author: GRANT, Senior District Judge.

text:
    SIERRA CLUB et al., Plaintiffs-Appellants, v. Robert F. FROEHLKE, Secretary of the Army, et al., Defendants-Appellees, and MUand and Doris Slayback et al., Intervenors-Appellees.
    No. 72-1833.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 21, 1973.
    Decided Oct. 2, 1973.

      Frank M. Tuerkheimer, Madison, Wis., for plaintiffs-appellants.
    Kent Frizzell, Asst. Atty. Gen., Terrence L. O’Brien, Atty., Dept, of Justice, Washington, D. C., John O. Olson, U. S. Atty., Madison, Wis., David E. Beck-with, John S. Skilton, Milwaukee, Wis., for defendants-appellees.
    Before CUMMINGS, Circuit Judge, GRANT, Senior District Judge, and GORDON, District Judge.

       Senior District Judge Robert A. Grant of the Northern District of Indiana is sitting by designation.

       District Judge Myron L. Gordon of the Eastern District of Wisconsin is sitting by designation.

   GRANT, Senior District Judge.

The primary issue raised by this appeal is whether an environmental impact statement prepared by the Corps of Engineers concerning a flood control dam project on the Kickapoo River, Wisconsin, complied with the mandates of the National Environmental Policy Act of 1969 (hereinafter NEPA). A secondary question is whether the failure of the Corps of Engineers to request and obtain local assurances of participation from two downstream^ communities voided the project. The district court answered the former question in the affirmative and the latter in the negative. We affirm.

In 1962 Congress authorized the construction of a flood control dam on the Kickapoo River, a free-flowing river with a history of annual destructive floods, located in the southwestern section of Wisconsin. The final design for the dam specified a height of 103 feet with an over-all length of 3,960 feet. The dam would create a reservoir covering 1,780 acres and result in the inundation of approximately 12 miles of the river between the communities of La-Farge and Ontario. This section of the river is popular with canoeists and noted for its picturesque bluffs and sandstone ledges containing rare floral plants. The project also involved supplemental flood protection levees at two small downstream communities, for which both communities were required to make cost-sharing commitments.

The Corps had initially prepared a draft environmental impact statement in November of 1970. After publication of the statement and review by state and local agencies, environmental groups, etc., a final environmental impact statement was prepared and forwarded to the Council on Environmental Quality on April 18, 1972. As correctly noted by the Court below, the statement

is a voluminous document, consisting of 78 pages of text and 400-500 pages of plates and appendices. The EIS is organized under eight headings which correspond closely to the subject matter required under § 4332(2) (C), NEPA: Project Description; Environmental Setting without the Project; Environmental Impact of the Proposed Action; Adverse Environmental Effects which Cannot be Avoided Should the Project be Implemented; Alternatives to the Proposed Action; Short-Term Uses of Man’s Environment. as Compared to Maintenance and Enhancement of Long-Term Productivity; Irreversible or Irretrievable Commitments; Coordination with other Agencies; and Conclusion. Each of the above subjects is divided into numerous subdivisions. All told, fourteen alternatives for flood control, fish and wildlife management, and recreation are considered in the report. Comments on the final draft were requested from 20 federal and state agencies and officials and private organizations and individuals (including plaintiff herein, Sierra Club, John Muir Chapter). Comments were received and incorporated in the EIS from fifteen persons and organizations who responded. Sierra Club v. Froehlke, 345 F.Supp. 440, 443 (W.D.Wis.1972).

Plaintiffs filed suit in the district court with four counts of their complaint alleging, in effect, that the Corps’ environmental impact statement was inadequate in violation of § 102 of the National Environmental Policy Act and, therefore, that continuation of the project was enjoinable under the Administrative Procedure Act. A fifth claim alleged that the project was enjoinable under the Administrative Procedure Act because the requests for local assurances of participation on the project had not been made and received as required by law. Plaintiffs filed a motion for a preliminary injunction with supporting affidavits and legal memoranda. Defendants and intervenors filed counter-affidavits and memoranda of law. The motion was denied by the trial court on 2 June 1972. Ibid. Defendants and inter-venors then filed a motion for summary judgment which was granted by the court on 24 July 1972, the court finding thát the “environmental statement provided adequate notice to all. concerned persons, agencies, and organizations, of the probable environmental consequences of the proposed project.” App. at 50a.

Plaintiffs argue that the statement is inadequate in that the Corps failed to consider useful existing studies, misstated water quality problems, failed to conduct vegetation studies with particular reference to the unique flora of the river’s cliffs which would be inundated by the dam-lake, overstated the beneficial effects of the project, understated the detrimental effects and failed to give proper consideration to available alternatives. Plaintiffs further argue that the district court utilized the wrong test or standard in determining the sufficiency of the statement. They contend that the court’s “notice of problems” test is improper.

The Corps argues that the impact statement objectively meets the requirements of NEPA noting that the statement treats the five specific subject areas set forth in § 4332(2) (C), NEPA. They contend that plaintiffs’ real point is that the agency decision-makers did not accord some factors the weight which plaintiffs would assign them. In response to plaintiffs’ contention that the' statement demonstrates bias and partiality by the Corps rather than objectivity, the Corps argues that it “is obviously not required to give the same weight to plaintiffs’ concern as plaintiffs do,” Hanly v. Mitchell, 460 F. 2d 640, 648 (2nd Cir. 1972), cert, denied, 409 U.S. 990, 93 S.Ct. 313, 34 L. Ed.2d 256, and that some bias is even to be expected, citing Environmental Defense Fund v. Corps of Eng., U.S. Army, 470 F.2d 289 (8th Cir. 1972), cert, denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 160 (1973). The Eighth Circuit Court of Appeals stated in that case as follows:

. NEPA assumes as inevitable an institutional bias within an agency proposing a project and erects the procedural requirements of § 102 to insure that “there is no way [the decision-maker] can fail to note the facts and understand the very serious arguments advanced by the plaintiffs if he carefully reviews the entire environmental impact statement.” [Environmental Defense Fund v. Corps of Eng., U. S. Army,] 342 F.Supp. [1211] at 1218. An institutional bias will most often be found when the project has been partially completed. Id. at 295.

The court concluded that “[T]he test of compliance with § 102, then, is one of good faith objectivity rather than subjective impartiality.” Id. at 296.

Federal agencies are required to demonstrate objectivity in the treatment and consideration of the environmental consequences of a particular project, Environmental Defense Fund, supra, 470 F.2d at 295; Environmental Defense Fund v. Corps of Eng., U. S. Army, 348 F.Supp. 916, 927 (N.D.Miss. 1972). The detailed statement of the environmental consequences required by § 102 “must be sufficiently detailed to allow a responsible executive to arrive at a reasonably accurate decision regarding the environmental benefits and detriments to be expected from program implementation.” Environmental Defense Fund v. Hardin, 325 F.Supp. 1401, 1403-1404 (D.D.C.1971). Stated slightly differently, the statement must provide “a record upon which a decision-maker could arrive at an informed decision.” Environmental Defense Fund v. Corps of Eng., U. S. Army, 342 F.Supp. 1211, 1217 (E.D.Ark.1972), aff’d (8th Cir.), 470 F.2d 289.

In the instant case, plaintiffs argue that Judge Doyle’s finding “that the agency at least recognizes and puts interested persons on notice of problems which exist in these areas [of siltation, water quality, vegetation and identification and discussion of alternatives],” 345 F.Supp. at 444, constitutes a “notice of problems” test which is less demanding than a requirement that the environmental impact statement “be a record upon which a decision-maker could arrive at an informed decision.” 342 F. Supp. at 1217. If this were the only finding made by the district court, we might be inclined to agree with plaintiffs’ argument. However, the court also found that plaintiffs had not shown a sufficient probability of success on the merits as to their “contention that the statement in its present form does not constitute ‘full disclosure’ ” of the environmental consequences of the project “as required by NEPA.” 345 F.Supp. at 444. The court also concluded that plaintiffs had “failed to show a sufficient chance of success on the merits of a contention that the present statement is not a record upon which a decision-maker could make an informed decision.” Id. at 445. These contentions were later decided adversely to the plaintiffs upon the basis of the entire record. App. at 50a. With reference to plaintiffs’ contention that the Corps failed to conduct certain studies in addition to those which were conducted, the district court correctly noted that NEPA

does not require that every conceivable study be performed and that each problem be documented from every angle to explore its every potential for good or ill. Rather, what is required is that officials and agencies take a “hard look” at environmental consequences. Id. at 444.

Or as observed in Environmental Defense Fund, supra, 342 F.Supp. at 1217:

It is doubtful that any agency, however objective, however sincere, however well-staffed, and however well-financed, could come up with a perfect environmental impact statement in connection with any major project. Further studies, evaluations and analyses by experts are almost certain to reveal inadequacies or deficiencies.

We concede that a requirement that the agency take a “hard look” at the environmental consequences, like the “notice of problems” test, might be, in and of itself, “a singularly inappropriate test for reviewing the adequacy of an impact statement,” as suggested by the plaintiffs. Nevertheless, the various statements and findings made by the district court in the case at bar demonstrate an awareness by the court of several standards of review utilized by other courts. We are inclined to agree with the intervenors that any differences in the prescribed tests and standards are semantic and that each of them serves as a means of ensuring that an agency’s impact statement will “alert the public, other interested agencies, the Council on Environmental Quality, the President, and the Congress of possible environmental consequences of proposed agency action.” In any event, we interpret the district court’s opinions as a finding that the Corps objectively and comprehensively considered the environmental consequences of the proposed project.

A second, and perhaps more important, test or standard of review contended for by the plaintiffs is that the district courts have an obligation to review substantive agency decisions on the merits to determine if they are in accord with NEPA. Several courts have recently held that such an obligation exists. As stated by the Eighth Circuit Court of Appeals,

The unequivocal intent of NEPA is to require agencies to consider and give effect to the environmental goals set forth in the Act, not just to file detailed impact studies which will fill governmental archives.
The application of the substantive principles of NEPA is to be made by the agency through a “careful and informed decisionmaking process.” Calvert Cliffs’ Coordinating Committee v. U. S. Atomic Energy Commission, supra [146 U.S.App.D.C. 33] 449 F.2d [1109] at 1115. The agency must give environmental factors consideration along with economic and technical factors. “To ‘consider’ the former ‘along with’ the latter must involve a balancing process.” Id. at 1113.
Given an agency obligation to carry out the substantive requirements of the Act, we believe that courts have an obligation to review substantive agency decisions on the merits. Whether we look to common law or the Administrative Procedure Act, absent “legislative guidance as to re-viewability, an administrative determination affecting legal rights is reviewable unless some special reason appears for not reviewing.” K. Davis, 4 Administrative Law Treatise 18, 25 (1958). Here, important legal rights are affected. NEPA is silent as to judicial review, and no special reasons appear for not reviewing the decision of the agency. To the contrary, the prospect of substantive review should improve the quality of agency decisions and should make it more likely that the broad purposes of NEPA will be realized.
Environmental Defense Fund, supra, 470 F.2d at 298-299.

As to the specific standard of review to be applied, the Court held that

The standard of review to be applied here and in other similar cases is set forth in Citizens to Preserve Overton Park v. Volpe, supra, 401 U. S. [402] at 416, 91 S.Ct. [814] at 824, [28 L.Ed.2d 77]. The reviewing court must first determine whether the agency acted within the scope of its authority, and next whether the decision reached was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. In making the latter determination, the court must decide if the agency failed to consider all relevant factors in reaching its decision, or if the decision itself represented a clear error in judgment.
Where NEPA is involved, the reviewing court must first determine if the agency reached its decision after a full, good faith consideration and balancing of environmental factors. The court must then determine, according to the standards set forth in §§ 101(b) and 102(1) of the Act, whether “the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values.” Calvert Cliffs’ Coordinating Committee v. U.S. Atomic Energy Commission, supra, 449 F.2d at 1115.
Id. at 300.

The Fourth Circuit has expressly adopted the holding of the Eighth Circuit. Conservation Council of North Carolina v. Froehlke, 473 F.2d 664, 665 (4th Cir. 1973). The Fifth Circuit and the District of Columbia Circuit appear to be in accord. Save Our Ten Acres v. Kreger, 472 F.2d 463, 466 (5th Cir. 1973); Calvert Cliffs’ Coordinating Committee v. U. S. Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1115 (1971).

While this court has never considered the test or standard to be utilized in determining whether an environmental impact statement complies with NEPA and whether district courts have an obligation to review substantive agency decisions on the merits, the court has had an opportunity to discuss the importance of the National Environmental Policy Act, in particular, the requirements of Sections 101 and 102:

Through the enactment of these procedural requirements the Congress has not only permitted but has compelled the responsible federal agencies to take environmental values into account. . . . Not only must the environmental consequences of a particular action be considered, but Section 102 requires also that these consequences be weighed and balanced against other considerations, such as financial or social, which may be involved.
The environmental impact statement required by Section 102 is designed to insure that this balancing analysis is given its fullest effect. Pro forma compliance with the substantive guidelines of Section 101 simply will not suffice. Section 102 of NEPA provides that its procedures be implemented and carried out “to the fullest extent possible.” Scherr v. Volpe, 466 F.2d 1027, 1031 (7th Cir. 1972).

In light of these statements, we feel compelled to hold that an agency’s decision should be subjected to a review on the merits to determine if it is in accord with the substantive requirements of NEPA. The review should be limited to determining whether the agency’s decision is arbitrary or capricious. “The court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 77 (1971).

In the instant case, the district court did not conduct a review on the merits. Although a remand would be the normal procedure, we do not believe a remand is required. After reviewing the environmental impact statement prepared by the Corps, we are convinced that the Corps “reached its decision after a fair, good faith consideration and balancing of environmental factors,” and that its decision is neither arbitrary nor capricious.

Plaintiffs also claim that continuation with the Kickapoo project is unlawful under the Flood Control Act of 1962 which initially authorized the project. Section 201 of that Act provides that “the authorization for any flood control project herein adopted requiring local cooperation shall expire five years from the date on which local interests are notified in writing ... of the requirements of local cooperation, unless said interests shall within said time furnish assurances satisfactory to the Secretary of the Army that the required cooperation will be furnished.” Section 203 authorizes a number of projects, one of which is “[T]he project for the Kickapoo River . . . substantially as recommended by the Chief of Engineers in House Document Numbered 557, Eighty-seventh Congress. . . .” Plaintiffs specifically argue that the failure of the Corps to request and obtain local assurances of participation, in the form of cost-sharing commitments, voids the project and renders it enjoinable under the Administrative Procedure Act as not “in accordance with law” [5 U.S.C. § 706(2)(A)], “in excess of statutory . . . authority” [Section 706(2)(C)], and “without observation of procedure required by law” [Section 706(2)(D)].

During oral arguments this Court raised the question as to whether plaintiffs had standing to raise the issues presented by this claim for relief. Plaintiffs and intervenors were permitted to file supplemental briefs on the standing issue.

Both parties agree that the two-pronged test enunciated by the Supreme Court in Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L. Ed.2d 184 (1970), is controlling:

The first question is whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise.
* * * * * *
The question of standing concerns . . . the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. Id. at 152-153, 90 S.Ct. at 829-830.

Plaintiffs argue that they satisfy both requirements. They note that their interests are two-fold: some of the individual plaintiffs, and members of the plaintiff associations, canoe on a portion of the Kickapoo River which would be inundated if the proposed project is completed; others own land which will be condemned if the project continues. Thus, they suggest the injury in fact requirement is clearly satisfied. See Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Plaintiffs stress, however, that it is the continuation and completion of the project without obtaining the necessary local assurances which is causing them injury in fact and not the per se failure of the Corps to obtain local assurances as required by statute.

With reference to the zone of interests test, plaintiffs argue that their interests, though reflecting “aesthetic, con-servational, and recreational” values, are definitely within the zone of interests to be protected or regulated by the statute in question. In fact, they contend that the regulation of their interests is total since implementation of the project terminates their use of the inundated part of the river and will result in the condemnation of their land.

At a minimum, we cannot accept plaintiffs’ analysis of the zone of interests test. While we recognize that “[W]here statutes are concerned, the trend is toward enlargement of the class of people who may protest administrative action,” we fail to understand how plaintiffs’ interests constitute interests protected or regulated by the statutory proviso requiring local assurances of participation for the construction of the downstream levees. The obvious interest sought to be protected or regulated by the proviso is a Congressional interest in ensuring that local communities who are to receive a direct benefit from the local protection levees, share in the cost of such works. As noted by the interve-nors, the interests of neither group of plaintiffs coincide, geographically or otherwise, with the local protection levees and the interest expressed in the statutory proviso. Both the interests of the canoeing plaintiffs and the property-owning plaintiffs arose because of the proposed construction of the dam rather than the downstream local protection levees.

Nor does the fact that plaintiffs have standing to raise the NEPA claims obviate any standing requirement for their “local assurances” claim under § 201 of the Flood Control Act of 1962. Plaintiffs interpret the following statement in Sierra Club v. Morton, supra, 405 U. S. at 737, 92 S.Ct. at 1367, as dispensing with the necessity of demonstrating standing as to the additional issue:

[T]he fact of economic injury is what gives a person standing to seek judicial review under the statute, but once review is properly invoked, that person may argue the public interest in support of his claim that the agency has failed to comply with its statutory mandate.

Although we- believe that plaintiffs are misinterpreting the statement, suffice to say that it is clear that they cannot establish any economic injury attributable to the construction of the local protection levees, with or without the required local assurances. Plaintiffs’ injury in fact, like the interests they seek to protect, relates to the construction of the dam and not to the local protection levees.

We realize that by our treatment of the standing issue, we have inadvertently decided, adversely to plaintiffs’ claim that the failure of the Corps to obtain the local assurances voids the entire project. Indeed, even if we were to assume plaintiffs had standing to assert the claim, we are convinced that the receipt of the local assurances from the communities of Gays Mills and Soldiers Grove to participate in the cost of construction and operation of the local protection levees was not intended by Congress as a condition precedent to the construction of the dam and reservoir.

The judgment of the district court is affirmed.

      . 42 U.S.C. § 4321 et seq.

      . 76 Stat. 1180, 1190 (1962).

      . The basic policies and goals of NEPA are contained in Section 101. (42 U.S.C. § 4331). Section 102 (42 U.S.C. § 4332) provides the methods by which the environmental goals -will hopefully be achieved. The latter section provides, in pertinent part, as follows:
      The Congress authorizes and directs that, to the fullest extent possible: ... (2) all agencies of the Federal Government shall
      (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
      (i) the environmental impact of the proposed action,
      (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
      (iii) alternatives to the proposed action,
      (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
      (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
      Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, [United States Code] and shall accompany the proposal through the existing agency review processes;

      . Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 838 (1972).

      . Sierra Club, supra, 345 F.Supp. 444.

      . Environmental Defense Fund, supra, 470 F.2d at 301.

      . Id. at 300.

      . The interest protected or regulated by the statute “at times, may reflect ‘aesthetic, conservational and recreational’ as well as economic values.” Data Processing Service, supra, 397 U.S. at 154, 90 S.Ct. at 830.

      . Iiid.


source: Caselaw Access Project

author: SIMPSON, Circuit Judge:

license: Public Domain

text:
    Beatrice T. WAGANER, as Administratrix of the Estate of Louis P. Waganer, Jr., Deceased, Plaintiff-Appellant, v. SEA-LAND SERVICE, INC. and S. S. MAIDEN CREEK, her engines, etc., Defendants-Appellees.
    No. 72-2570.
    United States Court of Appeals, Fifth Circuit.
    Nov. 19, 1973.

      Joe H. Little, Jr., Hardy B. Smith, Mobile, Ala., for plaintiff-appellant.
    W. Boyd Reeves, Geoffrey Y. Parker, Mobile, Ala., for defendants-appellees.
    Before ALDRICH, SIMPSON and CLARK, Circuit Judges.

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

      . Our discussion in the text should not be construed as extracting from the precedents in this circuit a strict rule that the “pattern of repairs” doctrine of West must be applied in every case rigidly and without modification or exception. We can visualize situations which may call for an exception, that is where the overall repair work is of a nature not traditionally done by seamen, but where one of the shore-based workers comes aboard to perform work clearly that of a seaman. Suppose, for example, that preliminary to extensive repairs, it became necessary to hoist a signal on the ship indicating the presence aboard of dangerous explosive material, and a shore-based worker was injured performing this task, not only seamen’s work, but also work requiring no particular skill. This is not the case before us, and we emphasize that the question posed is in our judgment an open one.

   SIMPSON, Circuit Judge:

Mrs. Waganer brought the action below as administratrix of the estate of Louis P. Waganer, her husband, who died intestate. She appeals from the granting of summary judgment in favor of the defendant-appellee Sea-Land Service, Inc. (Sea-Land). Mrs. Waganer alleged negligence of Sea-Land and unseaworthiness in the maintenance of the S. S. Maiden Creek, a vessel owned by it on which her husband received fatal injuries. The appellant asserts that summary judgment was entered when there were unresolved and contested issues of material fact in the case and that summary judgment was therefore erroneously entered. We agree and reverse.

The S.S. Maiden Creek, an American flag vessel owned by Sea-Land, docked at the Alabama State Docks in Mobile, Alabama on January 1, 1971, and there discharged her cargo. The ship’s crew, except for four officers, was released the next day, and the power plant was shut down. The ship was towed to the Mobile repair yard of the Alabama Dry-dock and Shipbuilding Company (AD-DSCO) where it remained from January 4th to January 24th. During that time all power, steam, and water used by the vessel were supplied from shore by ADDSCO.

During the period of repairs, no meals were served on board, the sanitary facilities were inoperative, and none of the remaining officers on duty slept on board. The purpose of the repair work was to perform the maintenance required by the American Bureau of Shipping, pursuant to a survey which had been completed in part prior to the S.S. Maiden Creek’s arrival at ADDSCO.

On January 14, 1971, during the course of these repairs, appellant’s husband, Louis P. Waganer, Jr., an employee of ADDSCO, fell from the third deck of the number three cargo hold into the after port deep tank and was pronounced dead on arrival at a nearby hospital. With two other employees plaintiff’s decedent was patching and replacing some four inch drainage pipe with welding equipment. Immediately prior to the accident, a power failure took place in the lighting circuit which supplied light to the area in which Mr. Wa-ganer was working. All three employees, using flashlights, made their way out of the hold by a ladder located at one end. About ten minutes later with the power failure still uncorrected Waganer re-entered the hold by the ladder to finish a welding job. His fall into the deep tank occurred moments later. There were no safety devices or ropes around the deep tank and no emergency lighting equipment in the area. The protective covers of the deep tanks had been removed by ADDSCO during the repairs.

Mrs. Waganer’s suit alleged negligence by Sea-Land and unseaworthiness of its vessel, the S.S. Maiden Creek. The district court found and stated in its Conclusions of Law, that the vessel had been withdrawn from navigation, had been undergoing major repair work, was under the control and custody of ADDSCO and not Sea-Land, and that therefore no warranty of seaworthiness existed. It further found that the repair work created the unsafe working condition, and that as a matter of law Sea-Land could not be found negligent under West v. United States, 1959, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161. This appeal attacks each of these conclusions as erroneous in that material issues of fact remained unresolved with respect to each, asserting that these issues required disposition by a trier of fact at trial, not by the court on a motion for summary judgment.

WARRANTY OF SEAWORTHINESS

Seas Shipping v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 established the right of shore based workers to an action for breach of the warranty of seaworthiness first recognized by the Court as available to seamen in The Osceola, 1896, 189 U.S. 158, 23 S. Ct. 483, 47 L.Ed. 760. West v. United States, 1959, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161, carefully delineated the parameters of that doctrine. While Sieracki extended the seaworthiness warranty to shore-based workers who were on board ship and performing work traditionally done by seamen, West limited its application to “ship’s work”, which the court said was to be determined by examining, “the status of the ship, the pattern of the repairs, and the extensive nature of the work contracted to be done, rather than the specific type of work that each of the numerous shore-based workmen is doing on shipboard at the moment of injury.” 361 U.S. at 122, 80 S.Ct. at 192, 4 L.Ed.2d at 165. As developed by the case law following West this limitation may be roughly equated with the following requirements: (i) the ship in question must have been in navigational status, and not “dead”, which in turn depends upon whether the contracted work is minor or major, and who has custody and control of the ship while the work is being done; and (ii) the pattern of repair must reflect work traditionally and ordinarily done by seamen, excluding persons performing such tasks as making major repairs requiring drydocking or special skills.

A. Navigational Status

Initially we note that whether a ship is “in navigation” is a question of fact for determination by the fact finder. Roper v. United States, 1961, 368 U. S. 20, 82 S.Ct. 5, 7 L.Ed.2d 1. Very recently we have restated and reiterated the West criteria for determining the status of a vessel for purposes of maritime tort liability, saying that “inquiry should focus on the extent of repair operations and on who controls those operations.” Edwin v. Lykes Brothers Steamship Co., 5 Cir. 1973, 472 F.2d 1217, 1219. A primary touch-stone for distinguishing between major and minor repairs is the purpose for which the vessel has been idled. “[A] vessel which temporarily leaves commerce, enters a shipyard for minor repairs, and thereupon returns to commerce, remains in navigation for purposes of the warranty.” Delome v. Union Barge Line Co., 5 Cir. 1971, 444 F.2d 225, cert, denied, 1972, 404 U.S. 995, 92 S.Ct. 534, 30 L.Ed.2d 547. The pleadings and deposition evidence before the lower court showed that the S.S. Maiden Creek was docked for a survey and repairs required by the American Bureau of Shipping of all American flag vessels every five years, and not because Sea-Land intended to take it out of commerce. The vessel entered port under its own power and had already completed part of the survey. The Chief Mate, Taylor, testified on deposition that no “major” repairs were to be done, that is, that no structural changes, alterations in the hull, or major overhauling were contemplated. Further, the affidavit of John H. van Aken, a marine surveyor and consultant, indicated that he felt the repairs to be minor. The lay up time was twenty-one days in all. Under similar circumstances, this court has held that to deny navigational status to the ship in question “seems hardly plausible.” Drake v. E. I. DuPont deNemours & Co., 5 Cir. 1970, 432 F.2d 276, 277. Without intimating an opinion as to how the trier of fact should resolve the question, we are constrained to hold that there is a genuine issue of fact as to the extent of the repairs to be done by ADDSCO.

Similarly, the question of custody and control does not appear to us to be devoid of factual dispute. Appellee Sea-Land asserts that the evidence adduced thus far establishes unequivocally that ADDSCO had complete control and custody of the S.S. Maiden Creek. Assuming our agreement with that proposition, we are nevertheless mindful that “an injured ship repair employee may have a valid claim against a shipowner for damages due to unseaworthiness of the vessel where control of the vessel has been relinquished by the owner. But each case depends on its own facts and circumstances, . . . ” Johnson v. Oil Transport Company, 5 Cir. 1971, 440 F. 2d 109, 115. See further Chief Judge Brown’s concurrence in Moye v. Sioux City & New Orleans Barge Lines, Inc., 5 Cir. 1968, 402 F.2d 238, 241, cited approvingly by Johnson, observing that “[i]t is a mistake, but not one made by this court in this opinion, to read West as a holding that once all of the owner-charterers’ employees have left the scene the warranties of seaworthiness or Jones Act statutory obligation of furnishing a safe place to work will evaporate.” It is undisputed here that initially four and later five officers were on board during regular working hours and at the time of the accident. Chief Mate Taylor’s deposition indicated that he had some degree of authority with respect to safety conditions on board. Sea-Land employed watchmen during the weekends and evenings when officers were not on board. We conclude that the question of custody and control, even if dispositive of the status issue, is not without dispute from a fair reading of the pleadings and the depositions and affidavits present. As already noted the cases dealing with custody and control emphasize its limited evidentiary value. We determine that a genuine issue of material fact exists as to the navigational status of the S.S. Maiden Creek at the time of the decedent’s fatal accident January 14, 1971.

B. Work Ordinarily Done by Seamen

The existence of an issue of fact with respect to the custody of the ship and the extent of repairs to be performed does not, of course, necessarily mean that summary judgment was improper in this case. Plaintiff was further obligated to show that the pattern of repair work being done by ADDSCO was work traditionally and ordinarily done by seamen. Apparently because it determined the issue of navigational status adversely to the appellant, the district court did not make a finding as to the pattern of repair or refer to it in the Conclusions of Law.

Some preliminary observations may put our analysis of this point into focus. First, while we examine the “pattern of repair” which West makes a part of the seaworthiness doctrine by looking at the work actually performed, some courts prefer to consider this aspect of the standard under the rubric of “extent of the work contracted for.” See, e. g., Watz v. Zapata Off-Shore Co., 5 Cir. 1970, 431 F.2d 100, 108. Provided all the West prerequisites are met, though, we do not consider the captions under which they are organized to be of particular significance. We emphasize also that West requires that the focus of inquiry be upon the pattern of repairs, rather than the specific type of work being done by each shore-based seaman at the time of injury. Neither party on brief takes cognizance of this qualification. Appellant argues that Mr. Waga-ner was doing welding which seamen ordinarily do. Sea-Land counters by asserting that its seamen would not do that particular type of repair work. Both assertions miss the point since the issue to be resolved is whether the work being done by ADDSCO’s employees as a group is that ordinarily done by seamen. A similar problem existed in Delome v. Union Barge Line Co., supra, in which a shore-based employee who was to perform minor shipfitting repairs was injured while attempting to board the ship. Denying benefit of the warranty of seaworthiness as to Delome, we said that “whatever Delome’s particular function may have been, his crew was engaged in a specialized task demanding training and skills not customarily found among seamen.” Delome v. Union Barge Line Co., supra, 444 F.2d at 232. Accord, Drake v. E. I. DuPont de-Nemours & Co., 5 Cir. 1970, 432 F.2d 276, 278. It is not our function as an appellate court to decide a factual issue not reached by the district court and not correctly treated by the briefs of the parties. We refuse to hold as a matter of law that appellant did not meet the burden of showing that genuine issues of material fact exist. As to the prima facie application of the warranty of seaworthiness, it was error for the trial court to enter summary judgment against the plaintiff.

EXCEPTION TO THE WARRANTY OF SEAWORTHINESS

Some of our cases recognize that a recovery for unseaworthiness may be denied even though the plaintiff establishes prima facie application of the warranty. The exception obtains where injury results from a transitory condition created by the repair contractor and relating to the «subject matter of the repair contract. Sea-Land claims that this doctrine bars appellant’s suit notwithstanding any possible finding of actionable unseaworthiness.

This exception was first articulated in this circuit by Judge (now Chief Judge) Brown’s concurring opinion in Moye v. Sioux City & New Orleans Barge Lines, Inc., supra, 402 F.2d at 241 :

“If the circumstance bringing about the injury is a transitory condition resulting from the course of performing the contract by one who alone has the present custody and control of the vessel, then the warranty of seaworthiness — which may exist simultaneously as to these very same shore workers concerning conditions over which the operating ship owner (charterer) has a realistic physical responsibility— does not extend to such person for such condition.” (Emphasis supplied)

See also Watz v. Zapata Off-Shore Co., supra, 431 F.2d at 108, n. 8; Patterson v. Humble Oil and Refining Co., 5 Cir. 1970, 423 F.2d 883; Parker v. Cargill, Inc., 5 Cir. 1969, 417 F.2d 772.

Appellee’s claim that this case falls within the exception set out above fails at least at this juncture because it assumes a fact that we have already determined is in genuine dispute, exclusive custody and control vel non of the S.S. Maiden Creek. This circuit has applied this exception only when the repair contractor’s sole custody and control has been established. But, as pointed out in our discussion of navigational status, appellant alleged that Sea-Land, by virtue of the five remaining officers on board, had retained custody and control of the ship, at least as to some parts and for some purposes, including safety and inspection. Thus the applicability of the contractor-created-hazard exception depends upon a prior finding by the trier of fact as to custody and control.

As to custody and control, we make a further observation. The district court, in its Conclusions of Law, found that Sea-Land was not negligent for failure to provide a safe place to work. This finding was based on that part of the West opinion which immunized the ship owner from liability for unsafe conditions created by the contractor when the ship was under the custody and control of the latter. Again, as such a finding presumes that which we have determined to be a genuine issue of material fact, it can be sustained only if, on remand, the trier of fact finds that ADDSCO did have exclusive control and custody of the ship.

CONCLUSION

This case does not reach us with findings of fact made after trial. If it did our review would be under the “clearly erroneous” doctrine of Rule 52(a), F.R.Civ.P. McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20. But the factual issues have not been tried so that we review the judgment below under the rigid standards attendant upon the entry of summary judgment under Rule 56, F.R.Civ.P. It should go without saying that we intimate no opinion as to the ultimate appropriate resolution of the factual issues we determine are still present.

Reversed for further proceedings.


author: HARRY PHILLIPS, Chief Judge.

text:
    UNITED STATES of America, Petitioner, v. Honorable Frank J. BATTISTI, Chief Judge, United States District Court for the Northern District of Ohio, Respondent.
    No. 73-1177.
    United States Court of Appeals, Sixth Circuit.
    Oct. 25, 1973.
    Frederick M. Coleman, U. S. Atty., N. D. Ohio, Cleveland, Ohio, Henry E. Petersen, Asst. Atty. Gen., Crim. Div., Dept, of Justice, Washington, D. C., for petitioner.
    Niki Z. Schwartz, Gold, Rotatori, Mes-serman & Hanna, Cleveland, Ohio, for respondent.
    Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.
   HARRY PHILLIPS, Chief Judge.

By petition for writ of mandamus or prohibition, the Department of Justice asks this Court to direct the District Court to vacate two orders: (1) requiring the recording of all grand jury testimony; and (2) directing, in a certain criminal case, that the Government produce, for the inspection of defense counsel, the names and addresses of all persons whom the Government intends to call as witnesses at the hearing or trial, and all known records of prior criminal convictions of prospective witnesses, when such records have come to the attention of the Government in the ordinary course of preparation for trial. The latter order provides:

“The failure of the Government to comply with this order will result in the exclusion of the testimony of the witness or witnesses to which the information pertains.”

1) Background

Effective January 15, 1973, new local criminal rules were adopted by the United States District Court for the Northern District of Ohio. Among these rules were the following:

“Pule 3(c) An official reporter shall attend and record all testimony of witnesses appearing before every Grand Jury. Such record shall be filed with the Clerk of Courts and transcribed and released to the Court upon order or to the United States Attorney upon request and payment of the appropriate fees to the official reporter.
* * * * * *
“Rule 15(a) Within ten (10) days after arraignment, the United States Attorney and defendant’s attorney shall confer; and, upon request, the Government shall disclose to counsel for the defendant the following material and information within its possession or control:
* * * * * *
“3. The names and addresses of all persons whom the Government intends to call as witnesses at the hearing or trial, together with their relevant written or recorded statements. Names and addresses of witnesses shall not be subject to disclosure if the prosecuting attorney certifies that to do so may subject the witness or others to physical or substantial economic harm or coercion.
* X- X- X- X- *
“6. Any record of prior criminal convictions of persons whom the Government intends to call as witnesses at the hearing or trial.”

On February 26, 1973, the Government filed in this court a “Petition for A Writ of Mandamus or Prohibition” against the United States District Court for the Northern District of. Ohio and each of its judges individually, challenging the validity of certain of these rules, including those quoted above. On March 7, 1973, the District Court repealed the challenged rules.

On February 28, 1973, Honorable Frank J. Battisti, Chief Judge of the District, entered an order in his capacity as Chief Judge, requiring the recording of all grand jury testimony. This order is as follows:

“No Grand Jury Session, at which testimony of witnesses is to be received, may be held in the absence of an official reporter, who shall attend and record all such testimony before the Grand Jury. Should any Grand Jury Session, at which the testimony of witnesses is to be received, be convened without an official reporter, the Clerk of Courts is hereby ordered to recall all grand jury members from the grand jury room and dismiss them from that day’s jury service. Should the United States Attorney, or his designate, inform the Clerk that a Grand Jury Session at which testimony of witnesses is to be received, is not to be recorded by an official reporter, the Clerk of Courts is hereby restrained from calling that panel for service on that day.

“IT IS SO ORDERED.”

On March 8, in the case cited in footnote 1, Judge Battisti ordered the Government to show cause why it should not produce certain materials. The language of this order was taken directly from the challenged local Rule 15(a) (quoted above), which had been repealed the preceding day.

On March 29, 1973, the Government filed a “Supplement To Petition for a Writ of Mandamus or Prohibition,” asking that the action proceed against Judge Battisti. This petition challenges the validity of the order of February 28 requiring the recording of all grand jury testimony, and the order of March 8 requiring discovery.

On April 13, 1973, this court entered an order denying the application for writs of mandamus or prohibition on the ground that these extraordinary writs may not be substituted for an appeal. This order recited that the court will consider the validity of the orders complained of when presented in a proper ease on appeal. On May 3, 1973, the Government filed a petition for rehearing, asserting: (1) that there will be no appropriate case in which to contest by appeal the power of the Chief District Judge to forbid the United States to hold Grand Jury Sessions without a court reporter; and (2) that mandamus is the only proper remedy to contest the discovery order in the Moceri case.

This court thereupon granted reconsideration. . The issues raised by the Government’s petition now are before us for decision.

2) Reporting of Grand Jury Proceedings

This court, as well as a majority of the other circuits,’ recognizes that the recordation of grand jury testimony, although not required by the Constitution or by statute, is the better practice.

In United States v. Hensley, 374 F.2d 341, 352 (6th Cir. 1967), the rule in this Circuit was stated as follows:

“Appellants claim constitutional infringement by the fact that no record was made of grand jury minutes and hence the testimony was not available to them. They are able to cite no law in support of this contention. We agree with the Second Circuit that having a stenographer present to transcribe the testimony given before the grand jury would be better procedure, but that such a transcript is not a constitutional requirement. United States v. Cianchetti, 315 F.2d 584 (C.A. 2, 1963). We also read Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958), and Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1955), generally to the contrary of appellants’ contention.”

8 J. Moore, Federal Practice, § 6.-02[2] (d), at 6-17, 19 (2d ed. 1965) states that “[t]here is no requirement that testimony before the grand jury must be' recorded verbatim, although this is acknowledged to be the better practice.”

Among the decisions supporting the above-quoted view of this court are: United States v. King, 478 F.2d 494, 507 (9th Cir. 1973); United States v. Aloisio, 440 F.2d 705 (7th Cir.), cert, denied, 404 U.S. 824, 92 S.Ct. 49, 30 L.Ed. 2d 51 (1971); Schlinsky v. United States, 379 F.2d 735, 740 (1st Cir. 1967); United States v. Cianchetti, 315 F.2d 584 (2d Cir. 1963); United States v. Messitte, 324 F.Supp. 334 (S.D.N.Y. 1971); United States v. Gramolini, 301 F.Supp. 39 (D.R.I.1969); In re Russo, 53 F.R.D. 564 (C.D.Cal.1971).

In United States v. Aloisio, supra, the Court of Appeals for the Seventh Circuit said:

“While we agree that the preservation of grand jury testimony is the wise practice, we are presently unwilling to bind the various district courts of this Circuit to such a practice. Rather, we will rely upon the individual district courts to exercise their local rule-making powers in this area pending any amendment to Rule 6(e) of the Federal Rules of Criminal Procedure.” 440 F.2d at 708.

In a footnote the court commended the United States District Court for the Northern District of Illinois for adopting a local rule requiring the recording of all testimony before a grand jury, in the following language:

“Commendably, the United States District Court for the Northern District of Illinois has already adopted an appropriate rule to that effect:
Local Rule 1.04(c). Official Reporter to Attend Sessions of the Grand Jury. An Official Reporter of this Court shall attend and record all testimony of witnesses appearing before every Grand Jury. Such record shall be filed with the Clerk of the Court and transcribed and released to the Court upon order or to the United States Attorney upon request and payment of the appropriate fees to the Official Reporter.
See United States v. Gramolini, 301 F.Supp. 39 (D.R.I.1969), for a perceptive study of this problem.” 440 F.2d at 708, n. 2.

In United States v. King, supra, 478 F.2d at 508, the Court of Appeals for the Ninth Circuit said:

“We repeat our previous warnings, however: the Government is courting disaster when it fails to record grand jury proceedings, and the judges should exercise their discretion to require such recording.”

In United States v. Gramolini, supra, 301 F.Supp. at 42, the court said:

“However, the United States Attorney is hereby on notice that every indictment handed down subsequent to the effective date of this decision is vulnerable if grand jury proceedings in obtaining those indictments are not transcribed or otherwise equally effectively recorded.”

Rule 6(d), Fed.R.Crim.P., provides that “for the purpose of taking the evidence, a stenographer or operator of a recording device may be present while the grand jury is in session.”

The American Bar Association’s Special Committee on Federal Rules of Practice has recommended that Rule 6 be amended so as to require that a court reporter transcribe the minutes of all proceedings of a grand jury that are ac-cusatorial in nature. 38 F.R.D. 106.

In Dennis v. United States, 384 U.S. 855, 869-870, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), the Supreme Court reaffirmed the power of a District Court under Rule 6(e) to require disclosure of grand jury testimony.

Under these authorities, this court is not willing to issue a writ of mandamus requiring the District Court to vacate its order requiring recordation of the Grand Jury testimony.

As said by this court, speaking through Judge Weick, in Albert v. U. S. District Court for Western District of Michigan, 283 F.2d 61, 62 (6th Cir. 1960):

“Before petitioner may resort to the extraordinary writ of mandamus, he must establish that he has a clear and certain right and that the duties of the respondent are ministerial, plainly defined and peremptory. United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 51 S.Ct. 502, 75 L.Ed. 1148; United States ex rel. Girard Trust Co. v. Helvering, 301 U.S. 540, 57 S.Ct. 855, 81 L.Ed. 1272; Rayborn v. Jones, 6 Cir., 1960, 282 F.2d 410.”

The extraordinary writs of mandamus and prohibition will be issued by the Court of Appeals only in extreme and unusual cases. Aday v. United States District Court for Western District of Michigan, 318 F.2d 588, 591 (1963); Filmore v. Kalbfleiseh, 286 F. 2d 171, 172 (6th Cir. 1961).

The application for writ of mandamus is denied as to the action of the District Judge with respect to the recordation of grand jury testimony.

3) The Discovery Order

We come now to the discovery order entered by the District Court. The order is as follows:

“Accordingly, the Government is hereby ordered to produce for the inspection of defense counsel the following :
“1. The names and addresses of all persons whom the Government intends to call as witnesses at the hearing or trial; and
“2. Known records of prior criminal convictions of prospective witnesses, when such records have come to the attention of the Government in the ordinary course of preparation for trial.
The failure of the Government to comply with this order will result in the exclusion of the testimony of the witness or witnesses to which the information pertains.
“Defense counsel shall not reveal any information received pursuant to paragraph 2 above, except at trial for the purpose of impeaching of the witness in question.”

The Government asserts that this order goes beyond the discretion of the District Court under Rule 16, Fed.R. Crim.P. If this question were properly before this court for adjudication, it is clear that a serious issue would be presented.

In United States v. Conder, 423 F.2d 904, 910 (6th Cir. 1970), this court said: “[T]he names and criminal records of government witnesses are not discoverable under Rule 16(b).” See also United States v. Annoreno, 460 F.2d 1303, 1310 (7th Cir. 1972); United States v. Addonizio, 451 F.2d 49, 64 (3rd Cir.), cert, denied, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812 (1972); Rosenzweig v. United States, 412 F.2d 844, 845 (9th Cir. 1969); Hemphill v. United States, 392 F.2d 45, 48 (8th Cir.), cert, denied, 393 U.S. 877, 89 S.Ct. 176, 21 L.Ed.2d 149 (1968).

Whether this issue can be adjudicated in the present proceeding depends on whether the order here under attack is an appealable order. Mandamus may not be used as a substitute for an appeal when an appeal is the proper procedure. Hoffa v. Gray, 323 F.2d 178 (6th Cir.), cert, denied, 375 U.S. 907, 84 S.Ct. 199, 11 L.Ed.2d 147 (1963).

The attorneys for Judge Battisti argue that such an order is appealable under 18 U.S.C. § 3731. No authority, other than the literal wording of the statute, is cited to support this position.

The Government, on the other hand, contends that the order is not appeala-ble. It is the Government’s position that only the actual order of exclusion for undisclosed witnesses would be within the purview of the statute. Such an order would come during the trial after jeopardy had attached. The Government correctly contends that it could not appeal such a mid-trial order. The crux of this argument is that Judge Battisti’s order of May 9, 1973, is not a “decision or order of a district'court suppressing or excluding evidence. . . . ” 18 U.S.C. § 3731. The Government, therefore, seeks a writ of mandamus or prohibition to set aside the order of May 9, 1973.

To buttress the view that an extraordinary writ is the only remedy the Government relies upon Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L. Ed.2d 305 (1967), where the trial court issued a pre-trial discovery order. The judge indicated his intention to dismiss the indictment because of the Government’s non-compliance. Before the case was dismissed the Government petitioned for a writ of mandamus to compel the trial court to vacate its order. The Court of Appeals denied the writ, but on reconsideration without new briefs or oral argument the court reversed itself, and, without an opinion, issued a writ of mandamus. The Supreme Court vacated the writ and remanded because of the absence of an opinion by the Court of Appeals.

Apparently the Government relies on this case to show that since a pre-trial discovery order can properly be reviewed by writ of mandamus, then no appeal will lie under 18 U.S.C. § 3731. We conclude that reliance on this case is misplaced since it was decided before the 1968 and 1971 amendments to § 3731.

Whether the May 9 order could be appealed vel non appears to be a question of first impression. We conclude that it is appealable under 18 U.S. C. § 3731, as amended by Pub.L. 91-644, Title III, § 14(a), 84 Stat. 1890. The nearest that this court has come to resolving this issue was in United States v. U. S. District Court for Eastern District of Michigan, 444 F.2d 651 (6th Cir. 1971), aff’d, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). A petition for writ of mandamus was brought to compel the trial court to set aside the following pre-trial discovery order:

“This Court hereby ORDERS that the Government make full disclosure to defendant Plamondon of his monitored conversations. The Court, in the exercise of its discretion, further ORDERS that an evidentiary hearing to determine the existence of taint, either as to the indictment or as to the evidence introduced at trial, be conducted at the conclusion of the trial of this matter.” United States v. Sinclair, 321 F.Supp. 1074, 1080 (E.D. Mich.1971).

The jurisdiction of this court was challenged on the ground that mandamus was not an appropriate form of action to review the question.

The court said:

“It is clear that the District Court order under attack is a pretrial order interlocutory in nature, and hence, not appealable under 28 U.S.C. § 1291 (1964) which conveys appellate power to this court to review only ‘final’ orders of the District Courts. Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275 (1929). Nor is the order here under attack subject to appeal under 28 U.S.C. § 1292 (1964), which grants appellate power to this court in certain limited classes of interlocutory orders, nor under 18 U.S.C. § 3731 (Supp. V, 1965-69), which deals specifically with criminal appeals. ”

“1. The amendment to 18 U.S.C. § 3731, approved January 2, 1971, is by its terms inapplicable to this case. Pub.L. No. 91-644, § 14, 84 Stat. 1880 (Jan. 2, 1971).”

444 F.2d at 655.

The Supreme Court stated that this court was correct in deciding that mandamus was appropriate.

“Jurisdiction was challenged before the Court of Appeals on the ground that the District Court’s order was interlocutory and not appealable under 28 U.S.C. § 1291. On this issue, the Court correctly held that it did have jurisdiction, relying upon the All Writs Statute, 28 U.S.C. § 1651, and cases cited in its opinion, 444 F.2d, at 655-656. No attack was made in this Court as to the appropriateness of the writ of mandamus procedure.” 407 U.S. at 301, n. 3, 92 S.Ct. at 2129.

The issue in the present case differs in two aspects from U.S. District Court, supra. In that case the order did not provide for exclusion for non-compliance and the statute only allowed for appeals from orders granting motions to suppress. Here we have an order that provides for exclusion for non-compliance and a statute that allows appeals from decisions or orders suppressing or excluding evidence.

Unquestionably the grounds for appeal have been broadened by the 1971 amendment to § 3731, and this is consistent with the statutory mandate of liberal construction. Balanced against this are the Supreme Court’s repeated words of caution that the Criminal Appeals Act is to be construed strictly against the Government. See, e. g., United States v. Jorn, 400 U.S. 470, 476, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); United States v. Sisson, 399 U.S. 267, 291, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970); Will v. United States, 389 U.S. 90, 96-97, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967).

The rationale behind this doctrine of strict construction is to avoid violation of the Fifth Amendment’s Double Jeopardy Clause. 400 U.S. at 479-486, 91 S.Ct. 547; 399 U.S. at 307, 90 S.Ct. 2117. This doctrine has no application to a pre-trial order. United States v. Comiskey, 460 F.2d 1293, 1298 (7th Cir. 1972). Double jeopardy would not arise prior to the trial of the criminal charge. 400 U.S. at 476, 91 S.Ct. 547; 399 U.S. at 302-303, 90 S.Ct. 2117.

In United States v. Calandra, 455 F.2d 750, 752 (6th Cir. 1972), this court also adopted a liberal construction of 18 U.S.C. § 3731. The court said:

“We think that the legislative intent was to allow the Government to appeal from any order of the District Court suppressing evidence and ordering the return of seized property except those orders made during trial on an indictment or information. S.Rep. 91-1296 (91st Cong., 2d Session), p. 3. Orders made during the trial could always be reviewed on appeal from a conviction.”
“Congress was aware of the restrictive judicial interpretations of earlier versions of Section 3731, and adopted the 1971 amendment to avoid them. S.Rep. 91-1296 at 18.”

Perhaps the most convincing argument in favor of the appealability of the order in the present case is contained in the legislative history. It was an aim of Congress to give the Government a right to appeal discovery orders which go beyond the rules of criminal procedure. S.Rep. 91-1296 (91st Cong., 2d Sess.), p. 5. These orders typically result in a dismissal for noncompliance. Before the recent amendment to § 3731 the Government could not appeal the validity of the dismissal and the underlying order. S. Rep. at 5. The legislative history shows that Congress was aware of this problem and of court decisions denying the Government’s right to appeal.

The Senate report specifically cites Will v. United States, 389 U.S. 90, 88 S.Ct. 269 (1967), as a case wherein the Government could not appeal a pre-trial discovery order. S.Rep. at 5 n. 13. As pointed out supra, Will dealt with a pre-trial discovery order per se, and the Government has relied on Will in this case. It was with Will and similar cases in mind that Congress adopted the 1971 amendment to § 3731.

In view of the literal wording of the statute, the statutory mandate for liberal construction, judicial acceptance of a liberal interpretation and the legislative history, we conclude that the order in the present case is appealable.

The Government advances only one argument against this proposition: that no order directing exclusion will come until mid-trial. The Supreme Court has observed that it is not the label but the substance of the ruling which determines the question of appealability. United States v. Sisson, 399 U.S. 267, 279 n. 7, 90 S.Ct. 2117, 26 L.Ed.2d 608. The substance of the instant order is that evidence will be excluded if the Government does not comply with the order. We conclude that this is an order “excluding evidence” within the spirit, if not the literal wording, of 18 U.S.C. § 3731.

This court adheres to its original decision that the application for writ of mandamus or prohibition be denied.

      . United States v. Moceri, 359 F.Supp. 431 (N.D.Ohio 1973).

      . For purposes of this opinion we deal with the discovery order entered by the District Judge in Moceri on May 9, 1973, not the show cause order of March 8, 1973.


author: WILLIAM E. MILLER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Gordon Byron FERGUSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Thomas Norwood STREET, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Louis DICKINSON, Defendant-Appellant.
    Nos. 73-1124 to 73-1126.
    United States Court of Appeals, Sixth Circuit.
    Argued June 15, 1973.
    Decided Oct. 24, 1973.
    Bernard W. N. Chill, Jackson, Miss., for Gordon Byron Ferguson.
    Alvin M. Binder, Jackson, Miss., for Gordon Byron Ferguson; Binder, Lucas, Tharpe & Lohrman, Jackson, Miss., of counsel.
    Edward G. Grogan, Memphis, Tenn., for Louis Hobson Dickinson; Heiskell, Donelson, Adams, Williams & Wall, Memphis, Tenn., of counsel.
    James S. Cox, Memphis, Tenn., for Thomas Norwood Street; Krivcher & Cox, Memphis, Tenn., of counsel.
    Thomas F. Turley, Jr., U. S. Atty., J. N. Raines, Asst. U. S. Atty., W. D. Tenn., Memphis, Tenn., for appellee.
    Before MILLER and LIVELY, Circuit Judges, and CECIL, Senior Circuit Judge.
   WILLIAM E. MILLER, Circuit Judge.

The appellants were convicted under 18 U.S.C. § 1341 of using the United States mails to defraud certain banks. (The offense is commonly referred to as “check kiting”). They now appeal and contend, inter alia, that the conviction should be set aside because an improper communication with a juror tainted the verdict. Because of our decision on this issue, we do not reach the other claims advanced by the appellants.

Shortly before the noon recess of the second day of trial, June 27, 1972, counsel for one of the appellants, Louis Dickinson, advised the court in chambers that his client had received a telephone call from a friend who had spent a portion of the previous evening with one of the jurors, Ronald Austin. The attorney said that one Ted Cruchon had called Dickinson that morning and said, “Louis don’t [sic] have anything to worry about. He [Austin] had this thing all figured out that he knew who the heavy was.”

Following the recess the court questioned Austin in chambers, out of the presence of counsel, but with a court reporter. Austin said that he and his wife had been, on the previous evening, at the home of Cruchon, a mutual friend of theirs and Dickinson. The trial had been briefly discussed, with Cruchon doing most of the talking. Counsel were then brought into chambers and Austin was requested to repeat what he had already told the court. He elaborated, saying that Cruchon had called him at around 9:30 P.M. and invited him over for a drink. He and a friend (not his wife as he had stated earlier) went to Cruchon’s house for approximately two hours, but discussed the case for no more than ten to twelve minutes. Austin insisted that he had not spoken to any juror about his conversation of the evening before. “I have not said one word of what was said last night to any juror.” Following Austin’s statements, counsel for appellants moved for a mistrial, which was denied. Austin was excused from the jury.

The jury was brought into the courtroom, and the court explained the situation as follows:

Now, I asked Mr. Austin to come out of the jury room and in conference with him, without [453] going into all of the various circumstances, he had occasion to have a social contact with a person that knew one of the defendants and this — in the course of the conversation the fact that Mr. Austin was serving on the jury was mentioned, and we have not gone into the exact words that were said, had a trial about that, but it was sufficiently— the appearance of it was sufficiently awkward that I felt that I should excuse Mr. Austin and I now need to be— to ask you jurors individually if anything has been said in the jury room that suggests to anybody, each of you have discussed any phase of the case at this point with regard to the guilt or innocence of the defendants.
* # * * * *
Now, I don’t want to give the impression that the Court is mad at anybody but it is my heavy responsibility to see that we, when going forward with the trial, to see that we follow [454] the rules and sometimes just the appearance of something causes us concern and, of course, we have a trial that is going now and we don’t want to stop and have another one.

Next the jury was polled, the court asking two questions of each juror:

[Whether] any juror has discussed the guilt or innocence of any one of the defendants in the jury room or with another juror outside of the jury room discussed with other jurors; and, second, if you as a juror have already made up your mind [455] about the guilt or innocence.

The sixth juror polled, Mr. Hampton, said that he had heard a remark of another juror about the case. The rest of the jury was then excused so that Hampton could be questioned further. .He recalled Austin saying to him on the day before:

“Hell, everybody writes a check on Thursday and they hadn’t got the money to cover it until Friday, so they just go ahead and write it when they go to the grocery store,” and I think, “They write the Thursday night and get their groceries and Friday deposit the money in the bank.”

And earlier that day, on the way back from lunch, Austin had invited Hampton and juror Wayne Jordan to take a walk with him in the park. During their conversation Austin said, “The government really hadn’t made a case yet.” Hampton assured the court that the incident had neither influenced his opinion nor caused him to make any decision on the issues that would be put to the jury. He was allowed to remain on the jury, and the polling continued. All of the other jurors, including Jordan, denied either having heard or participated in any discussion about the case.

New motions were made for a mistrial and denied. An alternate was substituted for Austin; and the trial proceeded, eventually resulting in the conviction of the defendants. Subsequently, motions were made for a judgment notwithstanding the verdict, a new trial and leave to conduct a post-verdict interrogation of jurors. Only the last of these motions was granted.

At the interrogation of jurors on September 29, 1972, Austin testified that he went alone to Cruchon’s house and there met Cruchon, his wife and another person named Bill Yancy. When asked why he had earlier said that he had gone with a friend, Austin replied that he must have misunderstood the question. Yancy was the person to whom he had referred.

Austin admitted that he knew that Cruchon and the defendant, Dickinson, were in the bond business together and that they [Cruchon and Dickinson] had worked for the same company at one time. He also understood that the two men were good friends on a social basis. Austin recalled walking in the park with Hampton and another juror, but he could not remember whether they had discussed the case. Neither could he remember explaining cheek kiting to Hampton.

Mrs. Dickinson, wife of the defendant, testified that Cruchon called their home at approximately 7:00 A.M. on June 27, 1972. When she answered the telephone Cruchon identified himself and said, “Betty, I’ve got good news for you.” He continued, “You don’t have anything to worry about, one of the jurors is a good friend of mine, and he was over at my house last night.” At this point Mr. Dickinson talked to Cruchon.

Finally on November 3, 1972, Ted Cru-chon was called to testify. He confirmed that he was a friend of both Dickinson and Austin, seeing the latter socially on the average of once a week. On the evening of June 26, 1972, Austin had been in his house and Dickinson’s trial was discussed. During the course of the conversation, Cruchon’s wife asked her husband to explain check kiting. He repeated the example as follows.

Q. Would you tell His Honor — well, what explanation [12] did you give her, what words did you say? A. I used the grocery store example.
A. I see. Would you give us the example? A. As far as writing checks and not getting paid until, say, for instance, write a cheek on Monday and not get paid until Monday and you beat them to the bank.

Mrs. Cruchon later reiterated that same example in the conversation with Yancy and Austin. She also commented favorably on the Dickinson children.

Cruchon explained his conversation of the next morning with the Dickinsons:

Q. All right. Now, why did you make that phone call to Mr. Dickinson ? A. I called him because a couple of times in the conversation, not directly with me, but other people, just in the office like I think was the main time, I remember he was always concerned, it was my opinion, of jurors.
Q. Uh-huh. A. (Continuing) He was always concerned with them for some reason, I felt like if they knew his position of check kiting would be a lot better off. That’s the reason I called him, I was easing his mind, I thought in this respect that someone I knew that was in the business world knew at least what check kiting was.

After Cruchon’s testimony, the court ruled from the bench on the motions for a new trial and a judgment notwithstanding the verdict. Both were denied. The court found that although Austin’s conduct was improper, it did not prejudice the jury. His “grocery store” example was said to be an “innocuous remark” and not one that could have affected any jurors. Finally, the court noted that the evidence clearly established a “deceitful scheme” on the part of the defendants. In that context “Mr. Austin’s remark could not have been the only source of establishing the fact of check kiting.”

In Stone v. United States, 113 F.2d 70 (6th Cir. 1940), this Court reviewed the conviction of a defendant who alleged that the jury was tainted because of an improper communication made to one of its members. A person, not acting at the request of the defendant, attempted to bribe a juror. The juror reported the incident, and when questioned, said that he could decide the case on the evidence as though the bribe attempt had not occurred. He also swore not to relate his experience to the other jurors. Subsequently, the court questioned each juror, except the one contacted, on whether anything had happened that might have prejudiced them or whether anyone had either discussed the case or attempted to influence them. After each had answered no, the court reiterated to all that it understood that no one had contacted any juror or made any statement about the case in their presence. Upon conviction there was a motion for a mistrial which was denied.

We reversed on the basis that once an improper communication has been made to a juror, there is a presumption that the rights of the defendant are prejudiced. See Mattox v. United States, 146 U.S. 140, 13 S.Ct. 150, 36 L.Ed. 917 (1892). The burden was on the government to show that no prejudice resulted from the communication. Our insistence on this high standard was necessary, not only to insure that the defendant received a fair trial by impartial jurors, but also to maintain the integrity of the jury system. Inherent in our scheme of justice is the assumption that litigants will have faith in the probity of jury verdicts. Absent such faith the stability on which we depend for the orderly functioning of our legal institutions would be in doubt. As we said in Stone:

The question is, not whether any actual wrong resulted from the conversation . . . with the juror . . . but whether it created a condition from which prejudice might arise or from which the general public would suspect that the jury might be influenced to reach a verdict on the ground of bias or prejudice. When the judgment is weak, prejudice is strong, and it is essential to faith in the jury system that jurors should determine the facts submitted to them wholly on the evidence offered in open court, unbiased and uninfluenced by anything they may have seen or heard outside of the actual trial of the case. 113 F.2d at 77.

The district court, in its ruling from the bench, indicated that it did not believe that there should be a presumption of prejudice in this case because Austin was removed from the panel and not allowed to participate in the decision; whereas, the contacted juror in Stone remained on the jury. The court has correctly pointed to differences that exist between Stone and the present case. The differences, however, do not in any way alter the applicability to our current inquiry of the principles which we laid down in Stone. Certainly a showing that the contacted juror was removed from the jury before he had the opportunity to discuss the case with other members of the panel would be some evidence that no prejudice occurred. Yet it would not so change the inquiry that there should no longer be a presumption of prejudice.

Austin, prior to his excusal from the jury, made at least two statements on the case to other jurors. He explained check kiting to Hampton in terms remarkably similar to those used by Cru-chon. Then on the day after the discussion at Cruchon’s home, he remarked to Hampton, possibly in Jordan’s presence, that he did not believe that the government had proved its case. Although Hampton assured the court that he still had an open mind on the case, and we have no reason not to believe that he made that statement honestly, we cannot ignore the fact that jurors are human beings, subject to the same suspicions, perhaps subconsciously, as all other persons. It is not unreasonable to believe that Hampton may have had his suspicions aroused that Austin’s statements to him were related to Austin’s excusal from the jury and indicative of a possible attempt by defendants to influence the jury improperly.

Similarly, as stated above, the other jurors saw Austin replaced and were told that it was because of a “social contact” with a friend of one of the defendants. The court said that it would not give the exact words spoken “but the appearance of it was sufficiently — that I felt that I should excuse Mr. Austin. . . . ” He then polled the jury, excusing them when it became necessary to question Hampton out of their presence. We can only speculate on whether suspicions were formed that were later carried into the deliberations.

The government introduced no evidence to overcome the presumption of prejudice and perhaps this would have been impossible. It argued that Austin’s remarks were innocuous and would not, on their own, have caused a guilty verdict. Whatever irregularities did exist were said to be harmless and not injurious to appellants. Nevertheless, we are faced here with undisputed facts that a juror was improperly contacted from an outside source and that before being excused he improperly discussed the case with at least one other juror if not more. Under such circumstances it can hardly be said that the presumption is overcome. As indicated, the presumption, although rebuttable, is a rigid one because of its importance in protecting the jury system.

The district judge acted commendably in his attempts to eliminate any possible prejudice so that the trial could proceed. Unfortunately, the matter did not come to the attention of the court until after Austin had already discussed the case with other jurors. By then it was too late.

We find that the presumption of prejudice has not been overcome. Consequently we reverse and remand for a new trial.


author: STEVENS, Circuit Judge.

text:
    ASSOCIATED GENERAL CONTRACTORS OF ILLINOIS, an Incorporated Association, Individually and on Behalf of its Members, Plaintiff-Appellee, v. ILLINOIS CONFERENCE OF TEAMSTERS, an Unincorporated Association, Individually and on Behalf of its Members, Defendant-Appellant. ILLINOIS CONFERENCE OF TEAMSTERS, an Unincorporated Association, Individually and on Behalf of its Members, Plaintiff-Appellant, v. ASSOCIATED GENERAL CONTRACT-TORS of ILLINOIS, an Incorporated Association, Individually and on Behalf of its Members, Defendant-Appellee.
    Nos. 72-1801, 73-1275.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 10, 1973.
    Decided Oct. 19, 1973.

      Clyde E. Craig, St. Louis, Mo., Gerry M. Miller, Milwaukee, Wis., for defendant-appellant.
    Jay G. Swardenski, Peoria, Ill., Karl W. Grabemann, Chicago, Ill., for plaintiff-appellee.
    Before CUMMINGS, PELL and STEVENS, Circuit Judges.
   STEVENS, Circuit Judge.

This is the Union’s second appeal. The litigation arose out of a dispute over the wage scale applicable to work performed during the three month period between April 1, 1970, and July 1, 1970, on highway construction contracts which had been negotiated previously. After the contract grievance procedure became deadlocked, the Union struck or threatened to strike contractors who refused to pay the higher rate. Plaintiff, an association of employers, then invoked the district court’s jurisdiction under § 301 of the Labor Management Relations Act; the court enjoined the strike in order to preserve its jurisdiction to resolve the underlying dispute. Without reaching the merits of that dispute, we held that the entry of the injunction was prohibited by § 4 of the Norris-LaGuardia Act, and remanded for further proceedings. The district court, 345 F.Supp. 1296, then decided the merits of the contract issue in the contractors’ favor. On appeal the Union contends: (1) that its recovery of costs and expenses caused by the issuance of the injunction should not have been limited by the amount of the bond posted by plaintiff; (2) that the district court should not have decided the merits; and (3) that it did so incorrectly. We affirm.

I.

The preliminary injunction required plaintiff to file “a bond with suitable surety in the amount of $1,000.00 securing any amounts that may hereafter be awarded to defendant or its members in the event it should be determined that this order was improperly obtained.” Counsel for the Union objected to the amount of the bond, suggesting that it should be increased to at least $10,000. No formal motion to increase the bond was filed, however, and the Union did not question its adequacy on the first appeal. The issue before us is not whether the bond was adequate; rather, assuming that it was inadequate, does it nevertheless limit the Union’s recovery for costs and expenses incurred as a result of the erroneous issuance of the injunction?

The Union relies on § 7 of the Norris-LaGuardia Act as recently construed by the Third Circuit in United States Steel Corp. v. United Mine Workers, 456 F.2d 483 (1972), cert, denied, 408 U.S. 923, 93 S.Ct. 2492, 33 L.Ed.2d 334. We agree that the case is directly in point but we disagree with its reading of the statutory language.

The language of the section does not expressly authorize any recovery in excess of the amount of the bond. It provides that no temporary restraining order or preliminary injunction shall issue without a bond, and further that the amount of the bond shall be “sufficient to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such order or injunction.” Thus, if the district court were persuaded that the wrongful issuance of an injunction might cause damages in excess of the normal recoverable costs, he clearly would have authority to require a bond in an amount sufficient to indemnify against such damages. But the statute does not purport to change the law which would otherwise be applicable to the recovery of damages in excess of the amount of the bond.

Indeed, the last sentence in the section gives the defendant the right to elect either his remedy under the surety bond or to “pursue his ordinary remedy by suit at law or in equity.” Thus, if apart from the terms of the bond, the defendant is entitled to recover costs, expenses or damages in excess of $1,000, that right is unaffected by the limit on the amount which may be recovered under the bond. Neither the bond nor the statute curtails the recovery the defendant could otherwise obtain. Nor, in our opinion, does the bond or the statute expand the amount which the defendant may recover when he is not asserting a claim under the bond. We believe the right which exists apart from the bond is unaffected by the fact that the statute authorizes security in an amount greater than the claimant could otherwise recover.

In this case, the Union does not argue that, apart from § 7 of the Norris-LaGuardia Act, it has a right to recover expenses or damages in excess of $1,000. It relies only on § 7 as creating a previously unknown substantive right. Acceptance of its claim would be such a significant departure from long and well settled practice that we believe a congressional intent to effect that change would have been expressed unambiguously. We therefore follow the decision of the Eighth Circuit in International Ladies Garment Workers Union v. Donnelly Garment Company, 147 F. 2d 246 (1945), cert, denied, 325 U.S. 852, 65 S.Ct. 1088, 89 L.Ed. 1972, rather than the ruling of the Third Circuit in United States Steel Corp., supra.

II.

The Union does not question the district court's power to grant a declaratory judgment interpreting a collective bargaining agreement. It makes the narrow claim that under the terms of this particular contract, the parties had agreed that deadlocked grievances would be resolved by economic recourse without resort to the courts.

Unquestionably “the means chosen by the parties for settlement of their differences under a collective bargaining agreement [must be] given full play.” See United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 566, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403. But it is one thing to hold that an arbitration clause in a contract agreed to by the parties is enforceable. It is quite a different matter to construe a contract provision reserving the Union’s right to resort to “economic recourse” as an agreement to divest the courts of jurisdiction to resolve whatever dispute may arise. This we decline to do.

In our first opinion in this case we noted that the parties had not agreed to compulsory arbitration and that the Union had expressly reserved the right to “economic recourse” in the event of a deadlock. We therefore held that the rationale of Boys Market did not justify enjoining the strike. The right to strike was protected by the Norris-La-Guardia Act. However, we did not, and do not now, construe the agreement as requiring economic warfare as the exclusive or even as a desirable method for settling deadlocked grievances. The plain language of the statute protects the right to strike, but there is no plain language in the contract compelling the parties to use force instead of reason in resolving their differences. In our view, an agreement to forbid any judicial participation in the resolution of important disputes would have to be written much more clearly than this.

III.

Finally, the Union argues that the merits were decided improperly. As we recognized on the first appeal, there is substance to the Union’s position. We need not repeat what we said there. However, after reviewing the arguments presented then, as well as now, and after studying the district court’s analysis of the issue, we are convinced that he reached the correct conclusion. We think the significance of the Union demand, as well as the contract provision, that the 1970 wage rates would become effective as of April 1, is overcome by the fact that comparable language in prior agreements was consistently understood to be subject to the terms of the “grandfather clause” in the expiring contract. In order to vary the terms of the 1967 contract, we believe a more specific expression of intent was required than a mere reiteration of the effective date provision. Moreover, the basic purpose of the grandfather clause — to enable contractors to bid on the basis of reasonably ascertainable labor costs — would be frustrated by the Union’s construction. We believe the district court correctly interpreted the contract between the parties.

      . 61 Stat. 156, 29 U.S.C. § 185(a).

      . 47 Stat. 70-71, 29 U.S.C. § 104.

      . Associated General Contractors of Illinois v. Illinois Conference of Teamsters, 454 F. 2d 1324 (7th Cir. 1972).

      . There are two appeals to be decided. In the first, 72-1801, Judge Morgan denied the Union’s claim for costs in excess of the bond, and granted summary judgment on the merits for AGO. In the second, 73-1275, Judge Poos dismissed the Union’s attempt to recover costs in an independent suit based upon Section 7 of the Norris-LaGuardia Act. By order of this court dated May 11, 1973, the two appeals were consolidated.

      . That section prohibits the issuance of an injunction in any case growing out of a labor dispute except in certain narrowly defined situations, then prescribes the procedure that must be followed in such eases, and finally outlines the nature of the undertaking the plaintiff must file as follows:
      “No temporary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking with adequate security in an amount to be fixed by the court sufficient to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs (together with a reasonable attorney’s fee) and expense of defense against the order or against the granting of any injunctive relief sought in the same proceedings and subsequently denied by the court.
      “The undertaking mentioned in this section shall be understood to signify an agreement entered into by the complainant and the surety upon which a decree may be rendered in the same suit or proceeding against said complainant and surety, upon a hearing to assess damages of which hearing complainant and surety shall have reasonable notice, the said complainant and surety submitting themselves to the jurisdiction of the court for that purpose. But nothing in this section contained shall deprive any party having a claim or cause of action under or upon such undertaking from electing to pursue his ordinary remedy by suit at law or in equity.” 47 Stat. 71, 29 U.S.C. § 107(e).

      . In United Motors Service v, Tropic-Aire, 57 F.2d 479, 484 (1932), decided less than a month before the approval of the Norris-LaGuardia Act, the Eighth Circuit said “[U]nder the holdings practically of all [sic] the federal and most of the state courts the damages for the improvident issue of an injunction cannot be assessed ... in an amount in excess of the injunction bond . .” This remains the general rule. See 7 Moore’s Federal Practice ¶ 65.10[1] (1973), at 65-98 — 65-99.

      . In its United States Steel decision, the Third Circuit relied heavily on the fact that the statute “reflected a judgment that at least in the period prior to 1932 the judges of federal district courts were entirely too willing to accede to requests by emxiloyers . . . .” 456 F.2d at 493. We have also recognized the significance of this legislative motivation. See our opinion on the prior appeal, 454 F.2d at 1328. See also Boys Market v. Clerks Union, 398 U.S. 235, 250, 90 S.Ct. 1583, 26 L.Ed.2d 199. It does not follow, however, that such a general legislative intent, not implemented by specific statutory language, may alter settled law applicable to injunction bonds. Indeed, a comment by Senator Norris on the relevant portion of § 7 suggests the contrary: “The usual provision for the giving of bond before the issuing of such a temporary order is also provided for.” Quoted in Koretz, Statutory History of the United States, Labor Organizations (1970), at 226.

      . Our decision is predicated on the assumption that the portion of § 7 upon which the Union relies is applicable to injunctions permitted by the Boys Market ruling. There is reason to believe that this assumption is invalid. Nowhere in its opinion in Boys Market did the Court expressly state that the injunction was permitted by the exceptions which are enumerated in § 7. Indeed, in his dissent, Justice Black dismissed the § 7 exceptions as “not here relevant,” 398 U.S. at 255, 90 S.Ct. 1583. Moreover, the Boys Market ruling is predicated in part on § 301 of the Taft-Hartley Act which was not enacted until 1947, and in part on principles fashioned by the courts from their understanding of national labor policy as a whole. See Textile Workers v. Lincoln Mills, 353 U.S. 448, 451, 456, 77 S.Ct. 912, 1 L.Ed.2d 972. The Court’s analysis in Lincoln Mills specifically indicates that the procedural requirements contained in § 7 of the Norris-La-Guardia Act are inapplicable to some labor injunctions. See 353 U.S. at 457-459, 77 S. Ct. 912. In this case, however, we need not decide whether the controlling bond requirement is contained in Rule 65(c) of the Federal Rules of Civil Procedure rather than § 7 of the Norris-LaGuardia Act since we are persuaded that either of those provisions would lead us to the same result.

      . “Our point is not that the court lacks subject matter jurisdiction over alleged violations of collective bargaining agreements or lacks the power to grant declaratory judgments in this regard. Rather, we say that under the agreement in question the court lacked the authority to grant the relief sought. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).” Brief for Appellant at 26.

      . Section 203(d) of the Taft-Hartley Act declares “Final adjustment by a method agreed upon by the parties ... to be the desirable method” for the settlement of disputes. 61 Stat. 154, 29 U.S.C. § 173(d).