author: THORNBERRY, Circuit Judge:

text:
    Dan SULLIVAN, by next friend, Daniel H. Sullivan, et al., Plaintiifs-Appellees, and Paul Kitchen, by next Friend, Anthony Kitchen, Plaintiff-Appellee-Cross Appellant, v. HOUSTON INDEPENDENT SCHOOL DISTRICT, et al., Defendants-Appellants-Cross Appellees.
    No. 71-2494.
    United States Court of Appeals, Fifth Circuit.
    March 15, 1973.
    Rehearing and Rehearing En Banc Denied April 30, 1973.

      William Key Wilde, Kelly Freís, Brace-well & Patterson, Houston, Tex., for appellants.
    Robert E. Hall, Erie H. Nelson, Houston, Tex., for appellees.
    Before GEWIN, THORNBERRY and CLARK, Circuit Judges.
   THORNBERRY, Circuit Judge:

This case arises from the unauthorized distribution of an “underground” newspaper near a high school campus, and presents the now-familiar clash between claims of First Amendment protection on the one hand and the interests of school boards in maintaining an atmosphere in the public schools conducive to learning, on the other. We vacate the supplemental grant of injunctive relief to plaintiff-appellee Paul Kitchen. In doing so, we hope to furnish guidelines that will prove helpful to all parties— students, school officials, and courts — in balancing the competing interests in this delicate and crucial area of the law.

The case is here on appeal from an order of the district court, 333 F.Supp. 1149, supplementing a 1969 permanent injunction. The facts giving rise to that first permanent injunction are set out at 307 F.Supp. 1328, and need not be recounted here. Suffice it to say that Dan Sullivan and another student at Sharpstown High School in Houston had been summarily expelled for distributing, free of charge, a publication of their own creation, Pflashlyte. This disciplinary action had been taken ostensibly as punishment for the boys’ violation of an extremely vague regulation of the Houston Independent School District and of the school principal’s unwritten and unannounced interpretation of that regulation. The boys filed suit in the court below seeking declaratory and injunctive relief under 42 U.S. C. § 1983. After issuing a comprehensive memorandum, Judge Woodrow Seals set out detailed requirements to be met by the School District in regulating student distribution of literature on or near the campus and in disciplining students for violations of school regulations. The School District appealed from this order, but the appeal was dismissed on the District’s own motion on May 21, 1970.

Rather than prosecute the appeal, the School District chose to formulate a new set of regulations. A biracial committee of students, school officials, parents, attorneys, and representatives of other interested groups held hearings and developed an extensive set of regulations dealing with various aspects of school discipline. The rules required prior submission to the school principal of all publications, not sponsored by the school, which were to be distributed on the campus or off campus in a manner calculated to result in their presence on the campus. The principal was given one working day to review the publication before general distribution. If, in the opinion of the principal and School District attorneys, the publication contained “libelous or obscene language or advocate [d] illegal action or disobedience to published rules on student conduct adopted by the Board of Trustees,” then the principal could withhold his approval of the publication and it could not be distributed. The rule provided, however, that distribution could not be prohibited because the publication “contained the expression of any idea, popular or unpopular.” Besides requiring prior submission, the regulation expressly permitted distribution before and after school hours on school premises, absolutely prohibited the sale of publications on school premises and the distribution of political campaign material or material consisting primarily of commercial advertising, and required that the publication contain the names of the contributors, editors, and publishers.

In addition to these provisions governing distribution of publications, the new regulations contained specific provisions governing suspension procedures. For violation of any published regulation of the School District governing student conduct, a student could be suspended for a reasonable time not exceeding three school days upon the giving of written notice to parents or guardian of the reasons for the suspension. If the suspension was to last for more than three school days or for an indefinite period, the student and his parents or guardian were entitled to written notice of the reasons for suspension and were to be offered a prompt hearing before the principal, at which they could produce witnesses and be assisted by counsel. The student was to be given the right to appeal the principal's decision to the assistant superintendent for a de novo hearing. The assistant superintendent could affirm the principal’s decision if the de novo hearing produced substantial evidence supporting it, and the student could appeal the assistant superintendent’s decision to the School Board. The School Board adopted the new regulations in February or March 1970, and copies were posted in each school building in the District. Several months later, the event occurred that forms the basis for the instant appeal.

Before classes started on the morning of October 20, 1970, Paul Kitchen, a junior student at Waltrip Senior High School, was standing near an entrance to the campus selling Space City!, an “underground” newspaper, to students as they entered the campus. Gordon Cotton, the Waltrip principal, purchased a copy and scanned its contents. On the second page he noticed a letter, captioned “High Skool is F. . .ed” and containing several other instances of coarse language. Mr. Cotton told Paul that he was selling the papers in violation of the prior submission rule, and asked him to stop. Paul continued selling the papers. At this point, Mr. Cotton determined to suspend Paul for his failure to comply with both the prior submission rule and Mr. Cotton’s request that he stop selling the papers. Before Paul was sent home, Mr. Cotton notified both his parents by telephone that Paul was being suspended and told them the reasons for his decision. Mr. Cotton requested that both parents come to the school for a conference, but Mr. Kitchen replied that his job would prevent his attending a conference until six days later. A conference was agreed to be held on October 26, 1970, and it was agreed that Paul would remain on suspension until that date. As Paul was leaving Mr. Cotton’s office after being informed that he was to be suspended, he slammed the door and shouted “I don’t want to go to this goddamn school anyway” within the hearing of two of Mr. Cotton’s female assistants.

During the period of Paul’s agreed suspension between October 20 and October 26, he returned to the campus several times purportedly to talk with his teachers. Each time school officials told him to leave the campus because students were not allowed on school premises while under suspension. On the morning of October 26, the day on which the conference with Paul’s parents was scheduled, Paul was again at the entrance to the campus selling Space City! to students on their way to school. Mr. Cotton showed Paul a copy of the prior submission rule, and told him that if he did not stop selling the papers he would call the police. In response, Paul shouted “the common Anglo-Saxon vulgarism for sexual intercourse” in apparent reference to Mr. Cotton. Paul was taken to the police station but was released without charges having been filed. Mr. Kitchen obtained legal counsel and failed to appear for the scheduled conference with Mr. Cotton. Later that day, Mr. Cotton notified Paul’s parents in writing that he was suspending Paul for violating the prior submission rule and using profanity in the presence of his secretary, and informed them of the suspension procedures available to students and parents under the new regulations.

On October 29, 1970, Mr. Cotton conducted a hearing at which Paul was represented by counsel. Following the hearing Mr. Cotton suspended Paul for the remainder of the semester, on the basis of Paul’s violation of the prior submission rule and his use of profanity toward Mr. Cotton. A de novo appellate hearing was conducted before the assistant superintendent on November 9, 1970. Paul appeared with his father and an attorney; an extensive evidentiary hearing was held during which witnesses were cross-examined and testimony was transcribed by a court reporter. The assistant superintendent affirmed Mr. Cotton’s decision; and the transcript of the appellate hearing was reviewed by the Deputy Superintendent for Secondary Schools and the Superintendent for Instruction and Administration, who both affirmed the suspension.

On November 23, 1970, Paul and his father applied in the court below for an order holding the School District in contempt for violating the 1969 permanent injunction, and for supplementary injunctive relief and damages in aid of the injunction. On the following day the court entered an ex parte temporary restraining order directing that Paul be permitted to attend classes at Waltrip High School; without the consent of the School District, this temporary restraining order was extended for ten-day periods for a total of fifty-nine days. At the direction of the court, a four-hour hearing was held before the School Board,' at which Paul and his father, represented by counsel, presented and cross-examined witnesses. The Board declined to entertain a facial challenge to the new regulations, ordered Paul suspended for an additional two weeks beginning January 4, 1971, and directed that he be placed on probation for the remainder of the school year.

Following a hearing, the court below chastised Paul for not challenging the new regulations by orderly means, found that he had been unlawfully suspended, ordered that he be allowed credit for school work missed during the suspension, and declined to hold the School Board in contempt or award damages or attorney fees because the defendants had acted in good faith. On October 7, 1971, the court issued a supplementary injunctive decree, clarifying and elaborating the terms of its original 1969 injunction. Both sides appeal, urging a myriad of contentions regarding the trial court’s refusal to vacate the 1969 permanent injunction, the reasons for suspending Paul, the procedures used in his suspension, and the failure to award damages and attorney fees. The view we take of this case makes it necessary for us to address only a few of these contentions.

I

On appeal and in the court below, Paul Kitchen’s position has been, basically, that his selling the newspaper was an activity protected by the First Amendment. Pointing to the fact that sale of the newspaper created little, if any, disruption of normal school activities — let alone the “material and substantial” disruption required by Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), and its progeny — he argues that the prior submission rule was unconstitutionally applied to him. He claims further that the language in the newspaper was not constitutionally obscene and that therefore the school officials could not suppress it. In our view, however, Paul’s conduct in the instant case outweighs his claim of First Amendment protection, and gave school officials sufficient grounds for disciplining him.

As the court below recognized when it rebuked Paul for failing to challenge the prior submission rule by “lawful” means, Paul’s conduct can hardly be characterized as the pristine, passive acts of protest “akin to pure speech” involved in Tinker, supra. Rather, Paul defied Mr. Cotton’s request that he stop selling the newspapers, persisted in returning to the campus during the initial six-day suspension period, and twice shouted profanity at Mr. Cotton within the hearing of others. Paul’s reappearance on the campus and continued sale of the newspapers on October 26 served only to exacerbate the situation.

Moreover, Paul never once attempted to comply with the prior submission rule. Given the widespread publicity accorded the new rules, it taxes credulity to say that on October 20 Paul was unaware of the rule requiring prior submission; he most certainly knew about the rule after Mr. Cotton showed him a copy on October 26 before suspending him for a second time. Had Paul submitted the newspaper prior to distribution and had it been disapproved, then he could have promptly sought relief in the courts without having been first suspended from school. Having chosen to disregard established school policy regarding distribution of off-campus literature, Paul’s opportunity for obtaining relief from the principal’s decision was delayed by several months of administrative appellate héarings, during which his academic career suffered severely from continued suspension.

Considering Paulis flagrant disregard of established school regulations, his open and repeated defiance of the principal’s request, and his resort to profane epithet, we cannot agree that the school authorities were powerless to discipline Paul simply because his actions did not materially and substantially disrupt school activities. In the years since Tinker was decided courts have refused to accord constitutional protection to the actions of students who blatantly and deliberately flout school regulations and defy school authorities. Thus, in Schwartz v. Schuker, E.D.N.Y.1969, 298 F.Supp. 238, a high school student disregarded several prior warnings of the principal not to distribute literature without prior permission. The court declined to reach the student’s constitutional arguments and refused to grant him injunctive relief because he had failed to challenge the principal in an orderly manner. The same result was reached in Graham v. Houston Independent School District, S.D.Tex.1970, 335 F.Supp. 1164, where Judge Ingraham of this court, sitting as a district judge by designation, based his denial of injunctive relief on the student’s disregard of established school regulations. See also Duke v. North Texas State Univ., 5th Cir. 1972, 469 F.2d 829; Esteban v. Central Missouri State College, 8th Cir. 1969, 415 F.2d 1077; Quarterman v. Byrd, 4th Cir. 1971, 453 F.2d 54, 60 n. 11. Finally, in Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), the Court approved the principle that the open disregard of school regulations is a sufficient and independent ground for imposing discipline, when, citing Esteban, supra, it held that a student group’s announced refusal to abide by campus regulations would be a proper reason for denying university recognition to the group. 92 S.Ct. at 2351-52.

It may be noted that the regulations in the instant case are the product of an extensive and good faith effort by the School District to formulate a valid code of student conduct. This court has recognized that there is nothing per se unreasonable about requiring a high school student to submit written material to school authorities prior to distribution. Shanley v. Northeast Independent School Dist., 5th Cir. 1972, 462 F.2d 960. And it cannot be seriously urged that this prior submission rule is unconstitutionally vague or over-broad; this court has recently upheld a statute cast in more general terms than is the rule in question here. Pervis v. LaMarque Independent School Dist., 5th Cir. 1972, 466 F.2d 1054. Finally, it is undisputed that substantial evidence supported Paul’s suspension. Accordingly, we limit our review of his suspension to the question whether the School District accorded him due process.

We hasten to point out that by thus limiting our review in this case we do not invite school boards to promulgate patently unconstitutional regulations governing student distribution of off-campus literature. Nor, needless to say, do we encourage school authorities to use otherwise valid regulations as a pretext for disregarding the rights of students. Today we merely recognize the right of school authorities to punish students for the flagrant disregard of established school regulations; we ask only that the student seeking equitable relief from allegedly unconstitutional actions by school officials come into court with clean hands.

II

As to the procedures used in his suspension, the thrust of Paul’s attack is that the October 29 hearing before Mr. Cotton was not the “fair and dispassionate” hearing required by due process and by the original permanent injunction. Although this court has never adopted a rule that school administrative personnel involved in the initiation and investigation of charges are per se disqualified from conducting hearings related to those charges, see Murray v. West Baton Rouge Parish School Bd., 5th Cir. 1973, 472 F.2d 438; Duke, supra; Lance v. Thompson, 5th Cir. 1970, 432 F.2d 767; cf. Wasson v. Trowbridge, 2nd Cir. 1967, 382 F.2d 807; Jones v. State Bd. of Educ., M.D.Tenn. 1969, 279 F.Supp. 190, aff’d, 6th Cir. 1969, 407 F.2d 834, cert. dism’d, 397 U.S. 31, 90 S.Ct. 779, 25 L.Ed.2d 27 (1970), we have uniformly recognized that the facts of a case may demonstrate that a school official’s involvement in an incident is such as to preclude his affording the student an impartial hearing. E. g. Murray, supra; cf. Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971). In our view, Paul Kitchen made such a showing in the instant case. The incidents for which Paul was suspended were east largely in terms of a personal confrontation with Mr. Cotton. On two occasions Paul used profanity toward him, and Paul’s appearance on the campus on October 26 to resume sales of the newspaper was clearly a direct challenge to Mr. Cotton’s earlier demand that Paul stop selling the newspaper. Under these circumstances it is difficult to imagine that Mr. Cotton could have given Paul an impartial hearing. Indeed, it is not surprising that Mr. Cotton’s primary aim in conducting the October 29 hearing was not to hear Paul’s side of the story but rather, as Mr. Cotton testified in the district court, to hear Paul apologize.

It is, however, well settled that a procedural defect in an initial hearing before school officials can be cured by subsequent hearings. Murray, supra; Speake v. Grantham, 5th Cir. 1971, 440 F.2d 1351, aff’g S.D.Miss.1970, 317 F.Supp. 1253. In the instant case, Paul was afforded two extensive de novo appellate hearings at which he was represented by counsel and presented and cross-examined witnesses. In our view, the procedural fidelity that characterized these appellate hearings cured the procedural defect in the hearing before Mr, Cotton.

We believe that a further word is necessary with regard to the timing of Paul’s hearings, although neither party raises the issue directly. The question whether, and under what circumstances, disciplinary action must be preceded by a hearing has recently been before this court on a number of occasions. Black Students of North Fort Myers Jr.Sr. High School v. Williams, 5th Cir. 1972, 470 F.2d 957 [1972] (hearing required before imposition of up to ten days’ suspension); Pervis, supra (“an even more basic tenet of due process is . that punishment cannot be imposed before a hearing is given”); Dunn v. Tyler Independent School Dist., 5th Cir. 1972, 460 F.2d 137 (no hearing required for “minor” punishment such as three days’ suspension); Banks v. Bd. of Public Instruction, S.D.Fla.1970, 314 F.Supp. 285 (3-Judge court), vacated for entry of single-judge order, 401 U.S. 988, 91 S.Ct. 1223, 28 L.Ed.2d 526 (1971), aff’d after remand, 5th Cir. 1971, 450 F.2d 1103 (no prior hearing required for suspension up to ten days). In this case, Paul was suspended initially for an agreed period of six days without having been given a prior hearing. The lack of a hearing, however, was due to the unusual requirements of Mr. Kitchen’s work which prevented his attendance until six days after the suspension had been imposed. On October 26, Mr. Cotton again suspended Paul, this time indefinitely. No hearing was held until three days later. But it must be recalled that the October 26 hearing would have taken place and the second suspension might not have occurred if Paul had not returned to campus on October 26 and resumed selling the newspapers, an event that triggered Mr. Cotton’s calling the police and Mr. Kitchen’s refusal to attend the October 26 hearing. Under these circumstances, and considering Paul’s part in the delay, we decline to hold that the lack of a prior hearing was a denial of due process. The hearing was held as soon as circumstances would permit.

All that remains is the question whether the court below abused its discretion in denying the School District’s motion made pursuant to Rule 60(b), F.R.Civ.P., to vacate the original 1969 permanent injunction. The School District’s position is that, by promulgating new regulations that literally comply with the conditions set out in the injunction, the 1969 judgment has been “satisfied,” and there is no longer any need to keep the School District under threat of a contempt judgment for violating the injunction. Granting relief pursuant to Rule 60(b) is largely within the discretion of the trial court, Elgin National Watch Co. v. Barrett, 5th Cir. 1954, 213 F.2d 776, and we are unable to say that the court below abused that discretion in failing to vacate the injunction. The original injunction dealt not only with the promulgation of regulations, but also with their enforcement. The School District has failed to show that continuation of the 1969 injunction is unnecessary to insure that the rules will not be unconstitutionally applied to students in the future. Although the District cites extensive authority for the familiar proposition that school discipline is primarily a matter for school authorities, the treatment that we give the instant case recognizes the District’s right to impose punishment for violation of its established regulations. We decline to disturb the trial court’s choice not to vacate the 1969 permanent injunction.

With the exception of that part of the order denying the School District’s motion to vacate the 1969 injunction, the supplemental injunction decree entered on July 6, 1971, and the supplementary permanent injunctive decree entered on October 7, 1971, are vacated with instructions that the suit be dismissed.

Vacated with instructions.

      . That regulation read as follows:
      The school principal may make such rules and regulations that may be necessary in the administration of the school and in promoting its best interests. He may enforce obedience to any reasonable and lawful command.

      . The School District stipulated that
      the rule [quoted above] is construed by responsible officials of the Houston Independent School District to prohibit the type of publication and distribution engaged in by Michael Fischer and Dan Sullivan in February and March of 1969.

      . In a permanent injunction decree and declaratory judgment rendered on December 30, 1969, Judge Seals enjoined the School District from promulgating or enforcing any regulation dealing with the production, or distribution of written materials by tenth, eleventh, and twelfth grade students, unless the regulation was in writing and students were given notice of the rule, and unless it met the following conditions:
      (1) The rule must be specific as to places and times where possession and distribution of published materials is prohibited.
      (2) The rule must be understandable to persons of the age and experience of covered students.
      (3) The rule must not prohibit or inhibit conduct which is orderly, peaceful and reasonably quiet and which is not coercive of any other person’s right to accept or reject any written material being distributed subject to the rule.
      (4) The rule may prohibit such distribution at times and in places where normal classroom activity is being conducted. Such rule may not prohibit such distribution at other times and places unless such prohibition is necessary to prevent substantial and material interference with or delay of normal classroom activity or normal school function. . . . [There follow definitions of “normal classroom activity” and “normal school function.”]
      (5) The rule must not subject any covered student to the threat of discipline because of the reaction or the response of any other person to the written material, provided, however, that defendants and their successors in office may prohibit distribution of obscene material or of libelous material for which a cause of action may exist in some person.”
      In addition, the decree set out the following requirements that the District was to meet in imposing “substantial discipline” (i. e., suspension for more than three days, or for an indefinite period) :
      (1) The covered student and at least one of his parents or guardian shall be furnished, either in person or by mail directed to the student’s last known address, with written notice of the charges and of the nature of the evidence against such covered student.
      (2) The covered student and at least one of his parents or guardian shall be offered a formal hearing after sufficient time to prepare a defense or reply at which hearing evidence in support of the charge shall be presented by school officials and the affected covered student or his parent or guardian shall have ample opportunity to present any defense or reply.
      (3) The decision of school officials to impose such discipline shall be based upon a dispassionate and fair consideration of substantial evidence that the covered students committed the acts for which discipline is to be imposed and that such acts are in fact a proper reason for such discipline.

      . Both Shanley and Eisner v. Stamford Bd. of Educ., 2nd Cir. 1971, 440 F.2d 803, require that prior submission rules include procedures for prompt administrative review of a decision not to permit distribution. The regulations of the Houston Independent School District contain no. such procedure for appellate review. However, since Paul never submitted the newspaper for prior approval in the first place and since he was given two extensive de novo appellate hearings in which he could have urged approval of the newspaper for distribution, this defect in the prior submission rule should not affect the result in the instant case.

      . We note that the facts of the instant case are distinguishable from those in Pervis, supra, where no hearing was held until three months after the students’ summary-suspension.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    INTERNATIONAL WIRE, Plaintiff-Appellant, v. LOCAL 38, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Defendant-Appellee.
    No. 72-1688.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 31, 1973.
    Decided March 20, 1973.

      Louis S. Belkin, Cleveland, Ohio, Jeffrey A. Belkin, Belkin & Belkin Co., L. P. A., Cleveland, Ohio, on brief, for plaintiff-appellant.
    Thurlow Smoot, Cleveland, Ohio, for defendant-appellee.
    Before WEICK, EDWARDS and CELEBREZZE, Circuit Judges.
   PER CURIAM.

Appellant International Wire appeals from the dismissal of its § 303 complaint on appellee’s motion for summary judgment. Labor-Management Relations Act, 29 U.S.C. § 187 (1970). Appellant had charged Local 38, International Brotherhood of Electrical Workers with a secondary boycott. Appellant simultaneously filed proceedings in the form of an unfair labor practice before the National Labor Relations Board and the instant § 303 action in the United States District Court for the Northern District of Ohio.

A full hearing was held before an NLRB Trial Examiner. The Trial Examiner and the Board found that no unfair labor practice, as charged in the complaint, had been proved and dismissed the complaint.

Thereafter appellee filed a motion for summary judgment in the District Court action, asserting that under the determination by the Board, appellant’s § 303 complaint was either barred by the doctrine of res judicata or appellant was collaterally estopped from denying the findings and conclusions of the NLRB.

In two well-reasoned memorandum opinions which dealt appropriately with the authorities relied upon by appellant, the District Judge found that the issues before the Labor Board and the issues in the instant action were identical. He found the Labor Board decision had become final and no petition to review same had been filed by appellant in this court, as provided by law. He also found that there was no contention in this case that plaintiff had been denied a full and fair hearing at the administrative level. He thereupon granted the motion for summary judgment dismissing plaintiff’s complaint.

We believe the doctrine of collateral estoppel applies to bar this § 303 action under the reasoning set forth in the Memorandum Opinions of the District Judge and under the authority cited by him therein. United States v. Utah Construction and Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966); Tipler v. duPont Co., 443 F.2d 125 (6th Cir. 1971).

The judgment of the District Court is affirmed.


author: GIBSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. James Leroy COCHRAN, Appellant.
    No. 72-1322.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 13, 1973.
    Decided March 9, 1973.

      Norman S. London, St. Louis, Mo., for appellant.
    William C. Martin, Asst. Lf. S. Atty., St. Louis, Mo., for appellee.
    Before GIBSON and ROSS, Circuit Judges, and BENSON, District Judge.

       Judge Benson, Chief Judge of the District Court for North Dakota, sitting by designation.

   GIBSON, Circuit Judge.

The defendant James Leroy Cochran was convicted of robbing the federally insured Cass Federal Savings and Loan Association, St. Louis, Missouri, in violation of 18 U.S.C. § 2113(a) and (d). The jury found him not guilty of three counts of abducting various persons in violation of 18 U.S.C. § 2113(e) (Count II) and 18 U.S.C. § 1201 (kidnaping, Counts III and IV). Defendant was sentenced to 25 years imprisonment for the robbery conviction.

On appeal, the defendant raises four issues: (1) the admission of evidence of criminal conduct by the defendant that was not charged in the indictment, (2) the failure to declare a mistrial after a courtroom disturbance by defendant, (3) the admission of testimony on cross-examination concerning a medical report by a doctor not present at the trial as violating the hearsay rule, and (4) 'the exclusion of expert testimony on the nature and effect of prison life. We find none of the contentions merits reversal and affirm.

Since the defense was lack of mental responsibility, the Government’s evidence was substantially uncontradicted. On October 21, 1971, the defendant and another individual, both carrying pistols, entered Cass Federal Savings and Loan Association and robbed the association of $10,245. Responding to a robbery report, St. Louis police officers pursued a 1971 car driven by the defendant. During the ensuing chase, shots were fired from the vehicle at the officers. The defendant lost control of the car, which stopped in a service station lot. He then exited, engaged in a ten minute gun battle with several officers, and fled to nearby Northwest High School, where he held a gun to the head of a high school administrator, Don LePlante, and threatened to kill him. When the defendant learned that LePlante did not have a car, he fled to the home of Mr. and Mrs. Lucas. There he told Mr. Lucas that he had shot a police officer. After holding the Lucas couple and several children captive, the defendant forced Mr. Lucas to drive him to Illinois, which was the subject of Count II (abduction or kidnaping). The defendant sometime later turned up in Boon-ville, Missouri, and forced a lady to drive him to St. Louis, where he accosted John Dorrell III on October 23, 1971, and forced him to drive the defendant to Gallup, New Mexico, and back to St. Louis. The Dorrell abduction formed the basis of Count III. After abducting Dorrell, the defendant forced Mr. Darían to drive him, Mrs. Darían, and Mr. and Mrs. Greenlee to Columbus, Ohio, where the Darians and Greenlees were released. The abduction of these couples constituted Count IV. The defendant proceeded to drive Darian’s car to Kentucky, where he abandoned the ear at a rest stop and later surrendered to FBI agents.

First, the defendant contends that the admission of evidence of criminal conduct not charged in the indictment— shooting at police officers, holding a gun to LePlante’s head and threatening him, abducting a lady in Boonville, and stating to Lucas that he shot a police officer —inflamed the jurors, created undue prejudice, disparaged the defendant’s character, and denied him a fair opportunity to defend against the indicted charges.

Well established rules have developed concerning the admission of evidence of other criminal conduct. Although this evidence is generally inadmissible since it suggests that the defendant has a propensity to commit crime, the trial court can in its discretion admit relevant evidence of other criminal acts and reversal is only commanded when “it is clear that the questioned evidence has no bearing upon any of the issues involved.” Wakakson v. United States, 367 F.2d 639, 645 (8th Cir. 1966), cert. denied, 386 U.S. 994, 87 S.Ct. 1312, 18 L.Ed.2d 341 (1967). The trial court in determining admissibility weighs the prejudicial effect against the probative value of the evidence of the other criminal conduct. Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85, 90 (1964). In applying this weighing analysis, trial courts are aided by recognized exceptions to the admissibility of evidence of other crimes or criminal conduct. Such evidence is relevant to prove “(1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) identity of the person charged with the commission of the crime on trial.” Drew v. United States, supra, 331 F.2d at 90 (footnote omitted), quoted in Love v. United States, supra, 386 F.2d at 266; United States v. Lewis, 423 F.2d 457, 459 (8th Cir. 1970); Proposed Rules of Evidence for United States Courts and Magistrates, Rule 404(b), 51 F.R.D. 315, 346.

The questioned evidence in this case concerns “an uninterrupted course of action” that is relevant to aid in proving motive, intent, absence of mistake, and a common plan or scheme to commit the alleged abduction crimes in avoiding apprehension on the bank robbery offense. The objected to evidence was a part and parcel of the criminal spree of bank robbery and the consequent acts of abduction, threats, and intimidation to avoid apprehension. The trial court did not abuse its discretion in admitting the evidence of other criminal conduct since that evidence had a bearing on the issues involved. In addition, there was no prejudice at all since defendant did not contest the indicted acts, but sought to excuse them on the -grounds of mental incompetency.

Second, the defendant argues that the District Court should have declared a mistrial due to a disruption at trial by the allegedly mentally disturbed defendant. When the District Attorney during cross-examination of a defense psychiatrist was attempting to prove that the defendant might have misinformed the psychiatrist, the defendant leaped to his feet and yelled that he had never lied. FBI agents, United States marshals, and the courtroom deputy restrained the defendant at the court’s direction, handcuffed him in presence of the jury, and removed him from the courtroom.

Restraining an unruly defendant and removing him from the courtroom are within the “constitutionally permissible ways for a trial judge” to handle a defiant defendant and to insure the dignity, order, and decorum of court proceedings. Ulinios v. Allen, 397 U.S, 337, 343-344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). The defendant, however, argues that a different standard should apply to mentally ill defendants who disrupt court proceedings. The question of courtroom disturbances by mentally ill defendants presents, as Mr. Justice Douglas said, “a perplexing problem.” Illinois v. Allen, supra at 352, 90 S.Ct. 1057 (Douglas, J., concurring). However, we decline to promulgate judicial standards for such disturbances when the record offers little basis for the defendant’s claim of mental illness during the trial. In addition, the jury found the defendant responsible at the time of committing the robbery, and the court determined that the defendant was competent to stand trial.

Third, the defendant argues that references during cross-examination by Dr. Blaekmun, a defense witness, to a diagnosis prepared by Dr. John Baker, an osteopath at Missouri State Penitentiary, who diagnosed the defendant as having no psychiatric problems, were inadmissible as hearsay evidence. The Government contends that this cross-examination of Dr. Blaekmun was being conducted to determine the basis of the witness’ opinion concerning the defendant’s mental health. Upon objection to this line of questioning the court restricted the testimony to what the defendant told the witness about Dr. Baker.

We think that it was proper for the District Court to allow Dr. Blackmun to testify as to what the defendant said to Dr. Blackmun. In the first place, no definite statement was made by Dr. Blackmun concerning the medical report by Dr. Baker. Dr. Black-mun only said that “supposing a Dr. Baker has met” the defendant “and claims he’s perfectly well.” This inconclusive answer did not prejudice the defendant. Second, the limitation of the question as to what the defendant told Dr. Blackmun is entirely proper, since a statement made for the purposes of medical diagnosis is a hearsay exception. Louisiana & Arkansas Ry. Co. v. Johnson, 214 F.2d 290, 293 (5th Cir.), cert. denied, 348 U.S. 875, 75 S.Ct. 111, 99 L.Ed. 688 (1954); United States v. Calvey, 110 F.2d 327, 330 (3rd Cir. 1940); United States v. Nickle, 60 F.2d 372, 373-374 (8th Cir. 1932); Shell Oil Co. v. Industrial Commission, 2 Ill.2d 590, 119 N.E.2d 224, 231 (1954); Proposed Rules of Evidence for United States Courts and Magistrates, Rule 803(4), 51 F.R.D. 315, 419-420.

Fourth, the defendant contends that the District Court should not have excluded the testimony of Dr. Donald Plot-nick, who attempted to express as an expert opinion that incarceration in a federal penitentiary “could create mental problems which could lead to one not knowing right from wrong and being able to act within the reasonable law.” Dr. Plotnick, a past inmate for eleven months at Lewisburg Penitentiary, is a practicing podiatrist, who also is preparing a book on prison life with the aid of interviews with inmates of several institutions. The doctor had never talked to the defendant and knew nothing about the conditions of the prisons in which defendant had been incarcerated. The District Court held that Dr. Plotnick was not an expert and could not testify as a lay witness.

Determination of the qualifications of an expert and the question of whether expert opinion upon the objected matter should be permitted are questions usually left to the discretion of the trial court and will not be reversed unless the ruling is prejudicial. White v. United States, 399 F.2d 813, 819 (8th Cir. 1968). It was well within the discretion of the District Court to determine that a podiatrist, who had never met the defendant and did not know the conditions experienced by this defendant at Leavenworth Prison, could not qualify as an expert on all federal prisons and mental health so as to make such a broad opinion that all federal prisoners could have mental problems that would relieve them from subsequent criminal responsibility. The attempted hypothesis with its obvious syllogism had no adequate scientific or experimental background. Under its pervasive cloak all inmates of penitentiaries are deranged and thus irresponsible for their aberrant behavior. This has not proved to be the case.

Judgment of conviction affirmed.

      . James Andrew Lucas (Couni, Two), John Dorrell III (Count Three), and Mr. and Mrs. Darían and Mr. and Mrs. Greenlee (Count Four).

      . A state murder charge was nolle prossed after this action was tried.

      . Love v. United States, 386 F.2d 260, 266 (8th Cir. 1967), cert. denied, 390 U.S. 985, 88 S.Ct. 1111, 19 L.Ed.2d 1286 (1968).

      . United States v. Stubblefield, 408 F.2d 309, 310 (6th Cir. 1969).

      . The District Attorney did not accuse the defendant of lying. He sought to elicit from the doctor that he relied on information furnished by defendant and that misinformation could lead to an erroneous diagnosis. After a number of attempts along that line of questioning, the following colloquy occurred:
      “Q. Now, sir, I will ask you specifically, and we’ll get it right down so the layman can understand. I’m a layman, I’m not a psychiatrist. If a patient gives you misinformation, wouldn’t that have some effect or possibly help mislead you in j'our diagnosis?
      “A. Actually when wo are trained as exports we expect—
      “Q. Sir, will you please answer my question without giving us a lecture? “The Cotirt: Pardon me, let the doctor answer.
      “A. We expect to weigh the answers. Even when they’re misstatements they may fit into a picture of illness or not illness and we can evaluate what a person tells us and the kind of emotion with which those statements are made, whether they fit into an illness pattern or not. So expertise is to cut through some misstatements and discern the facts which become—
      “The Court: Now, Mr. Martin, you may re-ask the question, sir.
      “Q. Now, sir, I’ll get to specifically Mr. Cochran’s case.
      “A. Yes, sir.
      “The Defendant: That’s what you’re trying to do, you’re trying to call me a liar, you goddamn — the police has lied to me all the time. I have never lied, don’t ever tell me that I’m a liar, you understand me, you—
      “The Court: Just a minute, restrain him.”

      . The extent and scope of cross-examination lies within the trial court’s discretion and reversal is only commanded when “an abuse of discretion leads to prejudice.” United States v. Hiken, 458 F.2d 24, 26 (8th Cir. 1972), cert. denied, 409 U.S. 842, 93 S.Ct. 41, 34 L.Ed.2d 81 (1972).


author: PER CURIAM:

text:
    Edward B. BENJAMIN, Plaintiff-Appellant, v. WESTERN BOAT BUILDING CORPORATION, Defendant-Appellee.
    No. 71-2313.
    United States Court of Appeals, Ninth Circuit.
    March 15, 1973.
    Gerry A. Reitsch (argued), Judson T. Klingberg, of Klingberg, Houston, Reitsch, Cross & Frey, Longview, Wash., William A. Porteous, III, of Porteous, Toledano, Hainkel & Johnson, New Orleans, La., for plaintiff-appellant.
    James J. Mason (argued), of Binns, Petrich, Mason & Hester, Tacoma, Wash., Jack P. Scholfield, of Guttormsen, Scholfield, Willits & Ager, Seattle, Wash., for defendant-appellee.
    Before KOELSCH and WRIGHT, Circuit Judges, and BELLONI, District Judge.

       Honorable Robert C. Belloni, United States Distict Judge, District of Oregon, sitting by designation.

   PER CURIAM:

This is an appeal from an order granting summary judgment in favor of the defendant. The trial court ruled that all claims were barred by the statutes of limitation. We hold that those counts sounding in contract and breach of warranty are time barred but a material issue of fact remains on the fraud count.

Edward Benjamin (plaintiff) entered into a contract with Western Boat Building Corporation (defendant) for the construction of a steel yacht. The vessel was delivered to plaintiff in 1959. Plaintiff first noticed rust and corrosion on the exposed surfaces of the vessel in 1961. Plaintiff, at that time, conducted an immediate check of the vessel for additional rust and corrosion, limiting his examination to the accessible and unsealed portions of the yacht. Plaintiff maintains that the corrosion which he observed in 1961 was normal, could have been anticipated in any well constructed vessel, and that no reason presented itself to conduct any further search.

In 1969, a marine surveyor discovered that corrosion had eaten through the hull of the vessel from the inside out. The vessel was then partially stripped and dismantled, at which time plaintiff learned of corrosion in sealed areas that were ordinarily inaccessible.

Plaintiff brought an action on these facts for breach of contract, breach of warranty and fraud. The district court issued on order granting summary judgment for the defendant based on its conclusion that there was “no genuine issue as to any material fact under Fed.R.Civ.P. 56 because the causes of action were barred by the Washington Statutes of Limitation.”

Under Washington law which governs the relevant periods of limitation, Dam v. General Electric Company, 265 F.2d 612 (9th Cir. 1958), plaintiff’s claim for breach of contract and breach of warranty are time-barred. Plaintiff urges this court to rule that contract and warranty actions commence at the time of discovery of the breach. However, the Washington Supreme Court has held to the contrary, Taylor v. Puget Sound Power & Light Co., 64 Wash.2d 534, 392 P.2d 802 (1964), Nelson v. Sponberg, 51 Wash.2d 371, 318 P.2d 951 (1957), and its decisions are dispositive.

The fraud count alleged that defendant wilfully concealed the fact that the vessel was constructed with poor quality steel and not in accordance with plans and specifications. The State of Washington provides a three year statute of limitations period in actions for fraud. RCW 4.16.080(4). That period commences to run “when there is discovery by the aggrieved party of the facts constituting the fraud. RCW 4.16.080(4), supra. Actual knowledge of the fraud will be inferred if the aggrieved party, by the exercise of due diligence, could have discovered it.” Strong v. Clark, 56 Wash.2d 230, 232, 352 P.2d 183, 184 (1960). Plaintiff filed an affidavit and supporting exhibits which raised an issue as to when he discovered the alleged fraud or should have discovered it. Summary judgment was inappropriately granted as to the fraud claim insofar as there existed a controversy over a material fact.

Reversed in part and remanded.


text:
    MERCURY MOTOR EXPRESS, INC., et al., Plaintiffs-Appellants, v. Norman C. BRINKE, Defendant-Appellee.
    No. 72-1110.
    United States Court of Appeals, Fifth Circuit.
    March 15, 1973.

      George D. Gold, Bernard C. Pestcoe, Miami, Fla., for plaintiffs-appellants.
    James J. Kenny, William G. Earle, Miami, Fla., J. Raymond Clark, Washington, D. C., for defendant-appellee.
    Before RIVES, THORNBERRY and GOLDBERG, Circuit Judges.
   THORNBERRY, Circuit Judge:

Plaintiffs below sought a temporary restraining order, a preliminary injunction, and a permanent injunction to prevent defendant Brinke from unlawfully operating as a freight forwarder without an Interstate Commerce Commission (ICC) permit. The district court denied preliminary injunctive relief and in the same order stayed further proceedings pending final action by the ICC on Brinke’s freight forwarder permit application. Invoking this court’s jurisdiction under 28 U.S.C.A. § 1292(a)(1), plaintiffs appeal from both parts of the interlocutory order. Initially, this appeal presents a question of appellate jurisdiction to review the district court’s stay order. Concluding that we have jurisdictional power to review the stay order as well as the denial of injunctive relief, we vacate the stay and affirm the denial of a preliminary injunction.

The eight plaintiffs in this case are freight forwarders who operate as such under statutorily required ICC permits. A freight forwarder may be described as follows: - •

A freight forwarder is one who in the ordinary course of business assembles and consolidates small shipments into a single lot, assumes responsibility for the transportation of such property from a point of receipt to a point of destination, utilizes the services of carriers by rail, water or motor vehicle to help accomplish the movement, breaks the consolidated shipment up into its component parts, and distributes the goods to their destination point.
Since the original shipments are usually small, the customer is charged on a basis of freight rates applicable to less-than-trucldoad or less-than carload shipments. The freight forwarder, who consolidates multiple small shipments into one large one, secures the cheaper transportation rate applicable to full truckload or carload lots. The difference between the two freight rates accounts for his gross profit.

Household Goods Carriers’ Bureau v. United States, N.D.Cal.1968, 288 F.Supp. 641, 642, aff’d per curiam, 393 U.S. 265, 89 S.Ct. 477, 21 L.Ed.2d 426; see also Acme Fast Freight, Inc. v. United States, S.D.N.Y.1940, 30 F.Supp. 968, 969-971, aff’d per curiam, 309 U.S. 638, 60 S.Ct. 810, 84 L.Ed. 993. Freight forwarders are to be distinguished on the one hand from rail or pipe line carriers, water carriers, and motor carriers, which are expressly excluded from the statutory freight forwarder definition, and on the other hand from brokers, who generally perform the more limited role of arranging for transportation by motor carrier without consolidating or distributing shipments or assuming responsibility for the property en route. An appropriate ICC certificate or license is required for lawful operation as a carrier or a broker, just as a permit is required for doing business as a forwarder.

Defendant Brinke holds an ICC broker’s license, which was issued to him in 1964, but he has no freight forwarder permit. He applied to the ICC for a freight forwarder permit in December of 1963, about a month before he applied for the broker’s license, but his application, adrift on an administrative odyssey which has already lasted over nine years, has not yet received final action.

Plaintiffs alleged in their complaint below that Brinke, despite his lack of an appropriate permit, is functioning as a freight forwarder in blatant violation of the permit requirement of 49 U.S.C.A. § 1010, and that they are injured by competition from his unlawful enterprise. Suing under § 417(b)(2) of the Interstate Commerce Act, 49 U.S.C.A. § 1017(b)(2), which confers jurisdiction on the district court to enjoin a “clear and patent violation of section 1010” on application of “any person injured thereby,” plaintiffs sought a temporary restraining order and a preliminary injunction as well as a permanent injunction to halt Erinke’s allegedly unlawful operation. Brinke appears not to have contested the characterization of his business as a freight forwarding operation. He moved to dismiss, however, on the theory that his broker’s license at least colorably authorizes the services he renders so that there was no “clear and patent” violation of § 1010, and he moved alternatively for a stay of proceedings pending final action by the ICC on his freight forwarder permit. The district court after a hearing granted the alternative motion to stay, reserved ruling on the motion to dismiss, and denied plaintiffs’ application for a temporary restraining order and a preliminary injunction. Plaintiffs then took this interlocutory appeal from the stay order and denial of injunctive relief.

I. Jurisdiction

It is clear that this court has jurisdiction under 28 U.S.C.A. § 1292(a)(1) to review an order denying a preliminary injunction, but not an order denying a temporary restraining order. See, e. g., Smith v. Grady, 5th Cir. 1969, 411 F.2d 181; Connell v. Dulien Steel Products, 5th Cir. 1957, 240 F.2d 414, see also C. Wright, Federal Courts § 102 (2d ed. 1970). Accordingly, we shall consider the propriety of the district court’s denial of the preliminary injunction and pretermit consideration of the denial of the temporary restraining order.

The basis of appellate jurisdiction to review the portion of the order staying proceedings is less obvious, but no less certain. Plainly, the stay order is not appealable as a final order under 28 U.S.C.A. § 1291. Further, we can say with certainty that the stay order standing alone — that is, considered independently of the order denying a preliminary injunction — would not be appealable under § 1292(a)(1). The settled rule governing appealability of stay orders is:

An order staying or refusing to stay proceedings in the District Court is appealable under § 1292(a)(1) only if (A) the action in which the order was made is an action which, before the fusion of law and equity, was by its nature an action at law; and (B) the stay was sought to permit the prior determination of some equitable defense of counterclaim.

Jackson Brewing Company v. Clarke, 5th Cir. 1962, 303 F.2d 844, 845, cert. denied, 371 U.S. 891, 83 S.Ct. 190, 9 L.Ed.2d 124, reh. denied, 371 U.S. 936; 83 S.Ct. 305, 9 L.Ed.2d 272; J. S. & H. Construction Company v. Richmond County Hospital Authority, 5th Cir. 1973, 473 F.2d 212 [1973]; see generally 9 Moore’s Federal Practice 1] 110.20 [3] (2d ed. 1972); C. Wright, Federal Courts § 102 (2d ed. 1970). In this case, the first requirement of the jurisdictional rule is not met since the action for injunctive relief under 49 U.S.C.A. § 1017(b)(2) is clearly equitable in nature. See Ephraim Freightways, Inc. v. Red Ball Motor Freight, Inc., 10th Cir. 1967, 376 F.2d 40, cert. denied, 389 U.S. 829, 88 S.Ct. 92, 19 L.Ed.2d 87. Thus, the stay is not itself an appealable order.

Because this case is properly before the court as an appeal from the denial of an injunction under 28 U.S.C.A. § 1292(a)(1), however, our permissible scope of review extends to the stay order as well. A court of appeals normally will not consider the merits of a ease before it on an interlocutory appeal except to the extent necessary to decide narrowly the matter which supplies appellate jurisdiction, e. g., Time, Inc. v. Ragano, 5th Cir. 1970, 427 F.2d 219, but this rule is one of orderly judicial administration and not a limit on jurisdictional power. “[O]nce a case is lawfully before a court of appeals, it does not lack power to do what plainly ought to be done.” 9 Moore’s Federal Practice ¶ 110.25 [1] (2d ed. 1972); see also Kohn v. American Metal Climix, Inc., 3rd Cir. 1971, 458 F.2d 255, cert. denied, 409 U.S. 874, 93 S.Ct. 120, 34 L.Ed.2d 126 (1972); Korn v. Franchard Corporation, 2d Cir. 1971, 443 F.2d 1301, 1306; Semmes Motors, Inc. v. Ford Motor Company, 2d Cir. 1970, 429 F.2d 1197; Carter v. American Telephone & Telegraph Company, 5th Cir. 1966, 365 F.2d 486, cert. denied, 385 U.S. 1008, 87 S.Ct. 714, 17 L.Ed.2d 546; 3 W. Barron & A. Holtzoff, Federal Practice and Procedure § 1440 (Wright ed. Supp.1971). The Supreme Court has affirmed the power of an appellate court to reach the merits of a case before it on an interlocutory appeal and dismiss the action. Deckert v. Independence Shares Corporation, 1940, 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189; Smith v. Vulcan Iron Works, 1897, 165 U.S. 518, 17 S.Ct. 407, 41 L.Ed. 810. The Second Circuit has exercised its broad jurisdictional power on an interlocutory appeal from denial of a preliminary injunction to direct the entry of judgment for the plaintiffs. Hurwitz v. Directors Guild of America, Inc., 2d Cir. 1966, 364 F.2d 67, cert. denied, 385 U.S. 971, 87 S.Ct. 508, 17 L.Ed.2d 435. This court has previously exercised its jurisdictional power to review an otherwise non-appealable stay order in an interlocutory appeal from the denial of a preliminary injunction under § 1292(a)(1), and we think it is appropriate to exercise this power power for the same purpose in this case. Carter v. American Telephone & Telegraph Company, supra, see also Semmes Motors, Inc. v. Ford Motor Company, supra.

II. The Stay Order

The district court stayed further proceedings below pending final action by the ICC on Brinke’s freight forwarder permit because it concluded that central issues in the case lay “within the particular expertise and primary jurisdiction of the Interstate Commerce Commission.” We do not believe, however, that the doctrine of primary jurisdiction may properly be invoked to stay a suit brought under 49 U.S.C.A. § 1017(b)(2).

The judge-made doctrine of primary jurisdiction comes into play when a court and an administrative agency have concurrent jurisdiction over the same matter, and no statutory provision coordinates the work of the court and of the agency. The doctrine operates, when applicable, to postpone judicial consideration of a case to administrative determination of important questions involved by an agency with special competence in the area. It does not defeat the court’s jurisdiction over the case, but coordinates the work of the court and the agency by permitting the agency to rule first and giving the court the benefit of the agency’s views, see 3 K. Davis Administrative Law Treatise § 19.01 (1958). Mr. Justice Harlan has summarized the development of the primary jurisdiction doctrine and the considerations which underlie it and govern its application:

The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. “Exhaustion” applies when a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course. “Primary jurisdiction,” on the other hand, applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views. General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 433, 60 S.Ct. 325, 331, 84 L.Ed. 361.
No fixed formula exists for applying the doctrine of primary jurisdiction. In every case the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation. These reasons and purposes have often been given expression by this Court. In the earlier cases emphasis was laid on the desirable uniformity which would obtain if initially a specialized agency passed on certain types of administrative questions. See Texas & Pacific Railroad Company v. Abilene Cottonoil Company, 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553. More recently the expert and specialized knowledge of agencies involved has been particularly stressed. See Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576.

United States v. Western Pacific Company, 1956, 352 U.S. 59, 63-64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126; see also Watts v. Missouri-Kansas-Texas Railroad Company, 5th Cir. 1967, 383 F.2d 571, 581; Carter v. American Telephone & Telegraph Company, 5th Cir. 1966, 365 F.2d 486, 493-498, cert. denied 385 U.S. 1008, 87 S.Ct. 714, 17 L.Ed.2d 546.

Primary jurisdiction reference to an agency is favored when it will promote even-handed treatment and uniformity in a highly regulated area or when “sporadic action by federal courts would disrupt an agency’s delicate regulatory scheme.” United States v. Radio Corporation of America, 1959, 358 U.S. 334, 348, 79 S.Ct. 457, 466, 3 L.Ed.2d 354. The importance of uniformity has been recognized especially in cases involving reasonableness of tariffs or rates. E. g., Arrow Transportation Company v. Southern Railroad Company, 1963, 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52; Texas & Pacific Railroad Company v. Abilene Cottonoil Company, 1907, 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553. Similarly, primary jurisdiction reference is favored when the agency possesses expertise in a specialized area with which the courts are relatively unfamiliar. In Watts v. Missouri-Kansas-Texas Railroad Company, supra, 383 F.2d at 583, for example, this court in affirming the applicability of the primary jurisdiction doctrine acknowledged judicial lack of expertise in technical questions of railroad financing.

With these principles in mind, we turn to the case at hand. We note at the outset that plaintiffs have not sued under a traditional common law of equity theory or under a statute which is arguably foreign or inimical to the regulatory scheme of the Interstate Commerce Act, but under a section of the Act itself—§ 417(b)(2), 49 U.S.C.A. § 1017(b)(2). Further, the statute itself is not silent on the problem of coordinating the work of the district courts and the ICC in this type of action, but makes express provision for coordination. Section 1017(b) (2) provides, “The Commission may appear as of right in any such action,” and Section 1017(b) (3) explicitly gives the ICC the power to assert primary jurisdiction in an appropriate case:

In any action brought under paragraph (2) of this subsection [§ 1017(b) (2)], the Commission may notify the district court of the United States in which such action is pending that it intends to consider the matter in a proceeding before the Commission. Upon the filing of such notice the Court shall stay further action pending disposition of the proceeding before the Commission.

The statute thus gives the ICC power to effect a stay of a § 1017(b)(2) action, but conspicuously omits mention of any corresponding power in the district court when the ICC does not intervene. We think the conferring of power to stay only on the Commission in this thoughtfully designed procedural provision, enacted as an integral part of the regulatory legislation, strongly suggests that Congress intended to supersede and replace the judicial primary jurisdiction doctrine in § 1017(b) (2) suits.

The high jurisdictional threshold of § 1017(b) (2) reinforces our conclusion that application of the primary jurisdiction doctrine is inappropriate in suits brought under it. The section gives the district court power to enjoin only a “clear and patent violation of section 1010.” Baggett Transportation Company v. Hughes Transportation Company, 8th Cir. 1968, 393 F.2d 710, 716, cert. denied, 393 U.S. 936, 89 S.Ct. 297, 21 L.Ed.2d 272. That this requirement of a “clear and patent violation” was intended as a jurisdictional one appears clearly in the documents recording the legislative history of the 1965 amendment (P.L. 89-170, 79 Stat. 648) which became § 1017(b). The Conference Report on the bill emphasized this construction:

The conferees wish to emphasize that the words “clear and patent” in the amendments made by the conference substitute two sections 222(b) and 417(b) of the Interstate Commerce Act are intended as a standard of jurisdiction rather than a measure of the required burden of proof and that the district courts of the United States should entertain only those actions under these sections, as amended, which involve clear and patent attempts to circumvent regulation in the areas involved.

Conference Report No. 810, 89th Cong. 1st Sess. (1965), 1965 U.S.C. Cong, and Admin.News, pp. 2942, 2943. The fact that the district court has power to enjoin only obvious violations largely removes from § 1017(b) (2) litigation the reasons which underlie the primary jurisdiction doctrine. The courts are unlikely to conflict among themselves or with the ICC in deciding clear cases, and judicial action without prior reference to the Commission therefore would not jeopardize uniformity in the administration of the regulatory scheme. Further, the value of the agency’s specialized knowledge and expertise is at a minimum in cases involving “clear and patent” violations.

An analysis of the purposes of the 1965 amendment which became the present § 1017(b) (2) further confirms the inappropriateness of applying the primary jurisdiction doctrine in this type of litigation. A major purpose was to hasten enforcement procedures in cases of clear violations. See Baggett Transportation Company v. Hughes Transportation Company, supra at 715. Before 1965 only the ICC could sue to enjoin unlawful operations; the 1965 amendment allowed broader use by the ICC of this enforcement method by modifying requirements for service of process and, in addition, for the first time gave injured private parties the right to “apply directly to the courts for injunctive relief” without the necessity of prior, potentially time consuming administrative proceedings. Commenting on the 1965 amendment, Congressman Oren Harris, Chairman of the Committee on Interstate and Foreign Commerce, made clear the congressional intent to avoid delay in the procedures created and to provide a relatively speedy remedy:

We firmly believe this new enforcement tool will be a good, one. It should not be subverted by any practice which will avoid or delay prompt settlement of the issues.

111 Cong.Rec. 9679. Judicial application of the primary jurisdiction doctrine would re-route plaintiffs through administrative proceedings the amendment entitles them to avoid and permit a delay of precisely the type that Congress sought to eliminate in cases of clear violations.

In sum, we conclude that application of the judicial primary jurisdiction doctrine is inappropriate in § 1017(b)(2) litigation because (1) the statute expressly provides a method for coordinating the work of courts and the ICC, (2) judicial action which is limited to enjoining “openly and obviously unlawful” operations will not jeopardize the uniform administration of the regulatory system or require a high degree of specialized knowledge on the part of the courts, and (3) primary jurisdiction reference of cases brought under § 1017(b) (2) would thwart Congress’s intention to provide a relatively speedy enforcement procedure and remedy for injured parties. If a plaintiff cannot show a “clear and patent” violation, the proper disposition of his complaint is dismissal for want of jurisdiction; if he can, he is entitled to injunctive relief.

III. Denial of Preliminary Injunction

The district court denied the preliminary injunction sought by plaintiffs because it found:

Plaintiffs have failed to show irreparable injury as a consequence of defendant’s activities. Defendant, on the other hand, has been continuously providing transportation services of the same nature since issuance of its broker’s license previously referred to and would suffer irreparable injury if required to terminate such operations.

It is well established that the granting or denying of a preliminary injunction is a matter addressed to the sound discretion of the district court. Exhibitors Poster Exchange, Inc. v. National Screen Service Corporation, 5th Cir. 1971, 441 F.2d 560; see 7 Moore’s Federal Practice ¶ 65.04 (2d ed. 1972). The intended function of a preliminary injunction is to preserve the status quo pendente lite, and in deciding whether to issue it, the district court in this case properly weighed the damage the injunction would cause the defendant against the harm plaintiffs would suffer without it.

We think the district court was clearly correct in finding that denial of the preliminary injunction sought would best preserve the status quo pendente lite and prevent irreparable injury to either party. Perceiving no abuse of discretion, we affirm the denial of the preliminary injunction.

Affirmed in part; vacated in part; and remanded.

      . Interstate Commerce Act, § 410(a) (1), 49 U.S.C.A. § 1010(a) (1).

      . The statutory definition of freight forwarder is found in § 402(a)(5) of the Interstate Commerce Act, 49 U.S.C.A. § 1002(a)(5):
      The term “freight forwarder” means any person which (otherwise than as a carrier subject to chapters 1, 8, or 12 of this title) holds itself out to the general public as a common carrier to transport or provide transportation of property, or any class or classes of property, for compensation, in interstate commerce and which, in the ordinary and usual course of its undertaking, (A) assembles and consolidates or provides for assembling and consolidating shipments of such property, and performs or provides for the performance of break-bulk and distributing operations with respect to such consolidated shipments, and (B) assumes responsibility for the transportation of such property from point of receipt to point of destination, and (C) utilizes, for the whole or any part of the transportation of such shipments, the services of a carrier or carriers subject to chapters 1, 8, or 12 of this title.

      . The statutory definition of broker is found in § 203(a) (18) of the Interstate Commerce Act, 49 U.S.C.A. § 303(a) (18) :
      The term “broker” means any person not included in the term “motor carrier” and not a bona fide employee or agent of any such carrier, who or which, as principal or agent, sells or offers for sale any transportation subject to this chapter, or negotiates for, or holds himself or itself out by solicitation, advertisement, or otherwise as one who sells, provides, furnishes, contracts, or arranges for such transportation.

      . For carriers a certificate of public convenience and necessity issued by the ICC is required. See Interstate Commerce Act, § 1(18), 206(a)(1), 309(a), 49 U.S. C.A. §§ 1(18), 306(a)(1), 909(a).

      . A broker must obtain from the ICC a license. See Interstate Commerce Act, § 211(a), 49 U.S.C.A. § 311(a).

      . The opposite conclusion would be required if the stay order itself had the effect of denying a preliminary injunction. Glen Oaks Utilities, Inc. v. City of Houston, 5th Cir. 1960, 280 F.2d 330.

      . Judge Jones has observed, “The operation of the stay order is the same in the action equitable as in the action legal and if a right of appeal should be allowed or denied in one, the same should be true in the other,” and has suggested that the framers of the Federal Rules of Civil Procedures intended to lay to rest procedural rules such as the above-quoted one governing appealability of a stay which depend on the law-equity distinction. Glen Oaks Utilities, Inc. v. City of Houston, 5th Cir. 1960, 280 F.2d 330. Nevertheless, the rule is well established. Professors Moore and Wright have suggested that Congress or the Supreme Court should establish more rational rules in this area, but as yet neither body has undertaken to do so. See 9 Moore’s Federal Practice ¶ 110.20 [3] at 245 (2d ed. 1972); C. Wright, Federal Courts § 102 at 460 (2d ed. 1970).

      . The pertinent conclusions of law of the district court are:
      2. The interpretation of the broker’s license held by defendant and a determination of the lawfulness of the activities of defendant conducted pursuant thereto are matters within the particular expertise and primary jurisdiction of the Interstate Commerce Commission.
      3. In view of the pendency of a proceeding before the Interstate Commerce Commission in which the issue has been raised as to the lawfulness of defendant’s present activities, it is not appropriate for this Court to exercise jurisdiction until final disposition of the matter by the Commission.

      . We do not suggest that the necessary computations are purely esoteric or arcane to courts, but we know that the Commission has insights and experience denied judges. The subleties of railroad financing, encased in jargon and tucked into the intricacies of the administrative scheme may escape us.
      Watts v. Missouri-Kansas-Texas Railroad Company, 5th Cir. 1967, 383 F.2d 571, 583.

      . The ICC’s power to investigate violations and compel compliance with the statute, rules, or its own orders does not depend on the filing of a complaint by an injured party; it may undertake such action on its own initiative. Interstate Commerce Act, § 403(f), 49 U.S.C.A. § 1003(f).

      . Baggett deals with § 222(b)(2) of the Interstate Commerce Act, 49 U.S.C.A. § 322(b)(2), a section enacted in the same 1965 amendment (P.L. 89-170, 79 Stat. 648) as § 1017 (b) (2) and identical to it except that § 322(b) (2) deals with violations by motor carriers and brokers rather than violations by forwarders. The conclusions of the Baggett court regarding the purposes and jurisdictional requirements of § 322(b)(2) are clearly applicable to § 1017 (b) (2) as well.

      . House Report No. 253, 89th Cong. 1st Sess. (1965), 1965 U.S.C.Cong. and Admin.News pp. 2923, 2924.

      . In Baggett Transportation v. Hughes Transportation Company, 8th Cir. 1968, 393 F.2d 710, cert. denied 393 U.S. 936, 89 S.Ct. 297, 21 L.Ed.2d 272, the Eighth Circuit noted Congressman Harris’ statement and commented:
      The congressional concern evidenced by Congressman Harris’ remarks is well placed. The goal of seeking more efficient action through the administrative process than can be obtained through the courts has not always been realized. There is in the first instance the undue delay that may result from the administrative decision-making process itself. See 1 Davis, Administrative Law § 8.08, pp. 548-50. Further delay in effectively enforcing the administrative decision can result from lengthy review proceedings of the administrative action in the courts. For example, a three year delay in enforcing the administrative regulation in the Covington Mills case eventually succeeded in rendering a valid administrative decision moot. Mitchell v. Covington Mills, 1955, 97 U.S.App.D.C. 165, 229 F.2d 506, cert. denied, 1956, 350 U.S. 1002, 76 S.Ct. 546, 100 L.Ed. 865, see, Gelhorn & Byse Administrative Law, pp. 232-35.
      The over nine-year long pendency of Brinke’s freight forwarder permit application before the ICC provides a striking example of the delay that sometimes characterizes the administrative decision-making process.

      . House Rep. No. 253, 89th Cong. 1st Sess. (1965), 1965 U.S.C.Cong. and Admin.News, pp. 2923, 2931.


author: GEWIN, Circuit Judge:

text:
    Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. DEEL MOTORS, INC., d/b/a Deel Ford, and R. L. Nunn, Individually, Defendants-Appellees.
    No. 72-2192.

    United States Court of Appeals, Fifth Circuit.
    March 27, 1973.

      Richard F. Schubert, Solicitor of Labor, Donald S. Shire, Carin Ann Clauss, U. S. Dept, of Labor, Washington, D. C., Beverley R. Worrell, Regional Solicitor, Edwin G. Salyers, Atty., Dept, of Labor, Atlanta, Ga., Sylvia Ellison, U. S. Dept, of Labor, Washington, D. C., for plaintiff-appellant.
    Donald B. Harden, Charles Kelso, Atlanta, Ga., for defendants-appellees.
    Before GEWIN, SIMPSON and RO-. NEY, Circuit Judges.
   GEWIN, Circuit Judge:

In this action, the Secretary of Labor appeals from the judgment of the district court dismissing his claim for injunctive relief under § 17 of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (1971), against the appellees, Deel Motors, Inc. and its vice president, Robert L. Nunn. The basis for the claimed relief is the alleged failure of the appellees to pay overtime wages as required by the Act to certain of their employees. This is a test case and there appear to be no controlling precedents except cases dealing with the rules of statutory construction. After a careful examination of the facts and the legal arguments presented, we find that the lower court properly disposed of this case and therefore affirm.

The pertinent facts are undisputed and may be summarized with brevity. Appellee, Deel Motors, Inc., a Florida corporation, is a franchised automobile dealership engaged in selling new and used cars, automobile parts, and mechanical services. Appellee, Nunn, is a company vice president, responsible for implementing the company pay plans for its various employees.

Part of Deel’s staff consists of four employees variously titled as “service writers”, “service advisors”, or “service salesmen.” These service salesmen work directly with customers co-ordinating the sale of numerous goods, services, and mechanical skills provided by the appellees. The service salesmen diagnose each customer's problem with his automobile and then refer the car to an appropriate department within appellees’ business operation for needed repairs or additional equipment desired. They monitor the work while in progress, keeping track of the parts or additions used, and then determine whether a satisfactory job has been done.

When the Secretary’s investigation of Deel began, these salesmen were compensated by a weekly wage and a percentage commission on each service order written. Additionally, commissions termed “spiffs” were given service salesmen who sell certain products and services being promoted by the appellee Deel. Presently, pending outcome of this litigation, the salesmen are being paid on a straight commission basis plus “spiffs.”

The Secretary contends that these employees fall within § 7 of the Act, 29 U. S.C. § 207 (1971), and are therefore entitled to overtime premium pay. However, the real dispute presented by this appeal is whether the general overtime premium pay requirements of § 7 are made inapplicable to the present fact situation by the exemption found in § 13(b)(10), 29 U.S.C. § 213(b) (10) of the F.L.S.A. This exemption from the general overtime premium pay provisions applies to:

any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles ... if employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles to the ultimate purchasers.

We feel that the best interpretation of this section calls for the inclusion of these service salesmen within the scope of this exemption.

The Secretary contends that the overtime exemption is limited to salesmen of the vehicles, while appellees counter that such language encompasses all salesmen employed by an automobile dealership. Both parties have presented lengthy arguments as to the Congressional intent in the enactment of § 13(b)(10) leading to contradictory conclusions. We feel that appellees have presented the better reasoned interpretation of the section and that a common sense interpretation and application of this exemption mandates inclusion of service salesmen within its scope.

First, there is no dispute of the fact that these four salesmen are “employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles to the ultimate purchasers, as required by the last clause of § 13(b) (10). Second, these service salesmen are functionally similar to the mechanics and partsmen who service the automobiles. All three work as an integrated unit, performing the services necessary for the maintenance of the customer’s automobile. The mechanic and partsman provide a specialized service with the service salesman co-ordinating these specialties. Each of these service employees receive a substantial part of their remuneration from commissions and therefore are more concerned with their total work product than with the hours performed.

§ 13(b) (10) exempts from the overtime pay requirements those employees of automobile dealerships who are “primarily engaged in selling or servicing” the vehicles. In the absence of clear intent to the contrary, we can not assume that Congress intended to treat employees with functionally similar positions differently, especially when the exemption by its own terms refers to “any salesman . . . engaged in selling or servicing automobiles . . . ” This is exactly what a service salesman does. They promote and attempt to sell the goods and services provided by Deel. Their remuneration is substantially based on their success in these endeavors. They openly solicit business by telephone and through written circulars to prospective and past customers. Their hours may be irregular, depending on the special needs of their customers.

The intended scope of § 13(b) (10) is not entirely clear. Indeed, the Secretary's own interpretation of the coverage of that section is not altogether consistent. This court has previously recognized that this section “was not intended to be interpreted in the broad sense.” See, Shultz v. Louisiana Trailer Sales, Inc., 428 F.2d 61, 66 (5th Cir. 1970). However, exemptions are “drawn to meet particular needs.” The enactment of § 13(b) (10) was an implicit recognition by Congress of the incentive method of remuneration for salesmen, partsmen, and mechanics employed by an automobile dealership.

The judgment of the district court is affirmed.

      . Formerly § 13(a) (19) of the Act exempted “any employee of a retail or service establishment which is primarily engaged in the - business of selling automobiles, trucks, or farm implements” from both minimum wage and overtime requirements. See, 29 U.S.C. § 213(a) (19) (1964).

      . As originally introduced in the House of Representatives § 13 (a) (19), 29 U.S.C. § 213(a) (19) (1964), would have simply been repealed. See, H.R. 8259, 89th Cong., 1st Sess. (1965). However, during the hearings on the proposed amendments, Sam H. White, Chairman of the Governmental Relations Comm, of the National Association of Automobile Dealers, testified in opposition to the repeal of § 13(a) (19). (Hearings on H.R. 8259 before the Gen.Comm. on Education and Labor of the House Comm, on Education and Labor, 89th Cong., 1st Sess., Pt. 1, pp. 366-67 (1965). At the next session the House committee, after deliberation reported out H.R. 13712. This new bill contained an exemption, 13(b) (10), which included “any salesman, mechanic, or partsman employed by an establishment which is primarily engaged in the business of selling automobiles ... to the ultimate purchaser.” (H.R.Rept.No.1366, 89th Cong., 2d Sess., p. 71 (1966), U.S. Code Cong. & Admin.News 1966, p. 3002. H.R. 13712 was passed by the House on May 26, 1966 (112 Cong.Rec. 11653). The Senate Committee on Labor and Public Welfare rewrote Section 13(b) (10), restricting that exemption to “any salesman (other than partsman) or mechanic primarily engaged in selling or servicing automobiles, trailers, trucks, farm implements, or aircraft if employed by a non-manufacturing establishment primarily engaged in the business of selling such vehicles to ultimate purchasers.” (S. Rept. No. 1487, 89th Cong. 2d Sess. p. 62 (1968)). The Committee Report explained :
      It is the intent of this exemption to exclude from the coverage of Section 7 all mechanics and salesmen employed by an automobile dealership, (at 31-32). Emphasis added.
      The House refused to accept the Senate amendments and the conflicting versions were referred to a Conference Committee (112 Cong.Rec. 21228 (1966)) which reported § 13(b) (10) in its present form. The exemption was restored for partsmen of automobile dealers. The Conference Report explained:
      The conference substitute conforms to the House provision regarding partsmen except that such exemption shall be available only to salesmen, partsmen and mechanics primarily engaged in selling or servicing such vehicles. (Conference Report No. 2004, 89th Cong., 2d Sess., p. 19 (1966), U.S.Code Cong. & Admin.News 1966, p. 3002. The Conference Report was accepted by the House on September 7, 1966, (112 Cong. Rec. 21949) and the Senate on September 14, 1986, (112 Cong.Rec. 22669).

      . Initially, the Secretary held that § 13(b) (10), did exempt individuals with the duties of service salesmen. See, Wage-Hour Opinion Letter No. 630, July 6, 1967. ¶ 30,620 C.C.H.Lab.Law Rep. One month later the Administrator ruled that the exemption did not apply to employees “variously described as “service salesmen” who are not themselves primarily engaged in the work of a salesman, partsman or mechanic.” See Wage-Hour Opinion Letter No. 660, August 4, 1967, ¶ 30,652 COH Lab.Law Rep. This opinion is now codified in 29 C.F.R. 779.-372(C)(4). (Supp.1972). After the depositions in this case were submitted, the Secretary attempted to voluntarily dismiss this action. We do not cite these actions as controlling but simply to show that the issue here is a close one and we feel that appellees have met their burden of persuading the court that their employees fall within the exemption. The letter seeking dismissal is as follows:
      “January 21, 1972
      Honorable Joe Baton
      United States District Judge
      Post Office Box 4941
      Miami, Florida 33101
      Re: Hodgson v. Deel Motors, Inc., d/b/a Deel Ford and Robert L. Nunn
      USDC SD Florida
      Civil Action File No. 71-1283-Civ-JE
      Dear Judge Eaton:
      The evidence disclosed by the taking of depositions in this case has led us to the conclusion that we should no longer urge our position. Accordingly, we would like to dismiss this case. We have discussed dismissal with counsel for the defendants in the hope that they would have no objection to a dismissal. To date, the defendants have not indicated either approval of or opposition to a dismissal. We assume that if the defendants oppose dismissal, the court will be advised of this opposition.
      Respectfully,
      Beverly R. Worrell
      Regional Solicitor Enclosure
      cc: Mr. Donald B. Harden Attorney at Law”

      . We find support for this interpretation that all salesmen of an automobile dealership fall within the exemption by Congressman Dent, the author of H.R. 13712, when he replied to his colleagues, concerning the Congressional intent by the inclusion of 13(b) (10). See, 112 Cong.Ree. 11289-11290 (1966). The following is a part of that exchange:
      Mr. ANDREWS of North Dakota. . .
      I want to make .sure that the intent of Congress is that those who are primarily retail dealers engaged in selling Ford and Chevrolet automobiles have this exemption for their commission employees such as parts men and salesmen and mechanics. (Emphasis added)
      Mr. DENT. The answer is still “Yes”
      as far as I can tell. (Id. at 11290). The exemption provided by 13(a) (19) was to be continued for salesmen and mechanics in recognition of the traditional incentive pay plans and irregular hours of such employees.


author: GROOMS, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. M. Murray SCHECHTER, Defendant-Appellant.
    No. 72-2822.
    United States Court of Appeals, Fifth Circuit.
    March 23, 1973.
    Rehearing Denied April 20, 1973.
    E. David Rosen, Richard M. Gale, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Charles O. Farrar, Asst. U. S. Atty., Miami, Fla., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Joseph M. Jabar, Attys., Tax Div., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before BELL and THORNBERRY, Circuit Judges, and GROOMS, District Judge.
   GROOMS, District Judge:

This appeal is to review a judgment of conviction by the court after a non-jury trial on a two count indictment which charged appellant with knowingly and wilfully evading and defeating his income tax for the years 1967 and 1968 in violation of 26 U.S.C. § 7201.

Appellant insists that the evidence was insufficient to sustain the conviction, and that the court erred in two particulars in its rulings upon evidence. Appellee upholds the sufficiency of the evidence, and the correctness of the rulings.

Appellant, a physician, for the year 1967 reported gross receipts of $203,-496.00 and taxable income of $165,100.-00. For 1968 gross receipts of $213,-633.00 and taxable income of $167,162.-00. He omitted taxable income for the year 1967 in the amount of $21,958.15 and for 1968 in the amount of $43,910.-74. An additional tax liability of $14,-054.00 for 1967 and $31,953.00 for 1968 resulted from these omissions of income.

Appellant’s secretary kept a daily record showing: (1) “charges,” (2) “cash,” and (3) “Rec’d on account.” All the entries on the daily record book were correctly entered. Generally at the end of the month appellant would personally transpose the totals of each day’s business to monthly summary sheets. Discrepancies arose when the totaled figures in the daybooks were transcribed to the summary sheets. These discrepancies were of two types. One type was the transposition of an understated number to the summary sheets occasioned by the omission of the initial digit or some other digit in the number. The other type was “underfooting,” or the adding of a column of figures and entering an amount for a total which was less than a true addition of that column of figures.

For the year 1967 there were twenty transposition discrepancies in the amount of $14,813.40 and eleven underfooting discrepancies in the amount of $7,144.76. All of the former and all but one of the latter, amounting to forty cents, were in favor of appellant.

For the year 1968 there were twenty-five transposition discrepancies in the amount of $32,265.94 and ten underfooting discrepancies in the amount of $11,-644.80. All but one of the former, amounting to $2.76, and all of the latter were in appellant’s favor.

When the time arrived for the preparation of his return appellant took his monthly and annual summaries and his daily record books to an accountant. He would sit next to the accountant and would read the figures from his recap sheets. The accountant would write the figures as they were called out to him on his own recap sheets, occasionally checking to see if they were the same figures as those appearing on appellant’s sheets.

The books were made available to the accountant, but he never checked the figures other than totaling the amounts read to him to see if they were the same as the totals on appellant’s summary sheets. This procedure was followed from 1957 forward. The accountant was not employed to audit appellant’s books.

To counter the evidence as to the discrepancies in the particulars detailed, appellant offered evidence that the adding machine used by him was defective, and that appellant, who reported on a cash basis, made non-taxable errors of a similar nature when he transposed the totals in the daily charge columns to the charge columns on the monthly summary sheets for both years.

The adding machine appears to have been used for only a couple of months after it was found to be out of order and was then exchanged for a new machine.

There were seven discrepancies in the charge column summaries for 1967, fourteen for 1968, and with one day in each year entirely omitted.

The rule is now well established that in considering the sufficiency of the evidence this court does not determine whether it establishes guilt beyond a reasonable doubt, but only whether the evidence would permit the trier of fact to find the defendant guilty beyond a reasonable doubt, Gordon v. United States, 438 F.2d 858, 867 (5 Cir.). The judgment of conviction must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; Gordon v. United States, supra. A finding of guilty, whether at the hands of court or jury, is not to be overturned unless there is no substantial evidence to support it. Cohen v. United States, 363 F.2d 321, 327 (5 Cir.).

The following facts stand out in the record: the substantial amount of the taxable income omitted; the significant effect of that omission ; the number of the discrepancies; the odds against their occurrence in appellant’s favor as inadvertent routine errors; appellant’s personal assumption of the simple mechanical task of compiling the monthly summaries; the appearance of the discrepancies conjoined with the performance of that task; and his action in personally calling off the totals appearing on the summaries in lieu of leaving them with the accountant for the preparation of his returns.

These facts together with all the other evidence, including the non-taxable discrepancies, which could be construed as a part of a pattern designed to defraud and not as innocent errors, constituted a sufficient basis upon which to rest the court’s conviction in keeping with the guidelines spelled out in the decisions above noted.

Appellant asserts a violation of his Fifth Amendment rights against against self-incrimination arising from the court’s action in overruling his motion to strike the following question propounded to him: “Did you furnish the summary sheets?” Immediately preceding this question he had been asked if the agent had asked to examine his records for 1964, 1965, 1966. There was no objection and he replied that the agent had asked to examine his 1966 records, but that he did not recall that he asked for his 1964 or 1965 records.

Following a colloquy between court and counsel in the course of which the court observed that the agent had a right to look at his 1966 records, the question was withdrawn and never answered. We find no error or violation of Fifth Amendment rights in any action taken or statement made by the court at that point in the trial.

Likewise, the court did not err in sustaining an objection to a hypthetical question propounded to an expert in accounting concerning good accounting practices in using a client’s records, including daybooks, summary sheets, and adding machine tapes, in preparation of an income tax return. The question was irrelevant. The adequacy or quality of the accountant’s services was not in issue. Blumberg v. United States, 222 F.2d 496, 499 (5 Cir.). He had never been employed to audit appellant’s books to determine the accuracy of the summary sheets. He was hired simply to prepare the tax returns from information supplied to him by appellant.

The judgment of the trial court is

Affirmed.

      . Section 7201. Attempt to evade or defeat taw

      Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law,- be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution.

      . Appellant was in the 58% bracket and would need to gross approximately $120,000.00 in order to net an amount equal to the tax on the amount of income omitted.

      . It will be presumed that the trial judge relied only upon properly admitted and relevant evidence. United States v. Dillon, 436 F.2d 1093 (5 Cir.).