author: BATTIN, District Judge: BROWNING, Circuit Judge

text:
    Lieutenant Robert E. SHOLARS, United States Navy, 732010, Petitioner-Appellant, v. Rear Admiral Alfred R. MATTER, Commandant, 12th Naval District, Treasure Island, California, and Vice Admiral Dick H. Guinn, USN, Chief of Naval Personnel, Washington, D. C., Respondents-Appellees.
    No. 71-3078.
    United States Court of Appeals, Ninth Circuit.
    Jan. 11, 1974.

      John Vaisey (argued), of Somers, Fallen & Vaisey, San Francisco, Cal., for petitioner-appellant.
    James R. Browning, U. S. Atty., Joseph Reeves, Asst. U. S. Atty. (argued), San Francisco, Cal., for respondents-appellees.
    Before BROWNING and WRIGHT, Circuit Judges, and BATTIN, District Judge.

       Honorable James F. Battin, United States District Judge, District of Montana, sitting by designation.

   BATTIN, District Judge:

Sholars appeals the dismissal for lack of jurisdiction of his petition for a writ of habeas corpus, He sought the writ on the grounds that he was illegally denied a conscientious objector discharge from the United States Navy. As the district court did not reach the merits of his claim, the only reviewable issue on this appeal is its conclusion regarding jurisdiction. This court’s power to proceed is founded upon 28 U.S.C. § 1291.

Sholars was commissioned after graduation from the United States Naval Academy in 1968. Until the filing of this petition he had had no overseas assignments. In June 1970 he was selected for a post-graduate study program at Navy expense, leading to a master’s degree in civil engineering at the University of California, Berkeley. He completed the program, was granted the degree, and was given orders on July 8, 1971, to report to Naval School, Civil Engineer Corps Officers, Port Hueneme, California, by August 18, 1971. On July 21 he accepted a promotion to the grade of lieutenant and executed a new oath of allegiance in the regular form.

On August 12, before departing for Port Hueneme, he submitted an application for discharge as a conscientious objector to the Chief of Naval Personnel, through the Commanding Officer of the NROTC unit at Berkeley. The latter officer duly forwarded it directly, and not through Rear Admiral Matter, Commandant, 12th Naval District, one of the respondents. On the following day, Lt. Sholars proceeded to Port Hueneme.

The nine-week school at Port Hueneme was to precede an ultimate permanent duty station in Saigon, Viet Nam. But, on September 29, 1971, Sholars’ orders changed his ultimate permanent duty station to the Naval Station, Guam, and authorized thirty days’ delay in reporting, to be charged as leave.

The request for a conscientious objector discharge was denied on October 1 by a letter addressed to Lt. Sholars through the Commanding Officer of the School at Port Hueneme. No communication to this effect went to the Commandant, 12th Naval District, or the commanding officer of the NROTC unit at Berkeley.

After being detached from the school at Port Hueneme on October 22, Sholars proceeded to Northern California. But, rather than reporting for transportation at Travis Air Force Base, he filed this action on November 23. Rear Admiral Matter and Vice Admiral Guinn were, respectively, the Commandant of the Twelfth Naval District and the Chief of Navy Personnel. Admiral Matter was physically within the territorial limits of the judicial district in which the action was brought; Vice Admiral Guinn was physically present at his duty station in Virginia.

DISCUSSION:

The power of the district court to issue the writ requested is legislatively limited to its territorial jurisdiction. Prerequisite to a legitimate exercise of the power is a conclusion that the contested custody and the custodian are found within the territorial jurisdiction of the court. We are called upon to determine the accuracy of the district court’s conclusions. Those conclusions are that one respondent, Admiral Matter, while within the boundaries of the Northern District of California, was not a custodian, that the other respondent, Admiral Guinn, did not exercise custody and control over the petitioner within the district, and that the petitioner’s presence within the district was purely casual.

ADMIRAL MATTER:

Assuming that this officer had once been petitioner’s custodian for habeas corpus purposes, we conclude that relationship had terminated by the time of filing. More than three months elapsed from petitioner’s detachment from the Twelfth Naval District to the filing of his petition. That is a factor which this court cannot ignore and one which logically compels our decision.

ADMIRAL GUINN:

We conclude that naming Admiral Guinn as respondent likewise fails to confer jurisdiction on the district court. The district court’s conclusion that this respondent did not exercise control over the petitioner within the judicial district is, in our view, correct.

We reject as a matter of law the contention that the Chief of Naval Personnel [CNP] is, for habeas corpus purposes, the custodian of active duty Naval officers on authorized leave between duty stations. We have previously declined to accept that interpretation of Naval Regulations. While the facts precipitating the earlier rejection are the geographic converse of those involved here, an examination of the authority vested in the CNP over Naval officers between duty stations leads the court to conclude that the CNP was not this petitioner’s custodian on November 23, 1971. Those regulations vest in the CNP only nominal control over Naval officers between assignments. Only the most tenuous construction of those regulations can render the CNP anything more than an administrator.

IN CUSTODY:

The conclusion that Sholars’ presence in the district was purely casual is, in our view, correct. Nevertheless, the petitioner, relying upon Strait v. Laird, supra note 5, argues that the district court in the Northern District of California had jurisdiction for two reasons: (1) It was the district in which Lt. Sholars had a residence, in Berkeley, and (2) it was the district wherein he had filed an application for discharge as a conscientious objector. His reliance upon the rule in Strait is misplaced. Strait involved an application for discharge as a conscientious objector of an unattached Army Reserve officer not on active duty, domiciled at all times in California, ordered to report for active duty in Georgia, but whose military records were kept at Fort Benjamin Harrison, Indiana. In holding that Strait could litigate in California, the court found two reasons: (a) Only in California had he had meaningful contact with the Army, and (b) needless expense and inconvenience would be entailed if he were to be required to go to Indiana where he had never been.

Lt. Sholars had once had “meaningful contacts” with the Navy in Berkeley while he was a civilian student there obtaining a master’s degree at government expense, as well as at prior duty stations. When he left Berkeley, pursuant to orders, for further schooling for nine weeks at Port Hueneme, he terminated his “meaningful contacts” with the Northern District of California and established new ones in the Central District of California. Port Hueneme was not a way station, or collecting point, or transportation center where casual officers gathered for overseas transportation. It was indeed a duty station for nine weeks where significant military duties were to be performed. There, Sholars was under military discipline and control, serving in uniform, and gathering additional experience and qualifications for his next duty overseas.

We also reject the argument of the Government that only in the Territory of Guam does any district court have jurisdiction. It is consistent with the holding in Strait, supra, and with the decision of other Courts of Appeals that service personnel under orders to overseas assignments are not required to litigate their conscientious objector claims only after traveling to the overseas base.

In short, this court finds that Sholars simply was not in custody in the Northern District of California on November 23, 1971, because his presence there was “casual”. A review of several recent Circuit Court opinions lends support to the above conclusion. In Miller v. Laird, 474 F.2d 999 (5th Cir. 1973), a habeas corpus proceeding was initiated by an Army major asserting a conscientious objector claim. The Court of Appeals for the Fifth Circuit held that:

“Although Major Miller had signed out in the personnel register of his unit pursuant to orders requiring him to report to Viet Nam prior to the filing of the instant petition, the district court concluded that petitioner was still subject to the custody of the commanding general of the Fifth United States Army at the time of filing his habeas corpus petition. The district court relied on the following factual circumstances to establish this jurisdiction: First, petitioner did not complete his outprocessing from his former unit; second, petitioner’s financial records remained under the custody of the Feurth United States Army (which was merged with the Fifth United States Army); third, petitioner was physically present and quartered at Fort Sam Houston, Texas, on the date the original Petition for Writ of Habeas Corpus was filed, and while he was so present he was subject to the rules and regulations of Fort Sam Houston; and fourth, the headquarters of the Fifth United States Army subsequently issued and published special orders to petitioner reassigning him from Viet Nam to Fort Sam Houston, Texas.”
Miller v. Laird, supra, at page 1000.

In comparing the four factual circumstances in the above action with the instant case, the court concludes that the record before it includes no recitation of facts similar, or dissimilar, to those reviewed in the first, second, and fourth recitation in the Miller case. However, the third point, relating to Major Miller’s presence at an Army installation and subject to its rules and regulations on the date of filing of his original petition, can be easily contrasted with Sholars’ authorized leave status between duty assignments in the instant action. Sholars’ last meaningful contact with the Navy at Port Hueneme where he had been stationed for over a month.

Another recent case is that of Emma v. Armstrong, 473 F.2d 656 (1st Cir. 1973). In that action, the petitioner, an Army enlisted man, sought a discharge, and proceeded on a petition for habeas corpus in the Massachusetts District Court, naming the Commandant of Fort Devens, Massachusetts, as a respondent. After returning from a tour of duty in Viet Nam, Emma went home for a month’s leave in Rhode Island. The district court found that Emma mistakenly believed that he was to remain at home until he received his discharge or further instructions. Emma received nothing and eventually went to an Army post nearest his home (Fort Devens) to make inquiry. He was told that he must remain at the post while his inquiry was pursued. Petitioner declined and brought that action in District Court for the District of Massachusetts.

The Court of Appeals for the First Circuit upheld the district court’s finding of jurisdiction:

“With respect to jurisdiction, although the question is close, we accept the court’s finding that . . . Emma had established ‘meaningful contact’ at Fort Devens. . . . It is true that he did not submit himself to full custody, as in Meek v. Commanding Officer, 3 Cir. 1971, 452 F.2d 758. . . . Fort Devens, under the unusual circumstances of this case, was a natural place for him to go.”
Emma, supra at pages 657-658.

The petitioner in the instant case was not requested to remain at any post within the Northern District of California. And, Scholars’ last meaningful contact with the military was at Port Hueneme.

In an action before the Tenth Circuit, Sutton v. Laird, 468 F.2d 1376 (1972), the court affirmed the judgment of the United States District Court for the District of Utah where petitioner applied for a writ of habeas corpus while he was stationed in Utah, although he had already received orders to report to a California station and although he had already been detached from his Utah station for accountability purposes. The court had held:

“It is obvious that Sutton’s [the petitioner’s] relevant active duty contacts had been with the dispatching station at Dugway [Utah], . . . Not only had Sutton resided in Utah, but also the parties who conducted the basic investigation regarding his application while resident there. These meaningful contacts establish the presence of the requisite custodian in Utah.”
Sutton, supra at page 1377.

Again, Sholars’ relevant active duty contacts have been at Fort Hueneme.

In Hoover v. Kern, 466 F.2d 543 (5th Cir. 1972), the court found that the petitioner’s incarceration in Houston, Texas, was sufficient contact to constitute jurisdiction in the Southern District of Texas, although he was a United States Army Reservist last assigned to a reserve unit in Denver, Colorado. In the instant case, Sholars was not incarcerated anywhere. His last duty assignment was within the Central District of California.

In yet another action, Carney v. Secretary of Defense Melvin Laird, 462 F.2d 606 (1st Cir. 1972), the court held that a serviceman who is on leave under order to report for a new duty station could properly bring a habeas corpus action in the jurisdiction where his present duty station was located before the time for reporting to a new station had expired.

This court concludes that the rule above applies to Sholars, whose last meaningful contact was at Port Hueneme, within the Central District of California. It is a well-known principle of law that a.court will not issue the writ in a territory beyond its jurisdiction.

Dismissal affirmed.

BROWNING, Circuit Judge

(dissenting) :

The court’s opinion implicitly recognizes that to establish jurisdiction in a given district under 28 U.S.C. § 2241 a petitioner need only show meaningful contacts with the custodial authority in that district at the time of filing. Ante at p. 282; Strait v. Laird, 406 U.S. 341, 343, 92 S.Ct. 1693, 32 L.Ed.2d 141 (1972). I agree with this reading of Strait. In my opinion, however, appellant’s contacts with the military in the Northern District of California on November 23, 1971, were at least as “meaningful” as those in Guam or the Central District of California. I therefore dissent from the result reached by the court.

Northern California was the logical place for appellant to litigate his claim under traditional venue principles. His application for discharge as a conscientious objector was filed there. Six of the nine persons listed in the application as sources of “information as to the sincerity of the applicant’s professed convictions” were residents of the Northern District. The initial processing of the application by the Navy took place in the Northern District. Appellant was interviewed there by Naval officers Captain Hardage, senior chaplain, and Commander Harris, psychiatrist, as required by the Chief of Naval Personnel. The hearing on appellant’s application was held in the Northern District before LCDR Harrison, the hearing officer designated by the Navy. Captain Kerr, appellant’s commanding officer at Berkeley, forwarded the application, with endorsements, from the Northern District to the Chief of Naval Personnel, recommending appellant’s discharge. Thus, almost all of the substantial contacts with the Navy regarding the subject matter of the controversy occurred in the Northern District; most of the witnesses and other evidence bearing on the propriety of the denial of appellant’s application were located there.

On the other hand, the government had no real interest in preventing appellant from litigating his claim in the Northern District. One United States Attorney can handle such a petition as well as another, and the evidence required for the defense is more likely to be available in the Northern District than in the other suggested forums. While the government may have an interest in denying habeas corpus petitioners freedom to choose the forum they think most favorable, appellant’s decision to file in the forum that is the most logical one in which to litigate his claim hardly raises the evils of forum shopping. Unless 28 U.S.C. § 2241 clearly precludes jurisdiction in the Northern District, therefore, appellant should not be required to litigate elsewhere. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 493-494, 500, 93 S.Ct. 1123, 85 L.Ed.2d 443 (1973).

Feliciano v. Laird, 426 F.2d 424, 427 n.4 (2d Cir. 1970); Miller v. Chafee, 462 F.2d 335, 337 (9th Cir. 1972); Carney v. Laird, 462 F.2d 606, 607 (1st Cir. 1972); Sutton v. Laird, 468 F.2d 1376, 1377 (10th Cir. 1972); and Piland v. Eidson, 477 F.2d 1148, 1150-1151 (9th Cir. 1973), demonstrate that when a serviceman is in the course of transfer from one duty station to another, section 2241 jurisdiction exists in the district in which the dispatching station is located. Appellant received orders assigning him from his permanent station in Berkeley to a new permanent duty station in Guam (initially Vietnam), with 60-day “temporary duty under instruction” (Findings of Fact and Conclusions of Law at 2) at Port Hueneme. At the time appellant filed suit he had completed his instruction at Port Hueneme and returned to Berkeley on leave, prior to reporting to Guam. The temporary training assignment at Port Hueneme was collateral to appellant’s change of station from Berkeley to Guam. It is entirely unrealistic, and in no one’s interest—that of the courts, the Navy, or appellant—to treat Port Hueneme rather than the Naval Reserve Officer Training Corps unit at Berkeley as appellant’s detaching station for the purposes of applying the rule of the cited cases.

As the court notes, the Navy claims Admiral Matter was not appellant’s military custodian while appellant was on active duty in Berkeley. The Navy concedes, however, that if Admiral Matter was not appellant’s custodian, then Admiral Guinn, the Chief of Naval Personnel, was. Both respondents were “present” and properly served in the Northern District—Admiral Matter because he was physically there, and Admiral Guinn, if he was appellant’s “custodian,” because of appellant’s substantial contacts there with the Navy. Strait v. Laird, supra, 406 U.S. at 344, 345, 92 S.Ct. 1693. Since at least one of the respondents was appellant’s custodian at Berkeley, the detaching station, there was jurisdiction in the Northern District of California.

      . Deployment of the petitioner by the Navy has been stayed by Mr. Justice Douglas pending disposition of this appeal.

      . The Great Writ: Habeas Corpus Ad Subjiciendum. See: Carbo v. United States, 364 U.S. 611, 619, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961).

      . 28 U.S.C. § 2241.

      . Schlanger v. Seamans, 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971), reh. den. 402 U.S. 990, 91 S.Ct. 1671, 29 L.Ed.2d 156; Jarrett v. Resor, 426 F.2d 213 (9th Cir. 1970) ; Rudick v. Laird, 412 F.2d 16 (2nd Cir. 1969).

      . Ex Parte Endo, 323 U.S. 283, 306, 65 S.Ct. 208, 89 L.Ed. 243 (1944) ; Hirota v. MacArthur, 338 U.S. 197, 201, 69 S.Ct. 197, 93 L.Ed. 1902 (1948), concurring opinion of Mr. Justice Douglas announced June 27, 1949; Schlanger, supra note 5; Strait v. Laird, 406 U.S. 341, 92 S.Ct. 1693, 32 L.Ed.2d 141 (1972).

      . The Supreme Court has construed 28 U.S.C. § 2241 to require the habeas corpus petitioner’s presence within the forum judicial district. Ahrens v. Clark, 335 U.S. 188, 64 S.Ct. 1443, 92 L.Ed. 1898 (1948). The validity of that principle as an essential “third element” to a habeas corpus jurisdictional conclusion is now doubtful. Braden v. 30th Judicial District, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), makes clear that a habeas corpus petitioner’s presence within the district is not always required for an exercise of § 2241 power. Because Sholars was physically present within the forum district appealed from, no such issue is here raised.

      . The Government argues that Admiral Matter at no time was a custodian of the petitioner. The course of decision we follow does not require inquiry into that technical question.

      . The court judicially notices the fact that Port Hueneme is in the Eleventh Naval District and within a judicial district other than the Northern District of California where Sholars filed his petition.

      . Miller v. Chafee, 462 F.2d 335, 337 (9th Cir. 1972).

      . Port Hueneme is within the Central District of the State of California.

       As the majority notes, Miller v. Chafee, supra, rejects the contention that the Chief of Naval Personnel is the “custodian” of all active duty Naval personnel on leave between duty Stations; it does not follow that he would not be a proper respondent if, as the Navy argues, he was appellant’s commanding officer while appellant was on duty as a student at Berkeley.


source: Caselaw Access Project

author: WILLIAM E. MILLER, Circuit Judge. CELEBREZZE, Circuit Judge

license: Public Domain

text:
    James Earl RAY, Petitioner-Appellant, v. J. H. ROSE, Warden, Respondent-Appellee.
    No. 73-1543.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 9, 1973.
    Decided Jan. 29, 1974.

      Bernard Fensterwald, Jr., Washington, D. C., for petitioner-appellant; James H. Lesar, Washington, D. C., Robert I. Livingston, Memphis, Tenn., on brief.
    W. Henry Haile, Asst. Atty. Gen., Nashville, Tenn., on brief, for respondent-appellee ; David M. Pack, Atty. Gen., of counsel.
    Before PHILLIPS, Chief Judge, and CELEBREZZE and MILLER, Circuit Judges.
   WILLIAM E. MILLER, Circuit Judge.

James Earl Ray plead guilty on March 10, 1969, in a Tennessee criminal court to the charge of first degree murder in the assassination of Dr. Martin Luther King, Jr. He was sentenced to prison for a term of 99 years. Subsequently, after state remedies were denied without an evidentiary hearing, he petitioned the court below for a writ of habeas corpus, alleging certain constitutional violations. This appeal is from the denial of the writ and the failure of the district court to hold an evidentiary hearing on Ray’s claims of constitutional violations. For reasons which we explain below we hold that petitioner is entitled to an evidentiary hearing.

Petitioner was arrested in London in June of 1968. While awaiting extradition, he wrote attorney Arthur Hanes of Birmingham, Alabama, requesting that Hanes visit him and discuss the case. Hanes made plans to go to London but was apparently concerned about whether Ray would be able to pay his fee. Consequently, he was receptive to the suggestion of author William Bradford Huie that Hanes persuade Ray to give Huie exclusive rights to information about Ray and, presumably, the assassination. Huie would then write a book, and Hanes, Huie and Ray would share in the royalties. In London, Hanes met with Ray, agreed to represent him, but insisted that Ray enter into certain contractual agreements. Essentially these agreements provided as follows: (1) Hanes was given complete power of attorney for Ray; (2) Ray assigned to Hanes 40% of all monies that would be received as a result of a subsequent agreement between Hanes and Huie; (3) Hanes was to act as “exclusive agent and attorney” for Ray “in the handling of his affairs, contracts, negotiations, and sale of any and all rights to information or privacy which he may have in and to his life or particular events therein to persons, groups or corporations for the purpose of writing, publishing, filming or telecasting in any form whatever.”

After returning to Birmingham, Hanes met with Huie. The two then executed a tripartite contract, Hanes acting for Ray, which purportedly obligated Hanes and Ray to supply Huie with information on “The assassination of Martin Luther King, Jr., the alleged participation of Ray therein, and the life and activities of Ray . . . . ” Huie, in return, agreed to pay Hanes and Ray each 30% of the gross receipts from the sale of Huie’s work in the form of “magazine, book, dramatic, motion picture, television and/or other adaptations of every kind.”

On July 19, 1968, Ray was extradited to Memphis, Tennessee. Trial on the charge of murder was set for November 12, 1968. Only two days before the trial was to begin, Percy Foreman, a Houston attorney, responded to entreaties from Ray’s brothers by visiting him in the Shelby County Jail. As a result of that meeting, Ray asked Foreman to represent him and dismissed Hanes. On the date originally scheduled for trial, Foreman appeared as Ray’s counsel and was granted a continuance until March 3, 1969, so that he could properly prepare the case. However, the judge warned Ray that he had “been granted extraordinary relief at a great cost and this Court will certainly examine most critically any further attempts to change counsel.”

During subsequent hearings, Foreman complained that because of the heavy burden of his other cases and also a recent illness, he would be unable to be ready for trial on March 3. The judge stood firm but ordered the public defender, Hugh Stanton, to assist Foreman and to be ready, if necessary, to take over the defense. (Ray never approved of the appointment and refused to talk to Stanton). Foreman persisted, moving again for a continuance on February 14, 1969, primarily on the ground that the investigation had been slowed because of Hanes’ refusal to cooperate. This motion was granted; trial was reset for April 7, 1969.

On January 29 and February 3, 1969, Ray, Huie, Hanes and Foreman executed new agreements assigning to Foreman the rights that Hanes had formerly enjoyed under the original contracts. This time, however, Foreman was to receive 60% of the income from Huie’s works.

Ray never stood trial. On March 10, 1969, he plead guilty to a charge of first degree murder. Judge Battle then sentenced him to a term of 99 years in the Tennessee State Penitentiary, Almost immediately thereafter Ray wrote Judge Battle, asking for a trial and requesting appointment of counsel to assist him. Judge Battle died before acting on these requests. Subsequently the motions were denied by another judge.

Ray’s petition for habeas corpus relief was filed in the court below on December 4, 1969. The court denied an evidentiary hearing and held that petitioner’s plea of guilty was knowing and intelligent and thereby operated as a waiver of all non-jurisdictional, constitutional defects. Moreover, the factual allegations were found to be insufficient to justify a holding that petitioner’s constitutional rights were violated. Petitioner appeals from that decision.

Ray alleges that a number of his constitutional rights were violated during the course of his incarceration and the proceedings which culminated in his plea of guilty. In holding that the petition stated sufficient facts to show, if established as true, that the guilty plea was not intelligently and voluntarily entered, we focus primarily upon those factual allegations concerning improper and ineffective representation by counsel.

Petitioner asserts that the financial interest of his attorneys in the royalties from Huie’s works created a conflict of interest which encouraged the attorneys to compromise Ray’s defense in order to aid the sale of the book and possible movie. Foreman is alleged to have threatened and coerced both Ray and his family into a guilty plea. The reason for the pressure, allegedly, is that the book rights would be of little value were Ray to have been tried and found innocent. As a result, petitioner asserts that he was denied effective assistance of counsel and that the plea of guilty was neither voluntary nor intelligent. In support of his contentions, petitioner enumerates a long list of factual allegations. The following is a summarization of some of the most pertinent:

(1) Hanes had apparently authorized Huie to conduct the investigation of Ray’s ease. When Ray requested that a professional investigator be hired, Hanes refused.
(2) Ray felt that at trial it would be necessary for him to take the stand in his own defense so that he could explain his actions on the day of the murder. Hanes rejected the idea saying, “Why give testimony away when we can sell it?”
(3) Ray urged Hanes to seek a continuance because of substantial, adverse pretrial publicity. Hanes refused because the contract with Huie provided that they must go to trial within a certain number of days.
(4) When Foreman replaced Hanes as counsel, Ray asked him to hire a Tennessee lawyer to assist in the case'. Foreman said that he would retain John J. Hooker, Sr., but he never did.
(5) Despite the urgings of Ray, Foreman refused to take any action to halt adverse, pretrial publicity.
(6) On February 13, 1969, Foreman brought a document to the jail which he urged Ray to sign. Included therein was an authorization for Foreman to negotiate a guilty plea and also a waiver of any claim against either Huie or Look magazine for damaging Ray’s chances for a fair trial. Ray signed the document but gave Foreman a two-page letter listing reasons why he should not plead guilty. Foreman said that it would be in Ray’s interest to plead guilty even if he had not committed the crime: First, Ray stood to benefit financially. Second, John J. Hooker would be the next governor of Tennessee, and he would give Ray a pardon within two or three years. Third, the prosecution was prepared to bribe a key witness to testify against Ray. Fourth, Foreman indicated to Ray that if he refused to plead guilty, Foreman would exercise less than his best efforts at trial. Finally, he told Ray that he would not withdraw from the case and that Judge Battle would not allow Ray to change attorneys.
(7) Neither Foreman nor Hanes made any active investigation of the case against Ray.
(8) By letter of March 9, 1969, Foreman agreed to advance $500 to Ray’s brother Jerry “contingent upon the plea of guilty and sentence going through on March 10, 1969, without any unseemly conduct on your part in court.”
(9) By a different letter of March 9, 1969, Foreman agreed to assign to Ray all income in excess of $165,000 which Foreman would receive from Huie’s work. The assignment would take place when “the plea is entered and the sentence accepted and no embarrassing circumstances take place in ' the court room . . . ."

In deciding whether petitioner’s claims of constitutional violations warrant an evidentiary hearing, we are guided by the standards laid down by the Supreme Court in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). The Court there held that a district court must grant a hearing to an applicant for habeas corpus whenever “the merits of the factual dispute were not resolved in the state hearing . . . .” 372 U.S. at 313, 83 S.Ct. at 757. Elaborating on that directive, the Court said:

We hold that a federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.
There cannot even be the semblance of a full and fair hearing unless the state court actually reached and decided the issues of fact tendered by the defendant. Thus, if no express findings of fact have been made by the state court, the District Court must initially determine whether the state court has impliedly found material facts. No relevant findings have been made unless the state court decided the constitutional claim tendered by the defendant on the merits. 372 U.S. at 313-314, 83 S.Ct. at 757.

Applying these guidelines it is clear that the allegations which are the subject of Ray’s petition have never been tried upon their merits or resolved by any court—allegations which, if true, plainly negative any notion or idea that his guilty plea and his answers to Judge Battle were made voluntarily and intelligently. When petitioner entered his plea of guilty, Judge Battle, the Tennessee trial judge, instructed him as to his constitutional rights, as required, see Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), but no inquiry was made into the specific contentions that are now before this Court. The questions asked by Judge Battle although very thorough, were directed to the voluntariness of Ray’s guilty plea. Although these questions may have touched inferentialiy on the allegations in Ray’s petition, we believe that the Court in Townsend v. Sain, supra, contemplated more than inferential treatment when it spoke of a “full and fair” hearing on the merits. Only by such a hearing may it be determined whether the plea was intelligent or voluntary or entered as the result of coercion, threats and promises.

The district. court held that no hearing was required because the allegations, even if true, would not warrant issuance of the writ. Specifically, the court found that “the advice given to petitioner by his privately retained counsel ‘was within the range of competence demanded of attorneys in criminal cases’ ”. We do not agree. The allegations which we have recited above, if true, would support a finding that Ray’s attorneys deliberately compromised their client’s interests in order to further the financial success of Huie’s works in which they themselves had a substantial interest. Such conduct would constitute an outrageous abrogation of the standards which the legal profession sets for itself and upon which its clients have a right to rely. Clearly, these examples of misrepresentation, coercion and refusal to prepare for trial or protect the petitioner cannot be said to. be within the acceptable range of competence of an attorney. Instead, if petitioner’s assertions are correct, the actions of his attorneys made his defense “a farce and mockery of justice that would be shocking to the conscience of the court.” Matthews v. Wingo, 474 F.2d 1266 at 1268 (6th Cir., 1973). If the allegations of the petitioner are correct, the trier of the facts might easily infer that Ray in entering his plea of guilty before Judge Battle and in acknowledging his guilt and the voluntariness of his plea, was acting because of the wrongful conduct and pressure of his attorneys—amounting to intimidation and coercion on their part. It would be difficult to conjure up a more flagrant violation of an attorney’s duty to his client or one more likely to prejudice him in the defense of his case. While a lawyer in some circumstances may appropriately advise his client to plead guilty if he has knowledge of the pertinent facts and his advice is honestly and conscientiously given, the opposite is true where the attorney induces a plea of guilty solely for his own gain and without performing the minimum service of investigating the true facts of the case. The latter is true in the present case if we accept, as we must, the allegations of the petitioner. If an attorney’s duty is faithfully to protect and represent his client’s interests, uninfluenced and unaffected by conflicting considerations, as the courts have held, (leaving aside for the moment the “farce and mockery of justice” test), the necessity for an evidentiary hearing in the present case would appear to be inevitable. West v. Louisiana, 478 F.2d 1026 (5th Cir. 1973). We are not willing to sanction a rule that would permit an attorney to subordinate the rights of his client to receive fair and honest legal advice and related services to his own selfish interests.

Since petitioner plead guilty, he has waived his right to raise these possible constitutional violations unless it is shown that the waiver was made either involuntarily or unintelligently. United States v. Cox, 464 F.2d 937 (6th Cir. 1972). Waivers of constitutional rights are not lightly to be found. All of the surrounding circumstances should be examined to determine whether the waiver was in fact the product of improper coercion or inducement. Cf. Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Boykin v. Alabama, supra. Moreover, the role of competent counsel is crucial in advising the defendant of the nature of the charges and the defenses- available to him—so much so in fact that pleas entered without the assistance of counsel are subject to special scrutiny. Brady v. United States, 397 U.S. 742, 748, n. 6, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). In recent cases in which the Supreme Court has found guilty pleas to be voluntary, it has assiduously pointed to the presence of competent counsel. See Brady v. United States, supra at 756, 90 S.Ct. 1463; McMann v. Richardson, 397 U.S. 759, 767, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); see also Colson v. Smith, 438 F.2d 1075 (5th Cir. 1971). If pleas entered in the absence of counsel are subject to special scrutiny, it follows, a fortiori, that allegations that counsel having a direct conflict of interest have so abused their position of trust as to induce a plea of guilty, should' at least be examined to determine their accuracy.

If the allegations are correct, petitioner’s counsel not only did not properly advise him but deliberately misled and coerced him. It is inconceivable to us how a plea entered under these circumstances could be either intelligent or voluntary. We are mindful that at the time of sentencing Judge Battle asked Ray whether his plea was the result of pressure, threats or promises. He was also asked if he fully understood that a plea bargain had been reached whereby he would receive a 99-year sentence, thus avoiding a sentence of death. Petitioner answered in the negative as to threats, promises or coercion, and assured the court that he was aware of the plea bargain and that his plea was made voluntarily and intelligently. Yet in light of the total circumstances preceding his sentencing, see Haynes v. Washington, supra, Ray could easily have believed that he had no other choice. He could follow the scenario prescribed by Foreman in his letter of March 9, 1969—enter the plea and accept sentence without creating any “embarrassing circumstances ... in the court room”—or he could have gone to trial with the reasonable belief, if the contentions are accurate, that a fair hearing would be impossible.

In Dukes v. Warden, 406 U.S. 250, 92 S.Ct. 1551, 32 L.Ed.2d 45 (1972), the Supreme Court of Connecticut had reviewed the case of a petitioner who alleged that his plea of guilty was involuntary because his attorney had a conflict of interest. It held that on the specific facts presented the plea could not be said to be involuntary. The Supreme Court of the United States in affirming the Connecticut court quoted with approval the following from its opinion:

There is nothing in the record before us which would indicate that the alleged conflict resulted in ineffective assistance of counsel and did in fact render the plea in question involuntary and unintelligent. [Petitioner] does not claim, and it is nowhere indicated in the finding, nor could it be inferred from the finding, that either Attorney Zaccagnino or Attorney Delaney induced [petitioner] to plead guilty in furtherance of a plan to obtain more favorable consideration from the court for other clients. . Neither does the finding in any way disclose, nor is it claimed, that [petitioner] received misleading advice from Attorney Zaccagnino or Attorney Delaney which led him to plead guilty. . . . 406 U.S. at 256, 92 S.Ct at 1554.

This is a far cry from the facts alleged in the present case where the most egregious kind of conflict of interest is not only alleged but is directly stated to have caused and actually induced the plea of guilty.

Reversed and remanded.

APPENDIX

LAW OFFICES OF PERCY FOREMAN

804 South Coast Building Houston, Texas 77002

CA 4-9321

March 9th, ’69

Mr. James Earl Ray,

Shelby County Jail,

Memphis, Tennessee.

Dear James Earl:

You have heretofore assigned to me all of your royalties from magazine articles, book, motion picture or other revenue to be derived from the writings of Wm. Bradford Huie. These are my own property unconditionally.

However, you have heretofore authorized and requested me to negotiate a plea of guilty if the State of Tennessee through its District Attorney General and with the approval of the trial judge would waive the death penalty. You agreed to accept a sentence of 99 years.

It is contemplated that your case will be disposed of tomorrow, March 10, by the above plea and sentence. This will shorten the trial considerably. In consideration of the time it will save me, I am willing to make the following adjustment of my fee arrangement with you:

If the plea is entered and the sentence accepted and no embarrasing circumstances take place in the court room, I am willing to assign to any bank, trust company or individual selected by you all my receipts under the above assignment in excess of $165,000.00. These funds over and above the first $165,000.-00 will be held by such bank, trust company or individual subject to your order.

I have either spent or obligated myself to spend in excess of $14,000.00, and

1 think these expenses should be paid in addition to a $150,000.00 fee. I am sure the expenses' will exceed $15,000.00 but I am willing to rest on that figure.

Yours truly,

/s/ PERCY FOREMAN

LAW OFFICES OF PERCY FOREMAN

804 South Coast Building Houston, Texas 77002

CA 4-9321

March 9, 1969

Mr. James Earl Ray,

Shelby County Jail,

Memphis, Texas, (sic)

Dear James Earl:

You have asked that I advance to Jerry Ray five ($500.00) of the “$5,000.-00”, referring to the first five thousand dollars paid by Wm. Bradford Huie. On January 29th, Mr. Huie advanced an additional $5,000.00. At that time I had spent in excess of $9,500.00 on your case. Since then, I have spent in excess of $4,000.00 additional.

But I am willing to advance Jerry $500.00 and add it to the $165,000.00 mentioned in my other letter to you today. In other words, I would receive the first $165,500.00. But I would not make any other advances—just this one $500.00.

And this advance, also, is contingent upon the plea of guilty and sentence going through on March 10, 1969, without any unseemly conduct on your part in court.

Yours truly,

/s/ PERCY FOREMAN

PF-4

P.S. The rifle and the white mustang are tied up in the suit filed by Renfro Hays. Court costs and attorneys fees will be necessary, perhaps, to get them released. I will credit the $165,500.00 with whatever they bring over the cost of obtaining them, if any.

/s/ PERCY FOREMAN

/s/ JAMES EARL RAY'

CELEBREZZE, Circuit Judge

(dissenting).

I must respectfully dissent from the majority.

If there existed undue pressure by counsel on Defendant to enter a guilty plea, the Defendant owed a duty to the Court to answer honestly the question put to him by the Court at the time of the entry of the plea.

The record discloses that the trial judge, in questioning Ray, very thoroughly inquired into the voluntariness of Ray’s guilty plea and the consequences which would result therefrom. In no uncertain terms, Ray stated that his plea was being entered voluntarily and without pressure of any kind. The record thus discloses that Ray “voluntarily and understanding” entered his plea of guilty. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

We are now asked to vacate the plea because it is alleged that it was in fact the result of coercion. Thus, we are asked to ignore the record in this case. In so doing, the Court leaves open for attack convictions which have been obtained in a manner specifically designed for the protection of the defendant. Indeed, the very reasons for conducting a thorough on the record examination of the defendant are to guard against the entering of a guilty plea which is not an intelligent and knowledgeable plea and to insulate the conviction from attack on the basis that it did not comport with due process. Boykin v. Alabama, supra, 395 U.S. at 244 n. 7, 89 S.Ct. 1709.

Although we expressly reserved judgment on the issue presently before us, we previously determined that allegations involving the same conduct of Ray’s attorneys as is involved here, did not support a finding that Ray was not properly defended. Ray v. Foreman, 441 F.2d 1266 (6th. Cir. 1971).

I would affirm the District Court’s denial of the writ.

APPENDIX TO DISSENTING OPINION

THE COURT: This is a compromise and settlement on a plea of guilty to murder in the first degree and an agreed settlement of 99 years in the Penitentiary, is that true ?

MR. FOREMAN: That’s the agreement, your Honor.

THE COURT: Is that the agreement? Alright, I’ll have to voir dire Mr. Ray, James Earl Ray, stand. Have you a lawyer to explain all your rights to you and do you understand them?

A Yes, Sir.

THE COURT: Do you know that you have a right to a trial by jury on a charge of Murder in the First Degree against you, the punishment for Murder in the First Degree ranging from death by electrocution to any time over 20 years. The burden of proof is on the State of Tennessee to prove you guilty beyond a reasonable doubt and to a moral certainty and the decision of the jury must be unanimous, both as to guilt and punishment. In the event of a jury verdict against you, you would have the right to file a Motion for a New Trial addressed to the Trial Judge. In the event of an adverse ruling against you on your Motion for a New Trial, you would have the right to successive appeals to the Tennessee Court of Criminal Appeals and the Supreme Court of Tennessee and to file a Petition for Review by the Supreme Court of the United States. Do you understand that you have all of these rights ?

A Yes, Sir.

THE COURT: You are entering a plea of guilty to Murder in the First Degree as charged in the indictment and are compromising and settling your case on an agreed punishment of 99 years in the State Penitentiary. Is this what you want to do ?

A Yes, I do.

THE COURT: Is this what you want to do?

A Yes, Sir.

THE COURT: Do you understand that you are waiving, which means giving up a formal trial by your plea of guilty although the laws of this State require the prosecution to present certain evidence to a jury in all cases on pleas of guilty to Murder in the First Degree? By your plea of guilty, you are also waiving your right to one, your Motion for a New Trial; two, successive appeals to the Supreme Court, to the Tennessee Court of Criminal Appeals and the Supreme Court of Tennessee and three, Petition to Review by the Supreme Court of the United States. By your plea of guilty, you are also abandoning and waiving your objections and exceptions to all the motions and petitions in which the Court has heretofore ruled against you in whole or in part among them being one, Motion to Withdraw Plea and Quash Indictment; two, Motion to Inspect the Evidence; three, Motion to Remove Lights and Cameras from the Jail; four, Motion for Private Consultation with Attorney; five, Petition to Authorize Defendant to Take Depositions; six, Motion to Permit Conference with Huie; seven, Motion to Permit Photographs; eight, Motion to Designate Court Reporters; nine, Motion to Stipulate Testimony, ten, Suggestion of Proper Name. You are waiving or giving up all these rights. Has anything besides this sentence of 99 years in the Penitentiary been promised to you to get you to plead guilty? Has anything else been promised to you by anyone ?

A No, it has not.

THE COURT: Has any pressure of any kind by anyone in any way been used on you to get you to plead guilty?

A No, No one, in any way.

THE COURT: Are you pleading guilty to Murder in the First Degree in this case because you killed Dr. Martin Luther King under such circumstances that it would make you legally guilty of Murder in the First Degree under the law as explained to you by your lawyers?

A Yes, legally, yes.

THE COURT: Is this plea of guilty to Murder in the First Degree with an agreed punishment of 99 years in the State Penitentiary freely, voluntarily and understandingly made and entered by you ?

A Yes, Sir.

THE COURT: Is this plea of guilty on your part the free act of your free will made with your full knowledge and understanding of its meaning and consequences ?

A Yes, Sir.

THE COURT: You may be seated. Alright, are you ready for a jury?

MR. FOREMAN: Yes, your Honor.

      . The assassination of Dr. Martin Luther King, Jr., because of his preeminence as a civil rights leader, engendered worldwide notoriety and vast publicity. Ray’s arrest in London and his subsequent indictment, as well as his plea of guilty, were also matters of intense public interest.

      . Petitioner contends that Huie offered "to pay $12,000 either to him or his family if he would refuse to take the witness stand.

      . Presumably, Ray meant John J. Hooker, Jr. who was a candidate for governor in 1970.

      . Foreman’s two letters of March 9, 1969 are included in the appendix to this opinion. Although Ray dismissed Hanes as his attorney, the record indicates that Hanes had received a substantial sum of money prior to the dismissal. Before Ray was sentenced on his plea of guilty two articles, written by Huie pertaining to the case, had been published by Look magazine. Also, after the sentence was imposed a book, authored by Huie, concerning the same subject was published. It is to be inferred that these various publications produced a substantial sum of money, the exact distribution of which is not shown. The entire record reeks with ethical, moral and professional irregularities, demanding a full scale judicial inquiry, Without such a hearing, the record leaves no alternative to the conclusion that Ray’s attorneys were more interested in capitalizing on a notorious case than in representing the best interests of their client.

      . The examination of Ray by the District Court is included in the appendix to dissenting opinion.


author: SETH, Circuit Judge

text:
    Elton M. MOORE, Appellant, v. Walt SHULTZ, d/b/a Walt Shultz Equipment Company, and McGraw-Edison Company, Appellees.
    No. 72-1845.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted May 24, 1973.
    Decided Jan. 23, 1974.
    Rehearing Denied March 13, 1974.
    William S. Dorman, Tulsa, Okl. (James R. Eagleton, Tulsa, Okl., of counsel, with him on the brief), for appellant.

      Jerry J. Dunlap, of Dunlap, Laney, Hessin & Dougherty, Oklahoma City, Okl. (Charles F. Lind and Charles A. Prudell, Elgin, Ill., of counsel, with him on the brief), for appellees.
    Before SETH and HOLLOWAY, Circuit Judges, and LARAMORE, Senior Judge, United States Court of Claims.

       Sitting by Designation.

   SETH, Circuit Judge

(By reassignment from Holloway, Circuit Judge).

This is an action for an injunction and damages for infringement of plaintiff’s patent. Defendant, McGraw-Edison Company, manufactures the allegedly infringing machine, and defendant, Walt Shultz, sells it.

Defendants deny infringement, and raise the defenses of invalidity of plaintiff’s patent and of laches.

The case was submitted to the jury on ten interrogatories covering plaintiff’s cause of action and the defenses. The jury found for the plaintiff in its answers to each of the ten interrogatories. However, some time later, the court entered judgment notwithstanding the verdict in favor of defendants, and ordered that in the event the judgment n. o. v. was reversed on appeal, there would be a new trial.

The devices involved in this action are known in the dry cleaning business as “pants toppers,” and are used for finishing and pressing the upper portions of men’s trousers after they have been dry-cleaned. The operation generally involves fitting the waistband of the trousers around an adjustable form and applying steam and hot air in sequence to remove the wrinkles. The legs of the trousers are then pressed in a second operation.

Some time in the late 1940’s plaintiff Moore began to formulate a plan for an improved pants topper. It was not until 1953, however, that he felt that he had developed the model for a successful machine. In April of that year he contacted a patent attorney and his application was filed on December 9, 1953. He obtained a patent approximately two years later in November 1955 (No. 2,723,785). While his application was pending, he began negotiations for the manufacture and sale of his machine under a license, and in January 1956 a licensing agreement with P & H Industries, Inc. was executed. In the following seventeen months P & H Industries manufactured approximately 440 machines and paid Mr. Moore royalties of about $11,000.00. The agreement was terminated at the request of P & H Industries in May 1957.

After terminating the agreement with plaintiff, P & H Industries continued to manufacture a pants topping machine. Defendant McGraw-Edison entered the field under an agreement with P & H Industries in 1961 which allowed a subsidiary to manufacture the P & H machine. Although this agreement has since terminated, McGraw-Edison has continued to manufacture its modified version of the P & H machine. This is the Ajax machine asserted to infringe upon plaintiff’s patent.

Plaintiff apparently knew that P & H continued manufacturing topping machines after it had terminated the licensing agreement with him, but he relied on assurances that his patent was no longer involved. He first saw the McGraw-Edison topper in June 1967, although he had seen it advertised previously. Soon thereafter he contacted his attorneys who promptly notified McGraw-Edison of the possible infringement. Suit was not filed, however, until 1970, apparently because Mr. Moore was occupied in other litigation involving his patent.

The Moore Pants Topper:

The controversy focuses on claim 1 of plaintiff’s patent, the Moore patent, which reads:

“A machine for finishing the top portion of ' trousers comprising a frame member having a plurality of reciproeable slide members mounted thereon, a foraminous bag carried by said frame member and surrounding said reciprocable slide members, means for moving the slide members outwardly to expand the bag member into engagement with the inner surface of the trousers top, a perforated tube assembly supported by said frame member and centrally disposed thereof, means for supplying steam to said tube assembly, and means supplying heated dry air to the trousers top.”

We are particularly concerned with the combination and cooperative effect of the foraminous (porous) bag, the slide members, of which there were four shown in the Moore patent diagrams, and the means for causing the slide members to move outwardly, thus expanding the bag and engaging the waistband of the trousers. In the Moore patent diagram the slide members were controlled by a spring mechanism operated by a foot pedal. It should also be noted at this point that Mr. Moore does not assert that any of the elements of his invention taken individually was unknown in the prior art or would be patentable by itself. Rather, he asserts that his invention is a patentable combination of elements, which, although known previously individually, produce new or improved results in concert.

The Prior Art:

Three prior patents were cited by the examiner in the course of processing plaintiff’s application. Newhouse patent No. 2,469,742 is a device for pressing the sleeves of coats, jackets, and other garments after cleaning.

Although not incorporated in the patented device, use of a fabric bag is discussed in connection with the prior art and discarded as having unfavorable limitations. Bader et al. patent No. 2,531,599 is called a pants stretcher and is designed to restore the size of shrunken pants or trousers. It basically consists of two bucks over which each leg of a pair of pants would be drawn. Both the Newhouse and the Bader patents contemplate the application of steam or hot air. Finally, Rosenthal patent No. 2,658,649 was also cited. This is a pants pressing machine designed to perform a similar function to the Moore machine only with respect to laundered rather than dry-cleaned pants. It involves an expandable, heated center form over which the upper portion of a pair of pants could be placed for drying and pressing. The patent indicates the form can be used to suspend the pants either horizontally or vertically.

In addition to the patents cited by the examiner, defendants introduced three uncited prior patents with the intent of thereby demonstrating the obviousness of or lack of novelty in the Moore device. These patents are Egleston No. 176,172, Bowen No. 2,428,484, and Littell No. 2,521,297. The Egleston device is an apparatus for shaping trousers and suggests the use of a wire form over which the trousers would be placed. Both the Bowen and the Littell machines are specifically designed as pants toppers. Both envision the application of steam and hot air, and both employ an adjustable means for engaging the upper portion of the trousers. The Bowen device suspends the trousers vertically although certain manual operations are required initially. It does not envision the use of either the reciprocable slide mechanism or the foraminous bag taught by the Moore patent. The Littell device holds the trousers horizontally and uses the force of the hot air to further expand the upper portion. It also does not employ a reciprocable slide mechanism to engage the waistband, and although the patent discusses the possible use of a foraminous bag, it rejects it as having many undesirable effects.

The O’Boyle Machine:

At approximately the same time that Mr. Moore was developing his pants topper, Kenneth O’Boyle in Albuquerque, New Mexico, was also working on a device to perform a similar function. Mr O’Boyle filed his patent application approximately four months prior to Mr. Moore’s, but received his patent approximately three weeks after Mr. Moore’s had been granted. Both applications were processed by the same examiner.

Mr. O’Boyle had constructed experimental prototypes of his machine and used them in the dry-cleaning establishment in which he worked as early as 1951. He did not, however, realize a model which worked to his satisfaction until early 1953. Although one of the distinctive features of the O’Boyle machine as described in the patent is its ability to process two garments simultaneously, its design and operation bear some resemblance to the Moore topper. Perhaps the most obvious similarity is the use of a porous bag over which the trousers are drawn, and the fact that the bag can be collapsed or expanded by an adjustable mechanism. However, rather than the four slide members shown in the Moore patent which are moved back and forth mechanically by a spring mechanism to expand and collapse the bag, the O’Boyle topper employs a lever mechanism pivoted by hand, which moves in relation to a stationary buck. Such a mechanism would of course move in a circular rather than a reciprocable fashion.

The record also indicates that Mr. O’Boyle made certain disclosures regarding his machine to American Laundry Machinery Company, a McGraw-Edison subsidiary, while his machine was still in experimental stages. These disclosures apparently suggested the possible use of a slide mechanism rather than the lever device to expand the foraminous bag. American Laundry retained thése disclosures in its files and they were never published nor was any machine ever constructed pursuant to the drawings which they contained.

The Ajax Press:

With some modifications, the American Laundry Machinery Company, a subsidiary of McGraw-Edison, has continuously manufactured the Ajax topper since 1961 when it entered the agreement with P & H Industries, Inc. Although its outward appearance bears lit-tie resemblance to the drawings contained in the Moore patent, it incorporates the essential features of the Moore claim. There are, however, two principal features which defendants insist distinguish it from the Moore topper. As previously mentioned the Moore patent suggests the use of four reciprocable slide members all of which are movable. (It should nevertheless be noted that the disputed claim refers only to “a plurality of reciprocable slide members.”). The Ajax topper on the other hand uses a stationary buck in connection with only one slide member. Mr. Moore contends, with the support of expert testimony, that such a mechanism “reads” on his patent claim, i. e., “plurality” requires only that there be more than one, and while the buck on the Ajax topper is stationary, it and the slide nevertheless move relative to each other. The second asserted difference is the use in the Ajax topper of a compressed air cylinder to operate the slide as opposed to the spring device suggested in the Moore patent. Here again the plaintiff’s expert was able to read the air cylinder device on the Moore claim.

As stated above, the issues raised by both parties were submitted to the jury by ten interrogatories. They are as follows:

“(1) Do you find that the Defendants have proved from clear and convincing evidence that the claim in issue of the patent in suit does not particularly point out and distinctly claim the subject matter which Moore regarded as his invention ?
“(2) Do you find from clear and convincing evidence that the difference between the subject matter of the claim in issue of the patent in suit and the prior art are such that the subject matter thereof as a whole would have been obvious at the time the alleged invention thereof was made to a person having ordinary skill in the art to which said subject matter pertains?
“(3) Do you fihd from clear and convincing evidence that the claim in issue of the patent in suit is not ‘new’ within the meaning of that word as used in the patent law ?
“(4) Do you find from clear and convincing evidence that the subject matter of the claim in issue of the patent in suit was in public use more than one year prior to the filing date, December 9, 1953, of the patent in suit?
“(5) Do you find from clear and convincing evidence that the subject matter of the claim in issue of the patent in suit was known or used by others in this country before the invention thereof by Moore ?
“(6) Do you find from clear and convincing evidence that the subject matter of the claim in issue of the patent in suit was patented or described in a printed publication more than one year prior to the date of the application for the patent in suit, namely, December 9, 1953 ?
“(7) Do you find from clear and convincing evidence that the subject matter of the claim in issue of the patent in suit was, before Moore’s invention thereof, invented in this country by another who had not abandoned, suppressed or concealed it?
“(8) Do you find from a preponderance of the evidence that the Ajax Pants Topper infringes the claim in issue of the patent in suit ?
“(9) Do you find from a preponderance of the evidence that Moore delayed unreasonably in contending that McGraw-Edison infringed the patent in suit?
“(10) Do you find from a preponderance of the evidence that McGraw-Edison did not have a ‘regular and established place of business’ (within the meaning of the statute quoted in Instruction No. 14A), in this Judicial District at or before the time this case was filed against McGraw-Edison, namely March 31, 1970?”

Neither party on this appeal attacks the content nor the wording of the interrogatories, no objections were made to them by the defendants at trial, and it is not asserted that any of them contained issues not proper for the jury’s determination. The standards for review of judgments n. o. v. were set out by this court in Kippen v. Jewkes, 258 F.2d 869 (10th Cir.), and more recently in United States v. Fénix & Scisson, Inc., 360 F.2d 260 (10th Cir.); Wilkin v. Sunbeam Corp., 377 F.2d 344 (10th Cir.). This standard which we have said is to be applied to both judgments n. o. v. and to directed verdicts is that the evidence must be viewed in the light most favorable to the party opposing the motion (together with inferences which may be fairly drawn therefrom), and the verdict not directed nor the motion granted unless the evidence points all one way, and is susceptible of no reasonable inferences which sustain the position of the party against whom the motion is directed. The motion must also be denied if the evidence and the inferences, so examined, are such that reasonable men may reach different conclusions. Kippen v. Jewkes, 258 F.2d 869 (10th Cir.).

The responses to each interrogatory were favorable to the plaintiff’s position. The plaintiff had the burden of proving by a preponderance of the evidence that his patent had been infringed by defendants. This issue was submitted to the jury in the eighth interrogatory, and the jury found infringement. The first seven interrogatories were submitted in response to the defendant’s assertion that plaintiff’s patent was invalid. As to these defenses, the defendants had the burden of proof and this was a burden to prove by “clear and convincing” evidence as the interrogatories recite. The ninth interrogatory was based on a defense of laches, with the burden on defendant to establish it by a preponderance of the evidence.

Thus we must examine the record under the standard above set out for judgments n. o. v.; and, of course, considering who had the burden as to the several elements, and what the burden was. Each element must be considered separately. We have heretofore held that it is an exceptional ease wherein the party having the burden of proof is entitled to a judgment n. o. v. Ahrens v. American-Canadian Beaver Co., 458 F.2d 607 (10th Cir.) ; Kirkendoll v. Neustrom, 379 F.2d 694 (10th Cir.); Powers v. Continental Casualty Co., 301 F.2d 386 (8th Cir.). See also 5A Moore’s Federal Practice ft 50.02 [1].

Since the attacks on the validity of this patent became the center of the trial, as might be expected, the issues advanced by defendants are first considered. As stated above, the burden as to the issues in the first seven interrogatories was on the defendant; furthermore, the burden was heavy—clear and convincing evidence. It is easy to lose sight of the degree of this burden, but it must be imposed, and the reason for it is important.

Plaintiff Moore holds a United States patent protecting his pants topping machine. This was issued in due course, and it is advanced by him as a valid combination patent in the allegations of his complaint. Thereby a presumption arises in favor of its validity. The defendants can overcome that presumption and establish the invalidity of the patent only upon clear and convincing evidence. Griswold v. Oil Capital Valve Co., 375 F.2d 532 (10th Cir.). In McCullough Tool Co. v. Well Surveys, Inc., 343 F.2d 381 (10th Cir.), we applied the following test for a valid combination patent:

“The test of whether a particular-patent is a mere aggregation and invalid or a combination and valid has been variously stated. Generally, where elements old in the art are united in such a way that a new and useful result is secured or an old result is attained in a more facile, economical and efficient manner, there is a patentable combination.”

The first seven interrogatories are addressed particularly to several conditions asserted by defendants to make the patent invalid. In the first interrogatory the jury was asked whether the defendants had established that the claims of the plaintiff’s patent did not distinctly claim and particularly point out the subject matter of the invention. As to the nature and quality of the claim, there was testimony submitted by both parties. The record demonstrates that the evidence submitted by the plaintiff on this point in the context of the degree of the burden was a sufficient basis for the jury to have answered as it did.

The interrogatories two through seven submit the other particular reasons advanced by defendants to show the plaintiff’s patent to be invalid. These include, as a reference to the interrogatories will show, obviousness, lack of novelty, prior public use, prior knowledge, prior publication, and prior invention. The defendants had the burden of proof by clear and convincing evidence as to each. They attempted to carry this burden by introducing the uncited prior art, the O’Boyle patent, the prior use of the O’Boyle machine, and the disclosures made by Mr. O’Boyle to American Laundry Machinery Company. While these facts are indeed significant as to the validity of the Moore patent, they fail to disprove it with the degree of certainty defendants were faced with. The defendants’ own witnesses were unable to testify that the uncited prior art was any more pertinent than that cited by the patent examiner or that the O’Boyle machine contained the essential elements of Mr. Moore’s topper. Furthermore, there is strong evidence that the O’Boyle disclosures were made only in confidential communications with American Laundry. Finally there is the consideration that both the O’Boyle and Moore patents were. approved by the same examiner. Thus there was submitted evidence on both sides of each issue or element. On balance we find ample support for the jury responses to interrogatories one through seven, and again, in view of the heavy burden of persuasion upon the defendants.

It must be held that as to each of the elements of the defense directed to the validity of the patent, the defendants failed to carry their burden. Further, when the standards relating to review of motions for judgments n. o. v. are considered, it becomes apparent that the determination of the jury, as to the several issues relating to validity, must be reinstated.

Before leaving the elements of validity, and in view of the point raised by the plaintiff that the trial judge should have been disqualified by reason of a statement he made as to the degree he would be bound by the answers of the jury, we must refer to several decisions: It is clear that the ultimate question of validity of a patent is one of law. A. & P. Tea Co. v. Supermarket Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162 (1950). “Validity” is a legal conclusion arising from the issues raised in attacks on a patent and more importantly is derived from the several components of validity. These include novelty, utility, and non-obviousness (invention). Of these three, the first two, novelty and utility, are customarily considered to present issues of fact. We have so held. A. E. Staley Manufacturing Co. v. Harvest Brand, Inc., 452 F.2d 735 (10th Cir.); Scaramucci v. Dresser Industries, Inc., 427 F.2d 1309 (10th Cir.). There is, however, some confusion or difference of opinion as to the non-obviousness element. The Supreme Court has observed that this matter “lends itself to several basic factual inquiries”, and compared it in that respect to concepts of negligence and scienter. Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). Although the Fifth and Ninth Circuits have taken a different view, we have held those observations to mean that non-obviousness is itself a factual question. Eimco Corp. v. Peterson Filters & Engineering Co., 406 F.2d 431 (10th Cir.); contra Swofford v. B & W, Inc., 395 F.2d 362 (5th Cir.); Hensley Equipment Co. v. Esco Corp., 375 F.2d 432 (9th Cir.). Thus, within the Tenth Circuit, novelty, utility, and non-obviousness are held to require factual determinations.

Passing to issues other than validity of the patent, the eighth interrogatory, as noted above, presented the infringement issue. Here the plaintiff, of course, had the burden to show infringement by a preponderance of the evidence. The issue was so submitted to the jury which found there had been infringement on the part of defendants by the Ajax machine. The issue was narrowed to infringement by equivalency.

In McCullough Tool Co. v. Well Surveys, Inc., 343 F.2d 381 (10th Cir.), we considered a claim of infringement by equivalency. We listed the following considerations for determining its applicability :

“The question of equivalency is one of fact and it must be determined against the context of the patent, the prior art and the particular circumstances of the case and consideration must be given to the purpose for which an ingredient is used in a patent, the qualities it has when combined with the other ingredients and the function it is intended to perform.”

As previously noted, plaintiff’s expert testified that the air cylinder operated slide and stationary buck of the Ajax topper are, in his opinion, functional equivalents of the mechanically operated slides of the Moore topper. If accepted by the jury, this testimony would furnish a reasonable basis for a finding of infringement. The considerations suggested above received adequate attention during the presentation of evidence, in the instructions, and are adequately reflected in the response to the eighth interrogatory. There was evidence before the jury to support its answer to the eighth interrogatory.

The final contested issue relates to the ninth interrogatory which raises the issue of laches. Here again the defendants had the burden of persuasion, although only by a preponderance of evidence. We again find in the record sufficient support for the jury's determination that there was no undue delay or prejudice to the defendants. The inference may be drawn from the record that plaintiff did not become aware of the possible infringement until 1967, and that any ensuing delay in filing suit was due to other pending litigation testing the validity of his patent. Furthermore, McGraw-Edison was promptly notified by Mr. Moore of the alleged infringement soon after he saw the Ajax machine of defendants. Such circumstances are sufficient excuse for the delay. Clair v. Kastar, Inc., 148 F.2d 644 (2d Cir.), cert. denied sub nom. Kastar, Inc. v. Clair, 326 U.S. 762, 66 S.Ct. 143, 90 L.Ed. 459 (1945).

In view of the foregoing, we must set aside the order of the trial court which granted judgment n. o. v., and this we hereby do.

There remains for consideration the alternative order of the trial court granting a new trial. It is possible that some of the basis for this order lies in a response made by the plaintiff during his testimony which indicated that he had first conceived of his pants topping machine about 1948. However,both parties agree that this testimony alone is insufficient to establish a priority date, and that the earliest date from which the plaintiff can claim his invention is April 1953 when he first contacted his patent attorney. The defendants requested an instruction to this effect, which the court agreed to give, but which apparently was omitted.

We conclude also that the failure to give the requested instruction relative to the above date was harmless error. Mr. Moore’s statement as to when he got his basic idea was made during the course of his general testimony. There is no indication that undue attention was ever drawn to it nor emphasis placed on it. The court observed that it had failed to notice the statement, and that it considered it unlikely that the jury had either. A special instruction in such .a situation was not called for, especially in view of the court’s observation.

The order for a new trial states as grounds therefor that the evidence was insufficient to support the jury’s answers to the interrogatories, and that those answers were against the weight of the evidence. We have already stated our conclusion when the burden of proof is considered and the standards applied for judgment n. o. v.

With further reference to the grant of a new trial in the event the judgment n. o. v. was set aside on appeal, we recognize that the grant of a new trial is normally within the discretion of the trial court, and an unusual situation must be presented before such a motion will be overturned. However, the error in this case resulted from an overlapping of the functions of the judge with those of the jury. Both parties have indicated that all available evidence was presented at trial, and that a second trial would basically be a repetition of the first. The jury heard all the evidence the parties had, and we conclude that a new trial of this ease would serve no purpose, and should not be granted. O’Neil v. W. R. Grace & Co., 410 F.2d 908 (5th Cir.). The order granting a new trial in the alternative is hereby set aside.

The judgment and order are reversed, and the case remanded with instructions to enter judgment on the verdict, and for such other proceedings as may be necessary not inconsistent herewith.


author: BLAIR, District Judge:

text:
    UNITED STATES of America, Appellee, v. 21.54 ACRES OF LAND, MORE OR LESS, situate IN MARSHALL COUNTY, STATE OF WEST VIRGINIA, et al., Appellants.
    No. 72-2447.
    United States Court of Appeals, Fourth Circuit.
    Argued April 4, 1973.
    Decided July 13, 1973.

      Jolyon W. McCamic, Wheeling, W. Va. (McCamic, McCamic & Hazlett, Wheeling, W. Va., on brief), for appellants.
    Stephen G. Jory, Asst. U. S. Atty. (James F. Companion, U. S. Atty., on brief), for appellee.
    Before WINTER and FIELD, Circuit Judges, and BLAIR, District Judge.
   BLAIR, District Judge:

Clarence and Bernice Darrah appeal from a jury verdict entered in a condemnation proceeding in the United States District Court for the Northern District of West Virginia, at Wheeling. Pursuant to the authority contained in 40 U.S.C. § 258a, 33 U.S.C. §§ 591, 595 and Pub.Law 90-147, the United States filed a declaration of taking on December 4, 1968, subsequently amended on January 20, 1970, describing the lands and interests to be acquired and paying into court the estimated amount of just compensation. By means of these declarations, the United States acquired flowage easements necessitated by the harbor and river improvement project known as the Hannibal Locks and Dam Project on the Ohio River.

The land condemned consisted of 20 tracts containing approximately 21.54 acres which bordered Fish Creek, a tributary of the Ohio River, located in Marshall County, West Virginia. Four of the aforementioned tracts belonged to the appellants, and the condemnation suit as to one tract was settled prior to trial. Each of the three remaining tracts, consisting of a total of 1.02 acres of land, was described, in the declaration of taking, by metes and bounds and as lying between 620 and 628 feet, mean sea level. In each instance, the description began at a fixed and determinable point on the contour line on the left bank of Fish Creek 628 feet above mean sea level and ran by metes and bounds to a point on the contour line 620 feet above mean sea level. Each description contained as two of its boundaries the aforesaid contour lines and described those boundaries as running with the meanders of such lines for fixed distances. Additionally, each description indicated that “the contour at elevation 620 . . . represents the existing ordinary high water stage in this reach of Fish Creek. . . .” The landowners, however, disagreed with the government’s description of the ordinary high water mark and asserted that, in fact, it was represented by a contour line at elevation 610. Under their theory, the government would have to condemn all the land lying between elevation 628 and 610 feet above sea level in order to acquire land interests necessary to carry out the stated purpose of the condemnation.

The issue of the location of the ordinary high water mark was presented in a pre-trial order and, after a hearing, the court ruled “that the determination of the ordinary high water mark is a factual issue to be ultimately decided by a jury. . . .” The landowners objected immediately and shortly thereafter the government moved the court to reconsider its ruling. In response, the court apparently re-evaluated its position and notified the parties that because it was limited by the executive declaration of taking, the extent of the take was not an issue which could be presented to either the court or jury.

The landowners, then, in correspondence to the court, suggested that since there was no real issue respecting the valuation of the take as limited by the court’s ruling, an interlocutory appeal would be the most judicious way of proceeding with the case. Nevertheless, the court felt that the issue of valuation should be submitted to the jury so that the appeal would be from a final judgment. On the day of trial, however, the landowners attempted to testify as to the value of the property that was being taken. The court refused to permit the presentation of this evidence because of the landowners’ prior representations that valuation was not an issue. Therefore, after the government finished its presentation, the case was submitted to the jury which returned a verdict in favor of the landowners in the amount of $125. It is from this judgment that the landowners appeal.

I.

The power of eminent domain, which is inherent in the sovereign, is limited by the language of the Fifth Amendment to the Constitution of the United States: “No person shall . . . be deprived of . property, without due process of law; nor shall private property be taken for public use, without just compensation.” Congress has established two methods by which “just compensation” may be awarded.

Under the general condemnation statutes and the Federal Rules of Civil Procedure, the government may elect to condemn property. To do this a declaration of taking is filed detailing the authority for the condemnation, a description of the lands taken, and the public use for which the lands are required. Additionally, the estimated amount of just compensation must be deposited in the court. After this has been done, title vests in the United States. If the landowner does not believe that the estimated compensation accurately reflects the value of the land taken, he is, with two exceptions, entitled to have this issue determined by a jury. The first exception is in cases in which the court determines that valuation should be resolved by a commission of three persons, and the second is when Congress has expressly established a tribunal to determine the amount of compensation due. See 40 U.S.C. § 258a; Fed.R.Civ.P. 71A.

It is also possible for the government to proceed under what is generally known as “inverse condemnation.” In this situation, no formal declaration of taking is filed. The landowner, however, is not without a remedy. At any time within the six-year period following the taking of his property, he may institute a suit under the Tucker Act against the United States in the Court of Claims or in the United States District Court if the amount claimed does not exceed $10,000. See 28 U.S.C. §§ 1346, 1491, 2501. In either case, the issue of just compensation is not resolved by a jury. 28 U.S.C. § 2402; Ct.Cl.R. 52-53.

When the government proceeds by formal condemnation, the general rule is that the extent of the take is a discretionary decision for the condemning authority which may not be modified by the judiciary. The reason for this is that as long as the government acts within the scope of its authority, it cannot be compelled to take other than that which it has determined is needed. And if, ultimately, it is determined that the government has taken more than it has formally condemned and paid for, the landowner may recover under the Tucker Act for the additional take. See Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954); United States v. 3,317.39 Acres of Land, 443 F.2d 104 (8th Cir. 1971); Wilson v. United States, 350 F.2d 901 (10th Cir. 1965); United States v. Brondum, 272 F.2d 642 (5th Cir. 1959); United States v. 342.81 Acres of Land, 134 F.Supp. 430 (N.D. Ga.1955).

It was the application of this sound principle of law which led the trial court to conclude that, in the instant case, the location of the ordinary highwater mark was not an issue which the court could resolve. In the declaration of taking, the government has described the parcels of land sought by metes and bounds so that the extent of the take is ascertainable with mathematical precision. Therefore, the location of the ordinary high water mark was thought by the district judge to be irrelevant since the United States could not be required to acquire more land than it had elected to condemn. And, the district judge reasoned that if the landowners were correct in their contention that the United States erred in determining the location of the ordinary high water mark on Fish Creek, they would have a claim for inverse condemnation after the actual uncompensated take occurred. While acknowledging the soundness of this general rule, we conclude that the district judge erred in applying it to the facts in this case.

In Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954), the issue was whether the District of Columbia Land Agency had the authority to condemn certain property pursuant to a plan of urban renewal. The property owner’s argument was that the agency had only the authority to condemn slum dwellings and that since his building was a department store, its acquisition was unauthorized. The court rejected this contention, stating that the planning commission had determined that the best way to effectuate urban renewal' was to condemn the entire area. This decision would not be reviewed because “the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.” Id. at 35-36, 75 S.Ct. at 104.

Similarly, in United States v. 3,317.39 Acres of Land, 443 F.2d 104 (8th Cir. 1971), the court held that judicial review of the extent of a take was improper. In that case, the government acquired flowage easements in connection with a project on the Arkansas River. The landowners contended that the declaration of taking failed to include an additional amount of land that would be flooded upon completion of the project. Evidence of valuation addressed to the “increased” take was admitted by the trial court. The Court of Appeals reversed, holding that the damages must be limited to the land described by the government in its declaration of taking since the area of the take could not be increased or decreased by the courts.

Other cases involving the condemnation of flight easements surrounding airports further illustrate the reluctance of courts to review an executive determination in an eminent domain proceeding. For example, United States v. Brondum, 272 F.2d 642 (5th Cir. 1959), held that a district court could not compel the government to take an avigation easement when the declaration of taking specified that a clearance easement was being condemned. The reason was that the United States had the discretion to take either type of easement and that once it had elected to take a clearance easement a court is without jurisdiction to require the taking of something else. See also, United States v. 64.88 Acres of Land, 244 F.2d 534 (3d Cir. 1957); United States v. 4.43 Acres of Land, 137 F.Supp. 567 (N.D.Tex.1956).

It is apparent that each of the aforementioned cases stand for the general proposition that the discretionary determination by the condemning authority of the extent of the take is not reviewable by the court. We perceive the issue in the instant case to be different. It is clear from the declaration of taking that the United States has chosen to acquire flowage easements along Fish Creek because it has determined that the dam project will raise the ordinary high water mark to an elevation of 623 feet with occasional overflow to an elevation of 628 feet. Although the' land in which the flowage easements is to be acquired is described with accuracy, it is equally clear from the declaration of taking that it is the intention of the United States to acquire such easements in all land lying between the highest elevation of the land to be acquired and the existing ordinary high water mark. Clearly, the government believes the ordinary high water mark is represented by the contour line at an elevation of 620 feet. The accuracy of this belief is directly challenged by the landowners who contend that the ordinary high water mark is represented by the contour line at an elevation of 610 feet. To the extent that the government is incorrect in its belief as to the location of the ordinary high water mark, it is also incorrect in its description of the land in which it has determined that easements will be necessary. To us, the issue then is not the extent of the take but rather whether the government has, in fact, accurately described the land in which it intends to take easements.

When, as is the case here, the United States elects to condemn a flowage easement to raise the level of a stream or creek, it must compensate the landowner for the land located above the ordinary-high water mark in which such easements are taken. This line has been defined as that line below which no terrestrial plant life will grow because of the constant action of the water. See Borough of Ford City v. United States, 345 F.2d 645 (3d Cir. 1965). Obviously, it is impossible to raise the level of the water without overflowing those lands which are located between the former ordinary high water mark and the new ordinary high water mark. By the actual terms of the taking in this case, the lower boundary of the land in which flowage easements are to be taken must correspond to the existing ordinary high water mark. Therefore, any description of the area of take in which these two lines do not coincide is patently erroneous. To the extent that such an issue is raised, we conclude that it is one for determination by the court in the same proceeding in which the issue of just compensation is to be determined by a jury. Such a determination, which is permitted by Rule 71A (h) of the Federal Rules of Civil Procedure, cf. United States v. Reynolds, 397 U.S. 14, 90 S.Ct. 803, 25 L.Ed.2d 12 (1970), is analogous to a case in which the language of an instrument of conveyance is reformed to accurately reflect the true intent of the parties. See, e. g., Hawkins v. Fradkin, 85 U.S.App.D.C. 310, 178 F.2d 705 (1949). Furthermore, resolution of this issue would in no way interfere with the discretionary exercise by the executive branch in determining the extent of the take. But, on the contrary, the judiciary would be accepting that determination by resolving a factual issue necessary to effectuate the expressed intention of the condemning authority.

Our finding that the trial judge erred in refusing to decide this issue is not altered by the fact that other avenues to seek relief are open to the landowners. That is, at such time as the flooding occurs, the landowners are entitled to proceed against the United States under the Tucker Act claiming that the ordinary high water mark coincided with the contour line at the 610 foot elevation so that an inverse condemnation of the land lying between that line and the one at 620 feet had occurred; If the flooding occurred while the formal condemnation proceeding was pending in the United States District Court and the landowners’ claim for damages did not exceed $10,000 it could be maintained by a counterclaim in the condemnation proceedings under the law of this circuit. See Thompson v. United States, 250 F.2d 43 (4th Cir. 1957). Otherwise, the landowners would be forced to present their claim in an entirely separate proceeding. This would be in the Court of Claims unless the amount of damages sought did not exceed $10,000. In that instance, a district court could entertain their suit. In any event, the landowners would not be entitled to a jury trial either on the issue of the location of the ordinary high water mark or, assuming its location to be as they contend, on the issue of the value of the property taken. Furthermore, the necessity of having two trials to resolve a single issue can hardly be said to further the interests of judicial economy in a time of overburdened court dockets.

In this case, since the United States elected to proceed by condemnation under Rule 71A, the landowners were entitled to have a jury decide the issue of just compensation. To the extent that the landowners would be required to submit their claim to the court under the Tucker Act, they will have lost their right to have the issue of just compensation determined by a jury. This prejudice which flows directly from the trial judge’s refusal to determine the location of the ordinary high water mark requires us to vacate the judgment.

Accordingly, we hold that the trial judge had jurisdiction to find as a fact the actual location of the ordinary high water mark, that in so doing he would not have interfered with the discretionary determination by the executive branch of the extent of the take and that his failure to make such a finding resulted in possible prejudice to the landowners. On remand, the district court should determine as a fact the actual location of the ordinary high water mark as it relates to the lands in suit and if the United States is correct in its contention that the ordinary high water mark corresponds to the contour line at elevation 620 feet, the jury verdict heretofore entered should be reinstated. If the court determines that the ordinary high water mark is at some elevation lower than 620, the issue of just compensation for the entire tract condemned should be retried to the jury.

Vacated and remanded with instructions.

Costs to be paid by the United States.