author: MATTHES, Senior Circuit Judge.

text:
    Linda ALCALA, Individually and on behalf of all other persons similarly situated, Appellee, v. Kevin J. BURNS, Individually and in his capacity as Acting Commissioner of the State of Iowa Department of Social Services; and Michael Ryan, Individually and in his capacity as Director of the Scott County Department of Social Services, Appellants. Jane DOE and Joan Roe, Appellees, v. Kevin J. BURNS, Individually and in his capacity as Acting Commissioner of the State of Iowa Department of Social Services; and Michael Ryan, Individually and in his capacity as Director of the Scott County Department of Social Services, Appellants.
    No. 73-1595.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 15, 1974.
    Decided March 29, 1974.

      Loma Lawhead Williams, Spec. Atty. Gen., Des Moines, Iowa, for appellants.
    Robert Bartels, College of Law, The University of Iowa, Iowa City, Iowa, for appellees.
    Robert S. Catz, Washington, D. C., Terrence J. Ferguson, Patrick A. Par-enteau, Omaha, Neb., amicus curiae.
    Before MATTHES, Senior Circuit Judge, HEANEY, Circuit Judge, and TALBOT SMITH  Senior District Judge.

       Hon. Talbot Smith, Senior District Judge, Eastern District of Michigan, sitting by designation.

   MATTHES, Senior Circuit Judge.

This appeal presents the question, much litigated in the district courts recently, whether an unborn child is a “dependent child” within the meaning of § 406(a) of the Social Security Act, 42 U.S.C. § 606(a), thus entitling the expectant mother to receive Aid to Families with Dependent Children (AFDC).

Defendants-appellants, Kevin J. Burns, Acting Commissioner of the State of Iowa Department of Social Services, and Michael Ryan, Director of the Scott County Department of Social Services, acting pursuant to their interpretation of the Employees Manual of the Iowa Department of Social Services, denied such assistance to plaintiffs-ap-pellees, who at the time of application were pregnant and who admittedly would become eligible for benefits once their children were born. Upon denial of benefits, plaintiffs brought this class action in the United States District Court for the Southern District of Iowa charging that defendants’ actions violated the Equal Protection and Due Process Clauses of the United States Constitution, and, because inconsistent with § 406(a) of the Social Security Act, 42 U. S.C. § 606(a), also violated the Supremacy Clause. Plaintiffs sought declaratory and injunctive relief, and monetary damages for assistance wrongfully withheld.

Following a hearing, the district court filed findings of fact and conclusions of law. Alcala v. Burns, 362 F.Supp. 180 (S.D.Iowa 1973). Formal judgment was entered adjudging invalid defendants’ denial of AFDC payments to plaintiffs and permanently enjoining defendants from further denying AFDC payments to pregnant women who are otherwise qualified for such payments. Defendants have appealed.

I.

As a preliminary matter, we wish to clarify the basis for jurisdiction in the district court, although no question as to jurisdiction has been raised by the parties on appeal. See United States v. Redstone, 488 F.2d 300, 301 (8th Cir. 1973); Williams v. Rogers, 449 F.2d 513, 517 (8th Cir. 1971), cert, denied, 405 U.S. 926, 92 S.Ct. 976, 30 L.Ed.2d 799 (1972). As was the case in Doe v. Lukhard, 493 F.2d 54 (4th Cir. 1974), to our knowledge the initial circuit case to decide the “unborn child” question, plaintiffs here alleged a colorable claim of denial of equal protection within the scope of § 1983 and its jurisdictional counterpart, § 1343(3), and, accordingly, the district court possessed pendent jurisdiction of the Supremacy Clause claim. Further, whether or not a three-judge court would have been required to determine the constitutionality of defendants’ interpretation of the welfare manual, see Doe v. Lukhard, supra at n. 4, a three-judge court is clearly not required to determine whether that interpretation conflicts with the Social Security Act. Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965).

II.

The Social Security Act requires that “aid to families with dependent children * * * be furnished * * * to all eligible individuals * * 42 U.S.C. § 602(a) (10).

A triad of Supreme Court cases “establishes that, at least in the absence of congressional authorization for the exclusion clearly evidenced from the Social Security Act or its legislative history, a state eligibility standard that excludes persons eligible for assistance under federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy Clause.” Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 505, 30 L.Ed.2d 448 (1971) . See King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Carleson v. Remillard, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972) .

If the King, Townsend and Remillard cases are to govern, it must first be determined that unborn children are “eligible,” that is, that they are “dependent children” within the protection of the Act. On this point the courts have differed. Three district courts have ruled that an unborn child is not a “dependent child.” Mixon v. Keller, 372 F. Supp. 51 (M.D.Fla.1974); Murrow v. Clifford, Civ.No.114-73 (D.N.J., June 12, 1973); Parks v. Harden, 354 F. Supp. 620 (N.D.Ga.1973) (appeal pending Fifth Circuit). One circuit court and twelve district courts, including the court below, have decided that an unborn child is a “dependent child.” Doe v. Lukhard, supra, aff’g 363 F.Supp. 823 (E.D.Ya.1973); Wisdom v. Norton, 372 F.Supp. 1190 (D.Conn.1974); Stuart v. Canary, 367 F.Supp. 1343 (N.D. Ohio 1973); Whitfield v. Minter, 368 F.Supp. 798 (D.Mass.1973); Carver v. Hooker, 369 F.Supp. 204 (D.N.H.1973); Tapia v. Vowell, Civ.No.73-B-169 (S.D. Tex., Nov. 14, 1973) (preliminary injunction granted pending decision of Parks v. Harden by the Fifth Circuit); Tillman v. Endsley, No. 73-1476-Civ-CF (S.D. Fla., Oct. 1, 1973) (preliminary injunction) ; Jones v. Graham, Civ.No.73-L235 (D.Neb., Sept. 5, 1973); Green v. Stanton, 364 F.Supp. 123 (N.D. Ind.1973); Harris v. Mississippi State Dept, of Public Welfare, 363 F.Supp. 1293 (N.D.Miss.1973); Alcala v. Burns, supra; Wilson v. Weaver, 358 F.Supp. 1147 (N.D.Ill.1972). Courts on both sides of the question have looked to the plain meaning of the word “child” and reached opposite results. The Act itself and the legislative history are unhelpful. Of some note are the Department of Health, Education and Welfare (HEW) regulations implementing the Act which provide: “Federal financial participation is available in: * * * (ii) Payments with respect to an unborn child when the fact of pregnancy has been determined by medical diagnosis * * 45 C.F.R. § 233.90(c)(2). The regulations further provide: “Federal financial participation * * * is available in any expenses incurred in establishing eligibility for AFDC, including expenses incident to obtaining necessary information to determine the existence of * * * pregnancy of a mother.” 45 C.F.R. § 233.90(c)(3). HEW, however, takes the position that these regulations merely extend an option to the state of including unborn children within its plan and do not mandate such coverage. In fact, as of 1971, 18 states and the District of Columbia furnished AFDC benefits to unborn children, while 34 states and Puerto Rico did not. Brief for HEW as Amicus Curiae, Appendix B, Murrow v. Clifford, supra.

We seriously question the right of HEW, as opposed to the unquestioned right of Congress, to decide what benefits are optional. Clearly Congress possesses, and has exercised in the past, the power to give individual states an option to exclude children eligible under the federal standards. See Townsend v. Swank, supra, 404 U.S. at 287-289 and n. 5, 92 S.Ct. 502. But there is no indication that Congress has so acted with respect to unborn children.

We ask, as did the district court, from whence can HEW have derived the authority to bestow benefits, albeit supposedly optional benefits, upon unborn children if not from the eligibility provisions of the Social Security Act? We are inclined, in this respect, to accord substantial weight to HEW’s understanding, implicit in the regulations, that unborn children are eligible. On the other hand, we are not permitted to defer to the agency’s practice of making benefits to eligible persons optional. Townsend v. Swank, supra at 286, 92 S. Ct. 502.

We believe that the district court correctly concluded that the term “dependent child” is broad enough to encompass an unborn child and that such coverage is consistent with the purposes of the Social Security Act. The King, Townsend and Remillard cases, then, determine that defendants’ interpretation of the welfare manual, denying benefits to unborn children and their mothers, violates the Supremacy Clause and is invalid.

III.

Although granting declaratory and injunctive relief, the district court refused to order retroactive payment of benefits, citing our case of Doe v. Gillman, 479 F.2d 646, 649 (8th Cir. 1973), petition for cert, filed sub nom. Burns v. Doe, 42 U.S.L.W. 3205 (U.S. Nov. 5, 1973) (No. 73-406), which avoided deciding whether the Eleventh Amendment prohibits retroactive payments by presuming that the Iowa welfare officials would follow their own regulations which, in the court’s view, provided for retroactive payments. Now appellants request this court to decide directly the Eleventh Amendment question. We have already done so in Anderson v. Graham, 492 F.2d 986 (8th Cir. 1973), holding that “the Eleventh Amendment deprives the federal court of jurisdiction to award a money judgment against the State for * * * retroactive [AFDC] payments * *

The judgment of the district court is affirmed.


source: Caselaw Access Project

author: DUNIWAY, Circuit Judge:

license: Public Domain

text:
    In the Matter of Phyllis PETERSON, now known as Phyllis Martin, Court Reporter. UNITED STATES of America, Plaintiff-Appellee, v. Robert MARSHALL et al., Defendants-Appellants.
    Nos. 72-3195, 72-3185 and 72-3186.
    United States Court of Appeals, Ninth Circuit.
    April 2, 1974.
    Order in accordance with opinion.

      Louis S. Rimbach, Sherman Oaks, Cal., for Peterson.
    Robert H. Lund (argued), Long Beach, Cal., for appellant (Eischen and Morgan).
    Major A. Langer (argued), of Delmer, Perona, Langer & Bergvist, Long Beach, Cal., for appellant (Marshall).
    Gregory C. Glynn, Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
    William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., for appellee.
    Before DUNIWAY and ELY, Circuit Judges, and BURNS, District Judge.

       The Honorable James M. Burns, United States District Judge for the District of Oregon, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

This proceeding grows out of the appeals in United States v. Marshall, 9 Cir., 1973, 488 F.2d 1169. In our opinion in that case, we set out, line for line, with all indentations, portions of the 1,410 page reporter’s transcript, to show the format in which that transcript was prepared by the reporter. We also described the controversy about the transcript (see 488 F.2d at 1196-1204).

When our opinion was filed, we issued an order directing the reporter to show cause why she should not be required to repay the moneys that were paid to her as a result of the trial judge’s order to show cause. The reporter responded in writing, and requested a hearing, which was held on March 5, 1974. This opinion constitutes our findings of fact and conclusions of law.

Fees of the reporters in the United States Courts for transcripts are prescribed by the Judicial Conference, pursuant to 28 U.S.C. § 753(f). The Conference, at its September 19-20, 1968 session, fixed the fees at $1.00 per page for the original and $0.40 per page for each copy. (Report of the Proceedings of the Judicial Conference of the United States, Sept. 19-20, 1968, page 58.) The Conference has also set standards for transcripts as follows:

A page shall consist of 25 lines written on paper 8% by 11 inches in size, prepared for binding on the left side, with 1% inch margin on the left side and % inch margin on the right side. Typing shall be 10 letters to the inch.

On May 9, 1969, the Director of the Administrative Office of the United States Courts sent a memorandum to all official United States Court Reporters, enclosing a copy of the foregoing standard, and stating in part:

It has been brought to my attention that some court reporters have not been following the standards for transcript established by the Judicial Conference of the United States.
The most frequent violations have been:
1. Typing 21 lines to the page instead of the prescribed 25; and
2. Reducing margins from the prescribed 1% inches and % inch so that lines are shortened appreciably;
3. Using typewriters that provide more [sic] characters per inch than prescribed.

The result of these practices is, obviously, to add to the number of pages of transcript. Equally obviously, that practice increases the cost of transcript to the litigants. Such increases in my opinion can only be considered overcharges, which may run as high as 25%. Private parties, in my opinion, have legitimate complaints against these practices and may well press them. With respect to Criminal Justice Act and in forma pauperis cases, the United States Government pays the transcript costs. It is unreasonable to ask for appropriations from the Congress to pay for overcharges.

In the transcript in these cases, the left-hand margin of the page is expanded by inch or % inch in every volume. The right-hand margin is expanded substantially and unnecessarily on a high percentage of the lines. Four volumes were typed on a machine that produces less than ten letters per inch. The reporter asserts that the Director’s memorandum never came to her attention. We find this assertion incredible.

The final sentence of the Director’s memorandum reads:

It is my belief that violations are not widespread and that we can rely on the professional ethics of United States court reporters to eliminate them entirely.

It is in this area that we find the reporter’s format used in preparing the transcript improper, in two principal respects.

The first respect is that, throughout the transcript, the first line of each paragraph begins not less than 2% inches inside the margin, and in most volumes three inches inside the margin. We find that the usual standard indentation for paragraphs is five letters or y2 inch. Thus this reporter shortens her lines at the beginning of the paragraphs by 2% or 2y2 inches. What this does in adding pages can be seen from the quoted transcript at 488 F.2d 1197-1198.

The second respect is that this reporter very often makes each sentence of a question or answer into a new paragraph, often even when a sentence consists of one or two words, such as “all right,” “yes, sir,” “No,” etc. Examples appear throughout the transcript quotations in 488 F.2d 1176-1188 and 1197-1198. This, too, is bound to increase the number of pages in the transcript.

To the foregoing, the reporter makes several responses.

First, she says that other reporters in the Central District of California do the same thing. This reminds us of the burglar who claims that he should not be charged because some other burglars are never caught. Moreover, the response is not accurate. Our inspection of other reporter’s transcripts in Central District cases (see 488 F.2d 1203, and fn. 11) does not bear out her assertion. At the hearing, her counsel did not dispute the accuracy of our observation. Some of the reporters indent more than % inch for paragraphs; none does it to the exaggerated degree that this reporter does. Nor do they repeatedly transform sentences into paragraphs.

Second, she says that when she became a federal court reporter she was told by experienced reporters to prepare her transcripts as she does. She names no person who told her this, and we do not accept this explanation.

Third, she concedes that it was improper to use the “spread type” (less than ten letters to the inch) that was used in preparing four of the thirteen volumes of the transcript, and claims that it was used without her knowledge. By a computation based upon a small sample, she concludes that she should repay $83.60.

Fourth, again by a sampling process, she has retyped three portions of the transcript, of ten pages each, in what she asserts is the proper form. By extrapolation from this sample, she arrives at a total excess charge (including the spread type item) of $329.90, which she concedes should be refunded. We doubt the sufficiency of the sample. We also note that in her retyped samples, her indentation for paragraphs is one inch, not y2 inch, and that she has made no allowance for transmutation of sentences into paragraphs. We therefore do not accept the concession as sufficient.

There is expert evidence, by a reporter of long experience, that by reason of this reporter’s format in preparation of the transcript, “the cost of the transcript would be almost doubled.” (See 488 F.2d at 1202, fn. 10.) While we are persuaded by our own examination of the transcript that this opinion overstates the unnecessary costs, it is much closer to the mark than the reporter’s $329.90 figure which substantially understates the excess.

We cannot accept the reporter’s claim that what she did was done innocently, upon the advice of others. Her method of preparing a transcript is so unusual as to be startling. We find that it was used with the intent to enhance the reporter’s fees.

On the whole record, we find that a fair estimate of the overcharge is one-third of the total bill, or $1,337.66. We round this figure off to $1,300.00. One-half of this figure, or $650.00 should be refunded to each of the attorneys, who paid one-half of the reporter’s bill. An order will be entered accordingly.


author: TALBOT- SMITH, Senior District Judge.

text:
    Esther Brocka FOLKERDS, Executor of the Estate of A. C. Brocka, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 73-1600.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 13, 1973.
    Decided March 26, 1974.
    Allen E. Brennecke, Marshalltown, Iowa, for plaintiff-appellant.
    Richard Farber, Atty., Tax Div., Dept, of Justice, Washington, D. C., for defendant-appellee.

      Before GIBSON and ROSS, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   TALBOT- SMITH, Senior District Judge.

This is an action brought pursuant to 28 U.S.C. § 1346(a)(1) (1970) to recover $17,001.25 in federal estate taxes alleged to have been overpaid by the estate of A. C. Brocka. The facts are not in dispute. The controversy centers on whether, under Brocka’s will and Iowa law, certain property passing to the surviving spouse abates for the purpose of paying debts, costs of administration and federal estate taxes. If it does abate, there will be no marital deduction (since no corresponding interest passed to the surviving spouse), and the federal estate tax will be substantially increased. Such is the Government’s position. On the other hand if, as the taxpayer argues, the widow’s' share abates last (arguably according to statute) there will be a sizeable marital deduction and the estate tax has been overpaid, since the larger tax was paid under protest, and suit filed therefor in the District Court. The case was heard on cross motions for summary judgment and the taxpayer’s complaint dismissed. The estate appeals.

A. C. Brocka died testate in Butler County, Iowa, July 24, 1969. He was survived by his wife, Mary Ellen Brocka, and his daughter, Esther Brocka Folkerds. In brief, his will, after providing that his debts be paid, devised a life-estate in four pieces of real estate to his wife, the remainder to his daughter, “My wife to receive the rest residue and remainder of my estate, except [a fifth property devised in fee to the daughter].” At his death the equity in the first four pieces of real estate was valued at $178,667. The fifth property was worth $70,000, and the residue, consisting of both real and personal property, was valued at $65,367.45.

It is this latter sum, less $3,726.01 Iowa inheritance tax, which the taxpayer claims as the marital deduction. The government contends, and the trial court found, that no deduction is allowable since some $12,640.42 in debts and expenses and $59,495.04 in federal estate tax are chargeable against this residuary bequest and the widow therefore took nothing thereunder.

The issue, then, relates to abatement; specifically, whether the debts, charges and federal estate tax are taken from the widow’s interest or that of the daughter. This is a matter to be determined by Iowa law. Riggs v. Del Drago, 317 U.S. 95, 63 S.Ct. 109, 87 L.Ed. 106 (1942). The Code of Iowa § 633.436 (1971) provides in part as follows:

General order for abatement. Except as provided in section 633.211 [not applicable here], shares of the distributees shall abate, for the payment of debts and charges, federal and state estate taxes, legacies, the shares of children born or adopted after the making of a will, or the share of the surviving spouse who elects to take against the will, without any preference or priority as between real and personal property, in the following order:
1. Property not disposed of by the will;
2. Property devised to the residuary devisee, except property devised to a surviving spouse who takes under the will;
3. Property disposed of by the will, but not specifically devised and not devised to the residuary devisee, except property devised to a surviving spouse who takes under the will;
4. Property specifically devised, except property devised to a surviving spouse who takes under the will;
5. Property devised to a surviving spouse who takes under the will.

It is further provided, to the contrary, in § 633.437:

Contrary provision as to abatement. If the provisions of the will, the testamentary plan, or the express or the implied purpose of the devise would be defeated by the order of abatement stated in section 633.436, the shares of distributees shall abate in such other manner as may be found necessary to give effect to the intention of the testator.

These provisions were enacted in 1963 as part of a comprehensive codification known as the Iowa Probate Code. The Chairman of the committee which drafted the Code referred to these provisions as “a codification of the present Iowa case law.” Section 633.436 is an attempt to approximate the probable intent of the majority of testators had the matter been brought to their attention. It also promotes the policy of the election statutes, Code of Iowa §§ 633.236-633.246 (1971), that the surviving spouse of a decedent be assured an ample share of his estate.

The sections of the Iowa Code above quoted were examined in detail in In re Estate of Noe, 195 N.W.2d 361, 363 (Iowa 1972), in which it was held:

Abatement, in Iowa, is generally governed by § 633.436, which specifically delineates the order in which bequests stand aside in deference to estate claims. The background and intent of this statute was discussed at length in the recent case of In re Estate of Twedt, 173 N.W.2d 545, 547 (Iowa [1970]), where we said:
“The section evidences a clear intent on the part of the legislature to protect the interest of the surviving spouse. Each section dealing with property that passes under the will specifically protects the property passing to the spouse down to the very last source. Then, and then only, does the legislature make the spouse’s share subject to debts and charges. (The legacies will already have been eliminated.)
“The Bar Committee Comment found at 47 I.C.A., section 633.436, page 249 reads: ‘Adapted from section 184 of the Model Probate Code with codification of Iowa law that share of surviving spouse abates last in the absence of contrary testamentary intent. This section adopts the modern rule of abatement and makes explicit the order in which the share shall abate in the absence of contrary testamentary intent. * * *.’ The codification of the preference to the widow springs from such cases as In re Estate of Hartman, 233 Iowa 405, 408, 9 N.W.2d 359, where the court held the appellee (spouse) took under the will as purchaser, hence a specific legacy to nephews and nieces must abate before a general legacy to a spouse who elects to take under the will.”
In substance, § 633.437 provides for a contrary order of abatement only in that unusual case where the general scheme provided for in § 633.436 would defeat (1) provisions of the will, (2) the testamentary plan, or (3) the express or implied purpose of the devise. In re Estate of Kraft, 186 N. W.2d [628] * * * 631 [(Iowa 1971)]; In re Estate of Twedt, 173 N.W.2d 545, 548 [(Iowa 1970)].

In the case before us the general order of abatement was not followed but rather the contrary order of abatement, § 633.437. This latter section had its genesis in the realization by the drafting committee that there might be cases where the testator would desire or intend not to give his surviving spouse the priority in abatement specified in the statutory general order. In such event, it was provided, abatement might be ordered by the court in such other manner “as may be necessary to give effect to the intention of the testator.” (§ 633.-437). It is clear, however, that this situation must be an “unusual case” and one where the will “construed as a whole” must disclose “in sufficiently clear and explicit terms” the contrary intent required. Unless, indeed, the requirement of strict and explicit terms to express a contrary intent is followed with scrupulous caution, the dispositions of the testator may well be nullified by a reviewing court according to that court’s view of the deserving equities of the parties before it at the time of probate. The argument pressed is that, weighing the equities against the testamentary dispositions, the testator must have “intended” the contended-for result in view of the manifest unfairness of holding otherwise. Such, however, is not the statutory command.

The leading Iowa cases in this area-are cited and relied upon by both parties hereto. In re Estate of Noe, 195 N.W. 2d 361 (Iowa 1972); In re Estate of Kraft, 186 N.W.2d 628 (Iowa 1971); In re Estate of Twedt, 173 N.W .2d 545 (Iowa 1970). These decisions make clear that the testator must have employed “clear and explicit terms” in order to justify application of the “contrary provision as to abatement,” § 633.-437, a conclusion we find unwarranted by the terms of the simple will before us, supra note 2.

In our consideration of the issues presented we have given great weight to the determination of the Iowa law reached by the District Judge, experienced as he is in the law of the state, but appellant is entitled to a review by us of that determination just as she is of any other legal question in the case. We find, as we noted heretofore, such determination to be unwarranted by the Iowa law upon the facts before us, and that the shares should abate in accordance with the provisions of § 633.436.

Reversed and remanded for proceedings consistent herewith.

      . Int.Rev.Code of 1954, § 2056 provides in part:
      (a) Allowance of marital deduction.

      Eor purposes of the tax imposed by section 2001, the value of the taxable estate shall, except as limited by subsections (b), (c), and (d), be determined by deducting from the value of the gross estate an amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate.
      (b) Limitation in the ease of life estate or other terminable interest.

      * * * * *
      (4) Valuation of interest passing to sxirviv-ing spouse.

      In determining for purposes of subsection (a) the value of any interest in property passing to the surviving spouse for which a deduction is allowed by this section—
      (A) there shall be taken into account the effect which the tax imposed by section 2001, or any estate, succession, legacy, or inheritance tax, has on the net value to the surviving spouse of such interest * *

      . LAST WILL and TESTAMENT of A. C. Brocka.
      I, A. O. Brocka, being of lawful age, of sound and disposing mind and memory and a resident of Butler County, Iowa, do hereby make, publish and declare this to be my Last Will and Testament and I hereby revoke any and all Wills and/or Codicils by me heretofore made.
      ITEM ONE. I direct that the cost of my last illness, my funeral expense and the cost of the administration of my estate and my legal debts be first paid.
      ITEM TWO. I give, devise and bequeath unto Mary Ellen Brocka for the period of her natural life the use, income and control of all of the real estate hereinafter described to-wit:
      [Here follows four described parcels of real estate.]
      for the period of her natural life she to have the use, income and control thereof as long as she may live with the remainder over to my daughter, Esther Brocka-Folkerds and her heirs forever. My wife to receive the rest residue and remainder of my estate, except Item Three heroff [sic.].
      ITEM THREE. I give, devise and bequeath [a fifth described parcel] to my daughter, Esther Brocka-Folkerds, and her heirs forever.
      ITEM FOUR. I hereby nominate and appoint my daughter, Esther Brocka-Folkerds, as executrix of this my Last Will and Testament she to act without the necessity of the giving of any bond, for the faithful performance of her duties as such.
      In witness whereof I have hereunto subscribed my name at the town of Parkers-burg, Butler County, Iowa, this 16 clay of February, A.D. 1959. /s/ A. C. BROCKA

      . Estate Tax Return, Schedule M.

      . The issue before us concerns only the taxpayer and the government. In a declaratory judgment action in state court between the estate of A. C. Brocka and the estate of Mary Ellen Brocka (who died less than a month after her husband) it was determined, contrary to the decision before us, that the gifts to the surviving spouse would be last to abate. The government was not a party to that action and the issue of abatement was not a matter in controversy.

      . Webster, “Decedents’ Estates: Succession and Administration,” 49 Iowa L.Rev. 638, 651 (1964).
      Reasoning that a widow’s election to take under the will renders her a “quasi creditor,” the court in In re Hartman’s Estate, 233 Iowa 405, 409, 9 N.W.2d 359, 362 (1943), held that the widow must take the full value of her bequest, whether general or specific, unless the “will clearly discloses that the testator intended that the provision . for his wife should not be preferred over other legacies.” Hartman was extended to give preference to a widow who took under a residuary clause in Nolte v. Nolte, 247 Iowa 868, 879-890, 76 N.W.2d 881, 888-889 (1956).

      . Webster, supra note 5, at 651. See In re Hartman’s Estate, 233 Iowa 405, 411, 9 N. W.2d 359, 363 (1943): “[T]he law presumes that the testator’s first concern was for his wife * * * Tilt is, presumed that the testator would have intended to prefer his wife, had he known of the insufficiency of assets to satisfy both bequests.”

      . See In re Hartman’s Estate, 233 Iowa 405, 9 N.W.2d 359 (1943).

      . Webster, supra note 5, at 651.

      . In re Estate of Noe, 195 N.W.2d 361, 363 (Iowa 1972).

      . Id. at 364.

      . The trial court’s conclusion that “one of the two devises must go — either the farm to the daughter or the residue to the wife” involves a mathematical inaccuracy if we construe the words “must go” to involve the total obliteration of an interest such as was found in In re Estate of Twedt, 173 N.W.2d 545 (Iowa 1970). The application of the general order of abatement results in charges against the daughter’s sliare of about $55,000. She received a fee interest in one parcel worth $70,000 in addition to a remainder interest in four other properties.

      . Owens v. Childrens Memorial Hosp., 480 F.2d 465, 467 n. 3 (8th Cir. 1973).


author: EDWARDS, Circuit Judge. WEICK, Circuit Judge

text:
    In the Matter of Charles LaMARRE, Respondent-Appellant.
    No. 73-1510.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 9, 1973.
    Decided April 3, 1974.
    Weick, Circuit Judge, concurred in part and dissented in part and filed an opinion.

      Richard A. Harvey, Detroit, Mich., on brief, for respondent-appellant.
    Ralph B. Guy, Jr., U. S. Atty., Fred M. Mester, Asst. U. S. Atty., Chief, Civ. Div., Detroit, Mich., on brief, for appel-lee : The Hon. John Feikens.
    Before WEICK, EDWARDS and LIVELY, Circuit Judges.
   EDWARDS, Circuit Judge.

Appellant LaMarre appeals from a judgment finding him in contempt of court and imposing a $100 fine under 18 U.S.C. § 401(3) (1970). The finding and sentence were entered by a District Judge in the United States District Court for the Eastern District of Michigan, Southern Division, after a citation for contempt and a full hearing.

The facts which triggered this controversy, with two exceptions which we have italicized, are undisputed and we recite them from the Memorandum Opinion of the District Judge:

The events leading to this result are as follows: The case of Audrey Frazier, et al. v. Travelodge International, et al., Civil Action No. 36641, was set for trial before this court. Insurance Company of North America was the insurer of defendant Travelodge, and thus had a right to and was obligated to provide the defense in that case. Respondent herein, LaMarre, was a claims manager for INA, and had principal charge of the defense of the case for INA and Travelodge. For this purpose, respondent retained the law firm of Harvey, Kruse and West-en of this city to defend the suit.
At the time that the trial of the case was ready to commence, it appeared that counsel for both plaintiffs and defendants were agreed on a settlement figure. A phone call was thereupon made to Mr. LaMarre by INA’s counsel, and it was indicated to the court and counsel that Mr. La-Marre would not accept the recommendation of his counsel. Since counsel for INA and personal counsel for one of the defendants nonetheless thought the settlement figure acceptable, the court requested that Mr. LaMarre attend the conference and so indicated to INA’s counsel. A phone call was made, and Mr. LaMarre indicated through his counsel that he refused to attend the conference. The Court thereupon indicated it would recess the matter for approximately one hour and indicated to INA’s counsel that Mr. LaMarre should come to its chambers from his office (about two blocks away) at 11:30 a. m. Thereupon, INA’s counsel, Mr. Milan, was joined by his senior partners, Messrs. Harvey and Kruse, who advised the court that Mr. LaMarre would not attend the conference; hence the second request was refused. The court thereupon ordered INA’s counsel to advise Mr. LaMarre that the court required his appearance at 2:00 p. m. of the same day in the courtroom and that failure on his part to appear could lead to sanctions. At 2:00 p. m. on February 22, 1973, the court was notified by INA’s counsel that Mr. La-Marre refused to appear. His counsel indicated, in open court, that they had notified him of the court’s order and that they had not counseled him to refuse to comply with the court’s order. Again the court deferred, and during the afternoon of that day the court notified Mr. LaMarre through his counsel that he was ordered to attend a hearing in court to answer why he refused to comply with the court’s order. That hearing was set for February 23, at 9:00 a. m. Again at that time Mr. LaMarre, for the fourth time, refused to comply. The court in open court both on the previous day and on February 23 in the presence of INA’s counsel made a complete record of these proceedings. Having dictated an order on the record and then to the court’s secretary, the Marshal was ordered to proceed to Mr. LaMarre’s office and to compel his appearance in court.
Mr. LaMarre was thereupon brought to court, and the court, orally, and in open court, gave him notice of the charge and the essential facts constituting the contempt charged. He was accompanied by Richard Harvey, Esq. A hearing date (several weeks later) was also set which allowed him reasonable time to prepare a defense and he was admitted to bail in the form of a personal bond. This procedure was in accord with Rule 42(b) of the Federal Rules of Criminal Procedure.

In the two italicized sentences the District Judge uses the words “required” and “ordered” when speaking of LaMarre’s appearance. These words doubtless represent the Judge’s intent. Actually, as far as the appellate record is concerned, he never employed either word until after LaMarre’s arrest. The word he did use repeatedly was the more polite (but much less definite) word “request.” (See Appendix.)

Preliminarily we answer several of appellant’s questions because of the probability of their reoccurrence. Appellant claims that the District Judge should have disqualified himself and referred this contempt charge for hearing before another judge. Under Rule 42(b) of the Federal Rules of Criminal Procedure, if the contempt charge involves disrespect toward or criticism of the judge, that judge is, of course, required to disqualify himself from the hearing of the contempt. This record demonstrates no such disrespect or criticism. The District Judge was correct in refusing to disqualify himself.

Appellant also disputes the authority of the District Judge to compel LaMarre’s appearance. Although the “order” involved appears to us to present a question of first impression, we believe it was well within the judicial power. Pretrial proceedings, whether for preparation for trial or for settlement conferences, are an integral and vital part of the judicial process. Rules of court guide and control pretrial. Fed.R.Civ.P. 16; Handbook for Effective Pretrial Procedure, adopted by the Judicial Conference of the United States (1964), 37 F.R.D. 255. We perceive no grounds for denying the trial judge the power to require attendance of any party to the case at any session of the court where the judge deems his presence to be necessary. We believe the District Judge was correct in holding that LaMarre was a party to the proceeding before the court. The Insurance Company of North America was by contract required to defend and to pay the damages, if any, assessed within its policy limits in the District Court suit entitled Frazier, et al. v. Travelodge International, et al., Civil Action No. 36641. While Michigan law, Mich. Comp.Laws Ann. § 500.3030 (1967); Pitcairn v. Rumsey, 32 F.Supp. 146 (W. D.Mich.1940), prohibits the naming of any insurance company as a party defendant, the reality of the matter is that INA had retained counsel, was prepared to defend the suit, and was in complete control of settlement negotiations. Further, it is undisputed that Charles LaMarre was the resident agent of INA in charge of the case.

In short, we have no doubt that the District Judge had the right and the power to issue an order to Mr. LaMarre to attend a pretrial session of the court and, on refusal, to enforce said order by contempt proceedings. Mr. LaMarre’s expressed determination not to accept the recommendation of his own counsel and settle the underlying case could have been reiterated in the conference. It is, of course, clear that on due process grounds, no judge can compel a settlement prior to trial on terms which one or both parties find completely unacceptable. But LaMarre could not, in our judgment, refuse a lawful order to attend such a conference to discuss the matter.

Finally, we find no merit to appellant’s contention that the judgment should be reversed because of the asserted unlawfulness of LaMarre’s arrest. The order for LaMarre’s arrest, based on ample probable cause, was entered on the record in open court. Its lawfulness was not defeated by the fact that the Marshal did not have a copy of it in hand.

This reasoning had led a majority of this court to the verge of affirmance of the contempt judgment. LaMarre’s protestations that he considered the Judge’s requirement of his attendance at the repeatedly adjourned settlement conference to be merely a request rather than an order was counterbalanced by his own attorney’s affidavit that he (the attorney) had received the “order” from the District Judge and had told LaMarre that he (LaMarre) was “ordered” to attend. On searching this record for the order, however, we have been unable to find it.

In the record references of court sessions on February 22, 1973, (the day before the District Judge ordered La-Marre’s arrest) the District Judge had repeatedly phrased his desire to have LaMarre appear in terms of a “request.” As a matter of courtesy, we believe LaMarre should have honored the request. It was certainly not an onerous one.

Further, we think it highly probable that in a telephone call in the afternoon of February 22, the District Judge ordered attorney Milan to tell LaMarre that the District Judge had ordered LaMarre to appear at 9 a. m. on February 23, and that Milan did so. Both the deposition of Milan and the District Judge’s subsequent statements reflect that at this point the District Judge ceased to “request.” There, is however, no record of this “order” to be found in this appellate record.

The judicial power to punish for contempt is an awesome power. See Green v. United States, 356 U.S. 165, 193, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958) (Black, J., dissenting). Because of the potential for abuse, contempt power has been defined by federal statute and circumscribed by ease law.

The applicable statute provides:

§ U01. Power of court
A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as — ■
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official transactions;
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command. June 25, 1948, c. 645, 62 Stat. 701. 18 U.S.C. § 401 (1970).

The applicable section is, of course, subsection (3). Concerning this, this court has said:

Sec. 401(3), Title 18, U.S.Code, plainly limits the power of this court to a case of disobedience or resistance to its “order, rule, decree, or command.” This necessarily means an existing order, rule, decree, or command. Acts of a respondent prior to the entry of the order or judgment which he is charged with disobeying, do not constitute contempt of court, regardless of the intentions of the respondent to avoid the impact of an order or judgment expected by him to be thereafter entered. Berry v. Midtown Service Corp., 2 Cir., 104 F.2d 107, 122 A.L.R. 1341, certiorari dismissed 308 U.S. 629, 60 S.Ct. 297, 84 L.Ed. 525; Ex parte Buskirk, 4 Cir., 72 F. 14, 20; In re Sixth & Wisconsin Tower, 7 Cir., 108 F.2d 538; Parker v. United States, 1 Cir., 126 F.2d 370, 380. NLRB v. Deena Artware, Inc., 261 F.2d 503 (6th Cir.), rev’d on other grounds, 361 U.S. 398, 80 S.Ct. 441, 4 L.Ed.2d 400 (1958).

In one of the cases relied on in Deena Artware, the Fourth Circuit said:

Testing the record of this case in the court below by the rules so established, it will be found that said court had no jurisdiction of the proceeding against Buskirk for contempt. At the time the same was instituted there had not been issued by the court any writ, process, order, rule, decree, or command in the said chancery cause of King v. Buskirk and Mullins, to which the petitioner had or could have shown any disobedience or resistance whatever, as the record clearly shows. Indeed, the charge as first made seems to recognize this as true, and the affidavit first filed and the order first entered sets up the violation of a “stipulation” made in open court as the foundation of the proceedings for contempt. However, reprehensible such conduct on the part of Buskirk may have been, — proceeding upon the theory that the charge was true, which he, however, denied in his answer, — it nevertheless did not constitute a contempt to the court or its orders, and did not authorize any proceedings for a contempt under the provisions of the law as it then existed. A careful examination of the record shows that Buskirk had not been ordered to do or decreed not to do any act or thing in said chancery suit prior to the time he was proceeded against, fined, and committed for contempt. Such being the case, the court had no jurisdiction of said contempt proceedings, and the rule should not have been granted. The court below, it is proper to say, acted upon the theory that the order made by it on the 28th day of June, 1895, — in which it is recited that the court, on the 3d day of June, 1895, directed that in substance a restraining order issue as prayed for by the plaintiff, but which order in fact was not entered, not even prepared, — had the effect, as a nunc pro tunc order, to make valid and binding on the defendants that which the court had intended to do or had ordered done on said 3d day of June. In this, we think, the court below was in error. The rule is now well established that nunc pro tunc orders cannot operate to modify orders theretofore made or to take the place of orders intended to be made but omitted. The courts can by such orders supply omissions in the record of what was actually done in the cause at a former time when it was under consideration, and by mistake or neglect not entered in the clerk’s minutes or the court’s records; but where the court has omitted to make an order which it could have made, and in fact intended to make, it cannot subsequently make the same nunc pro tunc, so as to make it binding upon the parties to the suit from the date when it was so intended to have been entered; and especially is this so in matters relating to criminal proceedings and those involving rules for contempt. Hyde v. Curling, 10 Mo. 359; State v. Clark, 18 Mo. 432; 1 Bish.Cr.Proc. § 1160; Bank v. Dudley, 2 Pet. [492] 522 [7 L.Ed. 496] ; In re Wight, 134 U.S. 136, 10 S.Ct. 487 [33 L.Ed. 885]; Bullitt Co. v. Washer, 130 U.S. 142, 9 S.Ct. 499 [32 L.Ed. 885] ; Brignardel-lo v. Gray, 1 Wall. 627 [17 L.Ed. 693]; Nabers v. Meredith, 67 Ala. 333; In re Limerick, 18 Me. 183; Smith v. Hood, 25 Pa. St. 218. Ex parte Buskirk, 72 F. 14, 20-21 (4th Cir. 1896).

The holding in still another of the cases relied on in Deena Artware is stated thus:

Despite our respect for the views of Judge Van Fleet, we are unable to agree with his opinion that a stay directed to one party can be expanded by implication into an order upon the other. The authorities he cites do not extend so far. Before a person should be subject to punishment for violating a command of the court, the order should inform him in definite terms as to the duties thereby imposed upon him. Once we adopt the principle that an express order to one party carries implications of duties imposed upon the other, it would be difficult to set limits upon the doctrine. We believe it is a wiser policy to punish as contempt only the disobedience of some express command; and such we understand to be the general rule. Berry v. Midtown Service Corp., 104 F.2d 107, 111 (2d Cir. 1939).

See also NLRB v. Express Publishing Co., 312 U.S. 426, 433, 61 S.Ct. 693, 85 L.Ed. 930 (1941); In re Brown, 147 U. S.App.D.C. 156, 454 F.2d 999, 1008 n.49 (1971); McFarland v. United States, 295 F. 648 (7th Cir. 1923).

These cases hold or imply that for an “order” or “command” to be enforced by criminal contempt proceedings, it must be clear and definite and “entered” upon the record or records of the court. These standards strongly suggest that such order be permanently preserved for review. This normally means a written order issued by the court and personally served upon the alleged contemner. Such an order, however, may likewise be enforciblé if entered in open court in the presence of the person concerned or with his knowledge clearly proved. See Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958).

To recapitulate, we believe that it goes without saying that the preceding “requests” of the District Judge which were entered on the court record, no matter how appropriate they may have been, were not orders which served to put LaMarre on notice that his freedom was in jeopardy if he failed to comply. This was knowledge that he was entitled to have.

We hold that under the circumstances of the instant case the judicial instruction of February 22 at 3:15 p. m. which was oral in nature and was transmitted by telephone to be relayed to LaMarre by word of mouth, and which instruction was never entered upon the record of the court, was not an enforcible “order” or “command” within the meaning of 18 U.S.C. § 401(3) (1970).

The judgment of the District Court is reversed.

APPENDIX '

THE COURT: ....

I asked Mr. Milan what the situation was with regard to Mr. Lamarr because I had been led to believe that even though Mr. Milan and Mr. Speer had recommended $10,000 for settlement of each of the eases, for a total of $20,000, that Mr. Lamarr would not agree to that, and would not follow the recommendation of the officers of the Court who were before me as counsel.

I asked Mr. Lamarr to appear so that this could be discussed in pretrial conference. He did not do so.

I again renewed my request that he appear, and as far as I know, he is not here.

Is that correct?

MR. MILAN: That is correct, Your Honor.

THE COURT: And he refuses to attend this Court;_ is that correct?

MR. MILAN: That is correct, Your Honor.

THE COURT: He has been advised by his counsel of the request of the Court.

MR. MILAN: Your Honor, Mr. La-marr — that the Court had ordered myself, John Milan, to produce Mr. Lamarr in this courtroom.

THE COURT: What do you mean by that?

MR. MILAN: Your Honor, I under-

stood your statement in Chambers to the effect that you were ordering me to produce Mr. Lamarr.

THE COURT: Well, I am not going to quibble on words. What I wanted was to have Mr. Lamarr present.

MR. MILAN: Yes.

THE COURT: And he refuses to answer that request of the Court ?

MR. MILAN: That is also correct.

THE COURT: Now, I believe that since this case is a matter of public concern, all cases that are involved in the courthouse are in such a capacity, that this matter of the refusal of a representative of the insurance company to attend a pretrial conference ought to be dealt with by this Court.

But before I do so, I have in mind bringing this up before the entire Bench so that I can consult with my colleagues as to the proper course to take in that regard.

Now, I take it that there is no change, Mr. Milan, of offer for $10,000 for each of the cases ?

MR. MILAN: That is correct, Your Honor.

THE COURT: All right; the case will proceed. The panel is in the next room, and I ask that they be brought in here.

I take it you are ready to proceed?

You are ready to proceed, Mr. Deeb?

Are you representing the defendant, Mr. Kruse?

MR. KRUSE: Your Honor, it was my understanding that the Court requested that because of Mr. Lamarr’s refusal, that I come over to court, and both Mr. Harvey and I, considering the importance of this matter, did attend this morning and discuss the case briefly with you—

THE COURT: And do you, Mr. Harvey, also concur in the statement or the attitude that Mr. Lamarr has taken, not responding to the request of the Court that he attend the pre-trial conference ?

MR. HARVEY: No—

THE COURT: I’m asking you now.

MR. KRUSE: This was scheduled for trial this morning. I concur that Mr. LaMarr has declined the Court’s request to appear before the Court.

THE COURT: Did you counsel him not to appear?

MR. KRUSE: No, I did not.

THE COURT: Did you, Mr. Harvey?

MR. HARVEY: No, I did not.

THE COURT: He is making this

judgment on his own?

MR. HARVEY: Yes, Your Honor.

THE COURT: Now, Mr. Deeb.

MR. DEEB: Your Honor, because of what I consider to be the drastic change in the circumstances in this matter, I certainly at this point do not feel that the plaintiffs are ready to proceed, for the simple reason that we would like to have time at this point to check out the law relative to having this case voluntarily dismissed in the Federal Court, and the possibility of having it reinstituted in the State Courts.

My reasons for this are several in number: I question at this point whether or not to proceed immediately to trial will in fact fully protect the rights of my clients. We have been under the assumption, since approximately a quarter to twelve, that this case was in fact going to be settled for the sum of $10,000 for each plaintiff.

And as a result—

THE COURT: I don’t think you can quite accurately say that because at no time has counsel for the defendant said that this would be done.

MR. DEEB: Well, it was indicated to me, Your Honor, by counsel for the defendant, that the figure of $10,000 was just brought to him. He was under the impression that $15,000 was the figure, and the figure of $10,000 was just brought to him.

And, as a result, it was his feeling that that figure would be accepted.

THE COURT: Well, you have heard both in chambers and on this record, which is in the nature of a special record for the purpose of protecting the rights of all of the parties, that even though Mr. Milan recommended $10,000 be paid each of your clients, for a total of $20,000, the insurance company claims manager, who refuses to obey a request of this Court, also said that he does not want to pay that amount.

MR. DEEB: I certainly appreciate that fact, Your Honor; but at the same time, I do not feel, because of what has transpired here today, that the plaintiffs are ready to proceed to trial at this time.

The plaintiffs would like to have an opportunity to check the law.

THE COURT: Well, let me ask you: Has the Statute of Limitations run in this case?

MR. DEEB: No, it has not, Your Honor.

THE COURT: Is it your desire to begin again in the State Court ?

MR. DEEB: Your Honor, it’s the plaintiffs’ feeling at this point that they might not be able to get the type of trial that they desire here in the Federal Court because of the nature of the negotiations that were conducted today; because of the fact that they were led to believe that this case would be settled for a certain sum.

The attorney strongly recommended the figure to them of $10,000 for each plaintiff. It was his feeling that it would be in their best interest to accept that sum; and now that the plaintiffs are told that they will not be able to receive this sum in settlement, they question the fact at this point of whether or not they should proceed in the Federal Court, and they are wondering whether or not they may be able to proceed, start their case over again and go in the State Courts where they feel they may be, more fully be able to protect their rights.

THE COURT: Do you have any objection to that, Mr. Milan?

MR. MILAN: Yes, Your Honor.

The defendants vehemently oppose the motion. The record for this case shows the case was instituted June of 1971, over a year and a half ago. It has run since that time, and the plaintiff has had more than ample opportunity to move the action from a Federal jurisdiction to a State jurisdiction.

This has not been done, and at this time, we claim on this record that the defendants will be prejudiced in the defense of this action if this matter does not immediately proceed to trial before this Court on this date when it is scheduled.

THE COURT: I find that very difficult to follow, in view of the fact that your real client, the Insurance Company of North America, and its claims manager, doesn’t even want to acknowledge the request of this Court to come to a pretrial conference.

I’ll do this, Mr. Deeb:

I’ll give you until nine o’clock tomorrow morning. This matter will be adjoined until nine o’clock. All parties are instructed to be here at that time.

You may make your motion and I will rule on it at that time.

MR. DEEB: Thank you, Your Honor.

WEICK, Circuit Judge

(concurring in part and dissenting in part).

I agree with the majority that the contempt charge did not involve disrespect of the Judge, and the Judge therefore was not required under Rule 42(b) of the Federal Rules of Criminal Procedure to disqualify himself.

I further agree that the District Judge had jurisdiction, power and authority to compel the supervisor of claims of the insurer, who was in charge of the handling of the case, to appear in Court to attend a pretrial conference. The insurer was the real party in interest and the Court ought not be required at pretrial to deal only with lawyers who had no authority except to try the case.

I further agree that LaMarre’s arrest was lawful.

I part company with my colleagues only in their holdings that the Judge did not issue a definite order or command, and that such order had to be in writing.

The two orders to appear in court at a specified time were certainly as definite as they could be made. Both orders were made part of the record in the case. In my opinion it was not necessary for the orders, made upon a party in open court, to be in writing. Many orders are made every day by Judges in open court, or in pretrial conferences, which are not in writing.

None of the cases cited by the majority supports their thesis, either expressly or by implication.

The’ majority opinion graphically portrays on pages 2 and 3 the painstaking efforts of the Judge and his infinite patience in his attempt to secure La-Marre’s attendance at the pretrial conference. Initially the Judge made only requests for LaMarre to attend; when these requests were repeatedly disobeyed, the Judge then ordered him, on two different occasions, to attend. LaMarre for the fourth time declined to attend. He was given notice of the orders of the Court by his own attorney, Milan, who filed an affidavit so stating.

The conduct of LaMarre was a flagrant violation of the orders of the Court and was contumacious.

We ought not to impair the power and authority of a Judge to conduct efficiently a pretrial conference or a trial.

I would affirm the judgment of conviction for contempt.

      . We recognize that there may be cases where emergency circumstances may justify variation from the formal requirements imposed in this case.

       Throughout the transcript Mr. LaMarre’s name is incorrectly spelled.


author: RONEY, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GIBSON PRODUCTS COMPANY OF WASHINGTON PARISH, LA., INC., Respondent.
    No. 73-1363.
    United States Court of Appeals, Fifth Circuit.
    May 31, 1974.

      Elliott Moore, Acting Asst. Gen. Counsel, National Labor Relations Board, Washington, D. C., Charles M. Paschal, Jr., Dir., Region 15, National Labor Relations Board, New Orleans, La., Allison W. Brown, Jr., Atty., National Labor Relations Board, Washington, D. C., for petitioner.
    David A. Lang, New Orleans, La., for respondent.
    Before BROWN, Chief Judge, and RONEY and GEE, Circuit Judges.
   RONEY, Circuit Judge:

This is the second petition for enforcement of a National Labor Relations Board bargaining order entered against Gibson Products Company. On the Board’s first petition, this Court upheld findings that various activities of Gibson constituted unfair labor practices in violation of section 8(a)(1) of the National Labor Relations Act, 29 U.S. C.A. § 158(a)(1), and enforced the Board’s cease and desist order. The Court remanded the case to the Board, however, for reconsideration of whether an order requiring the Company to bargain with the Union (Local No. 390 of the Retail Clerks International Association) was an appropriate remedy in light of NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), and NLRB v. American Cable Systems, Inc., 414 F.2d 661 (5th Cir. 1969) (American Cable I), two cases decided after the issuance of the Board’s order. NLRB v. Gibson Products Co., 421 F.2d 156 (5th Cir. 1969).

Although on reconsideration the Board adhered to the prescribed remedy of ordering the Company to bargain with the Union on the finding that the facts merited such an order under Gissel and American Cable, we find an abuse of discretion in ordering such relief in the face of our second holding in American Cable, 427 F.2d 446 (5th Cir.), cert, denied, 400 U.S. 957, 91 S.Ct. 356, 27 L.Ed.2d 266 (1970) (American Cable II), and deny enforcement.

I.

The Supreme Court in Gissel, decided almost nine months after the Board’s initial decision in this case, made clear that elections are to be preferred over bargaining orders as the means to determine employee sentiment. In laying down guidelines for the issuance of bargaining orders, the Court established three categories of unfair labor labor practices. The first category consists of “exceptional” cases, marked by “outrageous” and “pervasive” unfair labor practices of “such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had.” 395 U.S. at 613-614. In a case of this character, also known as a Sinclair case (after one of Gissel’s companion cases), a bargaining order may be appropriate without inquiry into union majority status.

The second category is comprised of less extraordinary cases involving less pervasive practices which nevertheless still tend to undermine majority strength and interfere with the electoral process. In such cases a bargaining order could issue if at one point the union had a majority and “[i]f the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight . . . .’’Id. at 614.

Finally, the Court established “a third category of minor less extensive unfair labor practices, which, because of their minimal impact on the election machinery will not sustain a bargaining order.” Id. at 615.

In American Cable II, this Court, as in this case, had before it a second petition for enforcement after a previous remand for reconsideration of a bargaining order in the light of Gissel. Treating the unfair labor practices as a second category case, we held that the Board erred in refusing to consider proffered evidence relating to changes in the situation since the original entry of the Board’s bargaining order and held its findings were therefore inadequate. The obvious thrust of this holding was that a bargaining order is beyond the Board’s discretion if a fair election could be held at the time of reconsideration of the order on remand.

II.

In remanding the bargaining order in this case for reconsideration in light of Gissel and American Cable I, this Court treated the instant case as one within the second Gissel category. It is evident that the Board made the same classification initially and that only late in the day did it view the case as governed by Sinclair, a first category case which it presumed would sustain a bargaining order on remand even though a fair election could then be held. On August 27, 1970, eight months after the remand, the Board issued a Supplemental Decision and Order, 185 N.L.R.B. 362, 75 L.R.R.M. 1055 (1970), reaffirming the determination that a bargaining order should issue. This opinion contained a paraphrase mixing both the .first and second category language of Gissel But the ambiguity as to the Board’s classification at that point is clarified by its strong reaction against the decision in American Cable II, a second category case. After an extensive review of Gissel, the Board concluded that American Cable II, in requiring evidence of contemporary conditions to be heard on remand, misconceived Gissel’s rationale.

The Board took no steps to enforce its reaffirmed bargaining order at that time. A subsequent order entered on April 7, 1971, revealed that a petition for enforcement had been held in abeyance by the Board pending action in the Supreme Court on the Board’s petition for certiorari in American Cable II. This course of action was adopted because of “the factual similarity” between the two cases. The Supreme Court denied certiorari on December 14, 1970. 400 U.S. 957, 91 S.Ct. 356, 27 L.Ed.2d 266 (1970). After the Supreme Court permitted American Cable II to stand, this factual similarity prompted the Board to reopen the ease and remand it for an American Cable II hearing on the contemporary necessity for a bargaining order.

After the hearing and post-hearing proceedings, the Trial Examiner (now Administrative Law Judge), who had also presided over the original hearing, issued a Supplemental Decision. He found first, that the Company’s unfair labor practices did not have any meaningful contemporary existence, and second, that conditions were sufficiently antiseptic for an election. Before discussing the third aspect of the Board’s remand — the appropriateness of a bargaining order — he launched into an extensive criticism of American Cable II. The Trial Examiner then advanced for the first time in these proceedings the contention that this is a first rather than a second category case, and has been ab initio. He grounded this argument on a sentence in the Board’s original decision similar to the finding the Supreme Court deemed sufficient to justify enforcement without remand of the first category bargaining order in Sinclair.

Almost a year later the Board agreed with the new classification, stating in its Second Supplemental Decision and Order

we find that the instant proceeding falls within the purview of Sinclair, and that a bargaining order is the only appropriate remedy for the Respondent’s unfair labor practices, regardless of whether lapse of time or other circumstances might now make a fair election possible.

199 N.L.R.B. No. 115, at 5, 81 L.R.R.M. 1499, 1500 (1972) (footnotes omitted). The Board left undisturbed the Trial Examiner’s findings that the Company’s 1968 violations had no contemporary existence and that the present conditions were sufficiently antiseptic for a free and fair election.

These findings would preclude a bargaining order if the case were still seen as one within the second category. American Cable II bars the issuance in a second category case remanded to the Board of an order to bargain, if it appears on remand that contemporary conditions are such that a fair election could be held.

It is apparent from the foregoing chronology of this case that the Board, disagreeing with American Cable II’s requirement of contemporary necessity for a bargaining order in second category eases, has simply sought to avoid it by reclassifying the case from the second to the first category. But American Cable II is the law of this Circuit and is as binding on the Trial Examiner and the Board, however great their displeasure with it, as it is on us. It is the law which all must follow until such time as the Court en banc overrules the principle or the United States Supreme Court reaches a contrary decision.

III.

Conceding that the bargaining order should not be enforced unless the instant case falls within the first category, the Board now contends that this has been such a case ab initio. The difficulty with this characterization is that the Board has never given any findings or reasons as to why traditional remedies could not have cured the coercive effects of the unfair labor practices so that a fair and reliable election could not have been held, the sine qua non of a bargaining order in a first category case. The Board is under an obligation to articulate its reasoning and to distinguish factually similar cases with contrary results. NLRB v. Metropolitan Life Insurance Co., 380 U.S. 438, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965). Yet the Board has merely stated that a bargaining order was the “only available, effective remedy for substantial unfair labor practices” without any indication why less drastic remedies would not serve to achieve a fair election now or why they were inadequate for this purpose when the matter was first before the Board. For judicial review to be meaningful more is required of the Board than, in the words of American Cable II,

a litany, reciting conclusions by rote without factual explication. We believe that the questions involved in this area of labor law are far too important for such formalistic and perfunctory treatment. . . . Gissel teaches us that ... all concerned must be particularly careful lest the principles of majoritarianism in union representation be unnecessarily frustrated by the cavalier use of bargaining orders.

427 F.2d at 449. See Peerless of America, Inc. v. NLRB, 484 F.2d 1108, 1119 (7th Cir. 1973); General Steel Products, Inc. v. NLRB, 445 F.2d 1350, 1355 (4th Cir. 1971); NLRB v. General Stencils, Inc., 438 F.2d 894, 901 (2d Cir. 1971).

Proper findings and conclusions would have explicitly considered traditional remedies such as a cease and desist order, posting or mailing of a remedial Notice to Employees, or other remedies known to the Board, and would have articulated the Board’s reasons supporting its conclusion that only a bargaining order would suffice to remedy the unfair labor practices. Perl, The NLRB and Bargaining Orders: Does a New Era Begin with Gissel?, 15 Vill.L. Rev. 106, 111-112 (1969). The Board could have given some indication as to the difference between the case at bar and those cases where it found a bargaining order inappropriate even though seemingly similar or perhaps more serious unfair labor practices were involved. See Peerless of America, Inc. v. NLRB, 484 F.2d 1108, 1119 (7th Cir. 1973); NLRB v. General Stencils, Inc., 438 F.2d 894, 905 (2d Cir. 1971), after remand, 472 F.2d 170, 172 (1972).

The Trial Examiner, however, suggests the Board’s first decision satisfied the findings requirement with the statement that a bargaining order should issue “to remedy the violations of Section 8(a)(1) by restoring the status quo ante.” This wording, he submits, was sufficiently equivalent to the finding on which the Gissel Court relied in enforcing Sinclair that a bargaining order was necessary to repair the unlawful effect of unfair labor practices. See 395 U.S. at 615. This suggestion confuses form with substance. The question is not how close the Board came to invoking proper talismanic words or ritual phrases. The purpose of Gissel is that the Board, before taking the serious step of issuing a bargaining order, carefully examine the effect of unfair labor practices upon electoral conditions, not merely that it substitute one set of magic words for another. Carson, The Gissel Doctrine: When a Bargaining Order Will Issue, 41 Fordham L.Rev. 85, 113 (1972). Further, since the ultimate inquiry is whether a fair election can be held, the Board must also determine what effect the various traditional remedies at its disposal would have on the disturbed conditions.

IV.

When the Board’s reasoning is inadequate, meaningful judicial review is difficult and the normal procedure is to remand. NLRB v. Metropolitan Life Insurance Co., 380 U.S. 438, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965); see Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 (1941). In this case, however, the Board has already had an opportunity to consider Gissel on remand. We will assume that it has said all that it has to say concerning this case. In view of the extended time span of this dispute, already in its seventh year, and the simplicity of the factual circumstances involved, we will supply the essential analysis and proceed to a final disposition, thereby avoiding needless further delay. Peerless of America, Inc. v. NLRB, 484 F.2d 1108, 1120 (7th Cir. 1973) ; NLRB v. Ship Shape Maintenance Co., 154 U.S.App.D.C. 186, 194 n. 23, 474 F.2d 434, 442 n. 23 (1972); see Harper & Row Publishers, Inc. v. NLRB, 476 F.2d 430, 435-437 (8th Cir. 1973).

We turn therefore to the propriety of the bargaining order. As previously noted, Sinclair bargaining orders are justified in exceptional cases marked by unfair labor practices so outrageous and pervasive that traditional remedies cannot eliminate their coercive effects with the result that a free election cannot be held. In his Supplemental Decision, the Trial Examiner found in essence that the cease and desist order removed the electoral taint occasioned by the Company’s 8(a)(1) violations. After the Company had been forced by this Court to comply with the order and had posted the required Notice to Employees, a fair election became possible. If traditional remedies such as a cease and desist order and a posted notice can overcome the effect of a pattern of unfair labor practices, that pattern does not meet the definition of a first category case.

There is no explanation in the record as to why the taint of the Company’s practices would not have been eliminated if the cease and desist order had been promptly complied with when first entered. If prompt compliance would have purged the taint sufficiently to permit a fair election to take place, this has not been a Sinclair case ab initio. The Trial Examiner found in his second opinion that a fair election was not possible at the time of the hearing. But this is true in any case in which the need for a traditional remedy is proved at a hearing. A fair election cannot be held until after the traditional remedies have been enforced. The Company had a right to litigate the propriety of the Board’s order. It does not .appear that mere delay through maintenance of the litigation, rather than compliance with the cease and desist order, was the operative factor in creating the proper atmosphere. On the record, the Board has not demonstrated that its determination to issue a bargaining order is supported by substantial evidence.

In addition, it seems doubtful that the course of conduct in this case falls within the Sinclair category as envisioned by the Supreme Court. Compare J. P. Stevens & Co. v. NLRB, 441 F.2d 514, 518-522 (5th Cir.), cert, denied, 404 U.S. 830, 92 S.Ct. 69, 30 L.Ed.2d 59 (1971) with NLRB v. Kaiser Agricultural Chemicals, 473 F.2d 374, 380-383 (5th Cir. 1973). The Gissel Court did not inadvertently describe first category cases as “exceptional” and the conduct they involve as “outrageous” and “pervasive.” The 8(a)(1) violations in this case seem to be common unfair labor practices directed at individuals without evidence of their pervasive effect.

V.

This case is a difficult one. The Board’s findings and conclusions leave something to be desired. The law to be applied is somewhat confused. Lurking in the background of the case is the unfair benefit the employer may have obtained through delay, and that one purpose of a bargaining order is to deter future misconduct. See Gissel, supra, 395 U.S. at 612. But when the Board issues an order to bargain at a time when employee free choice can be determined by a fair election, the remedy becomes punitive, rather than remedial. Perl, The NLRB and Bargaining Orders: Does a New Era Begin with Gissel?, 15 Vill.L.Rev. 106, 118 (1969). Inasmuch as a free election can now be held and the desires of the employees can be fairly determined, we will follow the thrust of Gissel: a fair election is the best and preferred method of determining a bargaining representative.

Enforcement denied.

      . The order now before us, 199 N.L.R.B. No. 115, 81 L.R.R.M. 1499 (1972), reaffirmed the order, 172 N.L.R.B. 2240, 69 L.R.R.M. 1234 (1968), involved in the first enforcement proceeding.

      . These violations were not in any sense minimal but are such as strike at the very heart of a union’s representative capacity with widespread and persistent effects. The coercive effects of Respondent’s unlawful acts cannot be eliminated by traditional remedies, and were of a nature as to make a fair election doubtful, if not impossible. Under these circumstances, the purposes of the Act can best be effectuated by reliance on the employees’ desires for union representation ns expressed by their signed authorization cards rather than on the results of an election conducted in an employer-contaminated atmosphere. Accordingly, we find that the order previously issued to remedy the Respondent’s unfair labor practices is appropriate to remedy the violations found, and we shall affirm it.
      185 N.L.R.B. at 362, 75 L.R.R.M. at 1055-1056.

      . In the first proceeding, the Board adopted the Trial Examiner’s Decision. The relevant language is therefore contained in the latter’s opinion.
      In the ordinary case I might not be inclined to regard Sudduth’s statements to Jacob, Bates, and Seals, and Douglas’ inquiry of Graham as sufficiently damaging to warrant the imposition of a bargaining order as part of the remedy therefor. Compare Hammond & Irving, 154 NLRB 1071, with Wausau Steel Co. v. N.L.R.B., 377 E.2d 369 (C.A.7). But in this case the record establishes that the unlawful acts had a direct impact on the employees. Jacob was temporarily moved to abandon support of the Union, and Seals realized that as a result of the Company’s violations “some of them [the employees] were beginning to get upset.” Also, after the unlawful threat to withhold favors previously granted, the Company on the next day implemented the threat by stopping the privilege of charging at the pharmacy. In the light of this showing, I would issue a bargaining order to remedy the violations of Section 8(a) (1) by restoring the siates quo ante, quite apart from the fact that, as noted above, I find the refusal unlawful because the Company had no good-faith doubt of the majority.
      172 N.L.R.B. at 2245-2246.
      On remand, the Trial Examiner decided the language that a bargaining order should issue “to remedy the violations of Section 8(a)(1) by restoring the status quo ante” was a sufficient finding under the first category. He analogized this to the Board’s finding in Sinclair, referred to by the Gissel Court, that the employer’s threats of reprisal were so coercive that a bargaining order was required “to repair the unlawful effect of those threats.” 395 U.S. at 615. In an earlier portion of his Supplemental Decision, lie suggested that our Court had misread the record in the first enforcement proceeding. Our Court, in his view, had ignored the rest of the quoted passage, which allegedly satisfied the second category’s requirement of findings that the possibility of ensuring a fair election was slight and that employee sentiment could best be protected by a bargaining order.

      . Contrary to the fears of the Trial Examiner and the Board, American Cable II is not an invitation to wholesale experimentation with delay. It does not require a court reviewing a second category bargaining order to reconsider electoral conditions as of the date enforcement is sought. Nor does it authorize tlie court to remand a case to tire Board merely to update the record on appeal to take into account events subsequent to the Board’s action. See J. P. Stevens & Co. v. NLRB, 441 F.2d 514, 525 n. 36 (5th Cir.), cert, denied, 404 U.S. 830, 92 S.Ct. 69, 30 L.Ed.2d 59 (1971) ; American Cable II, supra, 427 F.2d at 448.
      Because we are able to make use of the record developed as a result of an American Cable remand of what was perceived as a second category case, it is unnecessary to decide whether an American Cable II type remand to determine contemporary necessity would have been required had this case initially been classified in the Sinclair category.

      . The Board’s Petition for Rehearing En Banc of American Cable II was denied after a poll of the Court. See 427 F.2d at 449.

      . The Board’s findings in the original proceeding are set out in note 3, supra. The pertinent language of the Board’s Supplemental Decision and Order is quoted in note 2, supra.

      In its Second Supplemental Opinion and Order the Board’s findings were as follows:
      Upon reconsideration of the entire case in light of all of the standards and guidelines set forth in Q-issel, we have conclud-. ed that we erroneously failed to state in our previous decision in this proceeding that this case is factually and legally governed by Sinclair.

      ... we find that the instant proceeding falls within the purview of Sinclair, and that a bargaining order is the only appropriate remedy for the Respondent’s unfair labor practices, regardless of whether lapse of time or other circumstances might now make a fair election possible. An election here would not remedy the long period during which Respondent’s intransigent violations of the Act have denied to its employees the right to bargain collectively. The only remedy in the present circumstances which will effectuate the policy of the Act is a bargaining order. The applicability of this principle here is manifest by the Supreme Court’s pronouncement in reaching its Sinclair result, that “. . . a bargaining order is designed as much to remedy past election damage as it is to deter future misconduct,” and its substantive adoption of the Board’s long-standing “policy of issuing a bargaining order, in the absence of a § 8(a) (5) violation or even a bargaining demand, where that was the only available, effective remedy for substantial unfair labor practices.”
      199 N.L.R.B. No. 315, at 4-6, 81 L.R.R.M. at 1500-1501 (footnotes omitted).

      . One study of cases remanded for reconsideration in light of Gissel suggests that the conclusional nature of the Board’s response to the remand in this instance lias been the rule rather than the exception.
      [I]n every case [remanded for reconsideration in light of Gissel], the Board appears to have merely rephrased its opinion, replacing the Joy Silk [Joy Silk Mills, Inc. v. NLRB, 87 U.S.App.D.C. 360, 185 F.2d 732 (1950), cert, denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350 (1951)— the previous legal standard for issuance of a bargaining order] language with Gissel language.
      In reaffirming the initial bargaining order, the Board would reiterate its former unfair labor practice findings and couch its decision in one or more of the following Gissel phrases: Traditional remedies
      could not ensure a fair rerun; unfair labor practices establish the likelihood of their recurrence; a fair election rerun is unlikely; or the unfair labor practices were so coercive and pervasive as to destroy utterly the conditions necessary for a free election.
      Carson, The Gissel Doctrine: When a Bargaining Order Will Issue, 41 Fordham L. Rev. 85, 97 (1972) (footnotes omitted).

      . Although the cited cases involved second category rather than Sinclair bargaining orders, they are not in this context distinguishable. Both categories require consideration of the effect that traditional remedies would have upon prospects for a fair election. Both categories involve the same underlying determination — the decision to fore-go an election, the preferred method of ascertaining the will of the majority, in favor of the extraordinary remedy of a bargaining order.
      In any event, the requirement of articulated reasons for agency determinations is one that applies across the board of administrative law. See 2 K. Davis, Administrative Law Treatise, § 16.12 (1958, 1970 Supp.).

      . Prior to its Second Supplemental Decision and Order in this controversy, the Board had decided against issuance of bargaining orders in a number of apparently similar post -Gissel cases. See, e. g., Motown Record Corp., 197 N.L.R.B. No. 176, 80 L. R.R.M. 1545 (1972) (conveying impression that employees would be discharged for union activity; suggesting possibility of pay raise; interrogating employees; impressing employees with likelihood that only union defeat could improve working conditions; inviting employees to report on their fellows’ union activities) ; Blade-Tribune Publishing Co., 180 N.L.R.B. 432, 73 L.R.R.M. 1041 (1969) (systematic coercive interrogations; imposition of extremely arduous work schedule on union activist; suggestion of new benefits) ; Stoutco, Inc., 180 N.L.R.B. 178, 73 L.R.R.M. 1107 (1969) (threats to eliminate existing benefits, impose harsher work conditions, and close plant; promises of benefits ; unlawful interrogations; “suggestion” that union activist quit) ; Schrementi Bros., 179 N.L.R.B. 853, 72 L.R.R.M. 1481 (1969) (threats and physical assaults on union organizers in presence of employees; threats of loss of existing benefits; informing an employee that employees visited by organizers had been “checked out”).
      The same situation also prevailed after the Board’s decision in this case. See, e. g., Hennessy Service Corp., 204 N.L.R.B. No. 52, 83 L.R.R.M. 1573 (1973) (coercive interrogations ; instruction not to discuss the union with other employees; creating impression of surveillance; promises of benefit; solicitation of employees to refrain from election participation; threat that selection of union would be futile) ; .J. ,J. Newberry Co., 202 N.L.R.B. No. 53, 82 L.R.R.M. 1585 (1973) (interrogating employees; creating impression of, and engaging in, surveillance; discriminatorily refusing to permit an employee to attend employees’ meetings) ; Independent Rapid Trucking, 200 N.L.R.B. No. 58, 82 L.R.R.M. 1169 (1972) (creating impression of, and engaging in surveillance; offer of benefits).
      In considering this case, the Board did not mention any of its other adjudications. Appellate counsel, faced with the Company’s citation of Boai'd cases, distinguished them as “eases where the Board, in the exercise of its judgment, concluded that the unfair labor practices committed by the employers were not so flagrant or widespread that a fair election could not be held. Those cases thus fell into the third category of cases . . .”
      In the first place, the post hoc rationalizations of counsel cannot remedy an agency’s deficient reasoning. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) ; NLRB v. Metropolitan Life Ins. Co., 380 U. S. 438, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965). Secondly, the suggested distinction is no more than a statement that the cases differed. And that is not enough. “[T]o say that the cases were different, as all cases are, is insufficient, the real question is whether they were significantly different, and, if so, how.” NLRB v. General Stencils, Inc., 472 F.2d 170, 174 (2d Cir. 1972) (denying enforcement after Gissel remand).

      . The necessity of such findings is not lessened in this case by the fact that Gissel was decided after the Board’s initial decision. The law prior to Gissel authorizing bargaining orders in Sinclair situations also required the kind of unfair labor practices having coercive effects that could not be eliminated by application of traditional remedies.

      . The Board found seven 8(a) (1) violations.
      1. Douglas (a department manager) asked Graham (an employee he supervised) if she had attended a union meeting and inquired as to what the employees hoped to gain by organizing.
      2. Suddutli (the store manager) asked employee Jacob if she attended any meetings, adding that he knew that two had been held, thereby conveying the impression of surveillance.
      3. In the same conversation, Sudduth also asked Jacob if she could tell him who had attended union meetings.
      4. Toward the end of the conversation, Sudduth stated to Jacob that he intended to “get to the bottom of this” if he had to “question every employee in this store.”
      5. Sudduth stated to employees Bates and Seals that he would grant no more special favors, under the circumstances implying a withdrawal of existing benefits and a change in policy in response to union activities.
      6. Hard on the heels of this statement (and the union’s claim for recognition), it was announced that employees would no longer be permitted to charge pharmacy purchases, suggesting reprisal for union activities.
      7. West (the company vice-president) stated to employee Seals that he would sign a contract with the employees if they would give up the union.
      172 N.L.R.B. 2240, 2245, see 69 L.R.R.M. 1234, 1235 (1968).


author: GEE, Circuit Judge:

text:
    TRANS MISSISSIPPI CORPORATION, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee (two cases).
    Nos. 72-3087, 73-3018.
    United States Court of Appeals, Fifth Circuit.
    June 3, 1974.

      William Liston, Winona, Miss., James P. Knight, Jr., Jackson, Miss., for plaintiff-appellant.
    Scott P. Crampton, Asst. Atty. Gen., Stephen M. Gelber, Leonard D. Van Slyke, Jr., Meyer Rothwacks, Bennet N. Hollander, John F. Murray, Attys., Tax Div., Dept, of Justice, Washington, D. C., H. M. Ray, U. S. Atty., Oxford, Miss., for defendant-appellee.
    Before CLARK and GEE, Circuit Judges, and RUSSELL, District Judge.
   GEE, Circuit Judge:

In this case, appellant taxpayer kicked the sleeping revenue service and lost an arm and a leg in the ensuing fracas. We affirm.

Appellant, a Mississippi corporation engaged in the manufacture of concrete pipe for sale to contractors and governmental units, sought over $78,000 in tax refunds for claimed embezzlement losses resulting from activities of its former president, Joe C. Franklin. The United States denied that the mishandling of corporate funds was an embezzlement, claimed the funds were unreported corporate income which went for clandestine corporate purposes, and counterclaimed for some $247,000 in unpaid taxes, fraud penalties of $123,000 and $82,000 interest, bridging a limitations gap with assertions of fraud.

At trial the evidence revealed a scheme by which proceeds of certain sales to the tune of $522,165.04 were made to bypass the corporate books (and tax returns) and enter a special bank account controlled by Franklin. This account, through a complicated drafting procedure unnecessary to detail here, was disbursed by Franklin to various corporate salesmen for “promotional expenses.” The nature of these is not clear in the record, but it is clear that the corporation was not overly proud of them. When the existence of this account came to full light as the result of an audit reflecting almost $400,000 in deposits to it as unaccounted for, Franklin hung on for a time but gave up after taxpayer took a state judgment against him for over $400,000. Franklin was also convicted of signing false federal tax returns for the corporation.

Trial of the case resulted in a take-nothing judgment on plaintiff’s refund claim and a full recovery for the government, based on special jury findings that there was no embezzlement and that taxpayer’s returns in question were fraudulent. This consolidated appeal presents two claims of error from the main trial and one from denial of post-judgment relief grounded in newly discovered evidence.

Taxpayer first complains of the exclusion of a worksheet prepared by IRS agent McCluskey, whose examination of taxpayer’s returns and Franklin’s bank account had precipitated the assessment. This handwritten document showed hypothetical adjustments to Franklin's personal returns which would have been appropriate had Franklin been found to have embezzled the funds in question. It is undisputed that the worksheet formed the basis of no action by the United States, was served on no one, and simply came to light as a result of the canvass of McCluskey’s work-papers in the process of pre-trial discovery exchanges. Taxpayer was not permitted to introduce the worksheet or to use it in cross-examining McCluskey.

We conclude that taxpayer, in its effort to show inconsistency in Mc-Cluskey’s position, should have been allowed to question him about the worksheet. Numerous cases hold that the government is entitled, in protecting the revenue, to take even formal and.active inconsistent positions, but under normal principles of cross-examination its adversary is likewise entitled to bring out prior inconsistent statements of its witness. It is dubious that the document was more than what we may term a “written thought” and not a “statement” at all; but it cannot be denied that the computation of tax due by Franklin on the assumption that he did embezzle these same funds is an action in some faint degree inconsistent with the agent’s final position in the case that he did not, but rather used them in some sense for the taxpayer’s benefit. The question is a close one, but a liberal regard for the right of cross-examination tips the scales.

What is not close is that the error was harmless. The effect of admitting the exhibit could have been no greater than that of an affirmative answer by Mc-Cluskey to the question whether he had made computations of what Franklin’s tax would be if he had embezzled the funds. Whatever mild inconsistency this might have shown could not have influenced reasonable jurors in the face of the crushing weight of evidence in the record that the funds were in fact used for purposes, however unsavory, intended to benefit the corporation. Franklin detailed the method by which the special account was accumulated and the arrangements by which surreptitious payments were made to salesmen from it. Salesmen and others testified to the actual functioning of the scheme. No one was heard to assert that by his lifestyle or otherwise Franklin gave indication of any such personal bounty as receipt of such sums would surely have produced, and the corporation’s willingness to release its massive judgment against him for a comparative pittance was also proved. Against this showing, even an admission by McCluskey that the government was hedging its bet by preparations to pursue Franklin if the corporation eluded it would be a collateral circumstance fraught with insignificance to the reasonable mind. The error was not prejudicial. Fed.R.Civ.P. 61; 28 U.S.C. § 2111; see C. Wright & A. Miller, Federal Practice & Procedure § 2885 (1973).

Taxpayer next asserts error in the court’s instructing the jury, over taxpayer’s objection, that the government would not collect any tax, penalty or interest from taxpayer if it failed to prove fraud. The objection is that the instruction is untrue, or at least misleading, if taken by the jury to apply to taxpayer’s refund claim so as to indicate the United States could not keep what it had already exacted without carrying the fraud issue. We find no prejudicial error in the instruction on the basis asserted. It plainly applied to the government’s attempt to collect taxes in its suit, explaining the consequences to that effort of a failure to establish fraud. Jury trials cannot be conducted under perfectly antiseptic conditions, and we are unwilling to assume that this jury was unable to distinguish between the government’s effort to collect taxes and the taxpayer’s attempt to collect a refund. Taken as a whole, the charge was correct, adequate, and not misleading. Gulf Coast Bldg. & Supply Co. v. Electrical Workers Local 480, 428 F.2d 121 (5th Cir. 1970); Delancey v. Motichek Towing Service, Inc., 427 F.2d 897 (5th Cir. 1970).

Finally, taxpayer complains of the court’s denial of its Rule 60(b) motion for relief from judgment on the ground of newly discovered evidence. The evidence put forward, taken at its strongest, was no more than rather mild impeachment of one of the salesmen-witnesses, Dampeer, about the amount of “promotional” funds he received and when he had last seen Franklin before the trial. It indicated that Dampeer’s estimate of the amounts given at trial was probably high and that he had been seen in Franklin’s company within a month of trial, which was at variance with Dampeer’s trial testimony. Among others which might be made, a sufficient answer to this claim of error is that evidence merely cumulative or impeaching is not generally within the canon of “newly discovered evidence” for Rule 59 or Rule 60(b) purposes. Chemical Delinting Co. v. Jackson, 193 F.2d 123 (5th Cir. 1951), cf. United States v. 41 Cases, More or Less, 420 F. 2d 1126 (5th Cir. 1970). Such motions are addressed to the sound discretion of the court. The trial judge did not abuse his discretion in concluding that these potatoes were too small to form a basis for the extraordinary relief sought.

Affirmed.

      . All but one of the 280 withdrawals from the account were on checks signed by Franklin, and all but six of these were made out to cash.

      . Along with about $65,000 returned to the taxpayer and almost $47,000 unallocable because of bad microfilm.

      . Released by taxpayer in exchange for his resignation and the surrender of his $33,146 worth of corporate stock.

      . E. g., Goodall v. Comm’r, 391 F.2d 775 (8th Cir. 1968).

      . The instruction is a work of supererogation when added to the detailed instructions given by the court on the fraud issue. But it is, as to that issue, patently true.

      . At the evidentiary hearing of the motion, the witness who claimed to have seen this meeting retracted the only point of any significance to this in his affidavit, the time of the meeting. He explained that he had not realized the affidavit fixed such a time, since he had left his glasses at home and hence did not read it before signing it.