author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    STATE OF MAINE et al., Plaintiffs-Appellees, v. Robert W. FRI, etc., et al., Defendants-Appellants.
    No. 73-1254.
    United States Court of Appeals, First Circuit.
    Argued Oct. 4, 1973.
    Decided Nov. 2, 1973.

      William D. Appier, Atty., Dept, of Justice, with whom Irving Jaffe, Acting Asst. Atty. Gen., Peter Mills, U. S. Atty., and Walter H. Fleischer, Atty., Dept, of Justice, were on brief, for defendants-appellants.
    Lee M. Schepps, Asst. Atty. Gen., for plaintiffs-appellees.
    Before COFFIN, Chief Judge, MOORE, Senior Circuit Judge, and CAMPBELL, Circuit Judge.

       Of the Second Circuit sitting by designation.

   LEVIN H. CAMPBELL, Circuit Judge.

For the second time, the Administrator of the Environmental Protection Agency (EPA) appeals from the district court’s interim order of June 29, 1973, requiring him to allot $29,025,000 to Maine in fiscal year 1973 for purposes of the Water Pollution Control Act Amendments of 1972, 33 U.S.C. (Supp. II, 1972) § 1281 et seq. (the “Act”). The order, issued several days before the end of the federal fiscal year, also provides that none of the funds so allotted will be available for obligation until further order of court. We dismissed an earlier appeal for lack of appellate jurisdiction. 483 F.2d 439 (1st Cir. 1973). Several months having passed without further hearing or action in or by the district court, we are now persuaded that the order was or has become an appeal-able preliminary injunction. Id. p. 440.

Maine brought the present suit after the then acting Administrator of the EPA, at the express direction of the President of the United States, had allptted among the states, for the purposes of the Act, two billion dollars for fiscal 1973 and three billion dollars for fiscal 1974. Section 207 of the Act provides that “[t]here is authorized to be appropriated to carry out this subchapter . for the fiscal year ending June 30, 1973, not to exceed $5,000,000,000, [and] for the fiscal year ending June 30, 1974, not to exceed $6,000,000,000, . . . ” Maine contends that the President and the Administrator lack authority to reduce the 1973 and 1974 allotments below the sums authorized to be appropriated, especially since § 205 provides: “Sums authorized to be appropriated pursuant to § 207 for each fiscal year . shall be allotted by the administrator . ” [Emphasis supplied.] The merits of Maine’s claim have yet to be heard. The district court has informed the parties that it will expedite their determination.

The only question before us is the appropriateness of the preliminary order directing, in effect, a “paper allotment” of the disputed funds. Maine sought the interim relief because of its fear that if the Administrator was not ordered to make a formal allotment — essentially a bookkeeping entry — before the end of fiscal 1973 on June 30, 1973, the funds might irretrievably be lost. Thereafter the court held a hearing on July 6, 1973, on the Administrator’s motion to vacate the temporary order. It denied the motion. We are satisfied that the order was issued in substantial compliance with required procedures, and that the district court did not abuse its discretion in issuing it.

The Administrator attacks the order on both procedural and substantive grounds. His procedural attack is that the district court’s order, constituting what is by now a preliminary injunction, should be vacated because it was entered without setting out the factual premises and legal conclusions on which it was based, as required by F.R. Civ.P. 52(a). Although the government’s opportunity to present its side before the order issued may have been cramped by the short notice, it had full opportunity on July 6th when the court heard the government’s motion to vacate the order. The latter opportunity was but little removed from the usual hearing on issuance of a preliminary injunction. On the record, the court stated conclusions which were pertinent to in-junctive relief, i. e. irreparable harm, countervailing harm to the defendant, and the probability of success. As to the factual premises underlying those conclusions, the record shows at the very least an awareness by the court and counsel of the relevant statutory provisions and administrative actions. Since the main purpose of Rule 52 is served in this instance, where the record fully explicates the district court’s material assumptions of fact to the extent necessary for appellate review, and neither side has been misled as to the basic issues involved, we will' accept, without encouraging the practice, what might otherwise constitute an insufficient statement of findings in a temporary restraining order which becomes, through lapse of time, a preliminary injunction.

Before granting a preliminary injunction the court must be satisfied, with good reason, that Maine would otherwise suffer irreparable loss, and that it was likely to prevail on the merits. The district court was also required to balance against the possibility of irreparable loss to the plaintiff, if preliminary relief was denied, any harm to defendant that might be caused by the grant of such relief. Whether there would be irreparable loss boiled down to the need, in fiscal 1973, for the Administrator to engage in a formal action called “allotment”. Under the Act, allotment is the first step in a chain of actions required before federal financial aid is available to a particular state project. Maine asserts that if funds authorized to be appropriated in 1973 under § 207 of the Act were not timely allotted by the Administrator under § 205(a), they would cease to be available for obligation during the ensuing fiscal year. See § 205(b)(1). If so, Maine’s primary claim might become academic before it could ever be litigated.

The district court concluded that under the statute as drafted Maine’s fears were well-grounded. We need not and do not decide that issue. It is enough that the statutory language renders the court’s determination reasonable and well within its discretion. Section 205(b)(1) makes available for obligation in a subsequent year “[a]ny sums allotted to a State under subsection (a)” [Emphasis supplied.] There is obvious room for the inference that sums not allotted may not be so carried forward. The Administrator takes the position that funds authorized to be appropriated may be carried forward although never allotted in the relevant years. But without questioning his good faith in this particular, or indeed without foreclosing the possibility that on one theory or another unallotted funds might not irretrievably be lost to Maine, we do not see how either Maine or the district court prudently could have failed to take the positions they did. Maine was faced with a possible loss of millions if a timely allotment turned out to be mandatory. On the other hand, if the allotment turned out not to be mandatory, entry of an interim order would do no harm. The Administrator has been unable to persuade us that the order would injure his agency even were Maine to lose on the merits. The allotment ordered, with an express prohibition against obligating the funds until further order of court, does no more than preserve the possibility of effective final relief until the merits of Maine’s claim are decided. If Maine loses, no valid claims against the United States can have been created.

As to Maine’s probability of success on the merits, when the district court entered its order on July 6, 1973, it considered the rulings of several other district courts in favor of the position Maine was advocating. Today’s head count on the Water Pollution Control Act Amendments of 1972, if that is the proper way to refer to the situation, is for courts awarding relief and one declining to do so. This demonstrates to us sufficient probability of success on the merits to support a preliminary injunction. Comment, Executive Impounding of Funds: The Judicial Response, 40 U.Chi.L.Rev. 328 (1973); Note, Impounding of Funds, 86 Harv.L.Rev. 1505(1973).

We do not intimate that the Administrator’s position may not ultimately prevail. But the Administrator can prevail on appeal from a preliminary injunction only if he can show an abuse of discretion. Meccano, Ltd. v. John Wanamaker, 253 U.S. 136, 141, 40 S.Ct. 463, 64 L.Ed. 822 (1920). The court did not abuse its discretion by concluding that Maine’s prospects were sufficiently bright to justify issuance of an interim order which, at no appreciable cost to the federal government, might forestall irreparable loss to Maine.

Order affirmed.

      . City of New York v. Ruckelshaus, 358 F. Supp. 669 (D.D.C.1973) ; Campaign Clean Water, Inc. v. Ruckelshaus, 361 F.Supp. 689 (E.D.Va.1973) ; Minnesota v. EPA, 5 E.R.C. 1586 (D.Minn.1973) ; Martin-Trigona v. Ruckelshaus, 5 E.R.C. 1665 (N.D.I11.1973). Cf. Note, Protecting the Fisc: Executive Impoundment and Congressional Power, 82 Yale L.J. 1636, 1652 (1973).

      . Brown v. Ruckelshaus, 364 F.Supp. 258 (C.D.Cal.1973).


source: Caselaw Access Project

author: GRANT, District Judge.

license: Public Domain

text:
    ALUMINUM COMPANY OF AMERICA, Plaintiff-Appellee, v. ADMIRAL MERCHANTS MOTOR FREIGHT, INC., et al., Defendants-Appellants.
    Nos. 72-1264 thru 72-1266, 72-1505 thru 72-1512.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct 17, 1972.
    Decided July 12, 1973.
    Certiorari Denied Dec. 17, 1973.
    See 94 S.Ct. 843.

      Alvin J. Meiklejohn, Jr., Denver, Colo., Donald B. Levine, Chicago, Ill., for defendants-appellants.
    Ellis A. Ballard, Chicago, Ill., for plaintiff-appellee.
    Daniel J. Sweeney, Chicago, Ill., amici curiae.
    Before DUFFY, Senior Circuit Judge, FAIRCHILD, Circuit Judge, and GRANT, Senior District Judge.

       Senior District Judge Robert A. Grant of the Northern District of Indiana is sitting by designation.

   GRANT, District Judge.

These are consolidated appeals'by various defendant motor carriers from summary judgments entered in favor of the plaintiff-shipper, Aluminum Company of America, in separate enforcement proceedings brought by the shipper to obtain refunds of excess freight charges. The Interstate Commerce Commission had previously ordered the refunds to be paid by the defendant motor carriers to shippers such as the plaintiff and that refund order had been upheld by a three-judge court in Colorado and subsequently upheld by the United States Supreme Court on appeal per curiam. Admiral-Merchants Motor Freight, Inc. v. United States, 321 F.Supp. 353 (D.Colo. 1971), aff’d, 404 U.S. 802, 92 S.Ct. 51, 30 L.Ed.2d 37 (1971).

In the spring of 1968, Middlewest Motor Freight Bureau, on behalf of its members, including the appellant carriers, filed and published proposed rate increases to take effect on 1 April 1968. The I.C.C. had allowed the rates to go into effect on this date but, because of protests by various shippers that the increased rates would be unjust and unreasonable, had instituted an investigation, without suspension, of the lawfulness of the increased rates. The Commission ordered evidence to be filed and set the matter for hearing on 20 May 1968. Two government agencies and the appellants requested a continuance of the evidence filing date and the hearing date on the grounds that the evidence could not be prepared in time. The I.C. C. granted the carriers’ request for a continuance and rescheduled the hearing for 19 August 1968. This continuance, however, was subject to the express condition that in the event that any of the increased rates were not ultimately approved by the Commission, the carriers would then be required to make refunds of all such increases collected on shipments moving after 20 May 1968. The appellant carriers had originally objected to the conditional refund provision but withdrew the objection after realizing that the Commission had, in similar cases, when confronted with a refusal of carriers to comply with a refund condition, denied the carriers’ requested continuance of the hearing. On 5 June 1969 the Commission found that the increased rates and charges had not been shown by the carriers to be just and reasonable, ordered them cancelled, and reiterated the refund language of its original order granting the continuance of the hearing:

It is further ordered, That, in accordance with the order entered herein on April 25, 1968, the respondents be, and they are hereby, required to refund to shippers the charges on shipments moving after May 20, 1968, to the extent that such charges included the increases found not shown to be just and reasonable. Increased Rates and Charges, From, To and Between Middlewest Territory, 335 I.C.C. 142 (June 5, 1969).

The appellants subsequently petitioned the Commission to reconsider and vacate the refund order. On 29 August, 1969, the Commission entered its final order denying the petition and further ordered the carriers, in accordance with the Commission’s decision of 5 June 1969, to “make refund to shippers presenting their claims to the carriers supported by paid freight bills or other appropriate evidence.”

If a carrier does not comply with an order for the payment of money within the time limit in such order . . ., any person for whose benefit such order was made, may file in the district court of the United States . . ., a complaint setting forth briefly the causes for which he claims damages, and the order of the commission in the premises. Such suit in the district court of the United States shall proceed in all respects like other civil suits for damages ....

Plaintiff filed its complaint in the district court originally alleging claims for statutory reparations arising under 49 U.S.C. § 304a, with jurisdiction asserted under 28 U.S.C. § 1337. However, on 7 May 1971, the plaintiff moved for summary judgment asserting new claims for enforcement of the Commission’s refund order pursuant to Section 16(2) of the Interstate Commerce Act, 49 U.S.C. § 16(2). Plaintiff had alleged in its motion for summary judgment that the refund order of the Commission was a final administrative order subject to the provisions of Section 205(g) of Part II of the Interstate Commerce Act, 49 U.S. C. § 305(g), which provides in pertinent part as follows:

Any final order made under this chapter shall be subject to the same right of relief in court by any party in interest as is now provided in respect to orders of the Commission under chapter 1 . . . ,

In effect, plaintiff argued, and the district court held, that Section 16(2) of Part I of the Interstate Commerce Act was incorporated into Section 205(g) of Part II of the Act, thereby providing plaintiff with a statutory remedy for enforcement of the Commission refund order.

Section 205(g) of Part II of the Interstate Commerce Commission Act, 49 U.S.C. § 305(g), provides that any final order made under Part II, which deals with motor carriers, “shall be subject to the same right of relief in court by any party in interest as is now provided in respect to orders of the Commission made under Chapter I (which deals with railroads).” Because no doubt exists that we are dealing with a final order made under Part II of the Interstate Commerce Act and because we have concluded above that the plaintiff is a party in interest to such order, we must, therefore, look to Part I of the Act to determine the scope of the plaintiff’s rights.
# * * * * *X-
While no doubt exists that Section [16] was designed originally to cover orders by the Commission in reparations situations, no reason appears why the valid order of the I.C.C. involved herein for the payment of money, which order clearly is covered under the language of the statute quoted above, should not also be deemed within the purview of this section. Aluminum Co. of Amer. v. Admiral Merch. Motor Frgt., Inc., 337 F.Supp. 674, 681 (N.D.Ill.1972).

The defendants, though denying any liability for a refund, stipulated the amount of refund of freight charges to which the plaintiff would be entitled in each case should the district court conclude that plaintiff was entitled to a refund under the order of the Commission. With this underlying factual stipulation, the district court proceeded to find the legal issues against the carrier and granted plaintiff’s motion for summary judgment. 337 F.Supp. at 682.

Appellants assert numerous arguments on appeal, many of which were presented to and effectively disposed of by the district court. We shall only treat those arguments which we consider as having some residual merit.

Defendants contend, inter alia, that the Commission’s refund language was entered in excess of its jurisdiction and, therefore, is unenforceable. Though recognizing the existence of the holding of the court below that the Colorado three-judge court had conclusively determined the validity of the refund order, thereby precluding all argument on that issue, defendants argue that “the defense of invalidity of an order in an enforcement action is one which must be considered by the enforcement Court,” citing United States v. Southern Ry., 250 F.Supp. 759, 767 (D.S.C.1966). However, as correctly noted by plaintiff-appellee, in the Southern Ry. case there had been no prior proceedings to review the order of the Commission sought to be enforced by the United States. In the instant ease, the refund order has been subjected to review and its validity established by the Colorado three-judge court.

Defendants half-heartedly argue that the refusal of the three-judge panel to enjoin the Commission’s refund order did not constitute a finding that the order was valid. The assertion of this argument requires, as the court below concluded, a “myopic reading of the opinion” of the Colorado three-judge court. 337 F.Supp. at 678. The statement of issues given by the three-judge panel negates any argument that the court was not concerned with the validity of the Commission’s refund order:

We must decide whether an order of the Commission in which a rate increase is denied, which order directs repayment of interim rates, if determined to be invalid, and which refund order was entered by the Commission as a condition of granting an extension of time to the carriers at their request, is invalid and subject to a judgment annulling the same . . . . We are limited to the propriety and validity of a conditioned rate refund order, which order was tacitly or impliedly (by withdrawal of objection) accepted by the carriers, plaintiffs herein. (Our emphasis.) Admiral-Merchants Motor Freight, Inc., supra, 321 F.Supp. at 358.

Admittedly, some of the defendant-carriers whose appeals have been consolidated with the instant appeal were not named plaintiffs in the Colorado action and thus an argument might be made that, as to them, res judicata does not apply. However, as argued by the plaintiff-appellee, those defendant-carriers who were not named plaintiffs in the Colorado proceedings were undoubtedly in privity with the 60 named carrier-plaintiffs, particularly since all of the carriers involved were members of the Middlewest Motor Freight Bureau, Inc., and therefore are still bound under the doctrine of res judicata. Moreover, we are persuaded that the doctrine of stare decisis would also be applicable. We need only cite and adopt the following language of the district court :

The Supreme Court of the United States, however, has affirmed a decision which states that all carriers who were represented by the Middlewest Motor Freight Bureau, Inc., who were involved with the rate increase involved in ICC Docket No. 34971, and who withdrew their objections to the refund order have waived their objections and are' estopped from contesting its validity. Based upon this Supreme Court decision and upon the fact that no suggestion is made that these few carriers were not part of the larger group who withdrew their objection to the refund order, these carriers, notwithstanding their lack of involvement in the Denver case, are estopped from so contesting the validity of the refund order because, under the doctrine of stare decisis, this court must accept the Supreme Court’s holding that all the carriers involved with these tariff increase proceedings are estopped from contesting the validity of the Commission refund order. Aluminum Co. of Amer. v. Burlington Truck Lines, Inc., 342 F.Supp. 166 (N.D.Ill.1972).

The only real issue in the instant appeal is whether the Commission’s refund order is enforceable as an order to pay money within Section 16(2) of the Interstate Commerce Act. As stated previously, the district court held that Section 205(g) of Part II of the Interstate Commerce Act, 49 U.S.C. § 305(g), incorporated Section 16(2) of Part I of the Act and thereby provided plaintiff with a statutory remedy for enforcement of the refund order. 337 F. Supp. at 681. Defendants argue that “since the Congress chose to not give the I.C.C. power to enter orders for the payment of money against motor carriers (there being no Sections 8, 9 or 13(1) in Part II of the Act) there was no reason to incorporate a provision for enforcement of such orders into Part II of the Act.” Defendants further argue that there is a complete lack of any evidence indicating a Congressional intent to create, in Part II of the Act, causes of action for shippers against motor carriers. They note that (a) the legislative history of § 305(g) is devoid of any such Congressional intent; (b) the Commission has made numerous attempts to influence Congress to pass legislation similar to Sections 8, 9, 13(1) and 16 to be added to Part II; and (c) there is not a single case in which Section 305(g) was utilized to create a cause.of action by incorporation of Section 16. Defendants also place considerable reliance upon T.I.M.E., Inc. v. United States, 359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952 (1959) in which the United States Supreme Court held that the Motor Carrier Act did not provide shippers with a statutory right to collect reparations from carriers for recovery of allegedly unreasonable past rates. In particular, defendants rely upon the following statements:

The very provisions of Part I, and their counterparts in Part III, which give a right of action to shippers against carriers for damages incurred by carrier violations of the Act and provide the mechanics for the enforcement of that right are conspicuously absent in the Motor Carrier Act. Thus, whereas § 8 of Part I provides that “any common carrier subject to the provisions of this chapter [who] shall do . any act . in this chapter . . . declared to be unlawful . . . shall be liable to the person or persons injured thereby for the full amount of the damages sustained . . .,” Part II has no comparable provision. Again, whereas § 9 of Part I gives an injured shipper the right to sue in the I.C.C. or in the Federal District Court, Part II contains no comparable provision. In addition, §§ 13(1) and 16 of Part I give a shipper claiming reparation the right to proceed in the Commission and to enforce his reparation award in the courts, and Part II contains no comparable provisions. 359 U.S. at 470-471, 79 S.Ct. at 908.

Defendants’ reliance is misplaced. The T.I.M.E. decision is clearly distinguishable since it involved the shippers’ right to reparations not their right to enforce a valid refund order. As stated by Judge Will in the court below, “in no sense did the T.I.M.E. decision consider the issue of whether, when the Commission does issue a valid refund order under Part II, the shippers for whose benefit the order was issued can proceed under Section 16(2) of Part I.” Admittedly, there is a dearth of legislative history and/or cases to which the court might look for assistance in interpreting § 305(g). Nevertheless, the plain language of the statute provides ample basis for the district court’s conclusion that the statute incorporates § 16(2) of Part I: “Any final order made under [Part II] shall be subject to the same right of relief in court by any party in interest as is now provided in respect to orders of the Commission made under [Part I].” 49 U.S.C. § 305(g).

We are mindful of the fact that the Commission, “as a generally accepted procedure,” does not have statutory authority to order the payment of refunds under the Motor Carrier Act and that the refund order in question was only justified on the basis of the Commission’s procedural powers, coupled with the equitable estoppel and waiver conditions which were found to exist by the three-judge panel. Moreover, we recognize that the Colorado court expressly stated that it was not determining the enforceability of the refund order and that it was not commending the procedure, i. e., the conditional refund order issued by the Commission, “as one which should be or could be practiced ,” Nevertheless, the court did establish the validity of the order and its decision was affirmed by the Supreme Court. And, like the district court below, we know of “no reason why the valid order of the 1. C.C. involved herein for the payment of money . . . should not be deemed within the purview of . section [16(2)].”

Defendants assert that numerous unresolved and contested issues of material fact remained for decision when summary judgment was granted, including whether or not the rates involved were historically just or reasonable and the validity of the Commission’s “not shown” finding.

We question the relevancy of the historical reasonableness of the rates inasmuch as the Commission’s original refund order, as noted by the plaintiff-appellee in its brief, “was conditioned on whether ‘the increases or any portions thereof under investigation herein are not approved by the Commission.’ Appendix 212,” rather than the historical reasonableness of the rates. More importantly, we note, with reference to all of the alleged unresolved issues of material fact, that the defendant carriers failed to file any counter-affidavits even though Section 16(2) states that “the findings and order of the commission shall be prima facie evidence of the facts stated therein . . . . ” The district court correctly considered the defendants’ failure to file counter-affidavits in support of their claim that they did meet their burden of proof before the Commission as being fatal to such claim. We find without merit defendants’ remaining contentions concerning the existence of other alleged unresolved issues of material fact.

Finally, defendants argue that several jurisdictional conditions precedent to the maintenance of an enforcement suit pursuant to Section 16 were not present. However, with one exception, we find little merit in any of the alleged “jurisdictional conditions precedent.” As for the exception, defendants argue that no time had been set forth in the order on or before which compliance was required and that the absence of this jurisdictional prerequisite precludes enforcement, citing Missouri Pacific Railroad Company v. Austin, 292 F.2d 415, 417, 418 (5th Cir. 1961) and, in particular, Railroad Yardmasters v. Indiana Harbor Belt R. Co., 166 F.2d 326, 329 (7th Cir. 1948). The latter case involved an action brought to enforce an order of the National Railroad Adjustment Board issued under the Railway Labor Act. The Board had entered an award after an administrative hearing, in favor of the yardmasters’ union, holding that the railroad had violated seniority provisions of the union’s employment contract. The Board also ordered the railroad to make the award “effective”. Upon the failure and refusal of the railroad tó do so, the union commenced its enforcement suit.

The statute granting the right of enforcement read, in pertinent part, as follows :

If a carrier does not comply with an order of a division of the Adjustment Board within the time limit in such order, the petitioner . . . may file in the District Court of the United States ... a petition setting forth briefly the causes for which he claims relief, and the order of the division of the Adjustment Board in the premises. (Our emphasis.)

In affirming the district court’s dismissal of the union’s complaint, the reviewing court stated as follows with reference to the “time limit” language of the statute: “In view of this unambiguous language, we are not able to discern either the authority of the beneficiary of an award to seek its enforcement or the jurisdiction of the court to entertain such action in the absence of a tíme limit contained in the order.” The court proceeded to hold that the

. plaintiff’s right to enforcement as well as the court’s jurisdiction is dependent upon Par. (p), and clearly such authority and jurisdiction is conferred only on the contingency of non-compliance within the time limit provided in the order. It is our conclusion that an action for enforcement cannot be maintained upon an order which fixed no time limit for compliance.

Appellants argue that because the statute in question contains almost identical language, the same interpretation and conclusion should be applicable, i. e., “that an action for enforcement cannot be maintained upon an order which fixes no time limit for compliance.” We disagree. The refund order in the case at bar, while functioning as an order for the payment of money within the scope of § 16(2), is predicated upon the procedural authority of the Commission rather than any express statutory authority such as provided by § 16(1) of the Interstate Commerce Act or § 153(o) of the Railway Labor Act. Thus, there was no statutory requirement that a refund order issued pursuant to this procedural authority contain a time limit for compliance.

We note also that in the Railroad Yardmasters case, a major reason attributed by the court for the statutory requirement that refund orders include a time limit for compliance was to ensure that both shippers and carriers could determine with certainty not only when the carriers were “in default and subject to an enforcement suit but also when the limitation period for such suit would expire.” However, in the case at hand, the defendant-carriers and the plaintiff-shippers could easily have determined these limitation periods since the applicable statute of limitations requires that “a complaint for the enforcement of an order of the commission for the payment of money shall be filed . within one year from the date of the order, and not after.” This statute of limitations also provides ample protection for the defendant-carriers against any stale claims shippers might now attempt to assert. For these reasons, we find the Railroad Yardmasters case distinguishable.

We remind defendants that we are concerned with plaintiff’s “right of relief,” i. e., its right to enforcement of the refund order, and not its compliance with technical requirements of questionable applicability. We find it inappropriate for the defendants who had initially agreed to comply, “impliedly (by withdrawal of objection)” if not expressly, but later refused to comply, with the conditional refund order of the Commission, to now assert the Commission’s failure to include a time limit for compliance in the refund order as precluding enforcement of the order. Having accepted the benefits afforded by the continuance of the rate hearing, defendants should now be required to provide the agreed-upon exchange — the quid pro quo.

The judgment of the district court is Affirmed.

      . The order granting the continuance read, in pertinent part, as follows :

        It is further ordered, That the time for filing the requested information and supporting data be, and, it is hereby extended to August 5, 1968; that the hearing be, and, it is hereby postponed to August 19, 1968, conditioned upon respondents’ compliance with the refund provision ordered below ....

        And it is further ordered, That respondents be, and they are hereby, ordered to make refunds to the shippers on any shipment moving after May 20, 1968, to the extent that the increases or any portion thereof under investigation herein are not approved by the Commission. Increased Rates and Charges, From, To and Between Middlewest Territory, I.C.C. No. 34971 (Order of April 25, 1968).

      . Increased Kates and Charges, From, To, and Between Middlewest Territory, I.C.C. No. 34971 (Order of August 29, 1969).

      . Section 16(2) of Part I of the Act, 49 U.S.C. § 16(2), provides in part as follows :

      . Part I of the Interstate Commerce Act concerns railroads whereas Part II deals with motor carriers.

      . See excellent discussion by Judge Hunter in Proctor and Gamble Company v. Byers Transportation Company, Inc., 355 F. Supp. 547 (W.D.Mo.1973).

      . Shippers were subsequently granted a limited right to reparations against motor carriers when Congress amended § 304a of Title 49 in 1965. See generally, 1965 U.S.Code Cong, and Admin.News, p. 2923.

      . 337 F.Supp. at 682.

      . United States Gypsum Company v. United States, 253 F.2d 738, 744 (7th Cir. 1958).

      . Admiral-Merchants Motor Freight, Inc., supra, 321 F.Supp. at 359.

      . Ibid.

      . Id. at 360.

      . 337 F.Supp. at 681.

      . Brief for Appellee, p. 22.

      . 49 U.S.C. § 16(2).

      . Aluminum Co. of Amer. v. Burlington Truck Lines, Inc., supra; Supp.Appendix 189-193; see Rule 56(e), F.R.Civ.P.

      . 45 U.S.C. § 153 (p).

      . 166 F.2d at 329.

      . Ibid.

      . Both of these statutory provisions, while expressly authorizing the appropriate administrative agency to enter refund orders, also explicitly require that the orders contain a time limit for compliance.

      . Railroad Yardmasters, supra, 166 F.2d at 329.

      . 49 U.S.C. § 16(3) (f).

      . 49 U.S.C. § 305(g).

      . 321 F.Supp. at 358.


author: SPRECHER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James DAVIS, Jr., Defendant-Appellant.
    No. 72-1940.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 18, 1973.
    Decided Oct. 11, 1973.
    W. Henry Walker, E. Chicago, Ind., for appellant.
    John R. Wilks, U. S. Atty., Hammond, Ind., for appellee.
    Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and SPRECHER, Circuit Judge.
   SPRECHER, Circuit Judge.

The defendant-appellant, James Davis, Jr., was convicted upon a jury trial of violating 21 U.S.C. § 841(a)(1), possession of heroin with intent to distribute, and sentenced to five years imprisonment.

Upon appeal three issues have been raised: (1) sufficiency of the evidence; (2) competency of a co-defendant, inasmuch as he admitted being under the influence of narcotics at the time about which he testified; and (3) the absence of the defendant for 25 minutes at the beginning of the second day of trial.

The co-defendant, Frederick W. Scott, who pleaded guilty to the lesser charge of possession, testified that he sold drugs at Apartment 2-S, 622 East 7th Street in Gary, Indiana, for defendant, that he received the drugs from defendant and that he delivered the sale money to the defendant. He further testified that on June 14, 1971, he sold an ounce of heroin at Apartment 2-S to one Clarence Hobson who paid him $500 in bills with serial numbers recorded by the Bureau of Narcotics and Dangerous Drugs; and that although defendant was not at the apartment when Hobson arrived, he subsequently appeared, weighed the heroin, gave it to Scott for delivery to Hobson, and received the recorded bills from Scott.

Several witnesses testified that two weeks later, on June 28, 1971, Bureau agents searched Apartment 2-S pursuant to a search warrant and found heroin and narcotics paraphernalia in the bedroom where defendant had been sleeping. The agents also found $100 of the recorded bills among defendant’s money in the bedroom.

Defendant testified in his own behalf that the apartment was not his, that it was rented to a girl friend, that he had dropped in the night before the search with another girl friend, and that he had no connection with Scott’s narcotics business.

In addition to Scott’s testimony and the recorded bills, there was evidence that defendant’s mother owned the building at 622 East 7th Street, that his sister lived in Apartment 1 in the building, and that two receipts in the bedroom of Apartment 2-S listed defendant’s address as at that apartment. Although we need not decide that issue, there was probably sufficient evidence in addition to Scott’s testimony to support the jury’s verdict.

However, the trial judge did not err in failing to inquire into the competency of Scott as a witness. There is no indication. that Scott was under the influence of narcotics while testifying. The defense made no request that the Court conduct an inquiry as to Scott’s competency. Many details of Scott’s testimony were corroborated by other evidence. Scott’s condition at the times about which he was testifying was developed on cross-examination. “The question ... is not one of admissibility but rather one of credibility and the proper weight to be accorded his testimony. Such are jury functions.” United States v. Haili, 443 F.2d 1295, 1299 (9th Cir. 1971). Accord, United States v. Pate, 427 F.2d 1010, 1014 (7th Cir. 1970).

Defendant’s final contention related to his absence from the trial for 25 minutes. The trial commenced on July 12, 1972 at 1:00 o’clock in the afternoon and proceeded until 4:50 o’clock, at which time the court announced that “[W]e will be in recess now until ten o’clock tomorrow morning.”

The following occurred the next morning, July 13, 1972:

“THE COURT: When we ad-
journed yesterday we said we would meet at 10:00 o’clock.
“Let the record show the defendant was directed to be here for trial at 10:00 o’clock this morning. It is now 10:20. The Court finds that the defendant has voluntarily absented himself from the courtroom after the trial had started. He is free on bond, and he was directed to be here at 10:00 o’clock but has failed to show. Therefore, we will proceed in his absence.”

During defendant’s absence, Scott testified. He was cross-examined at length by defense counsel. Following Scott’s cross-examination, Special Agent John-stone testified. At 10:45 o’clock in the morning, 25 minutes after the trial had commenced that morning and in the middle of the direct examination of Johnstone, the defendant entered the courtroom. After Johnstone’s cross-examination the government rested. Up to this point, defense counsel had made no objection relating to defendant’s absence. At this time, counsel moved for an order of acquittal but did not base it upon defendant’s absence. After denying defendant’s motion for acquittal, the court asked the defendant why he was late. Defendant replied:

* -X- -X- -X- -X- -X-
“I got caught by a train.
“A fellow was bringing me over, I didn’t know how to get over, we had to ask someone afterward.”

Rule 43 of the Federal Rules of Criminal Procedure provides in part as follows:

“In prosecutions for offenses not punishable by death, the defendant’s voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict.”

Both defendant and his counsel were in the courtroom when the judge set the 10:00 o’clock commencement for the second day of trial. In fact, no claim is made of lack of notice. The defendant had previously been tried in the same court on a bank robbery charge; he had been present for his arraignment; he had been present in court the previous day; he knew where the court was located and the time to be reasonably allowed to arrive there on schedule. The trial judge waited 20 minutes before proceeding. At that point defendant’s mother, who was in court on time, advised the judge that the defendant had left home, presumably at or before the time that she had.

In Illinois v. Allen, 397 U.S. 337, 342-343, 90 S.Ct. 1057, 1060, 25 L.Ed.2d 353 (1970), the Supreme Court held that the right of a defendant to be present at every stage of his trial was not absolute and that he “can lose his right to be present at trial . . ..” Much earlier the Court had held that a defendant who knowingly absents himself from the courtroom during trial “leaves the court free to proceed with trial in like manner and with like effect as if he were present.” Diaz v. United States, 223 U. S. 442, 455, 32 S.Ct. 250, 254, 56 L.Ed. 500 (1912).

In United States v. Tortora, 464 F.2d 1202, 1208 (2nd Cir. 1972), the court, in affirming a conviction where the defendant was not present at any time from the empanelment of the jury, held that “the trial may start in his absence if he deliberately absents himself without some sound reason for remaining away.” (Emphasis added). The court further held that where the defendant is voluntarily absent, the trial judge’s discretion should govern whether the trial should proceed without him (464 F.2d at 1210).

In this case, the defendant was absent for only 25 minutes in the middle of the trial. It is true that an important witness testified in his absence but defendant’s attorney cross-examined that witness without any objection that he was impaired by the defendant’s absence. The witness had barely left the stand when the defendant appeared and no request was made to recall the witness.

Although it should be a rare case indeed where a trial proceeds without the defendant, we do not find under the circumstances of this case that the trial court abused its discretion.

Judgment of conviction affirmed.

Affirmed.


author: EAST, District Judge: WRIGHT, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Gerald Eugene DISHMAN, Defendant-Appellant.
    No. 72-2087.
    United States Court of Appeals, Ninth Circuit.
    Sept. 21, 1973.
    Rehearing Denied Dec. 5, 1973.

      Martin Levine, Deputy Federal Public Defender (argued), Los Angeles, Cal., for defendant-appellant.
    David Fox, Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Eric A. Nobles, William John Rathje, Asst. U. S. Attys., Los Angeles, Cal., for plaintiff-appellee.
    Before WRIGHT and WALLACE, Circuit Judges, and EAST, District Judge.

       Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation.

   OPINION

EAST, District Judge:

STATEMENT OF PROCEEDINGS

The defendant-appellant Gerald Eugene Dishman (Dishman) was charged under a United States Attorney’s Information of the crime of “attempting to board ... an aircraft . . ., then and there having on or about his person a .22 caliber starter pistol, a concealed, deadly and dangerous weapon,” in violation of Title 49 U.S.C. Section 1472 (l)-

Dishman was convicted and sentenced after a trial to the court. He appeals, asserting a claim of unlawful search and seizure, and further, that the District Court erred in finding that the charged starter pistol constituted a “deadly and dangerous” weapon within the meaning and proscription of the subsection (l).

Facts

On January 27, 1972, Dishman arrived at the boarding gate for Western Airlines Flight 560, a regularly scheduled flight from Los Angeles International Airport to Salt Lake City, Utah. He presented his ticket, received a boarding pass and joined, at the end, the line of passengers being processed through the active field of the magnetic metal detecting device then in service. On two successive passthroughs by Dishman a high reading of the presence of metal was signaled. When confronted by the Marshal in charge, Dishman first denied he was carrying any metal object and then retrieved from his jacket pocket and handed to the Marshal the charged object, saying, “Here, I forgot I was carrying this.” The Marshal testified, “I took the gun from the defendant. I informed him he was under arrest for carrying a weapon upon boarding an aircraft.” “It is a 22 caliber blank pistol, starter pistol, as we refer to it.” “The weapon has a cylinder with a bore approximately 22-thousandths or 22 caliber, I’d say, with eight bores in the cylinder which would allow it to carry eight 22-caliber blanks. The cylinder rotates just as any normal revolver would. By cocking the hammer you would rotate the cylinder, placing a live blank directly under the firing pin. The weapon does have a fixed firing pin.” In answer to the question, “Is that weapon, as it is presently made, capable of firing a projectile,” the Marshal responded, “Not in that state, no sir!” Later, “The only danger would be if the weapon was held close enough to an individual you could probably receive powder burns.” Other testimony established that the intended use and purpose of the starter pistol was a blank cartridge firing pistol making a loud pop, similar to a toy cap pistol upon being fired. The barrel was solidly plugged near the end and the cylinder cartridge retaining holes or bores were half filled with metal and incapable of receiving and holding cartridges. The Marshal, when asked to describe briefly how the “weapon” could be “made capable of firing a projectile,” replied, “You would take the cylinder and the bores that are already in the cylinder that are at the present time half open, if you bored those out with a drill to where they would be the full bore and then cut the barrel off at the end of the frame, the weapon could be used to fire 22-caliber ammunition bullets, projectiles.”

Construction of the Statute

We acknowledge that the subsection (l) together with its companion subsections (proscribing crimes aboard the airplane) are geared and aimed at controlling and containing the ever growing peril and threat to the safety of the lives and property of the traveling public. Further that the congressional purpose behind the subsection, as with all statutes proscribing the carrying of concealed “deadly and dangerous” weapons generally, is to avoid ready availability of a “deadly and dangerous” weapon for use in the perpetration of a crime aboard an aircraft. 94 C.J.S. Weapons § 2(f), page 479; House Rep. § 958, 2 U. S.Code Cong. & Admin.News 1961, 2563. Nevertheless, the section is a criminal statute proscribing definite and certain conduct, i. e., the carrying of a concealed “deadly and dangerous” weapon when boarding an aircraft, no more and no less.

Congress did not attempt to define the terms “deadly or dangerous” weapon, finding this not feasible, practical or necessary and leaving it to the court to determine in each case, on an ad hoc basis, whether the weapon was deadly or dangerous. House Rep. cited, 2 U. S.Code Cong. & Admin.News 1961, at 2570 and 2575. Accordingly, then in the process of measuring and fitting the facts of this case to the language of the subsection (l) within itself we are obliged to and must be guided by the statutory construction truism that “a criminal statute proscribing an act must be strictly construed against the prosecution and liberally in favor of the accused.” United States v. Resnick, 299 U.S. 207, 57 S.Ct. 126, 81 L.Ed. 127 (1936); Ornelas v. United States, 236 F.2d 392 (9th Cir. 1956).

Discussion

The material elements of the charged offense are:

1) an attempt on the part of a person to board an aircraft; and

2) then having on his person a concealed “deadly and dangerous weapon.

Any necessary element of present or later developed intent to make use of the “deadly and dangerous” weapon in the commission of a crime while aboard the aircraft is conspicuous by its utter absence.

It is readily manifest that the proscribed weapon must be one that is a “deadly and dangerous” weapon per se or inherently so through its construction:

“ . . . a dangerous or deadly weapon is one which in its intended or readily adaptable use is likely to produce death or serious bodily injury.” 94 C.J.S. Weapons, § 6(c), page 489; Generally speaking, “[a] deadly weapon is one likely to produce death or great bodily injury.” The character of an implement as a deadly weapon is determined by its capacity to inflict death or injury, and a toy, or a chocolate candy pistol has no ability to commit a violent or any injury on the person of another, unless used as a club. See People v. Vaiza, 244 Cal. App.2d 121, 52 Cal.Rptr. 733 (1966). A review of the authorities in this

circuit pinpoints the clear distinction the law makes between objects that are “deadly and dangerous” weapons per se and other objects that by reason of their use become “deadly and dangerous” weapons.

Per Se Rationale:

In Price v. United States, 156 F. 950 (9th Cir. 1907), the statute under consideration forbade an assault upon another with a dangerous weapon. The defendant pointed an unloaded pistol in a threatening manner at another. The court held the act was certainly an assault but the conviction of the defendant of assault with a dangerous weapon cannot be sustained.

“In order to constitute that offense, a dangerous weapon must be used in making the assault. The use of a dangerous weapon is what distinguishes the crime of an assault with a dangerous weapon from a simple assault. A dangerous weapon “is one likely to produce death or great bodily injury.’ U. S. v. Williams (C.C.) 2 F. [61] 64.”
“If the defendant had struck or attempted to strike with it, the question whether it was or was not a dangerous weapon in the manner used, or attempted to be used, would be one of fact; but the courts quite uniformly hold as a matter of law that an unloaded pistol, when there is no attempt to use it otherwise than by pointing it in a threatening manner at another, is not a dangerous weapon.”

Price in its context has been followed consistently as late as United States v. Davis, 429 F.2d 552 at 555 (8th Cir. 1970), and is in conformity with the general rule. Witkin, California Crimes, § 267, at 252 (1963).

Use Rationale:

In this category fall Wagner v. United States, 264 F.2d 524 (9th Cir. 1959) (Post Office robbery statute containing an escalator clause for those putting lives in jeopardy “by the use of a dangerous weapon or device,”; charged object: hand gun inferred to be loaded); Evalt v. United States, 382 F.2d 424 (9th Cir. 1967) (Bank robbery statute containing an escalator clause for those putting lives in jeopardy “by the use of a dangerous weapon or device,”; charged object: an unloaded gun); United States v. DePalma, 414 F.2d 394 (9th Cir. 1969) (Bank robbery statute containing an escalator clause for those putting lives in jeopardy “by the use of a dangerous weapon or device,”; charged object: an unloaded gun). In each of these cases the court applied a standard of use to the objects charged emphasizing the propensity of the charged object to cause: a. bodily injury when used as a club or bludgeon; and b. the victim to reasonably infer that the pistol is ready to fire and placed in object fear of harm and submission. It is with such use by a person and only then that the inert object becomes a “deadly and dangerous” weapon.

It is of interest to note that in none of the cases was Price distinguished or otherwise alluded to. We suggest that the reason for this was not an oversight of an early decision, but an acknowledgment that Price was dealing with a charged inert object, as it must under the statute, in the context of its own inherent “capacity to inflict death or injury.” While Wagner, and the other use rationale cases, were dealing with a charged inert object, as they must under their respective statutes, in the context of the actual factual use of the object in the hands of another as a weapon to cause death or serious bodily injury or to place a reasonable person in object fear of such and induce submission.

The government relies heavily upon United States v. Cook, 446 F.2d 50 (9th Cir. 1971); United States v. Ware, 315 F.Supp. 1333 (W.D. Okl.1970); Jackson v. State, 231 M.D. 591, 191 A.2d 432 (Md.1963); and United States v. Bissett, Cr., 71-139-J (D.Mass. April 22, 1971), all of which, except Jackson, involve the boarding of an airplane while carrying an unloaded pistol. Jackson involves a robbery with a deadly weapon statute with the use of a .22 caliber starter pistol. Cook falls in the per se rationale category. Ware and Jackson fall in the use rationale category. Bis-sett, although similar in fact as presented here, is of no weight or help whatsoever in the solution of our query. A plea of guilty was entered by the defendant.

The entire opinion in Cook reads as follows:

“The judgment of conviction is affirmed. Cook carried a concealed but empty .38 calibre [sic] pistol into the jetway connected to an Eastern Airlines plane at Los Angeles where he was stopped.
“For the purposes of 48 U.S.C. § 1472(1) we hold that the empty gun was a dangerous weapon.”

Since Cook does not allude to Price, we assume the facts there present distinguished the “empty .38 calibre [sic] pistol” from the unloaded pistol in Price. It appears that Cook extends the rule of per se definition in Price to include a “deadly and dangerous” weapon as one readily made likely “to produce death or great bodily injury.” For example: a flip of the hand can insert a live cartridge into an empty .38 caliber pistol.

However, under the facts here the starter pistol carried by Dishman was an inert object, neither its intended use nor readily adaptable use was likely or readily made likely to produce death or great bodily harm. It would take a machinist considerable time with metal cutting drill and saw to convert it into any semblance of an operating weapon likely to produce death or great bodily harm.

The plain language of subsection (Í) proscribes the carrying of “deadly and dangerous” weapons and we hold that Dishman’s starter pistol as a matter of law is just not a “deadly and dangerous” weapon per se.

Subsection (l) is a non-intent statute, a starter pistol is in no different position than a toy gun or candy gun or pair of scissors. Of course, the situation would be different if use were made of a starter pistol on an airplane to perpetrate a skyjacking. In that situation, one is in the same position that a bank robber is when he uses a decoy gun, and the factual use rationale would apply.

We cannot read into the language of the subsection a proscription of the carrying of any object which has the capacity to be used in the furtherance of a crime aboard an aircraft. Congress did not exercise its power to forbid the carrying of such objects aboard airplanes and for us to supply such language to the subsection would not be a judicial construction of the statute but on the contrary a judicial legislation of an ex post facto criminal law and we decline to do so.

Ware and Jackson do just that. They use a rationale of probable or possible uses of the charged object and then transfer to the unloaded pistol the actual factual use definition of a deadly and dangerous weapon, and we decline to follow.

It is unnecessary for us to deal with Dishman’s claim of invalid search and seizure.

The judgment of conviction and sentence is reversed and the cause remanded to the District Court for further proceedings.

Reversed and remanded.

WRIGHT, Circuit Judge

(dissenting):

Respectfully, I disagree and would affirm the judgment of conviction.

The statute in question was intended to prevent passengers from carrying aboard aircraft those weapons or facsim-ilies which could readily be used in acts of air piracy. The starter gun used here is just such an article. I would hold that it falls within the meaning of “deadly and dangerous weapon”, as that term is used in the statute.

I am unable to distinguish this from the weapon used in United States v. Cook, 446 F.2d 50 (9th Cir. 1971), discussed in the majority opinion.

I would affirm.

      . The pertinent portions of subsection (l) “except . . . officers whoever attempts to board ... an aircraft while having on or about his person a concealed deadly or dangerous weapon, shall be fined, etc.”

      . The District Court stated in its oral findings : “I also feel that the starter pistol in the context of boarding an aircraft is a dangerous weapon.”

      . The crime, if any, is committed by that conduct with or without intent as to subsequent use of the “deadly and dangerous” weapon while aboard the airplane. Any unlawful use of the “deadly and dangerous” weapon while aboard the aircraft is proscribed by other subsections of the statute.

      . Examples: A starter pistol, toy or candy pistol useable as a lookalike real thing; a razor useable as a knife; a businessman’s letter opener useable as a dagger; a fountain pen useable to assimilate a pistol in the course of a robbery.


author: PER CURIAM.

text:
    Charles William CATON, Petitioner-Appellant, v. P. G. SMITH, Warden, Respondent-Appellee.
    No. 72-1557.
    United States Court of Appeals, Seventh Circuit.
    Heard Sept. 13,, 1973.
    Decided Oct. 3, 1973.
    Michael B. Nash, Chicago, Ill., for petitioner-appellant.
    Stanley B. Miller, U. S. Atty., Richard L. Darst, Asst. U. S. Atty., Indianapolis, Ind., for respondent-appellee.
    Before KILEY, CUMMINGS and SPRECHER, Circuit Judges.
   PER CURIAM.

Petitioner is incarcerated in the Federal Penitentiary in Terre Haute, Indiana. In April 1972, he filed a petition for writ of habeas corpus based on alleged improprieties of the United States Parole Board in revoking his parole.

In 1967, petitioner had been imprisoned under an 8-year sentence for attempted bank robbery in violation of 18 U.S.C. § 2113(a). He was released on parole in December 1969. At that time, he subscribed to twelve conditions of parole. Conditions 8 and 11 are the pertinent ones and provide:

“8. You shall not enter into any agreement to act as an ‘informer’ or special agent for any law-enforcement agency.”
“11. You shall not associate with persons who have a criminal record unless you have permission of your probation officer. Nor shall you associate with persons engaged in criminal activity.”

On September 11, 1970, a parole violator’s warrant application was issued, charging petitioner with violating his conditions of parole by (1) robbery and attempted robbery, (2) association with persons having criminal records, and (3) possessing a firearm. In the same month, a parole revocation hearing was held before Joseph E. Doneghy, an employee of the United States Parole Board. The evidence adduced at that hearing will be discussed infra. Petitioner’s parole was revoked on September 25, 1970.

In his pro se petition for habeas corpus, petitioner complained that he had no attorney at his parole revocation hearing and that a very important witness in his behalf was not allowed to be heard. That witness was Hudson Olliff, then a lawyer and later a Jacksonville, Florida, judge. Petitioner wanted 01-liff’s testimony to show that he had advised petitioner to work as an informant with the Florida police while on parole. In part, the petition alleged as follows:

“While on parole in Jacksonville Florida, I was told by the local police that I must act as an informer. They threatened to send me back to prison if I did not help them. They even told me they had got the ok from the parole officer for me to do this. Then when I was arrested and there was a hearing, I found they had lied to me and had never got the ok from the parole officer.”
“At the parole hearing, Captain Heard of the Jacksonville police admitted that he had falsely told me he had got the ok of the parole officer for me to do undercover work for the police.”

In a brief memorandum opinion, the district court dismissed the petition, stating that the parole board had abundant evidence on which to base the revocation. Relying upon Morrissey v. Brewer, 443 F.2d 942 (8th Cir. 1971), reversed, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, and similar precedents, the district court held that due process requirements do not extend to parole proceedings. We reverse.

In the brief filed here by seasoned appointed counsel, petitioner first asserts that he was entitled to due process protection in the parole revocation proceeding, particularly relying upon Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. Although the due process requirements spelled out in that case were not made retroactive (408 U.S. at 490), our examination of this 1970 parole board proceeding satisfies us that minimal due process requirements were observed. Gagnon v. Searpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, indicates that there is sometimes a right to counsel in parole revocation hearings, but we need not decide whether that case, like Morrissey, is prospective only, for at the commencement of this parole revocation hearing petitioner waived counsel. We also hold that petitioner was not deprived of a vital witness by the inability of Judge Olliff to appear before the parole board because his proposed testimony was merely cumulative.

Finally, we reach the question whether the parole board could properly revoke the parole on this record. The undisputed facts developed at the revocation hearing show that petitioner had been arrested in May 1970 by the Jacksonville, Florida, Police Department and charged with murder and robbery in connection with a Brink’s armored car holdup. The arrest was based on an incorrect identification from an old photograph. While he was held in jail on the Brink's charge, Captain Heard and Sergeant Johnson of the Jacksonville Police Department visited petitioner and talked to him about cooperating with them in procuring evidence against one Jimmy Floyd Wright, a suspected burglar of supermarkets and a former acquaintance of petitioner. He told Heard that he was not guilty in the Brink’s case. This was also Heard’s view. Heard quoted petitioner as saying “he didn’t want to get railroaded and he would cooperate with us in any way if he could get out on the street.” At that time, Heard specifically solicited petitioner’s help in tracking down Wright. Petitioner agreed to work with the police and was released on bond. Soon afterwards, the grand jury returned a no bill with respect to the Brink’s charge. It seems likely that petitioner would not have agreed to act as an informant had it not been for the pending false charge.

Petitioner was told by Heard and Johnson that parole officer Cunningham had been told of the informer scheme and had approved it. Assistant State’s Attorney Richardson also agreed to the scheme and said he would explain it to Cunningham. In truth, Cunningham was not advised of the agreement to have petitioner participate in Wright’s robberies until after they occurred. In reliance on these statements, petitioner himself did not seek parole officer Cunningham’s clearance.

Petitioner did not read the conditions of parole before signing the Certificate of Parole. He would not have agreed to cooperate with the Jacksonville Police Department if Cunningham had told him that this would be a violation of his parole. At first Wright did not trust petitioner and would not confide in him. Petitioner testified that he reported this to the police, and that “I said the only possible way would be to participate, to get involved with them. He [Johnson] said well that’s what we want you to do. We want you to get involved.”

Petitioner then became involved in and advised the Police Department of the robbery of the Russell residence and the attempted robbery of the Woods’ residence in Jacksonville as described in the warrant application. He was accompanied on those holdups by Wright and Hargarette Addison (or Allison) but did not carry a gun on either occasion. Both Wright and Addison were subsequently jailed for these offenses, but charges were dropped against petitioner.

As to the allegedly unauthorized possession of a firearm, the corroborated evidence at the hearing before the parole board shows that the gun found in petitioner’s residence was deposited there by Sergeant Johnson to protect petitioner’s family from threats from Wright’s associates who were angered by petitioner’s having become a stool pigeon.

We will not overturn the actions of the parole board unless it has acted arbitrarily or capriciously or unless as a matter of law there has been no violation of parole. E. g., Clark v. Stevens, 291 F.2d 388 (6th Cir. 1961); United States ex rel. De Fillo v. Fitzpatrick, 378 F.2d 85, 87 (2d Cir. 1967). But when a parole board has acted arbitrarily and capriciously in returning a parolee to prison, then the courts must order the prisoner released. United States ex rel. De Lucia v. O’Donovan, 178 F.2d 876 (7th Cir. 1949), certiorari denied, 340 U.S. 886, 71 S.Ct. 204, 95 L.Ed. 643 ; see also Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 242 (1963), certiorari denied sub nom. Jamison v. Chappell, 375 U.S. 957, 84 S.Ct. 447, 11 L.Ed.2d 316; Cottle v. Wainwright, 338 F.Supp. 819 (M.D.Fla.1972). The evidence in this record clearly establishes such arbitrary and capricious action.

Breach of parole conditions is a necessary but not sufficient ground for parole revocation, for the board is required to determine whether the violator is still a good parole risk, and he may bring extenuating factors to the board’s attention. United States ex rel. Vance v. Kenton, 252 F.Supp. 344, 346 (D.Conn.1966). Here the evidence of extenuating circumstances was overwhelming. Petitioner, his wife, his mother-in-law, Captain Heard and Sergeant Johnson each told the same story without material inconsistency, and without contradiction by any other witness. Their testimony shows that petitioner’s parole was revoked solely because of what transpired as a result of his cooperation with the Jacksonville, Florida, Police Department. He and other witnesses were falsely told that this arrangement had been cleared with his parole officer. Petitioner had not read the conditions of his parole and did not know that working as an informant was not permitted. He may have been negligent, but his good faith has not been questioned. To paraphrase United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366, “Congress could not have intended * * * [parole revocation] for a defendant who has committed all the elements of a prescribed offense, but who was induced to commit them by the government.” Entirely aside from the unfairness of this revocation, this parole violation under these circumstances simply does not suggest that petitioner has become a bad risk. We do not question the general policy of forbidding parolees to work as informers, but that policy loses its vitality where police officers, knowing an individual is on parole and knowing he is concerned that he not violate his parole, repeatedly tell him that acting as an informer is not a parole violation and that everything has been cleared with his parole officer. In addition to the extenuating evidence, there was further un-contradicted evidence from the Vice President of petitioner’s employer that petitioner was performing well in his job in which he had been given substantial responsibility, and that he was doing charitable work for a civic organization. This reinforces the conclusion we have reached.

At oral argument, the Government relied heavily on an allegation that petitioner was in possession of stolen meat and cigarettes when arrested. But no such violation is charged in the parole board’s warrant application. There is no evidence in the record before us that these goods were stolen, and there is evidence that they were purchased. In any event, we are satisfied from the record that petitioner’s work with the Jacksonville police is the true reason his parole was revoked. We conclude that on the bizarre facts of this case, the parole board acted so arbitrarily that petitioner must again be released on parole.

Reversed with directions to grant the writ forthwith.

       After the Brink’s robbery petitioner’s wife turned over some cartons of cigarettes to the police pursuant to a search warrant. She testified that her husband purchased them through a Navy base source. She did not turn over any meats to the police. Petitioner testified he bought them through a friend’s brother’s fish market.


text:
    UNITED STATES of America ex rel. John SMITH, Petitioner-Plaintiff-Appellant, v. John TWOMEY, Warden, Respondent-Defendant-Appellee.
    No. 73-1461.
    United States Court of Appeals, Seventh Circuit.
    Heard Sept. 10, 1973.
    Decided Sept. 18, 1973.
    Rehearing En Banc Denied Nov. 15, 1973.

      Marshall Patner, Kenneth N. Flax-man, Chicago, 111., for appellant.
    William J. Scott, Atty. Gen., Raymond MeKoski, Asst. Atty. Gen., Chicago, 111., for appellee.
    Before CUMMINGS, PELL, and STEVENS, Circuit Judges.
   PER CURIAM.

In this action, petitioner, an indigent inmate of the Illinois State penitentiary in Joliet, Illinois, sought a writ of ha-beas corpus for release from custody and also declaratory relief under the Civil Rights Act (42 U.S.C. § 1983). In a memorandum opinion, the case was dismissed. We affirm.

On May 27, 1970, petitioner received concurrent 20 to 40 year sentences from the Circuit Court of Cook County, Illinois, after a jury found him guilty of rape, armed robbery and aggravated kidnapping. He has been unable to obtain a bail bond pending his appeal, which is scheduled for oral argument before the Appellate Court of Illinois, First District, on September 21, 1973.

Petitioner first asserts that the delays in processing indigent appeals in the State of Illinois contravene the Fourteenth Amendment. Where inordinate delays have occurred in the state courts, federal courts must determine if they were justifiable. Dozie v. Cady, 430 F.2d 637 (7th Cir. 1970). Here the petition alleged that the procedural delays were chiefly occasioned by continuances obtained by appointed counsel from the office of the Cook County Public Defender and not by the Illinois Appellate Court or the state appellate system. Thus although the notice of appeal from the judgment of the Circuit Court of Cook County was filed on June 26, 1970, petitioner’s brief was not filed until September 12, 1972, after twelve extensions of time. However, petitioner admits that his “overworked” appointed counsel “worked hard” and filed a “strong” brief. It raises 15 issues and consists of 69 pages and obviously required lengthy preparation. The State’s answering brief was filed on April 4, 1973. The district judge also noted that Illinois post-conviction and mandamus remedies had been available to petitioner if he was desirous of expedition.

In resolving the Fourteenth Amendment arguments against petitioner, the district court stated:

“[T]his court cannot accept the argument that due process and equal protection require that an indigent who is furnished an otherwise full appellate remedy with free transcript and appointed counsel, is also entitled to the same time period for the processing of his appeal as the defendant who can pay for faster service by private counsel. Petitioner does not suggest any alternative to having the federal court transformed into a state criminal appeals court. Furthermore, another battery of appointed counsel would undoubtedly be necessary to handle the concurrent federal court habeas corpus proceeding. If state resources are inadequate to handle the load of cases or the appellate court is understaffed, the place to seek relief is the state legislature, not the federal courts.”

It is not necessary to subscribe to all the implications of these views to conclude that no constitutionally prohibited discrimination has been alleged here. Petitioner does not contend that the Illinois Appellate Court expedites non-indigent appeals. There is no contention that the State’s Attorney’s briefs are filed more expeditiously in such cases, nor is there an allegation that retained counsel prepare their briefs substantially more quickly than the Public Defender.

Petitioner sufficiently alleges that his appeal has been unconscionably delayed, but he does not tell us how long it takes to process a non-indigent appeal to the same court. Since “at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages” (San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 24, 93 S. Ct. 1278, 1291, 36 L.Ed.2d 16) and no invidious discrimination has been alleged here, the district court properly concluded that no constitutional violation was made out.

This petitioner has received a free transcript and has also received the services of able appointed counsel. Indeed, the petition for habeas corpus describes the office of the Public Defender of Cook County as staffed by “highly motivated and competent attorneys.” The petition contains a similar statement with respect to the staff of the State’s Attorney of Cook County.

There are no existing delays at this time, and in his Illinois appellate brief petitioner has not assailed the prior delays. At the oral argument before us petitioner’s federal counsel indicated satisfaction with the brief filed by the Cook County Public Defender’s office in the Illinois Appellate Court and recognized that complex contentions were involved on appeal. In the absence of a contrary history, we cannot assume that the Illinois Appellate Court will not dispose of the appeal as soon as feasible after the coming oral argument. In view of the imminence of the presentation of this case to that Court, we do not deem it appropriate to interfere with the state appeal process. Our intervention would not significantly accelerate resolution of petitioner’s claims and consequently would have no practical effect. Nor can it meaningfully be said that the writ of habeas corpus is currently suspended if petitioner’s state proceeding is now due for prompt resolution.

However, we do not mean to suggest that no complaint alleging inordinate or discriminatory appellate delays could ever state a federal claim. To avoid federal intervention in future cases involving inordinate delays in processing state indigent appeals, the Chief Judge of the Circuit Court of Cook County (and, if necessary, the County Board) should require the official court reporters to produce speedier indigent trial transcripts and should ensure prompter filing of appellate briefs by the Public Defender of Cook County and by the State’s Attorney of Cook County, even if appropriate personnel need be added to their staffs. As in this Court, appellate continuances should be sparingly granted. The rights announced in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), and Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), cannot be allowed to become meaningless through under-staffing of the state offices responsible for assuring those rights.

Finally, petitioner argues that he is entitled to a statement of reasons why the state courts denied his applications for bail. But in view of the seriousness of petitioner’s crimes and the lengthy sentences imposed, there was a rational basis for denial of his request for bail pending appeal. As we recently held in United States ex rel. Walker v. Twomey, 484 F.2d 874 (7th Cir. 1973), federal courts will not require state courts to articulate reasons for denial of release on bail where, as here, a petitioner has not borne the burden of overcoming the presumption of regularity of the state courts' actions.

The dismissal order is affirmed.

      . See People v. Rose, 43 Ill.2d 273, 253 N.E.2d 456 (1969); People ex rel. Cook v. Frye, 42 Ill.2d 270, 246 N.E.2d 254 (1969).

      . See United States ex rel. Wilson v. Rowe, 454 F.2d 585, 587, 589 (7th Cir. 1971) ; Koehler v. Ogilvie, 53 F.R.D. 98, 105 (three-judge court; N.D.Ill.1971), affirmed, 405 U.S. 906, 92 S.Ct. 938, 30 L.Ed.2d 777 (1972).


author: CLARK, Associate Justice.

text:
    DOUGLAS-GUARDIAN WAREHOUSE CORPORATION, Plaintiff-Appellant, v. James I. POSEY et al., Defendants-Appellees.
    No. 73-1220.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Sept. 10, 1973.
    Decided Nov. 5, 1973.

      Daniel C. Hale, Denver, Colo., for appellant.
    Guy B. Dyer, Jr., Cortez, Colo., for ap-pellees.
    Before CLARK , Associate Justice, and McWILLIAMS and DOYLE, Circuit Judges.

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

   CLARK, Associate Justice.

In this diversity suit, the appellant, Douglas-Guardian Warehouse Corporation, seeks to enjoin the enforcement of the judgments entered against it in three replevin cases in the District Court of Dolores County, Colorado. In 1965, the Arrowhead Bean Company, Inc. received for storage certain deposits of dried pinto beans grown by several individual farmers. Subsequently, Arrowhead stored the beans in the field warehouse operated by the appellant and received a non-negotiable warehouse receipt therefor upon the false representation that it owned the beans. Thereafter Arrowhead pledged this warehouse receipt to secure a loan made to it by the Citizens State Bank of Cortez.

On March 29, 1966, the appellees filed three replevin suits in the Colorado District- Court against Douglas-Guardian, Arrowhead and the Bank claiming title to the pinto beans and seeking recovery of them or, in the alternative, their market value. The Colorado court in due course issued writs of replevin covering the beans and Douglas-Guardian filed its redelivery bond in an amount double the value of the beans sued for and retained the beans. On April 6, 1966 Arrowhead became bankrupt, and the bankruptcy court stayed further proceedings in the state court replevin actions.

On April 15, 1966, Douglas-Guardian filed suit in the nature of interpleader in the United States District Court for the District of Colorado. However, jurisdiction was noted on diversity of citizenship rather than on interpleader, and Douglas-Guardian then tendered 242,730 pounds of dried pinto beans into the registry of the court. The beans were ordered sold on stipulation of the parties, and the proceeds were distributed on a pro-rata basis to appellees and other claimants, the court having found that the ownership of the beans was at all times in the individual farmers, including appellees; that Arrowhead had no title to any of the beans and that the bank’s mortgage was spurious. The final judgment and order of disbursement were entered on July 31, 1967 and no appeal was taken therefrom. Upon the entry of this judgment the bankruptcy court vacated its stay against the three state court replevin actions, and they went to trial. In due course, judgments were entered in each against Douglas-Guardian on its redelivery bonds for the value of the pinto beans, aggregating 330,864 pounds. A credit was allowed on the judgments for the amount realized from the federal court action filed by Douglas-Guardian and paid to appellees. An appeal on each of these three judgments was dismissed by the Colorado Court of Appeals, which dismissals became final without further action being taken either by petition for rehearing or appeal to the Colorado Supreme Court or to the Supreme Court of the United States.

Subsequently Douglas - Guardian brought this suit in the United States District Court for the District of Colorado to enjoin enforcement of the same three state court judgments. On October 13, 1972 the appellant with leave amended its original complaint, urging for the first time in the litigation that the failure of the replevin provisions embodied in Colorado law to provide for a hearing were unconstitutional in light of Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L.Ed.2d 556 (1972). After a hearing summary judgment was entered for appellees and this appeal followed.

(1) Here the appellant first claims reversible error on the trial court’s refusal to grant an injunction pursuant to 28 U.S.C. § 2283 to protect or effectuate the judgment of the United States District Court in its inter-pleader suit filed in 1966. It is clear in that suit that Douglas-Guardian had possession of 242,730 pounds of dried pinto beans; that the beans were claimed by various parties in the federal proceedings, including the appellees, the Bank and the Trustee in Bankruptcy for Arrowhead; and the assistance of the United States District Court was sought by Douglas-Guardian to determine only which parties held legal title to the beans and were entitled to a pro-rata distribution of the proceeds from their sale.

The District Court there found that Arrowhead “did not have legal title to the beans and, therefore, did not have any legal right to convey title” and that: “The defendant-intervenor farmers were at all times the holders of legal title to the beans in question .... and, accordingly they are entitled to share on a pro-rata basis in the fund which is held in the registry of the Court.” Record on Appeal at 37. Moreover, the court further explicitly restricted the scope of its j udgment to these issues, concluding: “that it does not have the authority to disturb any existing orders of the Referee in Bankruptcy with respect to the replevin suits filed in Dolores County, Colorado; nor does the Court believe it has any power or authority to indicate directly or indirectly its view as to the validity of actions taken by any of the parties in other courts.”

Record on Appeal at 40. Neither the value of the beans nor the validity of Colorado’s replevin law was raised or determined.

28 U.S.C. § 2283 specifies that an injunction may not be granted “to stay proceedings in a State court except . where necessary in aid if its jurisdiction or to protect or effectuate its judgments.” But no such necessity existed since no determination of the validity of state court claims was made and all of the proceeds raised from the sale of the beans was credited upon the state court judgments. As the Supreme Court held in Atlantic Coast Line Railroad Co. v. Brotherhood of Locomotive Engineers, et al., 398 U.S. 281, 287, 90 S.Ct. 1739, 1743, 26 L.Ed.2d 234 (1970), “any injunction against state court proceedings otherwise proper under general equitable principles must be based on one of the specific statutory exceptions to § 2283 if it is to be upheld.”

(2) Douglas-Guardian next urges that the District Court should have granted an injunction in light of the holding of the Supreme Court in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). In Fuentes, the Court declared the replevin statutes of Florida and Pennsylvania unconstitutional for want of procedural due process. Appellant contends that the Fuentes doctrine should have been applied retroactively by the District Court so as to void the similar provisions of the Colorado replevin law and nullify the three state court judgments based thereon. We decline to so hold.

First, the appellant failed to at any time challenge the constitutionality of the Colorado replevin law in the three state court replevin proceedings or in its 1967 federal interpleader action. It first raised it in this case after the Supreme Court handed down Fuentes. Valid judgments were rendered in those proceedings and rights had vested in conformity with and reliance upon existing state law. The appellant is bound by those judgments and cannot attack them at this late date. Chicot County Drainage District v. Baxter State Bank et al., 308 U.S. 371, 375, 60 S.Ct. 317, 84 L.Ed. 329 (1940), Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), Tomiyasu v. Golden, 358 F. 2d 651 (9th Cir. 1966).

Moreover, Douglas-Guardian failed to exhaust all of its remedies at law through the state appellate process of Colorado by appealing the adverse holding of the Court of Appeals in the three replevin suits. This failure precludes any intervention by the lower federal courts now. Hill v. Martin, 296 U. S. 393, 56 S.Ct. 278, 80 L.Ed. 293 (1935), Atlantic Coast Line Railroad Co. v. Brotherhood of Locomotive Engineers et al., supra at 296-297 of 398 U.S., 90 S.Ct. 1739. Furthermore, we are not aware of any federal statute which broadly authorizes a federal injunction to stay state court proceedings where the state statute involved has been subsequently found unconstitutional in a federal court. Nor has the Supreme Court determined that in such circumstances an injunction is permissible under § 2283 in state civil proceedings. Mitchum v. Foster, 407 U.S. 225, 244, 92 S. Ct. 2151, 32 L.Ed.2d 705 (1972) (Burger, C. J., concurring in judgment). It is not the province of this Court to carve out a new exception to § 2283 and we decline to do so by applying Fuentes retroactively.

Finally, the state court judgments in the three replevin actions operate as res judicata with respect to this subsequent federal action. Grubb v. Public Utilities Commission of Ohio et al., 281 U.S. 470, 50 S.Ct. 374, 74 L.Ed. 972 (1930), Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940). Even if an injunction were not involved here, it is evident that a retroactive application of Fuentes v. Shevin, supra, would work an injustice and a hardship upon the appellees who have lawfully acquired vested rights in the form of their state judgments. These rights should not be lightly ignored. Chevron Oil v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L. Ed.2d 296 (1971).

(3) Likewise, there is no merit to appellant’s claim that the District Court erred in granting summary judgment for the appellees. It is well settled that Rule 56(c), Fed.R.Civ.P., authorizes summary disposition where the moving party is entitled to judgment as a matter of law where, as here, there remains no genuine material issue of fact in the case. Poller v. Columbia Broadcasting System, 368 U.S. 464, 82 S.Ct. 486, 7 L. Ed.2d 458 (1962), Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972).

Affirmed.

      . The suits were filed under Rule 104 of the Colorado Rules of Civil Procedure which provided that upon the filing of an affidavit -of ownership to certain property which is wrongfully detained and the furnishing of a good and sufficient bond in double the value of the property, the sheriff shall take possession of the property and deliver it to the claimant unless the party detaining the property files within 48 hours from the time the sheriff takes the property a good and sufficient bond in double the amount of the value of the property conditioned on the delivery of the property to the claimant and “for the payment to him of such sum as may for any cause be recovered against the defendant,” if the claimant prevails.