text:
    The CITY OF DALLAS, TEXAS, the City of Fort Worth, Texas, and the Dallas-Fort Worth Regional Airport Board, Plaintiffs-Appellants, v. SOUTHWEST AIRLINES CO., Defendant-Appellee, and Texas Aeronautic Commission, Intervenor-Appellee.
    No. 73-2478.
    United States Court of Appeals, Fifth Circuit.
    May 31, 1974.
    Rehearing and Rehearing En: Banc Denied June 24, 1974.

      N. Alex Bickley, City Atty., Dallas, Tex., for City of Dallas.
    S. G. Johndroe, Jr., City Atty., Fort Worth, Tex., for City of Fort Worth.
    Lee E. Holt, Charles C. Wells, Asst. City Attys., Dallas, Tex., for Dallas-Fort Worth Regional Airport Bd.
    John L. Hauer, Michael Caolo, Jr., Robert E. Goodfriend, Dallas, Tex., Herbert D. Kelleher, John T. Behrendt, San Antonio, Tex., for Southwest Airlines Co
    John Hill, Atty. Gen., Rex H. White, Jr. Asst. Atty. Gen., Austin, Tex., for Tex. Station Aeronautic.
    R. S. Maurer, Robert S. Harkey, Atlanta, Ga., for Delta Air Lines, Inc., amicus curiae.
    Richard A. Lempert, New York City, for American Airlines, amicus curiae.
    G. Edward Cotter, Los Angeles, Cal., for Continental Air Lines, Inc., amicus curiae.
    Sam Coats, Houston, Tex., for Texas International Airlines, Inc., amicus curiae.
    Paul Rodgers, Sumner J. Katz, Washington, D. C., for Nat’l Assn, of Regulatory Utility Commissioners.
    Before ALDRICH, Senior Circuit Judge, and BELL and GEE, Circuit Judges.

       Hon. Bailey Aldrich, Senior Circuit Judge of the First Circuit, sitting by designation.

   GEE, Circuit Judge:

This is a suit for declaratory judgment brought by the cities of Dallas and Fort Worth and their joint agent, an airport board created by intercity compact, to determine their right to close Dallas’ Love Field to scheduled passenger service by a state-certificated, intrastate commuter line, Southwest Airlines Co. From a judgment that, so long as Love Field remains open as an airport, appellants may not exclude Southwest from it, plaintiffs appeal. We affirm.

Dallas and Fort Worth, large cities in north-central Texas about thirty miles apart, have been rivals over the years. Perhaps partly as a result of this, each developed its own airport. These lie more or less between the two cities and are themselves only twelve miles apart. In consequence of federal Civil Aeronautics Board hearings commenced in 1962, the cities were given to understand that, if they were unable to agree within a reasonable time on a single port for interstate air service to the Dallas-Fort Worth area, the CAB felt obliged to designate one.

The handwriting being thus upon the wall, the cities found themselves, after all, able to agree. In due course, and with CAB blessing and encouragement, they constructed a new airfield and persuaded all interstate, CAB-certificated carriers then serving the area to agree to move their services there. Southwest, an intrastate commuter line certificated by the Texas Aeronautics Commission to serve Love, did not agree and has refused to move. By various ordinances, the validity and effect of which is our concern here, Dallas has sought to compel Southwest to vacate Love Field.

Were Love Field a private airfield, constructed without public funds, it may be assumed that its owner could exclude anyone he liked. Love, however, received substantial federal assistance and therefore must “. . .be available for public use on fair and reasonable terms and without unjust discrimination; . . . .” 49 U.S.C. § .1718(1), formerly 49 U.S.C. § 1110. In addition, the Supreme Court of Texas long ago held that a Texas Home Rule municipality might not, by denying to common carriers use of its streets built in part at state and federal expense, interfere with their use of state highways passing through the city. Such actions were seen, in their extra-municipal effect, as going beyond the power of local government. City of Arlington v. Lillard, 116 Tex. 446, 294 S.W. 829 (1927); City of Fort Worth v. Lillard, 116 Tex. 509, 294 S.W. 831 (1927). The analogy seems close and valid.

Appellant cities urge that reasonable classification of uses — as distinguished from selection of users — does not constitute unjust discrimination. We assume, without deciding, that this is so.

If so, the question becomes, as to Texas intrastate flights, who is to make these just discriminations by use-classifications ? It has a simple answer. In a recent decision, the Texas Supreme Court had occasion to consider the powers of the Texas Aeronautics Commission. It first correctly noted:

In all matters of flying safety, such as the air worthiness of the aircraft and the skill of its operators, Air Southwest would be regulated by the Federal Aviation Agency. All Air Southwest aircraft and pilots would have federal certificates. However, by flying only in intrastate commerce and by not interlining with any CAB certificated carrier, making no connection for passengers or baggage, Air Southwest will not require a certificate from the federal agency in charge of economic regulations, the Civil Aeronautics Board. Congress has not pre-empted the field of the economic regulation of air carriers, and the states have the power to act so long as there is no conflict with federal law. 49 U.S.C.A. § 1301(3) and (10), and § 1371; Western Air Lines Inc. v. California, 42 Cal.2d 621, 268 P.2d 723 (1954), cert, denied, 348 U.S. 859, 75 S.Ct. 87, 99 L.Ed. 677; see Island Airlines, Inc. v. C.A.B., 331 F.2d 207 (9th Cir. 1964); Island Airlines, Inc. v. C.A.B., 363 F.2d 120 (9th Cir. 1966); Comment, 47 Texas L.Rev. 275 (1969).

Our Brethren of the District of Columbia Circuit emphatically agree and have so held in a case involving this general controversy. Texas Int’l Airlines, Inc. v. C.A.B., 154 U.S.App.D.C. 113, 473 F.2d 1150 (1972). And having determined that regulatory power over Texas intrastate air carriers still reposed with the State of Texas, the Texas Court further noted:

The decision as to where the public interest lies and what air service is best for Texas must be made by the Texas Aeronautics Commission.
Texas Aeronautics Comm’n v. Braniff Airways, Inc., 454 S.W.2d 199 (Tex. Sup.1970).

The power to designate “routes” has, from times antedating any relevant to this case, been confided to that Commission. It seems self-evident that points of origin and destination are part of every “route,” particularly short-haul ones. Indeed, to hold that a city could deny the use of public facilities to an airline certificated to it by the Texas Aeronautics Commission would cripple, if not destroy, the Commission’s powers to control intrastate routes. Any city having only municipal airports would have an absolute veto power over routes to and through it — routes which involve the convenience and necessity of the state public, not merely that of the city. And a partial veto would exist even where other facilities existed. Southwest has been certificated by the Commission into Love Field and directed to continue service there until told otherwise. At a minimum, this constitutes Texas’ exercise of its power to determine that Southwest’s is not an improper use of Love Field. Dallas being Texas’ creature, it, may not declare otherwise. The cities’ road to relief passes by the Texas Aeronautics Commission. They cannot reroute it by enacting ordinances in varying forms of words on a subject which is beyond their powers.

Other grounds are urged in support of the judgment of the court below, including the asserted discriminatory effect on Southwest of the 1968 Regional Airport Concurrent Bond Ordinance noted at footnote 2 above and the effect of covenants in outstanding airport revenue bonds that Love will be kept open for scheduled airlines and general use so long as the bonds are unpaid. In view of our disposition of the case, we think it unnecessary to discuss these.

Affirmed.

      . Despite its contract, Braniff lias refused to close operations from Dove, and Texas International lias now reopened there under the umbrella of a state-court injunction.

      . The major ordinance which was before the court below and on which it based its decision was the 1968 Regional Airport Concurrent Bond Ordinance. This provides, in pertinent part, that the cities are to phase out Certificated Air Carrier Services to their existing airfields such as Love to the extent “legally permissible” and not in violation of “presently outstanding legal commitments or covenants prohibiting such action.” The ordinance defines the operations to be phased out as follows:
      “ ‘CERTIFICATED AIR CARRIER SERVICES’ mean aircraft operations of the following types when operating on a regular and continuing basis, to wit:
      “(1) interstate services conducted by commercial air carriers according to published flight schedules and holding certificates of public convenience and necessity or similar evidences of authority issued by the Civil Aeronautics Board of the United States of America or any successor agency thereto;
      “(2) services conducted by foreign air carriers according to published flight schedules holding permits or similar evidences of authority issued by the Civil Aeronautics Board or any successor agency thereto or by any other agency or department of the United States of America; and
      “(3) intrastate services conducted by commercial air carriers according to jmb-lished flight schedules and holding certificates of public convenience and necessity or similar evidences of authority issued by the Texas Aeronautics Commission of the State of Texas or by any successor agency.
      “It is provided, however, that this term shall not include services provided by commercial ‘air taxi’ operators meeting the requirements for exemption provided from time to time by any rules and regulations of the Civil Aeronautics Board, by the Texas Aeronautics Commission or by any other agency of the United States of America or the State of Texas having jurisdiction to provide such exemptions.”
      Southwest urges, and the court below found, that the ordinance is artfully worded to eliminate its intrastate scheduled service only, since Texas does not regulate intrastate service of CAB-certificated interstate carriers and the ordinance does not require that these be moved. This seems correct, since none of the intrastate runs of Southwest’s interstate competitors is certificated by the TAC and hence (3) of the above ordinance, while applying to Southwest, has no effect on them. At oral argument, this Court commented somewhat on this curious and unpleasant feature of the ordinance. Thereafter, both cities enacted and furnished to us ordinances closing their individual municipal airports to a broader range of uses. Dallas’ provides, in pertinent part:
      “From and after May 1, 1974, Dallas Love Field and Redbird Airport will be closed to all regularly scheduled flights of aircraft that transport passengers or property for hire, except regularly scheduled flights of aircraft that transport passengers or property for hire between only Dallas Love Field or Redbird Airport and Dallas/Fort Worth Regional Airport.”

        Even so, we note that charter passenger flights by any size or type of plane remain untouched.

      . See Aircraft Owners & Pilots Ass’n v. Port Authority of N. Y., 305 F.Supp. 93 (E.D.N.Y.1969).

      . If it is not so, then clearly neither Dallas nor any other authority can require Southwest to move from Love so long as it remains open to any use by aircraft.

      . As to interstate flights, of course it would be the CAB, which appellants admit is authorized to, and does, designate points of origin and destination. The CAB has not, however, undertaken to assert jurisdiction, if any it has, over purely intrastate carriers such as Southwest, and indeed appears presently to acquiesce in state licensing of intrastate portions of interstate routes. See People v. Western Airlines, Inc., 42 Cal.2d 621, 268 P.2d 723, appeal dismissed, 348 U.S. 859, 75 S.Ct. 87, 99 L.Ed. 677 (1954).

      . Art. 46c-6, sub. 3, Vernon’s Ann. Texas St., as amended.

      . The Attorney General of Texas lias ruled that the Commission’s powers extend to routes entirely within one city. Op.Att’y Gen’l of Texas, September 2, 1969. Here, little but designating points of take-off and landing is involved.

      . Cf. City of Arlington v. Lillard, 116 Tex. 446, 294 S.W. 829 (1927) ; City of Fort Worth v. Lillard, 116 Tex. 509, 294 S.W. 831 (1927). Town of Ascarate v. Villalobos, 148 Tex. 254, 223 S.W.2d 945 (1949), is not to the contrary in upholding, as it does, reasonable regulation by the municipality of pickup and discharge points within the town for passengers of state-certified buslines.

      . Dallas is a Home Rule City. The Texas Constitution, Art. 11, § 5, provides that no ordinance of such a city may be inconsistent with the State’s general laws. Such a law is the Texas Municipal Airports Act, which grants to municipalities powqr to establish and control the use of airports, but provides in the same breath :
      “No ordinance, resolution, rule, regulation or order adopted by a municipality pursuant to this Act shall be inconsistent with, or contrary to, any Act of the Congress of the United States or laws of this State, or to any ' regulations promulgated or standards established pursuant thereto.” (footnote omitted; emphasis added) Art. 46d-7, V.A.T.S.

      . The question whether an ordinance entirely closing Love Field to air traffic would be within Dallas’ powers is not presented here, and we, of course, imply no view upon it.


source: Caselaw Access Project

author: GEE, Circuit Judge:

license: Public Domain

text:
    SCRANTON CONSTRUCTION COMPANY, INC., and Clegg Concrete, Inc., Plaintiffs-Appellants, v. LITTON INDUSTRIES LEASING CORPORATION et al., Defendants-Appellees.
    No. 73-1980.
    United States Court of Appeals, Fifth Circuit.
    May 31, 1974.
    Rehearing and Rehearing Eh Banc Denied June 25, 1974.

      Norman L. Breland, Boyce Holleman, Gulfport, Miss., for plaintiffs-appellants.
    William T. Jones, John M. Grower, Jackson, Miss., for United Cement.
    Charles E. Foster, Beverly Hills, Cal., Karl Wiesenburg, Pascagoula, Miss., Edward E. Vaill, Beverly Hills, Cal., for Litton Systems, Inc.
    Before COLEMAN, CLARK and GEE, Circuit Judges.
   GEE, Circuit Judge:

Plaintiffs-appellants’ federal antitrust suit, with joined state-law claims, was terminated by summary judgment. We affirm.

Plaintiffs are Mississippi and Louisiana corporations which sought, as joint venturers, the ready-mix concrete subcontract involved in the construction of a shipyard in Pascagoula, Mississippi.

In 1967, Defendant Litton Systems, Inc. (Litton), by its wholly owned subsidiary, agreed with the State of Mississippi to build a large shipyard at Pascagoula for the state. Litton hired Defendant Ralph M. Parsons, Inc. (Parsons), a Nevada corporation qualified in Mississippi, to be a sort of general construction superintendent at a fixed fee, but reserved to Litton the award and method of award of the ready-mix subcontract and all others of financial significance. Litton’s contract with Mississippi and Parsons’ contract with Litton both contained “Buy Mississippi” preference clauses.

In due course, Parsons solicited quotes for 300,000 yards of ready-mix concrete, specifically reserving the rights to reject any and all bids and to furnish to the winner cement, sand and aggregate at its discretion. The bid evaluation committee, composed of two Litton men and one from Parsons, found plaintiffs’ bid lowest and best and recommended its acceptance. Litton, however, exercised its prerogative and required rebids by plaintiffs and the second lowest bidder, a venture composed of two Mississippi concerns. These produced a second low bid by plaintiffs and a second recommendation by the committee that plaintiffs receive the work. Litton, however, again rejected all bids and thickened the plot by introducing to it the third and last defendant, United Cement Company, Inc. (United).

United, the wholly owned Mississippi subsidiary of a Texas corporation, was the child of its General Manager Reese’s dream of developing the vast Selma Chalk deposits in Northeast Mississippi for Portland cement production. Reese had long coveted the subcontract in question and had supported the shipyard project and taken, other appropriate measures with this in mind. Among his recommendations for the job was one of peculiar quality: he had earned Litton’s gratitude by refusing to submit to a bid-rigging and kickback scheme operating among Litton’s lower echelons and had courageously exposed it to top management and aided in its extirpation. Consistent with Mississippi preference, out of gratitude for Reese’s commendable action, and pursuant to an understanding that Reese would be given a “fair shot” at the cement contract, Litton arranged a meeting between Reese and the two low bidders so that Reese could quote each “a special low price” for cement to enable him to reduce his bid on the ready-mix. This was, and was known to Reese and Litton beforehand to be, a farce: Reese merely quoted to each bidder the cement price which he had already stated in his last bid, having been warned by his counsel that to do otherwise would be to alter their competitive status and violate the antitrust laws. Litton had pressed Reese to “cross-reference” the prices, but Reese refused to do so, fearing suit. Plaintiffs assert that this rather curious procedure established United as a “sole supplier,” and we so assume for summary judgment purposes. At any rate, after the Reese conference plaintiffs agreed to use only United’s cement if awarded the contract, and the competitor agreed to use half of it.

In the ensuing third round of bids, plaintiffs quoted $11.67 per cubic yard. But the next day Litton handed the competitor a slip of paper on which was written “$11.62.” The competitor took this to be plaintiffs’ bid, bid $11.61, and received the contract. A later, lower bid by plaintiffs was rejected by Litton, and this suit followed.

Discovery in the case has been extensive and exhaustive; and it, together with unrefuted affidavits, establishes further particular facts which we will notice at appropriate points. We note at the outset that we are not called upon to, and do not, consider or pass judgment on Litton’s business ethics. Our concern is with other issues. Two defendants — Litton and United — -remain actively before us, plaintiffs having dismissed Parsons and conceded that another, Litton Industries Leasing Corporation was erroneously sued.

Plaintiffs’ Sherman Act and Clayton, Robinson-Patman Act claims against Litton and United proceed upon four actions and inferences of conspiracy based upon them: (1) the repeated rebidding required by Litton, (2) designation of United by Litton as the “sole source” of cement, (3) United’s offer of different prices to the two competing bidders, and (4) the inducement of an artifically low bid from plaintiffs’ competitor by cause-ing it to believe plaintiffs’ bid was $11.-62 when in fact it was $11.67. Before taking up the merits of these claims, we consider subject-matter jurisdiction.

Jurisdiction

The court below concluded, in its careful and wide-ranging opinion that it lacked jurisdiction under both the Clayton, Robinson-Patman Act and the Sherman Act. Bearing in mind the deservedly high mortality rate of summary dispositions of such litigation as this, and the disfavor with which such dispositions are viewed, we conclude that plaintiffs show arguable jurisdiction under the Sherman Act, stemming from the magnitude of the intrastate ready-mix sale and its close nexus to the construction of the shipyard, a massive instrumentality of interstate and foreign commerce — a showing sufficient, at any rate, to make us unwilling to dispose of those claims on jurisdictional grounds. As to Clayton, Robinson-Patman, however, plaintiffs clearly fall short.

They properly concede that their competitor’s only sale of concrete here involved was entirely intrastate; though ingredients which had travelled interstate, such as cement, were involved, “ . . . all the interstate ingredients were mixed together within the confines of Pascagoula, Mississippi, and delivered to Litton there.” This is fatal. Littlejohn v. Shell Oil Co., 483 F.2d 1140 (5th Cir. 1973); Hiram Walker, Inc. v. A & S Tropical, Inc., 407 F.2d 4 (5th Cir. 1969), cert, denied, 396 U.S. 901, 90 S.Ct. 212, 24 L.Ed.2d 177 (1969). Nor does the interstate movement of mere ingredients suffice. Bel-liston v. Texaco, Inc., 455 F.2d 175 (10th Cir. 1972), cert, denied, 408 U.S. 928, 92 S.Ct. 2494, 33 L.Ed.2d 341 (1972). And though we recognize that the Supreme Court has granted certiorari in a second-line injury case where our Brethren of the Ninth Circuit have dispensed with the requirement of interstate sale on the ground that sales of a commodity to be used in constructing an instrumentality of interstate commerce were involved, and that thus a new deliverance in this area may soon come, we are not disposed to depart from our recent decision, supported by well-nigh universal precedent, that interstate sales must be involved for jurisdiction to attach under these acts. Littlejohn v. Shell Oil Co., 483 F.2d 1140 (5th Cir. 1973); Cf. Mayer Paving & Asphalt Co. v. General Dynamics Corp., 486 F.2d 763 (7th Cir. 1973), cert, denied, 414 U.S. 1146, 94 S. Ct. 899, 39 L.Ed.2d 102 (1974). We therefore pretermit further discussion of the Clayton, Robinson-Patman Act claims.

The Sherman Act Claims

We have searched the record in vain for evidence supporting plaintiffs’ allegations of a combination or conspiracy against them between Litton and anyone in the area of plaintiffs’ claims. Proof of this is, of course, essential to plaintiffs’ case under § 1 of the Sherman Act and to its conspiracy claims under § 2. First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968); Crummer Co. v. Du Pont, 223 F.2d 238 (5th Cir. 1955), cert, denied, 350 U.S. 848, 76 S.Ct. 85, 100 L.Ed. 755 (1955). Facing defendants’ sworn challenge to the existence of such a conspiracy, it was up to plaintiffs to produce significant probative evidence ■ — by affidavit or deposition — demonstrating that a genuine issue of fact existed as to this element of the complaint, if summary judgment was to be avoided. First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 289-290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). The evidence indicates conduct by Litton, albeit pursued in a roughshod way, consistent with its own business purposes, not in concert with but rather at the expense of plaintiffs’ competitor and at cross purposes with United.

Taking up in order the four Litton actions of which plaintiffs primarily complain, the repeated rebidding and terminal negotiations required by Litton were entirely consistent with a legitimate purpose to obtain the best price and were not improper under Mississippi law. At all times, Litton and Parsons specifically reserved the right to reject any and all bids. Plaintiffs’ assertion that its initial and subsequent low bids gave it some right of which it was illegally deprived, and that Litton’s actions in requiring rebids and in dickering with the bidders were conspiracy, are therefore ill-founded.

As for the designation of United as “sole source” of cement, and its quotation of a lower price to plaintiffs’ competitor than to plaintiffs, these do not evidence a conspiracy against plaintiffs, whatever else they may indicate. United did not originate the price differential, it took it as it found it. So far from conspiring with Litton to maintain it, the record indicates strenuous efforts by Litton to persuade United’s Reese to quote the same price to both ready-mix bidders and his refusal to do so on advice of his counsel that such an action would interfere with the competitive situation and lay United open to some such suit as this. There is no evidence here of a combination to price-disadvantage plaintiffs, rather the contrary. Nor do plaintiffs allege or offer proof that United’s advent as “sole supplier” froze the cement quotation to plaintiffs. For all that appears in the record, United would have been pleased to meet any lower price which plaintiffs could have confronted it with — down, at least, to that which it had quoted the competitor. No bias against plaintiffs appears here; indeed, as Reese averred, United would have preferred plaintiffs get the contract so as to sell the same amount of cement at a larger profit. Thus, however unsavory the “sole supplier” posture which United assumed may be thought, it was not plaintiffs against whom it militated but plaintiffs’ cement supplier, not a party here.

Finally, the “divulging” to plaintiffs’ competitor by Litton of the spurious bid of $11.62 was plainly unilateral action by Litton, however questionable, and we seek in vain for the presence or action of any coeonspirator in such conduct. The record is clear that United did not even know of it, nor was it conduct which could conceivably have advanced the scheme to put United forward as sole source or supplier. And were we disposed to see the gulled competitor as a conspirator — the beneficiary, though overreached, of some understanding with Litton to shut plaintiffs out — there are no allegations to this effect.

In short, the evidence reveals nothing which by any method short of Procrustes’ can be made to demonstrate a conspiracy to injure plaintiffs. The Sherman Act is neither a lowest-responsible-bidder statute nor a panacea for all business affronts which seem to fit nowhere else. Parmelee Transportation Co. v. Keeshin, 186 F.Supp. 533 (N.D. Ill.1960), aff’d, 292 F.2d 794 (7th Cir. 1961), cert, denied, 368 U.S. 944, 82 S.Ct. 376, 7 L.Ed.2d 340 (1961).

Insofar as plaintiffs’ complaints assert an attempted monopolizing of the ready-mix market by means of the various maneuvers noted above in the course of a one-time sale for use to Litton, proofs are entirely lacking of the relevant market, its condition, or of a monopoly or dangerous probability of one. See, e. g., Cliff Food Stores, Inc. v. Kroger, Inc., 417 F.2d 203 (5th Cir. 1969). And having correctly disposed of the federal claims, the court below properly dismissed plaintiffs’ pendant state antitrust and common-law claims without prejudice, for adjudication by an appropriate state tribunal. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130,16 L.Ed.2d 218 (1966).

Affirmed.

      . Ingalls Shipbuilding Corporation.

      . Financed by $130,000,000 of Mississippi State Bonds.

      . Though denominated “general contractor or subcontractor.” In the course of this appeal, Parsons was dismissed as a defendant. Since it is undisputed that Litton had reserved to itself all power over the award of the contract in question, no room exists for a contention of conspiracy with Parsons affecting the award.

      . It seems regrettable, though irrelevant, that all Mr. Reese’s vision and fortitude in the premises produced for his concern was a lawsuit.

      . In exchange for Reese’s promise that a Litton subsidiary would have a “fair shot” at building United’s plant. In the event, both “fair shots” were clean misses.

      . Plaintiffs were quoting $3.37 net per barrel as the cement price on which their bid was based, their competition $3.01. Neither knew the other’s price.

      . In the end the competitor found a better price and bought none of it.

      . Littlejohn v. Shell Oil Co., 483 F.2d 1140, 1145 (5th Cir. 1973), cert, denied, 414 U.S. 1116, 94 S.Ct. 849, 38 L.Ed.2d 743 (1973).

      . Cf. Cliff Food Stores, Inc. v. Kroger, Inc., 417 P.2d 203 (5th Cir. 1969) (dismissed on pleadings).

      . Indeed, any conceivable sale of ready-mix by plaintiffs or their competitors would have been such; both proposed to manufacture in Mississippi and deliver to Litton there.

      . In re Western Liquid Asphalt Cases, 487 F.2d 202 (9th Cir. 1973), cert, granted 415 U.S. 988, 94 S.Ct. 1586, 39 L.Ed.2d 885 (1974). That Court distinguishes our Littlejohn opinion, infra, on the ground that we were not there required to consider such a nexus.

      . See Panotex Pipe Line Co. v.. Phillips Petroleum Co., 457 F.2d 1279, 1287 (5th Cir. 1972), cert, denied, 409 U.S. 845, 93 S.Ct. 48, 34 L.Ed.2d 86 (1972).

      . Set out at the end of our factual statement above.

      . Section 8968-11, Mississippi Code, upon which plaintiffs rely, appears to be limited to prime contractors’ bids to state agencies, as the court below held, and does not prohibit Litton’s reservations of rights on bids submitted to it by subcontractors.


author: RONEY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Raul MIRANDA, aka “Wimpy,” Defendant-Appellant.
    No. 73-3602.
    United States Court of Appeals, Fifth Circuit.
    June 3, 1974.

      Jimmy L. Heisz, Dallas, Tex. (court-appointed), for defendant-appellant.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ralph E. Harris, Asst. U. S. Atty., El Paso, Tex., for plaintiff-ap-pellee.
    Before BROWN, Chief Judge, and GODBOLD and RONEY, Circuit Judges.
   RONEY, Circuit Judge:

Raul Miranda, aka “Wimpy,” was convicted of knowingly and intentionally possessing with the intent to distribute and of distributing approximately 40 milligrams of heroin in violation of 21 U.S.C.A. § 841(a)(1). On appeal he challenges his conviction on the following grounds: (1) the indictment was insufficient because it did not allege that he “unlawfully” possessed and distributed the heroin; (2) the prosecutor’s closing statements characterizing the exchange of heroin as a “sale” prejudiced Miranda’s right to a fair trial because the Government failed to prove a sale took place; (3) Miranda’s due process rights were infringed by the statutory definition equating distribution with delivery; (4) the indictment was defective because it did not specify where the offense was committed, the names of the parties involved, and that Miranda was “Wimpy”; (5) Miranda was denied the effective assistance of counsel; and (6) the District Court insufficiently charged the jury as to the offense since there was no instruction that the possession of heroin must be contrary to law. We affirm.

Miranda was arrested pursuant to a warrant issued in response to a grand jury indictment charging “John Doe”, aka “Wimpy” with two violations of 21 U.S.C.A. § 841(a)(1). The indictment was based on a heroin transaction between Miranda and undercover policeman Steven Widener. Widener met Miranda in the company of several other people, all of whom became interested in purchasing some heroin. After taking everyone’s order, Miranda collected the money, returned after a short absence during which he ostensibly got the heroin, and made delivery. The packet for which Widener had given Miranda $10 was found to contain heroin.

Whether Indictment Charges a Crime.

Miranda argues that his indictment is defective because it does not charge a crime. Each count of the indictment alleges the statute and then alleges the fact of possession with intent to distribute, as to Count I, and the fact of distribution, as to Count II, without alleging the unlawfulness of that conduct. Miranda contends that § 841 (a)(1) recognizes that possession with intent to distribute and distribution can be lawful as well as unlawful because of the opening phrase “Except as authorized by this subchapter.” Section 841 (a)(1) provides

(a) Except as authorized by this sub-chapter, it shall be unlawful for any person knowingly or intentionally— (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance;

Relying on the authority that it is necessary to allege that the conduct charged was done unlawfully if it may be either lawful or unlawful, Miranda contends that his indictment does not allege a crime. He argues that since the distribution of heroin is not inherently illegal but is only made so by a statute which recognizes exceptions to its prohibitions, “illegal” distribution becomes an essential element of the crime.

An indictment must be read in its entirety. United States v. Wilshire Oil Co., 427 F.2d 969 (10th Cir. 1970). The citation in the indictment to the United States Code section upon which the averred criminal violation was based, viewed in relation to the averred activity, was sufficient to indicate that Miranda was charged with a violation of 21 U.S.C.A. § 841(a)(1).

Miranda’s “lawful-unlawful” argument must be viewed in light of his status under the present law. The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C.A. § 801 et seq., “provides for control by the Justice Department of problems related to drug abuse through registration of manufacturers, wholesalers, retailers, and all others in the legitimate distribution chain,' and makes transactions outside the legitimate distribution chain illegal.” H.R.Rep. No. 91-1444, 91st Cong. 2d Sess., 3 U.S.Code Cong. & Admin.News, pp. 4566, 4569 (1970) (hereinafter House Report). Distribution of a controlled substance is made illegal unless the person is authorized to distribute by the statute. 21 U.S.C.A. § 841; United States v. Pruitt, 487 F.2d 1241, 1245 (8th Cir. 1973).

Authorization to distribute is obtained by appropriate registration with the Attorney General. 21 U.S.C.A. § 822. Employees of registered distributors, common carriers, and ultimate users are exempted from registration if their activities are within the legitimate distribution chain. 21 U.S.C.A. § 822(c); House Report, 3 U.S.Code Cong. & Admin.News, pp. 4566, 4606 (1970). Thus, with the exception of three narrowly drawn catagories or classes of people within the legitimate distribution chain, all distribution must take place under the auspices of an appropriate registration certificate. As the prefatory phrase of 21 U.S.C.A. § 841 makes clear, such distribution is the exception to the penal provisions.

Miranda argues that since some distribution without registration is lawful, i. e. employees of registered distributors, common carriers, and ultimate users, the indictment must aver that he was not one of the exempted persons or that his activity was unlawful. Section 885(a) (1) of 21 U.S.C.A. relieves the Government of the burden of negativing in the indictment exceptions to unlawful distribution :

(a)(1) It shall not be necessary for the United States to negative any exemption or exception set forth in this subchapter in any . . . indictment

The defendant has the burden of affirmatively asserting any defense based upon an exception to the unlawful distribution of heroin.

An averment in Miranda’s indictment that his activity is “unlawful” need not be included either. Distribution without registration is only permitted by certain categories of people. Miranda is not included within any of those categories, nor is there anything in the indictment which would mislead him in thinking that he was within an exempted category.

Miranda’s situation is different from the indicted defendant in United States v. Leigh, 487 F.2d 206 (5th Cir. 1973). In Leigh, the indictment

described the defendant as a medical doctor (M.D.) and charged that he “did knowingly and intentionally distribute and cause to be distributed [the particular prohibited substance] by means of a prescription signed by said defendant.”

487 F.2d at 207. By identifying Leigh as a medical doctor, the indictment placed him within a class of persons who are registered to dispense controlled substances as a matter of right. 21 U.S.C. A. § 822; House Report, 3 U.S.Code Cong. & Admin.News, pp. 4566, 4590 (1970). By further averring that a prescription was used to distribute the controlled substance, the activity alleged on the face of the indictment could be legal. Thus as shown in the indictment, the defendant was a person who could lawfully distribute. The indictment was dismissed because it did not allege that the act of distribution was unlawful.

Miranda, however, does not fall within one of the registered or exempted categories of people and there is nothing in the indictment which raises this possibility. The distribution of heroin by Miranda as alleged in the indictment could not be lawful.

Thus, Miranda’s relia3ice on Middlebrooks v. United States, 23 F.2d 244 (5th Cir. 1928), is misplaced. Middle-brooks holds that “where an act may be either lawful or unlawful . . . the indictment must allege that it was done unlawfully.” 23 F.2d at 245. Middle-brooks was indicted and convicted of conspiring to manufacture intoxicating liquors. Such activity, however, was illegal only if the liquors were for beverage purposes. The indictment was found insufficient since it only averred that the liquors were “fit for beverage purposes,” a phrase which the Court found incorporated both legal and illegal activity.

In Schmidt v. United States, 286 F.2d 11 (5th Cir. 1961), the Court discussed the necessity of alleging that the taking of money from a bank by intimidation, 18 U.S.C.A. § 2113(a), was unlawful. Schmidt’s indictment charged that he “knowingly and willfully, and by intimidating [the bank employee] took from the presence of [said employee] $2,000.-00 which said currency belonged to the Bank . . . .” 286 F. 2d at 12. Although instances of lawful intimidation can be envisioned, the Court held that the failure of the indictment to use the word “unlawfully” did not render the indictment fatally defective. See Braswell v. United States, 224 F.2d 706 (10th Cir.), cert, denied, 350 U.S. 845, 76 S.Ct. 86, 100 L.Ed. 752 (1955); Hickman v. United States, 170 F.2d 353 (5th Cir. 1948); Musey v. United States, 37 F.2d 673 (5th Cir. 1930).

Since Miranda could not make a lawful distribution under § 841(a)(1) or any of its exceptions, it was not necessary to expressly allege that the acts committed were unlawful.

Prosecutor’s Argument to Jury.

Miranda contends that his right to a fair trial was prejudiced by the prosecutor’s reference to the heroin transaction as a “sale” in his closing statement. He contends there was no evidence introduced which would establish that a sale took place between Miranda and Widener and that Miranda was merely the “procuring agent” for Widener under Adams v. United States, 220 F.2d 297 (5th Cir. 1955). Since Miranda did not object to the prosecutor’s statements at the time of trial, the standard on review is that of plain error. Rule 52(b), F.R.Crim.P.

The evidence established that on their first meeting, Miranda asked Widener if he wished to purchase some heroin. After a favorable response, Miranda directed Widener to the purchase area, collected the money and returned with the heroin. These facts might support an inference that a sale took place between Miranda and Widener and disspell Miranda’s argument. The prosecutor’s characterization thereof as a sale did not amount to plain error. If error at all, it was harmless at most.

Due Process.

Miranda attacks the statutory definition of “distribute” as “deliver” in 21 U.S.C.A. § 802(11) on due process grounds. This section defines distribute as follows:

The term “distribute” means to deliver (other than by administering or dispensing) a controlled substance. The term “distributor” means a person who so delivers a controlled substance.

Miranda claims that “the plain meaning of distribute is to divide a whole into parts or to take a number of items and dispense them,” and the statutory definition contrary to the plain meaning is an equivocal warning of the acts prohibited. The statutory definition is clear and we find no merit to Miranda’s contention. See United States v. Worko-pich, 479 F.2d 1142, 1147 (5th Cir. 1973). This Court has held the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C.A. § 801 et seq., to be constitutional on several occasions. United States v. Dupart, 483 F.2d 1393 (5th Cir. 1973); United States v. Leisner, 469 F.2d 336 (5th Cir. 1972), cert, denied, 410 U.S. 942, 93 S. Ct. 1374, 35 L.Ed.2d 609 (1973) ; United States v. Lopez, 459 F.2d 949 (5th Cir.), cert, denied, Llerena v. United States, 409 U.S. 878, 93 S.Ct. 130, 34 L.Ed.2d 131 (1972).

Specificity of Indictment.

Miranda challenges the sufficiency of the indictment on the ground that it did not specify where the offense was committed, the names of the parties involved, or that Miranda was the “Wimpy” charged by the grand jury. The validity of an indictment under Rule 7(c), F.R.Crim.P. is determined by practical, not technical considerations. United States v. Miller, 491 F.2d 638, 649 (5th Cir. 1974). In Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861 (1932), the Supreme Court established the guidelines for testing the sufficiency of the indictment:

whether it contains the elements of the offense intended to be charged, “and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.”

285 U.S. at 431. See Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Miller, 491 F.2d 638 (5th Cir. 1974); United States v. Newsom, 493 F.2d 439 (5th Cir. 1974).

We have held that Miranda’s indictment contains the essential elements of the offense charged. We hold it sufficient to apprise Miranda of what he must be prepared to meet and to protect him from the hazards of double jeopardy. Failure to specify the precise location of the offense is not fatal if the district is alleged. United States v. Tomasetta, 429 F.2d 978 (1st Cir. 1970). The purchaser’s name in a narcotics transaction need not be averred. Snowden v. United States, 384 F.2d 357 (5th Cir. 1967), cert, denied, 390 U.S. 966, 88 S.Ct. 1075, 19 L.Ed.2d 1169 (1968). Use of an alias in an indictment is not error. United States v. Skolek, 474 F.2d 582 (10th Cir. 1973). See generally, 1 C. Wright, Federal Practice and Procedure § 124 (1969); 1 L. Orfield, Criminal Procedure Under the Federal Rules §§ 7.99-7.101 (1966). A bill of particulars was available to clarify any questions that Miranda may have had concerning the indictment. See United States v. Blakely, 491 F.2d 120 (5th Cir. 1974). Since the indictment apprised Miranda with reasonable certainty of the charge against him, we find no error.

Effective Assistance of Counsel.

Miranda’s brief asserts ineffective assistance of counsel both before and during trial alleging: refusal to discuss the strategy of the case with the defendant, persistently advising Miranda to plead guilty, refusal to subpoena three crucial witnesses, failure to file notice of appeal, and misinforming Miranda’s sister that the appeal was pending when in fact no notice of appeal had been filed.

A careful review of the record reveals these contentions to be without merit and that Miranda was not denied the effective assistance of counsel. Both of his court-appointed attorneys worked diligently in his defense.

Jury Instructions.

Miranda alleges error in the District Court’s jury instructions because there was no charge that possession must be contrary to law. First, Miranda did not object to the charge at trial. Second, since he did not introduce any evidence placing him within the exception to 21 U.S.C.A. § 841(a)(1), there was no need for the District Court to instruct as to lawful distribution. The District Court fully charged the jury concerning the essential elements of the offense and we find no plain error.

Affirmed.

      . FIRST COUNT
      (21 U.S.C. § 841(a)(1))
      That on or about February 28, 1973, in the Western District of Texas, JOHN DOE, also known as “WIMPY,” knowingly and intentionally possessed with intent to distribute approximately 40 milligrams of Heroin, a Schedule I Controlled Substance.
      SECOND COUNT (21 U.S.C. § 841(a)(1))
      That on or about February 28, 1973, in the Western District of Texas, JOHN DOE, also known as “WIMPY,” knowingly and intentionally distributed approximately 40 milligrams of Heroin, a Schedule I Controlled Substance.
      A True Bill.


author: GEWIN, Circuit Judge:

text:
    TEXAS GULF, INC., Petitioner, v. FEDERAL POWER COMMISSION, Respondent.
    No. 72-3597.
    United States Court of Appeals, Fifth Circuit.
    May 31, 1974.
    George W. Hugo, Houston,,,Tex., John T. Miller, Jr., Washington, D. C., for petitioner.
    Leo E. Forquer, Gen. Counsel, George McHenry, Acting Sol., Federal Power Commission, for respondent.
    W. DeVier Pierson, Peter J. Levin, Washington, D. C., William B. Cassin, United Gas Pipe Line Co., Houston, Tex., for United Gas Pipe Line.
    Before GEWIN, THORNBERRY and COLEMAN, Circuit Judges.
   GEWIN, Circuit Judge:

I

In this case, the petitioner, Texas Gulf, Inc. (Texas Gulf), seeks review of a Federal Power Commission order issued on November 22, 1972, granting in part and denying in part a prayer for extraordinary relief from United Gas Pipe Line Company’s (United) curtailment plan of services. Texas Gulf operates a sulphur mine, the Bully Camp, in southern Louisiana. It is essential for the mining operation that Texas Gulf have a fuel source for its boilers which are used to heat the sulphur which is exploited at Bully Camp. Accordingly, Texas Gulf contracted with United for the latter to supply it with a fuel source, natural gas.

As a direct result of the natural gas shortage confronting the nation since the beginning of this decade, it has been necessary for natural gas pipeline suppliers to curtail their services. United’s situation was not unique in this respect. Thus, on October 26, 1970, United petitioned the Federal Power Commission pursuant to § 4(b) of the Natural Gas Act, 15 U.S.C. § 717c, for a declaratory order holding that its curtailment plan to be initiated on November 1, 1970 complied with its existing contracts and recorded tariffs. After requiring various amendments and adjustments in United’s initial petition, the Commission issued an order on July 27, 1971 enforcing United’s curtailment plan pending ultimate determination of the plan on its merits.

From the beginning of United’s attempts to seek Commission approval of its curtailment program, Texas Gulf, a direct industrial customer of United, has objected strongly to United’s plan. It has contended that its allotment under the curtailment plan is unfair. Regardless of whether Texas Gulf is ultimately successful in supporting this contention, that is not the issue which we must now determine. The validity of United’s curtailment plan will ultimately receive judicial review upon the orderly termination of the Commission’s review of that plan.

After Texas Gulf’s initial judicial ventures proved unsuccessful, it • filed a claim for extraordinary relief with the Commission on January 5, 1972. It sought an order requiring that United deliver an average of 7,000 Mcf per day and no less than 1,500 Mcf in any one day to its Bully Camp Mine. On January 28, the Commission ordered that United deliver a minimum of 1,500 Mcf per day to the mine to provide for plant safety but denied the prayer for 7,000 Mcf which would have kept the plant fully operational. In granting minimum allotments, the Commission warned Texas Gulf that “efforts should be undertaken by [it] toward making necessary arrangements for the use of an alternate fuel so as to prevent the recurrence of this situation at the mine.”

On March 21, 1972, Texas Gulf moved for a rehearing which the Commission granted. An evidentiary hearing was conducted before an administrative law judge on March 27 and 28, 1972. On August 11, 1972, the administrative law judge ordered United to deliver a minimum of 1,500 Mcf per day to Texas Gulf and an average of 5,500 Mcf per day which was apparently imposed so the mine could continue to operate and the miners could retain their jobs. Exceptions were taken to the administrative law judge’s determinations and on review the Commission modified his order.

In its November 22nd modifying order, the Commission provided for plant safety at the mine by requiring that a minimum of 1,500 Mcf of gas per day be delivered to Bully 'Camp. The Commission was disturbed, however, by the fact that in November, 1971 Texas Gulf had commenced to overtake its entitlement to natural gas as an industrial customer under United’s curtailment plan. The Commission disapproved fully of Texas Gulf’s flaunting of United’s curtailment program. In its order the Commission observed:

Texas Gulf is a direct industrial customer [of United] and as such, is subject to curtailment by United pursuant to plans filed with the Commission. As a practical matter, Texas Gulf stands alone among direct industrial customers in its gross disregard of curtailment allocations. Commencing with the 1971-1972 winter heating season, Texas Gulf has virtually ignored its curtailment allocation.
* * -X- -X- * *
. . . [I]n order to prevent irreparable injury to the sulphur mine, we specify that Texas Gulf is to receive not less than 1,500 Mcf per day; to place Texas Gulf on a parity with other United customers, we further specify that Texas Gulf is to receive not more than 1,500 Mcf per day from United until all overtakes are repaid. United shall determine the amount of Texas Gulf’s overtake in excess of those amounts we permitted Texas Gulf in our January 28, 1972, order. Texas Gulf shall pay back that overtake to United by United limiting Texas Gulf to 1,500 Mcf per day until full repayment of the overtake has been made; and then the amount of gas delivered to Texas Gulf shall be 1,500 Mcf per day, or the amount deliverable to Texas Gulf through uniform application of United’s curtailment plan, whichever is greater. We reiterate the necessity for compliance with curtailment plans, by the affected pipeline, and by its customers. Disregard of the applicable tariff by one customer causes discrimination against other customers and could result in chaos.

The Commission further required that United install a control device on its supply line to Texas Gulf to prevent any future overtakes. Texas Gulf now seeks review of this last mentioned order.

II

Texas Gulf presents three principal contentions for our review. First, it asserts that the Commission’s order requiring only 1,500 Mcf of natural gas per day for its mining operations amounts to an abandonment of services to Texas Gulf and thus the Commission failed to comply with § 7(b) of the Natural Gas Act, 15 U.S.C. § 717f(b), which requires a full panoply of procedural protections before an abandonment, not evidenced in the proceedings now under review. Secondly, Texas Gulf asseverates that the Commission’s order amounts to an undue discrimination in service forbidden by § 4(b) of the Act, 15 U.S.C. § 717c(b). Finally, it seeks constitutional interdiction contending that the order constitutes a confiscation of Texas Gulf’s property in violation of the fifth amendment. After a review of the facts found by the Commission as a basis for its order and the applicable legal principles underlying and governing a curtailment proceeding, we find Texas Gulf’s contentions to be without merit and accordingly affirm the Commission order now under review.

Texas Gulf’s characterization of the proceedings below as equivalent to an abandonment is without merit. The Commission did not require discontinuance of service by United. Indeed, the order specifically requires 1,500 Mcf be delivered daily to the Bully Camp Mine to provide for plant safety. All curtailment proceedings may effect in some manner the economic viability of the supplier’s customers. Here, the record demonstrates that Texas Gulf was on notice that it had to develop alternative fuel sources if it were to continue to operate the mine on a profit basis. The record supports the Commission’s conclusion that Texas Gulf failed to demonstrate that it could not utilize an alternative fuel supply together with the natural gas allotment under United’s curtailment program.

Instead, it was content to continue to flaunt the supplier’s curtailment program by overtaking its allotment under the curtailment plan. When a curtailment program is instituted, all customers of a similar category necessarily suffer if their supply is diminished. These are trying times in the fuel industry and all must suffer some deprivation. The Commission, aware of its serious responsibilities, has responded appropriately in the instant case.

In contrast to an abandonment of services, the Commission’s order guarantees petitioner a fuel source which will prevent the destruction of its Bully Camp facilities. Furthermore, the Supreme Court held in FPC v. Louisiana Power & Light Co., 406 U.S. 621, 92 S. Ct. 1827, 32 L.Ed.2d 369 (1972), that the Commission may review curtailment plans pursuant to § 4(b) of the Act, 15 U.S.C. § 717c(b) instead of the more procedurally cumbersome requirements mandated by an abandonment action. Thus, it is apparent that Texas Gulf’s initial contention is without merit.

The Commission was within its sound discretion as implementor and controller of our national fuel supplies in requiring Texas Gulf to repay its overtakes from its allotment under United’s curtailment program. Its findings and subsequent disposition in this regard are fully supported by the record and common sense. Permitting a customer to disregard a supplier’s curtailment program would completely destroy compliance with the reduced allotments. The Commission order carefully preserves Texas Gulf’s rights under the curtailment program after it has paid back for the overtakes.

Furthermore, we refuse to entertain Texas Gulf’s contention that the curtailment plan amounts to undue discrimination against it in violation of § 4(b) of the Act. Whether this is ultimately determined to be the case, must await that time when a judicial tribunal is requested to review the Commission’s ultimate findings of the validity of United’s curtailment plan. We refuse the invitation to make a premature review of a complex subject which is not properly before this court.

Finally, we find no merit in the argument that Texas Gulf’s property has been seized without just compensation. The Commission order provides for plant safety at the Bully Camp Mine. After Texas Gulf pays back its overtakes, it will be entitled to the same fuel allotment as other customers of its category. Based upon the record before us we are unable to conclude that it has been denied any of its property rights in violation of the Fifth Amendment.

Accordingly, the Federal Power Commission order rendered November 22, 1972 granting in part and denying in part emergency relief to petitioner is affirmed.

      . On November 10, 1971, Texas Gulf filed a complaint in the United States District Court for the District of Columbia seeking an injunction ordering United not to reduce its gas allotment to Texas Gulf’s Bully Camp Mine and other protective relief. Texas Gulf Sulphur Co. v. United Gas Pipe Line Co., No. 2253-71 (D.C.D.C.). Subsequently, on January 4, 1972, the district court dismissed the complaint holding the Commission had jurisdiction over the controversy. On appeal, the D. C. Circuit Court held that the Commission’s jurisdiction over curtailment plans was still in doubt and remanded the case to the district court pending the outcome of the curtailment proceedings before the Commission. Sub nom, Monsanto Co. v. FPC, 149 U.S.App.D.C. 396, 463 F.2d 799 (1972). At the time of its decision, the D. C. Circuit did not have the benefit of the Supreme Court decision, FPC v. Louisiana Power & Light Co., 406 U.S. 621, 92 S.Ct. 1827, 32 L.Ed.2d 369 (1972), which held that the Commission did have jurisdiction over curtailment proceedings pursuant to § 4(b) of the Natural Gas Act, 15 U.S.C. § 717c (b). On remand, the district court dismissed that part of Texas Gulf’s complaint which sought declaratory and injunctive relief and stayed the damages issue claimed by Texas Gulf pending final resolution of United’s curtailment plan before the Commission. The propriety of this dismissal and stay was appealed to the D. C. Circuit. Monsanto Co. et al. v. United Gas Pipe Line Co., No. 73-1320 et al. (D.C.Cir., filed March 26, 1973). On January 17, 1974, the D. C. Circuit issued an order affirming the district court’s order staying the determination of damages, until a judicial tribunal has reviewed the FPC’s holding on the justness and reasonableness of United’s plan.

      . The Court stated :
      “Since § 4(b) expressly deals with ‘service,’ the FPC may invoke it to deal with curtailment programs, whether or not it could also invoke § 7 for that purpose.” 406 U.S. at 646.

      . We must affirm the “finding of the Commission as to facts, if supported by substantial evidence . . . ” 15 U.S.C. § 717r(b). See also Permian Basin Area Rate Cases, 390 U.S. 747, 767, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968).

      . The Commission found United’s curtailment plan to be fair and equitable with minor exceptions. See United Gas Pipe Line Co., Docket No. RP71-29 et al, Opinion No. 647 (January 12, 1973) 49 FPC 179 (1973). On March 9, 1973, the Commission granted a rehearing of Opinion 647 to reconsider its previous findings. On May 30, 1973, the Commission issued an opinion clarifying and modifying Opinion No. 647. See Opinion No. 647-A, 49 FPC - (1973). Later the Commission issued an order making certain observations and permitting some parties to intervene in the United curtailment proceeding. See United Gas Pipe Line Co., Docket No. RP71-29 et al., Order Upon Reconsideration of Opinion No. 647-A (July 20, 1973). Finally, on November 30, 1973, the Commission issued an “Order on Clarification” in the curtailment proceedings of United. As the above Commission actions demonstrate, the resolution of the validity and fairness of United’s curtailment plan is no simple matter. When and if a court is called upon to review the ultimate Commission resolution, careful scrutiny will be necessitated, which would be unjudicious at this time. On April 26, 1974, this court heard oral argument by various petitioners concerning the validity of Opinions 647 and 647-A. Louisiana, et al. v. FPC, No. 73-3478.


author: PER CURIAM:

text:
    Johnnie Mack ROBINSON, Plaintiff-Appellant, v. R. H. JORDAN, Sheriff of Gray County, Texas and Dr. Joseph W. Gates, of Pampa, Texas, Defendants-Appellees.
    No. 73-2059.
    United States Court of Appeals, Fifth Circuit.
    May 31, 1974.
    Rehearing Denied June 25, 1974.

      Maurice P. White, Dist. Parole Officer, Midland Dist., Midland, Tex., Carol Oppenheimer, Austin, Tex. (Court-appointed), for plaintiff-appellant.
    John C. Chambers, Amarillo, Tex., for Gates.
    Bill W. Waters, Pampa, Tex., for Jordan.
    Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
   PER CURIAM:

The district court on motion without hearing dismissed the pro se complaint under Title 42 U.S.C. Sec. 1983 of plaintiff-appellant, a state prisoner of the Negro race. Suing R. H. Jordan, the Sheriff of Gray County, Texas, and Dr. Joseph W. Gates, the medical examiner for that county, Robinson alleged deprivation of civil rights under color of state law arising from inadequate medical treatment accorded him by Dr. Gates while he was detained in Sheriff Jordan’s custody from October 8, 1967 to February 9, 1968, awaiting trial for murder. After several requests Robinson was seen at least twice by Dr. Gates, who diagnosed his severe rectal pains as caused by hemorrhoids. Digital examination was rejected by Robinson as too painful and he was refused X-Rays and other clinical tests. It is alleged that the doctor coupled his refusal with an insulting slur on Robinson’s race. The rectal suppositories supplied by Dr. Gates did not alleviate his suffering and he alleges he plead guilty on February 8, 1968 to murder in order to get out of Sheriff Jordan’s jail and secure treatment in the Texas State Department of Correction. On April 10, 1968, a prison doctor diagnosed Robinson’s condition as advanced rectal cancer, removed a portion of his colon and left him with an open colostomy.

Robinson seeks money damages under Section 1983, alleging negligence in treating him, denial of medical treatment, and discrimination against him. The trial judge concluded that assuming proof of all facts alleged, and viewing them in the light most favorable to the appellant, he would be entitled to no relief. Recognizing that court interference in jail administrative problems is justified only in “exceptional cases” Granville v. Hunt, 5 Cir. 1969, 411 F.2d 9, 12 and that in the area of medical treatment prison officials have a “broad discretion” under the civil rights statutes, Haskew v. Wainwright, 5 Cir. 1970, 429 F.2d 525, 526, we nonetheless believe that a full evidentiary hearing of this claim is mandated by the concept of liberal notice pleading, particularly as enforced by the civil rights context here present. This complaint may not be viewed under a narrow negligence or medical malpractice concept. A constitutional violation is asserted, however inartfully, of denial of essential medical care while detained awaiting trial.

The trial judge alternatively stated: “It additionally appears that a doctor hired to treat prisoners is not acting under color of state law and hence is immune from malpractice suits under Section 1983 as would be a court-appointed attorney”. This holding was erroneous since Dr. Gates acted solely in his official capacity as a county health officer in treating appellant. This was state action. Under a Texas statute, Vernon’s Ann.Tex.Civ.St. art. 4423 (1966) the Sheriff had a statutory duty to provide medical care to Robinson, a county jail detainee. Dr. Gates was not acting as a private physician but treated Robinson at the Sheriff’s request because of his official employment.

The cases relied on by the district judge holding that suits may not be maintained under Section 1983 against privately retained attorneys or court-appointed attorneys are inapposite. Robinson’s detention prevented his seeking' a -physician of his choice. He did not enjoy the option of dismissing his doctor and securing another such as that open to a client dissatisfied with an attorney, appointed or retained. He was required to depend totally upon Dr. Gates, the county physician. Further,, unlike the situation in the cases dealing with suits against attorneys, this case involves more than a claim of negligence or ineffective assistance: gross misconduct causing severe permanent bodily injury and aggravated by racial prejudice is the charge brought against Dr. Gates. He must be required to respond.

We find it unnecessary to reach and hence express no views with respect to appellant’s contention that Robinson, as a detainee awaiting trial, was or may be entitled to a higher degree of medical care than a convicted prisoner. This is a matter for initial consideration by the lower court.

The judgment appealed from is vacated and this cause is remanded for further proceedings consistent herewith. Vacated and remanded.

“. . . It is the duty of the county health officer at the request of the Commissioners’ Court, the sheriff or other proper authorities to attend and render medical assistance to prisoners confined in the county jail and said officers may be allowed any reasonable compensation by the Commissioners’ Court for such services actually rendered.” Op.Tex.Atty.Gen. 0-3191 (1941).

      . Conley v. Gibson, 1951, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80.

      . Haines v. Kerner, 1972, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652; Jiminez v. Beto, 5 Cir. 1972, 468 F.2d 616; Campbell v. Beto, 5 Cir. 1972, 460 F.2d 765, 767-768; Piper v. Hauck, 5 Cir. 1972, 455 F.2d 1383; Hughes v. Noble, 5 Cir. 1961, 295 F.2d 495.

      . Cf. Whirl v. Kern, 5 Cir. 1968, 407 F.2d 781, cert, denied 1969, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177; Anderson v. Nosser, 5 Cir. 1971, 438 F.2d 183, modified, en banc, 5 Cir. 1972, 456 F.2d 835.

      . The Texas Attorney General has recognized this obligation:

      . Nelson v. Stratton, 5 Cir. 1972, 469 F.2d 1155.

      . O’Brien v. Colbath, 5 Cir. 1972, 465 F.2d 358; Gittlemacker v. Pennsylvania, E.D.Pa. 1968, 281 F.Supp. 175, aff’d, 3 Cir. 1969, 413 F.2d 84, cert, denied 1970, 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691.


author: PHILLIPS, Chief Judge.

text:
    Nellie DEWALD et al., Plaintiffs, v. MINSTER PRESS COMPANY, Defendant-Third Party Plaintiff-Appellant, v. ROSS OPERATING VALVE COMPANY, Third-Party Defendant-Appellee.
    No. 73-1615.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 5, 1974.
    Decided April 11, 1974.

      Jay M. Smyser, Chicago, 111., for appellant; Buell Doelle, Vandeveer, Doelle, Garzia, Tonkin & Kerr, Detroit, Mich., on brief.
    Paul A. Rosen, John A. Kruse, Detroit, Mich., for appellees; Goodman, Eden, Millender, Goodman & Bedrosian, on briefs, Detroit, Mich., for Nellie De-wald and David Dewald.
    Harvey, Kruse & Westen, John A. Kruse, Detroit, Mich., for Ross Operating Valve Co.
    Before PHILLIPS, Chief Judge, LIVELY, Circuit Judge, and MC-ALLISTER, Senior Circuit Judge.
   PHILLIPS, Chief Judge.

This unusual case concerns third-party practice, Rule 14, Fed.R.Civ.P. The question presented is whether, in an action for indemnity, a third-party defendant is bound necessarily by a directed verdict against the defendant and third-party plaintiff in the principal action.

Minster Press Company, the defendant and third-party plaintiff, appeals from a judgment in a product liability case entered on separate jury verdicts. Jurisdiction is based on diversity of citizenship. We affirm.

The plaintiff, Mrs. Dewald, an industrial press operator, lost most of both of her hands when her press malfunctioned. She and her husband, alleging negligence, breach of warranty and defects in parts and workmanship, sued Minster, the company which had installed the press. In turn, Minster, alleging that Mrs. Dewald’s accident had been proximately caused by the valve manufactured by Ross Operating Valve Co., filed a third-party complaint against Ross in which Minster asked for indemnity in the event Minster be held liable to Mr. and Mrs. Dewald.

At the trial both counsel for Mr. and Mrs. Dewald and Minster advised the jury in their opening statements that they intended to prove that Mrs. De-wald’s injury was caused by a manufacturing defect in the Ross valve for which Ross should be held liable. Further, counsel for Minster stated that Minster had advanced Mr. and Mrs. De-wald $300,000 and conceded Minster’s liability on the theory that Minster had been a conduit for the allegedly defective Ross valve. Counsel for Ross, the third-party defendant, contended that the evidence would show that the defect in the valve came from Minster’s installation of it.

Following opening statements, counsel for Ross, noting Minster’s admission of liability and the agreement between Mr. and Mrs. Dewald and Minster as to who was the responsible party, effectively moved for a directed verdict for Mr. and Mrs. Dewald against Minster. Counsel for Mr. and Mrs. Dewald joined in the motion. Minster adhered to its admission of liability but objected to the motion on .the ground that the court earlier had denied a motion for summary judgment.

District Judge Philip Pratt, noting that Minster’s admission in its opening statement injected a new variable not present at the time of the earlier motion, granted the motion for directed verdict insofar as liability was concerned, leaving for the jury only the issue of damages. The District Court further indicated that there should be separate trials of the damage issue in the principal case and the liability issue involved under the third-party complaint.

The damage issue then was tried and the jury returned verdicts awarding Mrs. Dewald $500,000 and Mr. Dewald $75,000. The court thereupon excused the jury from further consideration of the case and impaneled a second jury to try the liability issue between Minster and Ross on the third-party complaint. At the second trial, Minster’s motion for summary judgment was denied and the jury subsequently returned a verdict of no cause of action. On these separate jury verdicts the District Court entered the judgment from which this appeal was perfected.

Minster’s primary contention on appeal is that the District Court erred in denying its motion for summary judgment against Ross at the second trial because Ross, the third-party defendant, had assumed the “laboring oar” at the first trial to procure a judicial determination that Minster, the defendant and third-party plaintiff, was liable to Mr. and Mrs. Dewald, the original plaintiffs. Minster asserts that when Ross moved for a directed verdict for Mr. and Mrs. Dewald at the first trial, its only basis for so moving was Minster’s theory that Minster was only a conduit for the defective Ross valve. In response, Ross states that it did not intend to be bound by Minster’s theory of liability and was merely asking for a realignment of the parties in order to preserve adversity among the litigants.

Minster’s entire contention is based on the fallacious premise that the District Court based its grant of directed verdict upon Minster’s theory of liability. The record reveals no- evidence whatsoever to suggest that the District Court accepted Minster’s theory of liability. Indeed, the District Judge stated he was granting the directed verdict to insure a fairer and less complex trial and specifically indicated that he was deferring resolution of the liability issue to a later trial.

Assuming arguendo that Ross took up the “laboring oar” in obtaining a directed verdict for Mr. and Mrs. Dewald, we find no basis in Rule 14, Fed.R.Civ.P., or in the authorities cited by Minster, for concluding that the District Court erred in denying Minster’s motion for summary judgment at the second trial. As this court recognized in LASA Per L’lndustria Del Marmo Societa Per Azioni v. Alexander, 414 F.2d 143, 146 (1969), the purpose of Rule 14 is to avoid circuity of actions by disposing of an entire subject matter arising from one set of facts in one action. This purpose does not preclude severance of the third-party claim for separate trial where trial in one action would unduly complicate the litigation or prejudice a party. See generally 6 Wright & Miller, Federal Practice and Procedure, Civil § 1460, at '318-25 (1971). While Rule 14(a) expressly permits the third-party defendant to assert against the plaintiff any defenses which the third-party plaintiff had to the plaintiff’s claim, no policy behind Rule 14 guarantees a third-party plaintiff that its position against the plaintiff will be defended by the third-party defendant.

Each of the cases cited by Minster for its proposition that a directed verdict against a defendant and third-party plaintiff is necessarily binding against the third-party defendant is distinguishable from the present one. For example, in Knell v. Feltman, 85 U.S.App.D.C. 22, 174 F.2d 662 (1949), the third-party defendant was bound by the adjudication of the defendant’s liability to the plaintiff because the jury had found that the defendant and third-party defendant were concurrently negligent. In Horton v. Moore-McCormack Lines, Inc., 326 F. 2d 104 (2d Cir. 1964), the third-party defendant was an employee of the third-party plaintiff and necessarily any negligence on the part of the third-party plaintiff had to be caused by the negligence of the third-party defendant and the jury so found. In Caputo v. U. S. Lines Co., 311 F.2d 413 (2d Cir. 1963), the court emphasized that where the principal claim is tried to a jury, the third party defendant is bound by the determination.

In none of these or other cases cited by Minster was the liability of the defendant and third-party plaintiff determined by its own admission. It would be unfair for the third-party defendant to be bound automatically by the admission of liability by the defendant and third-party plaintiff, especially in a case such as this where 1) the third-party defendant demonstrates that its motion for directed verdict for the original plaintiffs was not intended as an acceptance of the theory of liability of the defendant and third-party plaintiff, 2) if the third-party defendant had remained silent, it might have been prejudiced by the lack of adversary positions between the original plaintiffs and the defendant, and 3) the District Court found specifically that a directed verdict was justified because no factual issues remained to be resolved and that a directed verdict would simplify the trial of the remaining issues. Accordingly, we hold that the District Court did not err in denying Minster’s motion for summary judgment at the second trial.

Minster’s secondary contention is that the District Court abused its discretion in impaneling a second jury to try the bifurcated liability issue. In Moss v. Associated Transport, Inc., 344 F.2d 23, 25 (1965), this court recognized that under Rule 42(b), Fed.R.Civ.P., the ordering of separate trials on the issues of liability and damages is within the sound discretion of the trial judge. See also Crummett v. Corbin, 475 F.2d 816, 817 (6th Cir. 1973). In addition, Rule 14(a), Fed.R.Civ.P., specifically permits motions for severance or separate trial of third-party claims. Minster’s claimed prejudice of double court expenses resulting from the two trials is of minor significance as compared to the potential prejudice to Ross resulting from the lack of adversary positions between the plaintiffs and the defendant and the complexity of the facts and issues both of which required separate trials of the liability and damage issues. Accordingly, we hold that the District Court did not abuse its discretion in impaneling a second jury to hear the bifurcated liability issue.

Affirmed.

      . Counsel for Minster said: “[W]e expect on the basis of the proof here that you will find a verdict against Minster, my client, and then in turn set it over against Boss Operating Valve Oo. as the one really chargeable with the error in this case.”

      . Counsel for Ross stated:
      “Under no circumstances should the plaintiff and the defendant who are now allied as to both liability and damages be permitted to call and cross-examine each other’s witnesses .... [B]ased on the opening statements, the plaintiff should not be permitted to participate in the liability issues at all. . . . the plaintiff is entitled to a directed verdict on liability, against Minster. ...”


author: SEITZ, Chief Judge.

text:
    Sarah M. BRYAN et al. v. PITTSBURGH PLATE GLASS COMPANY, (PPG INDUSTRIES, INC.) et al. Objecting Plaintiffs, Marie Abate et al., Appellants.
    No. 73-1697.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 15, 1974.
    Decided April 4, 1974.

      Joseph M. Maurizi, Joseph W. Conway, Balzarini, Walsh, Conway & Mauri-zi, Pittsburgh, Pa., for plaintiffs-appel-lees.
    Scott F. Zimmerman, Walter P. DeForest, John M. Mazur, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for PPG Industries, Inc.; Nicholas R. Criss, Jr., Pittsburgh, Pa., of counsel.
    dayman & Jaffy, Stewart R. Jaffy, Columbus, Ohio, for appellees, United Glass & Ceramic Workers of North America, AFL-CIO, etc., et al.
    Jane M. Picker, Rita Page Reuss, Charles E. Guerrier, Lisabeth A. Moody, Cleveland, Ohio, Martin Lubow, Pittsburgh, Pa., for objecting plaintiffs-appellants; Howard Moore, Jr., Elizabeth R. Rindskopf, John R. Myer, Moore, Alexander & Rindskopf, Atlanta, Ga., of counsel.
    William A. Carey, Gen. Counsel, Joseph T. Eddins, Jr., Associate Gen. Counsel (Acting), Beatrice Rosenberg, Charles L. Reischel, Josephine A. Treva-than, Washington, D. C., Equal Employment Opportunity Commission, amicus curiae.
    Before SEITZ, Chief Judge, and KALODNER and ALDISERT, Circuit Judges.
   OPINION OF THE COURT

SEITZ, Chief Judge.

Appeal is taken here, pursuant to 28 U.S.C. § 1291 (1970), from an order of the district court for the Western District of Pennsylvania approving settlement of a class suit and dismissing the complaint with prejudice. The suit was filed on behalf of women presently or formerly employed at the Pittsburgh Plate Glass Company’s Creighton plant. Plaintiffs allege that defendants Pittsburgh Plate Glass Company (“PPG”) and the United Glass and Ceramic Workers (“the Union”) engaged in sex discrimination violating Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. (1970).

The factual setting for this suit is not complex. Both before and after the effective date of the Civil Rights Act of 1964, PPG classified jobs at its Creighton plant as available to men only or to women only; no job was open to both men and women. Because men and women were not eligible for the same jobs, separate seniority lists were kept. In the 1940’s and 1950’s, PPG laid off a great number of its Creighton employees. These employees, however, continued to accrue seniority while on layoff since the bargaining agreement between PPG and the Union contained no termination provision.

When PPG’s Creighton operation experienced a brief upsurge in business, in 1966 and 1967, men were recalled from lay-off and new employees were hired to fill male-only positions. No women were recalled, although had the seniority lists been merged, many women would have been senior to most of the recalled male employees. Complaints filed with the Equal Employment Opportunity Commission (EEOC) resulted in a conciliation agreement pursuant to which PPG merged seniority lists and opened certain jobs to both men and women. Other jobs remained open to only one sex.

In 1969, PPG and the Union negotiated an agreement covering Creighton employees by which employment rights of employees laid off for more than five years were terminated. This agreement immediately terminated the rights of 452 women, but no men. Sex discrimination charges again were filed with EEOC. EEOC made no final determination, but issued a “right-to-sue” letter to the complainants. Three women who had filed charges with the EEOC brought suit against PPG and the Union.

The district court found maintenance of a class action proper under Rule 23(b)(2) and (b)(3), and the class was defined as the 452 women initially terminated by the cut-off provision negotiated by defendants. Notice was given to the class, and a number of class members opted out of this litigation. After plaintiffs had completed presentation of their case and defendants had presented a substantial part of theirs, agreement on a settlement was reached. Class members were notified of the proposed settlement’s terms and were given the oportunity to voice, and brief, objections. Subsequently, the district court approved the settlement, and 82 objecting plaintiffs appealed.

I.

The district court has considerable discretion in determining whether a settlement is fair and reasonble, and its determination will be reversed only for abuse of discretion. Appellants, objecting plaintiffs, contend that the district judge abused his discretion in approving the settlement here. The first argument advanced' to support this contention is that the plaintiffs’ case was relatively strong as compared to defendants’ and, therefore, that it was clearly not reasonable to grant plaintiffs a very small percentage of claimed back pay.

Consideration of the merits of the case is one step in determining the likely rewards the class would secure, if any, from prosecuting the litigation to a conclusion. United Founders Life Insurance Co. v. Consumers National Life Insurance Co., 447 F.2d 647, 655-656; (7th Cir. 1972); cf. Protective Committee v. Anderson, 390 U.S. 414, 424-425, 88 S.Ct. 1157, 20 L.Ed.2d 1 (1968). The court, of course, need only evaluate the probable outcome of the litigation and is not required to weigh and decide each contention; further, the probable result at trial must be balanced against the probable costs, in both time and money, of continued litigation. Id. With these caveats in mind, we turn to a consideration of the plaintiffs’ and defendants’ cases.

Plaintiffs would seem to have made out a prima facie case of violation of Title VII’s prohibition on sex discrimination. See 42 U.S.C. § 2000e-2(a) & (c) (1970); cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). They have shown a past discriminatory policy and an action having immediate discriminatory impact on employment rights. Because plaintiffs probably would be found to have established a prima facie case of sex discrimination, defendants would bear the burden of justifying their discriminatory conduct. Muniz v. Beto, 434 F.2d 697, 700 (5th Cir. 1970).

Defendants assert that negotiation of the seniority cut-off provision was not discriminatory. They point out that the provision, although initially terminating rights only of women employees, thereafter terminated the employment rights of numerous male employees. Indeed, continued adherence to this provision is likely to terminate the rights of more men than women. Defendants insist that the termination provision was instituted to promote PPG’s “business purpose” of securing a work force of balanced age. Coupled with a questionable discriminatory effect, this business purpose might well lead the district court to conclude that the negotiation of the seniority cut-off did not constitute discrimination on the basis of sex and, hence, was not an unlawful employment practice. Cf. Robinson v. Lorillard Corp., 444 F.2d 791, 796-797 (4th Cir. 1971), cert, denied, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1972).

The appellants, however, contend that the defendants’ action becomes discriminatory when viewed in light of PPG’s established system of job-classification by sex. Assuming that the legal theory underlying this contention is correct, we note that PPG claims that its job classifications were proper, and to support its claim, PPG has made allegations that appear to satisfy some of the disparate tests for ascertaining a bona fide occupational qualification. See Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228, 235 (5th Cir. 1969); Developments in the Law — Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev., 1109, 1177-81 (1971). As an additional defense, the defendants assert that plaintiffs’ suit is barred by failure to file charges with the EEOC within ninety days of the alleged unlawful practice, here negotiation and adoption of the seniority cut-off provision. Timely filing with the EEOC has been held a jurisdictional prerequisite to maintenance of a Title VII suit, e. g., Mickel v. South Carolina State Employment Service, 377 F.2d 239, 242 (4th Cir. 1967), and plaintiffs appear not to have met that prerequisite.

Two final points concerning the probable outcome of trial here are made by defendants. First, while appellants complain that plaintiffs are receiving a small percent of their back pay claim, plaintiffs have failed to indicate how they would substantiate their claim. Second, defendants correctly note that award of back pay is discretionary, and it is not clear that failure to award such relief here, were plaintiffs successful, would constitute an abuse of discretion. See Kober v. Westinghouse Electric Corp., 480 F.2d 240, 247-250 (3d Cir. 1973). In light of their defenses, we believe there is a strong likelihood that PPG and the Union would not have been held liable to plaintiffs for back pay. We, therefore, reject appellants’ contention that, given the likely trial result, the district court abused its discretion in approving the settlement for a low proportion of plaintiffs’ asserted loss.

ii.

Appellants contend, however, that the district court abused its discretion in approving as fair and reasonable the particular settlement proposed here when more than twenty percent of the class plaintiffs objected. While the proportion of the class opposed to a settlement is one factor to be considered in assessing its fairness, see C. Wright & A. Miller, Federal Practice and Procedure Civil § 1797 and cases cited n. 42 (1972), a settlement is not unfair or unreasonable simply because a large number of class members oppose it. The drafters of Rule 23 chose as a means of protecting the class the requirement that the district court approve the settlement. They did not require rejection of a settlement on objection of a given part of the class.

Rather than asserting that the number of objectors alone makes approval of the settlement improper, appellants argue that the number of objectors coupled with the nature of the right class members seek to vindicate make approval an abuse of discretion. The right to be free from discrimination is a personal right. See Robinson v. Lorillard Corp., supra, 444 F.2d at 799. Appellants argue that litigants should not be forced to abandon personal, as opposed to joint, rights without a judicial decision on the merits. The present Rule 23, however, makes no distinction for settlement purposes between class suits formerly called “true” class actions, where the class shares a joint right or liability, and class suits formerly denominated “hybrid” or “spurious,” where rights or liabilities are several. Fed.R. Civ.P. 23(e), 23.1, 23.2; see J. Moore, 3B Moore’s Federal Practice j[ 23.-80[1] & [2] (2d ed. 1974). Thus, if it is improper to approve a settlement compelling appellants to abandon their claims against defendants, this impropriety must spring from the nature not of personal rights in general but of the specific rights asserted by the class here.

Appellants, as well as the EEOC speaking as amicus curiae, note that actions prosecuted by the Attorney General under Title VII cannot bind the discriminatee as res judicata or collateral estoppel. Williamson v. Bethlehem Steel Corp., 468 F.2d 1201, 1203-1204 (2d Cir. 1972). Since they argue, class representatives in a Title VII action function as “private attorneys general,” such representatives should not be more able to bind unconsenting plaintiffs than the Attorney General. This analogy fails on two grounds. First, the class representatives do not bind dissenting class members; the district court, not the class representatives, must determine that the settlement is fair and reasonable. Second, class suits serve different ends than do public suits. The Attorney General’s prosecution of a suit is governed by desire to achieve broad public goals and the need to harmonize public policies that may be in conflict; practical considerations such as where limited public resources can be concentrated most effectively, may dictate conduct of a suit inimical to the immediate interests of the discriminatee, who presumably seeks full satisfaction of his individual claim regardless of the effect on other cases.

Unlike suit by the Attorney General or even by a “private attorney general,” who sues to protect public rights, the class action seeks to vindicate the rights of specific individuals, the class members ; and unlike the public action, for a class action to be maintained the class representatives must be members of the class, have claims typical of the class and adequately represent the interests of absent class ' members. Fed.R.Civ.P. 23(a). Further, this action having been classed as a 23(b)(3), as well as (b)(2), class suit, the class members were given the opportunity to opt out of the litigation. It does not seem anomalous to allow a court-approved class settlement, but not a suit by the Attorney General, to compromise a discriminatee’s Title VII claim.

III.

Although the district court did not abuse its discretion in finding the settlement fair and reasonable, appellants contend that the judgment of the district court must, nonetheless, be reversed. Appellants argue that the district court erred in defining the class broadly for all purposes when the class was clearly divisible into two sub-classes seeking different relief. The more senior class members are presumed by appellants to be interested in securing only back pay, while appellants desire reinstatement as well.

Where some ascertainble characteristic shared by only some members of a class causes them to seek relief not desired by the remaining members, it may be improper to treat the class as unitary. A pertinent illustration is offered by the Seventh Circuit’s decision in Air Line Stewards & Stewardesses Association v. American Airlines, Inc., 490 F.2d 636 (7th Cir. 1973), although the court there focused on whether a proper class representative had been selected. The suit in Air Line. Stewards, which challenged American Airlines’ policy of discharging stewardesses who became pregnant, was originally filed on behalf of presently employed stewardesses who did or might desire to become pregnant and on behalf of stewardesses whose employment was terminated due to pregnancy. Obviously, those still employed by American could have an interest only in revocation of the airline’s discharge-for-pregnancy policy, while former employees could assert claims for back pay and reinstatement as well.

No such distinction appears here. All class members are former PPG employees terminated at the same time for the same reason by the same action. No difference among the plaintiffs appeared until some objected to the settlement ; and we cannot assume that objection to the settlement sprang from differences generic to one identifiable group of plaintiffs. We, therefore, reject appellants’ contention that the district court erred in refusing to divide the class into sub-classes.

Finally, appellants challenge the sufficiency of the district court’s statement of its reasons for approving the settlement and dismissing the suit. It is essential in cases such as this that the district court set forth the reasoning supporting its conclusion in sufficient detail to make meaningful review possible; use of “mere boilerplate” language will not suffice. Protective Committee v. Anderson, supra, 390 U.S. at 434, 88 S.Ct. 1157. Here the district court’s opinion meets that requirement; it catalogues the parties’ contentions, indicates the court’s view of their strengths, and notes additionally the substantial delays likely in ascertaining appropriate back pay, should plaintiffs win such relief. To require a fuller statement of the court’s views would turn a decision on approval of a proposed settlement into a determination on the merits in all but name.

The judgment of the district court will be affirmed.

      . Defendants also contend that, even if discriminatory, the termination provision is not unlawful because it was required by PPG as .a “business necessity.” We do not find consideration of this defense necessary.

      . PPG claims that it can prove that all or substantially all women would be incapable of the repetitive lifting of heavy loads of glass (which, PPG asserts, is a fragile and dangerous matter) required for formerly male-only jobs and that no practicable test exists to isolate individual women, if any, who may be capable of performing such jobs. We note, however, that in 1973 PPG abandoned all job classification by sex.

      . The time limit for filing charges with the EEOC has been expanded, since the commencement of this suit, from ninety to one-hundred-eighty days from occurrence of the alleged unlawful practice. See 42 U.S.C. § 2000e-5(e) (Supp. II 1972). We assume that this change does not alter the prerequisites for plaintiffs’ suit.