author: BAZELON, Chief Judge: J. SKELLY WRIGHT, Circuit Judge

text:
    NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
    No. 72-2233.
    United States Court of Appeals, District of Columbia Circuit.
    May 19, 1975.
    Rehearing Denied June 24, 1975.

      David Schoenbrod, New York City, was on the pleadings for petitioners.
    Edward J. Shawaker, Washington, D. C., was on the pleadings for respondent.
    Before BAZELON, Chief Judge, and WRIGHT and McGOWAN, Circuit Judges.
   Opinion for the Court filed by Chief Judge BAZELON.

Opinion filed by Circuit Judge J. SKELLY WRIGHT, concurring and dissenting.

BAZELON, Chief Judge:

Natural Resources Defense Council, Inc., (NRDC) brought this action following the publication of final regulations by EPA pursuant to section 211 of the Clean Air Act, as amended. As initially proposed, the regulations had required gasoline retailers to carry at least one grade of unleaded gasoline and had also laid down standards governing the use of lead additives in all grades of gasoline. In final form, they contained only the lead-free brand requirement. Before briefs were filed, NRDC filed a Motion for Prehearing Conference, Summary Reversal, or Expedited Hearing, urging the immediate need for across-the-board controls on lead additives. This motion was denied without prejudice to its renewal if EPA did not take final action in deciding whether to promulgate such controls within 60 days. Subsequent delays by the agency resulted in an order by this court on October 29, 1973, directing EPA to reach a final decision within thirty days. On November 28, 1973, EPA informed the court that it had decided to issue the regulations in question. NRDC now petitions to withdraw its appeal and for an award of costs and attorneys’ fees against EPA under section 304(d) of the Act.

The principle of sovereign immunity precludes the award of costs and fees against the United States “in the absence of a statute directly authorizing it . . ..” In 1966 Congress revamped 28 U.S.C. § 2412 to provide:

Except as otherwise specifically provided by statute, a judgment for costs . may be awarded to the prevailing party in any civil action brought by or against the United States or any agency or official of the United States acting in his official capacity .

But “fees and expenses of attorneys” were specifically excluded from the “costs” which courts were authorized to award. This limitation seems, on its face, inconsistent with the broad principle which led to the revision of section 2412 in the first place: “It is fundamental that the law should be uniform in its application.” It also presents a significant impediment to the implementation of the “private-attorney-general” theory, as federal agencies are defendants in a large percentage of public interest cases. Having registered these concerns, however, we are left to determine whether Congress has made a specific grant of attorneys’ fees covering this case.

I.

Section 304 of the Clean Air Act Amendments authorizes the award of costs and attorneys’ fees “whenever the court determines [that] such [an] award is appropriate.” This authorization goes specifically to suits brought under section 304(a), which recognizes actions against the Administrator “where there is alleged a failure ... to perform any act or duty under this chapter which is not discretionary” and grants the district courts jurisdiction to hear these suits and issue appropriate relief. NRDC’s action, however, was initiated in this court under section 307(b), which directs petitions for review of specified actions by the Administrator to the circuit courts of appeals. EPA urges us to conclude, therefore, that the provisions of section 304(d) are inapplicable and that in the absence of any other express authorization for the award of fees, NRDC’s petition must be rejected.

The same question was considered by the First Circuit in NRDC v. EPA. In that case, the court determined that section 304(a) provided the authorization for suits against the Administrator, whether brought in district court or in an appeals court under section 307. Section 307 simply directed that certain actions authorized by section 304(a) be brought iri one forum rather than the other. NRDC’s appeal was thus an action pursuant to section 304(a) and section 304(d) was applicable. Reluctantly, we find ourselves unable to follow the path by which the First Circuit reached this result.

Section 307(b) originally appeared as section 308(a) of Senate Bill 4358, as reported by the Senate Committee on Public Works. That section stated that “[a]ny interested person may file a petition against the Secretary for review” of any national standard, goal or prohibition in the United States Court of Appeals for the District of Columbia. Attacks on the adoption or promulgation : of state implementation plans were ' directed to the United States court of appeals for the “appropriate circuit.” Appeals were required to be taken within thirty days of the Administrator’s action. In the Joint Conference Committee the language was changed from “[a]ny interested person may file a petition . . . for review” to “[a] petition for review may be filed.” In all other material respects it remained the same through its enactment.

In framing section 307(b), the Senate Committee was aware that under decisions such as Barlow v. Collins and Abbott Laboratories v. Gardner the actions listed would probably be held reviewable under the Administrative Procedure Act (APA) in the absence of a statement of Congressional intent to the contrary. Finding that “precluding review does not appear to be warranted or desirable,” the Committee provided for review subject to the constraints which it considered necessary to preserve the “even and consistent national application” of standards and to “maintain the integrity of the time sequences of the Act.” After conference, section 307(b) was again characterized as a provision which “permits review.” Against this background, we find it difficult to say, at least without clearer affirmative support than has been offered, that the “authorization” for section 307 appeals derives from elsewhere in the Act, or that section 307 looks elsewhere in the Act for its terms and conditions.

The independence of sections 307 and 304 is also suggested by the language and history of section 304. Like section 307, this provision originated in the Senate. The Senate Committee’s report characterized it as “carefully restricted to actions where violations of standards and regulations or a failure oh the part of officials to act are alleged,” and its limited scope was stressed again by Senator Muskie in floor debate. Despite these declarations, opponents of the clause urged that the language was broad enough to encompass, inter alia, suits to require the revision or disapproval of implementation plans submitted by the states and the review and revision of emission standards. Perhaps in response to such criticisms, the conference committee altered the provision, which had authorized enforcement actions against the Administrator for failure to exercise “any duty established under this Act,” to allow citizens suits only for failure to perform any act or duty which is “not discretionary.” Managers for both the House and the Senate stressed the restrictive intent of the new language in floor debate.

Although the major emphasis throughout the development of section 304 was on its role as a vehicle for enforcement of established standards, courts have read it to cover the Administrator’s failure to take other steps required of him, such as the promulgation of implementation plans or standards within a specified time. But the language and history do not provide a basis for holding, as a general matter, that section 304 encompasses suits against the Administrator for taking steps alleged to be misguided or uninformed. Review of the Administrator’s exercise of judgment, or “discretion,” of course, is available under section 307, which establishes exclusive jurisdiction in the courts of appeals for actions within its compass. We conclude, contrary to the First Circuit, that sections 304 and 307 contemplate distinct groups of cases.

Another problem with the view adopted by the First Circuit is simply that the conditions for bringing actions under each section are inconsistent. This point, which is not addressed by the court in NRDC v. EPA, rests on the requirement of section 304(b) that no action may be brought pursuant to section 304(a) prior to sixty days after notification of the Administrator. Section 307 requires that appeals be brought within 30 days of the Administrator’s action. NRDC urges that these conflicting requirements must be read functionally. The requirement of section 304(b) has the purpose of allowing the Administrator, and other officials, to rectify inaction. No similar requirement is necessary with regard to suits contemplated under section 307, which covers actions which have already been taken. The notice provisions of section 304(b), NRDC concludes, should not be read as a “stone wall” separating one jurisdiction from the other. We find this argument unconvincing, particularly as it would lead to a rather tortured reading of section 304, whereby a section 307 appeal would be considered an action pursuant to section 304(a) for purposes of subsection (d) but not for purposes of subsection (b).

II.

Having come this far, however, we acknowledge a peculiar and for us somewhat troubling aspect of this case. Although brought under section 307, and properly so, NRDC’s appeal also resembles in important respects the class of cases contemplated by section 304(a). This resemblance raises the possibility at least that the suit falls within the intended reach of section 304(d), if not within its literal terms. This possibility was not explored by the parties but is significant enough in our view to warrant a brief discussion.

From one point of view, NRDC sought review of “action of the Administrator in promulgating” final regulations which omitted the controls that NRDC thought were immediately necessary. This is the characterization on which our jurisdiction is premised, and it retains validity even though at the time the administrator issued the rules which provoked NRDC’s appeal, he continued to consider the promulgation of across-the-board restrictions at some later time. As we said in Environmental Defense Fund, Inc. v. Hardin, the line between action and inaction sometimes disappears, particularly where, as here, the deferral of a ruling involves potentially irreversible consequences for human health. Our jurisdiction over the appeal, as within section 307, is suggested further by the national scope of the regulation involved: as we have indicated, the designation of this court as the exclusive forum for appeals from standard-setting actions by the Administrator was to ensure uniformity in decisions concerning issues of more than purely local or regional impact.

From another point of view, however, NRDC’s suit was directed at the “failure of the Administrator to perform [an] act or duty . . . which is not discretionary . . .,” i. e., refusal to promulgate controls which, given the information available to him on the health effects of airborn lead, he had no choice but to promulgate. This characterization may rest on an overly broad reading of what Congress intended by “not discretionary,” but it was seriously advanced by EPA itself in initially disputing the power of this court to hear and decide the case. The agency urged that NRDC was required to proceed in district court under section 304(a).

It is the fundamental purpose of section 304(d) to encourage meritorious litigation in furtherance of the goals of the Act. But this formulation does not explain why Congress failed to extend the availability of fees to suits brought under section 307. Perhaps Congress understood that affected industries could be counted on to force review of regulations under the Act, attorneys’ fees or no, but that the same concerns would not police the sort of nonregulation addressed by section 304(a). Private citizens and public interest groups could be expected to perform that task — but only if steps were taken to mitigate the high costs of suits involving complex questions. These considerations suggest that the purpose of section 304(d), even construed in its strictest sense, is well-served by the availability of fees in this ease and a small group of section 307 actions like it.

We are tempted on this analysis to award fees to NRDC notwithstanding our rejection of the First Circuit’s construction of the statute. But to do so would strain the limits of our interpretive function, pressing in a direction contrary to a still vital common law principle. It could also impede the development of clear and workable guidelines for the administration of sections 304 and 307 as the Act’s basic jurisdictional grants. We decline to bend the statutory framework to accommodate our good intentions, and leave the matter where it belongs, with Congress.

In addressing the anomolies which our review has suggested, Congress has several options. It may act in a comprehensive way, by enlarging section 2412 to provide equal treatment of the Government and private litigants with regard to fees; or it may work within the confines of the Clean Air Act, by extending the scope of section 304(d); or it may do nothing. One can appreciate EPA’s contention that Congress might reasonably hesitate before allowing taxpayers’ dollars to go to lawyers for the regulated concerns, whose vested interest in the least regulation has led them in a number of cases to contest orders of the Administrator under section 307. But a more generous provision for fees could be shaped to avoid this result, and a perceivable need does exist. Section 307 actions have been brought by public interest groups as well as businesses, attacking not only delay by the Administrator in promulgating standards and plans, as here, but also the sufficiency of standards and plans which have been approved. These suits have opened the Administrator’s actions to judicial scrutiny from a point of view widely divergent from that represented by the regulated interests, and their positions have frequently been upheld. Groups such as NRDC have never been secure financially, and only recently the foundations have indicated their intent to divert their support to projects in other areas. Provision for fees could thus have a strong impact on their continued willingness and ability to pursue section 307 actions. If Congress fails to act, there may come a day soon when EPA’s determinations, though frequently attacked because they are too stringent, are only seldom contested because they are not stringent enough.

Leave to withdraw the appeal is granted; in all other respects, petitioner’s motion is denied.

Appendix: §§ 304 & 307 of the Clean Air Act Amendments ■ of 1970, 42 U.S.C. §§ 1857h-2 & 1857h-5

§ 1857h — 2. Citizen suits.

Establishment of right to bring suit.

(a) Except as provided in subsection (b) of this section, any person may commence a civil action on his own behalf—

(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or
(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.

The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an emission standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be.

Notice.

(b) No action may be commenced—
(1) under subsection (a)(1) of this section—
(A) prior to 60 days after the plaintiff has given notice of the violation (i) to the Administrator, (ii) to the State in which the violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or
(B) if the Administrator or State has commenced and is diligently prosecuting a civil action in a court of the United States or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any person may intervene as a matter of right.
(2) under subsection (a)(2) of the section prior to 60 days after the plaintiff has given notice of such action to the Administrator,

except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of section 1857c-7(c)(1)(B) of this title or an order issued by the Administrator pursuant to section 1857e-3(a) of this title. Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation.

Venue; intervention by Administrator.

(c) (1) Any action respecting a violation by a stationary source of an emission standard or limitation or an order respecting such standard or limitation may be brought only in the judicial district in which such source is located.

(2) In such action under this section, the Administrator, if not a party, may intervene as a matter of right.

Award of costs; security.

(d) The court, in issuing any final order in any action brought pursuant to subsection (a) of this section, may award costs of litigation (including reasonable attorney and éxpert witness fees) to any party, whenever the court determines such award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure.

Non-restriction of other rights.

(e) Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief (including relief against the Administrator or a State agency).

Definition.

(f) For purposes of this section, the term “emission standard or limitation under this chapter” means—

(1) a schedule or timetable of compliance, emission limitation, standard of performance or emission standard, or
(2) a control or prohibition respecting a motor vehicle fuel or fuel additive,

which is in effect under this chapter (including a requirement applicable by reason of section 1857f of this title) or under an applicable implementation plan. July 14, 1955, ch. 360, Title III, § 304, as added Dec. 31, 1970, Pub.L. 91-604, § 12(a), 84 Stat. 1706.

§ 1857h-5. Administrative proceedings and judicial review.

(a)(1)1 In connection with any determination under section 1857c-5(f) or section 1857f-l(b)(5) of this title, or for purposes of obtaining information under section 1857f-l(b)(4) or 1857f-l(c)(4) of this title, the Administrator may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and he may administer oaths. Except for emission data, upon a showing satisfactory to the Administrator by such owner or operator that such papers, books, documents, or information or particular part thereof, if made public, would divulge trade secrets or secret processes of such owner or operator, the Administrator shall consider such record, report, or information or particular portion thereof confidential in accordance with the purposes of section 1905 of Title 18, except that such paper, book, document, or information may be disclosed to other officers, employees, or authorized representatives of the United States concerned with carrying out this chapter, to persons carrying out the National Academy of Sciences’ study and investigation provided for in section 1857f-l(c) of this title, or when relevant in any proceeding under this chapter. Witnesses summoned shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. In case of contumacy or refusal to obey a subpena served upon any person under this subparagraph, the district court of the United States for any district in which such person is found or resides or transacts business, upon application by the United States and after notice to such person, shall have jurisdiction to issue an order requiring such person to appear and give testimony before the Administrator to appear and produce papers, books, and documents before the Administrator, or both, and any failure to obey such order of the court may be punished by such court as a contempt thereof.

(b)(1) A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard, any emission standard under section 1857c — 7 of this title, any standard of performance under section 1857c-6 of this title, any standard under section 1857Í-1 of this title (other than a standard required to be prescribed under section 1857f-l(b)(l) of this title), any determination under section 1857f-l(b)(5) of this title, any control or prohibition under section 1857f — 6c of this title or any standard under section 1857f-9 of this title may be filed only in the United States Court of Appeals for the District of Columbia. A petition for review of the Administrator’s action in approving or promulgating any implementation plan under section 1857c-5 of this title or section 1857c-6(d) of this title, may be filed only in the United States Court of Appeals for the appropriate circuit. Any such petition shall be filed within 30 days from the date of such promulgation, or approval, or after such date if such petition is based solely on grounds arising after such 30th day.

(2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement.

(c) In any judicial proceeding in which review is sought of a determination under this chapter required to be made on the record after notice and opportunity for hearing, if any party applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the Administrator, the court may order such additional evidence (and evidence in rebuttal thereof) to be taken before the Administrator, in such manner and upon such terms and conditions as to the court may deem proper. The Administrator may modify his findings as to the facts, or make new findings, by reason of the additional evidence so taken and he shall file such modified or new findings, and his recommendation, if any, for the modification or setting aside of his original determination, with the return of such additional evidence. July 14, 1955, c. 360, Title III, § 307, as added Dec. 31, 1970, Pub.L. 91-604, § 12(a), 84 Stat. 1707.

J. SKELLY WRIGHT, Circuit Judge

(concurring and dissenting):

While I concur in Part I of the court’s opinion and in much of the analysis in Part II, I am forced to dissent from the court’s decision to deny attorneys’ fees in this case.

Judge Bazelon has well outlined the reasons for and against awarding attorneys’ fees to the Natural Resources Defense Council (NRDC). I am persuaded by the reasons for awarding fees. The litigation here at issue, while apparently properly brought before this court under Section 307, 42 U.S.C. § 1857h-5 (1970), could, in my judgment, have been brought in District Court under Section 304, 42 U.S.C. § 1857h — 2 (1970), as well. Of course, so far as this motion is concerned the difference is crucial; Section 304 authorizes attorneys’ fees while Section 307 does not. I do not think, however, that the congressional purpose in allowing fees under Section 304 should be frustrated where an action, cognizable under Section 304, is brought under Section 307 instead. I think this is particularly so because the courts have been of so little help to litigants attempting to discern the parameters of Sections 304 and 307. While the courts play jurisdictional badminton with these provisions, batting one case back to the District Court under Section 304 while taking another identical one under Section 307, litigants should not be denied substantial rights because of uncertainty created by courts and Congress. Compare Sierra Club v. Ruckelshaus, D. D.C., 344 F.Supp. 253, affirmed on the basis of the District Court opinion, 4 BNA Env.Rep. Cas. 1815 (1972), affirmed by an equally divided Court, 412 U.S. 541, 93 S.Ct. 2770, 37 L.Ed.2d 140 (1973), with Anaconda v. Ruckelshaus, 10 Cir., 482 F.2d 1301 (1973), reversing D. Colo., 352 F.Supp. 697 (1972).

I believe NRDC is an innocent victim of this badminton game. When the evidence before the Administrator proved that lead emissions from automobiles endangered the public health, I believe he had no choice but to regulate those emissions. His failure to perform that non-discretionary duty created District Court jurisdiction over NRDC’s claim under Section 304, while his simultaneous promulgation of related lead regulations created jurisdiction in this court under Section 307. I do not believe NRDC should be penalized for suing under Section 307. Since Congress intended that private citizens bringing such public interest litigation should be rewarded with attorneys’ fees and since the law is so unsettled as to which section NRDC should properly have utilized, I would award fees to NRDC. My conclusion that the attorneys’ fees provision of Section 304 should be read broadly is buttressed by the impossibility of awarding fees on other theories. Alyeska Pipeline Service Co. v. Wilderness Society, - U.S. -, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975).

Accordingly, I respectfully dissent from the judgment of the court.

      . 42 U.S.C. § 1857f-6c (1970):
      Control or prohibition of offending fuels and fuel additives.
      (c) (1) The Administrator may, from time to time on the basis of information obtained under subsection (b) of this section or other information available to him, by regulation, control or prohibit the manufacture, introduction into commerce, offering for sale, or sale of any fuel or fuel additive for use in a motor vehicle or motor vehicle engine (A) if any emission products of such fuel or fuel additive will endanger the public health or welfare, or (B) if emission products of such fuel or fuel additive will impair to a significant degree the performance of any emission control device or system which is in general use, or which the Administrator finds has been developed to a point where in a reasonable time it would be in general use were such regulation to be promulgated.

      . 37 Fed.Reg. 3882 (1972).

      . 38 Fed.Reg. 1254 (1973).

      . These regulations appear at 38 Fed.Reg. 33734 (1973). Their validity was the subject of a panel opinion issued on January 28, 1975, in Ethyl Corporation v. EPA, No. 73-2205 (D.C.Cir.). That opinion, which set aside the regulations as unjustified under the standards set forth by the Act and the information then available to the Administrator, has since been vacated, and the case is scheduled for rehearing en banc later this spring.

      . 42 U.S.C. § 1857h-2(d). The full text of § 304, 42 U.S.C. § 1857h-2, appears in Appendix, infra.

      . United States v. Chemical Foundation, Inc., 272 U.S. 1, 20, 47 S.Ct. 1, 8, 71 L.Ed. 131 (1926).

      . See Pyramid Lake Paiute Tribe of Indians v. Morton, 163 U.S.App.D.C. 90, 499 F.2d 1095 (1974); Cassata v. Federal Savings & Loan Corp., 445 F.2d 122, 125 (7th Cir. 1971); NRDC v. EPA, 484 F.2d 1331, 1334-35 (1st Cir. 1973).

      . H.R.Rep.No.89-1535, 89th Cong., 2d Sess. 3 (1966).
      A rather dramatic instance of the discriminatory impact of § 2412 occurred in Wilderness Society, Inc. v. Morton, 161 U.S.App.D.C. 446, 495 F.2d 1026, 1036 (On Bill of Costs and Fees), cert. granted, 419 U.S. 823, 95 S.Ct. 39, 42 L.Ed.2d 47 (1974) (argued Jan. 22, 1975), in which the court split the total fees requested by appellants in two, assessing one-half against Alyeska, the private intervenor, and none against the Government. The result, of course, was that the Wilderness Society bore the other one-half, although it was found to have vindicated an important public policy in restraining government officials within the specific limits of their statutory mandates.

      . See Court Awarded Attorneys’ Fees and Equal Access to the Courts, 122 U.Pa.L.Rev. 636, 679 & n. 252 (1974).

      . 42 U.S.C. § 1857h-2(a).

      . 42 U.S.C. § 1857h-5(b). The full text of § 307 appears in Appendix, infra.

      . Supra note 7.

      . S. 4358, 91st Cong., 2d Sess. § 308(a) (1970), reprinted in Environmental Policy Division of the Congressional Reference Service, A Legislative History of the Clean Air Act Amendments of 1970, Vol. I, at 531, 619 (1974) [hereinafter cited as Legislative History].

      . The deletion of “interested person” is not discussed in the Conference Report or elsewhere in the legislative history; its import is therefore conjectural. The First Circuit speculated that it revealed Congress’ intent that the “standing provisions of § 304(a) ... be applicable to § 307 suits . . ..” 484 F.2d at 1336-37. This reading was implicitly rejected by the Tenth Circuit in NRDC v. EPA, 481 F.2d 116 (1973), which refused to grant standing under the “any person” language of § 304 to petitioners seeking to bring an action in circuit court under § 307. Our examination of § 307’s origins, see text accompanying notes 13-20 infra, suggests that the omission reflects nothing more than a determination to let standing in § 307 suits be controlled by the Administrative Procedure Act, which allows final agency actions to be challenged by “a person . . . adversely affected or aggrieved by agency action.” 5 U.S.C. § 702. See Bolbach, The Courts and the Clean Air Act, 5 BNA Env.Rep. [Current Affairs], Monograph 19 (1974).

      . 397 U.S. 159, 167, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970).

      . 387 U.S. 136, 140-41, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).

      . See S.Rep.No.91-1196, 91st Cong., 2d Sess 40 — 41 (1970), reprinted in Legislative History, supra note 13, Vol. I, at 440-41.

      . Id. 41, reprinted in Legislative History, supra, note 13, Vol. I, at 441.

      . Summary of the Provisions of Conference Agreement on the Clean Air Act Amendments of 1970, Legislative History, supra note 13, Vol. I, at 131. This summary was introduced into the record by Senator Muskie, Chairman of the Subcommittee on Air and Water Pollution of the Senate Public Works Committee and one of the conferees. Senator Muskie presented the compromise legislation to the Senate along with the Conference Committee’s report. See Legislative History, supra note 13, Vol. I, at 123.

      . In addition to the argument dealt with in note 14 supra, the First Circuit relied heavily on a passage from the Conference Report:
      The Senate bill inserted a new section 308 in the Act to establish guidelines and specify forums for judicial review of certain actions of the Secretary provided for under the Act and the proposed amendments
      H.R.Rep.No.91-1783, 91st Cong., 2d Sess. 57, Legislative History, supra note 13, Vol. I, at 207, U.S.Code Cong. & Admin.News 1970, p. 5389. The court put heavy emphasis on “provided for” which it read as qualifying “judicial review.” We think this construction, which was aided by the omission of the phrase “of the Secretary” in the First Circuit’s quotation of the passage, is questionable. Certainly when viewed in light of our gleanings from the Senate Report, text accompanying notes 15-20 supra, the syntax suggests “actions of the Secretary” as a more likely referent for “provided for” than “judicial review.” And the passage purports to be nothing more than a characterization of the section as it appeared in the Senate bill, prior to its consideration and amendment by the Conference Committee.

      . See Collier, Shannon, Rill & Edwards, Memorandum of Law, Legislative History, supra note 13, Vol. I, at 727, 729-30. The analysis in the memorandum is responding to similar language in an earlier version of S. 4358, Committee Print No. 1, 91st Cong., 2d Sess. § 304(a) (1970), Legislative History, supra note 13, Vol. I, at 629, 704.

      . Legislative History, supra note 13, Vol. I, at 112 (Representative Staggers); 147 (Senator Spong).

      . See, e. g., Riverside v. Ruckelshaus, 4 BNA Env.Rep.Cas. 1728 (C.D.Calif.1972). See also Sierra Club v. Ruckelshaus, 344 F.Supp. 253 (D.D.C.), aff’d on the basis of the district court’s opinion, 4 BNA Env.Rep.Cas. 1815 (1972), aff’d by an equally divided court, Fri v. Sierra Club, 412 U.S. 541, 93 S.Ct. 2770, 37 L.Ed.2d 140 (1973) (taking jurisdiction over a claim that the Administrator had abdicated his duty in failing to require that state implementation plans provide against significant deterioration of existing air quality). But see Anaconda v. Ruckelshaus, 482 F.2d 130L(10th Cir. 1973).

      . See Anaconda v. Ruckelshaus, supra note 23, at 1304.

      . See, e. g., NRDC v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692, 703 (1974) (dealing with an analogous provision of the Water Pollution Control Act Amendments of 1972); Highland Park v. Train, 374 F.Supp. 758, 765-67 (N.D.M.1974). NRDC v. Quarles, No. 1629-73 (D.D.C. Feb. 1, 1974).

      . Compare Pinkney v. Ohio EPA, 375 F.Supp. 305 (N.D.Ohio 1974) (holding that delay in the promulgation of indirect source regulations is action sufficient to trigger review under § 307), with Utah Internat’l v. EPA, 478 F.2d 126 (10th Cir. 1973) (“[A]n order disapproving a state plan is not subject to review, because by the mere act of' disapproval no plan is placed into effect . . ..”) (emphasis in original).

      . 138 U.S.App.D.C. 391, 428 F.2d 1093 (1970).

      . In Hardin, petitioners had requested the Secretary of Agriculture to issue notices of cancellation for all economic poisons containing DDT and to suspend registration for all such products pending the completion of cancellation proceedings. We concluded that the Secretary’s silence was equivalent to a denial of EDF’s request and was therefore reviewable as a final order. See Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584 (1971). In Hardin, as in this case, there was the possibility that petitioners could have proceeded in district court. We observed, however, that “the availability of that extraordinary remedy [mandamus] for the failure of an officer to perform his statutory duty need not bar statutory appellate review of the failure to act, when exigent circumstances render it equivalent to a final denial of petitioners’ request.” 428 F.2d at 1098.

      . See text accompanying note 18 supra.

      . See text accompanying notes 21-24 supra.

      . Respondent’s Opposition to Plaintiffs Motion for Prehearing Conference, Summary Reversal, or Expedition, at 2-6.

      . Disarray among existing decisions suggests that such guidelines will not be easily arrived at in any event. In Sierra Club v. Ruckelshaus, supra note 23, for instance, we affirmed, on the basis of the opinion below, a judgment in which the district court asserted jurisdiction over a claim by environmentalists that the administrator had breached a nondiscretionary duty in failing to require that state implementation plans provide against significant deterioration of existing air quality. Jurisdiction was predicated on § 304(a). Sierra Club was cited by a Colorado district court in assuming jurisdiction over a suit by a mining concern. The company contended that it was entitled to an adjudicatory hearing and an environmental impact statement prior to the promulgation of an implementation plan then under active consideration by the agency. Anaconda v. Ruckelshaus, 352 F.Supp. 697 (D.Colo.1972). The Tenth Circuit reversed in Anaconda v. Ruckelshaus, supra note 23, holding that § 307 limited “review of an approval or implementation plan” to courts of appeals. The Tenth Circuit further held that it had no jurisdiction over Anaconda’s claims because the regulation was “not formalized and final.” Compare Riverside v. Ruckelshaus, supra note 23, with Pinkney v. Ohio EPA, supra note 26; Highland Park v. Train, supra note 25.

      . See, e. g., Friends of the Earth v. EPA, 499 F.2d 1118 (2d Cir. 1974) (requiring the Administrator to explain further “his determinations regarding the parking ban strategy, the necessary assurances concerning funding and personnel, and the twenty percent ban on taxicab cruising.”); NRDC v. EPA, 494 F.2d 519 (2d Cir. 1974) (requiring “detailed statement” from the Administrator regarding assurances from the state that it has personnel, funding and authority to carry out implementation plan); NRDC v. EPA, 489 F.2d 390 (5th Cir. 1974) (requiring further explanation from the Administrator in support of plan’s reliance on dispersion techniques rather than emissions limitations); NRDC v. EPA, 478 F.2d 875 (1st Cir. 1973) (striking down provision for state grant of variances from plan and citing failure of plan to require installation of monitoring equipment).

      . McGeorge Bundy, President of the Ford Foundation, which has been the largest supporter of public interest law, stated that “in the next couple of years, public interest law firms . . (j, . [must look] to alternative sources of funds," including court awarded fees. New York Times (April 17, 1974).
      Petitioner NRDC’s Motion for Costs and Attorneys’ Fees at 7.


source: Caselaw Access Project

author: MacKINNON, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America v. SHERPIX, INC., Appellant. UNITED STATES of America v. Louis K. SHER, Appellant.
    Nos. 74-1382, 74-1383.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 13, 1974.
    Decided May 15, 1975.

      Edmund C. Grainger, Jr., and Ralph J. Schwarz, Jr., New York City, for appellants.
    Steven R. Schaars, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief for appellee.
    Before MOORE, Senior Circuit Judge for the Second Circuit, and MacKINNON and ROBB, Circuit Judges.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   Opinion for the court filed by Circuit Judge MacKINNON.

MacKINNON, Circuit Judge:

In a five-count indictment filed March 23, 1973, appellants, Sherpix, Inc., and its president Louis K. Sher, and seven codefendants, were charged with violating federal and District of Columbia obscenity laws in connection with the distribution and exhibition of the film “Hot Circuit.” The first trial commenced September 24, 1973, and ended in a mistrial due to a hung jury. At retrial in December 1973, the Government dismissed one count of the indictment which charged unlawful advertising of an obscene film in violation of D.C. Code § 22 — 2001. (Tr. 324, 333) The court also granted a defense motion for dismissal of a count charging interstate shipment of an obscene film by common carrier, 18 U.S.C. § 1462. (Tr. 503, 523) The remaining three counts submitted to the jury charged: (1) conspiracy during the period from December 1, 1971, to November 16, 1972, to violate federal and D. C. obscenity laws (18 U.S.C. § 371); (2) interstate shipment of an obscene film from New Jersey to the District of Columbia on October 2, 1972, for purposes of sale or distribution (18 U.S.C. § 1465); and (3) knowingly presenting that film in the District of Columbia from October 4 to November 2, 1972 (D.C. Code § 22-2001). Each appellant was found guilty of all counts. Sher was given a suspended sentence and three years probation, and Sherpix was fined a total of $6,000. These appeals followed. Because we find that the District Court used an improper test in instructing the jury on the question of the obscenity of the film, we reverse.

I.

Appellants were convicted for offenses committed between December 1, 1971, and November 16, 1972, under an indictment filed March 23, 1973. During this period, the Roth-Memoirs definition of “obscenity” was the applicable standard to be used in evaluating material which was alleged to be obscene. Under that test, material was obscene if:

(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeemingr social value.

383 U.S. at 418, 86 S.Ct. at 977 (emphasis added). On June 21, 1973, between the filing of the instant indictment and appellants’ trials, the Supreme Court decided Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). After Miller, material is obscene if:

(a) “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest . . .; (b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) ... the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

413 U.S. at 24, 93 S.Ct. at 2615 (emphasis added).

The District Court determined that appellants’ conduct was to be judged according to the Miller standards and instructed the jury accordingly. Appellants argue that this retroactive application of Miller to offenses committed preMiller denied them due process. Although the constitutional prohibition on ex post facto laws does not apply directly to this situation, the due process clause imposes a similar prohibition where the law is modified by judicial construction. See Douglas v. Buder, 412 U.S. 430, 432, 93 S.Ct. 2199, 37 L.Ed.2d 52 (1973); Bouie v. City of Columbia, 378 U.S. 347, 353-54, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); Pierce v. United States, 314 U.S. 306, 311, 62 S.Ct. 237, 86 L.Ed. 226 (1941).

As to both the second and third counts, the jury was told that an essential element of the offense was:

That the film, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Tr. 706, 712. This same finding was of course necessary before appellants could be found guilty of conspiracy to violate the obscenity statutes under the first count. The court also instructed:

It is for you to determine whether the film in issue in this case is of such value to society. If you find that it lacks serious literary, artistic, political, or scientific value, and that the other elements have been met, you may find the film obscene.

Tr. 710. These excerpts clearly show the court was instructing the jury under Miller test (c).

The Government argued that certain portions of the jury instructions were sufficient to also charge Roth-Memoirs test (c). For example, the court told the jury: .

The fact, if it is a fact, that a film deals with sex does not mean that it cannot have value to society.
Such material can have social importance if it portrays sex in a manner that advocates ideas or that has serious literary, scientific, or artistic value.

Tr. 710. Regardless of the meaning this language may have conveyed to the jury, it clearly could not have the impact of a charge using the “utterly without redeeming social value” terminology of Roth-Memoirs. We therefore conclude that the instructions given did not adequately present to the jury the essential elements required by (c) of that test. Cf. United States v. Hill, 500 F.2d 733 (5th Cir. 1974).

It is clear that Miller test (c) is an expansion of the area of activity which can potentially result in criminal liability. In fact, this test was expressly adopted to ease the Government’s burden of proving obscenity. See 413 U.S. at 22, 93 S.Ct. 2607. It is a fundamental principle that a person must have notice of what activity is prohibited before he may be held criminally liable for his actions.

The fundamental principle that “the required criminal law must have existed when the conduct in issue occurred,” . . . must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is “unexpected and indefensible by reference to the . law which had been expressed prior to the conduct in issue,” it must not be given retroactive effect.

Bouie v. City of Columbia, supra, 378 U.S. at 354, 84 S.Ct. at 1703 (citations omitted). At the times appellants distributed and exhibited the film, they could expect to escape conviction unless a jury concluded that the film was “utterly without redeeming social value.” Nothing existed to give them notice that their activities were also criminal if the film merely “lacked serious literary, artistic, political, or scientific value.” Since appellants were not afforded the opportunity to conform their behavior to the law as subsequently construed, due process bars the retroactive application of Miller test (c), and the instant convictions must be reversed.

The two circuits which have considered this issue have reached similar conclusions regarding the retroactivity of the Miller tests. See United States v. Wasserman, 504 F.2d 1012 (5th Cir. 1974); United States v. Jacobs, 513 F.2d 564 (9th Cir. 1974). In addition, the correctness of this result was implied in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), where the Court held that a review of a pre-Miller conviction must give the appellant the benefit of any more favorable elements of the Miller tests, but reviewed the remainder of the conviction under the Roth-Memoirs tests. A similar analysis must take place in the present case. On retrial, the jury must be instructed under Miller as to those elements of the offense for which Miller is beneficial to appellants’ case. The remainder of the instructions must conform to the requirements of Roth-Memoirs. In essence, a conviction can be obtained only if the material can be found to be obscene under both tests.

II.

We next turn to a consideration of those issues which are not mooted by our determination that a retrial of appellants is necessary.

A. Conspiracy by Sherpix: The first count of the indictment charges:

Commencing on or about December 1, 1971, and continuing to on or about November 16, 1972, within the District of Columbia and elsewhere, Louis K. Sher, defendant, and Saul Shiffrin, a co-conspirator only, and the original defendants and co-conspirators, Paul Glickler, Richard P. Lerner and Harry Brandt Booking Co., Inc. unlawfully, willfully and knowingly did conspire, combine, confederate and agree together, with each other and others, and through their use of Acorn Films, Inc., Sherpix, Inc. and Trans-Lux Theatre Corporation, to commit offenses against the United States by transporting and causing to be transported in interstate commerce by common carrier and for the purpose of sale, distribution and presentment, an obscene, lewd, lascivious and filthy motion picture .

App. 21a — 22a (emphasis added). At trial, Sherpix, Inc. (the corporation) moved to dismiss this count as to it on the ground that the indictment did not assert that Sherpix had conspired with anyone and hence did not charge it with the commission of any crime. (Tr. 510— 11). However, the trial court denied the motion, and Sherpix was convicted and sentenced under this count.

Both at trial and on appeal, the Government argued that the conspiracy count could be sustained against Sherpix on the grounds that a corporation is criminally responsible for the acts of its officers and thus can be charged with their conspiracies. Since the corporation’s president, Sher, was included in the list of conspirators, the Government asserted that this was sufficient to hold the corporation liable. However, this argument is beside the point. The issue here is not whether Sherpix can be found guilty of conspiracy but whether the allegations of the indictment are sufficient to charge Sherpix with an offense.

It is fundamental that the indictment must inform an accused of the nature of the charges against him, and it is a necessary corollary that the indictment must also give the accused notice that he is in fact being accused. The factual allegations in the instant indictment do not measure up to these standards. They fail to charge Sherpix, Inc., with the essential element of a conspiracy, i. e., the agreement with another person to commit a crime. Merely listing the corporation as an instrumentality used by an officer in the conspiracy is not sufficient to establish that the grand jury charged the corporation as a co-conspirator. Individuals or corporations used without their knowledge or consent by others in the commission of offenses may not possess the requisite criminal intent to be guilty of an offense. That the grand jury did not intend to charge Sherpix, Inc. in Count I is self-evident from the failure to name Sherpix as a party defendant or to allege that Sherpix “did conspire, combine, cooperate and agree with” any other person to commit offenses against the United States.

The grand jury showed itself quite capable of clearly expressing its intent when it wished to include a corporate entity among the parties accused. In the second and third counts, both Sherpix and Sher are clearly designated as accused parties, e. g., the second count charges: “Sherpix, Inc., Louis K. Sher [and others] . . . did unlawfully and knowingly transport and cause to be transported in interstate commerce an obscene . . . motion picture . . ..” (App. 25a — 26a). Furthermore, in the first (conspiracy) count itself, another corporate entity, Harry Brandt Booking Co., Inc., was designated as a co-conspirator. While the exact reasons the grand jury chose to frame the first count as it did, without designating Sherpix, Inc. as a defendant or as a party to the unlawful agreement, may never be known, the conclusion is inescapable that it did treat Sherpix in a class apart from those it charged as defendants and as co-conspirators in the offense. We therefore hold that the allegations of the first count are insufficient to charge Sherpix, Inc., with the crime of conspiracy. On a retrial appellant Sherpix, Inc. cannot be tried as a defendant in the conspiracy count as that count is presently charged. We do not express any opinion as to whether a new indictment may be in order.

B. The Seizure of the Film : On November 1, 1972, an FBI Special Agent viewed a showing of the film at the Trans-Lux Theater in Washington, D. C. In support of his subsequent application for a search warrant, the agent drafted a detailed affidavit describing the film, and a warrant was obtained from a United States Magistrate. It was executed the same day and four reels of film were seized. The Government then petitioned for an adversary hearing before the Magistrate on the question of obscenity. At that hearing, held on November 3, Sherpix was represented by counsel. After viewing the film and hearing argument, the Magistrate determined that the film was obscene under the existing standards of obscenity. Appellants contend on appeal that the seizure of the film violated their first and fourth amendment rights, that the post-seizure adversary hearing violated their fifth amendment right to due process, and that the Magistrate lacked jurisdiction to conduct the post-seizure hearing.

In Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968), the Court specifically left open the question of whether a judge must view the film before issuing a warrant for its seizure. However, we have since had occasion to consider this issue and have concluded that a proper affidavit can convey enough information to a Magistrate to enable him to make a determination of the alleged obscenity of the film sufficient to issue a warrant for its seizure.. See United States v. Pryba, 163 U.S.App.D.C. 389, 400-02, 502 F.2d 391, 402-04 (1974):

[T]he affidavit must afford the magistrate an opportunity to “focus searchingly on the question of obscenity.”

Id., 502 F.2d at 403.

We find the affidavit prepared by the agent in this case was sufficient to meet this standard. At the time the warrant was requested, the question before the Magistrate was one of probable cause. The affidavit is a lengthy account of the film, describing each scene in detail and with explicit language, but suggesting no conclusions to be drawn from the description. This clearly was sufficient to enable the Magistrate to exercise an informed and independent judgment concerning the existence of probable cause to issue a warrant for seizure of the film. Even if we had some doubt as to the sufficiency of the affidavit, the Magistrate’s determination of probable cause is entitled to “great deference,” and we find that he had a substantial basis for his decision. We therefore hold that the seizure of the film pursuant to the warrant was valid notwithstanding that the Magistrate had not personally viewed the film.

While it is not clear from appellants’ brief, it is possible that by claiming violations of first amendment rights, they are also asserting they were entitled to an adversary hearing before the film was seized. In Heller v. New York, 413 U.S. 483, 492, 93 S.Ct. 2789, 2795, 37 L.Ed.2d 745 (1973), the Court indicated that no such right exists where first amendment interests are otherwise safeguarded:

If such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party the seizure is constitutionally permissible.

Furthermore, in United States v. Pryba, supra, we considered and rejected a similar argument:

It is now clear, too, that where allegedly obscene matter is seized pursuant to a search warrant for evidentiary use in a criminal prosecution, there is no absolute right to a prior adversary hearing.

502 F.2d at 405. Since the present appellants were afforded an adversary hearing promptly after the seizure, they can have no grounds to complain that the hearing was not held sooner.

We also reject appellants’ argument that the Magistrate lacked jurisdiction to conduct the adversary hearing. Under 28 U.S.C. § 636(a), “[e]ach United States Magistrate . . . shall have (1) all powers and duties conferred or imposed upon United States commissioners by law or by the Rules of Criminal Procedure for the United States District Courts . . . .” The film in this case was seized pursuant to a warrant issued under Rule 41, Fed.R. Crim.P. Since the holding of a prompt adversary hearing is constitutionally required in order to validate the seizure, that hearing is a necessary part of the warrant proceeding. Thus if the instant procedure fits within Rule 41, the Magistrate had jurisdiction to conduct the hearing.

Rule 41(c) authorizes the Magistrate to require the appearance of the affiant (i. e., the FBI agent) and to examine the affiant and his witnesses, and Rule 41(e) only provides for a suppression hearing on motion of the party whose property has been seized. Thus Rule 41 does not specifically deal with the situation presented by this case. However, it has been held that Rule 41 authorizes an adversary hearing prior to the issuance of a warrant:

Although the amendment of Rule 41(c) refers only to witnesses produced by the affiant, it is clear from the Advisory Committee Note accompanying the proposed change that the purpose was to give the magistrate “an opportunity to make a careful decision as to whether there is probable cause” based upon legally obtained evidence rather than have “the issue raised only later on a motion to suppress the evidence.” Thus, while the drafters may not have specifically contemplated the present situation, we believe that their intent can best be effectuated, without doing violence to the language of the rule, by construing it to authorize an adversary hearing of the type conducted by [the] Magistrate .

Perial Amusement Corp. v. Morse, 482 F.2d 515, 522 (2d Cir. 1973). See also United States v. Jacobs, 513 F.2d 564, 568 (9th Cir., 1974).

We adopt this construction of Rule 41 for purposes of the present case as well. If the Magistrate has jurisdiction to hold an adversary hearing prior to the issuance of the warrant, we see no justification for a different result where the hearing is properly deferred until after the film has been seized. In fact, at that point the argument is even sounder since the Magistrate is then exercising a form of in rem jurisdiction over property which has come into the possession of the court via the warrant. In any event, where the Constitution requires the prompt holding of an adversary hearing in order to protect substantial first amendment interests, it is incongruous to argue that the Magistrate lacked jurisdiction sufficient to afford these protections to appellants.

Finally, appellants argue that the order directing them to “show cause” at the adversary hearing confronted them with a choice of not appearing and abandoning their first amendment interests in exhibiting the film or appearing to contest suppression of the film and thereby abandoning their right against self-incrimination. However, this situation is not unlike the appearance by an accused at a hearing on his motion to suppress evidence. In that context, the Supreme Court stated in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968):

In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.

Id. at 394, 88 S.Ct. at 976. This reasoning applies perforce to the instant situation to preclude the introduction by the Government at trial as part of its casein-chief of testimony given by a putative defendant opposing the seizure at an adversary hearing in an obscenity case. As so limited, the procedure followed in this case involved no restriction on appellants’ right against self-incrimination.

C. Validity of the Obscenity Statutes: We find appellants’ arguments relating to the constitutionality of the statutes they are accused of violating to be without merit. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), rejected the argument that 18 U.S.C. § 1461, as applied to a pre-Miller offense, was unconstitutionally vague. The same construction will certainly be given to the determination of obscenity in section 1465, under which appellants were convicted, in light of its similar language. Hamling indicated the approach a court should take in ascertaining the relevant “community standards” for determining obscenity, see 418 U.S. at 104-06, 94 S.Ct. 2887, and these considerations will of course shape the instructions to the jury in the event of a retrial. The Court’s formulation of the use of “community standards” in Hamling also disposes of appellants’ argument that the conspiracy count under 18 U.S.C. § 371 is void for vagueness because it alleged a conspiracy to distribute the film throughout the country rather than just locally.

The appellate courts in this jurisdiction have apparently not yet construed D.C.Code § 22-2001 in light of Miller test (b). (But see United States v. Plummer, Crim. No. 54967-72, D.C.Sup.Ct., Block, J., May 9, 1974 (section 22-2001 held valid)). However, we note that this statute uses language similar to that used in the federal statutes which have already been held constitutional and was also enacted by Congress. Thus we believe that the local statute is to be given the same construction as the federal statutes and is therefore constitutional.

D. Sufficiency of the Evidence : Appellants’ arguments relating to the sufficiency of the Government’s evidence at trial are equally devoid of merit. Their attack on the federal convictions is predicated on the fact that the trial court dismissed the charges of interstate shipment by common carrier, 18 U.S.C. § 1462, with the following statement:

I think that count three [§ 1465] is a clearly-made count. I think we have questions about count two [§ 1462] and I don’t see any reason to allow the jury to speculate on something that I am not convinced about.

Tr. 503. Appellants argue that since there was no evidence of shipment by other than common carrier, the evidence was also too speculative to support convictions under section 1465 or for conspiracy to violate that section. This argument completely ignores the fact that the sections require proof of different elements to make out an offense under each. The elements of an offense under section 1462 are (1) use of a common carrier, (2) to transport obscene material in interstate commerce, whereas section 1465 prohibits (1) interstate transportation of obscene material, (2) for purposes of sale or distribution. While we express no opinion as to the soundness of the court’s decision to dismiss the section 1462 charge, the evidence did show that appellants caused the movement of the film from New Jersey to the District of Columbia and that they intended to distribute the film here. Thus the evidence at least was sufficient to take the section 1465 count to the jury.

As to the count charging violations of D.C.Code § 22 — 2001, appellants argue that since their only role was distribution of the film and since they took no active part in the exhibition of the film, they have committed no offenses locally. However, as is customary in most jurisdictions, in the District of Columbia aiders and abettors are charged as principals. See D.C.Code § 22-105. The court instructed the jury:

It is enough if the evidence in the case establishes beyond a reasonable doubt that each defendant presented the film either directly, or pursuant to a conspiratorial agreement, or that they aided and abetted others in presenting such film.'

Tr. 712. Appellants’ acts of supplying the film to the exhibitor in return for a share of the proceeds from the exhibition were certainly sufficient evidence to take the local charges to the jury under an aiding and abetting theory.

III.

The remaining issues raised by appellants, relating to the scope of expert testimony, the taking and use ■ of grand jury testimony, and instructions on corporate officer responsibility, have been mooted by our conclusion that appellants’ convictions must be vacated. For the guidance of the District Court on retrial, we note that the Supreme Court indicated in Kaplan v. California, 413 U.S. 115, .93 S.Ct. 2680, 37 L.Ed.2d 492 (1973) that the Government was not required to introduce expert testimony on community standards, but

[t]he defense should be free to introduce appropriate expert testimony

Id. at 121, 93 S.Ct. at 2685 (emphasis added). Thus a summary exclusion of all testimony on community standards would be inappropriate. Of course, as the Court noted in Hamling, supra,

the District Court has wide discretion in its determination to admit and exclude evidence, and this is particularly true in the case of expert testimony.

418 U.S. at 108, 94 S.Ct. at 2903.

Further, we note that the requested instruction on the responsibility of a corporate officer for the acts of his corporation conformed to the principles set out in United States v. North American Van Lines, Inc., 202 F.Supp. 639, 644 (D.D.C.1962):

The accepted rule is that officers, directors and agents of a corporation may be held criminally liable for their acts although performed in their official capacity but where they have neither actively participated in nor directed nor authorized a violation of law by their corporation they are not liable. 19 C.J.S. Corporations § 931; Fletcher, Cyclopedia Corporations, Perm.Ed., Vol. 3, Sec. 1348.

We view this as an accurate statement of the applicable law. The same principles apply to the determination of whether a corporate officer is a member of a conspiracy as apply generally to the participation of other individuals in a conspiracy. See Devitt & Blackmar, Federal Jury Practice & Instructions, §§ 23.09, 85.08 (1970).

In accordance with the foregoing opinion, appellants’ convictions are reversed and the trial court is directed to dismiss the first count of the indictment with respect to appellant Sherpix, Inc.

Judgment accordingly.

      . Five of these co-defendants eventually pleaded guilty to various counts of the indictment. Charges against the remaining two were dismissed by the Government.

      . Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966).

      . U.S.Const., Art. I, § 10.

      . See James v. United States, 366 U.S. 213, 247 — 48, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961) (separate opinion of Harlan, J.).

      . In Hill, the trial court had instructed the jury as follows:
      Freedom of expression is fundamental to our society and has contributed much to the development and well-being of our free society. In the exercise of the constitutional right to free expression which all of us enjoy, sex may be portrayed and the subject of sex may be discussed, freely and publicly, so long as the expression does not fall within the area of obscenity. However, the constitutional right to free expression does not extend to the expression of that which is obscene.
      Furthermore, obscenity is excluded from constitutional protection because it is without social value. Of course, the mere fact that material deals with sex does not mean that it cannot have value to society. Indeed, such material can have social importance if it portrays sex in a manner that advocates ideas or that has literary, scientific or artistic value. It is for you to determine whether the materials at issue in this case are of value to society.
      500 F.2d at 737. On the basis of this language, the Fifth Circuit concluded:
      We think the above passage of the Court’s charge, read with the instructions as a whole, was sufficient to inform the jury that . they should not convict the defendant if they found the materials to be of any social value.

        Id. at 738. While the instruction given in the instant case bears some superficial similarity to that used in Hill, the repeated recitation of the Miller test (c) terminology diluted the Roth-Memoirs test so as to convey to the jury the impression that a conviction would be possible even if the film was of some slight (i. e., non-“serious”) value.

      . See United States v. Groner, 494 F.2d 499, 500-01 (5th Cir. 1974).

      . Citing United States v. Wise, 370 U.S. 405, 82 S.Ct. 1354, 8 L.Ed.2d 590 (1962); Boise Dodge, Inc. v. United States, 406 F.2d 771 (9th Cir. 1969). The Government’s argument is correct, so far as it goes, but a necessary prerequisite to conviction of the corporation is that it be designated as a defendant and charged as a conspirator by appropriate factual allegations.

      . In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation .
      U.S.Const., amend. VI.

      . See, e. g., Ingram v. United States, 360 U.S. 672, 677-78, 79 S.Ct. 1314, 3 L.Ed.2d 1503 (1959); Pereira v. United States, 347 U.S. 1, 12, 74 S.Ct. 358, 98 L.Ed. 435 (1954); United States v. Zuideveld, 316 F.2d 873 (7th Cir. 1963). “The gist of the offense of conspiracy . is agreement among the conspirators to commit an offense, attended by an act of one or more of the conspirators to effect the object of the conspiracy.” United States v. Falcone, 311 U.S. 205, 210, 61 S.Ct. 204, 207, 85 L.Ed. 128 (1940) and cases cited.

      . See United States v. Falcone, 311 U.S. 205, 210, 61 S.Ct. 204, 85 L.Ed. 128 (1940).

      . For example, the last segment of the film was described as follows:
      The scene then changes to the hustler on a street corner trying to sell watches, perfume, and a vibrating dildo to one of the original strippers. She becomes fascinated with the dildo and invites the hustler to her -apartment. There they engage in fellatio, cunnilingus, and intercourse while eating food and smearing food over each other’s bodies.
      App. 34a.

      . Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Jones v. United States, 362 U.S. 257, 270-71, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

      . The film in this case was seized for the purpose of preserving it as evidence in a criminal prosecution. Only one copy of “Hot Circuit” was seized. Seizure of material in order to preserve it as evidence is not subject to the prior restraint doctrine under the first amendment. Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973). This distinction is recognized in Southeastern Promotions, Ltd. v. Conrad, - U.S. -, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975), citing Heller v. New York, supra.

      . Rule 41 provides:
      (a) Authority to Issue Warrant. A search warrant authorized by this rule may be issued by a federal magistrate or a judge of a state court of record within the district wherein the property is located, upon request of a federal law enforcement officer or an attorney for the government. * * * * * *
      (c) Issuance and Contents. A warrant shall issue only on an affidavit or affidavits sworn to before the federal magistrate or state judge and establishing the grounds for issuing the warrant. If the federal magistrate or state judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The finding of probable cause may be based upon hearsay evidence in whole or in part. Before ruling on a request for a warrant the federal magistrate or state judge may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the affidavit.
      ****** (e) Motion for Return of Property. A person . aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property on the ground that he is entitled to lawful possession of the property which was illegally seized. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial. If a motion for return of property is made or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12.

      . Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973).

      . Since the privilege against self-incrimination is personal, it could not be invoked on behalf of the corporation, Sherpix. See United States v. Kordel, 397 U.S. 1, 7 n.9, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970). However, we need not consider the issue since Sher could raise this defense as to the charges against him in his individual capacity.

      . D.C.Code § 22-105 provides:
      § 22-105. Persons advising, inciting, or conniving at criminal offense to be charged as principals.

      In prosecutions for any criminal offense all persons advising, inciting, or conniving at the offense, or aiding or abetting the principal offender, shall be charged as principals and not as accessories, the intent of this section being that as to all accessories before the fact the law heretofore applicable in cases of misdemeanor only shall apply to all crimes, whatever the punishment may be. (Mar. 3, 1901, 31 Stat. 1337, ch. 854, § 908.)
      A similar provision applies to federal offenses. See 18 U.S.C. § 2.


author: COFFIN, Chief Judge.

text:
    Jorge J. OPPENHEIMER MENDEZ, Plaintiff-Appellee, v. Hector N. ACEVEDO, et al., Defendants-Appellants.
    No. 74-1375.
    United States Court of Appeals, First Circuit.
    Argued Feb. 6, 1975.
    Decided April 1, 1975.
    Gilberto Mayo Aguayo, Santurce, P. R., with whom Cancio, Cuevas & Mayo, Santurce, P. R., was on brief, for Manuel San Juan, Jr., and others, defendants-appellants.

      Peter Ortiz, Deputy Sol. Gen., with whom Miriam Naveira De Rodon, Sol. Gen., San Juan, P. R., was on brief, for Hector N. Acevedo and others, defendants-appellants.
    Harvey B. Nachman, with whom Nachman, Feldstein & Gelpi, San Juan, P. R., was on brief, for plaintiff-appellee.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

A careful review of the testimonial and documentary evidence' offered in the seven-day trial below reveals ample support for the district court’s factual findings that the Executive Director and Board of Directors of the Automobile Accident Compensation Administration (ACAA), appellants, conspired in bad faith to disregard ACAA procedural rules providing pre-discharge hearing; simultaneously to annul the applicable rule; to deny post-discharge hearing in disregard of both the appellee’s request and legal advice; and to dismiss appellee from his position as staff attorney, head of the legal division of ACAA. We therefore affirm on the basis of the painstaking district court opinion, pausing only to amplify the legal issues raised below and to pass on those raised for the first time on appeal.

The district court ruling that the activities of the appellants abridged appellee’s civil rights in violation of 42 U.S.C. §§ 1983 and 1985(3) turns on its determination that there was a legitimate expectancy that procedural safeguards would be required prior to dismissal for just cause and that therefore appellee had a constitutionally protected interest in the faithful execution of these procedures. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

Appellants attempt to undermine this foundation of the district court opinion in two ways. They argue first, as they did below, that although Rule 5A of ACAA Rules and Regulations specifically applied to appellee and clearly provided for pre-discharge procedures, that rule was itself invalid because it contravened Puerto Rican law under which ACAA is a public corporation and its employees members of the exempt service. Appellants elaim that the validity of Rule 5A is a novel question of local law and that the district court should have abstained or that we should certify the question. We are fully in accord with the district court ruling on this point and find that while local case law has not singled out the ACAA for attention, it has addressed the status of public corporations such as ACAA and their ability to create their own rules governing job tenure.

In Pastor Lozada v. Canals, R. 73-314, Bar Association Ref 1974-11 (P.R. Feb. 4, 1974), the Supreme Court of Puerto Rico has clearly explicated the interaction of the Personnel Act of Puerto Rico, 3 L.P.R.A. § 641 et seq. and the employment policies of public corporations such as ACAA whose employees are in the exempt service:

“the Personnel Act permits that any agency, public corporation or political subdivision included in the Exempt Service may, at its own request and with the approval of the Director of Personnel be included in the competitive service or the noncompetitive service . . The law permits also that any appointing authority may, with the approval of the Director of Personnel, use the services of the Personnel Office for the development of classification and pay plans and for the recruitment of other personnel services for its respective office. As it can be seen these provisions are not compulsions. They allow said public agencies to incorporate themselves, to the extent they so agree to the merit system or to use the advice of the Personnel Office of the Government of Puerto Rico.”

The district court supportably found that ACAA had, with the help of the Personnel Office organized its own merit system explicitly applicable to heads of departments such as appellee and requiring written charges and hearing prior to discharge. The clarity of Puerto Rican law in this area would render either abstention or certification a hollow formality resulting only in delaying the vindication of protected rights. Cf. Lehman Brothers v. Schein, 416 U.S. 386, 390, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974).

Appellants’ second argument is that the annulment of Rule 5A by the board effectively deprived the appellee of his procedural rights. This action was taken at the same time as the appellee was dismissed. The annulment of the rule came to light only at the trial, there having been no notification to department heads or employees of ACAA. These facts not only fail to bolster appellants’ appeal but support the district court findings of bad faith and denial of due process. The action was taken without procedural regularity and was of no effect. It is clear that at the time of his dismissal appellee was entitled to a predischarge hearing. The district court’s order requiring reinstatement and provision of that hearing is appropriate. The order in no way prevents ACAA from future amendment of the rules in accordance with accepted procedures including notification to those covered by the rules.

The appellants also challenge the district court’s award of attorney’s fees. The district court ordered a hearing on this issue at which the attorney for the defendants failed to appear. After that hearing defendants’ counsel moved for rehearing, and the court, finding no excusable neglect, denied the motion. In light of these circumstances and the nature of the case proven below we cannot find an abuse of discretion in the district court’s award.

Affirmed.

      . The appellants challenge the district court’s ruling permitting amendment of the pleadings. The suit was originally brought against the appellants as individuals, but the injunctive relief prayed for, reinstatement of the appellee and the evidence presented, made it clear that they were being sued in their official capacities as well. The district court permitted amendment of the pleadings so that the suit was brought against appellants individually and as officials. The district court gave the appellants an additional ten days to bring forth any new evidence that was pertinent in light of the amendment. No such evidence was offered. The appellants have no grounds for a claim of prejudice, the district court’s ruling being clearly proper under Rule 15(b) Fed.R. Civ.Proc.

      . Appellants object as well to the form of the damages granted by the district court. They argue that back pay should have been granted rather than damages against the individual defendants. This argument was never made to the district court. The relief sought was damages against the individuals, and that relief was appropriate.


author: PER CURIAM:

text:
    C & C PRODUCTS, INC., Plaintiff-Appellee, v. FIDELITY AND DEPOSIT CO. OF MARYLAND, Defendant and Third-Party Plaintiff-Appellant, PREMIER INDUSTRIAL CORP., Third-Party Defendant-Appellant.
    No. 74-4022
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 21, 1975.

      Robert E. Moorer, Birmingham, Ala., for Fidelity & Deposit Co. of Md.

      W. Eugene Rutledge, Birmingham, Ala., for Premier Ind. Corp.
    Drayton Nabers, Jr., W. Stancil Starnes, Birmingham, Ala., for plaintiffappellee.
    Before WISDOM, BELL and CLARK, Circuit Judges.

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

   PER CURIAM:

C & C Products, Inc. (C & C) initiated this diversity action against Fidelity and Deposit Co. (Fidelity), surety on two injunction bonds posted by C & C’s competitor, Premier Industrial Corp. (Premier), to recover damages allegedly incurred because of the wrongful suing out of an injunction by Premier. This present federal action follows multiple Alabama state court litigation pursued by Premier to enjoin C & C and its district sales manager, Roy A. Marlow, from pirating Premier sales agents who had signed employment contracts containing anticompetition clauses.

Initially Premier obtained injunctive relief from an Alabama district court. Appeal by C & C and Marlow resulted in dissolution of the injunction by the Alabama Supreme Court. That court cast Premier’s cause of action in contract and held that Premier was not entitled to relief for breach of the non-competition clauses in the agents’ contracts since Premier had failed to qualify to do business in Alabama as required by state law. C & C Products, Inc. v. Premier Industrial Corp., 290 Ala. 179, 275 So.2d 124 (1972). On remand, Premier amended its complaint in an attempt to assert a tort claim and to more specifically allege that it was engaged solely in interstate commerce and, therefore, not subject to Alabama corporate qualification requirements. The Alabama district court dismissed. On Premier’s ensuing appeal, the Alabama Supreme Court held that the tort versus contract nature of the alleged wrong had been settled by its earlier decision, and that even if Premier was engaged in interstate rather than intrastate commerce, the agents’ contracts were not enforceable since the agents occupied independent contractor status under Alabama law. Premier Industrial Corp. v. Marlow, 292 Ala. 407, 295 So.2d 396, cert. denied, 419 U.S.1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974).

When C & C brought the instant federal court action, Fidelity immediately filed a third-party complaint against Premier to recoup any loss to Fidelity occasioned by Premier’s wrongful suing out of the injunction. Apparently undaunted by its state court rebuffs, Premier renewed its assault against C & C by filing a cross-complaint based upon the same grounds asserted in the two state court actions, but this time couched in terms of a conspiracy to induce Premier sales agents to breach their contracts. On grounds of res judicata, the federal district court granted summary judgment for C & C on Premier’s claim, citing the two Alabama Supreme Court cases, and against Fidelity on the issue of its liability on the injunction bonds. The lone remaining issue, amount of damages, was tried to a jury which awarded C & C 16,326.06 dollars. We affirm each of these actions.

Premier’s appeal principally pursues a two-pronged attack upon the district court’s res judicata holding. First, Premier contends that the present action is in tort rather than contract, and, therefore, not a relitigation of the contract complaints sued upon in state court. Our consideration of this point is controlled by the United States Supreme Court’s holding in Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832 (1947), that: “an adjudication bars future litigation between the same parties not only as to all issues actually raised and decided but also as to those which could have been raised.” Id. at 186, 67 S.Ct. at 659. Angel compels affirmance of the district court’s reasoning that: “[a]ny consideration of the present claim asserted by Premier would amount to a relitigation of matters considered by, or which could have been considered by the Alabama state courts,” and as such is barred by the doctrine of res judicata.

Second, Premier asserts that the state court decisions do not bar the present claim since they involved jurisdictional findings only. To the contrary, the Alabama Supreme Court’s decision in C & C Products, Inc. v. Premier Industrial Corp., 290 Ala. 179, 275 So.2d 124 (1972), that since Premier failed to qualify to do business the contracts at issue between it and its sales agents were null and void under Alabama law [Ala.Code Ann. Tit. 51, § 345 (1961)], was squarely a decision on the merits.

Premier also asserts that the district court erred in refusing to admit evidence or permit discussion concerning C & C’s violation of the injunction as a defense to its motion for summary judgment against Fidelity on the issue of liability. Here Premier suggests that we employ equity’s “clean hands” doctrine in those actions seeking recovery of damages suffered under an injunction subsequently dissolved. Our holding that no such defense may be asserted is mandated by Ex parte Hacker, 250 Ala. 64, 33 So.2d 324 (1947), where the court stated: “It- is the generally accepted rule that a defendant in an injunction proceeding may not be held liable as for a civil contempt for the violation of the terms of the injunction which is thereafter reviewed, dissolved, or otherwise terminated.” See also United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947). Thus Premier’s complaint would only be proper in a criminal contempt proceeding, not as a defense to a suit for damages (thus in the nature of a civil contempt charge) resulting from the wrongful suing out of the injunction allegedly violated.

Finally, Premier contends that in the trial on the damage issue the court erred in admitting, over Premier’s objection, C & C’s Exhibit No. 11, which contained a listing of the time consumed by C & C’s attorneys in securing dissolution of the state court injunction, and that the court improperly instructed the jury on allowable recovery for time spent by the attorneys. Premier complains that Exhibit No. 11 is inadmissible since it is based on hearsay and created solely for trial use. The appellate test for trial court error turns upon whether the trial court abused its discretion in admitting the exhibit. Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1287 (5th Cir. 1974); Dallas Cty. v. Commercial Union Assurance Corp., 286 F.2d 388, 395-98 (5th Cir. 1961). In the context of this trial no such abuse is demonstrated. Exhibit 11 was merely a pictorial recapitulation of testimony proffered by C & C attorneys who worked on the case. It merely collated facts revealed on invoices previously introduced indicating time spent.

Premier also asserts that the court erred in instructing the jury that they should consider “the actual hours of work involved” rather than “the time reasonably necessary to be consumed in the work.” While Premier is correct in pointing out that recovery for the time spent is limited by a determination of “reasonableness,” error can only be demonstrated from a reading of the entire charge. Lyle v. R. N. Adams Constr. Co., 402 F.2d 323, 327 (5th Cir. 1968). Such a review demonstrates that the jury was adequately directed to compensate C & C only for that portion of the attorney’s time that was in fact reasonable under all of the circumstances brought out at trial.

Affirmed.

      . C & C seeks to recover only attorneys’ fees ' and related expenses.

      . Under Alabama law no agreement limiting competition is valid between an independent contractor and the entity for which it performs. See Ala.Code Ann. Tit. 9, §§ 22 and 23 (1958). See also Odess v. Taylor, 282 Ala. 389, 211 So.2d 805 (1968).

      . The charge repeatedly uses the qualifying adjective “reasonable” in describing recoverable attorneys’ fees. It instructs the jury to compensate only for the “reasonable value of the reasonable services which were rendered by attorneys for the plaintiff.” It admonishes that the jury should consider the opinion of other lawyers concerning the “reasonableness or unreasonableness” of the service rendered. Finally, it directs that the ultimate issue for their determination is the reasonableness of the charges for services rendered.


text:
    PREMIER INDUSTRIAL CORPORATION, a Corporation, Plaintiff-Appellant, v. Roy A. MARLOW, an Individual, Defendant-Appellee.
    No. 74-4070
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 21, 1975.
    W. Eugene Rutledge, Birmingham, Ala., for plaintiff-appellant.
    Drayton Nabers, Jr., W. Stancil Starnes, Birmingham, Ala., for defendant-appellee.
    Before WISDOM, BELL and CLARK, Circuit Judges.

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

   PER CURIAM:

For the facts underlying this present action for damages and declaratory relief see our decision in the companion case styled C & C Products, Inc. v. Fidelity and Deposit Co., (5th Cir.) 512 F.2d 1375, announced today. In that action, C & C sought damages under an injunction bond posted by its competitor, Premier Industrial Corp. (Premier), with Fidelity acting as surety thereon, for the wrongful suing out of a state court injunction restraining C & C and Roy A. Marlow,' its district sales manager, from engaging in alleged unlawful competitive practices. This court affirmed a jury award of 16,326.06 dollars.

After C & C filed suit in federal district court against Fidelity, Premier brought this suit for declaratory judgment against Roy A. Marlow asserting that he would bring a similar suit for damages, and seeking damages for an alleged conspiracy between Marlow and C & C to pirate Premier employees and for breach of fiduciary duty. The district court dismissed Premier’s claim holding that litigation of Marlow’s and C & C’s alleged unlawful activities was barred by the doctrine of res judicata and that declaratory judgment was improper since Premier had failed to show an “actual threat” of litigation. We affirm.

Premier’s challenge to application of the doctrine of res judicata under the facts of this case is adversely controlled by our holding in C & C Products, Inc. v. Fidelity and Deposit Co., supra.

Premier’s secondary contention, that denial of declaratory relief was improper, falls with the affirmance of the first point.

Affirmed.


text:
    David C. HAKIM and Margaret K. Hakim, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 74-1865.
    United States Court of Appeals, Sixth Circuit.
    April 24, 1975.
    David C. Hakim, pro se.
    Scott P. Crampton, Asst. Atty. Gen., Bennet N. Hollander, Ernest J. Brown, Gilbert E. Andrews, Jr., Stephen M. Gelber, Tax Div., Dept, of Justice, Washington, D. C., Meade Whitaker, Chief Counsel, Internal Revenue Service, Washington, D. C., for respondent-appellee.
   ORDER

Before WEICK, McCREE and MILLER, Circuit Judges.

The appeal from the decision of the Tax Court having come on to be heard upon the record on appeal, briefs and oral argument, upon consideration, it is ORDERED that the decision is hereby AFFIRMED for the reasons set forth in the memorandum of Judge Drennen.


text:
    Jose BORRELLO, Plaintiff-Appellee, v. PERERA COMPANY, INC., Defendant-Appellant.
    No. 746, Docket 74-2466.
    United States Court of Appeals, Second Circuit.
    Argued March 24, 1975.
    Decided March 25, 1975.
    Harry Litwin, New York City (Greenwald, Kovner & Goldsmith, New York City, on the brief), for appellant.
    Lawrence W. Pollack, New York City (Migdal, Tenney, Glass & Pollack, Frank & Fredericks, New York City, on the brief), for appellee.
    Before KAUFMAN, Chief Judge, MULLIGAN, Circuit Judge, and THOMSEN, District Judge.

       Of the District of Maryland, sitting by designation.

   PER CURIAM:

We affirm for the reasons stated in Judge Levet’s opinion, Borrello v. Perera Company, Inc., 381 F.Supp. 1226 (S.D.N. Y.1974).


author: PER CURIAM.

text:
    TENNECO INC., Plaintiff-Appellee, v. Glenn MAY et al., Defendants-Appellants.
    No. 74-1996.
    United States Court of Appeals, Sixth Circuit.
    April 17, 1975.
    William R. Bagby, Lexington, Ky., for defendants-appellants.
    John E. Smith, Lancaster, Ky., Sam G. McNamara, R. Vincent Goodlett, Hazelrigg & Cox, Frankfort, Ky., for plaintiffappellee.
    Before PHILLIPS, Chief Judge, and MILLER and ENGEL, Circuit Judges.
   PER CURIAM.

In 1957 Appellant Glenn May conveyed to Appellee Tenneco, Inc., an easement crossing a parcel of his land located in Garrard County, Kentucky. On its easement, Tenneco constructed and put into service an underground natural gas pipeline. In 1971 Mr. May filed a residential subdivision plat covering a portion of his land. The plat contemplated a street that would pass over Tenneco’s easement. Mr. May notified Tenneco of the proposed street. Tenneco replied that federal safety regulations would require installation of a protective encasement around the pipe where it passed under the street.

Shortly after final paving of the street had been completed, Tenneco filed a diversity action in the District Court seeking to enjoin further use of the street until the pipeline had been protected at Mr. May’s expense and to enjoin any future interference with its easement. At the hearing on Tenneco’s motion for an injunction, it was agreed that Mr. May would barricade the street where the pipeline passed under and would prevent traffic from using that portion of the street until Tenneco had encased and protected the pipeline. Tenneco subsequently completed the encasement at a cost later determined to be $4,903.39.

The case was heard before District Judge Mac Swinford on Tenneco’s claim that Mr. May should bear the expense of encasing the pipeline and on Mr. May’s somewhat belated assertion that the amount in controversy was insufficient to confer diversity jurisdiction upon the District Court.

In a memorandum opinion reported at 377 F.Supp. 941 (E.D.Ky.1974), Judge Swinford rejected Mr. May’s jurisdictional argument. Relying largely upon Saint Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938), the court held that the allegations in the complaint and the prayers for monetary and injunctive relief, viewed as of the commencement of the action, established that the requisite jurisdictional amount was in controversy, even though the eventual recovery was less than $10,000.

On the merits of the case, Judge Swinford surveyed the Kentucky law of easements and leading cases from other jurisdictions. He concluded that the street constructed by Mr. May and the resulting need to encase the pipeline constituted an unreasonable interference with Tenneco’s use and enjoyment of its easement. Accordingly, the court entered judgment in favor of Tenneco in the amount of $4,903.39, the cost of encasing and protecting the pipeline.

We conclude that Judge Swinford correctly stated the relevant principles of law and properly applied them to the facts of this case. No purpose would be served by discussing again the issues presented, and accordingly we affirm on the basis of the District Court’s opinion.

The judgment of the District Court is affirmed. The costs of appeal are taxed against Appellants.


text:
    Howard M. WERNER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant and Third-Party Plaintiff-Appellee, v. Hugo BUA et al., Third-Party Defendants.
    No. 731, Docket 74-2166.
    United States Court of Appeals, Second Circuit.
    Argued March 3, 1975.
    Decided April 11, 1975.
    Louis Noah Forman, New York City (Joseph Neiman, Newington, Conn., of counsel), for plaintiff-appellant.
    Jeffrey S. Blum, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Gilbert E. Andrews, Michael L. Paup and Jeffrey S. Blum, Tax Div., Dept, of Justice, Washington, D. C., on the brief, Peter C. Dorsey, U. S. Atty. for the District of Connecticut, and Henry S. Cohn, Asst. U. S. Atty., of counsel), for defendant and third-party plaintiff-appellee.
    Before FRIENDLY and FEINBERG, Circuit Judges, and BARTELS, District Judge.

       Of the Eastern District of New York, sitting by designation.

   PER CURIAM:

Howard M. Werner appeals from a judgment of the District Court for the District of Connecticut holding him responsible as a person in ultimate control of the corporation under 26 U.S.C. § 6672 for taxes withheld from the wages of employees of Hugo’s Continental Restaurant, Inc. for the third and fourth quarters in 1967. We affirm on the basis of the opinion below, reported at 374 F.Supp. 558 (D.Conn., 1974), and upon the additional authority of Adams v. United States, 504 F.2d 73 (7th Cir., 1974); Mueller v. Nixon, 470 F.2d 1348 (6th Cir., 1972), cert. denied, 412 U.S. 949, 93 S.Ct. 3011, 37 L.Ed.2d 1001 (1973); Pacific National Insurance Co. v. United States, 422 F.2d 26 (9th Cir.), cert. denied, 398 U.S. 937, 90 S.Ct. 1838, 26 L.Ed.2d 269 (1970).