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

text:
    The PEOPLE OF SAIPAN, By and Through Herman Q. GUERRERO, et al., Plaintiffs and Appellants, v. UNITED STATES DEPARTMENT OF INTERIOR et al., Governmental Defendants and Appellees, and Continental Airlines, Inc., a Nevada corporation, Corporate Defendant and Appellee.
    No. 73-1769.
    United States Court of Appeals, Ninth Circuit.
    July 16, 1974.

      Trask, Circuit Judge, filed a concurring opinion.

      Samuel Withers, III, Edward C. King (argued), Daniel H. MacMeekin, Micronesian Legal Services Corp., Saipan, Mariana Islands, for plaintiffs and appellants ; Richard A. Falk, Princeton University, Princeton, N. J., of counsel on the brief.
    Charles W. Kenady (argued) of Cooper, White & Cooper, San Francisco, Cal., for defendant and appellee Continental Air Lines.
    Carlos Salii, Asst. Atty. Gen. (argued), Saipan, Mariana Islands,
    Jacques B. Gelin, Atty., Dept, of Justice, Washington D. C., for defendants and appellees.
    Before TRASK and GOODWIN, Circuit Judges, and EAST, District Judge.

       The Honorable William G. East, Senior United gon, sitting by designation.

   ALFRED T. GOODWIN, Circuit Judge:

Plaintiffs, citizens of the Trust Territory of the Pacific Islands (known also as Micronesia), sued in the district court to challenge the execution by the High Commissioner of the Trust Territory of a lease permitting Continental Airlines to construct and operate a hotel on public land adjacent to Micro Beach, Saipan. Plaintiffs appeal a judgment of dismissal.

The district court held that the Trust Territory government is not a federal agency subject to judicial review under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, or the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and that the Ti usteeship Agreement does not vest plaintiffs with individual legal rights which they can assert in a federal court. The court’s opinion is published at 356 F.Supp. 645 (D.Haw.1973). We affirm the judgment, but, for the reasons set out below, we do so without prejudice to the right of the plaintiffs to refile in the district court should the High Court of the Trust Territory deny that it has jurisdiction to review the legality of the actions of the High Commissioner.

The facts' are set out in detail in the district court opinion. In brief,’ Continental applied in 1970 to the Trust Territory government for permission to build a hotel on public land adjacent to Micro Beach, Saipan, an important historical, cultural, and recreational site for the people of the islands. Pursuant to States District Judge for the District of Ore-the requirements of the Trust Territory-Code, 67 T.T.C. § 53, Continental’s application was submitted to the Mariana Islands District Land Advisory Board for its consideration. In spite of the Board’s unanimous recommendation that the area be reserved for public park purposes, the District Administrator of the Marianas District recommended approval of a lease. The High Commissioner himself executed the lease on behalf of the Trust Territory government. An officer appointed by the President of the United States with the advice and consent of the Senate (48 U.S.C. § 1681a), the High Commissioner is the highest official in the executive branch of the Trust Territory government.

Following its execution in 1972, the lease was opposed by virtually every official body elected by the people of Sai-pan. Indeed, the record in this case shows that the High Commissioner’s decision was officially supported only by the United States Department of the Interior, the Trust Territory Attorney General (a United States citizen), and the District Administrator of the Marianas District (appointed by the High Commissioner, serving directly under him, and subject to removal by him).

Later in 1972, an action against some of the parties here was commenced before the High Court of the Trust Territory to enjoin construction of the hotel. The High Court, while denying defend, ants’ motions to dismiss on certain non-federal causes of action, held that NEPA did not apply to actions of the Trust Territory government, as plaintiffs had contended. Soon afterward, the plaintiffs filed this action in the United States District Court for the District of Hawaii, and the High Court thereupon stayed proceedings before it pending the outcome of this action.

I. JUDICIAL REVIEW UNDER THE APA OR NEPA

The district court, relying upon its earlier decision in People of Enewetak v. Laird, 353 F.Supp. 811 (D.Haw.1973), again held that NEPA applies to federal agencies operating in the Trust Territory. It also held that approval of the lease agreement was “major” action, within the meaning of NEPA. However, although the district court rejected the defendants’ contention that the Trust Territory government is a foreign government immune to suits in United States courts, it accepted the defendants’ alternate contention that the local government is a government of a United States territory or possession, within the meaning of the exclusionary clause in the Administrative Procedure Act, 5 U.S.C. § 701(b)(1)(C) Having concluded that the Trust Territory government was exempt from review under the APA, the district court reasoned that the same standards on the scope of review should be applied to NEPA, and concluded that the action of the High Commissioner in approving and executing the lease agreement was not “federal” action covered by the National Environmental Policy Act, 42 U.S.C. § 4332

We affirm these conclusions of the district court. See 356 F.Supp. at 649-661.(i) **

We recognize, as did the district court, that several decisions have held governments of United States territories to be agencies of the federal government. However, these cases all involved a determination of agency for such purposes as income taxation, Bell v. Commissioner, 278 F.2d 100 (4th Cir. 1960), or the applicability of the Portal-to-Portal Act of 1947, Kam Koon Wan v. E. E. Black, Ltd., 188 F.2d 558 (9th Cir.), cert. denied, 342 U.S. 826, 72 S.Ct. 49, 96 L.Ed. 625 (1951). Plaintiffs have not cited and we have not found a case applying APA judicial review provisions to the Trust Territory or applying even similar review standards to the civil government of any territory or possession.

We also recognize, again as did the district court, that the APA exclusionary clause excludes only “the governments of the territories or possessions of the United States,” 5 U.S.C. § 701(b)(1)(C), and that the Trust Territory is not a territory or possession, because technically the United States is a trustee rather than a sovereign. We agree with the district court that this distinction is immaterial, however, because the intent of Congress was to exclude from APA review all governments of this general type created pursuant to the authority of Congress.

Plaintiffs have cited several judicial decisions, a regulation, and one Tax Court decision stating that the Trust Territory is not a territory or possession of the United States. However, the holding of the judicial decisions is limited to the applicability of the Federal Tort Claims Act (see, e. g., Callas v. United States, 253 F.2d 838 (2d Cir.), cert. denied, 357 U.S. 936, 78 S.Ct. 1384, 2 L.Ed.2d 1550 (1958); Brunell v. United States, 77 F.Supp. 68 (S.D.N.Y. 1948)), and the regulation and the Tax Court decision both involve federal income taxation. See Treas.Reg. § 1.-931-l(a) (1); Richard W. Benfer, 45 T.C. 277 (1965). We do not read these decisions and the regulation to be inconsistent with our conclusion that Congress intended the government of the Trust Territory, like that of territories and possessions, to be immune from judicial review under the APA.

Finally, we note that the Trusteeship Agreement, in which the United Nations designated the United States to be the administering authority of the Trust Territory, states that the United States shall “promote the development of the inhabitants of the trust territory toward self-government * * Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, art. 6(1), 61 Stat. 3301, 3302, T.I.A.S. No. 1665. This clear statement of intent on the part of the United Nations to foster self-government in the Trust Territory constrains us not to hold that the actions of the local government are reviewable in the same manner as the actions of domestic federal administrative agencies, in a federal district court several thousand miles from the islands.

For these reasons and for those expressed in the opinion of the district court, we affirm the conclusion of that court that neither the Trust Territory government nor the High Commissioner alone is a “federal agency” as that term is used in making actions reviewable under'the APA or NEPA.

II. TRUSTEESHIP AGREEMENT

Plaintiffs also asserted below and assert here that the action of the governmental defendants in leasing public land to an American corporation against the expressed opposition of the elected representatives of the people of Saipan and without compliance with NEPA is a violation of their duties under the Trusteeship Agreement. The district court rejected this argument, holding that' the Trusteeship Agreement did not vest the citizens of the Trust Territory with rights which they can assert in a district court.

We cannot accept the full implications of this holding. We do not dispute the district court’s conclusion that compliance with NEPA was not required by the Trusteeship Agreement. We do, however, disagree with the holding insofar as it .can be read to say that the Trusteeship Agreement does not create for the islanders sübstantive rights that are judicially enforceable.

The district court relied for its conclusion on language in Pauling v. McElroy, 164 F.Supp. 390, 393 (D.D.C. 1958), aff’d on other grounds, 107 U.S.App.D.C. 372, 278 F.2d 252, cert denied, 364 U.S. 835, 81 S.Ct. 61, 5 L.Ed.2d 60 (1960). Pauling concerned an attempt to enjoin United States officials from proceeding with nuclear tests in the Marshall Islands, an area within the trusteeship. The controversy there, unlike the one here, involved the Trusteeship Agreement’s grant of broad discretion to use the area for military purposes. See Trusteeship Agreement arts. 1, 5, 13, 61 Stat. 3301, 3302, 3304. We do not find Pauling to support the defendants’ contention here that the plaintiffs cannot invoke the provisions of the Trusteeship Agreement to challenge the High Commissioner’s power to lease local public land for commercial exploitation by private developers.

The right of Rhodesian and American citizens to maintain an action in the courts of the United States seeking enforcement of the United Nations embargo against Rhodesia was recently recognized in Diggs v. Shultz, 152 U.S.App.D.C. 313, 470 F.2d 461 (1972), cert denied, 411 U.S. 931, 93 S.Ct. 1897, 36 L.Ed.2d 390 (1973). On the merits, the court, denied specific relief because of Congressional action which was held to have abrogated the United Nations Security Council Resolution, but the right to seek enforcement in federal court was firmly established. That decision, if correct, suggests that the islanders here can enforce their treaty rights, if need be in federal court.

Article 73 of the United Nations Charter, 59 Stat. 1031, 1048, T.S. No. 993 (1945), which discusses non-self-governing territories generally, provides :

“Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end:
“a. To ensure, with due respect for the culture of the peoples concerned, their political, economic, social, - and educational advancement, their just treatment, and their protections against abuses * * * .”

See also United Nations Charter art. 76, describing the basic objectives of the trusteeship system. Although the plaintiffs have argued that these articles of the United Nations Charter, standing alone, create affirmative and judicially enforceable obligations, we assume without deciding that they do not.

However, pursuant to Article 79 of the Charter, the general principles governing the administration of trust territories were covered in more detail in a specific trusteeship agreement for the Trust Territory of the Pacific Islands. See generally L. Goodrich, E. Hambro & A. Simons, Charter of the United Nations : Commentary & Documents 502 (3rd ed. 1969). Specifically, Article 6 of the Trusteeship Agreement requires the United States to “promote the economic advancement and self-sufficiency of the inhabitants, and to this end * * * regulate the use of natural resources” and to “protect the inhabitants against the loss of their lands and resources * * *.”

Defendants contend, though, that provisions of the Trusteeship Agreement, including Article 6, can be enforced only before the Security Council of the United Nations. We disagree, concluding that the Trusteeship Agreement can be a source of rights enforceable by an individual litigant in a domestic court of law.

The extent to which an international agreement establishes affirmative and judicially enforceable obligations without implementing legislation must be determined in each case by reference to many contextual factors: the purposes of the treaty and the objectives of its creators, the existence of domestic procedures and institutions appropriate for direct implementation, the availability and feasibility of alternative enforcement methods, and the immediate and long-range social consequences of self- or non-self-execution. See generally M. McDougal, H. Lasswell, & J. Miller, The Interpretation of Agreements and World Public Order; Principles of Content and Procedure passim (1967).

The preponderance of features in this Trusteeship Agreement suggests the intention to establish direct, affirmative, and judicially enforceable rights. The issue involves the local economy and environment, not security; the concern with natural resources and the concern with political development are explicit in the agreement and are general international concerns as well; the enforcement of these rights requires little legal or administrative innovation in the domestic fora; and the alternative forum, the Security Council, would present to the plaintiffs obstacles so great as to make their rights virtually unenforceable.

Moreover, the Trusteeship Agreement constitutes the plaintiffs’ basic constitutional document (see Parry, The Legal Nature of Trusteeship Agreements, 27 Brit. Year Book Int’l L. 164, 182-84 (1950), excerpted in 1 M. White-man, Digest of International Law 893 (1963), and is codified into the law of the Trust Territory, 1 T.T.C. § 101(1). For all these reasons, we believe that the rights asserted by the plaintiffs are judicially enforceable. However, we see no reason why they could not and should not have been enforced in the High Court of the Trust Territory. The district court found that:

“ * * * The lease approval was a ‘local’ decision of the High Commissioner acting within the scope of his duties as chief executive of the Trust Territory Government. The officials of the Interior Department did not negotiate, counsel, advise or participate in the decision. Nor was the lease ever sent to the Department for approval or concurrence in any form * *» 356 F.Supp. at 657 n.28.

Surely, the judicial branch of the Trust Territory government has the authority to determine whether or not the action of its chief executive complies with a provision in its own constitutional document.

We recognize that the Trusteeship Agreement purports to obligate the United States, not the individual who happens to be High Commissioner. Nonetheless, because of the process of his appointment, the High Commissioner has the responsibility to act in a manner consistent with the duties assumed by the United States itself in the Trusteeship Agreement.

Thus, although we hold that the Trusteeship Agreement is a source of individual legal rights, we also hold that, in a case involving actions by the High Commissioner within the scope of his duties as chief executive, these rights are not initially enforceable in United States courts. Rather, upon principles of comity, they should be asserted before the High Court of the Trust Territory.

Admittedly, the substantive rights guaranteed through the Trusteeship Agreement are not precisely defined. However, we do not believe that the agreement is too vague for judicial enforcement. Its language is no more general than such terms as “due process of law,” “seaworthiness,” “equal protection of the law,” “good faith,” or “restraint of trade,” which courts interpret every day. Moreover, the High Court can look for guidance to its own recently enacted environmental quality and protection act, T.T.Pub.L. No. 4C-78 of Apr. 14, 1972, codified at 68 T.T.C. §§ 501-509, to the relevant principles of international law and resource use which have achieved a substantial degree of codification and consensus (see Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964)), and to the general direction, although not necessarily the specific provisions, of NEPA.

Cf. Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F.Supp. 252 (D.D.C.1972). These sources should provide a sufficiently definite standard against which to test the High Commissioner’s approval of a 50-year lease of unique public lands to an American corporation, allegedly in disregard of the protests of the islands’ elected officials and without a showing of consideration of cultural and environmental factors.

Since the High Commissioner claims to have been acting pursuant to local statutes when he approved the lease to Continental, if the High Court finds that his action violated provisions of the Trusteeship Agreement, that court may have to declare these statutes void either on their face or void as applied by the High Commissioner. The order of the United States Department of the Interi- or which established the structure of the Trust Territory government forbids the legislative branch of the Trust Territory government from enacting any legislation inconsistent with “treaties or international agreements of the United States * * Dept. of Interior Order No. 2918, pt. III, § 2(a) (1968). Because the Trusteeship Agreement is an international agreement of the United States, local legislation inconsistent with it must fall.

• Although the High Court has held that it lacks jurisdiction over an agency of the United States or its officers in the Trust Territory (see Schulz v. Peace Corps, 4 T.T.R. 428 (1969)), the Secretary of the Interior assures us that his department did not participate in any way in the decision to grant a lease to Continental, and, hence, that Schulz will not bar the High Court from hearing and deciding this case. If, in the proceedings before the High Court, it should appear that the actions of the High Commissioner cannot be effectively reviewed and tested against the duties assumed by the United States in the Trusteeship Agreement, either because his actions were controlled by a directive or regulation of the Secretary of the Interior which the High Court considers nonreviewable or because the High Court does not agree that it has the power to review the High Commissioner’s actions against the standards established in the Trusteeship Agreement, then the plaintiffs may refile this action in the United States District Court for the District of Hawaii.

We recognize that the High Court has said earlier that the Trusteeship Agreement does not create a trust capable of enforcement through the courts. See Alig v. Trust Territory of the Pacific Islands, 3 T.T.R. 603, 615-16 (1967). We also recognize that, unless the High Commissioner acted unconstitutionally or in violation of the law, the suit against him might not be cognizable in the Trial Division of the High Court because of the doctrine of soverign immunity. See also 6 T.T.C. § 252(2). Nonetheless, the High Court is free to re-evaluate its position with regard to the enforceability of the provisions of the Trusteeship Agreement under Diggs v. Shultz, supra. It may conclude, as we did, that as the judicial branch of a political entity possessing many of the attributes of an independent nation, that court has the power to hear a claim that the islands’ chief executive officer has violated terms of the Trusteeship Agreement. If the High Court reaches this conclusion, the doctrine of sovereign immunity would provide no basis for refusing to hear the action. See Malone v. Bowdoin, 369 U.S. 643, 647, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-690, 701-702, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949).

We hold, then, that the plaintiffs must initially pursue their remedies in the local court. If our assumption that the High Court has the power to review the decision of the High Commissioner proves to be invalid, then the federal district court must assume jurisdiction of this case. We refuse to leave the plaintiffs without a forum which can hear their claim that the High Commissioner has violated the duties assumed by the United States in the Trusteeship Agreement.

Because it is possible that we may see this case again, we comment briefly on one issue raised by the defendants. Continental contends that it has acquired some equities by proceeding with the construction of its hotel while its right to do so is being litigated. Unless we misread the argument, Continental seems to be asserting that the damage has been done, and that it is too late for courts to remedy it. We note that Continental initiated bulldozing activities at the Micro Beach without notice and while the High Commissioner supposedly was giving further consideration to the project. The plaintiffs’ action was commenced in the High Court almost immediately afterward, and in federal court within one and one-half months. We caution Continental that:

“ * * * [A] fter a defendant has been notified of the pendency of a suit seeking an injunction against him, even though a temporary injunction be not granted, he acts at his peril and subject to the power of the court to restore the status, wholly irrespective of the merits as they may be ultimately decided * * Jones v. S. E. C., 298 U.S. 1, 17, 56 S.Ct. 654, 658, 80 L.Ed. 1015 (1936), quoted in Nat’l Forest Preservation Group v. Butz, 485 F.2d 408, 411 (9th Cir. 1973).

The judgment of dismissal is affirmed as modified.

TRASK, Circuit Judge

(concurring):

I join in the decision of the majority but follow a different course to the common conclusion.

First of all, it appears clear to me that the Charter of the United Nations is not self-executing and does not in and of itself create rights which are justicia-ble between individual litigants. Although under Article VI of the Constitution treaties are part of the supreme law of the land, it was early held that to be immediately binding upon our courts a treaty must be self-executing. Chief Justice Marshall enunciated this principle in Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314, 7 L.Ed. 415 (1829):

“Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract — when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the court.”

Unless a treaty is self-executing, in order to be cognizable before the courts it must be implemented by legislation. Otherwise it constitutes a compact between sovereign and independent nations dependent for its recognition and enforcement upon the honor and the continuing self-interest of the parties to it. If, however, the treaty contains language which confers rights or obligations on the citizenry of the compacting nations then, upon ratification, it becomes a part of the law of the land under Article VI. In Head Money Cases, 112 U.S. 580, 5 S.Ct. 247, 28 L.Ed. 798 (1884), the Court said:

“A treaty, then, is the law of the land as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute.” 112 U.S. at 598-599, 5 S.Ct. at 254.

I find nothing in a reading of the Charter and nothing has been called to my attention which would persuade me to believe that the Charter itself creates individual rights which may be enforced in the courts. There is little definitive case law elucidating the issue of self-implementation vel non. The appellants have referred to some of the cases in which reference to the Charter has been made.

Those cases are of questionable precedential value. Looking in the opposite direction we find cases that are subject to much the same criticism. The only-case which straightforwardly holds in broad terms that the Charter is not self-executing is Pauling v. McElroy, 164 F.Supp. 390 (D.D.C.1958), aff’d per curiam on other grounds, 101 U.S.App. D.C. 372, 278 F.2d 252, cert. denied, 364 U.S. 835, 81 S.Ct. 61, 5 L.Ed.2d 60 (1960). The District Court in Pauling stated:

“The provisions of the Charter of the United Nations, the Trusteeship Agreement for the Trust Territory of the Pacific Islands, and the international law principle of freedom of the seas relied on by plaintiffs are not self-executing and do not vest any of the plaintiffs with individual legal rights which they may assert in this Court. The claimed violations of such international obligations and principles may be asserted only by diplomatic negotiations between the sov-ereignties concerned.” 164 F.Supp. 393.

In Hitai v. Immigration & Naturalization Service, 343 F.2d 466, 468 (2d Cir. 1965), the court held that Article 55 of the Charter was not self-executing. Both from the standpoint of the inherent nature of treaty obligations and what appears to me to be a plain reading of the language of the Charter, I would hold it to be a compact between sovereign nations neither intending to impart justiciable rights to individuals nor implicitly doing so.

This position is fortified, it would seem, by the very fact that the Charter provided for a system of trusteeship. Chapter XI, which contains Article 73, is a mutual declaration of the members of their responsibilities for the administration of territories whose peoples have not yet attained a complete competence of self-government. Chapter XII and Chapter XIII then provide for the International Trusteeship System for the administration and supervision of those territories. Under those Articles a Trusteeship Agreement was executed between the Security Council of the United Nations and the United States, as administering authority effective July 18, 1947, for the Territory of the Pacific Islands. It provided the United States with the authority to enact a comprehensive system of government under Article 6.

Congress has empowered the President with authority for the civil administration of the Territory until Congress itself should further establish a system of government. 48 U.S.C. § 1681. Under this statutory basis, a series of Executive orders delegated responsibility for government to the Department of the Interior, see Exec. Order No. 11,021, 3 C.F.R. 600 (1959-63 Comp.), 48 U.S.C. § 1681, and that Department eventually promulgated a single document combining previous orders into one basic order for the Government of the Trust Territory of the Pacific Islands. Dept. of Interior Order No. 2918, Dec. 27, 1968, 34 Fed.Reg. 157 (1969). This consolidated order constituted a mini-organic act creating legislative, executive, and judicial branches of the Government with a Congress, a High Commissioner as the Chief executive, and a High Court of the Trust Territory with a Chief Justice and Associate Justices appointed by the Secretary of the Interior.

I agree with the federal appellees and with the court in Pauling v. McElroy, supra, that the Trusteeship Agreement is not self-executing. Yet, a series of actions all ultimately founded upon congressional authority have so executed the Agreement that its provisions may now properly be regarded as judicially enforceable. Thus, the Agreement was approved by the President pursuant to a joint resolution of Congress, see note 5 supra, and implemented by Executive orders promulgated pursuant to congressional authority, 48 U.S.C. § 1681. Finally, the Trust Territory Government, created by the Department of the Interior, has declared the Agreement “to be in full force and to have the effect of law in the Trust Territory.” 1 T.T.C. § 101(1).

The Trust Territory Code provides:

“The Trial Division of the High Court shall have original jurisdiction to try all causes, civil and criminal, including probate, admiralty, and maritime matters and the adjudication of title to land or any interest therein.” 5 T.T. C. § 53.

All decisions rendered in such matters are subject to review by the Appellate Division under 55 T.T.C. § 54(1)(a). It thus appears to me as it does to the majority that jurisdiction does lie with the High Court to determine the validity of the lease in accordance with its own law and any other law affecting the lease or the lands to which the lease is applicable. Based upon considerations of comity, I agree that this cause should initially be addressed to the High Court.

      . The High Court concluded that the Trust Territory government was not a “federal agency” and that the nigh Commissioner, acting as its chief executive officer, was not subject to NEPA. The court relied primarily upon the prior determination of the Secretary of the Interior that “territorial governments, under the jurisdiction of the Secretary _ of the Interior, are not agencies or instrumentalities of the executive branch of the Federal Government * * * [and] that the territorial governments are not organized entities of the Department of the Interior.” Dept. Manual of Dept, of Interi- or 150.1.4.

      . “For the purpose of this chapter—
      “(1) ‘agency’ means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include— “ s}: * *
      “(C) the governments of the territories or possessions of the United States * * *.” 5 U.S.C. § 701(b).

      . “The Congress authorizes and directs that, to the fullest extent possible: * * * all agencies of the Federal Government shall
      !}S V “(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—

        (i) the environmental impact of the proposed action,
      (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
      (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
      (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented * * 42 U.S.C. § 4332.

      . See also Vermilya-Brown Co. v. Connell, 335 U.S. 377, 69 S.Ct. 140, 93 L.Ed. 76 (1948), in support of the conclusion that NEPA applies to federal agencies operating in the Trust Territory.

      . But see Porter v. United States, 496 F.2d 583 (Ct.Cl.1974), holding that the Trust Territory government was not an agency of the United States for the purpose of asserting jurisdiction against the United States for an alleged breach of a contract negotiated by ' officials of the Trust Territory government.

      . Article 12 of the Trusteeship Agreement empowers the United States to '“enact such legislation as may be necessary to place the provisions of this agreement in effect in the trust' territory.” Our conclusion that the actions of the Trust Territory government are not subject to NEPA is an equivalent way of saying that Congress has not, pursuant to Article 12, legislated to make NEPA applicable to the Trust Territory government. Hence, in approving the lease agreement, the High Commissioner was under no obligation to comply with NEPA. This is the same conclusion as that readied by the High Court. See note 1, supra.

      . See Note, 14 Va.J.Int’l L. 185 (1973), which comments upon Diggs v. Shultz.

      . “The terms of trusteeship for each territory to be placed under the trusteeship system, including any alteration or amendment, shall be agreed upon by the states directly concerned, including the mandatory power in the case of territories held under mandate by a Member of the United Nations, and shall be approved as provided for in Articles 83 and 85.” United Nations Charter art. 79, 59 Stat. 1031, 1049.

      . Unlike the other ten trusteeships set up after World War II, pursuant to agreements between the United Nations and various nations, the Trust Territory was designated as a “strategic” trust. Trusteeship Agreement art. 1, 61 Stat. 3301. See 1 M. Whiteman, Digest of International Law 766. This designation results in the United States being responsible to the Security Council for the administration of the Trust Territory— where the United States possesses veto power (United Nations Charter art. 27, 59 Stat. 1041) — rather than to the General Assembly. United Nations Charter art. 83(1), 59 Stat. 1050.

      . Article 12 of the Trusteeship Agreement of 1947 authorized the United States to enact such legislation as may be necessary to implement the agreement. 61 Stat. 3304. At first, President Truman gave the Navy administrative responsibility for the islands. Exec. Order No. 9875, 12 Fed.Reg. 4837 (1947), 3 C.F.R. 658 (1943-48 Comp.). In 1951 administration of the islands was transferred to the Department of the Interior. Exec. Order No. 10265, 16 Fed.Reg. 6419 (1951), 3 C.F.R. 766 (1949-53 Comp.). During the next two years, responsibility for administration of parts of the Trust Territory was redelegated back to the Secretary of the Navy. Exec. Order No. 10408, 17 Fed. Reg. 10277 (1952), 3 C.F.R. 906 (1949-53 Comp.); Exec. Order No. 10470, 18 Fed. Reg. 4231 (1953), 3 C.F.R. 951 (1949-53 Comp.). Not until 1954 did Congress begin to legislate to implement the Trusteeship Agreement, and then it merely stated that, until it. provided further for its government, all governmental authority in the Trust Territory rested with the President. Act of June 30, 1954, ch. 423, § 1, 68 Stat. 330, as amended, 48 U.S.C. § 1681(a). Finally, in 1962 President Kennedy redelegated his authority for civil administration of the entire Trust Territory to the Secretary of the Interior. Exec. Order No. 11021, 27 Fed.Reg. 4409 (1962), 3 C.F.R. 600 (1959-63 Comp.). The Secretary of the Interior, in turn, delegated executive authority for the Trust Territory to the High Commissioner:
      “The executive authority of the Government of the Trust Territory, and the responsibility for carrying out the international obligations undertaken by the United Nations with respect to the Trust Territory, shall be vested in a High Commissioner of the Trust Territory and shall be exercised and discharged under the supervision and direction of the Secretary.” Dept, of Interior Order No. 2918, pt. II, § 1, 34 Fed.Reg. 157 (1969).
      Meanwhile, in 1967 Congress provided that this High Commissioner shall be appointed by the President and confirmed by the Senate. Act of May 10, 1967, Pub.L.No.90-16 § 2, 81 Stat. 15, codified, 48 U.S.C. § 1681a. See generally Note, A Macrostudy of Micronesia : The Ending of a Trusteeship, 18 N. Y.L.F. 139 (1972).
      Thus, as the district court here observed, the High Commissioner’s authority “does not come from the people of the Trust Territory, nor do they have any method of removing him when dissatisfied with his actions or policies.” 356 F.Supp. at 655. See also So-cieta A.B.C. v. Fontana & Della Rocca, [1955] I.L.R. 76 (Court of Cassation, United Chambers, Italy 1954), quoted at 1 M. Whiteman, Digest of International Law 870-71, which held that the Italian Trusteeship Administrator for Somaliland derived his authority from the Italian state and, hence, was an organ of that state.

      . “Appellees suggest that the prospects of significant relief by means of the embargo are so slight that this relationship of intended benefit is too tenuous to support standing. But this strikes us as tantamount to saying that because the performance of the United Nations is not always equal to its promise, the commitments of a member may be disregarded without having to respond in court to a charge of treaty violation. It may be that the particular economic sanctions invoked against Southern Rhodesia in this instance will fall short of their goal, and that appellants will ultimately reap no benefit from them. But, to persons situated as are api>ellants, the United Nations action constitutes the only hope; and they are personally aggrieved and injured by the dereliction of any member state which weakens the capacity of the world organization to make its policies meaningful.” Diggs v. Shultz, 470 F.2d at 465.

      . “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const, art. VI.

      . The decision in Foster was overruled by United States v. Percheman, 32 U.S. (7 Pet.) 51, 8 L.Ed. 604 (1883), in an opinion also written by Chief Justice Marshall when new facts were brought to bear upon the controversy, but the legal principle announced in Foster was not undermined. See Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 10, 57 S.Ct. 100, 81 L.Ed. 5 (1936); Head Money Cases, 112 U.S. 580, 598-599, 5 S.Ct. 247, 28 L.Ed. 798 (1884); L. Henkin, Foreign Affairs and the Constitution 156-58 (1972); Comment, Criteria for Self-Executing Treaties, 1968 U.Ill.L.F. 238, 239.

      . The fact that a treaty was ratified by the President of the United States upon the advice and consent of two-thirds of the Senate, as was the United Nations Charter (Charter of the United Nations, June 26, 1945, 59 Stat. 1031, 1213, T.S.No.993 (effective Oct. 24, 1945)), makes it a commitment of the nation but does not necessarily impart rights and obligations to individual citizens.

      . In concurring opinions in Oyama v. California, 332 U.S. 633, 649-650, 673, 68 S.Ct. 269, 92 L.Ed. 249 (1948), Justices Black, Douglas, and Murphy intimate that Articles 55 and 56 of the Charter support a position proscribing racial discrimination; a dissenting opinion in Hurd v. Hodge, 82 U.S.App.D.C. 180, 162 F.2d 233, 245 (1947), rev’d, 334 U.S. 24, 68 S.Ct. 847, 92 L.Ed. 1187 (1948), is much the same. In an appeal from a contempt-of-Congress conviction for the refusal of a United Nations’ employee to answer whether anyone had aided lier in obtaining employment, Article 105 was discussed but the actual decision was based upon other grounds. Keeney v. United States, 94 U.S.App.D.C. 366, 218 F.2d 843, 845 (1954). Diggs v. Shultz, 152 U.S.App.D.C. 313, 470 F.2d. 461 (1972), cert. denied, 411 U.S. 931, 93 S.Ct. 1897, 36 L.Ed.2d 390 (1973), was a case in which the plain tiffs sought relief against the Secretary of the Treasury because of an official authorization of importation of metals contrary to the terms of a United Nations’ embargo in which the United States had joined. Relief was denied because of the nonjusticiability of the claim under the separation-of-powers doctrine, although the court did hold that the plaintiffs had standing to litigate the issue of the failure of the defendants to adhere to the Government’s treaty obligations. In Diggs, however, the relevant provision of the Charter, Article 41, had been implemented by Congress through the enactment of 22 U.S.C. § 287c, which authorizes the President to effectuate Article 41 sanctions and prescribes criminal penalties for those individuals disobeying such Presidential orders. Indeed, pursuant to this statutory authority, the President had issued Executive orders banning the importation of the items in question. Exec. Order No. 11,419, 3 C.F.R. 737 (1966-70 Comp.), 22 U.S.C. § 287c; Exec. Order No. 11,322, 3 C.F.R. 606 (1966-70 Comp.), 22 U.S.C. § 287c; see Diggs v. Shultz, 470 F.2d at 463.

      . Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, 61 Stat. 3301, T.I.A.S. No. 1665. The Agreement was approved by the President on July 18, 1947, pursuant to the authority of a joint resolution of Congress of the same date. 61 Stat. 397 (1947).

      . Trusteeship Agreement, art. 12. Article 6 provides in pertinent part that the administering authority [the United States] shall:
      “1. foster the development of such political institutions as are suited to the trust territory and shall promote the development of the inhabitants of the trust territory toward self-government or independence . . . ;
      “2. promote the economic advancement and self-sufficiency of the inhabitants
      “3. promote the social advancement of the inhabitants . . . ; and

        “4. promote the educational advancement of the inhabitants . . . . ” 61 Stat. at 3302-3303.

      . The language of the Agreement, and in particular that of Article 6, the specific provision at issue in this suit, evinces a series of general commitments undertaken by the United States in furtherance of particular social objectives. See note 6 supra. That these phrases may become workable through judicial construction, as the majority opines, does not detract from the probability that, had the drafters of the instrument intended the document to have the effect of a statute, more precise language delimiting the rights of Micronesians would have been employed. Compare Head Money Cases, 112 U.S. 580, 598-599, 5 S.Ct. 247, 28 U.Ed. 798 (1884); Hauenstein v. Lynham, 100 U.S. 483, 25 L.Ed. 628 (1879). Moreover, the Agreement, in Article 12, states:
      “The administering authority shall enact such legislation as may be necessary to place the provisions of this agreement in effect in the trust territory.”
      Since, under the Constitution of the “administering authority” (the United States), self-executing treaties are effective upon ratification, this provision, as drafted, would not have been necessary had the drafter^ intended the Agreement to be self-executing.


source: Caselaw Access Project

author: JAMES M. CARTER, Circuit Judge:

license: Public Domain

text:
    LECOR, INC., and Luminall Paints, Inc., Petitioners, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF CALIFORNIA, Respondent.
    No. 74-1441.
    United States Court of Appeals, Ninth Circuit.
    Aug. 13, 1974.
    Harold R. Collins, Jr. (argued) of Bleeher, Collins & Hoecher, Los Angeles, Cal., for petitioners.
    William D. Keller, U. S. Atty., Los Angeles, Cal., for respondent.
    Robert Holtzman (argued) of Loeb & Loeb, Los Angeles, Cal., for real party in interest.
    Before KOELSCH, CARTER and CHOY, Circuit Judges.
   OPINION

JAMES M. CARTER, Circuit Judge:

This is a petition for a writ of mandamus, directing the district court to vacate its stay of a federal action pending in that court. We grant the writ.

On April 15, 1973, Bernard L. Samson (“Samson”), formerly the president and chief operating officer of petitioner Lu-minall Paints, Inc. (“Luminall”), brought an action in the Superior Court of California for breach of employment and consulting contracts. He subsequently amended his complaint to add claims for damages and specific performance under a registration and redemption agreement.

On July 26, 1973, Luminall and petitioner Lecor, Inc. (“Lecor”) brought an action in federal district court against Samson and the auditing firm of Seid-man and Seidman (“Seidman”) for misrepresentations with respect to a stock transaction between Lecor and Luminall. The complaint alleged violations of federal securities statutes and state common law.

Both the state court answer and the district court complaint involve a transaction in 1972 whereby Lecor acquired all of a new issue of 2,000,000 shares of Luminall stock. The gist of both pleadings appears to be that the purchase price of the stock was excessive and that Lecor would not have made the purchase had this fact been known. Samson along with Seidman, is charged with having furnished false information in order to procure the excessive payment.

On September 24, 1973, Samson moved the district court to stay the federal action, but only with respect to Luminall. A hearing was held on the motion, and the court then ordered a stay of the entire federal action. This order was conditioned upon Samson’s agreeing not to oppose addition of parties or consolidation of claims in the state court, and to diligently prosecute his state court case. The present petition for mandamus to vacate the stay ensued.

I.

In opposing the petition, Samson relies upon Lear Siegler, Inc. v. Adkins (9 Cir. 1964) 330 F.2d 595, and the emphasis of the court below on “the strong likelihood that the state court proceedings may determine many of the vital factual matters at issue in the instant ease, which would thus shorten and greatly simplify the instant case.”

In Lear Siegler, supra, this court held that the district court did not abuse its discretion in granting a stay of an action pending between the named parties in state court, because the state court decision with respect to the validity and infringement of the patent in question would resolve most of the issues in the federal suit. Although superficially on point, Lear Siegler is clearly distinguishable from the present case.

First, the court specifically held that the state court had jurisdiction to decide the question of validity and infringement of the patent. 330 F.2d at 600. In the present case, the federal courts have exclusive jurisdiction of suits alleging violations of the federal securities laws. 15 U.S.C. § 78aa. The claims of violations of the securities laws raised by Lecor and Luminall in the federal case therefore could not be asserted in the state court action. Weisfeld v. Spartans Industries, Inc. (S.D.N.Y. 1972) 58 F.R.D. 570, 577.

Second, in Lear Siegler, the parties in the federal action were the same as the parties in the state action. Although the power exists in the federal court to stay its proceedings, even where the parties in the two actions are not the same, Landis v. North American Co., 299 U.S. 248, 57 S.Ct. 163, 81 L.Ed. 153 (1936), “[o]nly in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both.” Id. at 255, 57 S.Ct. at 166. In the present case, neither Le-cor nor Seidman is a party in the state court case. For this reason, they would also not be bound by any judgment in the state court, thereby precluding, to any great degree, the simplification of the federal case through the principles of res judicata.

Finally, Lear Siegler involved an action for declaratory judgment and injunction under 28 U.S.C. §§ 2201 and 2202. Due to the special nature of actions for declaratory judgment, the court there stated:

“[T]he existence of jurisdiction in an action for declaratory relief does not require that the court exercise it. It has a'judicial discretion to decline to grant such relief.” 330 F.2d at 599.

See also Public Affairs Associates, Inc. v. Rickover, 369 U.S. 111, 112, 82 S.Ct. 580, 7 L.Ed.2d 604 (1962); Eccles v. Peoples Bank, 333 U.S. 426, 431, 68 S.Ct. 641, 92 L.Ed. 784 (1947). The present case involves an action for damages, not for declaratory relief, and Lear Siegler is not controlling. Instead, the case of Mach-Tronics, Inc. v. Zirpoli (9 Cir. 1963), 316 F.2d 820 controls.

II.

In Mach-Tronics, supra, a federal antitrust action was stayed by the district court pending resolution of a state court action instituted two months earlier. The state claims involved business torts whose operative facts were more or less the same as those material to the federal claims. This court ordered that a writ of mandamus issue commanding the district court to vacate the stay. The court was unpersuaded by the contention that resolution of the state case might have rendered further action by the federal court wholly unnecessary, and emphasized the fact that there would be no jury trial in the state action. 316 F.2d at 828. See Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 504, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959).

Further, the court found that in fact the federal court would be unable to avoid a decision on the alleged violation of the antitrust laws, because the federal courts have exclusive jurisdiction in antitrust actions. The possibility that resolution of factual questions in the state court might act as an estoppel in the federal action was not a justification for staying the federal case. Rather, the court stated:

“It would seem to us to be unthinkable that a federal court having exclusive jurisdiction of a treble damage antitrust suit would tie its own hands by a stay of this kind in order to permit a judge of a state court, without a jury, to make a determination which would rob the federal court of full power to determine all of the fact issues before it.” 316 F.2d at 833.

Finally, the court, citing a number of Supreme Court decisions, noted that it “has long been recognized that when a federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction.” Id. at 824.

In the present case, the state court proceedings would be decided without a jury, whereas Lecor and Luminall are entitled to a jury determination of the factual issues, particularly those relating to the federal securities claims; Lecor and Seidman are not parties to, nor will they be bound by, the state court proceedings; the federal court can decide all issues with respect to all parties; the relief sought is legal, not equitable; and the interest in having questions of federal securities laws decided by federal courts outweighs any interests of expediency or avoidance of determining state contract law. The federal proceedings should not have been stayed.

It is ordered that the writ of mandamus be issued commanding the respondent District Court to vacate and set aside the said order of November 27, 1973, insofar as said order stays the federal court action.

      . In rejecting the contention of Lear that Mach-Tronics and other cases based on exclusive federal jurisdiction controlled with respect to declaratory actions, the court in Lear Siegler, supra, stated: “The authorities upon which Lear relies are not in point. They involve actions in which the district court is without discretion to decline to exercise its jurisdiction . . . . ” 330 F.2d at 602.


author: CRAVEN, Circuit Judge:

text:
    John S. MAYS, Appellant, v. PIONEER LUMBER CORPORATION, a West Virginia corporation, Appellee.
    No. 72-2329.
    United States Court of Appeals, Fourth Circuit.
    Argued June 5, 1974.
    Decided Aug. 22, 1974.

      W. Dale Greene, Charleston, W. Va. (Paul E. Whitehead, Sr., Lynchburg, Va., on brief), for appellant.
    George S. Sharp, Charleston, W. Va., for appellee.
    Before WINTER, CRAVEN and RUSSELL, Circuit Judges.
   CRAVEN, Circuit Judge:

John Mays, a contract timber hauler, was seriously injured by two logs that fell or were pushed from his truck while he was unloading at Pioneer Lumber Company’s sawmill in Frametown, West Virginia. He brought this suit under the diversity jurisdiction of the district court, alleging that the accident was caused by the negligence of one of Pioneer’s employees. The first trial ended with a hung jury. The second jury returned a $40,000 verdict for Mays, but the district judge granted Pioneer’s motion for judgment n. o. v. On Mays’ appeal we reverse.

The only issue is whether there was sufficient evidence to support the jury’s verdict that Pioneer’s employee caused the accident. If, giving Mays the benefit of every legitimate inference in his favor, there was evidence upon which the jury could reasonably return a verdict for him, we must reverse the judgment below. Continental Ore Co. v. Union Carbide Corp., 370 U.S. 690, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962); Wratchford v. S. J. Groves & Sons Co., 405 F.2d 1061 (4th Cir. 1969); Harner v. John McShain, Inc., 394 F.2d 480 (4th Cir. 1968); Chandler v. Aero Mayflower Transit Co., 374 F.2d 129 (4th Cir. 1967).

At the time of the accident Mays’ truck was parked on a slope above the sawmill. The bed of the truck was slanted sideways, with the driver’s side lower than the other. In accordance with the usual unloading procedure, Mays intended to release the logs and let them roll downhill. A log lift (large relative of a fork lift, with an enclosed cab, bigger than truck-size wheels, and a hydraulic arm long enough to reach completely over a loaded truck and grasp logs) would assist. Mays’ truck bed was equipped with vertical standards on the downhill side that would swing away, freeing the logs, when he released trip chains on the opposite side. Working on the uphill side of the truck, Mays released the rear standard but had difficulty getting the trip chain for the front standard out of its slot. While he was trying to pry it loose, the log lift moved around to the downhill side of the truck. Then, Mays testified, he felt the log lift ram the truck. Two logs on top of the load were thrown uphill by the impact. The first grazed Mays’ shoulder as it flew over his head, the second landed on him, amputating his right leg. Mays testified that he immediately looked under the truck and saw the log lift, with its wheel “sitting right tight against the truck.” App. 88.

Mays’ version of the accident was contradicted by the log lift operator, who testified that his machine did not touch the truck or the logs, and by several employees who had witnessed the accident from distances between 50 and 375 feet. The latter witnesses testified with varying degrees of assurance that the log lift did not strike the truck. Three said they were watching the unloading process and did not see a collision. Two did not see the accident, but said that when they realized Mays had been hurt, they saw the log lift ten feet or more from the truck, standing still.

Although the conflict between Mays’ testimony and that of the other witnesses seemed to present a classic question for the jury, the district judge held there was no evidence that a collision had occurred. Because Mays admitted he could not see the log lift strike the truck, the judge concluded that Mays was “unable to state whether there had been a collision.” Thus, he said, plaintiff’s case rested entirely on an inference, insufficient to support a verdict under a rule that “where plaintiff’s case is based upon an inference or inferences, he cannot prevail where there is proof of undisputed facts inconsistent with such inferences.” Mem.Op. at 5. This rule was derived from Pennsylvania R.R. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819 (1933), where the Court disregarded an inference “in the face of the positive and otherwise uncontradicted testimony of unimpeached witnesses consistent with the facts actually proved, from which testimony it affirmatively appears that the fact sought to be inferred did not exist.” Id. at 341, 53 S.Ct. at 394. If this passage is taken to mean that an inference can never sustain a verdict against contrary testimony, we think it is inconsistent with the recognized rule that on a motion for directed verdict the court must credit the nonmoving party with all reasonable inferences. Continental Ore Co. v. Union Carbide Corp., supra; Burcham v. J. P. Stevens & Co., 209 F.2d 35 (4th Cir. 1954). See Musgrave v. Union Carbide Corp., 493 F.2d 224 (7th Cir. 1974). If it means only that the nonmoving party is not entitled to inferences that are proved impossible by evidence the jury is not free to disregard, the rule may still be viable, see, e. g., Ford Motor Co. v. McDavid, 259 F.2d 261 (4th Cir.), cert. denied, 358 U.S. 908, 79 S.Ct. 234, 3 L.Ed.2d 229 (1958); cf. Brown v. Ford Motor Co., 479 F.2d 521 (5th Cir. 1973), but would not apply to this case.

Vision is not the only sense that can supply direct evidence of an occurrence. Mays testified that he felt the impact, describing it as an “awful jar that almost pushed the truck up the hill.” App. 122. The jury was entitled to believe that Mays, with 14 years experience at hauling logs, could tell the difference between an impact and the recoil caused by logs falling of their own accord. Because Mays offered direct evidence about the mishap and described his own perception of it, the case is unlike Herron v. Maryland Casualty Co., 347 F.2d 357 (5th Cir. 1965), and Cater v. Gordon Transport, Inc., 390 F.2d 44 (5th Cir.), cert. denied, 392 U.S. 927, 88 S.Ct. 2285, 20 L.Ed.2d 1386 (1968), on which the district court relied. Moreover, the evidence does not exclude the hypothesis that the log lift arm might have jarred or pushed the logs uphill even though the machine itself did not collide with the truck. The log lift is an enormous vehicle fully capable of reaching and moving the top logs without otherwise contacting the truck.

Nor was the district judge entitled to discard Mays’ testimony because it differed in some respects from his testimony at the first trial. This was solely a question of weight and credibility, and Pioneer’s attorney cross-examined Mays about the discrepancies.

For these reasons, Mays’ testimony was enough to require submission to the jury. The weight and volume of evidence against him did no more than create an issue of fact for the jury’s resolution. We must therefore reverse the judgment n. o. v. entered for Pioneer.

The harder problem is what to do about Pioneer’s alternative motion below for a new trial. The district judge declined to rule on the alternative motion, reasoning that Fed.R.Civ.P. 50(c) was inapplicable because Pioneer’s only ground for a new trial was the same as that advanced for judgment n. o. v.— that the verdict was contrary to the greater weight of the evidence. We agree with the district judge that there is some degree of overlapping in Rule 50(c). Since it is clear that a district judge does not have the right to substitute his own notion of what the verdict should be for that of the jury, it would seem that if his decision to grant a motion for judgment n. o. v. is wrong, then a collateral decision to alternatively grant a motion for a new trial would also likely be wrong. The adjectives vary and the test is theoretically different, but certainly there is no clear bright line between judgment n. o. v. on the ground that the verdict is contrary to the weight of the evidence and the granting of a motion for a new trial on the same ground. There is much to be said for the district judge’s viewpoint that the larger embraces the smaller, and that it is unlikely that he can be wrong in granting judgment n. o. v. and right in granting a motion for a new trial on the same ground.

But Rule 50(c) is perfectly clear. By its very terms the trial judge is commanded to also rule on the motion for a new trial, even though the granting of it is conditional upon his judgment being reversed in respect to the granting of judgment n. o. v. Despite strong and persuasive criticism of the rule, see, e. g., C. Wright, Handbook of the Law of Federal Courts § 95, at 427 (2d ed. 1970), the district judge was nevertheless bound by it, and his failure to follow the rule is error.

There is authority for the proposition that we now have no alternative other than to remand either for a third new trial or for the district judge to consider anew whether to grant another trial. See Casper v. Barber & Ross Co., 109 U.S.App.D.C. 395, 288 F.2d 379, 385 (1961) (Miller, J., concurring and dissenting). But the better viewpoint, it seems to us, is that suggested by Professor Moore, who points out that where the judgment n. o. v. is reversed and the trial court has alternatively granted the motion for a new trial, the case will ordinarily be remanded for a new trial, “[b]ut the courts of appeals have authority to order ‘otherwise.’ ” 5A Moore’s Federal Practice § 50.14, at p. 2382 (2d ed. 1974). If the court of appeals may reverse the grant of a new trial and order entry of judgment on the verdict, and it seems settled that we may do so, see, e. g., Powell v. Lititz Mut. Ins. Co., 419 F.2d 62 (5th Cir. 1969); Berner v. British Commonwealth Pacific Airlines, Inc., 346 F.2d 532 (2d Cir. 1965), cert. denied, 382 U.S. 983, 86 S.Ct. 559, 15 L.Ed.2d 472 (1966), it would seem absurd to hold that the remedy is circumscribed by the failure of the district judge to follow the command of Rule 50(c) to rule on the motion for a new trial. It is getting things a bit backwards to exposit the rule to mean that the granting of a new trial may be reviewed and reversed but that the failure to either grant or deny a new trial compels remand to allow the district judge, in his unappealable discretion, to grant or deny yet another trial. It could not have been intended that a district judge by failing to comply with Rule 50(c) can enhance his power and curtail that of the appellate court. It is not surprising that Rule 50(c) is silent as to the effect of the failure of the district judge to follow the mandate of the rule. Rules seldom contemplate what will happen if they are disregarded.

In a day of trial court congestion and repetitive pleas for judicial efficiency, it would be absurd to hold that we may not grant similar relief because of the error of the district judge in failing to either grant or refuse the motion for a new trial. Vera Cruz v. Chesapeake & O. R. R., 312 F.2d 330, 332 (7th Cir.), cert. denied, 375 U.S. 813, 84 S.Ct. 44, 11 L. Ed.2d 49 (1963). See Powell v. Lititz Mut. Ins. Co., 419 F.2d 62 (5th Cir. 1969).

We think that no useful purpose would be served by remanding to the district judge to entertain and decide a renewed motion for a new trial. There have already been two trials, the first resulting in a hung jury and the second in a verdict for the plaintiff. Two trials are enough, and indeed, all that the judicial system can presently afford. We therefore reverse and remand to the district court with instructions to reinstate the verdict and to enter judgment upon it.

Reversed.

      . One of these witnesses was not an employee but Mays’ boss, one Robert Reed, who supplied logs under contract with Pioneer. Mays in turn worked under contract with Reed.

      . The district court also cited the holding in Chamberlain that when proven facts give equal support to conflicting inferences, tlie verdict must go against the party who has the burden of proof. We have held that this rule was rejected by Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946). See Wratchford v. S. J. Groves & Sons Co., 405 F.2d 1061, 1066 & n. 14 (4th Cir. 1969).

      . Pioneer’s alternative theory of the accident to explain the inherent difficulty of how logs can roll uphill is that the logs pivoted around the front standard when the rear standard was tripped, throwing the top logs off. This hypothesis receives no support from the testimony of the log lift operator, wlio said he did not think the bottom logs moved at all. App. 202-03.

      . The primary difference was that at the first trial Mays said he saw the log lift 6 to 8 feet from the truck, while at the second trial he said it was “sitting right tight against the truck.”


author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    In re Gary SNOONIAN, Appellant.
    No. 74-1220.
    United States Court of Appeals, First Circuit.
    Aug. 14, 1974.

      Henry D. Katz, Boston, Mass., for appellant.
    Joel M. Friedman, Sp. Atty., Dept, of Justice, Boston, Mass., with whom Gerald E. McDowell, Sp. Atty., Dept, of Justice, Boston, Mass., was on brief for ap-pellee.
    Before McENTEE and CAMPBELL, Circuit Judges, and CAFFREY, District Judge.

       Chief Judge of the District of Massachusetts sitting as Circuit Judge by designation.

   LEVIN H. CAMPBELL, Circuit Judge.

Both Gary Snoonian and his wife were subpoenaed to testify before a United States Special Grand Jury investigating extortionate extensions of credit. Mrs. Snoonian appeared, and refused to testify, citing the Fifth Amendment. She has not been recalled by the grand jury and was not granted immunity. Gary Snoonian also appeared. After refusing to testify, he was granted use immunity and after further proceedings returned to the grand jury at which time he responded to several questions but refused to answer others, claiming that it would violate the husband-wife privilege. He maintained this position despite the prosecutor’s assurance before the grand jurors that:

“[Y]our wife is not a target of this investigation and . . . this Grand Jury has no intent to prosecute your wife on the basis of your testimony here. I wish to assure you that this Grand Jury in no way has your wife as a target of this Grand Jury investigation.”

A hearing was held on the government’s petition to hold Snoonian in contempt. The court ruled that there was no basis for a claim of husband-wife privilege since it was unlikely that questions dealing with loans could be relevant to information on a joint income tax return.

This court denied Snoonian’s petition for bail pending appeal, 28 U.S.C. § 1826(b), on the condition that the government file with the district court an affidavit clarifying and confirming its representations at the grand jury proceedings. An affidavit was thereafter filed by the Assistant Attorney in Charge of the New England Strike Force Against Crime, the attorney in charge of this investigation, stating:

“On behalf of the United States Government, I hereby represent and agree that no testimony of Gary Snoonian before the Grand Jury, or its fruits, will be used in any way in any proceeding against his wife.”

The relevant marital privilege is that which permits one spouse not to testify against the other. Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958). The rule developed in the context of trial-type proceedings and, as Wigmore points out, has been limited to testimony which “disfavors the other spouse’s legal interests in the very case in which the testimony is offered.” 8 J. Wigmore, Evidence § 2234, at 231 (McNaughton rev. 1961) (emphasis in original). See United States v. Burks, 152 U.S.App.D.C. 284, 470 F.2d 432 (1972); Astwood v. United States, 1 F.2d 639 (8th Cir. 1924). The privilege has not ordinarily been construed to allow one spouse to decline to testify merely because the testimony may incrimate the other. Wigmore, supra at 231, n. 2. See, e. g., State v. Briggs, 9 R.I. 361 (1869).

Although no one is meaningfully a “party” in a grand jury proceeding, the privilege still applies. See United States v. Calandra, 414 U.S. 338, 346, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); In re Lochiatto, 497 F.2d 803 (1st Cir. 1974). But the absence of fixed parties should not be treated as a license to broaden the scope of the privilege unduly. There is a dearth of precedent as to how closely the supposedly endangered spouse must be the “target” of the grand jury’s investigation before the privilege may be invoked. Cf. United States v. George, 444 F.2d 310 (6th Cir. 1971). It is also unclear how obviously the questions asked one spouse must adversely affect the interests of the other spouse to warrant the former’s refusal to respond. Cf. United States v. Weinberg, 439 F.2d 743 (9th Cir. 1971). In George the Sixth Circuit rejected the claim of privilege both because the wife was not the focus of the investigation and because the questions “did not relate to his wife nor to any communication with her”. 444 F.2d at 314. In that case, as here, the purported danger to the wife came solely because she had executed a joint tax return and because her husband’s testimony might, or so it was claimed, give rise to tax fraud claims against her as well as him.

We need not, however, determine the precise contours of the husband-wife privilege. The Government has not only stated that the wife is not a “target” but, more tangibly, it has executed and filed in court an affidavit that nothing said by the husband, and no fruits theVeof, will be used against her. We think this effectively removes the wife from any category which can remotely be likened to a “party” to the grand jury proceedings. Under F.R. Crim.P. 7(c) no indictment could be returned by the grand jury without the Government’s signature. Were the Government to renege on its sworn promise, it is hard to conceive of a court failing to find an estoppel. Cf. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Commonwealth v. Benton, 356 Mass. 447, 252 N.E.2d 891 (1969). The marital privilege would not excuse Snoonian from testifying at a trial in which his wife was not a defendant even if she were indicted and being tried separately. United States v. Fields, 458 F.2d 1194, 1199 (3d Cir. 1972), cert. denied, 412 U.S. 927, 93 S.Ct. 2755, 37 L.Ed.2d 154 (1973). The privilege is of even less force once he has been assured the grand jury will not indict his wife at all, or, as here, that his testimony will not be used to facilitate “the efforts of the prosecution to convict [her] of a crime.” Id.

The scope of the marital privilege has never been construed, even at common law, as absolute. Wigmore, supra. And as it is in derogation of the public’s “right to every man’s evidence”, United States v. Bryan, 339 U.S. 323, 331, 70 S. Ct. 724, 94 L.Ed. 884 (1950),- it is not to be “expansively construed”. United States v. Nixon, - U.S. -, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). Cf. Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617 (1934); United States v. Doe, 478 F.2d 194 (1st Cir. 1973). In the present case the speculative nature of the threat to the wife, coupled with the Government’s unequivocal and convincing promises not to use any of the testimony against her, nullifies any claim of privilege as grounds for Snoonian’s refusal to testify.

Affirmed.

      . It is, of course, clear that Snoonian may be released if at any time he determines to respond to the Grand Jury’s questions. 28 U.S.C. § 1826(a).