text:
    Orpha LOVELESS, Plaintiff-Appellant, v. Caspar WEINBERGER, Secretary of Health, Education & Welfare, Defendant-Appellee.
    No. 73-1983.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 29, 1974.
    Decided March 12, 1974.
    Joseph J. Murphy, Columbus, Ohio, on brief, for plaintiff-appellant.
    William W. Milligan, U. S. Atty., Thomas D. Thompson, Asst. U. S. Atty., Columbus, Ohio, on brief, for defendant-appellee.
    Before PHILLIPS, Chief Judge, and EDWARDS and McCREE, Circuit Judges.
   PER CURIAM.

The appeal in this Social Security ease presents the question of whether babysitting services performed by a grandmother for her grandchildren in her own home constitutes covered employment within the meaning of 42 U.S.C. § 410(a). District Judge Carl B. Rubin answered this question in the negative, affirming the decision of the Secretary of Health, Education and Welfare.

The court affirms the District Court for the reasons stated in the memorandum opinion and order of the District Judge which is made an appendix hereto.

Affirmed.

APPENDIX

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN ' DIVISION

Orpha Loveless, Plaintiff, v. Caspar W. Weinberger, Secretary of Health, Education and Welfare, Defendant.

Civ. A. No. 72-381

MEMORANDUM OPINION AND ORDER

CARL B. RUBIN, District Judge.

This is an action under the Social Security Act, 42 U.S.C. § 405(g), for review of a final decision of the Secretary of Health, Education and Welfare that plaintiff is not entitled to social security disability insurance benefits.

This matter is before the Court on defendant’s motion for summary judgment and plaintiff’s cross-motion for summary judgment.

Plaintiff filed an application for social security disability insurance benefits on November 10, 1969 alleging that she had become unable to work as of October 28, 1969. The application was denied on the ground that she lacked the necessary “disability insured status” in that she had only 14 of the required 20 quarters of coverage in the 40 quarter period preceding the alleged onset of disability.

Plaintiff filed her present application for disability insurance benefits on July 6, 1970 alleging that she became disabled as of June 13, 1970. The application was denied on the ground that plaintiff had accumulated only 19 of the required 20 quarters of coverage.

A woman who applies for social security disability insurance benefits before she attains the age of 62 is eligible for coverage if she has “not less than twenty quarters of coverage during the forty-quarter period which ends” with the quarter in which the application is filed. 42 U.S.C. § 416(i)(3).

It is undisputed that plaintiff has accumulated 19 of these 20 required quarters of coverage. Plaintiff asserts that she earned the twentieth quarter of coverage when she worked as a babysitter for her daughter from September to October, 1970. During this period plaintiff’s daughter and son-in-law were both employed. Plaintiff babysat in her own home for her daughter’s two minor children. For purposes of decision only, the Secretary assumed that plaintiff did not perform any services in her daughter’s home.

“Employment” is defined in the Social Security Act to mean

any service . . . performed . by an employee for the person employing him . . . except that . . . such term shall not include—
(3) (B) service not in the course of the employer’s trade or business, or domestic service in the private home of the employer, performed by an individual in the employ of his son or daughter. .

The hearing examiner held that the services plaintiff performed for her daughter during the third quarter of 1970 “were services not in the course of the employer’s trade or business and, since they were performed for her daughter, are specifically excluded from coverage . . under the provisions of 42 U.S.C. § 410(a)(3)(A).

Plaintiff argues that her employment by her daughter is not excluded by the trade or business requirement of 42 U.S.C. § 410(a)(3)(A) because “the first and most important ‘trade or business’ of plaintiff’s daughter . was to care for her minor children.”

The term “trade or business” is not defined by the Social Security Act or the regulations adopted by the Secretary pursuant to the Act. There are no reported cases construing the exclusion. In such circumstance, the Court must resort to common usage to determine the meaning of the phrase “trade or business.” “Trade” is defined in the dictionary as:

The business one practices or the work in which one engaged regularly: one’s calling: gainful employment: means of livelihood: OCCUPATION. WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (3d ed. 1967).

A “business” is defined as:

A usual commercial or mercantile activity customarily engaged in as a means of livelihood and typically involving some independence of judgment and power of decision and sometimes contrasted with the arts ... or professions . or sports . . .or other activity considered less practical, serious, respectable, or mundane: OCCUPATION, POSITION, TRADE, LINE. WEBSTER’S TPIIRD NEW INTERNATIONAL DICTIONARY (3d ed. 1967).

Child rearing is not normally considered to be a mother’s employment or means of livelihood. Neither is it considered a commercial or mercantile activity. It is true that child rearing has an economic value that can be computed; and that persons do perform the service of child care for economic gain. Nonetheless, at the present time, the economic value of a mother’s services in caring for her children are not generally recognized as compensible or as a trade or business.

In today’s society, a mother often has employment outside the home. When such employment requires that provisions be made for the care of minor children, the mother naturally seeks the most qualified care available. Needless to say, her own mother is often the ideal babysitter because she is able to render not only competent child care services but to add the love, affection and concern for the child’s welfare which is engendered by the familial relationship. But Congress has chosen to exclude from coverage under the Social Security Act certain employment by reason of family relationship. Prior to 1960 this exclusion was absolute when a parent was employed by one of his children. Today a parent may work for his child in the course of the child’s trade or business, but still may not perform domestic services, whether inside or outside the home, for his children.

Upon consideration, and for the reasons set out above, the Court holds that defendant’s motion is meritorious, and therefore it is granted.

The decision of the Secretary of Health, Education and Welfare is affirmed.

This action is hereby dismissed.


source: Caselaw Access Project

author: McENTEE, Circuit Judge.

license: Public Domain

text:
    FIREMAN’S FUND AMERICAN INSURANCE COMPANIES, Plaintiff, Appellant, v. PUERTO RICAN FORWARDING CO., INC., Defendant, Appellee.
    No. 73-1287.
    United States Court of Appeals, First Circuit.
    Argued Feb. 6, 1974.
    Decided March 13, 1974.

      Jose Antonio Fuste, San Juan, P. R., with whom Jimenez & Fuste, San Juan, P. R., was on brief, for plaintiff, appellant.
    Maria Josefa Fornaris, Hato Rey, P. R., for defendant, appellee.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

Appellant brought this subrogation action against Puerto Rican Forwarding Co., Inc. (Forwarding) in the District Court for the District of Puerto Rico. The court granted summary judgment dismissing the action for lack of jurisdiction, holding that a choice-of-forum clause in the bill of lading which Forwarding had issued to appellant’s insured restricted any actions thereunder to federal or state courts located in the City of New York. Appellant contends that summary judgment was inappropriately granted because there existed a genuine issue of material fact, namely, whether Forwarding’s bill of lading governed the shipment of the goods involved in this case. Appellant further contends that even if Forwarding’s bill of lading did apply, the choice-of-forum clause therein should be held invalid. We reject both contentions.

The facts are as follows. Defendant-appellee Forwarding operates within the shipping market as a non-vessel operating common carrier by water (NVOCC). An NVOCC consolidates small lots into a single container for various small shippers, and then tenders the consolidated full containerload to an equipment-owning carrier for the actual physical transportation of the goods. For purposes of this appeal, the important point about an NVOCC is that although it may not own the ships on which its customers’ goods are physically transported, it nevertheless is the “carrier” responsible for the through transportation of such goods, including the water portion. As the carrier, an NVOCC issues its own bill of lading to each small shipper that employs its services, describing the goods for whose transportation it will be held responsible. When the NVOCC in turn employs a water carrier for the actual transport of a consolidated con-tainerload of goods belonging to several shippers, the water carrier issues to the NVOCC a single bill of lading usually describing the shipment in general terms as a traileiioad of mixed commodities. See generally Federal Maritime Comm’n, Preliminary Staff Report on Non-Vessel Operating Common Carriers by Water (1970).

In the instant case, appellant’s insured, Serrano & Co., Inc., contracted to ship shoes through Forwarding, which then issued its bill of lading containing the choice-of-forum clause. In this clause, the shipper and NVOCC agreed that any action under the bill of lading was to be brought only in a court located in New York City, to the exclusion of any and all other courts. Forwarding thereafter included the Serrano shoes in shipments transported aboard the SS. PONCE DE LEON and/or the SS. ERIC K. HOLZER, both of which are owned by Transamerican Trailer Transport. Transamerican issued bills of lading to Forwarding with respect to both shipments. These bills of lading contained no choice-of-forum clauses. When the goods arrived at their destination, three cartons of shoes valued at $670.37 were missing. Appellant paid a claim in this amount under Serrano’s marine insurance policy and brought this subrogation action against Forwarding.

The district court assumed that the shoes were shipped under the bill of lading which Forwarding issued to Serrano. The court said that appellant admitted this point in its complaint. Appellant contends that it made no such admission, but instead disputed the very point in a later memorandum it filed in response to Forwarding’s motion to dismiss. Appellant argues that the shoes were shipped under the bills of lading which Transamerican issued to Forwarding on the theory that Transamerican effected the actual water carriage of the shoes. Because this dispute as to a material “fact” existed, appellant contends that summary judgment could not properly be granted.

However, regardless of whether appellant admitted the matter or not, we find that there was no genuine issue of material fact which prevented the court from granting summary judgment. On the undisputed set of underlying facts, the question of whose bill of lading the shoes were shipped under is one of law, not fact. As to this question, we think it is clear from the foregoing description of an NVOCC and its role in the shipping market that the shoes were shipped under the Forwarding bill of lading, because Forwarding, not Transamerican, was the party responsible to Serrano for the through shipment. To be sure, Forwarding’s choice of Transamerican to carry out the water carriage portion of the shipment represented a part of its obligation to Serrano: But the Transamerican bills of lading issued to Forwarding had no bearing on Serrano’s or appellant’s rights with respect to the shoes. Indeed, appellant seemingly recognized this point in bringing action against Forwarding rather than Transamerican. Its contrary argument at this stage seems simply an effort to evade the terms of the choice-of-forum clause.

Appellant’s alternative contention that the choiee-of-forum clause should be held invalid also lacks merit. Appellant cites Indussa Corp. v. S.S. Ranborg, 377 F.2d 200 (2d Cir. 1967), as standing for the proposition that the Carriage of Goods by Sea Act, 46 U.S.C. § 1300 et seq. (1970), invalidates all choice-of-forum clauses to which it applies. However, the actual holding in Indussa was that a choice-of-forum clause which restricted adjudication of claims under the Act to foreign courts only was invalid under § 3(8), 46 U.S.C. § 1303(8), because of the possibility that foreign courts would lessen the liability of the carrier. 377 F.2d at 204. A key factor behind the court’s holding was that there was no assurance that a foreign court would apply the Carriage of Goods by Sea Act in the same way as an American court subject to the uniform control of the Supreme Court. Id. at 203-204. That reasoning does not apply here, where the choiee-of-forum clause restricts appellant not to a foreign court but to another American court.

At least where the special factors in Indussa are not present, the normal rule with respect to choice-of-forum clauses is that they should be enforced unless enforcement is shown by the resisting party to be “unreasonable” under the circumstances. The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972); Aetna Ins. Co. v. The Satrustegui, 171 F.Supp. 33, 35 (D.P.R.), vacated in part, 174 F.Supp. 934 (D.P.R.1959). To establish that a particular choice-of-forum clause is unreasonable, a resisting party-must present evidence of fraud, undue influence, overweening bargaining power or such serious inconvenience in litigating in the selected forum that it is effectively deprived of its day in court. See The Bremen v. Zapata Off-Shore Co., supra, 407 U.S. at 12-19, 92 S.Ct. 1907. Appellant made no showing of any of these factors, and it is doubtful that it could. We recognize that a relatively small amount is at issue. However, it also appears that appellant already maintains offices in New York, and in addition may not have to pay the cost of witnesses traveling from Puerto Rico to New York because the matter could well be tried by deposition. In any event, it was appellant’s duty to establish these matters and it completely failed to do so. See Central Contracting Co. v. Maryland Cas.Co., 367 F.2d 341, 345 (3d Cir. 1966).

Affirmed.

      . We note that appellant did not even bother to introduce the Transamerican bills of lading into evidence, despite its claim that the shoes were shipped under them. Presumably, these bills of lading were written in general terms, describing the shipment from Forwarding simply as a trailerload of mixed commodities. Federal Maritime Comm’n, supra at 2.

      . Although the Supreme Court has acknowledged the Indussa decision and has not formally rejected it, see The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 n. 11, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), several passages in the Bremen opinion east some doubt on the underlying rationale of Indussa. See, e. g., 407 U.S. at 9, 92 S.Ct. at 1912 (“The expansion of American business and industry will hardly be encouraged if, notwithstanding solemn contracts, we insist on a parochial concept that all disputes must be resolved under our laws and in our courts.”) See also Roach v. Hapag-Lloyd, 358 F.Supp. 481 (N.D.Cal.1973); The Supreme Court, 1971 Term, 86 Harv.L.Rev. 1, 62 (1972).


author: PER CURIAM:

text:
    Carlota LA MADRID-PERAZA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
    No. 72-1817.
    United States Court of Appeals, Ninth Circuit.
    Feb. 6, 1974.
    David C. Marcus, Los Angeles, Cal., for petitioner.
    Stephen Suffin, I. N. S., San Francisco, Cal., Joseph Surreck, Regional Atty., I. N. S., San Pedro, Cal., William D. Keller, U. S. Atty., John E. Nordin, Frederick M. Brosio, Jr., Asst. U. S. Attys., George K. Rosenberg, Dist. Director, I.N.S. Los Angeles, Cal., for respondent.
    Before CHAMBERS and WRIGHT, Circuit Judges, and CURTIS, District Judge.

      . The Honorable Jesse W. Curtis, United States District Judge for the Central District of California, sitting by designation.

   AMENDED OPINION

PER CURIAM:

The determination by the Immigration and Naturalization Service that Carlota La Madrid-Peraza was deportable for a material misrepresentation in the proceedings whereunder she obtained her visa to enter the country to take a domestic job is reversed.

At the deportation hearing the Special Inquiry Officer found that petitioner’s application for a labor certificate overstated the wages she was to receive from her prospective job, and ruled that this constituted a material misrepresentation that invalidated the labor certificate and the visa.

In Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960), the Supreme Court held that in order to denaturalize a citizen on the basis of a misrepresentation or concealment of facts in his naturalization petition, the Government must prove that if the truth had been disclosed, it would have warranted denial of citizenship. In United States v. Rossi, 299 F.2d 650 (9th Cir. 1962), we followed the Supreme Court’s rationale in Chaunt, and held that a fact suppressed or misstated is not material to an alien’s entry unless the truth would have justified a refusal to issue a visa.

At the time the deportation order was made the regulations as reflected in 29 C.F.R., § 60.5, provided in part:

“Certifications issued pursuant to this part are invalid if the representations upon which they are based are incorrect. . . .”

In 1971, this regulation was amended and revised to read as follows:

29 C.F.R. § 60.5(g)
Certifications issued pursuant to this part are invalid if the representations upon which they are based are materially incorrect. Materially incorrect for the purposes of this paragraph means that if the correct facts had been known, a certification could not have been issued pursuant to the requirements set forth at section 212(a) (14) of the Immigration and Nationality Act.”

Although this amendment came after the deportation order was made the revision and amendments of the regulation were preceded by a note from the Secretary of Labor indicating that the amendments and revision were “[I]n large part ... a clarification and restatement of existing procedures and policies.” 36 F.R. 2462 (1971).

Another section of these regulations, in effect since July, 1967 (32 F.R. 10932 (1967)), provides that prospective employment offered at less than the prevailing rate for American workers similarly situated is deemed to adversely affect wages and working conditions of American workers within the meaning of § 212(a) (14) of the Act. 29 C.F.R. § 60.6(a). Under this regulation the petitioner could not have been issued a labor certificate if in fact her prospective job paid less than the prevailing rate.

Although the Government offered ample evidence that the petitioner’s application misstated the wages to be paid, there is no evidence in the record to show that the amount that she actually received was below the prevailing wage rates in the Los Angeles area for live-in domestics.

The order of deportation is reversed.

      . Although Chaunt and Rossi involved denat-uralization proceedings, their rationale is forceful here, where the severe remedy of deportation is the issue.


author: DENNEY, District Judge.

text:
    Edward McLALLEN, Appellant, v. Jack HENDERSON, Official Court Stenographer, 30th Judicial Circuit of Missouri, Appellee.
    No. 73-1696.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 15, 1974.
    Decided March 5, 1974.

      Lawrence M. Berkowitz, Kansas City, Mo., for appellant.
    Robert S. Drake, Jr., Warsaw, Mo., for appellee.
    Before HEANEY and BRIGHT, Circuit Judges, and DENNEY, District Judge.

       Honorable ROBERT V. DENNEY, District Judge, District of Nebraska, sitting by designation.

   DENNEY, District Judge.

Appellant, McLallen, was convicted on May 8, 1972, in the Circuit Court of Benton County, Missouri, on four felony counts. On June 19, 1972, McLallen filed a notice of appeal of the convictions. The Circuit Court of Benton County found that appellant was unable to pay the costs of a transcript of the trial for the appeal and ordered the official court reporter, Henderson, the ap-pellee, to prepare such transcript and furnish a copy without cost to McLallen.

On May 15, 1973, the transcript was finally delivered to McLallen’s counsel. On May 21, 1973, McLallen filed suit, alleging that Henderson had violated his civil rights protected by 42 U.S.C. § 1983. In particular, McLallen alleged that Henderson had denied McLallen his right to the transcript for an unreasonable period of time, for which he should have money damages. On motion of the appellee, the trial court dismissed the suit on the ground that the appellee was immune from suit under § 1983 because of the doctrine of judicial immunity. We reverse.

This Court has held that court functionaries such as clerks are not clothed in judicial immunity because their duties are ministerial, not discretionary, in nature. Barnes v. Dorsey, 480 F.2d 1057 (8th Cir. 1973). Judicial immunity is only granted to non-judicial officials who, like judges, must not be unduly inhibited to exercise discretionary authority by the constant fear of personal liability for damages. Applied to non-judicial officials, judicial immunity is termed quasi-judicial immunity and examples are prosecuting attorneys and parole board members. McCray v. State of Maryland, 456 F.2d 1 (4th Cir. 1972). Reporters are like clerks, in that their duties are ministerial in nature and thus are not protected by quasi-judicial immunity.

However, this is not to say that clerks and court reporters may not have an absolute defense, sometimes referred to as a qualified immunity, to a suit for damages. Such is the case where the clerk, or reporter can show that he was acting pursuant to his lawful authority and following in good faith the instructions or rules of the Court and was not in derogation of those instructions or rules. Barnes v. Dorsey, supra. It will be for the trial court to determine upon remand whether appellee Henderson has properly raised and established that he was acting pursuant to his lawful authority or following an order of the court.

Reversed and remanded.


author: PER CURIAM.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CHASE MANUFACTURING COMPANY, Respondent.
    No. 73-1270.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 16, 1974.
    Decided Feb. 5, 1974.
    Elliott Moore, Acting Asst. Gen. Counsel, Laura Blumenfeld, Atty., N.L.R.B., Washington, D. C., for petitioner.
    Willis B. Ferebee, Milwaukee, Wis., for respondent.

      Before HASTINGS, Senior Circuit Judge, and PELL and SPRECHER, Circuit Judges.
   PER CURIAM.

This case is before us on application of the National Labor Relations Board to enforce its order of December 13, 1972 (200 NLRB No. 128) issued against Chase Manufacturing Company. The Board found that the company had violated Section 8(a)(1) of the Act “[b]y telling employees in effect it intended to cease dealing with the Union or intended to recognize another union and by stating to employees that it would hire new employees at less than contract wage rates, and that it would notify the Union it would not enter into another contract . . . . ” The Board further found the company violated Section 8(a)(5) and (1) of the Act “[b]y dealing directly with employees concerning their rates of pay rather than dealing with the recognized bargaining representative . . . .” and also “[b]y unilaterally cutting the wages of employee Behnke and Peschl in October 1970 below the wage rates specified in the applicable collective bargaining agreement . . . . ”

We hold that there is substantial evidence on the record as a whole to support these findings.

The company in this Court challenges only the Board’s remedy providing that employees Behnke and Peschl be made whole for the loss of earnings “by payment to each of them of a sum of money equal to the amount he would have earned under the applicable contract rate from the date of the illegal reduction until his lawful discharge on January 6, 1971, less the amount actually paid him during that period, the back-pay to include interest at the rate of 6 percent on the amount unlawfully withheld.” The company argues that in accordance with the policy of the Act on the settlement of grievances (29 U.S.C. § 173(d)) and the Board’s decision in Dubo Manufacturing Corp., 142 NLRB No. 47 (1963), its motion before the Administrative Law Judge, renewed before the Board, to defer the matter of back pay to arbitration should have been granted.

The company took the position before the Board that the admitted unilateral pay reductions involved contractual violations, remediable solely through arbitration. However, the Board found, and we agree, that “the wage reductions were part and parcel of an unlawful course of conduct whereby Respondent intended to rid itself of the established bargaining relationship and its attendant obligations of which the contract wage rates were but a part.”

Where the conduct involved constitutes both a contract violation and an unfair labor practice, as is often the case, the Board is not thereby precluded from acting.

“Admittedly, the Board has no plenary authority to administer and enforce collective bargaining contracts. Those agreements are normally enforced as agreed upon by the parties, usually through grievance and arbitration procedures, and ultimately by the courts. But the business of the Board, among other things, is to adjudicate and remedy unfair labor practices. Its authority to do so is not ‘affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise . ’ § 10(a), 61 Stat. 146, 29 U.S.C. § 160(a). Hence, it has been made clear that in some circumstances the authority of the Board and the law of the contract are overlapping, concurrent regimes, neither pre-empting the other. NLRB v. C & C Plywood Corp., 385 U.S. 421, [87 S.Ct. 559, 17 L.Ed.2d 486] (1967); Carey v. Westinghouse Electric Corp., 375 U.S. 261, 268, [84 S.Ct. 401, 11 L.Ed.2d 320] (1964); . . . Arbitrators and courts are still the principal sources of contract interpretation, but the Board may proscribe conduct which is an unfair labor practice even though it is also a breach of contract remediable as such by arbitration and in the courts. Smith v. Evening News Assn., 371 U.S. 195, 197-198, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). It may also, if necessary to adjudicate an unfair labor practice, interpret and give effect to the terms of a collective bargaining contract. NLRB v. C & C Plywood Corp., 385 U.S. 421 [, 87 S.Ct. 559, 17 L.Ed.2d 486] (1967).”

NLRB v. Strong, 393 U.S. 357, 360-361, 89 S.Ct. 541, 21 L.Ed.2d 546 (1969). Accord, NLRB v. Scam Instrument Corp., 394 F.2d 884, 887 (7th Cir. 1968), cert. denied, 393 U.S. 980, 89 S.Ct. 449, 21 L.Ed.2d 441.

The Board will defer to the arbitral process under certain circumstances.

“[W]here, as here, the contract clearly provides for grievance and arbitration machinery, where the unilateral action taken is not designed to undermine the Union and is not patently erroneous but rather is based on a substantial claim of contractual privilege, and it appears that the arbitral interpretation of the contract will resolve both the unfair labor practice issue and the contract interpretation issue in a manner compatible with the purposes of the Act, then the Board should defer to the arbitration clause conceived by the parties.”

Jos. Schlitz Brewing Co., 175 NLRB 141, 142 (1969). Here, there is no claim that the company believed it had a right under the agreement to unilaterally reduce wages but rather involves, as the Board found, “Respondent’s complete rejection of the principles of collective bargaining . . . .” Thus, the company is not entitled to submit the matter of back pay to arbitration under either the provisions of the Act or the policy of the Board.

Order enforced.

      . Section 203(d), 29 U.S.C. § 173(d), provides in pertinent part:
      “Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.”


author: SPRECHER, Circuit Judge.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GOOD FOODS MANUFACTURING & PROCESSING CORPORATION, CHICAGO LAMB PACKERS, INC.—DIVISION, Respondent. GOOD FOODS MANUFACTURING & PROCESSING CORPORATION, CHICAGO LAMB PACKERS, INC.—DIVISION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. LOCAL UNION NO. 87, AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    Nos. 73-1196, 73-1248, 73-1280.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 16, 1974.
    Decided March 15, 1974.

      Aldus S. Mitchell, Charles Orlove, Chicago, Ill., for Good Foods, etc.
    Elliott Moore, Acting Asst. Gen. Counsel, Michael F. Messitte, Atty., National Labor Relations Board, Washington, D. C., for NLRB.
    Before HASTINGS, Senior Circuit Judge, and PELL and SPRECHER, Circuit Judges.
   SPRECHER, Circuit Judge.

The predecessor, Chicago Lamb Packers, employed seven butchers who were represented by Local Union No. 87, Amalgamated Meat Cutters & Butcher Workmen. Early in 1970, Chicago Lamb Packers was sold to Good Foods Manufacturing & Processing Corporation. Chicago Lamb Packers ceased doing business on Friday, March 28, 1970; on the following Monday, April 1, 1970, Good Foods continued the business at the same location.

I

On July 29, 1970, the Union filed charges of various unfair labor practices against Good Foods. The company responded to the complaint and participated in the hearing before the administrative law judge. He found that Good Foods was a successor to Chicago Lamb Packers, and that Good Foods was guilty of the following violations of the National Labor Relations Act:

1. Section 8(a)(3), by discharging six butchers for their union activities;

2. Section 8(a)(5), by refusing to bargain with the Union;

3. Section 8(a) (1), by the above conduct, by coercively interrogating its employees and by threatening to close its plant.

Good Foods did not file exceptions to the administrative law judge’s findings and conclusions; it did not file a brief with the Board. The Board found the same violations plus an additional violation of sections 8(a)(1) and (5) in making unilateral changes in wages and other terms and conditions of employment without prior consultation with the Union.

The Board’s original order, reported at 195 NLRB No. 83 (1972), was filed before the decision in NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972). Following Burns, the Board issued a notice to show cause regarding modifications of its order which might be required by Burns. Good Foods did not respond to the notice. The Board nevertheless modified its order, reported at 200 NLRB No. 86 (1972). Good Foods did not ask for reconsideration of either order.

Section 10(e) (29 U.S.C. § 160(e)), which governs enforcement proceedings in the courts of appeals, states in part:

No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.

Good Foods urges us to excuse its failure to file exceptions because its attorney was busy appealing his own criminal conviction, defending himself in disbarment proceedings and handling cases for other clients. This is exactly the sort of circumstances courts have refused to call extraordinary under section 10(e). NLRB v. Local 74, Marble, Slate & Stone Polishers, 471 F.2d 43 (7th Cir. 1973); NLRB v. Ferraro’s Bakery, Inc., 353 F.2d 366 (6th Cir. 1965); NLRB v. Izzi, 343 F.2d 753 (1st Cir. 1965); NLRB v. Mooney Aircraft Inc., 310 F.2d 565 (5th Cir. 1962). The attorney was free on bond during the entire period of the administrative proceedings. Other members of his law firm, who now represent Good Foods, surely were available to assist him.

There are only two categories of cases where courts have found extraordinary circumstances. Filing exceptions one or two days late has been excused when the delay was caused by early mail pickup, snow storm or strike. NLRB v. Marshall Maintenance Corp., 320 F.2d 641 (3d Cir. 1963); NLRB v. Central Mercedita, Inc., 273 F.2d 370 (1st Cir. 1959); NLRB v. Woodworkers Local 13-433, 238 F.2d 378 (9th Cir. 1956). Here no exceptions were ever filed.

Failure to file exceptions to the administrative law judge’s findings sometimes is excused where those findings were favorable to the petitioner, were subsequently reversed by the Board, and petitioner had no reason to file exceptions to a decision in its favor. NLRB v. Teamsters Local 282, 412 F.2d 334, 337 n. 2 (2d Cir. 1969), cert. denied, 396 U.S. 1038, 90 S.Ct. 682, 24 L.Ed.2d 682 (1970); contra, NLRB v. Cast-A-Stone Products Co., 479 F.2d 396 (4th Cir. 1973).

Good Foods attempts to bring itself into this category by stating that the administrative law judge’s decision “was acceptable to Good Foods as a compromise.” While it is true that the Board found an additional violation and ordered additional remedies, the administrative law judge’s decision was basically adverse to Good Foods: it found Good Foods was a successor employer guilty of numerous violations and it rejected the only defense Good Foods presented at the hearing. The major factual findings that Good Foods urges this court to review — namely, the facts of successorship, of majority representation by the Union and of unilateral changes by the employer- — were initially determined against Good Foods by the administrative law judge. The time to contest these findings was after they were made, not for the first time before this court.

Good Foods also offers the announcement of the Burns decision as an “extraordinary circumstance” which excused it from petitioning the Board for a rehearing. This position is not supported in the ease law. NLRB v. Pinkerton’s National Detective Agency, Inc., 202 F.2d 230 (9th Cir. 1953). Further, Good Foods does not explain why it then failed to take the opportunity to respond to the Board’s show-cause notice following Burns.

We find no reason to excuse Good Foods’ failure to urge its objections before the Board; therefore we are precluded from considering Good Foods’ petition for review.

II

The Union charges that the remedies ordered by the Board are inadequate to expunge the effects of Good Foods’ unfair labor practices and to deter Good Foods from further misconduct. The Union asks us to supplement the Board’s order with the following remedies:

1. Provide a list of names and addresses of all employees since Good Foods began operation;

2. Mail notices to all these employees ;

3. Reimburse discharged employees without deducting their interim earnings ; and

4. Pay the Union lost dues and initiation fees.

The issues of the Board’s power to grant extraordinary remedies and the role of the courts of appeals in supervising that power have become the subject of much litigation and debate in the last few years. See Int’l Union of Electrical, Radio & Machine Workers v. NLRB (Tiidee Products, Inc.), 138 U.S.App.D.C. 249, 426 F.2d 1243 (1970), cert. denied, 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 256 (1970); Int’l Union, UAW v. NLRB (Ex-Cell-O-Corp.), 145 U.S.App.D.C. 384, 449 F.2d 1046 (1971); Food Store Employees Union v. NLRB (Heck’s Inc.), 155 U.S.App.D.C. 101, 476 F.2d 546 (1973), cert. granted, 414 U.S. 1062, 94 S.Ct. 567, 38 L.Ed.2d 467 (1973). In view of this controversy, it is surprising and disappointing that the Board failed to discuss the Union’s requests for additional remedies in either of its orders. When the Board gives reasons for refusing requests for extraordinary remedies, it is much easier for the reviewing court to defer to the Board’s traditional discretion and expertise in formulating remedies. Amalgamated Local Union 355 v. NLRB, 481 F.2d 996 (2d Cir. 1973).

Remedies of the sort claimed by the Union are never granted absent a history of unlawful antiunion conduct (e. g., J. P. Stevens & Co. v. NLRB, 417 F.2d 533 (5th Cir. 1969)), or an obviously frivolous defense of company misconduct (e. g., Tiidee Products, Inc., supra), or a clear showing that conventional remedies will be inadequate (e.g., Teamsters Local 992 v. NLRB, 138 U.S.App.D.C. 312, 427 F.2d 582 (1970)). Here there is no record of previous violations by Good Foods. The defense of religious belief might be characterized as legally insufficient, but the duties of Good Foods as a successor employer were in doubt while the Burns case was pending before the Supreme Court. And the Union has not shown that the remedies ordered by the Board will prove inadequate.

1. List of names and addresses. The Union already has or is entitled under the Board’s order to names and addresses of its members who were discharged. As bargaining representative for the present employees, the Union may request a list of their names and addresses. United Aircraft Corp., v. NLRB, 434 F.2d 1198 (2d Cir. 1970), cert. denied, 401 U.S. 993, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971). The Union can easily show a special need if all or most of Good Foods’ present employees are Muslims who have been indoctrinated against union membership.

2. Mailing notices. The Union cites two cases where the Board ordered mailings, one to counteract a company mailing of its own notice (J. P. Stevens & Co. v. NLRB, 380 F.2d 292 (2d Cir. 1967) cert. denied, 389 U.S. 1005, 88 S.Ct. 564, 19 L.Ed.2d 600 (1967)), the other to remedy a massive and violent campaign to keep'union organizers from communicating with employees (Decaturville Sportswear Co. v. NLRB, 406 F.2d 886 (6th Cir. 1969)). The courts there held the Board did not abuse its discretion in ordering the mailings; we believe there was no abuse of discretion in not ordering such a mailing in this case.

3. Gross back pay. The Union has no precedent for requesting computation of back pay without deduction of earnings from other employment. The District of Columbia Circuit, faced with an identical claim, said such a remedy would be punitive and was unnecessary to assure compliance with the Board’s order. Oil, Chemical & Atomic Workers Int’l Union v. NLRB, 144 U.S.App.D.C. 167, 445 F.2d 237 (1971), cert. denied, 404 U.S. 1039, 92 S.Ct. 713, 30 L.Ed.2d 730 (1972). We agree that gross back pay or reimbursement for subtle differences in working conditions is an inappropriate remedy here.

4. Union dues and initiation fees. This remedy must be denied because, with no contract in force, the Board cannot compel the company to accept a security clause. Any loss of dues is speculative. Food Store Employees Union v. NLRB, 155 U.S.App.D.C. 101, 476 F.2d 546 (1973), cert. granted 414 U.S. 1062, 94 S.Ct. 567, 38 L.Ed.2d 467 (1973).

The Board’s order, as modified November 30,1972, is hereby enforced.

Petitions for review denied and order enforced.

      . The Union was certified as bargaining representative in May 1965. The last contract covered the period from October 1, 1968 until October 1,1971.

      . Good Foods’ first brief, p. 6.

      . The stock of Good Foods is owned by a corporation whose stock is held by a religious corporation, “Muhammad’s Temple No. 2 of the Holy Temple of Islam,” a Muslim organization headed by Elijah Muhammad. The administrative law judge summarized Good Foods’ ultimate defense as an argument that the company’s conduct must be excused because of its officers’ religious beliefs.

      . The Board’s order requires Good Foods to cease and desist from continuing unfair labor practices, and to take these affirmative steps: offer reinstatement to the six butchers and reimburse them for loss of pay or other benefits, bargain collectively with the Union, make whole all employees for loss of benefits through unilateral changes made by Good Foods, pay the Union health, welfare and pension payments earned by the employees and post the usual notices.


author: WEIS, Circuit Judge.

text:
    UNITED STATES of America ex rel. Henry McNAIR #48970 v. STATE OF NEW JERSEY, Appellant.
    No. 73-1576.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 10, 1974.
    Decided March 5, 1974.

      William J. Bender, Rita L. Bender, David J. Popiel, Law Student, Rutgers Urban Legal Clinic, Newark, N. J., for appellee.
    Joseph P. Lordi, Essex County Prosecutor, R. Benjamin Cohen, Harry Robinson, III, Asst. Prosecutors, for appellant.
    Before ADAMS, HUNTER and WEIS, Circuit Judges.

       Though Judge Hunter was not at oral argument, counsel, by consent, agreed to his participation in the decision and he reviewed the record of oral argument.

   OPINION OF THE COURT

WEIS, Circuit Judge.

This appeal presents the question of whether it was proper to grant a writ of habeas corpus to a state petitioner, without a hearing, solely on the basis of the state record which is inadequate in several crucial respects. We conclude that the district court erred in so doing and that it should have afforded the state an opportunity to request an evidentiary hearing.

Petitioner was convicted by the state courts of New Jersey of the offense of possession of heroin. His chief defense was that approximately one thousand packets of narcotics had been seized by state officers in violation of petitioner’s constitutional rights and should not have been received in evidence. The state trial court refused a motion to suppress without filing a written or oral opinion. On appeal, the appellate division reversed, holding the search and seizure invalid, but on certification the Supreme Court of New Jersey disagreed and reinstated the judgment of the trial court. 60 N.J. 8, 285 A.2d 553 (1972).

We need not go into the factual background in any great detail, it being sufficient to note that essentially what is involved is a warrantless search of an arguably nonpublic area of a confection-ary store operated by the petitioner. The police officers claimed justification upon an informer’s tip and exigent circumstances. The legal issues are troublesome and not easily subject to resolution as evidenced by the fact that the four courts which have considered the problems have split evenly in their decisions.

Upon receipt of the petition for ha-beas corpus, the district court in New Jersey referred the matter to the United States Magistrate for report and recommendation. After a review of the state court records, including transcripts of the suppression hearing and trial, the magistrate concluded that the relevant issues were: (1) whether probable cause existed for the police intrusion; and (2) if the circumstances permitted a warrantless entry. Concluding in the negative on both points, a recommendation was made that there be no hearing and the writ be granted. After an independent review, the district judge concurred and issued the writ.

We agree that the magistrate’s report correctly pinpointed the important issues, but we do not accept the conclusion that no hearing was required. In discussing crucial factual matters in the state procedures, the magistrate wrote:

“The record is completely barren of any indication as to the informer’s reliability or the factual basis for his tip.” Appendix 8a, 9a.
******
“ . . . on this record the detectives had neither received information nor did they themselves even suspect that the narcotics ultimately seized were to be moved, or that petitioner was about to flee.” Appendix 14a.
******
“ . . . the record reveals only that the tip was received 30 to 45 minutes before the search, or between 1:00 and 1:30 p. m. But we are not told where the tip was received; nor is any reason given for the failure of the detectives to seek issuance of a warrant.” Appendix 15a.

These observations indicate that a hearing might be required, not that it is unnecessary. When legal problems are presented which are not easily resolved even on the basis of clearly established facts, an evidentiary hearing is an a fortiori proposition if the state record is deficient in critical areas. There is no need here to make the task more difficult by struggling with a self-imposed blackout of relevant matters.

Furthermore, considerations of comity and proper respect for the state courts counsel against precipitous action to invalidate their judgment. If, when viewed against the backdrop of all the facts, the state court decision may be found to be correct, it should not be overturned because it is based on less than all the information which can be made available to the district court.

While it is true that the state bears some responsibility for the proper preparation of a record, nevertheless, the public interest requires that opportunity be given to present evidence which might show that the petitioner suffered no constitutional deprivation. In certain circumstances, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), mandates a hearing where the material facts were not adequately developed at the state court hearing. 28 U.S.C. § 2254 provides in part that a determination by a state court shall be presumed to be correct unless it appears that the material facts were not adequately developed in the state proceeding. Both the state and the petitioner stand on equal footing to claim this right. United States ex rel. Molloy v. Follette, 391 F.2d 231 (2d Cir. 1968), cert. denied, 391 U.S. 917, 88 S.Ct. 1812, 20 L.Ed.2d 658; United States ex rel. Mitchell v. Follette, 358 F.2d 922 (2d Cir. 1966); Developments in the Law—Habeas Corpus, 83 Har.L.Rev. 1038, 1131, n. 79 (1970). Cf. Heyd v. Brown, 406 F.2d 346 (5th Cir. 1969), cert. denied, 396 U.S. 818, 90 S.Ct. 53, 24 L.Ed. 2d 69.

The fact that the state filed an answer to the petition and did not then ask for a hearing does not bar its request after an adverse decision on the pleadings and the state record. While as a matter of practice it may be better procedure to request a hearing if the court should find the facts of record to be insufficient, failure to take such an alternative position does not preclude the state from regrouping its defenses. United States ex rel. Mitchell v. Follette, supra, 358 F. at 928.

We conclude that New Jersey should be given the opportunity to ask for an evidentiary hearing and therefore this case will be remanded to the district court for consideration of that issue and for such hearings as may be indicated.

The order of the district court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.


text:
    Vincent J. SCOTT, Appellant, v. CHIEF OF POLICE and four other unnamed Breckenridge Hills, Missouri, policemen, Appellees.
    No. 73-1825.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 15, 1974.
    Decided March 5, 1974.
    Vincent J. Scott, pro se.
    David O. Danis, St. Louis, Mo., for appellees but did not file brief.
    Before HEANEY and BRIGHT, Circuit Judges, and DENNEY, District Judge.

       Honorable ROBERT V. DENNEY, District Judge, District of Nebraska, sitting by designation.

   PER CURIAM.

This is an appeal of an order of Judge Meredith denying appellant’s request for appointment of counsel to assist appellant in the prosecution of a civil rights suit. Appellant is presently incarcerated in the Federal Penitentiary in Leavenworth, Kansas.

Before this Court may reach the merits of the appeal and review the question of whether the denial of appointment of counsel was an abuse of discretion by Judge Meredith, this Court must find the order of denial was a final order within the meaning of 28 U.S.C. § 1291. Peterson v. Nadler, 452 F.2d 754 (8th Cir. 1971). The Peterson rule requires that the order appealed from will result in irreparable harm to appellant.

In this case, the record is silent as to the need of appellant for counsel and the irreparable effects, if any, that will flow from the denial of appointment of counsel. The Court will therefore remand the ease to Judge Meredith for the limited purpose of expanding the record in that regard, after which this Court will again entertain the appeal.


author: FEINBERG, Circuit Judge:

text:
    UNITED STATES ex rel. James A. WALKER, Petitioner-Appellant, v. Robert J. HENDERSON, Superintendent of Auburn Correctional Facility, Respondent-Appellee.
    No. 490, Docket 73-2163.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 5, 1973.
    Decided Jan. 7, 1974.

      Eleanor Jackson Piel, New York City, for petitioner-appellant.
    Burton Herman, Asst.. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., of the State of New York, Samuel A. Hirsho-witz, 1st Asst. Atty. Gen., on the brief), for respondent-appellee.
    Before WATERMAN and FEINBERG, Circuit Judges, and GURFEIN, District Judge.

       Of the United States District Court for the Southern District of New York, sitting by designation.

   FEINBERG, Circuit Judge:

In April 1969, after a jury trial, James A. Walker was convicted in Supreme Court, Bronx County, New York of rape and sexual abuse in the first degree, incest, assault in the third degree and two counts of endangering the welfare of a child. The charges arose from appellant’s alleged molestation of his 12 year old daughter Diane. Sentenced to concurrent terms of up to 25 years in prison, Walker appealed without success and thereafter sought collateral review, which the Bronx Supreme Court refused without a hearing. Having exhausted his state remedies, appellant petitioned the United States District Court for the Southern District of New York for a writ of habeas corpus. He now appeals from the order of Judge Dudley B. Bonsai denying the application after a hearing. We find no constitutional error, and therefore affirm the decision of the court below.

I

Appellant first contends that the incompetence of. appointed counsel deprived him of his sixth and fourteenth amendment rights to adequate representation. Initially, Walker was defended by William Harrison of the Legal Aid Society. In December 1968 — 11 months after appellant’s arrest — the Society was relieved as counsel and replaced by James P. Maniatis, assigned by the Appellate Division. Appellant complains that the mistakes and defaults of those two attorneys combined to render his representation “woefully inadequate,” United States v. Currier, 405 F.2d 1039, 1043 (2d Cir.), cert. denied, 395 U.S. 914, 89 S.Ct. 1761, 23 L.Ed.2d 228 (1969), and hence unconstitutional.

It has long been clear that tactical errors or strategic miscalculations by counsel afford no constitutional grounds for relief. United States v. Garguilo, 324 F.2d 795, 797 (2d Cir. 1963). In order to infringe the constitution,

[a] lack of effective assistance of counsel must be of such a kind as to shock the conscience of the Court and make the proceedings a farce and mockery of justice.

United States v. Wight, 176 F.2d 376, 379 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950); United States ex rel. Crispin v. Mancusi, 448 F.2d 233, 237 (2d Cir.), cert. denied, 404 U.S. 967, 92 S.Ct. 346, 30 L.Ed.2d 288 (1971). We have carefully considered all of Walker’s allegations with respect to his attorneys’ performance. Although counsel here were scarcely Clarence Darrows, Maniatis — if not Harrison — provided a colorable defense. Appellant’s case does not, therefore, give rise to a valid claim of inadequate legal assistance under the extremely stringent standard laid down in Wight, supra.

Walker has mounted a blunderbuss attack on the quality of his representation both before and during trial. As examples of neglect or incompetence, appellant cites such things as his attorneys’ alleged failure: to investigate leads furnished by Walker himself; to interview his daughter Diane (the complaining witness) prior to the date of trial; to call favorable witnesses to the stand; to demand a preliminary hearing; to understand the function of a Huntley hearing and utilize it properly; to object that the court lacked jurisdiction; and to provide effective advocacy on behalf of the client at trial. We now proceed to evaluate each of these charges in turn.

The chief investigatory default attributed to counsel was the alleged omission to follow up appellant’s report — first communicated two months after his arrest — that his daughter had recanted her accusations in the presence of her mother (appellant’s wife) and her aunt, Mrs. Helen Morgan. Such evidence, if it existed, would clearly have been crucial. The case against appellant rested largely on the testimony of the girl Diane, corroborated by her younger brother Michael. Moreover, the basis of appellant’s defense was a challenge to his daughter’s credibility. Taking the stand to deny the sex-related charges, he sought to impugn the girl’s veracity by claiming that she was lying out of anger because he had punished her for stealing and cashing his unemployment check. Under these circumstances, wholly to ignore appellant’s lead might well have been inexcusable. At the hearing before Judge Bonsai, however, Maniatis testified that he had spoken with appellant’s wife at the time of trial and that she had refused to give any evidence of the girl’s alleged retraction or of her character for veracity. Maniatis also stated that he had interviewed Mrs. Morgan, who likewise declined to testify to the daughter’s reputation for telling the truth. Since counsel’s story was credible, the district judge would have been entitled to find that Maniatis had tried to some extent to pursue the recantation issue, potentially so vital to appellant.

Appellant’s further illustrations of supposedly inadequate representation may be dealt with somewhat more summarily.- It is true that neither Harrison nor Maniatis ever saw the complaining witness Diane prior to the day of the trial, but an investigator from Legal Aid spoke to her in August 1968. His report reveals that the girl was adhering to the story that Walker had molested her sexually and forced her brother to do the same. In addition, she told the interviewer that appellant had been having relations with her since she was nine years old. Although more diligent counsel would have followed up the report with a personal talk, one cannot say that the investigation which was undertaken accomplished nothing at all. It is also true that trial counsel Maniatis rejected several potential witnesses who, Walker believes, would have aided in his defense; these were Mrs. Walker (the wife), Mrs. Morgan (her sister) and Howard Ramhold (his brother-in-law). As previously indicated, however, neither of these two women would have helped appellant at all. Moreover, Maniatis testified at the hearing before Judge Bonsai that Ramhold, who was supposed to give evidence regarding the daughter’s theft of the unemployment check, denied any knowledge of the matter when he appeared at the trial under compulsion of process. We would only add that the decision to call or bypass particular witnesses is peculiarly a question of trial strategy, United States v. Matalon, 445 F.2d 1215, 1219 (2d Cir.), cert. denied, 404 U.S. 853, 92 S.Ct. 92, 30 L.Ed.2d 93 (1971), which courts will practically never second-guess. See Garguilo, supra, 324 F.2d at 797.

Appellant also complains' of the failure of counsel to demand a preliminary hearing. It appears, however, that appellant was sent to Bellevue for a mental examination on the same day as his arraignment — January 22, 1968; he was returned to court on February 6. Clearly, no hearing could have been scheduled during appellant’s hospital stay. Only two days after his release from Bellevue, the indictment was handed down. At this point, the issue of probable cause was moot, and the right to a hearing had ended. People v. Jackson, 48 Misc.2d 1026, 266 N.Y.S.2d 481 (Sup.Ct.N.Y.Co.1965). There is nothing in the record to indicate that an inquiry into Walker's mental condition was not, at the time, at least as much in appellant’s interest as a challenge to probable cause.

As a further point, appellant contends that counsel improperly advised him to take the stand at a Huntley hearing despite the fact that the prosecution did not offer any statements to be used in evidence against him. But the record reveals that the arresting officer, Detective Farrell, did allude at the hearing to “questions” he had posed to Walker, which the latter had answered. (Indeed, at the trial, the officer testified to some of appellant’s alleged remarks, such as: “I’m a father. I can assult my daughter.”) Walker, through his present counsel, appears to object to Maniatis’s failure to cross-examine Detective Farrell on the content of these oral “statements.” (Instead, the attorney questioned appellant himself about his responses to Farrell.) Although this tack may reveal something less than consummate judgment, Maniatis did zero in several times on the heart of the Huntley inquiry: the voluntariness of the statements — which in this case hinged on whether and when Miranda warnings had been given. Contrary to Walker’s contention that counsel had no idea of the purpose of a Huntley hearing, Man-iatis showed at the hearing before Judge Bonsai that he understood its basic function of determining the voluntariness of defendant’s admissions.

Appellant additionally attacks his law-yei's’ failure to object to jurisdiction in the Bronx Supreme Court on the ground that the Family Court Act at the time vested

exclusive original jurisdiction over any proceeding concerning acts which would constitute disorderly conduct or an assault between . . . parent and child .

in the Family Court. N.Y.Family Court Act § 812 (McKinney’s Consol.Laws 1963). Later, we refer to this thorny jurisdictional point again in a somewhat different context. Suffice it to say for the moment that — whatever the present status of New York law on this issue — the state of the law was less than clear in 1969 when Walker was arrested, indicted and tried. Thus, any mistake by counsel in this regard would hardly rise (or fall) to the level of constitutionally inadequate performance. Finally, appellant attacks the overall quality of Maniatis’s representation at trial. We do not agree with Walker that “[a] reading of the summation of the petitioner’s lawyer at the close of the case would indicate a low coefficient of advocacy. . . . ” We would also note that the trial judge commented during the proceedings:

I have sat on a great many cases. I can tell you that I have been very impressed, both with the ability and with the diligence of Mr. Maniatis, and I think he is defending [appellant’s] cause with a zeal and a dedication which you rarely see.

Having scrutinized all of appellant’s charges set forth above (as well as others not meriting discussion), we find “that neither individually nor collectively do they give rise to a meritorious claim of ineffective assistance of counsel .” United States v. Sanchez, 483 F.2d 1052, 1058 (2d Cir. 1973). More to the point, the court below certainly did not commit clear error in arriving at a similar conclusion, based on its resolution of disputed factual issues. United States v. Pfingst, 490 F.2d 262, 273 (2d Cir. 1973).

II

As a second ground for reversal, appellant claims a denial of his right to a speedy trial. This argument need not detain us for long. The Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), identified four factors for courts to weigh in determining the merits of particular claims of deprivation. These are “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” (Footnote omitted.) Id. at 530, 92 S.Ct. at 2192. See also United States v. Fasanaro, 471 F.2d 717 (2d Cir. 1973); United States v. Stein, 456 F.2d 844, 847-848 (2d Cir.), cert. denied, 408 U.S. 922, 92 S.Ct. 2489, 33 L.Ed.2d 333 (1972).

Although Walker himself clearly asked to be tried promptly, the balance of the other three factors inclines against him. The delay was 15 months. Compare Barker, supra (lapse of over five years; conviction affirmed). Moreover, appellant — or his attorneys acting on his behalf — were responsible for much of the passage of time. On several occasions, Walker asked for the appointment of an “Appellate Division lawyer” in lieu of Legal Aid. After the ease had already been scheduled for trial, Harrison moved in September 1968 for a transfer of the matter to Family Court. The motion was granted, and more than a month went by until the Family Court declined to accept jurisdiction. Then, following Maniatis’s appointment in December 1968, much time was spent in disposing of pretrial motions. In addition, counsel requested several adjournments.

As for prejudice, 15 months of imprisonment prior to trial is not a matter to be taken lightly. The guarantee at issue here “is an important safeguard to prevent undue and oppressive incarceration .” United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966). But other aspects of prejudice that may arise from delay — notably, harm to the defense at trial —are absent here. Barker, supra, 407 U.S. at 532, 534, 92 S.Ct. at 2182. The passage of time appears to have had its major effect in dimming the recollection of the chief prosecution witnesses, Diane and Michael Walker. Maniatis took care to exploit this failure of memory in his closing speech to the jury. Under the circumstances, we hold that appellant was not denied a speedy trial in violation of the constitution.

Ill

Appellant further contends that section 812 of the Family Court Act (McKinney 1963) (the “Act”), which confers “exclusive original jurisdiction” over intra-family assaults on the Family Court, deprived the Bronx Supreme Court of power to hear the ease. He argues that his trial in the face of this statute resulted in a void conviction and violated due process.

Initially, we note that the Appellate Division has apparently passed on appellant’s jurisdictional claim, and rejected it. Moreover, New York law on this subject is scarcely free from doubt, either on the question of the Act’s coverage of specific crimes or on the issue of the effect of joinder of different offenses in one indictment. Because of the law’s uncertainty, we cannot say with any assurance that the Bronx Supreme Court erred in trying appellant’s case. However, we find it unnecessary to attempt to divine the proper state court construction of the statute since further consideration compels our rejection of appellant’s due process claim in any event. As we have previously mentioned, the complaint here was transferred to Family Court some eight months after indictment at Walker’s counsel’s request. Ultimately, the Family Court declined jurisdiction and sent the case back to the court of origin. While this belated move did not — under New York law — cure the jurisdictional flaw, if any, it highlights the absence of any such prejudice to appellant as would be required for a finding of constitutional error. Whether or not the precise form of the law was followed, its underlying spirit was served. Appellant received all to which he was arguably entitled: a review of his case by the Family Court and a determination — negative here — of the propriety of civil adjudication of the crimes with which he was charged.

Since we have found no merit in any of the arguments raised on appeal, we affirm the judgment of the district court denying appellant’s petition.

      . The Appellate Division affirmed his conviction, People v. Walker, 313 N.Y.S.2d 634 (1st Dep’t 1970) (mem. dec.), and the New York Court of Appeals denied review.

      . The Appellate Division dismissed the appeal, People v. Walker, 326 N.Y.S.2d 715 (1st Dep’t 1971) (mem. dec.), but indicated: “We have nevertheless considered the appeal on its merits and, were we not dismissing the appeal, we would affirm the order.” Id. at 716. The New York Court of Appeals denied review.

      . The alleged crime occurred in the early morning hours of January 18, 1968. Appellant was arrested at his home a few days later.

      . Mrs. Morgan is now deceased.

      . The girl and boy were 12 and ten, respectively, at- the date of the alleged crime, and 14 and 11 by the time of trial.

      . Walker admitted striking his daughter with his belt on two occasions.

      . Maniatis had subpoenaed Mrs. Walker, who was in a mental hospital at the time of trial and was brought to court by her attendant.

      . Mrs. Morgan, like Mrs. Walker, had been subpoenaed. Although Maniatis did not apparently ask her directly about the daughter’s “recantation,” the negative results of his inquiry concerning character evidence sufficiently support the conclusion that the aunt would not have aided appellant even if she had been questioned with greater skill.

      . We note that Maniatis, too, used an investigator (whose services were obtained on counsel’s motion) to help establish Walker’s case. This operative’s report describes an unavailing attempt to substantiate an alibi suggested by appellant.

      . Ultimately, only appellant himself and a physician who had examined the daughter, Dr. Kyung Kim, testified for the defense,.

      . See text accompanying notes 7 and 8, supra.

      . In addition, since both Ramhold and Mrs. Walker (see note 7, supra) were inmates o£ mental institutions at the time of appellant’s trial, counsel might in any event have chosen not to call either or both of them because of their possibly poor credibility.

      . The term “Huntley hearing” refers to the New York procedure upon a motion to suppress a confession or admission alleged to have been made involuntarily. See N.Y. Code of Cr.Proc. § 813-f, 813-g, 813-h (McKinney’s Consol.Laws Supp.1969), superseded by N.Y.C.P.L. Art. 710 (McKinney’s Consol.Laws, c. 11-A 1971), effective Sept. 1, 1971.

      . After some initial confusion, Maniatis stated: “You go ahead and make a motion to see if the Miranda warnings had been given,” and then: “That [Huntley] hearing was to determine whether he [Walker] was given the Miranda warnings.”

      . See Part III infra.

      . Cf. United States ex rel. Herrington v. Mancusi, 415 F.2d 205, 209-211 (2d Cir. 1969), and the New York cases cited therein.

      . Appellant’s brief at 27.

      . In addition to moving to dismiss for lack of prosecution in September 1968, appellant wrote personal letters to the state court complaining, among other things, of the delay in trial.

      . On August 14, 1968, the trial was set for September 9. (It ultimately took place in April 1969.)

      . Maniatis filed a number of motions on appellant’s behalf, of which one — requesting the appointment of an investigator — was granted.

      . N.Y.Family Court Act § 813 (McKinney 1963) provides for the transfer of [a]ny criminal complaint charging . . . an assault between parent and child . . . by the criminal court in which [the] complaint was made to the family court in the county in which the criminal court is located ....
      Under § 814, the Family Court may, at its discretion, remand the case “to an appropriate criminal court, if it concludes that the processes of the family court are inappropriate.” Sections 812-814 were modified slightly on September 1, 1969 after appellant’s conviction. (McKinney Supp.1973). All references in the text are to the words of the statute at the time of appellant’s arrest, trial and conviction.

      . See note 2, supra.

      . Although it is clear that felonious assault falls within § 812, People v. Johnson, 20 N.Y.2d 220, 282 N.Y.S.2d 481, 229 N.E.2d 180 (1967), whereas incest does not, People v. Lewis, 29 N.Y.2d 923, 329 N.Y.S.2d 100, 279 N.E.2d 856 (1972) (per curiam), we have not found any decision that deals with the jurisdictional question in the context of charges of rape or endangering a child’s welfare. Lower court cases have held that sexual abuse and sodomy were not covered by the Act. People ex rel. Doty v. Krueger, 58 Misc.2d 428, 295 N.Y.S.2d 581 (Sup.Ct. Nassau Co. 1968) (sexual abuse, sodomy); People v. Fuentes, 51 Misc.2d 354, 273 N.Y.S.2d 321, (Sup.Ct. Queens Co. 1966). But cf. People v. Nuernberger, 25 N.Y.2d 179, 303 N.Y.S.2d 74, 250 N.E.2d 352 (1969) (intent to commit incest does not deprive Family Court of exclusive original jurisdiction over felonious assault).

      . People v. Fowlkes, 24 N.Y.2d 274, 287, 300 N.Y.S.2d 89, 99, 248 N.E.2d 8, 15 (1969), one of three related cases reported under the title People v. Williams, held that when assault and non-assault charges are inextricably related by a common element in the offenses, and not otherwise, the transaction lies in the first instance within the jurisdiction of the Family Court.
      By “common element,” the Court of Appeals apparently meant a legal rather than factual link: Fowlkes itself refused to sustain New York Supreme Court jurisdiction over burglary and weapons charges connected with an intra-family assault, where both these crimes depended “on the assault, or the intent to commit it, as the only element of criminal conduct charged in the indictment.” Id. at 286, 300 N.Y.S.2d at 98, 248 N.E.2d at 14. The Fowlkes test seems rather hard to apply in specific factual settings. For example, it is not clear whether rape and sexual abuse in the first degree (of which appellant was accused and convicted) would fall within the Act because they depend on “forcible compulsion,” i. e., assault, N.Y. Pen.L., McKinney’s Consol.Laws, §§ 130.35, 130.65, or outside it because the underlying acts are criminal even without the assault— although not in the same degree. N.Y.Pen.L. §§ 130.30, 130.60.

      . Cf. People ex rel. Herrington v. Mancusi, supra note 16, 415 F.2d at 211.

      . People v. Berger, 40 A.D.2d 192, 338 N.Y.S.2d 762 (3d Dep’t 1972); People v. Boyce, 55 Misc.2d 53, 284 N.Y.S.2d 358 (Sup. Ct. Queens Co. 1967).


author: GURFEIN, District Judge:

text:
    Julius E. FOSTER, Plaintiff-Appellant, v. AMERICAN MACHINE & FOUNDRY CO. et al., Defendants-Appellees.
    No. 230, Docket 73-1822.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 4, 1973.
    Decided Feb. 21, 1974.

      Paul J. Foley, Washington, D. C. (Belen & Foley, Washington, D. C., Robert H. Rines, Rines & Rines, Boston, Mass, and Franklin R. Weissberg, Colton, Weissberg & Yamin, New York City of counsel), for plaintiff-appellant.
    William K. Kerr, New York City (Fish & Neave, Herbert F. Schwartz, Raymond C. Marier and Frank H. Gordon, Rogers, Hoge & Hills, New York City of counsel), for defendants-appellees.
    Before WATERMAN and FEINBERG, Circuit Judges, and GURFEIN, District Judge.

       Of the United States District Court for the Southern District of New York, sitting by designation.

   GURFEIN, District Judge:

This is an appeal from a judgment of the District Court, Palmieri, J., confirming the Report of the Special Master, Dana M. Raymond, which awarded the plaintiff reasonable royalties for the defendants’ infringement of his patent in the amount of $344,000 with interest from the date of the filing of the Master’s Report, which denied injunctive relief, and which ordered a compulsory licensing on a reasonable royalty fixed by the Court in lieu thereof. The issues of validity and infringement are not before us on this appeal, having previously been resolved in Foster v. Magnetic Heating Corporation, 297 F.Supp. 512 (S.D.N.Y.1968), aff’d per curiam, 410 F.2d 12 (2 Cir.), cert. denied, 396 U.S. 829, 90 S.Ct. 82, 24 L.Ed.2d 80 (1969) (“Foster I”). For the reasons set forth below, we affirm the judgment.

Since Judge Palmieri’s opinion in Foster I explicated his findings that Foster’s patent was valid and infringed, it is unnecessary to repeat those findings in detail. Some discussion of the facts is necessary, however, for an understanding of the question of the relief appealed from, including the proper measure of damages.

The appellant is the inventor of Patent No. 2,882,384 entitled “Welding System.” This welding system is essentially an impeding device. “It relates to the progressive continuous welding of such items as sheet metal tubes with the aid of a pair of electrodes to which is applied an alternating current voltage for the purpose of supplying electric current for heating the edges of the tube to weld the same together in a continuous process as the sheet metal is folded into tubular form and drawn past the electrodes.” (297 F.Supp. at 514). The Foster patent included “use” claims as well as “apparatus” claims. The utility of the invention is found in Judge Pal-mieri’s description of the prior art and the teachings of the patent in suit: “Welding apparatus of this character had long preceded the Foster invention, since at least the early 1920’s, but was subject to spotty heating effects that produced discontinuous welding spots or beads which left the welded tube with spaced unwelded regions and stress-concentration weakened zones, which prohibited the use of such tubes in applications where they were required to pass fluids or the like or where they were to be pressurized.” 297 F.Supp. at 514.

The Foster patent relates to an improvement in electrical contact resistance welding, one of several systems for longitudinal welding of pipes and tubes, which was exemplified in the Foster patent by application to low frequency welding. The key feature of the Foster patent is the use of electromagnets, positioned in the vicinity of the welding zone, for the purpose of controlling or influencing the path of the welding current.

The appellant, Julius E. Foster, the patentee and the owner of the patent in suit, is a patent solicitor and a member of the Bar of the State of New York and of the Commonwealth of Pennsylvania. He has been at the Bar for almost fifty years. He has never engaged in any manufacturing or other business connected with the patent in suit.

The principal defendant and real party in interest is appellee American Machine & Foundry Co. (AMF). Infringement of the patent has occurred as a result of the commercial activity of AMF’s wholly-owned subsidiary, AMF Therma-tool, Inc., and its predecessors, and the individual proprietors of such predecessor corporations (herein collectively referred to as Thermatool.) Thermatool manufactured welding machinery, which included as a component án impeder which embodied the process protected by Foster’s patent.

Thermatool in turn sold and leased the welding systems, both those containing the infringing impeder and those without it, to foreign and domestic mill producers for the production of longitudinally welded tubes and pipes. The Master found that “the value of the im-peder process, as disclosed in the Foster patent, constitutes a minor but significant fraction of the total value of Thermatool’s welding technology.”

I

The primary issue on this appeal is the amount of damages to which Foster is entitled.

The Master and the District Court applied the willing licensor-willing licensee approach to hypothetical negotiations conducted in 1959-1961 between Foster, as a willing licensor, and Thermatool, as a “willing licensee who would respect the Foster patent.” See Georgia-Pacific Corp. v. U.S. Plywood-Champion Papers, Inc., 446 F.2d 295 (2 Cir.), cert. denied, 404 U.S. 870, 92 S.Ct. 105, 30 L.Ed.2d 114 (1971). Based upon this approach, the Master concluded that “[t]he parties would have agreed upon a royalty measured by the output power of Thermatool’s equipment adapted for use of the Foster impeder process” of $20 per kilowatt of rated output power of ThermatooTs welding equipment, “such x'oyalty to be paid for a license to Thermatool to continue its manufacture and sale of the equipment and for a license to Thermatool’s customers to use the equipment.” The District Court confirmed the report of the Master.

On this formula, the District Court entered judgment for Foster in the sum of $344,000, with interest at 6% from September 22, 1972, the date of filing of the Special Master’s Report.

Foster appeals upon the ground that the judgment is grossly inadequate. He agrees that the proper measure of damages is a “reasonable royalty,” but he contends that it should be based upon the extent of use of his “welding system” by the mill operators who leased the welding equipment containing the infringing impeder from Thermatool.

He says that Thermatool induced the infringement by the mill operators, and, hence, is an infringer within the meaning of 35 U.S.C. § 271(b). That subsection provides that “[w]hoever actively induces infringement of a patent shall be liable as an infringer.” Arguing that Thermatool is an “inducer” rather than a direct infringer, appellant doubles back to 35 U.S.C. § 284 and says that appellant should be awarded “in no event less than a reasonable royalty for the use made of the invention by the in-fringer.” If the infringer is the mill operator, he argues, then the “use of the invention” must be the use made by the mill operator and that use should measure the damages. He contends that damages so measured should be imposed upon the inducer, because under § 271(b) he is liable as if he were the infringer, and because he is, in any event, a joint tortfeasor, liable in solido.

The argument, which has some surface plausibility, is without merit.

The Patent Law was amended in 1946, to provide for the award of “damages” only; and not, as had previously been the case, for an accounting of the profits of the infringer. Act of August 1, 1946 c. 726 § 1, 60 Stat. 778, 35 U.S.C. (1946 ed.) §§ 67, 70.

We have been instructed that “the present statutory rule is that only ‘damages’ may be recovered.” Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 507, 84 S.Ct. 1526, 1543, 12 L.Ed.2d 457 (1964). As noted in Aro Mfg. Co., damages are “ ‘compensation for the pecuniary loss he [the patentee] suffered from the infringement, without regard to the question whether the defendant has gained or lost by his unlawful acts.’ Coupe v. Royer, 155 U.S. 565, 582, 15 S.Ct. 199, 39 L.Ed. 263.” (377 U.S. at 507, 84 S.Ct. at 1543). Damages to the patentee constitute “the difference between his pecuniary condition after the infringement, and what his condition would have been if the infringement had not occurred.” Id., citing Yale Lock Mfg. Co. v. Sargent, 117 U.S. 536, 552, 6 S.Ct. 934, 29 L.Ed. 954.

If we ask ourselves how much Foster would have made if Thermatool had not infringed, the answer must be zero. But Congress was not satisfied to leave the award, in such case, at zero. 35 U.S.C. § 284.

Since appellant would prove no damages at all under the tests noted in Aro, supra, because he was not in business either directly or through licensees, he is entitled only to the reasonable royalty for use of the invention.

Foster urges that a “reasonable royalty” for such use by the mill operators would result in a royalty of $52,000,000 from the sale of 77 “equipments” instead of the $344,000 that was awarded. He notes that there are 69 tube mill operators who have produced $1,750,000,-000 worth of longitudinally welded tube and pipe, employing the infringing Thermatool welding systems. Postulating a reasonable royalty of 3%, the appellant concludes that his damages amount to $52,000,000.

The Master found that “[s]uch damages would be in excess of the total revenues of Thermatool during the accounting period and far in excess of the revenues and profits of Thermatool in respect of its domestic sales of welding equipment.” And the District Court agreed.

As indicated, the Master related the “reasonable royalty” theory to hypothetical negotiations between Foster and Thermatool, rather than between Foster and the 69 mill operators. He also disposed of the theory that such negotiations with the mill operators would have produced a greater royalty. Support for such theory would have to be found in a history evidencing willingness by the mill operators to pay a running, or throughput royalty, based on their production, for rights to the welding process. The Master found that the evidence was to the contrary, a finding confirmed by the District Court. We cannot say that the finding was clearly erroneous.

35 U.S.C. § 284 provides:

“Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.”

“This rule contemplates a suppositious meeting in advance of infringement between patent owner and potential infringer in order to work out a license agreement,” Feinberg, J., in Georgia-Pacific Corp., supra, 446 F.2d at 296-297.

If we treat the mill operator as the in-fringer, there is no substantial evidence that he would have agreed to any royalty for the use of the infringing impeder at the “suppositious meeting.” As Judge Palmieri held, there were two factors which operated to limit the damages of the plaintiff: “(1) [p]ipe and tubing manufacturers customarily do not pay running royalties to the owners of welding process patents; and (2) [p]laintiff’s patent represents a relatively small portion of the overall commercial value of Thermatool’s high frequency welding system. Since running royalties are not customary in the pipe and tubing industry, it is unlikely that any producer would have been willing to pay such royalties for the use of equipment that employed plaintiff’s impeder.” We agree. The question was what a reasonable man would be willing to pay for the use of a part of the whole process. Merrell Soule Co. v. Powdered Milk Co. of America, 7 F.2d 297, 299 (2 Cir. 1925).

A portion of the lump-sum sale price of the Thermatool equipment in its entirety may be said to have been paid for the Foster process, even though the customer was not charged a separate fee; but that is the very basis on which the District Court determined the reasonable royalty, noting that “plaintiff’s impeder had a relatively small effect on the commercial value of defendants’ high frequency welding system. . . . ”

In practical terms, Foster had a patent which obviously required the manufacture of a piece of equipment to make it usable. Foster does not have any licensee who manufactures his patented apparatus or uses his patented process. The parameters of his patent embraced a component in a larger system which utilized his process. He did not have equipment to sell directly to the mill operators. He was hardly in a position to work out an agreement directly with the mill operators. His theoretical licensee, in the formulation of a license agreement, was the manufacturer of the welding equipment who could use his process. And it is precisely in hypothetical negotiation with that prospective licensee that the District Court fixed the reasonable royalty.

Finally, we note that there are no oth- ' er factors that would have been considered at the “suppositious meeting” to determine the reasonable royalty. Since Foster never operated commercially, there are no such factors as Foster’s marketing program, Foster’s lost sales of non-patented items because of the infringement, or Foster’s lost profits.

Appellant contends that even upon the theory of a reasonable royalty based on appellees’ sales, the $20 per kilowatt royalty found by the District Court is a finding that is clearly erroneous. The total royalty awarded in the sum of $344,000 represents more than 3 per cent of the total sales price of the welding systems sold by Thermatool. These welding systems, including the step of turning the sheet metal into tubing, except for the use of the impeder, were found by the Master to be based on the teaching of the Park Patent No. 2,794,108, filed August 31, 1953, and issued May 28, 1957, owned by AMF. The Master found that “the Park patent disclosed and claimed the process and system for high frequency contact resistance welding of longitudinal seamed tubing for which all of Thermatool’s welding systems involved in this accounting have been designed.” The im-peder is only a part of the entire high frequency contact resistance welding equipment sold by Thermatool and an even smaller part of the entire welding complex. Significantly, the Foster im-peder process is not used commercially in any electrical resistance welding systems at low frequencies, although such use was also disclosed in the Foster patent.

The royalty awarded of $20 per kilowatt is 10% of $200, an amount which the Master found Thermatool to have charged its customers “for the right to use Thermatool’s welding technology (know-how and patents) and for services in connection therewith.” The $20 per kilowatt royalty for the Foster impeder process properly took into account, we think, that the Foster process was “an improvement or supplement to Thermatool’s high frequency process, rather than vice versa,” and that “the selling price of Thermatool’s equipment is accounted for in major part by the high frequency generator as to which Foster contributed nothing.” We cannot say that the finding that “[t]he parties would have agreed on a royalty at a rate of $20 per kilowatt on all infringing equipment sold for use in the United States after April 14, 1959” was clearly erroneous. See Columbia Machine & S. Corp. v. Adriance Machine Works, 79 F.2d 16 (2 Cir. 1935). “There is no mathematical formula for the determination of a reasonable royalty.” See Faulkner v. Gibbs, 199 F.2d 635, 639 (9 Cir. 1952).

In sum, we affirm the award of damages by the District Court.

II

Appellant contends that appellee failed to account for an additional 37 units which should have been, but were not, included in the Master’s determination of the royalties to be awarded. On the royalty formula adopted by the Master and approved by the Court, this would require an additional maximum recovery of $37,000.

Twenty-six of these units were sold before April 14, 1959, the issue date of the Foster patent. Eleven of these units were allegedly sold after the issue date.

With respect to the units sold before the issue date of the Foster patent, the sale could not have been, at the time, an infringement, or an inducement to infringe. Coakwell v. United States, 372 F.2d 508, 511, 178 Ct.Cl. 654 (1967). The units sold were Thermatool’s infringing units. We think that the continued use of the welding systems by the mill operators after the flat payment for the systems when bought, did not later constitute an infringement of the after-issued Foster patent. See Aluminum Extrusion Co. v. Soule Steel Co., 260 F.Supp. 221, 224 (C.D.Cal.1966). All the revenues from these sales were derived by AMF before the Foster patent issued.

Since Foster has shown no actual damage, we revert to the “suppositious meeting” after the Foster patent issued, to fix a royalty. We agree with Judge Palmieri “that the parties would have agreed that no royalty would be payable with respect to infringing equipment sold prior to the issuance of plaintiff’s' patent.”

With respect to the eleven units allegedly sold after the issue of the Foster patent, the Master found that “the evidence does not establish that such eleven units have actually been fitted with im-peders and operated in the United States for the production of longitudinally-welded tube and pipe.” The appellant points to no evidence to convince us that the finding is clearly erroneous.

III

Judge Palmieri, as we have seen, awarded interest on the sum awarded from September 22, 1972, the date of filing of the Special Master’s Report to the date of judgment. Appellant contends that, since the award was based on a hypothetical license entered into immediately upon the issuance of his patent, he is entitled to interest on the royalties that should have been paid from that time to judgment. He says that the interest should run equitably on the outstanding infringing sales of each year from the end of each such year.

We think that under prior authority in this Court, appellant’s argument cannot prevail as a matter of law. In Georgia-Pacific Corp., swpra,, this Court resolved the issue of statutory construction. This Court noted that while the 1946 House Report provided for “interest from the time the infringement occurred,” the final version of 35 U.S.C. § 284 speaks of “interest and costs as fixed by the court.” It was held, accordingly, that “Congress did not purport to require interest from the dates on which royalties would normally have been paid.” 446 F.2d at 301. Instead, the statute was construed to mean that the trial court has the traditional discretionary power in equity to award interest. We cannot find, in the absence of a statutory mandate, that Judge Palmieri was required to award interest from an earlier date. See also General Electric Company v. Sciaky Bros., Inc., 415 F.2d 1068, 1076 (6 Cir. 1969).

IV

Appellant contends that the District Court erred in denying an injunction and adjudging, in lieu thereof, a compulsory licensing in favor of appellant at the royalty fixed by the Court.

We do not find any difficulty in agreeing with Judge Palmieri that an injunction would be an inappropriate remedy in this case. An injunction to protect a patent against infringement, like any other injunction, is an equitable remedy to be determined by the circumstances. 35 U.S.C. § 283. It is not intended as a club to be wielded by a patentee to enhance his negotiating stance. See Hoe v. Boston Daily Advertiser Corp., 14 F. 914 (C.C.Mass.1883). Here, as the District Court noted, the appellee manufactures a product; the appellant does not. In the assessment of relative equities, the court could properly conclude that to impose irreparable hardship on the infringer by injunction, without any concomitant benefit to the patentee, would be inequitable. Nerney v. New York, N. H. & H. R. Co., 83 F.2d 409, 410-411 (2 Cir. 1936); American Safety Device Co. v. Kurland Chemical Co., 68 F.2d 734 (2 Cir. 1934).

Instead, the District Court avoided ordering a cessation of business to the benefit of neither party by compensating appellant in the form of a compulsory license with royalties. This Court has approved such a “flexible approach” in patent litigation. Royal-McBee Corp. v. Smith-Corona Marchant, Inc., 295 F.2d 1, 6 (2 Cir. 1961). Here the compulsory license is a benefit to the patentee who has been unable to prevail in his quest for injunctive relief. To grant him a compulsory royalty is to give him half a loaf. In the circumstance of his utter failure to exploit the patent on his own, that seems fair.

Judgment affirmed.

      . Which includes Magnetic Heating Corp.

      . Thermatool also manufactures and sells other -welding systems which do not employ impeders and do not infringe the appellant’s patent.

      . AMF lias never manufactured or sold any low frequency electric resistance welding systems of the kind described in the Foster patent. Impeders, which were found to correspond in function to the electromagnets of Foster’s patent, are found in some, but not all, of AMF’s high frequency contact resistance longitudinal welding equipments.

      . The Master rejected AMF’s contention that the royalty should be based on the “weld head” in Thermatool’s equipment, because the Foster invention disclosed and claimed a “process” for improved welding, and not merely an “improved weld head.” On AMF’s theory, the royalty, at 2% of the aggregate sales price of the infringing weld heads, would have amounted to only about $10,500.

      . In the 1952 Codification, §§ 67 and 70 of the 1946 Code were consolidated in the present § 284.

      . We note, in passing, that Aro Mfg. Co., supra, did not deal with an “active inducer” (§ 271(b)), but with a contributory infringer (271(c)), which Thermatool was not. We do not deal here with the question whether Foster could sue the 77 mill operators as direct infringers. And we do not have occasion to construe Mr. Justice Black’s statement, dissenting in Aro Mfg. Co., supra, 377 U.S. at 523, 84 S.Ct. at 1551: “The Court holds, quite properly I think, that a patentee can get only one recovery for one infringement, no matter how many different persons take part in the infringement.”

      . The “reasonable royalty” concept was originally adopted by the courts in order to fix damages in the absence of. an established royalty or to compensate a patentee unable to demonstrate any actual damage. Dowagiac Mfg. Co. v. Minnesota Moline Plow Co., 235 U.S. 641, 35 S.Ct. 221, 59 L.Ed. 398 (1915). See Russell Box Co. v. Grant Paper Box Co., 203 F.2d 177 (1 Cir. 1953); Munger v. Perlman Rim Corp., 275 F. 21 (2 Cir. 1921).

      . We think the Master properly expressed the concept when he presumed that in the “negotiations” prudent businessmen would arrive at a reasonable royalty “which would (1) provide a fair return to Foster and (2) permit Thermatool to continue its use of the infringing impeder process and earn a reasonable profit from such use.”

      . Although these units were sold before the Foster patent issued, their impeder process relied on the Rudd 488 patent, owned by ap-pellee, which is the same in all material respects as the impeder process disclosed in the earlier filed Foster patent. (See Foster I, 297 F.Supp. 512 (Palmieri, J.)). The Rudd patent has been held to be the subservient patent.

      . H.R.Rep.No.1587, 79th Cong. 2d Sess. (1946), to accompany H.R. 5311 at 1-2 quoted in Aro, supra, 377 U.S. at 505-506, 84 S.Ct. 1526, 12 L.Ed.2d 457.