author: SIMPSON, Circuit Judge:

text:
    Robert W. SIMMONS, Plaintiff-Appellee, v. W. M. JONES and Ernest Walker et al., Jury Commissioners for Long County, Georgia, Defendants-Appellants.
    No. 71-1092.
    United States Court of Appeals, Fifth Circuit.
    May 14, 1973.

      R. L. Dawson, Richard D. Phillips, Ludowici, Ga., for defendants-appellants.
    Frank W. Seiler, Walter C. Hartridge, II, Charles H. Wessels, Savannah, Ga., for plaintiff-appellee.
    Before GODBOLD, SIMPSON and CLARK, Circuit Judges.
   SIMPSON, Circuit Judge:

Robert W. Simmons, the defendant in a pending state court damage action, brought this suit in the federal district court below to compel the jury commissioners of Long County, Georgia, to perform their official duties in accordance with Section 59-106, Georgia Code Annotated. The court below, after a non-jury trial, ordered the defendants to recompile the Long County list of traverse jurors and to accomplish such a recompilation in partial disregard of the provisions of Section 59-112 of the Georgia Code. We have concluded that the district court improperly intervened in the administration of Georgia’s juror selection system in this case. For the reasons given below, the judgment of the lower court is reversed and remanded with direction to dismiss the complaint.

THE FACTS

The plaintiff-appellee is a white male resident of Long County, Georgia. On February 17, 1967, Simmons was involved in an automobile collision in Long County with J. Clyde Gordon, likewise a white male resident of Long County. Gordon brought suit against Simmons for damages in the Superior Court for Long County. When the ease was called for trial, Simmons attacked the constitutionality of a state law of local application governing the selection of jury commissioners. His challenge to the array was denied by the trial judge, who then continued the case and signed a certificate for immediate review. While the matter was pending before the Supreme Court of Georgia, that state’s legislature repealed the local law (Georgia Laws, 1970, pp. 10-12), thereby making the general juror selection statutes applicable to Long County. As a consequence of the legislature’s action, the Supreme Court of Georgia dismissed the appeal from the Long County Superior Court on the ground of mootness. Simmons v. Gordon, 1970, 226 Ga. 162, 173 S.E.2d 223.

The state damage action was rescheduled for trial at the August, 1970, term of the Long County Superior Court. Before the ease was reached, Simmons, on August 13, 1970, filed his complaint in the United States District Court for the Southern District of Georgia, naming the Long County jury commissioners as defendants and praying for relief from the manner in which Sections 59-106 and 59-112, Georgia Code Annotated, were allegedly being administered within that county.

THE COMPLAINT

Invoking the jurisdiction of the district court under 28 U.S.C. Secs. 1343(3), 1343(4), 2201, and 2202; 42 U.S.C. Secs. 1983 and 1988; and the Fourteenth Amendment to the United States Constitution (equal protection and due process clauses), the complaint charged:

8. Despite the clear mandate of Ga.Code Ann. § 59-106 to select as a jury a representative cross-section of the intelligent and upright citizens of the county from the registered voters’ list which was used in the last preceding general election and to supplement such list as necessary by going out into the county and personally acquainting themselves with other citizens of the county, including intelligent and upright citizens of any significantly identifiable group in the county, the Jury Commissioners of Long County assembled a traverse jury box for the August Term of Long County Superior Court and any subsequent adjourned term thereof containing the names of only 420 persons. These said 420 persons comprise only 15 of the registered voters in Long County, Georgia.
9. The Jury Commissioners of Long County have failed to inquire into the eligibility of Sii/2% of the registered voters of Long County to serve as jurors in order to comply with the statutes to insure that the jury list is fairly representative of a cross-section of the county’s intelligent and upright citizens. Moreover, the Jury Commissioners have eliminated from consideration for jury service a substantial percentage of the population of the entire County of Long.
10. In composing the list of jurors, defendants did not, pursuant to Georgia Code § 59-106, employ the official registered voters’ list used in the last preceding general election. This is demonstrated by the fact that persons whose names appear on the list of jurors do not appear on the applicable voters’ lists. Moreover, the names of persons listed as jurors appear in a large number of instances on the jury list in a different form than the form in which said names appear on the applicable voters’ list. Evidence in support of these allegations is supplied in the form of the affidavits of Eugene S. Caison and Joseph M. Murray which are attached hereto and made a part hereof as Exhibits 1 and 2, respectively.
11. Plaintiff avers on information and belief that it is not possible to have a civil action fairly tried in Long County because for at least the past eight years, no verdict in any case tried in Long County has ever been returned in an amount substantially less than the amount of damages sought in petitions and complaints filed by Ralph Dawson or his nephew, Richard Dawson Phillips, or either or both of them.
12. Plaintiff’s counsel have prepared an affidavit which is attached hereto and made a part hereof as Exhibit 3 stating their experience in Long County, Georgia. Plaintiff’s counsel can recall no instances in which a jury verdict was ever returned for substantially less than the full amount sought. Plaintiff’s counsel has obtained from a number of practitioners throughout South Georgia affidavits setting forth their experiences in Long County, Georgia, which experiences are identical to that of plaintiff’s counsel. These affidavits are attached hereto and made a part hereof as Exhibits 4 through 8.
13. Plaintiff alleges as a result of defendants’ conduct he has been placed in imminent danger of being deprived of his property without due process of law.
14. Unless this Court, exercising equitable powers, restrains the aforesaid illegal and unconstitutional application of Ga.Code Ann. § 59-106, defendant will be deprived of his property without due process of law at the August Term of the Superior Court of Long County, Georgia, which commences on Monday, August 17, 1970. The complaint concluded with prayers

for the following relief:

(a) An injunction barring the prosecution of all jury actions, civil and criminal, in Long County until elimination of the allegedly unconstitutional method of selecting traverse jurors ;
(b) A declaration that the method utilized by the defendants in selecting traverse jurors is unconstitutional, null and void;
(c) An order requiring the defendants to carry out the provisions of Section 59-106, Georgia Code Annotated, in a manner which will guarantee the protection of all the constitutional rights of litigants in Long County, Georgia;
(d) An order directing the United States Marshal to impound the Long County voters’ and jurors’ lists for the purpose of copying at Savannah, Georgia; and
(e) An order directing the defendants to show cause why they should not be compelled to comply with the provisions of Section 59-106 and the United States Constitution.

On August 14, 1970, the district court ordered the United States Marshal to impound the voters’ and jurors’ lists of Long County for the purpose of copying at Savannah, Georgia, and ordered the defendants to show cause why the relief sought in the complaint should not be granted. The district court declined to enjoin the prosecution of all jury actions in Long County. It appears, however, that the Judge of the Atlantic Circuit, State of Georgia, (which includes Long County) has honored the district court’s informal request that all jury proceedings pending in Long County be held in abeyance pending the adjudication of the constitutional issues in the federal court.

THE ANSWER

The defendants appeared and answered the complaint through their counsel, Ralph L. Dawson and Richard Dawson Phillips, both of Ludowici, Georgia, the county seat of Long County. They asserted that the complaint failed to state a claim upon which relief against the defendants could be granted. In addition, the defendants denied plaintiff’s allegations that the Long County jury commissioners had failed to comply with the provisions of Section 59-106, Georgia Code Annotated, in the selection of traverse jurors for the August, 1970, term of the Long County Superior Court.

THE DECISION BELOW

Following a trial on the merits, the lower court found for the plaintiff. Simmons v. Jones, S.D.Ga.1970, 317 F.Supp. 397. The district court determined that the plaintiff had a federal constitutional right to a state court civil trial “before a jury drawn from a list constituting a fairly representative cross-section of the community.” 317 F.Supp. at 403. It then found that the defendants in selecting the Long County traverse jurors had deprived plaintiff of that right:

“I hold that the jury list in Long County as presently composed falls short of constitutional requirements. The practice of putting the names of several members of the same family in the box (though ordinarily permissible) tends in the case of a small county to unduly weight the rights and power of that group of jurors. The over representation in the class of office holders, public employees and persons above sixty-five years of age dilutes the rights of persons eligible for jury duty but who are not on the list.” 317 F.Supp. at 404.

The district court discounted the possibility of the plaintiff obtaining meaningful relief from the courts of the State of Georgia:

“As I earlier pointed out, efforts to obtain relief from the method of appointing jury commissioners in Long County have been made in the past in the state court. The first such challenge of the palpably unconstitutional Act of 1962 failed on both the trial and appellate court level. Similar litigation by the present plaintiff in 1969 indirectly brought about repeal of the special law. New jury commissioners were appointed by the Judge. Their revision of the list does not meet federal constitutional standards. Under the circumstances, I see no reasonable prospect of relief from state courts, certainly no prompt relief.” 317 F.Supp. at 405.

Citing Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, the court below observed that exhaustion of state remedies was not required in this 42 U.S.C. Sec. 1983 action as a prerequisite to suit in federal court to vindicate a federal right. 317 F.Supp. at 405. The final matter taken up by the district court was that of an appropriate remedy:

“Having concluded that the methods used by the Commissioners and the results thereof are a violation of plaintiff’s due process and equal protection rights, it becomes our task to try to bring the present list within constitutional bounds. One thing is clear. The Jury Commissioners must start over. Their job which is of high importance should be approached with an eye single to compiling a list of intelligent and upright citizens which reflects a true cross-section of the community. In accomplishing that object the voters’ list for the 1970 General Election will be used.” 317 F.Supp. at 405.

To insure that the recompilation of the Long County jurors’ list would not be a meaningless exercise, the district court directed the defendants to abide by the following guidelines in performing their duties:

“(a) The Commissioners should consider the elimination of all persons in the present list who were called for jury duty between 1960 and 1964 This does not mean that these citizens cannot be reconsidered for service in any subsequent revision of the list. For the time being, however, I think that jurors who have served over ten years are well entitled to a respite from jury duty.
(b) Multiple family representation should be eliminated whenever jurors are related by blood or marriage and reside under the same roof or on the same property or farm. Unless valid reasons exist, there should be not more than one member of such families on the jury list.
(c) Names of law enforcement officers should be stricken. They have enough work already. Where office holders and public employees are over-weighted as a class the Commissioners should take stock.
(d) Jurors over sixty-five years of age should be deleted in most cases. In fact, low priority should be given all classes of persons exempted from duty by Ga.Code, Supp. § 59-112. Waivers of exemption should be carefully scrutinized and not recognized where solicited.
(e) The percentage of women on the present jury list is less than 25% of the total number of jurors. Whether that percentage produces a fair cross-section of females eligible for service as jurors is a matter for determination by the Commissioners. There is no constitutional mandate as to mathematical proportion or identifiable groups or classes of prospective jurors.
(f) Names of non-residents, aliens, infirm or deceased persons and citizens who are not registered voters should be removed from the box.
(g) Race and color must, of course, not be a factor in the revision of the list. Nor shall political affiliation be.” 317 F.Supp. at 405-406.

THE BASIC ISSUE

Boiled down to its essentials, Simmons’ complaint alleged that the defendants, in compiling the Long County traverse jurors’ list for the August, 1970, term of the Superior Court, had failed to comply with the mandate of Georgia statutory law. The federal district court was asked to police the manner in which the defendants, officials of the State of Georgia, performed their duties to insure compliance with state law. Because the lower court was requested to assume the function of the Georgia state courts, we base our decision to reverse on alternative grounds; (a) the federal abstention doctrine and (b) the failure of the complaint to state a claim upon which relief could be granted.

THE FEDERAL ABSTENTION DOCTRINE

As already noted the district court held that the plaintiff was not required to exhaust his state remedies before pursuing his remedies in federal court under 42 U.S.C. Sec. 1983. This holding is supported by clear precedent. The United States Supreme Court, however, on several occasions has indicated that a federal court, in an appropriate case, should abstain from deciding certain questions in order to avoid unnecessary friction between a state and the federal government. This appears to us to be precisely such a case.

In Alabama Public Service Commission v. Southern Railway Company, 1951, 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002, a three-judge federal district court had granted the railroad’s petition for injunctive relief against a state commission order prohibiting the discontinuance of railroad passenger service. Speaking through Mr. Chief Justice Vinson, the Court ruled that the railroad should have pursued its state judicial remedies, which were clearly delineated by an Alabama statute, rather than bringing suit in the federal court under its diversity and federal question jurisdictions :

“As adequate state court review of an administrative order based upon predominantly local factors is available to appellee, intervention of a federal court is not necessary for the protection of federal rights. Equitable relief may be granted only when the District Court, in its sound discretion exercised with a “scrupulous regard for the rightful independence of state governments which should at all times actuate the federal courts,” is convinced that the asserted federal right cannot be preserved except by granting the “extraordinary relief of an injunction in the federal courts.” Considering that “[f]ew public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies,” the usual rule of comity must govern the exercise of equitable jurisdiction by the District Court in this case. Whatever rights appellee may have are to be pursued through the state courts.” (footnotes and citations omitted) 341 U.S. at 349-350, 71 S.Ct. at 768, 95 L.Ed. at 1008-1009.

No reason suggests itself to us for departing here from the doctrine of Alabama Public Service Commission. Stripped of its flimsy federal constitutional trappings Simmons’ complaint basically was an effort to enlist a federal court in a campaign to achieve a more faithful application in a single small Georgia county of Georgia’s statutory scheme for the selection of traverse jurors. We must assume that the Georgia court system is capable of enforcing Section 59-106 of the Georgia Code. As a matter of comity, the district court should have afforded the Georgia courts the opportunity to rectify alleged deviations from the requirements of Georgia law regarding the selection of travese jurors in Long County. Sound principles of federalism dictate this result.

FAILURE OF THE COMPLAINT TO STATE A CLAIM

Our decision in McDowell v. State of Texas, 5 Cir., 1971, 465 F.2d 1342, adopted as the opinion of the court en banc, 1972, 465 F.2d 1349, which was not available to the district court when this case was decided below leads us to hold alternatively that the complaint should have been dismissed for failure to state a claim upon which relief could be granted.

McDowell was a suit based upon 42 U.S.C. Sec. 1983 by a discharged state employee against his former employer, the Texas Board of Mental Health and Mental Retardation, seeking damages for an allegedly wrongful termination of his employment. The essential nature of McDowell’s complaint was that the state officials involved had fired him in disregard of applicable Texas law for political reasons. Judge Clark, writing for the panel in McDowell, discussed the federal aspect of that claim in the following manner:

“The termination of Dr. McDowell’s status as a State employee rests solely on a claim that his employers violated State statutes and local policies in effecting his termination. The right to employment by a State, in itself, is not a right secured by the Constitution or by the Laws of the United States; thus, even an invalid or improper discharge from such an office, unaccompanied by some more precise claim of federal right than a general claim of lack of due process, is not the sort of deprivation of a right, privilege or immunity which is secured by the Constitution of the United States or an Act of Congress providing for equal rights of citizens within the meaning of 28 U. S.C.A. § 1343(3). Cf. Johnson v. Hood, 430 F.2d 610 (5th Cir., 1970). Cases of this genre constitute uniquely State causes of action. As such they are peculiarly within the realm of State courts. “A right to have state (or city) laws obeyed is a state, not a federal right.” Love v. Navarro, 262 F.Supp. 520 (D.C.Cal.1967). “Mere violation of a State statute does not infringe the federal Constitution.” Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944) ; cf. Gentry v. Howard, 288 F.Supp. 495 (E.D.Tenn.1968). Even though it is patent that the amorphous and protean contours of substantive due process under the Fourteenth Amendment extend to all citizens in all sorts of conditions and circumstances, it is equally axiomatic that federal jurisdiction under § 1343 and 42 U.S.C.A. § 1983 cannot be extended to that purely local squabble by the mere invocation of the generalized protection which these words of the amendment confer.
“The Constitution’s deeply embedded concepts of federalism demand that we refuse a procedure of statutory construction that would put such a literal gloss on the words of §§ 1343 and 1983 as would kill the spirit the founding fathers quickened when the people of the sovereign states ceded sufficient government power to form a sovereign union. National Woodwork Manufacturers Ass’n. v. N. L. R. B., 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967). If we were to distort §§ 1343 and 1983 to vest federal courts with jurisdiction over the uniquely local substantive matters which this case presents, we would not only impair our ability to consider the vast array of cases that properly belong in federal forums but, as surely as sunrise, we create yet another and an unnecessary interference with orderly State processes.” 465 F.2d at 1345, 1346.

McDowell was a state employment case while this appeal concerns the selection of jurors in a state court. But we believe that the rationale of McDowell is applicable here. The alleged failure of the defendants to comply with Section 59-106, Georgia Code Annotated, without a showing of systematic exclusion on the basis of race or some other ground forbidden by national policy, does not give rise to a federal cause of action under the federal civil rights statutes.

CONCLUSION

In recent years. federal courts have been thrust into the policing of numerous areas once considered outside their province of governmental control. They labor under mounting caseloads increased by expanding concepts of federal constitutional imperatives.

McDowell teaches that the complaint here did not state grounds for federal relief. Alternatively, the district court should have heeded established comity principles and abstained from voluntarily assuming the function of state courts in the supervision of state juror selection process. Without a conclusive showing — which was absent — that the courts of Georgia are either unwilling or unable to enforce Georgia laws governing the jury selection process of Long County, Georgia, it was error to entertain this action.

The judgment below is reversed. The district court upon remand is directed to vacate its decree of October 1, 1970 and to dismiss the complaint.

Reversed and remanded, with directions.

      . Section 59-106, Georgia Code Annotated, reads:
      59-106. (816, 819 P.C.) Revision of jury lists. Selection of grand and traverse jurors. — At least biennially, or, if the judge of the superior court shall direct, at least annually, on the first Monday in August, or within 60 days thereafter, the board of jury commissioners shall compile and maintain and revise a jury list of intelligent and upright citizens of the county to serve as jurors. In composing such list the commissioners shall select a fairly representative cross-section of the intelligent and upright citizens of the county from the official registered voters’ list which was used in the last preceding general election. If at any time it appears to the jury commissioners that the jury list, so composed, is not a fairly representative cross-section of the intelligent and upright citizens of the county, they shall supplement such list by going out into the county and personally acquainting themselves with other citizens of the county, including intelligent and upright citizens of any significantly identifiable group in the county which may not be fairly representative thereon.
      After selecting the citizens to serve as jurors, the jury commissioners shall select from the jury list a sufficient number of the most experienced, intelligent and upright citizens, not exceeding two-fifths of the whole number, to serve as grand jurors. The entire number first selected, including those afterwards selected as grand jurors, shall constitute the body of traverse jurors for the county, [except] as otherwise provided herein, and no new names shall be added until those names originally selected have been completely exhausted, except when a name which has already been drawn for the same term as a grand juror shall also be drawn as a traverse juror, such name shall be returned to the box and another drawn in its stead.

      . Section 59-112, Georgia Code Annotated, reads:
      59-112. (871 P.C.) Persons exempt from jury duty.- — (a) The following persons are exempt from all jury duty, civil or criminal; the name of any such person shall not be included or continued in the jury box unless such person shall make a request therefor in writing to the board of jury commissioners or its clerk :
      1. Police and other law enforcement officers employed or appointed on a full-time basis, but not part-time or honorary peace officers.
      2. Officers and personnel of any court employed or appointed on a full-time basis, including attorneys at law who are active members of the State Bar of Georgia and regularly engaged in the practice of law in this State.
      3. Officers, firemen and other personnel of any fire department employed or appointed on a full-time basis, except that exemption hereunder shall also apply to those members of a volunteer fire department, certified to the board of jury commissioners by the administrative head thereof as indispensable to the effective operation of such department.
      4. Physicians, surgeons, medical interns, and medical technicians actively engaged as such, except that exemption hereunder shall also apply to other personnel of a hospital certified to the board of jury commissioners by the administrative head thereof as indispensable to the effective operation of such hospital.
      5. Dentists and pharmacists, duly licensed, who are actively engaged in the practice of their profession.
      6. Persons who are 05 yeai’S of age or older.
      (b) Any other person summoned to jury duty may be excused therefrom by the judge of the court to which he has been summoned upon a showing that he will be engaged during the term of his required service in work necessary to the public health, safety or good order, or that she is a housewife with children 14 years of age or younger.
      (c) The exemption hereunder shall not apply to attorneys at law or physicians summoned to serve on commissions or juries pursuant to any of the provisions of Title 88 of the Code of Georgia known as “The Health Code,” as now in effect or hereafter amended.
      (d) Any woman, teacher or principal of this State who does not desire to serve upon juries shall notify the jury commissioners of the county in which she resides in writing to that effect, and thereupon the jury commissioners shall not place the name of such woman, teacher or principal in the jury box for said county.

      . Also questioned by appellant is the propriety of the remedy fashioned by the district court. The decree’s directions to the defendants required that in recompiling the jury list, they disregard portions of Sec. 59-112, Georgia Code Annotated note 2, supra, even though those portions had not been subjected to constitutional challenge. The mandate to strike the names of law enforcement officers and persons over 65 from the jury list, and the directive to give lowest priority to persons exempted under Sec. 59-112 went beyond the issues and are challenged as unwarranted and in excess of the lower court’s authority, relying upon Fay v. New York, 1947, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043, which upheld the constitutionality of New York’s “blue ribbon” jury system. Because of the disposition we make of the appeal we do not reach and refrain from commenting on these issues.

      . Monroe v. Pape, 1961, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492. See further McNeese v. Board of Education, 1963, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622; Damico v. California, 1967, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647; Moreno v. Henckel, 5 Cir. 1970, 431 F.2d 1299; Hall v. Garson, 5 Cir. 1970, 430 F.2d 430; Harkless v. Sweeny Independent School District, 5 Cir. 1970, 427 F.2d 319.

      . Professor Charles Alan Wright notes in his treatise “Law of Federal Courts”, Wright, 2d Edition, 1970; p. 196, that “In the last three decades there has been considerable recognition of circumstances under which a federal court may decline to proceed though it has jurisdiction under the Constitution and the Statutes.” He points out that rather than referring to all as “the abstention doctrine”, it is more precise to refer to “abstention doctrines”, since “there are at least four distinguishable lines of cases, involving different factual situations, different procedural consequences, different support in the decisions of the Supreme Court, and different arguments for and against their validity.” The four categories are recognized as (1) to avoid decision of a federal constitutional question where the case may be disposed of on questions of state law: (2) to avoid needless conflict with the administration by a state of its own affairs ; (3) to leave to a state the resolution of an unsettled state law question; and (4) to ease the congestion of the federal court docket. The case we discuss in the text, infra, Alabama Public Service Commission v. Southern Railway Company, is perhaps the leading exponent of the second of the Wright subdivisions. See also Burford v. Sun Oil Co., 1943, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424; Hawks v. Hamill, 1933, 288 U.S. 52, 53 S.Ct. 240, 77 L.Ed. 610. Professor Wright states, op. eit. 200, that in this type abstention normally appropriate procedure is dismissal of the action rather than retention of jurisdiction pending a state determination, noting that redress of any federal right prejudiced by action of the state court to which deference is thus shown, is available by United States Supreme Court review of the state decision.

      . Accepting the allegation of paragraph eight of the complaint, (text p. 4 supra) that 420 names represented 15%% of the total number of registered voters that total would be about 2700 names. The 1970 U. S. Census listed the population of Long County, Georgia at 3746. World Almanac, 1972.

      . For recent applications of this type of federal abstention doctrine by this Court, see Romero v. Coldwell, 5 Cir. 1972, 455 F.2d 1163, a class action to determine whether one-man one-vote concept applied to elected Justice of the Peace in El Paso County, Texas; Harris v. Samuels, 5 Cir. 1971, 440 F.2d 748, class suit by college students seeking to register as voters in the state in which the college was located ; Hill v. City of El Paso, Texas, 5 Cir. 1971, 437 F.2d 352, 356, involving an attack upon the constitutionality of a city ordinance regulating junk yards.

      . Our panel decision in McDowell, May 8, 1971, as well of course as our adoption en banc of that opinion, August 29, 1972, occurred long after the decision below, October 1, 1970. Application for en banc in McDowell was pending when this case was argued before us and this decision was withheld awaiting the en banc court’s disposition.

      . We are not unaware of tlie district court’s prognostication, quoted at pages 8 and 9 of the text from 317 F.Supp. at page 405, to the effect that “under the circumstances, I see no reasonable prospect of relief from state courts, certainly no prompt relief”. We view this as simply an articulation of a “judicial hunch”, not to be equated with the type of showing we think should be made before a federal district court should undertake to police the enforcement of state laws.


source: Caselaw Access Project

author: LAY, Circuit Judge.

license: Public Domain

text:
    Helen MATYA, Appellant, v. UNITED STATES of America, Appellee.
    No. 72-1495.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 14, 1973.
    Decided April 19, 1973.

      Dennis Martin, Omaha, Neb., for appellant.
    Leonard J. Henzke, Jr., Atty., Tax Div., Dept of Justice, Washington, D. C., for appellee.
    Before LAY and BRIGHT, Circuit Judges, and NICHOL, District Judge.

       Sitting by designation.

   LAY, Circuit Judge.

Plaintiff Helen Matya brings this appeal from the denial of a preliminary injunction sought against the United States to prevent the Internal Revenue Service from seizing and selling her retail liquor business to satisfy a tax lien filed against herself and her husband, Charles J. Matya, for wagering taxes. The tax lien was based on a jeopardy assessment issued by the government against the plaintiff and her husband in the amount of $793,703.95. Plaintiff urges that any obligation for wagering taxes is solely her husband’s and she cannot be held legally liable for her husband’s debts under 26 U.S.C. § 4401(a) and (c). She asserts that she is the exclusive owner and operator of the liquor store business.

Plaintiff contends, inter alia, that the jeopardy assessment procedure is unconstitutional insofar as it allows an ex parte summary attachment, without a hearing, against the taxpayer’s property. Plaintiff argues that the court has jurisdiction to enjoin the assessment against her property, notwithstanding the prohibition in 26 U.S.C. § 7421, because the exceptional circumstances discussed in Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962), prevail here.

The government denies that the case presents any constitutional issues and urges the applicability of Section 7421, and it further moves, as it did in the district court, for a dismissal on the ground of sovereign immunity.

The fundamental difficulty with the plaintiff’s case is that she has sued the wrong party. The United States, as sovereign, is immune from suit without its consent. Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 141-142, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972); United States v. Sherwood, 312 U.S. 584, 586-587, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); Gnotta v. United States, 415 F.2d 1271, 1276-1277 (8 Cir. 1969). No statute, regulation or order has been cited which shows that the United States has consented to being sued in the situation presented here. In Buck v. United States, 466 F.2d 481, 483 (10 Cir. 1972), the Tenth Circuit dismissed a similar cause of action for lack of jurisdiction saying:

“The United States, as sovereign, may not be sued without its consent and the terms of its consent define the court’s jurisdiction. . . . Taxpayers present no claim that any assessment has been paid or that any application for refund has been filed.
“Taxpayers argue that if relief is not granted they will be unable to contest the validity of the penalties and will suffer irreparable harm in violation of their Fifth Amendment rights. We need not explore what remedies the taxpayers might have had or now have because we are concerned with sovereign immunity. Whatever actions the taxpayers might have maintained against the Collector of Internal Revenue . . . are unimportant because we have a suit against the United States, not against a collector.”

We vacate the judgment of the district court and remand the same with directions to enter a judgment in the district court dismissing the complaint on the grounds of sovereign immunity.

      . See 26 U.S.C. §§ 6862, 6331. Plaintiff relies on Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), and Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969).

      . Section 7421 provides in part:
      “(a) Tax. — Except as provided in sections 6212(a) and (c), 6213(a), and 7426(a) and (b) (1), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.”

      . The Supreme Court in Mnoohs held that Section 7421 prohibits judicial intervention in the assessment and collection of federal taxes unless “it is clear that under no circumstances could the Government ultimately prevail” and “equity jurisdiction otherwise exists. In such a situation the exaction is merely in ‘the guise of a tax.’ ” Enochs v. Williams Packing & Navigation Co., 370 U.S. at 7, 82 S.Ct. at 1129.

      . At this late date the government in a post-trial suggestion has indicated it would consent to a substitution of the proper party in order to permit the court to pass on the merits of the appeal. We decline the government’s suggestion. Plaintiff has made no motion to substitute parties, and additionally we feel that, under the circumstances existing here, the government’s suggestion is untimely made.


author: CHOY, Circuit Judge:

text:
    Essick McKinley BENDER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 72-2513.
    United States Court of Appeals, Ninth Circuit.
    May 2, 1973.
    Essick McKinley Bender, in pro. per.
    William D. Keller, U. S. Atty., William John Rathje, Vincent J. Marella, Eric A. Nobles, Asst. U. S. Attys., Los Angeles, Cal., for defendant-appellee.
    Before DUNIWAY, HUFSTEDLER, and CHOY, Circuit Judges.
   CHOY, Circuit Judge:

Bender appeals the denial without a hearing of his post-conviction petition for relief under 28 U.S.C. § 2255. We affirm.

On November 6, 1967 he pled guilty to violating 18 U.S.C. § 2113(a) and (d), robbery of a savings and loan association with a dangerous weapon. The trial judge fully complied with the requirements of Rule 11, F.R.Crim.P. to ensure voluntariness of the plea, except that he did not explicitly tell appellant that his federal sentence would not commence until his pending state sentences ran their course. The trial judge did tell him immediately after his plea was accepted that the court was powerless to impose a federal sentence to run concurrently with any state confinement.

On November 27, 1967 the trial judge sentenced appellant to fifteen years imprisonment pursuant to 18 U.S.C. § 4208 (a)(2). The commencement of his federal sentence was delayed by one hundred and four days.

On April 25, 1972 appellant filed his § 2255 petition on the ground that his guilty plea was not made with full understanding of its consequences because he was not advised, prior to pleading, of the delay in the start of his federal sentence. He relies on United States v. Myers, 451 F.2d 402 (9th Cir. 1972). The district court held that Myers was not retroactively applicable, but as a matter of grace it reduced appellant’s sentence by one hundred and four days.

We agree that Myers should not be retroactively applied. The two eases which initiated the prophylactic interpretation of Rule 11 were not applied retroactively. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) was held not retroactive in Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969). Heiden v. United States, 353 F.2d 53 (9th Cir. 1965) was held not retroactive in Castro v. United States, 396 F.2d 345 (9th Cir. 1968). See also Myers, supra at 405 of 451 F.2d. This Court also held that the admonishment of unavailability of parole required by Munich v. U. S., 337 F.2d 356 (9th Cir. 1964) was not required to be applied retroactively. Fong v. U. S., 411 F.2d 1181, 1182 (9th Cir.) cert. denied, 396 U.S. 968, 90 S.Ct. 450, 24 L.Ed.2d 434 (1969). The rationale for the Myers and Munich decisions was quite similar, with Myers relying upon Munich.

As to the district court’s act of grace in reducing appellant’s sentence by one hundred and four days: While that act is of dubious validity, we do not disturb it since the government does not object thereto.

Affirmed.

      . See U. S. v. Marchese, 341 F.2d 782, 788 (9th Cir. 1965).


author: PER CURIAM: VAN DUSEN, Circuit Judge,

text:
    Michael F. ELEEY, Appellant, v. Thomas M. VOLATILE, Commanding Officer, and Secretary of Defense, Appellees.
    No. 71-1355.
    United States Court of Appeals, Third Circuit.
    Submitted Dec. 16, 1971.
    Submitted for Reconsideration En Banc Jan. 3, 1973.
    Decided May 3, 1973.

      Sanford Kahn, Philadelphia, Pa., for appellant.
    Barry W. Kerchner, Asst. U. S. Atty., Philadelphia, Pa., for appellees.
    Submitted Dec. 16, 1971.
    Before BIGGS, VAN DUSEN and HUNTER, Circuit Judges.
    Submitted for Reconsideration En Banc Jan. 3, 1973.
    Before SEITZ, Chief Judge, and BIGGS, VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN and HUNTER, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

Appellant submitted to induction into the armed forces on November 25, 1970. He then filed a petition for a writ of ha-Pa.1971). Because of the well-written beas corpus which was denied by the district court on February 16, 1971. Eleey v. Volatile, 339 F.Supp. 57 (E.D. opinion of the district court, we need not delve into the facts.

In 1968 appellant was classified II-A (occupational deferment). His board classified him II-A again in 1969. In 1970, however, the local board received notice from the Pennsylvania Scientific Advisory Committee that it considered appellant’s work “nonessential.” The board then classified appellant I-A without giving him any reason for that action. He exhausted his administrative remedies, submitted to induction, and brought the present action.

The sole issue for us to consider is whether it was a-violation of appellant’s right to due process for his draft board not to give reasons for its refusal to renew appellant’s II-A classification when (1) appellant did not request such a statement, and (2) the draft board had in its file a statement from the National Scientific Advisory Board that appellant’s job was not essential to national security.

In Scott v. Commanding Officer, 431 F.2d 1132 (3d Cir. 1970), this circuit held that a local board was required to state reasons when it refused to grant classification as a conscientious objector to an applicant who had made out a prima facie claim for such classification. The district court held that Scott was limited to conscientious objector claims. Whatever the correctness of that interpretation of Scott at that time, our recent decision in Cale v. Volatile, 465 F.2d 1110 (3d Cir. 1972) makes it clear that when an applicant has presented a prima facie case for occupational deferment, his board must state its reasons for denying that claim.

Cede, however, did retain the requirement that the applicant present a prima facie case of entitlement. The district court did not determine whether appellant had presented such a ease. It held that even assuming he had done so, he was not entitled to a statement of reasons from the board.

We conclude that appellant did present a prima facie case for an occupational deferment.

“In selective service cases, a prima fa-cie case is present ‘if a registrant has presented facts which, if true and un-contradieted by other information contained in the file, would be sufficient under the regulations to warrant granting his requested classification.’ .” (Citation omitted.) Cale v. Volatile, supra, at footnote 3.

Appellant had been granted an occupational deferment for two previous years on basically the same facts as he presented this time. In a similar situation we held that a registrant had presented a prima facie case. United States ex rel. Kameshka v. Neff, 446 F.2d 1164 (3d Cir. 1971).

Although the board did have the conclusion of the Scientific Advisory Board before it, we do not feel that in this situation it was sufficient information to excuse the board from presenting reasons for its action. In this situation it was particularly appropriate and fair for a local board to inform a registrant of the reasons for its actions.

The judgment of the district court will be reversed and this case remanded to that court for it to grant the writ of habeas corpus.

VAN DUSEN, Circuit Judge,

(dissenting):

I dissent, respectfully, from the conclusion of the majority opinion, because the finding of the Pennsylvania Scientific Advisory Committee that petitioner’s occupation was nonessential contradicted the other information in the file indicating a prima facie case. Since this finding had not been present in the file during the two previous years, this record is substantially different from that before the court in United States ex rel. Kameshka v. Neff, 446 F.2d 1164 (3d Cir. 1971). As stated by the district court,

“Assuming, arguendo, that petitioner did establish a prima facie claim to II-A classification, it is obvious that petitioner’s file contains an objective fact which detracts from his claim; i. e., the recommendation of the Scientific Advisory Committee.” [p. 68 of 339 F.Supp.]

I would enter an order vacating the district court order and remanding the case to that court so that it may determine what effect these cases, which have been decided since its opinion and order, may have on this matter: Fein v. Selective Service System, 405 U.S. 365, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972); Cale v. Volatile, 465 F.2d 1110 (3d Cir. 1972); United States ex rel. Bent v. Laird, 453 F.2d 625 (3d Cir. 1971); Kameshka v. Neff, 446 F.2d 1164 (3rd Cir. 1971); and Joseph v. United States, 438 F.2d 1233 (3d Cir. 1971), vacated and remanded, 405 U.S. 1006, 92 S.Ct. 1274, 31 L.Ed.2d 473 (1972).

      . This case makes no determination as to whether appellant could have been considered to have made out a prima facie case had he been presenting his claim for the first time in 1970.


author: PER CURIAM.

text:
    PLAYER PIANETTE, INC., an Iowa corporation, Plaintiff and Appellant, v. DALE ELECTRONICS, INC., Defendant and Appellee.
    No. 72-1632.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 11, 1973.
    Decided May 7, 1973.
    Gregory M. Schatz, Omaha, Neb., for plaintiff and appellant.
    Ephraim L. Marks, Omaha, Neb., for defendant and appellee.
    Before GIBSON, BRIGHT and ROSS, Circuit Judges.
   PER CURIAM.

Plaintiff-appellant, Player Pianette, Inc., an Iowa corporation, brought this diversity action in the Nebraska federal district court, charging Dale Electronics, Inc., of Columbus, Nebraska, with breach of a contract dated in late 1963. In an unreported opinion, the late Judge Dier granted summary judgment for the defendant because the action had not been brought within the five-year statute of limitations specified by Nebraska law. Appellant contends that since the substantive law of Iowa would apply to this case, so also should the Iowa Statute of Limitations which permits actions for breach of contract to be brought within ten years of the accrual of the action. The crux of appellant’s argument is that the statute of limitations should be regarded as substantive law as opposed to the traditional view that such statute is procedural in nature.

Judge Dier in rejecting this contention correctly noted that he was required to apply the conflict of laws rules of Nebraska and that although Nebraska courts had not spoken on the precise question presented, courts generally have applied the statute of limitations of the forum state to determine whether an action is barred. He deemed that the Nebraska Supreme Court would apply this general rule. Judge Dier also noted that in Fischer v. Wilhelm, 139 Neb. 583, 298 N.W. 126 (1941), the Nebraska Supreme Court had held that statutes of limitations do not create or detroy rights but pertain only to the remedy.

Appellant has cited no case supporting its theory that a statute of limitations should be characterized as substantive rather than procedural. We believe the district court was entirely correct in applying the Nebraska (five-year) statute to this controversy and in ruling that such statute barred appellant’s suit. Thus we affirm on the basis of Judge Dier’s opinion.

Affirmed.

      . Neb.Rev.Stat. § 25-205 (1943) provides:
      * * * * S¡S
      An action upon a specialty, or any agreement, contract or promise in writing, or foreign judgment, can only be brought within five years;
      * * * * *

      . Iowa Code Ann. § 614.1 (Cum.gupp. 1973) provides:
      Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specifically declared:
      :¡s # * * *
      5. Written contracts — judgments of courts not of record — recovery of real property. Those founded on written contracts, or on judgments of any courts except those provided for in the next subsection, and those brought for the recovery of real property, within ten years.


author: PER CURIAM:

text:
    Jeanne H. BERSON et al., Plaintiffs, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY et al., Defendants-Third-Party Plaintiffs-Appellees, v. ROYAL GLOBE INSURANCE CO. (Globe Indemnity Company) et al., Third-Party Defendants-Appellants.
    No. 73-1282
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 20, 1973.
    Rehearing Denied May 21, 1973.
    Robert N. Ryan, New Orleans, La, for Royal Globe Ins. Co. & Walker.
    W. P. Macmurdo, Baton Rouge, La, Arthur B. Haack, Baton Rouge, La, for Walker.
    Robert E. Leake, Jr, New Orleans La, for Gov’t Employees Ins. Co. and others.
    Russ M. Herman, New Orleans, La, for Berson.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.

       Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir, 1970, 431 F.2d 409.

   PER CURIAM:

The present case is an action for contribution brought by Government Employees Insurance Company (GEICO) against Royal Globe Insurance Company.

The suit arose from vehicular collision in New Orleans in which GEICO’s insured, a Mrs. Keenan, struck a vehicle driven by a Mr. Lloyd Walker. The Walker automobile was insured by Royal Globe.

On the day of trial GEICO settled the personal injury claims arising from the accident. The case proceeded to trial on GEICO’s third party complaint for contribution.

The jury found both drivers guilty of negligence which proximately caused the subject accident. The trial judge rendered judgment enforcing contribution.

Royal Globe urges three grounds for reversal. It is first contended that the trial court erred in not directing a verdict in its favor, and secondly in failing to enter judgment notwithstanding the verdict in its behalf. Specifically, Royal Globe alleges that there was no evidence to indicate that its insured, Mr. Walker, was guilty of any negligence and, therefore, the question should not have been submitted to the jury.

Guided by the standard of Boeing v. Shipman, 411 F.2d 365 (5th Cir., 1969), the trial court properly denied the motions. A substantial issue regarding Walker’s negligence had been raised by the evidence and was properly submitted to and decided by the jury.

Appellants’ remaining contentions relate to alleged errors in the court’s instructions to the jury. After careful consideration, we find appellants’ claims to be without merit.

The judgment of the district court is affirmed.


text:
    UNITED STATES of America, Appellee, v. Robert L. REISS, Appellant.
    No. 783, Docket 73-1053.
    United States Court of Appeals, Second Circuit.
    Argued April 18, 1973.
    Decided April 20, 1973.
    John E. LeMoult, Marvin M. Karpat-kin, New York City, for appellant.
    George E. Wilson, Richard J. Davis, Asst. U. S. Attys., Whitney North Seymour, Jr., U. S. Atty., for appellee.
    Before CLARK, Associate Justice, WATERMAN and FEINBERG, Circuit Judges.

       Retired Associate Justice of the United States Supreme Court, sitting by designation.

   PER CURIAM:

Appellant, convicted of having unlawfully refused to register with the Selective Service System, a requirement of the Military Selective Service Act of 1967, 50 U.S.C. App. § 451 et seq., seeks reversal of the judgment of conviction.

Appellant became 18 years of age on June 30, 1969. Two days later he wrote a letter addressed to the Selective Service System in New York, informing Selective Service that he had turned 18, but that because of his sincere religious and moral beliefs, he could not participate in the registration process.

The only defense appellant wished to present at his trial was the defense that he was not required to register because the constitutional principles of equal protection and freedom of religion shielded him. The Court below permitted appellant to introduce evidence demonstrating the sincerity of appellant’s beliefs, but held that the uniform requirement that all conscientious objectors to military service present their claims after registration violated none of his constitutional rights.

In United States v. Toussie, 410 F.2d 1156, 1161 (2 Cir. 1969), rev’d on other grounds, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970), we have previously considered the question of whether one required by law to register with a Selective Service System Board may decline to do so for reasons of conscience without incurring criminal liability for the failure. We there held contrary to appellant’s claims here, and we are bound by the precedent there established. Accord United States v. Bigman, 429 F.2d 13, 15 (9 Cir.) (per curiam), cert. denied, 400 U.S. 910, 91 S.Ct. 141, 27 L.Ed.2d 150 (1970); United States v. Palmer, 223 F.2d 893, 895-897 (3 Cir.) (en banc), cert. denied, 350 U.S. 873, 76 S.Ct. 116, 100 L.Ed. 772 (1955).

Judgment of conviction affirmed.


author: J. JOSEPH SMITH, Circuit Judge:

text:
    Sidney O. SAMPSON, Plaintiff-Appellant, v. AMPEX CORPORATION, Defendant-Appellee.
    No. 455, Docket 72-2168.
    United States Court of Appeals, Second Circuit.
    Argued March 21, 1973.
    Decided May 23, 1973.
    John F. Flannery, Fitch, Even, Tabin & Luedeka, Chicago, 111., and George I. Harris, Burke & Burke, New York City, on the brief, for defendant-appellee.
    William T. Hough, Polachek, Sauls-bury & Hough, New York City (Sidney O. Sampson, appellant pro se, on the brief), for plaintiff-appellant.
    Before SMITH, FEINBERG and MANSFIELD, Circuit Judges.
   J. JOSEPH SMITH, Circuit Judge:

This appeal presents us, apparently for the first time, with issues involving the application in patent infringement litigation of the estoppel rule of Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). Judge Charles M. Metzner of the Southern District of New York found the Blonder-Tongue doctrine applicable to this suit, and ordered Sidney O. Sampson’s patent infringement complaint dismissed. For the reasons given below, we affirm.

I.

In any case involving a claim of estop-pel, the prior history takes on some importance, and it is to that history which we first turn. On April 18, 1967, Sampson was granted Patent No. 3,315,041 (hereinafter ’041) for “Track Selection Control Means for Magnetic Signal Recording and Reproducing Systems.” In May of 1967, Sampson filed suit in the Southern District of New York against the Radio Corporation of America (RCA), charging infringement of the ’041 patent. A second such suit was commenced in September of that year, naming Sony Corporation of America (Sony) as defendant. The present action, filed against Ampex Corporation (Ampex), was commenced in October of 1968.

On May 9, 1968, RCA moved for summary judgment in its suit, alleging that the ’041 patent was invalid under 35 U.S.C. § 102(b) because of Sampson’s own publication of the invention more than one year prior to the earliest effective application date. The late Judge Edward C. McLean granted the motion in an unreported decision dated October 25, 1968, holding that the invention was disclosed in a “Five-Titled Brochure” published by Sampson in July of 1959. Sampson did not contest the fact of publication, but argued that the ’041 patent was entitled to the benefit of a March 5, 1959 filing date, the date upon which he had filed Patent Application No. 797,412 (’412), which he later abandoned. Judge McLean considered this argument, which was based upon 35 U.S.C. § 120, and rejected it, finding the earliest effective filing date in this case to be that of Patent Application No. 267,881, or March 18, 1963.

A motion to reargue the RCA case was filed on November 1, 1968. While the motion was pending, Sampson filed a notice of appeal, but on December 31, 1968 that appeal was abandoned, pursuant to a stipulation of the parties, when a settlement was reached between RCA and Sampson concerning ’041 and eight other patents. On that same day, December 31, Judge McLean denied the motion to reargue.

Sampson next moved to vacate the RCA judgment. That motion was denied by Judge Ryan on January 14, 1970. We affirmed, 434 F.2d 315 (1970), holding that the failure to vacate was not an abuse of the trial court’s discretion.

Meanwhile, in the Sony suit, the parties entered into a stipulation on September 26, 1968, agreeing to be bound by whatever result Judge McLean reached in the RCA case. Judge Ryan dismissed the Sony complaint, on the basis of the stipulation, after Judge McLean’s RCA decision was rendered. Sampson appealed Judge Ryan’s order and we affirmed, 434 F.2d 312 (1970).

In the meantime, the Ampex litigation had been stayed by the district court pending the outcome of the RCA and Sony appeals. See 434 F.2d at 314 n. 1 and id. at 317 n. 2. On May 31, 1971 while the Ampex litigation was still pending, the Supreme Court decided Blonder-Tongue, which for the first time made available the defense of estoppel in patent infringement suits. Consequently, Ampex moved to amend its answer to include an estoppel defense, based upon the RCA holding that the ’041 patent was invalid. At the same time, Ampex moved for judgment on the amended pleadings. Judge Bonsai gave Sampson thirty days in which to amend his pleadings and supplement the record with evidence showing why the estoppel doctrine should not be imposed.

Sampson did file an amended complaint, and included a number of supplemental exhibits in the record. Both sides fully briefed the estoppel issue. On June 6, 1972, Judge Metzner granted Ampex’ motion to dismiss the complaint, holding that Sampson had not pleaded sufficient facts to avoid the estoppel defense. It is from this order that Sampson now appeals.

II.

Since Triplett v. Lowell, 297 U.S. 638, 56 S.Ct. 645, 80 L.Ed. 949 (1936), it had been the rule that a determination of patent invalidity did not act as res judi-cata in a subsequent suit involving the patentee and a different defendant. This rule, however, was overturned by Blonder-Tongue, which abandoned the traditional absolute reliance upon mutuality in such situations. But while the Blonder-Tongue court did make the plea of estoppel available to a defendant in subsequent patent litigation, it noted that the plea need not “automatically be accepted once the defendant in support of his plea identifies the issue in suit as the identical [issue] finally decided against the patentee or one of his privies in previous litigation.” 402 U.S. at 333, 91 S.Ct. at 1445. Rather, the question, as in the traditional estoppel situation, is whether the patentee had both fair opportunity and incentive to litigate the validity issue in the first litigation. The Court identified such considerations as the convenience of the initial forum to the patentee, and the related issue of whether the patentee was plaintiff or defendant in the original action as bearing upon the question of “whether a pat-entee has had a full and fair chance to litigate the validity of his patent in an earlier case.” Moreover, the Court noted that the estoppel doctrine should not be applied where

the opinions filed by the District Court and the reviewing court, if any, indicate that the prior case was one of those relatively rare instances where the courts wholly failed to grasp the technical subject matter and issues in suit. . . . ” Id. U

But, in the end, no single “automatic formula” was seen applicable, and the final decision on whether to apply the estoppel doctrine was left to the lower court’s “sense of justice and equity.” Id. at 334, 91 S.Ct. 1434.

Under the general Blonder-Tongue criteria, this case presents few compelling reasons for circumventing the es-toppel doctrine. Not only are the issues here identical to those in the RCA litigation, but Sampson was the plaintiff in that suit, with every incentive to litigate the merits, and the suit was pursued in the precise forum which Sampson chose. And, Sampson voluntarily chose not to seek review of Judge McLean’s order in this court, a course that might well have settled several years ago the substantive arguments he presents here.

Nonetheless, Sampson argues that he was deprived of a fair opportunity to litigate the issue of patent invalidity in the RCA suit, claiming that Judge McLean wholly “failed to grasp” the § 120 argument which, if accepted, would have entitled to '041 patent to an earlier effective filing date and avoided the § 102(b) publication problem. But the record indicates that the arguments which Sampson presses upon us are precisely those which he urged upon Judge McLean, and to which both parties directed their attention at that time. Judge McLean fully considered those arguments and held against Sampson, a decision that Sampson decided not to appeal. Ordinarily, that would end our inquiry on the estoppel issue, particularly since the underlying issue, the applicability of § 120, involves statutory construction and not the kind of technical considerations common to other patent litigation, such as that involving non-obviousness.

However, noting the Blonder-Tongue admonition that “justice and equity” control the final decision, and mindful of Judge McLean’s remarks that the result in the first case was “unfortunate,” we have, perhaps in an excess of caution, asked the parties here to brief the question of the correctness of the original RCA decision. Were we convinced that Judge McLean committed egregious error on the § 120 issue, we might possibly be able to say that this case fits within the “relatively rare” Blonder-Tongue exception, where a trial judge “wholly failed to grasp the . . . issues in suit.” But such is not the case here.

Sampson’s chief claim is that the hiatus between the March 5, 1959 filing date of the ’412 application and the March 18, 1963 filing date of application 267,881, which Judge McLean found applicable, was “bridged” by four intervening applications, and that § 120 thus gives him benefit of the earlier date. We have considered this argument with some care, and have examined the voluminous record before us in light of it. Having done so, we find ourselves unable to conclude that application of the Blonder-Tongue estoppel rule in this case would not be in the interests of “justice and equity.”

To be sure, Sampson did file at least four applications in the period between March 5, 1959 and March 18, 1963, and each of those applications seems to deal with the same general subject matter. But this is not enough to invoke the § 120 copendeney doctrine. Former Patent Office Rule 78(a) (now codified without substantial change as 37 C.F.R. § 1.78(a)) specifically provided

“When an applicant files an application claiming an invention disclosed in a prior filed eopending application of the same applicant, the second application must contain or be amended to contain a reference in the specification to the prior application, identifying it by serial number and filing date of the prior applications, if the benefit of the filing date of the prior application is claimed; if no such reference is made the prior application must be referred to in a separate paper filed in the later application.”

Ampex argues to us, as it did to Judge McLean, that Sampson’s later applications did not sufficiently comply with the identification provisions of this rule. Our independent examination of the record suggests that there is merit in Am-pex’ position. In light of our quite serious doubts as to the sufficiency of Sampson’s compliance with Rule 78(a), and hence his ability to claim an earlier filing date under § 120, we simply cannot conclude that Judge McLean’s decision in this case constitutes such egregious error or failure to grasp the essential issues in suit as to invoke the “relatively rare” Blonder-Tongue exception. Cf. Sampson v. Ampex Corp., 463 F.2d 1042 (2d Cir. 1972).

We pause to note that we are not today affirming — or finding error with— Judge McLean’s RCA judgment. Such a full-scale review is not our function under the estoppel doctrine. If Sampson wanted full review of the RCA decision, he should have not abandoned his original appeal. Rather, we have examined the merits in the RCA case only to satisfy ourselves that the decision was not based on such a blatant misunderstanding of the relevant legal principles as to make application of the estoppel doctrine inequitable. We find it quite clear that no such situation is presented by this case, and conclude that the district court correctly applied the Blonder-Tongue rule.

Affirmed.

      . In relevant part, 35 U.S.C. § 102(b) provides :
      “A person shall be entitled to a patent unless' — ■
      (b) the invention was patented in or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.”

      . 35 U.S.C. § 120 provides:
      “An application for patent for an invention disclosed in the manner provided by the first paragraph of section 112 of this title in an application previously filed in the United States by the same inventor shall have the same effect, as to such invention, as though filed on the date of the prior application, if filed before the patenting or abandonment of or termination of proceedings on the first application or on an application similarly entitled to the benefit of the filing date of the first application and if it contains or is amended to contain a specific reference to the earlier filed application.”

      . Mr. Justice White noted in Blonder-Tongue that many “nontechnical” patent issues — among which § 120 questions are presumably included — “are more often than not no more difficult than those encountered in the usual nonpatent case.” 402 U.S. at 332 and n. 23, 91 S.Ct. at 1444. While we have no quarrel with the Court’s eventual conclusion that modern estoppel rules should thus apply to patent litigation, we do note in passing that the Court which so described “nontechnical” patent questions did not have before it the prolix papers in this case.


author: WISDOM, Circuit Judge:

text:
    Ove SKOU, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
    No. 72-3216.
    United States Court of Appeals, Fifth Circuit.
    May 17, 1973.

      John L. Briggs, U. S. Atty., Tampa, Fla., Alfred H. O. Boudreau, Jr., Walter H. Fleischer, Eric Chaikin, Admiralty & Shipping Section, Dept, of Justice, Washington, D. C., for defendant-appellant.
    Nathaniel G. W. Pieper, Tampa, Fla., for plaintiff-appellee.
    Before WISDOM, GEWIN and COLEMAN, Circuit Judges.
   WISDOM, Circuit Judge:

In this suit a shipowner seeks damages for the loss of use of its ship while undergoing repairs. The United States admits that it negligently damaged the ship M/V MADS SKOU. As a result, the ship was out of service for ten and five-twelfths days. The district court awarded the shipowner damages equal to the amount a charterer would have paid in rental for the days the ship was laid up for repairs. On appeal, the United States alleges two errors in this award. First, the court did not require the shipowner to prove that he could have subsequently chartered his vessel had it not been for the detention. Second, even if detention per se justifies damages, without proof of actual loss of a charter, the district court erred in making an award of the full rental value of the ship rather than subtracting operating expenses to determine a net profit award. We reverse the district court’s award of damages for detention and remand to allow the shipowner to prove actual loss of profits or that profits may be reasonably supposed to have been lost because the vessel was active in a ready market. We conclude that once actual loss has been proved, the operating expenses which have been saved by the shipowner must be deducted from the rental value of the ship to determine damages.

I.

On May 10, 1969, while the M/V MADS SKOU was being maneuvered away from its dock site, a United States Army tug assisting the maneuver negligently struck and damaged the MADS SKOU. Ten and five-twelfths days were required to repair the ship. Afterwards the ship completed its interrupted charter voyage and the shipowner was paid the full contract price by the charterer. The ship was not employed until fourteen days after completion of that charter.

The ship was valued at approximately two and a half million dollars. At the time of the accident it was under charter to Harrison Lines at a per diem rate of $1750. By the terms of the charter, payment of the per diem rate was suspended while the ship was in repair.

The shipowner was reimbursed in full for the cost of the repairs and for services incidental to completing the repairs. For the ten and five-twelfths days that the vessel was out of service, the shipowner was awarded $1750 per day for a total of $18,229. This was exactly the gross charter hire being paid by Harrison Lines. The court concluded that this amount was the “market price for the use of the vessel” during “May and June 1970”. Because that was the charter price at the time of the collision, the district court held that it was “reasonable evidence of the market value and the shipowner’s expected return on its capital investment.” There were no deductions made for the ordinary expenses that the shipowner would incur during a charter. During charter periods, the shipowner ordinarily bore the expenses of wages and provisions for the crew, though the cost of fuel was borne by the charterer. Because the ship was damaged while in mid-performance of a charter the ship maintained a crew during the repairs.

II.

The United States argues that the district court erroneously awarded $18,229 to the shipowner without requiring any proof of actual loss. The shipowner introduced no evidence that a specific charter had been lost because of the ten day delay, nor did he offer proof that the ship would probably have been chartered had it arrived on schedule at its destination port. The government contends that to justify an award of damages for loss of use the shipowner must introduce some evidence that profits actually have been, or reasonably have been, lost. The shipowner contends that evidence of the market price of the vessel is sufficient proof of loss, and that he is entitled to a fair return on his capital investment.

Demurrage, loss of profits from the loss of use of a vessel, has traditionally been an item of damages in admiralty. Demurrage, “will only be allowed when profits have actually been, or may be reasonably supposed to have been, lost, and the amount of such profits is proved with reasonable certainty.” The Conqueror, 1898, 166 U.S. 110, 115, 17 S.Ct. 510, 512, 41 L.Ed. 937, 944; The Nicolaou Maria, 5 Cir. 1944, 143 F.2d 406; The Wolsum, 5 Cir. 1926, 15 F.2d 371, 377. “The damages must not be merely speculative, and something else must be shown than the simple fact that the vessel was laid up for repairs.” The Conqueror, 166 U.S. at 127, 17 S.Ct. at 517. Navigazione Libera T.S.A. v. Newton Creek Towing Co., 2 Cir. 1938, 98 F.2d 694. The burden of establishing that profits were lost is upon the shipowner. The Nicolaou Maria; Newton Creek Towing Co. v. City of New York, 2 Cir. 1928, 23 F.2d 486. In the Nicolaou Maria because no evidence was introduced of the demand for similar vessels and because the vessel was not chartered in the succeeding three weeks, the court concluded that an award of demur-rage would rest only upon surmise and speculation.

Damages for demurrage have been awarded where actual loss has been proven. In the Steamboat Potomac v. Cannon, 1882, 105 U.S. 630, 26 L.Ed. 1194, the vessel was a steamboat “engaged in a certain, permanent, and lucrative trade, making weekly trips on the Mississippi River. . . . ” Because the vessel was engaged in a “regular established line”, the shipowner was awarded her average net profits for the period during repairs. In the City of Miami v. Western Shipping and Trading Co., 5 Cir. 1956, 232 F.2d 847, where the necessity for repairs caused the vessel to breach existing charter commitments, unlike the situation with the MADS SKOU, damages were also awarded for the actual loss. There, however, the court stated; “Quite a bit of evidence was received touching this item of damage.” Id. at 851. In the Hygrade No. 24 v. The Dynamic, 2 Cir. 1956, 233 F.2d 444, a barge was inoperative for nineteen days. The court awarded the owner the net profits it would have earned for each of those days after finding that the barge was booked continuously for the entire season and that the evidence was sufficient to conclude that the barge would have worked every day had it not been damaged. Id. at 448. Similarly, in Atkins v. Alabama Drydock & Shipbuilding Co., 1960, S.D.Ala., 195 F.Supp. 944, an award of demurrage was based on a finding that the vessel was engaged in routine repeated runs from British Honduras with a banana cargo.

The dearth of evidence here prevents our concluding whether, during the market of May and June 1969, vessels of the Skou’s tonnage and design were customarily under charter every day of the year, whether there were lengthy inactive periods between charters, or whether actual experience was somewhere in between. The ship in question arrived at its destination ten days late and was not rechartered until fourteen days later, or 24 days from its original scheduled arrival date. There is no evidence that a subsequent charter commitment was breached, or that the shipowner, knowing the approximate length of the repair period, made any attempt to arrange for a subsequent charter. If the ship was in fact idle for only a customary period, then compensation of the shipowner for these inactive days would be a windfall to him. He would be in a better position because of the collision than had it not occurred. To profit by one’s loss goes against the purposes of compensatory awards in tort and exceeds the doctrine of restitutio in inte-grum.

The requirement that a shipowner offer proof of- loss is not equivalent to a requirement that he prove the loss of a specific charter at a definite time and place. Other courts have demanded only that the vessel be “active in a ready market”, Moore-McCormack Lines v. The Esso Camden, 2 Cir. 1957, 244 F.2d 198, 201, or that there be a “steady demand in the market.” The Conqueror, 166 U.S. at 134, 17 S.Ct. 510. In The North Star, 2 Cir. 1907, 151 F. 168, 175, the court discussed the burden of proof in the following terms:

In ascertaining whether earnings have been lost by the owner, the inquiry is not whether they could possibly have been made, but is whether they would have been made. As it cannot be proved that they would have been certainly made, it suffices if the fact [of lost profits] is proved circumstantially and with a reasonable degree of certainty. . . It is not necessary for him to show by direct evidence that he would have employed his vessel . . during the period in such a way that earnings would have accrued to him. ... It suffices if he shows a state of facts from which a court or jury can find that there was an opportunity for him to do so, and that he would have availed himself of it. But if it appears affirmatively, or if the reasonable inference from the facts established is that there was no opportunity . . ., it is impossible for a court or jury to find legitimately that he has sustained actual loss.”

The shipowner commended this test to us but even the burden of proof as set forth in The North Star has not been met.

The sole evidence introduced was the per diem rate at the time of the detention. That evidence does not reflect upon the existence of a market, only upon the price when a market is found. Every commodity has its cost, but the mere quotation of a market price in no way informs us of the quantity or with what frequency the commodity is being purchased. Demand is not always constant for all suppliers available. Without proof of actual loss the legal liability imposed upon the defendant is in the nature of damages for a technical legal invasion, similar to punitive damages awarded in conjunction with nominal damages.

The burden of proof on the shipowner is not excessive. He need prove only that profits “have actually been or may be reasonably supposed to have been lost.” The Conqueror, 166 U.S. at 125, 17 S.Ct. at 516. Counsel for the plaintiff admitted on oral argument that he could have introduced expert evidence of the ship’s marketability. We remand this case to the district court to give the plaintiff an opportunity to introduce evidence of actual loss, and we leave to the district court the factual determination whether such evidence is sufficient to satisfy the shipowner’s burden of proof. Cf. Brooklyn Eastern District Terminal v. United States of America, 1932, 287 U.S. 170, 53 S.Ct. 103, 77 L.Ed. 240.

This Court’s decisions in Continental Oil Co. v. S.S. Electra, 5 Cir. 1970, 431 F.2d 391, and Delta Marine Drilling Co. v. M/V Baroid Ranger, 5 Cir. 1972, 454 F.2d 128, are not contrary to the rule we have adopted. In both of those cases the plaintiff was employed to perform work under a continuing contract of indefinite duration at a daily rate. The facts there are analogous to the regularly scheduled voyages of the THE POTOMAC. See The Steamboat Potomac v. Cannon, 105 U.S. 630, 26 L.Ed. 1194. The drilling platform in Continental Oil and the drilling barge in Delta Marine were not engaged in irregular unscheduled short term contracts such as the MADS SKOU. Their contracts were for continuous long term performance.

III.

The appellant next contends that the trial court erroneously awarded the shipowner the full charter price for the ten day detention without deducting the operating expenses ordinarily expended by the shipowner during a charter. The United States argues that the shipowner is entitled to a net profit award only; the appellee’s position is that it has in fact received only a net profit. The ap-pellee argues that the shipowner’s normal operating expenses of wages and provisions did not cease during the repair period because the full crew was maintained on board.

The general measure of the economic loss of a vessel during detention is net profit. The contract rate for rental of the vessel is a proper guide for measuring the lost income of the shipowner. Delta Marine Drilling Co. v. M/V Baroid Ranger, 5 Cir. 1972, 454 F.2d 128. From a gross charter price must be subtracted the ordinary expenses the shipowner would incur in earning that gross fee. The Steamboat Potomac v. Cannon; The Umbria, 1897, 166 U.S. 404, 421, 17 S.Ct. 610, 617, 41 L.Ed. 1053. The burden is upon the shipowner to prove the extent of damages actually sustained by him. The Steamboat Potomac, 105 U.S. at 630; Bue, Admiralty Law in the Fifth Circuit — II, 5 Houst.L.Rev. 772, 915-20 (1968). “If the vessel is under charter and is off-hire as a result of the collision, damage to the owner can be computed by calculating the lost charter hire and deducting any savings to the owner attributable to the ship’s being out of service. In other words, the ordinary operating expenses can be deducted from the charter hire and out of pocket expenses during the layup added in when arriving at proper damages.” Bue, at 917; Moore McCormack Lines v. The Esso Camden, 2 Cir. 1957, 244 F.2d 198; The Hygrade NO. 24 v. The Dynamic, 2 Cir. 1956, 233 F.2d 444. Where the shipowner makes no savings of operating expenses during repairs the charter price is an adequate measure of damage. See Isthmian S.S.Co. v. Jarka Corp., 1951, D.Md., 100 F.Supp. 856; The Belgenland, 1888, S.D.N.Y., 36 F. 504. Here, there were no savings to the shipowner for the cost of fuel because the charterer would bear the cost of fuel during the charter. Here also, though the shipowner bears the cost of wages, food, provisions, insurance, depreciation, and tax during a charter, none of those expenses were saved since the accident occurred in mid-charter and the crew was maintained throughout the ten day repair period. Thus, though the defendant would be entitled for a deduction for any savings by the shipowner, none have been shown on the record before us.

Reversed and remanded for further proceedings not inconsistent with this opinion.

      . The shipowner received a total award of $51,885.12 plus 4% interest, of which only $18,229 is in dispute here. Uncontested awards include expenses for steve-doring, pilotage, repairs, harbor fees, local agent fees, crew overtime, and fuel during the detention.

      . The Nicolaou Maria:arrived in port seven days late. A subsequent charter was frustrated by the German invasion of Denmark. After three weeks without a charter, the vessel returned to the United States without cargo. No evidence was introduced to show that the Danish charter could have been completed had the vessel arrived timely.

      . See also Charles Zubik and Sons, Inc. v. The Ohio River Co., 1962, W.D.Penn., 208 F.Supp. 71, where the court concluded: “Nor is there any evidence . . . that there was any market for the M/V James Zubik during the three days she remained idle.” Id. at 76.

      . With respect to subsequent charter opportunities the trial court remarked: “But if [the MADS SKOU] had gotten there on time I don’t know what would have happened.” Trial transcript, p. 281.

      . Cf. 5 Corbin on Contracts § 1002, p. 35 (1964) : “Just compensation requires that the plaintiff should be given judgment for the full value of what was promised to him, diminished only by the amount of saving in cost to him that the breach of the defendant has made reasonably possible.”