author: FRIENDLY, Circuit Judge:

text:
    NEW YORK SHIPPING ASSOCIATION, INC., Petitioner, International Longshoremen’s Association, AFL-CIO, Petitioner, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents.
    Nos. 491-492, Dockets 73-1919, 73-1991.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 20, 1974.
    Decided April 8, 1974.
    C. P. Lambos, New York City (Lorenz, Finn, Giardino & Lambos and Jacob Silverman, and Donato Caruso, New York City, of counsel), for petitioner New York Shipping Ass’n, Inc.
    Thomas W. Gleason, New York City (Gleason & Miller and Julius Miller, New York City, of counsel), for petitioner Intern. Longshoremen’s Ass’n.
    Gordon M. Shaw, Washington, D. C. (James L. Pimper, Gen. Counsel and Edward G. Gruis, Deputy Gen. Counsel, Federal Maritime Comm., Washington, D. C., of counsel), for respondent Federal Maritime Comm.
    Robert B. Nicholson, Washington, D. C. (Thomas E. Kauper, Asst. Atty. Gen., and Irwin A. Seibel, Dept, of Justice, Washington, D. C., of counsel), for respondent United States.
    Ronald A. Capone, Washington, D. C. (Stuart S. Dye, Washington, D. C., Alfred T. DeMaria, and Kirlin, Campbell & Keating, New York City, of counsel), for intervenor Transamerican Trailer Transport, Inc.
    Gerald A. Malia, Washington, D. C. (Ragan & Mason, Washington, D. C., and George R. Brownell, New York City, of counsel), for intervenor Sea-Land Service, Inc.
    Mario F. Escudero, Washington, D. C. (Morgan, Lewis & Bockius, Washington, D. C., and Paul N. Roth, and Baer & McGoldrick, New York City, of counsel), for intervenor The Commonwealth of Puerto Rico.
    Coles & Goertner, Washington, D. C., and Burke & Parsons, New York City, (Neal M. Mayer, Washington, D. C., and Raymond J. Burke, New York City, of counsel), for intervenor Seatrain Lines, Inc.
    Joseph F. Kelly, Jr., New York City (Townley, Updike, Carter & Rodgers, New York City, of counsel), for interve-nor Daniels & Kennedy, Inc.
    Cecelia H. Goetz, New York City (Herzfeld & Rubin and Herbert Rubin, and Alan A. D’Ambrosio, New York City, of counsel), for intervenor Tran-port-Gesellsehaft m.b.H.
    N. L. R. B., Washington, D. C. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Abigail Cooley, Asst. Gen. Counsel for Special Litigation, Peter M. Bernstein, Washington, D. C., of counsel), amicus curiae.
    Before LUMBARD, FRIENDLY and TIMBERS, Circuit Judges.
   FRIENDLY, Circuit Judge:

In 1968, after years of labor strife generated by the advent of automation in the longshoremen’s industry, the International Longshoremen’s Association, AFL-CIO (ILA) and the New York Shipping Association, • Inc. (NYSA) signed a collective bargaining agreement under which the union acceded to mechanization in exchange for extensive fringe benefits intended to compensate for lost work opportunities on the waterfront. However, the 1968 plan met with collection difficulties and disagreement among association members as to the proper allocation of costs among competing modes of cargo movement. Dissatisfied with the operation of the benefit plan, the union in 1971 demanded that it be permitted to take part in negotiating a new assessment formula and collection arrangement. After initially resisting the union’s demand, NYSA ultimately agreed to negotiate with the ILA on those points. As a result, in 1972 an assessment formula clause was incorporated for the first time in the collective bargaining agreement, although the formula itself was similar in many regards to the one that NYSA had unilaterally adopted in 1970. The clause, which is currently in effect, provides for the assessment of each ton of “non-excepted” cargo loaded or discharged in ‘the Port of New York during the period October 1,1971-September 30, 1974 of an amount computed by deducting from the estimated total fringe liabilities the sum expected to be produced by a fixed man-hour assessment and dividing the remainder by the total estimated non-excepted tonnage. The excepted cargo is assessed purely on a man-hour basis ; a “Contract Board” composed of ILA and NYSA members sets the man-hour assessment rate for the excepted cargo. Automobiles, trucks and buses are also assigned a special assessment rate: 20% of the standard tonnage rate, measured by volume. The tonnage assessment is collected by the direct employer from each of the carriers served by that employer and paid to NYSA for immediate transmittal to the NYSA-ILA Fringe Benefit Escrow Fund. The assessment formula also empowers the Contract Board to order a modification in the tonnage definition for any kind of cargo “when the request is properly supported by statistical or other proof.” Other clauses in the collective bargaining agreement, which was executed by ILA and NYSA “for and on behalf of its employer members,” provide that the agreement is binding on “each contracting stevedore and vessel carrier who directly or indirectly utilizes the services of any employers covered by this agreement and who by such execution binds itself and its successors to each and every term and condition of the agreement, including without limitation, the contribution of its proportionate share of the hourly and tonnage contributions provided herein, and no contracting stevedore shall perform services for any carrier, private or governmental, unless such carrier has subscribed to this agreement.”

Seeking to avoid having to submit the agreement to the Federal Maritime Commission (FMC) for review, ILA and NYSA on July 31, 1972, filed a joint petition with the Commission for an order declaring that the assessment agreement was not subject to the filing or approval requirements of § 15 of the Shipping Act, 46 U.S.C. § 814. In their petition, the parties alleged that the assessment formula was not an agreement between carriers, terminal operators, or other persons subject to the Act, and was therefore not within the scope of § 15. In addition, they argued that because the assessment arrangement was part of the collective bargaining agreement between NYSA and ILA, it was exempt from the provisions of the Act in all respects.

In lieu of acting directly on the petition for a declaratory order, the FMC issued an order, pursuant to § 22 of the Shipping Act, 46 U.S.C. § 821, requiring NYSA and ILA to show cause why the assessment agreement should not be held subject to § 15 and also in violation of §§ 16 First and 17, 46 U.S.C. §§ 815, 816, which prohibit discriminatory acts and rates. Nearly a year after the petition was filed and nine months after the order to show cause was issued, the FMC served a report and order. With one member dissenting, it found the assessment formula to be within the terms of § 15 as construed and applied in Volk-swagenwerk Aktiengesellschaft v. FMC, swpra, 390 U.S. 261, 88 S.Ct. 929, 19 L. Ed.2d 1090. It also granted temporary approval to the formula. That approval, however, was made subject to any subsequent adjustments that might be found necessary in a separate proceeding, entitled New York Shipping Association — • Man-Hour/Tonnage Assessment Formula, Docket No. 73-34, which was instituted to determine the lawfulness of the formula under §§ 15, 16 First and 17. NYSA and ILA have petitioned to review the ruling that the FMC has jurisdiction to consider the legality of the assessment formula. The Department of Justice has joined the FMC in supporting the Commission’s order but has annexed to its brief a contrary memorandum from the Department of Labor. Several other parties — carriers, stevedores and the Commonwealth of Puerto Rico — have intervened in support of the order. The National Labor Relations Board has submitted an amicus brief on the side of the petitioners.

I.

At argument we raised the question whether the FMC’s ruling constituted a final order within the meaning of 28 U. 5. C. § 2342(3) and requested supplemental briefs on that issue. Both petitioners and respondents submitted briefs urging an affirmative answer. We find the question very close.

The parties rely heavily on Mr. Justice Marshall’s statement in Port of Boston Marine Terminal Association v. Re-deriaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 209, 27 L.Ed.2d 203 (1970), that “the relevant considerations in determining finality are whether the process of administrative decisionmak-ing has reached a stage where judicial review will not disrupt the orderly process of adjudication and whether rights or obligations have been determined or legal consequences will flow from the agency action.” But it was much plainer in the Marine Terminal case that application of these criteria would sustain finality than it is here. In that case “there was no possible disruption of the administrative process; there was nothing else for the Commission to do.” Here, by contrast, the Commission has only determined jurisdiction and granted temporary approval to the assessment formula; the investigation into the legality of the agreement is continuing, and it seems likely that, as was the case with the preceding formula, the agreement will expire before the Commission will have completed its review. The other set of criteria offer petitioners no more help. The Commission’s decision in Marine Terminal had the effect of imposing on carriers certain demurrage charges they had not theretofore borne; here it is still uncertain whether the levying of the tonnage assessment on the carriers will be sustained. We know only that the Commission has not decided whether or not it will be.

The parties nevertheless insist that the order is one which determines certain rights and obligations and thus is final within such cases as Rochester Telephone Corp. v. United States, 307 U.S. 125, 143-144, 59 S.Ct. 754, 83 L.Ed. 1147 (1939), and Frozen Food Express v. United States, 351 U.S. 40, 44-45, 76 S.Ct. 569, 100 L.Ed. 910 (1956). The order in the Rochester case had far more immediate consequences than that here sub judice. Although in form it determined only that the Rochester was not within the intrastate exemption of § 2(b) of the Communications Act, 47 U. S.C. § 152(b), in effect that determination “necessarily and immediately carried direction of obedience to previously formulated mandatory orders addressed generally to all carriers amenable to the Commission’s authority,” 307 U.S. at 144, 59 S.Ct. at 764. Frozen Food is a step closer to the instant case. The ICC there found that specified commodities were not within the “agricultural” exemption from the requirement that motor carriers must possess a certificate or permit to engage in transportation of non-exempt goods. That finding had no economic effect, the Court noted, unless a carrier without an appropriate certificate or permit chose to carry products which the ICC had found not to be within the exemption. Nonetheless, the Court held it sufficient that the order, although merely declaratory, “touches vital interests of carriers and shippers alike and sets the standard for shaping the manner in which an important segment of the trucking business will be done.” 351 U.S. at 44, 76 S.Ct. at 571. Here, so , long as the temporary approval stands, the Commission’s order does not make it unlawful for the parties to carry out the assessment formula, and the only inhibition imposed by the order is against the parties’ modifying or cancel-ling the agreement, a course which they have indicated no desire to do. What may be more important — and the consideration that prompts us to hold the order reviewable- — -is the likelihood that before the Commission’s investigation is concluded and judicial review can be had, NYSA and ILA will be bargaining for a new agreement; it is important for them to know whether any assessment formula that may be included therein will be subject to Commission review. This seems at least to approach the language quoted from Frozen Food. On that basis, although believing that the case is sui generis and that our decision goes to the verge, we hold the order meets the requirement of finality.

II.

We find the merits considerably less difficult than the issue of reviewability; indeed, given the decision in Vollcswa-genwerk, swpra, we see no need for making such heavy weather on the subject as the Commission did.

The assessment agreement fits the definition of § 15 since it imposes obligations on common carriers by water and other persons subject to the Shipping Act, to wit, terminal operators, see 46 U.S.C. § 801. An agreement to which such persons are parties is not taken out of § 15 by the fact that persons not fitting that definition, to wit, stevedoring contractors who are not terminal operators, are also bound. Volkswagenwerk established that an agreement among water carriers, stevedoring contractors and terminal operators allocating assessments for benefits negotiated with a longshoremen’s union requires approval under § 15. The FMC took jurisdiction of T-2390, the predecessor of the present assessment formula, apparently without objection, and directed certain modifications; its action has been sustained, without any suggestion that the FMC lacked jurisdiction over the agreement, in a comprehensive opinion by the District of Columbia Circuit, Transamerican Trailer Transport, Inc. v. FMC, supra. The petitioners urge that the present case is distinguishable on the basis that the agreements in Volk-swagenwerk and Transamerican Trailer Transport were solely among stevedor-ing contractors, terminal operators and carriers, while the ILA took an active part in, negotiating and is a party to the agreement here at issue. This is a distinction without a difference. To be sure, the FMC has no concern with so much of the agreement as provides what wages and other benefits shall be paid to the longshoremen, grievance procedures and similar matters. But even though we fully accept that the ILA has an important stake in the existence of a workable and reliable assessment formula, this does not relieve the FMC of its duty to determine whether the formula is reasonable in its effects on shipping. That inquiry is just as important as under the predecessor agreement and under the agreement in Volkswagenwerk. Similarly, the fact that the union has here succeeded in forcing NYSA to bargain over the assessment formula does not by itself take the formula out of the reach of § 15. The union’s achievement demonstrates its power to force this concession, but it does not dilute the magnitude of problems raised by the formula for shippers and carriers.

It is true that the formula agreed upon in this case does not impose direct assessments upon shippers, but that was also the case in Volkswagenwerk. The Court there thought it enough that the agreement would necessarily affect persons subject to the Shipping Act and ultimately would alter relations among shippers of various types of cargo.

The FMC recognized that this was the heart of Volkswagenwerk when it wrote in its opinion sustaining jurisdiction in this case:

In the final analysis, the nature of the activity must be scrutinized to determine whether it is the type of activity which attempts to affect competition under the antitrust laws or the Shipping Act. The impact upon business which this activity has must then be examined to determine the effect upon competition and whether any such effect is direct or remote. Ultimately the relief requested or the sanction imposed by law must then be weighed against its effect upon the collective bargaining agreement.

The Commission found that the assessment agreement affected competition directly and substantially, much as had the agreement in Volkswagenwerk. An estimated $100 million had to be raised by the assessment scheme, and the formula agreed upon by the association and the union in effect determined how that expense would be divided among carriers utilizing different stevedoring techniques, and thus among different classes of shippers.

In his concurrence in Volkswagen-werk, Mr. Justice Harlan anticipated the problem raised here, and offered some guidance in resolving disputes that arise at the interface between NLRB and FMC jurisdiction. First, he warned against assuming that a maritime agreement “must always fall neatly into either the Labor Board or Maritime Commission domain.” A single contract, he noted, “might well raise issues of con-, cern to both.” The Justice pointed out that multiemployer collective bargaining often presents conflicts between the policy favoring free labor-management bargaining and the policies against agreements that may restrain trade. In light of these countervailing policies, he concluded that the assessment agreement in Volkswagenwerk was not immune or exempt from FMC regulation, “for it raises ‘shipping’ problems logically distinct from ,the industry’s labor problems.” 390 U.S. at 286-287, 88 S.Ct. at 943. That is precisely the situation here. Because the Shipping Act problems clearly predominate over the labor interests raised by the assessment formula, we have no occasion to pass on the relevance or the appropriateness of the four specific criteria evolved by the FMC in defining a “labor exemption” under the Shipping Act. It is enough that the Commission was correct in concluding that its regulation of the assessment formula would have a minimal impact on the collective bargaining process, while exempting the agreement from Shipping Act regulation would expose certain classes of shippers and carriers to potentially massive, inequitable cost increases.

Justice Harlan made a second point in his concurring opinion that. provides further aid in reconciling the competing labor and Shipping Act policies. Even though a particular agreement may be within Commission jurisdiction, he said, “Commission review itself must be circumscribed by the existence of labor problems that it is not equipped to resolve.” In the case of the Volkswagen-werk agreement, he noted that the Commission must start from the premise that “the obligation to collect the Mech Fund will be fulfilled; at issue will be only the propriety of the choice of the route to that objective.” Plainly, the labor interests in the agreement do not evaporate upon a finding of FMC jurisdiction ; those interests demand the Commission’s continuing attention throughout the process of investigating the status of the agreement under §§16 and 17. In determining whether to approve the agreement, the Commission must be particularly sensitive to aspects of the assessment scheme that have relatively more impact on the collective bargaining process and relatively less on competitive conditions in the industry. As the petitioners have repeatedly pointed out, the ILA’s interest is primarily in assuring that the fringe benefit payments will be made; it has no proper concern over who makes the payments as long as they are forthcoming. The portion of the assessment formula allocating payment requirements, therefore, is farthest from the union’s legitimate sphere of interest. The more vital portions of the agreement, so far as the union is concerned, are the provisions relating to the means by which the assessment obligations are to be collected. Correspondingly, the allocation formula would seem to be of primary concern to the FMC, while the enforcement mechanism would appear to have substantially less potential effect on competitive conditions. In determining whether the agreement should be approved, disapproved or modified, the Commission must thus continue to weigh the Shipping Act and labor interests raised by different portions of the agreement and should move with caution in areas of greater collective bargaining concern.

The petitions to review are denied.

      . The main component of waterfront automation has been “containerization,'' the practice of loading and unloading cargo in huge containers rather than item by item. Containerization has engendered labor disputes, protests from non-automated ports, and an extended commercial struggle between “containerized” carriers and the conventional “breakbulk” operators. Mr. Justice Douglas’ dissent in Volkswagenwerk Aktiengesellschaft v. FMC, 390 U.S. 261, 295, 296-306, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968), contains an illuminating summary of the coming of maritime automation.

      . The assessment formula provides that “[a] 11 domestic cargo, all lumber at lumber terminals, bulk cargo (including scrap and sugar), and passengers and tbeir personal baggage shall be deemed cargo excepted from the man-hour and tonnage assessments” set forth in the agreement. Domestic cargo is defined to exclude cargo moving to Puerto Rico, Hawaii and Alaska. In addition, a single ton of cargo is defined as 2,240 pounds or 40 cubic feet by measurement, whichever is greater.

      . Several of the intervenors, Transamerican Trailer Transport, Inc., Seatrain Lines, Inc., Sea-Land Service, Inc., and the Commonwealth of Puerto Rico protest the exclusion of the New York-Puerto Rico trade from “excepted cargo” classification. In addition, intervenor Daniels & Kennedy insists that newsprint should have been granted “excepted cargo” status. Both groups argue, essentially, that their cargoes had undergone modernization well before the assessment agreements were put into effect, and thus that they neither benefited from the ILA’s concession to automation nor contributed to the loss of jobs occasioned by that concession. Therefore, they insist, it is unfair to assess them on a tonnage basis, rather than on a man-hour basis. The Commission ordered limited alterations in the predecessor assessment formula for both groups, Agreement No. T-2336 — New York Shipping Ass’n Cooperative Working Arrangement, No. 69-57 (June 14, 1972), and the Court of Appeals for the D.C. Circuit affirmed that alteration, Transamerican Trailer Transport, Inc. v. FMC, 492 F.2d 617 (D.C.Cir. 1974). It would be inappropriate to determine these contentions on the limited issues of jurisdiction here tendered by the petitioners, although they will have to be considered after the FMC’s final action or, perhaps, on the petitions challenging temporary approval, see fn. 6, infra, if these should be pressed.

      . Intervenor Wolfsburger Transport-Gesell-schaft m.b.H., which transports the vehicles of its parent company, Volkswagenwerk Ak-tiengesellschaft, argues that while the 20% assessment rate appears favorable, it in fact imposes a disproportionate burden upon automobiles. In disapproving an identical assessment rate against automobiles in the predecessor agreement, T-2390, the Commission agreed that even a 20% rate imposes an unfair burden on automobile cargo. Agreement No. T-2336 — New York Shipping Association Cooperative Working Arrangement, supra. The Court of Appeals upheld the Commission’s modification, Transameri-can Trailer Transport, Inc. v. FMC, supra. This, like the issues mentioned in fn. 3, is not properly before us now.

      . This reads in relevant part as follows :
      That every common carrier by water, or other person subject to this Act, shall file immediately with the Commission a true copy ... of every agreement with another such carrier or other person subject to this Act, or modification or cancellation thereof, to which it may be a party or conform in whole or in part, in any manner providing for an exclusive, preferential, or cooperative working arrangement.
      The statute further provides that “[a]ny agreement and any modification or cancellation of any agreement not approved, or disapproved, by the Commission shall be unlawful, and agreements, modifications, and cancellations shall be lawful only when and as long as approved by the Commission.”

      . Several of the intervenors have filed a separate petition challenging so much of the order as granted temporary approval, but so far they have taken no steps to press the appeal.

      . We see little force in petitioners’ argument that the order sought to be reviewed terminated the proceeding initiated by the petitioners’ request for a declaratory order and the FMC’s order to show cause, and that the order should be deemed final for that reason. The effect of the Commission’s action was the same as if the Commission had initiated a proceeding to determine whether the assessment formula should be approved, and had denied a motion by petitioners to dismiss the proceeding for lack of jurisdiction. Indeed, the order to show cause included as issues whether the agreement should not be found to violate §§ 16 First and 17 — issues which are currently under consideration in Docket No. 73-34.

      . The petition of certain intervenors to review so much of the order as grants temporary approval, see fn. 6, is a different matter, since that approval clearly had immediate economic effects. Petitioners here do not challenge the temporary approval and the other petitions are not presently before us.

      . We fear that Mr. Justice Harlan would regard our decision as vindicating his prophecy, dissenting in Frozen Food, that the decision in that case “opens the door wide to ' premature judicial review of various kinds of administrative action,” 351 U.S. at 48, 76 S.Ct. at 574. Professor Davis, however, enthusiastically supports Frozen Food, 3 Davis, Administrative Law Treatise § 21.07, at 170-72 (1958).

      . In Pepsico, Inc. v. FTC, 472 F.2d 179, 187 (2 Cir. 1972) and Ecology Action v. AEC, 492 F.2d 998, 1001-1002 (2 Cir. 1974), we indicated willingness to bestow the rubric of finality on an agency action refusing to dismiss “a proceeding that is plainly beyond its jurisdiction as a matter of law or is being conducted in a manner that cannot result in a valid order.” This case does not approach that severe test.

      . The PMC seems to have been unduly cowed by the spanking administered in Boston Shipping Ass’n, Inc. v. United States, No. 72-1004 (1 Cir. May 31, 1972), where the court noted in dictum that its “initial reaction to the Commission’s ruling [requiring filing of a collective bargaining agreement] is one of astonishment.” The contract at issue in that case, however, was a collective bargaining agreement which related solely to the method of hiring longshoremen and contained no provision for imposing assessments on carriers or shippers. The Commission subsequently held that the agreement in that case did not fall within its jurisdiction under the Shipping Act, United Stevedoring Corp. v. Boston Shipping Ass’n, No. 70-3 (Aug. 25, 1972).

      . It is true that in all likelihood a substantial increase in wages or fringe benefits not incorporating an assessment formula would also be passed on by stevedoring contractors and terminal operators to water carriers and in turn to shippers in the form of general rate increases. What concerned the Court in Volkswagenwerk was that a formula faces stevedoring contractors and terminal operators with a choice either to pass on the assessment as such, with the possibility of disfavoring certain types of cargo, as the instant agreement requires up to the carrier stage, or to cease handling more heavily burdened cargo — in the present case cargo of high weight and low value.

      . In United Stevedoring Corp. v. Boston Shipping Ass’n supra, the Commission set out a four-part test to determine whether a particular agreement is entitled to a “labor exemption” from regulation under the Shipping Act. The four criteria were: (1) whether the collective bargaining that resulted in the agreement was in good faith; (2) whether the subject of the agreement is a mandatory subject of bargaining; (3) whether the agreement imposes terms on entities outside the collective bargaining unit; and (4) whether the union is acting in conspiracy with management, as defined in United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). The Commission adhered to and applied those standards in this case, finding that the agreement dealt with a nonmandatory subject of bargaining and that the agreement imposed terms on persons outside the collective bargaining unit.

      . The portions of the assessment agreement relating to the collection scheme provide that all members of NYSA are bound by the agreement, all stevedores and carriers who utilize the services of NYSA members are bound by the agreement, that NYSA members must refuse services to any employers who refused to subscribe to the agreement, and that if any NYSA member provides services for an employer who does not pay the assessment obligation, the member will be required to pay the amount that is due. One indication of the union’s relatively smaller interest in the actual allocation of assessments is that the 1972 allocation scheme was not changed from the one that NYSA had unilaterally adopted in 1970. Only the collection arrangements were altered in the collectively bargained formula.


source: Caselaw Access Project

author: BELL, Circuit Judge:

license: Public Domain

text:
    Bob S. PETTERWAY, Plaintiff-Appellant, v. The VETERANS ADMINISTRATION HOSPITAL, HOUSTON, TEXAS, and Dr. John W. Claiborne, Jr., Individually, etc., Defendants-Appellees.
    No. 73-1772.
    United States Court of Appeals, Fifth Circuit.
    June 12, 1974.
    Gabrielle K. McDonald, Mark T. McDonald, Houston, Tex., William L. Robinson, Jack Greenberg, New York City, for plaintiff-appellant.
    Anthony J. P. Farris, U. S. Atty., Charles B. Wolfe, Robert Darden, Asst. U. S. Attys., Houston, Tex., for defendants-appellees.
    Before BELL, COLEMAN and RO-NEY, Circuit Judges:
   BELL, Circuit Judge:

This is a suit against an agency and an official of the federal government for alleged racially discriminatory employment practices. Solely on the ground of sovereign immunity, the district court granted the government’s motion to dismiss. For reasons stated herein, we reverse and remand for further proceedings.

In this complaint appellant alleged that he was first employed by the Veterans Administration Hospital in 1963 as a Food Service Worker at grade WG-2, at which he worked until transferring to the Engineering Department in 1966 as a Refrigeration/Air Conditioning Mechanic at WG-7. He alleged on information and belief that until 1963 the Engineering Division was composed entirely of white persons. Because of prior experience as an electrical repairman before joining the VA, appellant contended that he was qualified for the top labor grade, WG-11, at the time he entered the Engineering Department in 1966 rather than WG-7. He also alleged that white employees equally or less qualified than black employees in the Engineering Department had not been required to enter at the WG-7 pay level as had all black employees but entered at WG-10 or WG-11. He claimed that on five occasions he had sought the position of Refrigerator/Air-Conditioning Mechanic in the Engineering Department but, even though notified that he was “qualified and referred for consideration,” was not selected.

Discrimination was also alleged in terms of defendants’ having failed to post job vacancies despite the requirements of the Merit Promotion Plan with the result of having hired white employees from without the department. Finally, appellant claimed that he was then employed as a Control Mechanic at WG-10 but is paid a lesser salary than a white employee who previously occupied that position.

Appellant’s allegation that he had exhausted his administrative remedies has not been challenged. He filed a complaint claiming discrimination with the Civil Service Commission on January 15, 1970. A formal hearing was held by an Appeals Examiner of the United States Civil Service Commission on August 24, 1970. The Appeals Examiner found that because of his race plaintiff had been denied a promotion to a Refrigeration/Air-Conditioning Mechanic job at WG-11 on December 29, 1969. The office of the General Counsel, Veterans Administration, refused to adopt the findings of the Appeals Examiner, and plaintiff appealed to the Board of Appeals and Review, United States Civil Service Commission, on April 27, 1971. On September 16, 1971, the Board of Appeals and Review held that the evidence did not support the conclusion of the Appeals Examiner. Appellant alleges that subsequent efforts were made to reopen the case before the United States Civil Service Commission but without success. He filed this suit in federal district court on July 12, 1972. *****8

In his multitudinous prayer, appellant sought declaratory and injunctive relief, immediate promotion to the WG-11 position which he claimed had been denied to him and also back pay. The prayers as to declaratory and injunctive relief are directed to the alleged discriminatory practices to the end that the practices be declared illegal and enjoined. In addition to the prayer for promotion and back wages for appellant, there is also a prayer that the defendants take affirmative action to correct the past discriminatory practices with respect to plaintiff and the members of the class of black employees similarly situated.

Sovereign immunity is not a talismanic defense that bars all forms of relief in an employment racial discrimination suit against officials and an agency of the federal government. The district court should have considered whether and to what extent the relief sought by appellant was appropriate by treating the petition as being in the nature of a petition for mandamus. See Beale v. Blount, 5 Cir., 1972, 461 F.2d 1133, 1137. Our decision in Beale v. Blount makes it clear that injunctive relief is barred by sovereign immunity. On the other hand, it was stated that a claim for reinstatement is in the nature of mandamus and thus not barred by sovereign immunity. 461 F.2d at 1137-1138. Relief available by mandamus would include a promotion as well as reinstatement if otherwise appropriate.

Further, the trial court should have considered whether the alleged racial discrimination by the individual defendant was ultra vires to his statutory and constitutional authority and whether the relief sought is within the LarsonDugan exception to sovereign immunity. Larson v. Domestic and Foreign Commerce Corporation, 1949, 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628; Dugan v. Rank, 1963, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15. See Gautreaux v. Romney, 7 Cir., 1971, 448 F.2d 731, 735; Rockbridge v. Lincoln, 9 Cir., 1971, 449 F.2d 567, 572-573.

Doubtless some of the relief sought by appellant is barred by the doctrine of sovereign immunity. The granting of the motion to dismiss on this basis, however, as to the entire claim was error. Moreover, given the varying types of relief sought, this appeal is complicated by prematurity in that the issues were not defined in the district court nor were they narrowed to the point where we are able to discern the particulars of the claims for the purpose of separating the non-sovereign immunity mandamus type claims from those otherwise barred, or from those, if any, which may fall under the aegis of the Larson-Dugan exception as it applies to federal officials. Hence the matter must be considered anew in the district court.

Reversed and remanded for further proceedings not inconsistent herewith.

      . The government also moved to dismiss for failure to join indispensable parties, the individual members of the Civil Service Commission. The district court did not rule on this motion and we need not consider it here.

      . On March 24, 1972, Congress amended the 1964 Civil Rights Act to specifically enforce the obligations of equal employment opportunity in Federal employment. 42 U.S.C.A. § 2000e-16. Clearly, federal employees properly alleging racially discriminatory practices in federal employment subsequent to this legislation have available both administrative and judicial avenues of relief. 1972 U.S.Code Cong. & Admin.News, pp. 2137, 2157-2160. E. g., Fears v. Catlin, D.Colo., 1974, 377 F.Supp. 291.
      Since appellant’s discrimination complaint was no longer pending with the administrative agency on March 24, 1972, the Amendment’s effective date, as well as his suit having been filed beyond the new statute’s 30 day time period in which to file a civil action after receipt of notice of final agency action, we do not consider the question of the Amendment’s applicability to alleged pre-Amendment acts of discrimination. Compare Walker v. Kleindienst, D.D.C., 1973, 357 F.Supp. 749, with Hill-Vincent v. Richardson, N.D.I11., 1973, 359 F.Supp. 308. See also Jackson v. U. S. Civil Service Commission, S.D.Tex., Dec. 13, 1973, 7 CCH Empl.Prac.Dec. If 9134.

      . Appellant has argued that 42 U.S.C.A. § 1981, one of his jurisdictional predicates, constitues a waiver of sovereign immunity. His principal reliance is on language in District of Columbia v. Carter, 1973, 409 U.S. 418, 422, 93 S.Ct. 602, 605, 34 L.Ed.2d 613, where the Court said Section 1982, like Section 1981 a part of the Civil Rights Act of 1866 based on the Thirteenth Amendment, is “an ‘absolute’ bar to all such discrimination, private as well as public, federal as well as state.” Appellant contended this “waiver” was buttressed by the long-standing federal policy against racial discrimination in federal employment manifested by Executive Orders, most recently E.O. 11478 (1969), and statute, e. g„ 5 U.S.C.A. § 7154(b).
      It is well settled however that a waiver of sovereign immunity must be specific and explicit and cannot be implied by construction of an ambiguous statute. See United States v. Shaw, 1940, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; Barefield v. Byrd, 5 Cir., 1963, 320 F.2d 455, cert. denied, 1964, 376 U.S. 928, 84 S.Ct. 675, 11 L.Ed.2d 624. Section 1981 contains no explicit waiver of sovereign immunity by the federal government but merely a general prohibition of discrimination on racial grounds. See Beale v. Blount, 5 Cir., 1972, 461 F.2d 1133. Congress has more recently spoken directly and explicitly. See note (2) supra.

      . See Penn v. Schlesinger, 5 Cir., 1973, rehearing en banc ordered, March 15, 1974, 490 F.2d 700, Zapata v. Smith, 5 Cir., 1971, 437 F.2d 1024, 1027 (dicta), Gardner v. Harris, 5 Cir., 1968, 391 F.2d 885.


author: GEE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James BURKE, Louis Lopez and Henry Hill, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Raul CHARBONIER and Luis Charbonier, Defendants-Appellants.
    Nos. 72-3742, 73-1045.
    United States Court of Appeals, Fifth Circuit.
    June 12, 1974.
    Rehearings Denied Aug. 9, 1974.

      Barry A. Cohen, Paul Antinori, Tampa, Fla., for James Burke et al.
    Raymond E. LaPorte, Tampa, Fla., for Raul Charbonier and Luis Charbonier.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for the United States.
    Before WISDOM, AINSWORTH and GEE, Circuit Judges.
   GEE, Circuit Judge:

On appeal from their conviction for various gambling and extortion offenses, appellants raise issues of sufficiency of the evidence, admission of inadmissible hearsay, denial of the right to confrontation, failure to sever the trial of Burke, Hill and Lopez from the trial of Raul and Luis Charbonier, prosecutorial misconduct, improper jury instructions, and collateral estoppel. Concluding that their contentions are meritless, we affirm the convictions.

In November, 1970, the United States indicted James Burke, Henry Hill, Louis Lopez, Raul Charbonier and Luis Charbonier on five counts. The charges consisted of (1) making extortionate extensions of credit; using extortionate means of collecting debts; (3) interstate travel in furtherance of extortion; (4) interstate travel for promotion of an illegal gambling enterprise; and (5) use of interstate telephone facilities in an unlawful gambling enterprise.

The scheme that led to the indictments was crude but effective. Raul Charbonier owned the Char-Pal, a combination lounge-liquor store in Tampa, Florida. His friend Gaspar Ciaccio also owned and operated, in conjunction with his brother Fano Ciaccio, a lounge-liquor store, the Temple Terrace Lounge, located not far from Charbonier’s establishment. Early in 1970, Raul Charbonier approached Gaspar Ciaccio with a gambling proposition. Raul could obtain a rigged line or odds sheet on baseball games during the upcoming season from his cousin Pupi in New York, and he offered Ciaccio the opportunity to bet on the games using the line. Gaspar Ciac-cio informed his friend Dr. Felix Lo-Cicero of the opportunity and introduced him to Charbonier. In June, 1970, after Charbonier explained the scheme in detail to Ciaccio and LoCieero and enlisted them, they began betting. Charbonier guaranteed that the line was rigged so Ciaccio and Dr. LoCieero would win. The system allowed only bets on the team designated as the favorite in any particular game, at the odds specified. The gamblers could select any number of games on the list to bet on. Charbonier received the line by telephone from New York and phoned the daily lists to either Ciaccio or LoCieero.

The betting began with bush-league sums in early June, 1970. As promised, Ciaccio and LoCieero won consistently in the beginning, and they increased the amounts of their bets as the season progressed. By the All-Star game break in July, they had compiled $7,500-$8,000 in unpaid winnings. The wagers by that time had reached the major leagues —as much as $1,000 per game. The All-Star game marked the end of Ciac-cio’s and LoCicero’s hitting streak. After winning the bet on that game, they began striking out consistently. By early August, both had not only lost their previously-compiled winnings but were deeply in the hole. Although they had paid over $7,800, Ciaccio and Lo-Cicero still owed over $13,000 when they called the game. 'When a friend of Ciac-cio’s, Tony Márchese (who was a bit more knowledgeable about gambling and baseball) saw one of the odds sheets Charbonier supplied Ciaccio, he informed Ciaccio, that, contrary to Char-bonier’s promise of a line rigged to win, the odds were deceptively rigged to insure losing bets. Ciaccio and LoCieero informed Charbonier that they refused to play any longer.

LoCieero paid Charbonier another $1,000 on August 24 and had no further contact with him until October 8. The Charboniers did not forget Ciaccio. Raul Charbonier pressed Ciaccio to pay his remaining losses several times between August and October. Ciaccio refused to pay the amount because he believed he had been duped. Once Char-bonier assured Ciaccio that, if he did not pay the debt, Charbonier’s cousin would come down from New York and “he would bring some people down here and get the money one way or another.” Raul added to his lineup about that time by substituting his brother Luis as a pinch-hitter. In later August, Luis demanded that Ciaccio pay up. Ciaccio again refused.

To complete the lineup, Cosmo Rosado, James Burke, Henry Hill and Louis Lopez flew from New York to Tampa the night of October 8 arriving about 9:45 p.m. Rosado rented a car and informed the rental agent that he would use the car for an indeterminate time up to five days without a local address.

Around 10:30 that night, Luis Char-bonier and Rosado, accompanied by the others from New York, accosted Ciaccio in his own lounge. After some serious haggling about Ciaccio’s debt, Luis Charbonier and Rosado told Ciaccio to accompany them to Charbonier’s lounge. When Ciaccio refused, Burke nudged a gun against his ribs. Having thus received an offer he couldn’t refuse, Ciac-cio went along, surrounded by the five antagonists. Foregoing any further pleasantries, Hill and Lopez, sitting on either side of Ciaccio in the back seat of the car on the way to the other lounge, began beating him. Lopez split open Ciaccio’s forehead with a pistol. Hill and Lopez stated that they would kill Ciaccio, but that it would not be worthwhile since they wanted their $8,000.

Raul Charbonier greeted Ciaccio, when they arrived at the Char-Pal, with, “I told you this was going to happen to you, didn’t I? I told you this.” At the Char-Pal the collectors placed Ciaccio in the stockroom and beat on him some more. While Gaspar Ciaccio was enduring his status of punching bag, Raul Carbonier called Gaspar’s brother, Fano Ciaccio, at the Temple Terrace Lounge. Raul explained to Fano that they had his brother and they were “working him over.” Raul said, “These fellows are from up North and they want their $8,000.” Fano went to the Char-Pal Lounge to negotiate with Charbonier. After Fano explained he did not have the $8,000, Rosado told him that he could have a week to produce it. Subsequently, Raul Charbonier brought Gaspar back to the Temple Terrace Lounge. Some friends helped Gaspar change his bloody clothes and took him to a nearby hospital, where he was treated and the wound in his forehead was stitched up. Gaspar Ciaccio, who was away from work for a week after the beating, borrowed $8,000 from relatives and paid it to Charbonier by the end of the week.

Raul Charbonier had not forgotten LoCicero either. About midnight on the same night as Ciaccio’s beating, Char-bonier called LoCicero. Charbonier informed LoCicero that they had Gaspar, they had gasoline in the car, and they wanted to come over to see LoCicero. Charbonier agreed that, if LoCicero would promise to pay the balance in the morning, he would keep them away from him. LoCicero agreed. He offered a thumbnail sketch of his reaction: “I was scared as hell.” At the earliest opportunity, he paid Raul Charbonier $4,000 to cancel the gambling debt.

Early on October 9, Rosado turned in the rental car at the airport. Rosado, Burke, Hill and Lopez returned to New York that same morning, flying through Miami.

On November 24, 1970, six days after the federal indictment was returned, state officials charged these defendants with kidnapping, extortion and assault with intent to murder Gaspar Ciaccio. The state case proceeded expeditiously and was tried in early March, 1971. All defendants were acquitted. The federal case was delayed by various legal maneuverings of the defendants until October, 1972. The trial court directed a verdict of not guilty on Count V as to Burke, Hill and Lopez, because no evidence of phone calls by them existed. The jury found the Charboniers guilty on all counts and Burke, Hill and Lopez guilty on Counts I through IV. The court sentenced each individual to ten years’ imprisonment.

Evidentiary Issues

Burke, Hill and Lopez contend pro forma that the evidence was insufficient to sustain their convictions. The contention is frivolous in light of the overwhelming and detailed testimony by Ciaccio and others about these appellants’ conduct. But Burke, Hill and Lopez seriously insist that massive infusions of inadmissible hearsay denied them a fair trial and their respective rights to confront the witnesses against them.

First, they complain of Ciaccio’s and LoCicero’s testimony about the operation of the gambling scheme during the spring and summer. They assert as inadmissible hearsay virtually everything the witnesses said that Raul Charbonier said- or did. These statements, rather than hearsay, as appellants assert, were “verbal acts,” statements which were elements of the crimes charged. With the exceptions discussed below, none of the statements or acts attributed to Char-bonier referred to Burke, Hill and Lopez.

The issue, then, is whether this non-hearsay evidence was admissible in the trial against Burke, Hill and Lopez. Doubtless it was relevant. It established and detailed the gambling scheme which was the context for the extortionate extensions of credit and the extortionate collection methods. Additionally, the gambling supplied the element which made the interstate travel and use of interstate telephone facilities illegal. No issue of prejudice or necessity for cautionary instructions arose because these defendants were not mentioned as involved in the original arrangements or operations of the gambling scheme. Whether these particular acts of Charbonier were attributable to Burke, Hill and Lopez was essentially irrelevant. As to them, it was only the action of October 8th to which federal criminal liability could be ascribed. To the extent the jury may have associated these defendants with the origination of the gambling, it was permissible under the traditional principle that the acts of one partner in crime are admissible against the others when it is in furtherance of the criminal undertaking. Orser v. United States, 362 F.2d 580, 585 (5th Cir. 1966).

The witnesses did relate a few statements by the Charboniers referring to Cosmo Rosado, the “cousin from up North” and to “people” that his cousin would “bring down here and get the money one way or another.” Most clearly incriminating to these three appellants was the phone conversation between Raul Charbonier and LoCicero of October 8th, related by LoCicero on the witness stand:

I received a telephone call and the words were, “Doc, this is Raul. They have Gaspar in the car. They have gasoline in the car. And they want to come over to see you. If you guaranty me you will pay the balance by tomorrow I will tell them not to come over.”
I related at that time that I thought that matter had been settled. Says, “No. They want their money now.” Says, “Well you come to my office tomorrow and I will have the money for you.” He said, “That is good enough for me.” And hung up.

Again, these statements were not hearsay but were statements which constituted the very activity in combination with which the defendants were charged. As such, they were admissible and attributable to Burke, Hill and Lopez. Additionally, these statements did not deny these appellants the Sixth Amendment right to confront the witnesses against them. Although the rationale for admission of these statements is not the co-conspirator exception to the hearsay rule, the analysis of these “verbal acts” in light of the confrontation clause necessarily follows many of the same guidelines. The declarants, as defendants, were unavailable to the government; sufficient indicia of reliability, both as to Charbonier’s threatening purpose and as to the reference on October 8th to “they,” meaning Burke, Hill and Lopez, was supplied by overwhelming independent evidence of these appellants’ activities; also, m light of the direct evidence of Burke’s, Hill’s and López’ participation, references to “they” were not “crucial” to the government’s case nor “devastating” to the defense. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Park v. Huff, 493 F.2d 923 (5th Cir. 1974); Davenport, The Confrontation Clause and the Coconspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv.L.Rev. 1378 (1972).

Appellants insist not only that the evidence was inadmissible but that they were prejudicially misled by a preliminary statement that the conspiracy rules of evidence were not applicable and by the failure of the prosecution to define the scope and purpose of any conspiracy or joint venture in crime. We find no evidence in the record of disadvantage or prejudice to appellants. They were afforded full opportunity to present their objections, which they did —promptly, thoroughly and unctuously. The trial judge, at an appropriate time, found that sufficient independent evidence of the “co-partnership,” “joint venture,” or common undertaking of a criminal objective existed to establish that relationship between defendants, to reinforce the reliability of the extra-judicial statements, and to furnish the necessary relevance of the evidence. Orser v. United States, supra, at 585.

Two more minor evidentiary questions warrant discussion. First, appellants insist that Gaspar Ciaccio’s testimony about his statements to his treating doctor on the night of October 8th after his beating were inadmissible hearsay. Assuming appellants are correct that the statements about his beating were not necessary for medical diagnosis or treatment, the testimony was still admissible to support Ciaceio’s story after the defense had attacked Ciaccio’s story as a recent fabrication. McCormick, Evidence (2d) § 251 (1972). Secondly, appellants claim that the testimony of a government agent relating an interview with Raul Charbonier on November 13, 1970, was inadmissible. We agree that it was inadmissible simply as irrelevant, if for no other reason. During the interview, Charbonier denied the whole gambling and extortion scheme. Additionally, it was not in furtherance of the criminal goal for which defendants were charged. And it lacked any reference to any other defendant. Whatever effect the statement may have generated, however, it was not substantial or prejudicial enough to warrant reversal.

Earl Cram, a witness, had seen Gaspar Ciaccio come out of his lounge on October 8th surrounded by four of the defendants and Rosado. After cross-examination of Cram, defendants sought to show his bias by introducing statements by Cram, after defendants’ acquittal in state court, that he was unhappy with, and skeptical of, that trial’s outcome. Defendants did not show material differences from the state trial in Cram’s testimony or any other way in which his testimony was biased by the state trial outcome. Additionally, the district court had earlier ruled that evidence of the state acquittal was irrelevant and it was within his discretion to foreclose the defendants’ attempt to refer to it.

Direct examination of Gaspar Ciaccio lasted until late on a Friday afternoon before a three-day weekend. The district judge granted permission for the prosecutor to “work with” Ciaccio over the weekend in order to discuss the upcoming cross-examination. Defendants urge that this deprived them of the “timely thrust of naturalness” inherently essential to cross-examination. The defense had the full weekend to prepare its cross-examination and they have not shown any prejudice resulting from the two-hour conference between Ciaccio and the prosecutor. Thus, we cannot say the district court abused its discretion in allowing it.

Severance

Appellants insist that the district court erred in failing to grant a severance of the Charboniers’ trial from that of Burke, Hill and Lopez. Rule 14, F.R.Crim.P., provides that a motion for a severance is addressed to the discretion of the trial judge. Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954); Smith v. United States, 385 F.2d 34 (5th Cir. 1967). To challenge successfully the refusal of a trial judge to grant a motion to sever, an appellant must show “prejudice resulting in the denial of a fair trial.” United States v. Martinez, 486 F.2d 15 (5th Cir. 1973); United States v. Nakaladski, 481 F.2d 289 (5th Cir. 1973). In Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970), we enumerated guidelines for evaluating motions for severance based on a desire to offer exculpatory testimony of a co-defendant.

We agree that the defendants satisfied two of the criteria. (1) Burke, Hill and Lopez subpoenaed the Charboniers as witnesses and, although tardily, sufficiently communicated to the trial judge that they desired to use the Charboniers as witnesses; (2) the appellants timely made (although over a year after indictment) the requisite motions and renewed them during trial.

On the other hand, we cannot say that these appellants satisfied the other criteria sufficiently to warrant a conclusion that the district court abused its discretion. (1) The Charboniers filed affidavits which tracked exactly the language of the indictments but expressed it in the negative. These affidavits failed to clearly show what the Charboniers would have testified to. The movants made no showing that the Charboniers’ testimony would be exculpatory in effect or would raise strong doubts as to Burke’s, Hill’s and Lopez’ guilt. Byrd, swpra at 1020-1021. (2) The likelihood that the Charboniers would testify if tried separately was enhanced by the Charboniers’ affidavits to that effect, but that likelihood was diminished by the failure to show why the Charboniers would have been willing to testify at a separate trial but not in the joint one. The usual reason for such a strategy is inconsistent or antagonistic defenses— the testimony that exonerates the mov-ant will implicate the co-defendant witness. Byrd, supra at 1022; United States v. Johnson, 478 F.2d 1129 (5th Cir. 1973). Appellants made no such showing to the trial judge. (3) Considerations of judicial economy and administration weigh heavily in favor of the district court’s decision. By various manuevers defendants delayed commencement of the trial for almost two years after indictment, the trial itself required nearly three weeks, and separate trials would have required virtual duplication of great effort and expense.

Miscellaneous

Appellants urge that the following remark by the prosecutor during rebuttal argument was improper comment on the failure of the defendants to take the stand:

Defense counsel stated that, while they were not there and I wasn’t theré —I want to point out to you, ladies and gentlemen, that the people who were there were all the witnesses who testified to the facts and all of the defendants, and they were there when this occurred; and you have the testimony as to what happened.

In the context presented, countervailing arguments by counsel that neither the prosecutor’s nor the defense counsel’s statements constitute evidence in the case, we cannot conclude that this statement “ . . . was manifestly intended or was ‘of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ ” United States v. White, 444 F.2d 1274, 1278 (5th Cir. 1971).

Appellants also insist that the prosecutor below engaged in other serious misconduct sufficient to deny them a fair trial. After reviewing the record of the incidents, statements and arguments alleged to have been prejudicial, we conclude that they were not so misleading, inflammatory or prejudicial as to deny defendants a fair trial.

In the state trial, Fano Ciaccio had denied that he knew of his brother’s gambling. At the federal trial, he acknowledged that his earlier statement was false and explained that he had been afraid at the time to expose his knowledge of the gambling because of the treatment received by his brother. Additionally, due to language difficulties Fano was confused and made misstatements on cross-examination which he or the prosecutor had to correct. On these factors, defense counsel requested the district judge to specially instruct the jury about admitted perjurious testimony and to apply the maxim “falsus in uno, falsus in omnibus” to Fano’s testimony. The trial judge refused to so instruct the jury, but he allowed defense counsel to argue the point to the jury. In light of all the circumstances and the thorough instructions given by the court, we cannot conclude the failure to give these instructions was error. Cf. Luna v. Beto, 395 F.2d 35 (5th Cir. 1968).

Finally, appellants’ contention that the federal government was precluded by doctrines of double jeopardy and collateral estoppel from trying these defendants under these charges after the state court acquitted them is foreclosed by Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), and Ab-bate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); see United States v. Vaughan, 491 F.2d 1096 (5th Cir. 1974).

Affirmed.

      . In violation of 18 U.S.C.A. § 892:
      § 892. Making extortionate extensions of credit

      (a) Whoever makes any extortionate extension of credit, or conspires to do so, shall be fined not more than $10,000 or imprisoned not more than 20 years, or both.
      !(b) In any prosecution under this section, if it is shown that all of the following factors were present in connection with the extension of credit in question, there is prima facie evidence that the extension of credit was extortionate, but this subsection is nonexclusive and in no way limits the effect or applicability of subsection (a) :
      (1) The repayment of the extension of credit, or the performance of any promise given in consideration thereof, would be unenforceable, through civil judicial processes against the debtor
      (A) in the jurisdiction within which the debtor, if a natural person, resided or
      (B) in every jurisdiction within which the debtor, if other than a natural person, was incorporated or qualified to do business at the time the extension of credit was made.
      (2) The extention of credit was made at a rate of interest in excess of an annual rate of 45 per centum calculated according to the actuarial method of allocating payments made on a debt between principal and interest, pursuant to which a payment is applied first to the accumulated interest and the balance is applied to the unpaid principal.
      (3) At the time the extension of credit was made, the debtor reasonably believed that either
      (A) one or more extensions of credit by the creditor had been collected or attempted to be collected by extortionate means, or the nonrepayment thereof had been punished by extortionate means ; or
      (B) the creditor had a reputation for the use of extortionate means to collect extensions of credit or to punish the nonrepayment thereof.
      (4) Upon the making of the extension of credit, the total of the extensions of credit by the creditor to the debtor then outstanding, including any unpaid interest or similar charges, exceeded $100.
      (c) In any prosecution under this section, if evidence has been introduced tending to show the existence of any of the circumstances described in subsection (b) (1) or (b) (2), and direct evidence of the actual belief of the debtor as to the creditor’s collection practices is not available, then for the purpose of showing the understanding of the debtor and the creditor at the time the extension of credit was made, the court may in its discretion allow evidence to be introduced tending to show the reputation as to collection practices of the creditor in any community of which the debtor was a member at the time of the extension.

      . Cosmo Rosado (“Pupi”), the Charboniers’ cousin, was indicted also, but he died shortly before trial.

      . In violation of 18 U.S.C.A. § 894:
      § 894. Collection of extensions of credit by extortionate means

      (a) Whoever knowingly participates in any way, or conspires to do so, in the use of any extortionate means
      (1) to collect or attempt to collect any extension of credit, or
      (2) to punish any person for the nonre-payment thereof,
      shall be fined not more than $10,000 or imprisoned not more than 20 years, or both.
      (b) In any prosecution under this section for the purpose of showing an implicit threat as a means of collection, evidence may be introduced tending to show that one or more extensions of credit by the creditor were, to the knowledge of the person against whom the implicit threat was alleged to have been made, collected or attempted to be collected by extortionate means or that the nonrepayment thereof was punished by extortionate means.
      (c) In any prosecution under this section, if evidence has been introduced tending to show the existence, at the time the extension of credit in question was made, of the circumstances described in section 892(b) (1) or the circumstances described in section 892(b)(2), and direct evidence of the actual belief of the debtor as to the creditor’s collection practices is not available, then for the purpose of showing that words or other means of communication, shown to have been employed as a means of collection, in fact carried an express or implicit threat, the court may in its discretion allow evidence to be introduced tending to show the reputation of the defendant in any community of which the person against whom the alleged threat was made was a member at the time of the collection or attempt at collection.

      . The last three counts in violation of 18 U. S.C.A. § 1952:
      § 1952. Interstate and foreign travel or transportation in aid of racheteering enterprises

      (a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to—
      (1) distribute the proceeds of any unlawful activity; or
      (2) commit any crime of violence to further any unlawful activity ; or
      (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,
      and thereafter performs or attempts to perform any of the acts specified in sub-paragraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.
      (b) As used in this section “unlawful activity” means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics or controlled substances (as defined in section 102(6) of the Controlled Substances Act), or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.

        (c) Investigations of violations under this section involving liquor shall be conducted under the supervision of the Secretary of the Treasury.

      . The Charboniers do not brief but simply adopt, where applicable, the arguments of Burke, Hill and Lopez on the issues of inadmissible hearsay, severance and collateral es-toppel. Where applicable, we reject the Charboniers’ adoption of those arguments. Burke, Hill and Lopez, in turn, do not brief but simply adopt, where applicable, the arguments of the Charboniers on the issues of prosecutorial misconduct, improper comment on defendants’ failure to testify, denial of confrontation and due process as to witness Cram, and failure of the court to give requested instructions. Where applicable, we reject Burke’s, Hill’s and Lopez’ adoption of those arguments.

      . Thus we need not consider whether conspiracy must actually be charged in order to invoke that exception. Compare United States v. Harrell, 436 F.2d 606, 616 (5th Cir. 1970), with United States v. Williamson, 482 F.2d 508, 513 (5th Cir. 1973).

      . And Cosmo Rosado.

      . See United States v. Martinez, 486 F.2d 15, 22 (5th Cir. 1973), where we said that the Fourteenth Amendment due process criteria are similar to those of Rule 14, F.R.Crim.P.


author: GROOMS, District Judge:

text:
    Henry M. STRANGE, Plaintiff-Appellant, v. GULF & SOUTH AMERICAN STEAMSHIP COMPANY, INC., Defendant-Appellee.
    No. 73-3255.
    United States Court of Appeals, Fifth Circuit.
    June 17, 1974.

      John N. Barnhart, Houston, Tex., for plaintiff-appellant.
    Kenneth D. Kuykendall, Houston, Tex., for defendant-appellee.
    Before WISDOM and CLARK, Circuit Judges, and GROOMS, District Judge.
   GROOMS, District Judge:

This is an appeal from an order sustaining Gulf & South American Steamship Company, Inc.’s (Gulf) motion for judgment in accordance with a settlement agreement made during the pen-dency of the action. We affirm.

This action was instituted on February 25, 1971, by Appellant. Henry M. Strange, against Shipowner Gulf for personal injuries suffered by him on April 1, 1970, while working as a longshoreman aboard the GULF SHIPPER. The ease was set for trial on November 6, 1972. The parties agreed to settle the case for $2250.00 on October 30, 1972, but appellant refused to execute the release and accept the settlement funds which had been delivered to his attorney.

The sole challenge to the order is that there was a mutual mistake of the parties concerning appellant’s medical condition at the time of the settlement.

Appellee Gulf sent appellant to four physicians. The initial, and only objective finding, was a small laceration on the left frontal area of the scalp. During the months of April, May, and December 1970, appellant submitted to three neurological examinations in an attempt to ascertain the basis for his continued complaints of headaches and dizziness. One of the three neurological examinations included intensive tests during a six-day hospital confinement. When his deposition was taken in June 1971, appellant made the same complaints. In July of that year, on the direction of his attorney, he independently sought from one of the doctors another examination and report. The examination revealed that he was continuing to experience the same difficulties, and, like those that preceded it, failed to disclose any organic cause for his symptoms.

There is nothing in the record to indicate a failure to disclose any known medical facts with respect to appellant’s condition, nor does there appear any attempt to mislead as to any prognosis. Two years and seven months elapsed from the date of his injury to the time of settlement. Previous settlement negotiations were had in July 1971.

Appellant possessed all the facts that Gulf possessed. His symptoms were subjective and he alone was aware of their severity and frequency of occurrence.

The parties negotiated at arms-length and in apparent good faith. There is no issue of the competency of counsel or the adequacy of legal advice. Nor does there appear any taint of fraud, deception, coercion or overreaching by Gulf in the negotiations eventuating in the settlement.

In the absence of a factual basis rendering it invalid, and we find none here, an oral agreement to settle a personal injury cause of action within the admiralty and maritime jurisdiction of the federal courts is enforceable and cannot be repudiated. CIA Anon Venezolana De Navegacion v. Harris, 374 F.2d 33 (5th Cir.); Harmon v. United States, 59 F.2d 372 (5th Cir.); Beckham v. Reed, Kapt. H. Krohn, G.M.B.H., 217 F.Supp. 749 (S.D.Tex.); Dagounak-is v. Santa Madre, 183 F.Supp. 54 (E.D.Va.), aff’d, 277 F.2d 461 (4th Cir.); Gilbert v. United States, 479 F.2d 1267 (2nd Cir.) See also Baska v. Western Agency, Inc., 485 F.2d 582 (5th Cir.).

In Harris, supra, where a shipowner sought to repudiate a settlement with a longshoreman, we said:

“Federal courts have held under a great variety of circumstances that a settlement agreement once entered into cannot be repudiated by either party and will be summarily enforced.” [Emphasis supplied]

The record facts and the applicable authorities do not sustain the challenge based on mutual mistake. There would be little security in the settlement of a personal injury claim if the binding effect of such a settlement depended upon the certainty of the extent and outcome of the injuries involved. It is the very consequences of these uncertainties which the parties seek to foreclose by settlement and to take their chances on their outcome.

The language of the decision in Harmon, supra, where a seaman sought to set aside a release of a claim for damages for personal injuries based upon charges of mental and physical incapacity and inadequacy of consideration, is apposite and well noted in the light of this record. The court observed that the decisions did not support the claim that the release could be set aside, “merely because of the fact that plaintiff may have received considerably less for his injuries than at the end of a controversy he might reasonably have hoped to obtain,” where “no fraud, deception, or overreaching having been practiced.” In conclusion the court stated:

“Here is no case of a seaman in ex-tremis pressed into a half understood agreement, which takes away an undoubted right. Here is a case of a matter in controversy, negotiations in regard to which, protracted over a considerable space of time in an atmosphere not of overreaching and double dealing, but of frankness and plain dealing, finally resulted in a settlement with nothing really set up to defeat it except the claim which of course may not avail, that one side obtained a better bargain than the other. Chicago & N. W. Ry. v. Wilcox (C.C.A.) 116 F. 913.”

Though projected as an issue based upon an alleged mutual mistake, the ultimate issue in this case, as in Harmon, is not who got the better of the bargain, but whether the settlement was free of infirmities and fairly made. We hold that it was and affirm.

      . Hennessy v. Bacon (1890), 137 U.S. 78, 11 S.Ct. 17, 34 L.Ed. 605; Kelly v. Greer (3rd Cir., 1966), 365 F.2d 669; All States Investors, Inc. v. Bankers Bond Co. (6th Cir., 1965), 343 F.2d 618; Cummins Diesel Michigan, Inc. v. The Falcon (7th Cir., 1962), 305 F.2d 721; Florida Trailer & Equip. Co. v. Deal (5th Cir., 1960), 284 F.2d 567, 94 A.L.R.2d 638; Ingalls Iron Works Co. v. Ingalls (5th Cir., 1960), 280 F.2d 423; The Santa Madre v. Dagounakis (4th Cir., 1960), 277 F.2d 461.

      . 15A C.J.S. Compromise & Settlement § 36, at 257. Note 62 and 76 C.J.S. Release § 25, at 646. Notes 39 and 40.


author: GEE, Circuit Judge: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Marcelle LACOUTURE, Defendant-Appellant.
    No. 73-2834.
    United States Court of Appeals, Fifth Circuit.
    June 12, 1974.
    Rehearing Denied Aug. 15, 1974.

      James M. Simons, Austin, Tex. (Court-appointed), for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Anna E. Stool, Staff Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before ALDRICH, Senior Circuit Judge  and BELL and GEE, Circuit Judges.

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

   GEE, Circuit Judge:

This case presents squarely for the first time in our circuit the question whether a witness’ refusal to testify on Fifth Amendment grounds may be made known to the jury or commented on' by defense counsel. Other circuits which have considered these issues, however, have uniformly said no. We agree and affirm.

A little over a year ago customs agents inspected defendant Lacouture at a Port of Entry at Laredo, Texas, on her return from a few hours’ visit to Mexico. She advised the customs official that the car she was driving belonged to another. Several suspected marihuana seeds were seen on the front seat, but a search of her clothes and personal effects by an inspectress revealed no contraband. A marihuana cigarette was, however, found hidden in a defroster hose under the dashboard of the ear. Her response to this occurrence was, “So what?” At this she received a Miranda warning.

The customs officials then went to the back of the automobile to open the trunk. Defendant, who had been fully cooperative throughout, advised them that the trunk was “a little tricky” to get into, telling them just to pull it on open. The spare tire seemed a little heavy to them and, when broken down, was found to contain 5.75 pounds of Mescaline Sulfate, sufficient for thousands of “street doses” of that hallucinogenic drug.

A jury found Lacouture guilty of importing and possessing with intent to distribute the Mescaline, but not guilty of importing the marihuana squib. On this appeal she complains that the evidence was insufficient to support her conviction and of the handling of the car owner as a witness.

Considered as it must be in the light most favorable to the government, the evidence was sufficient to support her conviction. She was the driver and only occupant of the vehicle in which the contraband was found hidden, and had sole dominion and control of it at that time. She was familiar with the working of the lid of the trunk where the drug was hidden. She had had control of the car, on her own showing, for the whole of that day, and was returning from Mexico. She had access to the trunk. We are unprepared to hold that, as a matter of law, one may insulate himself from the drug laws by employing a borrowed vehicle and concealing the contraband thoroughly. Cases such as Montoya, involving a passenger without control or dominion over the vehicle, and Guevara v. United States, where a relatively insignificant amount of marihuana was found beneath the car’s front seat, in a place where it

might with equal ease have been placed by either of the car’s occupants or by anyone else, are not apposite here. La-couture was in sole control, and the jury doubtless thought it unlikely that such a large amount of this drug would have been carelessly left concealed in the car by some third person.

Lacouture’s other claim of error concerns the handling of what we can only call the non-testimony of the car’s owner, Virginia Coleman. Without objection, Mrs. Coleman was identified before the jury by one of the Government witnesses as the owner of the car in question. Immediately thereafter, defense counsel elicited from the same witness that Mrs. Coleman was present at court under Government subpoena. A little later, he went further into the subject, establishing that she had refused to discuss the case with the witness, a government investigator. Later still, he attempted to call Mrs. Coleman as a witness. At the suggestion of Government counsel, she was examined before the court in chambers where, after she had given her name and address, the defense asked if she owned the automobile in question. At this juncture Mrs. Coleman’s attorney advised the court that she had recently been before the Grand Jury where on his advice she had refused to answer questions, that the United States attorney had indicated she “could be a potential defendant,” and that upon advice of counsel she would, if called as a witness, invoke the Fifth Amendment and refuse to answer any questions. The court asked her if she intended to follow this advice. She replied that she didn’t know and asked if she could think it over. The court reminded her of her attorney’s advice. She then stated that she would like to see justice “happen here” but “I don’t want to incriminate myself.” The court, concluding that if put on the stand she would claim the privilege, then ruled that she would not be permitted to testify in the presence of the jury. Counsel were instructed not to make reference to her failure to testify.

Before us, Appellant Lacouture asserts that by these actions the court committed four errors: (1) preventing defendant from calling Mrs. Coleman as a witness in the jury’s presence, (2) claiming the privilege for the witness rather than requiring her to do so, (3) instructing defense counsel not to refer to her failure to testify or the Government’s failure to put her on, and (4) in giving no curative or neutralizing instruction to the jury on the subject.

Contentions (1) and (3) may be treated together. We see no merit in defendant’s invocation of the Confrontation Clause. The mere identification of Mrs. Coleman did not constitute her a witness against defendant. Nor is there merit in the Compulsory Process Clause claim; Lacouture did not subpoena Mrs. Coleman, and had she done so, her rights thereunder would have been exhausted by Mrs. Coleman’s physical availability at court and could not override the witness’ privilege against compulsory self-incrimination. Cf. United States v. Gloria, 494 F.2d 477 (5th Cir. 1974).

The contention therefore boils down to one of evidentiary error in refusing to permit Mrs. Coleman to be placed on the stand for the jury to hear her — the car’s owner — “take the Fifth,” or to permit comment on this circumstance. As noted above, the circuits which have considered these questions have uniformly rejected such contentions. As was stated by the First Circuit, in the most recent opinion in the area:

. we find without merit the claim that Johnson had a right to have Perry called as a witness before the jury. Bowles v. United States, 142 U.S.App.D.C. 26, 439 F.2d 536 (en banc 1970); Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865 (1971). If it appears that a witness intends to claim the privilege as to essentially all questions, the court may, in its discretion, refuse to allow him to take the stand. Neither side has the right to benefit from any inferences the jury may draw simply from the witness’ assertion of the privilege either alone or in conjunction with questions that have been put to him. Namet v. United States, 373 U.S. 179, 186, 189, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963); Bowles v. United States, supra, 142 U.S.App.D.C. at 26, 439 F.2d at 541. (footnote omitted)
United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir. 1973).

One basic reason supporting this rule —that reliable inferences from such conduct- by a witness do not ordinarily follow — is exemplified by our case. The two most likely inferences to be drawn from Mrs. Coleman’s claim of privilege are that she was involved in the importation scheme along with defendant La-couture, or that she alone was guilty and Lacouture was an innocent dupe. One favors the defense, the other the prosecution ; and one is as likely as the other. Others are conceivable but unlikely and irrelevant, such as that the witness was engaged in some unrelated criminal activity at the time which she wished to conceal. And as the Bowles court noted, a claim of Fifth Amendment protection is likely to be regarded by the jury as high courtroom drama and a focus of ineradicable interest, when in fact its probative force is weak and it cannot be tested by cross-examination. We have little difficulty in concluding that the trial court was within its discretion in excluding matter of such dubious probative value and high potential for prejudice. Yellow Bayou Plantation, Inc. v. Shell Chemical, Inc., 491 F.2d 1239 (5th Cir. 1974). The matter having been excluded, there was no peg on which either side could hang a jury argument. Nor was there any room for defense comment on failure of the Government to call Mrs. Coleman as a witness, since she was present and as “available” to the defense as to the Government.

The contention that the court claimed the privilege for the witness is likewise without merit. The witness’ attorney had stated flatly in her presence that if called she would answer no questions, as she had just done before the Grand Jury. She then vacillated somewhat, but her final statement was “ . . . I don’t want to incriminate myself.” The court’s remarks do no more than reveal a proper solicitude for her rights, and his preliminary determination that she would refuse to answer was not erroneous. And as for the complaint of the court’s failure to give a neutralizing instruction, none was requested, defendant’s counsel had himself brought out that the witness had refused to talk to the investigator and was present under Government subpoena, and the court may well have felt that the failure to request such an instruction represented a tactical choice by the defense with which it should not tamper. See Bowles v. United States, 142 U.S. App.D.C. 26, 439 F.2d 536, 542 (1970). Certainly this was not plain error.

Affirmed.

ON PETITION FOR REHEARING

PER CURIAM:

On rehearing, Appellant asserts that she as well as the government subpoenaed Mrs. Coleman. Although the record does not clearly so indicate, we will assume this to be correct. As the opinion notes, however, her rights under the subpoena were exhausted by Mrs. Coleman’s appearance and could not override the Fifth Amendment privilege of such a “virtual defendant” as Mrs. Coleman. Cf. United States v. Rangel, 496 F.2d 1059 (5th Cir. 1974).

Denied.

      . Not a co-defendant. This was considered in DeLuna v. United States, 308 F.2d 140 (5th Cir. 1962).

      . United States v. Johnson, 488 F.2d 1206 (1st Cir. 1973); United States v. Beye, 445 F.2d 1037 (9th Cir. 1971); Bowles v. United States, 142 U.S.App.D.C. 26, 439 F.2d 536 (1970) (en banc).

      . Montoya v. United States, 402 F.2d 847 (5th Cir. 1968).

      . Id.

      . 242 F.2d 745 (5th Cir. 1957).


text:
    INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, DISTRICT NO. 145, Plaintiff-Appellee, v. MODERN AIR TRANSPORT, INC., Defendant-Appellant.
    No. 73-1345.
    United States Court of Appeals, Fifth Circuit.
    June 20, 1974.
    Richard R. Paige, Miami, Fla., James B. Rhoads, Robert J. Berghel, John Baeheller, Jr., Atlanta, Ga., for defendant-appellant.
    Harold Mendelow, Miami, Fla., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and GEE, Circuit Judges.
   GEE, Circuit Judge:

Modern Air appeals from the district court’s enforcement of an arbitrator’s award in favor of the Union. Concluding that the court reached the right re-suit, although through the wrong process, we affirm.

In 1971 Modern Air contracted out some modification and repair work to an outside agency rather than assigning the work to its own facilities. The Union contended that the contracting-out violated the collective bargaining agreement. They sought reinstatement and back pay for laid-off mechanics. Modern Air and the Union duly submitted the grievance to arbitration under the procedure provided in the collective bargaining agreement. The arbitrator found that Modern Air had breached the contracting-out provision of the agreement, and he ordered back pay and reinstatement for those employees improperly laid off.

In respect to contracting-out, the agreement provided:

(a) All work normally performed in the Company’s Maintenance Shops and facilities and airport stations by the employees covered by this Agreement is recognized as coming within the jurisdiction of the International Brotherhood of Teamsters and is covered by this Agreement. When aircraft is placed in the active service of the Company, the periodic maintenance on such aircraft shall be within the scope of this Agreement.

The parties agree that the Company may:

1. Continue to contract out work heretofore customarily contracted out.

Initial modification of newly acquired airplanes and jet engine repair work were the subjects of the Union’s grievances. On the evidence submitted to him, the arbitrator found that Modern Air had contracted out the bulk of the initial modification work but that the bargaining unit employees had performed some of that work. As to the jet engine repair, he found that the amount of contracting-out had varied over the years according to Modern Air’s facilities and other contingencies but, although it had contracted out much of the engine repair, it also had performed a significant amount of the work in its own facilities.

This appeal focuses on the arbitrator’s and the district court’s interpretation of the term “customarily” in subparagraph

1. The arbitrator reasoned that:

. I do not share the Company’s apparent view that so long as there was substantial contracting out of certain work it may “continue to contract out [such] work” because of subparagraph 1 of subsection (a). To my mind, in the light of the basic thrust of subsection (a) to place “work normally performed” in the bargaining unit and in view of the limitations specified in subparagraph 4 of subsection (a) with regard to contract out “any work”, there would appear to be and [sic] implication in the use of the words “customarily” in subparagraph 1 of subsection (a) that the authority specified therein relates to work that has been exclusively contracted out. Stated differently, it is my view that subparagraph 1 does not refer to work which has been both contracted out as well as performed by the bargaining unit.

The district judge decided to “enforce the award for reasons completely different from those in the arbitrator’s report: [Wjhere the arbitrator substituted the word ‘exclusively’ for the word ‘customarily,’ as it is used in subpara-graph (a)l . . ., it is completely improper.” But the court went on to examine the facts in light of its own interpretation of the agreement and concluded that the arbitrator would have reached the same result using “customarily.”

On appeal, Modern Air contends that, when the district court said the arbitrator could not interpret “customarily” to mean “exclusively,” the court had found that the arbitrator exceeded his authority. Modern Air goes on to insist that, when the court reached that conclusion, then it should have proceeded no further but should have simply denied enforcement.

On the other hand, the Union contends that the court did not substitute its ■ judgment for that of the arbitrator; rather, the court made the proper inquiry and determined by examining the entire clause that the arbitrator acted properly and within the scope of the agreement.

At this point, we insert the law. The genesis, of course, was the trilogy. The Court there delineated the limitations on-the arbitrator:

[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424, 1428 (1960).

We have expressed the limitation in terms of “foundation in reason or fact”:

In the arbitration context, an award “without foundation in reason or fact” is equated with an award that exceeds the authority or jurisdiction on the arbitrating body. To merit judicial enforcement, an award must have a basis that is at least rationally inferable, if not obviously drawn, from the letter or purpose of the collective bargaining agreement. The arbitrator’s role is to carry out the aims of the agreement, and his role defines the scope of his authority. When he is no longer carrying out the agreement or when his position cannot be considered in any way rational, he has exceeded his jurisdiction. The requirement that the result of arbitration have “foundation in reason or fact” means that the award must, in some logical way, be derived from the wording or purpose of the contract. Brotherhood of R R Trainmen v. Central of Georgia Ry. Co., 415 F.2d 403, 411-412 (5th Cir. 1969).

Additionally, in Safeway Stores v. American Bakery Workers Union Local 111, 5 Cir., 390 F.2d 79, 81-82, we said: See, Dallas Typographical Union v. A. H. Belo Corp., 372 F.2d 577 (5th Cir. 1967).

“[I]f the award is arbitrary, capricious or not adequately grounded in
the basic collective bargaining contract, it will not be enforced by the' courts.” ... On its face the award should ordinarily reveal that it finds its source in the contract and those circumstances out of which comes the “common law of the shop.”

A concomitant narrow standard restricts judicial review of the arbitrator’s broad authority:

. . . the question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his. Enterprise, supra, 363 U.S. at 599, 80 S.Ct. at 1362, 4 L.Ed.2d at 1429.

As we said in Safeway Stores, supra at 81.:

[W]e must be vigilant that we are not slipping off into that habit, easy for Judges, of “deciding the merits in the ¿bise of adjudicating the court-reserved issue of the scope of the agreement to arbitrate.”

The court must not “[resume] its traditional role of assaying the judicial acceptability of the award had it been a court judgment.” Safeway Stores, supra at 83.

Although the district court’s action here was ambiguous, we conclude that, by finding that the arbitrator could not interpret “customarily” to mean “exclusively,” the court found that the arbitrator had exceeded his authority. Then, when the district court went on to interpret the contract, the court iself improperly “[resumed] its traditional role of assaying the judicial acceptability of the award.” The proper course for the district court would have been to deny enforcement upon the finding that the arbitrator manifested an “infidelity to his obligation.” Enterprise, supra.

That conclusion, however, does not end our inquiry. The district court, in deciding that the arbitrator could not equate “customarily” with “exclusively,” mistook fundamental authority for contract interpretation — the arbitrator’s proper function.

Analyzing the arbitrator’s reasoning, he performed the traditional function of one delegated to resolve contractual disputes. He interpreted and gave meaning (exclusively) to an ambiguous (customarily) contract term in light of the other provisions and purposes of the contract. His award was well founded in the “essence” of, and more than “rationally inferable” from the letter and purpose of, the collective bargaining agreement. United Steelworkers v. United States Gypsum Co., 492 F.2d 713 (5th Cir. 1974); Amalgamated Meat Cutters, Local 540 v. Neuhoff Bros. Packers, Inc., 481 F.2d 817 (5th Cir. 1973). Neither the district court nor we have any “business overruling him because [our] interpretation of the contract is different from his.” Enterprise, supra.

We find ourselves thus in agreement with the district court’s result but in disagreement with his method. In ef-. feet, we áre directly approving the arbitrator’s award. As this is not unprecedented, when it fully resolves the issue between the parties in a protracted dispute, San Antonio Newspaper Guild, Local 25 v. San Antonio Light Division, 481 F.2d 821 (5th Cir. 1973), we affirm the district court’s order.

Affirmed.

      . It further provided :
      2. Return equipment, parts or assemblies to the manufacturer or to an approved agency for repair or replacement.
      3. Purchase necessary parts, equipment or facilities.
      4. Contract out any work when the Company’s facilities or personnel are not sufficient or available, or where employees available do not have the experience and ability to satisfactorily perform the work required, provided that the above does not result in a reduction in force of the employees covered by this Agreement. In which case representatives of the Company and Union will meet without delay and negotiate the proper provisions for the protection of employees’ seniority and other property rights.

      . The arbitrator’s reasoning proceeded :
      In the instant case, while I am not at all convinced that bargaining unit employees have performed “initial” modification work to the extent that the Union here claims and, indeed, while I am equally convinced that the bulk of the “initial” modification work has not been performed by bargaining unit employees, although tasks performed in connection with such work may well have been performed by bargaining unit employees from time to time after aircraft have been placed in a revenue status, the fact remains that some “initial” modification work has been performed by bargaining unit employees and it cannot thus be concluded that such work has been “exclusively” contracted out. This is equally true for engine repair work involving hot section overhauls, as is plainly evident from the detailed recital above of what was done by yhom with respect to various engine repair work. Accordingly, I do not regard subparagraph 1 of subsection (a) as determinative of the issue presented herein.
      I find subparagraphs 2 and 3 of subsection (a) of Section 24 equally inapplicable in the instant situation. These provisions appear to have been included to make crystal clear the Company’s right to resort, where necessary, to a manufacturer or to an approved agency for repairs or replacement of parts or assemblies, etc. but to conclude that in the instant situation the Company was authorized to contract out the work simply because “an approved agency” was involved would prove too much, in my opinion, since virtually all contracting out could then be authorized so long as “an approved agency” was involved and there would thus be little, if any, need to include subparagraphs 1 and 4 of subsection (a) of Section 24.
      Essentially, authorization for the Company’s contracting out for the work here being grieved must be found in subpara-graph 4. As I read that provision the Parties intended to provide substantial flexibility to the Company to obtain the performance of all work required to keep its equipment operative. However, the Parties equally and plainly intended that the Company’s right to contract out “any work” would be circumscribed to the extent that if a reduction in force of bargaining unit employees would occur then the Company and Union would meet and protect employees’ seniority and other property rights. Thus, the Company could contract out work where its facilities or personnel are not sufficient or available or where employees able to perform the required work are not sufficiently experienced or skilled to perform the required work, so long as the Company and Union meet to protect employees in the event a reduction of force then occurs.
      To my mind, the limitations specified in subparagraph 4 on the Company’s right to contract out “any work” places a burden not upon the Union, as the Company here argues, but rather on the Company itself to demonstrate that its facilities or personnel are not sufficient or available etc. Stated differently, the Company has the right to contract out under given circumstances and it thus behooves the Company to demonstrate the existence of such circumstances when it seeks to exercise its right.

      . The parties do not dispute that the grievance was properly arbitrable.

      . United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).

      . Additionally, our action does not contravene Judge Godbold’s dissent in that case because here the arbitrator has reached ani decided the merits of an issue undisputedly within his authority,