author:
SIMPSON, Circuit Judge:
      CLARK, Circuit Judge

text:
    Lisellotte MOYER, etc., Plaintiff-Appellant, v. MARTIN MARIETTA CORP., etc., et al., Defendants-Appellees.
    No. 29550.
    United States Court of Appeals, Fifth Circuit.
    June 18, 1973.
    Rehearing Denied July 13, 1973.

      See also 306 F.Supp. 390.
    Hawkesworth & Kay, Arthur J. Hawkesworth, Jr., Horton & Schwartz, Alan R. Schwartz, Miami, Fla., for plaintiff-appellant.
    Edward A. Perse, Carey, Dwyer, Austin, Cole & Selwood, Miami, Fla., for Martin Marietta Corp.
    A. Lee Bradford, Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell, Miami, Fla., for Aircraft Mechanics, Inc.
    Robert W. Rust, U. S. Atty., Miami, Fla., Philip Silverman, Daniel Joseph, Alan S. Rosenthal, Michael C. Farrar, Attys., Dept, of Justice, Washington, D. C., for U. S. A.
    Before GODBOLD, SIMPSON and CLARK, Circuit Judges.
   SIMPSON, Circuit Judge:

Larry Eugene Moyer, a test pilot employed by American Airmotive, Inc., at Miami, Florida, was preparing to fly a B-57A aircraft owned by the United States of America on April 22, 1964, when the ejection seat was triggered while the plane was still on the ground. The pilot was thrown into the air by the explosive charge associated with the ejection seat and was killed instantly when he fell on the paved runway.

The widow and administratrix of the decedent, Lisellotte Moyer, brought suit for wrongful death in the court below, against the manufacturer of the aircraft, Martin Marietta Corporation (Martin) , the manufacturer of the ejection seat, Aircraft Mechanics, Inc. (Aircraft), and the United States. Jurisdiction for suit against the corporate defendants was based on diversity of citizenship. The jurisdictional basis for the action against the United States was Title 28 U.S.C. Sec. 1346(b) and the Federal Tort Claims Act, Title 28 U.S.C. Secs. 2672-2680.

The claims against Martin and Aircraft were tried to a jury at the same time the court tried the tort claim against the United States. At the close of the plaintiff’s case in chief, the trial judge directed a verdict in favor of the two corporate defendants. The “Motion for Directed Verdict” of the United States was denied and the trial continued, the jury remaining as an advisory jury pursuant to Rule 39(e), F.R.Civ.P. At the conclusion of the evidence the jury found in answer to special interrogatories that the United States had been negligent both in the furnishing of an improperly designed aircraft and in preparing and issuing Technical Order No. 876, that this negligence was a “legal cause” of Moyer’s death, that Moyer had not been contributively negligent, and that Mrs. Moyer’s damages were in the amount of $700,000.

Inasmuch as the verdict was purely advisory, the trial judge was required to make an independent decision as to the issues against the United States. He dismissed the action on the ground that it was barred by the “discretionary function” exception to the Federal Tort Claims Act, Title 28 U.S.C. Sec. 2680(a). Moyer v. United States, S.D. Fla.1969, 302 F.Supp. 1235. These rulings, as well as the instructed verdicts against the corporate defendants, are challenged by this appeal. We find merit in appellant’s contentions and reverse and remand for further proceedings.

UNDISPUTED FACTS

The B-57A aircraft in question, No. AF-52-1469 sustained damage to its fuselage in the course of an emergency landing in Alaska and was sent to American Airmotive, Inc., in Miami, Florida, for repairs. In the course of this work the pilot’s seat was removed and placed on a bench. While the aircraft was undergoing structural repairs by Airmotive, the United States Air Force issued Technical Order No. lB-h 7-876 directing several modifications to the ejection seat. Upon learning of the new technical order Airmotive requested permission of the Air Force to perform the modifications while the plane was still at its Miami plant. The Air Force approved this request in March, 1964, and Airmotive assigned its employee, A1 Bass, to modify the ejection seat.

The purpose of the technical order was to install a new type of trigger guard for the ejection seat mechanism, which was located on the right-hand armrest. Bass, who was qualified as a sheet metal worker, carried out the modifications called for in paragraphs “j” through “I” of the technical order. He then proceeded to perform the operations directed by paragraphs “q” and “r” of the order. These latter paragraphs required the drilling of a hole through the right-hand armrest support to facilitate the installation of a down stop and the installation of a specified bolt in that hole. The purpose of the bolt, which acted as a down stop, was to prevent a new safety pin, installed in the armrest, from hitting the seat bucket when the armrest was in the down position.

Bass made a mistake in locating and drilling a hole for the new bolt and ended up with a clearance adjacent to the newly installed bolt in excess of the specified one-eighth of an inch. He then consulted with his lead mechanic, Cohen, and the two men made two important, but incorrect decisions: (a) that this excessive clearance had to be corrected; and (b) that the only way to make the correction was to remove the armrest assembly from the seat and then to grind down the sleeve or collar on which the bolt rested. Bass and Cohen determined that the only way to remove the armrest assembly was to disassemble it from the bottom by removing a roll pin. This roll pin was designed to act as a stop so as to prevent the armrest support from slipping upward through the collar when the armrest was pulled up to the horizontal position by the pilot. Bass was required to use considerable force to remove the roll pin. After the pin was removed, he ground down the collar to insure the clearance specified by the technical order. In reassembling the armrest assembly, Bass neglected to replace the roll pin. The roll pin was found in Bass’ tool box after the fatal accident of April 22, 1964.

On April 22, 1964, prior to making a scheduled test flight in the B-57A aircraft, Moyer made the usual external inspection of the plane in the company of his ground mechanic, Seftchick. The pilot then climbed inside, pulled the ejection seat initiator pins, and climbed into the pilot’s seat. Moyer reached to his right and, while holding out with one hand a spring-loaded pin located in the collar, he jerked the armrest (which had been lowered to permit entry into the pilot’s seat) upward with the other hand. Because the spring-loaded pin was held out by Moyer, and because the roll pin was missing, the armrest did not stop at the horizontal position. As the armrest passed the horizontal position and headed towards the vertical position, it brought about the same action as if the trigger mechanism had been squeezed. Moyer and the seat were thrown one hundred feet into the air by the explosive charge. Moyer’s death followed.

Three factors interacted to cause the activation of the ejection mechanism while the aircraft was on the ground: (1) the pilot pulled the initiator pins, which activated the explosive component of the seat, before he was seated in the pilot’s seat; (2) the pilot held out the spring-loaded pin, which normally would have caught in a hole in the ascending armrest support and which would have stopped the armrest at some point near the horizontal; and (3) the ultimate, safety stop, the roll pin, which was meant to prevent this type of accident, had been removed and not replaced by Bass.

THE COMPLAINT

Mrs. Moyer’s complaint alleged, with respect to Martin, that the pilot’s seat and ejection mechanism had been negligently designed and manufactured in the following aspects: (1) the spring-loaded pin was too weak to catch and lock properly; (2) the roll pin was removable and not adequately marked as a safety feature; (3) the ejection mechanism was incorporated into the pilot’s right-hand armrest; and (4) the initiator pins were not identified by streamers or otherwise. The complaint also alleged a proximate causal relationship between the allegedly improper design and manufacture, or the selection of equipment for the B-57A aircraft and the death of Moyer caused by the ejection of the seat while the plane was on the ground on April 22, 1964, and resultant damages. Similar allegations of negligence and proximate causation were made against Aircraft Mechanics, Inc., the manufacturer of the seat and ejection mechanism.

Two theories for recovery were asserted by plaintiff against the United States. The first one alleged that Technical Order IB-57-876 was drafted in a vague, ambiguous and negligent manner in that it failed to provide adequate instructions for the modification of the right armrest of the pilot’s seat. The second alleged that the United States negligently furnished to American Air-motive, Inc., the aircraft and seat in question when it knew or should have known that the seat was improperly designed and manufactured in that: (1) the ejection mechanism was incorporated into the right-hand armrest which had to be moved up and down each time the pilot entered and left the aircraft; (2) the initiator pins meant to prevent inadvertent jettisoning of the ejection seat were not properly marked so as to warn of the danger inherent in their premature removal; and (3) the spring-loaded mechanism used to raise and lower the right armrest was inadequately designed because it failed to stop the armrest from inadvertently slipping into an ejection position. Finally, the complaint as to the United States alleged that as a proximate and direct result of the negligence of the United States the pilot’s seat was inadvertently ejected while the pilot was preparing the plane for takeoff causing Larry Eugene Moyer “great mental pain and suffering and ultimate death.”

THE ANSWERS

Martin answered the complaint by denials that it had negligently designed and equipped the B-57A aircraft in question. Martin alleged as an affirmative defense that Moyer’s negligence was the sole proximate cause of the premature activation of the ejection mechnism, or alternatively, that Moyer’s negligence contributed proximately to causing the fatal accident. These affirmative defenses were based upon the pilot’s alleged deviation from his flight manual by pulling the initiator pins before he had entered the pilot’s seat and by holding out the spring-loaded pin while raising the right armrest.

The United States answered by denial of the complaint’s charges as to negligence on its part, and by asserting that the complaint failed to state a claim upon which relief could be granted. The answer also asserted that the district court was without jurisdiction because the complaint did not set forth a claim for which the United States, if a private person, would be liable in accordance with the law of the place where the alleged negligence occurred; and finally that the negligence of plaintiff’s decedent was the sole proximate cause of the accident.

Aircraft answered by denying any negligence on its part of the design or manufacture of the ejection seat. Aircraft further alleged that between the time it manufactured and sold the seat and the time of the accident, the seat had been disassembled, serviced and modified to meet revised specifications of the United States Government. As did its co-defendants, Aircraft alleged that the negligence of the pilot proximately caused or contributed to causing the fatal accident. In addition, Aircraft asserted that the roll pin had been designed and manufactured as an integral safety aspect of the ejection seat system and installed in such a manner that it was virtually unremovable, pointing out in this respect that Bass was required to use a great deal of force in order to remove the roll pin from the ejection seat assembly.

THE MOTIONS FOR SUMMARY JUDGMENT

Martin and Aircraft moved for summary judgment on the ground that no material issue of fact with respect to the issue of proximate causation existed for jury determination. U.S. District Judge Eaton denied the motions on April 10, 1968. Concerning Martin’s motion for summary judgment, Judge Eaton’s order stated:

“The factual record in this case presents proximate cause issues to be decided by a jury. See General Dynamics Corp. v. Adams, 340 F.2d 271 (1965) and Cone v. Inter County Tel. & Tel. Co., 40 So.2d 148 (Fla., 1949) re: ‘foreseeability’.”

In disposing of Aircraft’s motion, he observed :

“Aircraft’s answer raises two defenses of intervention in the chain of causation: first, that the original design was changed, since the ejection seat was modified after it was sold; second, that when the seat was sold, the roll pin was in place and the removal of the roll pin by Airmotive’s employee was an independent intervening force which operates to relieve Aircraft of liability. Substantial proximate cause issues remain to be decided by a jury.”

THE DIRECTED VERDICTS FOR THE CORPORATE DEFENDANTS

Prior to trial, the jury empaneled for the corporate defendants was accepted by the United States as an advisory jury pursuant to Rule 39(c), Federal Rules of Civil Procedure. In the trial before a visiting judge, Senior Judge Layton, the presentation of the plaintiff’s case in chief required more than two weeks. When the plaintiff rested initially the trial judge directed a verdict for the two corporate defendants, noting, as we set forth supra, note 3 that:

“. . .on the question of intervening cause and weighing the facts of this case against the Florida law, I am of the view the convergence of a number of distinctly unusual and unrelated factors as necessary to the happening of this accident simply could not have been reasonably foreseen by either Martin Marietta or Aircraft Mechanics and were not happenings set in motion by the alleged negligence of the defendants.”

THE UNITED STATES’ MOTION TO DISMISS

After the two corporate defendants were eliminated from the proceedings by the directed verdicts in their favor, the trial continued as to the United States. The advisory jury found (as noted above) that the United States was negligent in delivering the aircraft to American Airmotive when it knew or should have known that the ejection seat had been improperly designed and manufactured and in the preparation and issuance of Technical Order No. IB-57-876. In addition, the advisory jury found a proximate causal relationship (“legal cause”) between the United States’ negligence and the death of Larry Eugene Moyer and an absence of contributory negligence on the decedent’s part. It assessed plaintiff’s damages at $700,000.-00.

The United States thereafter filed a motion to dismiss for lack of jurisdiction, relying upon the “discretionary function” exception to the Federal Tort Claims Act, 28 U.S.C. Sec. 2680(a) (Note 5, supra). In granting the motion, Judge Layton stated:

“The parties agree that critical to deciding whether particular acts of omissions by Government employees are protected by the ‘discretionary function’ exception is whether the acts or omissions occurred on a planning level or whether they occurred at The operational level. Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L. Ed. 1427 (1953). In the former case, the activities would be included within the purview of the discretionary function exception, and the plaintiff’s claim would be barred. However, if the acts complained of occurred at the operational level, then the full effect of Sec. 1346(b) would apply and the Government would have to respond as would a private person in a similar position. Indian Towing Co., Inc. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48, 1955; American Exchange Bank of Madison, Wis. v. United States, 257 F.2d 938, 78 A.L. R.2d 879 (7th Cir. 1958).
“As regards the selection of the B-57A type aircraft, and in particular the ejection seat and ejection mechanism to be employed in that aircraft, I find that these decisions reflect choices made on a planning level, which, in the most immediate sense, affect the political interests of the nation. These decisions, then, are protected by the ‘discretionary function’ exception defined in Sec. 2680(a).” 302 F.Supp. at 1237.

THE RELATIONSHIP BETWEEN PROXIMATE AND INTERVENING CAUSES .

A perceptive discussion of the relationship between the concepts of proximate cause and intervening cause appears in the Harper and James treatise on torts:

“By and large external forces will be regarded as intervening if they appear on the scene after defendant had acted unless perhaps their pending inevitability at the time of defendant’s negligent act or omission is made crystal clear. And when a new force (for which defendant is not responsible) ‘intervenes’ in this crude sense to bring about a result that defendant’s negligence would not otherwise have produced, defendant is generally held for that result only where the intervening force was foreseeable. As many cases put it, a new and unforeseeable force breaks the causal chain. A better analysis is to regard the intervening force as a risk or hazard and to ask whether its foreseeability was such as to make defendant’s act negligent with regard to it. It is better, in other words, to inquire whether defendant’s duty extends to such a risk as the intervening force, because the question in this form focuses attention on a more significant and less fictitious problem than that of cause.” (The Law of Torts, Sec. 20.5(5), Vol. 2, pages 1142-3)

Florida Jurisprudence summarizes the relationship between the two concepts under Florida law in the following language :

“The rule that the causal connection between a person’s negligence and an injury is broken by the intervention of a new, independent, and efficient intervening cause so that the negligence is not actionable is subject to the qualification that if an intervening cause was foreseen or reasonably might have been foreseen by the wrongdoer, his negligence may be considered the proximate cause of an injury, and he may be held liable, notwithstanding the intervening cause. That is, the intervention of independent intervening causes does not break causal connection if the intervention of such forces was itself probable or foreseeable.” 23 Fla.Jur. Negligence, Sec. 39, page 282. >

The Florida Supreme Court, on at least two occasions, has addressed itself to the foreseeability element of the proximate cause doctrine. In Cone v. Inter County Telephone and Telegraph Co., Fla., 1949, 40 So.2d 148, the plaintiff telephone company brought suit to recover payments made to one of its employees who had been injured by exploding gasoline. The defendant’s truck had been negligently operated on a public highway, thereby causing an accident with another vehicle which disrupted a nearby telephone pole and attached lines. The plaintiff’s employee was sent out to repair the damage and was injured when gasoline from the defendant’s truck exploded. In finding for the defendant, the Florida Supreme Court made the following observations with respect to the foreseeability aspect of the proximate cause doctrine:

“Not every negligent act of omission or commission gives rise to a cause of action for injuries sustained by another. It is only when injury to a person who himself is without contributing fault has resulted directly and in ordinary natural sequence from a negligent act without the intervention of any independent efficient cause, or is such as ordinarily and naturally should have been regarded as a probable, not a mere possible, result of the negligent act, that such injured person is entitled to recover damages as compensation for his loss. Conversely, when the loss is not a direct result of the negligent act complained of, or does not follow in natural ordinary sequence from such act but is merely a possible, as distinguished from a natural and probable result of the negligence, recovery will not be allowed. Seaboard Air Line Ry. Co. v. Mullin, 70 Fla. 450, 70 So. 467, L.R.A.1916D, 982, Ann.Cas.l918A, 576. ‘Natural and probable’ consequences are those which a person by prudent human foresight can be expected to anticipate as likely to result from such an act, because they happen so frequently from the commission of such an act that in the field of human experience they may be expected to happen again. ‘Possible’ consequences are those which happen so infrequently from the commission of a particular act, that in the field of human experience they are not expected as likely to happen again from the commission of the same act.” 40 So.2d at 149.

The quoted language from Cone was clarified by the Florida Supreme Court’s subsequent opinion in Pinkerton-Hays Lumber Company, Inc. v. Pope, 1961, 127 So.2d 441. There the Court concluded that an intermediate appellate court had incorrectly interpreted the Cone test:

“The error into which the District Court fell was the subjective application of the objective test of foreseeability as pronounced in the Cone case. The language in question was intended to convey the notion that foreseeability depends in part on whether the type of negligent act involved in a particular case has so frequently previously resulted in the same type of injury or harm that ‘in the field of human experience’ the same type of result may be expected again. The test was not intended to, nor do we think it does, imply that a plaintiff, in order to recover in a negligence action, must prove that the particular causative act had frequently occurred before, and that it had frequently resulted in the same particular injury to the plaintiff.” 127 So. 2d at 442-443. (Emphasis in original)

The fact that the so-called “intervening” cause itself constitutes negligence may not necessarily relieve a defendant from liability for his own negligent conduct. See the following statement in the Restatement of Torts, Second, Volume Two, Section 447, page 478:

“The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about, if
(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or
(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or
(c) the intervening act is a normal consequence of a situation created by the actor’s conduct and the manner in which it is done is not extraordinarily negligent.

Section 449 of the Restatement of Torts, Second, Volume Two, page 482, makes the following point in this regard:

“If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act, whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.”

THE ROLE OF THE JURY IN PROXIMATE CAUSE DETERMINATIONS

It is a settled principle of Florida law that the issue of proximate causation is a factual question and ordinarily one for jury determination. Florida Jurisprudence comments:

“The general rule is that the proximate cause of an injury is ordinarily a question for the jury, the court instructing them on what the law requires to constitute it, the jury applying the law to the facts. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it. Thus, unless the minds of reasonable men could not differ as to the cause of an injury, the problem of determining the existence of proximate cause is one for the jury. However, where the facts are susceptible of only one inference, the question is one of law for the court and the court should withdraw the question from the jury.” (23 Fla.Jur. Negligence, Sec. 133, pages 358-9)

See also, for example, Weber v. Porco, Fla.1958, 100 So.2d 146; Grove v. Sanford Mobile Park, Inc., Fla.App. 4 1968, 212 So.2d 34.

The Restatement of Torts discusses the role of the jury in this area in a manner consistent with Florida law:

“If the facts are undisputed, it is usually the duty of the court to apply to them any rule which determines the existence or extent of the negligent actor’s liability. If, however, the negligent character of the third person’s intervening act or the reasonable foreseeability of its being done (see Sec. 447 and 448) is a factor in determining whether the intervening act relieves the actor from liability for his antecedent negligence, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was negligent or foreseeable, the question should be left to the jury.” (Comment b, Sec. 453, Restatement of Torts, Second, Volume Two, page 491.)

In evaluating the propriety of the district court’s direction of verdicts for the corporate defendants in this case, we find particularly persuasive our own opinion in General Dynamics Corporation v. Adams, 5 Cir., 1965, 340 F.2d 271. There a heavy equipment mechanic, the decedent Adams, employed by Pan American World Airways at the Cape Kennedy, Florida, missile base, was assigned to work on an elevator in a tower constructed by the defendant, General Dynamics Corporation. To accomplish the work, it was necessary for the repairman to get on top of the elevator itself. Through an oversight, the elevator was not deactivated prior to the repairman’s ascension to the roof of the car. Although a general announcement may have been made to all personnel in the area not to use the elevator on which repairs were being made, an employee of General Dynamics absentmindedly entered the elevator and caused it to rise. The repairman was knocked off the elevator and fell to his death. Suit was brought by the repairman’s widow against General Dynamics for wrongful death on the theory that the elevator had been negligently designed and constructed in that two safety features mandated by Florida statutory law, which would have prevented the death of the repairman, had not been incorporated into the elevator: a door in the roof of the elevator through which the repairman would have been able to go in the event of an emergency and a switch mounted on the roof of the elevator which would have enabled the repairman to halt the upward motion of the car. In holding for this Court that a jury question of proximate causation had been raised by the plaintiff’s evidence, and applying Florida law, Chief Judge Tuttle observed:

“We have no doubt that a jury question was posed by the evidence presented by appellee. If the adoption of the statute dealing with safety in elevator construction, which by reference to standards universally understood required the installation of these particular safety devices, was not of itself adequate proof of the foreseeability of injury similar to the actual occurrence which resulted in Adams’ death, the statute coupled with the other facts proved at the trial, surely were. Testimony showing the inadequacies inherent in the operation when these safety regulations had not been complied with, and showing the casual attitude of all persons involved towards the inadequate safety measures that were in effect, would permit the jury to infer that an accident like that occurring to Adams is exactly the eventuality that the legislature had in mind when it required the installation of these two devices. Thus, we conclude that the trial court did not err in submitting this issue to the jury.” 340 F.2d at 275-276.

Under both the Florida law and the test articulated by this Court, en banc, in Boeing Company v. Shipman, 5 Cir., 1969, 411 F.2d 365, 374-375, we conclude that the trial court committed error in directing verdicts for the corporate defendants at the close of the plaintiff’s evidence. There was sufficient evidence for the jury to determine whether the aircraft and the ejection seat system had been negligently designed and manufactured, and there was sufficient evidence also for the jury to determine whether the fatal accident of April 22, 1964, was a type of accident reasonably foreseeable at the time the aircraft and ejection seat were designed and manufactured. In remanding this case for another trial we do not intimate any opinion as to the plaintiff’s chances of ultimate success. We hold only that the trial court should not have directed verdicts for the corporate defendants. The issues of negligence and contributory negligence, foreseeability and proximate cause were jury issues.

THE DISCRETIONARY FUNCTION EXCEPTION

The starting point for analysis in every case in which the United States seeks to defend on the basis of the discretionary function exception to the Federal Tort Claims Act must be the Supreme Court’s opinion in Dalehite v. United States, 1953, 346 U.S. 15, 73 S. Ct. 956, 97 L.Ed. 1427. Dalehite relieved the United States of all liability for its actions leading up to and during the April, 1947, disaster at Texas City, Texas, involving the explosions of fertilizers stored for shipment overseas as part of this country’s post-war foreign aid program. In defining the concept of discretionary function, the Supreme Court, speaking through Mr. Justice Reed, stated:

“It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the ‘discretionary function or duty’ that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable. If it were not so, the protection of Sec. 2680(a) would fail at the time it would be needed, that is, when a subordinate performs or fails to perform a causal step, each action or nonaetion being directed by the superior, exercising, perhaps abusing, discretion.” (346 U.S. at 35-36, 73 S.Ct. at 968, 97 L.Ed., at 1440)

This expansive definition of “discretionary function” was applied in Dalehite to every aspect of the United States^ Government’s involvement in the Texas City tragedy. From the Cabinet-level decisions to ship fertilizer to the distressed areas of Europe and Asia to the manner in which the bags of fertilizer were labeled, the Supreme Court found the exercise of discretion. The result in Dalehite received much critical comment. An intense ongoing debate has developed as to whether Dalehite has been undermined by subsequent decisions of the Supreme Court.

Indian Towing Company v. United States, 1955, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48, involved an action under the FTCA for damages sustained when a tug went aground with resultant damage to its barge cargo because of the allegedly negligent operation of a lighthouse by the United States Coast Guard. The opinion by Mr. Justice Frankfurter by a five to four majority held that the Coast Guard, having undertaken to provide lighthouse service, had a duty to use due care to make certain that the lighthouse was kept in good working order and to discover the light’s failure and to repair it or give warning that it was not operative. The breach of these duties, if it caused damage, was deemed actionable under' the FTCA. The Court was careful to note, however:

“The Government concedes that the exception of Section 2680 relieving it from liability for negligent ‘exercise of judgment’ (which is the way the Government paraphrases a ‘discretionary function’ in Sec. 2680(a)) is not involved here, and it does not deny that the Federal Tort Claims Act does provide for liability in some situations on the ‘operational level’ of its activity.” 350 U.S. at 64, 76 S.Ct. at 124, 100 L.Ed. at 53.

In Hatahley v. United States, 1956, 351 U.S. 173, 76 S.Ct. 745, 100 L.Ed. 1065 suit was brought under the FTCA by Indians for damages resulting from the appropriation and sale or destruction of the Indians’ horses by federal range agents purporting to act under local law pursuant to instructions contained in the Federal Range Code. The Court, speaking through Mr. Justice Clark, held that because the Utah abandoned horse statute required the giving of written notice to the apparent owners of horses as a condition precedent to their impoundment, the actions of the federal agents, which had been undertaken without written notices to the plaintiffs, .were unlawful and gave rise to a cause of action against the United States under the FTCA. Addressing itself to the discretionary function exception’s applicability, the Court stated:

“Nor can the second portion of (a) exempt the Government from liability. We are here not concerned with any problem of a ‘discretionary function’ under the Act, see Dalehite v. United States, supra. These acts were wrongful trespasses not involving discretion on the part of the agents, and they do give rise to a claim compensable under the Federal Tort Claims Act.” 351 U.S. at 181, 76 S.Ct. at 752, 100 L.Ed. at 1074.

Hatahley was closely followed by Rayonier, Inc. v. United States, 1957, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354. Rayonier was an action under the FTCA for losses sustained by landowners allegedly as the result of the negligence of federal employees in permitting a forest fire to originate on federal land and in failing to act with due care in putting the fire out. The Supreme Court, in an opinion by Mr. Justice Black, held that under the Federal Tort Claims Act the United States would be liable to the plaintiffs for losses sustained by reason of the United States Forest Service’s negligence in fighting a forest fire if, as alleged in the complaint, the law of the State of Washington would impose liability on private persons or corporations under similar circumstances. Although the Government in Rayonier did not assert the defense of discretionary function, it did rely upon that portion of the Dalehite decision which held that the Tort Claims Act had not altered the usual rule that an alleged failure of public firefighting forces to properly perform their duties does not create private actionable rights.

Rayonier also made clear that the liability of the United States in tort is not restricted by concepts imported from the law of municipal corporations of a distinction between negligence in performing acts in the government’s “proprietary” capacity and negligence when it acts in a “uniquely governmental” capacity, saying, at 352 U.S. 319, 77 S.Ct. 376-377, 1 L.Ed. 356, that Indian Towing necessarily rejected anything to the contrary in Dalehite.

The United States, as expected, takes the position that the Supreme Court decisions following Dalehite did not alter the Dalehite conception of the scope of the discretionary function exception of 28 U.S.C. 2680(a). It relies upon the following language in Blaber v. United States, 2 Cir., 1964, 332 F.2d 629:

“Plaintiffs suggest that the Dalehite case has been weakened by subsequent developments, particularly Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48, and Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354. These cases did enlarge the scope of the United States’ liability as it might have been thought to exist after Dalehite, but they did not affect the scope of the discretionary function immunity. Indian Towing concededly involved negligence at only an. operational level, 350 U.S. at p. 64, 76 S.Ct. 122, and Rayonier overruled Dalehite to the extent of allowing recovery where negligence in fire fighting could be shown. The kind of negligence, not the kind of activity pursued, became the test for determining the liability of the United States.” 332 F.2d at 631.

Judge Goldberg, a member of this Court, in Smith v. United States, 5 Cir. 1967, 375 F.2d 243, cert. denied 1967, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106, met the government’s citation in that case of this quote from Blaber with the following analysis, which carries convincing weight:

“The description of a discretionary function in Dalehite permits the interpretation that any federal official vested with decision-making power is thereby invested with sufficient discretion for the government to withstand suit when those decisions go awry. Most conscious acts of any person whether he works for the government or not, involve choice. Unless government officials (at no matter what echelon) make their choices by flipping coins, their acts involve discretion in making decisions.
If the Tort Claims Act is to have the corpuscular vitality to cover anything more than automobile accidents in which government officials were driving, the federal courts must reject an absolutist interpretation of Dalehite, and that interpretation is rejected by Indian Towing and especially by Rayonier. In the latter case, the Court held that the government could be liable for substandard firefighting by the Forest Service. The facts of the case make it clear that the negligence lay in part in the decision to withdraw the major part of the fire fighting force before the blaze was truly extinguished. This is perhaps a minor decision when compared to some made in the government, but it is a decision nonetheless, made by an official exercising some discretion. Cases under the Act therefore put courts to the question of what sorts of decisions can be classified as resulting from discretion within the meaning of Sec. 2680(a). It is not a sufficient defense for the government merely to point out that some decision-making power was exercised by the official whose act was questioned. Answering these questions, a difficult process, is not aided by the importation of the planning stage-operational stage standard as argued for by Smith. Such a distinction is specious. It may be a makeweight in easy cases where of course it is not needed, but in difficult cases it proves to be another example of a distinction ‘so fine-spun and capricious as to be almost incapable of being held in the mind for adequate formulation.’ Mr. Justice Frankfurter for the Court in Indian Towing, supra, 350 U.S. at 68, 76 S. Ct. at 126, 100 L.Ed. at 55. Such non-statutory ‘aids’ to construction tend to obscure, to limit, or even to replace the standards whose meaning they are supposed to clarify. It must be remembered that the question at hand here is the nature and quality of discretion involved in the acts complained of.” (Citations omitted.) 375 F.2d at 246.

THE DISCRETIONARY FUNCTION EXCEPTION AS APPLIED TO THIS CASE

In seeking reversal of the district court’s dismissal of her suit against the United States because of the bar of the discretionary function exception, the plaintiff argues in her brief:

“It seems clear that this resolution of the issue was incorrect. While the selection and the choice of the type of aircraft and perhaps even the general design of the seat in question, may have involved a ‘discretionary function’ reflecting a decision on the ‘political interests’ of the country, this surely cannot be said of the negligence involved in permitting the design defects involved in this case to exist. Surely, the ‘choice’, if any such choice was made, as to whether the roll pin should be at the bottom or top of the telescoping armrest, whether it should be non-removable, the strength of the spring-loaded pin or the design of the linkage between the armrest and the ejection system — can in no measure be deemed a ‘discretionary function’ under the statute.” (Plaintiff-appellant’s brief, p. 27)

The United States in reply argues that in addition to the clearly discretionary authority of the Secretary of the Air Force to purchase and select aircraft for military use, his discretionary authority extends to decisions involved in the design of the aircraft themselves:

“The decision to procure a particular plane does not exhaust the Secretary’s discretion, for he is later faced with the decision whether to accept the plane produced by the manufacturer under the procurement contract. Where, as here, this decision involves an evaluation of the safety of a component of the plane, it entails weighing the relative safety of the component, the degree of risk involved in its utilization, and the cost of securing a change in the component to make it ‘more safe’. That cost, of course, is measured not only in money, but also in terms of both the adverse affect which delay may have upon the goals sought to be obtained by use of the plane and the effect which the change may have on the ability of the component to continue to perform the function for which it is designed.” (Brief of the United States, page 19-20)

The United States goes on to assert that:

“Acceptance of that ‘appellant’s’ argument in this case would bring up for review, and require justification of, every minute aspect of procurement decisions, thus completely destroying the freedom of judgment— which as we have seen is vital to the effective exercise of functions directly affecting the nation’s political interests — which must be afforded to procurement decisions in the military sphere.” (Brief of the United States, page 20)

We have difficulty applying the decided cases as to negligence in exercise of a discretionary function to the facts presented here. The facts in this case bring it very close to the line separating actions covered by the FTCA and those beyond its reach because governed by the discretionary function exception. Without the gloss of later cases Dalehite would preclude recovery. We agree with the United States that the selection of the B-57 aircraft by the Secretary of the Air Force constituted the exercise of a discretionary function. Equally the determination of the number of such aircraft to be purchased by the Department of the Air Force also constituted the exercise of a discretionary function. But, coming down to the acceptance of a system of the aircraft, such as the pilot’s ejection seat and its mechanism, which, if negligently designed or constructed posed a safety hazard to an individual operating the aircraft, we hold that the discretionary function exception’s sweep falls short of immunizing the United States from liability.

Though our decision may result in this case in the United States eventually being required to compensate the plaintiff for the death of her husband, it should not significantly increase the exposure of the United States to suit under the Federal Tort Claims Act. In Feres v. United States, 1950, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, the Court held that the Federal Tort Claims Act does not extend its remedy to members of the United States’ armed forces who sustain, incident to their service, what otherwise would be actionable wrongs. Section 8116(c), Title 5, United States Code, provides that the Federal Employees’ Compensation Act is the exclusive avenue for compensation of civilian employees of the United States who suffer employment-connected injuries. See also, Section 8173, Title 5, United States Code, with respect to employees of non-appropriated fund instrumentalities of the United States. Ordinarily then employees of the United States, either military or civilian exposed to hazards caused by defective systems of an aircraft such as the B-57 would not be eligible for compensation under the Tort Claims Act. This plaintiff-appellant’s decedent, Larry Eugene Moyer, as a test pilot employed by Air-motive, was a member of a small group statistically.

PROCEEDINGS UPON REMAND

The plaintiff is entitled to jury trial anew with respect to the two corporate defendants, a trial which will not result in a directed verdict for the corporate defendants at the conclusion of the plaintiff’s evidence, assuming that she again produces evidence comparable to that at the first trial. Because the district court did not reach the merits of the plaintiff’s claim against the United States as to design negligence the plaintiff is to be afforded a new trial as to that issue.

Reversed and remanded.

CLARK, Circuit Judge

(dissenting in part and concurring in part):

I respectfully dissent from that portion of Judge Simpson’s opinion which reverses the verdicts for Martin and Aircraft. The majority’s statement of the governing principles of law is both accurate and precise. My problem relates solely to the application of those conventional principles to the acknowledged, uncontested facts of this cause. Certainly cases sounding in negligence rarely lend themselves to directed verdicts — but they are not privileged to enjoy a total immunity from Rule 50. Because the proof in this record failed to show any connection whatsoever between the 1954 actions of Martin and Aircraft and test pilot Moyer’s death ten years later, I would affirm the trial court’s dismissal of these parties.

Four grounds of negligence were asserted against these private corporate parties. (1) A spring-loaded safety pin was too weak. The proof failed to demonstrate any weakness in this pin and spring assembly, rather, as the majority points out, the evidence demonstrated that Moyer deliberately held the pin out of its normal position while operating the seat arm. (2) The ejection mechanism was placed in the right-hand rather than the left-hand armrest. This was a design requirement of the United States. The private parties had no control over or responsibility for this feature. (3) The initiator pins (also called safety pins), which were the primary safety devices for this mechanism, were not identified by streamers. Moyer’s pilot instruction sheet contained the following bold print notice:

CA7608]
Do not remove seat safety pins until after armrest has been raised to the flight position. Inadvertent firing of the pilot’s ejection seat could result when raising the armrest.

His actions were further governed by a requirement that he remove the pins only after setting and locking the armrest and that he then display the pins to the ground crew. To say that any competent test pilot could have regarded these pins as insignificant is either incredible or ridiculous or both. (4) A part called a roll pin was removable and was not adequately marked as a safety device. The only ground warranting discussion is (4) — the roll pin.

Under the heading “Undisputed Facts” the majority could have included the following additional items of proof which are equally uneontroverted.

The specifications which controlled the design and manufacture of this seat were promulgated by the United States in January 1952. The particular plane, together with the seat here involved, was delivered to the United States in July 1954 and was under the exclusive control of the United States after that date. The seat was an integral part of a highly dangerous instrumentality designed for use only by uniquely trained, qualified personnel.

From 1952 when this plane was designed by the United States to the date of Moyer’s death there had never been an accidental ejection from this type of plane either on the ground or in flight and there had never been an accident of any kind traceable to the removal of a roll pin.

If the roll pin had been strong enough to have stopped the armrest support tube in the final % inch of its travel, such stoppage would have prevented the firing of the ejection charges because it would have kept Moyer from jerking the entire armrest support tube out of its socket. However, this secondary safety function of the roll pin does not create any jury issue in this case because it was never designed or intended to be removable in any proper sense of that term. It was a permanently installed part of the seat arm. When the mechanic, Bass, in attempting to carry out the modification the government had decided to make without the participation or approval of Martin and Aircraft, erroneously determined to remove this roll pin (to correct an earlier mistake he had made) the majority says he had to use “considerable force”. “Considerable” seems a clear understatement to me. Bass had to utilize a set of vise grip pliers and a hammer to enable him to bring 350-400 pounds of pressure to bear in order to wrench the pin out of the tube. To compound Bass’ multiple errors, the final inspection called for by the modification contract negligently failed to detect his omission to reinstall the roll pin. Ironically, the roll pin had nothing to do with the modification required by the United States, nor did it have anything to do with correcting the initial error made by Bass in trying to carry out the modification work. Moreover, the top end of the tube assembly as designed and constructed by Martin and Aircraft had easily removable retaining rings which should have been used — if it ever became necessary to remove the tube assembly. Reducing the precision of aviation mechanics to work-a-day terms, this tragedy of errors can be likened to a laborer who, thinking he must reach the other side of a brick wall to do his job, takes a sledge hammer and knocks a hole in the wall instead of using a door — only to be followed by a building inspector who fails to notice the hole.

I think it must be conceded that no mechanism could ever be made fool proof. For example, if the tube in question had been designed with a flared end or with a welded collar instead of the roll pin, a mechanic as determined as Bass could have cut it off with a hack saw or welding torch. In any event, the crucial and unassailable fact is that this roll pin was never intended to be a removable part. That Bass was able to strong-arm it out doesn't make it so.

Whether the issue be cast as one to determine original negligence unbroken by intervening cause, or contributory negligence, or proximate cause, or forseeability, I can’t find anything in the proof developed in this case for a jury to act on. This kind of failure-of-proof situation is the raison d’etre for the rule permitting a judge to direct verdicts in jury cases. I would not fault its application to Martin and Aircraft here.

I concur in that portion of Judge Simpson’s opinion which requires the court to reach the merits of the plaintiff’s claim against the United States.

      . The B-57A aircraft involved in this case, No. AF-52-1469, was delivered sold to the United States by Martin in July, 1954.

      . Section 1346(b), Title 28, United States Code, reads, in pertinent part, as follows:
      “Subject to the provisions of chapter 171 of this title, the district courts shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of tho place where the act or omission occurred.”

      . On the orally stated grounds that:
      “ . . .on the question of intervening cause and weighing the facts of this case against the Florida law, I am of the view the convergence of a number of distinctly unusual and unrelated factors as necessary to the happening of this accident simply could not have been reasonably foreseen by either Martin Marietta or Aircraft Mechanics and were not happenings set in motion by the alleged negligence of the defendants.” (T. 2488)

      . Which directed modifications on the seat ejection system in question and which had been the basis for making those modifications by employees of American Air-motive Corporation (Airmotive) a repairer of the aircraft under contract with the United States Air Force. Airmotive, originally a third party defendant under a third party claim by the United States, as well as under a Third Party Claim (cross claim) by Aircraft, was granted summary judgments May 16, 1968, before the main suit went to trial.

      . Section 2680(a), Title 28, United States Code, provides:
      “The provisions of this chapter and section 1346(b) of this title shall not apply to — -Any claim, based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”

      . In addition to relieving the United States of liability under the “discretionary function” exception, the district court exonerated the United States with respect to the preparation of Technical Order No. 876 directing modifications of the ejection seat with respect to the alleged negligence in the drafting of the order as a cause of the malfunction of the ejection seat. Moyer v. United States, S.D. Fla., 1969, 306 F.Supp. 390. No appeal was taken from the latter decision.

      . Tliis allegation was rejected by the district court on the merits. See note 6, supra.

      . Section 2402, Title 28, United States Code provides:
      “Any action against the United States under section 1346 shall be tried by the court without a jury, except that any action against the United States under section 1346(a) (1) shall, at the request of either party to such action, be tried by the court with a jury.” The exception is inapplicable, since Sec. 1346(a)
      (1) deals with suits for tax refund.

      . See Reynolds, The Discretionary Function Exception of the Federal Tort Claims Act., 57 Georgetown Law Journal 81, 93-98 (1968).

      . Plaintiff’s expert witness was also critical of integrating the ejection firing mechanism into a movable armrest. This feature was also wholly dictated by the specifications developed by the United States.

      . With the hope that a picture can be worth a thousand words, stylistic representations of the seat with the armrest mechanism in its normal up and down positions are set out below:
      Down position for Up position for flight entry

      (2) Explosive charge (s) Roll pin
      (g) Initiator (safety) pins @ Retaining ring


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Humberto ALEMAN-FIERO, Plaintiff-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, District Director, and Attorney General of the United States, Defendants-Appellees.
    No. 73-1581
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 28, 1973.
    Robert L. Millard, El Paso, Tex., for plaintiff-appellant.
    Ralph E. Harris, Asst. U. S. Atty., El Paso, Tex., William S. Sessions, U. S. Atty., San Antonio, Tex., William E. Weinert, Imm. & Naturalization Serv., El Paso, Tex., for defendants-appellees.
    Before JOHN R. BROWN, Chief Judge, DYER and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Appellant, Humberto Aleman-Fiero, a citizen of Mexico, was duly admitted to the United States as a permanent resident alien on June 24, 1964. He thereafter returned to Mexico where he lived, married a Mexican national, and commuted to work in the United States. On December 22, 1970, while living in Mexico, he was convicted in Mexico of possessing marihuana. Following his return to the United States, deportation proceedings were instituted against appellant which resulted in a decision by a hearing examiner of the U.S. Immigration Service on May 3, 1971, to deport him. Title 8 U.S.C. Section 1251(a) (11). Appellant immediately appealed this order to the Board of Immigration Appeals which, on April 13, 1972, deemed the appeal withdrawn and refused to further entertain it because Aleman had departed the United States while the appeal was still pending. 8 C. F.R. Sec. 3.4. Appellant then brought this suit for declaratory and injunctive relief. The district court, after a hearing on an application for preliminary injunction, dismissed the complaint. We affirm.

Aleman admits that on December 6, 1971, while his appeal had been pending before the Board for nearly seven months, he departed from El Paso, Texas, to Juarez, Mexico, the border city opposite El Paso, for a temporary visit with his wife who was living in Juarez. He was not allowed to re-enter the United States when he attempted to return from his sojourn later that day. He now contends that (1) his visit was of the brief, casual and temporary nature described in Rosenberg v. Fleuti, 1963, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000, and therefore not a “departure” from the United States for deportation purposes; and (2) the withdrawal of his appeal was in violation of his right to due process and equal protection of the law.

. . . Departure from the United States of a person who is the subject of deportation proceedings subsequent to the taking of an appeal but prior to a decision thereon shall constitute a withdrawal of the appeal, and the initial decision in the case shall be final to the same extent as though no appeal had been taken.

Appellant’s reliance on Fleuti is misplaced for unlike Fleuti who left the country free of any sanctions imposed by the immigration laws, appellant departed while the subject of a deportation order which was then pending before the Board of Immigration Appeals. And Sec. 101(a) (13), 8 U.S.C.A. Sec 1101(a)(13) there at issue in determining what constituted “entry”, not departure, expressly provides that:

“ * * * no person whose departure from the United States was occasioned by deportation proceedings, * * * shall be held to be entitled to such exception.”

The effect of the regulation was automatically to impute an intent to withdraw the appeal to one who has left the country under such burden. Since the Attorney General has wide discretion in effectuating the Immigration and Nationality Act, Title 8 U.S.C. Sec. 1103(a), Sam Andrews’ Sons v. Mitchell, 9 Cir. 1972, 457 F.2d 745, 748, we cannot say that such inference was unreasonable when the departure was, as here, strictly voluntary. And the regulation which had the effect of terminating the administrative proceedings finds ample congressional warrant in the parallel provision of Sec. 106(c), 8 U.S.C.A. Sec. 1105a(c):

“An order of deportation * * * shall not be reviewed by any court if the alien has * * * departed from the United States after the issuance of the order.”

See also Solis-Davila v. Immigration and Naturalization Service, 5 Cir. 1972, 456 F.2d 424, 427 n. 6, where we cited 8 C. F.R. Sec. 3.4 with approval.

Similarly, appellant’s second contention is without merit. He was afforded a hearing in deportation proceedings and alleges no violations of his rights in those proceedings. Kwong Hai Chew v. Colding, 1953, 344 U.S. 590, 597 n. 6, 73 S.Ct. 472, 478, 97 L.Ed. 576, 584.

Affirmed.

      . Title 8 U.S.C. Sec. 1251(a) (11) provides for any alien to be deportable who at any time after entry has been convicted of any law relating to the illicit possession of marihuana.

      . 8 O.F.R. Sec. 3.4 in pertinent part provides that


author: LARAMORE, Senior Judge.

text:
    Hadley PULLEN, Executor for the Estates of Winifield Pullen and Katharine Pullen, Deceased, and Barbara Ann Berryman, Administratrix of the Estates of Alfred Keith Berryman and Glenna D. Berryman, Deceased, Plaintiffs-Appellants, v. Darrold HUGHES, Individually, et al., Defendants, Mansfield Tire and Rubber Company, an Ohio corporation, Defendant-Appellee.
    Nos. 72-1779, 73-1049.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted May 23, 1973.
    Decided June 22, 1973.

      Maxwell S. Osborn of Osborn & Grant, Cheyenne, Wyo., Donald R. Nelson and James J. Johnston, Denver, Colo., for plaintiffs-appellants in No. 72-1779.
    Richard W. Bryans of Lee, Bryans, Kelly & Stansfield, Denver, Colo., and Maxwell E. Osborn, of Osborn & Grant, Cheyenne, Wyo., for plaintiffs-appellants in No. 73-1049.
    Walter A. Steele, Denver, Colo., for defendants.
    Carl L. Lathrop, David D. Uchner and R. Michael Mullikin, Cheyenne, Wyo., for defendant-appellee.
    Before LEWIS, Chief Judge, McWILLIAMS, Circuit Judge, and LARA-MORE, Senior Judge.

       Senior Judge Don N. Laramore of the United States Court of Claims is sitting by designation.

   LARAMORE, Senior Judge.

Appellants seek review of the lower court’s orders to dismiss the wrongful death actions brought against defendant-appellee, Mansfield Tire & Rubber Co. The issue raised herein is whether the U.S. District Court for Wyoming has jurisdiction over defendant by virtue of the Wyoming “long-arm statute.”

The wrongful death actions brought by appellants against several defendants, including Mansfield, arise out of a September 3, 1970 truck-car collision in the state of Wyoming, in which four of appellants’ relatives were killed. Appellants allege that the left front tire of a truck owned by True Drilling Co., and operated by its employee, had a blowout causing the vehicle to swerve to the left into the path of decedents’ oncoming car, resulting in a collision and death of said decedents. Appellants further allege that Mansfield negligently manufactured the tire which had a blowout.

Defendant Mansfield, being an Ohio corporation not licensed to do business in Wyoming, was served with a copy of the Summons and Complaint by registered mail by the Clerk of the U.S. District Court for Wyoming, pursuant to Wyoming’s “long-arm statute,” section 5-4.2, after affidavits had been sworn' out by appellants’ attorneys alleging that the requisite minimal contacts necessary for said process were present. Thereafter, Mansfield filed a Motion to Dismiss on the grounds that it was not properly subject to the service of process therein. In support of said Motion, Mansfield . submitted an affidavit of their Secretary' — who presumably was well informed about their business operations — denying any business contact whatsoever with the state of Wyoming, which controverted the affidavits filed by appellants’ attorneys. Plaintiffs-appellants offered no further sworn evidence to substantiate any of the conclusions set forth in their original controverted affidavit. After hearing arguments of counsel on the Motion to Dismiss and the filing of court-requested briefs, the lower court entered an order sustaining the Motion to Dismiss.

In essence, appellants maintain on this appeal that the very fact that one of defendant’s tires was being used in Wyoming and that such use was reasonably foreseeable is sufficient contact with Wyoming to warrant service of process on said defendant and make them subject to the jurisdiction of the U. S. District Court for Wyoming. Appellants further contend that it was the intent of the Wyoming long-arm statute to cover situations as presented herein, so as to protect the citizens of Wyoming from tortious injury by nonresidents and save them from undue trouble, expense and perhaps unfair results in pursuing their remedies against multiple defendants in diverse and foreign forums. In support of these contentions, appellants have referred us to cases interpreting the long-arm statute of other states, e. g., Gray v. American Radiator & Standard Sanitary Corp., et al., 22 Ill.2d 432, 176 N.E. 2d 761 (Ill.1961), which suggest that state long-arm statutes, if they so chose, can constitutionally permit jurisdiction in situations as presented herein.

However, the Wyoming legislature has not chosen to draw their long-arm statute as broadly as it appears they might have, but instead placed definite, specific restrictions on the circumstances under which out-of-state persons may be reached, which makes their statute and its meaning necessarily distinguishable from the broader statutes and interpretations on which appellants rely. Similarly, while appellants’ policy arguments bear some persuasion, they too ignore the statute from which they must emanate. Section 5-4.2(a) (iv) provides for jurisdiction over persons whose acts or omissions outside of Wyoming cause tortious injury inside Wyoming “if he regularly does or solicits business, or engages in any other persistent course of conduct in this state or derives substantial revenue from goods consumed or services used in [Wyoming].” ('Emphasis added.)

Thus, it is readily apparent that appellants’ position can be sustained only in the event that they have satisfactorily established that Mansfield falls within one of the three alternative requisites of section 5-4.2(a) (iv). But appellants have provided no such evidence, except to implicitly rely on the fact that one tire being used in Wyoming constitutes evidence of Mansfield having derived “substantial revenue from goods consumed or services used in [Wyoming].” Such a substantiation untenably contradicts any normal interpretation of the word “substantial.” If the Wyoming legislature had intended to permit such minimal contacts as the use of a single product to be sufficient to expose its manufacturer to jurisdiction, we are persuaded that they would not have used words like “regularly,” “persistent” and “substantial”. Thus, we must conclude that appellants have failed to establish that the requisites of section 5-4.-2(a) (iv) are met herein, and the Order of the District Court must be affirmed.

      . “Section 5-4.2 Same — Personal jurisdiction where otherwise not provided by law.—
      (a) In addition to all other bases of jurisdiction otherwise authorized or provided by law, any court of this state may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person’s
      (i) transacting any business in this state;
      (ii) contracting to supply services or things in this state;
      (iii) causing tortious injury by an act or omission in this state;

        (iv) causing tortious injury in this state by an act or omission outside this state if he regulax-ly does or solicits business, or engages in any other persistent course of conduct in this state or derives substantial revenue from goods consumed or services used in this state;
      (v) having an interest in, using, or possessing real property in this state; or
      (vi) contracting to insure any person, property, or risk located within this state at the time of contracting.
      (b) When jurisdiction over a person is based solely upon this section, only a claim for relief arising from acts enumerated in this section may be asserted against him.”


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Billy Joe GATES, Defendant-Appellant.
    No. 72-1865.
    United States Court of Appeals, Fifth Circuit.
    June 25, 1973.
    Rehearing Denied July 20, 1973.
    Gene W. Caldwell, Tyler, Tex. (Court-appointed), for defendant-appellant.
    Roby Hadden, U. S. Atty., Dennis R. Lewis, Asst. U. S. Atty., Tyler. Tex., for plaintiff-appellee.
    Before DYER, SIMPSON and MORGAN, Circuit Judges.
   PER CURIAM:

Gates was indicted, tried by jury, and convicted of a violation of 18 U.S.C.A. § 1461 in mailing a filthy letter to a married woman with whom he was not acquainted. We affirm.

It is not claimed that the letter served any useful purpose or had literary merit. On the contrary, the letter was couched in shocking, wildly erotic, disgustingly filthy, and prurient language. The contents of the letter are so vulgar, sordid, and provocative that we deem it improper and unnecessary to quote from it.

Gates argues that there is no distinction between the word “filthy” (as used in the indictment) and the word “obscene” as these words are used in the statute and that the Government had the burden of proving beyond a reasonable doubt the basic tests of Roth v. United States, 1957, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. Pointing to United States v. Groner, 5 Cir. 1972, 475 F.2d 550, Gates contends that since the Government offered no expert evidence in this case to prove obscenity it was error to submit the issue to the jury. We disagree.

Accepting, without deciding, Gates’ equation of the words “filthy” and “obscene”, this Court has now decided that the prosecution does not bear the onerous burden of supporting its proof by expert testimony on the elements of obscenity. United States v. Groner, 5 Cir. 1973, 479 F.2d 577 (en banc). Furthermore, it is now settled that on review of First Amendment cases, the proper course for an appellate court to take is:

to make “an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected.” [ Jacobellis v. Ohio, 378 U.S. 184, 190, 84 S.Ct. 1676, 1679, 12 L.Ed.2d 793]. In so proceeding, there is a concomitant duty to follow the test laid down by the Supreme Court for determining obscenity: whether “to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” [Kois v. Wisconsin, 408 U.S. 229, 230, 92 S.Ct. 2245, 2246, 33 L.Ed.2d 312, 315.] Having examined the material in question, we have no difficulty in applying this test without the help of expert testimony in the record on the part of the prosecution. (footnote omitted).

479 F.2d at 583, 584. The jury verdict was supported by substantial evidence. See United States v. Green, 5 Cir. 1973, 474 F.2d 1385; United States v. Cameron, 5 Cir. 1973, 471 F.2d 1372.

Gates’ final complaint is that it was error to admit in evidence a brochure, depicting sexual acts, that was enclosed with the letter. The district court found, and we think correctly so, that the brochure was properly admitted for the limited purpose of proving the identity of Gates as the sender of the letter.

The judgment of conviction is

Affirmed.

      . But see United States v. Limehouse, 1932, 285 U.S. 424, 52 S.Ct. 412, 76 L.Ed. 843; Cain v. United States, 5 Cir. 1960, 274 F.2d 598.

      . In the original panel opinion of Groner, the Court took pains to point out that in those cases which are “graced with no plot, no character development, no exemplification of independent literary effort” or those cases where “the question [ed] material might he so terribly depraved and so lacking in candor that anyone would know without a question that the community norm had been forsaken in the writer’s quest for sexual sensationalism” are excluded from the reach of the requirement that expert testimony be offered. 479 F.2d 579. Gates’ letter is, in our view, the paradigm of hard core pornography, see Kahm v. United States, 5 Cir. 1962, 300 F.2d 78, 86, and thus no expert evidence was required even under the original panel opinion in Groner.


text:
    In the Matter of TMT TRAILER FERRY, INC., et al., Debtors. PROTECTIVE COMMITTEE FOR INDEPENDENT STOCKHOLDERS OF TMT TRAILER FERRY, INC., Appellant, v. Thomas J. KIRKLAND, Trustee, et al., Appellees.
    No. 72-3193.
    United States Court of Appeals, Fifth Circuit.
    June 6, 1973.

      Irma S. Mason, Washington, D. C., Irwin L. Langbein, West Palm Beach, Fla., David Ferber, Sol., Walter P. North, Acting Gen. Counsel, Paul Gonson, Asst. Gen, Counsel, Robert Ginsberg, Sp. Counsel, S.E.C., Washington, D. C., for appellant.
    Irving M. Wolff, Hervey Yancey, Miami, Fla., for Mesco and Merri Stevens.
    Before THORNBERRY, COLEMAN and AINSWORTH, Circuit Judges.
   PER CURIAM:

This is an appeal by the Protective Committee for Independent Stockholders of TMT Trailer Ferry, Inc., joined in by the Securities and Exchange Commission, from an order entered on August 2, 1972 by the district court sua sponte, without notice or hearing. The order directed the Committee to file an amended statement under section 211 of Chapter X, 11 U.S.C. § 611, with new authorizations from such stockholders as have designated the Committee as their representative, giving the name and address of the stockholder, number of shares held, certificate numbers, date acquired, etc. The district court substantially directs a duplication of statements already filed by the Committee and its counsel without sufficient reason to justify its order.

We take cognizance of a subsequent order of the district court dated February 5, 1973, which authorizes the Trustee to prepare a complete stockholders’ list, and provides $10,000 to prepare a computerized tabulation of stockholders and other relevant information.

It is apparent that this is another episode in the continuing pattern of harassment of the Committee. Previous history thereof can be found in Protective Committee v. Anderson, 390 U.S. 414, 88 S.Ct. 1157, 20 L.Ed.2d 1 (1968); Protective Committee v. Kirkland, 5 Cir., 1970, 434 F.2d 804, cert. denied, 402 U. S. 907, 91 S.Ct. 1378, 28 L.Ed.2d 648 (1971) ; Protective Committee v. Wolff, 5 Cir., 1972, 457 F.2d 100, cert. denied, 409 U.S. 849, 93 S.Ct. 57, 34 L.Ed.2d 91 (1972) ; Protective Committee v. Mehrtens, 5 Cir., 1972, 457 F.2d 104, cert. denied, 409 U.S. 849, 93 S.Ct. 57, 34 L.Ed. 2d 91 (1972). The Committee and its counsel have actively rendered important services to this reorganization throughout many years of its existence.

We are unwilling to see the role of the Committee downgraded or impeded by the court’s order and agree with the SEC that the order is without adequate justification. Very little purpose is served under the circumstances except to require a considerable expenditure of time by the Committee which is without funds to comply with the burdensome requirements of the court’s order. In the interest of an expeditious culmination of this reorganization, which we have been assured would now end after all these years of delay, for the reasons set forth above, we reverse and vacate the order entered August 2, 1972.

Reversed; order vacated.

      . This Chapter X bankruptcy (11 U.S.C. § 501 et seq.) has been pending since June 1957 — nearly 16 years.


text:
    Varena ELSTON, wife of/and Joseph Yuratich, Plaintiffs-Appellees, v. SHELL OIL COMPANY and the Travelers Insurance Company, Defendants-Third Party Plaintiffs-Appellants, v. ZENITH, INC. and Employers Mutual Liability Insurance Company of Wisconsin, Third Party Defendants-Appellees, U. S. Fidelity & Guaranty Company, Intervenor-Appellee.
    No. 73-1616
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 20, 1973.
    John J. Weigel, New Orleans, La., for appellants.
    Peter J. Butler, New Orleans, La., for plaintiffs-appellees.
    Chester Francipane, Metairie, La., for third party defendants-appellees.
    Wood Brown, III, New Orleans, La., for intervenor-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y., 431 F.2d 409, Part I (5th Cir. 1970).

   PER CURIAM:

Shell Oil Company and its liability carrier appeal from a judgment entered upon a jury verdict for the appellees. We affirm.

Mrs. Yuratieh suffered painful and nearly fatal injuries as a result of a collision involving a truck owned by the Shell Oil Company. The truck was being driven by an employee of Zenith, Inc., a labor contractor which supplied the driver on an hourly basis to make deliveries to Shell installations. The evidence of Shell’s control over the driver’s activities was amply sufficient for the jury to find that the driver was Shell’s borrowed servant for purposes of tort liability. See, e. g., Richardson v. Tate, 269 So.2d 278 (La.App.1972), writ denied, 271 So. 2d 260 (La.1973).

Shell asserts as error the refusal to instruct the jury that personal injury awards are not subject to federal income tax. The refusal follows prior decisions of this court. Cunningham v. Bay Drilling Co., 421 F.2d 1398 (5th Cir. 1970); Prudential Ins. Co. of America v. Wilkerson, 327 F.2d 997 (5th Cir. 1964). We have recently refused to overrule our former decisions. Greco v. Seaboard Coast Line Railroad, 464 F.2d 496 (5th Cir.), rehearing en banc denied, 468 F.2d 822 (5th Cir. 1972), cert. denied, 410 U.S. 990, 93 S.Ct. 1502, 36 L.Ed.2d 190 (1973). We therefore regard the issue foreclosed from reconsideration by this panel.

Shell contends that a mistrial should have been declared because of an allegedly prejudicial comment by the court. As an alternative to its request for a mistrial Shell requested, and the court gave, an instruction to the jury to disregard the remark. The granting of Shell’s alternate request for relief was sufficient to cure any error.

In light of the extent of Mrs. Yuratich’s injuries, we cannot say that the verdict was in excess of the maximum amount the jury could have reasonably found. See Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033, 1042-1047 (5th Cir. 1970), aff’d after remand, 456 F.2d 180 (5th Cir.), cert denied, 407 U.S. 921, 92 S.Ct. 2463, 32 L.Ed.2d 807 (1972).

Affirmed.


author: PER CURIAM.

text:
    INDUSTRIAL LIFE INSURANCE COMPANY, Appellant, v. UNITED STATES of America, Appellee.
    No. 72-1693.
    United States Court of Appeals, Fourth Circuit.
    Argued June 4, 1973.
    Decided July 3, 1973.

      Harry S. Dent and Henry H. Taylor (Whaley, McCutchen, Blanton & Dent, Columbia, S. C., on brief), for appellant.
    Scott P. Crampton, Asst. Atty. Gen. (Meyer Rothwacks, Thomas L. Stapleton and Janet R. Spragens, Attys., Tax Div., U. S. Dept, of Justice, John K. Grisso, U. S. Atty., and Charles W. Gambrell, Asst. U. S. Atty., on brief), for appellee.
    Before WINTER, BUTZNER and FIELD, Circuit Judges.
   PER CURIAM.

We see no error in the district court’s dismissal of taxpayer’s suit for a refund of taxes.

The district court, 344 F.Supp. 870, correctly determined, as a matter of fact, that taxpayer was not a “life insurance company” within the meaning of 26 U.S.C. § 801(a), because it was not an “insurance company” within the meaning of Treasury Regulation 1.801-3(a). We think the regulation valid and simply a restatement of existing law. Bowers v. Lawyers Mortgage Co., 285 U.S. 182, 52 S.Ct. 350, 76 L.Ed. 690 (1932). The regulation does not conflict with the McCarran Act, 15 U.S.C. § 1011 et seq., because the power of the federal government to tax was not delegated to the states. The district court’s determination that taxpayer failed to show a “specific, definite and feasible plan” to justify its accumulation of earnings was not clearly erroneous. Inland Terminals v. United States, 477 F.2d 836 (4 Cir., April 6, 1973). Finally, the district court’s determination that taxpayer was selling land in the ordinary course of business so as to subject profits therefrom to taxation as ordinary income was not clearly erroneous.

Affirmed.

       Both in oral argument and in post-argument documentation, taxpayer asserts that certain statutory changes upgrading the capital and surplus requirements of insurance companies like taxpayer were contemplated in the tax years in question and were subsequently enacted in part. The major changes did not become effective until after the tax years in question and, in any event, the record fails to show that earnings were accumulated as part of a plan to meet threatened pending legislation.


text:
    Elverna Yevonne Clairmont BACIARELLI, Plaintiff-Appellant, v. Rogers C. B. MORTON, Defendant-Appellee.
    No. 71-2975.
    United States Court of Appeals, Ninth Circuit.
    July 16, 1973.
    Rehearing Denied Aug 15, 1973.

      Roderic Duncan, of Lempres, Duncan, & Morgan, Oakland, Cal., for plaintiff-appellant.
    Kent Frizzell, Asst. Atty. Gen., Dept, of Justice, Washington, D. C., James L. Browning, U. S. Atty., David E. Golay, Asst. U. S. Atty., San Francisco, Cal., Robert S. Lynch, Henry J. Bourguignon, Dept, of Justice, Washington, D. C., for defendant-appellee.
    Before KOELSCH, TRASK and CHOY, Circuit Judges.
   OPINION

PER CURIAM:

Appellant Baciarelli was born in 1936 to enrolled members of the Confederated Salish and Kootenai Tribes (Tribes). Two unsuccessful attempts to enroll appellant in the Tribes were made in 1947 and 1950. In 1960 the membership provisions of the tribal constitution were amended creating categories for future membership and adoption. Once more in 1967 Baciarelli applied for enrollment, but the Tribal Council again rejected her application. The Area Director of the Bureau of Indian Affairs declared appellant eligible under the future membership category, but the decision of the Tribal Council was reinstated by the Secretary of the Interior. The Secretary ruled that the future membership category applies only to persons born after May 5, 1960. The district court upheld the decision of the Secretary. We affirm.

An Indian tribe has complete authority to determine tribal membership except in specific instances. The Secretary has jurisdiction to determine tribal membership for the purpose of distributing federal trust assets. 25 U.S.C. § 163; Martinez v. Southern Ute Tribe of Southern Ute Res., 249 F.2d 915, 920 (10th Cir. 1957), cert. denied, 356 U.S. 960, 78 S.Ct. 998, 2 L.Ed.2d 1067 (1958); Fondahn v. Native Village of Tyonek, 450 F.2d 520, 522 (9th Cir. 1971). We must determine whether the Secretary’s decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2) (A); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

Although Baciarelli appears to meet the literal requirements of the future membership category, the membership provisions are ambiguous. “Future Membership” may refer only to persons born after the date of the amendment to the tribal constitution (May 5, 1960), or it may refer to all membership applications filed after that date regardless of the applicant’s date of birth.

The record reveals that during a Tribal Council meeting the Tribes’ attorney stated that persons born prior to the constitutional amendments could be enrolled only by adoption. The attorney had played a significant role in drafting the amendments. More important, the purpose of the 1960 amendments was to confirm then existing membership rolls and enact valid provisions for future membership. The Tribes did not intend to expand membership.

The Secretary was empowered to construe the membership requirements of the tribal constitution. The Secretary’s determination that the future membership provisions apply only to persons born after May 5, 1960 is not arbitrary or capricious.

The decision of the district court is affirmed.

      . Article II of the tribal constitution includes the following membership provisions :

        Section 3. Future Membership.

      Future membership may be regulated from time to time by ordinance of the Confederated Tribes subject to review by the Secretary of the Interior. Until and unless an ordinance is adopted any person shall be enrolled as a member who shall (a) apply, or have application made on his behalf, establishing eligibility under this provision; (b) show that lie is a natural child of a member of the Confederated Tribes; (c) that he possesses one-quarter (%) degree or more blood of the Salish or Kootenai Tribes or both, of the Flathead Indian Reservation, Montana; (d) is not enrolled on some other reservation.

        Section If. Adoption. The Tribal Council shall have the power to enact and promulgate ordinances, subject to review by the Secretary of the Interior, governing the adoption of persons as members of the Confederated Salish and Kootenai Tribes. Ordinance 35-A contains the following j)rocedures:

        Ordinance 35-A . . .

        A. Procedure for enrollment under Article II, Section 3 of the Constitution— The applicant, or the next friend of the applicant if applicant is too young to act on his own behalf, must:
      (1) Make formal application to the Tribal Council requesting enrollment as a member of the Confederated Tribes;
      (2) Show that he (or she) is a natural child of a member of the Confederated Tribes, giving necessary data on such parent;

        (3) Show that lie (or she) possesses one-quarter degree or more blood of the Salish or Kootenai Tribes, or both, of the Flathead Indian Reservation, Montana;
      (4) Show that he (or she) is not enrolled on some other reservation.
      B. Procedure for enrollment by adoption under Article II, Section ^ of the Constitution—
      The applicant must:
      (1) Make formal application to the Tribal Council requesting enrollment by adoption as a member of the Confederated Tribes ;
      (2) Establish one of the following :
      (a) Show that he (or she) was eligible at birth for enrollment under the provisions of Article II, Section 1(b) of the Constitution as it existed prior to
      amendment, and that he (or she) was born prior to May J¡, I960. That is, the applicant must, shoxo that he (or she) was born to a mexnber of the Coxifederated Salish and Kootenai Tribes of the Flathead Reservation, who was a resident of the Resen-ation at the time of his or her birth. Resident means actual residence within the boundaries of the Flathead Resen'ation Absence from the Reservation for woxT:, including war work, does xiot constitute temporary absence under this provision (Emphasis added).
      C. General Provisions.

      (1) The Tribal Council must pass on adoptions before they are lawful, a majority of the quorum voting for the motion.


author: SETH, Circuit Judge.

text:
    Bruce R. COUNCILMAN, Appellee, v. Melvin R. LAIRD, Secretary of Defense, et al., Appellants.
    No. 72-1812.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted May 25, 1973.
    Decided July 19, 1973.
    Anthony J. Steinmeyer, Atty., Dept, of Justice (Harlington Wood, Jr., Asst. Atty. Gen., William R. Burkett, U. S. Atty., Walter H. Fleischer and Michael H. Stein, Attys., Dept, of Justice, with him on the brief), for appellants.
    Nicholas D. Garrett and Orin Christopher Meyers, Lawton, Okl., for appellee.
    Before SETH, HOLLOWAY and McWILLIAMS, Circuit Judges.
   SETH, Circuit Judge.

Appellants, defendants below, appeal from an order of the United States District Court for the Western District of Oklahoma, permanently enjoining the defendants from continuing with court-martial proceedings against appellee.

As a basis of its order, the trial court found that the offenses with which appellee was charged by the military were not “service connected” within the meaning of that term as developed in the decisions of the Supreme Court of the United States in O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L. Ed.2d 291, and Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102.

Appellee Councilman, a Captain in the United States Army stationed at Fort Sill, Oklahoma, was charged under the Uniform Code of Military Justice with the wrongful sale and transfer of marijuana to an enlisted man, Army Specialist Four Glenn D. Skaggs. He was also charged with the wrongful possession of marijuana which took place on another occasion. Although Captain Councilman was charged under Article 134, the general article, the constitutionality of which has been questioned, see Avrech v. Secretary of the Navy, 477 F.2d 1237 (D.C.Cir. 1973); Levy v. Parker, 478 F.2d 772 (3d Cir. 1973), that issue is not presented to us, and it is unnecessary to decide it in the context of this case.

Councilman sought to have the court-martial proceedings dismissed for lack of jurisdiction, but his motion was denied by the presiding judge of the court-martial. This suit was then commenced.

The facts, which are not in dispute, are as follows: The Army authorities were advised by a confidential informant that Councilman was using marijuana in his off-post apartment. Thereafter, at a party to which he was invited for that purpose, Captain Councilman was introduced to an undercover agent of the Army’s Criminal Investigation Division, Specialist Four Glenn D. Skaggs. Skaggs was using the name Danny Drees, and was introduced to Councilman as an Army clerk-typist, also stationed at Fort Sill. Thereafter it is alleged that Councilman on one occasion transferred, and on another sold, small amounts of marijuana to Skaggs, alias Drees.

Based on Skaggs’ investigation, Councilman was apprehended by civilian authorities, and a search of his apartment turned up a small quantity of marijuana. Skaggs from" time to time also acted on behalf of the civilian authorities. Councilman was subsequently turned over to military authorities, and the court-martial proceedings here in issue were commenced. During all times relevant to the issues in this case, it is stipulated that Councilman was off-post, off-duty, and out of uniform, and that Skaggs was off-post and out of uniform, and although ostensibly off-duty, was in fact on duty in his capacity as an undercover agent.

In Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102, referred to by the trial court, the Supreme Court set forth twelve tests which it considered to be implicit from the holding in O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291. These standards are to be used in determining if offenses are “service connected.” A review of the facts in the present case in the light of Relford reveals that only one of the standards or factors need be here considered. This one concerns whether the “victim” is engaged in a duty relating to the military. As to this element, we do not consider that Skaggs, alias Drees, was a “victim” in the ordinary sense. Also if the time of the offense is considered, Skaggs was not then engaged outwardly in the performance of any duty relating to the military. The opinion in Relford does not indicate that the Supreme Court had in mind this type of situation when it referred to a person performing military duties or to a “victim.” The Relford Court also added nine other factors that should be taken into consideration in arriving at a determination of whether a crime is sufficiently “service connected” so as to confer jurisdiction on a military court. These factors are enumerated at 401 U.S. 367, 369, 91 S.Ct. 649. As to these factors, the Government argues that because the alleged sale and transfer of marijuana was between two servicemen, and particularly here between an officer and an enlisted man, they have shown sufficient “service connection” to enable the military courts to assume jurisdiction over appellee. Of the nine factors, only one might be present here. This factor relates to the rank of the persons involved in the incident or the fact that both were servicemen.

It has been held that the off-base possession of marijuana by a serviceman is not “service connected.” Moylan v. Laird, 305 F.Supp. 551 (D.R.I.). Neither is off-base use of marijuana. Cole v. Laird, 468 F.2d 829 (5th Cir.). Nor is the off-base sale by a serviceman to a civilian. United States v. Morley, 20 USCMA 179. It has also been held that there is no “service connection” when a serviceman commits an off-duty, off-base, out of uniform offense against the dependents of another serviceman, United States v. Henderson, 18 USCMA 601, although the Court of Military Appeals has held that any offense by one serviceman against another, even if committed off-base, off-duty, and while the offender is in civilian attire and unaware that his victim is the person or property of another serviceman, is sufficiently “service connected” to confer court-martial jurisdiction. United States v. Camacho, 19 USCMA 11.

We cannot agree that this sale or transfer of marijuana, as we previously said, involved any “victim,” and it appears that “service connection” based on this theory is so remote as to be not at all within the meaning of that term as used by the Supreme Court in O’Callahan and Relford. See United States v. Cook, 19 USCMA 13; Silvero v. Chief of Naval Air Basic Training, 428 F.2d 1009 (5th Cir.).

The requirement of indictment by a grand jury and the right to a jury trial are not forfeited by a person simply because he chooses, or is in some cases required, to serve his country as a member of the Armed Forces. These rights should be preserved to a serviceman insofar as possible without interfering with military discipline. In the instant case, there is no military connection with the crime other than the fact that Councilman and Skaggs were members of the Armed Forces. The commission of the crimes that appellee stands accused of affects military discipline no more than commission of any crime by any serviceman.

The trial court was correct in its determination that the military was without jurisdiction to proceed with the court-martial of Captain Councilman and in issuing the injunction.

Affirmed.


author: AINSWORTH, Circuit Judge:

text:
    Herman McVAY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 73-1121.
    United States Court of Appeals, Fifth Circuit.
    July 3, 1973.
    Rehearing Denied Aug. 23, 1973.

      James D. Davis, Alexandria, La., for plaintiff-appellant.
    Donald E. Walter, U. S. Atty., Robert E. Shemwell, Asst. U. S. Atty., Shreveport, La., Neil Proto, Dept, of Justice, Kent Frizzell, Asst. Atty. Gen., George R. Hyde, Attys., Dept, of Justice, Washington, D. C., for defendant-appellee.
    Before AINSWORTH, GODBOLD and INGRAHAM, Circuit Judges.
   AINSWORTH, Circuit Judge:

This suit was brought by Herman Mc-Vay against the United States for a preliminary and permanent injunction to enjoin enforcement of a regulation of the Secretary of Agriculture, 36 C.F.R. § 261.13, alleged to be unconstitutional and invalid. The regulation pertains to the impounding and sale of livestock found to be trespassing on National Forests. After a hearing the district judge declined to grant an injunction and assigned written reasons for his refusal. We affirm.

Defendant McVay was notified on August 2, 1972 by the Forest Supervisor for the Kisatchie National Forest in Louisiana that his cattle had been observed on National Forest land without authorization or permit, and he was informed that he had until August 11 to remove them or they would be impounded. On August 22, the Forest Service, acting under authority of the regulation, 36 C.F.R. § 261.13(a), impounded nine of McVay’s cows which were found on National Forest land. Though given an opportunity to do so, including a conference with Mc-Vay’s attorney relative to redemption of the impounded cattle upon payment of the Government’s expenses, appellant did not redeem his cows. On August 24, a notice was published in the Alexandria, Louisiana, daily newspaper to the effect that on August 29 the impounded cows would be auctioned at public sale. Mc-Vay then filed the instant suit on August 25 for injunctive relief, alleging that the regulation under which the cattle had been impounded was unconstitutional, in violation of the Fifth Amendment, because it allegedly did not provide for notice and a hearing prior to impoundment or for an opportunity to contest the validity of the expenses incurred. A hearing was held by the district court on August 31 and its ruling was made on September 1, 1972, denying the requested injunction. In the meanwhile, the sale scheduled for Aügust 29 had been can-celled because of pendency of the suit and the notice was republished for the public auction to be held on September 5, 1972.

Appellant McVay relies principally on the recent decision of the Supreme Court in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). But we find, as did the district judge, that the holding in that matter is inapposite. In the present case the applicable regulations promulgated by the Secretary of Agriculture provide for notice by registered mail to the owner of the livestock found trespassing on National Forests, the owner being given five days after date of the written notice of the trespass to remove his cattle or impoundment would follow. 36 C.F.R. § 261.13(a). Upon impoundment of the livestock no sale shall be made until at least five days have elapsed and the owner may redeem his livestock within that period by submitting proof of ownership and paying the Government’s expenses. 36 C.F.R. § 261.13(d). Thereafter, if the livestock are not redeemed within the date fixed for their sale, they shall be sold at public auction to the highest bidder. 36 C.F.R. § 261.13(e). It appears that McVay had ample time from the date he was first notified on August 2, 1972, until September 5, 1972, when the public auction occurred, to redeem his cows but that he failed to do so. According to his brief, he appeared at the sale and bid for his own cows which cost him over $1,000, where the Government’s expenses were said to be $2,076.-95.

In our view the regulation is a proper exercise of the powers conferred upon the Secretary of Agriculture by the Constitution. See art. IV, § 3, cl. 2 of the Constitution which grants to Congress legislative power over the public domain. The Secretary of Agriculture is authorized by Congress to make such rules and regulations as are necessary to prevent trespassers and otherwise regulate the use and occupancy of property in the public domain, including the National Forests. See 7 U.S.C. §§ 1010, 1011(f); 16 U.S.C. § 551. The Eighth Circuit has had occasion to consider the question involved and has upheld the constitutionality of the regulation, including the remedy of impoundment. See Jones v. Freeman, 8 Cir., 1968, 400 F.2d 383, 388-389.

In denying McVay’s suit for an injunction, the district court held, “Nothing herein should be construed as affecting any rights the plaintiff may have other than by way of injunction.” The district judge stated in his reasons that the regulation was not unconstitutional and that plaintiff had shown no threat of irreparable injury; that he could pay the penalties involved and sue for their recovery. He apparently had in mind that plaintiff may assert any claim for wrongful conduct by Government agents, including Forest Service employees, where it is claimed that the actual expenses and charges incurred were excessive and not justified by the circumstances. Thus under the Tucker Act, 28 U.S.C. § 1346 (a)(2), the federal district court has original jurisdiction over any civil action or claim against the United States not exceeding $10,000 in amount, “founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, . . . (Emphasis supplied.) Under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), the district court has exclusive jurisdiction of “civil actions on claims against the United States, for money damages, . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”

Finding no constitutionality in the applicable regulation, we are satisfied that the district judge correctly denied injunctive relief, especially where it appears that appellant has an adequate remedy at law to assert his claim.

Affirmed.