author: JAMES HUNTER, III, Circuit Judge: ROSENN, Circuit Judge,

text:
    UNITED STATES of America, Appellant in No. 73-1832, v. 1,629.6 ACRES OF LAND, MORE OR LESS, IN the COUNTY OF SUSSEX, STATE OF DELAWARE, et al. Appeal of Jennie H. J. LAYTON, in Nos. 73-1833/4.
    Nos. 73-1832—73-1834.
    United States Court of Appeals, Third Circuit.
    Argued May 29, 1974.
    Decided Sept. 3, 1974.
    As Amended Oct. 9, 1974.

      Wallace H. Johnson, Washington, D. C., Ralph Keil, Wilmington, Del., Harry W. McKee, Raymond N. Zagone, Carl Strass, Washington, D. C., for appellant, United States.
    James M. Tunnell, Morris, Nichols, Arsht & Tunnell, Wilmington, Del., Ralph J. Luttrell, Washington, D. C., for The Island Farm, Inc.
    H. James Conaway, Jr., Young, Cona-way, Stargatt & Taylor, Jack B. Jacobs, Doris M. Toll, Richard A. Levine, Wilmington, Del., for Jennie H. J. Layton.
    Before ROSENN and HUNTER, Circuit Judges and HANNUM, District Judge.
   OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This appeal arises out of a suit by the United States government to condemn 1,629.6 acres of land in Sussex County, Delaware. The defendants in the action were Island Farm, Inc. (Island Farm) and Jennie H. J. Layton (Layton). The government and Layton have appealed from the decision of the district court and Island Farm has responded with a motion that seeks dismissal of Layton’s appeal or in the alternative a “summary affirmance.”

Layton’s appeal takes issue with the district court’s determinations on the boundary and title disputes that arose, between herself and Island Farm, in the litigation. The district court’s decisions on these issues generally favored Island Farm and had the effect of increasing its compensation award and reducing Layton’s. The government’s appeal is concerned primarily with what it contends are errors made in computing the compensation that Island Farm is to receive for the taking of its land.

Since the facts relevant to these issues are fully explained by the district court, United States v. 1,629.6 Acres of Land, 335 F.Supp. 255 (D.Del.1971), we will not repeat them here. Further, with the exception of a single issue, we are in full agreement with the district court’s analysis and discussion of the questions raised on appeal. As a result, on all issues other than one dealt with below, we affirm on the basis of the district court’s fine opinions. 335 F.Supp. 255 (D.Del.1971); 360 F.Supp. 147 (D.Del. 1973).

Our only disagreement with the district court concerns its determination on the question of title to the barrier beach lánd in the area designated by the court as Segment II (hereinafter referred to as “Segment II beach land”). See 335 F.Supp. at 277. We feel that the district court erred when it concluded that this land belonged to Island Farm rather than to Layton.

Before discussing the merits of this issue, we must deal with a preliminary objection raised by appellant Lay-ton — that is, that the district court lacked jurisdiction to decide this title question. This contention is based on the fact that the Segment II beach land is not a part of the land condemned, but instead is a piece of land severed from the property taken. As a result, resolution of the dispute over title to this land affects these proceedings only through the effect that it has on the severance damages to be awarded to each defendant. This relation to the proceedings is, according to Layton, insufficient to create jurisdiction.

We do not agree. The district court clearly has jurisdiction in a eon-demnation proceeding brought by the United States government to fix the amount of compensation awarded, and to apportion it among the claimants, 6 J. Moore, Federal Practice jf 71A.10 [1]. Moreover, this latter right necessarily includes the power to determine who among competing claimants owns the condemned land. See United States v. 22,680 Acres of Land, 438 F.2d 75 (5th Cir. 1971); United States v. Atomic Fuel Coal Co., 383 F.2d 1 (4th Cir. 1967); Tyson v. Iowa, 283 F.2d 802 (8th Cir. 1960); Clark v. White, 185 F.2d 528 (5th Cir. 1950).

We believe that the court’s jurisdiction to determine the amount of compensation and its allocation would be significantly hampered if we were to hold that the power to resolve title questions extends only to disputes involving title to the condemned land itself. First, such a ruling would make it impossible for the court to exercise its power to apportion the compensation among competing claimants, in any ease involving a dispute as to the ownership of severed land, since it would be impossible to determine which party was entitled to the severance damages awarded. Second, since damages to the severed land are likely to vary from claimant to claimant, this ruling would also make it impossible, in many cases (including this one), to determine even the amount of compensation to be awarded.

Thus, as a practical matter, the jurisdiction of the district court should include the right to resolve title disputes involving severed, as well as condemned, lands so that it can handle all phases of condemnation cases effectively. Since such a holding is entirely compatible with the language of the statutes conferring jurisdiction in this area, 28 U.S.C. §§ 1345, 1358 (1970), we adopt this approach. Accord United States v. 11,-993.32 Acres of Land, 116 F.Supp. 671 (D.N.D.1953).

With regard to the merits of the dispute over title to the Segment II beach land, we feel that the judgment in favor of Island Farm must be reversed. The district court took the position that Island Farm was vested with riparian rights and that as such it was entitled to accretions forming in front of its property. While we can assume arguen-do that the court’s discussion of the law as it applies to landowners with riparian rights is correct, we cannot accept its initial premise; that is, that Island Farm is vested with riparian rights.

As the district court itself noted the general rule is that “riparian rights attach to land adjacent to natural watercourses, but do not attach to land adjoining an artificial channel.” 335 F. Supp. at 271 (emphasis added). Since the Broadkill Inlet was formed by artificial means, this would seem to prevent riparian rights from attaching to the lands owned by Island Farm. However, the district court went on to point out that there are exceptions to this general rule, and it concluded that two of these exceptions were applicable here.

The first exception that the court applied is based on the theory of prescriptive rights. Several authorities are cited for the proposition that riparian rights can be obtained on artificial waterways by prescription. However, even if we assume that the district court has cited to a correct rule of law, it can have no application here since prescriptive rights cannot be obtained against the federal government. This is fatal to Island Farm’s claim since the government owned the land upon which the Broadkill Inlet was constructed until 1957, three years after the inlet had completely filled in to reform an unbroken barrier beach. Thus, throughout the period that Island Farm adjoined the artificial waterway, that waterway was owned by the government so that no riparian rights could attach by prescription.

The second exception to the general rule barring riparian rights in artificial channels that was relied upon by the district court can be summarized as follows: under certain circumstances artificial waterways will be treated ,as though they are natural. Once again, the court has cited to what we can assume is a valid rule of law, but has applied it in a case where the facts bar its application.

While the cases we have found that rely on this rule are somewhat vague in defining its requirements, the vast majority do share at least one common characteristic — they have applied the rule only in situations where the party invoking it has relied upon use of the artificial waterway that is deemed “natural” for legal purposes. Since no such reliance by Island Farm has been suggested here, we feel that this exception cannot be applied.

Thus, the Broadkill Inlet is to be treated like any other artificial waterway and riparian rights cannot attach to lands adjacent to it. As a result, Island Farm cannot obtain title to the Segment II beach land through the operation of the rules that govern the allocation of title to accretions forming in front of lands that are vested with riparian rights since no such rights ever vested in Island Farm.

The judgment of the district court will be reversed and the cause remanded for a determination of the Island Farm-Layton boundary in the area designated as “Segment II” and for all other adjustments in the judgment of the district court made necessary by our decision.

Each party will bear its own costs.

Judge HANNUM concurs in this opinion and in Judge ROSENN’s concurrence as well.

ROSENN, Circuit Judge,

with whom HANNUM, District Judge, joins (concurring).

I agree with the majority that for purposes of this case Island Farm does not have title to the Segment II beach land. I reach this result, however, by a somewhat different route than does the majority. In order to make my position on this issue clear, I must summarize the facts of the case which are comprehensively set forth in the district court’s first opinion. 335 F.Supp. at 255. On all other issues I agree with the majority and with the district court.

Prior to 1907 the pertinent land area consisted of two parcels on either side of the Deep Hole Creek, which ran north and south. To the west of the Creek was the Delaware mainland, which near the Creek consisted of marsh and fast land. To the east of the Creek was a strip of barrier beach land with its eastern side fronting on the Delaware Bay. These two parcels will be referred to as the western parcel and the eastern parcel, respectively, throughout this opinion. Both parcels were owned by Hall in 1907.

North of the pertinent area, the Creek turned eastward and connected with the Delaware Bay. South of the pertinent area, the Creek connected with the Broadkill River. The Creek which was a navigable waterway, was the sole means of access between the Delaware Bay and the Broadkill River. A simple sketch of the pertinent land configuration is attached hereto as Appendix A.

The junction of the Creek and the Delaware Bay, however, was for various reasons “unacceptable as a permanent channel for navigation.” The Federal Government determined to stabilize navigation between the Bay and the Broad-kill River by building a new waterway connecting the Creek and the Bay. In 1907 it purchased 5.8 acres of the eastern parcel owned by Hall, dividing Hall’s remaining eastern parcel into two disconnected segments. The Government built a jetty across this newly purchased land, and dredged its land south of the jetty so as to connect the waters of the Creek and the Bay. The new body of water created from the dredging of the Government land was called the Broad-kill Inlet. The result was a continuous navigable route from the Delaware Bay, through the Broadkill Inlet, south a short distance along the Deep Hole Creek, and thence into the Broadkill River. A sketch of the land configuration at the time is attached hereto as Appendix B.

In 1921, after a portion of the southern segment of Hall’s remaining eastern parcel had eroded, Hall sold his entire remaining interest in the eastern parcel to Layton. The deed purported to convey the entire original eastern parcel except for the 5.8 acres previously sold to the Government.

In 1936, after further erosion had taken place, Hall sold the entire western parcel to Draper, who shortly thereafter transferred title to Island Farm, a family corporation. The Hall deed purported to convey all of Hall’s land west of the Deep Hole Creek. It should be noted, however, that by this time the Inlet had widened, increasing that portion of the western parcel which bordered on the Inlet and which was therefore directly connected to the Delaware Bay. The topography of the relevant area at this period in time is given in Appendix I of the district court opinion. See 335 F.Supp. at 276.

Shortly after 1936, a second inlet was built at a different location. The Broadkill Inlet was thereafter used less frequently and eventually began to shoal up. In 1953, the Government stopped maintaining the Broadkill Inlet, and by 1954 the Inlet had completely filled in with alluvium. The alluvium extended to the edge of the western parcel, blocking the flow of the Creek in this area. The result was a single solid land unit in 1954, not transversed by water. See Appendix II of the district court opinion, 335 F.Supp. at 277.

In 1957, the Government conveyed to Layton, by quitclaim deed, land described therein as consisting of “the same premises conveyed to the United States of America by Deed of George H. Hall and Della H. Hall, his wife, dated July 5, 1907 . . . .” The dispute in this case concerns ownership of Segment II, the dry land which is now located on the site of what had formerly been the Broadkill Inlet. Layton, supported by the Government, contends that the chain of title to the 5.8 acres ran from Hall to the Government in 1907, and from the Government to Lay-ton in 1957. Layton claims ownership of all the land corresponding to the eastern parcel owned by Hall until 1907, i.e., all of the land in the relevant area fronting on the Delaware Bay.

The district court rejected this contention, granting Island Farm title to the area that had been the Broadkill Inlet at the time Draper purchased its land in 1936. The court reasoned that “in the Broadkill Inlet area, the Government could and did lose title to any land eroded away by the actions of the inlet, or dredged to establish the navigable channel.” 335 F.Supp. at 273 (emphasis supplied). The court then held that the accretion which resulted in the filling in of the Inlet area should be awarded to Island Farm rather than to Lay-ton, in order to preserve the riparian interests of Island Farm as they existed when Draper purchased the land. Lay-ton was left with two disconnected segments of land fronting on the Delaware Bay, corresponding to her ownership in 1936.

I would reverse the district court on this aspect of its opinion because I believe the Government never lost title to the 5.8 acres from the time it purchased the dry land in 1907 until it sold the dry land to Layton in 1957. Layton purchased a fee interest in the land in 1957, and Island Farm has no legal interest therein.

The district court relied in part on the principle that the Government, just as any private party, is subject to the loss of land by erosion and the gain of land by accretion. The court apparently analogized dredging to erosion, and concluded that the Government lost title to the 5.8 acres when it dredged the land to create the navigable inlet.

I do not believe, however, that the rationale of the erosion and accretion principle extends to dredging. The principle is based in part upon the “compensation theory” that “[sjince a riparian owner is subject to losing land by erosion beyond his control, he should benefit from any addition to his lands by accretions thereto which are equally beyond his control.” Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 326, 94 S.Ct. 517, 526, 38 L.Ed.2d 526 (1973). Since there is no analogue to voluntary dredging by which an owner could gain title to land, I do not believe that dredging should result in the loss of title to land. See United States v. Turner, 175 F.2d 644, 648 (5th Cir.), cert. denied, 338 U.S. 851, 70 S.Ct. 92, 94 L.Ed. 521 (1949), stating that artificial dredging of privately owned land would not deprive the owner of title to the land which he put below water by this means.

These considerations are especially strong where the Government deliberately dredges its land in order to further navigation. An intolerable burden would be imposed on the Government’s plenary power over navigable waters of the United States, and its duty to further navigation, if we were to hold that the Government may dredge its own land for that purpose only at the cost of permanently losing title to the land by that act.

Although the district court’s conclusion is phrased in terms of the Government’s losing title by dredging, the point the district court ultimately makes is that the Government lost title to the 5.8 acres when it permitted the land to fill in. The reasoning is that when Draper purchased land fronting on the Government-maintained Inlet in 1936, he and Island Farm (his nominal successor in interest) became vested with a permanent right of access to the Delaware Bay, even if the only way to maintain that access is to give Island Farm title to the alluvium now located on the former location of the Inlet. I disagree with this conclusion, and, unlike the majority in this case, I do not rely upon the failure of Island Farm to use its riparian rights before the Inlet filled in.

To begin with, since the Government did not lose title to the bed of the Inlet after dredging, it retained title after it permitted the land to fill in. Burns v. Forbes, 412 F.2d 995, 997-998 (3d Cir. 1969). Even assuming arguendo, however, that this rule cannot be used to defeat a party’s riparian interests, and also assuming arguendo that the Island Farm land could be deemed riparian to the Delaware Bay in 1936 because the Broadkill Inlet took on the characteristics of a “natural watercourse,” I still conclude that the Government did not lose title to the 5.8 acres until it sold the land to Layton. I believe that the Government had a clear right to eliminate any riparian interests of the Island Farm land by restoring the land it had dredged or by permitting the Broadkill Inlet to fill in, without Island Farm thereby obtaining any rights as against the Government.

I find closely on point the case of United States v. Commodore Park, Inc., 324 U.S. 386, 65 S.Ct 803, 89 L.Ed. 1017 (1945). In that case, the Government had deposited material into a navigable creek, destroying the navigability of the creek and thereby eliminating the riparian right of access to navigable waters formerly enjoyed by property contiguous to the creek. The Supreme Court rejected the property owners’ claim that the Government’s action in blocking the creek was a taking of property requiring compensation under the Fifth Amendment. The Court stated:

Second. Nor does a riparian owner acquire a unique private right distinct from that held by all others, to have access to and enjoyment of navigable waters and to recover compensation from the government because deprived of that privilege by an authorized governmental change in a stream. Respondent’s property was always subject to a dominant servitude; it did not have a vested right to have this navigable stream remain fixed and unaltered simply because of the consequent reflected additional market value to adjacent lands. Whatever market value of riparian lands may be attributable to their closeness to navigable waters, does not detract from the government’s “absolute” power, in the interests of commerce, to make necessary changes in a stream. In short, as against the demands of commerce, an owner of land adjacent to navigable waters, whose fast lands are left uninvaded, has no private riparian rights of access to the waters to do such things as “fishing and boating and the like,” for which rights the government must pay. Riparian rights of access to navigable waters cannot, as against the government’s power to control commerce, be bought and sold.

324 U.S. at 390-391, 65 S.Ct. at 805-806 (footnotes omitted).

In the instant case, therefore, the Government had no duty to pay money compensation to Island Farm for destroying Island Farm’s right of access to the Delaware Bay when, in furtherance of navigation, it abandoned the Broadkill Inlet in favor of another inlet without invading the fast land of Island Farm. Commodore Park, supra, also makes clear that Island Farm enjoyed no vested riparian rights as against the Government by virtue of its location at the foot of the Government inlet. Island Farm’s claim of title in the instant case would be analogous to a claim that the landowners in Commodore Park bordering on the creek obtained title to the area of the creek filled in by the Government. In light of the Supreme Court’s language quoted above, this contention would clearly have been rejected as without merit. I do not believe, therefore, that the Government must compensate Island Farm in any form, either in money or in title to the land on the former location of the Broadkill Inlet. I conclude that the Government never involuntarily lost title to the 5.8 acres, and that Layton acquired title to that land by purchase in 1957.

My discussion thus far has concerned title to the 5.8 acres which the Government purchased in 1907 and sold in 1957. The district court found, however, that by 1936 the Broadkill Inlet had widened by eroding Layton’s land outside of the 5.8 acre parcel. The district court, in awarding Island Farm title to land based upon its frontage on the Inlet as of 1936, therefore awarded some land to Island Farm which was outside the 5.8 acres in question, and which had previously been owned by Layton before being eroded by the Inlet.

There is no contention that the Government ever had title to any land outside the 5.8 acres. The question of title to the remaining land awarded to Island Farm, therefore, is a purely private dispute between Island Farm and Layton. It could be persuasively argued that Island Farm should be awarded this land, preserving its riparian rights without infringing upon the Government’s interests in navigation.

I agree with the majority, however, that Layton is also entitled to ownership of these land areas outside the 5.8 acres. In this situation the doctrine of riparian rights competes with the doctrine of reemergence, which restores title to the former owner of surfaced land when identifiable riparian land erodes and subsequently reemerges. See Bonelli Cattle Co., supra, 414 U.S. at 330 n. 27, 94 S.Ct. 517. At least absent a showing that Island Farm had used its riparian rights of access to the Bay, I believe that Island Farm’s interest in now being made riparian to the Bay is subordinate to Layton’s interest in regaining land which had formerly eroded and has now reemerged. Therefore, as does the majority in this case, I would award Layton all of the land in the Segment II area.

APPENDIX A:

Configuration of Land Prior to 1907

APPENDIX B:

Configuration of Land Following Dredging of Broadkill Inlet in 1907

      . The government also seeks to appeal from the district court’s key title determination with regard to the barrier beach land. We seriously doubt the government’s right to raise this issue on appeal, since it chose not to involve itself in the district court’s proceedings on the question in any way. However, the same issue is raised by Layton, so that we reach it in any case.

      . The issues raised by Island Farm in its “Motion to Dismiss Defendant Layton’s Notices of Appeal, or, in the alternative, for Summary Affirmance of the District Court’s Title Determination” were not raised before the district court or discussed in its opinions. However, these contentions are clearly without merit and will be rejected without further discussion.

      . Layton also argues, in the alternative, that the district court should have abstained from deciding the title issue. Even if we assume that state law is to he applied in resolving the title dispute presented here, see note 10 infra, we cannot accept this contention. As we have noted in the text federal courts make title decisions as a matter of course where the land in dispute is actually taken in the condemnation proceedings. See United States v. 22,680 Acres of Land, supra; United States v. Atomic Fuel Coal Co., supra; Tyson v. Iowa, supra; Clark v. White, supra. If abstention is inappropriate in these eases, it is equally inappropriate in cases like the present one w' ere the court must determine title to land outside the condemned area in order to complete the proceedings. The court in each instance is required to interpret the same body of state law and the issues involved are not made different or more uncertain simply because the property in dispute is not condemned. The mere physical location of the land cannot make abstention more or less appropriate.

      . 335 F.Supp. 271 n. 74.

      . See Annot., 55 A.L.R.2d 554, 563, 576 (1957); 25 Am.Jur.2d Easements & Licenses § 41 (1966).

      . Opinion of the district court, 335 F.Supp. at 261. This finding is not clearly erroneous.

      . Island Farm’s claim to prescriptive riparian rights appears to suffer from a second defect, as well, since adverse use of these rights does not appear to have been established. 93 C.J.S. Waters § 129d (1956).

      . The rule is more fully explained by the district court, 335 F.Supp. at 272.

      . Clement v. State Reclamation Board, 220 P.2d 897, 35 Cal.2d 028 (1950); Natural Soda Prod. Co. v. Los Angeles, 23 Cal.2d 193, 143 P.2d 12 (Cal.1943); Delaney v. Boston, 2 Del. (Harr.) 489 (1839); Stimson v. Brookline, 197 Mass. 568, 83 N.E. 893 (1908); Kray v. Muggli, 84 Minn. 90, 80 N.W. 882 (1901); Taggart v. City of Jaffrey, 75 N.H. 473, 76 A. 123 (1910); Earl v. DeHart, 12 N.J.Eq. 280 (1856); Townsend v. McDonald, 12 N.Y. 381 (1855); Cloyes v. Middlebury Elec. Co., 80 Vt. 109, 66 A. 1039 (1907); Murchie v. Gates, 78 Me. 300, 4 A. 698 (1886). Kansas is the only jurisdiction we have been able to find in which the rule appears to be applicable in cases where there is no apparent reliance upon the artificial waterway by the party invoking it. Hornor v. City of Baxter Springs, 116 Kan. 288, 226 P. 779 (1924); Mo. Pac. R.R. Co. v. Keys, 55 Kan. 205, 40 P. 275 (1895). However, even these cases can be distinguished from the present case since they involve the diversion of natural streams into artificial channels, rather than Hie creation of wholly new waterways.

      . Naturally, other factors in addition to “reliance” may be prerequisite to the application of this rule. However, since this necessary requirement, is absent in this case, there is no need to explore other requirements that may exist.

      . We note that the appellants disagree over whether this title dispute is governed by state or federal law. The government’s brief, at page 8 n.4, asserts that federal law controls since Layton claims under a quitclaim deed from the government. Layton, on the other hand, by arguing that the federal courts should abstain from deciding t'. e question implicitly suggests that state law controls. Since Delaware law coincides with our view of the proper federal rule in this area, we make no attempt to resolve this question. Delaney v. Boston, supra, 2 Del. (Harr.) 489 (1839).

      . We note that the concurring opinion reaches the result that we do, but that they chose to rest their decision, in part, on other grounds. While we take no position on the validity of their thoughtful discussion, we decline to adoj>t tlioir approach because we feel that a decision on the two additional issues they discuss is not necessary in order to resolve the dispute before us.
      The concurring opinion makes three points: 1) that title to accretions can never vest in adjoining landowners when the waterway involved was created by dredging operations; 2) that title to accretions cannot vest in land originally owned by the government in any case; and 3) that in the absence of a showing that Island Farm lias used its riparian rights, it cannot obtain title to accretions in land originally owned by a private party — that is, by Layton.
      We note that the concurring Judge’s third point substantially repeats the last point that we made in the text of our opinion: absent reliance, title to the accretions cannot vest in Island Farm under the facts of this case. It is true, that the concurring Judge only applies this rule as against land originally owned by the private party, Layton. However, if the rule is applicable with regard to “Layton’s land” we believe that it is, a fortiori, applicable with regard to the land originally owned by the government. Thus, we believe that a single holding suffices to dispose of the entire issue.

      . The district court expressly limited the effect of its title determination to this case, stating that the decision could not be pleaded as res judicata or collateral estoppel in a state court title proceeding. See 335 F.Supp. at 259 n.8.

      . I follow the district court and adjust all directions as if the Creek ran north and south, even though it actually ran northwest and southeast. See 335 F.Supp. at 260 n. 15.

      . 335 F.Supp. at 260 n.6.

      . The district court found that during the 1907-1953 period, the Inlet “wrought substantial and frequent changes in not only the Deep Hole Creek, the Broadkill River, barrier beach land, and mainland in the immediate area of the jetty, but also the shore bordering the Delaware Bay south of the inlet.” 335 F.Supp. at 272. The court concluded that the Inlet had the attributes of, and must be treated as, a natural waterway. Id.

      . The narrow body of water running left and right in this diagram is an artificial channel dredged by Layton in 1968, and does not have any relevance for present purposes.

      . The court applied the rule that “a riparian landowner cannot be made non-riparian by accretion and therefore, regardless of the manner in which an alluvian accretes or to whom it initially attaches, the riparian owner in front of whose land it forms gets title to it.” 335 F.Supp. at 268.

      . See references cited in the district court opinion at 335 F.Supp. at 273 n.82.

      . All three judges on the Turner panel cone Judge Sibley’s concurring opinion. :red in this point. See the first paragraph of

      . See also Gibson v. United States, 166 U.S. 269, 17 S.Ct. 578, 41 L.Ed. 996 (1897); South Carolina v. Georgia, 93 U.S. 4, 23 L.Ed. 782 (1876); United States v. Rands, 389 U.S. 121, 122-123, 88 S.Ct. 265, 19 L.Ed.2d 329 (1967).


source: Caselaw Access Project

author: PELL, Circuit Judge.

license: Public Domain

text:
    Irwin FIELD, Plaintiff-Appellant, v. Honorable John S. BOYLE, Chief Judge of the Circuit Court of Cook County, Illinois, Defendant-Appellee.
    No. 73-1056.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 3, 1973.
    Decided Oct. 4, 1974.
    Rehearing and Rehearing En Banc Denied Oct. 31, 1974.

      Sheldon Engel, Chicago, 111., for plaintiff-appellant.
    Bernard Carey, State’s Atty., and Fredric B. Weinstein, Asst. State’s Atty., Chicago, 111., for defendant-appel-lee.
    Before CUMMINGS, PELL and STEVENS, Circuit Judges.
   PELL, Circuit Judge.

On July 1, 1971, in accordance with the new Constitution of the State of Illinois which became effective on that date, the office of magistrate ceased to exist. On that date, persons then serving as magistrates were elevated “automatically” to the position of Associate Judge for a four-year term. At a meeting of the judges of the Circuit Court of Cook County, Illinois, in June 1971, a majority of the judges casting ballots had voted to remove plaintiff Irwin Field from his position as magistrate, effective June 30th. They had before them the recommendation of a judicial committee assigned the responsibility of evaluating the qualifications of the circuit’s magistrates. The circuit judges had acted on the basis of a directive of the Supreme Court of Illinois, which was concerned that magistrates unsuited to be judges might assume that role on July 1st. Because Field was terminated, he was not eligible for the July 1st promotion.

In an action filed December 1, 1972, based upon 42 U.S.C. § 1983, former magistrate Field alleged that the judges of the Circuit Court of Cook County had violated his rights under the Fourteenth Amendment. The complaint contended, inter alia, that (1) the judges, in effectuating plaintiff’s removal, had failed to grant him a “fair hearing,” notice of a hearing, a statement of reasons why he should not be retained, an adequate opportunity to respond to “attacks on his reputation,” and an opportunity to confront his detractors; and (2) the judges’ vote which found Field unqualified to become an Associate Judge and which terminated his appointment as magistrate was void because the majority who had voted against Field did not equal a majority of the total number of circuit judges in Cook County. Field sought a preliminary injunction and a permanent injunction restraining the judges from filling all the vacancies for Associate Judge and an order directing the judges to reinstate Field to the judiciary and award him back pay. Plaintiff also sought a declaration that his removal had violated the due process clause of the Fourteenth Amendment.

After denying Field’s motion for a preliminary injunction and dismissing as to all the defendants except Chief Judge Boyle, the district court on September 5, 1972, issued a memorandum opinion in which it stated that Field had not been given a “due process hearing.” However, the court concluded that there was a dispute as to whether Field had waived his right to such a hearing and the court therefore ordered a hearing on this waiver issue. In the same memorandum opinion, the court also announced that it would abstain from deciding whether the defendant had violated Illinois law by acting on a vote cast by fewer than a majority of all the circuit’s judges.

At the conclusion of the hearing ordered, the court found that Field had waived his right to a due process hearing. The court subsequently entered summary judgment for defendant Boyle. Field appeals.

I

Field first sat as a magistrate in January 1966 and thereafter was reappointed annually to that position by the judges of the Circuit Court of Cook County. Section 12, Article VI of the “old” (1870) Illinois Constitution had authorized the judges of each circuit to appoint, “[sjubject to law,”-magistrates “at their pleasure.” Local rule 0.8 of the Circuit Court of Cook County provided that

“ . . . The Circuit Judges . shall appoint Magistrates to serve at their pleasure. . . . Magistrates shall be appointed for a term of one year commencing the first day of January each year and may be reappointed for like terms during good behavior. . . .”

Field asserts that he, as a public employee, had a right prior to his dismissal to a hearing that satisfied the Fourteenth Amendment’s due process requirements. Whether plaintiff was entitled to procedural due process protection depends upon whether he meets the criteria set out in Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), the Supreme Court decisions most closely on point. Roth-Sindermann concerned the procedural rights of public school teachers whom their boards had decided not to rehire. Field maintains that he doubly qualified under those cases: First, he had a legitimate claim of entitlement to be in office beyond the date he was dismissed, that is, he had a “property interest” in the position of magistrates or an “expectancy of employment” under state law (court rule 0.8), at least until his 1971 one-year term was completed; second, the judicial committee’s determination that Field was unqualified to be an associate judge was an attack on his integrity and therefore should have triggered a “due process hearing” at which plaintiff would have the opportunity to clear his name.

Judge McGarr in his memorandum opinion of September 5, 1972, concluded that the termination of Field as magistrate did not amount to a deprivation of Field’s “liberty.” The circuit’s judges, the court said, had not stated the reasons for their unfavorable evaluation of plaintiff’s qualifications. However, relying on the fact that Field had been dismissed midway through his appointment under local rule 0.8, Judge McGarr held that the termination was a deprivation of a property interest, stating “ [t] ermination at that point in time required a due process hearing.”

We disagree that Field had a property interest or expectancy of employment which could not — consonant with the federal Constitution — be divested without Field first being afforded some kind of due process hearing. Plaintiff’s most recent appointment was effective January 1971. The specially convened constitutional convention adopted on September 3, 1970, the new Illinois Constitution, which contained no provision for the office of magistrate. On December 15, 1970, a majority of those citizens voting ratified the proposed Constitution.

Under the prior Constitution, the magistrates were to be appointed by the circuit judges “at their pleasure.” Ordinarily, this phrase would connote to us that the appointment being at the pleasure of the appointing officials was by implicit terms not viable beyond the term during which the pleasure continued to be viable. Here the pleasure ceased to exist as of June 30, 1971. If we should assume arguendo that notwithstanding lack of constitutional limitation on removal power, the circuit judges of a particular circuit could legally postpone their power of removal to the end of each year when the lack of pleasure would be reflected in the failure to reappoint, we still would find no basis for saying that the power to appoint for a one year term continued to exist on January 1, 1971 after the new Constitution had been formally adopted. While the transition schedule recognized that the position of magistrate would continue to exist for a limited purpose, that existence continued only until the effective date of the new Constitution which was one half a year away. We therefore are unable to conceive that the judges could freeze an appointee into a definite term in a position which had no life for that full term. Of necessity, the 1971 appointment had to be at pleasure. There is no indication in the record that rule 0.8 was revised to provide for a six month term of office.

We find no law or decision that mandates the conclusion that Field had a property interest in a six-month term or that the Supreme Court of Illinois and the judges of the Circuit Court of Cook County acting at its directive lacked the power to screen and dismiss magistrates prior to July 1, 1971. Neither the old Constitution nor the local rule provided that magistrates could be terminated only for specified reasons after a due process hearing. Magistrates served “at [the] pleasure” of the judges. Cf. Adams v. Walker, 492 F.2d 1003, 1006-1007 (7th Cir. 1974).

However, because of the nature of the charges on which Field’s dismissal was based, including a low evaluation of his integrity, we will assume arguendo that plaintiff’s liberty interest was sufficiently implicated so as to activate the due process clause. In Roth, 408 U.S. at 573, 92 S.Ct. at 2707, the Court, in dictum, stated that where the State, in declining to rehire a teacher, makes a charge against him that might seriously damage his standing and associations in his community, “due process would accord an opportunity to refute the charge before University officials.” The footnote to this passage explains that “[t]he purpose of such notice and hearing is to provide the person an opportunity to clear his name. Once a person has cleared his name at a hearing, his employer, of course, may remain free to deny him future employment for other reasons.”

At a meeting with the circuit’s committee on magistrates on May 6, 1971, Field was told that he had received a zero in every category in which his qualifications for associate judge were evaluated. The magistrates were rated in the following area: integrity, judicial temperament, attendance, knowledge of the law, interest in the Court system and cooperation. At least two judges present at the meeting reported that Field was asked if he had anything to say in response to the low evaluations. He either “shrugged his shoulders” or “had sort of a sheepish smile.” The district court found that Field knew the judges’ concerns about him in “sufficient detail so that he knew why he was being called before the Committee and what aspects of his judicial characteristics in question he was being called upon to defend.” According to two of the judges who attended the May 6th meeting, plaintiff was also told that he could be represented by a lawyer and could request a further hearing, in the presence of a court reporter, before the committee or the entire judiciary. One judge mentioned the possibility of Field’s confronting those who had registered complaints against him. The chairman of the committee testified that Field replied, “I am here now, I will answer questions. I don’t care about any hearing, formal hearing.”

On the basis of this evidence, Judge McGarr found that Field had been offered the opportunity to have another, fuller hearing regarding his qualifications for the office of associate judge and that Field had failed to accept the offer. Field argues at length as to the incorrectness of this finding of the district court, however, in essence this is an attack on the credibility of the witness on whose testimony the finding was primarily based. The district court's credibility determination being amply supported by the record we decline to say that it was incorrect. Accordingly, we accept the determination that Field waived any further rights to a hearing that he might have had.

Our recent decision in Suckle v. Madison General Hospital, 499 F.2d 1364 (1974), a section 1983 action by a surgeon seeking reinstatement to the staff of a hospital, is pertinent here. We held:

“Plaintiff has no federal right to be on the staff of Madison General Hospital. The only federal right he claims is the right to a due process hearing before denial of reappointment. ... In our view the medical staff hearing offered on January 7th was neither explicitly nor obviously insufficient. Plaintiff was not entitled to reject it out of hand merely because it might turn out to be inadequate. Judicial relief is not warranted where a plaintiff rejects a seemingly adequate hearing without inquiring about procedural details that he considers crucial.” 499 F.2d at 1367.

II

Field also contends that his dismissal was void because it was effected by fewer than a majority of all the sitting judges of the Circuit Court of Cook County. He relies on Section 12, Article VI of the 1870 Illinois Constitution, quoted above, and on the following language of local rule 0.8: “Whenever a vacancy occurs in the office of Magistrate, a majority of the Circuit Judges may appoint a Magistrate to fill the unexpired term.” Field reads these provisions as requiring the concurrence of a majority of all the circuit’s judges. From this he argues that the power of removal is an incident of the power of appointment and that, therefore, “the . entity and its quantum which has the power to fill vacancies accordingly is the same being and sole quantum necessary to remove.” Interestingly, he did not equate a power to remove “at pleasure” with the power to appoint “at pleasure.”

On June 21, 1971, the date of voting on magistrates’ qualifications, the Circuit Court of Cook County included 71 judges. Thus, under plaintiff’s theory, although a majority of those judges participating — 35 of 65 — voted to remove plaintiff from office, their effort failed by one vote.

Upon analysis, the majority vote issue seems to break down into two sub-issues: the proper construction of rule 0.8 and of the state constitutional provision, matters of Illinois law; and the legality, under the federal Constitution, of dismissing a magistrate by a vote of less than a majority of all those eligible to vote.

Most of Field’s arguments about the proper construction of the state provisions center on policy reasons for not applying the usual and concededly well-established rule that “majority” means one more than half of those voting on a particular question. Without authorization or proof, Field asserts that his interpretation of the pertinent law was the interpretation that the promulgators intended. Their aim supposedly was to “retard Political reprisals for unpopular but judicially worthy decisions.” In the absence of a record supporting such an inference, we may not act as a policy-making body and read in such a restriction.

Not only are we not persuaded that the provisions relied upon by Field require an absolute majority, but plaintiff cites no solid Illinois authority that the provisions, which on their face pertain only on the appointment of magistrates, necessarily apply to the removal of persons from the office of magistrate.

Shortly after the June 21st meeting of the circuit’s judges, the Supreme Court of Illinois denied Field’s emergency application for a writ of mandamus, in which Field had sought reinstatement on the ground of the supposedly insufficient vote. Although the court issued no opinion and may have refused to grant the writ because it concluded that mandamus was an inappropriate remedy, we do give the denial some weight as an intimation, at the least, of how the highest court of the state regards plaintiff’s claim. We also find significant the fact that the Cook County Circuit Court judges took action in reliance on the evaluation of Field by 65 of the Circuit’s 71 judges. The dismissal reveals the judges’ interpretation of their own rule.

We find Field’s challenge on federal constitutional grounds unconvincing. The decision whether to base a decision on a majority of those present or voting or on an absolute majority of all those eligible to vote seems to us to reflect policy considerations which the due process clause does not foreclose the States from evaluating as they think best. Many “important” issues are decided by a majority or other number of those voting or present at the voting. Cf. U. S. Constitution, art. I, sections 2, clause 5, 3, clause 6, and 5, clause 1 (impeachment and conviction upon impeachment). In short, we find no merit to the argument that the vote to oust Field violated the due process clause of the Fourteenth Amendment. Approximately 92 percent of the circuit’s judges eligible to vote on plaintiff’s qualifications did so.

We have considered the other contentions raised in this appeal and find them without merit. Accordingly, we affirm the judgment for defendant Boyle on all counts.

Affirmed.

ADDENDUM

The Supreme Court during its March Term considered the matter of the importance of re-appraising the qualifications of present magistrates in the State of Illinois prior to the effective date of the new Constitution.

The Court believes that it is extremely important that the present magistrates be screened before that date to avoid freezing in office as associate judges those who are not qualified to hold that office. Unless such a screening takes place before July 1, 1971, it is likely that Section 10 of Article VI and Section 4 of the transition schedule will together be interpreted to mean that all magistrates in office on that date are frozen in as associate judges for a four-year term.

The Supreme Court is accordingly directing that prior to July 1, 1971, the Chief Judge and the Circuit Judges of each circuit shall re-appraise the qualifications of their present magistrates and shall terminate, prior to July 1, 1971, the employment of any of the present magistrates whom they feel are not qualified to hold office as associate judges for a four-year term commencing July 1.

A report of this re-appraisal should be made to the Administrative Office prior to June 15, 1971, and should include a list of those magistrates who the circuit judges desire to retain as associate judges for a four-year term commencing July 1. It should also include the names and date of termination of employment of those magistrates who are not to become associate judges.

      . The transition schedule appended to the body of the new Illinois Constitution stated in part: “On the effective date of this Constitution, Associate Judges and magistrates shall become Circuit Judges and Associate Judges, respectively, of their Circuit Courts. Notwithstanding the provisions of Section 11 of Article VI, magistrates in office on the effective date thereof are eligible to serve as Associate Judges.”
      To effectuate this change in the judiciary, the Illinois Supreme Court instructed the chief judges of the various circuits of certain steps they should take. The director of the Administrative Office of the Illinois Courts, writing on behalf of the State’s Supreme Court, sent Chief Judge Boyle a letter, the text of which is appended to this opinion as an addendum.
      The 1870 Constitution conferred upon the Supreme Court of Illinois general administrative authority over all Illinois courts. Section 2, Article VI.

      . The district court dismissed as to the other judges of the circuit as defendants apparently because they had not been served individually. In a motion to dismiss they had contended that “Judges of the Circuit Court of Cook County, Illinois, as an administrative entity,” was not a legal, sueable group. That motion also suggested that all the judges must be dismissed from the § 1983 action — which sought injunctive as well as monetary relief — on the basis of judicial immunity. The question of judicial immunity is one which we need not answer in order to decide this appeal. We do note, however, that the present case does not even fit within that category of situations we deemed exceptional in Littleton v. Berbling, 468 F.2d 389 (7th Cir. 1972), reversed, O’Shea v. Littleton, 414 U.S. 812, 94 S.Ct. 34, 38 L.Ed.2d 47 (1974). See Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); cf. City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Barr v. Matteo, 360 U.S. 564, 569-570, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Hampton v. City of Chicago, 484 F.2d 602, 607-608 (7th Cir. 1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974).

      . Field had moved for final judgment as to certain counts which had not, in his opinion, had final judgment disposition. In response to this motion, the district court had entered “summary judgment for defendant John S. Boyle, and against plaintiff as to all counts on the Complaint.” Since this action followed an evidentiary hearing as to certain of tlie issues in which apparently issues of fact were in part, at least, determined on a credibility basis it would appear that reference to summary judgment was inappropriate. We accordingly will disregard the nomenclature and treat the case as having been disposed of by final judgment on the issues created. We also note that although the district court purported to abstain as to the “majority” issue, the court did not retain jurisdiction. The plaintiff deemed that the counts containing this issue had been dismissed.

      . The Supreme Court in those decisions held that the Fourteenth Amendment does not require that a nontenured teacher at a state college be given notice and a hearing prior to the nonrenewal of his contract unless the teacher could show that the nonrenewal deprived him of an interest in “liberty” or that, despite the absence of formal tenure, he had a “property” interest in continued employment. Whether a teacher had a property interest was to be determined by reference to state law.

      . In his brief, Field conflates two situations that the Supreme Court in Roth suggested might arise when a public employee is dismissed or not retained: (1) where the person’s good name, reputation, honor, ,or integrity is at stake; (2) where the State imposes “a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.” 408 U.S. at 573, 92 S.Ct. at 2707. These situations involve two distinct liberty interests. See the discussion in Adams v. Walker, 492 F.2d 1003, 1008 (7th Cir. 1974). The Court in Roth explained that proof that “nonretention in one job, taken alone, might make [the nonretained teacher] somewhat less attractive to some other employers would hardly establish the kind of foreclosure of opportunities amounting to a deprivation of ‘liberty.’ ” 408 U.S. at 574 n.13, 92 S.Ct. at 2708.

      . The district court, as we have noted, abstained from reaching this issue on the basis that it did not rise to the dignity of a federally cognizable civil right. To the extent that this would be a matter of pendent jurisdiction, United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), would .indicate that the district court need not have undertaken to decide this issue. However, we are not unmindful that due process questions under the federal Constitution may be presented either by the failure of a state to follow its own rules of law or by state rules of law themselves serving as a deprivation of due process. Cf., Flood v. Margis, 461 F.2d 253 (7th Cir. 1972).


author: EDWARDS, Circuit Judge.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL NO. 18, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO and Its Agents, et al., Respondents.
    No. 73-2117.
    United States Court of Appeals, Sixth Circuit.
    Argued April 9, 1974.
    Decided Oct. 8, 1974.

      Frank Morris, N. L. R. B., for petitioner; Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Robert A. Giannasi, Asst. Gen. Counsel, Washington, D. C., on brief,
    Jeffrey A. Belkin, Belkin & Belkin Co., L.P.A., Cleveland, Ohio, for respondents.
    Before EDWARDS, CELEBREZZE and LIVELY, Circuit Judges.
   EDWARDS, Circuit Judge.

The National Labor Relations Board applies for enforcement of its order against Local No. 18 of the International Union of Operating Engineers, AFL-CIO, reported at 205 N.L.R.B. # 75 (1973). The Board had found that the union had conducted “secondary” picket lines at two construction sites, in violation of §§ 8(b) (4) (i) and 8(b) (4) (ii) (B) of the National Labor Relations Act, 29 U.S.C. § 151, et seq., (1970) and had “coerced” three union members for crossing the picket line, in violation of § 8(b) (4) (B) of the Act.

In this case the union was engaged in seeking to unionize or keep off of union jobs a nonunion subcontractor known as B. D. Morgan & Co., which also owned a heavy equipment rental company named Mecco. Mecco and Morgan had previously had a contract with the Operating Engineers. After a strike in 1969 the contract was never renewed, and Morgan and Mecco did not subsequently pay union wages or fringe benefits.

In early 1972 Morgan and Mecco secured a contract with the general contractor on work at the Hill’s Department Store site in Middletown, Ohio. The union, after warning the general contractor and various subs that they would not work with Morgan and Mecco, picketed the site with signs addressed only to Mecco. The picketing resulted in the stopping of work by all union men on the project, although the Mecco men continued to work. As to this and a somewhat similar episode in the same area on another department store construction project called “the Rink’s job,” it is the union’s claim that the picketing was entirely directed at Mecco, that it was entirely primary and, hence, lawful, and that if there was any secondary fallout, this was incidental and did not detract from the legality of the primary picketing. The Board found that in fact the picketing was in the nature of a secondary boycott at both construction sites, in violation of § 8(b)(4) of the Act, in spite of the union’s argument that the activities there engaged in were completely protected by the proviso in paragraph B of that section.

As to the Board’s finding of 8(b)(4) violations there was testimony of union threats to neutral employers to close the jobs unless Morgan and Mecco were removed, and in fact union members not involved in the primary dispute backed these threats by striking. This is substantial evidence on the whole record to support the Board’s position on this issue.

The more difficult question in this ease, however, pertains to the union’s subsequent charges against three Morgan and Mecco employees who worked during the picketing on both of these sites. The charges originally were drawn against the three employees reciting 1) their violation of “an authorized picket line of Local 18,” and 2) alleging that they had worked at nonunion wages and for a nonunion employer. On advice of counsel the first charge was withdrawn. All three men were found guilty on the second charge. They were expelled from the union and assessed $100 fines. The union claims that its actions in this regard were authorized by the United States Supreme Court’s holdings in NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967); NLRB v. Marine Workers Union, 391 U.S. 418, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968); and Scofield v. NLRB, 394 U.S. 423, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969).

The union’s contention is that all three of these employees were proved to have worked nonunion against the union’s request and were proved to have accepted and continued to work under conditions which adversely affected union standards. The union also contends that in any event the picketing was primary and was directed at Morgan and Mecco, that these men nonetheless continued to work, and that'under these circumstances the cases cited above authorize union expulsion and fine.

This area of the labor law is extremely difficult. There were conflicting pressures upon Congress in the enactment of the NLRA in 1935 and in its amendment in the Taft-Hartley Act of 1947. And these conflicting pressures are mirrored in statutory provisions which directly affect this case. Thus, § 8(b)(1)(A) provides:

“(b) It shall be an unfair labor prac-time for a labor organization or its agents—
1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title: Provided, that this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein.” 29 U.S.C. § 158(b)(1)(A) (1970). (Emphasis supplied.)

The importance of the proviso in § 8(b)(1)(A) is shown in the following statement of Senator Robert Taft during debate on the bill:

“The pending measure does not propose any limitation with respect to the internal affairs of unions. They still will be able to fire any members they wish to fire, and they still will be able to try any of their members. All that they will not be able to do, after the enactment of this bill, is this: If they fire a member for some reason other than nonpayment of dues they cannot make his employer discharge him from his job and throw him out of work. That is the only result of the provision under discussion.” 93 Cong.Rec. 4193; II Legislative History of the Labor-Management Relations Act of 1947 at 1097.

The Supreme Court has given effect to this proviso of § 8(b)(1)(A) in two important cases which upheld the right of unions to fine and expel union members who served as strike breakers. NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967); Scofield v. NLRB, 394 U.S. 423, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969).

In this last case, however, the Supreme Court recognized the National Labor Relations Board’s right to restrain union conduct which “invades or frustrates an overriding policy of the labor laws.” In pursuance of this concept, the Supreme Court held that where a union employs a union penalty against a member for filing charges with the NLRB, such a penalty tended to invade or frustrate the overriding policy of free access to the basic agency created to supervise and enforce the labor laws. NLRB v. Marine Workers Union, 391 U.S. 418, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968).

The Supreme Court’s concern here involved a very fundamental aspect of national labor policy. If interunion discipline can be used successfully to keep union members from complaining about violation of their rights, there may be no way to vindicate the labor policies adopted by Congress. Thus far, however, the Supreme Court has not extended its restriction upon the broad language of the proviso in § 8(b)(1)(A) beyond the facts of the Marine Workers Union case. We recognize that the National Labor Relations Board has done so in two cases. Glaziers Local 1162, Brotherhood of Painters (Tusco Glass, Inc.), 177 N.L.R.B. 393 (1969); Local 12419, Int. Union of Dist. 50 (Nat’l Grinding Wheel Co.), 176 N.L.R.B. 628 (1969).

Whether these cases illustrated instances where interunion discipline was used to “invade or frustrate an overriding policy of the labor laws,” we do not need to decide here. We do not think either the broad language of the proviso or the more restrictive language of the Supreme Court validates the result reached by the Board in this case.

First, we note that the Board’s result is planted in major part upon the following non sequitur: “In this case, where, as has been found, the Union’s picket line at the Hill’s job was illegal, it would have been unprotected activity for Graham, Perry and Taulbee to have honored such picketing.” Actually, of course, these three union members were working for a nonunion contractor that the union had every right to picket since the dispute with Morgan and Meeco was entirely primary. As is obvious from our holding as to the first issue in this case, we neither ignore nor disagree with the Board’s findings which held the union picket line was also employed, by oral interpretation and threats, as a secondary boycott device to put pressure on neutral employers. But these three union members were not employees of neutrals. They and their employer were the source of the primary dispute. They could have responded to the picket signs directed against Mecco alone by quitting work without any secondary boycott resulting from their so doing. If they had not only quit work themselves but also had joined in pressuring other employees of neutral employers to strike, their conduct then would have violated § 8(b)(1)(A) and would have been subject to restraint. Clearly they did not do so.

Another reason for our disinclination to enforce the Board’s invasion of inter-union discipline in this case is that the proviso which restrains such invasion was placed by Congress in immediate juxtaposition to its prohibition against restraint or coercion of employees in exercise of § 157 rights which include the right to work nonunion. As noted above, the full and applicable text of § 8(b)(1)(A) is:

“(b) It shall be an unfair labor practice for a labor organization or its agents—
1) to restrain or coerce (A) employees in the exercise of the right guaranteed in section 157 of this title: Provided, that this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein.” 29 U.S.C. § 158(b)(1)(A) (1970).

This section seems to us to mean that the Board can restrain threats or physical violence or secondary boycotts against union members who cross a picket line but cannot keep the union from expelling them.

Finally, Congress has provided measures to eliminate the threat of secondary boycotts other than banning a union’s discipline of its own membership. It has authorized injunctive relief against such measures. 29 U.S.C. § 158(b)(4); 29 U.S.C. § 160(a), (c) & (i) (1970). It has also authorized suits for damages against unions who violate this policy. 29 U.S.C. § 187 (1970).

We do not disagree with the Board’s finding that the union’s action in this case was triggered by these three employees’ work on the Hill’s and Rink’s jobs. But as a matter of law, we believe that the union discipline which was invoked was protected from Board action by the proviso to § 8(b) (1) (A).

Enforcement of the Board’s order is granted, except as to paragraphs 1(c) and 2(a) and (b).

      . Act of June 23, 1947 ch. 120, 61 Stat. 136.


author: WILLIAM E. DOYLE, Circuit Judge.

text:
    AMERICAN BANK OF TULSA, Plaintiff-Appellant, John L. Arrington, Jr., et al., Applicants for Intervention-Appellants, v. James E. SMITH, Comptroller of the Currency, Defendant-Appellee, and Floyd A. Calvert, Jr., et al., Intervenors-Defendants-Appellees.
    Nos. 74-1082, 74-1083.
    United States Court of Appeals, Tenth Circuit.
    Argued Sept. 10, 1974.
    Decided Oct. 4, 1974.

      Jack R. Givens of Jones, Givens, Brett, Gotcher, Doyle & Atkins, Inc., Tulsa, Okl. (Thomas R. Brett, Tulsa, Okl., on the brief), for plaintiff-appellant.
    John L. Arrington, Jr. of Huffman, Arrington, Scheurich & Kihle, Tulsa, Okl. (John A. Gaberino, Jr. and J. Clarke Kendall II, Tulsa, Okl., on the brief), for intervention-appellants.
    Judith H. Norris, Atty., Dept, of Justice (Carla A. Hills, Asst. Atty. Gen., Nathan G. Graham, U. S. Atty., and Robert E. Kopp, Atty., Dept, of Justice, on the brief), for defendant-appellee.
    William C. Anderson of Doerner, Stuart, Saunders, Daniel & Langenkamp, Tulsa, Okl. (Dickson M. Saunders, Tulsa, Okl., on the brief), for intervenors-def endants-appellees.
    Before BREITENSTEIN, BARRETT and DOYLE, Circuit Judges.
   WILLIAM E. DOYLE, Circuit Judge.

The question here presented is whether the trial court erred in granting the motion for summary judgment of the above named defendants and in holding that the action of the Comptroller in issuing a bank charter was valid and, secondly, whether the court was required to consider contentions that the bank to which the charter was issued, namely Union, was in truth a subsidiary of a bank holding company. The defendants-intervenors in this action filed an application with the Comptroller seeking approval for a proposed national bank in Tulsa, Oklahoma, on April 25, 1972. Following a hearing held on August 16, 1972, and a field investigation, the application was approved by the Regional Comptroller and the National Bank Examiner and, finally, by the Comptroller on December 1, 1972.

Soon thereafter (on January 19, 1973), the appellant filed a complaint in the United States District Court for the Northern District of Oklahoma in which it claimed that the Comptroller’s approval was unlawful because Union, so it was alleged, was a branch of Utica National Bank of Tulsa. Branch banking is prohibited by Oklahoma law. Because of the prohibition, the Comptroller is not allowed to authorize the creation of a branch bank. American further alleged that Union fell within the definition of a subsidiary as defined in the Bank Holding Company Act, 12 U.S.C. §§ 1841-1849, and that this was a violation of Oklahoma law. American has also alleged that the Comptroller’s approval was arbitrary and capricious; that his failure to issue findings of fact and conclusions rendered his decision unlawful.

As previously noted, the organizers of Union intervened as defendants. The matter came on for hearing on October 12, 1973 on the motions for summary judgment of the Comptroller and the defendants-intervenors. The Town and Country Bank which was in the process of being organized under state law opposed the position of the defendants during the Comptroller’s hearing. Subsequently, the Town and Country application was first denied and later granted by the Banking Board of the State of Oklahoma. The Town and Country associates then sought to intervene, but this application was denied. The District Court ruled that the Comptroller’s approval was rational, was not arbitrary nor capricious, and further held that Union would not have to be regarded as a branch bank. The court rejected American’s contention that it had authority to consider the holding company complaints.

In No. 74-1082, Town and Country has appealed the denial of intervention. American has appealed the granting of summary judgment in No. 74-1083. There has been consolidation of the cases and joint arguments have been made.

The position of American at the trial was that the Comptroller’s approval was unlawful because it resulted in the creation of a subsidiary of a bank holding company. There is also the contention that the application should have been stayed pending determination by the Federal Reserve Board. The bank holding company issue was raised by the Town and Country organizers who requested that the Comptroller refer this holding company issue to the Federal Reserve Board and allow his decision to abide the action of the Federal Reserve Board.

It would appear that the District Court had jurisdiction to determine whether the Comptroller acted improperly in failing to refer those issues to the Federal Reserve Board pursuant to 28 U.S.C. § 1331. On the other hand, it seems equally clear that the District Court lacked jurisdiction to determine the merits of the alleged violation of the Holding Company Act.

Although we do not have jurisdiction to determine the merits of whether Union Bank is a subsidiary of a bank holding company thus requiring Reserve Board approval, we do have the authority to determine whether or not this issue is substantial or frivolous, and whether the Federal Reserve Board should have an opportunity to consider it. In our view the question is not a frivolous one because:

The organizers of Union are also closely connected with the Utica National Bank. Victor M. Thompson is president and is a director. Calvert, La-Fortune, Saunders, Horkey and Zink are all directors of Utica. Victor B. Thompson is the son of Victor M. Thompson. Mr. Horkey is the only one of the group who will not be a director of Union. There would be other directors but we are not acquainted with their identity.

Secondly, Utica is a subsidiary of a registered bank holding company, Hel-merich and Payne, Inc. (H & P), which owns or controls over 36% of Utica’s stock. Mr. LaFortune (and his family) own 10 to 15%. Calvert and V. M. Thompson each own about 5%. Horkey is executive vice president and a director of H & P.

Thirdly, Union’s stock is to be offered on a pro-rata basis to the shareholders of Utica. The organizers alone intend to purchase nearly 19% of the Union shares.

An effort was made by the organizers to avoid the appearance of Union being a subsidiary of a bank holding company. H & P did not exercise any right to purchase Union stock. Mr. Horkey, although an officer of H & P, was not to be a director of Union. Also, his intention was to purchase only .8% of Union’s stock. The Comptroller conditioned his approval on no one individual’s owning more than 5% of Uniop’s stock.

Thus, evidence before the Comptroller revealed that H & P exerted a good deal of influence on the board of Utica, which in turn exerted influence on the organizers of Union.

The definition of a bank holding company in the Act, 12 U.S.C. § 1841(a)(1) is a company “which has control over any bank or over any company that is or becomes a bank holding company by virtue of this chapter.” The Act goes on to define control:

“Any company has control over a bank or over any company if—
(A) the 'company directly or indirectly or acting through one or more other persons owns, controls, or has power to vote 25 per centum or more of any class of voting securities of the bank or company;
(B) the company controls in any manner the election of a majority of the directors or trustees of the bank or company; or
(C) the Board determines, after notice and opportunity for hearing, that the company directly or indirectly exercises a controlling influence over the management or policies of the bank or company.” 12 U.S.C. § 1841(a)(2).

L4] There is a presumption under § 1841(a)(3) that a company controlling less than 5% of the stock does not have control in a § 1841(a)(2)(C) ease. In a non-§ 1841(a)(2)(C) proceeding there is a conclusive presumption that a company which does not control 5% or more of the stock does not have control. § 1841(a)(4). Under the Federal Reserve Board regulations there are also similar presumptions of control. 12 C.F.R. § 225.2 (1974). Section 225.2(b)(1) creates a presumption of control if the company that owns or controls more than 5% of the stock also has one or more of its own directors serving a similar function in the subsidiary and no other person owns or controls more than 5% of the stock.

As a result of the care exercised to prevent these sections from operating, there would appear to be at least some possibility that Union is in effect a subsidiary of H & P. There exists also a possibility that Union is a subsidiary, not merely an affiliate, of Utica under 12 C.F.R. § 225.2(b)(3).

As noted above, it is not entirely clear that Union is a subsidiary of either H & P or Utica. At the same time, there exists some degree of likelihood that it will be. That being the case, the issue ought to be determined prior to the issuing of Union’s charter so that relationships will not be formed which will have to be disentangled.

A definitive decision of the Supreme Court holds that the Comptroller does not have jurisdiction to determine whether or not the Bank Holding Company Act has been violated. This prerogative belongs to the Federal Reserve Board. See Whitney National Bank v. Bank of New Orleans and Trust Co., 379 U.S. 411, 85 S.Ct. 551, 13 L.Ed.2d 386 (1965).

Whitney Bank, which was located in New Orleans, sought to extend its business beyond its home base, notwithstanding that branch banking was prohibited under Louisiana law. Following discussions with the Deputy Comptroller, it decided to establish a holding company and set up two new subsidiaries, the Bank of New Orleans and a new bank in another area. Preliminary approval of the Comptroller was obtained. An application had been filed with the Federal Reserve Board, and so the Comptroller’s action was subject to approval by that body. A hearing was held and the Board approved Whitney’s proposal. However, soon thereafter, the respondents in the ease filed suit naming the Comptroller as defendant and sought a judgment preventing him from issuing a certificate. Two of the respondents then sought a reconsideration by the Board which was refused, and a review by the Court of Appeals was then sought pursuant to 12 U.S.C. § 1848. The district court in the suit against the Comptroller decided that the Comptroller was prohibited from issuing the certificate. The Court of Appeals upheld the district court and found also that the new bank would be unlawful. However, the Supreme Court reversed, holding that the district court had no jurisdiction to pass on the merits of the holding company’s proposal on account of the exclusive jurisdiction of the Board.

The Supreme Court noted that the real issue in the case was not the Comptroller’s issuance of authority to do business but, rather, the creation of a new bank by the holding company. If the new bank was found to be either a branch bank or a subsidiary barred by state law, the application could not be approved by the Federal Reserve Board. Hence, both of these issues were subject to determination by the Board.

Obviously, then, the Board’s determination could not be attacked by means of an action against the Comptroller since the district court did not have jurisdiction to adjudicate the crucial issue.

The most significant action which the Supreme Court took in the Whitney case was to stay its judgment for 60 days so as to allow the parties to move in the Court of Appeals for the Fifth Circuit for a remand of the action to the Board and to allow the Court of Appeals to issue necessary orders to protect its jurisdiction pending final determination of the matter. See 379 U.S. at 415, 85 S.Ct. 551, 13 L.Ed.2d 386. The reason for this was the fact that there was a relationship between the case before the Supreme Court and that in the Court of Appeals and a necessity for the Board of Governors to consider the new law in Louisiana.

The Court’s explanation for allowing the Court of Appeals to protect its jurisdiction was that the Comptroller was prepared to issue a certificate to do business to the new bank once the injunction was vacated. The Court recognized the authority of the Court of Appeals to prevent the issuance of the certificate pending final disposition of the matter. It was made clear by the Supreme Court that the Comptroller could be precluded from acting until it was determined whether there was a violation of some other law. At the same time, the Supreme Court was clear in stating that the court did not have the authority to determine originally the legality of the issuance of a certificate under the Bank Holding Company Act. The Court also recognized that the issuance of the certificate by the Comptroller would not affect the Board’s power to take such action as was indicated.

There is no provision in the Act of Congress which requires a Comptroller to give notice to the Board of the issuance of a certificate or to refer a matter to the Board which involves the Board’s authority. On the other hand, the Federal Reserve Board must give notice to the Comptroller when it receives an application under the Bank Holding Act. 12 U.S.C. § 1842(b).

If an applicant were required to obtain an approval from each agency there would likely not be this kind of problem. The Comptroller could, of course, condition approval of Union’s application on the obtaining of approval from the Board.

We note that Whitney suggests at least that where there is a pending application before the Board the Comptroller lacks authority to issue a certificate. The Supreme Court was concerned that a possible violation of federal law had been overlooked because of procedural obstructions. Our concern is the same. In the interest of orderly administration it would seem that the Comptroller should refuse to issue a certificate where a claim is made that the organizer should have sought the Board’s approval. Delay of the Comptroller’s issuance of a certificate is fully justified ,b-y 12 U.S.C. § 27 which allows the Comptroller to issue a certificate only after it appears that the association is lawfully entitled to commence the business of banking.

The Eighth Circuit in Gravois Bank v. Board of Governors of Fed. Res. System, 478 F.2d 546 (8th Cir. 1973) adopted the position that the court had ample authority to retain jurisdiction pending clearance from the Federal Reserve Board. Under the Whitney and Gravois decisions the courts need not stand idly by where a matter is pending before the Board of Governors. The courts may use their process to stay the Comptroller’s hand until the Board has had an opportunity to process the application. Should there be authority where there are objections suggesting a violation of the Federal Reserve Act or regulations? The mere presence of an objection should not give rise to this extraordinary use of court process. However, if the matter appears to be a substantial problem — and this is substantial — it would seem that the spirit of the Whitney case requires that there be action. The issue of a possible violation of the Federal Reserve Act is not a frivolous one and, considered in that light, it follows that the Comptroller should have referred the matter to the Federal Reserve Board. In view of the failure to do this, the issuance of the mandate should be stayed for an initial period of 60 days to allow the parties to present this matter to the Federal Reserve Board. The Comptroller’s hand is hereby stayed pending the issuance of this court’s mandate. Once the Federal Reserve Board has acted, the mandate will issue.

We have concluded that the District Court was correct in its ruling that the Comptroller’s fact-finding and determination based on the evidence were not incorrect. Most of the contentions of the appellants are without merit. Thus, formal findings are not necessary. See Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). The Comptroller conducted a full field investigation and a public hearing. The only issue is that which we have considered at some length, that is, the holding company question.

The issuance of the mandate is stayed until the further order of the court. In the event that any party within 60 days makes a pertinent application to the Federal Reserve Board under the Bank Holding Company Act, the mandate shall not issue until the decision of the Board becomes final. If no application is made to the Federal Reserve Board within the 60-day period, the court will consider a motion for the issuance of the mandate. In the circumstances presented we see no need at this time to decide the right of the Town and Country group to intervene. The issues which they present are matters of law and we have considered their arguments. If it later appears necessary to remand the case to the district court for further proceedings, we will consider the Town and Country intervention question. The Comptroller shall not grant a charter to the Union National Bank of Tulsa until the issues discussed herein are resolved and a mandate issues.

It is so ordered.

      . 6 Okla.Stat.1971 § 501.

      . 12 U.S.C. § 36.

      . 6 Okla.Stat. § 502, subd. C.

      . Floyd A. Calvert, William R. Horkey, Joseph A. LaFortune, Dickson M. Saunders, Victor B. Thompson, Victor M. Thompson and John S. Zink.

      . This provides :
      A company that enters into any agreement or understanding with a bank or other company (other than an investment- advisory agreement), such as a management contract, pursuant to which the company or any of its subsidiaries exercises significant influence with respect to the'.general management or overall operations of the bank or other company presumably controls such bank or other company.

      . See California v. Federal Power Commission, 369 U.S. 482 at 488, 489, 82 S.Ct. 901, 8 L.Ed.2d 54 (1962).

      . In holding that the issue must first be raised before the Board, the Court said :
      We believe Congress intended the statutory proceedings before the Board to be the sole means by which questions as to the organization, or operation of a new bank by a bank holding company may be tested. Admittedly the acquisition of an existing bank is exclusively within the jurisdiction of the Board. We know of no persuasive reason for finding a different procedure required where it is a new bank that is sought to be organized and operated simply because the Comptroller there performs a function in addition to that of the Board, i. e., the issuance of the certificate to do business.
      [I]t is the exclusive function of the Board to act in such cases and contests must be pursued before it, not before the Comptroller.
      379 U.S. 419-420, 85 S.Ct. 557.

      . See 379 U.S. at 426, fn. 7, 85 S.Ct. 551, 13 L.Ed.2d 386.

      . See also 12 U.S.C. § 1828(e) wlii<,;h requires tlie responsible agency (the Comptroller, the Board or the FDIC (depending on the circumstances)) to request a report from the Attorney General and the other two agencies before app roving a bank'merger or consolidation.
      It is curious that Congress has npt required the Comptroller to notify tlue Federal Reserve Board even where the Board’s authority is obviously in question.

      . In Gravois Bank v. Board of Governors of Fed. Res. System, 478 F.2d 546 (8th Cir. 1973), the court held that where Board approval is required the Comptroller must condition tiie granting of the charter on subsequent Board approval.