author: Mr. Justice CLARK:

text:
    The SOCIETY OF the PLASTICS INDUSTRY, INC., Petitioner, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION et al., Respondents. HOOKER CHEMICALS & PLASTICS CORPORATION et al., Petitioners, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION et al., Respondents. UNION CARBIDE CORPORATION, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR et al., Respondents. The B. F. GOODRICH COMPANY, Petitioner, v. Peter J. BRENNAN et al., Respondents. FIRESTONE PLASTICS COMPANY, a Division of the Firestone Tire & Rubber Company, Petitioner-Intervenor, v. UNITED STATES DEPARTMENT OF LABOR et al., Respondents. UNIROYAL INC., Petitioner, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION et al., Respondents. GENERAL DYNAMIC CHEMICAL CO., INC., Petitioner, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION et al., Respondents. The DIAMOND SHAMROCK CHEMICAL CO., INC., Petitioner, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION et al., Respondents.
    Nos. 505, 603-608, 670 and 671, Dockets 74-2284, 74-2286, 74-2308, 74-2345, 74-2449, 74-2450, 74-2491, 74-2585 and 74-2609.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 13, 1974.
    Decided Jan. 31, 1975.
    Stay Denied March 31, 1975.
    See 95 S.Ct. 1444.

      John J. Cassidy, Jr., Chicago, Ill. (Vedder, Price, Kaufman & Kammholz, Chicago, Ill., on the brief), for petitioners.
    Stephen F. Eilperin, Asst. Chief, Appellate Section, Civil Div., Dept, of Justice, Washington, D. C., for respondents.
    George H. Cohen, Washington, D. C. (Bredhoff, Cushman, Gottesman & Cohen, Washington, D. C., on the brief), for intervenor Industrial Union Department, AFL-CIO.
    . Lawrence Gold, Washington, D. C. (Woll, Mayer & Gold, Washington, D. C., on the brief), for intervenor AFL-CIO.
    Allan Topol, Washington, D. C. (Covington & Burling, Washington, D. C., on the brief).
    Jerome H. Heckman, Washington, D. C. (Keller & Heckman, Washington, D. C., on the brief).
    Walter B. Connolly, Jr., Akron, Ohio, Firestone Tire and Rubber Company.
    An amicus curiae brief was filed on behalf of Chemical Fabrics & Film Association.
    Before CLARK, Associate Justice, BRYAN, District Judge, and DUFFY, District Judge.

       United States Supreme Court, Retired, sitting by designation.

       United States District Court, Southern District of New York, Retired, sitting by designation.

       United States District Court, Southern District of New York, sitting by designation.

   Mr. Justice CLARK:

This is a petition for review of the health and safety regulations for the vinyl chloride industry, 29 C.F.R. § 1910.-93q, promulgated by the Secretary of Labor on October 4, 1974, pursuant to the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. (hereinafter OSHA). The standard and the Secretary’s statement of reasons for its imposition are set forth at 39 Fed.Reg. 35890-35898. In brief, the Secretary has adopted a standard which requires that no worker is to be exposed to concentrations of vinyl chloride in excess of one part per million (ppm) averaged over any eight-hour period. 29 C.F.R. § 1910.-9Sq(c)(l).

Petitioners — manufacturers of vinyl chloride and vinyl chloride products— make five principal claims: (1) the .available scientific and medical evidence does not establish that the 1 ppm exposure level adopted by the Secretary is required by health or safety considerations; (2) that the Secretary violated the requirements of 29 U.S.C. § 655(b)(5) by adopting a standard which is technologically and economically infeasible for the industry to meet; (3) that the standard is so vague and uncertain in its terms that enforcement will violate the requirements of due process; (4) that there was no substantial evidence in the record to support the Secretary’s conclusion that those who fabricate products out of vinyl chloride should be subject to the same requirements as those who produce vinyl chloride; and (5) that the Secretary’s sign and labelling requirements unduly and hence unlawfully emphasized the carcinogenic properties of vinyl chloride. We find these contentions merit-less, and the petitions for review are accordingly denied.

I.

SCOPE OF JUDICIAL REVIEW

Before proceeding to an examination of the regulations at issue in this case, it would be wise to reemphasize the unique nature of the court’s role under OSHA. Although the statute sets forth general policy objectives and a procedural framework, the formulating of specific safety and health policies is left to the Secretary, subject to review in the United States Courts of Appeals. Our mandate is contained in 29 U.S.C. § 655(f), which states in relevant part:

The determinations of the Secretary ■shall be conclusive if supported by substantial evidence in the record considered as a whole.

Yet the traditional “substantial evidence” test is almost impossible of application where, as here, the Secretary’s decision-making is essentially legislative in character.

The problems involved in according judicial review in such circumstances have been wisely discussed by Judge McGowan in Industrial Union Department, AFL-CIO v. Hodgson, 162 U.S.App.D.C. 331, 499 F.2d 467 (1974), who pointed out that, under OSHA:

[T]here are areas where explicit factual findings are not possible, and the act of decision is essentially a prediction based upon pure legislative judgment, as when a Congressman decides to vote for or against a particular bill.
$$$$$$
[Pjolicy choices of this sort are not susceptible to the same type of verification or refutation by reference to the record as are some factual questions. Consequently, the court’s approach must necessarily be different no matter how the standards of review are labeled. [499 F.2d at 474-475.]

In these circumstancss, Judge McGowan concluded, the reviewing court must recognize that its task defies generalized description and go from there to achieve its paramount objective which “is to see whether the agency, given an essentially legislative task to perform, has carried it out in a manner calculated to negate the dangers of arbitrariness and irrationality in the formulation of rules for general application in the future.” Automotive Parts & Accessories Assn. v. Boyd, 132 U.S.App.D.C. 200, 407 F.2d 330, 338 (1968).

Thus armed with these salutary remarks on our limitations and our obligations, we turn to the challenged regulations. The examination of the 4,000-page record in this case has been a prodigious task, aggravated by duplications of testimony, irrelevant exhibits and letters, almost illegible reproduction of documents, and a generally blunderbuss approach in petitioners’ briefs. Given the task, however, we have performed it and conclude that the standard laid down by the Secretary is fully supported by the record and well within the requirements of Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), and Assoc. Industries of New York State, Inc. v. Department of Labor, 487 F.2d 342 (2d Cir. 1973), as well as Industrial Union Department, AFL-CIO v. Hodgson, supra.

II.

BACKGROUND

There are three basic components of the vinyl chloride industry. First, there are the manufacturers of vinyl chloride itself. A gas at ambient temperatures and pressure, vinyl chloride monomer (VCM) is primarily synthesized by the oxychlorination of ethylene in a handful of large outdoor production plants which resemble oil refineries. Shell, Dow, and Goodrich are the leading producers, accounting for some 50% of the 5.2 billion pounds annually available in the United States. Because of the high degree of automation involved in this manufacturing process, only some 1,500 workers are employed in VCM production. VCM plants are open-air facilities, primarily in the South.

Second, there are the manufacturers of polyvinyl chloride (PVC). Virtually all vinyl chloride is polymerized into thermoplastic PVC resin which serves as the basis for a wide variety of useful plastic products. Goodrich is by far the largest single producer, producing some 20% of the country’s 5.4 billion pounds annually, though in total there are only 21 companies operating the 37 PVC plants. Historically, PVC production has been a “batch” or non-eontinuous operation carried out in relatively small (2,000-6,000 gallon) “reactors” which require frequent cleaning; the trend, however, is towards substantially larger reactors. PVC plants are not open-air facilities and are generally located in colder climates than VCM plants. They employ some 5,000 workers.

Third, and finally, there are the fabricators of products which utilize PVC resins. Innumerable firms throughout the country, employing thousands of workers, compound PVC with plasticizers, heat stabilizers, lubricants, light stabilizers, flame retardants, or impact modifiers to produce an astounding variety of wares, such as pipes and conduits for building and construction, flooring, wire and cable, furniture, phonograph records, and packaging. In fabrication, residual VCM that has been entrapped in the PVC resin escapes during the heating process, and in this way workers in the fabricating industry are also exposed to vinyl chloride.

It is now clear that the workers in all components of the vinyl chloride industry are subjected to a serious health risk from VCM. Although conclusive proof of the carcinogenic and, in turn, fatal character of VCM did not emerge until early in 1974 when the deaths of three workers in Goodrich’s PVC plant at Louisville were reported, strong warning signals had appeared long before. As early as 1949, when the vinyl chloride industry had barely reached its tenth anniversary, a study conducted among vinyl chloride workers in the Soviet Union found liver damage in 15 of 45 workers studied, and in 1958 and 1959., Dow Chemical scientists elicited liver irregularities in rats and rabbits at a 100 ppm concentration of VCM. Although Dow recommended a 50 ppm allowable level in 1961, the industry adhered .to its previous 500 ppm standard.

We need not outline in detail the' morbid “Vinyl Chloride Chronology”, published by an industry spokesman, the Manufacturing Chemists Association (MCA), in a 1974 press release (Joint Appendix at 134-145) in order to illustrate the mounting evidence of VCM’s carcinogenicity. Indeed, the record shows what can only be described as a course of continued procrastination on the part of the industry to protect the lives of its employees. In 1967, when the industry had not reached its thirtieth anniversary, upon receiving recurring reports of the softening of the finger tips and bone of VCM/PVC workers, the Manufacturing Chemists Association had the University of Michigan study the causes of this abnormality. Three years later, in 1970, when it was advised that research could not pinpoint the cause of the malady but recommended a. VCM/PVC ceiling of 50 ppm VCM, nothing was done. And in March of the same year, Dr. P. L. Viola of the Regina Elena Institute for Cancer Research in Rome, Italy, published a report that 30,000 ppm VCM exposure for four hours per day, five days per week for a year' caused cancer of the skin, lung, and bones of rats, and a few months later at the Tenth International Cancer Congress, described observations of malignant tumors in the ear canals of rats subjected to the same exposure. Apparently relying on Dr. Viola’s comment at the close of his abstract that: “No implications to human pathology can be extrapolated from the experimental model reported in the paper,” the industry did nothing.

In 1971, MCA began to inquire by letter regarding the conduct of toxicological studies on laboratory animals with VCM and in May of 1971 heard a detailed presentation by Dr. Viola regarding his earlier studies as well as other studies then unreported. The industry began talking about raising funds for epidemiological research on VCM carcinogenicity, but not until March 30, 1972, did 17 U.S. companies agree to finance such a study. By then, the first deaths of U.S. workers due to VCM exposure were being recorded.

Months were consumed in 1972 by negotiations among the participating company representatives, and it was not until February of 1973 that a protocol was agreed upon and a research contract for animal exposure studies signed. Meanwhile, startling results from European experiments were filtering' back to the industry. By January of 1973 it was discovered that European experiments with rats had not only found tumors of the ear canal (which Dr. Viola had reported as early as 1970), but also of the kidneys and liver at concentrations as low as 250 ppm VCM, but not at 50 ppm. This discovery, however, was kept confidential, and it was not even revealed to the National Institute of Occupational Safety and Health (NIOSH) until July 17, 1973.

Earlier, on September 27, 1971, a patient of Dr. J. L. Creech, Jr., plant physician of the B. F. Goodrich Chemical Company in Louisville, Kentucky, died. The patient had been employed for 15 years as a helper and operator in Goodrich’s Louisville PVC plant. When first hospitalized, a tentative diagnosis was made of a bleeding duodenal ulcer, but upon re-admittance and after an exploratory laparotomy and biopsy was carried out, he was found to have angiosarcoma of the liver, an exceptionally rare and irreversible cancer which strikes only 1 person in some 50,000, no more than 20-30 persons a year. Eighteen months later, on March 3, 1973, another former employee of the Lousiville plant died, and a third died on December 19, 1973, again of angiosarcoma of the liver. Recognizing the rarity of the tumor and learning that all three had worked in the Goodrich PVC plant, Dr. Creech brought the matter to the attention of Goodrich, and then on January 22, 1974, to the attention of the National Institute of Occupational Safety and Health (NIOSH).

News of other deaths followed swiftly. On January 29, 1974, Goodrich reported the death of a fourth former employee from angiosarcoma; a report of the death of a fifth employee followed on February 15th. Six days later, Union Carbide advised NIOSH of the death of one of its PVC workers from liver angiosarcoma. Goodyear Tire and Rubber Company announced a vinyl chloride worker fatality from liver angiosarcoma on March 1, 1974, and reported two more such deaths from the same cause on March 22nd. Goodrich reported cases of liver angiosarcoma in two of its living employees. On April 16, 1974, Firestone Plastics announced the death of one of its employees from the same disease. Finally, on May 10, 1974, the National Cancer Institute diagnosed another Union Carbide VCM worker as a victim of the same disease. In all, the deaths of 13 workers in the PVC and fabricating industries were reported.

III.

THE SECRETARY’S ACTIONS

Two days after Goodrich made its report to NIOSH of its first three VCM worker deaths, an inspection of its plant by NIOSH indicated considerable exposure of workers to VCM, and control procedures as well as precautionary monitoring were recommended. NIOSH alerted other federal agencies and after additional investigation soon concluded that VCM was the suspect agent for a new occupational cancer. On April 5, 1974, the Assistant Secretary of Labor, acting on behalf of the Secretary, held a hearing and promulgated an emergency temporary standard of 50 ppm TWA in lieu of the prevailing 500 ppm one. At the hearing, industry itself showed concern, and evidence was presented that both VCM and PVC plants could reduce concentrations below 50 ppm TWA. As in the past, Dow Chemical spoke out for worker safety and urged that industry exposure be reduced to 50 ppm TWA by operational and engineering changes and that appropriate respiratory protection be given where such level was not attainable. The Assistant Secretary concluded that the evidence demonstrated VCM to be carcinogenic for man. See 39 Fed.Reg. 12342. Monitoring and housekeeping requirements were also imposed, and a requirement was included that, if the 50 ppm level was breached, appropriate respiratory equipment be furnished workers. The emergency order was limited to six months “during which time the whole question of possible exposure of humans to VC would be reconsidered more fully and in the light of more information, including experiments which are underway at the time.”

On April 9, 1974, the Industrial Bio-Test Laboratory notified MCA that its preliminary findings in their animal exposure study showed that angiosarcoma of the liver was produced in mice at a level of 50 ppm of vinyl chloride, and MCA so informed the federal government. On May 10, 1974, the Assistant Secretary again acted. Issuing a notice of proposed permanent rulemaking, he drew attention to the MCA study results and noted that: “the question of a safe level of exposure for humans cannot be determined at this time, and may continue as a matter for scientific deliberation for many years.” 39 Fed.Reg. 16986. In the interim, he concluded, it was necessary to abandon the 50 ppm emergency temporary standard and to establish it at as low a level as can be detected using methodologies sensitive to 1 ppm plus-or-minus 50%, i. e., the so-called “no-detectable” level. This level was to be reached through the “institution of engineering controls and work practices as soon as feasible,” but respiratory protection was to be afforded where the goal could not otherwise be achieved.

On May 24, 1974, notice of a hearing on the proposed standard to be held before an Administrative Law Judge was given. Eight days of hearings were held during June and July of 1974, and additional materials were received from interested parties until September 25th. In addition, the record of the previous hearing on February 25, 1974, was ordered to be included.

On October 1, 1974, the final standard was promulgated, effective January 1, 1975. See 39 Fed.Reg. 35890. The main provisions are as follows:

(1) The standard applies to manufacturers of VCM and PVC and to fabricators of PVC, but excludes those merely handling or using already-fabricated products. 29 C.F.R. § 1910.93q(a)(2).

(2) In place of the potentially obscure “no detectable level” standard, a permissible exposure limit not greater than 1 ppm averaged over an eight-hour period is set, but allows for peaks of VCM exposure up to 5 ppm during periods not exceeding 15 minutes. 29 C.F.R. § 1910.-93q(c).

(3) All employers are required to conduct an initial program of monitoring and measurement of exposure levels, but need not continue monitoring if initial levels are below the so-called “action level” of 0.5 ppm averaged over the eight-hour work day. 29 C.F.R. § 1910.93q(d).

(4) The standard requires that “feasible engineering and work practice controls” be employed to reduce exposure below the permissible exposure wherever possible or to the lowest practicable level if not possible, supplemented by respiratory protection. 29 C.F.R. § 1910.-93q(f)(2).

(5) Where respiratory protection is required under the standard, suitable equipment, as indicated by a chart in the standard, shall be provided, and usé shall be required of employees unless the VCM level is below 25 ppm measured over any 15 minute period, in which case the use of respiratory equipment is optional with the employee until January 1, 1976. 29 C.F.R. § 1910.93q(g)(l).

(6) Employees working in certain hazardous operations, especially those involved in physically cleaning the interiors of PVC manufacturing reactors, shall be provided protective garments and respiratory equipment. 29 C.F.R. § 1910.-93q(h)

(7) A medical surveillance program is required for all employees exposed to VCM in excess of the action level of 0.5 ppm. 29 C.F.R. § 1910.93q(k).

(8) Finally, in addition to certain record-keeping requirements, all entrances, work-areas, and containers related to VCM or PVC manufacture and PVC fabrication are required to be labeled with the warning legend: “Cancer-Suspect Agent”. 29 C.F.R. § 1910.93q(7).

IV.

PETITIONERS’ CONTENTIONS (a)

Petitioners’ initial claim is that the available scientific medical evidence does not establish that the 1 ppm exposure level adopted by the Secretary is required by health or safety considerations. They claim that no proof exists in the record to justify such a low standard, since all of the medical witnesses testified that no one can say whether exposure to VCM at low levels was safe or unsafe. Further, they point to studies of employee health by Dow Chemical over a number of years which concluded that exposure to VCM below 200 ppm did not lead to any adverse effect.

We find, however, that the evidence is quite sufficient to warrant the Secretary’s choice. First, it must be remembered that we are dealing here with human lives, and the record reveals that 11 manufacturing plant workers and two fabrication plant workers have already died from the effects of this potent chemical. Moreover, the animal exposure study, sponsored by MCA, the industry’s own trade association, identified fatal liver angiosarcoma and other kidney and liver diseases at the 50 ppm level. None of the physicians or scientists who testified could identify a safe level of exposure to VCM, nor the precise mechanism by which it produces cancer; yet expert after expert recommended that this “very virulent” carcinogen be restricted to the lowest detectable level. Indeed, as one witness, Dr. Kraybill of the National Cancer Institute, testified:

Certainly, there is little margin for safety if a response can be expected at a level below 50 parts per million which in truth is now only a fifty-fold safety factor in terms of the proposed standard. According to toxicological principles, were this compound a non-carcinogen, then to establish a tolerance or safe level, there would have to be a 100 to 1 margin of safety in terms of a no-effect level, and from the experimental data on the animals we don’t even know what the no-effect level is. Obviously, this would put the allowable level at a small fraction of a given standard — of the given standard.

As in Industrial Union Department, AFL-CIO v. Hodgson, supra, the ultimate facts here in dispute are “on the frontiers of scientific knowledge”, and, though the factual finger points, it does not conclude. Under the command of OSHA, it remains the duty of the Secretary to act to protect the workingman, and to act even in circumstances where existing methodology or research is deficient. The Secretary, in extrapolating the MCA study’s finding from mouse to man, has chosen to reduce the permissible level to the lowest detectable one. We find no error in this respect.

(b)

Failing in this contention, petitioners strongly urge that the Secretary breached his statutory mandate to insure that the standard selected is a “feasible” one. Relying on the so-called Snell Report, petitioners claim that VCM and PVC manufacturers will never be able to reduce levels of exposure to 1 ppm through engineering means. They point to the conclusion reached by the Snell Report that:

The costs of compliance increase rapidly with decreasing VCM target levels and represent significant engineering uncertainty or infeasibility beyond 10 ppm ceiling and 2 — 5 ppm TWA for the VCM industry and 15-25 ppm ceiling and 10-15 ppm TWA for the PVC industry.

According to the report, “[b]ased on the industry surveys and Snell’s independent assessments of the state-of-the-art of the technology,” the standard price of VCM would only rise frum 7.41(p/lb. at present to 7.69<p/lb. at a target level of 2-5 ppm TWA, but would supposedly soar to 12.71<p/lb. at the the “no-detectable” level.

In his statement of reasons in support of the standard, the Assistant Secretary acknowledged the industry contention and the Snell conclusion about the in-, feasibility of the 1 ppm level, but noted that: “Labor union spokesmen and the Health Research Group, Inc., however, have suggested that such a level is attainable.” The Assistant Secretary went on to say:

Since there is no actual evidence that any of the VC or PVC manufacturers have already attained a 1 ppm level or in fact instituted all available engineering and work practice controls, any estimate as to the lowest feasible level attainable must necessarily involve subjective judgment. Likewise, the projections of industry, labor, and others concerning feasibility are essentially conjectural. Indeed, as Firestone has suggested, it is not possible to accurately predict the degree of improvement to be obtained from engineering changes until such changes are actually implemented.
We agree that the PVC and VC establishments will not be able to attain a 1 ppm TWA level for all job classifications in the near future. We do believe, however, that they will, in time, be able to attain levels of 1 ppm TWA for most job classifications most of the time. It is apparent that reaching such levels may require some new technology and work practices. It may also be necessary to utilize technology presently used in other industries. In any event the VC and PVC industries have already made great strides in reducing exposure levels. (See testimony of Dow Chemical Co., TR 973). For example, B. F. Goodrich testified (TR 1120) that it has reduced average exposure levels in several PVC plants from 35-40 ppm early this year to 12-13 ppm at the time of the hearing. We are confident that industry will continue to do so. [39 Fed. Reg. at 35892.]

We cannot agree with petitioners that the standard is so clearly impossible of attainment. It appears that they simply need more faith in their own technological potentialities, since the record reveals that, despite similar predictions of impossibility regarding the emergency 50 ppm standard, vast improvements were made in a matter of weeks, and a variety of useful engineering and work practice controls have yet to be instituted. In the area of safety, we wish to emphasize, the Secretary is not restricted by the status quo. He may raise standards which require improvements in existing technologies or which require the development of new technology, and he is not limited to issuing standards based solely on devices already fully developed. Cf. Chrysler Corp. v. Dept. of Transportation, 472 F.2d 659, 673 (6th Cir. 1972); Natural Resources Defense Council, Inc. v. E. P. A., 489 F.2d 390, 401 (5th Cir. 1974).

There is much testimony in the record, especially in the Snell Report, indicating that VCM concentration can be easily pinpointed and largely corrected. For example, many of the companies engaged in PVC manufacture still perform the cleaning of batch reactors by opening the vessel and having the worker physically enter it. In chipping off the accretion from the walls of the vessel, the worker is thus exposed to a high concentration of VCM. Yet other, less hazardous methods are currently available and in use, in which the vessels are cleaned by machinery, emulsions or simply water under high pressure. Other sources of exposure are encountered in filling tank cars, measuring, testing and repairing pipe joints or other connections. The Snell Report indicates that much of this may be alleviated.

But whether it can or not, the Secretary’s compliance scheme does not rest only on engineering- and work practice controls. He does mandate that the industry use such technology to the extent feasible, but, more importantly, he requires that, in addition, respiratory protection be used if engineering means cannot bring the VCM level down to the permissible limit.

To be sure, respirators have their drawbacks. These problems were detailed at the hearings and recognized by the Assistant Secretary. Self-contained and air-hose type breathing equipment is bulky, expensive and infeasible for full-time use, as well as potentially hazardous in terms of tripping, restricted mobility, and over-exhaustion of workers. But the fact remains that they effectively eliminate exposure to VCM, and they are already being used by some PVC companies in the cleaning process and at other points in production with good success.

Like the industry’s claims about the impossibility of achieving compliance through technological means, petitioners' claims of dire consequences from the requirement of respiratory protection are exaggerated. It does not appear that full-time use of respirators is necessary, and the Snell Report points this out. Furthermore, lightweight, inexpensive cartridge or cannister-type ■ respirators, which can effectively filter out VCM at low levels, are now available and acceptable. Contrary to petitioners’ assertions, the Snell Report indicates that a variety of respirators are reasonably available.

(c)

We find that the Secretary’s directions are clear, definite, and certain and that they are also entirely feasible, since the goal of the lowest detectable level can definitely be attained through the combination of technological means and respirators. Our conclusion in this regard is buttressed by the fact that only some 6,500 of the workers coming under the standard — those in the VCM and PVC manufacturing field — are potentially exposed to high or constant VCM concentrations, and only a small percentage of them are actually subject to excessive concentrations of the chemical during manufacture. The remaining hundreds of thousands of workers are in the fabrication field where exposure is already so low that some of the petitioners claim that the fabricators should not even be under the standard; these, of course, have been included because of their work with PVC resin which in final form contains residual amounts of VCM, and the record shows that two deaths have in fact occurred among fabricators.

If, in the future, the monitoring under the standard indicates that the VCM level among fabricators is sufficiently low and that the sporadic, unpredictable exposure of these workers to residual VCM has been controlled, the fabricators might well be excluded or included in a separate, less rigorous standard. Certainly if PVC producers were able to eliminate all residual VCM from the resin before it is delivered to the fabricator, there would seem to be no reason for their inclusion. But this would be for the Secretary to decide on appropriate application or on his own motion, and, as the record presently stands, their inclusion is amply justified.

In any event, compliance is time-phased and, if the petitioners find that they cannot comply for reasons beyond their control, OSHA permits the amendment of standards. See 29 U.S.C. § 655(b)(6)(A). Upon application and sufficient proof of such a situation, we feel certain that the petitioners would obtain relief at the hands of the Secretary. This is especially true of the “cancer suspect agent” labelling requirements which petitioners urge are beyond statutory contemplation. We think that the Secretary is simply “fighting fire with fire” and using the labels to bring the danger of vinyl chloride forcibly to the attention of the workers. Cf. Synthetic Organic Chemical Mfrs. Assn. v. Brennan, 503 F.2d 1155 (3d Cir. 1974). They deserve no less treatment. We have also considered the other arguments of the petitioners and find them untenable.

V.

It is our conclusion that the challenged aspects of the Secretary’s vinyl chloride standard are supported by substantial evidence in the record and that the petitions for review must be denied. Taking into account the delay occasioned by these petitions, we think that á reasonable “lead time” is appropriate and therefore order that the Secretary’s regulations, rather than being effective January 1, 1975, shall become effective sixty days after the date of this order and that the time requirement as to respiratory protection contained in 29 C.F.R. § 1910.93q(g)(l) is re-scheduled accordingly.

      . Time Weighted Average (TWA) represents a worker’s cumulative exposure to a toxic substance during a 9-hour shift.

      . Petitioners’ application for stay of the January 1st deadline was granted pending our disposition of the matter.

      . 29 U.S.C. § 655(b)(5) provides in part:
      The Secretary * * * shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity * * *.

      . This report, “Economic Impact Studies of the Effects of Proposed OSHA Standards for Vinyl Chloride,” was prepared in September of 1974 by Foster D. Snell, Inc., an independent consultant, at the request of the Secretary of Labor and estimates the cost to the industry of complying with various exposure levels between 50 ppm and 0-1 ppm. Plant and industry visits were the principal means of information gathering.


source: Caselaw Access Project

author: STEPHENSON, Circuit Judge.

license: Public Domain

text:
    Robert W. LOWRY and Janel J. Lowry, Appellees, v. BLACK HILLS AGENCY, INC., Appellant.
    No. 74-1299.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 17, 1974.
    Decided Feb. 10, 1975.

      Murray Ogborn, Aberdeen, S. D., for appellant.
    Joseph M. Butler, Rapid City, S. D., for appellee.
    Before GIBSON, Chief Judge, and LAY and STEPHENSON, Circuit Judges.
   STEPHENSON, Circuit Judge.

This is an appeal from a judgment on a jury verdict and denial of a motion for a new trial in a diversity action wherein appellant insurance agency was charged with negligence in failing to obtain for its insured a one million dollar ($1,000,-000) umbrella liability insurance policy which allegedly had been ordered. The appellant claims trial errors in the admission of irrelevant and prejudicial evidence, admission of opinion evidence, insufficiency of the evidence, abuse of discretion in refusing to issue a subpoena and resulting error in determining the competency of a plaintiff-assignee, and error in permitting the cross-examination of an alleged adverse witness. We affirm.

The genesis of this litigation was an automobile-trailer collision on August 7, 1971, in which one of the plaintiffs herein, Robert Lowry, received severe injuries. That cause of action, the Lowrys against the owner of the vehicle-trailer outfit, Cochran, Inc., resulted in a judgment for Robert Lowry in the amount of $659,732.63 and for Janel J. Lowry in the amount of $50,000. Cochran, Inc.’s insurance carrier paid the Lowrys the limit of its coverage, $250,000, and was released from any further liability. In addition, Cochran, Inc. entered into an assignment agreement with the Lowrys whereby Cochran, Inc. assigned to the Lowrys its alleged cause of action against appellant, Black Hills Agency, Inc., for negligently failing to procure a million dollar umbrella liability policy allegedly ordered by Cochran, and Cochran agreed to prosecute this action and pay all costs thereof. In exchange, the Lowrys agreed to deliver to Cochran, Inc. and Loudner full satisfaction of the $709,732.63 judgment they had obtained in the personal injury action.

Appellant contends that the sole issue before the jury in determining the issue of its negligence in failing to order the additional protection of a million dollar umbrella policy was whether the umbrella policy was ordered or rejected and that the trial court erred in allowing appellees to introduce irrelevant and prejudicial evidence of other transactions and events. We will list the various disputed items with a brief review of the evidence taken most favorable to appellees, the prevailing party.

Jon Cochran, president and owner of Cochran, Inc., testified that he ordered the umbrella policy. Dale Yeoman, agent for the Black Hills Agency, testified that he tried to sell Cochran the umbrella policy but he refused to purchase it. The conversations with respect to Cochran’s application for insurance covered several items of insurance applicable to the operation of Cochran’s Oldsmobile — Cadillac dealership in Rapid City, South Dakota. October 1, 1970 was the expiration date for existing coverage which had previously been obtained through another insurance agency, and the conversations took place around that date.

Disputed items admitted: (1) evidence that none of the policies ordered by Cochran October 1, 1970 were received until after the accident of August 7, 1971 (Cochran testified he was not aware that he did not have the umbrella coverage until so advised by Yeoman after the accident); (2) evidence that at that time Cochran ordered “contents coverage of $87,000,” but ultimately only three policies were delivered after the accident, which covered accounts receivable, garage keepers liability of $250,000, and fire and extended coverage on two buildings and new cars (the policies did not include “contents coverage”); (3) lack of proper signatures on some of the policies delivered; (4) problems with double coverage on new cars; (5) insurance that was written and not requested by Cochran, i. e., Agent Yeoman issued a binder on “Garagekeepers Legal Blanket Bond” but conceded that there was no request for the same; (6) fire insurance, although requested by Cochran, was not included in the original binder by Agent Yeoman although it was supplied in the policies delivered in August, 1971; (7) all matters handled by Richard Maguire, president of appellant, which took place during the latter part of 1971 and 1972, including (8) an error in billing Cochran, Inc. for umbrella coverage which it is claimed was not ordered by Cochran until 1972. Appellees offered in evidence an invoice billing Cochran, Inc. for “catastrophe liability,” $1,000,000 limit, for the period October 1, 1971 — 1972.

The trial court in general admitted the foregoing disputed evidence on the theory that it was admissible for the purpose of showing a pattern of continuous neglect in the handling of Cochran’s insurance account. The trial court necessarily has considerable discretion in ruling on the admissibility of evidence. It must weigh the probative value as opposed to the prejudice created. General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1217 (8th Cir. 1973); General Ins. Co. of America v. Hercules Constr. Co., 385 F.2d 13, 24 (8th Cir. 1967).

We are satisfied the trial court did not abuse its discretion in admitting the disputed testimony. Agent Yeoman testified that he tried to sell Cochran the umbrella protection along with many other items of insurance but Cochran specifically refused to purchase this item. Agent Yeoman produced a copy of a list of various insurance items that he used, in ordering Cochran’s insurance. He testified he placed a “No” after three items, including umbrella protection, which Cochran refused to purchase. The list was admitted into evidence as an exhibit.

It is our view that under these circumstances Cochran was entitled to show the entire transaction with Yeoman. The evidence revealed several agent errors in the ordering of the various items of insurance, the placing of binders, and the ultimate coverage furnished. This was relevant to the issue of Yeoman’s credibility. The late delivery of the policies after the accident is relevant to Cochran’s claim that he was unaware of the lack of umbrella coverage prior to the accident.

The evidence concerning Maguire’s handling of the insurance account with Cochran, although remote in time, was admissible because appellant opened up this subject in its cross-examination of Cochran by inferring that even in 1972, long after the auto accident, Cochran had to be sold on the idea of purchasing umbrella protection. Other matters in connection with Maguire’s handling of the account were likewise admissible because appellant first opened the door. For example, Maguire testified that he personally became interested in the account because Cochran was delinquent in paying premiums. Cochran then offered evidence that the account was current.

Appellant urges that the trial court erred in permitting appellees to elicit the expert opinion of appellant’s president as to whether or not the Cochran account was handled in a reasonable and prudent and careful manner consistent with the practices of the insurance industry in Rapid City and the surrounding area. Appellant contends that the inquiry was incompetent, immaterial, irrelevant to the issue of Yeoman’s negligence, and improper under Ericksen v. Wilson, 266 Minn. 401, 123 N.W.2d 687 (1963). In the latter ease it was held that in a medical malpractice action it was error to permit plaintiff to compel expert testimony from the defendant to prove a charge of malpractice. Appellees point out that the Minnesota court firmly overruled Ericksen in Anderson v. Florence, 288 Minn. 351, 181 N.W.2d 873 (1970), and, in so doing, joined the vast majority of jurisdictions which allow a witness or party to be called to give evidence against himself or his corporate principal in a professional liability case. Anderson, supra at pp. 875-76; see An-not., 88 A.L.R.2d 1186. We are satisfied that the trial court did not abuse its discretion in admitting the opinion of Maguire with respect to Yeoman’s conformance with the practices in the insurance industry.

Appellant charges that the court erred in allowing appellees to call and cross-examine Dale Yeoman, a former employee of appellant corporation, as an adverse witness. Appellant contends that Yeoman was not an officer, director or managing agent either at the time of the transaction in question or at the time of trial and thus not subject to call as an adverse party under Rule 43(b), Fed.R.Civ.P. It is argued that Yeoman was a mere employee whose employment was terminated at the time of trial.

In Skogen v. Dow Chemical Company, 375 F.2d 692, 701 (8th Cir. 1967), this court stated:

The courts, in determining who is a “managing agent” within the terms of Rule 43(b), should not be too technical or literal in their approach and thus disqualify for cross-examination the only persons within the corporation who have knowledge of the subject matter of the litigation. * * *.
The liberal interpretation of the rule which we favor would hold that an individual is a “managing agent” if: (1) His interests in the litigation are identified with his principal, and (2) He acts with superior authority and general autonomy, being invested with broad powers to exercise his discretion with regard to the subject matter of the litigation. (Citing cases.)

Applying this test, Yeoman would be considered a managing agent under Rule 43(b). He might well have been a defendant in this action. As an agent for the insurance agency he acted with broad authority in handling the Cochran insurance account, quoting premiums, accepting orders, placing binders, and arranging for the procurement of the policies. The trial court properly allowed appellees to cross-examine Yeoman as an adverse witness under Rule 43(b). See also Jones v. John Hancock Mutual Life Ins. Co., 416 F.2d 829, 833 (6th Cir. 1969); Melton v. O. F. Shearer & Sons, Inc., 436 F.2d 22, 25-27 (6th Cir. 1970).

Appellant’s contention that the evidence was insufficient to support the verdict requires little discussion. Appellant failed to move for a directed verdict during the trial. In the absence of an appropriate motion for a directed verdict an appellate court is powerless to review the sufficiency of the evidence to support the verdict. See A. B. McMahan Co. v. Amphenol Corp., 443 F.2d 1072, 1075 (8th Cir. 1971), and authority there cited. A reading of appellant’s brief indicates that the thrust of its argument is that, assuming arguendo that the alleged and prejudicial evidence previously discussed herein should have been rejected, the evidence would not be sufficient to support the verdict. We, of course, have held that the trial court did not abuse its discretion in admitting the disputed evidence. We might add that the record indicates there was ample evidence to submit this cause to the jury.

Appellant contends that the district court lacked jurisdiction over the subject matter or the persons involved in the action because plaintiff Robert Lowry was mentally incompetent at the time the assignment agreement was executed in March 1973. Appellant first raised the question of Lowry’s incompetency after the jury was selected and before the taking of evidence. Appellant also demanded that appellees produce Lowry for purposes of examination; and when appellees indicated he would not be present, appellant requested the court to issue a subpoena requiring his attendance. The trial court agreed to hold a hearing on the issue of Lowry’s competency at which the record of the prior injury trial would be received and Mrs. Lowry, who was present, could be examined but refused at that late hour in the proceedings to order Mr. Lowry’s presence.

We fail to find any abuse of discretion on the part of the trial court in refusing to issue a subpoena requiring Lowry’s presence. This is a matter that should have been handled during discovery and pretrial proceedings. The trial court further found on the basis of the injury trial record and Mrs. Lowry’s testimony that Lowry was competent at the time in issue. We find the record adequately supports the court’s finding.

Affirmed.

      . The judgment entered by Judge Bogue was against both Cochran, Inc. and its driver, Frederick Loudner. The Honorable Andrew Bogue also presided in the instant trial.

      . Appellant made motions in limine seeking to prevent the introduction of the disputed items. Its objections were allowed to stand during the trial without repeating the same, and at the close of the evidence motions to strike these items were made and overruled.

      . Rule 43(b), Fed.R.Civ.P., states:

        Scope of Examination and Cross-Examination. A party may interrogate any unwilling or hostile witness by leading questions. A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject matter of his examination in chief.


author: BREITENSTEIN, Circuit Judge.

text:
    BELTRONICS, INC., Plaintiff-Appellant, v. EBERLINE INSTRUMENT CORPORATION et al., Defendants-Appellees.
    No. 74-1044.
    United States Court of Appeals, Tenth Circuit.
    Argued Sept. 9, 1974.
    Decided Dec. 4, 1974.
    Rehearing Denied Dec. 31, 1974.
    Certiorari Denied June 2, 1975.
    See 95 S.Ct. 2399.

      Dwight A. Hamilton and John T. Will-son, Denver, Colo.. (Fuller & Evans on the brief, Denver, Colo.), for plaintiff-appellant.
    Robert C. Poole, Albuquerque, N. M. (Marshall G. Martin, Robert W. Harris, and Poole, Tinnin, Danfelser & Martin, Albuquerque, N. M., on the brief), for defendants-appellees Eberline Instrument Corp. and Capeo, Inc.
    Stuart S. Gunckel, Denver, Colo. (Rovira, DeMuth & Eiberger and Akolt, Dick & Akolt, Denver, Colo., on the brief), for defendant-appellee Western Electric Co., Inc.
    Before BREITENSTEIN, HILL and McWILLIAMS, Circuit Judges.
   BREITENSTEIN, Circuit Judge.

This suit was brought in Colorado state court as a contract case and was removed to federal court on diversity grounds. After removal, Western Electric Company, Inc., was added as a defendant and the complaint was amended to charge antitrust violations. The district court held for defendants and plaintiff Beltronics, Inc., has appealed. We affirm.

Beltronics, Inc., is a Colorado corporation and is the successor to Midwec Sales Co. W. Arthur Peterson and James E. King are officers of Beltronics and were officers of Midwec Sales.

Eberline Instrument Corp., defendantappellee, is a New Mexico corporation, and has a wholly owned subsidiary, Capeo, Inc., a Texas corporation, which is also a defendant-appellee.

Western Electric Company, Inc., a New York corporation and defendant-appellee, is a wholly owned subsidiary of American Telephone and Telegraph Company (AT&T) which as the Bell Telephone System has 23 operating companies. The Bell System provides over 80% of the telephone service in the United States.

The products involved in the transactions among the parties will be referred to as capacitors.

In 1960 Midwec Sales, controlled by Peterson and King, became the exclusive representative of a Nebraska manufacturer in the sale of capacitors. Midwec Sales sold capacitors to Bell System operating companies until 1967. In 1961 Western gave notice that the magnitude of capacitor sales to Bell System operating companies required development of specifications for capacitors and a supply contract with Western. Specifications were prepared and a supply contract executed. In 1966 Western determined that a second supplier of capacitors was needed to avoid overdependence on one source. The contract between the Nebraska manufacturer and Midwec Sales was terminated, in 1967. King proposed to Eberline that it manufacture capacitors and become the second supply source for Western. Eberline acquired Capeo, to make the capacitors, and all the stock of Midwec Sales, the name of which was changed to Beltronics. Beltronics was made the marketing agent for capacitors produced by Capeo. Peterson and King were the principal officers of Beltronics. The contract with Eberline was the only substantial asset of Beltronics.

In January 1969 Eberline sold its Beltronics stock to Peterson and King and made a 5-year renewable contract with Beltronics by which Beltronics became Eberline’s exclusive sales agent for the sale of capacitors to the telephone industry. Beltronics’ commission on those sales was 15%.

The Western-Eberline contract was due to expire April 30, 1969. Beltronics submitted a new price quotation for a 1-year renewal contract. In April, 1969, Western told Beltronics that the Eberline supply contract would not be renewed. The decision resulted from King’s conduct violating Western policies.

At a New York meeting on April 14 Western made clear that it would do no further business with King, Beltronics, or any one associated with them. Eberline terminated its contract with Beltronics and later secured a new supply contract from Western Electric.

Beltronics then sued for breach of contract, tortious interference with contract relations, and antitrust violations by Western, Eberline, and Capeo. After a two-week trial the district court made comprehensive findings of fact and conclusions of law. Some of the issues resolved are not pertinent to this appeal.

I

The January 2, 1969, “Exclusive Sales Representative Agreement” made by Eberline and Capeo with Beltronics was for five years and was renewable at the option of Beltronics for another five years. Paragraph Í5 provided for termination at the option of Eberline under conditions which relate to sales performance by Beltronics and production capacity of Eberline. Eberline claims no right to terminate under this provision. The controversy concerns the following portion of paragraph 16(a):

“In addition to the option to terminate this Agreement under certain conditions as provided in paragraph 15, Eberline may terminate this Agreemnt at any time by giving Beltronics notice in writing of termination at least ninety (90) days prior to the termination date and by paying Beltronics the sum of $75,000.00, * * . ”

Eberline did not give 90 days’ notice and did not pay the $75,000.

We reject Beltronics’ attack on the findings of the trial court. They have record support and are not clearly erroneous. The court found that Western’s refusal to renew the capacitor supply contract was caused by King’s violation of Western’s entertainment and gift policies, and his improper acquisition and use of a Western publication intended for internal information. The Western decision was made unilatei'ally without participation by Eberline or Capeo.

The question is whether the termination by Eberline and Capeo without notice or payment to Beltronics was an actionable breach. The trial court found: (1) The contract was made on the assumption that the Western market for capacitors would continue. (2) The refusal of Western to deal with Beltronics made performance impossible. (3) The contract was'subject to the implied condition that if without fault of the parties the Western market became unavailable, “the Agreement would be dissolved and the parties excused from performing it.” (4) The Western market was foreclosed by the unilateral action of Western “without fault on the part of Eberline and Capeo.” (5) The implied condition of the contract caused it “to be dissolved, and excused the parties from further performance.” Accordingly, the court held that termination by Eberline and Capeo was not an actionable breach.

We reject Beltronics’ argument that the situation is covered by contract 15. That provision contemplated sales activities by Beltronics. That activity was ended by the unilateral action of Western. Paragraph 16(a) is in effect a buy-out clause. When Western refused to do business with Beltronies, nothing remained for Eberline to buy.

The unilateral decision of Western not to do business 'with Beltronics destroyed all possibility of performance. It makes no difference whether the issue be labeled “impossibility,” “failure of consideration,” or “commercial frustration” because the crucial inquiry is whether the equities of the cáse place the risk on Beltronics or Eberline. Lloyd v. Murphy, 25 Cal.2d 48, 153 P.2d 47, 50. We have a supervening event caused by the conduct of Beltronics without any contributory fault on the part of Eberline. See 6 Corbin, Contracts, § 1354, pp. 458-459, and Restatement, Contracts § 457, p. 849. The inability of Beltronics to make sales to Western made the contract inoperative. See Winans v. Landstrom Furniture Corporation, 7 Cir., 132 F.2d 457, 459.

The arguments of Beltronics that the $75,000 payment was for services rendered and to reimburse for the purchase by King and Peterson of the Beltronics stock are without record support.

The Western-Eberline contract required Eberline to make the capacitors in accordance with Western’s specifications, to incorporate only cable sold to it by Western, and to use that cable for no other purpose. Beltronics argues that to relieve Eberline from performance sanctions a restraint of trade, and that the defense of impossibility is unavailable because Eberline agreed to restrictive provisions which made Beltronics’ performance impossible. Beltronics negotiated the agreement which contained the restrictions. The evidence does not support the claim that, absent the restrictions, Beltronics could have sold to other Bell System companies. Beltronics’ loss was not caused by the restrictions but by its own conduct which resulted in Western’s decision to stop business relations.

II

Beltronics asserts that Western tortiously interfered with the Beltronics-Eberline contract and intentionally induced a breach thereof. We have held that no breach occurred. The issue then is whether Western wrongfully interfered with the contract relationship. We take the findings of the trial court to be that whatever interference occurred was justified. Beltronics does not deny the actions of King which caused the Western decision. Indeed, Beltronics concedes that Western had the right to end its dealing with Beltronics. It argues that King’s actions bore upon, the Western-Beltronics, not the Eberline-Beltronics, relationship. This does not follow because Western could legitimately refuse to purchase, either directly or indirectly, from or through Beltronics. Determination of “unwarranted interference” depends on the facts of each case, Watson v. Settlemeyer, 150 Colo. 326, 372 P.2d 453, 456, and is a question for the fact finder. See Order of Railway Conductors v. Jones, 78 Colo. 80, 239 P. 882, 883. The record sustains the trial court and we agree that Western was guilty of no tortious interference.

Ill

We turn to the antitrust claims. Beltronics argues that the restrictions in the Western-Eberline contract on the purchase of cable and the sale of capacitors made with that cable constitute a per se violation of § 1 of the Sherman Act, 15 U.S.C. § 1, within the holding in United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed. 2d 1249. Schwinn was concerned with a contract between a producer and a distributor in which the producer imposed restrictions on resales by the distributors and retailers. We are not concerned with a vertical relationship such as that in Schwinn. The Court there was concerned with the anticompetitive effects of a manufacturer’s restrictions downstream in the channels of distribution.

We are concerned with an agreement for the sale by Western to Eberline of cable and the sale of capacitors by Eberline to Western. In Schwinn the manufacturer parted with dominion, and the restrictions on sale affected transactions by distributors and retailers. In our case we have no impediment to competition. Eberline purchased cable from Western, used the cable in making capacitors, and sold the capacitors to Western. In effect Western bought the cable back, albeit in a different form. Schwinn has no application. ' The record discloses no restraint of trade in violation of the Sherman Act. In any event we find nothing in the record to show that Beltronics was, or could have been, damaged by the restrictions.

IV

Beltronics also argues that a per se Sherman Act violation is established because it was the victim of a group boycott by Western and Eberline. Reliance is placed on Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741. Broadway-Hale, a powerful competitor of Klor’s, instigated a wide combination of manufacturers and distributors to sell not at all, or on highly disadvantageous terms, to price-cutting Klor’s.

Klor’s is not pertinent, and we find no evidence of any .group boycott here. There is no combination, either horizontal or vertical, to exclude competitors or influence the trade practices of a boycott victim. See Worthen Bank & Trust Co. v. National BankAmericard, Inc., 8 Cir., 485 F.2d 119, 124, cert. denied 415 U.S. 918, 94 S.Ct. 1417, 39 L.Ed.2d 473. Instead of the elimination of a competitor at some level, we have the elimination of a non-competing middleman. See Bushie v. Stenocord Corp., 9 Cir., 460 F.2d 116.

There is no unreasonable restraint of trade here. Western was free to buy capacitors from anyone. Its selection of Eberline cannot be stretched into a claim of a § 1 violation. Beltronics’ admitted violation of Western policies caused the Western decision to end the relationship. There is no intimation of any connivance with Eberline or anyone else.

Affirmed.


author: CHOY, Circuit Judge:

text:
    Myrtle E. HILBRANDS and Guam Maintenance, Inc., Plaintiffs-Appellants, v. FAR EAST TRADING COMPANY, INC., Defendant-Appellee.
    No. 73-2117.
    United States Court of Appeals, Ninth Circuit.
    Jan. 23, 1975.
    Howard G. Trapp of Trapp & Gayle, Agana, Guam, for plaintiffs-appellants.
    Jack Rosenzweig of Crain, Rathbun & Shoecraft, Agana, Guam, for defendantappellee.
   OPINION

Before CHOY and SNEED, Circuit Judges, and BEEKS, District Judge.

CHOY, Circuit Judge:

This is the second appearance of this matter in this court, the first being reported sub nom. Fejeran v. Diego, 457 F.2d 544 (9th Cir. 1972), which relates the factual background of the case. This court there held that while Mrs. Hilbrands had received compensation payments from her employer, there was no proof of any workmen’s compensation award by the Guam Workmen’s Compensation Commission (the Commission), therefore § 37033, Government Code of Guam, did not operate to subrogate her employer to her tort action against the alleged tort-feasors. On remand for trial, proof was made in the district court that an award had been made to Mrs. Hilbrands by the Commission.

The district court concluded that since Mrs. Hilbrands had elected to take workmen’s compensation, her employer, Guam Maintenance, Inc., was subrogated to her rights against Far East Trading Company, Inc. (Far East). Accordingly, it granted summary judgment against her as no longer the real party in interest under Rule 17(a) F.R.Civ.P. and granted leave to the “assignee of her claim” under § 37033, her employer, to enter the action as plaintiff in her stead.

Guam Maintenance was substituted as a party plaintiff for Mrs. Hilbrands. However, on motion of Far East, Guam Maintenance was dismissed as substituted plaintiff on the basis that the latter’s insurance carrier which had paid the workmen’s compensation award to Mrs. Hilbrands was subrogated to that employer’s rights under Clause 12 of the insurance policy.

Mrs. Hilbrands then moved to vacate the summary judgment against her and the order dismissing Guam Maintenance as her substitute. Her concern was that leaving her employer’s insurer as the only potential plaintiff meant the claim would not be pursued because the same insurer covered both Guam Maintenance and Far East. The district court denied the motion. She appeals. We affirm in part, reverse in part and remand.

Dismissal of Employer

Since Guam Maintenance’s insurer paid the entire loss suffered by that employer, Guam Maintenance had no interest in the action. United States v. Aetna Surety Co., 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171 (1949). The district court correctly dismissed the employer as substituted plaintiff and we affirm as to this dismissal.

Summary Judgment Against Mrs. Hilbrands

The district court erred when, relying on Rule 17(a) F.R.Civ.P., it concluded Mrs. Hilbrands could not continue as plaintiff and granted summary judgment against her. Rule 17(a) would control if an interest was transferred prior to the commencement of the suit. Rule 25(c) F.R.Civ.P. applies if the transfer occurs during the pendency of the action. Hyatt Chalet Motels, Inc. v. Salem Bldg. & Constr. Trades Council, 298 F.Supp. 699 (D.Oregon 1968); 3B J. Moore, Federal Practice 1125.08 at 321; 7A C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1958. Here the transfer occurred when Mrs. Hilbrands received her award from the Commission, which event occurred after the suit had been commenced. Thus Rule 25(c) governed.

Far East erroneously argues Rule 25(c) is not applicable when an original plaintiff seeks to continue an action if, as a matter of substantive law, that plaintiff no longer has any cause of action against the defendant. Rule 25, it is true, is procedural and does not provide for the survival of any right of action. Survival of the right does depend on substantive law. Here, however, the right to sue Far East clearly survived as a matter of substantive law after Mrs. Hilbrands was awarded workmen’s compensation. That right then passed to her employer’s insurer who paid the entire loss the employer suffered. Since the right of action did survive, Rule 25(c), not local law, controlled the manner in which the action proceeded. 3B J. Moore, supra, K 25.04 [3] at 141; 7A C. Wright & A. Miller, supra, § 1952.

The district court would have reached a different result if it had followed Rule 25(c). Under that rule, the original party continues the action unless the new party in interest is substituted on motion. 3B J. Moore, supra, U 25.08 at 324; 7A C. Wright & A. Miller, supra, § 1958. Here Far East never made a motion for substitution, only the motion for summary judgment against Mrs. Hilbrands. She should, therefore, have been permitted to continue the action.

On remand Far East will, of course, have the opportunity to properly present a motion pursuant to Rule 25(c). If this were a typical case the district court in its discretion could then permit Mrs. Hilbrands to continue alone, join the insurer with her, or substitute the insurer for her. This case, however, presents an unusual situation in that the same insurer represents Mrs. Hilbrands’ employer and Far East. The insurer’s interests are then clearly in conflict with those of Mrs. Hilbrands. In this circumstance Mrs. Hilbrands should be allowed to prosecute this right of action in her own name. Only thus would her interests be protected. While the insurer, therefore, should not be substituted for her, the insurer could of course be joined. See Czaplicki v. The Hoegh Silvercloud, 351 U.S. 525, 76 S.Ct. 946, 100 L.Ed. 1387 (1956).

Affirmed in part; reversed in part and remanded.

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

      . § 37033. Compensation for injuries where third persons are liable. When an injury for which compensation is payable under this Title shall have been sustained under circumstances creating in some person other than the employer a legal liability to pay damages in respect thereto, the injured employee may, at his option, either claim compensation under this Title or obtain damages from or proceed at law against that other person to recover damages. If compensation is claimed and awarded under this Title, an employer, having paid the compensation or having become liable therefor, shall be subrogated to the rights of the injured employee to recover against such other person; provided, if the employer shall recover from that other person damages in excess of the compensation already paid or awarded to be paid under this Title, then any such excess shall be paid to the injured employee, or other person entitled thereto, less the employer’s expense and costs of action. The amount of compensation paid by the employer, or the amount of compensation to which the injured employee or his dependents are entitled, shall not be admissible in evidence in any action brought to recover damages. [Included in Original Government Code of Guam enacted by P.L. 1-88, 1952.]

      . Clause 12 reads: “subrogation: In the event of any payment under the policy, the company shall be subrogated to all rights of recovery therefore of the insured and any person entitled to the benefits of this policy against any person or organization, and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights.”

      . Her co-pjaintiff husband’s claims were voluntarily dismissed in order that an appealable final order might be entered.

      . In relevant part Rule 17(a) provides: “ * * * No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.”

      . Transfer of Interest. In case of any transfer 0f interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party, Service of the motion shall be made as provided in subdivision (a) of this rule.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. ONE 1969 PLYMOUTH FURY AUTOMOBILE, SERIAL NO. PM43G9D199088, Defendant, Ford Motor Credit Company, Intervenor-Appellant.
    No. 72-2844.
    United States Court of Appeals, Fifth Circuit.
    March 20, 1975.
    Michael Lowenberg, Molly W. Bartholow, Dallas, Tex., for intervenor-appellant.
    Frank D. McCown, U. S. Atty., Roger J. Allen, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.
    ON PETITION FOR REHEARING AND PETITION FOR REHEAR- ' ING EN BANC
    Before WISDOM, GEWIN and COLEMAN, Circuit Judges.
   PER CURIAM:

The Petition for Rehearing is denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also denied. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974).

GOLDBERG, Circuit Judge, took no part in the decision on the petition for rehearing en banc.

WISDOM, Circuit Judge, with whom BROWN, Chief Judge, and AINSWORTH, DYER, CLARK and GEE, Circuit Judges, join, dissenting.

I respectfully dissent both on the merits and on the Court’s failure to grant a rehearing en banc.

In this case the record owner of the automobile-was charged and convicted of using it to transport counterfeit federal reserve notes. 49 U.S.C. §§ 781, 782. The owner had made a down payment of only $100. Ford Motor Credit Company’s (F.M.C.C.’s) security interest far exceeded this amount.

FMCC’s position is that the United States Supreme Court in United States v. United States Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), has put a judicial gloss on the federal forfeiture statutes so that when they are interpreted with 19 U.S.C. § 1618

“ . . . [I]t is manifest that they [the forfeiture statutes] are intended to impose a penalty only upon those who are significantly involved in a criminal enterprise”. Coin at 721 — 22, 91 S.Ct. at 1045.

The Supreme Court has recently reiterated its holding in Coin in Calero-Toledo v. Pearson Yacht Leasing Company, 1974, 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452.

In Pearson, a yacht was forfeited under the Puerto Rico forfeiture statutes. The owner of the yacht challenged the statutes as unconstitutional, relying on Coin. The Supreme Court held that the Puerto Rico forfeiture statutes were constitutional; however, it drew a distinction between the Puerto Rican statutes and the federal statutes. The Supreme Court reiterated its holding in Coin that the federal forfeiture statutes must be read with the federal remission statute, 19 U.S.C. § 1618, which requires forfeiture only from persons “significantly involved in criminal enterprise”, and pointed out that no similar remission statute exists in the Puerto Rican forfeiture statutes to protect innocent owners. Consequently, the harsh pre-Coin cases denying innocent owners relief from various forfeiture statutes were held to be applicable to Puerto Rico’s remissionless forfeiture statutes.

The Court in Pearson stated:

“This is not to say, however, that the ‘broad sweep’ of forfeiture statutes remarked in Coin & Currency could not, in other circumstances, give rise to serious constitutional questions. Chief Justice Marshal intimated as much over a century and a half ago in observing that ‘a forfeiture can only be applied to those cases in which the means that are prescribed for the prevention of the forfeiture may be employed.’ (citation deleted). It therefore has been implied that it would be difficult to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent. (citations deleted). Similarly, the same might be said of an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property; for, in that circumstance, it would be difficult to conclude that the forfeiture served legitimate purposes and was not unduly oppressive.” (citations deleted). Pearson, supra, 416 U.S. at 688, 94 S.Ct. at 2094.

I read Coin as holding that in all forfeitures there is a statutory requirement that the party sustaining the penalty be guilty of some form of fault, intentional or negligent. The appellant pitches its argument entirely on constitutional grounds. Here the Government conceded that the Company was not at fault. What is involved is the question of the Government’s statutory or constitutional power to impose a penalty on an innocent party. It offends me that an innocent person who is the constructive owner and indeed is the owner of almost all of the equitable interest in the car, has his property forfeited for the acts of another person.

The theory underlying the forfeiture is stated in the Government’s brief, as follows:

“That claimants of vehicles seized under the provisions of 47 [49] U.S.C. §§ 781 and 782, are not entitled to relief from forfeiture by reason of their good faith or innocence is well established. The claimant, in order to prevent or preclude the forfeiture of the vehicle, must establish the vehicle’s innocence, and the good faith or innocence of the claimant of said vehicle, in respect to the offense with which the vehicle is concerned, is immaterial. The vehicle is condemned as the offender and becomes subject to seizure upon its use in violation of the express provisions of the statute.”

This rationale is barbaric, a vestigial relic of deodand. It is anomalous to treat an innocent lien-holder as harshly as the criminal owner of the automobile. Coin and Pearson throw new light on the subject of forfeitures and allow inferior courts to reexamine the subject without doing violence to the long line of preCoin cases upholding the Government’s position.

I would reverse.


author: SIMPSON, Circuit Judge: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Spencer IRVING, Jr., Defendant-Appellant.
    No. 74-1722.
    United States Court of Appeals, Fifth Circuit.
    March 20, 1975.
    Rehearing and Rehearing En Banc Denied June 11, 1975.

      Joseph R. Bankoff, Atlanta, Ga. (Court-appointed), for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., Sherman D. Johnson, Dorothy T. Beasley, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.
    Before DYER, SIMPSON and CLARK, Circuit Judges.
   SIMPSON, Circuit Judge:

Appellant, Spencer Irving, Jr., was charged in a single count information with imparting false information concerning an alleged attempt to be made to commit air piracy, in violation of Title 49, U.S.C., Sec. 1472(m)(1). The district judge denied Irving’s motion to dismiss for failure to state an offense against the United States, upheld the statute against constitutional attack, and following a bench trial found and adjudged Irving guilty as charged. The court imposed a twelve month confinement sentence, which was suspended, with twelve months’ supervised probation. This appeal timely followed. We affirm.

Appellant’s conviction rests upon his statement to an airline stewardess in the cockpit of a commercial airplane minutes before its takeoff on a regularly scheduled flight that he was studying to be a travel agent, and that when he had studied sufficiently and knew enough about airplanes, he was going to hijack one. Minutes earlier, he had made similar remarks to the Second Officer on board, who warned him never to repeat what he had said. He was removed from the plane and, under questioning by an FBI agent, protested that he had only been joking.

Irving challenges his conviction on three grounds: (1) his speech was without the scope of Sec. 1472(m)(l); if covered by the statute, (2) then the statute is overbroad, conflicting with the First Amendment guaranty of free speech; and (3) vague, in violation of the Fifth Amendment due process clause.

The first argument advanced is that appellant’s language did not fall within the prohibition of Sec. 1472(m)(l) because it concerned an alleged attempt to be made in the indefinite future. The statute, Irving argues, applies only to false information concerning immediate attempts or ones which allegedly will occur at a definite point in time.

The critical language of the statute prohibits the conveying of false information, with knowledge of its falsity, “concerning an attempt or alleged attempt to be made” to commit air piracy. Appellant’s speech, as his counsel conceded at oral argument, falls within the literal wording of the statute. In urging a construction limited to the conveying of false information concerning an immediate peril, however, he misconceives the scope of the problem which Congress addressed.

Beginning in the 1950’s many anonymous phone calls threatening the destruction of airplanes were made to airline and airport officials in the United States, resulting in the grounding or delay of scheduled flights and panic in the public. See 1956 U.S. Code Congressional and Administrative News, pp. 3145-3146. In the 1960’s the fad changed slightly and many of the phone calls conveyed threats of hijacking. See 1961 U.S.Code Congressional and Administrative News, p. 2563 at 2575-2576. Most of the warnings were false and were made by persons evincing a badly distorted sense of humor. Congress responded each time with a statute making such conduct criminal. See Title 18, U.S.C., Sec. 35, the bomb hoax statute; Title 49, U.S.C., Sec. 1472(m). The hijack statute is modeled after the bomb hoax statute. See 1961 U.S. Code Congressional and Administrative News, p. 2563. Because both statutes address similar problems we look to the legislative history and case law interpreting each as a guide for disposition of the present appeal.

The legislative history makes clear that Congress was concerned with the prankster as well as with the individual acting out of malice, and has decreed that the conveyance of such false information is no joking matter. ■ See 1956 U.S.Code Congressional and Administrative News, p. 3145; 1961 U.S.Code Congressional and Administrative News, p. 3052; 1965 U.S.Code Congressional and Administrative News, p. 1834. Our study of this legislative history indicates that the concern of Congress was not solely with preventing the actual destruction or hijacking of airplanes, but also with the disruption of air service and jeopardy to the safety of passengers and personnel which results when false information about potential bombs or hijacks is relayed. The Congress’ power to legislate to prevent such disruption and jeopardy to safety is not open to serious doubt, but when speech is restricted the statute must be construed with the dictates of the First Amendment firmly in mind and measured against its commands. See Watts v. United States, 1969, 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664, 667; Dennis v. United States, 1951, 341 U.S. 494, 501-503, 71 S.Ct. 857, 863-64, 95 L.Ed. 1137, 1148-49.

When we focus our attention on the evils Congress was trying to prevent — unnecessary interference with air commerce, with serious potential for disruption and jeopardy to the safety of the travelling public and crew personnel — we must reject the construction urged by the appellant. When an alleged attempt is supposedly going to occur is not a sufficiently accurate gauge of those evils. An indication of a future attempt may be equally or more disruptive as occasions when the particular flight number, day, time, and location is designated. Conveying false information of an attempt to be made relates, not to the immediacy of an attempt, but rather to whether an attempt is to occur at all. Again, it is not the immediacy of the threat of a hijack which must be looked to in determining whether a defendant has violated the statute, but the immediacy of the threat of disruption.

We therefore construe § 1472(m)(l) as prohibiting the conveying of false information, knowing it to be false of an attempt to be made where there is a real and immediate threat of disruption to present or future air service, with its attendant dangers for the safety of passengers and personnel, whether or not the speaker intends to disrupt, whether or not he knows disruption will result, and whether or not disruption actually does ensue.

Appellant’s speech therefore falls within the scope of the statute, as construed. A cockpit of an airplane, minutes before take-off, is not an appropriate forum in which to announce one’s intent someday to hijack an airplane. As the stewardess testified at trial, such statements as appellant made are always dealt with as serious matters because of the airline’s responsibility for the safety of the many persons aboard. She could not let the statement pass without determining whether or not Irving presented a real threat. Disruption, in the form of delay for removal and questioning, followed as a matter of course.

Appellant nevertheless contends that the statute is overbroad because it prohibits the conveyance of all false information concerning an attempt to commit an unlawful act without regard to the time or place that such information is conveyed, to whom it is conveyed, or whether the false information in fact hinders or threatens to hinder air commerce.

Unlike the situation where a federal court confronts a state statute and is unable to impose a limiting construction which would save the statute from an attack on its constitutionality, see Gooding v. Wilson, 1972, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408, we confront a federal statute and are, accordingly, duty-bound to interpret it “in a manner not inconsistent with the demands of the Constitution”. Dennis v. United States, 1951, 341 U.S. 494, 501-502, 71 S.Ct. 857, 863, 95 L.Ed. 1148. The limiting construction we have imposed obviates any overbreadth difficulties and is consistent with the results reached in prior cases. Time and place are important insofar as they affect the determination whether the false information presents a clear and present danger of interference with air commerce and safety. For example, in United States v. Silver, E.D.Pa.1961, 196 F.Supp. 677, the defendant told a ticket agent he had a bomb in his briefcase. Predictably, the agent alerted airport guards and the FBI. The plane was delayed twenty minutes. The Court took “judicial notice of similar situations elsewhere where individuals of a completely distorted sense of humor or pranksters with juvenile minds have caused expensive delays, investigations, hardships and induced fear by such acts.” 196 F.Supp. at 679. See United States v. Omirly, 4 Cir. 1973, 488 F.2d 353, where the Fourth Circuit affirmed the conviction of a woman who remarked, “You won’t find my bomb” as her luggage was being searched.

Similarly, the individual to whom the false information is conveyed is important only insofar as it affects a finding whether the information poses a clear and present danger of interference with air commerce and safety. That the individual is not an airline official or a law enforcement officer is not determinative. Disruption can ensue when third parties are informed, or misinformed, such as members of the news media or simply members of the general public. For example, in Taylor v. United States, S.D.Fla.1973, 358 F.Supp. 384, the defendant and a companion approached several persons entering the terminal and defendant asked, “Is this the plane that we are going to hijack?” 358 F.Supp. at 385. That the statement was made to third persons generally and not to airport personnel is not determinative of whether this and similar statements pose a clear and present danger to air commerce and safety in situations where it is reasonably foreseeable that such third persons will relay the information to those under a duty to investigate.

Nor is the fact that the false information does not actually hinder air commerce relevant. A defendant cannot rely on the fortuitous circumstance that the evil Congress sought to prevent does not actually, ensue. Thus, the Second Circuit, in United States v. Allen, 2 Cir. 1963, 317 F.2d 777, affirmed the conviction of a man who, while at the ticket counter, asked of a friend, “Is that the bag with the bomb in it?”. Although no actual interruption of any scheduled flight occurred, because an investigation was conducted long before the arrival of the plane defendant was booked for, the Court was unwilling to find “that prohibition of all such false reports to protect the traffic from interruption was an excessive exercise of Congressional power.” Id

We have little difficulty in finding that the statute as construed is not overbroad and hence not unconstitutional on First Amendment grounds. It is aimed at a specific evil and is drawn to effectuate the legislative judgment that such speech must be suppressed. See Cantwell v. Connecticut, 1940, 310 U.S. 296, 307-308, 311, 60 S.Ct. 900, 905, 906, 84 L.Ed. 1213, 1220, 1221. The evil sought to be suppressed by Congress is of such gravity and the restriction on speech so slight as not to constitute an undue infringement upon protected expression. Mr. Justice Holmes’ classic example of the false shout of fire in a theatre, Schenck v. United States, 1919, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470, 473, differs widely from speech which challenges widely held and deeply cherished beliefs, though both may cause serious disruption. The leeway Congress may constitutionally exercise in regulating the former necessarily exceeds considerably the leeway it possesses in regulating the latter. The present situation closely approximates the false cry of fire, and Congress was within its powers in choosing to make such speech criminal.

Appellant’s final argument is that the statute is unconstitutionally vague, in violation of the due process clause of the Fifth Amendment. The district judge expressed the view that had defendant limited his remark to simply stating that “I’m studying to be a hijacker”, he would not have found him guilty, but that Irving’s statement, “I’m studying to be a travel agent and one of these days I’m going to hijack an airplane” constituted a statutory violation. This prompts Irving to urge that reasonable men necessarily experience difficulty in determining what conduct is proscribed by the statute and what is constitutionally protected. See United States v. Petrillo, 1947, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877.

“It is a basic principle 'of due process that an enactment is void for vagueness if its prohibitions are not clearly defined”. Grayned v. City of Rockford, 1972, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222, 227. Laws must give fair warning of what is proscribed, provide stándards to see that they are not arbitrarily and discriminatorily applied, and be explicit enough to avoid á chilling effect. 408 U.S. at 108 — 109, 92 S.Ct. at 2298-99, 33 L.Ed.2d at 227-28. However, “[c]ondemned to the use of words, we can never expect mathematical certainty from our language.” 408 U.S. at 110, 92 S.Ct. at 2300, 33 L.Ed.2d at 228-29 (footnote omitted).

We do not find the statute as construed to be unconstitutionally vague. The conduct/speech which is prohibited is reasonably clear. We are not dealing here with a statute which is aimed at punishing “the expression of an unpopular point of view, and it contains no broad invitation to subjective or discriminatory enforcement.” 408 U.S. at 113, 92 S.Ct. at 2302, 33 L.Ed.2d at 230. Appellant’s first statement did not concern an “attempt to be made,” as his second statement did. This sufficiently distinguished between them, as the trial judge determined.

Affirmed.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en bane, (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En banc is denied.

The statement at page 1328 of 509 F.2d “appellant’s speech, as his counsel conceded at oral argument, falls within the literal wording of the statute” is amended by withdrawing and deleting the italicized language. In all other respects the opinion is adhered to.

      . The indictment charged:
      That, on or about October 19, 1972, in the Northern District of Georgia, SPENCER IRVING, JR. did unlawfully impart, convey and cause to be imparted and conveyed false information, knowing said information to be false, concerning an alleged attempt to be made to do an act which would be a crime prohibited by Subsection (i) of Title 49, U.S.Code, Section 1472, to wit: aircraft piracy; by then and there conveying such false information to Denise Lacouture, a stewardess serving aboard Eastern Air Lines Flight No. 676, scheduled to fly in air commerce from Atlanta, Georgia to Raleigh-Durham, North Carolina; in violation of Section 1472(m)(l), Title 49, U.S.Code.
      Title 49, U.S.C., Sec. 1472(m)(l) provides:
      Whoever imparts or conveys or causes to be imparted or conveyed false information, knowing the information to be false, concerning an attempt or alleged attempt being made or to be made, to do any act which would be a crime prohibited by subsection (i) . of this section, shall be fined not more than $1,000 or imprisoned not more than one year, or both.

        Title 49, U.S.C., Sec. 1472(i) refers to “aircraft piracy,” defined as “any seizure or exercise of control, by force or violence or threat of force or violence and with wrongful intent, of an aircraft in flight in air commerce.” Title 49, U.S.C., Sec. 1472(i)(2).

      . Irving told the FBI agent that he said he was studying to be a hijacker. The district judge opined that this statement alone was insufficient to support a conviction for violation of Sec. 1472(m)(l).

      . Because of the difficulty in obtaining convictions under Title 18, U.S.C., Sec. 35 in instances where the defendant was merely joking, Congress divided the offense into two categories: a misdemeanor for individuals who were only trying to be funny; and a felony for individuals with more sinister motives. See 1961 U.S. Code Congressional and Administrative News, pp. 3052-3053; Title 18, U.S.C., Sec. 35, as amended Oct. 3, 1961. But even after this change, convictions were difficult to obtain, and the statute was again amended to decriminalize the joking bomb hoax and to substitute a civil penalty. See 1965 U.S.Code Congressional and Administrative News, p. 1834; Title 18, U.S.C., Sec. 35, as amended July 7, 1965. Congress did not choose to decriminalize the conveying of false information concerning a hijack, however, and satisfied itself with imposing a more serious punishment where the false information is imparted “willfully and maliciously, or with reckless disregard for the safety of human life”. Title 49, U.S.C., Sec. 1472(m)(l) and (m)(2).

      . Support for our position may be found in Watts v. United States, 1969, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664, holding constitutional on its face Title 18, U.S.C., Sec. 871, a statute which prohibits the making of threats on the life of the President of the United States, even though Sec. 871, like the statute before us, fails to describe those to whom the threat must be conveyed, or to limit when or where the threat must occur.

      . See the dissenting opinion of Judge J. Skelly Wright in Watts v. United States, 1968, 131 U.S.App.D.C. 125, 402 F.2d 676 at 690, rev’d 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664:
      Of course, all spoken threats do not constitute protected speech. Utterances which “are no essential part of any exposition of ideas” or which are “not in any proper sense communication of information or opinion” are not within the purview of the First Amendment. Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); Cantwell v. State of Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). Thus threats are properly punished every day under statutes prohibiting extortion, blackmail and assault without consideration of First Amendment issues.
      On the other hand, where an utterance does convey an idea, particularly an idea about how public affairs should be conducted, the label “threat” does not preclude First Amendment protection any more than do the labels “obscenity”, Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), or “libel,” New York Times Co. v. Sullivan, supra [376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686],