author: FAIRCHILD, Chief Judge.

text:
    Louis Allen McDANIEL, Jr., Plaintiff-Appellant, v. The UNIVERSITY OF CHICAGO and Argonne, a corporation, Defendants-Appellees.
    No. 73-1438.
    United States Court of Appeals, Seventh Circuit.
    Argued April 11, 1974.
    Decided March 14, 1975.
    Rehearing and Rehearing En Banc Denied April 15, 1975.

      Robert J. Nye, Daniel N. Kadjan, Chicago, 111., for plaintiff-appellant.
    Wilfred F. Rice, Jr., Gerald D. Skoning, Chicago, 111., for defendants-appellees.
    Before FAIRCHILD, Chief Judge, and SWYGERT and SPRECHER, Circuit Judges.
   FAIRCHILD, Chief Judge.

Plaintiff McDaniel has appealed from a judgment dismissing his complaint in a class action against the University of Chicago.

The University had. a contract with the United States for construction or alteration of Argonne National Laboratory. There is no question but that this government contract was subject to the provisions of the Davis-Bacon Act. Accordingly 40 U.S.C. § 276a required the specifications to “contain a provision stating the minimum wages to be paid various classes of laborers and mechanics which shall be based upon the wages that will be determined by the Secretary of Labor to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work” in the place of performance, and required any contract based on the specifications to contain certain stipulations concerning payment of mechanics and laborers by the contractor or subcontractor.

Plaintiffs claimed that they were employed pursuant to the contract, but were paid at rates substantially lower than the determined prevailing wages. The complaint purported to state five causes of action. The first was apparently based on the theory that a cause of action against the contractor is conferred by 40 U.S.C. § 276a — 2(b) or should be implied from § 276a, and the second on the theory that the contract had been breached. Jurisdietion was predicated on 28 U.S.C. § 1331 (federal question) and § 1337 (action arising under Act regulating commerce). Three other causes of action suggest common law theories and pendent jurisdiction was claimed.

The same facts which subject the University’s contract with the United States to the Davis-Bacon Act, 40 U.S.C. §§ 276a to 276a — 7, also make it subject to the Miller Act, 40 U.S.C. §§ 270a-270e. Section 270a requires that before such a contract is awarded, the contractor shall furnish, in addition to a performance bond, “A payment bond with a surety or sureties satisfactory to such officer for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract for the use of each such person.”

Section 270b provides that “Every person who has furnished labor or material in the prosecution of the work provided for in such contract, in respect of which a payment bond is furnished under section 270a . . . and who has not been paid in full therefore [within a specified period] shall have the right to sue on such payment bond . . . ” subject to specified conditions, including a limitation of jurisdiction of such action to the federal district court for the place of performance of the contract and prohibition of commencement after one year.

Turning to the Davis-Bacon Act, § 276a requires that the contract authorize withholding by the government of accrued payments to the extent considered necessary to pay laborers and mechanics the difference between the rates of wages required and the rates of wages received. Section 276a — 2(a) authorizes direct payment of sums due to laborers and mechanics from sums withheld. It is undisputed, however, that no money was withheld in this instance.

Section 276a-2(b) provides:
“If the accrued payments withheld under the terms of the contract, as aforesaid, are insufficient to reimburse all the laborers and mechanics, with respect to whom there has been a failure to pay the wages required pursuant to sections 276a to 276a — 5 of this title, such laborers and mechanics shall have the right of action and/or of intervention against the contractor and his sureties conferred by law upon persons furnishing labor or materials, and in such proceedings it shall be no defense that such laborers and mechanics accepted or agreed to accept less than the required rate of wages or voluntarily made refunds.” (Italics ours.)

Clearly plaintiff and members of the class could have brought action under § 270b(a) within one year if a bond had been furnished. It is undisputed, however, that the University did not furnish a bond. Section 270e authorizes waiver of §§ 270a — 270d as to certain types of projects. No claim has been made that waiver was unauthorized in the instant case and, indeed, the complaint, as distinguished from the brief on appeal, does not suggest that the claims are founded upon the University’s failure to provide a bond.

Thus plaintiff and members of the class (assuming as claimed that they were paid less than properly determined prevailing wages) have available to them neither direct payment by the government out of amounts withheld, nor an action on a Miller Act bond, the two remedies clearly contemplated by Congress.

The district court reluctantly concluded that the Davis-Bacon Act did not confer a right of action against the contractor, cognizable in federal court, under the circumstances alleged in the complaint. The language we have italicized above in § 276a — 2(b) was deemed no more than a reference to the right of action on the Miller Act bond, set forth in § 270b.

We have no difficulty in agreeing that the terms of § 276a — 2(b) do not create a cause of action, cognizable in federal court, for one in plaintiff’s position.

For many years, beginning in 1894, the Heard Act required that the bond filed by certain government contractors include the obligation to “make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract” and that upon the bond “said person or persons supplying such labor and materials shall have a right of action ...” 28 Stats. 278.

In 1931, Congress enacted the provision of the Davis-Bacon Act which required the contract to provide “that the rate of wages for all laborers and mechanics employed by the contractor or any subcontractor in the public buildings covered by the contract shall be not less than the prevailing rate of wages for work of similar nature” in the locality. 46 Stat. 1494. No remedy was expressly provided, although it might well be supposed that an underpaid person might have a cause of action as a third-party beneficiary of the contract, particularly since the provision was required by law for his protection.

In 1935, two changes took place. On August 24, the Miller Act replaced the Heard Act, 49 Stat. 793, and on August 30, the Davis-Bacon Act was amended by inserting, among other things, the remedy provisions substantially in their present form. 49 Stat. 1011. Although the Miller Act preceded the Davis-Bacon amendments in enactment by six days, the Heard Act was in effect while the amendments were being drafted.

The language of the statutes, and the sequence of enactment referred to, make it clear that “the right of action” referred to in § 276a — 2(b) meant, when drafted, the “right of action” on the bond conferred on persons supplying labor and materials by the Heard Act, and supplanted by “the right to sue on such payment bond” conferred on such persons by the Miller Act, § 270b(a).

This meaning was specified in the Senate Report accompanying the 1935 bill, as follows:

“Section 3(b) [§ 276a-2(b)]: When the funds withheld for such claimants are insufficient to reimburse all laborers and mechanics aggrieved by breach of the wage stipulations, this subsection gives such laborers and mechanics a cause of action on the contractor’s bond, pursuant to the provisions of the Hurd [Heard] Act as amended from time to time (act of Aug. 13, 1894, 28 Stat. 278, U.S.C. title 40, sec. 230).” Sen.Rep.No.1155, 74th Cong., 1st Sess., 4 (1935). See remarks of Senator Walsh to the same effect. 79 Cong.Rec. 12073 (July 30, 1935).

Numerous provisions with respect to Portal to Portal Pay, 29 U.S.C. §§ 251 — 262, refer to liability or actions to recover minimum wages under the Davis-Bacon Act, as well as similar actions under the Fair Labor Standards Act of 1938 and the Walsh-Healey Act. Plaintiff refers particularly to § 255(a) which imposes a two year statute of limitations on such actions. Pointing out that 40 U.S.C. § 270b(b) prohibits a suit on the bond under the Miller Act after one year after the last performance of labor, plaintiff argues that the Davis-Bacon Act must contemplate a private right of action different from the right to sue on this bond. We do not read the Portal to Portal provisions with respect to actions under the Davis-Bacon Act as congressional recognition of conferral by § 276a — 2(b) of a right of action other than on the bond. We do conclude, however, that it may well be recognition that wage-earners have or may have rights of action under the contractual provisions required by § 276a which may be enforced in state court actions or federal court actions where jurisdiction is properly based.

Such a right of action is consistent with the congressional purpose in the Davis-Bacon Act: insuring the payment of “prevailing” wages to laborers and mechanics on all government contracts in excess of $2000. In a case in which the express remedies provided to fulfil this purpose, e.g., the withholding of accrued payments due the contractor by the government for direct payment to underpaid laborers and mechanics (40 U.S.C. § 276a(a)) and a suit on the required Miller Act payment bond (40 U.S.C. § 270b(a)), have proved ineffective, we should be especially “alert to provide such remedies as are necessary to make effective the congressional purpose.” J. I. Case v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 1560, 12 L.Ed.2d 423 (1964).

Plaintiff alleges that jurisdiction is predicated upon 28 U.S.C. § 1337 which provides in pertinent part:

“The district courts shall have original jurisdiction of any civil action arising under any Act of Congress regulating commerce.”

The scope of jurisdiction granted by this provision has been broadly construed. In Murphy v. Colonial Federal Savings and Loan Ass’n, 388 F.2d 609, 614 — 15 (2nd Cir. 1967), the court, Judge Friendly writing, held that the provision encompassed any actions arising under “all acts whose constitutional basis is the commerce clause” and that “to found jurisdiction upon § 1337, it is not requisite that the commerce clause be the exclusive source of Federal power; it suffices that it be a significant one.” See also, Imm v. Union R.R., 389 F.2d 858, 860 (3rd Cir. 1961), cert. denied, 368 U.S. 833, 82 S.Ct. 55, 7 L.Ed.2d 35; Sosa v. Fite, 465 F.2d 1227 (5th Cir. 1972); Moreno v. United States Dep’t of Agriculture, 345 F.Supp. 310, 312-13 (D.D.C.1972), aff’d 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973); C. Wright, Law of Federal Courts (2nd ed. 1970) at p. 109 and cases cited in note 33.

We conclude that the commerce clause constitutes a significant constitutional basis underlying the Davis-Bacon Act’s validity. The requirement that all specified government construction contracts contain an express commitment to pay local “prevailing” wage rates as determined (in case of dispute) by the Secretary of Labor was first enacted in 1931, c. 411, § 1, 46 Stat. 1494. The committee report, Sen.Rep.No.1494, 71st Cong., 3rd Sess. (1931), makes clear that the Act was designed to “provide a more equable distribution of employment and [to] generally benefit the country at large” by preventing government contractors from importing migratory labor at substantially less than prevailing wages. The country was then in the midst of a serious economic depression and government construction projects were considered an important element of recovery through the employment opportunities they provided. One basic premise of this legislation was to foster economic stability throughout the nation by requiring that those employed on federal projects receive fair and equitable wages. While Congress (possibly because of narrow views of federal jurisdiction then widely held) elected to limit its attention to federal construction projects, and other constitutional provisions doubtless exist which provide additional bases of legislative power, we think a sufficient nexus exists with the commerce clause to found jurisdiction upon § 1337.

We therefore conclude that plaintiff’s complaint, in that it sought to enforce defendant’s contractual commitment to pay “prevailing” wages as determined by the Secretary of Labor, stated a cause of action under the Davis-Bacon Act for which relief could be granted and that subject matter jurisdiction was properly based upon 28 U.S.C. § 1337. Once the district court had jurisdiction over this cause of action, it also had pendent jurisdiction to decide the state claims, arising out of the same facts, which were asserted in counts 3 through 5. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

Accordingly, the judgment dismissing the complaint is reversed and the cause is remanded for further proceedings consistent with this opinion.

      . The Heard Act, predecessor to the Miller Act, was consistently interpreted as providing a cause of action and federal subject matter jurisdiction only when there was a bond extant which expressly included the obligation to “make payments to all persons supplying labor or materials in the prosecution of the work provided for” in the government contract. The underlying statutory requirement to execute such a bond was not deemed sufficient to provide a federal action. See, e.g., United States for the use of National Regulator Co. v. Montgomery Heating & Ventilating Co., et at, 255 F. 683, 684 (5th Cir. 1919); United States for the use of Felix Zambetti v. American Fence Co., 15 F.2d 449 (S.D.N.Y.1925), .aff'd 15 F.2d 450 (2nd Cir. 1926); Strong v. American Fence Const. Co., 245 N.Y. 48, 156 N.E. 92, 93 (1927). The Miller Act has been similarly construed as not providing a federal cause of action for failure to provide a bond. Cf. Harry F. Ortlip Co. of Pennsylvania v. Alvey Ferguson Co., 223 F.Supp. 893, 894 (E.D.Pa.1963); Gallaher & Speck, Inc. v. Ford Motor Co., 226 F.2d 728, 731 (7th Cir. 1955).

      . The Miller Act’s grant of subject matter jurisdiction, while underlying the right of action referred to in 40 U.S.C. § 276a — 2(b) (Davis-Bacon), is “inseparably linked” to the statutory remedy of an action on the payment bond and thus cannot provide jurisdiction over a cause of action arising from the contractual commitment to pay “prevailing” wages imposed by § 276a(a). The Miller Act requirements that suit be brought in the name of the United States for the use of the person suing, that venue be limited to the district in which the contract was to be performed or executed, and the narrow one year limitation period are clearly designed to facilitate the orderly and equitable disposition of all competing rights in the bond and reenforce the conclusion that Miller Act subject matter jurisdiction is limited to suits on the bond. See United States v. Illinois Surety Co., 253 Pa. 557, 98 A. 730 (1916); Strong v. American. Fence Co., 245 N.Y. 48, 156 N.E. 92 (1927); and note 1, supra, and cases cited therein.

      . Where the express remedies provided depend, as here, on governmental enforcement (of both the withholding provision and the bond requirement), “the guarantee [of “prevailing” wages] . . . might well prove an empty promise unless the private citizen were allowed to seek judicial enforcement . .” Allen v. State Board of Elections, 393 U.S. 545, 557, 89 S.Ct. 817, 827, 22 L.Ed.2d 1 (1968).

      . The Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq., reflecting a similar intent to forbid the payment of substandard wages, cf. 29 U.S.C. § 202(a), imposed a minimum wage requirement upon employers and was held to constitute a proper legislative utilization of the commerce power. United States v. Darby, 312 U.S. 100, 117-124, 61 S.Ct. 451, 85 L.Ed. 609 (1941).

      . It is also alleged that jurisdiction is predicated upon 28 U.S.C. § 1331. Not only must the matter in controversy arise under federal law, but must exceed $10,000. The complaint indicates only that the accumulated claims of members of the class exceed that amount. Such cumulation does not suffice either in diversity or federal question cases. Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969); Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973); National Treasury Employees Union v. Nixon, 160 U.S.App.D.C. 321, 492 F.2d 587, 592 (1974).


source: Caselaw Access Project

author: EDWARDS, Circuit Judge.

license: Public Domain

text:
    Everett V. NOE, Plaintiff-Appellant, v. Caspar WEINBERGER, Secretary of Health, Education & Welfare, Defendant-Appellee.
    No. 74-1813.
    United States Court of Appeals, Sixth Circuit.
    March 18, 1975.

      William A. Watson, Watson & Watson, Middlesboro, Ky., for plaintiff-appellant.
    Eugene E. Siler, Jr., U. S. Atty., Lexington, Ky., Robert M. Murphy, R. Burl McCoy, Asst. U. S. Attys., for defendantappellee.
    Before EDWARDS, McCREE and MILLER, Circuit Judges.
   EDWARDS, Circuit Judge.

Appellant Everett V. Noe appeals from the judgment of the United States District Court for the Eastern District of Kentucky which granted summary judgment to the Secretary of Health, Education and Welfare concerning appellant’s claim to disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-431 (1970), as amended, (Supp. II, 1972). Our review of the evidentiary record made before the Administrative Law Judge and the Appeals Council of the agency discloses substantial evidence to support the total disability claim of appellant. It discloses no substantial evidence to support the Secretary’s conclusion that plaintiff has residual capabilities for “substantial gainful activity.” We reverse the District Court and remand for award of benefits.

THE APPELLANT’S CASE

Appellant Noe is a 52-year-old ex-coal miner from Harlan County, Kentucky. He had five or six years of schooling in Harlan County; he worked for 16 years at labor jobs in deep mines and for approximately the same period at machine production jobs in various industries in Illinois, Ohio and Kentucky.

At the Social Security Administration hearing (under cross-examination of the Administrative Law Judge who served effectively as the Department’s counsel in this case), Noe testified concerning his work in the mines:

A Well, I worked in the mines until, it was about sixteen years there. 1 worked in the mines, after I come out of the Army and went to work in the mines as soon as I got out of the Army and I believe up in the — I wouldn’t say what year in the ’50s but it was in the ’50s when I quit the mines.
Q What did you do in the mines, Mr. Noe?
A I was what they call a coupler.
Q Coupled cars?
A Yeah.
Q Did you do any other type of work while you worked in the coal mines?
A Yeah, I loaded ears.
Q Loaded, handloaded?
A- Yeah.
Q Did you do any other work, any blasting in the mines?
A No.
Q Did you help anybody on the machine, cutting machine?
A I have, what you call this shoveling after the machine, I never did operate it.
Q You never were an engineman or anything like that?
A No, sir.
Q You didn’t do any maintenance or repair?
A No.

Noe testified concerning two jobs he held where he operated presses. Then still under cross-examination by the Administrative Law Judge, he described his reasons for quitting his last place of employment in July of 1971:

Q * * * [Y]ou relate you became unable to work on July 5, 1971, and where you were then working at this place in Covington, Kentucky, then?
A Yeah.
Q Why did you quit work in July of ’71?'
'A Well, my back and my hips got to hurting me so bad I just couldn’t hardly bear it. Had some lifting to do I get so I couldn’t hardly walk.

Noe then described his physical condition at the time of hearing:

Q What functions does your condition prevent you from performing, can you walk?
A Yes, I can walk.
Q Can you stoop down?
A Naw, I can’t bend none, I can bend just a little bit and if I bend over any length of time I can’t hardly straighten up, it’s all I can do to straighten up.
Q How about to squat?
A I can squat down so far and then if I squat all the way down it throws pressure on my hip.
Q How about reaching with your arm does that produce any trouble for you?
A No.
Q How long have you been walking by using a cane?
A About — I believe about six
months. It seems to take some weight off of my hip.
Q How long can you stand?
A Well, I can stand quite a while, say forty-five minutes or an hour but sitting down, it really gets me when I’m sitting down.
Q You mean all the time or just after having stood?
A All the time.
Q Whenever you attempt to sit you have — it produces pain?
A I can lay down okay but sitting, driving a car or anything like that just — just murders my back and hip too.

The Administrative Law Judge then questioned him about other sources of income or aid:

Q You mentioned earlier that you were drawing a veterans pension, can you tell me how much that is?
A $130.
Q That’s non-service connected?
A Yes, sir.
Q Are you getting any food stamps or any medical card or anything like that?
A No, I don’t.
Q No welfare?
A No, never been on welfare, no.
Q And I assume from your description of your disability that it was not connected with the work which you were doing in Covington at the time when you were working there and quit and that you possibly were not eligible for workmen’s compensation?
A No, sir, I didn’t feel like that I got my back hurt there.
Q And you didn’t apply for it?
A No, sir.
Q Did you apply for unemployment compensation?
A Not after you quit on them, no sir.
Q Did you have any insurance of your own, any health benefit insurance of any kind when you quit work?
A I had Blue Cross and Blue Shield.
Q Do you continue to carry that?
A I did as long as I could afford it and then after so long a time I dropped it.
Q Had to drop it and you don’t now have it, I take it?
A No, sir.

From a medical point of view Noe’s testimony was supported by clinical findings in a Veterans Administration medical evaluation which resulted in his being awarded non-service connected disability benefits of $130 a month.

It was also supported by the X-ray findings and diagnosis of Dr. Simmons:

IMPRESSION: 1. Rather severe degenerative disc changes at L-2, 3 and L-4, 5 and perhaps L-5 S-l.
2. More significant is the marginal changes of the vertebrae at L-2 3, particularly in the anterior two thirds about the left side which I believe are productive changes as the result of chronic trauma from degenerative disc disease rather than due to infection or tuberculosis but these two possibilities certainly do exist and since we have no previous lumbosacral spine films I would recommend we get a follow up film in a month and see if there is any significant change but I doubt it.

It was also supported by the history, clinical findings and diagnoses of Noe’s physician, Dr. Robert Smith Howard:

I History: (Give complaints, past and present, clinical course, including therapy and response.)
1. Pain over lumbar back radiating down rt. and left legs.
2. Numbness rt. and left legs.
3. Soreness across lumbar back.
Onset one year before admission to the hospital for treatment 11-22-72. He noticed that when he lifted anything his back caused him severe pain. The only relief he noticed was lying down. This pain has progressively grown worse with numbness radiating down his right and left legs. At the present time he has pain even while in the bed. He is unable to bend his back and the slightest effort activates the pain and soreness.
Patient separated, 2 children. Miner 11 — 12 years, Machine operator.
II Physical Findings: Please show all pertinent findings (with dates).
Height 68" Weight 164 T. 97.8 P. 70 R. 18 B.P. 164/98
The patient is a fairly well developed and nourished 50-year-old man not apparently ill. Eyes, glasses, ears, nose, mouth normal. Neck and chest symmetrical muscular. Lungs filled with fine rales. Heart slow and regular. Abd. muscular. G1 [?] normal. Marked soreness lumbar back with limitation of motion. No notable atrophy lower extremities and some loss muscular control.
Ill Laboratory and Special Studies: -0-
IV Diagnoses:
1. Lumbar disc syndrome bilateral.
2. Hypertrophic arthritis spine severe.

What we have just quoted from this record represents substantial lay and medical testimony which required the finding (which was made by the Administrative Law Judge) that appellant was completely and totally disabled from his previous occupations of miner and production worker. We also believe that these proofs served to establish a prima facie case that appellant was completely and totally disabled from any substantial gainful employment for in excess of a period of one year.

THE GOVERNMENT’S CASE

The Administrative Law Judge in denying appellant’s disability claim relied upon two evidentiary items. The first was a medical report from an orthopedic surgeon, Dr. Patterson, to whom the Administrative Law Judge had sent Noe for examination. The second was the answer to a hypothetical question put by the Administrative Law Judge to a vocational expert witness, Dr. Auvenshire, who was called as a witness by the Administrative Law Judge.

Dr. Patterson’s report in pertinent part follows:

On October 20, 1971 Mr. Everett Noe was examined and x-rayed in my office. The patient states that he was in the army from 1942-1945. He denies any injuries while in the service, but he said that he did do a lot of heavy lifting in the army and had trouble with his low back when he came out of the service. After the army, he worked in the coal mine for 8 years loading coal. He was never injured in the mines. He then worked in Detroit in a factory as a machine operator polishing the insides of brake drums for 4 or 5 years. He then worked in Illinois in a plastic molding machine (electrical materials) for 6 years. Then he worked for the Monarch Tool Company in Covington, Kentucky doing assembly work on coin shoots for laundry-mats for 4 years and stopped 3 months ago because of low back pain which was going into both hips and legs and especially the right leg to the ankle.
He has never had any particular injury to his low back or legs; but through the years his low back and legs have gotten worse. Actually the leg pain began about a year or so ago. He has never been operated on for his back nor has he been hospitalized for his back. His back was x-rayed at Harlan Hospital around July 16 as an outpatient as a patient of Dr. Smith Howard. Dr. James Foley at Loyal, Kentucky x-rayed his back about a month ago. Both doctors have given him pain pills but he has never had any physical therapy. He is not taking any pain medication now. He says he does not like to take it. He says that both doctors told him he has arthritis and 2 cracked discs in his low back. He wore a lumbosacral corset for his low back in April of this year. He bought it at a drug store but he said it did not seem to help. He wore it for 2 months. He has never been seen by a neurosurgeon or an orthopedic surgeon before.
X-rays were made in my office today and included a routine lumbar series as well as a 45-degree oblique view of the lumbar spine and a standing AP of the pelvis with the patient standing barefooted and with his knees and hips in extension and with his ankles together.
X-rays of the lumbar spine showed marked degeneration of the disc between the second and third lumbar vertebra and to a lesser extent between the third and fourth; and considerable narrowing of the disc between L-4 and 5 and the lumbo-sacral disc. He also has a moderately severe right lumbar roto-scoliosis marked with arthritic spurs at the center or apex of the scoliotic curve in the mid lumbar area. The opposing margins were the vertebra bodies.
The standing AP of the pelvis revealed only a 5/i6" pelvic tilt, so it would appear to be a shortening of one extremity actually representing a pelvic obliquity due to the roto-scoliosis of his lumbar spine. There was no evidence of any old or recent fractures of the lumbar spine nor congenital anomalies. This would appear to be a developmental roto-scoliosis which has existed for years probably back when he was an adolescent and at that time representing an idiopathic scoliosis. There was no history of polio.
With the work in the coal mines, etc. and the type of work he has done over the period of years has produced this arthritic condition of his back. It is somewhat amazing that his back is as mobile as it is with the x-ray appearance of his lumbar spine. I can see why he would have pain in his back on flexing or twisting motion of his back. On x-ray the appearance of his back is that of a coal miner who has worked in a coal mine for 20 to 25 years.
It is possible that this man could do very light work which would require a minimal amount of bending and lifting and not working in one position for a long period of time; but as far as any manual work I think from a functional standpoint he is impaired as far as his low back is concerned.

The two hypothetical questions asked by the Administrative Law Judge follow:

Q I would like to give you two or three assumptions now, if I may, and the first of which would be that I would like you to assume that the claimant has the condition about which he has testified and to the degree that he has testified about it, and to assume that the medical evidence substantiates that when you consider his age, his education, his past work experience, would you think that he would have the residual capacities and the transferability of skills under that hypothesis to engage in substantial gainful activity?
A No, sir, not if the condition is as severe as testified to and substantiated medically, and the pain is as severe as he has indicated I would say that he essentially would be unable to work at any job.
Q If the hearing examiner were to find — another assumption — that the claimant did have some degeneration of his spine, particularly in the discs in the lumbar vertebrae, and that it was the source of pain yet he had good movement, a minimal amount of restriction of movement, that he could move his legs, his arms, his shoulders, with no restriction in the upper part of his body, and the pain seemed to be confined to the lower portion of his back and his legs, yet it was not of such an extent that he didn’t have pretty good movement on bending by the doctor of his legs, and that the doctor in his report indicated that he thought that the man could engage in some type of activity which would require a minimal amount of bending and lifting, one that would not require him to remain in one position for a long period, indicating that he might be able to stand or sit alternately at his own option according to his feelings, would you then consider his age, his education, his past work experience, and say whether or not you think that he could engage in substantial gainful activity?
A Yes, under this set of conditions I believe he could. I say this because I don’t see any reason to rule out employment, and I believe there are people working at jobs of this nature with disabilities which are roughly comparable.
MR. WATSONr Let me object, just for the record there, at that point, to the question which is a hypothetical anticipating facts and not based on facts in the record, and the response which apparently relies upon case histories of other claimants as the basis for the answer. This is not pertinent to this case.
Q All right, let the objection be overruled.

On the basis of his answer to the second set of assumptions, Dr. Auvenshire testified to the existence of light jobs in the national economy:

A Yes, if we consider jobs which offer the possibility of sitting or standing alternately, limiting the category to sedentary type jobs, and there are a few of these — there are a few categories of jobs — there are several jobs within the category. I am thinking specifically of the job of assembler at the Elicon Corbin Company in Corbin, and there are some 75 jobs of assembler of small parts which is essentially bench-type assembly, using small hand tools, pliers, screwdrivers, and so on. There is a job of bench assembler at the American Technical Machine Corporation in Lexington, as an example, again there are some 62 of these jobs having to do with the assembling of parts of Christmas trees and Christmas decorations. There is the job of foreman at the Brown & Williamson Tobacco Company, which is a sitting down job also. There’s some 35 to 6 of these. This again is in Lexington. With regard to jobs which would involve standing part of the time, with some degree of movement, some bending, some twisting of the trunk and so on, classified as light jobs, meaning frequent lifting or handling of objects or packages weighing up to 10 pounds or so but rarely anything up to 20, there’s a job of machine packager at the Dixie Cup Company, which is a machine tending job. There’s some 10 or 12 of these in Lexington. The job of hand packager at the same company, there’s some 15 of these. There’s the job of forming machine operator, which is a machine tending job, about 24 of these. Then again at the American Technical Machine Corporation there’s a job of grinder, which is the deburring or the sanding off of machine sander of casings for IBM typewriters, there’s some 25 of these. There’s a job of production assembler at the same company which is a light job of putting together the components of the typewriter; materials handler, there’s some 50 of these jobs, classified as light. There’s a job, and this time at Brown and Williamson conveyor-feeder, some 200 of these jos, which is essentially watching a large conveyor that moves tobacco around the floor, the stemming and the drying operation. At the Vogue Rattan furniture company, again in Lexington, there’s some 14 jobs as hand sander, or finishing off the wood furniture, which is light, as rattan furniture is. And these are a few examples of the kinds of things which fall within the limitations as specified in the assumption. This is not an exhaustive list, but I think these are about — among the most representative things which are appropriate to the set of limitations as given.
CLAIMANT: Pardon me, are there any of them jobs that you can lay down on when the pain got to hurting you so bad that you couldn’t stand or sit?
MR. WATSON: I’m going to ask him that now you just (laughter) be still. We’ll come to that in a minute.
MR. WATSON: Let me ask one more question of Mr. Noe here, for the basis for some cross-examination here. Mr. Noe, how long can you stand before your back commences to hurt?
CLAIMANT: Not very long, I’d say half hour or 45 minutes and I’ve got to sit down or lay down, lay down is better than anything.
MR. WATSON: Is this standing in one place [or] is this walking around?
CLAIMANT: It doesn’t make any difference.

The Administrative Law Judge denied benefits to appellant on the following reasoning which the Appeals Council and the District Court accepted without critical analysis:

Claimant alleges that he became unable to work on July 5, 1971, because of back and spine trouble. The medically acceptable clinical and diagnostic evidence of record fails to sustain a symptomatology of the severity described by the claimant.
Lumbar spine x-rays have consistently been interpreted as showing degenerative disc changes diagnosed as hypertrophic arthritis, severe. Physical examinations have otherwise been essentially normal except for hypertension which has not resulted in any end organ pathology.
Clinical findings on orthopedic examinations of the claimant have been essentially similar. He walked with a normal gait; could squat and arise without assistance from his hands; ankle and knee jerk reflexes were equal and physiological and he had essentially normal sensation and muscle strength in both lower extremities. Circumference measurements of the lower extremities showed no clinical evidence of atrophy, however, the leg length measurements showed the right leg was Vi" shorter than the left and could be alleviated with a Vi" block under the right foot. There was no restriction of hyperextension or rotation to the right or left and no muscle spasm although he was subjectively tender over the lumbosacral joint. Straight leg raising was performed bilaterally to 90 degrees with only mild discomfort in the low back. There was no significant neurological deficit (Exhibits 15, 17 and 22).
Functionally, claimant was described as limited to very light work requiring a minimal amount of bending and lifting and permitting frequent changes in position. It is the opinion of the undersigned that this evaluation of claimant’s functional capacity is consistent with the medical evidence of record, and considering that, and claimant’s age, education and vocational background, he retains the functional capacity to engage in a substantial variety of sedentary and light entry-type jobs enumerated by the vocational expert and that such jobs exist in significant numbers throughout the national economy. Accordingly, the claimant has failed to make a showing of substantial disability within the meaning of the Act and therefore there is not a sufficient showing of inability to engage in substantial gainful activity. On the basis of these considerations, the following findings are made.

The Administrative Law Judge and the District Judge both erred in applying the law to the facts of this case.

The applicable statutory provisions are contained in § 223(d) of the Social Security Act, as amended (42 U.S.C. § 423(d) (1970)):

(d)(1) The term “disability” means—
(A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months; or
(2) For purposes of paragraph (1)(A)—
(A) an individual (except a widow, surviving divorced wife, or widower for purposes of section 402(e) or (f) of this title) shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country. s(i *
(3) For purposes of this subsection, a “physical or mental impairment” is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. * * * * * *
(5) An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require.
42 U.S.C. § 423(d)(1)(A), (2)(A), (3), (5) (1970).

Clearly plaintiff presented a prima facie case of total and permanent disability with respect to his normal work. In such a situation the burden shifts to the government to go forward with proof that claimant nonetheless has residual capabilities for “substantial gainful activity.” Gray v. Finch, 427 F.2d 336 (6th Cir. 1970); Miracle v. Celebrezze, 351 F.2d 361 (6th Cir. 1965). See also Whitson v. Finch, 437 F.2d 728, 732 (6th Cir. 1971).

This circuit (and others) has repeatedly held that pain alone can be a disabling factor. Sayers v. Gardner, 380 F.2d 940 (6th Cir. 1967); Miracle v. Celebrezze, supra; Franklin v. Secretary of Health, Education and Welfare, 393 F.2d 640 (2d Cir. 1968); Ber v. Celebrezze, 332 F.2d 293 (2d Cir. 1964). These cases refer to social security claims decided before the 1968 Amendment defining “impairment” as an “abnormality” which is demonstrable “by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3) (1970). In this case the chief (and only) government medical witness provided vivid and specific “clinical” evidence of the objective basis for appellant’s back pain. Dr. Patterson described the X-ray appearance of appellant’s spine:

X-rays of the lumbar spine showed marked degeneration of the disc between the second and third lumbar vertebra and to a lesser extent between the third and fourth; and considerable narrowing of the disc between L-4 and 5 and the lumbrosacral disc. He also has a moderately severe right lumbar roto-scoliosis marked with arthritic spurs at the center or apex of the scoliotic curve in the mid lumbar area. The opposing margins were the vertebra bodies.

Dr. Patterson then commented:

With the work in the coal mines, etc. and the type of work he has done over the period of years has produced this arthritic condition of his back. It is somewhat amazing that his back is as mobile as it is with the x-ray appearance of his lumbar spine. I can see why he would have pain in his back on flexing or twisting motion of his back. On x-ray the appearance of his back is that of a coal miner who has worked in a coal mine for 20 to 25 years.

Thus the government’s medical witness furnished both clinical and opinion evidence strongly supporting Noe’s testimony concerning back pain.

We believe Dr. Patterson’s principal finding was “as far as any manual work, I think from a functional standpoint he is impaired as far as his low back is concerned.” Significantly there is not a line of testimony that Noe’s education, training and experience would allow him access to any employment other than manual work. We note, of course, that the Administrative Law Judge relied upon a different sentence from Dr. Patterson: “It is possible that this man could do very light work which would require a minimal amount of bending and lifting and not working in one position for a long period of time. ” (Emphasis added.) We find no answer to the question as to where Noe could find a job which fitted this description (particularly the portion we have emphasized) much less one which would allow him to lie down when the pain became unbearable.

Dr. Auvenshire’s answer to the Administrative Law Judge’s hypothetical question upon which the Administrative Law Judge rested his denial of benefits had little if any evidentiary value, since it omitted consideration of the pain and its consequences which disabled appellant.

Noe testified that the pain in his back forced him to quit his last job, that he has to use a cane to walk, that while he can stand for 45 minutes or an hour, he cannot sit down or drive a car because it “just murders my back and hip too.” His testimony was that periodically during the day the pain got so bad that he could get relief only by lying down. This testimony is entirely consistent with the medical reports in this record and there is no testimony ■ which even hints at malingering.

On review of this entire record, we find no substantial evidence to support the denial of disability benefits by the Secretary. The judgment of the District Court is reversed and the case is remanded to the District Court for entry of a judgment awarding benefits.

      . It seems particularly inappropriate for this administrative agency’s Hearing Examiner to be termed a “judge” when the agency supplies no legal representative other than him, and when the Examiner feels required (as he obviously did here) first to develop the government’s case and then to judge it. This record discloses that the Administrative Law Judge wrote 33 pages of a 44-page hearing transcript (including the first 23 pages of the record where he cross-examined appellant extensively) as compared to five pages (including both direct and cross-examination) by appellant’s counsel and six pages of colloquy.


author: PER CURIAM:

text:
    Thomas E. SLOAN, Appellant, v. Louis S. NELSON, Appellee.
    No. 74-1258.
    United States Court of Appeals, Ninth Circuit.
    Feb. 13, 1975.

      David R. Mayer (argued), San Rafael, Cal., for appellant.
    William McKinstry, Deputy Atty. Gen. (argued), San Francisco, C^il., for appellee.
    Before CHOY and GOODWIN, Circuit Judges, and BEEKS, District Judge.

       The Honorable William T. Beeks, United States District Judge for the Western District of Washington, sitting by designation.

   PER CURIAM:

This is an appeal from a denial of a petition for a writ of habeas corpus. The district court held that the state proceedings which resulted in the rescission of the prisoner’s future parole date did not offend the due-process demands of the Fourteenth Amendment.

Thomas E. Sloan, á long-term prisoner who had failed on parole earlier in his career, was granted a new parole date and placed in a work-release program to prepare for eventual release. After a few weeks in the work-release program, Sloan was charged with misconduct, taken before the prison disciplinary committee, and removed from work release and assigned inside the walls to the clothing factory.

Meanwhile, Sloan’s alleged misconduct on work release was called to the attention of the Adult Authority, which set a hearing date to consider whether to rescind Sloan’s parole release date. Because of intervening decisions of this court and of the Supreme Court upon the extent of due process required in such cases, it is necessary to set out the chronology of the material events.

On July 20, 1971, a parole date of January 3, 1972, was established for Sloan.

On November 4, 1971, Sloan appeared before the disciplinary committee on a charge of a work-release rule infraction (unauthorized absence from work). Sloan does not appear to have contended that his absence was authorized, and, while he now contends that he was not afforded due process at this committee appearance, we find nothing in the record to show that this committee hearing affected his projected release date. There is no need in this case to reach the due-process questions, if any, that may have been presented by the prison-discipline proceeding. Compare Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

On December 28, 1971, Sloan appeared before a hearing officer of the California Adult Authority and was then advised that according to information available to the Adult Authority Sloan was accused of assault, rape, and sodomy upon a female, allegedly committed on the day that Sloan had been reported absent from his work-release assignment. Sloan denied the charges, and the hearing was continued until January 20, 1972. After the hearing on that date, the Adult Authority decided to rescind Sloan’s parole plan. (The January 3 release date had, of course, passed while the matter was pending.) Sloan did not have a lawyer at the January 20 hearing, nor was he permitted to confront and cross-examine the female named in the police reports considered by the Adult Authority. Sloan was permitted to present his version of the events, and to present a letter from the victim which said she “forgave” him.

On February 15, 1972, this court decided Dennis v. California Adult Authority, 456 F.2d 1240 (9th Cir. 1972). We held that due process for parole revocation would include at least these minimum standards: notice of the grounds for revocation, and an opportunity to be heard. Sloan’s January 20 hearing had satisfied the Dennis mínimums.

On June 29, 1972, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), held that, in addition to the minimum standards mentioned in Dennis v. California Adult Authority, supra, a person on parole was entitled to the following: a preliminary, impartial investigation; written notice of the charges; a prompt hearing; an opportunity to testify and to present evidence and to confront and cross-examine witnesses against him (confrontation being subject to certain security and safety considerations); an impartial hearing body, and a written decision stating its grounds.

The Supreme Court gave the Morrissey standards only prospective effect. Morrissey v. Brewer, 408 U.S. at 490, 92 S.Ct. 2593; Wolff v. McDonnell, 418 U.S. at 573-574, 94 S.Ct. at 2983.

It is clear that Sloan did not receive a full panoply of due process required by Morrissey v. Brewer, supra, when a parole is revoked. But it is not clear that these requirements are retroactive. If the hearing in which Sloan’s parole date was rescinded did not violate federal constitutional standards then required of the states, the rescission did not become vulnerable to attack after Morrissey set higher standards.

In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the court applied the Morrissey standards to a pre-Morrissey revocation of probation. By analogy, therefore, it could be argued that a similar application should be made to a denial of parole. However, on the facts of the case at bar, the Adult Authority had a more than adequate basis for deciding that its first impression of Sloan’s fitness for parole had been premature and overly optimistic. There was nothing about the procedure followed that was inherently unfair, and there is no reason to believe that if Sloan had been given an adversary hearing with Morrissey-Scarpeili standards governing the procedure, he would have been able to demonstrate that he was a fit candidate for release on parole. Moreover, the reasoning of Wolff v. McDonnell in denying retrospective effect to Morrissey and Scarpelli in a prison-discipline case would seem to apply with equal force here.

Because we have assumed for the purposes of this appeal that Sloan was entitled to due-process standards equal to those found in the Dennis case, as if Sloan’s case were a parole revocation instead of a matter of prison discipline, it is not necessary in this case to speculate whether lower standards of due process would satisfy constitutional requirements when the issue is the rescission of a future parole date instead of the revocation of an existing parole. In this ease, Sloan received the measure of due process then required, by either test.

The judgment denying Sloan’s petition for a writ of habeas corpus is affirmed.

      . M’Clary v. California Adult Authority, 466 F.2d 1122 (9th Cir. 1972), discussed by the appellant, has been vacated by the Supreme Court. 412 U.S. 916, 93 S.Ct. 2737, 37 L.Ed.2d 142 (1973). Its holding that Morrissey was not intended to apply retroactively was, of course, reiterated by Wolff v. McDonnell, 418 U.S. at 573-574, 94 S.Ct. at 2983.


author: PER CURIAM.

text:
    NATIONAL LABOR RELATIONS BOARD Petitioner v. B. J. PROVENZALE COMPANY, INC., d/b/a B. J. P. Painting and Decorating Co., Respondent.
    No. 74-1495.
    United States Court of Appeals, Sixth Circuit.
    March 19, 1975.
    Elliott Moore, Deputy Associate Gen. Counsel, Peter G. Nash, John S. Irving, Patrick H. Hardin, Michael S. Winer, Frank C. Morris, Jr., N. L. R. B., Washington, D. C., Bernard Levine, Director, Region 8, N. L. R. B., Cleveland, Ohio, for petitioner.
    Donald F. Woodcock, Calfee, Halter, Calfee, Griswold & Sommer, David E. Bishop, Cleveland, Ohio, for respondent.
    Before LIVELY, Circuit Judge, and O’SULLIVAN and McALLISTER, Senior Circuit Judges.
   PER CURIAM.

This case grows out of an unfair labor practice charge which was filed against the Company on September 12, 1972. On February 28, 1973, a hearing was held before Administrative Law Judge Wellington A. Gillis and, after an extensive hearing, Judge Gillis found that the Company had not violated Section 8(a)(1) or Section 8(a)(3) of the National Labor Relations Act, and granted the Company’s motion to dismiss the complaint in its entirety.

The General Counsel filed exceptions to the Administrative Law Judge’s Decision granting the Company’s motion to dismiss.

On October 30, 1973, the National Labor Relations Board issued a Decision and Order in which it reversed the Administrative Law Judge’s findings of fact and conclusions of law; found that the Company had violated the above-named Sections of the Act; and made the customary order to cease and desist, reinstate the discharged workers, and make them whole for any loss of earnings they may have suffered.

The Company filed a motion for Reconsideration, a Motion for Leave to File a Brief, and a Request for Oral Argument. The Board denied the three motions and, subsequently, petitioned this court for enforcement of its order against the Company.

The respondent Company is, for the most part, engaged in maintenance work on a certain few buildings in Cleveland, occupied by the Sohio Standard Oil Company. With respect to the painting operations covered by agreement — the only phase with which this proceeding is concerned — Sohio controls the amount and type of work to be performed, designating from week to week the areas to be painted, and the number of the Company’s painters to be used. It appears that the Company, as well as its predecessor, adhered to and assumed the Area-working Agreement of District Council No. 6 AFL-CIO of the International Brotherhood of Painters and Allied Trades, which is a labor organization within the meaning of Section 2(5) of the Act.

The respondent Company worked a crew of approximately ten men, subject to variance during the month of March, except for a period when there was no work. B. J. Provenzale was the President of this small Company and had the ultimate responsibility for all operations but placed the control of the painting crew in the hands of the foreman who, up to May 10, was Harold Solomon, and, thereafter, Oliver Miller. This authority, with occasional exceptions, extended to the foreman’s selecting which painters would work on any given day or week.

Toward the end of March, President Provenzale received word from Sohio that there would follow a period of limited work, and that the Company could keep only a foreman and four painters. President Provenzale discussed the problem concerning the reduction of the painting crew with his foreman, Solomon, raising the possibility of commencing a rotation system. Solomon was reluctant to work such a system as he thought it more equitable to keep all of the men working some of the time. Nevertheless, Provenzale decided to institute a two-week rotation schedule, whereby half the men would work for two weeks, and then be laid off while the other half worked.

Provenzale was also confronted by a situation concerning the payment of the premium rate. Under a Union agreement with area painting contractors, to which Provenzale adhered, during the lull season between December and March, painters work on a basis of “seven for eight” — that is, seven hours’ work for eight hours’ pay. From the first working day in April, however, until December 1, the “seven for eight” does not apply, and painters are to be paid time and a half, premium rate, for night work.

On April 3, Provenzale called the painters to his office and told them that Sohio could not afford to pay the premium rate, and that if they wanted to continue working until Sohio and the Union could work something out, they would have to continue on the “seven for eight” basis. He then told the painters that, because of there not being much work, he was going to have to put the men on a rotation basis, indicating to them how it would work. The men decided to go ahead and expressed their willingness to go along with the rotation basis.

At some point during the discussion there was a reference to one of the painters, Tom Land, having gone to the Union on a matter relative to spray-painting wages. According to the testimony of one of the employees, Provenzale asked Land why he chose to go to the Union to collect his spray wages rather than coming directly to him and that “if he had any differences, he was to come to him, and not keep running down to the Union about it.” Provenzale testified that he merely made a comment concerning spray painting to the effect he did not see why anyone had to go to the Union when he could come to him. This incident seems trivial and irrelevant, but it turns out that it is one of the chief foundations on which the Board found that the Company violated Section 8(a)(1) of the Act by threatening employees with discharge, or other reprisals, because they had taken grievances to the Union. There is further evidence with regard to the situation, which will hereafter be recounted.

On April 5, Solomon, the foreman, spoke with Provenzale and told him that he had quit the job because of a number of harassing telephone calls from the men concerning unfair treatment, giving rise to his having become fearful for himself and his family. Provenzale was immediately distressed, and went to the seventh floor of the Guildhall Building, where the painting crew was working. He addressed the men, advising them of Solomon’s quitting and letting them know how he felt about the entire matter. Provenzale stated that, “I did not care if my foreman was a Jew or if he was a black or what his origin was, and no one is going to run my foreman off the job.” Provenzale also let the men know that if anyone did not like working under these conditions, he could quit.

These remarks were not directed to any particular person but later, at some point, Provenzale looked at Frank Land and stated that he did not “need no middle man running back to the Hall, complaining about what was going on in this building.” Later, about April 10, Provenzale, in a conversation with three painters including Tom Land, stated: “What the hell is this about you and your nephew going to Union Hall?” Tom did not reply. About this time, after several weeks of negotiations, the Company and the Union entered into a maintenance agreement providing for a reduced painting crew, as decided by Provenzale, which crew consisted of four painting employees, under Foreman Solomon. Tom and Frank Land were among those laid off.

The claim is made that the laying off of the Lands by the Provenzale Company was an unfair labor practice within the meaning of 8(a)(1) and 8(a)(3) of the Act. In our view this is an untenable charge. The laying off of Frank Land, Jr., and Thomas Land did not constitute an unfair labor practice. There was no evidence of any attempt to coerce the Lands in the exercise of their rights to engage in concerted activities for the purpose of mutual aid or protection. There was no threat of reprisals in any of the language addressed by Provenzale to the Lands. In this regard, it should be noted that before laying off the six men, including the Lands, Provenzale reacted to a diminution of his business by putting into effect a rotation system, whereby each painter would work two weeks, and then be laid off for two weeks. Certainly, if Provenzale had wished to discharge the Lands, he could have discharged them before instituting the rotation system. This system clearly shows Provenzale was trying to keep all of the men, including the Lands, as painters on the job by means of the rotation plan.

A week or so after the layoff, when there was a slight increase in work, Provenzale testified that he told Roberta Smedley, his secretary, to call both Lands. She testified she called both several times, and finally got in communication with the wife of one of them, leaving word that there was work available for both men. Miss Smedley could not remember with which wife she talked. Both wives denied that either had received such a call, but the Administrative Law Judge stated in his decision that he was so impressed with Miss Smedley’s forthrightness that she appeared to be the one most believable, and that, therefore, he credited her testimony.

The Lands had gone to Mr. Kramer, the business representative of the Union, stating they had not received the proper amount of pay for a job. He told them he would get it straightened out. He got in touch with Mr. Provenzale and the Lands almost immediately received the small amount of six dollars about which they were concerned.

There were never any complaints filed by employees against the Company except — if it could be called a complaint— that of the Lands about the six-dollar shortage in their wages for spray painting.

Mr. Provenzale testified that his company wanted to be friendly with the Union. He never manifested to Mr. Kramer any objection to Union activities by his employees. He never manifested to Mr. Kramer any anti-Union feelings; according to Mr. Kramer’s testimony. There was no evidence of any anti-Union prejudice, or anti-Union animus on the part of the Company.

The Administrative Law Judge was correct in finding that Mr. Provenzale’s statement to the Lands was not an evidence of anti-Union feeling, but that he was put out because the Lands had skipped the normal first step of making a complaint to him before complaining to the Union, which was provided in the contract between the Union and the Company in “Article V — Grievance Procedure,” as follows:

“(1) All Grievances, other than those pertaining to general wage rate or jurisdictional disputes that may arise on any work covered by this Agreement, shall be handled in the following manner:
(a) Step I: Between the aggrieved employee and/or his shop steward or both and the company supervisor of the craft.”

That Mr. Provenzale was annoyed because the Lands had taken their trivial grievance to the Board instead of directly to him, as provided by the UnionProvenzale contract, does not show the Lands’ discharges were actuated by hatred, anger, or anti-Union animus. There was simply a necessary reduction of employees.

There is no evidence of any violation by the Company of Sections 8(a)(1) or 8(a)(3).

In conclusion, we are in accord with the findings of fact and conclusions of law of Administrative Judge Gillis in holding that the Respondent Provenzale Company did not engage in any unfair labor practices as alleged in the Complaint. The Order of the Board to the contrary is not sustained by substantial evidence, and enforcement of its Order is denied.


author: PHILLIPS, Chief Judge.

text:
    Geraldine W. BRADLEY and Donald H. Bradley, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.
    No. 74-1628.
    United States Court of Appeals, Sixth Circuit.
    March 5, 1975.

      Dennis L. Tomlin, Nashville, Tenn., for plaintiffs-appellants.
    W. Ovid Collins, Jr., Cornelius, Collins, Higgins & White, Thomas A. Higgins, Nashville, Tenn., for defendant-appellee.
    Before PHILLIPS, Chief Judge, MILLER, Circuit Judge, and McALLISTER, Senior Circuit Judge.
   PHILLIPS, Chief Judge.

This case presents the recurring and troublesome question of when the Tennessee statute of limitations, T.C.A. § 28-304, begins to run in a products liability action.

Jurisdiction is based on diversity of citizenship, 28 U.S.C. § 1332, and we must look to the decisions of Tennessee courts for the controlling substantive law. Erie Railroad Co. w Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

On October 25, 1963, Dr. Donald W. Bradley purchased a 1964 Pontiac automobile from a General Motors dealer. On August 22, 1967, Mrs. Bradley was driving the car when it was involved in an accident from which she suffered serious injuries. On June 27, 1968, Dr. and Mrs. Bradley filed complaints against General Motors in the District Court, alleging that the automobile was mechanically defective and predicating recovery upon negligence, strict liability, and misrepresentation. Jurisdiction was based on diversity of citizenship.

In July 1971, the District Court dismissed the complaints, holding that the property damage claim was barred by Tennessee’s three-year statute of limitations, T.C.A. § 28-305 (1955), and that the personal injury claim was barred by the applicable one-year period of limitations. T.C.A. § 28-304 (Supp.1973). In reaching this conclusion, the court relied upon Jackson v. General Motors Corp., 223 Tenn. 12, 441 S.W.2d 482, cert. denied, 396 U.S. 942, 90 S.Ct. 376, 24 L.Ed.2d 243 (1969), in which the Tennessee Supreme Court held that the one-year period of § 28-304 began running at the time of sale of a defective product rather than at the time of injury. Also before the District Court was the 1969 amendment to § 28-304, which was enacted for the purpose of reversing the Jackson rule. This amendment, however, was made expressly inapplicable to causes of action accruing prior to May 20, 1969.

On a former appeal, this court remanded for reconsideration in the light of the 1972 amendment to § 28-304, which the Legislature passed after the District Court’s decision. Bradley v. General Motors Corp., 463 F.2d 239 (6th Cir. 1972). This amendment eliminated the prospective language of the 1969 amendment and stated specifically that “in said products cases no person shall be deprived of his right to maintain his cause of action until one (1) year from the date of his injury and under no circumstances shall his cause of action be barred before he sustains an injury.” The 1972 amendment took effect April 11, 1972.

On remand the District Court affirmed its earlier decision on the authority of Ford Motor Co. v. Moulton, 511 S.W.2d 690 (Tenn.1974), cert. denied 419 U.S. 870, 95 S.Ct. 129, 42 L.Ed.2d 109 in which the Tennessee Supreme Court held that the 1972 amendment could not be applied retrospectively. Dr. and Mrs. Bradley again appeal from the dismissal of their suit.

In the Moulton case plaintiffs purchased their car on April 30, 1969, the accident occurred on July 5, 1970, and the complaint was filed on May 13, 1971. The Supreme Court of Tennessee adhered to the Jackson rule and refused to interpret the 1972 amendment to revive an action that otherwise was barred by limitation. Moulton is virtually indistinguishable from the case at bar. It states the law of Tennessee as enunciated by the highest court of that state, and we are bound to follow it in this diversity action unless it has been overruled by the even more recent case of Teeters v. Currey, 518 S.W.2d 512 (Tenn.1974).

In Teeters the Supreme Court of Tennessee held that in cases where medical malpractice is asserted to have occurred through the negligent performance of surgical procedures, “the cause of action accrues and the statute of limitations commences to run when the patient discovers, or in the exercise of reasonable care and diligence for his own health and welfare, should have discovered the resulting injury. All cases contra are overruled.” (Emphasis added.)

Among the cases overruled were Albert v. Sherman, 167 Tenn. 133, 67 S.W.2d 140 (1934) and Bodne v. Austin, 156 Tenn. 366, 2 S.W.2d 104 (1928).

Appellants contend that Teeters v. Currey operated to overrule Jackson v. General Motors Corp., and Ford Motor Co. v. Moulton. General Motors asserts the two latter decisions have not been overruled and are controlling in the present case.

On December 12, 1974, three days after the announcement of the decision of the Supreme Court of Tennessee in Teeters, this court released its slip opinion affirming the judgment of the District Court in the present case on the authority of Jackson and Moulton. The opinion of this court was in process of printing when Teeters was announced. This court was unaware of the decision in Teeters at the time of the release of our opinion, which thereafter was withdrawn from publication.

Dr. and Mrs. Bradley filed a petition for rehearing, and a suggestion for rehearing in banc, relying on Teeters. At the direction of this court, General Motors has filed an answer to the petition for rehearing. No judge of the court having moved for rehearing in banc, the petition for rehearing is now before the original hearing panel for consideration.

This court does not have the power to reconsider interpretations of Tennessee law by state courts as does the Supreme Court of Tennessee. The Supreme Court of Tennessee has the power to reconsider and overrule its former interpretation of T.C.A. § 28-304. In the absence of a change by the Tennessee legislature, the federal courts in a diversity case can reconsider and depart from the rulings of the Supreme Court of Tennessee only to the extent, if any, that examination of later decisions of that court show that it has changed its earlier interpretation of the effect of the Tennessee statute. Moore v. Illinois Central R. Co., 312 U.S. 630, 633, 61 S.Ct. 754, 85 L.Ed. 1089 (1941); Wichita Royalty Co. v. City National Bank, 306 U.S. 103, 107, 59 S.Ct. 420, 83 L.Ed. 515 (1939).

In Teeters, the Supreme Court of Tennessee made express reference to the legislative amendments to T.C.A. § 28-304 with respect to products liability actions. As stated above, it reversed Albert v. Sherman, 167 Tenn. 133, 67 S.W.2d 140 (1934) and Bodne v. Austin, 156 Tenn. 366, 2 S.W.2d 104 (1928), which were the judicial underpinnings of the decision in Jackson v. General Motors Corp. Appellants contend that, by overruling these underpinnings, the Supreme Court of Tennessee effectively has overruled Jackson v. General Motors Corp.

We are referred to the decision of a Tennessee trial court which reached the conclusion advocated by Dr. and Mrs. Bradley. On December 20, 1974, Judge Roland Prince of the Law and Equity Court of Anderson County, Tennessee, entered an order holding that Teeters overruled Jackson and Moulton. A decision of a Tennessee trial court is not binding on this court in a diversity case. King v. Order of Commercial Travelers of America, 333 U.S. 153, 68 S.Ct. 488, 92 L.Ed. 608 (1947); cf. Old Kent Bank & Trust Co. v. United States, 362 F.2d 444 (6th Cir. 1966). However, this court may give weight to the decision of a trial court in determining what is the controlling law of Tennessee. Royal Indem. Co. v. Clingan, 364 F.2d 154 (6th Cir. 1966). The decision of Circuit Judge Prince is in accord with the unreported opinion of the Court of Appeals of Tennessee, Western Division, in Gilbert v. Jones and Ortho Pharmaceutical Corp., (December 31, 1974), in which Teeters was applied in a case involving both medical malpractice and products liability.

Upon consideration, we conclude that the petition for rehearing should be granted; that the decision of the District Court should be vacated; and that the case should be remanded to the District Court for further consideration in the light of Teeters v. Currey. If an appeal is perfected to the Supreme Court of Tennessee in the Anderson County case referred to above, or if a petition for certiorari is filed in the Supreme Court of Tennessee in Gilbert v. Jones and Or-tho Pharmaceutical Corp., the District Court will have the option of deferring a decision in the present case until the Supreme Court of Tennessee has decided the issue.

It is so ordered. No costs are taxed. Each party will bear his own costs on this appeal.

      . Section 28-304 now provides as follows:

        28-304. Personal tort actions — Malpractice of attorneys — Civil rights actions— Statutory penalties — Actions for libel, for injuries to the person, false imprisonment, malicious prosecution, criminal conversation, seduction, breach of marriage promise, actions and suits against attorneys for malpractice whether said actions are grounded or based in contract or tort, civil actions for compensatory or punitive damages, or both, brought under the federal civil rights statutes, and actions for statutory penalties shall be commenced within one (1) year after cause of action accrued. For the purpose of this section, insofar as products liability cases are concerned, the cause of action for injury to the person shall accrue on the date of the personal injury not the date of the negligence or the sale of a product and in said products cases no person shall be deprived of his right to maintain his cause of action until one (1) year from the date of his injury and under no circumstances shall his cause of action be barred before he sustains an injury.

      . The present Chief Justice of Tennessee dissented in Ford Motor Co. v. Moulton.

      . In Woodruff v. Tomlin, 511 F.2d 1019 (6th Cir., 1975), this court applied Teeters v. Currey to a malpractice case against a Tennessee lawyer.


author: FEINBERG, Circuit Judge: MANSFIELD, Circuit Judge

text:
    CORWIN CONSULTANTS, INC., Petitioner-Appellant, v. The INTERPUBLIC GROUP OF COMPANIES, INC., et al., Respondents, Samuel A. Culbertson, II, Respondent-Appellant, United States of America, Respondent-Appellee.
    Nos. 303, 304, Dockets 74-1778, 74-1780.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 8, 1975.
    Decided March 4, 1975.

      Benedict Ginsberg, New York City, for petitioner-appellant Corwin Consultants, Inc.
    Joel S. Stern, New York City (Maass, Levy, Friedman, Hirsch & Stern, New York City, on the brief), for respondent-appellant Samuel A. Culbertson, II.
    Mel P. Barkan, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., Gerald A. Rosenberg, Asst. U. S. Atty., on the brief), for respondent-appellee United States.
    Before MEDINA, FEINBERG and MANSFIELD, Circuit Judges.
   FEINBERG, Circuit Judge:

After cross motions for summary judgment, Judge Morris E. Lasker of the United States District Court for the Southern District of New York awarded the United States, because of its tax lien, priority in a fund being accumulated for taxpayer Marion Harper, Jr., 375 F.Supp. 186 (S.D.N.Y.1974). Corwin Consultants, Inc. and Samuel A. Culbertson, II, two other creditors of Harper and claimants to the same fund, appeal from that decision. Because we feel that summary judgment was improperly granted, we reverse and remand for further proceedings.

I

In 1968, Harper severed all connection with The Interpublic Group of Companies, Inc., a corporation with which he had been closely associated. Part of the severance agreement called for Inter-public to make periodic payments to Harper until 1976; these payments constitute the fund here in issue. Having determined that Harper owed income tax for 1968, the Internal Revenue Service filed notices of tax lien with the County Clerk of Westchester County, New York, in 1970, and with the City Register of New York in 1971. These liens have been satisfied and are not now contested. Meanwhile, Harper’s other creditors obtained judgments against him in the New York state courts: Corwin for $52,346 in May 1972, and Culbertson for $608,180.90 in November 1972. These judgments remain unsatisfied. During this period, the IRS determined that Harper owed more income taxes, this time for the years 1963, 1964 and 1965, and filed two more notices of tax lien on October 3, 1972. The first was filed at 10:32 A.M. with the City Register of New York, the second at 11:42 A.M. in Oklahoma City. At 12:51 that afternoon, Corwin perfected its judgment lien by delivering an execution to the Sheriff of New York. On January 3, 1973, the IRS filed another notice of tax lien in Washington, D.C. Finally, Culbertson perfected his judgment lien on February 5, 1973.

Corwin began this action in the New York state courts in 1973 to determine whose liens should have priority in the fund. The United States, as one competing claimant, removed the action to the court below. Thereafter, the United States and Corwin each moved for summary judgment. Judge Lasker granted the Government’s motion and awarded the United States first priority, Inter-public second, Corwin third, and Culbertson fourth priority. It appears, however, that the claims of the United States for over $440,000 for back taxes and of Interpublic for approximately $8,200 for stakeholder’s attorney’s fees will exhaust the fund.

On appeal, Corwin contends that its judgment lien of October 3, 1972 entitled it to priority over the claim of the United States because the latter’s notice filing earlier the same day was not effective. We find it unnecessary to decide that issue because we believe that the district court erred in awarding summary judgment when there were unresolved and crucial questions of fact before it.

II

To explain the significance of the undetermined facts, the nature of tax lien priority must be understood. If a person neglects to pay any tax after demand, section 6321 of the Internal Revenue Code of 1954, 26 U.S.C. § 6321, provides that the amount shall be a lien in favor of the United States upon all property belonging to such person. Section 6323(a) states that the lien shall not be valid against any judgment lien creditor until notice thereof, which meets the requirements of subsection (f), has been filed. Section 6323(f)(l)(A)(ii) provides that for personal property the notice shall be filed in the office designated by the state “in which the property subject to the lien is situated,” and section 6323(f)(2)(B) states that personal property, including intangibles, is deemed situated “at the residence of the taxpayer at the time the notice of lien is filed.”

Section 6323(f)(2)(B) is relatively new. It was added by the Federal Tax Lien Act of 1966 (Pub.L. No. 89-719) to clarify “existing law by providing specific rules with respect to the place of filing a notice of a Federal tax lien . . ..” 3 U.S.Code Cong. & Admin.News, 89th Cong., 2d Sess. 1966, at p. 3732 (S.Rep. No. 1708). Under prior law there had been some dispute as to where personal property, both tangible and intangible, was situated. Id. See United States v. Ullman, 179 F.Supp. 373 (E.D.Pa.1959). The courts and the IRS had, however, agreed in most cases that intangibles were located at the taxpayer’s domicile. 3 U.S.Code Cong. & Admin.News, supra, at p. 3732; United States v. Webster Record Corp., 208 F.Supp. 412, 415 (S.D.N.Y.1962). When the drafters added section 6323(f)(2)(B), they deliberately avoided using domicile, however, and chose residence instead “because of the difficulty in determining a person’s domicile, based as it is on (among other things) his state of mind.” 3 U.S.Code Cong. & Admin.News, supra, at p. 3732. As we shall see, the choice of the word residence has created other problems.

We return now to the facts of this case. If the IRS notices were properly filed on October 3, 1972, the United States would be entitled to priority, as the court below held, because the filing preceded Corwin’s perfection of judgment (and, a fortiori, Culbertson’s). However, whether the IRS notices validated a priority lien as against Corwin depends on where the taxpayer’s residence was on October 3, 1972. If it was in New York City or Oklahoma City, then the United States obtained such a lien on that date. Unfortunately, from the record before the district court, it is hard to tell where Harper then resided. At one time he was a resident of West-Chester County, but it appears that his home there was sold in June 1971. After that date it is unclear where he lived. Various addresses have been discovered, including the Waldorf Towers, the Metropolitan Club, and c/o Lane, 280 Madison Avenue, all in New York City. The last American address that the IRS found for Harper was the Sheraton Hotel in New York City, where he apparently stayed from August 20, 1972 to September 13, 1972. At the Sheraton, Harper filled out a registration card indicating Oklahoma City as his residence, but that address turned out to be his parents’ home and there is no evidence that Harper actually lived there. We were informed by the Government after oral argument that nine days after the filings in October 1972, the IRS learned of another possible address in Switzerland. This apparently prompted the January 3, 1973 filing in Washington, D.C., see note 11 supra.

In the papers accompanying its motion for summary judgment, the United States asserted that Harper resided in New York County on October 3, 1972. Corwin, in an answering affidavit, suggested that Harper’s residence on that date was unknown and asserted that it certainly was not in New York City. The United States then submitted an affidavit that backed off from the positive assertion of New York residence and stated that Harper may have resided in New York or in Oklahoma City but that it did not matter, since it was undisputed that the situs of the debt was in New York County. On this paper record, Judge Lasker decided that Harper’s residence on October 3, 1972 was incapable of determination. Nonetheless, he validated the IRS notice filed in New York on the novel and questionable theory that the IRS could, and did, acquire priority by such filing because it had demonstrated “due diligence” and “substantial compliance” with the statutory requirements.

We believe that Judge Lasker acted prematurely. If Harper resided in New York County or Oklahoma City on October 3, 1972, the United States’ tax lien would be entitled to priority over Corwin on the basis of the statute alone and the “due diligence” theory devised below would have been unnecessary. Cf. S. D’Antoni, Inc. v. Great Atlantic & Pacific Tea Co., 496 F.2d 1378, 1380 (5th Cir. 1974). On the other hand, if Harper resided in Switzerland on that date, Cor-win would be entitled to priority over the United States. Once again, there would be no need to consider a “due diligence” theory of filing. Harper’s residence on October 3, 1972 was a material but undetermined question of fact and summary judgment should not have been granted. United States v. Webster Record Corp., supra, 208 F.Supp. at 415-16. Nor, until further proceedings were held and all the evidence submitted could the district court properly decide that the “taxpayer’s actual residence cannot be determined.” 375 F.Supp. at 191. For this reason, we reverse and remand for further proceedings.

We are aware that determining where Harper resided on October 3, 1972 may prove difficult. As we have noted, Harper moved about quite a bit after he sold his Westchester home. And even if he can be located in one place on October 3, 1972, it is not obvious that the spot would be his residence. Residence, “when used in a sense other than domicil, is one of the most nebulous terms in the legal dictionary.” Reese & Green, That Elusive Word, “Residence,” 6 Vand. L.Rev. 561, 580 (1953), and the confusion is not of recent origin. The Chinese Tax Cases, 14 F. 338, 344 (C.C.D.Or.1882). Residence can have many different meanings depending on the context in which it is used. Reese & Green, supra, at 563-64; McGrath v. Kristensen, 340 U.S. 162, 175, 71 S.Ct. 224, 95 L.Ed. 173 (1950); United States v. Rubinstein, 166 F.2d 249, 254 (2d Cir.), cert. denied, 333 U.S. 868, 68 S.Ct. 791, 92 L.Ed. 1146 (1948); Restatement (Second) of Conflicts, § 11, comment k (1971).

A principal purpose of the 1966 Tax Lien Act in using residence filing was to “increase the likelihood that creditors, generally, will receive notice as to taxpayers’ standing with the Government.” 3 U.S.Code Cong. & Admin. News, supra, at p. 3731. In light of this purpose, the residence of a delinquent taxpayer is a question of fact to be determined by various criteria: Among them are the taxpayer’s physical presence as an inhabitant and not a mere transient, Myers v. Commissioner, 180 F.2d 969, 971 (4th Cir. 1950); the permanence of that presence, In re Watson, 99 F.Supp. 49, 54 (W.D.Ark.1951); the reason for his presence; and the existence of other residences. In general, for this statute, where a taxpayer resides is where he dwells for a significant amount of time and where creditors would be most likely to look for him. What proportion of time is “significant” is not capable of exact definition and must be determined on a case by case basis, at all times keeping the purpose of the filing requirement in mind.

It may well be that after production of all available evidence at a trial, Harper’s residence can be determined. Therefore, we do not decide the issue that Judge Lasker faced too soon: what to do if it is found that the taxpayer had no definable residence on October 3, 1972. As we noted above, the 1966 statute was designed to ease the burden for creditors in searching for federal tax liens and for the IRS in filing notices of such liens. Thus, the drafters chose residence instead of domicile as the key. But every person has at all times one and only one domicile for the same purpose, Restatement (Second) of Conflicts, supra, § 11; United States ex rel. Devenuto v. Curran, 299 F. 206, 209 (2d Cir. 1924), while a person can have more than one residence, Myers v. Commissioner, supra, 180 F.2d at 971; United States ex rel. Devenuto v. Curran, supra, 299 F. at 211; In re Watson, supra, 99 F.Supp. at 53, or perhaps none at all. Reese & Green, supra, at 564. Apparently, the drafters did not consider this last possibility. Thus, we might be confronted with a situation where the statutory language does not explicitly apply and the legislative history is silent.

Judge Lasker found that in such event the IRS could acquire priority by filing in New York because it had shown “due diligence” and “substantial compliance” with the statute. Corwin forcefully argues that this construction rewrites the statute, something only Congress can do. For now, we note that after remand it may be unnecessary for the district court to reconsider this theory. Another possibility, in the absence of a residence for Harper on the specific date, might be to “construe” residence as “the last known address of the taxpayer.” Cf. 26 U.S.C. §§ 6212, 6303. This, too, would be statutory construction of large dimensions. In addition, this phrase has been interpreted to mean the last address known to the local IRS office, even after the taxpayer has moved and paid taxes to another IRS office. Luhring v. Glotzbach, 304 F.2d 556, 559 (4th Cir. 1962). A last known address interpretation might thus put creditors of the taxpayer at the mercy of whatever records the IRS office involved happened to possess. Finally, when a taxpayer has no definable residence, it may be impossible for the IRS to file under 26 U.S.C. § 6323 a notice of tax lien valid against judgment lien creditors and others there specified. Such a result may be unavoidable in light of the legislative history referred to above. This would not, however, “allow tax evasion by the mere disappearance of the taxpayer,” as the court below stated. 375 F.Supp. at 191. As Cor-win points out, the Government’s contest here is not with a taxpayer on the run but with judgment creditors who also have a claim of right. If the other creditors had not appeared, the Government could have levied on the taxpayer’s property and collected from him without ever filing a notice of tax lien anywhere. 26 U.S.C. § 6331; American Honda Motor Co. v. United States, 363 F.Supp. 988, 992 (S.D.N.Y.1973). And even if Corwin or another creditor ultimately prevails here, a substantial tax liability would still face Harper. Nonetheless, a holding that for a taxpayer without an ascertainable residence the Government can never properly file its notice of tax lien is unsatisfactory, and we hope that Congress will see fit to eliminate the possibility of such a result in the future.

We reverse the grant of summary judgment by the district judge and remand for further proceedings in accordance with this opinion.

MANSFIELD, Circuit Judge

(concurring):

I concur in the holding that summary judgment was improperly granted by the District court because of the existence of a question of material fact; that is, the location, if any, of the taxpayer’s residence on October 3, 1972. However, I disagree with the majority’s construction of 26 U.S.C. § 6323(f)(2)(B) and with the burden of proof that it would place upon the government upon remand.

In my view Congress did not intend the term “residence” in § 6323(f)(2)(B) to be given a strict or literal meaning that would prevent the government from filing a lien to establish its priority to collect a lawfully-due tax in the case where a taxpayer has discontinued his residence and hopped around the country. Cf. United States v. Ball, 326 F.2d 898, 900 (4th Cir. 1964). As Judge Learned Hand said in Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 1944) (concurring opinion) “[t]here is no surer way to misread any document than to read it literally.” See also Federal Deposit Ins. Corp. v. Tremaine, 133 F.2d 827, 830 (2d Cir. 1943) (L. Hand, C. J.) (“There is no surer guide in the interpretation of a statute than its purpose when that is sufficiently disclosed; nor any surer mark of over solicitude for the letter than to wince at carrying out that purpose because the words used do not formally quite match with it.”)

I believe that § 6323(f)(2)(B) should be construed to mean that, where the government cannot through reasonable inquiry ascertain a taxpayer’s actual residence, it may satisfy the statute’s requirement by filing notice of its judgment lien with the state-designated office within the jurisdiction of the taxpayer’s last known or verifiable abode. This practical construction seems to me to be in accord with the purpose of the statute, which is to put other creditors on notice, since they too would be most likely to inquire about liens in the county of the last residence of the taxpayer that could be ascertained by reasonable effort. Furthermore, the interpretation of “residence” as meaning “last known residence” is in accord with other provisions of the Code, see, e. g., 26 U.S.C. §§ 6212 & 6303.

Under this construction of the statute there need be no fear that the government might be able to satisfy the statute’s requirements merely by locating the taxpayer’s last address shown on IRS tax records, since this would not necessarily be ascertainable by reasonable effort on the part of creditors. Nor is there any reason for adopting such an interpretation merely because it has been adopted by one court in construing a different statute. See Luhring v. Glotzback, 304 F.2d 556, 559 (4th Cir. 1962). The last publicly known address of a taxpayer, on the other hand, is ascertainable by creditors.

The government should not be obligated under § 6323(f)(2)(B) to ferret out the secret hideout of such a taxpayer, whether it be in Switzerland or elsewhere. While a clarifying amendment of the statute would be helpful I do not think it is essential. Congress’ purpose can be implemented by a practical construction of the term “residence” as used in the existing law.

      . Another creditor, Cowles Communications, Inc., obtained a judgment for $56,820.54 in June 1972.

      . Under New York law a judgment creditor does not become a judgment lien creditor until execution is delivered to the sheriff. N.Y. C.P.L.R. § 5202 (McKinney 1963). United States v. Pearson, 258 F.Supp. 686, 691 (S.D.N.Y.1966).

      . Appellants claim that evidence of this filing was not before the district court and thus should not be considered by us. In view of our disposition of this appeal,' we need not reach this issue.

      . Cowles apparently has not perfected its lien.

      . No one has appealed the grant of priority to the stakeholder, Interpublic, and thus we do not deal with its claim.

      . Cowles, see notes 1 and 4 supra, was given last priority, and does not appeal.

      . Section 6321 provides:
      If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.

      . Section 6323(a) provides:
      The lien imposed by section 6321 shall not be valid as against any purchaser, holder of a security interest, mechanic’s lienor, or judgment lien creditor until notice thereof which meets the requirements of subsection (f) has been filed by the Secretary or his delegate.

      . Section 6323(f) provides in part:
      (1) Place for filing. — The notice referred to in subsection (a) shall be filed—
      (A) Under State laws.—
      (ii) Personal property. — In the case of personal property, whether tangible or intangible, in one office within the State (or the county, or other governmental subdivision), as designated by the laws of such State, in which the property subject to the lien is situated; or
      (2) Situs of property subject to lien.— For purposes of paragraph (1), property shall be deemed to be situated—
      (B) Personal property. — In the case of personal property, whether tangible or intangible, at the residence of the taxpayer at the time the notice of lien is filed.
      For purposes of paragraph (2)(B), the residence of a corporation or partnership shall be deemed to be the place at which the principal executive office of the business is located, and the residence of a taxpayer whose residence is without the United States shall be deemed to be in the District of Columbia.

      . N.Y. Lien Law § 240 (McKinney’s Consol. Laws, c. 33, Supp. 1974) was changed in 1966 to reflect the new federal tax lien law and now essentially provides that for personal property owned by New York residents the notice shall be filed with the county clerk or city register where the taxpayer resides. See also Bankers Trust Co. v. Equitable Life Assur. Soc’y, 19 N.Y.2d 552, 557, 281 N.Y.S.2d 57, 227 N.E.2d 863 (1967).

      . For a taxpayer residing abroad, section 6323(f)(2) assigns a residence in the District of Columbia.

      . Letter dated January 9, 1975. Appellants also object to consideration of this letter. See note 3 supra.

      . The stakeholder, Interpublic, was located in New York County. We do not, however, necessarily agree that the situs of the debt was in New York County. See text accompanying note 11 supra.

      . In addition, if Harper continued to reside in Switzerland until January 3, 1973, the United States, by virtue of its filing of notice in Washington, D.C., on that date, would be entitled to priority over Culbertson, whose judgment lien was not perfected until February 1973.

      . E. g., the district court did not have before it the supplemental information given to us by the Government, referred to in notes 3 & 12 supra, and accompanying text, although there was evidence of the Swiss address in the record.

      . One obvious remedy is to allow filing in Washington, D.C., for a taxpayer with no identifiable residence, as is now done for a taxpayer living abroad. See note 11 supra.