests?, 19 Syracuse L.Rev. 1 (1967). See also Speidel, Products Liability, Economic Loss and the UCC, 40 Tenn.L.Rev. 309 (1973). Cf. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791 (1966).

      . As aptly noted in 2 Boston College Industrial & Commercial L.Rev. 133, 138 (1960), “A holding based fundamentally on a theory of offering protection where such protection is needed; i. e., to the disorganized and dependent consumer in the automobile purchase transaction should not be indiscriminately extended to include technically proficient industrial purchasers or others in relatively equal bargaining position vis-a-vis the seller. Tims, in a wide area of our economy the doctrine of freedom of contract would remain functionally and economically sound.”

      . See UCC 2-316, 2-719.

      . The lease between the parties in the Employers case provided that the “[lessor] shall not be responsible . . . for any damages occurring to the property of [lessee].” The court refused to consider this as exculpatory because the cause of the damage had its inception before the lease was signed.

      . Shafer v. Reo Motors, 205 F.2d 685 (3d Cir. 1953), relied upon by the defendant is not to the contrary. There, the court noted that the scope of the exculpatory clause in the warranty was an issue of fact not raised below and hence not considered on appeal.

      . We do not think the record adequate to support any finding of assumption of risk on the part of the plaintiff simply by virtue of having purchased a demonstrator model. There was not sufficient factual data presented to the court below for a ruling on this defense.
      There are a variety of other problems which the district court may encounter should the case move beyond the exculpation issue — e. g., the conflict between the theories expressed in Santor v. A and M Karagheusian, 44 N.J. 52, 207 A.2d 305 (1965), and Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (1965). See also Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968), and. the concurring opinion of Justice Jones in Miller v. Preitz, 422 Pa. 383, 221 A.2d 320, 328 (1966). For a further exposition, see Murray, Pennsylvania Products Liability: A Clarification of the Search for a Clear and Understandable Rule, 33 U.Pitt.L.Rev. 391 (1972), Prosser, supra, and Speidel, supra.


author: MURRAH, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael Matthew ROBY, Defendant-Appellant.
    No. 73-1441.
    United States Court of Appeals, Tenth Circuit.
    Submitted Nov. 14, 1973.
    Decided March 13, 1974.
    Rehearing Denied Aug. 26, 1974.

      Richard D. Judd of Reno & Judd, Denver, Colo., for defendant-appellant.
    Monti Belot, Asst. U. S. Atty., Topeka, Kan. (Robert J. Roth, U. S. Atty., D. Kan., E. Edward Johnson, Asst. U. S. Atty., Topeka, Kan., and Stephen K. Lester, Asst. U. S. Atty. (Trial Atty.), on the brief), for plaintiff-appellee.
    Before MURRAH, HOLLOWAY and DOYLE, Circuit Judges.
   MURRAH, Circuit Judge.

Michael Roby appeals his conviction on a nine-count indictment for interstate transportation, with fraudulent intent, of falsely made, forged, altered and counterfeited securities in violation of 18 U.S.C. § 2314. He asserts that evidence as to the interstate transportation was insufficient to sustain his conviction, that the securities in question (Republic Money Orders) were not proven to be falsely made, forged and counterfeited, that the trial court erroneously admitted identification testimony against him and, finally, that the trial court failed to define the essential elements of the offense.

It was established at trial that Roby cashed money orders in Wichita, Kansas, which were presented for payment to the Republic National Bank of Dallas, Texas. A Republic Bank official testified that the money orders in question were among a shipment sent by his bank to Kansas City, Missouri, stolen at a Safeway Store there in 1970, and eventually returned “in normal banking channels” to Dallas, where the words “Payment- Stopped” were printed on them and a record made of their arrival. Roby’s complaint that this evidence failed to show “the elements of transportation” is without legal significance. It is well established that the “specific means” of interstate transportation need not be established, Pereira, et al. v. United States, 347 U.S. 1, 9, 74 S.Ct. 358, 98 L.Ed. 435 (1953), and that the cashing of a check or money order in one state drawn on a bank in another state is competent evidence that the instrument “would, of necessity, have to travel in interstate commerce.” Carlton v. United States, 391 F.2d 684, 685, n. 1 (8th Cir. 1968). See United States v. Hill, 468 F.2d 899 (5th Cir. 1972); Devine v. United States, 403 F.2d 93 (10th Cir. 1968); Halfen v. United States, 324 F.2d 52 (10th Cir. 1963). Sufficient circumstantial evidence was available to satisfy the jury beyond a reasonable doubt that the prohibited interstate transportation, as alleged in the indictment, actually occurred. United States v. Teresa, 420 F.2d 13 (4th Cir. 1969).

Roby next contends that a distinction must be made between a forged security and a forged endorsement on a security, and that insufficient proof was offered to show that the money orders in question were, in themselves, “falsely made, forged, and counterfeited,” as required by the statute. This premise is not without merit, since there is persuasive evidence that the portion of 18 U.S'.C. § 2314 which requires no jurisdictional amount, and forms the basis for the indictments in this case, was intended to reach the “multiplying” of forged securities “on a large scale,” not simply the forging of a signature on an already valid document. Appropriately, therefore, this Court has held before, in a case involving a bogus cashier’s check, that “a false endorsement is not a criminal offense under § 2314.” Pauldino v. United States, 379 F.2d 170, 172 (10th Cir. 1967). See also Beatty v. United States, 357 F.2d 19, 22 (10th Cir. 1966) .

Under the facts of the present case, however, there is ample evidence for the jury to conclude that Roby violated the statute. Roby was identified as having stolen a “check protector” device used to fill in the store number and face amount of the nine money orders in question, is shown by Regiscope photograph cashing most of them, and left latent fingerprints on six out of nine of them. The totality of the above is persuasive circumstantial evidence of sufficient preparation of the previously blank money orders so as to constitute “forgery” or the “false making” of them by Roby, not simply the forging of an endorsement on a security. Moreover, since the statute speaks in terms of “knowing [the securities] to have been falsely made, forged, altered, or counterfeited . . . ,” the jury could have properly concluded that “the appellant had a sufficient connection with the fraudulently completed money orders to be held to possess the necessary guilty knowledge.” McGee v. United States, 402 F.2d 434, 437 (10th Cir. 1968). See also United States v. Boone, 470 F.2d 908 (4th Cir. 1972); United States v. Smith, 426 F.2d 275 (6th Cir. 1970); Cloud v. United States, 361 F.2d 627 (8th Cir. 1966).

Fully recognizing the damning nature of the testimony by a grocery store employee identifying him as having stolen the check protector used to prepare the money orders in question, Roby next contends that the trial court erred in not holding an in camera hearing to investigate the prearrest photographic “show up” in which the eyewitness first identified him. The government did not submit the results of this “show up” at trial and the eyewitness testified that the basis of his identification was from the theft itself, not the photographs shown him by the F.B.I. nearly five months later.

Each case of this type must be decided on its own facts. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1967). The present case is quite close, considering the long time span between the theft and the photographic show up. However, the delay in itself should not be determinative. See Neil v. Biggers, 409 U.S. 188, 201, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); United States v. Hurt, 155 U.S.App.D.C. 217, 476 F.2d 1164, 1168 (1973); United States v. King, 149 U.S.App.D.C. 61, 461 F.2d 152, 154-155, and cases cited (1972), and we look at all the circumstances to determine if— even assuming a suggestive show up— the record shows sufficient evidence of an independent identification of such a nature as “to dispel any substantial likelihood of mistaken identification.” Haskins v. United States, 433 F.2d 836, 839 (10th Cir. 1970). And see United States ex rel. Phipps v. Follette, 428 F.2d 912 (2d Cir. 1970); Davida v. United States, 422 F.2d 528 (10th Cir. 1970); Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968).

The eyewitness here had sufficient time to observe the manner of the theft (which took place in the store where he was employed), described in detail the coat worn by the thief, pursued the thief, identified only Roby in a photographic show up of more than one photograph, and unequivocally identified Roby at trial, stating specifically that his testimony was based on observation at the time of the theft. There is no evidence that the thief was masked or that the grocery store in question was poorly illuminated. We are satisfied in light of these facts that the witness was able to form a definite image in his mind that would have been independent of an imprint from suggestive show up procedures. United States ex rel. Phipps v. Follette, supra; see United States v. Cooper, 472 F.2d 64 (5th Cir. 1973); Williams v. United States, 133 U.S.App.D.C. 185, 409 F.2d 471 (1969). Quite apart from any photographic evidence, the witness’ positive identification of Roby was sufficient to satisfy the jury beyond a reasonable doubt.

Finally, Roby contends that he is entitled to a new trial since the instructions given the jury did not include definitions of the terms “forged and falsely made securities,” or “securities.” However, defense counsel did not object to the instructions, which adequately instructed the jury upon the essential elements of the crime, and we will not consider them here absent manifest injustice to the defendant. See Popeko v. United States, 294 F.2d 168 (5th Cir. 1961). The jury had ample reason to conclude that Roby had, at the very least, sufficient knowledge that the money orders were in themselves falsely made, forged and counterfeited. Likewise, we do not see how the failure of the court to define “securities” in the context of this case could have been prejudicial in light of our uncontradicted line of cases involving money orders in violation of 18 U.S.C. § 2314. United States v. Grider, 454 F.2d 713 (10th Cir. 1972); McGee v. United States, supra; Halfen v. United States, supra.

The judgment is affirmed.

      . See letter from Attorney General, May 5, 1939, as reproduced in Streett v. United States, 331 F.2d 151, 154 (8th Cir. 1964). Contra, see United States v. Di Pietto, 396 F.2d 283 (7th Cir. 1968), vacated on other grounds, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969). Regarding similarly worded statutes, see also Prussian v. United States, 282 U.S. 675, 51 S.Ct. 223, 75 L.Ed. 610 (1930) (endorsement not “such a part of the draft as to constitute the forging of the endorsement a forgery of the draft,” at 678, 51 S.Ct. at 678) ; Gesell v. United States, 1 F.2d 283 (8th Cir. 1924) ; De Rose v. People, 64 Colo. 332, 171 P. 359 (1918).

      . Note that Pub.L. 90-535, 82 Stat. 885, added to § 2314 the paragraph stating:
      “Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any traveler’s check bearing a forged countersignature . . . . ” (emphasis supplied). Nonetheless, the Pauldino principle, consistent with the rule that criminal statutes should be strictly construed, has still been applied to securities other than traveler’s checks since the 1968 amendment. United States v. Boone, 470 F.2d 908, 910 (4th Cir. 1972).

      . Other courts have held that insertion of the name of a fictitious payee may turn a genuine money order into one which is “falsely made” and therefore under the purview of 18 U.S.O. § 2314. Gearing v. United States, 432 F.2d 1038, 1041 (5th Cir. 1970) (appendix of district court opinion). See also United States v. Franco, 413 F.2d 282 (5th Cir. 1969).

      . The Regiscope is a camera used in commercial establishments to photograph customers and commercial paper for later identification.

      . This issue was not raised at trial and we are reluctant to consider it here. However, it is clear that defendant’s “substantial rights” could have been affected and we are compelled to consider the matter. Haskins v. United States, 433 F.2d 836 (10th Cir. 1970) ; Solomon v. United States, 133 U.S.App.D.C. 103, 408 F.2d 1306 (1969).


author: SWYGERT, Chief Judge. PELL, Circuit Judge

text:
    Sylvia WILSON et al., Plaintiffs-Appellees, v. Edward T. WEAVER, Director, Illinois Department of Public Aid, and David L. Daniel, Director, Cook County Department of Public Aid, Defendants-Appellants. Sally GREEN et al., Plaintiffs-Appellees (Cross-Appellants), v. Wayne A. STANTON et al., Defendants-Appellants (Cross-Appellees).
    Nos. 73-1541, 73-1749, 73-1834 and 73-1835.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 2, 1973.
    Decided May 9, 1974.
    Rehearing and Rehearing En Banc Denied July 25, 1974.
    William J. Scott, Atty. Gen., Herbert L. Caplan, Asst. Atty. Gen., Bernard Carey, State’s Atty., Fredric B. Weinstein, Asst. State’s Atty., Chicago, 111., for defendants-appellants.
    Theodore L. Sendak, Atty. Gen., John H. Meyers, Asst. Atty. Gen., Indianapolis, Ind., Philip H. Larmore, Ft. Wayne, Ind., for Stanton.
    Sheldon H. Roodman, Lorelei Borland, Chicago, 111., for plaintiffs-appellees.
    Linda D. Moskowitz, Seymour Moskowitz, Gary, Ind., Robert E. Gordon, Chicago, III., Ivan E. Bodensteiner, Valparaiso University School of Law, Valparaiso, Ind., for Sally Green.
    Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and PELL, Circuit Judge.
   SWYGERT, Chief Judge.

The defendants, the States of Illinois and Indiana, appeal from separate decisions favorable to plaintiffs in Wilson v. Weaver, 358 F.Supp. 1147 (N.D.Ill.1972), and Green v. Stanton, 364 F.Supp. 123 (N.D.Ill.1973). Both cases raise identical issues for our disposal; accordingly, we have consolidated the appeals in the instant action.

Plaintiffs represent a class composed of women whose pregnancies have been medically determined and their unborn children. In the district courts plaintiffs sought injunctive and declaratory relief from the defendants’ denials of Aid to Families with Dependent Children (AFDC) benefits to the pregnant mother and her unborn child until the actual birth of the child. The denials were in accordance with the respective welfare policies of Illinois and Indiana.

The plaintiffs contend that the state policy involved is contrary to the requirements of the federal Social Security Act and, consequently, is invalid under the Supremacy Clause of the Constitution. Under section 402(a) (10) of the Social Security Act, 42 U.S.C. § 602(a) (10), it is required that “ . aid to families with dependent children shall be ‘ furnished with reasonable promptness to all eligible individuals .” Plaintiffs assert that an unborn child is a dependent child within the contemplation of section 402(a) (10) of the Social Security Act and that consequently the unborn child and mother are entitled to AFDC benefits. If it is established that an unborn child is eligible under the Act, then it necessarily follows that a state policy of denying AFDC benefits prior to birth is in conflict with the federal statute and therefore invalid. King v. Smith, 392 U.S. 309, 333, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Townsend v. Swank, 404 U.S. 282, 285, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971); Carleson v. Remillard, 406 U.S. 598, 600, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972) .

The basic issue is whether the term “dependent child” as utilized in section 402(a) (10) includes an unborn child. The district courts in these cases held that the term dependent child encompasses the unborn child. We are in agreement. In addition we must address as a related issue the question of the propriety of granting retroactive payment of AFDC benefits previously denied.

I

The Supreme Court has provided a guide for determining eligibility for AFDC benefits. That guideline announced in King v. Smith and amplified in Townsend v. Swank, supra, at 286; and Carleson v. Remillard, supra at 600, provides:

King v. Smith establishes that, at least in the absence of congressional authorization for the exclusion clearly evidenced from the Social Security Act or its legislative history, a state. eligibility standard that excludes persons eligible for assistance under federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy Clause. (Emphasis in original.) 406 U.S. at 600.

This test necéssitates two inquiries: (1) whether an unborn child is a person eligible for assistance under federal AFDC standards and, (2) whether this otherwise eligible class consisting of unborn children is expressly excluded by Congress from receiving AFDC benefits. Admittedly, the Social Security Act and its legislative history are barren of any clear congressional authorization to exclude unborn children from participating in the AFDC program. Our concern therefore centers exclusively on the first inquiry, namely, whether an unborn child is a “dependent child.”

Although the term “dependent child” is defined in section 406(a) of the Act, that section offers no assistance in determining whether an unborn child is within or without the coverage of the Act. In a similar vein the legislative history of the Act is silent regarding the eligibility of an unborn child. Nor do we consider an analysis of the plain meaning of the statute particularly enlightening for arguably both appellants and appellees can maintain a steadfast position about the meaning and usage of the word “child” in the Act.

On balance we perceive no persuasive reasons or indications from the Social Security Act or its legislative history to assist our construction. Support for inclusion of the unborn child within the scope of the Act emanates however from two sources: we give great weight to the long-standing administrative interpretation by the Department of Health, Education and Welfare (HEW) and its predecessors that an unborn child is a dependent child within the contemplation of section 406(a); and, the grant of benefits to the unborn child is entirely consistent with and in furtherance of the purpose of the Act.

Since 1941 HEW and its predecessors have consistently interpreted the Act so as to provide benefits to unborn children who in all other aspects save birth qualify as needy dependent children. The rule of judicial deference to long-standing administrative interpretations needs no repetitious citation of authority for it is well-established

. . . that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong, especially when Congress has refused to alter the administrative construction.

As previously noted there are no persuasive indications — let alone those that attain the stature of compelling — that would indicate that HEW’s interpretation is wrong. Moreover, it is most noteworthy that no congressional steps were taken to reverse this administrative interpretation until 1972. Recognizing that HEW construed the Act to include the coverage of the unborn and that such a construction was not unreasonable, the 92d Congress set out to explicitly exclude the unborn from the coverage of the Act — a fact which was not implicit from the language of the Act or the legislative history surrounding its passage in 1935. The efforts of the 92d Congress however fell short of the mark with the result that the specific legislation intended to nullify HEW’s interpretation failed to pass. Consequently, the federal standard encompassing the unborn child continues to endure despite congressional efforts to the contrary.

It cannot be gainsaid that coverage of the unborn child is consistent with and in furtherance of the purposes of the Social Security Act. The granting of benefits to assist the development, care and nutritional needs of the unborn child is consonant with the Act’s underlying policy of “encouraging the care of dependent children.” The paramount goal of AFDC is protection of needy children. King v. Smith, 392 U.S. 309, 325, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). The providing of benefits to unborn needy children fully implements attainment of that goal. Accordingly, we hold that the state policies of Illinois and Indiana of denying AFDC benefits to unborn children and their mothers --are contrary to the prevailing federal standard for AFDC eligibility and thus invalid under the Supremacy Clause.

II

The named plaintiffs contend that they and the members of their class are entitled to the retroactive payment of AFDC benefits wrongfully withheld prior to the date of the orders of the district courts. The district court in Green v. Stanton, although recognizing that our decision in Jordan v. Weaver, 472 F.2d 985 (7th Cir. 1973), granted it the discretionary power to order retroactive payment of welfare benefits, held the equitable grant of such restitutionary relief to be inappropriate with respect' to the class as a whole and directed that retroactive relief be awarded solely to the named plaintiffs. The district court’s order in Wilson v. Weaver, however, directed the retroactive payment of AFDC benefits to all members of the class as well as the named plaintiffs.

Subsequent to argument in the instant appeal the Supreme Court reversed our decision in Jordan v. Weaver stating that we were “wrong in holding that the Eleventh Amendment did not constitute a bar to that portion of the District Court decree which ordered retroactive payments of benefits found to have been wrongfully withheld.” Edelman v. Jordan, 42 U.S.L.W. 4419, 4427, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974). Accordingly, in view of the Court’s holding we reverse the orders of the district courts to the extent that they grant retroactive relief.

The judgments of the district courts are affirmed in part and reversed in part.

PELL, Circuit Judge

(dissenting in part, concurring in part).

Being unable to agree with the statutory construction arrived at in the majority opinion, I respectfully dissent.

In so doing, I am not unmindful that a substantial majority of the federal judges who have considered the issue have determined that an unborn child was a dependent child within the contemplation of section 402(a) (10) of the Social Security Act. I am also not unmindful that persuasive sociopolitical arguments can be, and have been, advanced in favor of distributing AFDC benefits to the mother of an unborn child who would qualify for such benefits if the child were living apart from the womb. To dispose of the latter matter first, I do not deem judicial concepts of what is good policy to be helpful in statutory construction when there is no evidence that the enacting legislative body gave any consideration to the policy argument.

Returning to the first matter, while I am respectful of the analyses afforded the issue by my federal brethren, notwithstanding that cases subsequent to the initial ones have certain manifestations of stare decisis snowballing, I cannot conceive that the Congress in enacting and amending the Social Security Act used language so loosely as to mean that a woman carrying an unborn child but with no living children was a family with a dependent child within the meaning of 42 U.S.C. § 602(a) (10) nor that the unborn child while in such status is living with his or her prospective mother within the meaning of 42 U.S.C. § 606(a).

The legal status of the unborn child, recently the object of attention in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), is not a new problem to the judiciary. At least as early as 1695, although the Common Bench and the King’s Bench had unanimously held that a posthumously born child created a gap in the seisin, a thing abhorrent to the common law, the House of Lords with Baron Turton of the Court of Exchequer present held that the child could take a remainder interest in property. Reeve v. Long, 3 Lev. 408 (1695).

The legal fiction in the area of property descent that a child en ventre sa mere is supposed to be born appears to be widely accepted in American jurisprudence. Estate of Wolyniec v. Moe, 94 N.J.Super. 43, 226 A.2d 743, 744 (1967). Barnett v. Pinkston, 238 Ala. 327, 191 So. 371, 375 (1939).

However, we are not in the present case dealing with the common law, which is not only supposed to be but has been developed by the judiciary, but instead with a matter of statutory construction as to which, as I conceive it, the function of the judiciary is to determine what the legislative body intended to encompass in its enactment. Legal fictions are not a primary canon of statutory construction.

It appears clear to me from an overall examination of Title IV that Congress did not intend unborn children to be entitled to benefits. In Section 606(a) itself, “dependent child” is defined as a “needy child,” a phrase not particularly apt in describing a fetus. The definition then goes on to require that the child must have “been deprived of parental support or care” by reason of the absence from the home “of a parent.” Neither mother nor father is “a parent” before a child is born. If the fetus is aborted or stillborn, they do not become parents.

Carleson v. Remillard, 406 U.S. 598, 603, 92 S.Ct. 1932, 1935, 32 L.Ed.2d 352 (1972), held that “the presence in the home of the parent who has the legal obligation to support is the key to the AFDC program,” (emphasis supplied), citing King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), and Lewis v. Martin, 397 U.S. 552, 559, 90 S.Ct. 1282, 25 L.Ed.2d 561 (1970). I am unaware of any requirement for a father to support a child before the child is born. Even though a father may be required to pay the reasonable expenses of the mother during pregnancy this is not an obligation to the unborn child as a separate member of the family.

Other provisions of the Act lead to the same conclusion. Section 602(a) (17) speaks of “a child born out of wedlock” in the context of a requirement that the state provide:

“(A) for the development and implementation of a program under which the State agency will undertake'—
(i) in the case of a child bom out of wedlock who is receiving aid to families with dependent children, to establish the paternity of such child and secure support for him .....” (Emphasis supplied.)

If Congress had deemed that eligibility had commenced before the child was born, it should have said “conceived” instead of “born.” The language used certainly does not fit an unborn child out of wedlock, as to which there might also be reason to establish paternity and to secure support.

Many other expressions using the word “child” make sense only if that term is limited to born children. The following portions of the Act are illustrative :

(1) 42 U.S.C. § 601 states that the purpose of the AFDC program is to encourage care of dependent children in their own homes or in the homes of relatives.
(2) Sections 602(a)(7) and (8) require consideration of a child’s income and resources in establishing the amount of assistance.
(3) Section 602(a) (11) requires notice to law enforcement officials when the State furnishes AFDC to a “child who has been deserted or abandoned by a parent.”
(4) Sections 602(a) (13) thru (15) require development of a plan of social services for the child and his relatives.
(5) Section 602(a) (16) requires state investigations to determine whether AFDC children are living in suitable homes.

Also, as I have already indicated, I have difficulty in envisioning the concept of a one-person family. For a further discussion of the statute, see Parks v. Harden, 354 F.Supp. 620, 623-625 (N.D.Ga.1973).

I find no reason for including a category which is not present in legislation by virtue of the fact that HEW permitted aid to unborn children at the option of the states. Particularly, I would find no basis in this procedure for an inference that Congress intended the coverage of fetuses to be mandatory. Even if we were to assume that Congress was aware of the administratively devised option extended to the states and thereupon further assumed that the legislation enacted by prior sessions of the Congress did encompass benefits for the unborn child, this, of course, would not mean that this was what was intended at the time the legislation was enacted. While osmotic amendment of statutes by administrative procedure might shorten the legislative processes, I would scarcely deem it presently to be a part of our governmental scheme. However, to believe that Congress made this assumption has no historical basis. That Congress in several decades has not dealt specifically in the present context with the status of the unborn child is as consistent with the belief that the fetus was not eligible as otherwise, for it is indicated in the cases that at least two-thirds of the jurisdictions during the entire period of the Act have not deemed inclusion to be mandatory. Congress may well have agreed with these jurisdictions in understanding the proper construction of the existing legislation as not requiring payment of benefits in the case of the unborn child.

When the 92nd Congress did address itself expressly to the problem, the House Committee Report indicated that the “committee wants to make clear that an unborn child would not be included in the definition of a child. This will preclude the practice, now used in the AFDC program in some States, of finding that an unborn child does meet the definition, thereby establishing a ‘family’ even before the child is born.” (Emphasis supplied.)

The language of the committee report indicates to me that the committee intended to “make clear” what the law was intended to mean, despite a contrary administrative practice.

The Senate Report, No. 92-1230, p. 467, 92nd Cong., quoted the same two sentences from the House Report with approval and added: “The committee bill, like the House bill, would provide that only children who have actually been born would be eligible for Aid to Families with Dependent Children.”

While both houses passed bills to this effect, because of other differences on proposed revisions of Title IV neither version became law. There was significantly, however, no disagreement on the aspect of the legislation here involved.

The cases reaching the result that the majority did in the present case rely to a considerable extent on King v. Smith, supra; Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971); and Carleson v. Remillard, supra. However, I do not consider those cases applicable here. As the Supreme Court observed in the later case of New York State Department of Social Services v. Dublino, 413 U.S. 405, 421, 93 S.Ct. 2507, 2517, 37 L.Ed.2d 688 (1973), in referring to the three cases mentioned above: “In those cases it was clear that state law excluded people from AFDC benefits whom the Social Security Act expressly provided would be eligible.” Whatever arguments may be made for the majority position, one is not that unborn children are expressly made eligible.

In sum, no matter how laudable the motivation or the object to be achieved may be, the result reached by the májority of the courts passing on the instant question appears to me so to smack of judicial legislation as to require that laudability of objective be overridden in the interest of the proper scope of the judicial function.

I am unaware of any court decision which has given serious consideration to a resolution of the present issue on an equal protection basis and I therefore find no necessity for addressing that contention.

I do concur in that part of the opinion which denies retroactivity but, for the reasons stated herein, dissent from the remainder of the opinion.

      . The term “dependent child” as defined in section 406(a) of the Social Security Act, 42 U.S.C. § 606(a), means:
      [A] needy child (1) who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, and who is living with his father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt, first cousin, nephew, or niece, in a jjlace of residence maintained by one or more of such relatives as his or their own home, and (2) who is (A) under the age of eighteen, or (B) under the age of twenty-one and (as determined by the State in accordance with standards prescribed by the Secretary) a student regularly attending a school, college, or university, or regularly attending a course pf vocational or technical training designed to fit him for gainful employment

      . Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969).

      . Medical opinion points to the critical need for proper care and treatment of the fetus during the prenatal period and emphasizes that the needs of the unborn child during this period must be adequately met to ensure the soundness and healthfulness of the child’s later development.

      . It is difficult to discern a rational basis for denying pregnant women the same assistance during pregnancy as is accorded mothers subsequent to the birth of their children. Indeed, a woman may be in need of more assistance during her pregnancy than after the birth of her child. While she is pregnant a woman may be prevented due to her physical condition from maintaining any form of employment. After birth the status of her health does not handicap her ability to obtain a meaningful source of income.

      . Plaintiffs in Wilson v. Weaver contend that the State of Illinois waived the Eleventh Amendment defense by failing to raise it in the district court and asserting it for the first time on appeal. A similar contention of waiver was raised by the respondent in Edelman v. Jordan. The Court approved of the practice of resolving the Eleventh Amendment defense for the first time on appeal holding “that the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court.” 42 U.S.L.W. 4427 [94 S.Ct. 1363].

      . The score is placed in Alcala v. Burns, 494 F.2d 743 (8th Cir. 1974), as two courts of appeals (including the Alcala court) and twelve district courts in favor of the result reached by the majority opinion of this court, with three district court decisions to the contrary.

      . Students of the late Professor W. Barton Leach will recall that this case precipitated the publication of Langdel Lyrics of 1938 in which the following effort of class member Donald 6. McNeil appeared :
      “Let’s fill the cups to Baron Turton Who, though the law was clear and certain Would rather help a little foetus Than round out Charlie Fearne’s dull treatise.”

      . Even in the case of property descent, the legislatures have been capable of making it clear when it was their intention to do so that an unborn child should have rights. Thus, in Ill.Rev.Statutes, Ch. 3, Sec. 13 it is provided, “A posthumous child of a decedent shall receive the same share of his ancestor’s intestate estate as if he had been born in his father’s life time.”

      . For the historical development of the HEW practice, see Parks v. Harden, supra.

      . H.Rep. 92-231, p. 184, reprinted in 3 U.S.Code, Cong, and Admin.News 92nd Cong., 2d Sess., 1972, p. 5170.


author: ROSENN, Circuit Judge.

text:
    UNITED STATES of America v. Robert James GAZDA, Appellant.
    No. 73-2093.
    United States Court of Appeals, Third Circuit.
    Argued May 28, 1974.
    Decided June 28, 1974.

      Marjorie H. Matson, Michael P. Malakoff, Berger & Kapetan, Pittsburgh, Pa., for appellant.
    Richard L. Thornburgh, U. S. Atty., David M. Curry, Asst. U. S. Atty., for appellee.
    Before ROSENN and HUNTER, Circuit Judges, and HANNUM, District Judge.
   OPINION OF THE COURT

ROSENN, Circuit Judge.

Appellant, Robert James Gazda, was convicted of failing to submit to induction in violation of 50 App. U.S.C. § 462(a). On November 13, 1973, he was sentenced to a term of four years imprisonment plus costs. On appeal, Gazda alleges various errors by his local draft board and by the trial court. Because we agree with his contention that the order directing him to report for induction was invalid and untimely under Selective Service Regulation § 1631.-7(d) (5), we reverse.

Following the termination of his II-A occupational deferment in the summer of 1970, Gazda claimed that he was entitled to conscientious objector status. On September 10, 1970, after an interview, Gazda’s local board denied his conscientious objector claim and classified him I-A, notifying him by a classification card (SSS Form 110). No reasons were given for the denial. Five days later, this court held, in Scott v. Commanding Officer, 431 F.2d 1132 (3d Cir. 1970), that denial of a claim for conscientious objector status without a statement of the basis for the action invalidates the registrant’s induction order.

On October 5, 1970, Gazda requested a personal appearance to further present his conscientious, objector claim. He failed to report for the scheduled personal appearance on November 3, 1970, and was retained in class I-A. Gazda was notified of the classification the following day and again no reasons were given for the denial of his conscientious objector claim.

On January 5, 1971, Gazda was issued an order to report for induction on January 25, 1971. He notified the board that he would not report for induction and, in fact, did not do so.

On May 6, 1971, the local board was directed by the state director of the selective service system to reopen and reconsider Gazda’s classification in order to comply with this court’s ruling in Scott.

On June 1, 1971, Gazda was requested to meet with the local board for an interview on June 8, 1971. Following the interview, which was rescheduled and held on July 13, the board reopened his classification and reclassified him I-A. On July 14, 1971, he was notified of the basis for the denial of his request for conscientious objector classification.

• On October 8, 1971, Gazda was ordered to report for induction on November 9, 1971. He failed to appear as ordered and this criminal proceeding followed.

To consider Gazda’s contention that his induction order was invalid it is necessary to review the relevant selective service regulations promulgated to implement the induction system. In November 1969, selective service regulations were amended by executive order to provide for induction by lottery. The regulations provided that those registrants between the ages of 19 to 26 who are classified I-A during the calendar year are placed in the First Priority Selection Group (FPSG) for that year. If the registrant’s random selection number is not reached during that year, the registrant is placed in a lower priority group. If the random selection number is reached during the year of first priority, the registrant is at that time subject to induction. It was recognized, however, that it might not be possible to issue induction orders during a calendar year to all registrants subject to induction during that year. The regulations thus provide that such registrants are automatically assigned to an Extended Priority Selection Group CEPSG) until April 1 of the following years. After volunteers, members of the EPSG are the first to be inducted during the calendar year.

A member of the EPSG who is not issued an order scheduling his induction prior to April 1 is assigned to a priority group lower than the FPSG and is eligible to be called only after members of the EPSG and FPSG for that year have been called. An exception to the April 1 deadline is provided for members of the EPSG “who could not be issued orders” prior to April 1. These registrants remain in the EPSG and “shall be ordered to report for induction as soon as practicable.” One court that has construed this regulation has stated:

[T]his court takes judicial notice of the basic broad purpose of the new random selection plan of call, which was and is to eliminate as much as possible the ambiguity and cruel uncertainty which heretofore accompanied a young man’s assessment of his military responsibility under the Selective Service Act.

United States v. Born, 338 F.Supp. 444, 447 (W.D.Mich.1972). The regulation was clearly intended to create only a narrow exception to the general rule that a registrant would face only a single year of uncertainty as to his induction.

Because Gazda’s random selection number was reached in 1970, and because he was not ordered to report for induction in that year, he was assigned to the EPSG on January 1, 1971. On January 5, he was ordered to report for induction. This order, however, was invalid under our decision in Scott v. Commanding Officer, supra. The second induction order, which is the basis of this prosecution, was not sent until October 8, 1971, well after the April 1 deadline. We are required to determine, therefore, whether that order, directing Gazda to report for induction on November 9, 1971, was valid under the exception in § 1631.7(d)(5).

Gazda contends that his local board “could have” issued a valid induction order prior to April 1, 1971, and thus the exception in § 1631.7(d) (5) is inapplicable. The Government, on the other hand, maintains that a pre-April 1 order could not have issued because of the “inability of the local board to act.” Gazda contests this, pointing out that the delay in issuing a valid order was due to the board’s failure to analyze and correct its files to comply with this court’s September 15, 1970, decision in Scott v. Commanding Officer. Because, Gazda maintains, compliance with Scott could have been effected prior to the April 1 deadline, this case does not present an instance of an “inability of the local board to act.” ■

The Government argues that during the period from January 25, 1971, when Gazda refused to report for induction, until May 6, 1971, when the state director ordered reprocessing, the local board was unable to act. During that period, Gazda’s file was being reviewed by state selective service headquarters pursuant to an administrative practice whereby files of alleged violators are reviewed for possible procedural errors prior to initiation of judicial proceedings. We disagree, however, that such procedures create the type of “inability” contemplated by § 1631.7(d)(5). Were state board review of local board files to automatically “toll” the April 1 deadline, state directors could effectively extend the vulnerability of registrants to induction for an indefinite period — the very result the regulation was designed to prevent.

The Government additionally represents, however, in its brief on appeal:

In 1971 there were 176 local boards in Pennsylvania. During that period the United States was experiencing the peak of draft resistance. Accordingly, the Pennsylvania State Headquarters was deluged with files of violators. The examination of a Selective Service file is an involved matter which requires both time and expertise. Some files run to a hundred or more pages. Under these circumstances the delay in directing Local Board No. 23 to reopen and classify Gazda anew was not unreasonable and certainly was not caused by any arbitrary or capricious action by State Headquarters or Local Board No. 23.

We need not decide whether, had these facts been presented in the record, such facts would constitute “inability” to correct Gazda’s file within the regulation’s time frame. It was conceded by counsel at oral argument that these facts were not before the district court. It is a settled principle that statements made by counsel in briefs are not part of the record and will not be treated as such unless stipulated to or a matter of public record. Kauffman v. Johnston, 454 F.2d 264 (3d Cir. 1972).

We note, moreover, that the local board took no action to correct its files during the interval of nearly four months between our decision in Scott and the board’s first induction order to Gazda. At least when the board informed Gazda on November 4, 1970, of its determination to retain him in the IA classification, its attention should have been directed to the Scott requirement that reasons be given for the denial of a conscientious objector claim. We are aware of no reason why local boards were not directed to apply the Scott rule to files for registrants whose conscientious objector claims were under active consideration after the date of Scott but who had not yet been issued orders to report for induction.

We agree with appellant that under the facts presented in this case the exception to § 1631.7(d)(5) allowing post-April 1 induction orders is inapplicable. Scott was decided on September 15, 1970. A period of six and one-half months remained until the April 1, 1971, deadline. The record contains no facts to justify the asserted inability to issue a valid induction order during that period. A time lag of such long duration to correct an original error of the board in failing to supply the registrant with reasons for the rejection of his conscientious objector claim defeats the basic purpose of the random selection plan of call, which was to eliminate “cruel uncertainty” theretofore characteristic of the Selective Service Act.

We believe this case is similar to United States v. Born, 338 F.Supp. 444 (W.D.Mich.1972), where the court dismissed an indictment for failing to submit to induction on the ground that the induction order was invalid under § 1631.7(d) (5). In Bom a pre-April 1 induction order was cancelled because of the local board’s failure to notify the registrant of a classification decision and his appeal rights. The court held a subsequent post-April 1 induction order, issued after the registrant’s file was reopened on April 23, invalid. The court stated:

In this case, the local board “could” have inducted Born before April 1, 1971. It was not “unable” to draft him but, rather, was precluded from complying with the regulatory deadline only by its own mismanagement .... [T]he § 1631.7(d)(5) April 1 deadline, if it is to be given any meaning must be read to provide that in such instances of error by the board, at least when undiscovered in time to permit correction before April 1, the burden of the error falls upon the board and not the registrant.

338 F.Supp. at 447.

The government relies on United States v. Lewis, 5 SSLR 3134 (D.Or.1972), aff’d, No. 73-1927 (September 8, 1972, 9th Cir.), and United States v. Adkins, 474 F.2d 381 (9th Cir. 1973), to support the contention that § 1631.-7(d)(5) should be construed to allow post-April 1 induction orders when the delay is caused by the board as well as by the registrant. In neither Lewis nor Adkins was there evidence of a prior procedural error made by the board nor was there evidence of an unreasonable delay in correcting a file in light of new information. Both factors are present in the instant case and lead to the conclusion that the board’s handling of Gazda’s file constituted “mismanagement.”

For the foregoing reasons, the October 8, 1971, order directing Gazda to report for induction is invalid. It is therefore unnecessary to discuss the other contentions presented. The judgment of the district court will be reversed.

      . In September 1968 Gazda had submitted the special form for conscientious objector status (SSS Form 150). No action on the conscientious objector claim was taken at that time because he then qualified for the II-A classification.

      . Scott was held retroactive in United States v. Crownfield, 439 F.2d 839 (3d Cir. 1971).

      . Gazda’s random selection number (lottery number) had been reached in 1970.

      . 32 C.F.R. § 1631.7(e)(2) (i).

      . 32 C.F.R. § 1631.7(d) (2).

      . Possible reasons for not issuing an order for induction to a registrant who is subject to induction include reclassification to I-A status late in the calendar year, and lengthy appeals taken from classification decisions.

      . 32 C.F.R. § 1631.7(d)(4).

      . 32 C.F.R. § 1631.7(b).

      . 32 C.F.R. § 1631.7(d)(5) at the time provided :
      Members of the Extended Priority Selection Group who have not been issued orders to report for induction and originally scheduled for a date prior to April 1 shall forthwith be assigned to the lower priority selection group to which they would have been assigned had they never been assigned to the Extended Priority Selection Group; except that members of the Extended Priority Selection Group who would have been ordered to report for induction to fill the last call in the first quarter of the calendar year but who could not be issued orders shall remain in the Extended Priority Selection Group and shall be ordered to report for induction as soon as practicable. Circumstances which would prevent such an order shall include but not be limited to those arising from a personal appearance, appeal, preinduction physical examination, reconsideration, judicial proceeding, or inability of the local board to act.

      . See also United States ex rel. Iverson v. Rhodes, 465 F.2d 402 (7th Cir. 1972) ; United States v. Block, 6 SSLR 3044 (D. Minn. January 3, 1972).