author: COLEMAN, Circuit Judge. TUTTLE, Circuit Judge

text:
    Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. TAFT BROADCASTING COMPANY, Defendant-Appellee.
    No. 73-3760.
    United States Court of Appeals, Fifth Circuit.
    Sept. 9, 1974.

      William J. Kilberg, Sol. of Labor, U. S. Dept, of Labor, Washington, D. C., Beverely R. Worrell, Reg. Sol., U. S. Dept, of Labor, Norman H. Winston, Assoc. Reg. Sol., George D. Palmer, Atty., Birmingham, Ala., Carin Ann Gauss, U. S. Dept, of Labor, Donald S. Shire, Washington, D. C., for plaintiff-appellant.
    James E. Simpson, Birmingham, Ala., for defendant-appellee.
    Before TUTTLE, COLEMAN and AINSWORTH, Circuit Judges.
   COLEMAN, Circuit Judge.

This is an action for damages and to enjoin an alleged violation of the Age Discrimination in Employment Act of 1967 (29 U.S.C. § 621 et seq.) which provides in part:

“ § 623(a) It shall be unlawful for an employer—
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; . . . .”

The Secretary of Labor alleges that defendant Taft Broadcasting Company violated the above quoted section of the Act by compelling Rufus Jones to retire at age 60 and by thereafter refusing to rehire him.

The defense is that Taft's discharge of Jones is allowed under 29 U.S.C. § 623(f)(2) which provides:

“ § 623(f) It shall not be unlawful for an employer, employment agency, or labor organization—
(2) to observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter, except that no such employee benefit plan shall excuse the failure to hire any individual; . . . . ”

The District Court dismissed the action on the ground that defendant came within the statutory exception of 29 U. S.C. § 623(f)(2) in that its Profit-Sharing Retirement Plan [hereinafter the Plan] is a “bona fide employee benefit plan, such as a retirement plan, which is not a subterfuge to avoid the purposes of this [Act]”.

We affirm.

FACTS

The facts were stipulated.

Taft bought WBRC-TV in Birmingham, Alabama, in 1957 and continued the employment of Rufus Jones (age 47) who for six years had been an employee there. In 1963 employees of WBRC-TV became eligible, at their option, to participate in Taft’s “Profit Sharing Retirement Plan”. On March 28, 1963, at the urging of Taft and on the basis of a summary of the “Plan” posted at WBRC-TV, Jones’elected to participate.

In 1968 and again in 1969, the President of Taft advised Jones that under its “Plan” he was obliged to retire on 1 June 1970, at which time he would be sixty years of age. In response, Jones offered to waive his benefits in the “Plan” in return for a later retirement. He also contacted representatives of his union who urged Taft to continue Jones’ employment.

On April 27, 1970, Taft’s Board of Directors, responding to a letter to Taft’s President from Jones, considered his case and decided not to permit him to work beyond age 60. Pursuant to applicable provisions of the “Plan”, his employment was terminated as scheduled.

The previous month, Jones had filed a “grievance” as allowed by the terms of the collective bargaining agreement between his union and Taft. The arbitrator, concerning himself “solely with contractual rights of the Grievant” and not dealing with the terms of the “Act”, found that there “has been no violation of the Grievant’s rights”.

Taft’s “Profit Sharing Retirement Plan” is funded exclusively through company profits. Ten percent of profits, minus certain specified deductions, are paid to a trustee who. distributes these funds to plan members upon their retirement.

The amount an employee receives upon retirement is determined by the number of “units” he earns while working for the company. At the end of each fiscal year, a Plan member is assigned “units” based upon his salary during the year, the length of his service in the company, and his age. Significantly, no additional units on the basis of age or on the basis of continuing service are assigned to persons over 60 years of age. The amount set aside for an employee each year is determined by multiplying the number of his “units” by the value of each unit. The value of each unit is the total contributions to the plan divided by the total number of units. Thus, the formula to determine the amount set aside for each year for an employee is:

Number of his Units X
Total Contributions
Number of Units of All Participants.

The sense of the retirement provisions of the “Plan” is that employees must retire at age 60 absent consent of the company to work until a later date. Additionally, Taft may retire employees for cause any time after their 50th birthday. The precise language used in the “Plan” is as follows:

Section 5.1. Retirement Under Plan
“5.1(a) Normal Retirement. The normal retirement date for each Participant shall be the first day of June coinciding with or next following the date on which he has attained age 60. A Participant terminating his employment on his normal retirement date shall be retired under the Plan as of such date.
“5.1(b) Later Retirement. A Participant, with • the approval of the Company, may remain an Employee after his normal retirement date. In such event, he shall be retired under the Plan as of his later date of termination of employment.
“5.1(c) Early Retirement. A Participant whose employment with all Employers terminates for any cause (including a failure to return prior to expiration of a leave of absence) on or after his 50th birthday, but prior to his normal retirement date, shall be retired under the Plan as of the date of such termination of employment or earlier commencement of such leave of absence.”

Jones had not seen the actual text of the “Plan” when he assented to membership in 1963 but joined on the basis of a posted summary of the “Plan” which stated only the following provision relating to retirement:

“The Normal retirement date of each Participant is the June 1 on which he has reached age 60. A Participant retiring from employment with the company on his normal retirement date is deemed retired under the Plan as of such date.”

The summary also contained the following provision on the assignment of profit-sharing “units” :

“One unit for each full month that such Participant’s age as of the end of such fiscal year exceeds age 35 but not age 60, provided that no units shall be assigned for age under this clause to any Participant who is over age 60 as of the end of such fiscal year.” [Emphasis supplied.]

THE ISSUES

The Secretary-Appellant defines the issues as follows:

I. The lower court erred in holding that the exception provided in Section 4(f) (2) of the Age Discrimination in Employment Act excused defendant’s action in forcing the retirement of its 60-year old technical supervisor;
A. Defendant’s “Profit Sharing Retirement Plan” is not a plan “such as a retirement, pension, or insurance plan” and thus does not come within the terms or purposes of the Section 4(f)(2) exception;
B. Even if. defendant’s “profit sharing retirement plan” could qualify as a type of plan contemplated by Section 4(f)(2), it is not bona fide since one of its “salient provisions” — the compulsory retirement feature — was not communicated to the participating employees at WBRC;
II. The lower court erred in holding that defendant was under no statutory obligation to consider Jones’ application for reemployment by reason of the proviso in Section 4(f)(2) “that no employee benefit plan shall excuse the failure to hire any individual”.

We shall discuss these issues in the order presented.

Does the defendant-appellee’s “Plan” come within the terms and purposes of the Section 4(f)(2) exception?

We respond in the affirmative.

Taft’s “Plan” was instituted in 1963. Jones exercised his option to participate in 1963. The Act was approved December 15, 1967. Quite obviously, Congress sought to avoid legal and constitutional problems likely to arise from any ex post facto effort to invalidate existing employee benefit plans. Consequently, it included the Section 4(f)(2) exception.

Its language is plain: “a bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter [emphasis ours]”. The key phrase is “employee benefit plan”. The words, “retirement, pension, or insurance”, are added in a clearly descriptive sense, not excluding other kinds of employee benefit plans if, conceivably, there could be any.

Taft’s “Plan” was effectuated far in advance of the enactment of the law, eliminating any notion that it was adopted as a subterfuge for evasion.

In construing the exception, as written, we must obey the mandate of the Supreme Court in Labor Relations Board v. Highland Park Mfg. Co., 341 U.S. 322, 71 S.Ct. 758, 95 L.Ed. 969 (1951). In Highland it was claimed that the term “national or international labor organization” as used in the National Labor Relations Act is a technical one, meaning “union”, thereby excluding the CIO, which was “a federation”. The Supreme Court summarily rejected this argument, saying that if Congress meant terms in a statute to have other than their ordinarily accepted meaning, “it would and should have given them a special meaning by definition”.

Contrary to these teachings, one matter heavily emphasized by the Secretary is an Internal Revenue Service Bulletin [Guides for Qualifications of Pension, Profit-Sharing and Stock Bonus Plans, Publication 778-2-72] which defines retirement plans as including only those plans where employer contributions are based upon the anticipated costs of retirement, thereby excluding plans such as Taft’s “Profit Sharing Retirement Plan”, in which contributions are based only upon profit.

A somewhat similar question was considered in Farid-Es-Sultaneh v. Commissioner of Internal Revenue, 2 Cir., 1947, 160 F.2d 812. The issue there was whether corporate stock received pursuant to an ante-nuptial contract was a “gift” such as would exempt it from income tax under a predecessor to I.R.C. § 102 of the 1954 Code. The taxpayer relied on a definition of “gift” taken from the gift tax section of the Internal Revenue Code which says that “gift” means a transfer without full and adequate consideration and that a transfer for release of marital rights is deemed to be without consideration. This definition, if applied to the income tax statute, would make it clear that the transfer in question was a “gift” and, therefore, not subject to income tax.

The Second Circuit, noting the different purposes of the income tax and gift tax statutes, expressly rejected taxpayer’s contention that the definition in the gift tax statute should be applied to an income tax statute^.

Though the present facts are not precisely similar to Farid, a similar logic applies. The IRS Bulletin and the Age Discrimination in Employment Act of 1967, as was true of the gift tax statute and income tax statute involved in Far-id, have different purposes. The purpose of the Bulletin is to provide guidance for taxpayers in obtaining special tax treatment afforded by I.R.C. §§ 401-404. The purpose of the Act is to outlaw discrimination against older workers. There is no apparent relationship between what the IRS says for the purpose of taxpayer guidance and what Congress means when it passes a statute for the purpose of promoting employment of older workers.

A second argument can be made that Taft’s “Plan” is not within the contemplation of the statutory exception when one considers the purpose of Congress when it enacted the Age Discrimination in Employment Act of 1967. In the course of committee hearings and floor debate, several Congressmen indicated the Congressional purpose to be protection of plans which in the absence of the (f) (2) exception would be too costly for the employer to maintain. For example, Representative Daniel said the purpose of the exception is to prevent “undue hardship on employers in providing special and costly benefits”, 113 Cong.Rec. 34727.

Taft’s costs are the same, regardless of whether or not it has employees over age 60. Moreover, to the extent Taft is able to attract better employees by providing more lucrative retirement plans, it is economically better off by hiring employees over 60, since those employees do not earn additional retirement benefits based upon age or length of service, thereby leaving more for other employees. Thus, the argument would be that Taft’s mandatory retirement policy is not designed for the exempted and allowable purpose of holding down retirement costs.

There are several reasons which command the rejection of this approach. The primary difficulty is that it attempts to use legislative history to override the unambiguous language of the statute. A similar argument was considered and rejected in Braunstein v. Commissioner, 374 U.S. 65, 83 S.Ct. 1663, 10 L.Ed.2d 757 (1963). This case concerned the interpretation of I.R.C. § 341 which says that the sale of stock in a statutorily defined “collapsible corporation” is not capital gain but ordinary income. The taxpayer conceded that the stock he had sold was stock in a “collapsible corporation” as defined by the statute. Nevertheless, he contended his gain should be treated as capital gain since his transactions were not ones which came within the Congressional purpose. That purpose was to “close a loophole through which some persons had been able to convert ordinary income into long term capital gain by use of the corporate form”. The taxpayer’s property was not property which would have produced ordinary income in the first place. He was therefore not using the corporate form to escape the higher tax rate and was not the type individual Section 341 was designed to include.

The Supreme Court rejected this elaborate argument, simply noting that his contention was “wholly inconsistent with the plain meaning of the statute”. The Court further noted that looking to Congressional purpose would result in enormous practical difficulty. In each case, a court, rather than relying on the straightforward language of an unambiguous statute, would be forced to consider whether the use of the corporation was for tax avoidance on a “ease by case” basis. Similarly, under our facts, a court, rather than relying on the straightforward language of the statute, is asked to determine on a case by case basis whether a particular plan is one which would be too costly to maintain in the absence of the statutory exemption. The practical difficulties of detailed court scrutiny of the costliness of retirement plans may well be as forbidding as court scrutiny of taxpayer purposes in establishing collapsible corporations.

In short, Braunstein gives two good reasons for rejecting the “Congressional purpose” argument. The Court thought it improper to consider Congressional purpose when the meaning of a statute is plain. And, the Court pointed to the practical difficulty of deciding, on a case by case basis, whether a given course of conduct is within the Congressional purpose.

A third and final reason for following the literal language of the statute, rather than its asserted purpose, is that statutory language should serve the function of indicating prohibited conduct. It is hardly reasonable to require persons affected by legislation to delve into voluminous and conflicting collections of speeches to determine whether what a statute plainly says is what it really means.

We are compelled to hold that the Secretary’s argument falls short of negotiating the “Highland Park-Braunstein” hurdle and that, on its face, the Taft Broadcasting Plan of 1963 clearly falls, as an employee benefit plan, within the plain language which Congress chose to use when it enacted the exception.

The Secretary says that Taft’s “Plan” was not bona fide — that to be bona fide the material provisions of an employee benefit plan must be communicated to them. Since Jones saw only a summary of the plan when he elected to participate in it, never a full copy, the “Plan” was not binding on him. We reject this argument, also.

Given its ordinary and commonly accepted meaning, the term bona fide is synonymous with “genuine” or “authentic”, Webster’s New Collegiate Dictionary, 1953. The stipulated facts show that Taft did have a plan, that it truly existed, and that Jones, was paid approximately $15,000 as a result of it. It was both authentic and genuine. As we have already pointed out, regulations of other governmental departments or agencies, designed for other purposes, are not applicable to this case.

Does the Act require Taft to rehire Jones? That is, does the Act require employers to rehire former employees who have been retired under “bona fide employee benefit plans”?

The last clause in 29 U.S.C. § 623(f)(2) provides that “[no employee benefit plan] shall excuse the failure to hire any individual”. Relying on the literal language of this section, the Secretary contends that the failure to hire “any individual” is illegal regardless of whether that individual has already been legally retired by the entity from whom he seeks the employment.

The Secretary’s construction would render meaningless the statutory language allowing employers “to observe the terms of bona fide employee benefit plans such as retirement plans”. If retired employees must be rehired immediately, the right to insist on compliance with a plan is an illusion. Congress could not have possibly intended, or directed, such a contradictory, irreconcilable result. If Jones was validly retired, as we hold that he was, Taft was under no statutory duty to rehire him.

The Judgment of the District Court is

Affirmed.

TUTTLE, Circuit Judge

(dissenting):

With deference I dissent.

It is clear that the trial court dismissed the complaint of the Secretary of Labor brought on behalf of Mr. Jones only because the court construed section 623(f) and Taft Broadcasting Company’s “profit sharing retirement plan” as depriving Jones of the benefits otherwise accorded to persons retired on account of age. Similarly, this Court’s opinion affirmed on the same basis.

For the sake of the discussion in this dissenting opinion, I will assume that the Company’s so-called “profit sharing retirement plan” would meet the description in the statute which authorizes an employer “to observe” its terms, provided the plan had ever gone into effect, so far as relates to the employee Jones. If it did not go into effect, then I would think that the majority would agree with me that it would not satisfy the requirements of section 623(f) which speaks of “the terms of a bona fide employee benefit plan.” My difference from the view of the majority is twofold. In the first place I do not think the document which is called a. retirement plan by the Company ever became a bona fide employment benefit plan as is contemplated in the statute, because its terms were never known by, nor agreed to by Jones who, as the court in its opinion says, “joined on the basis of a posted summary of the ‘Plan’ which stated only the following provision relating to retirement:

‘The Normal retirement date of each Participant is the June 1 on which he has reached age 60. A Participant retiring from employment with the company on his normal retirement date is deemed retired under the Plan as of such date.’ ”

In the second place, I am of the opinion that were we to give full scope to the statutory provision authorizing Taft Broadcasting Company “to observe the terms of a bona fide benefit plan such as a retirement, pension, or insurance plan, . . .” this would not justify the Company to deprive an employee of rights otherwise accorded him under the Act unless the so-called plan expressly provided for compulsory termination at age sixty.

It is necessary to consider the precise facts of Mr. Jones’s relationship with the Company in order to understand the reason for my disagreement with the Court’s opinion. The facts are undisputed. Jones signed an election to participate in the “plan” on March 28, 1963, at which time neither he nor the union was able to obtain a complete copy of the text of the plan. As stated by the Court in its opinion here, Jones “joined on the basis of a posted summary of the ‘plan’ which stated only the following provision relating to retirement:

‘The Normal retirement date of each Participant is the June 1 on which he has reached age 60. A Participant retiring from his employment with the Company on his normal retirement is deemed retired under the plan as of such date.’ ”

The summary made no mention of any obligation on the part of an employee to retire on the “normal retirement date,” either by precise terms or by implication. Moreover, the language just quoted appeared under a heading of the summary far over in the text under a heading entitled “Benefits upon Retirement under Plan.”

Earlier sections of the rather lengthy “summary” are entitled as follows: “Effective Date”, “Participating Divisions”, “Eligibility for Membership”, “Effect of Transfers Between Divisions of the Company”, “Termination of Membership”, “Contributions by Company”, “Allocations to Participants’ Accounts”. Only under the last of these in subpara-graph (c) is age sixty mentioned, and it is mentioned only in the following respect: “(c) One unit for each full month that such participant’s age as of the end of such fiscal year exceeds age thirty-five but not age sixty, provided that no units shall be assigned for age under this clause to any participant who is over age sixty at the end of such fiscal year.”

Under the title “Benefits Upon Retirement Under Plan” there are the following subheads: “Normal Retirement” (this is the one which is quoted above), “Early Retirement” (which makes provision for retirement after age fifty but prior to his normal retirement date), “Retirement from Military Service”, “Retirement by Reason of Death”, “Permanent Disability Retirement”, “Determination of Amount of Benefit to Retired Employee”, “Determination of Method of Distribution”. Finally there is a further heading “Amendments”.

From the foregoing, it will be seen that there was no section of the summary, nor, in fact, of the total contract, which was submitted to counsel for Mr. Jones for the first time after he had been notified that he was to be terminated on his sixtieth birthday, that purportedly deals with a mandatory retirement age. The provision on which the trial court, and this Court on appeal, based a conclusion that Jones had forfeited his rights to protection under the Act is the following section, which appears under the heading “Benefits Upon Retirement Under the Plan” and it appears immediately following the paragraph dealing with the normal retirement date quoted above. It provides:

“5.1 [b] Later retirement. A participant, with the approval of the Company, may remain an employee after his normal retirement date. In such event, he shall be retired under the plan as of his later date of termination of employment.”

Even here, there is no categorical statement that the “normal date of retirement” is the compulsory date absent an election by the employer to extend the time of employment. Without this language, of course there is nothing to warrant a construction of the document to mean “compulsory” date rather than “normal” date of retirement. The statement that the normal date of retirement is age sixty clearly implies that there are other dates within the minds of the parties.

This, then, brings us to the question of the existence of a bona fide plan of retirement which, as initially stated, can exist only if there is an agreement between the parties as to the contents of the plan. There is no dispute about the fact, and this Court has stated as a fact, that Jones joined on the basis of a posted summary of the plan which contained only the language dealing with the normal retirement date. We are not here concerned with the question whether Jones could succeed Jin an action to avoid the terms of the contract on the basis of misrepresentation or lack of mutual understanding or for any other cause; we are dealing only with the question whether a purported plan of the Company really becomes a “plan of retirement” when it is acquiesced in by the employee who is misled into thinking that there is no absolute requirement that he be retired at age sixty, because the language essential to that requirement has been omitted from the summary posted by the Company for his guidance in determining whether to join the plan or not.

My first reason for disagreeing with the majority opinion, therefore, is that, so far as Jones is concerned, there never was a “plan of retirement”, because he accepted the terms of the retirement plan presented to him, upon the urging of his employers, when the one operative provision that might have been detrimental to his interest was concealed from him.

My second ground for disagreement is that, even though Jones were to be held to have been fully bound by the purported plan, because of his application, even though he was misled as to its critical terms, the plan as fully spelled out still does not have the effect contended for it by the Company, or as found for it by the court. The language of the statute creating an exception, if, in fact, it really does create an exception, is not artfully worded. It says only that “it shall not be unlawful for an employer . to observe the terms of a bona fide . . . employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter ...” (Emphasis added). In addition to the fact that rules of construction require that this language, as an exception to the general provision of the Act, is subject to the narrow construction rule, the language itself falls short of saying “it shall not be unlawful for an employer to ‘enforce’ or ‘carry out’ the terms, etc.” Moreover, there is a requirement on the party relying upon the exception established that it “plainly and unmistakably [falls] within [the] terms and spirit” of the legislation. Phillips Company v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 808, 89 L.Ed. 1095 (1945).

In light of this requirement for a narrow construction of the statute, it would seem that at the very least, in order for a purported “plan of retirement” to be permitted to withdraw employees from the protection of the Act, such plan must state in categorical terms that its members are subject to compulsory retirement at a time or under conditions differing from those of the statute. As pointed out above, this purported plan falls far short of containing any such provision. It is completely without any categorical statement that no person shall work beyond age sixty, except upon the approval of management. Such inference as may be drawn to this effect is submerged in misleading divisions of the contract itself as, it seems to me, to make impossible a claim that this plan “plainly and unmistakably [falls] within [the] terms and spirit” of the exception.

I therefore respectfully dissent. At the very minimum I would remand the case to the trial court for it to determine whether any “bona fide plan” existed at all in light of the failure of disclosure of the critical facts to Jones. For my part I am satisfied that this Court should construe the documents in such manner as to conclude that the exception has not been met. I would therefore remand the case with directions that the judgment of dismissal be vacated and the case proceed for further hearing.


source: Caselaw Access Project

author: HAYS, Circuit Judge:

license: Public Domain

text:
    UNITED OPTICAL WORKERS UNION LOCAL 408, affiliated with the International Union of Electrical, Radio & Machine Workers, AFL-CIO, Plaintiff-Appellee, v. STERLING OPTICAL COMPANY, INC., Defendant-Appellant.
    No. 983, Docket 74-1047.
    United States Court of Appeals, Second Circuit.
    Argued May 13, 1974.
    Decided July 11, 1974.

      John E. Jay, New York City (Parker, Chapin & Flattau, New York City, on the brief, B. Michael Thrope, New York City, of counsel), for defendant-appellant.
    Robert M. Ziskin, New York City (Sipser, Weinstock, Harper & Dorn, New York City, on the brief, I. Philip Sipser, Belle Harper, New York City, of counsel), for plaintiff-appellee.
    Before KAUFMAN, Chief Judge, and HAYS and OAKES, Circuit Judges.
   HAYS, Circuit Judge:

This is an appeal in an action brought under section 301(a) of the National Labor Relations Act, 29 U.S.C. § 185(a) (1970), by a union to compel arbitration of a dispute concerning the interpretation and validity of a clause in a collective bargaining agreement which permits the employer to subcontract work, but only to union shops. The district court ordered arbitration, but declared the entire subcontracting clause void as violating section 8(e) of the National Labor Relations Act, as amended, 29 U. S.C. § 158(e) (1970). The employer appeals, claiming that the district court should have voided only so much of the contract clause as limits subcontracting to union shops. We affirm.

The material facts are not disputed.

Sterling Optical Company [Sterling] operates a warehouse and optical laboratory in Brooklyn, New York, and a large number of optical stores in the greater New York metropolitan area. The Unit-, ed Optical Workers Union Local 408 [Local 408], an affiliate of the International Union of Electrical, Radio and Machine Workers, AFL-CIO, is the exclusive collective bargaining agent for Sterling employees. Since 1954, Sterling and Local 408 have been parties to a continuous series of collective bargaining agreements, the most recent of which was entered into as of April 30, 1973, and is currently effective.

The present dispute arises out of actions taken by Sterling in September 1973. On September 17, 1973, Sterling announced to the Local 408 business manager that it had decided to subcontract to a non-union shop certain laboratory work being performed at the Brooklyn plant by bargaining unit employees, a decision terminating the employment of 36 Local 408 members. Two days later the business manager sent a telegram to Sterling requesting a meeting, and on September 21 representatives of Sterling and Local 408 met and conferred. The union took the position that the proposed subcontracting violated various provisions in the 1973 collective bargaining agreement, the most pertinent of which is Article XXVIII, which reads as follows:

“It is agreed by and between the Parties that whereas the Employer send [sic] work out to be done in different establishments under different managements, therefore, upon the signing of this Agreement all said work shall be sent out to Union establishments.”

Sterling took the position that Article XXVIII did not have the effect of forbidding subcontracting because the union shop provision was a “hot cargo” clause offensive to section 8(e) of the National Labor Relations Act.

The parties failed to adjust their differences at the meeting. The Local 408 representative presented Sterling with a written demand for arbitration, as was its right under Article VIII of the 1973 agreement. Article VIII refers to arbitration all disputes that are not adjusted by representatives of Sterling and Local 408:

“Any and all grievances or disputes between the Employer and his employees which cannot be satisfactorily adjusted by a representative of the Employer and a duly authorized representative of the Union shall be referred to an Arbitrator to be selected by the American Arbitration Association whose decision in the matter shall be final and binding upon both Parties to this Agreement, even though one of the Parties shall fail to appear; and such award shall be enforceable in any Court of competent jurisdiction.”

Sterling resisted Local 408’s demand for arbitration because of the Article XXVIII issue, but it has not opposed arbitration as to issues raised by the contract clauses aside from Article XXVIII.

On September 25 Local 408 commenced this action to compel arbitration of the Article XXVIII issue. Sterling counterclaimed for a judgment declaring Article XXVIII void and unenforceable under section 8(e) insofar as it purports to limit Sterling’s right to subcontract. The parties cross-moved for summary judgment. On December 10 the district court entered its judgment ordering Sterling to submit the dispute to arbitration and declaring that the entirety of Article XXVIII “is violative of § 8(e) of the National Labor Relations Act as amended (29 U.S.C. § 158(e)) and is null and void and of no effect . . . In its accompanying memorandum it found that the subcontracting dispute is subject to arbitration under Article VIII of the 1973 agreement, but that the issue of the validity of Article XXVIII under section 8(e) is not subject to arbitration. In declaring Article XXVIII void in its entirety, the court rejected Sterling’s argument that only the language offensive to section 8(e) should be excised; that the text of Article XXVIII should be retained insofar as it permits subcontracting.

Sterling appealed, and the district court stayed arbitration pending appeal. Local 408 did not cross-appeal.

I.

Sterling argues that the district court should have redacted only the language in Article XXVIII that is directly offensive to section 8(e), the language limiting subcontracting to union shops, rather than the entire Article. It contends that the text of Article XXVIII should be revised so that it reads as follows:

It is agreed by and between the parties that whereas the Employer sends work out to be done in different establishments under different managements.

It evidently hopes to use this ungainly fragment to convince the arbitrator that it had an unfettered right to subcontract.

The district court was correct in not rewriting Article XXVIII to express a meaning contrary to the parties’ original understanding. Article XXVIII embodies a compromise by its very terms. Local 408 gave Sterling the right to subcontract in exchange for Sterling’s promise to subcontract only to union shops. Sterling’s promise was valid when it was first given in 1954. The parties could not have foreseen that Article XXVIII would be rewritten by a court in a manner unilaterally beneficial to Sterling. To void the language won by Local 408 while effectuating the remainder of Article XXVIII would upset the balance struck at the bargaining table.

Sterling cites a number of eases decided in other circuits, of which Lewis v. Seanor Coal Co., 382 F.2d 437 (3d Cir. 1967), cert. denied, 390 U.S. 947, 88 S.Ct. 1035, 19 L.Ed.2d 1137 (1968), Meat & Highway Drivers Local 710 v. NLRB, 118 U.S.App.D.C. 287, 335 F.2d 709 (1964), and Truck Drivers Local 413 v. NLRB, 118 U.S.App.D.C. 149, 334 F.2d 539, cert. denied, 379 U.S. 916, 85 S.Ct. 264, 13 L.Ed.2d 186 (1964), are most closely applicable to these facts. It is claimed that these cases stand for the proposition that as a matter of law only the invalid portion of a partially invalid clause should be redacted. In reality, these cases stand for more limited propositions. Lewis v. Seanor Coal Co., supra, and Truck Drivers Local 413 v. NLRB, supra, hold that an entire collective bargaining contract need not fail merely because it includes a subcontracting clause violating section 8(e). 382 F.2d at 440, 334 F.2d at 549. In the present case the district court did not invalidate the entire agreement. In Meat & Highway Drivers Local 710 v. NLRB, supra, the court found that the text retained after excising objectionable hot cargo language benefitted both the union and employer, so that the retained text “would leave the total collective bargaining agreement in a state close to the actual agreement of the parties.” 335 F.2d at 717. In the present case, rewriting Article XXVIII along the lines suggested by Sterling would result in a fragment expressing a meaning nowhere near the original understanding of the parties.

II.

Were the issue before us we would have no difficulty holding that the district court erred in declaring Article XXVIII void since the validity of Article XXVIII under section 8(e) is an issue lying initially in the exclusive province of the arbitrator. However, we have no power to pass on this question because of the failure of the Union to appeal.

The district court’s holding “that the issue of whether Article XXVIII of the agreement contravenes section 8(e) of the Act is nonarbitrable” is based on an erroneous reading of our decision in Todd Shipyards Corp. v. Marine Workers Local 39, 344 F.2d 107 (2d Cir. 1965). In Todd Shipyards we held that an employer’s action under section 301 for a declaratory judgment that a hot cargo clause is unenforceable is not barred because of the NLRB’s concurrent jurisdiction. We were concerned with coordinating competing district court and NLRB jurisdiction and we struck the balance in favor of the forum chosen by the plaintiff. The present case involves coordinating section 301 jurisdiction with an arbitration clause which by its terms covers the dispute. These facts require consideration of policies distinct from those governing Todd Shipyards. In a section 301 action to compel arbitration the court must give full scope to an arbitration clause. Our national labor policy encourages the settlement of labor disputes through arbitration, see § 203(d) of the Labor Management Relations Act, 29 U.S.C. § 173(d) (1970), even to the extent, for example, of enforcing an arbitration clause despite the anti-injunction provisions of the Norris LaGuardia Act. See Boys Markets, Inc. v. Retail Clerk’s Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). That policy limits the district court’s role in a section 301 action to compel arbitration to directing arbitration of disputes falling within the agreement. The scope of the court’s inquiry is accordingly limited: “It is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator.” United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960). In the present case it is clear that Local 408’s grievance comes within the arbitration clause and that its claim is governed by Article XXVIII. Whether the subcontracting clause violates section 8(e) is at least initially in the exclusive province of the arbitrator.

However, we cannot reverse the district court’s erroneous withdrawal of the Article XXVIII issue from arbitration in the procedural stance of this appeal. Local 408 did not file a cross-appeal, so we may not modify the district court order in its favor. Morley Construction Co. v. Maryland Casualty Co., 300 U.S. 185, 191, 57 S.Ct. 325, 81 L.Ed. 593 (1937). Of course it would have been proper for Local 408 to advance any matter in the record in support of the district court’s order, including arguments previously rejected by the district court, United States v. American Railway Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 68 L.Ed. 1087 (1924), 9 J. W. Moore, Federal Practice ¶ 204.11 [3] at 934-35 (2d ed. 1973), but it may not attempt to enlarge the relief granted by the lower court or lessen the rights of Sterling. Swarb v. Lennox, 405 U.S. 191, 201, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972); United States v. American Railway Express Co., supra; Penfield Co. v. SEC, 330 U.S. 585, 594, 67 S.Ct. 918, 91 L.Ed. 1117 (1947); Schildhaus v. Moe, 319 F.2d 587 (2d Cir. 1963) (per curiam). It may well be that the cross-appeal rule is a rule of practice, see Langnes v. Green, 282 U.S. 531, 538, 51 S.Ct. 243, 75 L.Ed. 520 (1931), which we may dispense with in an appropriate case. Id., J. W. Moore, supra, at ¶ 204.11 [5], But the present case is not one calling for an exception to a rule so well-established and of such long usage.

The judgment of the district court is accordingly affirmed.

      . The preamble to the 1973 agreement defines the term “Union” to mean Local 408.

      . The present text of Article XXVIII appeared in 1954 in the first contract between these parties and has been used continuously to this date. Section 8(e) was not included in tiie National Labor Relations Act until 1959 when it was added by section 704(b) of the Labor Management Reporting and Disclosure Act of 1959, 73 Stat. 519 (1959).


author: DYER, Circuit Judge: RIVES, Circuit Judge

text:
    Edward ELLIS, Plaintiff-Appellant, v. Walter T. CAPPS, Warden, Atmore State Prison, Defendant-Appellee.
    No. 73-3958.
    United States Court of Appeals, Fifth Circuit.
    Sept. 13, 1974.

      Melvin W. Brunson, Mobile, Ala. (Court-appointed), for plaintiff-appellant.
    George W. Royer, Jr., William M. Bowen, Jr., Asst. Attys. Gen., Montgomery, Ala., Robert G. Kendall, Mobile, Ala., for defendant-appellee.
    Before BROWN, Chief Judge, and RIVES and DYER, Circuit Judges.

      . These records were compiled in the regular course of business and therefore fall within the official records exception to the hearsay rule. See United States v. Newman, 5 Cir. 1972, 468 F.2d 791, 795, cert. denied, 1973, 411 U.S. 905, 93 S.Ct. 1527, 36 L.Ed.2d 194; Tomlin v. Beto, 5 Cir. 1967, 377 F.2d 276.

   DYER, Circuit Judge:

Edward Ellis, an Alabama state prisoner, brought a civil action against Walter Capps, Warden of the Atmore State Prison, for unconstitutionally relegating him to punitive isolation and for allegedly presiding over and directing a beating of Ellis following a disciplinary hearing. The case was tried before a jury, although the trial judge gave to the jury only the issues arising from the alleged assault and the court determined all issues with respect to Ellis’ solitary confinement. The jury returned a verdict for the defendant, from which Ellis appeals. He urges two errors as requiring reversal: (1) the introduction into evidence of his prison disciplinary record, and (2) the denial of his motion for a continuance which was prompted by the absence of a prisoner-witness. We affirm.

During the defendant’s case and in the course of the direct examination of Warden Capps, the trial court admitted into evidence over Ellis’ objection various official documents comprising Ellis’ prison records. The exhibits related to a number of misdeeds perpetrated by Ellis while confined in state penal institutions, and clearly placed Ellis in an unfavorable light as a person of extremely violent and belligerent propensities. On appeal, Ellis freely confesses that his record is one of obstinance, misbehavior and violence and therefore seeks reversal of the result below on the basis of the prejudicial impact of those records. Ellis contends not that the prejudicial effects outweighed the evidence’s probative value, but rather argues that his misbehavior behind prison walls was irrelevant to the issue before the jury, namely whether he was in fact assaulted at the behest of Warden Capps. We are convinced that Ellis’ view of relevancy is unduly circumscribed, in that the records were admissible to show his bias and prejudice against the warden as head of the institution to which Ellis was so ill-adjusted.

First, it is highly significant that many of the acts of violence committed by Ellis and reflected in his prison record were brought out both on direct examination and on cross-examination of Ellis without objection. The various exhibits simply documented notorious incidents of violence and referred to other instances of less egregious misconduct, such as slothfulness, malingering, and “missing the back gate.” But virtually all of the various incidents which demonstrated Ellis’ violent disposition were previously brought before the jury in the testimony of Ellis himself. Any possibly “shocking” or “notorious” accounts of Ellis’ propensities toward violence and mayhem were unveiled long before introduction of the documentary evidence. It is therefore difficult to understand in what coneeiva-ble manner Ellis was prejudiced when his consistent pattern of outrageous misconduct was revealed by his own damaging admissions. This in itself is sufficient to refute Ellis’ assignment of error in this regard.

But even if Ellis’ record had appeared initially by means of this documentary evidence, rather than testimonially and without objection at an earlier stage in the trial, admissibility would nonetheless exist. The gravamen of Ellis’ complaint was, of course, injuries suffered in a fracas allegedly directed by the head of the penal institution. In pursuing his claim, Ellis personally testified to alleged brutalities engineered by the warden against him. Resolution of this factual issue created by Ellis’ own testimony opened wide the door for his adversary to demonstrate Ellis’ bias or prejudice so as to taint his credibility. And the documentary evidence tended directly to show Ellis’ intransigent and belligerent opposition to the prison, its rules and its employees. Ellis’ interaction with prison officials was literally saturated with disobedience, threats, and acts of violence against both persons and property. This explosive hatred of prison life and officialdom, as evidenced by the events described in the exhibits, was directly relevant to the issue of Ellis’ credibility in testifying against the principal symbol of the institutions he so outspokenly and aggressively despised. In short, the evidence showed that Ellis was completely at war with the system and its functionaries and that he was willing and anxious to wreak violence upon any and all representatives of the system, from guards to medical officers to wardens. This deep-seated antipathy toward the system and its officers could hardly be more relevant in assessing Ellis’ credibility in charging the head of the prison with directing a tortious assault against him. Therefore, by his ’own testimony, Ellis put his credibility into issue, relevant to which was a searching inquiry into his prolific troubles with the prison system, upon whose head he sought to impose civil liability.

To hold otherwise would raise serious due process problems, since a defendant must be afforded reasonable opportunity to refute grave allegations brought against him in a civil suit. Cordoning off a highly relevant area of inquiry such as the bias and prejudice of a complainant is repugnant to the principle of a fair trial. The permissible leeway for a defendant’s strategems is broad indeed. This Court has succinctly stated the rule applicable in this case as follows:

Evidence to show bias or interest of a witness in a cause covers a wide range and the field of external circumstances from which probable bias or interest may be inferred is indefinite. The rule encompasses all facts and circumstances which, when tested by human experience, tend to show that a witness may shade his testimony for the purpose of helping to establish one side of the cause only. Facts wholly immaterial, or prejudicial to one of the parties on the main issue, may be material as affecting the credibility of a witness. Thurber Corporation v. Fairchild Motor Corporation, 5 Cir., 1959, 269 F.2d 841; Central Truck Lines, Inc., v. Lott, 5 Cir., 1957, 249 F.2d 722; Majestic v. Louisville & N. R. Co., 6 Cir., 1945, 147 F.2d 621; and 3 Wigmore, Evidence, Sec. 949.

Aetna Insurance Company v. Paddock, 5 Cir. 1962, 301 F.2d 807, 812.

Turning now to the court’s denial of Ellis’ motion for a continuance we find no error. Since such determinations are entrusted to the sound discretion of the trial court, see, e. g., United States v. Moriarty, 5 Cir. 1974, 497 F.2d 486, we decline to overturn the trial court absent a showing of an abuse of discretion. No such showing was made here, particularly since Ellis’ version of the events in question, to which the absentee witness would have addressed himself, were sufficiently seconded by the testimony of several of Ellis’ fellow prisoners. There was no error in denying the continuance.

The judgment is therefore

Affirmed.

RIVES, Circuit Judge

(dissenting):

I respectfully dissent because I am convinced that trying together the jury and non jury issues and letting the jury hear and see Ellis’ institutional history was erroneous and prejudicial. In the brief filed on behalf of Capps, it is stated:

“It is admitted that the prison record of the plaintiff was introduced for the purpose of showing that the confinement of the plaintiff in punitive isolation and the conditions of his confinement did not violate his right to be free from cruel and unusual punishment. However it is quite another matter to allege that this evidence had no relevancy or relationship to the issue of the assault and battery.”

The institutional record was admitted for its relevance on the non jury issues. Its relevance on the jury issues was extremely slight. It did not tend to prove or disprove that Capps directed a beating of Ellis.

The majority finds “that the records were admissible to show his bias and prejudice against the warden as head of the institution to which Ellis was so ill-adjusted.” Of the twenty-nine exhibits taken from Ellis’ institutional record, only Exhibit 32 relates to any direct interaction between Ellis and Capps. Others suggest bias against Capps only insofar as they indicate Ellis’ attitude toward various corrections officers and his extreme dissatisfaction with his situation at the prison where Capps was warden. Still others suggest possible bias against Capps only to the extent that misconduct in another Alabama prison could be construed as a basis for bias against Capps.

The evidence was of minimal value for the purpose of affecting Ellis’ credibility. It was not needed for that purpose. The jury knew that Ellis was a felon, that he was currently a prisoner, and that he was attempting to recover damages from Capps; these circumstances reflect on Ellis’ credibility to ■ such an extent that the exhibits were at be'st cumulative on that issue.

The evidence was highly prejudicial. The exhibits tended to show that Ellis was a violent and dangerous troublemaker. A request that Ellis be transferred from Draper Prison indicated that Ellis

“has been a constant problem since coming to this institution. He has refused to work, missed the back gate on numberous [sic] occassions [sic], and at one time, missed his school assignment for a period of 4 weeks. He has had a number [sic] fights with other inmates and is always causing some kind of trouble. Request this inmate be transferred to Atmore Maximum [sic] for the betterment of this institution.” (Exh. 6.)

A statement by a corrections officer showed that during a visit to Ellis in punitive isolation, Ellis was “cursing and ask [sic] me to feel of the knot on his head, when I refused he spit on me three (3) times and continued cursing me and dared me to open the door” (Exh. 18.) A memorandum by a medical assistant related that Ellis became “insubordinate” during sick call, and cursed the assistant in forceful terms (Exh. 20). Other documents also refer to cursing at officers and the use of the “vilest of profane language” (Exhs. 22, 25, 27 and 28). A report by a corrections officer stated that Ellis injured another prisoner by throwing glass into his cell and that threats of “mace” and tear gas were necessary to induce Ellis to give up an unauthorized knife (Exh. 21). Another report concerning a later incident said that Ellis was a member of a small group of prisoners who “refused to come out of their cells and continued their abusive and profane language, vandalizing [of commodes and wash basins], and threatening the officers with bodily harm.” On this occasion “mace” was used, and Ellis was “relieved of a knife strapped to his mid-section” (Exh. 27). A statement by one officer indicated that Ellis participated in holding him hostage, threatened to kill him, and actually struck him in the stomach and in the face (Exh. 30). Another report stated that Ellis had threatened to kill Capps and another officer (Exh. 32).

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or of confusing or misleading the jury. Since its obvious purpose is to help assure a fair trial, this rule is applicable both in criminal cases and in civil actions. The twenty-nine contested exhibits in the present case contained such shocking accounts of Ellis’ prison conduct that the jury could hardly have avoided the feeling that Ellis should not succeed- in his lawsuit, even if Capps and others had assaulted him. Also, the emphasis placed upon these exhibits and the extraordinary conduct detailed in the various reports and statements may well have misled or confused the jury about the issues in the case. No matter his past conduct or character, Ellis was entitled to a fair trial on the issue of whether Capps ordered or otherwise participated in the alleged beating. Taking into consideration the limited relevance of these exhibits to the issue before the jury, and the extremely prejudicial nature of these exhibits, I cannot escape the conclusion that the wholesale admission into evidence of the items from Ellis’ institutional- history was reversible error.

      . Indeed, on direct examination, Ellis admitted in responding to Ms own counsel’s questions that lie had .been charged previously with refusing to obey a direct order, and with cursing an officer. These events were also described in the prison records of which Ellis now complains.

      . The fact that many of these records pertained to incidents not directly involving Capps himself does not detract from their relevancy to the issue of bias. The recorded incidents abundantly demonstrate Ellis’ total alienation from all aspects of prison life. This deep-seated aversion to the prison and its employees is directly relevant in a suit brought against the very person who heads the institution and who is the superior of the many functionaries with whom Ellis was so intransigently embattled.

      . Appellee’s Brief, pp. 7-8.

      . Exhibits 6-14 relate to occurrences at Draper

      . As to criminal cases, see Shepard v. United States, 1933, 290 U.S. 96, 104, 54 S.Ct. 22, 78 L.Ed. 196; United States v. Bell, 5 Cir. 1972, 457 F.2d 1231, 1237; United States v. Ravich, 2 Cir. 1970, 421 F.2d 1196, 1204-1205; People v. Cavanaugh, 1955, 44 Cal.2d 252, 282 P.2d 53; Kiefer v. State, 1958, 239 Ind. 103, 153 N.E.2d 899; Wigmore, Evidence (3rd ed.) §§ 194, 1864, 1904; 4 Wigmore, Evidence (Chadbourn rev. 1972) § 1157 ; Wright, Fed.Prac. & Proc.: Criminal § 402 at p. 65 (1969), and cases cited therein.
      As to civil actions, see Smith v. Spina, 3 Cir. 1973, 477 F.2d 1140, 1146; Shepard v. General Motors Corp., 1 Cir. 1970, 423 F.2d 406, 408; Ryan v. United Parcel Service, 2 Cir. 1953, 205 F.2d 362, 364; Burch v. Reading Company, E.D.Pa.1956, 140 F.Supp. 136, 147; Howser v. Pearson, D.D.C.1951, 95 F.Supp. 936, 941; Harper v. Bolton, 1962, 239 S.C. 541, 544, 124 S.E.2d 54, 55; Louisville & Nashville RR v. Pearson, 1892, 97 Ala. 211, 219, 12 So. 176, 180; Wigmore, Evidence (3d ed.) § 1864, esp. at 491 (also see §§ 199, 208, 1904) ; 4 Wigmore, Evidence (Chadbourn rev. 1972) § 1158; Wright & Miller, Fed.Prac. & Proc.; Civil § 2403 at p. 315 (1971).

        See also Rule 403 of the proposed Federal Rules of Evidence; Rule 45 of the Uniform Rules of Evidence drafted by the National Conference of Commissioners on Uniform State Laws.


author: CLARK, Circuit Judge:

text:
    Alex ARDISTER, Petitioner-Appellant, v. Joseph S. HOPPER, Warden, Georgia State Prison, Respondent-Appellee.
    No. 73-3559.
    United States Court of Appeals, Fifth Circuit.
    Sept. 13, 1974.

      F. Robert Raley, Macon, Ga. (Court-appointed), for petitioner-appellant.
    Arthur K. Bolton, Atty. Gen., William F. Bartee, Jr., B. Dean Grindle, Jr., Asst. Attys. Gen., Atlanta, Ga., for respondent-appellee.
    Before BELL, GOLDBERG and CLARK, Circuit Judges.
   CLARK, Circuit Judge:

Today’s decision marks the fifth post conviction judicial proceeding of record in Ardister’s anfractuous quest for ha-beas corpus relief from a twenty year sentence as a recidivist car thief. The interests of the petitioner and heavily burdened court systems, as well as the interests of comity and justice would be served best by an extra careful effort to bring this overlong and overcomplicated quest to an expeditious conclusion. Unfortunately, an erratic history and an incomplete record of recent state court proceedings prevent our writing a complete end here.

To assist the courts which must adjudicate the issues which remain we have combed the record and prepared this narrative history. On September 19, 1968 Ardister was tried in the Superior Court of Elbert County, Georgia on an indictment charging him with the theft of a 1967 Chevrolet automobile. The prosecution introduced three prior convictions for larceny of an automobile against Ardister and the trial court instructed the jury that they could fix Ar-dister’s sentence at any number of years not less than ten nor more than twenty if they found he was guilty of a third or subsequent such felony. The jury did find Ardister guilty and fixed his punishment at twenty years. No direct appeal from this conviction was taken or attempted. On March 27th, 1969, the Superior Court of Tattnall County, Georgia accorded Ardister a hearing on his pro se petition for habeas corpus relief. Ardister contended that his conviction was void because (1) he had been denied a preliminary hearing, (2) his assigned counsel had rendered' ineffective assistance, and (3) his twenty year sentence amounted to cruel and unusual punishment. On May 5, 1969 the Superior Court of Tattnall County entered an order denying habeas corpus relief together with detailed findings of fact based upon the hearing record on Ardis-ter’s ineffective counsel claim. No appeal was taken from this proceeding.

Ardister next filed an application for a writ of habeas corpus in the United States District Court for the Middle District of Georgia. As grounds for relief he asserted that (1) he was denied a preliminary hearing, (2) his appointed counsel was ineffective, (3) the evidence introduced against him was insufficient to establish the crime of automobile larceny, (4) the indictment upon which he was tried did not allege prior convictions wherefore the introduction of such priors at his trial was improper, (5) his appointed counsel did not advise him of his right to a direct appeal, he had no knowledge of such right and had been unable to procure advice from fellow-prisoners in time to perfect an appeal, and (6) the failure to appoint counsel at his state habeas proceeding and his lack of knowledge of proper hearing procedures and deposition tactics rendered such post conviction proceedings ineffective. On December 19, 1969 the federal habeas court entered an order denying relief. The court determined that the state habeas rulings that Ardister had been afforded effective assistance of counsel and had received a fair trial were correct, that the introduction of prior felony convictions in a “one stage” jury trial did not violate Ardister’s constitutional rights, that the claim of denial of a right of direct appeal had never been raised in the state court, and that the failure to appoint counsel at the ha-beas corpus proceeding did not violate any constitutional right. On March 16, 1970 the court allowed an amendment to Ardister’s previous petition, and based on its clarification made the additional finding that his complaint as to the introduction of his prior convictions also asserted such proof was contrary to the indictment on which he was tried and violated Studdard v. State, 225 Ga. 410, 169 S.E.2d 327 (1969). This clarified contention was also denied for failure to exhaust state remedies. No express ruling was made on Ardister’s contention regarding the sufficiency of the evidence adduced against him or the failure to accord him a preliminary hearing.

An appeal to this court followed and on November 11, 1970 we affirmed the denial of habeas corpus relief, Ardister v. Smith, 433 F.2d 931 (1970), holding that the asserted failure to afford a preliminary hearing did not raise a constitutional issue, that the court had correctly discerned that petitioner had failed to exhaust available state remedies relative to his claims that his counsel did not advise him of the right to appeal and that his prior offenses had been improperly introduced into evidence. We expressly withheld ruling on the general claim of ineffective assistance of counsel pending the exhaustion of the claim related to the lack of advice that he had a right to appeal. Our opinion did not deal with Ardister’s claim that his conviction had been based upon insufficient evidence.

The records in this cause are devoid of any documentation as to proceedings between the date of issuance of our November, 1970 mandate and August 18, 1972 when the instant petition for ha-beas corpus relief was filed in the United States District Court below. In this latest pro se petition Ardister claimed entitlement to habeas relief because (1) his arrest had been illegal, (2) he had been denied bail, (3) he had been interrogated without counsel present, (4) insufficient evidence had been adduced against him, and (5) his counsel had not advised him of his right of direct appeal. Counsel thereafter appointed to represent Ardister supplemented these first five contentions by asserting that (6) he had been denied a preliminary hearing, (7) the indictment did not permit the introduction of the prior automobile larceny convictions, (8) his appointed trial counsel had been ineffective, and (9) the failure to appoint counsel for his state habeas proceedings rendered them ineffective. The court ruled that Ardister’s first three contentions resulted in no prejudice to his trial and that the trial transcript reflected ample evidence on which a conviction could have been based. After first noting that the contention regarding the attorney’s failure to advise him of his right to appeal should be dismissed as successive (Ardister having offered no reason why he could not have raised it in the state proceedings), the court went on to rule that the claim was insufficient to support relief because Ardister nowhere alleged that he did not know of his right to appeal or that his attorney in any way discouraged his taking an appeal. This order, entered on July 24, 1973, contained no mention of grounds six through nine. Ardister’s counsel subsequently filed a pleading styled a Motion for Reconsideration or in the Alternative for a Certificate of Probable Cause, in which the court’s failure to rule on these latter grounds was set forth. By endorsement the court simply granted the certificate of probable cause without, explanation or opinion. As this circuit has previously noted, where unexhausted habeas corpus contentions are combined with grounds ripe for decision the court has sometimes refused to decide any issues until all state avenues of relief have been foreclosed and sometimes proceeded to decide the properly presented issues and require exhaustion on the remainder. Harris v. Estelle, 5 Cir., 487 F.2d 1293 (1974). Under the entirely unique circumstances present here a narrowing of the issues rather than a remand for exhaustion is'clearly indicated.

In our prior opinion we held that Ardister’s contention regarding the denial of a preliminary hearing did not rise to the level of a constitutional right. That ground, which has now been urged and denied at least five times in state and federal habeas trial and appellate forums, can form no basis for federal constitutional relief. See 433 F.2d at 931. We also affirm the district court’s denial of Ardister’s contention that the evidence was insufficient to support his conviction. The trial transcript shows more than ample proof that would support a jury determination that Ardister was guilty of larceny of the 1967 Chevrolet automobile charged in the last indictment and also that he had been convicted of three previous similar offenses. Moreover, inasmuch as his contention is not a lack of any evidence but merely the insufficiency of that which was offered, the asserted error lacks constitutional dimension. Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). The District Court’s determination that Ardister’s asserted illegal arrest, denial of bail and interrogation without counsel, if true, resulted in no prejudice to his defense and raised no ground for relief is affirmed. See Perry v. State of Texas, 456 F.2d 879 (5th Cir.), cert. denied, 409 U.S. 916, 93 S.Ct. 248, 34 L.Ed.2d 178 (1972); Brooks v. Smith, 429 F.2d 1281 (5th Cir. 1970); Abraham v. Wainwright, 407 F.2d 826 (5th Cir. 1969).

This is the fifth time Ardister has raised the general contention that his appointed counsel was ineffective. When the claim was initially raised in the state court a hearing on the merits was held in that proceeding. The transcript thereof and the state court’s reasoned findings provide a reliable and adequate written indicia to enable this Court to conclude that the ruling there made was correct. 28 U.S.C. § 2254(d). This holding, however, must be subject to the caveat that its disposition is without prejudice to Ardister’s present contention that his appointed counsel did not advise him of his right to take a direct appeal from his conviction. Subject only to the eventual resolution of that matter as discussed below, the decision that the counsel appointed to represent him did not render him less than reasonably effective assistance is affirmed.

The Attorney General impliedly invites us to return the case to the state courts of Georgia yet another time with the assurance that “the stern attitude of (The Superior Court of Tattnall County) toward dismissal of the habeas corpus petition as successive, has considerably relaxed” due to changes in the deci-sional law of the State of Georgia. The Attorney General furthermore represents that he recognizes Ardister could not have been expected to raise the Studdard issue prior to the time Stud-dard was decided by the Supreme Court of Georgia, and therefore he would not move to have any subsequent petition by Ardister raising the grounds set out in our prior mandate dismissed as successive.

Ardister’s claim that he was entitled to have counsel appointed to assist him in the presentation of his post conviction proceedings does not raise a claim cognizable by this court, whose concerns are limited to the preservation of federal constitutional rights. See Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); Stanley v. Wainwright, 406 F.2d 8 (5th Cir. 1969); Queor v. Lee, 382 F.2d 1017 (5th Cir. 1967). However, in view of the unusual concessions made here by the chief legal officer of the State of Georgia, and the multiple proceedings in the state and federal habeas forums which this cause has spawned, we feel confident that the State of Georgia will wish to appoint counsel to represent Ardister at any further habeas corpus proceedings the State may choose to conduct. Comity would surely be well served by every effort to secure a complete presentation and consideration of the remaining issues in that forum.

This brings the proceedings back essentially to where they were November 11, 1970 when this Court held that Ardister had not exhausted his contentions that his appointed counsel failed to advise him of his right of direct appeal and that the form of the indictment against him would not permit the proof of his prior convictions for automobile larceny. Based upon the representations of the Attorney General this court could hold that Ardister has exhausted his state remedies. However, in light of the fact that we have no direct evidence before us that the right of appeal and indictment issues have ever been squarely presented to or considered and ruled upon by the courts of Georgia, justice as well as comity dictate that the matter should be remanded to the district court with directions to conditionally dismiss these two contentions for failure to exhaust state remedies. This course will enable Ardister to present these issues to the appropriate Georgia forum, which may wish to develop an adequate hearing record on counsel’s actions regarding advice to Ardister, the extent of Ardister’s own knowledge of his right to appeal based upon prior courtroom experience and whether Ardister may have received advice as to these rights from any other source.

Obviously, the courts of the State of Georgia are in the best position to interpret the meaning and proper application of Studdard v. State, and should be accorded the initial opportunity so to do. An appropriate time limitation should be expressed in the District Court’s order dismissing the present petition so that if Georgia decides that no further action on Ardister’s claims by it would be appropriate, the district court can proceed to hold such additional hearings or take such further actions as it may deem proper to enable it to rule upon these two contentions. We neither make nor intimate any ruling as to the outcome of any matter remanded.

Affirmed in part, and in part remanded with directions.

      . Respondent represents that since our November 1970 decision Ardister has twice attempted to secure relief on the unexhausted issues by filing habeas petitions in the Superior Court of Tattnall County. Respondent is aware of no formal ruling by that court disposing of the petitions and assumes, because the State was never ordered to respond to the petitions pursuant to Ga.Code Ann. § 50-127 (6) (1973), that the petitions were dismissed as successive under Ga.Code Ann. § 50-127(10), (1973).


author: WALLACE, Circuit Judge: ALFRED T. GOODWIN,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Juan CARRILLO-FRAUSTO, Defendant-Appellant.
    No. 73-1696.
    United States Court of Appeals, Ninth Circuit.
    May 9, 1974.
    As Amended on Denial of Rehearing July 5, 1974.
    Classen Gramm, San Diego, Cal., for defendant-appellant.
    Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.
    Before CARTER, GOODWIN and WALLACE, Circuit Judges.
   WALLACE, Circuit Judge:

Carrillo was convicted on three counts of harboring and concealing aliens. He asserts that the trial judge should have granted his motion for dismissal when it appeared that two of the aliens who allegedly were harbored and concealed had been released by the magistrate without his consent and without his having an opportunity to interview the witnesses or to perpetuate their testimony. We affirm.

Carrillo and co-defendant Domingo Is--las-Garcia were arrested in San Diego County, California, on January 11, 1973, and brought before a magistrate on the following day. Before defense counsel entered the case, the government filed material witness complaints for the nine aliens in the company of Carrillo and his co-defendant at the time of their arrest. Two of these aliens were juveniles, aged 13 and 16. Over the objections of the government, the magistrate refused to remand the juveniles to custody because of the apparent unavailability of adequate detention facilities for minors. The. government suggested no alternatives to jail. Upon their release, the juveniles returned to Mexico. Defense counsel had no opportunity to interview them.

On January 17, 1973, Carrillo and the co-defendant were indicted for conspiracy to smuggle aliens into the United States and for nine counts of concealing, harboring and shielding aliens. A motion for dismissal of all counts based on the unavailability of two material witnesses was made at the beginning of trial on February 8, 1973, and denied. The motion was renewed upon the conclusion of the government’s ease and again at the close of defendants’ case. In each instance, it was denied. Co-defendant Islas was acquitted on all counts, while Carrillo was acquitted on the conspiracy count but convicted on three substantive counts.

Carrillo asserts his conviction for harboring and concealing aliens should be reversed because he was denied the opportunity of questioning two minors who were temporarily detained with seven other aliens as material witnesses. He bases his contention upon United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971), where we held that it was a denial of due process for the government to interview all of the material witnesses and then return to Mexico those it determined were not essential to its case. The present case is clearly distinguishable. Mendez-Rodriguez involved the unilateral decision of the prosecution, in effect, to suppress evidence. In the instant case the court, in its discretionary power to release alien witnesses and out of concern for the welfare of two juvenile aliens, aged 13 and 16, refused to subject them to our criminal process.

We have concluded that both sides should have equal access to alien material witnesses in cases such as this, but that premise should not dictate that the court must sacrifice human values and other relevant considerations to follow blindly such an enshrined principle. While Mendez-Rodriguez prevents the government from gleaning whatever information it can from witnesses and then releasing them to go beyond the jurisdiction of the court, neither that case nor logic nor justice should prevent the court from independently determining that relevant concerns dictate that a witness should not be detained. The court has the power to release witnesses when the facts dictate that retention would be inappropriate or undesirable.

No bad faith can be charged to the government. It did not release the aliens. On the contrary, it moved to detain the aliens at least until defense counsel could interview them. The record does not demonstrate whether any facilities other than jail were feasible. If there were and if the magistrate concluded they should be used, he had the power to order the government to provide such facilities. However, the witnesses were not entitled to any especially favored treatment by the government. They were lawbreakers; they were illegally in this country and subject to prosecution. 8 U.S.C. § 1325. The government moved to retain them and it objected when the magistrate decided to release them. The government acted reasonably under the circumstances.

The magistrate has the discretionary power to release alien witnesses. Reversal here can be based only upon the theory that the magistrate abused his discretion. Carrillo has failed to demonstrate that that discretion was abused.

Affirmed.

ALFRED T. GOODWIN,

Circuit Judge (dissenting):

I have had some misgivings about the categorical holding in United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971), that prejudice need not be shown in order to reverse a conviction once it appears that the government has permitted material witnesses to leave the jurisdiction. However, Mendez-Rodriguez is the law of the circuit and, in my view, requires us to reverse the conviction here.

The substantive distinction drawn by the majority between a case in which the prosecution causes the release of the witnesses (Mendez-Rodriguez) and a case in which the magistrate causes the release (Carrillo-Frausto) makes sense only if administration were our sole concern. However, a defendant on trial without a needed witness is not as concerned about which branch of the government deprived him of the testimony of that witness as he is about the absence of the witness.

Moreover, by failing to propose to the magistrate alternative plans for paroling the witnesses into the United States and housing them at least until Carrillo-Frausto and his attorney could interview them, the government denied Carrillo-Frausto his due-process right to offer testimony and to compel the attendance of material witnesses as effectively as if the' prosecution itself had released the witnesses. It is clear from the transcript that were it not for the prosecution’s failure to furnish‘or at least suggest proper facilities the magistrate would have remanded the juvenile witnesses to custody. We can take judicial notice of the power of the prosecution to keep witnesses on hand without jailing them when the prosecution deems such detention necessary. Failure to offer some alternative to custody where the only form of custody available was a jail-like institution left the magistrate little choice but to order the release of the witnesses.

Since Mendez-Rodriguez, decided eighteen months prior to the magistrate’s hearing in this case, the government has been aware of its duty not to make material witnesses unavailable to the defense. A prosecutor acting with due diligence would not, at this late date, still have been unable to suggest alternatives other than release or incarceration in a prison when faced with the problem of how to insure the availability of two juvenile witnesses. Whether we attribute the government’s inaction to bad faith or merely negligence (see United States v. Romero, 469 F.2d 1078, 1079 (9th Cir. 1972), cert. denied, 410 U.S. 985, 93 S.Ct. 1512, 36 L.Ed.2d 182 (1973); Ferrari v. United States, 244 F.2d 132, 141 (9th Cir.), cert. denied sub nom., Cherpakov v. United States, 355 U.S. 873, 78 S.Ct. 125, 2 L.Ed.2d 78 (1957)), the denial of due process is the same. In this case there is no evidence of bad faith. From the standpoint of preparing an effective defense, however, it matters little whether the witnesses were made available by prosecutorial action or inaction.

I would reverse the conviction.

      . Tlie government need not, in every ease, retain alien material witnesses until trial. It must, however, retain them at least until the defendant has had an opportunity to interview them. United States v. Mendez-Rodriguez, 450 F.2d at 4. See United States v. Lomeli-Garnica, 495 F.2d 313 (9th Cir. 1974).


author: COLEMAN, Circuit Judge.

text:
    AUSTRACAN, (U.S.A.) INC., et al., Plaintiffs-Appellants, v. M/V LEMONCORE, etc., and Maritime Fruit Carriers et al., Defendants. REFRIGERATED EXPRESS LINE, (A/ASIA) PTY. LTD., etc., et al., Defendants-Third-Party Plaintiffs-Appellants, v. CENTRAL COLD STORAGE, INC., and Harrington & Company, Inc., Third-Party Defendants-Appellees (two cases). BAJALAD & COMPANY, Plaintiff-Appellant, v. MARITIME FRUIT CARRIERS et al., Defendants.
    No. 73-2561.
    United States Court of Appeals, Fifth Circuit.
    Aug. 30, 1974.

      Harry Zuckerman, Miami, Fla., for Austracan (U.S.A.) et al.
    Frank J. Marston, Miami, Fla., for Refrigerated Express Line.
    A. Dan Killian, Jr., Miami, Fla., for Central Cold Storage, Inc.
    John H. Schulte, Miami, Fla., for Harrington & Co., Inc.
    Myers, Kaplan, Porter, Levinson & Kenin,. Miami, Fla., for Nat. Cold Storage.
    Dixon, Dixon, Lane & Mitchell, Miami, Fla., for Maritime Fruit Carriers.
    Reginald M. Hayden, Jr., Miami, Fla., for John Thallon & Co. et al.
    Pallot, Poppell, Goodman & Shapo, Miami, Fla., for Borthwick & Sons.
    Pozen, Pestcoe, Gold, Gold & Minsker, Miami, Fla., Watkins & Daniells, Atlanta, Ga., for Refrigerated Transport.
    Before TUTTLE, COLEMAN and AINSWORTH, Circuit Judges.
   COLEMAN, Circuit Judge.

Finality is a condition of federal appellate review, so written into the first Judiciary Act. It has been departed from only when its observance would practically defeat the right to any review at all. From the very beginning, piecemeal disposition of what, for practical purposes, is a single controversy has been forbidden. See Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1939); 28 U.S.C. §§ 1291 and 1292; F.R.Civ.P., Rule 54.

In recent years the decisions of this Court indicate a growing neglect of these principles among those who attempt to prosecute appeals from non-final district court action. We cite a few of the cases: Cook v. Eizenman, 5 Cir., 1963, 312 F.2d 134; Bailey v. Rowan Drilling Company, 5 Cir., 1971, 441 F.2d 57; International Harvester Credit Corporation v. Belding, 5 Cir., 1972, 462 F.2d 624; Foret v. McDermott, 5 Cir., 1973, 484 F.2d 992; State National Bank of El Paso v. United States, 5 Cir., 1974, 488 F.2d 890; Anderson v. Robinson, 5 Cir., 1974, 494 F.2d 45.

Premature appeals not only subject counsel to fruitless burdens but it has the same effect upon courts, with their crowded calendars and the duty to decide the many appeals of which it does have jurisdiction. Nor does this practice assist the client, who needs, and is entitled to, a final decision as speedily as reasonably possible.

For lack of finality, and for lack of a Rule 54(b) certificate, these appeals, brought by the various appellants, must be dismissed.

This appeal involves six different cases in the United States District Court for the Southern District of Florida. The record on appeal consists of six volumes. In each of the six cases the plaintiffs are allegedly the consignees of cargo carried on board the M/V “LEM-ONCORE” from Australia and discharged in a non-designated port in Florida.

In each case the defendant-third party plaintiff, Refrigerated Express Line (REL), was the time charterer of the vessel. In each case Central Cold Storage (CCS), a Florida corporation, is named as one of several defendants. In five of the six eases Harrington, a Florida corporation engaged in stevedoring, is named as one of several defendants.

In each case plaintiffs allege a contract of carriage with REL and a deviation by REL in discharging the plaintiffs’ cargo at ports not designated in the bill of lading, resulting in damage to plaintiffs by the cargo becoming lost, stolen, strayed, or otherwise damaged. None of the acts complained of by any of the plaintiffs are alleged to have occurred on navigable waters.

In four of the six cases the amended complaints were filed with leave to the plaintiffs to file second amended complaints and in each of them the plaintiffs abandoned their complaints against CCS and Harrington (Vols. I, III, IV, V). In the remaining two cases, the plaintiff Borthwick (Vol. VI) filed a second amended complaint against Harrington and CCS which was dismissed with prejudice (Vol. VI, pp. 58-59). No appeal was taken by Borthwick from that dismissal.

In Bajalad a second amended complaint was filed (Vol. II), which defendants CCS and Harrington moved to dismiss for failure to state a claim upon which relief could be granted. The District Court granted this motion, dismissing Bajalad’s complaint as to two but not all the parties.

In each of the six volumes involved, defendant REL filed third party complaints against Harrington and CCS. REL’s appeal is based on the District Court’s order of dismissal with prejudice of REL’s third party complaints against Harrington and CCS (Vol. I, p. 106).

As to plaintiff-appellant Austracan, the District Court dismissed an amended complaint as to two of six defendants, with leave to file second amended complaints within ten days. The second amended complaints were never filed. Regarding this plaintiff, no final judgment was ever entered, there was no F. R.Civ.P. 54(b) certificate filed, nor was a 28 U.S.C. § 1292(b) certificate issued.

Although motions to dismiss have been denied under our administrative procedures, the Court of Appeals is not precluded from a further inquiry as to its jurisdiction and is not relieved of the duty to dismiss the appeal if it appears there is no jurisdiction, Cook v. Eizenman, supra.

Plaintiff-appellant Austracan’s amended complaint was dismissed by the District Court and they were given ten days to file a second amended complaint (Vol. I, pp. 62-64). They never did so, but instead take their appeal from “. . . that certain final order entered herein and filed on the 24 day of April, 1973” (Vol. I, p. 110). The District Court never entered judgment, and neither the order of February 21 nor the order of April 24 contained a Rule 54(b) certificate.

Accordingly, the order appealed from is not final as to Austracan, and this Court is without jurisdiction of its appeal.

Some relevant cases are:

1. A judgment or order is final for purposes of appealability when it ends the litigation on the merits and comprehends only execution of the court’s decree, Johnson v. Combs, 5 Cir., 1972, 471 F.2d 84.
2. District Court’s order dismissing allegations of Florida statutory and common law fraud as to only four of the defendants on the basis that they could not be properly served with process on any claim other than that arising under the Securities Act (Code section omitted) was not final and where there had been no attempt to comply with requirements of statute or Rule 54(b) appeal would be dismissed for want of jurisdiction, Ratner v. Scientific Resources Corp., 5 Cir., 1972, 462 F.2d 616.
3. In railroad’s action to recover alleged undercharges on interstate shipment of sugar cane, order striking defendant’s basic defense, granting leave to both parties to amend pleadings generally, was not a final appealable decision, United States Sugar Corp. v. Atlantic Coast Line R. Co., 5 Cir., 1952, 196 F.2d 1015.
4. Appeal dismissed for lack of jurisdiction where District Court adjudicated fewer than all the claims as to all the parties in the absence of an express determination that there was no just reason for delay. “Absent an express determination by the trial court that there is no just reason for delay, its judgment in the instant case lacks the requisite finality to be an appealable decision within the meaning of 28 U.S.C. § 12.91.” Appeal dismissed, Bailey v. Rowan Drilling Company, supra.
5. Judgment lacked requisite finality to be appealable where it adjudicated fewer than all the claims and liabilities of fewer than all the parties and where there was .no entry of final judgment by the district court upon an express determination that there is no just reason for delay as required by F.R.Civ.P. 54(b), International Harvester Credit Corp. v. Belding, supra.

Likewise, invocation of admiralty jurisdiction is of no help. Neither the February 21 nor the April 20 order was a final one under 28 U.S.C., § 1291, nor was either an interlocutory admiralty decree “determining the rights and liabilities of the parties” under 28 U.S. C. § 1292(a) (3). In fact, the District Court denied the plaintiffs’ motion to amend the order of April 24 to include a 28 U.S.C., § 1292(b) certificate to permit an interlocutory appeal (Vol. I, p. 107).

Denial of a motion to dismiss for lack of admiralty jurisdiction does not decide the parties’ rights so as to be within the statute [28 U.S.C., § 1292(a) (3)] authorizing interlocutory appeals in admiralty from orders that determined rights and liabilities of parties, Jack Neilson, Inc. v. Tug Peggy, 5 Cir., 1970, 428 F.2d 54; Hadjipateras v. Pacifica, 5 Cir., 1961, 290 F.2d 697.

The statute authorizing appeals from interlocutory orders regarding injunctions and from interlocutory decrees in admiralty concerning rights and liabilities of parties has general application only to interlocutory injunctions in equity, not in admiralty, and gives a right of appeal in admiralty only when the interlocutory decree determines the rights and liabilities of the parties, Postal S.S. Co., Inc. v. International Freighting Corp., Inc., 5 Cir., 1943, 133 F.2d 10. Section 1292 as a whole indicates that Congress intended appeals from interlocutory orders to be strictly limited to the usual situations wherein such appeals are expressly authorized, Schoenamsgruber v. Hamburg American Line, 294 U.S. 454, 55 S.Ct. 475, 79 L.Ed. 989 (1935).

Plaintiff Bajalad filed suit against Maritime Fruit Carriers, REL, Harrington, and CCS (Vol. II). Maritime, Harrington, and CCS’ motions to dismiss were granted, and a second amended complaint was filed as to Harrington and CCS. No second amended complaint was filed as to Maritime Fruit Carriers. This second amended complaint was dismissed on motions of Harrington and CCS. It is from this order dismissing the second amended complaint against Harrington and CCS that Bajalad appeals- (Vol. II, p. 97).

Counsel for Bajalad devote their entire brief to the subject matter jurisdiction of the District Court and do not address the question of jurisdiction in the Court of Appeals. However, their appeal is apparently premature. There was no F.R.Civ.P. 54(b) express determination of no just reason for delay and express direction for the entry of judgment, nor was there a 28 U.S.C., § 1292(b) certificate filed. Although Maritime Fruit Carriers was dropped as a defendant, and CCS and Harrington were dismissed, REL, one of the original defendants, was still left. An order dismissing some but not all of the parties defendant is not a “final judgment” under the statute giving the Court of Appeals jurisdiction of appeals from all final decisions of district courts, McCormick v. Landrieu, 5 Cir., 1972, 469 F.2d 673.

In each of the six cases under consideration, EEL is a defendant and filed third party complaints against Harrington and CCS. Harrington’s and CCS’ motions to dismiss the third party com-' plaint for lack of subject matter jurisdiction were granted (Vol. I, p. 106), but EEL’s motion for this order to include a 28 U.S.C., § 1292(b) certificate was denied. It is the order dismissing the third party complaint, which also did not contain a Eule 54(b) certificate, that EEL appeals.

Dismissal of a third party complaint for lack of jurisdiction is not appealable in the absence of a determination by the District Court that there was (1) no just reason for delay, and (2) in absence of express direction for entry of judgment, as provided in F.E. Civ.P. 54(b), Coulter v. Sears, Roebuck and Co., 5 Cir., 1969, 411 F.2d 1189.

Similarly, dismissal of a third party complaint in admiralty for lack of admiralty jurisdiction does not fall within the limited class of interlocutory appeals under 28 U.S.C., § 1292(a)(3), Wallin v. Keegan, 5 Cir., 1970, 426 F.2d 1313. For these reasons it appears that there has not yet been issued a final appealable order that would give this Court jurisdiction and that REL’s appeal should be dismissed.

The appeals must be dismissed.

We deliberately refrain from retaining jurisdiction pending the filing of a Rule 54(b) certificate, a procedure we used in Anderson v. Robinson, supra. In our opinion, the only way to dispose intelligently of these cases would be after a final -judgment, upon which this Court, if there should be an appeal, can act in the light of the full and final picture.

Appeals dismissed.