author: RONEY, Circuit Judge:

text:
    Dudley WIDEMAN, Administrator of the Estate of Claude Wideman, Deceased, Plaintiff-Appellant, v. MISSISSIPPI VALLEY GAS COMPANY, Defendant-Appellee.
    No. 73-3574.
    United States Court of Appeals, Fifth Circuit.
    Jan. 30, 1975.

      William S. Lawson, John L. Long, Tu-pelo, Miss., for plaintiff-appellant.
    John M. Kuykendall, Jr., Minor C. Summers, Jr., Jackson, Miss., Ralph L. Holland, Tupelo, Miss., for defendant-ap-pellee.
    Before COLEMAN, CLARK and RO-NEY, Circuit Judges.
   RONEY, Circuit Judge:

Claude Wideman was killed in an explosion and fire resulting when a small road grader he was operating on a private residential lot hit an underground gas line. The outcome of this appeal turns on a determination of the standard of care owed to Wideman by the defendant gas company under Mississippi law. The jury, instructed that the gas company owed a duty of ordinary care, apparently decided that the gas line easement was not adequately marked and the line itself was not a sufficient depth below the ground. Wideman’s estate was awarded the sum of $100,000. Notwithstanding this jury verdict, the trial court entered a judgment for defendant on the ground that the jury had been incorrectly instructed as to the standard of care. The court held that the gas company owed no higher duty under the circumstances than to refrain from wanton or willful injury to decedent, and that the evidence was not sufficient for jury consideration under such correct standard. We affirm.

Essentially, we decide two points: first, a gas company with gas lines buried within the boundaries of a legal easement owes to a person making an unforeseeable extraordinary use of the surface no duty higher than to refrain from willful and wanton injury, unless and until it has notice of that proposed use; and second, on the record before us, the trial court was correct in the determination that the evidence was such that reasonable men could not differ on the facts that the gas company had received no notice of the extraordinary use, and that it had not breached its duty to refrain from willful or wanton conduct.

In 1930 Mississippi Valley Gas Company’s predecessor-in-interest acquired a valid gas line right-of-way across some property in northern Mississippi which is presently owned by Tommy D. Beasley. The recorded easement conveyed a “right of way to lay, construct, maintain and operate a pipeline” across lands containing seventeen acres described in quarter section terms. The exact path of the easement was not described. The owner reserved the “use and enjoyment of said premises except for the purposes herein conveyed to purchaser.” The document further provided that the pipeline was to be laid below plow depth (agreed by the parties to this litigation to be below six inches), with the following paragraph:

It is understood and agreed that purchaser (the gas company) shall bury said pipe line below plow depth wherever it crosses any land that may be cleared and in cultivation, and shall also bury said pipe line below plow depth across any land that may be in future cleared and put in cultivation.

In compliance with the depth requirement, the gas line was originally laid about 36 inches below the surface. It has continued in use from its installation until the time of the occurrence of the accident involved in this case. During that period the character of the land changed from wilderness to residential, and a house was constructed thereon in 1946. The evidence was such that the jury could have inferred that the surface of the land had changed to the point that the pipe line may have been only five or six inches deep at the time of the accident. The area was grown over and had been undisturbed for some time. Mississippi Valley made periodic foot patrols along the gas line to determine potential problems from erosion, construction, and the like, but there were no signs marking the path of the line except where it crossed a public highway some distance from the point of the accident.

On April 17, 1971, Claude Wideman was operating a road grader on the Beasley property in response to Beasley’s request for county assistance in alleviating a drainage problem created by water running off the city-maintained road immediately in front of his property. While Beasley was aware of the general location of the pipe line on his property, neither he nor decedent contacted Mississippi Valley to ascertain the exact location of the line. Mississippi Valley was not otherwise made aware of the fact that decedent intended to operate the road grader over the gas line. After making a few passes with the grader, decedent struck the gas line with the grader blade and the line ruptured, causing an explosion and fire which resulted in decedent’s unfortunate death a short time later.

We agree with District Judge William C. Keady that under the circumstances of the above accident, the defendant was entitled to judgment as a matter of law. Absent willful or wanton misconduct, the defendant could not be charged with fault of inaction until it had notice of the “hazard about to be experienced.” Although there is little Mississippi law on the subject, the Supreme Court of Mississippi appears to recognize that in the operation of a gas line, some accidents and injuries are too remote and unforeseeable for a defendant to be held legally liable therefor. As said in a recent case involving a pipe line accident:

“The rule is firmly established in this state, as in nearly all the common law states, that in order that a person who does a particular act which results in injury to another shall be liable therefor, the act must be of such character, and done in such a situation, that the person doing it should reasonably have anticipated that some injury to another will probably result therefrom, D’Antoni v. Albritton, 156 Miss. 758, 766, 126 So. 836; Williams v. Lumpkin, 169 Miss. 146, 152, 152 So. 842; but that the actor is not bound to a prevision or anticipation which would include an unusual, improbable, or extraordinary occurrence, although such happening is within the range of possibilities. Illinois Cent. R. Co. v. Bloodworth, 166 Miss. 602, 617, 145 So. 333; ...”

Larco Drilling & Exploration Corp. v. Brown, 267 So.2d 308, 310 (Miss.1972), quoting Mauney v. Gulf Refining Co., 193 Miss. 421, 9 So.2d 780 (1942) (emphasis added).

In Larco Drilling, the Supreme Court held that a county employee operating a bulldozer which struck the defendant’s gas line thus causing the operator’s injuries was a mere licensee and reversed a verdict in his favor and rendered judgment for the owner of the gas line. The county employee was attempting to fight a forest fire at the time but his presence was unknown to the gas line owner.

Unless the likelihood of some accident or injury of the type which occurred in this case was reasonably foreseeable by Mississippi Valley, it was under no duty to take action to avoid such an accident. Mississippi Valley had duly recorded its easement on the county land records, thus giving full legal notice of the presence of the pipe line on the Beasley property. It could reasonably be expected that anyone planning use of the property would be aware of the pipe line’s existence, if not its location. It could not be foreseeable by defendant that one • knowing of the pipe line would excavate the property without inquiring of Mississippi Valley of the exact pipe line location.

There can be little doubt that had Beasley or decedent inquired about the location of the gas line or in any other way conveyed to Mississippi Valley any information from which it could have concluded that the easement was to be graded, Mississippi Valley would have been under a duty to take some action— for example, warning of the danger involved, marking the location of the line, or relocating it at a greater depth — to prevent an accident such as the one which did occur. See Young v. Herrington, 312 S.W.2d 685, 687 (Tex.Civ.App. 1958). But the record is clear that no one did anything to place Mississippi Valley on actual or constructive notice of the possibility of this particular road grader activity. Without such notice, a duty for defendant to take action could arise only if this type of accident and injury could have been reasonably anticipated. No duty would arise as to any “unusual, improbable, extraordinary and freakish accident” that, even though possible, a reasonable man would not have considered probable. Larco Drilling, supra, 267 So.2d at 310.

Other than Larco Drilling, there is little authority from the Mississippi courts from which to evaluate what they would consider as meeting this threshold test of foreseeability in a case of this type. The courts of Texas, which have handled a large number of oil and gas transmission line cases, have had greater opportunity to develop the scope of foreseeability in this unique area.

Texas views the issue of reasonable .foreseeability in pipe line cases as centering on whether the use being made of the surface of the right-of-way is one that is ordinary, or one that is extraordinary, considering the character and location of the land. The operator has a duty to maintain the pipe line so that it will be safe for those making an ordinary use of the land, but anyone making an extraordinary use of the surface has the initial burden of either avoiding the pipe line or notifying the operator, who must then take steps to prevent contact. Phillips Pipe Line Co. v. Razo, 420 S.W.2d 691 (Tex.1967); Pioneer Natural Gas Co. v. K & M Paving Co., 374 S.W.2d 214 (Tex.1963). The language used by the Texas Supreme Court is very similar to that used by the Supreme Court of Mississippi in Larco Drilling, suggesting the two courts substantively view the issue in identical terms. The initial question becomes, then, whether the explosion in the instant case was caused by an ordinary use of the surface.

We are not here confronted with a road grader performing routine maintenance along a public thoroughfare, compare Concho Construction Co. Inc. v. Oklahoma Natural Gas Co., 201 F.2d 673 (10th Cir. 1953), but with a scraper operating some distance from and not parallel to the road. Bee generally, Annot., 30 A.L.R.3d 685 (1970). Plaintiff asserts that the use of county graders to alleviate drainage problems on private property is not uncommon in northeast Mississippi, but this does not make the use of construction equipment “ordinary” in the sense that it should be anticipated by the defendant without special notice. Cf. Phillips Pipe Line, supra.

“Ordinary” connotes a use that is “usual,” “regular,” and “normal,” something of a continuing nature so that a person should be familiar with it. A basement may be dug when a house is built, but a house is not built on any particular lot with sufficient frequency to say that the digging of the basement is an “ordinary use” of that lot. Since Mississippi Valley’s liability must be defined by its conduct with respect to the Beasley property, the issue is what might be an ordinary use of the property-

What could ordinarily be expected in a semi-rural area might be the operation of automobiles on a dirt driveway over the pipe line, or someone planting a garden. We do not consider the excavation made of the surface here, however, as such that the defendant should be charged with protecting against it in the operation and maintenance of its pipe line. To- hold it accountable in this circumstance would impose too heavy a responsibility for an occurrence that was only remotely and slightly probable under Larco Drilling.

Additional support for this view is found in that line of cases involving the operation and maintenance of uninsulated electric transmission lines. In these cases the courts appear to focus on the location of the accident and the foreseeability, in that location, of the conduct of the injured party from which the injury arises. See generally Mississippi Power & Light Co. v. Shepard, 285 So.2d 725 (Miss.1973).

Affirmed.


source: Caselaw Access Project

author: GEE, Circuit Judge:

license: Public Domain

text:
    Samuel MITCHELL et al., Plaintiffs-Appellants, v. WEST FELICIANA PARISH SCHOOL BOARD et al., Defendants-Appellees.
    No. 73-4034.
    United States Court of Appeals, Fifth Circuit.
    Jan. 30, 1975.

      Murphy W. Bell, Baton Rouge,' La., for plaintiffs-appellants.
    Leon A. Picou, Jr., Dist. Atty., 20th Judicial Dist. Court, Fred C. Jackson, Asst. Dist. Atty., St. Francisville, La., Richard H. Kilbourne, Dist. Atty., W. Lee Overton, Asst. Dist. Atty., Clinton, La., for defendants-appellees.
    Before GEWIN, AINSWORTH and GEE, Circuit Judges.
   GEE, Circuit Judge:

Desegregating the schools of this small, rural Louisiana parish has occupied us before. Its fortunes in our court and in others, from adoption and subsequent disapproval of a freedom-of-choice system through inclusion in Singleton and earlier attempts to apply that ruling, are catalogued in Carter v. West Feliciana Parish School Board, 432 F.2d 875 (5th Cir. 1970) (Carter II) and will not be again detailed here. Our case is, we may hope, the final fall-out from Singleton’s application to West Feliciana Parish.

As we have said, the present controversy results from an early attempt to implement Singleton. That decision came down at the turn of 1969 — 70; and the West Feliciana school board, faced with the usual drop in white enrollment of the time, commenced in April of that year to try to comply with its requirements while reducing the teaching staff appropriately. As a part of its consequent staff evaluation program, the board announced that a national academic achievement test would be administered each teacher in the area of his teaching expertise or certification. Objections to this-, made to the courts by most of the Negro teachers — on grounds asserted that the tests were culturally biased or would be unfairly administered — resulted in initial temporary restraining orders above and below, both later dissolved, and in an eventual order by this court permitting the administration of the test on conditions set out in Carter II. All of the plaintiffs here, untenured Negro teachers in the system, refused to take the test.

In the course of the hearings on the testing programs, the district court, grappling with the application of the new Singleton standards, entered an order which approved the use of the tests upon an erroneous construction of Singleton. Since Singleton required, the court found, the iron application of racial ratios to the reduction in number of the West Feliciana teaching staff, it made no difference whether the test was racially biased or not: the Negro teachers were competing with each other only, for a fixed, reduced number of “black positions.” This being so, there would be no occasion to compare their grades on the test with the grades of white teachers who, in turn, were competing only with each other for the “white positions.” Following an expedited appeal, a panel of this court, on August 14, 1970, handed down what we shall call Carter I, subsequently withdrawn, approving the testing program on reasoning paralleling that of the district court:

The argument advanced by appellants that the makeup of the tests is so framed as to discriminate racially against Negro teachers misses the mark. Black teachers would not be competing with white teachers. They would simply be competing among themselves for preferred retention in the system if it became necessary to reduce the number of teachers in the system. Testimony below indicated that a reduction in force of 6 teachers would probably be necessary. Maintenance of the 2 black to 1 white ratio would then require the dismissal of 4 black teachers and 2 white teachers. The method of testing under the NTE examinations proposed to be used by the school board as one of the criteria in determining who shall be dismissed and who shall be retained patently was a bona fide and effective effort at compliance with Singleton, supra.
The school board, with the fall semester upon it, moved swiftly to implement this court’s construction of the Singleton decree, to which it was already subject. Since the Negro teachers, who composed about two-thirds of the faculty, had, with a single exception, all refused to take the test, the board was forced to look elsewhere for objective criteria. Twenty-two teachers, rather than the six at first thought, had to be released and, according to Carter I, about two-thirds were to be Negro and one-third white, the racial proportions of the teaching staff in general. The court below found, and its findings are reasonably supported by the evidence, that after the racial ratio the board’s primary criterion was tenure, its next was the need for the teacher’s subject-matter expertise, and finally, for those who took it, the test. In addition, the subjective evaluations of principals and assistant principals, five white and three Negro, were considered. The preeminence of tenure as a guideline is shown by the fact that only two tenured teachers, whose subject-matter qualifications were in an area of ample or over staffing, were dismissed.
On September 25, however, five weeks after dismissal notices had gone out and school was well in session, Garter I was withdrawn and Carter II was substituted, making plain that Singleton’s ratios were limited in their effect to teacher assignments and that reductions in staff were to take no account of race whatever, but proceed on other standards which were to be objective and reasonable. Since the rendition of Carter II, none of plaintiffs have been rehired as regular teachers in the systems. The district court found, however, that no positions for which those of them who would entertain reinstatement were qualified had come open, save Connie Chapman. She had been offered reinstatement but declined because of complications attending the early term of a pregnancy.
On this appeal the judgment below is attacked on four heads: that the board reduced staff without first establishing objective criteria for the reduction, available for public inspection as required by Singleton; that Roth-Sindermann standards of procedural due process were violated by absence of notice and hearing; that plaintiffs have not been accorded recall rights due them under Single ton; and that reinstatement, back pay and damages were appropriate because of the absence of procedural due process but were not granted. We discuss these briefly and in the order presented.

This is a § 1983 action. For plaintiffs to prevail, it is necessary that they show state action which deprived them of rights, privileges or immunities secured them by the federal laws or Constitution. It is clear from the record, as the court below found, that the board acted in good faith and in obedience to Carter Ts authoritative declaration of what Singleton required it to do. And though it was the board’s notices of dismissal which were the immediate cause of plaintiffs’ loss of their positions, the board, acting under great pressure of time, took race into primary account only because a federal court’s decree, affirmed in an expedited appeal, stated that they were required by Singleton to do so. We are unable, under the unique facts of this case, to ascertain meaningful state action in the initial discharges. The effective action was the direct result of initial erroneous decrees of the federal courts. It would be a travesty on justice to subject the board to penalties or sanctions for actions it had no choice but to perform.

As for the claimed application of Roth-Sindermann, it is stipulated that no plaintiff had any form of tenure. None, therefore, had any property interest. Nor were any discharged for reasons even arguably reflecting discredit upon them. Indeed, the administration offered favorable references, etc. Thus, no liberty interest was at stake either. Nor is it contended that any plaintiff was discharged for exercise of constitutional rights. In these circumstances, questions of procedural due process do not arise. Bradford v. Tarrant County Junior College, 492 F.2d 133 (5th Cir. 1974).

Plaintiffs next claim that they possess Singleton rights of recall which have been disregarded. The court below made findings as to each of the six plaintiffs. One, Florence Williams, has withdrawn from the suit and seeks no relief. Samuel Mitchell was out of work only a month and testified by deposition that he did not desire to be reinstated and that his sole claim was for lost wages from the end of August 1970 to the first of October that year. The trial court viewed this as de minimis. Alfred Henry went to work elsewhere upon his discharge and has consistently made more money since than before. He testified that he did not want to be reinstated. Connie Chapman was offered reinstatement after Carter II came down but declined because of complications attending her pregnancy. There is no contention that this offer was not made in good faith or was cynically timed. This being the case, the court below felt the board had discharged whatever recall obligation it owed her. As to these four plaintiffs, we conclude that the court’s findings are reasonably supported by substantial evidence. The two remaining plaintiffs present closer questions.

Plaintiff Rosa Wilson was employed as a librarian. She was 61 years of age when discharged and, after doing substitute teaching in the interim, retired less than two years later. Obviously she does not now wish reinstatement, but this does not preclude consideration of back pay and other remedies. Plaintiff Velta J. Williams, a teacher of vocal music, has been regularly employed in her specialty by a private school since her discharge and, on her testimony, has suffered no financial loss. The district court found that no position for which either Wilson or Williams was qualified had been filled since their discharges.

Adams v. Rankin County Board of Education, 485 F.2d 324, 326 (5th Cir. 1973) notes: “Under the law in this Circuit, new teachers may not be hired merely because their qualifications), even if viewed by objective racial criteria, exceed those of the displaced former teachers. If the former teachers are minimally qualified for the jobs they are to receive them.”

While we are not entirely satisfied that the court below may not have applied a too-strict standard of “qualification” in these two instances, we have examined the evidence and conclude that, on the evidence, by Adams standards the question is, in each instance, fairly debatable and the court’s findings are therefore not clearly erroneous.

We conclude that we cannot say the court below erred in holding none of plaintiffs entitled to reinstatement or other remedy.

A final point: at oral argument it was suggested that jurisdiction may be lacking since West Feliciana Parish School Board may not be a “person” within the meaning of § 1983. See City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). The point, though noted in the pre-trial order entered pre-Kenosha, was not considered by the court below, and no evidence on the nature of such a board appears in the record. Nor was the question briefed or seriously argued before us, rather merely noted. We would be unwilling to attempt such a difficult issue, or one having potential for such far-reaching consequences, without being fully advised. Obtaining evidence on the point, explicit consideration of the question by the court below, and appropriate briefing would require a remand; and the consequences to the parties in this case would not be materially altered from the result we have reached by a decision of this issue either way.

We do not, therefore, think justice would be served by a remand for this purpose, and moreover any error in assuming jurisdiction which we do not have would be harmless. We therefore expressly decline to decide the question and

Affirm.

      . Singleton v. Jackson Municipal Separate School Dist., 419 F.2d 1211 (5th Cir. 1970). Generally speaking, this decree requires that, where formerly dual systems are merged, the following initial steps be taken:
      1. Effective not later than February 1, 1970, the principals, teachers, teacher-aides and other staff who work directly with children at a school shall be so assigned that in no case will the racial composition of a staff indicate that a school is intended for Negro students or white students. For the remainder of the 1969-70 school year the district shall assign the staff described above so that the ratio of Negro to white teachers in each school, and the ratio of other staff in each, are substantially the same as each such ratio is to the teachers and other staff, respectively, in the entire school system.
      The school district shall, to the extent necessary to carry out this desegregation plan, direct members of its staff as a condition of continued employment to accept new assignments.
      2. Staff members who work directly with children, and professional staff who work on the administrative level will be hired, assigned, promoted, paid, demoted, dismissed, and otherwise treated without regard to race, color, or national origin.
      3. If there is to be a reduction in the number of principals, teachers, teacher-aides, or other professional staff employed by the school district which will result in a dismissal or demotion of any such staff members, the staff member to be dismissed or demoted must be selected on the basis of objective and reasonable non-discriminatory standards from among all the staff of the school district. In addition if there is any such dismissal or demotion, no staff vacancy may be filled through recruitment of a person of a race, color, or national origin different from that of the individual dismissed or demoted, until each displaced staff member who is qualified has had an opportunity to fill the vacancy and has failed to accept an offer to do so.
      Prior to such a reduction, the school board will develop or require the development of nonracial objective criteria to be used in selecting the staff member who is to be dismissed or demoted. These criteria shall be available for public inspection and shall be retained by the school district. ... Id. 419 F.2d at 1217-1218.

      . On a happy note, counsel for both sides indicated at oral argument that the current situation is one of good will and constructive effort.

      . Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

      . 42 U.S.C. § 1983.

      . We shall assume that these exist, since shortly after plaintiffs were discharged this court corrected Carter I and any improper refusal to accord Singleton recall rights would be the act of the board alone. It is arguable, though plaintiffs do not do so on this appeal, that since Carter II established that plaintiffs’ initial discharges were, though in obedience to Carter I, in fact improper, plaintiffs (and all other teachers discharged) were entitled to direct reinstatement. For this court, however, at this late date, itself to raise such an issue and apply such a remedy, would be to exalt reason above rationality and to apply a keener hindsight to the situation of all the parties than we are willing to do.

      . After she was delivered, Mrs. Chapman applied to the board for work and has been employed ever since as a replacement, though not a regular, teacher.

      . Because, although her salary was somewhat less, her lower travel expenses in commuting — the difference between eight miles a day and ninety miles a day — offset this.

      . Indeed, as will be apparent from the text, this cause borders on the moot: at oral argument counsel conceded that plaintiffs are principally concerned at present to uphold principles and vindicate their personal dignity.

      . Precedent for our approach exists in Secretary of Navy v. Avrech, 418 U.S. 676, 94 S.Ct. 3039, 41 L.Ed.2d 1033 (1974). Further, any other course — given our decision on the merits — is nonsense.


author: LEWIS R. MORGAN, Circuit Judge. GODBOLD, Circuit Judge

text:
    FAME PUBLISHING CO., INC., et al., Plaintiffs-Appellees, v. ALABAMA CUSTOM TAPE, INC., et al., Defendants-Appellants.
    No. 74-1200.
    United States Court of Appeals, Fifth Circuit.
    Jan. 31, 1975.

      F. Dulin Kelly, Hendersonville, Tenn., Robert L. Estes, Nashville, Term., for defendants-appellants.
    W. Michael Atchison, Birmingham, Ala., John S. Clark, New York City, Arnold Teks, Florence, Ala., Sidney S. Ros-deitcher, Steven B. Rosenfeld, New York City, for plaintiffs-appellees.
    Before GODBOLD and MORGAN, Circuit Judges, and BOOTLE, District Judge.
   LEWIS R. MORGAN, Circuit Judge.

Although defendants-appellants are popularly known as “tape pirates” they could more accurately be described as “tape parasites.” When it becomes apparent that a recording of a composition copyrighted by one of plaintiffs-appellees is destined to become a “hit,” appellants purchase a copy of the recording, reproduce it hundreds of thousands or millions of times, and sell the copies to the public. While most record producers face substantial risks and expenses, never knowing whether their efforts will succeed, appellants encounter no such problems; they buy their hits for a song.

In this action by music publishers for copyright infringement, the district court granted their motion for summary judgment and permanently enjoined defendants from continued infringement of plaintiffs’ copyrights in musical compositions. For reasons developed below, we affirm the district court.

I. THE COPYRIGHT ACT

Appellants’ principal contention is that their activity is protected under the “compulsory license provision” of the Copyright Act of 1909, 17 U.S.C. § 1(e). Congress therein granted the holders of the copyright in a musical work the exclusive right

. to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced .

Plaintiffs, independent music publishers, may refuse to allow their copyrighted works, in the form of “sheet music,” ever to be recorded at all. If they do grant such permission, however, the compulsory license provision automatically applies, stipulating

as a condition of extending the copyright control to such mechanical reproductions, that whenever the owner of a musical copyright has used or permitted or knowingly acquiesced in the use of the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright proprietor of a royalty of 2 cents on each such part manufactured, to be paid by the manufacturer thereof.

In the majority of cases, this means that once a composition has been recorded, other artists must be allowed to make a recording of their performance of it. Appellants, of course, simply re-record the first recording. The precise issue for decision is therefore whether duplicating a sound recording of a performance of a copyrighted composition is a “use” of the composition “similar” to the original recording of it.

As a preface to our analysis, it may be helpful to emphasize that the copyrights here involved are in the musical compositions themselves, not the particular recorded performances. These rights have been protected by federal law since 1909; no federal law provided for copyright protection of a particular performance until 1971. See our discussion of the “Sound Recording Amendment of 1971” at (c) infra.

(a) The statutory language. The Act provides that, after the first mechanical recording of a composition, others may make “similar use” of the composition, upon' the payment of two cents per recording. The first recording is made, of necessity, from a live performance; it involves, in varying degrees depending on the nature of the composition, singers, instrumentalists, arrangers, and conductors. The “use” of the composition thus consists of a process (a live performance) as well as a product (a recording); neither one by itself is sufficient to constitute the “use” being licensed.

A taped duplicate is simply not a “similar use” of the composition as we understand the words. There is no live performance; in fact, there are no musicians at all. Only a tape recorder is required. The end product, of course, is not only “similar” but virtually indistinguishable; the process, however, is completely dissimilar. This distinction is not mere musical metaphysics; it is the dividing line between that which the statute commands and that which it forbids. Although appellants “produce” recordings, they do not make a “similar use” of appellees’ compositions in so doing.

(b) Congressional intent. We need not rest our holding solely on the plain meaning of the statute, however; the general policy of the Copyright Act reinforces our conclusion. We begin by noting that the compulsory license provision is a limited exception to the copyright holder’s exclusive right to decide who shall make use of his composition. As such, it must be construed narrowly, lest the exception destroy, rather than prove, the rule. Thus we should neither expand the scope of the compulsory license provision beyond what Congress intended in 1909, nor interpret it in such a way as to frustrate that purpose.

Congressional intent was apparently twofold: to encourage future creative endeavor and to combat monopolization in the music industry. H.R.Rep.No.2222, 60th Cong., 2d Sess. (1909). See Goldstein v. California, 412 U.S. 546, 565, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973). The compulsory licensing provision was an ingenious device for the accomplishment of these objectives: the artist is left free to choose the manner in which his composition will initially be offered to the public, yet he must then license others who wish to present their own competing renditions.

It is incontestable that protecting tape duplication would frustrate rather than further these objectives. First, far from encouraging artistic creativity, such statutory protection would have precisely the opposite effect.

For several obvious reasons, duplication is far less expensive than the more traditional method of producing a popular recording. The duplicator need not exert himself in finding and developing ' the artist, nor need he bear the actual costs of recording the composition and promoting the finished product. It is apparent then that if duplicators are allowed to operate, they will. As a result, ' there would be fewer new interpretations of hit records, either by established artists or by “unknowns.” A related result would be that fewer new artists would be afforded the opportunity to record their own work. The aspiring artist would be caught in a two-way squeeze; the duplicators, of course, would have no interest in financing his shot at stardom, while recording companies, their profits cut by duplicators, would be able to take far fewer chances on untested talent. As a result, fewer people could realistically consider commercial music as a way to earn a livelihood; artistic endeavor would inevitably be curtailed. Naturally, plaintiffs’ businesses would suffer since there would be fewer compositions to publish.

Second, protecting duplication through the compulsory licensing provision would promote rather than inhibit the growth of monopoly in the recording industry. As the Register of Copyrights testified in connection with the 1971 amendment to the Copyright Act:

The record industry, taken as a whole, is a highly competitive industry. There is ease of entry; there are a lot of small companies.
If someone can come in and legally skim off the hits, who is going to suffer, the small company or the larger company? Hearings on S. 646 and H.R. 6927 Before Subcomm. No. 3 of the House Comm, on the Judiciary, 92d Cong. 1st Sess. 20 (1971).

The answer is obvious, of course. Only the largest producers could afford to suffer the losses inflicted by duplicators.

(c) Judicial authority. The issue before this court has been raised infrequently, due to its relatively recent genesis. In fact, only two Courts of Appeals have considered the question; both have held precisely as we do that duplication is not protected by the statute. The Ninth Circuit, in Duchess Music Corporation v. Stern, 458 F.2d 1305, 1311 (9th Cir. 1972), concluded:

Rosner may, of course, record appellants’ songs, when she hires musicians, artists, and technicians. Instead, she steals the genius and talent of others. She deceives others into thinking that her tapes represent her' own work. She has no “right to copy.” She may not continue her piracy under the flag of compulsory licensing. (Citation omitted.)

Appellants attempt to distinguish Duchess on the grounds that Rosner, the duplicator there, did not tender the two cent royalty until after she had been “caught red-handed” in her copying. It is, of course, precisely because she attempted to comply with the compulsory license provision that the question arose; we cannot see that the timing of her tender changes or taints the issue.

Edward B. Marks Music Corporation v. Colorado Magnetics, Inc., 497 F.2d 285 (10th Cir. 1974) (en banc) arises from a factual setting even more similar to ours, in that defendant’s method of operation included from the beginning a tender of “royalties” which plaintiffs refused. There the court concluded that the compulsory license provision means that once Marks has licensed one recording,

Magnetics may make its own arrangements, hire its own musicians and artists, and then record. It does not mean that Magnetics may use the composer’s copyrighted work by duplicating and copying the record of a licensed recording company. Such, in our view, is not a similar use. 497 F.2d 285, 288.

Duchess and Marks in turn find support in Aeolian Company v. Royal Music Roll Company, 196 F. 926 (W.D.N.Y.1912), the initial decision construing the compulsory license provision. The court there held that duplicating a player piano roll, that era’s analogue of a sound recording, was not a “use” of the composition “similar” to making the original roll, and was therefore not protected by the statute.

Finally, in Fame Publishing Company, Inc. v. S & S Distributors, Inc., 363 F.Supp. 984 (N.D.Ala.1973), the court likewise concluded that the provision offers no protection to duplicators.

Against this impressive battery of judicial authority, appellants offer as their principal weapon Jondora Music Publishing Company v. Melody Recordings, Inc., 351 F.Supp. 572 (D.N.J.1972). In holding that duplication is a “similar use” protected by the statute, that court committed one of the most basic of legal errors: by asking the wrong question, it got the wrong answer. Rather than asking whether duplicating a recording is a “similar use” of the composition, it asked whether recorded performances are protected by the Copyright Act. This fallacy is most clearly illustrated in the court’s analysis of Duchess:

. that court [9th Circuit] believed that because a musical composition is copyrighted, the unauthorized reproduction of the performance embodied in the sound recording of that composition is, and ought to be, prohibited by federal copyright laws. But that clearly was not the law when Duchess was decided. Neither performance nor recording was copyrightable. 351 F.Supp. 572, 580 (emphasis supplied).

Of course, the Duchess court was not concerned with the recording or performance but with infringement of the copyright in the composition itself. The district court simply could not distinguish form (the recording) from substance (the composition).

Not surprisingly, this approach lead the district court into conceptual cul de sacs such as the legislative history of the “Sound Recording Amendment of 1971,” (Public Law 92-140, 85 Stat. 391). That amendment created a copyright in sound recordings “fixed” after February 15, 1972; again, the court’s concern with this amendment illustrates its misconception that the underlying issue concerned particular recordings rather than the compositions themselves. In examining the legislative history of the amendment, the court unearthed numerous statements to the effect that “tape piracy” was not prohibited by federal law. The court concluded that since no copyrights existed in recordings “fixed” before the effective date of the statute, duplication was therefore legal.

Aside from noting the basic analytical confusion embodied in reliance on this amendment, two other criticisms may be made. First, neither the district court nor this court is bound by rather impressionistic statements in a legislative history as to what a prior existing law means. Especially is this true when, as here, a great deal of time (63 years) has elapsed between the two Congresses involved. “[T]he views of one Congress as to the construction of a statute adopted many years before by another Congress have ‘very little, if any, significance.’ ” United States v. Southwestern Cable Company, 392 U.S. 157, 170, 88 S.Ct. 1994, 2001, 20 L.Ed.2d 1001 (1968) (citation omitted). It should be readily apparent that a more accurate guide to Congressional intent is the legislative history of the 1909 Act itself; as we haye seen, that history indicates that the dual purposes of the Act would be thwarted by extending its protection to duplication.

Second, the Congress reached its conclusion despite a dearth of judicial interpretation; no Court of Appeals had spoken on the issue at the time the amendment was being considered.

Based, therefore, on our analysis of statutory language, Congressional intent, policy considerations, and prior judicial authority, we can only conclude that appellants’ acts do not fit within the compulsory license provision.

II. THE GRANT OF SUMMARY JUDGMENT

Appellants also challenge the district court’s grant of summary judgment as improper because of “numerous and complicated issues” of fact which they argue should have been tried. The alleged issues may be numerous and complicated, but they are not material. Neither in their denial and affidavits below nor in their brief do appellants deny that they were engaged in the unauthorized duplication of appellees’ copyrighted compositions in reliance on the compulsory licensing provision. Their denials of other allegations, for example that their sole business is such duplication, or that they had established a “clandestine operation,” are beside the point. They admitted the material facts necessary to permit the district court to rule whether, as a matter of law, their activity was protected; no material issue of fact remained in dispute.

Summary judgment was therefore properly granted, and the district court is therefore

Affirmed.

GODBOLD, Circuit Judge

(dissenting):

Plaintiffs sued as composition copyright holders. They did not, and could not, sue as manufacturers, because the 1909 Act created no copyright interest in sound recordings of musical compositions, and the protection extended to manufacturers by the 1971 amendments to the Act does not reach the recordings in question. The precise question before us concerns the scope of protection afforded by the 1909 Copyright Act to persons in the position of plaintiffs.

The Congressional purpose in 1909 was twofold, protection of the composer, and at the same time, encouragement of artistic expression by curbing music monopolies.

Congress feared the creation of a giant music monopoly in which the big publishing houses, which owned most musical copyrights, would negotiate with the great recording companies for exclusive recording contracts.
To avoid a music trust injurious to public and composer alike, and to still protect the composer in his work was the problem Congress faced.

Miller v. Goody, 139 F.Supp. 176, 182 (S.D.N.Y., 1956), rev’d. on other grounds sub nom. Shapiro, Bernstein & Co. v. Goody, 248 F.2d 260 (CA2, 1957).

The composition copyright holder is granted an exclusive performance right by 17 U.S.C. § 1, but its exclusivity is of limited life. Once he records or permits others to record his composition he thereby licenses others to record, and such others must pay him under the “compulsory license” arrangement of subsection (e). These rights were designed to prevent two distinct abuses: (1) mechanical reproduction where the composer does not yet want any permanent recording of his composition, and (2) use of the composition without compensation. H.R.Rep.No.2222, 60th Cong., 2d Sess. (1909), reprinted in S. Rothen-berg, Copyright Law, C.l § 9 at 51 — 52 (1956).

The interests impinged upon by the first abuse are the artist’s privacy and integrity, his right to credit for his own work, and his desire that there not be premature performances of his incomplete or unsatisfactory work. These protected interests have been fully vindicated once the copyright holder records or permits another to record the composition. Recording exemplifies that the piece is ready for public consumption and prevents others from usurping credit for its creation.

The second abuse, use of the composition without compensation, is protected against initially by the composition copyright holder’s right to negotiate such terms as he wishes with his authorized licensee. Once the composer’s interests of protection against invasion of his privacy and against prematurity have been vindicated the antimonopoly purpose of the Act is then implemented by the compulsory licensing scheme. Copies are made available to the world at large at lower royalty prices than the composer might be willing to offer and lower overall prices than the composer’s licensee might offer. In addition compulsory licensees may be the sole means through which the public can obtain ancient, exotic and otherwise unprofitable recordings which other manufacturers and producers withdraw from production and sale.

The underpinning of the majority opinion is the concept that the 1909 Act created in the composition copyright holder a protectible interest in the underlying musical composition, the life of which interest extends beyond the original recording. This judicially-confected interest is the response of judges to copying activities which they find distasteful — i. e., in our free enterprise system one ought to be able to “own” what he composes and be able to “sell” it on terms that he can negotiate, and it looks almost like condemnation of property for private use or taking of property without due process to put the fruits of the composer’s labor in the hands of copiers for a small statutory fee. These evisceral reactions are at times not even concealed, and the pejorative terms “pirates” and “parasites” become substitutes for analysis of the scope of the protectible interests accorded ' by the 1909 Act.

The continuing protectible interest which the majority find was not perceived by Congress when it was considering the Sound Recording Amendments of 1971 (Pub.L. No. 92-140, 85 Stat. 391). In their discussions members of Congress stated that the new legislation was necessary because of a loophole in the 1909 Act allowing pirates to function without Violation of federal law so long as the compulsory licensing provisions are met:

If the unauthorized producers pay the statutory mechanical royalty required by the Copyright Act for the use of copyrighted music, there is no Federal remedy currently available to combat the unauthorized reproduction of the recording .

S.R. 92-72, p. 4; H.R. 92-487, p. 2; U.S. Code Cong. & Admin.News, 1971, p. 1567.

[Persons who] satisfy the (statutory) clam (sic) of the owner of the music copyright, can and do engage in widespread unauthorized reproduction of phonographic records and tapes without violating Federal copyright law.

H.R. 92-487, p. 2; U.S.Code Cong.' & Admin.News, 1971, p. 1567.

Courts upholding the composition copyright owner’s claim of infringement by “pirates” have based their analyses on the phrase “similar use” employed in the 1909 Act. These courts have held that “pirate” duplication is an “identical” rather than a “similar” use, and as such is not within the statutory exception. Edward B. Marks Music Corp. v. Colorado Magnetics, Inc., 497 F.2d 285 (CA10) (petition for cert. filed 43 U.S.L.W. 3017 (U.S. July 10, 1974) (No. 73-2006)); Duchess Music Corp. v. Stern, 458 F.2d 1305 (CA9), cert. denied sub nom. Rosner v. Duchess Music Corp., 409 U.S. 847, 93 S.Ct. 52, 34 L.Ed.2d 88 (1972). This exceedingly technical analysis has been subject to criticism by many commentators. See, e.g., J. Nimmer, The Law of Copyright, §§ 108.46 — 108.4621 at 429— 434.1 (1972).

Suppose a compulsory licensee engages in record piracy. That is, he does not assemble his own performers and technicians to make a new “similar” record based upon the same copyrighted work. Instead he simply duplicates or re-records the previously authorized recording thus saving most of the costs attendant to the manufacture of records. Assuming such a record pirate duly serves a notice of intent to use, and pays the compulsory license royalties, the somewhat astounding result is that as to those sound recordings fixed prior to February 15, 1972, he is not an infringer under the Copyright Act. The only portion of that which he has recorded which is protectible under the Copyright Act, with respect to sound recordings fixed prior to February 15, 1972, is the musical composition itself, and that he is authorized to use for recording purposes upon payment of the statutory royalties. All of the other elements contained in the original record which he has without authority duplicated are not copyrightable, and hence his use of such other elements does not give rise to an action for copyright infringement. (footnotes omitted).

Id. at 431-433.

The “identical”-“similar” distinction seems to me only a semantical implementation of the judicial distaste which I have described. It gives to the composer a better statutory monopoly than Congress gave him and erodes the statutory scheme. Additionally, it indirectly confers upon the licensee what amounts to an exclusive right to his mechanical recording, a right which Congress acted to confer in 1971 on the ground it was non-existent.

I agree with Professor Nimmer. . I would follow the reasoning used by several courts that have denied or wished to deny relief to composition copyright holders. See Jondora Music Publishing Co. v. Melody Recordings, Inc., 351 F.Supp. 572 (D.N.J., 1972), 362 F.Supp. 488 (D.N.J., 1973), 362 F.Supp. 494 (D.N.J., 1973); International Tape Mfgs. Ass’n. v. Gerstein, 344 F.Supp. 38 (S.D. Fla., 1972), vacated on other grounds, 494 F.2d 25 (CA5, 1974). See also Judge Byrne’s dissenting opinion in Duchess Music Corp. v. Stern, 458 F.2d 1305, 1311—1313 (CA9), cert. denied, sub nom., Rosner Duchess Music Corp., 409 U.S. 847, 93 S.Ct. 52, 34 L.Ed.2d 88 (1972), and the dissent of Chief Judge Lewis in Edward B. Marks Music Corp. v. Colorado Magnetics, Inc., 497 F.2d 285, 291—292 2006)). Jondora relies on a broad reading of Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973), to support its conclusions. In Goldstein the Court upheld a California anti-piracy statute covering recordings made before the 1971 Amendments’ effective date. Jondora correctly reasoned that , the absence of federal preemption could result only if no federal legislation had been enacted to provide a remedy against pirates.

Thus, under pre-February 15, 1972, law, where the States are free to grant what is the equivalent of state copyright protection, it is clear that Congress has not exercised its copyright powers. . . . [I]f plaintiffs’ view — and the view of the Duchess Court — were sound, that is, that mechanical recordings enjoyed federal copyright protection before February 15, 1972, not only would there be no need for state action, state action would be barred, since Congress would have indicated its felt view that a national uniform policy was necessary, and not a piecemeal state-by-state approach.

362 F.Supp. at 493.

The ultimate result of my view is that plaintiffs have not established standing to sue, a prerequisite to relief. A plaintiff must allege facts showing that he is adversely affected by defendant’s acts. Sierra Club v. Morton, 405 U.S. 727, 738, 92 S.Ct. 1361, 31 L.Ed.2d 636, 645 (1972); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). So long as defendants tender the statutory compulsory license fee, plaintiffs do not show any judicially cognizable injury. Although the copiers’ actions may be offensive to plaintiffs, and plaintiffs might earn higher royalties but for the copying, the plaintiffs are receiving all to which they are entitled. Their complaint is to Congress for not giving them a broader statutory monopoly.

Plaintiffs argue that piracy may harm the public through discouragement of artistic expression and encouragement of monopolies by causing small record companies to collapse as profits are sapped by pirates. Even if these allegations were supported by evidence, plaintiffs’ position would not be improved, for they allege no harm to themselves. This is the very flaw which barred consideration of the complaint in Sierra Club. A private party cannot seek redress for a public injury absent an allegation of private and individuated harm.

Thus I conclude that plaintiffs have no standing. But if they do have standing, they are not entitled to relief.

      . The dissent maintains that plaintiffs-appel-lees lack standing under the tests of Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) and Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Data Processing's two-pronged test is met here. First, plaintiffs alleged “injury in fact.” Each plaintiff music publishing company alleged specific violations of its copyrights in specific musical compositions, (Complaint paragraphs 15-114) and asked for an injunction against and damages for each such infringement (Prayer for Relief, paragraphs one and two). In paragraph four of their complaint, they alleged:
      Such bootleg tape cartridges [produced by defendants] are sold . . . for cash at prices substantially lower than the prices of legitimate tape cartridges, to the material detriment of the recording artists, recording companies, music publishers and song writers, and to the great damage or retail merchants engaged in the sale of legitimate recordings. (Emphasis supplied.)
      We note, finally, that the Data Processing plaintiffs, who were held to have standing, alleged only prospective economic injury while plaintiffs here allege they have already been injured.
      Clearly, plaintiffs also meet the second prong of Data Processing’s test, “whether the interest sought to be protected ... is arguably within the zone of interests to be protected or regulated by the statute . ”, Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184. Here the interest sought to be protected was created by the statute in question, 17 U.S.C. § 1; there can therefore be no serious argument that the “interest” which plaintiffs seek to protect, their copyrights in the compositions, are not within the “zone of interests to be protected.”
      The dissent’s reliance on Sierra Club is inapposite, since that case dealt with the question of “what must be alleged by persons who claim injury of a noneconomic nature . ”, Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct 1361, 1366, 31 L.Ed.2d 636 (1972). However, even under Sierra Club’s requirement that “the party seeking review be himself among the injured” id. p. 735, 92 S.Ct. p. 1366, plaintiffs clearly have standing, since they allege economic injury to their music publishing businesses. Sierra Club does not challenge the proposition that “palpable economic injuries have long been recognized as sufficient to lay the basis for standing, with or without a specific statutory provision . . . Id. pp. 733 — 734, 92 S.Ct. p. 1365.
      The dissent argues that plaintiffs cannot have been injured since defendants tendered the two cent statutory royalty for each reproduction. This analysis overlooks the fact that the compulsory license provision is an exception to the general prohibition against duplication. The central issue in this case is whether defendants made “similar use” of plaintiffs’ compositions; only if they did are they permitted to tender the royalty and entitled to be licensed. The dissent, in asserting that defendants are entitled to tender the statutory royalty, assumes of necessity that they are within the compulsory license exception, i. e., that duplication is a “similar use.” But this is precisely the issue for decision, one which cannot be disposed of with such legal legerdemain.

      . The dissent follows this same reasoning in its reliance on Jondora and Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973). In fact, the passage from Jondo-ra chosen for quotation by the dissent is one which reveals that court’s misconception of the underlying issue, since it concerns copyright protection of “mechanical recordings.”
      The dissent correctly cites Goldstein for the proposition that Congress had not acted in the area of copyright protection of sound recordings fixed before the effective date of the 1971 amendment. We agree completely, but again, this does not advance our inquiry since the issue of copyright piotection for sound recordings is simply not involved in this case.

      . The 1971 amendments, effective February 15, 1972, were prospective only. No protection is given by any federal legislation to the manufacturer of records which were “fixed” prior to February 15, 1972.

      . I have been unable to find a discussion of standing in any reported opinion of a case such as this. The parties have made no reference to standing, but since it is a jurisdictional prerequisite the court may inquire into it on its own motion. United States v. Storer Broadcasting Co., 351 U.S. 192, 197, 76 S.C.t. 763, 100 L.Ed. 1081, 1088 (1956).

      . Since this dissent was prepared the Third Circuit in a two-one decision has reversed Jondora Music Publishing Co. v. Melody Recordings, Inc., 506 F.2d 392, CA3, 1974, No. 74—1241. Judge Gibbons’ dissent expresses more ably than I the position which I espouse.


author: BELL, Circuit Judge: JOHN R. BROWN, Chief Judge

text:
    Rudolph SWEET et al., Plaintiffs, Eddie Rhyne et al., Plaintiffs-Appellants, v. Robert E. CHILDS, etc., et al., etc., Defendants-Appellees.
    No. 73-3842.
    United States Court of Appeals, Fifth Circuit.
    Jan. 31, 1975.

      Kent Spriggs, Tallahassee, Fla., Nathaniel R. Jones, James I. Meyerson, New York City, for plaintiffs-appellants.
    William H. Jeffress, Jr., R. Stephen Browning, Washington, D. C., for amicus curiae.
    Joseph A. Sheffield, Marianna, Fla., for defendants-appellees.
    Charles E. Miner, Jr., Gen. Counsel of Fla. Bd. of Ed., Gene T. Sellers, Counsel, Tallahassee, Fla., for Fla. State Bd. of Ed.
    Before BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges.
   BELL, Circuit Judge:

Appellants brought this civil rights action individually and on behalf of other black students attending public schools in Jackson County, Florida. Joined as defendants were the Principal of Ma-rianna High School, the Superintendent of Schools in Jackson County, and the Jackson County School Board [hereinafter collectively referred to as “county officials”], as well as various state officials who comprise the Florida State Board of Education [hereinafter referred to as “state officials”]. Appellants alleged that the county officials had implemented certain disciplinary policies and procedures which resulted in a pattern and practice of racial discrimination throughout the Jackson County public school system. The state officials were alleged to have sanctioned, through inaction, the claimed discriminatory policies and procedures. Claims were also enumerated as to violations of the Thirteenth Amendment, due process, and freedoms of speech and assembly.

Declaratory and injunctive relief was sought including, inter alia, specific relief in the form of directing the state officials to submit a plan to effect the discontinuation of the discriminatory disciplining, and directing the county officials to submit proposed rules governing student misconduct and punishment. They also asked the court to direct the county officials to expunge the records of all black students adversely affected by the alleged unconstitutional practices.

After first denying appellants’ motion for preliminary injunction, and then denying motions to dismiss by both state and county officials, the district court granted an uncontested motion for summary judgment made by the state officials. Upon trial without jury on the merits of the allegations remaining against the county officials, the court dismissed appellants’ claims, and denied appellants’ motion for a rehearing on the summary judgment. This appeal is from the final judgment entered pursuant to this order.

Appellants contend that the district court erred in sustaining the state officials’ motion for summary judgment because genuine issues of material fact existed as to their case against the state officials. They dispute, furthermore, the legal conclusions reached by the lower court on the merits of the summary judgment motion. With respect to their case against the county officials, appellants argue that the district court erred in failing to declare the actions of the county officials to have been violative of their equal protection, due process, and free speech rights, and in failing to enjoin further disciplinary action as racially discriminatory. We affirm.

I.

The disciplinary actions which are at the center of this controversy were taken by Jackson County school officials during the two-year period following court-ordered desegregation of the public school system in 1970. Racial confrontations which took place on January 3 and 6, 1972, were catalysts for the disciplinary actions taken against the appellants. On January 3, interracial fighting broke out at Marianna High School. Although no student was disciplined solely for his participation in the fight, four students were expelled who had participated in the fight and committed other specific acts of misconduct. Appellant Small disobeyed the order of Principal Lowell Centers to cease fighting, and attempted to provoke further disruption. Appellant Long, when commanded by an assistant principal to stop fighting, threatened the administrator with a stool. Later that day, appellants Nance and Heatrice, together with Small, confronted a teacher, verbally abused him, and physically threatened him. The threat on the part of Nance was in the form of holding a piece of broken concrete in his hand as if to strike the teacher.

On January 10, the parents of these four students were notified that the Jackson County Superintendent of Schools was recommending that the school board expel their children from school. Hearings were held on January 20, resulting in the expulsion of Small, Long, Nance and Heatrice.

Three days after the melee of January 3, black students staged a sitdown in the hallways of Marianna High. Principal Centers persuaded the students to disperse, and held a conference with a group of them so that they might choose whether they wanted to return to classes or leave the school grounds and take a zero for the day. The students chose to leave. As they departed, however, they violated their arrangement with the principal by encouraging other black students still in class to leave with them. This caused further disruption throughout the school. Later, the principal announced over local radio that all who had left school that day would be suspended for ten days. Included in this group of 124 students were named appellants Pittman, Sweet, and Smith.

The parents of the students who had been suspended were notified and afforded conferences with school officials beginning on January 10. Within three days, conferences had been held with the parents, and all suspensions were lifted. All students were reinstated before the end of the original ten day period of suspension.

Appellant Pittman, although reinstated as a part of the suspended group, was expelled on January 20 along with the four appellants discussed above. Cited in the expulsion resolution of the school board were various acts of misconduct by Pittman between October 1971 and January 1972, including his participation in the January 6 disruptions and his noncooperation with school officials during his post-suspension conference.

II.

On February 12, 1973, the state officials moved for a summary judgment based upon the pleadings, interrogatories, and answers to interrogatories that had been filed. They alleged that there was no genuine issue of material fact and that they were entitled to judgment as a matter of law. Appellants failed to respond to the motion. More than a month later, the district court granted summary judgment. Appellants moved for rehearing on April 24, over two months after the original motion had been filed. They alleged “facts in the nature of evidence” which they felt the court should have considered in ruling on the summary judgment motion. No affidavit was offered. The court denied the motion for rehearing.

Rule 56(b), F.R.Civ.P., permits a defendant to move at any time, with or without supporting affidavits, for a summary judgment. Once a proper motion is filed, though, Rule 56(e), F.R.Civ.P. provides that

an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts , showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

It was the intent of the drafters that the above portion of Rule 56 would discourage a party from merely standing on his pleadings in the face of a summary judgment motion. See Notes of Advisory Comm, on 1963 Amendment, 28 U.S. C.A. at 416.

The Supreme Court in Adickes v. S. H. Kress & Co., 1970, 398 U.S. 144, 159-161, 90 S.Ct. 1598, 26 L.Ed.2d 142, 155-156 has agreed with the Rules Advisory Committee as to the thrust of Rule 56(e). The district court in Adickes had granted a summary judgment and, to the petitioner’s argument for reversal on appeal, the respondent contended that the petitioner had failed properly to contest the original motion. The Court stated that it is the movant’s burden “to show initially the absence of a genuine issue concerning any material fact.” Id. The Court found that the respondent in Ad-ickes had failed to carry this burden. Had it been successful, however, the Court, in dicta, stated that “Rule 56(e) would then have required petitioner to have done more than simply rely on the contrary allegation in her complaint.” Id. For a similar analysis, see First National Bank v. Cities Service Co., 1968, 391 U.S. 253, 289-290, 88 S.Ct. 1575, 20 L.Ed.2d 569, 592-593.

The Fifth Circuit has consistently followed the Adickes analysis of Rule 56(e), that once a movant carries his burden of showing no genuine issue of material fact, it is the non-movant’s burden to rebut this showing with his own “affidavit or otherwise.” If he fails to do so, the summary judgment, if otherwise appropriate, is affirmed. See, e. g., E. C. Ernst, Inc. v. General Motors Corp., 5 Cir., 1973, 482 F.2d 1047, 1049; Garcia v. American Marine Corp., 5 Cir., 1970, 432 F.2d 6, 7—8; Lovable Co. v. Honeywell, Inc., 5 Cir., 1970, 431 F.2d 668, 670-671.

The state officials made an initial showing of the absence of disputed facts. Appellants failed to establish the contrary. Thus the summary judgment is due to be affirmed provided the second prerequisite, that the movant is “entitled to a judgment as a matter of law,” is fulfilled. Rule 56(c), F.R.Civ.P. See Ranger Insurance Co. v. Algie, 5 Cir., 1973, 482 F.2d 861, 863; Dozier v. United States, 5 Cir., 1973, 473 F.2d 866, 868-869. We hold that the district court did not err in its determination that the state officials were entitled to a judgment as a matter of law.

In Florida, the State Board of Education and the county school boards are both constitutionally created. Fla. Const, art. IX, §§ 2, 4. Statutory law vests the State Board with overall policy-making authority, Fla.Stat. § 229.053 (Supp. 1974), while the local school boards are invested with authority to adopt rules and regulations for the “control, discipline, and suspension of pupils” and to “decide all cases recommended for dismissal.” Fla.Stat. § 230.23(6)(c) (Supp.1974). As pointed out by the district court, finally, the Florida Supreme Court has viewed the area of student “conduct and discipline” as “vested primarily in the county boards.” Satan Fraternity v. Board of Public Instruction of Dade County, 156 Fla. 222, 22 So.2d 892 (1945).

The most recent judicial statement on the relationship between the Florida State Board of Education and school disciplinary matters is found in Canney v. Board of Public Instruction of Alachua County, 222 So.2d 803 (Fla.Dist.Ct.App. 1969). There, a student was suspended by his public school principal, whose action was later affirmed by the county school board. The student appealed his case to the State Board of Education, and simultaneously applied for a writ of certiorari to the Florida District Court of Appeal. The court granted the defendant county school board’s motion to dismiss pending administrative review by the State Board. The State Board refused review, however, claiming lack of jurisdiction. A second petition for certiorari was filed, and the District Court of Appeal then held that, because the proper avenue of review-for a quasi-judicial order of a state agency is by certiorari to the District Court of Appeal, and because the county school board had previously been held to be a state agency, the suspension decision was properly reviewable only by the District Court of Appeal. In passing, however, the court approved the State Board’s “no jurisdiction” decision. Cf. Agner v. Smith, 167 So.2d 86 (Fla.Dist.Ct.App. 1964).

We conclude from these authorities that- the design of the applicable Florida law is to leave disciplinary matters to local school authorities as distinguished from the State Board of Education. The case against the state officials rests on their alleged failure to act, but their claimed inaction was not proximately related to the alleged discriminatory disciplining in question. The district court therefore was correct in concluding that, as a matter of law, the state officials were entitled to summary judgment.

III.

After granting the state officials’ motion for summary judgment, the district court tried and dismissed appellants’ claims against the county officials. To reiterate, these claims were that the county officials had participated in a pattern and practice of racial discrimination through their disciplinary policies and practices during the 1970 — 72 period, that appellants had not received procedural due process from the county officials in connection with their suspensions or expulsions, that the disciplinary actions taken had become “badges of slavery,” and that these actions had violated appellants free speech and assembly rights.

On appeal, appellants again contend that the disciplinary actions which befell them in January 1972 were parts of a larger pattern of racial discrimination that pervaded the Jackson County school system. The gist of the argument is to make out a mathematical equal protection argument: more black students had been disciplined than whites, hence, a violation of the equal protection clause. The answer to the argument is that it lacks a factual foundation. There was no showing of arbitrary suspensions or expulsions of black students nor of a failure to suspend or expel white students for similar conduct.

We further find no error in the court’s disposition of the due process claims. Dixon v. Alabama State Board of Education, 5 Cir., 1961, 294 F.2d 150, is the leading Fifth Circuit ease dealing with procedural due process in the context of student disciplinary proceedings. The basic requirements for notice and hearing prior to the expulsion of a student from a state-supported school are outlined in Dixon:

The notice should contain a statement of the specific charges and grounds which, if proven, would justify expulsion. . . . The nature of the hearing should vary depending upon the circumstances of the particular case. 294 F.2d at 158.

These requirements have been extended to suspensions for a “substantial period of time,” with ten days being classified as such a period. Black Students of North Fort Myers v. Williams, 5 Cir., 1972, 470 F.2d 957.

In the present case, the five appellants who were expelled received notice ten days before their expulsion hearings were to take place. They were notified of their right to be present. The specific charges and the names of the witnesses against them were included in each notice. Once the expulsion decisions were reached, resolutions were adopted giving the reasons for the actions taken. Finally, under the Canney case, cited supra, the expelled students were given the right to appeal the board’s decision to the Florida District Court of Appeal. It is clear, therefore, that the five appellants who were expelled in January 1972 were not denied procedural due process.

We likewise find no lack of procedural due process as to the appellants who were suspended on January 6 after staging the sitdown and disrupting classes. They were suspended without prior notice or pre-suspension hearings shortly after they left school on Thursday the 6th. The following Monday, January 10, conferences were held with the students and their parents, and all students were reinstated during that week. No student was out of school for the duration of the ten day suspension. Under these circumstances, we find no violation of procedural due process. See Murray v. West Baton Rouge Parish School Board, 5 Cir., 1973, 472 F.2d 438, 443; Cf. Sullivan v. Houston Independent School District, 5 Cir., 1973, 475 F.2d 1071, 1077-1078; Black Students of North Fort Myers v. Williams, supra, 470 F.2d at 958.

Finally, we find no error in the district court’s ruling against appellants with respect to their Thirteenth Amendment, free speech, and free assembly claims. These claims were without factual support. The disciplinary proceedings in question were based on cause.

Affirmed.

JOHN R. BROWN, Chief Judge

(concurring in part and dissenting in part):

While I join fully in both the reasoning and the result of the Court’s opinion with respect to the named plaintiffs: Small, Nance, Heatrice, Long and Pittman, I must dissent in a very limited way because of an issue that is not even discussed by the Court. I remain convinced that the ten-day suspensions of the approximately 120 remaining students for leaving Marianna High School on January 6, 1972 should be expunged from their school records because this punishment was meted out without notice to the students of the consequences of their actions.

While I am mindful of the potential confusion that arises when participants in volatile events must recall precise incidents long afterwards, the testimony of all witnesses consistently indicates that Principal Centers did not limit his offer solely to the approximately 40 students participating in the auditorium meeting, nor did he ever suggest that the offer was contingent on their not soliciting other students to join in the walkout. His ultimatum to the students in attendance at the auditorium meeting was to go to class or go home and take a zero for the day. When subsequently the students began to spread the news of the impending march and the zero option through the school, Principal Centers then announced over the school intercom that the students were to go home— again without any indication that the offer was extended only to the auditorium group or that it was subject to a tacit pledge not to enlist others in the walkout. As students came up to him to say that they had a sister or brother in another class and were afraid to leave them at school, Principal Centers said that the siblings could go home but they too would get zeros. It was not until . later that afternoon, after the downtown march and arrests, that Principal Centers announced over local radio that those who had left school were suspended for 10 days or until the administration could meet with their parents.

The mass suspensions that Principal Centers invoked that afternoon lasted technically only a few days but as a practical matter their effect continues up to the present day because the suspensions remain a part of each student’s permanent school record. Such reports could obviously be a substantial reflection on their career options long after they have left school. These students are actually being punished for violating an order that was never given — a sanction that goes to the core of due process. It is unquestionable that these students are vested with a Fourteenth Amendment “liberty” interest by virtue of these records and their ramifications. Cf. Board of Regents v. Roth, 1972, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; Perry v. Sindermann, 1972, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570, 578.

      . Appellants brought the action under 42 U.S. C.A. §§ 1981, 1983, and 1985(3), the Thirteenth and Fourteenth Amendments to the United States Constitution, and Fla.Stat. §§ 230.23 and 230.33. Jurisdiction was noted by the district court under 28 U.S.C.A. § 1343(3).

      . The sheriff and prosecutor of Jackson County, and the Chief of Police of the City of Marianna, were also made defendants, but appellants subsequently abandoned their claims against them.

      . Rhyne v. Childs, N.D.Fla., 1973, 359 F.Supp. 1085.

      . In seeking to dispose of the claims of each named appellant, we begin with appellants Fletcher Small, Victor Long, Melvin Nance, and Benjamin Heatrice. As will be seen, the, other named appellants are John Pittman, Rudolph Sweet, Gloria Smith, Murial Rhyne, Eddie Rhyne and Billy Earl Harrison. There will be no discussion of Harrison’s claim, which has apparently been abandoned.

      . Originally, the county board’s expulsion of Small, Nance, Long, Heatrice, and Pittman was permanent. In its Opinion-Order of March 22, 1972, however, the district court ordered the county board to limit the period of the expulsions to the 1971-72 school year.

      . It developed that named appellants Eddie and Murial Rhyne were suspended in Spring 1971 on an occasion unrelated to that in which the other named appellants were involved. The district court found that the two Rhynes were afforded adequate procedural safeguards and that the board’s actions had adequate factual bases. These findings are not clearly erroneous. Their other association with the law suit rests on the claim of a pattern and practice of racial discrimination, to which we will address ourselves infra.


author: PER CURIAM.

text:
    Joseph L. BERNARDI, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee and Third-Party Plaintiff. v. Walter H. RICHTER, Third-Party Defendant-Appellant.
    Nos. 74-1395 and 74-1396.
    United States Court of Appeals, Seventh Circuit.
    Heard Nov. 6, 1974.
    Decided Dec. 23, 1974.
    Rehearing Denied Jan. 16, 1975.
    Douglas L. Barnes, Samuel E. Hirsch, Chicago, Ill., for plaintiff-appellant.
    Scott P. Cramp ton, Asst. Atty. Gen., F. Arnold Heller, Atty., Tax Div., Dept, of Justice, Washington, D. C., Warren L. Schmidt, Chicago, Ill., for defendant-appellee.

      Before SWYGERT, Chief Judge, MARIS, Senior Circuit Judge, and CUMMINGS, Circuit Judge.

       Senior Circuit Judge Albert B. Maris of the Third Circuit is sitting by designation.

   PER CURIAM.

The principal question presented by this appeal is whether the district court correctly found taxpayers Bernardi and Richter were persons responsible for payment of withheld taxes and that they willfully failed to pay them over to the United States, so that they were liable for penalties under Section 6672 of the Internal Revenue Code of 1954 (26 U.S.C. § 6672). The district judge entered findings of fact and conclusions of law in favor of the Government. 74 — 1 U.S.Tax Cas. H 9170 (N.D.Ill.1973). We adopt those findings of fact and conclusions of law as our opinion herein.

Judgment affirmed.

      . See also Harrington v. United States, 504 F.2d 1306 (1st Cir. 1974).


text:
    UNITED STATES of America, Appellee, v. Ernest DIXON, Appellant.
    No. 74-1530.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 13, 1974.
    Decided Dec. 18, 1974.
    Jack Nordby, St. Paul, Minn., for appellant.
    Thorwald Anderson, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before GIBSON, Chief Judge, CLARK, Associate Justice, and WEBSTER, Circuit Judge.

       Associate Justice Tom C. Clark, United States Supreme Court, Retired, sitting by designation.

   PER CURIAM.

Appellant Ernest Dixon was indicted for the robbery of some $4,280.63 from the Produce State Bank of Hollandale, Minnesota, a village of 280 people. He was also charged with a second count of possession of that money, knowing it to have been stolen, in violation of 18 U.S.C. § 2113(c). A mistrial was declared on the robbery count when the jury could not agree, but Dixon was convicted on the possession count.

Dixon asserts two errors: (1) that, under United States v. Jones, 418 F.2d 818 (8th Cir. 1969), the trial judge erred in failing to give an instruction that the jury could not find Dixon guilty of both robbery and possession; and (2) that the instructions as to presumption of innocence, burden of proof, reasonable doubt, etc., were erroneous and that other tendered instructions were not given, resulting in prejudice. We affirm, distinguishing Jones and finding the instructions as given quite sufficient.

The facts are clear and convincing. Dixon remained in a waiting car while two other participants robbed the bank. They returned to the car with the money, and were driven away by him. Earlier, Dixon was observed in the car by a local bar owner living nearby, who recognized the car as that of Francisco Hernandez, an acquaintance. Later, the bar owner observed the car bound out of town with Dixon driving and Hernandez and another man in the rear seat; he saw the car stop and Hernandez took the driver’s seat. Local police radioed an alert; the car was stopped by police officers in a nearby town, Faribault; and the stolen cash and firearms were found under the front seat. Hernandez and Rivera pled guilty. Hernandez testified for the Government.

It. is, of course, hornbook law that where robbery and the lesser offense of possession are charged in the indictment, the jury must be told that the defendant cannot be guilty of both crimes. United States v. Jones, 418 F.2d 818 (8th Cir. 1969), relying upon Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961). In Milanovich, a conviction was had on both counts, and the Court concluded that “there [was] no way of knowing whether a properly instructed jury would have found the [defendant] guilty of larceny or of receiving (or, conceivably, of neither).” 365 U.S. at 555, 81 S.Ct. at 730.

Here, however, the jury convicted Dixon of possession and there was a mistrial on the robbery count. Since we know that the jury entered a guilty verdict on the possession count, no prejudice could result from an áffirmance of that count. Cf. United States v. Tyler, 466 F.2d 920 (9th Cir.), cert. denied, 409 U.S. 1045, 93 S.Ct. 544, 34 L.Ed.2d 497 (1972), where the court found no prejudice when larceny and possession were charged in the same indictment on the same facts but concurrent sentences were imposed. Moreover, while Dixon here acted only as an aider and abettor of the robbery by driving the getaway car, his receipt of a share of the stolen money may easily be conceptualized as a separate offense of possession.

As to the instructions given, Dixon seems to quibble over words. Certainly the substance of the requests were incorporated in the instructions given, and the omissions of which Dixon complains were included in the instructions at a subsequent point. Finally, Dixon objects to the omission of some adjectives and the addition of some restrictive words, but we believe such distinctions are of no significance, taking the instructions as a whole. While in Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 138, 99 L.Ed. 150 (1954), the Supreme Court indicated a preference for defining reasonable doubt as the kind that “would make a person hesitate to act . . . rather than the kind on which he would be willing to act,” the Court did not reverse the judgment, and we shall not do so here. Nevertheless, we express dismay in having to once again draw the attention of district courts in this Circuit to the preferred instruction on reasonable doubt. See United States v. Williams, 505 F.2d 947 (8th Cir. 1974); United States v. Dunmore, 446 F.2d 1214, 1222 (8th Cir. 1971).

Affirmed.

      . One Clark Rivera was also indicted with Dixon but subsequently pleaded guilty.

      . We note that the Government indicates that it will move for a dismissal of the robbery count on the affirmance of this judgment.