author: DUFFY, Senior Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Harold SILVERN, Defendant-Appellant.
    No. 72-1133.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 27, 1972.
    Decided Feb. 27, 1973.

      James P. Chapman, Thomas P. Sullivan, Peter A. Flynn, Chicago, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., William T. Huyck, Arnold Kanter, Asst. U. S. Attys., Chicago, 111., for plaintiff-ap-pellee.
    Before DUFFY, Senior Circuit Judge, STEVENS, Circuit Judge and ESCHBACH , District Judge.

       Honorable Jesse E. Eschbaeh, District Judge for the Northern District of Indiana, Fort Wayne Division, is sitting by designation.

   DUFFY, Senior Circuit Judge.

Defendant Silvern, a Chicago attorney, was charged herein with eleven counts of mail fraud, a violation under 18 U.S.C. § 1341 and one count of conspiracy to commit the substantive offense under 18 U.S.C. § 371. Also named with defendant Silvern in the indictment were Fred Jenkins, a Chicago police officer, and Dr. William Becker, a Chicago area physician. Jenkins was named as a codefendant with Silvern. Becker, who had previously been convicted of similar charges, was named as an unindicted accomplice in the mail fraud scheme.

Each of the mail fraud counts of the indictment alleged that the trio engaged in a scheme to defraud various insurance companies and clients of Silvern. Each of the substantive counts pertained to a separate personal injury case in which Silvern acted as counsel for the injured party and a specific mailing was alleged in each count with respect to that particular case.

The fraudulent scheme utilized their respective professions to the detriment of Silvern’s clients and the defrauded insurance companies. It was alleged in the indictment that Silvern contacted Jenkins and engaged him to refer automobile accident victims to Silvern’s office either by word of mouth, or by supplying the victim with Silvern’s business card. After so doing, Jenkins would receive $50 to $500 in payment for each referral depending on Silvern’s ultimate recovery. The victim then would contact Silvern or on occasion Sil-vern would personally contact the injured party which resulted in Silvern legally representing that person in a claim resulting from the accident. It was further alleged that Silvern then sent the clients so procured to Dr. Becker, who first examined them and then recommended treatment ranging from staying home from work to hospitalization.

It was further charged that Dr. Becker furnished defendant with exaggerated medical bills and reports which were false and fraudulent and that such bills were rendered in amounts far in excess of the amounts due and owing and reflected non-existing injuries and damages. Further, it was alleged that Sil-vern and Jenkins sent to the defrauded insurance companies accident reports prepared by Jenkins and the medical reports and bills prepared or caused to be prepared by Becker knowing them to contain false and fraudulent pretenses and representations.

The indictment claimed that Silvern collected the settlements from the insurance companies and paid his clients after deducting the full amount of Becker’s bills and his purported legal fees. Sil-vern then divided the inflated medical recovery between himself and Dr. Becker. In every case but one charged in the indictment, the accident victim received less than fifty per cent of the settlement check from the insurance company.

The conspiracy count in effect reasserted the various elements of the substantive offense and charged that Sil-vern, Jenkins and Becker conspired to commit offenses against the United States by mailing certain letters in order to perpetrate a scheme to defraud beginning in May 1966. The overt acts charged were the mailings alleged in the substantive counts as well as the conversations of either Jenkins or Silvern with the accident victims.

Count II of the indictment was dismissed on the day of trial pursuant to the government’s motion and the case went to trial on the ten remaining substantive counts and the conspiracy count.

At trial the government produced an employee of the insurance company alleged to be defrauded in each count, as well as the respective clients of Silvern. Extensive testimony was adduced from each regarding the transaction of settlement. The insurance employee in every case testified with respect to the mailings alleged in the count, the contents of the company’s file, the amount the case was settled for and the influence the statement of special damages had on the final settlement. The clients testified with respect to their injuries and the discrepancies with respect thereto as reflected on the bills and reports prepared by Dr. Becker and submitted by Silvern to the insurance companies. They also described their initial contact with Sil-vern, the subsequent referral to Dr'. Becker and the ultimate settlement of their claims by Silvern.

Jenkins, who was severed from the trial on the government’s motion, testified for the government. Dr. Becker also appeared as a government witness.

After a ten day jury trial, defendant Silvern was convicted on two counts of mail fraud in violation of 18 U.S.C. § 1341 and for conspiracy in violation of 18 U.S.C. § 371. A subsequent post-trial motion was denied by the court and Sil-vern was sentenced to concurrent eighteen month terms on each of the three counts, subject to the parole provisions of 18 U.S.C. § 4208(a).

Defendant Silvern appeals his conviction raising the following grounds for reversal: (1) a supplemental Allen-type or “dynamite” charge given to the jury after deliberations had begun; (2) the failure of the trial court to strike testimony of Jenkins relating to the conspiracy to defraud; (3) the failure of the prosecution to prove mailings, an element of the offenses; (4) various evi-dentiary rulings; (5) the jury instructions.

I.

Defendant Silvern’s principle claim of error on appeal concerns the wording of a supplemental charge delivered to the jury during their deliberations which defendant argues was not in conformity with the mandate of United States v. Brown, 411 F.2d 930 (7 Cir., 1969), cert. den. 396 U.S. 1017, 90 S.Ct. 578, 24 L.Ed.2d 508 (1970), recommending the use of the standardized American Bar Association instructions in our Circuit. Defendant also criticizes the circumstances under which the charge was given.

In the case before us, the jury commenced its deliberations at 11:10 a. m. on Tuesday, November 16, 1971. The deliberations continued for fourteen hours until noon the following day when the trial judge contacted defense counsel and in the absence of the jury advised him to the effect, “As of this moment, gentlemen, there has been no verdict returned. I propose to give a modified charge, modified from the Allen charge, .”. The jury was convened and the following charge was read to them by the trial judge after he had ascertained that a verdict had not been reached.

“I have one further instruction for you ladies and gentlemen that I wish you would listen to very carefully, and it is as follows:
In a large portion of cases, absolute certainty cannot be expected. The verdict must be the verdict of each individual juror and not a mere acquiescence in the conclusions of others.
You should examine the questions submitted with proper regard and deference for the opinions of each other. You should consult with one another and deliberate with a view to reaching an agreement if it can be done without violence to individual judgment.
It is your duty to decide the case if you can conscientiously do so.
In the course of deliberations a juror should not hesitate to re-examine his own views and change his opinion, if convinced that it is erroneous, but no juror should surrender his honest conviction as to the weight or the effect of the evidence solely because of the opinion of his fellow jurors or for the mere purpose of returning a verdict.
If a much larger number of jurors favor conviction, the smaller number of jurors should consider the reasonableness of their doubt when it makes no impression upon the minds of other jurors who are equally intelligent and impartial and who have heard the same evidence.
If on the other hand, a much larger number of jurors favors acquittal, the smaller number of jurors should ask themselves whether they might not reasonably doubt the correctness of their judgment.
Likewise, the jurors in a majority favoring a finding for either party should ask themselves whether they might not reasonably doubt the correctness of their judgment, when it makes no impression upon the minds of the minority jurors equally intelligent and impartial as they are and who have heard the same evidence. If you should fail to agree on a verdict, the case is left open and undecided. Like all cases, it must be disposed of some time. Any future jury must be selected in the same manner and from the same source as you have been chosen, and there is no reason to believe that the case would ever be submitted to twelve men and women more competent to decide it, or that the case could be tried any better or more exhaustively than it has been here, or that more or clearer evidence could be produced on behalf of either side.
You may now retire and reconsider the evidence in light of the court’s instruction.”

The jury returned to their deliberations and returned a verdict some six hours later.

In United States v. Brown, supra, the defendant argued on appeal that a Seventh Circuit derivation of the Allen charge was coercive per se, an unconstitutional deprivation of due process and a denial of his Sixth Amendment right to trial by an impartial jury. Our Court failed to find deprivations of a constitutional import, but instructed District Courts in our Circuit “when faced with deadlocked juries [to] comply with the standards suggested by the American Bar Association’s Trial by Jury publication.” (411 F.2d at 933).

Our problem with the decision in Brown, supra, which was adhered to in Brandom v. United States, 431 F.2d 1391, 1399 (7 Cir., 1970) without elaboration, is the fact that while purporting to establish a new Circuit rule pursuant to appellate supervisory power, no comment was directed to whether additional content may be added to a charge by a trial judge to supplement or clarify the ABA guidelines.

In the case at bar, as in a recent decision by our Court, United States v. DeStefano and Speice, 476 F.2d 324 (7 Cir., 1973), the judge included the ABA instructions in his charge in their entirety, but elected to add additional instructions, resulting in the controversy herein. As'our Court reasoned in De-Stefano, supra, our duty is to “. consider what aspects of the Allen charge the Brown decision most likely found objectionable, whether the addition of the ABA instructions would correct any coercive impact of the elements of the Allen charge that were used in the supplemental charge delivered in the instant case, and whether the supplemental instruction, as a whole, was within the spirit of the Brown decision.” We now turn to the objections raised on appeal by the defendant with respect to the charge given by the trial court herein.

First, the defendant criticizes the portion of the charge which instructs the minority to re-examine their position. It should be noted that the charge herein contained the “balancing elements” suggested in DeStefano, supra, which ameliorate the potential coercion inherent in an admonition directed solely to the minority. The majority was likewise admonished to weigh their views and the jurors as a whole were instructed to not “surrender their conviction” merely for the purpose of reaching a verdict.

Second, the defendant argues that the portion of the charge stating that “absolute certainty cannot be expected” weakens the quantum of proof required by the government in that the “beyond a reasonable doubt” standard is thereby denigrated. In the body of the instruction, the jurors were instructed in three different places to consider the reasonableness of their doubts. Furthermore, the trial court added that an opinion of an individual juror should not change his opinion unless he was convinced it was erroneous. Therefore, we are of the opinion that the instruction did not present a lesser standard than “beyond a reasonable doubt” for the juror’s consideration.

Third, the defendant asserts he was prejudiced by the instruction paragraph which informs the jurors, “If you should fail to agree on a verdict, the case is left open and undecided. ... it must be disposed of some time.” It is argued that such a statement infers that the court feels it incumbent that a verdict be reached. Yet, we note that the coercive instruction that “the case must at some time be decided”, from Commonwealth v. Tuey, 8 Cush. (62 Mass.) 1 which has been criticized in Brown, supra, and by numerous other courts and commentators has been omitted. While we do not encourage further use of this part of the instruction, we do not feel this statement results in the coercion found in an absolute admonition that the case must be retried, as condemned in Brown, supra and United States v. Flannery, supra.

We are of the opinion that these objections to the wording of the supplemental charge raised by the defendant and other minor points with respect thereto, highlighted on appeal, were not so inconsistent with the mandate of Brown, supra, to require reversal of the conviction pursuant to our supervisory powers.

Furthermore, we find no inherent prejudice in the timing of the charge or the circumstances under which the charge was given. The jury had deliberated for fourteen hours and had informed the judge that they were in fact deadlocked, Cf. United States v. Contreras, 463 F.2d 773 (9 Cir., 1972). Additionally, the jury continued to deliberate for six hours after the rendition of the supplemental charge which indicates that no coercion was present and the “effect of the majority running roughshod over the minority”, DeStefano, supra, was not realized.

We find under the facts of this case that neither the wording of the supplemental charge containing the ABA recommendations nor the timing and circumstances surrounding the charge violated defendant’s constitutional rights. Also, we feel no undue prejudice occurred from the supplemental charge.

II.

Defendant Silvern argues the trial court erred in admitting the testimony of Fred Jenkins although he was a code-fendant and alleged coconspirator in the scheme to defraud. Defendant contends Jenkins was not fully apprised of the entire scheme, nor was he acquainted with Dr. Becker, which thereby renders his testimony concerning his part in the operation irrelevant and immaterial.

We opine that the testimony of Jenkins was properly admitted not only to attest to the acts and declarations of defendant Silvern during the execution of the conspiracy to which he was a privy, United States v. Peoni, 100 F.2d 401 (2 Cir., 1938), but also to prove motive and design and to establish a common scheme relating to the matter on trial, United States v. Lambert, 463 F.2d 552 (7 Cir., 1972); United States v. Ming, 466 F.2d 1000 (7 Cir. 1972); United States v. Borkenhagen, 468 F.2d 43 (7 Cir., 1972). In addition, the government contends on appeal that the testimony of Jenkins was adduced for the purpose of depicting the scheme and intent to defraud utilized by and underlying Silvern’s actions prior to and during the alleged illegal conduct. It is settled law that evidence of consistent prior conduct and related illegal acts are admissible in proving knowledge and intent when a defense is presented to the contrary. United States v. Hampton, 457 F.2d 299 (7 Cir., 1972); United States v. Marine, 413 F.2d 214 (7 Cir., 1969), cert. den. 396 U.S. 1001, 90 S.Ct. 550, 24 L.Ed.2d 493. Further we note the trial court properly limited the evidence adduced from Jenkins’ testimony to that which would rebut the exculpatory theories offered by the defense. United States v. Birrell, 447 F.2d 1168 (2 Cir., 1971), cert. den. 404 U.S. 1025, 92 S.Ct. 675, 30 L.Ed.2d 675 (1972).

For these reasons, we are of the opinion that the testimony of Jenkins was properly admitted by the trial court.

III.

Defendant challenges the sufficiency of the evidence presented by the government with respect to the illegal mailings. Silvern argues the government did not prove beyond a reasonable doubt that the mails had been used for any of the alleged offenses. Thus, the conviction must fall, he argues, relying upon Mackett v. United States, 90 F.2d 462 (7 Cir., 1937).

For each substantive count that the jury found defendant guilty (Counts IX and XI) the government produced an employee of the defrauded insurance company who testified about the custom and practice of their respective offices in receiving mail and filing procedures. Certain letters relating to the offenses mailed by Silvern to the companies, and from the companies to Silvern were identified by the insurance employees who also explained time stamps and other markings on the envelopes, as well as their personal knowledge of the correspondence.

We are of the opinion that the office custom and practice with respect to mailing attested to by Mr. Cuchra regarding Count IX and by Mr. Alden regarding Count XI was ample when coupled with the exhibits offered by the government and identified by the respective employees of the insurance companies to submit the question of mailing to the jury. United States v. Fassoulis, 445 F.2d 13 (2 Cir., 1971), cert, den., 404 U.S. 858, 92 S.Ct. 110, 30 L.Ed.2d 100; Stevens v. United States, 306 F.2d 834 (5 Cir., 1962). The arguments advanced by the defendant to discredit the government’s proof on this issue are spurious at best.

IV.

Defendant Silvern objected on appeal to various evidentiary rulings by the trial court, and also to its failure to tender requested defense instructions. Neither of these grounds merits reversal of his conviction.

For the reasons hereinbefore discussed, the conviction of defendant Sil-vern is

Affirmed.

      . American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury § 5.4,MO-SS (Approved Draft, 1968).

      . The charge emanating from the Supreme Court decision of Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

      . See also United States v. Thomas, 146 U.S. App.D.C. 101, 449 F.2d 1177 (D.C.Cir., 1971); United States v. Fioravanti, 412 F. 2d 407 (3 Cir., 1969), cert, den., 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1970).

      . United States v. Flannery, 451 F.2d 880, 883 (1 Cir., 1971).

      . United States v. Bambulas, 471 F.2d 501 (7 Cir., 1972).


source: Caselaw Access Project

author: KOELSCH, Circuit Judge:

license: Public Domain

text:
    Gil Munoz LEANO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-2520.
    United States Court of Appeals, Ninth Circuit.
    April 5, 1974.

      Gil Munzo Leano, in pro. per.
    William D. Keller, U. S. Atty., Brendan D. Lynch, Asst. U. S. Atty., Los An-geles, Cal., for respondent-appellee.
    Before KOELSCH, HUFSTEDLER and CHOY, Circuit Judges.
   KOELSCH, Circuit Judge:

The district court’s refusal to entertain Leano’s present motion for relief pursuant to 28 U.S.C. § 2255 can be sustained only if at least one of Leano’s two prior motions was determined against him “on the merits” as that term is explicated in Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).

Because neither denial rested upon an evidentiary hearing, the inquiry must be directed to the files and records of the case to ascertain whether or not they “conclusively show” that the prisoner is entitled to no relief. 28 U.S.C. § 2255. Sanders, supra.

In his several applications Leano has charged, in substance, that the sentencing judge enhanced punishment on the basis of a conviction void because he had not been afforded his Sixth Amendment right to counsel. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed. 2d 592 (1972).

The initial motion was denied by the sentencing judge, who observed in passing that he had not considered Leano’s prior conviction when fixing punishment. Such informal disclaimers have indeed been given controlling weight in instances where a petitioner’s allegations were essentially all that appeared in the record. United States v. Eidum, 474 F.2d 581 (9th Cir. 1973); Dukes v. United States, 492 F.2d 1187 (9th Cir. 1974). But Leano’s allegations do not stand alone. To the contrary, they are fully corroborated; the transcript of the proceedings on Leano’s arraignment for sentence makes evident the “reasonable probability” (Tucker v. United States, 431 F.2d 1292, 1294 (9th Cir. 1972)) that the prior conviction played a vital role in the fixing of the questioned sentences. We conclude that denial of the first motion was not “on the merits.”

Leano’s second motion was denied by an order which contains the recital that “There is nothing in the petition to indicate that petitioner did other than make a knowing and intelligent waiver of counsel.”

We fail to understand the import of this statement. True, the allegations appearing in Leano’s second application are imprecise, but, as noted above, they are sufficient to charge an unconstitutional denial of counsel and were so regarded both by the court and the district attorney. But even if we construe the statement to mean that the records, etc., affirmatively show a valid waiver of the Sixth Amendment right to counsel — for such a waiver cannot be presumed (Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)) — the court’s factual conclusion is simply in error. The sole mention of waiver appears in the commitment wherein it is stated that when Leano was arraigned for sentence, “he appeared in person and without counsel; (that) the court advised the defendant of his right to counsel and asked him whether he desired to have counsel appointed by the court and the- defendant thereupon stated that he waived the right to the assistance of counsel.” If relevant at all, this recital suggests that when Leano was earlier arraigned for plea, he was then “without counsel.”

It follows that the denial of the second motion, like the first, was not “on the merits.” Accordingly, and as in Tucker, supra, 431 F.2d at 1294, the order is vacated and “the cause is remanded to the district court for resentencing without consideration of any prior convictions which is invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).”

      . “This means that if factual issues (were) raised in the prior application, and it was not denied on the basis that the files and records conclusively resolved those issues, an evidentiary hearing was held.” Sanders at p. 16, 83 S.Ct. at p. 1077.

      . The statement in Bidum, reiterated with approval in Buhes, was “This court will not refute the judge’s own estimation of the deleterious impact of the prior convictions on his determination of sentence. The record shows on its face that the judge did not consider those convictions in imposing sentence.”

      . These sentences were for violations of 21 U.S.C. § 176a. That statute provides a term of not less than five nor more than twenty years for a first offender, and a term of not less than ten nor more than forty years for a second. An offender’s status as a recidivist is established by filing an information against him setting forth the prior conviction and either proving or securing an admission of identity. (26 U.S.C. § 7237.)
      As the following extracts from the arraignment proceedings show, not only did the district attorney file such an information and Leano admit the allegation, but the district judge during the colloquy and in pronouncing sentence referred to the term that he was imposing as “the minimum.”

        u * 5¡S *
      MR. WALLEN [U. S. Attorney] : Your Honor, at this time the government would like to file an information re prior conviction as to this defendant. May I approach the clerk, your Honor?
      THE COURT: Very well. You may.
      Mr. Leano.
      DEFENDANT LEANO : Yes sir.
      THE COURT: The United States Attorney has filed here an information on a prior conviction alleging that on or about the 5th day of June, 1950, you appeared as defendant in a case 21219 in the United States District Court of the Southern District of California, Central Division, wherein you entered a plea of guilty to knowingly and unlawfully selling after importation a certain narcotic drug, namely, approximately three and a half grains of heroin, and having then been convicted you were duly sentenced by that court to the custody of the Attorney General for a period of two and a half years in the penitentiary and to pay a fine of one dollar. The court recommended that you be committed to a reformatory .type institution. Do you admit or deny that allegation?
      DEFENDANT LEANO : I admit it.
      ;}: j¡; ijt % %

      MB. BBOWN: . . . 1 am at liberty to represent, I understand, that the government in this case does not seek or encourage the court to impose more than the maximum sentence of ten years.
      THE COUBT: 1 take it you mean the minimum.
      MB. BBOWN: I mean the minimum. I beg your pardon, your Honor. The mandatory minimum. And it is that sentence upon all of the circumstances of this case that I urge the court to pronounce at this time.
      * * * * *
      THE COUBT: It will be the judgment of the court that the defendant will be committed to the custody of the Attorney General or his authorized representative for a period of ten years.
      THE CLEBK: Counts 1 and 2.
      THE COUBT: On Counts 1 and 2.
      Sentences thus imposed will run concurrently, one with the other.
      í¡; sK # #
      DEFENDANT LEANO : Tour Honor, is that a ten-year minimum sentence?
      THE COUBT: That’s the minimum sentence, ten years.”


author: TRASK, Circuit Judge:

text:
    Leonard Howard MANDEL, Individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. Donald J. HUTCHINSON, Assessor, Ala-meda County, and the Assessors and Tax Collectors of each of the other fifty-eight Counties of the State of California, Defendants-Appellees.
    No. 72-1362.
    United States Court of Appeals, Ninth Circuit.
    March 29, 1974.

      Iraehmil B. Taus, II (argued), Beverly Hills, Cal., for plaintiff-appellant.
    James Dexter Clark, Deputy County Counsel (argued), John D. Maharg, County Counsel, Douglas V. Hart, Deputy County Counsel, Los Angeles, Cal., for defendants-appellees.
    Before BARNES, TRASK and GOODWIN, Circuit Judges.
   TRASK, Circuit Judge:

This appeal comes to us from the dismissal of appellant’s complaint seeking state tax relief. Dismissal was based upon a lack of subject matter jurisdiction because of 28 U.S.C. § 1341. In the court below jurisdiction was asserted under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) (civil rights); 28 U.S.C. §§ 2201, 2202 (declaratory judgment); and 28 U.S.C. §§ 2281, 2284 (injunction by three-judge court). The District Court’s decision and opinion are reported at 336 F.Supp. 772 (C.D.Cal.1971).

The complaint of the plaintiff-appellant was filed on behalf of himself and all others similarly situated against the assessors and tax collectors of each of the 58 counties of the State of California. It asserted that as a veteran he would be entitled to a limited property tax exemption but for a residency requirement imposed by the California Constitution in Article XIII, Section 1This, together with implementing statutes, it is alleged, is unconstitutional as applied because the provisions are in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. In addition, it is contended that they interfere with interstate commerce and impose a chilling effect upon the right of veterans of other states to move to California. Therefore, appellant argues, he and the class he represents are entitled to the tax relief they would otherwise obtain. The District Court denied all relief sought.

When an application to convene a three-judge court is made to a district court, the initial inquiry is whether the constitutional question sought to be raised is substantial; whether the complaint at least formally alleges a basis for equitable relief; and whether the case presented otherwise comes within the jurisdiction of the statute. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962); Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Howfield, Inc. v. United States, 409 F.2d 694, 697 (9th Cir. 1969). The three-judge requirement is a technical one to be construed narrowly. Bailey v. Patterson, supra, 369 U.S. at 33-34, 82 S.Ct. 549; Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 85 L.Ed. 800 (1941).

Here the district judge made the initial determination that a basis for federal jurisdiction was lacking and he therefore declined to convene a three-judge court. Mandel v. Hutchinson, 336 F. Supp. 772, 776 (C.D.Cal.1971). This determination was solely his responsibility and we concur with his decision.

Even without a consideration of 28 U.S.C. § 1341, serious questions could well be raised in opposition to appellant’s efforts to obtain exemption from payment of state property taxes by initially filing suit in a court of the United States. The availability of such a remedy would pose a grave threat to the operation of a fiscal system of a state. Moreover, in many such cases in which injunctive relief is sought, the allowance of an immediate federal remedy would ignore traditional doctrine foreclosing such relief until after the alternative remedies at law have been demonstrated to be inadequate.

We need not, however, resolve this suit by resort to self-imposed judicial abstention grounded upon notions of comity and equity. Rather, the strong public policy of federal noninterference with state taxation schemes has been statutorily embodied in 28 U.S.C. § 1341, which provides as follows:

“The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.”

The jurisdictional bar of section 1341 is not avoided by challenging the constitutionality of the state tax statute that authorizes the challenged collection. This has been the teaching of the Supreme Court for some time:

“Whenever the question has been presented, this Court has uniformly held that the mere illegality or unconstitutionality of a state or municipal tax is not in itself a ground for equitable relief in the courts of the United States. If the remedy at law is plain, adequate, and complete, the aggrieved party is left to that remedy in the state courts from which the cause may be brought to this Court for review . ” Matthews v. Rodgers, 284 U.S. 521, 525-526, 52 S.Ct. 217, 219, 76 L.Ed. 447 (1932).

See also Great Lakes Co. v. Huffman, 319 U.S. 293, 298, 63 S.Ct. 1070, 87 L. Ed. 1407 (1943); Gray v. Morgan, 371 F.2d 172 (7th Cir. 1966), cert, denied, 386 U.S. 1033, 87 S.Ct. 1484, 18 L.Ed.2d 596 (1967).

Here, then, the inquiry must be whether the State affords a “plain, speedy and efficient” remedy. If so, a federal court lacks jurisdiction either to consider the matter and grant relief or to convene a three-judge court to do so. The three-judge court under these circumstances would have no greater jurisdiction than that of the single district judge. See Carrigan v. Sunland-Tujunga Telephone Co., 263 F.2d 568, 572-573 (9th Cir.), cert, denied, 359 U.S. 975, 79 S.Ct. 893, 3 L.Ed.2d 841 (1959).

The trial court found that the appellant had three alternative remedies under California law that were “plain, speedy and efficient.” First, the tax may be paid under protest, a suit may be commenced to recover the same, and interest will be allowed. Cal.Rev. & Tax Code §§ 5136, 5138, 5141 (West 1970). This procedure may be used to obtain a judgment declaring that a tax exemption must be allowed, and to require that the illegally collected tax be refunded. City of Long Beach v. Board of Supervisors, 50 Cal.2d 674, 675, 680, 328 P.2d 964, 965, 967 (1958). Second, the Board of Supervisors may refund taxes erroneously or illegally collected if a claim for refund of these monies is filed within 3 years of the date of payment. Cal.Rev. & Tax Code §§ 5096, 5097 (West 1970). If the Board of Supervisors denies the claim, the taxpayer may sue for a refund and collect interest. Cal.Rev. & Tax Code §§ 5103, 5105 (West 1970). This procedure is available to a taxpayer who alleges that he was wrongfully deprived of the veterans’ exemption of Article XIII, Section 1%, of the California Constitution. Sherman v. Quinn, 31 Cal.2d 661, 665, 192 P.2d 17, 19 (1948). Third, the taxpayer may obtain a writ of mandate if there is no adequate remedy at law. Cal.Code Civ.P. § 1086 (West 1955). In Lockhart v. Wolden, 17 Cal.2d 628, 633, 111 P.2d 319, 322 (1941), the California Supreme Court granted a writ of mandate to a taxpayer who claimed that the county assessor denied her a veteran’s exemption on the ground the exemption was not available to women. The court suggested that a writ of mandate was appropriate because of the large group of individuals in the petitioner’s class. More recently, however, the California Supreme Court has generally refused to grant a writ of mandate because of the adequacy of the State’s refund procedure at law.

For a state remedy to be “adequate” under 28 U.S.C. § 1341 it need not necessarily be “the best remedy available or even equal to or better than the remedy which might be available in the federal courts.” Bland v. McHann, 463 F.2d 21, 29 (5th Cir. 1972), cert, denied, 410 U.S. 966, 93 S.Ct. 1438, 35 L. Ed.2d 700 (1973). We have held previously that the California refund procedure is a plain, speedy and efficient remedy. Aronoff v. Franchise Tax Board, 348 F.2d 9 (9th Cir. 1965); Harsh California Corp. v. County of San Bernardino, 262 F.2d 626, 628, 630 (9th Cir. 1958).

Appellant contends that the remedy in state court is not adequate under section 1341 because litigation involving 58 counties and several thousand potential plaintiffs would engender multiple court costs and burdensome attorneys’ fees. Court costs, of course, are recoverable by a successful litigant. Moreover, liberal joinder provisions may dissipate much of the objection. See DeMille v. Los Angeles County, 25 Cal.App.2d 506, 77 P.2d 905 (Dist.Ct.App.1938). Finally, we are not convinced that if a few litigants are successful, each of the others will separately have to file, and carry to a completely litigated conclusion, a full-blown adversary lawsuit.

We find that the California State court remedies are “plain, speedy and efficient,” and affirm the judgment of the District Court.

Judgment affirmed.

      . Mr. Justice Brennan in another context has addressed himself to some of the problems such proceedings might entail:
      “The special reasons justifying the policy of federal non-interference with state tax collection are obvious. The procedures for mass assessment and collection of state taxes and for administration and adjudication of taxpayers’ disputes with tax of-fieials are generally complex and necessarily designed to operate according to established rules. State tax agencies are organized to discharge their responsibilities in accordance with the state procedures. If federal declaratory relief were available to test state tax assessments, state tax administration might be thrown into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law. During the pendency of the federal suit the collection of revenue under the challenged law might be obstructed, with consequent damage to the State’s budget, and perhaps a shift to the State of the risk of taxpayer insolvency. Moreover, federal constitutional issues are likely to turn on questions of state tax law, which, like issues of state regulatory law, are more properly heard in the state courts. See generally S.Rep.No.1035, 75th Cong., 1st Sess. (1937). These considerations make clear that the underlying policy of the anti-tax-injunction statute, 28 U.S. C. § 1341, relied on in Great Lakes, bars all anticipatory federal adjudication in this field, not merely federal injunctions.” Perez v. Ledesma, 401 U.S. 82, 128 n. 17, 91 S.Ct. 674, 698, 27 L.Ed.2d 701 (1971) (separate opinion).

      . The particular exigencies of a given case have, from time to time, caused the California Supreme Court to view the refund procedure as inadequate for that individual case and have thus necessitated equitable relief through a writ of mandate. E. g., County of Sacramento v. Hickman, 66 Cal.2d 841, 59 Cal.Rptr. 609, 428 P.2d 593, 595-596 (1967); Corona Unified Hosp. Dist. v. Superior Court, 61 Cal.2d 846, 40 Cal.Rptr. 745, 395 P.2d 817 (1964).


author: MOORE, Circuit Judge.

text:
    Fred I. STEVENS and Betty Stevens, Appellees, v. KANEMATSU-GOSHO CO., INC., and Boston Machinery, Inc., Appellants.
    No. 73-1241.
    United States Court of Appeals, First Circuit.
    Argued Oct. 3, 1973.
    Decided March 29, 1974.

      Stanley J. Mullaney, Dover, N. H., with whom Calderwood & Ouellette Prof. Assn., Dover, N. H., was on brief, for appellants.
    Duncan A. McEachern, Portsmouth, N. H., with whom Shaines, Madigan & McEachern, P. A., Portsmouth, N. H., was on brief, for appellees.
    Before COFFIN, Chief Judge, MOORE, and MeENTEE, Circuit Judges.

       Of the Second Circuit, sitting by designation.

   MOORE, Circuit Judge.

These consolidated actions arise out of an industrial accident which occurred on August 3, 1969, on the premises of Jan-eo Sales, Inc. in Rollinsford, New Hampshire, when the hands and fingers of Mr. Fred I. Stevens (Stevens) were crushed while he was setting a die in an Aida Hy-Flex press.

The press in question is a 110 ton mechanical punch press manufactured by Aida Ironworks, Ltd. (Aida), a Japanese corporation. The Kanematsu-Gosho Co., Inc. (K-G), a Japanese corporation doing business in the United States, had purchased the press from Aida, imported it into this country and sold it to Boston Machinery, Inc. for further distribution. Janeo Sales, Inc. purchased it from Boston Machinery, Inc. for use in its Rol-linsford plant.

Because diversity of citizenship existed and the amount in controversy exceeded $10,000, Stevens brought actions in the United States District Court for the District of New Hampshire against Boston Machinery, Inc. (Boston), K-G and Aida on four theories: (1) negligent design; (2) strict liability; (3) implied warranty; and (4) warranty of fitness under New Hampshire statutes. By final pretrial order, the issues were reduced ■ to strict liability and negligence. At the opening of the trial, plaintiff dropped his claim of negligence. Mrs. Stevens brought loss of consortium actions against the same parties. The cases of Fred Stevens and Betty Stevens against Boston and K-G, Civil Action Nos. 3341, 3343, 3345 and 3346, resulted in a verdict in favor of plaintiff Stevens against both defendants in the amount of $90,000 and a verdict for plaintiff Betty Stevens against defendants K-G and Boston in the amount of $7,500. During the trial the Court ruled that contributory negligence on the part of Stevens would not be a bar to his recovery in this case and so instructed the jury. In addition, at the close of all the evidence, the defendant, K-G, moved to strike the evidence provided by Mr. William J. Roy, an economist who had testified with regard to Stevens’ prospective future earnings. This motion was denied. The defendant K-G, on behalf of both Boston and itself, subsequently filed a motion for judgment notwithstanding the verdict which was denied by the Court and judgment was entered for both plaintiffs pursuant thereto from which the defendants appeal.

Because in our opinion the issue of Stevens’ assumption of the risk and/or his contributory negligence were matters which should have been presented to the jury, we reverse the judgment against defendants and remand for a new trial.

The machine which lies at the center of this dispute is a mechanical punch press used in various die or punching operations to cut and form metal parts. When activated and set in motion, the machine has a ram which descends forcibly upon a piece of metal which has been placed on a die. Once it stamps the piece of metal, the ram will ascend to its original position so that it will be ready to repeat the operation. In this case the press was being prepared to produce armrests for the Ford Maverick automobile.

The machine has two separate control systems which are operated in conjunction with one another. These enable the operator to choose independently the means by which the power is to be activated in the machine, and the duration of the machine’s operation once the power is activated. The power selector switch may be set in a “single button” position so that the depression of a single button will activate the machine. It is also possible to set the selector to a “dual button” setting so that two buttons on the panel must be simultaneously depressed in order to activate the machine. Finally, a portable foot switch can be connected to the machine by means of a plug. When the power selector is set to operate on “foot pedal”, the power is activated when the operator steps on this pedal.

By setting a control selector switch to the desired response position, any of these activating methods can be used to obtain the four following responses from the machine when the power is activated. The first setting is “off” or no response at all. The second setting is “inch”. When this setting is used in conjunction with any of the power selector settings, the ram on the machine will move through its cycle only so long as the operator continues to apply power by holding down either the single button, the dual button, or the foot pedal. The next available setting is “once”. With this setting any of the three means of activation, when depressed, will cause the machine to run through a complete cycle, i. e., the ram on the machine will go down and back, thus completing its stroke. The final setting is “continuous”, which means that a single depression of any of the activation systems will cause the machine to operate continuously at the rate of fifty strokes per minute.

Fred Stevens had begun his career in the area of machine operation and tool and die making in 1941 and was generally considered “an all-around machinist.” In September, 1968, he began to work for Janeo Sales as a tool and die maker. He had developed several dies for use in the Aida Hy-Flex press and, in his opinion, was thoroughly familiar with its operation and the operation of the press’ various safety features. In fact, at one point during the trial, the Court ruled that Stevens could give opinion testimony regarding the machine shop operation and the design features of the Aida press since, based on his experience, he qualified as an expert and, thus, could give opinion testimony. Stevens himself stated that he was fully aware of the various machine setting alternatives.

The accident happened on a Sunday afternoon at around 6:00 p. m. Stevens had been working for several months to perfect a die that was to be placed in the press so that production could proceed on the automobile armrests. He had worked since 7:00 a. m. on the day of the accident with only a brief coffee break in the morning and a one-half hour lunch break at noon. Other employees were in the area at the time actually waiting to go into production if Stevens could complete a proper installation and set up of the die. At the time of the accident, the motor was running and the fly wheel was turning.

Because a technical problem caused the machine to spray oil on the operator whenever either of the hand switches were used, the portable foot pedal was plugged into the machine and the power selector switch was on “foot pedal”. And since Stevens had been testing the die by stamping out parts, he purposely turned the control selector switch from “inch”, where it had been, to “once”, so that any depression of the foot pedal would result in the ram going through a complete stroke whether the operator removed his foot from the pedal or not.

During the course of his work, Stevens found it necessary to make some fine adjustments in the die. While the machine was in its “live” condition, he started to make these adjustments. He did not change the control selector switch setting nor did he change the power selector or turn the machine off. He merely pushed the foot pedal to his right so that he would not accidentally step on it while his hands were vulnerable. At that time a foreman Mr. Paul Picard, was in the machine shop area of the Janeo Plant. As he approached the press, he noticed that Stevens was making an adjustment to the die. He apparently was not cognizant of the position of the foot pedal. As he reached the machine his foot accidentally activated the pedal, causing the ram to come down upon Stevens’ fingers and hands.

All issues have been removed from this case except that of strict liability. The principle of strict products liability is set forth in Section 402A of the Restatement of Torts, as follows:

One who sells any product in a defective condition unreasonably dangerous to the user or the consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer or to his property.

In conformity with this theory of strict liability, plaintiff claimed that the Aida press was designed in such a manner that the machine was unreasonably dangerous when used in a normal and foreseeable manner. Specifically, he alleged that the foot switch supplied with this particular press is defectively designed because it is not enclosed on the sides. Such enclosure, according to plaintiff, would prevent activation of the machine by the foot switch except by frontal insertion of the toe of the operator onto the pedal. Likewise, plaintiff claimed that the machine’s control circuitry was defectively designed because it permits the operator to set the control on “once” when he employs foot pedal activation.

On the other hand, defendants argued that their machine was not defectively designed, that it incorporated ample safety features in its design, and that the mere fact that an accident occurred while someone was operating the machine does not make them liable under any theory of liability, even a theory of strict liability. They submitted that the accident was caused, not by defective design, but rather by the fact that the injured plaintiff had knowingly encountered a known risk when he attempted to make adjustments while the machine was in a “live” and, therefore, dangerous condition; that he had ample opportunity to protect himself by utilizing one or more of the press’ safety features but he had consciously refused to avail himself of the protection they afforded; that Stevens was well aware of the various steps he could have taken to prevent the accident; and that he could have set the selector to “off” or at “inch” or to “push button” in which event the machine would not have been activated by stepping on the foot pedal — or to make doubly sure he could have unscrewed and pulled out the foot pedal plug.

New Hampshire law applies to this case and it is unmistakably clear on the subject of contributory negligence in strict liability cases. Even if the design of the machine be assumed to have been defective, contributory negligence, or as it is interchangeably termed, assumption of risk by the user, constitutes a defense in New Hampshire.

In 1969 the Supreme Court of New Hampshire faced the issue of contributory negligence as a defense in a strict liability case (automobile headlights allegedly defective) in Buttrick v. Arthur Lessard & Sons, Inc., 110 N.H. 36, 260 A.2d 111 (1969). The Court observed that:

Some confusion arises from the use of the phrase “assumption of the risk” in Restatement (Second), Torts, s. 402-A, comment n. This has led some courts to state that contributory negligence is not a defense [in cases which rely on a strict liability theory] and then proceed to define the defense in terms of contributory negligence. * * * The problem is largely one of semantics (Cintrone v. Hertz Truck Leasing & Rental Service [45 N.J. 434, 212 A.2d 769], supra; Harper & James, The Law of Torts, s. 14.4 n. 4) and we see no difficulty in describing the defense in terms of contributory negligence.

260 A.2d, at 114.

The Court then dealt with the availability of this traditional tort defense and held that:

In view of the facts alleged in this case it is necessary to consider the defenses available. According to the allegations of the plaintiff the defect was immediately apparent and the defendant engaged in numerous attempts to rectify it. It also appears that the plaintiff continued to use the car with full knowledge of the defect and with no absolute assurance that it had been repaired. In addition defendant would be entitled to have considered the conduct of the plaintiff in stepping on the switch with knowledge of the defect and his operation of the car after the lights failed.

Id.

Buttrick was followed in 1970 by Stephan v. Sears Roebuck & Co., 110 N.H. 248, 266 A.2d 855 (1970), wherein the question of whether “passive” contributory negligence constituted a defense was squarely presented to the New Hampshire Supreme Court. The Court held that:

The questions whether the counts based on strict liability in tort state causes of action and whether contributory negligence is a defense to such an action are answered in the affirmative by the recent decision in Buttrick v. Arthur Lessard & Sons, Inc., 110 N.H. 36, 260 A.2d 111, decided after this case was argued.
* * * * -x- *
Buttrick v. Arthur Lessard & Sons, Inc., supra, was a case in which the plaintiff had actual knowledge of the alleged defect and the question of his contributory negligence related to his conduct in view of that knowledge. The record before us does not reveal what knowledge the plaintiff in this case had of the alleged defect or danger. However, we reaffirm, the doctrine that failure to discover or foresee dangers which the ordinary person would have discovered or foreseen as well as negligent conduct after discovery of the danger and in the use of the product will constitute a defense to an action based on strict liability.
* * -x- * * *
Contrary to the contention of the plaintiff, we hold that contributory negligence is a defense to an action for breach of warranty under RSA 382-A:2-314 in the same manner as in actions based on strict liability as above described. See RSA 382-A:2-314, Comment 13; 382-A:2-316, Comment 8; and 382-A:2-715, Comment 5.

206 A.2d, at 857-858. (Emphasis supplied).

The United States District Court of New Hampshire has itself previously acknowledged the state of the contributory negligence defense in New Hampshire. In 1972 in a case, Hagenbuch v. Snap-On Tools Corp., 339 F.Supp. 676 (D.N.H.1972) wherein the District Court of New Hampshire considered only “the question of whether defendants are strictly liable in tort,” Id. at 680, it concluded that:

Assumption of the risk is not distinguished from contributory negligence in New Hampshire, except in actions by an employee against his employer. Butler v. King, 99 N.H. 150, 106 A.2d 385 (1954). Contributory negligence is a defense to strict tort liability and warranty liability. Buttrick v. Arthur Lessard & Sons, supra; Stephan v. Sears Roebuck, 110 N.H. 248, 266 A.2d 855 (1970).

Similar holdings as to the role of contributory negligence in strict liability tort suits are to be found in other jurisdictions.

In Day v. Barber-Colman Company, 10 Ill.App.2d 494, 511, 135 N.E.2d 231, 239 (1956), the Appellate Court of Illinois said:

Where a plaintiff is thoroughly familiar with a possible hazard involved in the performance of his job and with the means to avoid such, the fact that at a particular time he may have been momentarily unmindful thereof, forgetful thereof, or have overlooked the same does not absolve him from the duty of observing due care for his own safety. Munsen v. Illinois Northern Utilities Co., 1930, 258 Ill.App. 438. If a plaintiff has available to him two different methods or ways of doing a job, performing a task or proceeding, — one previously tried and known to be safe, — the other either unknown and unexplored or known to involve certain possible hazards, — and he chooses the method or way which is unknown and unexplored or known to involve certain possible hazards, and is injured in the process, he is contrib-utorially negligent as a matter of law. Geraghty v. Burr Oak Lanes, Inc., 1954, 2 Ill.App.2d 48, 118 N.E.2d 63 * * *

In Bartkewich v. Billinger, 432 Pa. 351, 247 A.2d 603 (1968), plaintiff, an experienced glass factory worker, was injured when he put his hands into an operating glass breaking machine. A motion for a new trial or judgment n. o. v. was denied. On appeal the Pennsylvania Supreme Court reversed. The Court even went so far as to hold that the case on the facts was improperly submitted to the jury. The Court said:

The situation in the case before us is not at all like those cited, except of course, for Wright [Wright v. Massey-Harris, Inc., 68 Ill.2d 70, 215 N.E.2d 465]. Here appellee voluntarily did exactly what obviously was dangerous — reached into an operating glass breaking machine. Appellee testified that he reached into the machine because he thought it was being damaged. If he thought the machine was being damaged, what did he think would happen to his hand? It is unfortunate that appellee incurred a serious injury, but we do not believe that appellant was obligated to build a machine that was designed not only to keep glass in, but also to keep people out. Nor do we believe that appellant was required to strategically locate on-off switches around the machine, in the expectation that someone like appellee here, would put himself in an obviously dangerous position by reaching into the moving machine rather than walking around to where he knew the controls were.

247 A.2d, at 605.

As bearing upon the question of contributory negligence, the Court said:

We do not believe that appellant was required to install a guard rail which would prevent a person from voluntarily putting himself at so obvious a risk. Appellant was entitled to believe that the machine would be used in its usual manner, and need not be an insurer for the extraordinary risks an operator might choose to take.

Id., at 606.

Appellants assert as their primary ground for appellate reversal the trial court’s refusal to submit the issue of contributory negligence to the jury. The trial court made its position very clear when it informed the attorney for defendant Kanematsu-Gosho, who had requested an instruction on the issue of contributory negligence, that:

It is my opinion that under the facts of this case there is no issue of contributory negligence, because this is the type of case in which, if the jury finds that there is a defective condition unreasonably dangerous to the user, there was no assumption of the risk or voluntary encounter with such defective condition by the plain- • tiff. So it is my intention to instruct the jury that there is no issue of contributory negligence in this case.

The trial court adhered to this belief. He instructed the jury as follows:

I am instructing you as a matter of law that, under the facts of this case, the plaintiff was not contributorially negligent, so you are not to consider whether or not the plaintiff himself was negligent.

Appellants are entitled to present their' defense of contributory negligence and/or assumption of risk as a matter of New Hampshire law, and only passing reference need be made at this time to jury questions that may arise on remand.

Stevens is a machinist of considerable skill and experience. He was aware of all the dangers which attended his calling. His knowledge of the Aida Hy-Flex press is particularly well revealed. Stevens knew that the machine was malfunctioning so that it could only be effectively operated with the foot pedal mechanism. Finally, he was well aware of the danger inherent in leaving the controls on the “once” position while he put his hands in such a position that they could be injured if the machine was accidentally started. Stevens chose to work on the machine when its dials were set in their most dangerous positions.

Appellees argue that Stevens did nothing out of the ordinary. Stevens himself testified that it was his practice not to shut the press off in making minor adjustments. He justified this practice by stating that more elaborate safety measures would waste his time unnecessarily. It is this very argument which raises a question as to whether Stevens was himself negligent. He balanced the risk he was taking against the advantage in time that would be gained by his action.

Appellees argue that there was no contributory negligence because Stevens specifically moved the foot pedal away from himself while he was working on the machine. This, it is urged, proves that he did not encounter danger wilfully, and that Stevens’ actions only prove that he did now knowingly encounter one specific type of danger — the danger that he himself would activate the machine accidentally. This argument does not address the larger question as to whether Stevens knowingly encountered other dangers just as substantial and perhaps as obvious, such as the chance that someone else would accidentally trigger the press. Final resolution of these questions, however, remain for the jury.

Since there must be a new trial, it would be inappropriate to comment on possible proof as to damages which may be submitted thereon. Defendants point to an absence of any medical testimony to support Mr. William J. Roy’s testimony as to future loss of earnings. The admission of such proof as may be offered in this field will be within the discretion of the trial judge in accordance with applicable principles of future earnings and normal working career.

Judgment reversed and case remanded for a new trial.

      . Originally there appear to have been seven actions. Three by Stevens and three by Mrs. Stevens against Aida, K-G and Boston, respectively, and an action by Mrs. Stevens against Janeo. Plaintiffs did not pursue their actions against Aida nor Mrs. Stevens against Janeo.

      . Since Mrs. Stevens’ claim is dependent upon Stevens, plaintiffs will be referred to collectively as “plaintiff.”

      . In other words the control selector switch on the machine can be set at “off” while the power selector switch is set at any of the three settings and still there will be no re-sixmse from the machine when the operator punches either or both buttons or steps on the foot pedal.

      . For an excellent evaluation of the role played by the contributory negligence and assumption of risk defenses in products liability cases in New Hampshire and elsewhere, see Noel, Defective Products: Abnormal Use, Contributory Negligence, and Assumption of Risk, 25 Vand.L.Rev. 93 (1972).

      . “I didn’t [turn tlie machine off] and I don’t, it’s not my practice, and other people don’t do it, and nobody ever said one way or another on a little short job, I mean, if you had a lot of little short jobs, all you would do is turn the machine on and off.”

      . “It takes a long time for the machine to stop, and you wait. I mean, you will be waiting a lot, hours on end, to wait for a machine to stop. If you turn it off on everything you have done, you would crawl down underneath and switch the machine off. That would be about the extent of what you do, a good share of it, what you would do in the day.”


author: LIVELY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William Thomas DALPIAZ, Defendant-Appellant.
    No. 73-2048.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 5, 1974.
    Decided April 5, 1974.

      J. Gregory Wehrman, Wehrman & Wehrman, Covington, Ky., for defendant-appellant.
    Eugene E. Siler, U. S. Atty., for plaintiff-appellee; John M. Compton, Asst. U. S. Atty., Lexington, Ky., on brief.
    Before PHILLIPS, Chief Judge, LIVELY, Circuit Judge, and Mc-ALLISTER, Senior Circuit Judge.
   LIVELY, Circuit Judge.

A jury found the defendant guilty of attempting to board an aircraft with concealed deadly and dangerous weapons on his person in violation of 49 U.S.C. § 1472(1). On January 24, 1973 the defendant made a cash purchase of a one-way ticket on North Central Airlines flight 427 from Cincinnati, Ohio to Milwaukee, Wisconsin. He had no checked baggage, but did have several pieces of carry-on luggage. At this time all boarding passengers at the greater Cincinnati airport were required to go through a security check. When the defendant reached the checkpoint for his flight he handed the Pinkerton agent who was stationed there a small green case and advised her that it contained a gun. She did not open the case, but set it aside and told defendant that he could not take it aboard but that it would travel on the same plane and be returned to him at Milwaukee. The security guard then searched the remainder of defendant’s carry-on luggage and found a walkie-talkie, a gun holster, a hunting knife with a four-inch blade and a woman’s cigarette case which had a number of wires inside it. The knife was set aside with the revolver for handling by the airline. The defendant was then asked to walk through the metal detection device known as a magnetometer and it was activated by his passage. The guard asked him to remove all metal objects and after removing some things from his pockets he passed through the magnetometer and again activated it. He then produced an alarm clock from his clothing and upon walking through the magnetometer a third time it was again activated. This time he produced six bullets which were taped together. The Pinkerton guard took the bullets and defendant then was able to walk through the magnetometer without activating it.

Since the departure time of the plane was imminent, the agent accompanied Dalpiaz to the boarding gate and asked him to have a seat. She then advised the boarding officer of the items that she had found in defendant’s possession and excused herself ostensibly to obtain baggage tags for the items which she had taken from Dalpiaz and were to be transported separately by the airline. She returned to the security checkpoint and immediately contacted the airport police by telephone. Officer John Obel came from the front entrance of the terminal to her station. She advised him of the items which she had taken from the defendant and of her apprehension that he might pose a danger to the aircraft. Officer Obel started toward the boarding gate and encountered Dalpiaz and the boarding agent walking back toward the security point. When they reached the security checkpoint, Officer Obel asked him to empty his pockets. Among other things, the defendant produced an explosive device known as a projectile simulator from inside a heavy winter coat which he was wearing. This device had no metal parts, but contained printed instructions which indicated that it was quite dangerous to humans if it exploded in close proximity to them. The defendant then opened the bag containing the gun for Officer Obel and revealed an unloaded 38-calibre secret service special. No further search was conducted at this point, but the defendant was asked to go to the security office and did accompany Officer Obel there. A short time later an officer read a statement of rights to the defendant and he was subjected to a thorough search. Eventually agents of the FBI came to the security office and took defendant into custody along with the gun, bullets, knife and projectile simulator.

The defendant moved to suppress the projectile simulator as evidence on the grounds that the search was made without warrant and without authority, was not incidental to an arrest and was unreasonable. After a hearing out of the presence of the jury, the court overruled the motion, and the trial proceeded. Under Kentucky law, defendant was guilty of a felony violation in carrying the hunting knife concealed in his hand luggage. KRS 435.-230(1) has been interpreted by the Court of Appeals of Kentucky to make it a felony to carry concealed a knife with a blade smaller than that carried by defendant. Asher v. Commonwealth, 473 S.W.2d 145 (Ky.1971). As a peace officer, Obel was authorized under KRS 431.005 to make an arrest without a warrant “when he has reasonable grounds to believe that the person being arrested has committed a felony.” However, Officer Obel testified positively that he did not place the defendant under arrest prior to the time the projectile simulator was produced. While formal words are not necessary to constitute an arrest, United States v. Baxter, 361 F.2d 116, 118-119 (6th Cir.), cert, denied, 385 U.S. 834, 87 S.Ct. 79, 17 L.Ed.2d 69 (1966), nevertheless, in view of the detaining officer’s positive testimony that he did not believe an arrest had been made we do not treat the search of Dalpiaz as one incident to a lawful arrest.

We note that the indiscriminate search of all boarding passengers by magnetometer and inspection of hand baggage has been upheld as an administrative search which may be conducted without a warrant in reliance on Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct.. 1727, 18 L.Ed.2d 930 (1967). However, it must appear that the person who is subjected to such a search has an opportunity to avoid it by electing not to board an aircraft. United States v. Davis, 482 F.2d 893, 910-911 (9th Cir. 1973). The basis for upholding such searches is that a person who proceeds to attempt to board a plane in the face of widespread publicity about the problem of air piracy and specific airport notices concerning the security measures which are employed to detect potential hijackers consents to this limited search. Ibid, at 913. But see United States v. Kroll, 481 F.2d 884, 886 (3rd Cir. 1973). However, the present case is concerned only with the search which produced the projectile simulator because the defendant, in his brief, states that he:

. does not contest the reasonableness or validity of the intrusion upon Dalpiaz’s privacy by use of the magnetometer in view of the overwhelming governmental interest in preventing aerial hijacking and protecting both passengers and the general public from potential harm. However, once the magnetometer gives a clear reading and all hand baggage has been cleared, and the passenger is forwarded to the boarding gate, the exception to the Fourth Amendment searches by means of the magnetometer has been met.

Because of the defendant’s concession, we are not called upon to decide whether the search of all boarding passengers by magnetometer and inspection of luggage is permissible.

We are concerned here with the detention and search by airport security personnel of one whose actions have aroused their suspicion. The defendant Dalpiaz was not detained because he fit a “hijacker profile,” the situation which occurred in United States v. Skipwith, 482 F.2d 1272 (5th Cir. 1973), but which was not the basis of the court’s decision. It differs also from United States v. Slocum, 464 F.2d 1180 (3rd Cir. 1972), where the defendant was first noticed as a “profile case,” but the actual search of his hand luggage was precipitated by the fact that he activated the magnetometer but had no metallic objects on his person. We believe the facts of this case bring it within the rule of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968). A number of airport searches which occurred after a person had become the object of particular interest to security officers because of suspicious behavior or activation of a magnetometer have been upheld in reliance on Terry. E.g., United States v. Moreno, 475 F.2d 44 (5th Cir.), cert, denied, 414 U.S. 840, 94 S.Ct. 94, 38 L.Ed.2d 76 (1973); United States v. Riggs, 474 F.2d 699 (2d Cir.), cert, denied, 414 U.S. 820, 94 S.Ct. 115, 38 L.Ed.2d 53 (1973); United States v. Slocum, supra; United States v. Bell, 464 F.2d 667 (2d Cir.), cert, denied, 409 U.S. 991, 93 S.Ct. 335, 34 L.Ed.2d 258 (1973); United States v. Epperson, 454 F.2d 769 (4th Cir.), cert, denied, 406 U. S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334 (1972).

Chief Justice Warren, writing for the Court in Terry v. Ohio, supra, quoted from Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), the familiar statement—

[W]hat the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures. 392 U.S. at 9, 88 S.Ct. at 1873.

The narrow constitutional question before the Court in Terry was stated to be:

Whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest. 392 U.S. at 15, 88 S.Ct. at 1877.

The Court recognized that any restraint of a person by a police officer is in fact a seizure of the person within the meaning of the Fourth Amendment. Holding that the Warrant Clause of the Fourth Amendment does not apply to police conduct involving the “necessarily swift action predicated upon the on-the-spot observations of the officer on the beat,” the Court defined the test of such conduct in terms of “the Fourth Amendment’s general proscription against unreasonable searches and seizures.” 392 U.S. at 20, 88 S.Ct. at 1879.

After discussion of the type of governmental interests which may justify intrusion upon protected interests of private citizens, the Court concluded that a balancing of needs is required. The opinion prescribes an objective test of the appropriateness of the action taken in light of the facts available to the officer at the moment rather than a subjective standard of good faith. Especially applicable to this case and others involving airport searches where one or more individuals have been singled out for more extensive investigation than that to which all passengers are subjected is this statement of the Court in Terry:

And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. 392 U.S. at 21, 88 S.Ct. at 1880.

We find that the testimony of Officer Obel meets this standard.

The defendant, on the other hand, maintains that when he had successfully passed through the magnetometer “the officer’s directive to Dalpiaz to empty his pockets was neither justified nor reasonable, and clearly went beyond the limited scope of Terry, supra.Although the Terry case was concerned with a “pat-down” of the outer clothing of a suspect, we do not read it as limiting the principles enunciated in the opinion to “pat-down” situations. Prior to the search complained of, Officer Obel had been apprised by another security guard of the fact that defendant, the holder of a one-way ticket with no checked luggage, had in his possession at the entrance to the boarding area a pistol and a knife with a large blade, and that he had activated the metal detector three times. At this time the defendant was inside the boarding area which served three airlines. There were other passengers in the area, a number of them being around the defendant. Although Officer Obel testified that he was not in fear for his own safety, one of his duties was to protect other passengers and members of the public who used the airport facilities. The opinion in Terry states the rule which justifies police intrusion into the personal security of an individual under circumstances such as those presented in this case in the following language:

When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. 392 U.S. at 24, 88 S.Ct. at 1881.

The opinion makes it clear that it is not necessary that the officer be certain that the suspect is armed — only that a reasonably prudent person would be warranted in believing he or others were in danger.

The security problems created by the hijacking of passenger airlines were clearly set forth by the Court of Appeals for the Fifth Circuit per Judge Gewin, in the following language:

Apart from the unusual dangers inherent in the crime itself, aerial hijacking has created equally unusual detection problems. Unlike most other crimes, hijacking is one in which secrecy is not a principal concern. Once the hijacker decides to act, he doesn’t care if there are numerous witnesses. Indeed, according to the pattern developed thus far, he prefers as many as possible because each one is a potential hostage to shield him from apprehension until he can be flown to a political sanctuary or place of concealment. Obviously, in order to jeopardize the lives and safety of the smallest number of people, the hijacker must be discovered when he is least dangerous to others and when he least expects confrontation with the police. In practical terms, this means while he is still on the ground and before he has taken any overt action.
Clearly, this would not be an easy objective to accomplish under the best of conditions. But amidst the rush and the congestion of many airports, this task is vastly complicated. Airport security officials have the awesome responsibility of ferreting out hijacking threats from among thousands of passengers while at the same time avoiding any undue disruption to this nation’s heavy flow of commercial air traffic. Inseparably related to this is the fact that the hijacker’s modus operandi is designed to take optimum advantage of these pressures. The hijacker prefers the anonymity of the crowd where he is but a part of the blend. The hiding place of his weapons is the commonplace accessory of air travelers everywhere — the overnight bag, the briefcase, the overcoat or other clothing. His arsenal is not confined to the cumbersome gun or knife; for modern technology has made it possible to miniaturize to such a degree that enough plastic explosives to blow up an airplane can be concealed in a toothpaste tube. A det-onater planted in a fountain pen is all that is required to set it off. Unfortunately, society’s law enforcement capabilities have not caught up with these problems. It is in this context that we must assess the constitutionality of the search of Moreno, (footnote omitted) United States v. Moreno, supra, 475 F.2d at 49.

The defendant seeks reversal on the basis of United States v. Ruiz-Estrella, 481 F.2d 723 (2d Cir. 1973). In that case the court held that the evidence did not reveal “specific and articulable facts” and that Terry did not apply. Significantly, in the Ruiz-Estrella opinion the court, in commenting on the different result reached in United States v. Epperson, supra, stated that—

We do note, however, that we regard the facts of that case, where the suspect activated the device a second time after removing several metal objects from his person, as presenting a far more compelling situation than the one at hand. 481 F.2d at 729.

The court then went on to conclude that a case-by-case inquiry is necessary when dealing with searches based on reasonable suspicion. We agree, and hold that the circumstances presented by this record justified the intrusion.

The judgment of the district court is affirmed.


author: WIDENER, Circuit Judge.

text:
    Frank WESTERN, Jr., and Johnie T. Sinnett, et al., Appellants, v. James D. HODGSON, Secretary Department of Labor, et al., Appellees.
    No. 73-1906.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 6, 1973.
    Decided March 20, 1974.
    John Troelstrup, Charleston, W. Va. (Daniel F. Hedges, E. Dandridge McDonald, Charleston, W. Va., on brief) for appellants.
    Robert S. Greenspan, Atty., U. S. Dept, of Justice, and Robert K. Emerson, Huntington, W. Va. (Irving Jaffe, Acting Asst. Atty. Gen., William Kanter, Atty., U. S. Dept, of Justice, John A. Field, III, U. S. Atty., Charles F. Bag-ley, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Huntington, W. Va., Valentine & Partain, Logan, W. Va., on brief) for appellees.
    Before Boreman, Senior Circuit Judge, and Russell and Widener, Circuit Judges.
   WIDENER, Circuit Judge.

This is a civil suit brought under the Consumer Credit Protection Act, 15 U. S.C. § 1671 et seq., which prohibits garnishment in excess of 25% of an employee’s weekly disposable earnings. The plaintiffs, Frank Western, Jr., and Johnie T. Sinnett, are coal miners employed by the Buffalo Mining Company (Buffalo) in Logan County, West Virginia, a defendant in this suit. Both purchased merchandise from the defendant, Lorado Super Market, Inc., (Lora-do) on credit and, at the same time, executed agreements characterized by the plaintiffs as “purported wage assignments.” These documents authorized Buffalo to deduct amounts owed by plaintiffs to Lorado from their paychecks and to pay such amounts directly to Lorado. The executed agreements were then presented by Lorado to Buffalo and thereafter, pursuant to the terms of the documents and the amounts which Lorado informed it were owing by the various plaintiffs, Buffalo deducted the amounts owed from plaintiffs’ wages and paid these amounts directly to Lora-do. As a result of these deductions, the plaintiffs received no take-home wages for some pay periods and less than 75% of their wages for other pay periods.

Alleging jurisdiction under 28 U.S.C. § 1337, plaintiffs brought this suit under provisions of the Consumer Credit Protection Act seeking injunctive relief and damages against the Buffalo Mining Company and Lorado Super Market on account of alleged wage assignments. The district court dismissed the complaint, ruling that there was no right to bring a private action, either explicit or implied, to enforce the garnishment provisions of the statute.

We refrain from either reaching the question or expressing any view as to whether a private action may be maintained under the wage garnishment provisions of the Consumer Credit Protection Act. We affirm the district court’s dismissal, however, since, in our view, no relief is available under the statute in any event under the facts presented in this case. Brown v. Allen, 344 U.S. 443, 459, 73 S.Ct. 397, 97 L.Ed. 469 (1959).

Originally, the plaintiffs also sought to compel the Secretary of Labor to enforce the provisions of the Consumer Credit Protection Act by insuring that Buffalo henceforth paid at least 75% of plaintiff’s earned wages in each pay period. But because the Secretary had not yet reached a final decision as to whether wage assignments were garnishments, the district court dismissed this claim as lacking in ripeness. See, e. g., Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). On appeal, the plaintiffs have abandoned this effort, but seek instead an order compelling the Secretary to render an interpretation as to whether or not the taking of plaintiffs’ wages falls within the coverage of the Act. Our disposition of the central issue precludes further relief against the Secretary on this particular question.

On December 14, 1968 and again on June 24, 1970, Western signed documents which read as follows:

“BUFFALO MINING COMPANY LORADO, WEST VIRGINIA
This is your authorization to deduct from my wages each pay day the amount turned in against me by the LORADO SUPER MARKET, INC. and/or the LORADO SERVICE STATION.”

A similar document was signed by Sin-nett on June 9, 1969. Thereafter, and continuing up to the filing of this suit, Buffalo withheld the take-home wages of each of the plaintiffs to the extent of the amounts turned in by the Lorado Super Market. It appears clear that the parties treated the agreement as a wage assignment, although under the law of West Virginia there is some question as to whether it is valid as such.

In order to come within the provisions of the Consumer Credit Protection Act, plaintiffs must demonstrate that these agreements constitute “garnishments” within the purview of the statute. The term “garnishment” is there defined as “any legal or equitable procedure through which the earnings of any individual are required to be withheld for payment of any debt.” After prohibiting garnishments in excess of 25% of an employee’s weekly disposable earnings, or thirty times the minimum wage, whichever is less, Congress further provided that “(n)o court of the United States or any State may make, execute, or enforce any order or process in violation of this section.” Thus, it appears clear that by the term “garnishment” Congress contemplated some type of judicial transaction. Nothing in the legislative history of the statute is to the contrary. The purported wage assignments in the instant case, however, were brought about by neither legal nor equitable procedure. They were negotiated between the parties and subsequently implemented according to their tenor without judicial intervention. Under these circumstances, we are of opinion that these agreements are not “garnishments” within the meaning of the Consumer Credit Protection Act.

The argument is made, however, that the legislative intent of those who drafted the Consumer Credit Protection Act was to comprehend within the statutory meaning of “garnishment” a less formalistic, claimed common law definition which would include wage assignments. Beyond stating that garnishment includes any legal or equitable procedure, though, the legislative history is silent. We note, moreover, that the remedies of both garnishment and attachment were unknown to common law; both came into existence in this country by statutory enactment. See Ownbey v. Morgan, 256 U.S. 94, 108, 41 S.Ct. 433, 65 L.Ed. 837 (1921); Harris v. Balk, 198 U.S. 215, 222, 25 S.Ct. 625, 49 L.Ed. 1023 (1905); Freeport Motor Cas. Company v. Madden, 354 Ill. 486, 188 N.E. 415 (1933); Cole v. Randall Park Holding Company, 201 Md. 616, 95 A.2d 273 (1953); Queen v. Man Hospital, 128 W. Va. 574, 37 S.E.2d 443 (1946); Burk’s Pleading and Practice, § 379 (1952).

Under most State statutes, the term “garnishment” denotes a proceeding whereby a plaintiff seeks to subject to his claim property of the defendant in the hands of a third person, or money-owed by a third person to the defendant. West Virginia permits garnishment under W.Va.Code Ann. § 38-7-15, but, like most States, requires a paper to be filed with a court of appropriate jurisdiction stating specific grounds and the nature of the claim asserted against the defendant. See W.Va.Code Ann. §§ 38-7-1, 38-7-2. The garnishee is then required to file an answer disclosing in what sum he is indebted to the defendant and what effects of the defendant he has in his possession or under his control. W.Va.Code Ann. § 38-7-24. Thus, the garnishment procedure sanctioned by West Virginia, the State in which the acts complained of occurred, is typically judicial in nature and not a private contractual matter existing totally apart from court processes.

Consequently, we are unable to find any foundation within federal, West Virginia, or common law for plaintiffs’ assertion that wage assignments, contractual in origin, are comprehended by the term “garnishments” within the provisions of the Consumer Credit Protection Act.

In this appeal, we are asked to imply a right of action under 15 U.S.C. § 1671 et seq, to enable private persons to enforce its provisions. Since, however, we have decided that wage assignments do not come within the purview of the statute and that no relief is available under any of the circumstances presented here, as before stated, we do not reach the question.

In so deciding, we repeat that we intimate no view as to whether or not a private right of action may be implied under the statute. Moreover, since our decision only negates relief on these facts under the wage garnishment provisions of the Consumer Credit Protection Act, we similarly intimate no view as to whether or not plaintiffs may obtain relief under these same circumstances based upon the law of West Virginia. Should plaintiffs’ wages be affected by a garnishment as defined in the statute, they may properly raise the questions presented at that time in an appropriate forum.

For the reasons expressed in this opinion, the dismissal of this case is Affirmed.

      . The Consumer Credit Protection Act provides, in relevant part, as follows:
      Subchapter II. — Restrictions on Garnishment
      § 1673. Congressional findings and declaration of purpose (a) The Congress finds :
      (1) The unrestricted garnishment of compensation due for personal services encourages the making of predatory extensions of credit. Such extensions of credit divert money into excessive credit payments and thereby hinder the production and flow of goods in interstate commerce.
      (2) The application of garnishment as a creditor’s remedy frequently results in loss of employment by the debtor, and the resulting disruption of employment, production, and consumption constitutes a substantial burden on interstate commerce.
      sfc v % *1*
      § 1672. Definitions For the purposes of this subchapter:
      :!: * * *
      (c) The term “garnishment” means any legal or equitable procedure through which the earnings of any individual are required to be withheld for payment of any debt. § 1673. Restriction on garnishment — -Maximum allowable garnishment

      (a) Except as provided in subsection (b) of this section and in 1675 of this title, the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed
      (1) 25 per centum of his disposable earnings for that week, or
      (2) The amount by which his disposable earnings for that week exceed thirty times the Federal minimum hourly wage prescribed by Section 206(a) (1) of Title 29 in effect at the time the earnings are payable,
      whichever is less. .
      •k 'i* v sk

        Execution or enforcement of garnishment order or process prohibited (c) No court of the United States or any State may make, execute, or enforce any order or process in violation of this section.
      § 1674. Restriction on discharge from employment- by reason of garnishment

      (a) No employer may discharge any employee by reason of the fact that his earnings [may] have been subjected to garnishment for any one indebtedness.
      (b) Whoever willfully violates subsection (a) of this section shall be fined not more than $1,000, or imprisoned not more than one year, or both.
      § 1676. Enforcement by Secretary of Labor

      The Secretary of Labor, acting through the Wage and Hour Division of the Department of Labor, shall enforce the provisions of this subchapter.

      . Plaintiffs’ employer, Buffalo Mining Company, which terms these documents as “voluntary revocable agreements,” has treated the bringing of this suit as a revocation. Since the filing of this suit, no further deductions and payments have been made from the wages of the plaintiffs.
      It should be noted that Lorado Super Market is not a company store owned or operated by Buffalo Mining Company.

      . The plaintiffs, on October 14, 1971, requested the Department of Labor to enjoin defendants from continued violations of the Act. But in a letter dated October 18, 1971, the Secretary stated that their case was not within the Department’s interpretation of the Consumer Credit Protection Act since an assignment of wages was not considered a garnishment. See also CCH Labor Law Reporter n 30,041; 30,602 ; 30,084 (1970). Later, in an affidavit dated April 24, 1972 filed with the district court, the Secretary announced that the Department was currently reviewing its position concerning the definition of garnishment as requiring a court proceeding. The Department of Labor further stated that it was studying the extent to which certain non-court procedures under particular state statutes, although not labeled as a “garnishment,” could come within the meaning of the term “garnishment” as defined in the Act. The matter was still under review as of May 14, 1973, the date of the district court’s decision. Moreover, we were informed during oral argument that, although more than two years have passed since the Secretary was first requested to rule whether wage assignments came within the meaning of “garnishment” as used in the statute, the matter yet remains the subject of ongoing review within the Department. The inaction by the Department is inexplicable.

      . A wage assignment is a transfer .of the right to receive wages effected by means of a contract. It is, as here, a private transaction made without order of a court.

      . Since the agreement was negotiated between plaintiffs and the Lorado Super Market, which is not affiliated with the Buffalo Mining Company, it would appear to fall within the zone of regulated wage assignments. In pertinent part, W-Va-Code Ann. § 21-5-3 (Repl.Vol.1973) provides :
      “No assignment of or order for future wages shall be valid for a period exceeding one year from the date of such assignment or order. Such assignment or order shall be acknowledged by the party making the same before a notary public or other officer authorized to take acknowledgments, and such order or assignment shall specify thereon the total amount due and collectible by virtue of the same and three-fourths of the periodical earnings or wages of the assignor shall at all times be exempt from such assignment or order and no assignment or order shall be valid which does not so state upon its face: Provided further, that no such order or assignment shall be valid unless the written acceptance of the employer of the assignor to the making thereof, is endorsed thereon: Provided further, that nothing herein contained shall be construed as affecting the right of the employer and the employees to agree between themselves as to deductions to be made from the payroll of employees ; . . . ”

      . 15 U.S.C. § 1672(c).

      . 15 U.S.C. § 3673(a).

      . 15 U.S.C. § 1673(c).

      . See 1968 U.S.Code Cong. & Admin.News, pp. 1962-2030.

      . We are not unmindful of the fact that an abuse of contractual or agreed upon withholding of an employee’s pay pursuant to the terms of a wage assignment could bring about the injustice Congress sought to rectify in the wage garnishment provisions of the Consumer Credit Protection Act. Nevertheless, as passed by Congress, the statute’s terms embrace only garnishments which involve a “legal or equitable procedure.”
      The other side of the coin is that many of the various withholdings of wages are not only desired by the employee, but almost certainly would be considered beneficial to the employee in one context or another, whether or not specifically authorized by contract, statute, rule, or regulation. Examples are union dues; group hospitalization anil life insurance premiums; savings bonds ; deposits in credit unions; purchases of stock in the corporate employer under which plan the employer contributes a part of the purchase price; contributions to retirement plans.

      . Speaking for the Supreme Court in Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837 (1905), Mr. Justice Pitney traced the origin of statutory foreign attachment to “the custom of London, under which a creditor might attach money or goods of the defendant either in plaintiff’s own hands or in the custody of a third person, by proceedings in the mayor’s court or in the sheriff’s court.” 256 U.S. at 104-105, 41 S.Ct. at 435. This procedure was both “local and limited,” however, and thus would not appear to be part of the general common law of England. In any case, it seems clear that the remedy from its very inception was judicial and not, as urged here, a purely contractual matter between private parties.

      . Cf. Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969); J. I. Case Co. v. Borak, 377 U.S. 426, 84 S. Ct. 1555, 12 L.Ed.2d 423 (1965). In Allen, the Supreme Court noted that “a federal statute passed to protect a class of citizens, although not specifically authorizing members of the protected class to institute suit, nevertheless implied a private right of action.” 393 U.S. at 557, 89 S.Ct. at 827.