author: WILLIAM E. MILLER, Circuit Judge.

text:
    Laura HAYDEN, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee.
    No. 73-2066.
    United States Court of Appeals, Sixth Circuit.
    Argued April 12, 1974.
    Decided May 31, 1974.
    Robert B. Spurlock and Robert L. Brown, Bucyrus, Ohio, for appellant; Cory, Brown & Pfeifer, Bucyrus, Ohio, Robert B. Spurlock, Myers, Spurlock, Sears & Pry, Bucyrus, Ohio, Lawrence R. Elleman, Dinsmore, Shohl, Coates & Deupree, Cincinnati, Ohio, on brief.

      Michael R. Gallagher, Cleveland, Ohio, for appellee; James F. Sweeney, Cleveland, Ohio, on brief; Hauxhurst, Sharp, Mollison & Gallagher, Cleveland, Ohio, of counsel.
    Before EDWARDS, MILLER and ENGEL, Circuit Judges.
   WILLIAM E. MILLER, Circuit Judge.

On January 9, 1970 the plaintiff, Laura Hayden, on the basis of diversity of citizenship filed in the court below her personal injury action against the Ford Motor Company, alleging that she was injured on June 20, 1965, while driving a pick-up truck manufactured by the defendant. The accident occurred in Arizona while the plaintiff, an employee of the Crawford County, Ohio, Children’s Home, was transporting children from the Home on a trip through the Western United States. She alleged that a malfunction of the right wheel assembly of the Ford truck caused it to become uncontrollable. As a result it overturned and plaintiff, as she alleges, sustained severe and permanent injuries.

On June 21, 1967, one year and eleven months after the accident, and almost thirty-one months prior to the filing of the present action in federal court, the plaintiff filed a similar action against Ford Motor Company in the Common Pleas Court of Crawford County, Ohio. Since Ohio has a two-year statute of limitations for personal injury law suits, the state action was timely filed. The federal action, however, was not filed until after the lapse of the two-year period prescribed by the Ohio statute. When the action was filed in federal court the state action was pending for trial on the merits.

The defendant, on September 21, 1970, filed its answer in federal court, pleading to the merits but making no reference to the statute of limitations defense. On December 20, 1971 the plaintiff, after engaging in extensive discovery procedures going to the substantive issue, voluntarily dismissed the pending state court action without prejudice.

Almost six months later, on June 15, 1972, the defendant applied for leave to file an amended answer to assert the Ohio statute of limitations as a defense. On September 22, 1972, the district court granted the defendant’s motion and the statute was then formally pleaded as a bar to plaintiff’s action.

Plaintiff thereafter moved to amend her complaint principally for the purpose of adding a claim for punitive damages. The motion having been granted, an amended complaint was filed accordingly. In response to the amended complaint the defendant filed an amended answer, again pleading the statute of limitations. On August 15, 1973, pursuant to a motion by the defendant, the district court granted summary judgment in favor of the defendant, upon the ground that plaintiff’s action was barred by the Ohio statute of limitations.

Under Ohio law as well as under the Federal Rules of Civil Procedure, the statute of limitations is an affirmative defense which must be pleaded as such. In this case, Ford Motor Company did not attempt to raise the statute of limitations as a bar to the litigation until almost thirty months after the filing of the action in federal court, nor until six months after the plaintiff had voluntarily dismissed the state court action then pending on its merits.

Normally, federal courts favor liberality in permitting amendments to pleadings. Rule 15(a) of the Federal Rules of Civil Procedure provides :

“(a) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. * * * ” (Emphasis supplied)

When “justice so requires” is within the trial court’s broad range of discretion. The plaintiff argues here that the district court abused its discretion by allowing the defendant to amend its answer despite substantial prejudice to the plaintiff. The defendant urges that the question of whether the district court should have granted the defendant’s motion for leave to amend was rendered moot when the plaintiff filed an amended complaint to which the defendant was required to respond, thus allowing the defendant another opportunity to plead the statute of limitations. At first glance, this argument would appear not to be devoid of merit. Yet upon closer scrutiny, we are convinced that the disposition of the critical issue in this case should not be made upon the basis of a federal pleading analysis. This approach would require solution of two pleading problems: First, it would be necessary to determine whether the district court abused its discretion in allowing the defendant to file its first amended answer raising the limitations defense. Secondly, it would be necessary to inquire whether the plaintiff’s amended complaint removed any problem concerning the allowance of the second amended answer. This analysis might conceivably result in a disposition of this case that would totally disregard the true purposes of statutes of limitations as well as the circumstances under which limitation periods may be waived. Such a method of solving our present problem by focusing upon the rules of pleading, as the district court in large part did in this case, would be reminiscent of the days of common law pleading when the strict rules and forms of pleading were sovereign and frequently were permitted to prevail over substance.

The more basic issue here addresses itself to the nature and scope of a limitations statute as a defense in a civil action as well as to the question of when and under what state of facts the defense must be considered as waived.

If Ohio law has answered these questions, we would be required to follow it. Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1937); Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). Our examination of the Ohio decisions has failed to disclose any case defining the fundamental nature of the limitations defense. It is true that language appears in the Ohio Supreme Court’s opinion in Aetna Casualty & Surety Co. v. Hensgen, 22 Ohio St.2d 83, 87, 258 N.E.2d 237 (1970), to the effect that statutes of limitations are personal privilege defenses subject to waiver. Yet this language must be read in connection with the terms of an Ohio statute expressly providing that defenses of this nature are waived unless raised before answer to the merits. We are persuaded, however, that the Ohio Supreme Court would apply what appears to be the generally accepted view that statutes of limitations are designed primarily for the benefit of persons against whom claims may be made and, in consequence, are “personal privilege” defenses that are waived unless asserted at the earliest possible moment. A fair statement of the rule appears in 53 C.J.S. Limitations of Actions § 24, p. 958:

Since a statute limiting the time within which actions shall be brought is for the benefit and repose of individuals and not to secure general objects of policy or morals, and it is. regarded as a personal privilege, it is a general rule that the protection may be waived by one entitled to rely on it, unless the statutory provision is jurisdictional, or goes to the right of action, and broadly speaking the rule as to waiver applies in respect of the bar of any statute which is a mere restriction on the remedy as distinguished from a limitation on the right.

See also Strauss v. Douglas Aircraft, 404 F.2d 1152, 1155 (2d Cir. 1968); Wagner v. Fawcett Publications, 307 F.2d 409, 412 (7th Cir. 1962), cert. den. 372 U.S. 909, 83 S.Ct. 723, 9 L.Ed.2d 718; Twentieth Century Fox Film Corp. v. Goldwyn, 328 F.2d 190, 215 (9th Cir. 1964).

The theory underlying the statutes is that it is essentially unfair to fail to put an adversary on notice within prescribed periods of time. There comes a time when the right to be free of stale claims should prevail over the right to prosecute them. See Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 64 S.Ct. 582, 88 L.Ed. 788 (1944).

In discussing the nature of the statute of limitations defense and its subsequent waiver, a district court in Basko v. Winthrop Laboratories, Inc., 268 F.Supp. 26, 28 (D.Conn.1967) concluded:

. . . if counsel believed that any serious question might exist as to possible expiration of the relevant statutory limitations periods, then in fairness to all parties the defense of statute of limitations should have been explicitly preserved in the answer. As it was, the matter was not raised in any specific form until defendants’ motion to amend was filed on December 2, 1966; the misleading nature of the original answer, together with the ensuing long delay in seeking amendment, amounted to waiver.

The district court in Faith v. Texaco, Inc., 48 F.R.D. 118, 121 (W.D.Mich.1969), used similar language in setting forth the circumstances constituting a waiver of the statute of limitations:

Limitation of action would thus seem to have been an obvious defense four years ago, or at least two and a half years ago. If counsel believed that any serious question might exist as to possible expiration of the relevant statutory limitations periods, then in fairness to all parties, the defense should have been explicitly preserved in the answer, or as soon thereafter as possible. The misleading nature of the original answer, together with the ensuing long delay in seeking amendment and consequent prejudice to the plaintiff amounted to a waiver of the defense of the statute of limitations. Basko v. Winthrop Laboratories, Inc., 268 F.Supp. 26 (D.Conn.1967) (Timbers, C. J.). See also Smith v. Insurance Co. of North America, 30 F.R.D. 540 (M.D.Tenn.1962); Roe v. Sears Roebuck & Co., 132 F.2d 829 (7th Cir.1943); Strauss, supra.

If it should be argued that the statute is not waived if the plaintiff suffers no detriment from the defendant’s delay in asserting the defense, the answer on the present record would have to be that detriment and prejudice to the plaintiff are unmistakable. Defendant had notice of the pending litigation with this plaintiff in the state court for two and one-half years before the plaintiff filed the present action in federal court. By the time the defendant filed its original answer in federal court, the statute of limitations was a very obvious defense. Yet it was not pleaded. The plaintiff, acting to her detriment in dismissing the state action and in pursuing extensive discovery addressed to the merits, was obviously lulled into a false sense of security because of the defendant’s failure to raise the statute as a defense in the federal litigation. It is difficult to imagine a situation where a plaintiff could have suffered more harm because of a defendant’s procrastination and delay in pleading the statute than the situation appearing in the present record. Whatever the motives behind the plaintiff’s and defendant’s pleading strategy, to allow the defendant to raise the bar of the statute of limitations after so long a delay and after so many intervening acts had occurred, would make a mockery of the intent and purpose of the statute of limitations.

We hold therefore that the defendant waived the statute of limitations defense and that the district court’s summary judgment based on that defense cannot stand.

The judgment of the district court is reversed and the action is remanded for further proceedings consistent with this opinion.

      . Ohio Revised Code Section 2305.10. Bodily Injury or Injury to Personal Property:
      An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose.

      . After a voluntary dismissal, a plaintiff may not under Ohio law refile the action in the Ohio state courts,


source: Caselaw Access Project

author: HAYS, Circuit Judge: LUMBARD, Circuit Judge

license: Public Domain

text:
    Oscar F. COLLINS, Plaintiff-Appellee, v. PENN CENTRAL TRANSPORTATION COMPANY, Defendant-Appellant.
    No. 692, Docket 72-1191.
    United States Court of Appeals, Second Circuit.
    Argued March 4, 1974.
    Decided May 31, 1974.
    Paul W. Beltz, P. C., Buffalo, N. Y., for plaintiff-appellee.

      John E. Leach, Buffalo, N. Y. (Brown, Kelly, Turner, Hassett & Leach, Buffalo, N. Y., of counsel), for defendant-appellant.
    Before LUMBARD, HAYS and OAKES, Circuit Judges.
   HAYS, Circuit Judge:

The appellee, Oscar F. Collins, brought this diversity action alleging that he suffered personal injuries as a result of the negligence of the appellant, Penn Central Transportation Company. After a trial the jury returned a verdict for appellee and the district court entered judgment on the verdict. Penn Central appealed. We affirm.

As the first ground for appeal appellant claims that appellee failed to adduce sufficient evidence to support the verdict of the jury. We disagree.

Appellee worked for a contractor constructing an electric transmission line from Niagara Falls to Rochester. When the accident occurred appellee was standing some two hundred yards from the railroad tracks and was coiling a rope attached to a cable which was strung over the tracks on a set of riser-poles. A train passing on the track caught the cable, which in turn pulled the rope so that it ensnared appellee, throwing and injuring him.

Appellee introduced evidence tending to show that the railroad had notice that the construction work was under way but had failed to provide for a flagman in the area, that the members of the crew of the train failed to keep a proper lookout and therefore failed to observe that the cables were hanging too low to permit the train to pass, that the train was moving too rapidly at the time, and that the train failed to warn of its approach.

Appellant contends that the cable which injured appellee had been high enough for the train to pass, but that it slipped at the last moment, leaving the train crew insufficient time to stop to prevent the accident. However, the testimony on the heights of the cable was conflicting and often ambiguous. Testimony as to whether and when the cable which caused the injury slipped was even more ambiguous. We cannot set aside the verdict of the jury unless, when viewing the evidence in the light most favorable to the prevailing party, “there is a complete absence of probative facts to support the conclusion reached” by the jury. Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946); Fleming v. American Export Isbrandtsen Lines, Inc., 451 F.2d 1329, 1331 (2d Cir. 1971); Myers v. Town of Harrison, 438 F.2d 293, 298 (2d Cir.), cert. denied, 404 U.S. 828, 92 S.Ct. 64, 30 L.Ed.2d 57 (1971). Where there is such a substantial conflict in the evidence as there is in this case, the verdict of the jury must stand.

Penn Central also appeals on the ground that counsel for appellee improperly attempted to prejudice the jury by referring to reports not in evidence even after the trial judge had excluded the reports.

Shortly after the accident the railroad took statements concerning the event from the members of the crew of the train. Before trial several of the crewmen died. Appellee argued that the records of these statements were business records and were admissible as an exception to the hearsay rule under 28 U.S.C. § 1732 (1970). The district court disagreed.

On this appeal appellee renews his claim that the statements were properly admissible. However, we need not decide that issue, for even if the district court was correct, appellants suffered no substantial harm from the references to the statements.

Early in the trial the district judge refused to admit the statements in evidence because he did not believe that there was sufficient proof that records of these statements were kept for purposes other than litigation. The court permitted counsel for appellee to question witnesses in front of the jury in an attempt to ascertain how the railroad prepared these records and for what purposes it used them. Several questions which were asked early in the trial and to which appellant now objects were apparently asked by appellee in a good faith effort to satisfy the court’s doubts. Appellant did not object to these questions. Moreover, the court voluntarily excused the jury on several occasions so that the questioning might continue in their absence. Without commenting on the wisdom of this procedure, we find that it did not prejudice the appellant.

Appellee failed to convince the district court that the statements were admissible. However, counsel continued to try to make use of the statements in several ways. In certain cases he asked witnesses questions based on hypothetical situations containing facts which he apparently culled from the statements. These facts had never been placed in evidence, and the jury had no way of knowing they were contained in the statements. The court overruled appellant’s objections to the questions and properly instructed the jury that the hypothetical situations were assumptions only and not evidence to be considered by them. This was not error. Counsel may ask a hypothetical question so long as he states specifically the factual assumptions of the question. See 2 Wigmore, Evidence §§ 672-686 (3d ed. 1940). Of course, if the party does not independently prove the facts assumed, the jury is free to disregard the conclusion of the witness.

Several times the judge instructed the jury that the parties disagreed about the admissibility of certain evidence, that the judge and not the jury would resolve the dispute, that statements made by certain persons since deceased were not admissible, and that the jury should draw no inferences from references to such statements.

On one occasion the court permitted a witness to use one such statement to refresh his memory. This was proper. 3 Wigmore, Evidence § 758 (Chadbourn rev. 1970); United States v. Rappy, 157 F.2d 964, 967-968 (2d Cir. 1946), cert. denied, 329 U.S. 806, 67 S.Ct. 501, 91 L.Ed. 688 (1947); Fanelli v. United States Gypsum Co., 141 F.2d 216, 217 (2d Cir. 1944).

In closing statements to the jury counsel for appellee repeatedly implied that the railroad had withheld relevant evidence. Appellant did not object to these statements. Twice, however, the court itself interrupted counsel for appellee and admonished him to refrain from such remarks.

In its charge to the jury the lower court stated clearly that the jury should consider only evidence properly adduced in the courtroom. Appellant took no exceptions to the court’s charge.

There was no reversible error.

Affirmed.

LUMBARD, Circuit Judge

(dissenting) :

I dissent. The conduct of plaintiff’s counsel in his repeated and improper references to matters designed to prejudice the defendant, many of them in contravention of the trial judge’s directions, deprived the defendant of a fair trial.

To understand the issues here it must be realized that because of the extraordinarily long delay in the case’s coming to trial (some ten years after the accident) several employees of the then New York Central Railroad who had been involved in the Collins accident had died before trial. Evidently plaintiff’s counsel made no effort to depose these employees prior to their deaths. These employees had, however, submitted handwritten statements shortly after the accident to the railroad’s claims department. Counsel for plaintiff attempted to secure admission of these statements as business records under 28 U.S.C. § 1732. After much testimony and careful consideration, the late Chief Judge Henderson ruled that the statements were not admissible. Despite this ruling, plaintiff’s counsel, by posing hypothetical questions not based on the evidence and by referring to the contents of the statements in attempts to refresh the recollection of witnesses, ensured that the jury learned of the contents of the statements. Furthermore, counsel in summation castigated the railroad for doing what it had a perfect right to do — objecting to the admission of inadmissible evidence. These acts by counsel, to which proper objection was made, must have seriously affected the defense and the size of the jury’s verdict, $430,000; in my opinion, they mandate reversal of the judgment and a new trial.

The evidence before Judge Henderson indicated that the claims department of the railroad took statements from employees in personal injury cases in its discretion, usually when it thought there might be litigation. These statements were not used by the railroad to promulgate safety rules. After considering the Supreme Court decision in Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), the Seventh Circuit decision in Leon v. Penn Central Co., 428 F.2d 528 (7th Cir. 1970), and our decisions in Pekelis v. Transcontinental & Western Airlines, Inc., 187 F.2d 122 (2d Cir.), cert. denied, 341 U.S. 951, 71 S.Ct. 1020, 95 L.Ed. 1374 (1951), and Puggione v. Luckenbach S. S. Co., 286 F.2d 340 (2d Cir. 1961), Judge Henderson concluded that the statements were not admissible. Since in Puggione we said that trial judges have discretion in admitting such statements, 286 F.2d at 344, it is difficult to argue that Judge Henderson was wrong. Certainly plaintiff did not meet his burden of proof in showing that the statements were made in the regular couse of business. Be that as it may, the function of correcting any such errors by Judge Henderson lies in this court, not in self-help remedies by plaintiff’s counsel which violate and circumvent the rulings of the trial judge.

One statement which was excluded was made by the train’s engineer, Daniel Rogers. Rogers wrote that as the train went under the cables he heard a noise on the roof of the cab. He leaned outside the window and saw the cable whipping around the roof. He then went back into the cab and applied the train’s brakes in a service, not an emergency, application.

Even though there was no competent evidence in the record to support the hypothetical question, plaintiff’s counsel asked a retired locomotive engineer how long it would take an engineer who heard a noise on top of his cab to look out the window, see a cable, and apply his brakes in a service application. Objection to this question was sustained. A minute later counsel asked the engineer how long it would take an engineer to look out the window to the top of his cab, come back inside, and apply his brakes. For reasons not clear in the record, ah objection to this question was overruled, but this question only repeated for the jury’s benefit the possibilities of what was contained in Rogers’ statement which had been excluded.

The majority tries to excuse this behavior by implying that hypothetical questions can be used even if there is no evidence in the record to support the factual assumptions. There is no support for this view. The citation to Wig-more’s treatise does not support this assertion. Wigmore clearly says that such questions “must not include data which there is not a fair possibility of the jury accepting.” J. Wigmore, Evidence § 682, at 805 (3rd ed. 1940) (emphasis original). Our decisions have consistently supported this rule. See Cisneros v. Cities Service Oil Co., 334 F.2d 232 (2d Cir. 1964); Dworzansky v. Glenn Cartage Co., 192 F.2d 166 (2d Cir. 1951); Napier v. Greenzweig, 256 F. 196, 203 (2d Cir. 1919); Erie R. Co. v. Linnekogel, 248 F. 389, 392 (2d Cir. 1917). See also Grand Island Grain Co. v. Roush Mobile Homes Sales, Inc., 391 F.2d 35, 40-41 (8th Cir. 1968); Alexandridis v. Jewett, 388 F.2d 829, 834 (1st Cir. 1968); Jackson v. Nelson, 382 F.2d 1016 (10th Cir. 1967); C. McCormick, Evidence § 14, at 33 (2d ed. 1972); Proposed Fed.R.Evid. 703. The only justification for asking these hypothetical questions was to get the contents of Rogers’ statement before the jury.

The behavior was repeated in the questioning of Ernest O’Donnell, the fireman of the train and the only one of the three men in the cab at the time of the accident who was still alive by the time of the trial. O’Donnell testified that he thought that Rogers went into an emergency braking despite plaintiff’s counsel’s leading questions. Counsel then asked O’Donnell if Rogers would know what type of brakes he applied. O’Donnell said that he thought so. Counsel then asked if his recollection would be refreshed if he saw Rogers’ statement. An objection was sustained. Then counsel asked O’Donnell if Rogers waited until he had looked out the window to apply the brakes. O’Donnell said that it was possible; counsel replied, “No, not only possible.” At this point it was not clear who was examining and who was testifying. While it may be proper to attempt to refresh a witness’ recollection with someone else’s statement, it is clearly improper to refer to the statements by the name of the person who made the statement, as counsel did several times here, and in combination with leading questions ensure that the jury learns the contents of the statement.

Similar episodes occurred in regards to the statement of the deceased railroad employee, William Hooley, whom the Emerson-Garden Company, plaintiff’s employee, contacted about securing a flagman from the railroad for the site where the power lines crossed the tracks. One witness was asked if Hooley’s statement would refresh his recollection on whether Hooley made a phone call, and then later he was asked if it was true that Hooley called Harry Calahan, the Chief Clerk of the Buffalo Terminal, about getting a flagman. The witness had no knowledge of the matter and the only purpose of the question was to get the contents of Hooley’s statement before the jury.

To compound these abuses, counsel in summation castigated the railroad for not giving the jury all the facts. He even went so far as to say that the only break plaintiff ever had was that the railroad accidentally turned over the statement of the engineer and only then did they “begin to find out some facts.” The district court then admonished the jury, as it had done several times previously, on the problems of hearsay evidence. Later on during plaintiff’s counsel’s summation, defendant twice moved for a mistrial. The first motion came after another attack on defendant for keeping evidence from the jury; the second came after some inflammatory remarks at the end of summation. Judge Henderson once again admonished the jury after the second motion but by this time admonitions were of little use. Only a new trial could correct the effects of counsel’s actions.

The acts of plaintiff’s counsel here strike at the heart of judicial control over the admission of evidence and a fair trial on the evidence properly received; they are certainly as prejudicial as referring to defendant as being a member of the Mafia, Koufakis v. Carvel, 425 F.2d 892, 901-908 (2d Cir. 1970), or referring to the fact that defendant was insured, Cuccarese v. Soloman, 405 F.2d 866 (2d Cir. 1969); Brown v. Walter, 62 F.2d 798 (2d Cir. 1933). It was error for Judge Henderson to deny defendant’s motions for a new trial, for as we noted in Koufakis a trial judge has an affirmative duty to protect parties from grossly improper tactics.

In cases such as this where counsel deliberately and repeatedly disregards the court’s ruling and accomplishes by indirection what has been prohibited, the only sanction which fits the transgression is the setting aside of the verdict and the granting of a new trial. Any admonishment or lamentation is of no consequence. Unless trial attorneys know that any result which may have been achieved by tactics which ignore and evade the trial judge’s rulings will be set aside and nullified, they will pay little attention to those rulings.

I would reverse and remand for a new trial.


author: TIMBERS, Circuit Judge: FRIENDLY, Circuit Judge

text:
    In the Matter of I. C. HERMAN & CO., INC., Debtor-Appellee, v. TAUB, HUMMEL & SCHNALL, INC., Claimant-Appellant.
    No. 556, Docket 73-2042.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 19, 1974.
    Decided May 28, 1974.
    Certiorari Denied Oct. 15, 1974.
    See 95 S.Ct. 153.
    Howard Karasik, New York City (Sherman & Citron, New York City, on the brief), for debtor-appellee.
    Albert Adams, New York City (Ferris, Adams & Creidy, New York City, on the brief), for claimant-appellant.
    Before LUMBARD, FRIENDLY and TIMBERS, Circuit Judges.
   TIMBERS, Circuit Judge:

On this appeal from an order entered in a Chapter XI proceeding in the Southern District of New York, John M. Cannella, District Judge, the sole question is whether voluntary payment by a customs broker of United States customs duties due from an importer entitles the broker in the importer’s Chapter XI proceeding to the priority to which the government would be entitled for debts due the government. The district court and the bankruptcy referee answered the question in the negative. We affirm.

Appellant Taub, Hummel & Sehnall, Inc. (Taub) is a customs broker. Appellee I. C. Herman & Co., Inc. (Herman) is an importer of goods from abroad. Taub acted as customs broker for Herman. The goods without exception were imported in Herman’s name.

A bond in amount of $50,000 was executed by Herman as principal pursuant to which Herman agreed to pay to the government customs duties on its imported goods. Taub did not execute this or any other bond, either as principal or surety, for the payment of Herman’s customs duties.

During the period from March 3, 1972 through April 7, 1972, Taub voluntarily and without obligation advanced the sum of $32,048.45 in payment of Herman’s customs duties due on Herman’s imports.

On April 6, Herman filed a petition for an arrangement pursuant to Chapter XI of the Bankruptcy Act. 11 U.S.C. § 701 et seq. (1970). In due course, Taub filed in the Chapter XI proceeding a claim for $46,779.54. Of this total claim, Taub classified as a priority claim the $32,048.45 of Herman’s customs duties which it had paid to the government. Upon application to the bankruptcy referee, Herman obtained an order reclassifying Taub’s $32,048.45 priority claim as a general unsecured claim.

On Taub’s petition to review, the district court affirmed the referee’s reclassification of Taub’s claim as a general unsecured claim and held that it was not entitled to priority status.

Taub argues that, as a result of discharging Herman’s obligations to the government arising from the assessment of import duties, it is entitled to the priority to which the United States would be entitled for debts due the government. Taub’s priority claim in essence is based on principles of subrogation. Having paid customs duties due from Herman to the United States, Taub says that it is entitled to succeed to the government’s rights against Herman, including the government’s priority claim in bankruptcy proceedings for unpaid customs duties.

Priority by subrogation, however, has been granted only in the limited situation provided for in 31 U.S.C. § 193 (1970):

“Whenever the principal in any bond given to the United States is insolvent . . . , and . . . any surety on the bond . . . pays to the United States the money due upon such bond, such surety . . . shall have the like priority for the recovery and receipt of the moneys out of the estate and effects of such insolvent . as is secured to the United States. . . .”

In view of this statutory provision, the question before us is whether the fact that Taub was not a surety on the bond executed by Herman for the payment of custpms duties forecloses Taub’s priority claim.

We hold, as did the district court and the bankruptcy referee below, that the rationale of our decision in R. J. Saunders & Co., Inc. v. Vincent, 309 F.2d 65 (2 Cir. 1962), aff’g 202 F.Supp. 140 (S.D.N.Y.1962), requires that Taub’s claim be treated as a general unsecured claim without priority status. In Saunders, a customs broker, in order to expedite entry of imports, see Union Brokerage Company v. Jensen, 322 U.S. 202, 204 (1944), had paid customs duties due from the bankrupt importer. We rejected the contention of the customs broker that it was entitled to succeed to the rights of the United States against the bankrupt, including the government’s right to have its claim accorded priority status in the distribution of the bankrupt’s estate. And we pointed out that “Congress has allowed subrogated priority in only one situation — that in which a surety on a bond given to the United States discharges the debt on behalf of his principal.” 309 F.2d at 67.

We recognize that Saunders differs from the instant case in certain respects. There, unlike here, the customs broker was the nominal consignee and the importer of record; and the broker also was the principal on the bond furnished to the government. Since the broker did not stand as surety for the importer, however, we refused in Saunders to extend the statute by implication to accord priority to the broker’s claim. Likewise here we decline Taub’s invitation to extend Section 193 to accord its claim subrogated priority status, thus altering the strict priority provisions of Section 64 of the Bankruptcy Act, 11 U.S.C. § 104 (1970). See In Re Chicago Express, Inc., 332 F.2d 276, 278-79 (2 Cir.), cert. denied, 379 U.S. 879 (1964).

Finally, we reject as a non sequitur Taub’s argument that a holding in the instant case affirming its classification as a general unsecured creditor, read in conjunction with the Saunders holding that subrogated priority is not available when the broker is the nominal consignee and importer of record, means that there is no conceivable situation in which a broker can achieve priority status by paying the customs duties owed by an importer. The short answer to this is that all a customs broker need do to gain priority is to go surety on the importer’s customs duty bond.

Affirmed.

FRIENDLY, Circuit Judge

(dissenting) :

Believing that the majority has taken an unduly narrow approach to the rights of customs brokers whose clients have become insolvent and that the issue here is of importance to the effective administration of the customs laws, I respectfully dissent.

I do not read the limited grant of subrogation in 31 U.S.C. § 193, on which Taub concededly cannot rely, as precluding its having that remedy here. Although I am not at all sure I agree with R. J. Saunders & Co. v. Vincent, 309 F.2d 65 (2 Cir. 1962), so heavily relied on by the majority, the case is clearly inapposite. There the account between the customs broker and the importer was in balance at the time of the bankruptcy, and sums earlier advanced like those here at issue were not involved. The United States made additional assessments thereafter, which the broker paid because, as nominal consignee and importer of record, it had filed a bond in which it was designated as principal and a corporate surety as surety. This court held only that since the broker had made itself rather than the bankrupt the primary obligor, it “was discharging its own debt,” 309 F.2d at 67. Judge Clark said that while the court did not “feel bound by the maxim ‘expressio unius est exclusio alterius,’ 309 F.2d at 68, it could not extend a statute allowing subrogation by a surety against an insolvent principal to cover the case of a solvent principal seeking subrogation against an insolvent who was not a party to the bond at all. This, and only this, was decided.

Moreover, so far as the instant case is concerned, we need not even reach the question whether § 193 has implicitly exclusive effect in cases within its general ambit, since that section applies only when the primary debtor is “insolvent” at the time the debt is paid by the party seeking subrogation. On the facts before us, in contrast to those in Saunders, Taub had paid almost all the sums in issue to the Government before the Chapter XI petition was filed. See In re Fastline, Inc., No. 65-B-872 (S.D.N.Y. Feb. 14, 1967) (Babitt, Referee in Bankruptcy). Surely the majority would not contend that this statute implicitly forbids subrogation by a surety who has discharged a principal’s obligation to the United States prior to the principal’s insolvency simply because the statute does not grant that right. If the statute does not preclude subrogation in that case, it does not do so here.

The Supreme Court has instructed that in bankruptcy proceedings courts are not to read “statutory words with the ease of a computer,” since “[t]here is an overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction.” See Bank of Marin v. England, 385 U.S. 99, 103, 87 S.Ct. 274, 277, 17 L.Ed.2d 197 (1966), a decision whose approach is not without some bearing here, and 1 Collier, Bankruptcy ¶ 2.09 (1974), citing innumerable cases. Under general equitable principles, Taub should be allowed subrogation to the Government’s priority if Herman would have been “unjustly enriched by the retention of the benefit . . . conferred” when Taub paid the duties. Restatement of Restitution § 162 (1937). Under such principles, it is not necessary that Taub should have been a surety on the customs duties bond executed by Herman, id., Reporters’ Notes on § 162, at 199, provided only that its payment of the duties was not “officious.” Id. § 162, Comment b; cf. id. § 2. Although the most common cases for allowing subrogation for discharge of an obligation other than by a surety are payments induced by fraud or mistake or payments effected by the debtor’s wrongful use of another’s property, see, e. g., In re Ennis, 187 F. 720 (2 Cir. 1911), app. dismissed sub nom. Bamford v. Russell, 226 U.S. 623, 33 S.Ct. 110, 57 L.Ed. 386 (1912), it cannot be reasonably said, in light of the crucial role and extensive duties of a customs broker in effecting the rapid entry of imports, so well described in Union Brokerage Co. v. Jensen, 322 U.S. 202, 204-205, 64 S.Ct. 967, 88 L.Ed. 1227 (1944), that Taub’s payment here was “officious” and that Herman therefore would not have been “unjustly” enriched by retention of the benefit thereby conferred. While it is true that if the broker had not made the payments but had required the debtor to do so, the debtor’s assets would have been depleted and creditors might not have extended credit, it is equally true that if the broker had left the goods on the dock subject to the Government’s lien, creditors would doubtless have been none the wiser. Taub paid the duties to enable Herman to conduct its business, in Herman’s interest and presumably in that of its creditors. To allow priority here in the interest of facilitating the process of importation and the collection of import duties therefore would not be, as the majority insist, to alter “the strict priority provisions of § 64 of the Bankruptcy Act,” but simply to permit subrogation to an admitted priority of the United States. The purpose of 31 U.S.C. § 193, enacted long before there was a bankruptcy act, was to bestow priority on a surety against an insolvent principal in the case there defined, not to limit the application of equitable principles in proceedings under the Bankruptcy Act. Taub clearly was not “discharging its own debt,” 309 F.2d at 67.

I would reverse the judgment of the district court and the order of the referee.

      . In an affidavit, submitted in support of Taub’s priority claim in the instant proceeding, its president stated:
      “It is clear therefore that the broker, my corporation, Taub, Hummel and Sehnall, Inc. was at no time obligated to pay any part of the debtor’s duties to the United States government.”

      . The $14,731.09 difference between Taub’s total claim of $40,779.54 and its asserted priority claim of $32,048.45 represented certain importing charges, other than customs duties, which Taub had advanced on behalf of Herman.
      Of the $32,048.45 in customs duties claimed to have been paid by Taub on behalf of Herman prior to the latter’s filing of its Chapter XI petition, apparently $128.11 was paid on April 7, the day after the petition was filed.

      . The “one situation” is 31 U.S.C. § 193 (1970), referred to above. As Judge Clark pointed out in Saunders, this statute has been in force since 1799 without amendment 1 Stat. 670 (1799).

      . It was fairly disputed whether the importer remained liable at all, see 309 F.2d at 67, although the court assumed this arguendo.

      . There is no evidence that Herman was insolvent when Taub advanced the duties, except for the $128.11 paid by Taub on April 7, see note 2 to the majority opinion.

      . The Court there said :
      Speed in making entry is vital, because goods cannot proceed to their ultimate destination until its completion. Apart from the fact that importers cannot always or even often make entries in person, the procedure makes demands upon skill and experience. The specialist in these services is the customhouse broker. In addition, he advances the duty in order that the goods may be cleared. 19 U.S.C. § 1505, 19 U.S.C.A. § 1505. The competence of the broker also bears on the efficient collection of customs duties in that the likelihood of additional assessment or refund after final determination of the duty is greatly lessened by accuracy in the tentative computation.
      322 U.S. at 204.

      . I am not at all clear that, as the majority suggest, a customs broker can protect itself in the situation here presented by the simple expedient of becoming a “surety on the importer’s customs duty bond.” Apart from the facts that customs brokers may not wish to assume such a continuing contingent liability and would doubtless demand compensation for doing so, I read 19 C.F.R. § 8.28(b) as requiring deposit of the estimated duties even when a bond has been filed. When, as here, the issue concerns the estimated duties already paid rather than liability under the bond, I fail to see what significance there would be in the customs broker’s having gone surety on the latter.


author: DUNIWAY, Circuit Judge:

text:
    Donella DENNIS, Appellant, v. Winton M. BLOUNT, Postmaster General, United States Postal Service, United States Postal Service, Appellees.
    No. 72-1639.
    United States Court of Appeals, Ninth Circuit.
    May 31, 1974.

      Paul M. Posner (argued), Beverly Hills, Cal., for appellant.
    Alan Peryam (argued), Matthew A. Schumacher, Asst. U. S. Attys., Los Angeles, Cal., for appellees.
    Before D.UNIWAY, KILKENNY and GOODWIN, Circuit Judges.
   OPINION

DUNIWAY, Circuit Judge:

Appel ant Ms. Dennis, a postal employee, was discharged. She exhausted her administrative remedies and then brought this action to set aside the discharge. On motion for summary judgment, based upon the administrative record, the district court entered judgment against her. She appeals, and we affirm.

The pertinent statute is 5 U.S.C. § 7512, made applicable to appellant by Executive Order 10,988 of January 17, 1962 and Executive Order 11,491 of October 29, 1969. Under the statute, Ms. Dennis could be discharged “only for such cause as will promote the efficiency of the service.” The same language appears in the Lloyd-LaFollette Act, 5 U.S.C. § 7501.

We set out in the margin pertinent parts of the letter which was sent to Ms. Dennis on June 5, 1970, initiating proceedings culminating in her discharge. Ms. Dennis did not respond, and on July 6, 1970, a notice was sent to her, reading in part as follows:

After careful consideration of the charge it has been decided that Charge No. 1, which is supported by substantial evidence, is sustained and warrants your removal. Accordingly, you will be removed from the Postal Service effective July 29,1970.
The elements of your past record, as set forth in detail in the letter of proposed adverse action, were also considered in deciding upon the penalty to be imposed.

Ms. Dennis appealed, but she at no time contested the accuracy of the charges and past record as set out in the June 5, 1970, letter, or the validity of the debt.

The specific charge that triggered disciplinary action is based upon Postal Regulations, particularly 39 C.F.R. § 742.735-29 (d). There are similar provisions in the Civil Service Regulations, 5 C.F.R. § 735.207. The same regulation was before us in Robinson v. Blount, 9 Cir., 1973, 472 F.2d 839. That case answers one of Dennis’ árguments —that she paid the debt while her administrative appeal was pending and therefore should not have been discharged. A similar argument was made in Robinson, based on Robinson’s having belatedly provided for payment of his debt through a wage earner’s plan under the Bankruptcy Act, and rejected.

The other arguments made by Ms. Dennis were not made or considered in Robinson. Her principal contention is that she cannot be discharged for failure to pay a private debt not reduced to judgment. She buttresses this argument by urging that the Post Office has no legitimate interest in whether she has failed to pay a single debt. Much of her argument is wrapped in notions of constitutional rights. No such rights were invaded here. Ms. Dennis was not discharged for exercising a constitutional right. Thus the cases on which she relies are not applicable here. In Pickering v. Board of Education, 1968, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811, a teacher was fired for exercising his First Amendment rights of free speech by writing a letter to the papers criticizing the school board. In Gardner v. Broderick, 1968, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082, a policeman was fired for refusing to waive his Fifth Amendment privilege against self-incrimination. In Spevack v. Klein, 1967, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574, a lawyer was disbarred for asserting the same privilege. Wieman v. Updegraff, 1952, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216, is a loyalty oath case, involving the due process clause of the Fourteenth Amendment. Ms. Dennis does not, and could not, claim a constitutional right not to pay a just debt. Moreover, as the opinions in Arnett v. Kennedy, 1974, - U.S. -, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), demonstrate, even the exercise of a constitutional right can, in a particular setting, be cause for discharge.

Thus the only question is one of statutory construction: do the grounds for Ms. Dennis’ discharge fall within the language of § 7512? That language was held sufficiently definite in Arnett v. Kennedy, supra,. We hold that they do. This case does not involve a discharge for failure to pay a single debt. That was merely the catalyst that initiated the discharge. The basis for the discharge was the “charge” plus Ms. Dennis’ past record. We have no doubt that, taken together, these grounds fall within § 7512. The Post Office can take into account the failure of its employees to pay their just debts. Their wages are not subject to garnishment and it would reflect upon the Service if its employees could use their employment as a means of defeating their creditors. See Carter v. Forrestal, 1949, 85 U.S.App.D.C. 53, 175 F.2d 364, 366; McEachern v. Macy, 4 Cir., 1965, 341 F.2d 895, aff’g W.D.S.C., 1964, 233 F.Supp. 516; Jenkins v. Macy, 8 Cir. 1966, 357 F.2d 62, 70, aff’g E.D.Mo., 1964, 237 F.Supp. 60; Non-Resident Taxpayers Ass’n v. Municipality of Philadelphia, 3 Cir., 1973, 478 F.2d 457, 460. Cf. Norton v. Macy, 1969, 135 U.S.App.D.C. 214, 417 F.2d 1161, 1168.

We decline to rule on the tendered question — discharge for not paying a single debt not reduced to judgment, because this is not such a case. White v. Bloomberg, D.Md., 1972, 345 F.Supp. 133, 148, Ms. Dennis’ bellweather ease, does not fit our factual mold. It is to be distinguished on at least two important grounds: there (1) the charges related to the non-payment of a single obligation, and (2) the employee disputed the bona fides of the debt.

Ms. Dennis also argues that she has been deprived of due process and equal protection under the principles articulated in Richardson v. Belcher, 1971, 404 U.S. 78, 81, 92 S.Ct. 254, 30 L.Ed.2d 231, and Bolling v. Sharpe, 1954, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884.

The main thrust of her constitutional argument is that while she is a federal employee in California and subject to the postal regulation with reference to prompt payment of debts, her fellow Californians exriployed by the state or private sector could not be discharged for failure to pay a debt and, under Cal.Civ.Pro.Code § 690.6 (West, Supp. 1974), her wages would be exempt from any type of garnishment except for debts incurred “ . . . for the common necessaries of life.” She urges that all of her wages were required in providing the necessaries for her family of seven children, and that the Cal-State Finance indebtedness was not for “the common necessaries of life.” Therefore, under California law she would be shielded from the impact of discharge and garnishment. She employs this rationale to support her claim of an equal protection violation.

At the outset, it seems clear that there is a valid distinction between federal and non-federal employees. Of more than ordinary significance is the fact that federal employees are not subject to garnishment, while one-half the wages of the other Californians are normally subject to such proceedings. See Cal.Civ.Pr.Code § 690.6 (West, Supp. 1974). No doubt, the government could have made its employees’ wages subject to a state garnishment. Instead, however, it chose to protect its employees from the harsh impact of garnishment and its Postal Department promulgated the far less stringent regulation requiring employees to pay their just financial obligations. The challenged regulations clearly recognize this federal employee advantage. In our view, the mere fact that federal employees, such as appellant, may work under rules and regulations which differ from those governing persons engaged in state or private employment does not, in itself, point to an equal protection-due process defect within the meaning of the Fifth Amendment.

If the national government were required to tailor its regulations governing its employees to those of each of the fifty states at the risk of having its regulations held invalid if it did not do so, administration of the federal civil service could be reduced to a shambles. If any of the provisions of the Constitution are applicable here, they are the necessary and proper clause and the supremacy clause of the Constitution, not the equal protection-due process clauses.

Likewise, appellant’s due process argument on the basis of Sniadach v. Family Finance Corp., 1969, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349, is to no avail. Sniadach is a garnishment case in which the court held that an employee’s wages were not subject to garnishment without first providing an opportunity to be heard. Even if the law in Sniadach could be applied to our facts, the procedures outlined in the regulations, and followed by the Post Office, were proper. The disciplinary provision of the regulations does not come into play until the debt has either been reduced to judgment or the employee acknowledges the debt. The Post Office takes no action if the employee disputes indebtedness. Even if there is a judgment or if the employee acknowledges the debt, he is not summarily dismissed, as this record demonstrates, but may work out some method of payment.

Other cases cited by appellant have received our analysis. While, at first glance, a few of them seem to be helpful, a closer study reveals their inapplicability.

A few tag ends. Even conceding, which we do not, that title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq. is relevant, the appellant is in no position to claim its protection. A person may not maintain a suit for redress in the federal courts under the Civil Rights Act until she has first exhausted all the available avenues of potential administrative relief. Love v. Pullman Co., 1972, 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679. The applicability of this Act was not presented to either the Post Office Department or the United States Civil Service Commission.

Neither can we consider the Truth in Lending Act, 15 U.S.C. § 1601 et seq. Even though the Act might have some relevance to these facts, a point which we do not decide, a violation of the Act is not charged in appellant’s complaint.

The district court correctly confined itself to considering the administrative record. The standard of review is narrow.

Since the record presents no genuine issue of fact, the granting of the summary judgment was proper.

Affirmed.

KILKENNY, Circuit Judge, concurs in the result.

      . “This is advance notice to you of at least 35 days from the receipt of this letter that it is proposed to remove you from the Postal Service, suspend without pay for such period as may be administratively decided, or to take such other disciplinary action as may be deemed warranted for the following reason (s):
      CHARGE NO 1
      You are charged with failure to pay your just debts as contracted as evidenced by the following debt complaint received in this office from your creditor.
      DATE
      CREDITOR
      CURRENT BALANCE
      March 24, 1970
      Cal State Finance Co.
      $176.26
      In addition to the above, the following elements of your past record will be considered in determining the extent of disciplinary action should the current charge be sustained:
      On February 8, 1969 you were issued a letter of warning for failure to pay your just debts as contracted.
      You were issued a letter of warning on July 3, 1969 for being absent without leave.
      A notice of proposed adverse action was issued to you June 6, 1969 for failure to pay your just debts as contracted. As a result of that charge, you were suspended from duty without pay on July 31, 1969. On November 20, 1969, you were issued a notice of proposed adverse action for fraudulently obtaining $2,659 in Aid to Families with Dependent Children’s Fund by not reporting your employment with the Post Office Department to the Department of Social Services. As a result of that charge you were suspended from duty without pay from February 25, 1970, through February 27, 1970.
      On January 16, 1970 you were issued a notice of proposed adverse action for failure to pay your just debts as contracted. As a result of that charge, you were suspended from duty without pay from March 12, 1970 to March 14, 1970.”

      . (cl) Indebtedness. (1) An employee shall pay each just financial obligation in a proper and timely manner. . . . For the purpose of this section, a “just financial obligation” means one acknowledged by the employee or reduced to final judgment by a court, and “in a proper and timely manner” means in a manner' which the Department determines does not, under the circumstances, reflect adversely on the Government as his employer. In the event of dispute between an employee and an alleged creditor, this section does not require the Department to determine the validity or amount of the disputed debt or to institute disciplinary proceedings.
      (2) Employees shall not borrow money or contract debts which they have no reasonable prospect of being able to pay. They are expected to conduct themselves honorably, deal honestly with others, and meet their obligations promptly so that there will be no cause for embarrassment or criticism. The fact that the wages or salary of Government employees cannot be trusted or garnished by legal process shall not be used by employees to avoid the payment of their just debts.
      * * * * *
      (7) Failure to pay just financial obligations will be regarded as cause for disciplinary action.

      . Love presented a different factual background, but announced tlie rule just stated.

      . This court has, to some extent, broadened its concept of the scope of review in such a case as this.
      In Seebach v. Cullen, 9 Cir. 1964, 338 F.2d 663; Brancadora v. FNMA, 9 Cir., 1965, 344 F.2d 933; Taylor v. United States Civil Service Commission, 9 Cir., 1967, 374 F.2d 466; Mancilla v. United States, 9 Cir., 1967, 382 F.2d 269; and Benson v. United States, 9 Cir., 1970, 421 F.2d 515, we said that the only issue was whether the agencies had substantially complied with statutory and administrative procedures. In Frommhagen v. Klein, 9 Cir., 1972, 456 F.2d 1391, we also considered whether the agency’s action was arbitrary or capricious. In Burke v. Carpenter, 9 Cir., 1967, 387 F.2d 259; and Toohey v. Nitze, 9 Cir., 1970, 429 F.2d 1332, we also considered whether the action was an abuse of discretion and whether factual determinations were supported by substantial evidence. However, even under the broadest scope, as set forth in Toohey, the scope of review is narrow. As we emphasized in Toohey at 1334, “Dismissal from federal emxdoyment is largely a matter of executive agency discretion. . . . The scope of judicial review is narrow.”


author: MULLIGAN, Circuit Judge:

text:
    Stanley V. TUCKER, Plaintiff-Appellant, v. Joseph D. MAHER et al., Defendants-Appellees.
    No. 663, Docket 73-2451.
    United States Court of Appeals, Second Circuit.
    Argued March 18, 1974.
    Decided May 7, 1974.

      Stanley V. Tucker, pro se.
    Maurice T. Fitzmaurice, Hartford, Conn. (Regnier, Moller & Taylor, Hartford, Conn., on the brief), for defendants-appellees.
    Before LUMBARD, FEINBERG and MULLIGAN, Circuit Judges.
   MULLIGAN, Circuit Judge:

The appellant, Stanley V. Tucker, acting pro se, commenced an action in the United States District Court for the District of Connecticut on April 9, 1970, challenging the constitutionality of Conn.Gen.Stat.Ann. § 49-33, which provides for the filing of materialmen’s liens that become encumbrances upon title to real property. Tucker is a real estate developer in Connecticut and a materialman’s lien had been filed against certain of his real property in Hartford, Connecticut on March 3, 1970, by an electrical subcontractor, L & M Electric Co., Inc. Subsequently, the subcontractor sued Tucker for $3000 damages in a civil suit in the state court of Connecticut arising from work performed in the construction of an apartment house where Tucker was allegedly acting as a general contractor. The materialman’s lien was released and, in conjunction with the state suit, a real estate attachment was substituted as security on April 17, 1970. Tucker then amended his federal complaint to challenge the constitutionality of Connecticut’s prejudgment attachment statutes, in particular Conn.Gen.Stat.Ann. §§ 52-279, 52-280 & 52-285. He sought both injunctive and declaratory relief, as well as $50,000 damages, by reason of an alleged deprivation of property in violation of his constitutional rights to due process and equal protection of law under the fourteenth amendment. In addition to L & M Electric Co., the complaint named as defendants Joseph D. Maher and Lawrence J. Levesque, who are officers of L & M; William J. Kotchen, who is an attorney representing the corporation and its officers; and Anthony DeLaura, who is a Deputy to the Sheriff of Hartford. All are alleged to have participated in the procurement and filing of either the materialman’s lien or the attachment.

On November 16, 1970, Chief Judge M. Joseph Blumenfeld dismissed the complaint on the ground that there was no subject matter jurisdiction under 28 U.S.C. § 1343(3), relying primarily upon the personal rights-property rights dichotomy drawn in Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969). This Court affirmed the dismissal, Tucker v. Maher, 441 F.2d 740 (1971) (per curiam). After the affirmance, the Supreme Court decided Lynch v. Household Fin. Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), which rejected the distinction made in Eisen. On April 17, 1972, the Supreme Court vacated the judgment in this case and remanded it to this Court, 405 U.S. 1052, 92 S.Ct. 1489, 31 L.Ed.2d 787, which in turn remanded to the District Court for the District of Connecticut, 471 F.2d 1370 (2 Cir. 1973) (per curiam).

On July 6, 1973, a three-judge court consisting of Senior Circuit Judge J. Joseph Smith and District Judges M. Joseph Blumenfeld and Jon O. Newman, once again dismissed the complaint. Civ. No. 13,786 (D.Conn). The. court held that the request for injunctive relief was moot and inappropriate since the Connecticut General Assembly had implicitly annulled the challenged attachment statutes by enacting a new statute which became effective on May 30, 1973 and which provided for an adversary hearing prior to attachment (Public Act No. 73-431, 1973 Session). The court added as an additional reason for its declination of injunctive relief the fact that the defendants had already released the attachment challenged in the suit. The civil suit in the Connecticut court which prompted the attachment was settled when Tucker paid a compromise amount to the appellees.

On appeal the sole contention is that the court below erred in dismissing the complaint without a trial on the damage issue. Relying on Kavanewsky v. Greater Dev. Co., Civ. No. B-587 (D.Conn. July 6, 1973), the court held that “there is no basis for the assertion of a damage claim against those who, acting in good faith, secured an attachment under the then existing statutes.” Kavanewsky, in turn, depended upon an opinion of Judge Newman, Pfotzer v. Dorr-Oliver, Inc., Civ. No. B-587 (D.Conn. May 11, 1973) which held that in the absence of any showing that persons have acted in bad faith in securing an attachment, they will not be required to respond in damages for proceeding under statutes that had not then been ruled invalid.

The initial question we face is whether or not this court has jurisdiction to hear this appeal which is at least nominally from a judgment of dismissal entered by a three-judge court. The fact that all of the parties agree that we do is consoling but obviously they cannot confer jurisdiction upon us. The question is vexing and the rules of the game are imprecise. Hopefully, the exercise will become obsolete. See generally James L. Oakes, Second Circuit Note 1972 Term — Foreward: The Three-Judge Court and Direct Appeals to the Second Circuit, 48 St. John’s L.Rev. 205 (1973).

The Supreme Court has exclusive appellate jurisdiction from orders “granting or denying ... an interlocutory or permanent injunction. . . .” 28 U.S.C. § 1253; see Lynch v. Household Fin. Corp., supra, 405 U.S. at 541, n. 5. In our view, the appeal here from the dismissal of the complaint is not, in essence, an appeal from such an order. The release of the materialman’s lien and the attachment prior to judgment, as well as the enactment of a new statute (two days after the argument before the court), which in effect repealed the legislation challenged by the complainant, rendered moot the injunctive relief which was sought. Hernandez v. European Auto Collision, Inc., 487 F.2d 378, 386-387 (2d Cir. 1973); Kerrigan v. Boucher, 450 F.2d 487 (2d Cir. 1973); see Rosado v. Wyman, 304 F.Supp. 1354 (E.D.N.Y.), aff’d, 414 F.2d 170 (2d Cir. 1969) rev’d on other grounds, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). The appellant here does not seek review of the order denying injunctive relief but is instead concerned with the claim for damages. The appeal therefore is properly to this court. See Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 763, 26 L.Ed.2d 378 (1970) (per curiam); 9 J. Moore, Federal Practice jf 110.03 [3], at 77-85 (2d ed. 1973).

Had the fact of release and the repeal of the statute which was challenged been made known to the court prior to the argument, it might well have been dissolved, as happened in Rosado v. Wyman, supra, since the injunctive relief sought was obviously mooted. In such case the appeal would clearly be to this court. In Rosado, we affirmed the dissolution, 414 F.2d 170 (1969), rev’d on another issue, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), after the Supreme Court had dismissed a direct appeal from the judgment of the three-judge court for want of jurisdiction, 395 U.S. 826, 89 S.Ct. 2134, 23 L.Ed.2d 739 (1969) (per curiam). Having heard the argument as a three-judge court, the court did not dissolve itself. It would be an exercise in futility to send the case back to dissolve the court and inevitably have a single judge reach the same conclusion. See 9 Moore’s Federal Practice ¶1 110.03 [3], at 77-79 (2d ed. 1973). See also our discussion in Jordan v. Fusari, 496 F.2d 646 (1974). In view of the unusual procedural posture of the case, the fact that the litigation has persisted for four years and the Supreme Court’s admonishment that its appellate jurisdiction is to be narrowly construed, Gunn v. University Comm. to End the War, 399 U.S. 383, 387, 90 S.Ct 2013, 26 L.Ed.2d 684 (1970), we believe that the appeal should now be decided in this forum.

The question of what constitutes a constitutional tort under § 1983 has provoked learned comment but actual litigation has not provided us with much precedential material. We can, however, at the outset rather easily dispose of the claim against the Deputy Sheriff DeLaura. There is nothing in the record to suggest that he was acting in bad faith. His sole role here was to serve a copy of the writ of attachment upon the Clerk of the Town of Hartford. There is no indication that the writ was facially defective, that he was improperly motivated, or that he deviated from the statutory procedure. This is not a case of a peace officer who is making an arrest claiming that he had probable cause to believe that a crime was being committed. In such a case there may be some question of good faith which will raise a factual question. Here, there is none. DeLaura was performing a ministerial function which he was obligated to do.

The only basis for Tucker’s claim against DeLaura is that the statute under which he proceeded was unconstitutional. It is well settled, however, that a peace officer cannot be charged with the responsibility of predicting the future course of constitutional law. Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). In the absence of bad faith, it is therefore apparent that no action lies against DeLaura under § 1983. There is abundant authority for this proposition even where a warrantless arrest is made. See, e. g., Anderson v. DeCristofalo, 494 F.2d 321 (2d Cir. 1974) (per curiam); Hill v. Rowland, 474 F.2d 1374 (4th Cir. 1973); Rodriguez v. Jones, 473 F.2d 599 (5th Cir.), cert. denied, 412 U.S. 953, 93 S.Ct. 3023, 37 L.Ed.2d 1007 (1973). A fortiori, where an attachment is effected by a sheriff filing a writ with a town clerk upon an affidavit made by a party which is ancillary to a state civil action, we have no hesitation in finding that he has no personal tort liability under § 1983.

The role of the private party appellees, litigants and their counsel is, of course, distinguishable, but upon analysis we find no sound basis for finding liability and no reason to remand for trial. The only case we have found squarely in point so holds. In Rios v. Cessna Fin. Corp., 488 F.2d 25 (10th Cir. 1973), a finance corporation brought a replevin action which resulted in the seizing of airplanes owned by the plaintiff. The New Mexico statute was later declared unconstitutional in so far as it provided for a prejudgment taking of property without notice. The court held:

A statute is presumed to be constitutional until struck down as unconstitutional. Cessna Finance followed the statutory procedure in bringing its replevin action. We therefore hold that § 1983 is not applicable because damages are not collectible in a civil right action against one who followed a statutory procedure presumed to be constitutional. . . . And although Rios now questions the good faith of Cessna Finance in proceeding under the replevin laws of New Mexico, we believe no factual issue on the question exists.

488 F.2d at 28 (citation deleted).

The only case we have found in this Circuit which is instructive is Fleming v. McEnany, 491 F.2d 1353 (1974). There a plaintiff sought to recover damages against a private citizen and her attorney for false imprisonment. A civil capias writ and a complaint had been issued which resulted in the plaintiff’s incarceration in a Vermont County Jail for a twenty-day period. The federal complaint urged that the Vermont statute violated due process under the fourteenth amendment since it made no provision for a judicial hearing prior to arrest. Sniadach v. Family Fin. Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). The majority, while admitting that legal defenses afforded lawyers and clients for the issuance of a defective capias are not as broad as those which protect state officers, nonetheless held that under Vermont law there was no tort liability merely because the statute under which the plaintiff was arrested was later held to be unconstitutional. The court rejected the theory that counsel should have anticipated the invalidation of the Vermont statute on the basis of the prior decision of the Supreme Court in Sniadach.

Fleming is distinguishable, of course, since it was a diversity action with the court applying Vermont state law to determine whether or not tort liability for false imprisonment existed. While it was not a § 1983 case, a review of relevant authority indicates that some nexus does exist between the nebulous § 1983 tort and its conventional common law counterpart. This much was made initially clear by Mr. Justice Douglas in Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961), when he indicated that the statute “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” See also Pierson v. Ray, supra, 386 U.S. at 556-557.

Later, in Adickes v. S. H. Kress & Co., 398 U.S. 144, 231-233, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), Mr. Justice Brennan in his separate opinion, concurring in part and dissenting in part, pointed out that the common law is not an infallible guide. He argued that where there has been a denial of equal protection as the result of racial discrimination, the central evil that § 1983 was designed to eradicate, a plaintiff should prevail upon the mere showing of the proved violation even if the discriminator was unaware of the constitutional dimension of his wrong doing. It seems to be rather well established that in such eases no wrongful intent, i. e., an intention to deprive a person-of his constitutional rights, is necessary. Monroe v. Pape, supra, 365 U.S. at 187.

This approach was taken by Judge Wyzanski in Rose Chalet Functions Corp. v. Evans, 264 F.Supp. 790 (D.Mass. 1967), and also by Judge Goldberg in Whirl v. Kern, 407 F.2d 781 (5th Cir.), cert. denied, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177 (1969), which was cited with approval by Mr. Justice Brennan in Adickes. It must be emphasized that there is no element of discrimination, racial or otherwise, in the case before us. Nor is there any deprivation of personal liberty involved. Although Lynch v. Household Fin. Corp., supra, does give a federal court jurisdiction under § 1343(3) of controversies involving deprivation of property, as well as those of personal liberty, the cases we have referred to indicate that it does not follow that the element of § 1983 scienter is identical.

Mr. Justice Brennan in Adickes pointed out that “[i]n some types of cases where the wrong under § 1983 is closely analogous to a wrong recognized in the law of torts, it is appropriate for the federal court to apply the relevant tort doctrines as to the bearing of particular mental elements on the existence and amount of liability.” 398 U.S. at 231-232. Thus, while normally the requirement of ulterior purpose or improper motive is not necessary to establish a § 1983 violation, as Judge Goldberg observed in Whirl v. Kern, supra, 407 F.2d at 787-788: “[W]hen an essential element of the wrong itself under well established principles of tort law includes the demonstration of an improper motive as in malicious prosecution, . then such principle becomes a part of sec. 1983.”

The claim here, in essence, is one of malicious prosecution. The major thrust of the complaint is that the appellees wrongfully obtained a materialman’s lien and commenced a civil action against the appellant which was baseless, and in so doing they utilized the provisional remedy of attachment which was unconstitutional, since the statute provided no prior opportunity for him to contest the debt and thus deprived him of the use of his property. There is no doubt but that a wrongful deprivation of property in a civil proceeding may be the basis for a subsequent common law action for malicious use of civil process. Restatement of Torts § 677 (1938); W. Prosser, Law of Torts § 114 (3d ed. 1969). However, the complaint here is fatally defective, in our view, and was properly dismissed.

The common law tort of malicious use of civil process does require that the plaintiff establish an improper motive on the part of the defendant. More precisely, the plaintiff must establish that the civil proceedings were initiated without probable cause and primarily for a purpose other than that of securing the adjudication of the claim on which the proceedings were based. Restatement of Torts, supra-, W. Prosser, Law of Torts, supra. The Connecticut statutes involved here to our knowledge have never been declared unconstitutional. The court below never reached the issue because the controversy had become mooted. However, assuming their unconstitutionality, we cannot find that their utilization by the appellees constitutes the scienter required to establish the tort.

The corporate and individual appellees apparently acted on the advice of counsel and no evil intent can be properly ascribed to them. See Restatement of Torts, supra, § 675, Comment on clause (b) (1938). Nor can we attribute any sinister motive to counsel. He utilized statutory procedures which were the traditional legal processes employed by contractors and materialmen to collect debts incurred in the course of their business activities. The statutes had not then nor have they been since declared unconstitutional. On the contrary, on February 25, 1971, some ten months after the complaint was amended to challenge the constitutionality of the prejudgment attachment statutes of Connecticut (Conn.Gen.Stat.Ann. § 52-279 et seq.), District Judge Zampano held that they were constitutional, distinguishing Sniadach. Black Watch Farms, Inc. v. Dick, 323 F.Supp. 100 (D.Conn.1971). Because the Supreme Court in Sniadach held another statute in another State unconstitutional, we are urged in effect to find that counsel should have attributed constitutional infirmity to the Connecticut statutes and that his failure to do so is tantamount to the institution of civil proceedings without probable cause and for an improper motive. We cannot accept this as a reasonable proposition.

Constitutional law, particularly in this difficult and confusing area of state action and due process, is hardly predictable with any degree of certainty. The very recent history of such constitutional litigation in this circuit should convincingly indicate that the role of the prophet is precarious at best. We think, as a majority of this court did in Fleming v. McEnany, supra, that counsel here had a right to rely on the statutory law of the jurisdiction which had not been repealed or replaced, or declared unconstitutional by any competent court at the time it was utilized. If counsel had failed to file the lien to protect his client, he might well be exposed to personal liability. State legislation is under increasing constitutional attack but until the assault ir. successful, attorneys should be entitled to rely upon the presumption of constitutionality. Certainly their dependence upon a statute later found vulnerable is not to be equated with the malevolent intent basic to this particular tort, which Professor Prosser tells us is not even recognized in a large minority of states. W. Prosser, Law of Torts, swpra, at 870.

Aside from the claimed unconstitutionality of the statutes, there is nothing of substance in the complaint to justify any inference of improper motive. The appellant urged that the material-man’s lien was defective in that it did not comply with pertinent time limitations in the statute. However, it is significant that the statutory law (Conn.Gen.Stat.Ann. § 49-51) provided him with a remedy and an opportunity to contest the lien which he never exercised. He further claims that he never owed the money but he never established this in any court and in fact he settled the claim by payment. The tort of malicious use of civil process also requires as an essential element that the civil action giving rise to the tort claim be terminated in the plaintiff’s favor. Restatement of Torts, supra, § 677; W. Prosser, Law of Torts, supra, at 873. This the appellant of course has failed to establish. The lien and attachment procedures here employed were merely ancillary to an underlying contractual claim. The merits of that claim have never been decided in favor of the plaintiff. He deliberately chose not to contest them and in fact paid a sum of money in settlement. In our view, he therefore has no § 1983 claim. There is nothing for a jury to determine and we therefore affirm.

      . This is one of three cases which were dismissed by the District Court for the District of Connecticut on November 16, 1970, the other cases being Tucker v. Connecticut Mason Contractors, Inc., Civ. No. 13,785, and Tucker v. Anderson, Civ. No. 13,787. In each case, Tucker challenged the constitutionality of Connecticut’s prejudgment attachment statutes. Anderson involved an attachment of Tucker’s real property obtained in conjunction with a civil suit to recover $9000 in arrearages for child support. The attachment involved in Mason Contractors was obtained by a materialman.

      . See, e. g., Shapo, Constitutional Tort: Monroe v. Pape, and the Frontiers Beyond, 60 Nw.U.L.Rev. 277 (1965); Comment, Choice of Law under Section 1983, 37 U.Chi.L.Rev. 494 (1970); Comment, Civil Actions for Damages Under the Federal Civil Rights Statutes, 45 Texas L.Rev. 1015 (1967); Note, Constitutional Torts: Section 1983 Redress for the Deprived Debtor, 14 Wm. & Mary L.Rev. 627 (1973).

      . See also Chief Judge Kaufman’s dissenting opinion in Fleming v. McEnany, 491 F.2d 1353, 1360 (1974), which emphasizes the primacy of concern for rights of personal liberty as compared with property deprivation.

      . In Shirley v. State Nat’l Bank, 493 F.2d 739 (2d Cir. 1974) and Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974), after both panels had split 2-1 over state action issues, rehearings en banc were denied on March 29, 1974 by votes of 5-3. In Jackson v. Statler Foundation, 496 F.2d 623 (2d Cir. 1974), again a state action case, a rehearing en banc was also denied by a failure of a majority of the active judges to vote in favor of such reconsideration; the vote was 4-4, 496 F.2d at 636.