author: ALDISERT, Circuit Judge. SEITZ, Chief Judge

text:
    William L. BRACEY, Jr. v. John GRENOBLE, Appellant.
    No. 73-1769.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 14, 1974.
    Decided March 18, 1974.
    Seitz, Chief Judge, filed a concurring and dissenting opinion.
    David Mannis, Law Student, Howard Lesnick, Supervising Atty., Indigent Prisoner Litigation Program, Philadelphia, Pa., for appellee.
    Michael Minkin, Asst. Atty. Gen., Chief, Civil Litigation, Eastern Regional Office, Lawrence Barth, Asst. Atty. Gen. Michael von Moschzisker, Deputy Atty. Gen., Eastern Regional Director, Israel Packel, Atty. Gen., Philadelphia, Pa., for appellant.
    Before SEITZ, Chief Judge, and KALODNER and ALDISERT, Circuit Judges.
   OPINION OF THE COURT

ALDISERT, Circuit Judge.

We are to decide whether there was sufficient evidence to sustain a non-jury finding of liability in a Civil Rights Act proceeding brought by a prisoner against the senior officer of the guard at a Pennsylvania correctional institution. The court adjudicated in favor of the plaintiff and awarded damages in the amount of $2,500.00. The officer has appealed. We reverse.

I.

We immediately dispose of defendant’s improper venue contention. Clearly in a Civil Rights Act case brought under 42 U.S.C. § 1983, venue did not properly lie in the Eastern District of Pennsylvania. Under the provisions of 28 U.S.C. § 1391(b), this action “not founded solely on diversity of citizenship” could “be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law.” Grenoble resides in the Middle District, and the claim arose in the Middle District. At the beginning of the trial, however, Michael Minkin, Assistant Attorney General, conceded to the court that the question of venue was waived.

II.

The trial record discloses that William L. Bracey, Jr., a prisoner at Camp Hill Institution, Pennsylvania, participated in an assault on a prison guard on November 18, 1968, for which he was convicted in a state court. His civil action encompassed events which occurred immediately after the events which led to his subsequent conviction. Two guards were assaulted on B-Block, one of whom was a Sergeant Bartlebaugh. The plaintiff candidly admitted that he “was participating in the assault right then.” Knives and daggers were used by prisoners in the assault. The plaintiff testified that he left B-Block and “went out in the hallway and . . . was sprayed again with the can of Mace.” When asked if he knew who sprayed him, he replied: “I don’t quite recall, but I remember Lieutenant Yucha then was out there in the hallway,” and that “I did see Major — he was acting as major, Grenoble then in the hallway, when I went out in the hallway.” He said that he was thrown to the floor but could not “recall which one pushed . . . [him] to the floor,” and that while on the floor he was beaten with night sticks “for about five minutes. . . .”

Asked how much time elapsed between the time when he saw the defendant and the beating he received, he responded: “It was like, just like seconds. The time it took me to stand up and like the time it took them to Mace me, I would say about five or six seconds, that is all it took.”

There is evidence that Grenoble was present at the time plaintiff was brought into the hallway; there is no evidence he was present during or throughout the beatings. The defendant was seen by plaintiff only at this one time, and his voice was heard later when plaintiff was brought up the hallway:

BY THE COURT:

Q. Mr. Bracey, from the time that you got through the door from B-Block into the corridor and the events that you have described took place, during that period of time do you know where the defendant Grenoble was?
A. When I entered the hallway he was standing behind the guards, he was standing right behind them, and like the guards with the Mace was along the wall and when I came out, I came out of B-Block like this way (indicating), and I turned this way (indicating), and like the guards came over and like two guards grabbed me and I was sprayed with the Mace then.
Q. And all during this period of time where was the defendant Grenoble; if you know?
A. When I came out like he was standing directly behind the guards, you know, like he was standing right in front of the door but directly behind the guards as I recall.
THE COURT: All right.
BY MR. SOSKIN:
Q. Well, to clarify that, was that the only time you saw the defendant?
A. No. When I was being taken up the hallway I recall his voice, you know.
THE COURT: You recall his voice ?
THE WITNESS: His voice.
THE COURT: Saying what? Do you know?
THE WITNESS: “Get him up there; go check on the keys.”

The witness said that he was then taken through the hallway to the entrance of D-Rlock, about twenty-five feet further: “I was put on the wall, I was told to put my hands on the wall until they brought the key from the control desk, the control desk where they keep all the keys at. ... I was told to like stretch out, put my hands on the wall. ... I was facing the wall.” He testified that some six guards brought him there. The group then waited for a key to arrive from the control clerk to open D-Block. He stated: “While waiting for the,key, Lieutenant Yucha then was the one that was hitting me with the night sticks. As soon as they got the key he went across my face and then after — as soon as I was hit I was pushed in D-Block, I went in D-Block, and like they ripped my clothes off me and . . . Captain Wilkes started choking me. . . .” Significantly, plaintiff testified that he did not know where Major Grenoble was when he was struck by Lieutenant Yucha, when his clothes were ripped off, and when he was pushed down the steps.

Plaintiff spent eight days in the Camp Hill Hospital. According to the nurses’ and hospital records, his injuries consisted of a broken nose and a right eye injury.

III.

The precise question that we address is whether Grenoble was responsible for the plaintiff’s beating. We emphasize that we do not reach the question of whether the physical acts which led to the plaintiff’s injuries were state torts only, or whether they amounted to constitutional deprivations. Smith v. Spi-na, 477 F.2d 1140 (3d Cir. 1973); Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972). Although at trial Grenoble’s attorney took the position that the plaintiff failed to state the deprivation of a constitutional right, the district court specifically rejected that argument, and Grenoble has elected not to renew this contention before us.

That portion of the district court’s opinion outlining the basis of defendant’s responsibility is as follows:

We have no difficulty in concluding that the defendant Grenoble was in charge of the prison guards and had complete control over their actions. When a superior personally directs his subordinates to do acts or when he has actual knowledge of their acts and acquiesces in them, he is regarded as having been personally involved and is liable for his own conduct, not on the basis of respondeat superior but because of his direct personal involvement. Landman v. Royster, 354 F. Supp. 1302 (E.D.Va.1973); Wright v. McMann, 460 F.2d 126, 135 (C.A.2, 1972). We hold that Grenoble is liable for the injuries inflicted upon the plaintiff in violation of his constitutional rights.

In reaching the legal conclusion of Grenoble’s liability, the district court relied on findings of fact “based largely on the testimony of the plaintiff which was straightforward and consistent . . ., [rejecting] out of hand the testimony of the Commonwealth’s witnesses.” We hold that the implicit findings of the trial court as to the adjudicative facts of “direction” or “actual knowledge and acquieseense” cannot survive under the clearly erroneous test. Krasnov v. Dinan, 465 F.2d 1298 (3d Cir. 1972).

Plaintiff frankly admits that he did not prove Grenoble’s participation in the administration of the beatings. Incredibly, plaintiff did not sue the two officers of the guard whom he identified as beating him — Lieutenant Yucha and Captain Wilkes. There was no evidence introduced at trial that Grenoble gave orders “to do acts,” i. e., to administer the beatings. The court ruled out liability on the basis of respondeat superi- or, and the parties do not now contest this ruling. Therefore, if the district court’s legal conclusion of liability is to be sustained it has to be, in the district court’s words, on the theory: “[W]hen he has actual knowledge of their acts and acquiesces in them, he is regarded as having been personally involved and is liable for his own conduct. . . .”

We exclude the acts of violence in the hallway at the entrance to D-Block. Although Grenoble was placed at the other end of the hallway, and at some intermediate point in the hallway, plaintiff testified that he did not know where Grenoble was when he was “pushed in D-Block, like they was hitting me like for not — they weren’t minutes, and they just ripped my clothes off.” If then there is to be liability, it must generate from Grenoble’s earlier presence in the hallway or corridor between B-Block and D-Block.

The mere fact of presence of a superior officer would not be sufficient to impose liability even under the district court’s theory. Yet presence is evi-dentiary on the facts of actual knowledge of and acquiescence in the unlawful acts of the subordinates. Even if we were to adopt the rule of law as stated by the trial court (in view of our decision in Curtis v. Everette, 489 F.2d 516 (3d Cir. 1973)), the burden is on the plaintiff to prove the facts of actual knowledge and acquiescence.

In an attempt to establish Grenoble’s presence during the beating plaintiff testified that when he came out of B-Block he saw the defendant directly behind twenty guards. The beating, according to plaintiff, began five or six seconds after he saw the defendant. However, there was not one iota of direct evidence that Grenoble was present during the crucial time period — the five or six minute beating; nor was there evidence that Grenoble saw the plaintiff being beaten. Indeed, although there is evidence that plaintiff saw Grenoble at one time, there is no direct evidence that Grenoble ever saw plaintiff. Moreover, there is no proof that the defendant knew that the guards who participated in the beating had engaged in similar beatings in the past. The absence of this evidence is crucial to plaintiff’s case, for in Curtis v. Everette, supra, we reversed the dismissal of a complaint which alleged, inter alia, that “defendants had actual knowledge of the dangerous nature and propensity of [plaintiff’s attacker] Everette.” In that same case we affirmed the court’s dismissal of the complaint as to other defendants and stressed that “[t]here [were] no allegations that . . . [the defendants] had reason to know . . . [that plaintiff’s attacker] would commit such an assault or that similar assaults had taken place.” (489 F.2d at 521)

We would be more constrained to find actual knowledge and acquiescence if plaintiff had proved defendant’s presence throughout the entire five or six minute beating. Likewise, if plaintiff had proved that Grenoble saw him being beaten, or if there were evidence of a history of such episodes by the participating guards, we would be hard put to hold that a trial court’s finding of actual knowledge was clearly erroneous. Had this interlude been an isolated incident that day, we could invoke the laws of probability to conclude that the defendant remained in one spot to deal with the solitary troublemaker. But that is not this case. Putting plaintiff’s incident in its proper perspective, his beating took place immediately after a major disturbance in B-Bloek in which knives and daggers were used to assault two prison guards. By his own admission, plaintiff’s participation in the assault was minimal; he attacked the bleeding Sergeant Bartlebaugh with physical force only. Other prisoners used knives and daggers. Therefore, it is just as reasonable to conclude that Grenoble was looking after other facets of the prison disturbance, i. e., apprehending the prisoners who used knives and daggers, as it is to conclude that he remained at the scene of plaintiff’s beating. Assuming without conceding the correctness of the district court’s statement of the law, the brute fact remains that the district court’s findings of actual knowledge and acquiescence are completely devoid of minimum evidentiary support and are, therefore, clearly erroneous. Krasnov v. Dinan, supra, 465 F.2d at 1302.

The judgment of the district court will be reversed and the proceedings remanded with a direction to enter judgment in favor of the defendant Grenoble.

SEITZ, Chief Judge

(concurring and dissenting).

I believe that we should remand this case for reconsideration by the district judge, rather than entering judgment for the defendant.

I am willing to accept as applicable to Section 1983 actions the legal principle followed by the district court that “[w]hen a superior personally directs his subordinates to do acts, or when he has actual knowledge of their acts and acquiesces in them, he is regarded as having been personally involved and is liable for his own conduct, not on the basis of respondeat superior but because of his direct personal involvement.”

It is not entirely clear, however, which of the two alternative tests contained in this statement the district court applied. The court’s statement that it had “no difficulty in concluding that the defendant Grenoble was in charge of the prison guards and had complete control over their actions . . . ” is ambiguous at

best. It provides no indication whether the court found that the defendant actually ordered the beating or that the defendant had actual knowledge of the acts of his subordinates and merely acquiesced in them.

The court’s emphasis on the answers to plaintiff’s interrogatories seems to indicate that the court found that defendant actually ordered the guards to beat plaintiff.. The district judge in his memorandum and order, however, points to nothing, other than the answers to the interrogatories, to support his conclusion that plaintiff was beaten by prison guards acting on specific directions from the defendant. Nor can I find in the record any other basis for such a conclusion.

Do the answers to interrogatories executed by defendant’s counsel, and of which the district court took judicial notice, supply the missing ingredient? I am satisfied that they do not because, as Judge Aldisert says, they were not signed by the defendant, were not under oath, and, of critical importance, were not introduced into evidence. Nor do the answers constitute matter which is the proper subject of judicial notice.

Thus, the district court had no permissible basis for inferring that the defendant gave orders to beat plaintiff. Similarly, the answers to the interrogatories cannot be used as the basis for a finding that defendant had knowledge of and acquiesced in the beatings. It does not, however, inexorably follow that judgment should be entered for defendant.

Had the district court judge confined himself to the evidence, I cannot say whether he would have found knowledge and acquiescence on the part of the defendant to the beating after plaintiff had been effectively subdued. While I do not intimate that such a finding would be mandated by the record, I cannot say that the record could not support such a finding.

There was evidence placing the defendant at the scene both immediately before and immediately after the first incident in which the plaintiff was beaten. Possibly, because of its erroneous reliance on the answers to the interrogatories, the district court did not focus on this evidence. I would therefore remand and direct the district court to make properly based findings and draw conclusions concerning defendant’s knowledge of and acquiescence in the beatings at the critical time.

      . Unfortunately, this is an example where one state assistant attorney general diet not know what other assistant attorneys general had done in this ease. Incredibly, the trial assistant attorney general did not have a copy of the pleadings with him at trial, stating, “My file doesn’t reflect an answer being filed by our office.” The contrary is true. An answer was filed on November 26, 1969, by William O. Sennett, Attorney General, by David W. Rutstein, attorney-at-law, and Frank P. Lawley, Jr., Deputy Attorney General. The following colloquy took place between the court and Mr. Minkin :
      THE COURT: There was an answer filed.
      MR. MINKIN: O.K.
      THE COURT: So, the question of venue is waived.
      MR. MINKIN: Waived.
      At the close of jdaintiff’s case Mr. Minkin moved for a dismissal for lack of subject matter jurisdiction, or in the alternative, for dismissal for failure to state a claim upon which relief could be granted. Then again, at the conclusion of all testimony, Mr. Mink-in moved for dismissal for failure to state a claim upon which relief could be granted. At neither time did he resurrect the venue question.
      Judge Lord, at the conclusion of testimony, was “a little concerned” about the venue question. He observed that the defendant’s Answer could be construed as raising an issue as to venue. In paragraph 1 of the Answer there appears the following statement: “ [I] t is denied that the United States District Court for the Eastern District of Pennsylvania has jurisdiction over this action.” Strictly speaking, the Eastern District had jurisdiction, but venue did not lie. It was at least arguable that the averment qualified as an intention to challenge venue. However, Mr. Minkin did not comment on this matter, despite the court’s specific request for comment from both counsel.

      . Q. O.K. Now, after that assault on Bartlebaugh was completed, did it end?
      A. Yes.
      Q. What happened after it ended?
      A. I was on my hands and knees, you know, like all fours, I was on tire floor.
      Q. Yes. How did you get there?
      A. I wrestled Mr. Bartlebaugh to the floor.
      * * sjc $ í¡:
      Q. You were on your hands and knees?
      A. Yes, sir.
      Q. How was Bartlebaugh ; what was his position?
      A. He was laying on the floor.
      Q. On his back?
      A. On his back.
      Q. And you were on your hands and knees ?
      A. That is right.
      s¡! si! s¡: s¡; sfc
      BY THE COURT:
      Q. After Mr. Bartlebaugh was on the floor and you were on your hands and knees on the floor, what did you do then?
      A. The door came open then. . . . And Mr. Manchester and Mr. Truxton came in. . . . Mr. Manchester is a guard, security guard, and Mr. Truxton was the psychiatrist at Camp Hill. And Mr. Manchester sprayed me with the Mace, and I just laid there until it like started choking me, ....

      . Q. Mr. Bracey, I am asking you a question : Did you see anyone with a knife or dagger in his hand?
      A. Yes, I did.
      Q. They were attacking Sergeant Bartle-baugh at that time; is that correct ?
      A. Let me say: Mr. Bartlebaugh went around the desk and like they went around the desk.
      Q. They were after him with knives and daggers?
      A. That’s the direction they went.
      Q. Was Mr. Bartlebaugh bleeding when you tackled him?
      A. Yes, he was.
      Q. Do you know whether or not he was bleeding from the puncture wound of a knife or dagger?
      A. No, I don’t, no.

      . When asked what effect did the Mace have on him, he said: “It was like a blinding, you know, a glare, it gave me a real strong glare, and it was like choking me, my breathing. ... It lasts about six or seven or eight minutes. . . . ”

      . Q. Was it other prisoners or guards or who?
      A. They had a circle around the door, around the complete' door of B-Block when I went out.
      Q. Who had a circle? Who is “they”?
      A. The officers that was in the hallway when I entered. Like when I went out in the hallway it was Major Grenoble, acting Major Grenoble, and Lieutenant, and they were out in the hallway and they encountered me when I went out in the hallway or met me.
      Q. Were there only two of them?
      A. No. There were 20 or more officers out there.

      . BY MR. MINKIN:
      Q. Where was Mr. Grenoble when that guard hit you?
      A. I don’t know where he was at then.
      Q. Where was Major Grenoble when your clothes were ripped off you?
      A. I don’t know where be was at then.
      Q. Do you know where Major Grenoble was when you say they pushed you down the steps into the hall?
      A. No, I don’t.

      . An independent ground for reversal for a new trial is dictated by the district court’s improper use of defendant’s answers to interrogatories. Rule 33(a), F.R.Civ.P. provides : “Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them.” Heilig v. Studebaker Corporation, 347 F.2d 686, 689 (10th Cir. 1965), emphasized that “answers to interrogatories do not become evidence in the case, unless voluntarily introduced. . . . ” Patterson Oil Terminals, Inc. v. Charles Kurz & Co., 7 F.R.D. 250, 251 (E.D.Pa.1945), held: “The answers to interrogatories are not considered evidence until offered, as such, at trial. Coca-Cola Co. v. Dixi-Oola Laboratories, Inc., D.C., 30 F.Supp. 275.” See also 8 Wright, Federal Practice and Procedure, § 2180 at 572.
      Here, the critical interrogatory and answer, which were not introduced into evidence state:
      5. Who was the highest person in command present during the incident?
      At the scene was Captain John Grenoble and Lieutenant Yucha.
      a). Were all actions carried out through his orders? Yes.
      The record discloses that the answers to plaintiff’s interrogatories were signed by Grenoble’s attorney, and they were not made under oath. The trial court stated: “Well, if you believe the plaintiff and if you believe the defendant’s answers to interrogatories, there is plenty of evidence” to show participation by defendant in this case. The court was told that Grenoble did not see the interrogatories, and it was reported that Attorney Minkin had answered them. Mr. Minkin said: “[I]t hasn’t been introduced as evidence.” The court responded : “Oh ! I take judicial notice of what is in the record.” Therefore, the court ruled that it was taking as an admission of fact that Grenoble gave orders to have the plaintiff beaten. This ruling by the trial court is sufficient to reverse the judgment and order a new trial for three reasons: First, the answers to plaintiff’s interrogatories were not made by Grenoble as required by Rule 33(a) ; Second, the answers were not made under oath; Third, the answer was not introduced into evidence, and it was error to take judicial notice of it. The answer to Interrogatory No. 5 was part and parcel of the disputed event; in no way can it be characterized as a matter of common knowledge or verifiable with certainty by consulting authoritative reference sources.

      . See footnote 6, supra.

      . In Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir. 1973), Judge Friendly discussed at length the defendant warden’s personal responsibility where he was not a participant in the constitutional deprivation. Holding that the warden could not be held liable for the acts of others, Judge Friendly emphasized, in part, that “there had been [no] . . . history of previous episodes requiring the warden to take ... action” as was the case in Wright v. McMann, 460 F.2d 126 (2d Cir. 1972).

      . There is no evidence of a time lag between plaintiff’s assault on Sergeant Bartle-baugh and the beatings received thereafter.

      . The court stated that “in his answers to interrogatories [defendant] admitted that he was present at all times and that all actions of the guards were carried out at his orders.”
      The key interrogatory and answer is:
      “5. Who was the highest person in command present during the incident?
      At the scene was Captain John Grenoble and Lieutenant Yueha.
      a). Were all actions carried out through his orders?
      Yes.”


source: Caselaw Access Project

author: JONES, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joel E. COOK, Defendant-Appellant.
    No. 73-3265.
    United States Court of Appeals, Fifth Circuit.
    May 23, 1974.
    Melvin M. Engel, Houston, Tex., for defendant-appellant.
    Scott P. Crampton, Asst. Atty. Gen., Tax Div., Meyer Rothwacks, Chief, Appellate Tax Div., Jonathan S. Cohen, Atty., Dept, of Justice, Washington, D. C., James R. Gough, Asst. U. S. Atty., Anthony J. P. Farris, U. Si Atty., Olney G. Wallis, Asst. U. S. Atty., Houston, Tex., Libero Marinelli, Jr., Atty. Tax Div., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before JONES, THORNBERRY and COLEMAN, Circuit Judges.
   JONES, Circuit Judge:

The facts are not complex and are not in dispute. The question presented for decision is a narrow one. On July 6, 1962 a tax assessment was made by the United States against the appellant, Joel E. Cook. On February 24, 1965 Cook submitted to the Treasury Department an offer in compromise on a printed form furnished by the Internal Revenue Service. Included in the offer in compromise, and a part of the printed form, is the provision that,

“The undersigned proponent waives the benefit of any statute of limitations applicable to the assessment and/or collection of the liability sought to be compromised, and agrees to the suspension of the running of the statutory period of limitations on assessment and/or collection for the period during which this offer is pending, or the period during which any installment remains unpaid, and for one year thereafter.”

At the end of the printed form and following the offer in compromise is a blocked space with a provision reading:

“Waiver of statutory period of limitations is hereby accepted by the undersigned.”

followed by a line for signature with “District Director of Internal Revenue” under it, and a space for the date.

The District Director signed the acceptance of waiver on March 5, 1965. On September 17, 1965 the offer in compromise was rejected. On January 5, 1970 the Government brought an action against Cook asserting the tax liability. Cook set up the bar of limitations. The statute of limitations provides that a tax assessment may be collected by a proceeding in court only if such proceeding is begun

“(1) within 6 years after the assessment of the tax, or
“(2) prior to the expiration of any period for collection agreed upon in writing by the Secretary or his delegate and the taxpayer before the expiration of such 6-year period.” 26 U. S.C.A. § 6502(a).

The quoted statute was implemented by a Treasury Regulation in these terms,

“The 6-year period of limitation on collection after assessment of any tax may, prior to the expiration thereof, be extended for any period of time agreed upon in writing by the taxpayer and the district director. The extension shall become effective upon execution of the agreement by both the taxpayer and the district director.” 26 C.F.R. § 301.6502-1 (a) (2) (i).

If the suspension of the running of the statutory period of limitations commenced on February 24, 1965, the date when the taxpayer Cook submitted the offer in compromise, which incorporated a waiver of the running of limitations, the action was timely brought. It is so contended by the Government. It was so decided by the district court. On the other hand, if the suspension period did not commence until March 5, 1965, the date of the acceptance of the waiver by the District Director, the action was brought too late and is barred by limitations. Such is the contention of the taxpayer Cook. Such is the conclusion of this Court.

The district court followed and the Government here relies upon a number of decisions of this Court holding that the waiver is effective when signed by the taxpayer and delivered to the District Director regardless of when or whether it is signed by the District Director. John M. Parker Co. v. Commissioner of Internal Revenue, 5th Cir. 1931, 49 F.2d 254; Shambaugh v. Sco-field, Collector, 5th Cir. 1942, 132 F.2d 345; Myrick v. United States, 5th Cir. 1961, 296 F.2d 312. The district court took note of the Treasury Regulation above cited and commented that this Court could not have been unaware of the Regulation in rendering its decision made in 1961. It is to be noted here, however, that all of the prior decisions of this Court were made in cases arising under the Revenue Act of 1939 or under earlier statutes. The provision of the Regulation that the extension shall become effective upon execution of the agreement by the taxpayer and the district director has no counterpart in the prior Regulations. Rohde v. United States, 9th Cir. 1969, 415 F.2d 695. A Treasury Regulation which is a reasonable interpretation of a section of the Internal Revenue Code has the force and effect of law. Whirlwind Manufacturing Company v. United States, 5th Cir. 1965, 344 F.2d 153.

In Rohde v. United States, supra, it was held that a taxpayer’s waiver of the statute of limitations, submitted as part of his offer in compromise, was not effective without the District Director’s signature. This decision construed and applied the Regulation. The Court said:

“The event which fixes the effective date of a waiver could have been the unilateral act of the taxpayer in signing the waiver, but the statute does not say that. The statute requires an ‘agreement’ of the taxpayer and the Government. True ‘agreement’ does not mean ‘contract’ in this setting. It means expressed assent. But the statute is still unclear about the effect which the lack of expressed assent has upon the validity of the waiver. That ambiguity is resolved by [the Regulation] .
“The Treasury Department could not have chosen plainer words to state that the event which makes the waiver operative is the signature of the District Director. It is his act in signing the waiver that stops the limitations clock .
“In the context of the Regulation, . the word [execution] means ‘signed,’ there is nothing for either the director or the taxpayer to ‘perform.’ That the Treasury Department construes ‘execution’ as ‘signed’ is evidenced by the very form provided by the Government to the taxpayer in this case. It recites acceptance of the waiver by the Commissioner’s delegate, states that the offer in compromise will be considered, and provides a signature line for the Commissioner’s delegate.” 415 F.2d 695, 698.

The sound reasoning of the Rohde case applies in all respects to the case here decided.

The Government argues that the date of the District Director’s signing the acceptance of the waiver is irrelevant, because appellant’s offer was “pending” as soon as it was received at the District Director’s office. The word “pending” is taken from the offer in compromise form. However, the argument that the District Director’s signature has no significance is expressly inconsistent with the language of the Regulation.

It is our conclusion that the Regulation is valid and binding upon the Government, that the waiver contained in the offer in compromise is not effective until there has been an agreement evidenced by an execution by signing of the District Director, that recovery of the disputed tax is barred by the statute of limitations, and that the judgment of the district court must be reversed.

The judgment of the district court includes a tax claim which is not included in the controversy before us. Therefore, the cause will be remanded to the district court for the entry of an appropriate judgment.

Reversed and remanded.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellant, William P. Thompson et al., Intervenors-Appellants, Patsie Primm, as next friend of Bobbie Lewis Knight, et al., Intervenors, v. WILCOX COUNTY BOARD OF EDUCATION et al., Defendants-Appellees.
    Nos. 71-3018, 73-3543.
    United States Court of Appeals, Fifth Circuit.
    May 2, 1974.
    Rehearing and Rehearing En Bane Denied June 7, 1974.

      Charles S. White-Spunner, U. S. Atty., Mobile, Ala., Elliott L. Richardson, U. S. Atty. Gen., J. Stanley Pottinger, Asst. U. S. Atty. Gen., Brian K. Landsberg, John R. Scott, Attys., Dept, of Justice, Washington, D. C., for plaintiff-appellant.
    A. J. Cooper, Prichard, Ala., Jack Greenberg, Norman J. Chachkin, New York City, for Thompson and others.
    W. McLean Pitts, Selma, Ala., T. W. Thagard, Montgomery, Ala., L. Y. Sad-ler, Jr., Camden, Ala., William J. Baxley, Atty. Gen. of Ala., Gordon Madison, Asst. Atty. Gen., Montgomery, Ala., for defendants-appellees.
    Solomon S. Seay, Jr., Montgomery, Ala., for other interested parties.
    Before THORNBERRY, MORGAN and CLARK, Circuit Judges.
   PER CURIAM:

Litigation with regard to the Wilcox County, Alabama school system began in November of 1965. At that time, the then totally segregated system enrolled 4300 black and 1500 white children. The latest semi-annual report of the Wilcox County School Board (School Board) discloses that at the opening of the Fall 1973 session the system enrolled 3,733 black and 109 white students. All but four of the white students in the system now attend Wilcox County High School. The system’s subsequent history discloses a rapidly declining white enrollment. Economically the county is among the nation’s poorest, and some of the impediments to achieving a unitary school system are directly attributable to fiscal disabilities under a system of financing in which declining enrollment and lack of local effort reduce state funding. The present appeal was initiated by the United States, the original plaintiff in the litigation, after the district court’s order and report dated September 26, 1973. The United States urges error in the district court’s imposition of a minority to minority transfer policy, its refusal to implement the plan submitted by the Title IV Center of the University of South Alabama (Title IV Center) insofar as this plan called for the consolidation of the formerly all-white and all-black schools in the Camden attendance area, and the court’s refusal to create a countywide Advisory Committee.

An appeal has also been taken by the plaintiff-intervenors (a group comprised of national churchmen, teachers, students and parents of students in the school system). These intervenors raise the same three contentions as are advanced by the United States. In addition, they urge as error the district court’s failure to order back pay relief for certain defense and emergency certified teachers whose contracts were not renewed, the refusal to adopt the Title IV Center’s transportation plan, the failure to require immediate action to accomplish the matters covered in our mandate of January 10, 1972, the failure to prohibit the charging of janitorial fees to students, the refusal on financial grounds to order full implementation of the Title IV Center plan and to appoint a receiver, the failure to adopt findings of fact and conclusions of law, the failure to require the defendant Alabama State Department of Education to provide professional and economic assistance to the School Board and the postponement of the entry of an order requiring the payment of legal fees to the attorney representing the intervenors.

These appeals were collectively docketed as Cause No. 73-3543 and were consolidated with the prior and still pending appeal, Cause No. 71-3018. This court held a prehearing conference pursuant to FRAP 33. Subsequently the parties filed supplemental briefs and reached agreement on the issue of attorneys’ fees; this issue has now been resolved and is embodied in a decree of this court entered on February 25, 1974.

On March 7, 1972 the district court entered an order pursuant to this court’s mandate of January 10, 1972 which directed the School Board to:

(1) desegregate the faculty and staff of the district pursuant to Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1970);

(2) institute majority to minority transfer and notice provisions pursuant to Ellis v. Board of Public Instruction of Orange County, Florida, 423 F.2d 203 (5th Cir. 1970) ;

(3) reexamine and, if necessary, reconstitute, the district’s transportation system pursuant to Singleton, supra-,

(4) adopt policies covering construction, site selection and student transfers pursuant to Singleton, supra;

(5) file semi-annual reports as required by United States v. Hinds County School Board, 433 F.2d 611 (5th Cir. 1970); and

(6) report to the district court by March 30, 1972 as to Items (1), (2) and (3).

On October 5, 1972 a consent order was entered which stipulated documents and testimony of teachers and ordered the School Board to:

(1) achieve accreditation in every district school where financially possible ;

(2) request the Title IV Center to evaluate the system and make recommendations as to accreditation;

(3) assure that school children get textbooks made available by the State Department of Education;

(4) cease charging $7.50 per semester to students for janitorial service;

(5) institute the teacher and staff criteria set out in United States v. Texas Education Agency (La Vega School District), 459 F.2d 600 (5th Cir. 1972);

(6) reinstate 16 named teachers with back pay;

(7) consider under non-racial criteria the entitlement to reinstatement of 14 defense and emergency certified teachers, but without back pay unless the court so orders;

(8) report by November 10, 1972 on all teacher actions.

The State Department of Education was ordered to assist in achieving accreditation and report to the court thereon. On this same date the court advised the parties in open court that further noncompliance by the School Board with the spirit and intent of its orders would result in the issuance of a contempt citation.

On May 15, 1973 the court entered an order requiring the School Board to properly administer all phases of the Title I program. In a separate order of the same date it enjoined the School Board, as to traditionally black schools in the system, to:

(1) upgrade deficient facilities according to the recommendations of the Title IV Center;

(2) maintain adequate sanitation in restrooms;

(3) keep buildings in minimum repair;

(4) protect students from and adequately ventilate open heating stoves.

The School Board was further ordered to:

(a) remove from the records of all black students entries reflecting their expulsion for attempts to enroll at Wilcox County High School and assist such students to make up time and credits lost due to expulsion;

(b) develop a uniform student disciplinary code;

(c) end racial discrimination against students as to service, facilities and extra-curricular activities; and

(d) end racial discrimination as to parents and the public in school-related matters, graduation exercises, athletic activities and parent-teacher meetings.

The State Board of Education and the State Superintendent of Education were ordered to comment on the educational desirability of implementing the school plan originated by the Department of Health, Education and Welfare. Finally, the court ordered the School Board to:

(1) maintain Singleton faculty ratios while accommodating teachers, schools and minimizing the hardships of reassignment;

(2) keep records of all student transfers out of the system;

(3) maintain inventories of additional materials;

(4) act wherever possible to reduce teacher-pupil ratios, and

(5) supplement the Board’s semi-annual reports with special information on the items covered by the concluding portions of this order.

On September 26, 1973 the district court entered an order and report, expressly in response to our January 10, 1972 mandate, which required the establishment of a 12-grade school at Camden Academy and a separate 12-grade school within the same attendance area at the Wilcox County High School facility. The remaining recommendations of the Title IV Center report filed on June 28, 1973 relating to school district consolidations and pupil assignments were adopted by the court. The School Board was ordered annually to file copies of its operating budget and property inventory with the court. School principals were ordered to account properly for funds. The School Board was prohibited from making capital expenditures without prior court approval. The School Board was ordered to:

(1) report new funds and fund sources to the court;

(2) make teacher assignments pursuant to Singleton;

(3) provide janitorial service, maintenance and upkeep for each school;

(4) adopt the Title IV Center’s suggested Handbook of Student Rights;

(5) evidence its overall intent to comply with all Title IV Center recommendations, except as to Camden area consolidations and as to the creation and utilization of a countywide advisory council.

The order prohibited the introduction of dogs or weapons upon school campuses, and enjoined all parties to seek outside financial assistance for the system and pretermitted ruling on attorneys’ fees.

THE MAINTENANCE OF DUAL SCHOOLS IN THE CAMDEN AREA AND THE INSTITUTION OF A MINORITY TO MINORITY STUDENT TRANSFER POLICY

The district court, in the face of a preponderant black student majority and a white student exodus, sought to preserve some semblance of racial integration by permitting the relative handful of white students to elect to concentrate themselves in a formerly all-white facility — the Wilcox County High School. To accomplish this the court established parallel educational institutions at Camden Academy and at Wilcox County High School, both located within a mile of each other in the Camden attendance area, and by permitting the privilege of transfer to white students only. Such an approach is not without some precedent. See, Singleton, swpra, 419 F.2d at 1221 (St. John the Baptist Parish, Louisiana). In this case this court, en banc, found it unnecessary to require the division of a small number of minority whites amongst five schools in one portion of a predominantly black school system. However, neither the physical situations of the two school districts nor the remedies utilized by the court there' and here are sufficiently similar to warrant affirmance. St. John the Baptist Parish is divided by the Mississippi River. Its East bank schools were operated by the district on an integrated basis. The district court permitted West bank students to exercise freedom of choice in selecting the school they wished to attend. In contrast, the record here indicates that the Wilcox County School Board has yet to demonstrate objectively its will to operate this system in a manner calculated to remedy past discriminatory practices and achieve unitary status. In Wilcox County, the minority to minority transfer provision imposes a condition which is racially biased in every respect except literal appellation. If and when this School Board removes itself from the shadow of contempt, the district court may then consider whether a racially neutral freedom of choice plan could be of benefit in bringing about a unitary system. Because that day has not yet arrived, the district court erred in rejecting the general concept of the plan submitted by the Title IV Center for the consolidation of the Camden area schools, and in adopting a minority to minority transfer provision. These portions of the order appealed from are reversed. The district court is directed to implement the Title IV Center recommendations for Camden area schools effective at the commencement of the Fall 1974 school term.

COUNTYWIDE ADVISORY COUNCIL

Believing that the school system was “over-committeed” and seeing no benefit from the creation of another school-related group, the district court rejected the Title IV Center’s recommendation for the creation of an advisory committee drawn from the entire county. This court is advised that each school is now served by trustees who, under Alabama law, represent the interests of the school in general and who deal with the School Board in general matters regarding their particular school. Most, if not all, of the schools in the system also utilize the traditional parent-teacher organizations, which also function on an individual school basis. The record evidence of poor relationships and lack of communication between teachers, students and their parents on the one hand and the School Board on the other, of open official encouragement of whites to frustrate unitary goals, and the fact that the district court considered it necessary to enjoin the School Board to permit the non-discriminatory function of parent-teacher associations as late as May of 1973, all operate to persuade this court that school trustees and parent-teacher organizations are not viable substitutes for a system-wide group chosen by the court to affect liaison between the community, school officials and the court in the manner prescribed in Singleton, Ellis and Hinds County, supra. The district court is directed to create such a group promptly upon the remand of this case. Should the district court determine that the type of committee envisioned in the recommendation of the Title IV Center would be superior to a typical biracial committee, it may choose to implement that portion of their plan.

STATUS OF DEFENSE AND EMERGENCY CERTIFIED TEACHERS

This issue raised by the intervenors was initially dealt with by the district court’s decree of October 5, 1972. The United States represents that it was subsequently the subject of correspondence from the court to counsel on April 20, 1973, and that, on August 22, 1973, it filed a memorandum containing certain financial information in compliance with the court’s request. The parties are presently under a directive from the district court to prepare an additional consent decree on this issue. The matter is one which should be resolved by the district court in the first instance. We do, however, note that the United States continues to contend that six other black teachers were discriminatorily dismissed in November 1971. We are confident that the entire area of discriminatory teacher and staff dismissals and pay entitlement, which was a matter covered by our 1972 remand, will have the careful attention of the district court. We decline to require the entry of any specific order on this matter in the present appeal.

THE TITLE IV CENTER’S TRANSPORTATION PLAN

In its order of March 7, 1972 the district court expressly ordered the reexamination and reconstitution of the School Board’s transportation system under Singleton, supra. In its order of September 26, 1973 it clearly indicated approval of the concepts contained in the Title IV Center plan and provided that compliance with the court’s mandate would be measured by the' amount of implementation of the Title IV Center plan which the School Board could achieve. As with teacher and staff discrimination problems, solution of the complex problems interwoven into the creation and operation of an efficient non-diseriminatory transportation system for Wilcox County schools must be the responsibility of the district court in the first instance.

FIXING SPECIFIC TIMES FOR ACCOMPLISHMENT OF DESEGREGATION GOALS

Here again it is for the district court to determine whether the adoption of a timetable is a worthwhile step in dealing with the myriad problems of desegregating the Wilcox County School system. On the basis of the present record, we are not convinced that the district court is unwilling or unable to require compliance with the time-urgency mandate of Alexander v. Holmes County, 396 U.S. 19, 90 S.Ct. 29, 24 L. Ed.2d 19 (1969). We decline to require the adoption of such a timetable.

STUDENT FEES

The present record is without evidence indicating that students are being assessed fees for the 1973-74 school year. Such assessments were specifically enjoined by the district court’s order of October 5, 1972. Paragraph 12 of the order of September 26, 1973 requiring the School Board to provide janitorial service, does not provide for the collection of any student fees and none may be collected. The assessment of any course fees except those which have been traditional with this school system, was enjoined by the consent decree of October 5, 1972. The terms of that order are correct and are sufficient to cover the claims advanced here. Any asserted violations should be considered by the court below.

COMPLETE IMPLEMENTATION OF TITLE IV CENTER PLANS AND APPOINTMENT OF A RECEIVER

We do not interpret the district court’s order of September 26, 1973 to require any less than the fullest possible implementation of the Title IV Center plan (except as discussed first above) which the financial resources of the county and system will permit.' Plan implementation is made the standard for School Board compliance with the spirit of the court’s decree. The desirability of further specific relief as to particular portions of the plan should be addressed to the court below. The record does not demonstrate any inability of the district court to discharge its judicial functions in this cause without the assistance of supporting personnel in the form of a receiver or some type of special master. No finding to this effect has been made. Until that court considers and decides the issue, any directive by this court to take such action would be premature.

FAILURE TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW

The January 10, 1972 mandate of this court directed the district court to supplement the record in this ease with findings of fact and conclusions of law as to whether maintenance and equipment were being handled by the district on a non-discriminatory basis, whether student expulsions and suspensions and textbook distribution were non-discriminatory, whether the School Board had discriminated in discharging, hiring or promotion of faculty or staff, and the manner in which actual pupil results under the court’s plan compared with the attendance projected under the plan initially submitted by the Department of Health, Education and Welfare. While some of these areas are now moot, there does appear to be a desirability, if not a necessity, for the court to enter findings and conclusions as to some of these areas and others discussed on the present appeal. An order by the district court making specific fact determinations on the issues now pending should be made to provide for this cause the bench marks essential to charging a course which will bring this litigation to the most prompt, just determination possible.

DIRECTIONS TO THE DEFENDANT, ALABAMA STATE DEPARTMENT OF EDUCATION TO PROVIDE PROFESSIONAL AND ECONOMIC ASSISTANCE TO THE WILCOX COUNTY SCHOOL BOARD

In its order of October 5, 1972 the court ordered the State Department of Education to assist the School Board as to matters of accreditation. In its order of May 15, 1973 the State Board and the State Superintendent of Education were ordered to comment on the educational desirability of the Health, Education and Welfare plan and to recommend alternatives. The order of September 26 enjoins all parties to seek outside financial assistance and to assist the Board with other financially related efforts. The Board has taken the position that its direct financial involvement is limited by Alabama law to allocation of funds based upon average daily attendance and that it has no authority to make “a special ease” of Wilcox County. Without prejudice to further consideration of the need for specific relief of this type, we decline to require action in this regard now.

The order appealed from is in part affirmed, in part reversed, and the cause is remanded for further consideration not inconsistent with this order.

Affirmed, in part; reversed, in part; and remanded.

      . The school by school enrollment is as follows:

      . No decision of this court requires that the teachers in any system or at any school be maintained at any arbitrary racial ratio. Singleton contemplates an initial reassignment so that the racial ratio at every school re-fleets the systemwide ratio, followed by the utilization of a non-discriminatory hiring, firing and assignment policy thereafter. See, e. g., Carter v. West Feliciana Parish School Board, 432 F.2d 875 (5th Cir. 1970).

      . The United States proposed findings of fact and conclusions of law to the court below and such findings do not appear to have been challenged. Whether all or any portion of these findings are to be used is of course for the district court to determine initially.


author: JOHN R. BROWN, Chief Judge:

text:
    Chilton THORINGTON and Harmon Wages, Plaintiffs-Appellants, v. William K. CASH, Defendant-Appellee.
    No. 73-3611
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 20, 1974.

      James B. Hiers, Jr., Atlanta, Ga., for Chilton Thorington.
    Taylor W. Jones, Atlanta, Ga., for Harmon Wages.
    Ronald L. Reid, Ben F. Johnson, III, Atlanta, Ga., for defendant-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   JOHN R. BROWN, Chief Judge:

Reverend Chilton Thorington, a Georgia resident, first met William K. Cash, a Florida resident, at a wedding in Atlanta in 1969 as each performed his role of minister and best man. Once again Thorington and Cash have met in Atlanta, this time in more pedestrian although more partisan roles as Plaintiff and Defendant in the Federal District Court (now Appellant and Appellee). The present reunion has been short-lived however. Upon determining that the earlier encounter coupled with other assorted activities did not provide the bare minimum of Georgia contacts constitutionally required to sustain the exercise of the Georgia long-arm statute, the District Court withdrew its jurisdictional welcome mat.

Since in our Erie role we are convinced that the courts of Georgia would find Cash amendable to service of process under subsection (b) (tortious act within) of the Georgia long-arm statute based on Thorington’s allegations that Cash engaged in pre-1970 extraterritorial tortious conduct causing injury in Georgia by sending material misrepresentations into Georgia upon which Thorington ultimately relied, and since we have no doubt that the demands of due process are similarly satisfied, we must reverse and remand for yet another encounter in Atlanta.

Due to the Georgia legislature’s 1970 amendment of the long-arm statute rebuffing a restrictive interpretation by the Georgia Court of Appeals (see text accompanying note 8, infra) our decision is of limited temporal applicability since we necessarily deal only with external tortious activity with injurious internal effects occurring between March 10, 1966 — the effective date of subsection (b) (tortious act within) and July 1, 1970- — -the effective date of subsection (c) (act without/tortious injury within).

Appellants Thorington and Wages filed suit in the District Court for the Northern District of Georgia seeking to rescind a limited partnership agreement in which Appellee Cash is the general and managing partner. The grounds were that Cash (1) fraudulently induced them to enter into the partnership through a wilful misrepresentation of material facts, (2) unlawfully sold them an interest in the partnership in violation of the Georgia securities laws, (3) was grossly negligent in managing the partnership assets, and (4) violated the specific terms of the partnership agreement.

Thorington and Wages sought to recover their respective investments of $10,000 and $15,000 plus interest, attorneys fees, and punitive damages. They assert that the Court may exercise personal jurisdiction over non-resident defendant Cash pursuant to subsections (a) (transacts any business) and (b) (tortious act within) of the Georgia long-arm statute, note 3, supra.

In the complaint, a personal affidavit, and a response to Appellee’s motion to dismiss, Thorington alleged the following facts in support of the Court’s jurisdiction.

During their initial meeting at the Atlanta wedding, Cash “mentioned” to Thorington that he was engaged in a limited partnership which might prove to be a profitable investment opportunity for Thorington.

Following the wedding Cash and Thorington engaged in negotiations by mail and telephone regarding Thoring-ton’s participation in the limited partnership. While Cash apparently generally called or wrote-f-rom Florida, Thor-ington asserts that on certain occasions Cash informed him that he was calling from a hotel in Atlanta. Thorington further asserts that during the course of these negotiations, Cash made certain misrepresentations of material facts regarding the potential profitability of the partnership investment and on, other matters as well upon which Thorington ultimately relied in entering into the agreement.

In March 1969, Cash mailed a copy of the partnership agreement to Thoring-ton in Atlanta. Thorington there executed the agreement, had it notarized and returned it by mail to Cash in Florida. After the limited partnership suffered financial setbacks in consequence of unsuccessful investments, Appellants initiated this litigation.

The District Court granted Appellee’s motion to dismiss for lack of personal jurisdiction over the defendant under both the (i) transaction of business and (ii) tortious activity subsections of the Georgia long-arm statute.

We need not reach the question of whether Cash transacted any business within the scope of the long-arm statute and the due process clause since with deference to the expertise of the District Court, we find that Thorington has carried his burden of establishing personal jurisdiction over Cash under subsection (b) — the tortious act provision.

Under the circumstances, a brief history of the tortious activity provisions of the Georgia long-arm statute is in order. In 1966 the Georgia legislature enacted subsection (b) which provides jurisdiction over a non-resident who “Commits a tortious act or omission within this State * *

In spite of the broad language of subsection (b), the Georgia Court of Appeals in O’Neal Steel, Inc. v. Smith, 1969, 120 Ga.App. 106, 169 S.E.2d 827, vacated on other grounds on remand, 225 Ga. 778, 171 S.E.2d 519; followed in Castleberry v. Gold Agency, Inc., 1971, 124 Ga.App. 694, 185 S.E.2d 557, held that subsection (b) was inapplicable where a non-resident committed a tor-tious act outside of Georgia which caused injury within the state. This policy decision was short-lived.

Presumably in response to this decision, the Georgia legislature enacted subsection (c) which provides jurisdiction over a non-resident who

“Commits a tortious injury in this State caused by an act or omission outside this State, if the tortfeasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this State * * * ”

Ga. Code Ann. § 24-113.1 (c).

In Coe & Payne Co. v. Wood-Mosaic Corp., 1972, 125 Ga.App. 845, 189 S.E.2d 459, the Georgia Court of Appeals considered the applicability of the long-arm statute to certain contractual and tor-tious activities which occurred during 1969. It held that subsection (c) was inapplicable since it was not intended to have retroactive effect. The Court of Appeals further reaffirmed its earlier holdings that subsection (b) did not cover extraterritorial tortious conduct causing injury in Georgia.

The Supreme Court of Georgia granted certiorari. The Supreme Court while taking note of the Court of Appeals holding on the non-retroactivity of subsection (c), did not purport to pass on that issue. Instead it reversed the lower court’s construction of subsection (b) expressly adopting the Illinois rule of Gray v. American Radiator Corp., 1961, 22 Ill.2d 432, 176 N.E.2d 761, to the effect that

“a ‘tortious act’ is a composite of both negligence and damage, and if damage occurred within the state then the tortious act occurred within the state within the meaning of subsection (b) of the Long Arm Statute.”

230 Ga. at 60, 195 S.E.2d at 400-401. The Court further observed that

“In adopting the Illinois Rule, we are impressed by the protective policy for this State’s citizens enunciated so well in the following quote from Nelson v. Miller, 11 Ill.2d 378, 384, 143 N.E.2d 673 (1957) : ‘The foundations of jurisdiction include the interest that a State has in providing redress in its own courts against persons who inflict injuries upon, or otherwise incur obligations to, those within the ambit of the State’s legitimate protective policy.’ ”

230 Ga. at 61,195 S.E.2d at 401.

Since the conduct here in issue occurred during 1969, the parties rely solely on subsection (b). Accordingly, our holding is narrowly limited to the application of subsection (b) (tortious act within) to conduct which occurs prior to July 1, 1970, the effective date of subsection (c) (act without/tortious injury within).

The District Court recognized that “[f]raud and deceit in the inducement to contract are clearly torts and plaintiff has alleged that defendant committed such acts.” It found subsection (b) of the long-arm statute inapplicable, however, primarily on the grounds that Thorington sought the contractual remedy of rescission coupled with punitive damages as relief. That goes only to remedy, and dismissal because of the prayer for relief cuts off a plaintiff in a non-default situation from getting whatever relief the facts entitled him to. In the federal diversity forum, a request for a possibly inappropriate remedy in the pleadings, should not be held to vitiate a proper state law cause of action.

In its expansive interpretation of subsection (b) in Coe & Payne, the Georgia Supreme Court held that long-arm jurisdiction exists over a non-resident whose extraterritorial tortious conduct causes injury within Georgia. That is precisely what Thorington has alleged happened here.

Both in Georgia and elsewhere for purposes of due process, a non-resident who sends a defective product into the forum state or for that matter who simply places the product in the stream of commerce with reason to anticipate that it may find its way into the forum state may well be amendable to service of process if as a matter of state policy the applicable long-arm statute undertakes to go that far.

We see no reason why the same principle is not equally applicable when a non-resident sends material misrepresentations into the forum state with the intention that they be relied upon and where they are in fact relied upon by a resident of the forum state to his detriment. Unlike many of the stream of commerce products liability eases in which the non-resident defendant merely had reason to anticipate that the product would enter the forum state, Cash, in a complaint that fully meets F.R.Civ.P. 8(a), is alleged to have personally transmitted the misrepresentations into Georgia either by mail or telephone, or both.

Although in our Erie quest our sights are on Georgia alone, we think the Georgia courts would agree with the analysis of the First Circuit in Murphy v. Erwin-Wasy, Inc., 1972, 460 F.2d 661 in its application of a similarly worded Massachusetts long-arm statute to corresponding facts.

“We believe that the same is true of the mailing of a fraudulent misrepresentation into a state. We would be closing our eyes to the realities of modern business practices were we to hold that a corporation subjects itself to the jurisdiction of another state by sending a personal messenger into that state bearing a fraudulent misrepresentation but not when it follows the more ordinary course of employing the United States Postal Service as its messenger.
. Where a defendant knowingly sends into a state a false statement, intending that it should there be relied upon to the injury of a resident of that state, he has for jurisdictional purposes, acted within that state.”

460 F.2d at 664. Cf. Bluff Creek Oil Co. v. Green, 5 Cir., 1958, 257 F.2d 83, 5 Cir., 1961, 287 F.2d 66.

Thorington has satisfied both subsection (b) of the Georgia long-arm statute and the minimum contacts requirement of the due process clause. By sending material misrepresentations to Appellant in Georgia with the evident intention that they there be relied upon and by further mailing the contract in question into Georgia for execution, Cash “purposely avail [ed] [himself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 1958, 357 U.S. 235, 253, 78 S. Ct. 1228, 1240, 2 L.Ed.2d 1283, 1298.

We do not determine whether Cash’s contacts with Georgia would be sufficient to satisfy the seemingly more restrictive requirements of subsection (c) (conduct without/tortious injury within — post-1970) since we are Erie-bound by the Georgia Court of Appeals undisturbed ruling in Coe & Payne that subsection (c) does not apply retroactively.

Reversed and remanded.

      . We have been unable to determine from the record whether Appellant Wages participated in the matrimonial ceremony.

      . See International Show Company v. Washington, 1945, 326 U.S. 810, 66 S.Ct. 154, 90 L.Ed. 95.

      . Ga.Code Ann. 24-113.1. Personal jurisdiction over nonresidents of State. — A court of this State may exercise personal jurisdiction over any nonresident, or his executor or administrator, as to a cause of action arising from any of the acts, omissions, ownership, use or possession enumerated in this section, in the same manner as if he were a resident of the State, if in person or through an agent, he:
      (a) Transacts any business within this State; or
      (b) Commits a tortious act or omission within this State, except as to a cause of action for defamation of character arising from the act; or
      (c) Commits a tortious injury in this State caused by an act or omission outside this State, if the tortfeasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this State; or
      (d) Owns, uses or possesses any real property situated within this State.

      . The complaint left doubts as to the details of the respective participation of Appellants in the transactions of jurisdictional significance. Particularly, a dispute existed as to the residency of Wages. While the complaint alleged that Wages was a citizen and resident of Georgia, the sealed Florida certification of limited partnership listed Wages as a Florida resident. Furthermore Wages executed the partnership agreement in Florida.
      Faced with these difficulties, the District Court invited Appellants to clarify the facts pertinent to the jurisdictional determination. Accordingly, Thorington filed a brief and affidavit. Wages failed to respond.
      It is settled that the burden of proof rests on the party seeking to establish jurisdiction over a non-resident. See, e. g., Marival, Inc. v. Planes, Inc., N.D.Ga., 1969, 302 F.Supp. 201, 205; Talcott v. Midnight Publishing Co., 5 Cir., 1970, 427 F.2d 1277. Having been afforded more than an ample opportunity, Wages failed to show that defendant Cash engaged in any activity within the scope of the Georgia long-arm statute with respect to Wages’ claims for relief. Consequently, the District Court properly granted the motion of dismissal with respect to Wages.

      . During this initial encounter, Cash provided Thorington with specific instructions on how to invest in “Broadway Joe’s” — a fast food chain that Cash was helping to organize. The Georgia long-arm statute restricts the exercise of jurisdiction to “a cause of action arising from any of the acts * * * enumerated in this section [i. e., transaction of any business, commission of a tortious act] ”. Accordingly, the Georgia Court of Appeals has held that an unrelated business transaction is irrelevant to the determination of whether a non-resident “transacts any
        business” within the meaning of subsection (a). Castleberry v. Gold Agency, Inc., 1971, 124 Ga.App. 694, 185 S.E.2d 557, partially overruled on other grounds, Coe & Payne Co. v. Wood-Mosaic Corp., 1973, 230 Ga. 58, 195 S.E.2d 399; Fulghum Industries, Inc. v. Walterboro Forest Products, Inc., 5 Cir., 1973, 477 F.2d 910. Since the “Broadway Joe’s” investment is not the subject matter of this litigation, as a matter of Georgia law it is of no relevance to the determination of whether Cash “transacted any business” in Georgia within subsection (a) of the statute.

      . See the scholarly analysis of the Georgia long-arm statute, by now Chief Judge Eden-field, in Marival, Inc. v. Planes, Inc., N.D. Ga., 1969, 302 F.Supp. 201; and Scott v. Crescent Tool Co., N.D.Ga., 1969, 296 F. Supp. 147. He presided below.

      . See Hull, Application of Long-Arm Statute to Foreign Corporation Not Doing Business in Georgia Committing Tortious Act Outside State Causing Injury Within State, 8 Ga. Bar J. 415 (1972).

      . Federal diversity courts had reached a contrary conclusion. Griffin v. Beech Aircraft Corp., 1971, 324 F.Supp. 1284; Scott v. Crescent Tool Co., N.D.Ga., 1969, 296 F. Supp. 147.

      . F.R.Civ.P. 54(c) provides:
      “ * * * Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.”
      See, e. g., Equity Capital Co. v. Sponder, 5 Cir., 1969, 414 F.2d 317; Williams v. United States, 5 Cir., 1968, 405 F.2d 234; Molnar v. Gulfcoast Transit Co., 5 Cir., 1967, 371 F.2d 639; Burton v. State Farm Mutual Automobile Ins. Co., 5 Cir., 1964, 335 F.2d 317; South Falls Corp. v. Rochelle, 5 Cir., 1964, 329 F.2d 611; Smoot v. State Farm Mutual Automobile Ins. Co., 5 Cir., 1962, 299 F.2d 525.

      . See Coe & Payne Co. v. Wood-Mosaic Corp., 1973, 230 Ga. 58, 195 S.E.2d 399; Griffin v. Beech Aircraft Corp., supra; Scott v. Crescent Tool Co., supra.

      . Gray v. American Radiator, supra; Jetco Electronic Industry v. Gardiner, 5 Cir., 1973. 473 F.2d 1228 (Texas long-arm statute) ; Eyerly Aircraft Co. v. Killian, 5 Cir., 1969, 414 F.2d 591; Coulter v. Sears & Roebuck Co., 5 Cir., 1970, 426 F.2d 1315.

      . M.G.L.A. Ch. 223A, § 3(c) “causing tor-tious injury by an act or omission in this commonwealth * * *

      . We necessarily express no opinion on the merits of this controversy.

      . See Hull, note 7, supra, at 422-27.


author: RIVES, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. REX DISPOSABLES, DIVISION OF DHJ INDUSTRIES, INC., Respondent.
    No. 73-1785.
    United States Court of Appeals, Fifth Circuit.
    May 20, 1974.
    Elliott Moore, JDeputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., Elmer P. Davis, Director, Region 16, N. L. R. B., Fort Worth, Tex., Jonathan G. Axelrod, Washington, D. C., for petitioner.
    Richard E. Miller, Ronald B. Bianchi, New York City, for respondent.
    Before RIVES, WISDOM and MORGAN, Circuit Judges.
   RIVES, Circuit Judge:

Rex Disposables, a division of DHJ Industries, Inc., manufactures disposable hospital garments and other related items at a small facility in Quanah, Texas. On January 31, 1972, the Textile Workers Union of America, AFL-CIO-CLC filed a charge claiming that Rex violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act by discharging five employees because of their union activities. The Union amended its charge on March 27, 1972 to claim the wrongful layoff of the same five employees. Under date of March 29, 1972, the Regional Director of the NLRB advised the Union by letter that:

“As a result of the investigation, it does not appear that there is sufficient evidence of violation of Section 8(a)(3) of the Act. More particularly, the investigation disclosed insufficient evidence to sustain the burden of proving that Asa L. Greene, Barbara Mayes, Shirley Wade, Helen Stuart and Peggy Johnson were laid off for reasons other than lawful, economic considerations. I am, therefore, refusing to issue a complaint on the 8(a)(3) portion of the charge. However, the 8(a)(1) portion of the charge is continued before us for further action.”

The Regional Director issued a complaint on April 12, 1972, which alleged that Rex violated Section 8(a)(1) by threat of layoffs for union activities, coercive interrogation of employees re-' garding union activities, and surveillance of union meetings.

A hearing was held on May 24 and 25, 1972. By decision dated September 11, 1972, the Administrative Law Judge found that Rex had engaged in the unfair labor practices alleged in the complaint. On February 8, 1973, the Board reversed the Administrative Law Judge’s conclusion that Rex had threatened to lay off employees based upon union activities, but affirmed the rest of his rulings, findings and conclusions. The Board modified the Administrative Law Judge’s proposed order to reflect its reversal on the issue of the threat of layoffs. As modified, the order requires that Rex cease and desist from coercive interrogation, surveillance and certain other activities. The order requires also the posting of a Notice to Employees, and a report on compliance. We enforce the Board’s order.

I.

Rex claims the Regional Director exceeded his authority by issuing the complaint in this case after dismissing the specific charges filed by the Union. The Board contends that the complaint was closely related to the original specific charge and the amended charge of the Union, and that the Regional Director therefore acted within his statutory authority under 29 U.S.C. § 160(b).

On a form entitled “Charge Against Employer,” in a blank space provided for the “Basis of the Charge . . . ,” the Union alleged the discriminatory layoff of five employees because of their union activities. At the bottom of the space allowed to detail the basis of the charge, the following sentence appears, apparently as a part of the printed form: “By the above and other acts, the above-named employer has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed by Section 7 of the Act.” As has been stated, the Regional Director decided that there was insufficient evidence to issue a complaint alleging that the layoffs violated the Act, but nonetheless did issue a complaint alleging that Rex had engaged in “other acts” which violated Section 8(a)(1). These included a threat of layoffs for union activities, coercive interrogations, and surveillance of union meetings.

In NLRB v. Fant Milling Co., 1959, 360 U.S. 301, 79 S.Ct. 1179, 3 L.Ed.2d 1243, the Supreme Court held that in formulating a complaint and in finding a violation of Section 8 of the National Labor Relations Act, the Board may take cognizance of events occurring subsequent to the filing of the charge upon which the complaint is based. The Court justified its decision in the following manner:

“A charge filed with the Labor Board is not to be measured by the standards applicable to a pleading in a private lawsuit. Its purpose is merely to set in motion the machinery of an inquiry. Labor Board v. I. & M. Electric Co., 318 U.S. 9, 18, [63 S.Ct. 394, 400, 87 L.Ed. 579]. The responsibility of making that inquiry, and of framing the issues in the case is one that Congress has imposed upon the Board, not the charging party. To confine the Board in its inquiry and in framing the complaint to the specific matters alleged in the charge would reduce the statutory machinery to a vehicle for the vindication of private rights. This would be alien to the basic purpose of the Act. The Board was created not to adjudicate private controversies but to advance the public interest in eliminating obstructions to interstate commerce, as this Court has recognized from the beginning. Labor Board v. Jones & Laughlin, 301 U.S. 1, [57 S.Ct. 615, 81 L.Ed. 893].
“Once its jurisdiction is invoked the Board must be left free to make full inquiry under its broad investigatory power in order properly to discharge the duty of protecting public rights which Congress has imposed upon it. There can be no justification for confining such an inquiry to the precise particularizations of a charge. For these reasons we adhere to the views expressed in National Licorice Co. v. Labor Board [309 U.S. 350, 60 S.Ct. 569, 84 L.Ed. 799].”

360 U.S. at 307-309.

Relying in part upon the above-quoted language from Fant Milling, this Court has stated that “the Board has considerable leeway to found a complaint on events other than those specifically set forth in the charge, the only limitation being that the Board may not get ‘so completely outside . the charge that it may be said to be initiating the proceeding on its own motion . . . .’ NLRB v. Kohler Co. [7 Cir. 1955, 220 F.2d 3].” Texas Industries, Inc. v. NLRB, 5 Cir. 1964, 336 F.2d 128, 132. Also see NLRB v. International Union of Operating Eng., Local 925, 5 Cir. 1972, 460 F. 2d 589, 596; NLRB v. Reliance Steel Products Co., 5 Cir. 1963, 322 F.2d 49, 53. General allegations, such as that the employer “by other acts and conduct . interfered with, restrained and coerced its employees in the exercise of their rights guaranteed in section 7 of the Act,” are legally sufficient to cause inclusion of these “other acts” in the complaint if those acts are sufficiently related to the specific acts alleged. NLRB v. Central Power & Light Co., 5 Cir. 1970, 425 F.2d 1318, 1320. The requirement of a sufficient relationship between the charge and the complaint does not necessarily mean a “close” relationship ; “the relationship need be close enough only to negate the possibility that the Board is proceeding on its own initiative rather than pursuant to a charge.” NLRB v. Central Power & Light Co., supra, at 1321 n. 3.

The relationship between the specific charge and the complaint in this case is more than sufficient to convince us that the Board was not acting on its own initiative. The Union specifically charged discriminatory layoffs of five employees on January 28. The complaint alleged that on January 26 the plant manager had threatened layoffs because of union activities, and that Rex had engaged in coercive interrogation of employees and surveillance of union meetings on January 27 and 28. It is easily understandable how a close scrutiny of the facts surrounding the January 28 layoffs could lead to the discovery of the unfair labor practices alleged in the complaint. Investigation of the employer’s motivation in laying off certain employees would usually involve inquiry into whether the employer had recently threatened to lay off employees because of their union activities. A thorough probe of the Union’s charges might also include inquiry into whether the employer had engaged in interrogation of employees or surveillance of union meetings in order to identify employees involved in union activities. As suggested by the Board, employer identification of union supporters would be a necessary step for discriminatory treatment of particular employees. Thus, the specific allegations in the charges and the allegations in the complaint were closely related in time, and the evidence used as a basis for the complaint would naturally have been gathered during a proper investigation of the charges.

II.

Rex urges that it was denied a fair hearing because the Administrative Law Judge denied all requests for discovery. On oral argument in this Court, the attorney who appeared for Rex at the hearing on the complaint conceded that he was not surprised by the testimony about surveillance. On the assumption that Rex therefore suffered no prejudice as to the surveillance testimony, we examine the denial of discovery only as relevant to the alleged coercive interrogations.

Paragraph 7(a) of the Complaint provided as follows:

“(a) On or about the dates set opposite their respective names, Respondent, by its following-named supervisors and agents, orally interrogated employees at its Quanah plant regarding their Union membership, activities and desires:
"Paul Ballard January 27, 1972
"Virginia Greening January 27, 1972
January 28, 1972''

(App. 339.) Rex claims that it was unable to ascertain prior to the hearing exactly who was interrogated. This claim is believable. Rex employed about sixty persons during the days in question; the alleged interrogations were relatively brief and occurred in the general working area of the plant; and the complaint was issued about two and one-half months after the conversations in question.

Rex sought to discover more about the alleged interrogations through a variety of means — a demand for a bill of particulars, a request made a few days before the hearing to review witnesses’ statements, a similar request made after the hearing began but before testimony was taken, and a motion made at the beginning of the hearing to take the depositions of witnesses. All requests for discovery were denied.

Justice under law is, of course, the ultimate goal of this Court. We exercise a broad discretion to require such proceedings to be had as may be just under the circumstances. 28 U.S.C. § 2106; cf. Rule 1 of F.R.Civ.P. We agree with the Fourth Circuit that under some circumstances the Board’s decision not to provide discovery may result in unfairness. Firestone Synthetic Fibers Co. v. NLRB, 4 Cir. 1967, 374 F.2d 211, 214. This Court is committed to the doctrine that when good cause is shown to the Board it should permit discovery in order that the rights of all parties may be properly protected. NLRB v. Safway Steel Scaffold Co. of Georgia, 5 Cir. 1967, 383 F.2d 273; NLRB v. Miami Coca-Cola Bottling Co., 5 Cir. 1968, 403 F.2d 994, 996. Also see NLRB v. Southern Materials Co., 4 Cir. 1967, 345 F.2d 240, 244. We adhere to that doctrine despite the able but highly technical opinion of the Second Circuit to the contrary in NLRB v. Interboro Contractors, Inc., 2 Cir. 1970, 432 F.2d 854. The function of judges is to administer justice without respect to persons. 28 U.S.C. § 453. They must refuse to enforce administrative orders which they find to be unjust or the product of unjust administrative procedures or policies.

Whether or not the Administrative Law Judge erred in refusing to allow any discovery, review of the record convinces us that Rex suffered no actual prejudice as a result of such refusal. Garrard and Poole were the two allegedly interrogated employees whose names would have been secured through discovery. Garrard testified concerning brief conversations with Greening and Ballard. Poole testified about a series of short exchanges with Greening. Rex had an opportunity to cross-examine both Garrard and Poole on the first day of the hearing, and did so vigorously. From the record, it appears that Greening, who was present at all the conversations in question, remained in the courtroom while Garrard and Poole testified, and she presumably was able to suggest questions to be asked during the cross-examination of these witnesses. Rex did not present its case until the second day of the hearing. The attorneys for Rex therefore had overnight to talk with witnesses or otherwise investigate the conversations described by Garrard and Poole. Greening and Ballard, the only other participants in these conversations, both testified for Rex, and contradicted the testimony given by Garrard and Poole. We also note that at the beginning of the hearing, the Administrative Law Judge advised the attorneys for Rex as follows: “Well, if you are surprised [by evidence offered by the General Counsel] you let me know and we will see what we can do.” Rex did not avail itself of this offer during the hearing. We conclude that the denial of its requests for discovery resulted in no actual prejudice to Rex.

III.

Rex claims that the evidence does not support the Board’s findings that it violated Section 8(a)(1). We disagree.

At the hearing, former employee Gar-rard testified that on January 27, while Plant Manager Ballard was present, Supervisor Greening asked him if anyone had approached him in the building about union activities, and that Ballard had then commented that employee Wade might approach him about the Union. Garrard further stated that on January 28 Greening asked him if he had overheard any more names of ladies involved in union activities or where union meetings were being held, and said that Rex would be faithful to employees who were faithful to' Rex. Finally, Gar-rard testified that on January 31 Greening asked him if he would sign an affidavit that Wade had approached him in the building about union activities. Employee Poole testified that on January 27, Greening asked her what she had learned at the union meeting the night before, and what the union man had said about transfers of employees within the plant. Although Ballard and Greening contradicted the testimony of Garrard and Poole, the Administrative Law Judge credited the testimony of Garrard and Poole over that of Ballard and Greening where there were conflicts, and found that the interrogations were coercive. Such resolutions of the conflicts in testimony were not unreasonable, and were accepted by the Board. Under these circumstances, it is not our function to overturn them. NLRB v. Varo, Inc., 5 Cir. 1970, 425 F.2d 293, 297-298. Accepting as true the testimony of Garrard and Poole, there was sufficient evidence to support the Board’s findings.

On the issue of surveillance, the General Counsel introduced evidence that on January 27 Supervisor Greening and her husband sat in their car for at least twenty minutes at a store parking lot across the highway from a motel room where the Union was holding a meeting. Several employees testified that while at the meeting they could discern the Greenings in their car. On January 28, Plant Manager Ballard parked his pickup truck in a lot across from the motel and was observed sitting in the truck by employees attending a union meeting at the motel room. Although the Green-ings and Ballard testified that they were not engaged in surveillance, there was sufficient evidence to support a finding of surveillance. See NLRB v. Standard Forge & Axle Co., 5 Cir. 1969, 420 F.2d 508 and cases cited therein.

For the reasons stated, the Board’s order is

Enforced.

      . The testimony of employee Garrard suggests how investigation of the union charge might lead to discovery of coercive interrogations. The Union alleged the wrongful discharge or layoff of five employees — Ada Greene, Barbara Mayes, Shirley Wade, Helen Stewart and Peggy Johnson. Garrard testified that Plant Manager Ballard mentioned Shirley Wade as someone who might approach Garrard about the Union. Garrard also testified that Supervisor Greening told him she thought Barbara Mayes, Helen Stewart and Liz Winter were involved in union activities. In investigating the charge, the Board obviously would have wanted to learn exactly what the plant manager and supervisor had said, if anything, about the five employees in question. Questioning of Garrard would have uncovered the references to Mayes, Stewart and Wade. This questioning would also have revealed the apparent coercive nature of the conversations of Ballard and Greening with Garrard.

      . Professor Davis suggests that, “Federal courts might well follow the California Supreme Court in its ‘common law’ holding that an agency must provide prehearing discovery even in absence of statutory requirement. Shively v. Stewart, 65 Cal.2d 475, 55 Cal.Rptr. 217, 421 P.2d 65 (1966).” Davis, Administrative Law Treatise 1970 Supp. § 8:15. In the case cited by Professor Davis, Chief Justice Traynor, writing for the Supreme Court of California en banc, held that physicians charged in an administrative disciplinary proceeding with criminal abortion were entitled to prehearing discovery of statements of women and their husbands and to the production of documents of which the physicians did not have copies. In his opinion Chief Justice Traynor noted that the California Administrative Procedure Act provided for depositions, “not for the purpose of discovery, but to secure evidence for use at tlie hearing.” Continuing, Chief Justice Traynor opined:
      “The Legislature’s silence with respect to prehearing discovery in administrative proceedings does not mean, however, that it has rejected such discovery. Instead, * * * it has left to the courts the question whether modern concepts of administrative adjudication call for common law rules to permit and regulate the use of the agencies’ subpoena power to secure prehearing discovery.” 421 P.2d at 67.
      See also Grog House v. Oregon Liquor Control Commission, Or.App.1973, 507 P.2d 419, 422; Viculin v. Department of Civil Service, 1971, 386 Mich. 375, 192 N.W.2d 449, 463.

      . The hearing began on May 24, 1972. The conversations in question occurred on January 27 and 28. Thus, there was less than four months between the alleged coercive interrogations and the hearing.

      . From the testimony of witnesses, and after his own view of the parking lots and motel, the Administrative Law Judge concluded that each supervisor parked where he could see the room and recognize employees as they entered.