source: Caselaw Access Project

author: SEITZ, Chief Judge.

license: Public Domain

text:
    Rubylee DAVIS et al., Appellants in No. 73-1249. v. George W. ROMNEY, Individually and in his capacity as Secretary of Housing and Urban Development, et al., Appellants in No. 73-1420.
    Nos. 73-1249, 73-1420.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 25, 1973.
    Decided Jan. 14, 1974.
    As Amended Jan. 28, 1974.

      George D. Gould, Sally Akan, Jonathan M. Stein, Community Legal Services, Inc., Philadelphia, Pa., for plaintiffs-appellants in No. 73-1249 and for plaintiffs-appellees in No. 73-1420.
    Robert E. J. Curran, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., for appellees in No. 73-1249 and for appellants in No. 73-1420.
    Israel Packel, Atty. Gen., J. Justin Blewitt, Jr., Deputy Atty. Gen., amicus curiae.

      Before SEITZ, Chief Judge, and HUNTER and WEIS, Circuit Judges.
   OPINION OF THE COURT

SEITZ, Chief Judge.

Plaintiffs are five purchasers of homes whose mortgages were insured by the Federal Housing Administration (FHA). Insurance on these mortgages was issued under the “existing home” provisions of §§ 221 and 235 of the National Housing Act, 12 U.S.C. §§ 1715Í and 1715z (1970). Their complaint, on behalf of “all persons in the City of Philadelphia who have purchased, are in the process of purchasing, or may purchase in the future, homes under the 221(d)(2) and 235 Existing House Programs”, alleges that Philadelphia FHA officials violated the Act by insuring mortgages on homes that did not meet the requirements of Philadelphia’s Housing Code. The complaint asks for mandamus, injunctive and declaratory relief against officials of FHA and the Secretary of Housing and Urban Development (HUD), the depártment under which FHA operates. Plaintiffs also prayed for damages against the United States.

Plaintiffs moved for partial summary judgment supported by affidavits. Defendants filed no opposing affidavits but moved for dismissal of the complaint. The district court granted plaintiffs’ motion in part, declaring that the FHA officials had violated the Act and enjoining them from insuring mortgages on properties not complying with the Housing Code. The court denied defendant-officials’ motion to dismiss the complaint against them but granted the government’s motion to dismiss the portion of the complaint seeking damages against the United States. 355 F.Supp. 29 (E.D.Pa.1973). Plaintiffs appeal the dismissal of their damage complaint, and defendants appeal the grant of partial summary judgment to plaintiffs.

We turn first to the defendants’ appeal. Since they filed no counter affidavits they, of course, limit themselves to asserting reasons why the legal conclusions on which the summary judgment rests are erroneous.

STANDING

Defendants first contend that the district court was without jurisdiction to entertain the claims on which judgment was granted for plaintiffs because plaintiffs lack standing to sue for injunctive and declaratory relief. Where, as here, an action is brought in federal court challenging federal administrative action as inconsistent with a statute, the plaintiff must meet two requirements to show standing: (1) the challenged action must have injured some interest of the plaintiff, and (2) Congress must have intended that plaintiff be permitted to seek judicial review of such statutory violations. Sierra Club v. Morton, 405 U.S. 727, 733, 92 S.Ct. 1361, 31 L.Ed.2d 636. (1972); see Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153-154, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Defendants do not deny that plaintiffs have met the first standing requirement. Defendants do, however, contend that plaintiffs do not satisfy the second standing requirement. Unlike the first requirement, the requisite of Congressional authorization does not derive from the limitation of Article III courts to decision of eases or controversies; it is not designed to ensure a contest between adverse interests. Instead, the second standing requirement derives from Congressional power to regulate, within limits, jurisdiction of the federal courts. See Sierra Club v. Morton, supra at 732 n. 3 of 405 U.S., 92 S.Ct. 1361; Association of Data Processing Service Organizations v. Camp, supra at 154 of 397 U.S., 90 S.Ct. 827.

Although the precise limits of Congressional power over federal jurisdiction are not clearly drawn, it is settled law that Congress can in legislating confide certain decisions to the discretion of administrative officials, prohibiting judicial review of the correctness of those decisions. E. g., Switchmen’s Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943). Similarly, subject to due process dictates, Congress can provide for administrative action and limit to a specified class the right to seek judicial review. E. g., L. Singer & Sons v. Union Pacific Railroad Co., 311 U.S. 295, 61 S.Ct. 254, 85 L.Ed. 198 (1940). Thus, where administrative action is challenged as violative of a statute, federal courts must ascertain whether Congress has prohibited or provided for “review at the behest of the plaintiff.” Sierra Club v. Morton, supra at, 732 of 405 U.S., at 1365 of 92 S.Ct. [footnote omitted].

While it is not universally applicable, the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. (1970), generally serves as the starting point for determining Congressional intent regarding judicial review of federal administrative action. Section 10 of the APA, 5 U.S.C. § 702 (1970), provides that any person “adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” The Supreme Court has interpreted this language as providing review to anyone who has suffered injury to an interest that is “ ‘arguably within the zone of interests to be protected or regulated’ by the statutes that the agencies were claimed to have violated.” Sierra Club v. Morton, supra at 733, 92 S.Ct. at 1365 [footnote omitted]; Association of Data Processing Service Organizations v. Camp, supra at 153-156 of 397 U.S., 90 S.Ct. 827. Defendants urge us to hold that plaintiffs do not satisfy the zone of interests test that has been read into the APA’s standing provision.

The theory advanced by defendants in support of this contention is that plaintiffs’ injured interest is in having the FHA Philadelphia Office insure only mortgages on homes complying with Philadelphia’s Housing Code and that the allegedly violated provisions of the National Housing Act do not arguably protect this interest. We think that defendants misconceive the nature of the zone of interests test. The zone of interests test does not focus so precisely as defendants urge on the specifics of the complaint to determine the interest injured or on the allegedly violated statutory provision to determine the protection arguably afforded such interest.

Defendants argue that the relevant interest of plaintiffs for APA standing purposes is their interest in obtaining a remedy — FHA insurance of mortgages only on homes meeting housing code standards. That argument confuses the relevant interest for standing purposes under the APA with the merits of the case. This confusion is inherent in the “legal interest” test that some courts found embodied in the APA before the Supreme Court’s rejection of that interpretation in Data Processing. The District Court, following the Data Processing test for determining whether a person is adversely affected or aggrieved as that phrase is used in the APA, correctly looked not to the remedy sought, but to the effect the challenged administrative action had on plaintiffs. Plaintiffs alleged an interest in obtaining a “decent home”, and their pleadings and affidavits related facts showing that defendants’ actions had impaired their ability to secure a decent home. We agree with plaintiffs and the district court that this is the relevant interest and that a sufficient showing had been made that it was injured by the defendants’ actions.

Defendants’ contention that plaintiffs’ interest was not within the zone of interests of the allegedly violated statute also must fail. Defendants’ argument that we must look to the particular provision of the National Housing Act that defendants are charged with violating again confuses standing under the APA with the merits of plaintiffs’ claim. The district court complied with the Supreme Court’s Data Processing decision by examining the statute, not the particular provision, purportedly violated to ascertain whether plaintiffs were “aggrieved within the meaning of a relevant statute.” Beyond dispute, the interest of low-income families in obtaining “decent” housing is among the interests protected by the National Housing Act. Thorpe v. Housing Authority, 393 U.S. 268, 281, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969); see 1954 U.S.Code, Cong. & Ad.News, pp. 2723, 2757-2758; 38 Op. Att’y Gen. 258 (1935). We agree with the district court that plaintiffs have standing to maintain this action for injunctive and declaratory relief.

JURISDICTION

Defendants also contend that the district court lacked jurisdiction over the plaintiffs’ claims for injunctive and declaratory relief. Numerous jurisdictional grounds are asserted by plaintiffs. The district court found that it had jurisdiction on each of the asserted grounds, and defendants contest each finding. We reach only one of these findings: that the court below had jurisdiction under 28 U.S.C. § 1337 (1970). Section 1337, without qualification as to the amount in controversy, grants district courts jurisdiction over actions “arising under any Act of Congress regulating commerce . . . . ” Defendants argue that the National Housing Act, under which this suit arises, is not an act regulating commerce within the meaning of § 1337.

In support of their position, defendants cite Potrero Hill Community Action Committee v. Housing Authority, 410 F.2d 974 (9th Cir. 1969). In Potrero Hill, the Ninth Circuit held that the Housing Act constitutes welfare legislation, not legislation regulating commerce within § 1337. Id. at 979. The Potrero Hill court did not detail the analysis that supported its conclusion. Whatever reasoning supports that result, the law in this Circuit mandates a contrary conclusion. We stated in Imm v. Union Railroad Co., 289 F.2d 858 (3d Cir. 1961), that any act “based on the power of Congress to regulate interstate commerce” is an act regulating commerce within the meaning of § 1337. Id. at 860. Defendants urge that a qualification implicit in the unqualified language of Imm is that the commerce power must be a significant source of federal power in enacting a statute for it to be an act regulating commerce. See Murphy v. Colonial Federal Savings & Loan Association, 388 F.2d 609, 615 (2d Cir. 1967). Assuming such qualification to be embodied in Imm, we nonetheless find that the district court had jurisdiction over this case under § 1337. The commerce power clearly is a significant source of federal power for the National Housing Act, which was largely designed to stimulate the building trades and increase employment, see United States v. Emory, 314 U.S. 423, 430, 62 S.Ct. 317, 86 L.Ed. 315 (1941), and to control various aspects of interstate commerce connected with mortgage financing, see 38 Op.Att’y Gen. 258, 262 (1935).

One further contention advanced by defendants to contest jurisdiction here is that plaintiffs’ claim is frivolous and insubstantial, and, therefore, the court’s jurisdiction must fail. Where, as here, the only dispute is a matter of federal law, federal “[j]urisdiction ... is not defeated ... by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover.” Bell v. Hood, 327 U.S. 678, 682-683, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946) ; see Hart v. B. F. Keith Vaudeville Exchange, 262 U.S. 271, 273-274, 43 S.Ct. 540, 67 L.Ed. 977 (1923) (per Holmes, J.). Whether a cause of action has been stated in such cases is a matter of federal law that courts must exercise their jurisdiction to decide. Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 249, 71 S.Ct. 692, 95 L.Ed. 912 (1951); Bell v. Hood, supra at 682 of 327 U.S., 66 S.Ct. 773. Thus, we find that the district court had jurisdiction under § 1337 irrespective of the merits of plaintiffs’ complaint.

CLASS ACTION

Once over the jurisdictional hurdle, we must decide two questions of procedure before reaching defendants’ contention on the merits. The first procedural question defendants raise is whether this suit is properly a class action. Plaintiffs’ complaint seeks relief for the five named plaintiffs and for past, present and future Philadelphia purchasers of homes with mortgages insured under §§ 221 or 235 of the National Housing Act. Plaintiffs filed a motion for class action determination. Defendants did not oppose the motion below. They contend, however, that this cannot be treated as a class action because the district judge never entered an order determining this to be a class action.

Rule 23 of the Federal Rules of Civil Procedure declares that “[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.” Fed.R.Civ.P. 23(c)(1). Rule 23 also requires the district court to include in its judgment a description of “those whom the court finds to be members of the class.” Fed.R.Civ.P. 23(c)(3). The court below failed to comply with' either of the requirements set forth above.

Plaintiffs have the burden of showing that they represent a class. See J. Moore, 3B Moore’s Federal Practice ¶ 23.02-2 (2d Ed.1969). Because the class action determination affects the rights of class members not before the court, as well as named plaintiffs and defendants, it is not sufficient that plaintiffs make an uncontested motion for a class determination. The Rules impose the additional requirements of class determination and definition on the district judge. Relief cannot be granted to a class before an order has been entered determining that class treatment is proper. Cf. Dorfmann v. Boozer, 134 U.S.App.D.C. 272, 414 F.2d 1168, 1171 n.8 (1969). And, since the class was not defined by order or in the judgment below, neither the parties nor this Court has any way of knowing what class would be bound. In light of the failure to meet the plain requirements of Rule 23 for maintenance of a class action, we must view the claim for injunctive and declaratory relief as the individual claim of the named plaintiffs.

SUMMARY JUDGMENT — UNREQUESTED RELIEF

The second procedural point that must be resolved before reaching the merits is defendants’ contention that the District Court erred by granting relief on summary judgment not requested in plaintiffs’ motion for partial summary judgment. Defendants correctly note that plaintiffs’ motion made no explicit mention of injunctive or declaratory rejief. The plaintiffs’ complaint, however, had specifically requested such relief and the memorandum accompanying plaintiffs’ motion spoke to such relief, as well as to their prayer for damages.

Even were it not clear from these facts that the motion for partial summary judgment was intended to comprehend plaintiffs’ request for injunctive and declaratory relief, granting such relief here would not be error. Rule 54 of the Federal Rules of Civil Procedure states that, except in the case of default judgments, “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” Fed.R.Ciy.P. 54(c). The provision of Rule 54 is applicable to summary, as well as other, judgments. J. Moore, 6 Moore’s Federal Practice ¶ 54.62 (2d Ed. 1969). We, therefore, reject defendants’ contention that it was error for the court below to grant summary relief not explicitly requested in plaintiffs’ motion.

SUMMARY JUDGMENT — MERITS OF THE CLAIM

The essentials of the claim advanced by plaintiffs are relatively easily stated. 12 U.S.C. § 17151(d) (2) (1970) [§ 221(d) (2)], incorporated by reference in §1715z(i)(2) [§ 235], provides:

(d) To be eligible for insurance under this section, a mortgage shall— ^ .
******
(2) be secured by a property -. . . meeting the requirements of all State laws, or local ordinances or regulations, relating to the public health or safety, zoning, or other-
wise, which may be applicable thereto ....

Plaintiffs argue that the Philadelphia Housing Code is an ordinance applicable to homes in Philadelphia, that they purchased homes in Philadelphia, insured by FHA, which did not meet Code standards, and that the defendant-FHA and HUD officials, therefore, have violated the statutory directive. Defendants dispute each point of plaintiffs’ argument.

First, defendants claim that the Philadelphia Housing Code is not an applicable local ordinance within the meaning of § 221(d)(2). In support of this claim, defendants invoke statutory history, quoting a House Report’s statement that “[e]xisting housing units would be eligible under [§ 235] if the units meet standards prescribed by the Secretary [of HUD].” H.R.Rep.No.1585, 90th Cong., 2d Sess. 8 (1968), U.S.Code Cong. & Admin.News 1968, p. 2880. From this quoted statement, defendants urge us to find that housing approved for FHA mortgage insurance need only meet standards set by the Secretary of HUD and not local code standards. The remainder of the paragraph from which defendants quote, however, makes clear that the standards referred to do not supplant other statutory requirements such as compliance with local ordinances; instead, the paragraph refers to an additional limitation: mortgage insurance under § 235 is conditional on the Secretary’s allocation of sufficient FHA insurance funds to existing housing in the particular area. The Report encourages the Secretary to divide FHA insurance funds between new and existing housing in each geographical area in such a manner that the Congress’ long-range housing goals will be achieved.

The Housing Act does require properties to meet certain housing standards set by the Secretary of HUD, but the legislative history relevant to this requirement does not indicate that it qualifies the operation of the local ordinance provision. See 1959 U.S.Code, Cong. & Ad.News, p. 2857. The terms of the statute are clear, and we find no statutory history that casts doubt on our conclusion that the Philadelphia Housing Code is a local ordinance relating to the public health or safety applicable to homes in Philadelphia.

Defendants next argue that they have complied with the Philadelphia Housing Code. Having failed to file affidavits in opposition to the plaintiffs’ motion for summary judgment, defendants cannot contest the district court’s finding that plaintiffs’ homes do not, and did not at the time the FHA insured mortgages on them, meet Philadelphia Housing Code standards. Defendants’ contention instead is that they, not the homes, complied with the Code; the Code does not require an inspection before sale of an existing home; no inspection was made, hence no violations discovered. To require that FHA inspect homes to uncover Code violations before insuring mortgages on them would, defendants assert, impose on FHA an obligation not contained in the Code.

In considering defendants’ argument, we note that § 221(d)(2) requires not that the actions of FHA officials responsible for insuring mortgages comply with local regulations, but rather that the properties securing the FHA-insured mortgages comply. We need not, however, decide whether § 221(d)(2) requires that the FHA conduct inspections to assure that homes for which FHA has made tentative mortgage insurance commitments are free from all Code violations. Plaintiffs’ uncontested affidavits establish that Philadelphia FHA officials have not made any attempt to determine whether homes are subject even to major code violations. The narrowest reading we could give to § 221(d)(2) would require that defendants make reasonable efforts to ascertain that the homes securing FHA-insured mortgages meet Philadelphia Housing Code standards. Since the facts established below demonstrate that this has not been done, plaintiffs properly prevailed on the merits of their claim.

Finding merit in plaintiffs’ claim, we turn to defendants’ final contention: that named plaintiffs are not entitled to declaratory or injunctive relief. In part, this contention is a recast version of defendants’ argument on standing. Defendants urge us, in effect, to find that plaintiffs have no legal right to relief and, therefore, that their suit for declaratory and injunctive relief should be dismissed. Although the cases inquiring plaintiffs to have a “legal right” to satisfy standing requirements have been rejected, we are asked to find that plaintiffs must show a legal right to the relief granted.

Since the merger of law and equity sides in federal courts, there has been an increasing tendency to ignore the former distinctions between law and equity. Certainly, former procedural distinctions properly have been abandoned. See Fed.R.Civ.P. 1. Nonetheless, some differences remain. To secure relief on a claim at law, a plaintiff must, by definition, show that he has a “legal right.” Thus, one who seeks to secure damages for violation of a statute or.a constitutional provision must demonstrate a legislative or constitutional intention that the provision relied upon protects the specific plaintiff from harm and comprehends award of damages to him when such harm occurs. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 395-397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); J. I. Case Co. v. Borak, 377 U.S. 426, 431-433, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). Where, however, equitable remedies are sought, there is no requirement that the plaintiff be invested with a legal right. See Scripps-Howard Radio, Inc. v. Federal Communications Commission, 316 U.S. 4, 14-15, 62 S.Ct. 875, 86 L.Ed. 1229 (1942); Virginian Railway Co. v. System Federation No. 40, 300 U.S. 515, 551-552, 57 S.Ct. 592, 81 L.Ed. 789 (1937). Plaintiffs who satisfy constitutional and statutory standing requirements may obtain equitable relief against harm from administrative action even though the only legally protected interests are those of the public. See Merriam v. Kunzig, 476 F.2d 1233 (3d Cir. 1973); cf. Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970). We, therefore, reject defendants’ contention insofar as it would require plaintiffs to demonstrate a legal right to relief.

Before addressing the rest of defendants’ argument on this contention, we feel impelled to comment on the effect the Supreme Court’s recent decision in National Railroad Passenger Corp. v. National Association of Railroad Passengers, - U.S. -, 94 S.Ct. 690, 38 L.Ed.2d 646 (January 9, 1974), must have on our determination. The Supreme Court’s decision (hereinafter “Amtrak”), rendered after argument in this case, resulted in dismissal for failure to state a cause of action of a private injunctive suit to enforce the “Amtrak Act.” The only statute claimed to give the Amtrak plaintiffs a cause of action was the Amtrak Act, and after reviewing the pertinent legislative history, the Court concluded that Congress had intended to preclude injunctive suits for enforcement of the Act other than those specifically authorized in the Act.

We need not make a similar inquiry into the National Housing Act at this point since the plaintiffs here have asserted a valid cause of action for equitable relief under the Administrative Procedure Act. As relevant, the APA provides that “except to the extent that statutes preclude judicial review [a] person . . . adversely affected or aggrieved by agency action within the meaning of a relevant statute is entitled to judicial review thereof.” 5 U.S.C. §§ 701, 702 (1970). The form of action prescribed is “any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction . . . . ” 5 U.S.C. § 703 (1970). As set forth above, the plaintiffs meet the requirements of these APA provisions, and no question of unreviewability has been raised. We, thus, find no merit in defendants’ contention to the extent that it might, in light of Amtrak, be read as challenging plaintiffs’ statement of a cause of action.

Defendants’ contention, however, embraces another idea: that the relief granted plaintiffs must be calculated to redress the wrong to them. This idea clearly is incorporated into the federal law of declaratory judgments. In the early part of this century, the ability of federal courts to render declaratory judgments consistent with the Constitution was the subject of considerable debate. The debate ended with the Supreme Court’s decision in Aetna Life Insurance v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937). Haworth upheld the constitutionality of the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202 (1970), noting that the Act limited availability of declaratory judgments to instances of actual controversy between parties asserting adverse interests. 300 U.S. at 239-42. The Supreme Court has repeatedly reaffirmed the Haworth declaration that declaratory judgments are not appropriate for decision of abstract questions but must be confined to resolving the interests of contesting parties. Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969); United Public Workers v. Mitchell, 330 U.S. 75, 89, 67 S.Ct. 556, 91 L.Ed. 754 (1947); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 272-273, 61 S.Ct. 510, 85 L.Ed. 826 (1941).

To sustain the declaratory judgment, then, we must determine that the issue resolved was central to an immediate, legal dispute between the parties before the district court. We approach this determination cognizant of the district court’s significant discretion in the grant or withholding of declaratory judgment. See Samuel Goldwyn, Inc. v. United Artists Corp., 113 F.2d 703, 709 (3d Cir. 1940). Plaintiffs here allege a right to have their homes, bearing FHA-insured mortgages, comply with Philadelphia Housing Code standards; they seek declaratory, injunctive and damage relief. In light of the claims advanced by plaintiffs, we find that the district court did not abuse its discretion in rendering declaratory judgment: it was faced with a present controversy involving adverse legal interests; and the district court’s declaration concerning construction of § 221(d)(2) of the National Housing Act resolved an issue central to the dispute between the parties.

The argument may be advanced that the declaratory judgment rendered failed to settle the rights of the named parties. See United States Fidelity & Guaranty Co. v. Koch, 102 F.2d 288, 294 (3d Cir. 1939); J. Moore, 6A Moore’s Federal Practice ¶ 57.08 [4] (2d Ed. 1969). Were the district court faced with the claim for declaratory judgment alone, its declaratory judgment, which only construes the statute and does not declare the rights of parties before it to further relief, might be subject to attack as a mere abstract declaration of law. Declaratory judgments, however, are available where appropriate even though other remedies are also available, 28 U.S.C. § 2201 (1970), and here the district court was required to rule on claims for injunctive and damage, as well as declaratory, relief. Where in the same suit a district court determines the rights of specific parties to other relief, we cannot say that a declaratory judgment limited to construction of the statute from which plaintiffs claimed their right to relief flowed is an abstract declaration.

Defendants’ contention that the relief granted was improper extends to injunctive as well as declaratory relief. While plaintiffs may secure redress for violations of the National Housing Act even though they have no legal right to administrative compliance with the Act, plaintiffs are entitled only to redress of their personal grievances. Injunctions, which carry possible contempt penalties for their violation must be tailored to remedy the specific harms shown rather than to “enjoin ‘all possible breaches of the law.’ ” Hartford-Empire Co. v. United States, 323 U.S. 386, 410, 65 S.Ct. 373, 385, 89 L.Ed. 322 (1945); Swift & Co. v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 49 L.Ed. 518 (1905). The injunction sought and granted below does not affect plaintiffs in any way. The injunction prevents defendants from insuring mortgages under the §§ 221 and 235 programs on homes in Philadelphia that do not comply with the Philadelphia Housing Code. None of the plaintiffs alleges any intent to purchase another home under those programs. Plaintiffs instead allege that they are now living in homes not meeting Code standards and are unable to secure funds to repair their homes. We find that the injunction granted by the district court was not framed to remedy the harm to plaintiffs. The order of the court below granting injunctive relief will be vacated and the cause remanded so that, if possible, an injunction may issue more narrowly drawn to meet the needs of this case.

JURISDICTION OVER DAMAGE CLAIM — TUCKER ACT

We now take up consideration of plaintiffs’ appeal from dismissal of their claim for damages. The district judge stated as his reason for dismissing the damage claim that the court lacked jurisdiction over the claim. Plaintiffs argue that the court below confused lack of jurisdiction with failure to state a claim. Defendant on the damage claim, the United States, would find no distinction between those grounds, for reasons we will discuss later, and asks us to read the district court opinion as properly finding that jurisdiction did not exist and that no claim was stated on which relief could be granted. We consider both grounds asserted to justify dismissal.

The jurisdictional basis asserted by plaintiffs is the Tucker Act provision giving district courts jurisdiction, concurrent with the Court of Claims, over claims “against the United States, not exceeding $10,000 in amount, founded either upon the Constitution or any Act of Congress . . . .”28 U.S.C. § 1346(a)(2) (1970). The district court held that plaintiffs’ claim for damages was not “founded upon” an Act of Congress within the meaning of the Tucker Act. The district court’s reasoning, advanced by the United States on appeal, was that the Tucker Act grants jurisdiction to award damages to persons who have a statutory right to receive a sum of money; and, since the District Court found that the National Housing Act confers no such right on plaintiffs, the court decided that it had no Tucker Act jurisdiction. We disagree.

As we noted above in connection with the jurisdictional arguments of defendants to the claims for declaratory and injunctive relief, jurisdiction is not defeated by the possibility that plaintiffs will not be entitled to recover. Plaintiffs allege that the National Housing Act implicitly grants them the right to receive damages from the United States for violation of specific provisions. They have asserted a claim “founded upon” an Act of Congress, and their allegation supports the district court’s jurisdiction to decide the merits of their claim. We reject any statement to the contrary contained in Eastport Steamship Corp. v. United States, 372 F.2d 1002, 178 Ct.Cl. 599 (1967), on which the court below relied.

FAILURE TO STATE A CLAIM

The United States also urges us to affirm the dismissal on the ground that plaintiffs failed to state a claim upon which relief could be granted, again advancing the argument that the Tucker Act provides for damage awards only to persons having a right to receive money from the government. Under the view argued by the government, and adopted by the district court, the Tucker Act restores money improperly taken or releases money improperly withheld, but affords no damage remedy for other statutory violations. Plaintiffs assert both that they have a right under the National Housing Act to receive money and that a damage remedy should be implied to protect them from harm where the government fails to comply with the “local ordinance” provision of § 221(d)(2).

The second part of plaintiffs’ argument addresses itself to a different point than that primarily argued by the United States. This latter part of plaintiffs’ argument is relevant to the existence, or absence, of a cause of action for damages fairly to be inferred from § 221(d)(2). The first part of plaintiffs’ argument is relevant to a different point, on which issue is joined by the government: whether the Tucker Act waiver of sovereign immunity extends to damage recoveries on causes of action other than for money wrongly withheld or for property wrongly taken. We do not pass on the scope of the Tucker Act’s waiver of sovereign immunity because we find that plaintiffs have failed to show that a right to damages is implicit in § 221(d)(2).

In order to find a damage remedy implicit in § 221(d) (2), we must determine (1) that the purpose of the provision violated is to protect the class of persons to which plaintiffs belong, and (2) that a damage remedy is necessary to effectuate that purpose. Bivens v. Six Unknown Named Agents, supra at 395-397 of 403 U.S., 91 S.Ct. 1999; J. I. Case Co. v. Borak, supra at 431-433 of 377 U.S., 84 S.Ct. 1555. We are unable to find that § 221(d)(2) was designed to protect plaintiffs. The legislative history is devoid of any clear statement of the purpose for the requirement that homes insured by FHA mortgages comply with local ordinances and regulations. The wording of the provision (requiring that, to be eligible for insurance, mortgages be secured by properties complying with local ordinances) and the context in which it was adopted (as part of a section regulating loan ratios and maximum property value insurable, and permitting other financial restrictions to be imposed as prerequisites to mortgage insurance) support the government’s contention that the provision was intended to assure the United States of adequate security for the mortgages FHA insured. See 1959 U.S.Code, Cong. & Ad.News, p. 2857. Given the absence of a clear Congressional intent that § 221(d) (2)’s local ordinance provision protects prospective homeowners, we find no cause of action for damages implicit in the section. The district court order dismissing plaintiffs’ claim for damages was correct.

The case is remanded for further proceedings consistent with this opinion.

      . These provisions allow the FHA to insure mortgages for nearly the full value of certain homes purchased by persons with incomes below stated levels. The existing home programs also contain limitations on the value of the home; mortgage insurance under these programs may be issued only on homes of low or moderate value. § 235 of the National Housing Act also provides in some eases for mortgage assistance payments to be made by FHA. Two of the named plaintiffs receive such payments.

      . No argument is advanced by any party to except this case from the generally applicable provisions of the APA.

      . If there were a question whether Congress liad placed the particular decision challenged here outside the pale of judicial review, we would, in order to resolve that question, be required to examine the specific provision of the National Housing Act allegedly violated before reaching the merits. See Association of Data Processing Serv. Organizations v. Camp, 397 U.S. 150, 156-157, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). No question of unreviewability is, however, raised here, and our decision as to justiciability thus is limited to ensuring that plaintiffs have standing under Article III and § 10(a) of the APA; we do not here purport to interpret the provisions on reviewability contained in the introductory sentence to § 10 and in § 10(c) of the APA, 5 U.S.C. § 701 (1970). See Shannon v. Department of Housing and Urban Dev., 436 F.2d 809, 818-819 (3d Cir. 1970).

      . The paragraph relied on by defendants reads:
      Existing housing units, however, would be eligible under this program if the units meet standards prescribed by the Secretary. The committee expects that the Secretary will allocate contract funds between existing and new housing units in a manner which fur-, thers the long-range housing goal of providing a decent living environment for all American families. It further expects that, in areas where the housing market is tight and added demand for existing housing could seriously inflate prices, the Secretary will generally permit assistance only with respect to new or substantially rehabilitated dwellings.

      . In a case sucli as this, where the injunction does not aid plaintiffs in any way, it is not necessary to balance carefully the various factors that control the issuance and scope of injunctions to determine if the nro"er protection has been afforded interests of plaintiffs, defendants and the public. But, while there is no need to articulate it, we recognize that the balancing of those interests, in gross, underlies our decision. See cases cited in J. Moore, 7 Moore’s Federal Practice ¶ 65.18 [3] (2d Ed. 1969).

      . The Tucker Act, in providing for district court jurisdiction over certain claims, has been construed as a waiver of sovereign immunity. And while the presence or absence of jurisdiction must be determined, accepting plaintiffs’ allegations as true, the extent of the government’s waiver of sovereign immunity is unaffected by the complaint. It thus may be possible for the complaint to state a claim “founded upon” an Act of Congress for jurisdiction purposes yet outside that language for immunity purposes.

      . The distinction between these points is probably best illustrated by reference to the Supreme Court’s decision in Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Bivens was a damage suit against government agents for violation of plaintiffs’ Fourth Amendment right to freedom from unreasonable searches. The Court held that plaintiffs had stated a cause of action and remanded to the Court of Appeals to determine if relief was barred by immunity.
      The United States claims that it has consented to suit only in cases where the plaintiff had a right to money or property. Had the Bivens plaintiffs sued the United States, the government presumably would have argued on remand that, while a cause of action for damages could be inferred from the Fourth Amendment, sovereign immunity bars recovery because the Fourth Amendment grants no right to receive money, but only a right to be free from certain searches. We do not intimate any view concerning the validity of this approach.


author: AINSWORTH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles Daryll BRYANT and James Bob Impson, Defendants-Appellants.
    No. 73-2257.
    United States Court of Appeals, Fifth Circuit.
    March 18, 1974.
    Rehearing and Rehearing Eh Bane Denied April 16, 1974.

      Melvyn Carson Bruder, Dallas, Tex., for defendants-appellants.
    Roby Hadden, U. S. Atty., Dennis R. Lewis, Asst. U. S. Atty., Tyler, Tex., for plaintiff-appellee.
    Before COLEMAN, AINSWORTH and GEE, Circuit Judges.
   AINSWORTH, Circuit Judge:

Bryant and Impson were jointly charged and tried on a three-count indictment for violations of 18 U.S.C. §§ 2312, 2313 and 2314, respectively, relative to transporting and receiving a vehicle — a front-end loader — in interstate comtnerce. Bryant was found guilty on Count 2, Impson on Counts 1 and 2, Count 3 having been dismissed by the Government against both defendants. Both defendants appeal.

On July 15, 1970, Road Machinery, Inc. purchased from Allis-Chalmers Manufacturing Company a front-end loader bearing the following identifying numbers: Model No. 645, Serial No. 24S02984, Transmission No. 26624, Axle No. 3-70-0006. The vehicle was assembled at the Allis-Chalmers plant at Deer-field, Illinois, and shipped to Road Machinery, Inc. at Doraville, Georgia. On October 12, 1970, an Allis-Chalmers front-end loader, Model No. 645, was determined to be missing from the Road Machinery plant at Macon, Georgia. Fresh wheel tracks indicated that the vehicle had been driven from the front yard area where it had been previously placed. The local police were notified that the vehicle was missing. On May 12, 1971, an Allis-Chalmers front-end loader, bearing the same transmission and axle numbers as those on the vehicle sold to Road Machinery in July 1970 but with the serial number missing, was recovered in a rural area in the vicinity of McKinney, Texas, when a Texas highway patrolman stopped a large truck in which appellant Bryant was a passenger. The reason for stopping the truck was that it was pulling a trailer carrying an excessive and oversized load, an Allis-Chalmers front-end loader, and the trailer lacked the requisite motor vehicle inspection certificate. Just minutes prior to this incident the same highway patrolman had stopped appellant Impson who was driving a Lincoln Continental automobile. The front-end loader was later determined to be the same vehicle stolen from Georgia. Both appellants were subsequently arrested and charged.

At the trial Impson presented no testimony nor did he elect to testify. Bryant, however, testified and introduced testimony of several witnesses in an attempt to establish that he was unaware that the front-end loader had been stolen.

Appellants make numerous contentions on appeal, none of which warrants the granting of new trials or reversal of their convictions. We affirm.

The evidence was sufficient to prove identity of the stolen vehicle.

In order to sustain a conviction under the pertinent statutes the stolen vehicle and the vehicle found in possession of the accused must be identical. While there must be some evidence of common characteristics other than color, make and model of the vehicle, in order to establish proof, identity of the engine serial number is not required. United States v. Johnson, 5 Cir., 1969, 413 F.2d 1396; Watkins v. United States, 5 Cir., 1969, 409 F.2d 1382. The Government’s evidence showed that in the place where the engine serial number plate would normally be affixed there were instead four holes and that the number plate is easily removable with a screwdriver or tin snips, as are the axle and transmission number plates. The axle serial number plate is affixed to the rear face of the main housing and is accessible only by crawling beneath the vehicle; the transmission serial number plate is similarly affixed to the lower outside face of the transmission. Although the serial number plates could conceivably be interchanged, this is not probable; it would result in damage to the light aluminum plates which are fastened by metal drive screws that tap themselves as they are driven in. A jury could reasonably have concluded that the less accessible, less obviously placed axle and transmission number plates were inadvertently overlooked by the person or persons who removed the engine serial plate. The make and model as well as the axle and transmission numbers of the recovered vehicle were identical to those of the stolen vehicle. Under the circumstances, we consider this ample proof of identity.

The evidence was sufficient to establish Bryant’s guilt.

Appellant Bryant contends that the Government failed to prove his possession, either actual or constructive, of the stolen vehicle, a necessary element for conviction under 18 U.S.C. § 2313. We do not agree. Approximately six weeks prior to the arrest, appellants hauled the No. 645 front-end loader on a truck to the property of James Graham in the vicinity of Branch, Texas, for repairs to be performed by Graham. Bryant rode in the cab of the truck driven by Impson. When they arrived at their destination both Bryant and Imp-son attempted to unload the vehicle. However, it was necessary to secure additional assistance, and Bryant and Imp-son were left with the vehicle while Graham telephoned for wrecker service, which arrived about 45 minutes later. When the unloading was eventually accomplished, it was Bryant who paid the mechanic for his services, although Bryant testified that the money was furnished by Impson for that purpose. The loader was eventually repaired by Graham and plans were made to pick it up. On May 12, 1971, Impson in the company of Bryant rented a tractor-trailer and a driver from Karel Pekarek. An arrangement was made for the hired driver, Clifton Eugene Forrest, to follow Bryant and Impson to the vicinity of Branch, Texas, where they would load the vehicle on to the trailer and haul it to Sulphur Springs, Texas. With the assistance of Bryant, Forrest secured the loader to a trailer by the use of a chain and boom. Bryant and Forrest then proceeded toward Sulphur Springs, Texas, but were stopped and arrested when they reached the vicinity of McKinney, Texas. The district court in a very thorough and comprehensive charge properly instructed the jury on the types of possession cognizable under the law in the following language:

“The law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly had direct physical control over a thing at a given time is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it.
“The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint.
“You may find that the element of possession, as that term is used in these instructions, is present if you find beyond a reasonable doubt that the accused had actual or constructive possession, either alone or jointly with the others.”

Viewing the record and inferences in the light most favorable to the Government we cannot say that the evidence was insufficient to convince a jury that Bryant was in possession of the front-end loader. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942). Mere possession, of course, unaccompanied by knowledge of the possessor that the vehicle is stolen, is insufficient to sustain a conviction under 18 U.S.C. § 2313, and the trial court so instructed. In order to show lack of such knowledge Bryant attempted to prove that he relied on Impson’s representations that he was the lawful owner of the vehicle, and introduced for that purpose a bill of sale dated March 31, 1971 showing Impson as the purchaser and J. L. Williams and James L. Wilson, partners, doing business as Universal Constructors, as sellers. In rebuttal the Government offered evidence from various sources tending to show that the purported sale was a sham and a fraud and so obviously fictitious that Bryant could not reasonably have been deluded by it. The jury’s verdict demonstrates that it did not accept Bryant’s explanation of his participation in the handling of the vehicle and thus ascribed guilty knowledge to him.

Evidence of an extraneous offense relating to a “backhoe” was properly admitted against Impson and Bryant.

The Government’s evidence showed that on or about December 12, 1970, a backhoe, a heavy tractor, was stolen from the B & D Company at Dallas, Texas. In late December 1970 or early January 1971, appellant Impson telephoned James R. Graham and informed him that he had a backhoe which he was interested in selling. Graham contacted a friend, Johnny Broyles, who was desirous of purchasing a backhoe, and a meeting between Graham, Broyles and Imp-son was subsequently arranged by Graham to be held at a cafe in McKinney, Texas. Bryant was also present at the cafe during the meeting. All four men then rode out to where the backhoe was parked, about three miles from McKinney, Texas. Impson drove his car accompanied by Bryant. Impson then drove the truck-trailer on which the backhoe was loaded to Broyles’ place of business where the four men again met. Negotiations for the sale were subsequently completed and Broyles purchased the equipment. In May 1971 the backhoe was identified by its rightful owner to be the one stolen from the B & D Company and it was subsequently seized in Denton County, Texas, by a deputy sheriff. Over objection of appellants the district court admitted the evidence pertaining to the backhoe for the limited purpose of showing state of mind or intent of the defendants, and so charged the jury.

Appellants contend that there was a fatal flaw in the backhoe evidence inasmuch as that vehicle had moved only in intrastate commerce within the State of Texas, whereas interstate commerce is a crucial element of a prosecution under the pertinent statutes, citing United States v. Broadway, 5 Cir., 1973, 477 F.2d 991. In Broadway there was a lack of similarity between mere endorsement of forged money orders and endorsement plus cashing of forged money orders. The latter offense was the offense charged and cashing or uttering was necessary to put the money orders in the flow of interstate commerce, an essential element for conviction. Without the element of transportation the prior acts constituted no offense, state or federal. In the instant case, the prior act of defendants required no additional element of interstate transportation to constitute an offense, although a state offense. In Broadway “the government’s direct proof was slim” on the issues of intent and guilty knowledge, 477 F.2d at 994, and the other offenses were “offered to shore up a weak case as to intent and guilty knowledge.” 477 F.2d at 995. This is not true in the present case, and although Impson appears to have been the spokesman and leader, the evidence is nonetheless conclusive that Bryant, as well as Impson, knew that the equipment was stolen.

Generally the admission of prior acts of misconduct of a defendant is not permitted. However, we have long subscribed to the exception to that rule which permits the introduction of proof of prior acts to establish knowledge or intent where such an element is an essential element of the offense charged, such prior acts are similar, and are not too remote in time from the offense charged. Weiss v. United States, 5 Cir., 1941, 122 F.2d 675; Gilstrap v. United States, 5 Cir., 1968, 389 F.2d 6.

We stressed the necessity for similarity of extraneous offenses in United States v. Broadway, supra. However, the similarity contemplated by the exception is a matter of relevancy and is “judged by the degree in which the prior acts approaches near identity with the elements of the offense charge. There is no necessity for synonymity but there must be substantial relevancy for purposes other than to show the probability that the person committed the offense being tried because he is a man of criminal character.” United States v. Kasouris, 5 Cir., 1973, 474 F.2d 689, 692. See also United States v. Mancuso, 5 Cir., 1970, 423 F.2d 23, in which we found the nature of nine prior offenses involving either forgery or false pretense similar to a Dyer Act offense with which defendant was charged, and upheld the introduction in evidence of those offenses for the limited purpose of showing intent.

We have no difficulty here in finding similarity between the prior acts and the offenses charged. The backhoe and front-end loader road tractors are both characterized as heavy equipment. They were both determined to be missing at approximately the same time. It is apparent that the testimony regarding the missing backhoe bore heavily on the question of criminal intent, an element necessary for the Government to establish under each count of the indictment, and we find no infirmity in its admission in evidence.

There was no impropriety in the exclusion of so-called exculpatory material offered by Bryant.

Bryant attempted to offer evidence showing various transactions by Impson in connection with the front-end loader. By using the vehicle as collateral, and furnishing a promissory note executed by him and a co-signer, Clarence Stark, Impson obtained a loan of $12,000 from the Southwestern Investment Company. Impson and Stark defaulted on payment and Southwestern filed suit for the amount due, alleging in its petition its belief that Impson's purported purchase of the vehicle was fictitious. Imp-son also obtained theft insurance on the vehicle and thereafter filed a claim against the insurer alleging theft. Based on a defense of Impson’s fraudulent misrepresentations relative to the ownership of the loader, the insurer obtained a judgment against Impson. Thus Bryant attempted to show Imp-son’s claim of exclusive ownership of the loader and Bryant’s reliance thereon. These transactions occurred subsequent to the time when Bryant was shown to have possessed the vehicle. Acceptance or rejection of evidence is a matter within the trial court’s broad discretion, which will not be disturbed on appeal except on a showing of abuse. United States v. Abshire, 5 Cir., 1972, 471 F.2d 116; United States v. Garr, 5 Cir., 1972, 461 F.2d 487. We find no such abuse here.

Evidence that Impson had previously been convicted was harmless error.

During cross-examination by Government counsel Bryant was asked:

Q. Have you ever had any more transactions with Mr. Impson regarding a front-end loader or backhoe or a similar piece of equipment ?

Bryant replied:

A. I haven’t had any transactions with Mr. Impson for the last six months since he was counterfeit convicted.

Counsel for Impson requested that the remark be stricken and that the court declare a mistrial. The trial judge immediately admonished the jury to disregard for all purposes the answer of the witness. Then, out of the presence of the jury, the judge reprimanded Bryant and cautioned him not to refer again to any misconduct or conviction of Impson. The court refused to declare a mistrial.

Appellants contend that the instruction could not eradicate the prejudice inherent in such evidence. We do not agree. See, for example United States v. Pritchard, 5 Cir., 1969, 417 F.2d 327, in which evidence of a prior conviction of a defendant elicited from him by the Government was held harmless error where the jury was instructed to disregard it. It is a well-settled rule in this circuit that evidence erroneously admitted may be cured in most circumstances by withdrawing it from the jury’s consideration and instructing the jury to disregard it, as was done in this case. See United States v. Troise, 5 Cir., 1973, 483 F.2d 615; United States v. Pritchard, supra; Hill v. United States, 5 Cir., 1966, 363 F.2d 176; Conner v. United States, 5 Cir., 1963, 322 F.2d 647; Fahning v. United States, 5 Cir., 1962, 299 F.2d 579; Helton v. United States, 5 Cir., 1955, 221 F.2d 338. The Supreme Court has declined to hold that all errors, even constitutional errors, “regardless of the facts and circumstances, must always be deemed harmful.” Chapman v. State of California, 386 U.S. 18, 21, 87 S.Ct. 824, 827, 17 L.Ed.2d 705, 709 (1967). Where such evidence, in the opinion of the court after reading the record, has little impact on the mind of the jury and the evidence of guilt is overwhelming, the error may be considered harmless. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); United States v. Steinkoenig, 5 Cir., 1973, 487 F.2d 225. This is such a case, and in light of the fact that the trial judge withdrew the evidence from the jury and directed them to disregard it, the error was harmless.

The Government’s rebuttal evidence relative to the purported bill of sale furnished to Impson was properly admitted.

As already indicated, Bryant contends that he relied in good faith on Impson’s representations of ownership of the front-end loader. It was appropriate under the circumstances for the Government to rebut Bryant’s assertion of innocence by producing evidence which showed not only that the bill of sale was fraudulent but, because of the transparency of the fraud, that it was unreasonable to believe that Bryant relied on it. Appellants contend, however, that in regard to Impson the evidence was prejudicial and outside the scope of rebuttal. We do not agree. Appellants concede in their brief on appeal that the court instructed the jury that the evidence should be considered only against Bryant. In view of this instruction and the overwhelming evidence of Impson’s guilt, we find no merit to this contention.

The defendants were not entitled to severance.

Under Rule 14 of the Federal Rules of Criminal Procedure, separate trials may be granted if defendants can show that prejudice would result from their joinder. The existence of prejudice depends largely on the facts and circumstances of each ease. Therefore, the granting or denial of a severance is a matter of discretion within the province of the trial court, which ruling will rarely be disturbed unless the movant makes a positive showing that he has been prejudiced by the ruling. Tillman v. United States, 5 Cir., 1969, 406 F.2d 930, 934; United States v. Kershner, 5 Cir., 1970, 432 F.2d 1066, 1071; United States v. Edwards, 5 Cir., 1974, 488 F.2d 1154, 1160; United States v. Pacheco, 5 Cir., 1974, 489 F.2d 554. We have examined appellants’ allegations of prejudice under the various issues presented, and have found nothing more than a theory that separate trials might afford a better chance of acquittal. This is no justification for the granting of a severance. Tillman v. United States, supra, 406 F.2d at 934.

The trial was a lengthy one, lasting seven days, the witnesses were numerous and the documentary evidence was abundant. As a consequence, objections from all parties abounded and the district judge had a tedious job keeping the trial within the proper bounds to assure the defendants a fair trial. A fair trial, not a perfect one, is all they were entitled to, United States v. Harden, 5 Cir., 1972, 469 F.2d 65; United States v. Calles, 5 Cir., 1973, 482 F.2d 1155, and in our opinion this is what they received.

Affirmed.

      . 18 U.S.C. § 2312:
      “Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.”
      18 U.S.C. § 2313:
      “Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five five years, or both.”
      The count under 18 U.S.C. § 2314 was withdrawn.

      . Appellants make the following contentions on appeal:
      1. The evidence was insufficient to prove that the vehicle seized, possession of which was attributed to the defendants, was the vehicle alleged to have been stolen.
      2. The evidence was insufficient to establish Bryant’s guilt.
      3. The Government was improperly allowed to adduce evidence of an extraneous offense, that is, the purported theft of a motor vehicle known as a “backhoe.”
      4. The backhoe transaction was inadmissible as evidence against Bryant.
      5. The trial court improperly excluded relevant, material and exculpatory evidence of- , fered by Bryant.
      6. Evidence that Impson had previously been convicted of counterfeiting tainted his convictions.
      7. Testimony that the bill of sale for the loader tendered by Impson to Bryant was not valid was outside the scope of rebuttal as to Impson and prejudiced him.
      8. The defendants were entitled to, and the court should have granted, a severance to each defendant.

      . Other circumstances bear on this issue. Bryant testified that he liad never been in Macon, Georgia. However, he had been employed by Wheeling Auto Crushers until May 1971, and as late as March or April 1970 Bryant was known to have been in Brunswick, Georgia, where the company was then operating. Wheeling used equipment similar to, but smaller than, the stolen front-end loader. In October 1970, Road Machinery Company at Macon, Georgia (the plant from which the loader was stolen that month) repaired another front-end loader for Bryant’s brother-in-law, Roy Miller, the owner of Wheeling Auto Crushers. The business card which Miller presented when the repairs were made shows both his name and that of Bryant’s. In the latter part of 1970, Bob Impson was seen at Macon, Georgia, at the wrecking yard of Wheeling by one of its employees.


text:
    Joaquin RIVERA, Appellant, v. Veme La CROSSE, Defendant and Third Party Plaintiff. CARIBBEAN TIRE, INC., Defendant, v. VIRGIN ISLANDS NATIONAL BANK, Third Party Plaintiff.
    No. 73-1438.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 4, 1973.
    Decided Jan. 31, 1974.
    Joseph L. Costello, Bryant, Costello & Burke, Christiansted, St. Croix, V. I., for appellant.
    Edward J. Ocean, Christiansted, St. Croix, V. I., for defendant-appellee.
    Before SEITZ, Chief Judge, and MARIS and GIBBONS, Circuit Judges.
   OPINION OF THE COURT

SEITZ, Chief Judge.

Plaintiff, landowner sued in the district court, inter alia, to terminate a lease with defendant La Crosse (hereinafter Tenant) and to evict the sublessee-defendant, Caribbean Tire, Inc. The lease in question, drafted by Tenant’s attorney and executed in June 1963, was for a term of ten years. It provided that Tenant had an option to renew for an additional ten years. The lease identified the vacant plot of land belonging to plaintiff and recited that Tenant intended to erect a building to house a self-service laundry. The lease was to be null and void if either of the following events occurred: (a) the Virgin Islands Planning Board refused to grant a special exception to permit the use of the area for a self-service laundry; or (b) Tenant was unable to construct or cause to be constructed a building for the operation of a self-service laundry on the premises.

Plaintiff assisted Tenant in obtaining a special exception from the Planning Board so that the property could be used as a self-service laundry. Tenant constructed the building, installed the necessary equipment and proceeded to operate a self-service laundry. After about seven years he ceased such operation for financial reasons. He sublet the premises to defendant Caribbean Tire, Inc. which, in the fall of 1970, began to use the premises for a general parts shop and tire repair business. The plaintiff gave written notice to both defendants to vacate the premises. When the notice was ignored, this action was commenced.

The district court entered judgment in defendants’ favor. The court ruled that the lease did not reflect an intention that only a self-service laundry should be operated on the premises. The court concluded, therefore, that Tenant was entitled to sublet the premises for other uses.

Although restrictions on use are said to be disfavored by law, such restrictions will be enforced if express or clearly implied in the lease. The restriction here is not express, but plaintiff contends that an intention to limit the use of the leased property to the operation of a self-service laundry is clearly implied in the lease. Certainly, the parties contemplated use of the property to operate a laundry. Paragraph 2 of the lease makes explicit Tenant’s intention to use the property for such operation; paragraph 18 makes the lease arrangement contingent on the occurrence of certain events necessary to Tenant’s operation of a self-service laundry on the property; paragraph 5 grants Tenant the right to cause connections to be made to sewer lines to dispose of waste incident to the operation of a self-service laundry; and paragraph 17 prohibits the plaintiff from allowing certain adjacent property, also owned by him, to be used for the operation of any other laundry.

It is not sufficient, however, that the parties intended the property to be used for a self-service laundry. To prevail, plaintiff must show that the parties intended that the land be used for no other purpose. We think that plaintiff has satisfied this burden. In addition to the lease provisions noted above, the lease specifies the type of financing to be used to obtain funds for construction of the building housing the laundry. Plaintiff agreed to execute a mortgage, limited in both amount and time, to enable Tenant to secure financing for construction of the laundry building. Under the terms of paragraph 14, Tenant is allowed to sublet the building, “provided, however, that in the event that Tenant sells the self-service laundry, Tenant shall be relieved of all liability under this lease only if the mortgage is paid off and cancelled of record.” This provision reflects an intention that the property only be used as a laundry; if the use of the property were not limited to operation of a laundry, this provision might result in relieving Tenant of liability to the plaintiff in the event he used the premises for another business and then sold it.

Any remaining doubt as to the parties’ intent to restrict the use of the property is resolved by paragraph 11 of the lease. Paragraph 11 provides that for the renewal period Tenant would pay as rent “the greater of: (a) $100.00 per month, or (b) a figure equal to six (6%) per cent of the average monthly gross income received by Tenant in the operation of the self-service laundry during the last calendar year of the lease.” We cannot see how this provision could be fully implemented except by the continued operation of a self-service laundry.

We conclude, therefore, that the provisions of the lease clearly evidence an intent that the leased premises were to be used solely for the operation of a self-service laundry. Tenant violated the lease agreement when he sublet the premises for another use.

The judgment of the district court will be reversed.


text:
    LIBERTY SPORTSWEAR CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 73-1300.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 29, 1974.
    Decided Feb. 4, 1974.
    Charles Hampton White, Nashville, Tenn., on brief, for petitioner.
    Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Asst. Gen. Counsel, Allison W. Brown, Jr., Stuart M. Rosenblum, Attys., National Labor Relations Board, Washington, D. C., on brief, for respondent.
    Before WEICK, LIVELY and ENG-EL, Circuit Judges.
   ORDER

This case is before us on a petition to review and a cross-application to enforce an Order of the National Labor Relations Board, reported at 201 NLRB No. 96.

The Board found that the company had violated Section 8(a)(3) and (1) of the Act by warning and threatening its employee, Myrtle Woods, for her pro-union activity, and later by discharging her because of such activity. The employer questions the sufficiency of the evidence to support the findings and orders of the Board.

In our opinion an examination of the testimony, together with the inferences properly deducible therefrom, fully supports the findings and orders of the Board.

It is therefore ordered that the Order of the Board be enforced.


author: PER CURIAM.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Joseph J. LACHNIET, d/b/a Honda of Haslett, Respondent.
    No. 73-1585.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 4, 1974.
    Decided Feb. 6, 1974.
    Robert Sewell, National Labor Relations Board, for petitioner; Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Asst. Gen. Counsel, Steven C. Kahn, Atty., National Labor Relations Board, Washington, D. C., on brief.
    Cross, Wroek, Miller & Vieson, William A. Coughlin, Jr., Detroit, Mich., on brief, for respondent.
    Before PHILLIPS, Chief Judge, and EDWARDS and ENGEL, Circuit Judges.
   ORDER

PER CURIAM.

This case is before this court upon the petition of the National Labor Relations Board for enforcement of its order reported at 201 N.L.R.B. 128.

The Administrative Law Judge found that respondent violated Section 8(a)(3) and (1) of the Act by laying off two employees because of their union activity and further violated Section 8(a)(1) by a series of threats of reprisal against employees for supporting the union and promises of benefit in return for withholding such support. Respondent did not file any exceptions with the Board as to these findings and does not challenge these findings before this court.

The Administrative Law Judge also found that respondent had not violated Section 8(a) (5) of the Act and therefore declined to issue a bargaining order. The General Counsel took an exception to this finding and the Board found a Section 8(a)(5) violation and issued a bargaining order.

The propriety of the Board issuing a bargaining order is the only issue before this court. We conclude from our examination of the record that there is substantial evidence to support the finding of an 8(a)(5) violation and that a bargaining order is proper under the principles enunciated in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). Accordingly, the petition for enforcement of the Board’s order is granted.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UTILITY WORKERS OF AMERICA, AFL-CIO, et al., Respondents.
    No. 73-1773.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 30, 1974.
    Decided Feb. 7, 1974.
    Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, William Wachter, Stephen C. Yohay, Attys., National Labor Relations Board, Washington, D. C., on brief, for petitioner.
    Guy Farmer, John A. McGuinn, Patterson, Belknap, Farmer & Shibley, Washington, D. C., and Robert M. Ry-bolt, James K. Brooker, Day, Ketterer, Raley, Wright & Rybolt, Canton, Ohio, on brief, for interven or.
    Irwin Geller, New York City, for respondents; Donald F. Menagh, New York City, on brief; Clement J. Lewis, Dayton, Ohio, of counsel.
    Before WEICK, CELEBREZZE and PECK, Circuit Judges.
   ORDER

This matter is before the Court upon the petition of the National Labor Relations Board to enforce its order finding Respondents guilty of violation of Section 8(b)(3) of the National Labor Relations Act. The Board’s Decision and Order, issued on April 25, 1973, is reported at 203 NLRB No. 55. We are satisfied that the Order of the Board is supported by substantial evidence on the record.

Now, therefore, it is ordered that the Order of the Board be, and it is, hereby enforced.


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. Raymond MARQUEZ, Appellant.
    No. 453, Docket 73-2199.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 22, 1974.
    Decided Jan. 22, 1974.
    Paul A. Goldberger, New York City (Goldberger, Asness, Feldman & Breit-bart, New York City, on the brief), for appellant

      John J. Kenney, Asst. U. S. Atty., Southern District of New York, New York City (Paul J. Curran, U. S. Atty., Southern District of New York, John D. Gordon, III, Asst. U. S. Atty., Southern District of New York, New York City, on the brief), for appellee.
    Before HAYS, MANSFIELD and OAKES, Circuit Judges.
   PER CURIAM:

Affirmed on the opinion of the district court. 363 F.Supp. 802 (S.D.N.Y. 1973).


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AVON CONVALESCENT CENTER, INC., Respondent.
    No. 73-1323.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 28, 1974.
    Decided Feb. 26, 1974.
    Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Acting Asst. Gen. Counsel, Joseph E. Mayer, Vivian A. Miller, Attys., National Labor Relations Board, Washington, D. C., on brief, for petitioner.
    Jonas B. Katz, David Reichert, Cincinnati, Ohio, on brief, for respondent.
    Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges.
   PER CURIAM.

In this case the National Labor Relations Board seeks enforcement of an order previously issued against respondent Avon Convalescent Center, Inc. The Board’s decision and order are reported at 200 N.L.R.B. No. 99.

The record discloses that when employees of the Convalescent Center undertook organization of a union in early 1971, respondent met the challenge, as found by the Board on substantial evidence, by illegal surveillance, threats and discharges. We have reviewed the record and hold that the findings of fact of the Trial Examiner and the Board are not only supported by substantial evidence, they are compelled by it.

Enforcement of the Board’s order is granted.