author: PELL, Circuit Judge. Mr. Justice CLARK

text:
    MAYER PAVING AND ASPHALT COMPANY, an Illinois corporation, and Lee O. Mayer, sole surviving partner of Mayer Paving Company, a co-partnership, Plaintiffs and Counter-Defendants, Appellants and Cross-Appellees, v. GENERAL DYNAMICS CORPORATION, a Delaware corporation and Material Service Corporation, a Delaware corporation, Defendants and Counter-Claimant, Appellees and Cross-Appellants.
    Nos. 72-1613, 72-1703, 72-1704.
    United States Court of Appeals, Seventh Circuit.
    Argued May 25, 1973.
    Decided Oct. 1, 1973.
    Certiorari Denied Jan. 14, 1974.
    See 94 S.Ct. 899.

      John J. Borst, Jr., Francis J. McConnell, Chicago, Ill., for Mayer Paving & Asphalt Co.
    James R. Thompson, U. S. Atty., William T. Huyck, Asst. U. S. Atty., Patrick W. O’Brien, Bertram M. Long, James W. Gladden, Jr., and Ronald W. Szwajkowski, Chicago, Ill., for Gen. Dynamics Corp.; Mayer, Brown & Platt, Chicago, Ill., of counsel.
    Before CLARK, Associate Justice, and PELL and SPRECHER, Circuit Judges.

       Associate Justice Tom C. Clark, United States Supreme Court, Retired, is sitting by designation.

   PELL, Circuit Judge.

Mayer Paving and Asphalt Company and Lee O. Mayer appealed from a judgment in favor of Material Service Corporation, a subsidiary of General Dynamics Corporation, on its counterclaim and from a judgment n. o. v. in favor of defendants on plaintiffs’ complaint. Plaintiffs alleged that they had been the victims of illegal price discrimination in the sale by General Dynamics of crushed limestone which plaintiffs used in their paving business. The price discrimination was charged to be a violation of § 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, § 1, 49 Stat. 1526, 15 U.S.C. § 13(a). General Dynamics Corporation’s subsidiary, Material Service, counterclaimed for foreclosure of a mortgage and for the balance due on a promissory note and open account, most of which arose out of the course of dealing between Mayer Paving and General Dynamics. On this appeal, Mayer Paving raises two principal issues: first, the propriety of the district court’s grant of judgment n. o. v., and second, the jurisdiction of the district court to enter a judgment against plaintiffs on Material Service’s counterclaim.

Lee O. Mayer and her husband, Sidney R. Mayer, Sr., operated Mayer Paving Company as a partnership until the latter’s death in October 1964. Thereafter, the business was incorporated as Mayer Paving and Asphalt Company. The plaintiffs will hereinafter be referred to collectively as Mayer Paving. Mayer Paving engaged in the asphalt paving business at all material times and had its principal place of business in Skokie, Illinois. Material Service Corporation was originally organized to produce and distribute crushed limestone, sand, and other aggregates in the paving and construction business. On December 31, 1959, General Dynamics Corporation acquired the assets of Material Service Corporation through a statutory merger. Thereafter Material Service was operated as a division, Material Service Division, until it was reincorporated as a wholly-owned subsidiary in March 1969.

Material Service operates five quarries in the Chicago area and sells to paving and construction contractors in Indiana and Illinois. Mayor Paving alleged and the jury from its verdict apparently concluded that during all relevant times Material Service was guilty of charging Mayer Paving higher prices for stone than it charged Mayer Paving’s competitors. The jury was unpersuaded by Material Service’s evidence concerning the cost and other claimed justifications of the various price differences.

Following the entry of judgment on the jury’s verdict, General Dynamics and Material Service moved for judgment n. o. v. on the ground that Mayer Paving had not established the jurisdictional prerequisite for a Robinson-Pat-man Act suit. The district court granted the motion in a memorandum opinion dated June 9, 1972. The court based its decision on its opinion that the factual situation here involved fell within the ambit of Borden Company v. Federal Trade Commission, 339 F.2d 953 (7th Cir. 1964), rather than Moore v. Mead’s Fine Bread Co., 348 U.S. 115, 75 S.Ct. 148, 99 L.Ed. 145 (1954). The district court concluded that Borden held that the Robinson-Patman Act did not cover a customer’s action for price discrimina-tions when all of the properly challenge-able sales were intrastate.

Section 2(a) of the Clayton Act, as amended, requires three different types of “in commerce” (i.e., interstate commerce) tests to be satisfied before jurisdiction can be established: first, the discriminator must be “in commerce” ; second, the challenged discrimination must occur “in the course of such commerce”; and third, “either or any of the purchases involved in such discrimination are in commerce. . . .” “The first two elements of the statutory ‘commerce’ provision are of lesser import .... Of prime decisional significance ... is the test that the challenged discriminatory transaction must itself occur ‘in’ commerce. Under that test, the applicability of Robinson-Patman is determined by this rule of thumb: at least one of the two transactions which, when compared, generate a discrimination must cross a state line.” Rowe, Price Discrimination Under the Robinson-Patman Act (1962), § 4.9, at 78-79. Such is the case in the present controversy as defendant does not challenge that it is itself “in commerce” and that the discrimination may have occurred in the course of commerce. The parties are deadlocked on whether or not the third “commerce” requirement has been met. Mayer Paving may not avail itself of the seemingly applicable language of § 3 of the Robinson-Patman Act, 15 U.S.C. § 13a, since that section provides no private right of action. Nashville Milk Co. v. Carnation Co., 355 U.S. 373, 78 S.Ct. 352, 2 L.Ed.2d 967 (1958).

Mayer Paving contends in reliance upon Moore that, since Material Service sold to a number of firms in Indiana at prices lower than those given Mayer Paving, the third commerce requirement has been satisfied: “. . . once having established discrimination in commerce within the meaning of § 2(a), proof of competitive injury is sufficiently demonstrated when it is shown that Mayer Paving and other Illinois contractors are consistently charged substantially higher stone prices than their local competitors as well as Indiana contractors.”

General Dynamics, on the other hand, contends that in a case of second-line discrimination, that is, one in which the customers of the discriminator sue for damages to competitive position, such as is alleged by Mayer Paving, one of the discriminatory sales which is “in commerce” must be either to the plaintiff or to a competitor of the plaintiff. “That MS [Material Service] may have made interstate sales to Indiana contractors is irrelevant. Those Indiana contractors did not compete with Mayer, nor did the southern Cook County contractors who did small amounts of business in Indiana. . . . Therefore, this case only involves sales by MS of crushed limestone produced in Illinois to Mayer and its competitors for use in Illinois.” We are thus presented with a pure question of statutory interpretation.

Initially, we should note that the scope of the Robinson-Patman Act amendments to the Clayton Act is significantly different from the Sherman Act’s in this very requirement that one sale be “in commerce.” Lehrman v. Gulf Oil Corp., 464 F.2d 26, 36 (5th Cir. 1972), cert, denied, 409 U.S. 1077, 93 S.Ct. 687, 34 L.Ed.2d 665; A. Cherney Disposal Co. v. Chicago & Suburban Refuse Disposal Association, 484 F.2d 751 (7th Cir., filed June 28, 1973) (p. 755). In contrast to the specific requirements of the Robinson-Patman Act, “it appears settled that only those activities are beyond the reach of the Sherman Act which are ‘purely local’ in the double sense that they (1) are not within the flow of interstate commerce and (2) have no significant effect on that flow.” ABA, Antitrust Developments 1955-1968, 39 (1968). Thus, we do not presently need to consider whether Congress has the power to reach such dis-criminations as are alleged by Mayer Paving. What we must determine is whether Congress intended to reach such discriminations.

“The Robinson-Patman Act as a whole was the product of such a complex series of interrelated legislative proposals that congressional intent is unusually difficult to decipher.” Recent Cases, 86 Harv.L.Rev. 765, 769 (1973). This is particularly true of the phrase requiring one of the sales to be “in commerce.” Compare Rowe, Discriminatory Sales of Commodities in Commerce: Jurisdictional Criteria Under the Robinson-Patman Act, 67 Yale L.J. 1155, 1166 n. 46 (1958), with Recent Cases, supra, 86 Harv.L.Rev. at 769-771.

We agree with the district court’s appraisal that the decision of this appeal is dependent upon whether the situation involved activates the guidelines of Moore or of Borden. Unfortunately, neither is factually squarely in point and ultimately we must determine what the congressional.intent was with regard to the precise factual situation before us, in what we regard as a case of first impression. Nevertheless, because of their general pronouncements on the subject, we first turn to a consideration of Moore and Borden.

Certainly, the touchstone for analysis in the present area is Justice Douglas’s opinion for a unanimous Supreme Court in Moore. In that case, Moore was engaged in the bakery business in Santa Rosa, New Mexico, with none of its activities being in interstate commerce. The defendant was a corporation in competition with Moore for the local business in New Mexico. In addition to its intrastate business, the defendant was engaged in interstate commerce in that it sold bread in Farwell, Texas, with a truck originating in New Mexico. The plaintiff and the defendant became engaged in a price war in Santa Rosa, New Mexico, during which the defendant cut its price in Santa Rosa while holding its prices up in all other areas in which it was doing business, including its interstate business in Farwell, Texas. The Court held that such activity contravened the Clayton Act, as amended, even though the direct injury was purely intrastate. Mayer Paving relies heavily on the observation in Moore relating to the use of a treasury drawn from interstate business to finance impermissible local competition, 348 U.S. at 119, 75 S.Ct. 148; compare Cliff Food Stores, Inc. v. Kroger, Inc., 417 F.2d 203, 209 (5th Cir. 1969), and Willard Dairy Corp. v. National Dairy Products Corp., 309 F.2d 943 (6th Cir. 1962), cert, denied, 373 U.S. 934, 83 S. Ct. 1554, 10 L.Ed.2d 691 (1963), with Littlejohn v. Shell Oil Co., 456 F.2d 225, 229 (5th Cir. 1972), petition for rehearing en banc granted, 470 F.2d 997 (5th Cir. 1973). But that issue is not really involved in the present case since Moore was a case of primary-line injury, injury to a competitor of the discriminator, and the present case involved secondary-line injury, injury to one of the customers of the discriminator. That distinction is well-established, Federal Trade Commission v. Anheuser-Busch, Inc., 363 U.S. 536, 542-544, 80 S.Ct. 1267, 4 L.Ed.2d 1385 (1960), and it has substantial impact on the disposition of the present case. See also Rowe, Price Discrimination, supra.

Borden Company v. Federal Trade Commission, supra, which the district court below found to be controlling in the present case, while factually distinguishable is analogous to the present case. In Borden, this court refused to enforce the Commission’s order because the alleged discriminatory sales from Borden’s Portsmouth plant were without interstate indicia. “It [was] undisputed that the sales of milk were negotiated in Ohio, the milk was produced, processed and delivered in Ohio for resale in Ohio.” 339 F.2d at 955. There is no suggestion that the Portsmouth plant sold any of its products in interstate commerce. It is that fact which, as Mayer Paving notes, distinguishes Borden from the present case. It scarcely needs stating that the Borden Company was extensively engaged in interstate commerce. That is also true, although to a lesser extent, of both General Dynamics and Mead’s Fine Bread in the Moore case, the latter defendant being one of several corporations having interlocking ownership and management in the same family. The pattern for growth of monopoly found by the Court in the situation in Moore, a primary-line injury, does not exist in this secondary-line injury case. In the case of the secondary-line injury of the present type, we are persuaded that the interstate character of General Dynamics’ overall business is not a controlling factor any more than it was in Borden.

However, General Dynamics did sell interstate from its Illinois operations and, as noted, the factual situation differs in this respect from Borden. Similarly, other cases cited by defendant are distinguishable either as involving allegations of purely intrastate sales, e. g., Belliston v. Texaco, Inc., 455 F.2d 175 (10th Cir. 1972), cert, denied, 408 U.S. 928, 93 S.Ct. 306, 34 L.E.2d 264, and Food Basket, Inc. v. Albertson’s Inc., 383 F.2d 785 (10th Cir. 1967), or relying on the “flow of commerce” doctrine in which the court found that the goods had come to rest, e. g., Cliff Food Stores, Inc. v. Kroger, Inc., supra, and Walker Oil Co. v. Hudson Oil Co. of Missouri, 414 F.2d 588 (5th Cir. 1969), cert, denied, 396 U.S. 1042, 90 S.Ct. 684, 24 L.Ed.2d 686 (1970), a doctrine which was inferentially undercut in Mr. Justice Clark’s opinion for this court in Bargain Car Wash, Inc. v. Standard Oil Co. (Indiana), 466 F.2d 1163, 1166 (7th Cir. 1972).

In turning then for our decision to the wording of the statute we are reminded of Mr. Justice Frankfurter’s appraisal that “precision of expression is not an outstanding characteristic of the Robinson-Patman Act.” Automatic Canteen Company v. Federal Trade Commission, 346 U.S. 61, 65, 73 S.Ct. 1017, 1020, 97 L.Ed. 1454 (1953). We shall also attempt to follow his admonition in the same case “to confine ourselves as much as possible to what is in dispute here.” For our present purposes, that which is in dispute is whether there is a violation of the Act where all of the purchases in which price discrimination existed made by both Mayer Paving and its competitors were intrastate and therefore not “in commerce.”

For the resolution of the particular dispute we again examine the words of the statute: “where either or any of the purchases involved in such discrimination are in commerce .” It is our view that the word “involved” when read against the underlying purpose of the anti-trust laws, to protect competition, requires that only the purchases by Mayer Paving competitors and by Mayer Paving itself be considered in determining whether “either or any” discriminatory sale is “in commerce.” We are fortified in this conclusion by the fact that § 2(a) specifies that a price discrimination is actionable only “where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them . . . .” Only those purchases which might injure competition are “involved” under the Robinson-Patman Act.

Mayer Paving attempts to argue applicability of Moore by variations of the factual situation here involved. We are not concerned with other factual situations but only the one here involved and whether it calls into play the sanctions of the Robinson-Patman Act. Essentially, we have in the particular situation an analogue to standing. The customer has standing only to raise and compare those sales which are injurious to his competition. Cf. Federal Trade Commission v. Anheuser-Busch, Inc., supra, 363 U.S. at 342-343, 80 S.Ct. 1267. The competitor of the seller, on the other hand, has more freedom under Moore since the Court has declared that the competitor of the seller is involved in any sale which may be used to finance an intrastate price war in violation of the provisions of the Robinson-Patman Act. The analytical distinction involving the “competing customer” is discussed in Rowe, Price Discrimination, supra at 80. Similarly, the requirement that some evidence of competition exist to justify the invocation of this section of the Act is also found in National Lead Co. v. Federal Trade Commission, 227 F.2d 825, 836 (7th Cir. 1955), rev’d on other grounds, 352 U.S. 419, 77 S.Ct. 502, 1 L.Ed.2d 438 (1957). “For to the extent customers on different sides of a boundary line do not compete with each other, no adverse competitive effects on the customer level can ensue from the supplier’s price variations.” Rowe, Price Discrimination, supra at 179.

We do not find plaintiffs’ reliance on Littlejohn v. Shell Oil Co., supra, persuasive. That case involved what one commentator has called “indirect primary-line competition,” Case Comment, 57 Minn.L.Rev. 1035, 1040 n. 26 (1973). The court was concerned with the “underwriting” theory found in the general language in Moore, discussed above. Here, there is no allegation that the buyers who allegedly received lower, non-justified prices were related to General Dynamics in any way similar to the manner in which the gasoline stations were related to Shell Oil and American Oil in the Littlejohn case.

Once we so limit the referent of “purchases involved," the clear language of the statute requires us to affirm the judgment n. o. v. for defendant since on this appeal Mayer Paving has not contended that any of the sales to its competitors or itself were “in commerce.”

Mayer Paving also challenges the jurisdiction of the district court to enter judgment on the counterclaim. Mayer Paving in its original complaint named only General Dynamics Corporation as a defendant. In its answer, General Dynamics included a counterclaim on behalf of Material Service Corporation. After it filed a reply to the counterclaim, Mayer Paving moved for summary judgment or dismissal of the counterclaim on the ground that Material Service Corporation was not a party to the action. Following some procedural haggling, the district court in a memorandum opinion dated May 7, 1971, ordered Material Service Corporation joined as a party pursuant to Rule 19(a) (2)(i), Fed.R.Civ.P., and denied Mayer Paving’s motion for summary judgment on the basis that the counterclaim arose out of the transaction or occurrence that was the subject matter of the complaint and was compulsory pursuant to Rule 13(a), Fed.R.Civ.P., thus relieving Material Service from the necessity of establishing independent jurisdictional grounds.

General Dynamics referred to this problem as “a quibble as to terminology — a misnomer — which the previous attorneys for the plaintiffs and the attorneys for the defendant had not deemed of sufficient importance to correct by amendment of the complaint to add Material Service Corporation as a formal defendant.” We do not view it as such, although some of the alleged discrimination went back to a time when Material Service, as a separate corporation, was the sole seller to Mayer Paving. Without any assertion of its relation to the complaint save for a vague reference as “Material Service Division of -General Dynamics, now Material Service Corporation,” various counterclaims were asserted by an entity never named in the complaint and never otherwise made a party to the cause. Defendant in its brief argues that any defect was waived by plaintiffs’ failure to object or otherwise raise the issue in its reply to the counterclaim, analogizing it to the waiver of the defense of lack of jurisdiction over the person found in Rule 12(h)(1), Fed.R.Civ.P. But that analogy is inapposite. Lack of subject matter jurisdiction is not waivable and must be raised by the court on its own motion, Rule 12(h)(3), Fed.R.Civ.P.

We turn then to the ground upon which the district court relied, that Material Service Corporation should be joined as a party under Rule 19(a) (2) (i) since the disposition of the action “in its absence may as a practical matter impair its ability to protect [its] interest.” The general policy of Rule 19, as with the Federal Rules of Civil Procedure in general, is “the impulse . toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966) (footnote omitted).

Under the Rule, Material Service Corporation would seem to be an interested party. The disposition of the action may collaterally affect its rights since it is the successor to the alleged principal violator of the law, Material Service Division. Thus, Material Service Corporation is arguably suitable for joinder under Rule 19(a) (2) (i). The only question is does it meet the general requirement of Rule 19(a) that “joinder will not deprive the court of jurisdiction over the subject matter of the action.” Thus, joinder may be inappropriate if it destroys diversity of citizenship. Jurisdiction in the present case is founded upon 28 U.S.C. § 1337, which gives the district courts original jurisdiction to hear cases arising under Acts of Congress “regulating commerce or protecting trade and commerce against restraints and monopolies.” Normally, this jurisdictional basis would be lacking since the present Material Service Corporation did not come into existence until after the date at which Mayer Paving stopped making the purchases alleged in the complaint. If we construe the assumption of the assets and liabilities of the former Material Service Division of General Dynamics by Material Service Corporation as carrying over and giving Mayer Paving a right of action against the new corporation for the old division’s alleged violation of the antitrust laws, then we have a suitable jurisdictional basis for the joinder.

Once we can determine that Material Service Corporation was properly joined as a party defendant, it is clear that the counterclaim was properly within the jurisdiction of the district court. A compulsory counterclaim under Rule 13(a), Fed.R.Civ.P., “may be interposed without meeting jurisdictional requirements because it is auxiliary to the original action. . . . ” Chance v. Country Board of School Trustees of McHenry County, Ill., 332 F.2d 971, 973 (7th Cir. 1964). Since the counterclaim for the unpaid stone arises out of the transactions that are the subject matter of the complaint, the counterclaim is compulsory and there was no need for any independent jurisdictional basis. G & M Tire Co. v. Dunlop Tire & Rubber Corp., 36 F.R.D. 440, 441 (N.D.Miss. 1964).

However, we need not rest our decision solely on the foregoing analysis supporting joinder of Material Service Corporation as a defendant. Disregarding form for substance, the court could have treated the motion as a motion under Rule 14(a), Fed.R.Civ.P., to implead Material Service Corporation as a third-party defendant. Had counsel for defendant in terms chosen this possibly preferable course the entire matter would have been considerably simplified. On the facts of this case, especially after our review of the pleadings and briefs, it would seem that the third-party complaint was what was really involved since General Dynamics was in effect saying that its new subsidiary, Material Service Corporation, had assumed all of the liabilities of the old Material Service Division and was, therefore, liable over to it for any violations of the Robinson-Patman Act committed by Material Service Division.

The sixth sentence of Rule 14(a) then provides the basis for Material Service Corporation’s claim against Mayer Paving: “The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff.” The courts have split on the question of whether separate subject matter jurisdiction must be shown to sustain the third-party defendant’s claim against the plaintiff. See 6 Wright & Miller, Federal Practice and Procedure: Civil § 1458, at 311 n. 69 and § 1444, at 229-234, esp. nn. 90 & 91. Even the commentators are in disagreement. Wright and Miller favor ancillary jurisdiction in this type of claim, 6 Wright & Miller, supra, § 1444, at 234, and Moore indicates that it is inappropriate, 3 Moore, Federal Practice ¶ 14.27 [2] (2d ed.). We are persuaded that the better theory is to allow the claim to be brought under the ancillary jurisdiction power, especially since here the claim would have been a compulsory counterclaim subject to ancillary jurisdiction if the successor corporation had been originally named as a defendant. We agree with and adopt the reasoning of Circuit Judge Morgan in Revere Copper & Brass Inc. v. Aetna Casualty and Surety Co., 426 F.2d 709 (5th Cir. 1970), where this same question was analyzed and answered in favor of ancillary jurisdiction.

Thus, we affirm the district court’s jurisdiction of the counterclaim on the alternative grounds that Material Service Corporation was properly joined as a defendant or that it was properly made a third-party defendant.

For the reasons given hereinbefore, the judgment of the district court is affirmed.

Affirmed.

Mr. Justice CLARK

(dissenting):

This is the first dissent that I have filed in my several sittings with this Circuit, and it is, therefore, with regret that I find myself in disagreement here. However, the appellant, Mayer Paving and Asphalt Company, has been deprived of a $498,204.00 verdict and judgment by the granting of a motion non ob-stante veredicto, and, in my judgment, the sole ground for such precipitous action is entirely unsupportable. Indeed, if finally sustained, it will operate as a repealer of Section 2(a) of the Clayton Act as amended by the Robinson-Patman Act, 15 U.S.C. § 13(a) (1970), and will severely restrict the holding in Moore v. Mead’s Fine Bread Co., 348 U.S. 115, 75 S.Ct. 148, 99 L.Ed. 145 (1954).

1. I say the ground upon which the motion non obstante veredicto was granted is unsupportable because the learned trial judge misapplied the holding of this court in Borden Company v. FTC, 339 F.2d 953 (7th Cir. 1964). As I read it, Borden is not apposite. In it the Federal Trade Commission indulged itself in a non sequitur, i. e., that since Borden was in interstate commerce, it necessarily followed that all of its products were also in interstate commerce.

This Circuit, I submit, correctly held that Borden’s being in interstate commerce was not enough; “it must also be shown that the sale complained of was one occurring in interstate commerce.” 339 F.2d 953, 955. In Borden, there was a complete absence of interstate sales from any of its plants in Ohio and no connection whatever between its local sales in Ohio and its interstate sales. The reversal was based entirely on these facts. 339 F.2d 953, 955.

2. Here exactly the opposite is shown by the record. Mayer’s claim and proof were based on the shipments of crushed limestone by General Dynamics from Illinois at discriminatory prices during 1958-1968 to asphalt manufacturers and paving contractors in Illinois and Indiana. The sales were made from five quarries of General Dynamics — all located in Illinois — and one of which was only a few miles from the Indiana border. It was the closest source of crushed limestone for operators located in Indiana, especially East Chicago, Hammond, Gary and other nearby cities. A sales office for this quarry was located in LaPorte, Indiana, and a distribution yard at Gary. The record also shows that four Indiana paving contractors purchased over $4.5 million of crushed limestone and other products from General Dynamics which were shipped from its quarries in Illinois during the decade involved in the suit. As the trial judge found, there were “substantial sales of like goods” made by General Dynamics from Illinois quarries to Indiana customers; and the 1968 total sales of General Dynamics were some $29 million which were divided among customers in the two states.

Mayer’s purchases from General Dynamics during the decade involved ran $5.4 million alone. This large volume, it was claimed, resulted from a requirements contract required in a credit or loan agreement between General Dynamics and Mayer obligating the latter for a five-year period to purchase 80 percent of its total limestone, etc., requirements from General Dynamics. Although the contract provided for the payment of “current market prices’’ on all orders, the proof revealed that Mayer was charged from 10 cents to 47 cents more per ton than favored customers of General Dynamics. Among its favored customers were the four Indiana operators mentioned, one of whom (A. Metz Inc.) competed with Mayer. Metz paid from 20 cents to 23 cents per ton less than General Dynamics charged Mayer, while Walsh and Kelly’s (at Griffith, Indiana) price from General Dynamics ran as much as 30 cents less than Mayer’s. There were also several General Dynamics’ favored customers in competition with Mayer located in Illinois. For example, the Skokie Valley Asphalt Company (Des Plaines, Illinois) regularly paid between 32 cents to 47 cents less per ton during the damage period for crushed stone supplied by General Dynamics than Mayer was charged. Both the Indiana and Illinois price discrimi-nations were uncontradicted at the trial and were clearly deleterious to genuine business competition.

It appears to me that a plain reading of § 2(a) prohibits such discrimination. It provides that if “either or any of the purchases involved in such discrimination are in commerce” then all are prohibited. The majority interprets the all-inclusive phrase “either or any” to apply to sales to Mayer only insofar as the presence of commerce is concerned. Mead’s Fine Bread holds the opposite. Here the allegation and proof, uncontra-dicted, are that some local sales (from the same Illinois quarries) in Illinois as well as interstate ones to Indiana customers were at much lower prices than like sales to Mayer and other Illinois customers. I always thought that this was a practice that § 2(a) was specifically intended to prohibit. Here, while the quarry involved was only a few miles from Indiana, still Illinois customers were charged more for like material than were Indiana ones, without respect to delivery costs, etc. General Dynamics answers that Mayer was not a competitor in Indiana. Although this is not strictly true since it did compete somewhat unsuccessfully with A. Metz Inc., still Mayer was prevented from effectively competing across the border in Indiana because of the higher charges exacted from it. After preventing it from competing, General Dynamics now says that Mayer is deprived of the protections of § 2(a) because he did not compete. Such an interpretation transposes § 2(a) into a tool of discrimination rather than a protection. The result is that interstate competition is lessened and Mayer is destroyed.

3. Strangely enough, the majority relies on the old and honored doctrine of standing to deprive Mayer of its jury verdict and judgment. The majority says: “The customer has standing only to raise and compare those sales which are injurious to his competition.” Mayer does not compete in Indiana, it finds. Under the circumstances here this conclusion which the majority says is critical to its decision is a non sequitur. This record shows that General Dynamics sold all of the four Indiana operators involved in the discriminatory activity at such a lower rate per ton than it sold Mayer that the latter could not compete with them in Indiana. The record also shows that Mayer tried to compete in Indiana with A. Metz but failed. Indeed on one job there Mayer was obliged to sublet and buy the necessary material from a supplier other than General Dynamics. Finally, the record clearly shows that General Dynamics’ action prevented Mayer and other Illinois asphalt manufacturers and paving contractors from competing in Indiana by its discriminatory pricing to favored customers. To hold that Mayer had no standing to sue in such a factual situation is to repudiate the mandate of Congress in § 2(a) and creates a barrier that in the final analysis will operate as a repealer of this important section of the Act insofar as discrimination among customers of the same seller is concerned. The intent of the Congress in this regard is clearly stated by Congressman Utterback, manager of the bill in the House:

“Where, however, a manufacturer sells to customers both within the State and beyond the State, he may not favor either to the disadvantage of the other; he may not use the privilege of interstate commerce to the injury of his local trade, nor may he favor his local trade to the injury of his interstate trade . . . ” 80 Cong.Rec. 9417. (Emphasis supplied).

4. The majority also adopts the argument of General Dynamics that Moore v. Mead’s Fine Bread Co., supra, is inappo-site because it involved primary competition between Moore and Mead. I find nothing in § 2(a) that limits its coverage to primary competition cases. On the contrary, the Act’s purpose was to prevent all discriminatory pricing “where the effect of such discrimination may be substantially to lessen competition . . .” That interstate competition was substantially lessened in the particular geographical situation involved here is without peradventure; that the discriminatory pricing, in the words of § 2(a) “injured, destroyed or prevented” Mayer from competing with “customers” of General Dynamics located in Indiana was found to be true by the jury and was embodied in the judgment entered by the court and now set aside. Section 2(a) says nothing about “primary” or “secondary” lines of competition. Its intent, as stated by its manager, Congressman Utterback, was to condemn all discriminatory pricing “injuring” interstate commerce. To distinguish this case on technical differences between primary and secondary competition is but an arbitrary distinction entirely without a difference on these facts. Rather than excepting from § 2(a) the customers of the seller — as the majority does unless they are competing with one another — for the purposes of determining the presence of interstate commerce — § 2(a) specifically includes them and in the peculiar factual situation here requires, insofar as commerce is concerned, no proof of existing competition among the customers of the same seller. When it comes to the assessment of damages, competition might be crucial. While the factual situation was different in Mead’s Fine Bread, where the interstate operation afforded a treasury for destroying local competition, the thrust of Mead’s Fine Bread also covers this case. Indeed, in Mead it was admitted that the Act covered situations where “interstate commerce is in some other way used to destroy eompetition or is injured or impaired as a result of unlawful acts.” 348 U.S. 115, 119, 75 S.Ct. 148, 150. Here interstate commerce was used and unlawful acts were perpetrated in a continuous pattern for over ten years in sales made in interstate commerce that not only lessened competition but injured, destroyed or prevented Mayer from competing.

5. General Dynamics makes no further attack on the judgment other than the sufficiency of the proof of damages and its asserted good faith effort to meet competition. There is no evidence in the record supporting the latter claim that would grant General Dynamics forgiveness under the Act. The proof on damages appears, as the jury found, quite sufficient under the decided cases and should not be disturbed.

6. This case was submitted to a jury after three weeks of testimony. No point is made of any error in the instructions or the theory upon which the case was submitted, other than the jurisdictional point as to the existence of interstate commerce about which I have spoken. I find that it has no merit.

The Seventh Amendment provides that “no fact tried by a jury, shall otherwise be re-examined in any Court of the United States,” U.S.Const, amend. VII. As I see it the verdict of this jury should not have been “re-examined” and overturned nor the judgment set aside. It is late enough now to correct this mistake. The original judgment should be reinstated.

       While this cause was on appeal, Lee O. Mayer died and Continental Illinois National Bank & Trust Company of Chicago, as administrator of the estate of Lee O. Mayer, deceased, was substituted in her place.

      . 15 U.S.C. § 13 provides in pertinent parts: “(a) It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them. . . ."

      . The district court ruled that only the period within the four year statute of limitations, i. e., subsequent to August 29, 1965, would be considered, as Mayer Paving had failed to establish fraudulent concealment. Because of the conclusion we have reached on the scope of the Act, we do not find it necessary to consider this point.

      . This apparent concession by General Dynamics is obviously of an arguendo nature for it is footnoted in the brief as follows: “Actually, since the Indiana contractors picked up their stone at MS’s Thornton [sic] Quarry, it is hard to see how even those sales can be ‘in commerce.’ ” Noting that this factual assertion was not denied in Mayer’s reply brief, we agree that the sales to Indiana contractors, as to whom Mayer did not claim any status of competition or even potential competition, were not sales “in commerce.” The sales transactions completed at the quarries, all of which were in the state of Illinois, were clearly intrastate sales.

      . Mayer Paving has not argued in this court that its activities in Indiana, which might be characterized as de minimis, brings it iiito competition with Indiana contractors. At trial, counsel for defendants established on cross-examination that Mayer Paving’s Indiana contracts barely involved purchases from Material Service, with most of the work being sublet.
      Further, Mayer Paving does not. rely in this court on the fact that one of its competitors, Rock Road Construction Co., Des Plaines, Illinois, did work in Wisconsin, Illinois, Iowa, and Indiana, since it was established that Mayer Paving was not a competitor of Rock Road on any of its out-of-state work.

      . Subsequent to the time that the drafting of this opinion was completed and the opinion had been circulated, this court learned that the Fifth Circuit, en banc, had vacated the earlier panel opinion insofar as it indicated a lack of necessity for at least one discriminatory interstate sale. 483 F.2d 1140 (5 Cir. 1973). In the present opinion, we had found Littlejohn as originally written not dispositive. The superseding en banc opinion, of course, strengthens the result reached by the opinion in the present case before this court. Since we have reached the result we did irrespective of the original Littlejohn opinion, we have not deemed it necessary to revise the references in our opinion to the original opinion nor to refer further to the en banc opinion other than noting that it supports the result we have reached.

      . As will be indicated later in this opinion, attention must be directed to the exact factual situation creating the issue for determination. Thus, it was stated that it is “too well known to require extensive exposition —that the 1936 Robinson-Patman amendments to the Clayton Act were motivated principally by congressional concern over the impact upon a secondary-line competition of the burgeoning of mammoth purchasers, notably chain stores.” Federal Trade Commission v. Anheuser-Busch, Inc., 363 U.S. 536, 543-544, 80 S.Ct. 1267, 1271 (1960). The situation causing concern did show a pattern for the growth of monopoly where there was an impact directly upon competition and the injury was “commerce” related.

      . Because of the result we have reached on this issue we find it unnecessary to consider Mayer Paving’s arguments as to fraudulent concealment, statute of limitations, and re-coupment. Similarly, we need not consider General Dynamics’ cross-appeals as to the insufficiency of Mayer Paving’s proof at trial.

      . District Judge Bernard M. Decker, to whom the case was then assigned.

      . The record is not entirely clear on the matter of assumption of liabilities although the liabilities frequently are travelling companions of the assets, which here were assumed. Nevertheless, the matter was not disputed by Mayer Paving.

      . Throughout my dissent I have adopted the designation “General Dynamics” given by the majority to the appellees and cross-appellants. Originally the company was known as Material Service Corporation; General Dynamics Corporation obtained the assets of Material Service in 1959 and the latter was operated as a division of General Dynamics, known as Material Service Division. In 1969 the latter was re-incorporated as a wholly owned subsidiary.

      . The five quarries were Riverside, Federal, Stearns, Romeo and Thornton. The latter was regarded as the largest commercial quarry in the world and is located a few miles from the Indiana border at the intersection of the Tri-State.

      . The contract was dated April 15, 1957, and its original draft provided that Mayer would purchase all of its requirements from Material Service Corporation for the ensuing five years but the final draft was changed to 80 percent of Mayer’s requirements. The consideration was a loan or line of credit for $300,000 made by Material Service Corporation. The validity of such an arrangement is suspect. See my opinion in Twin City Sportservice, Inc. v. Charles O. Finley & Co., Inc., 365 F.Supp. 235, U.S.Dist.Ct., N. Dist.Cal. (1972).

      . The majority also emphasizes that the “pattern for the growth of monopoly” found to be present in Mead’s Fine Bread is nonexistent here. While this is true, we must remember that § 2(a) was also specifically aimed at discriminations which may “substantially . . . lessen competition or to injure, destroy or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them.”

      . With reference to the counterclaim of General Dynamics, I agree with the majority that it should be affirmed.


source: Caselaw Access Project

author: LAY, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. James G. BARNES, Appellant.
    No. 73-1227.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 12, 1973.
    Decided Nov. 2, 1973.
    Daniel P. Reardon, St. Louis, Mo., for appellant.
    Richard Coffin, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and ROSS, Circuit Judges.
   LAY, Circuit Judge.

James G. Barnes was convicted on two counts of violating 21 U.S.C. § 841(a)(1) for knowingly and intentionally distributing heroin; he likewise was convicted on two separate counts of violating 21 U.S.C. § 844(a) for knowingly and intentionally possessing heroin and marijuana. He was sentenced to ten years imprisonment and a three year special parole term on each of the distribution counts, said sentences to run concurrently, and a one year concurrent sentence on the possession counts.

On appeal defendant raises a single ground of error. He contends that the government was obligated to produce a paid government informant who allegedly participated with the defendant in the criminal conduct charged under Counts I and II.

The prosecution did not call the informant to the stand. The government’s case was submitted through the testimony of three detectives of the St. Louis police department. Their testimony reflected that on the morning of August 29, 1972, Charles Bullock, the informant, came to the Office for Drug Abuse Law Enforcement in St. Louis where he was “strip-searched” and, finding nothing, he was then given $120 in prerecorded government funds. Bullock was then followed and was observed getting into a truck driven by the accomplice, Bannister Robertson. Later, while the detectives still had the truck under surveillance, the defendant Barnes was observed approaching the truck, going into a house and receiving money from Robertson. Barnes was then observed giving Bullock a brown envelope. The detectives were located at distances of 60 to 150 feet away. Bullock was observed driving away and was followed until he was picked up by Detective Stolte, whereupon he gave the small brown envelope to the police officer. A subsequent search of his person revealed nothing more. The powder contained in the envelope was tested and shown to contain a net weight of .8 grams of heroin.

On September 8, 1972, a similar transaction took place. This time Barnes was observed giving Bullock three tinfoil packets, the contents of which later proved to be 1.1 grams net weight of heroin. The informant was not involved in the possession counts which took place on November 27, 1972, when the defendant was arrested at his home.

On December 29, 1972, the defendant moved under Rule 16 of the Federal Rules of Criminal Procedure for discovery and inspection of all incriminating and exculpatory evidence and the names of witnesses within the government’s control. At the same time the defendant moved for production of witnesses for interview prior to trial, alleging inter alia: “The present whereabouts of said witnesses are unknown to defendant, and defendant believes that the Government knows or by reasonable inquiry could determine their places of confinement and could, without difficulty, make them available for interview by the defendant.” (Our emphasis.) These motions were denied by the trial judge on February 8, 1973. Trial commenced on February 12, 1973.

The general rule concerning discovery of witnesses applicable in this circuit was set forth in United States v. Cole, 449 F.2d 194, 198 (8th Cir. 1971), cert, denied, 405 U.S. 931, 92 S.Ct. 987, 30 L. Ed.2d 806 (1972), wherein we said:

“In a noncapital ease an accused has no constitutional right to require the production of the names and addresses of possible witnesses. Drews v. Minnesota, 407 F.2d 1307 (8 Cir. 1969); Barnes v. United States, 347 F.2d 925, 929 (8 Cir. 1965). Although it has been recognized that in a proper case, disclosure of prosecution’s witnesses may be ordered, this circuit has uniformly held that such matters are within the discretion of the trial court. United States v. Harflinger, 436 F.2d 928, 936 (8 Cir. 1970); Barnes v. United States, supra, 347 F.2d at 929. And, as here, where alleged threats and intimidation of prospective witnesses has been disclosed, it is not an abuse of that discretion to limit discovery. United States v. Briddle, 443 F.2d 443 (8 Cir. 1971).”

However, since Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), it is clear that the general rule of nondisclosure of witnesses is not always applicable to the informant. As the Supreme Court stated in Roviaro:

“The scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged. Likewise, once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.
“A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.” (Our emphasis.) Id. at 60-61, 77 S.Ct. at 627-628.

However, even where an informant is involved, the government’s disclosure of his name and whereabouts must necessarily turn on the facts and circumstances involved. Again, as the Supreme Court has recognized:

“We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” Id. at 62, 77 S.Ct. at 628.

Certainly one of the most relevant factors to be weighed by the court is whether or not the evidence is material to the accused’s defense or a fair determination of the cause.

We think it clear from the cases decided since Roviaro that where the witness is an active participant or witness to the offense charged, disclosure will almost always be material to the accused’s defense. Cf. Roviaro v. United States, 353 U.S. 53, 65 n. 15, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

In Gilmore v. United States, 256 F.2d 565 (5th Cir. 1958), the informant was a witness to the transaction. The court also found that the informant had “set the stage” for the transaction in that he had acted as an intermediary between the defendant and the federal narcotics agent who purchased the drugs. The court held that this situation met the Roviaro test:

“As Anonymous was a principal actor before and during this performance, who he was and what he knew was certainly material and relevant. In this testimony there might have been the seeds of innocence, of substantial doubt, or overwhelming corroboration. As the inferences from it covered the full spectrum from innocence to guilt, the process of truth-finding, which should be the aim of every trial, compelled its disclosure.” Gilmore, supra at 567.

In United States v. Roberts, 388 F.2d 646 (2d Cir. 1968), the informant was a witness to the alleged sale of narcotics. The court held that the government should have been required to disclose the informant’s whereabouts, so that the defendant could interview the informant as a potential witness. See also United States v. Barnett, 418 F.2d 309 (6th Cir. 1969).

However, in many instances where the government failed to disclose the witness prior to trial, subsequent events may well correct any possible prejudice. Thus, where the witness is not disclosed but is produced at trial and the defendant is given ample opportunity for cross-examination no prejudice results. See Smith v. United States, 273 F.2d 462 (10th Cir. 1959), cert, denied, 363 U.S. 846, 80 S.Ct. 1619, 4 L.Ed.2d 1729 (1960). In some instances no prejudice results if the informant’s identity was either known by the defendant or else disclosed through the testimony of other witnesses. See, e. g., Churder v. United States, 387 F.2d 825 (8th Cir. 1968); Smith v. United States, 273 F.2d 462 (10th Cir. 1959), cert, denied, 363 U.S. 846, 80 S.Ct. 1619, 4 L.Ed.2d 1729 (1960); Sorrentino v. United States, 163 F.2d 627 (9th Cir. 1947). Cf. United States v. Emory, 468 F.2d 1017 (8th Cir. 1972); Alverez v. United States, 282 F.2d 435 (9th Cir. 1960).

In some cases, where disclosure might have otherwise been appropriate, the courts have held that the accused waived his right to disclosure. For example, in United States v. Cansler, 419 F.2d 952 (7th Cir. 1969), cert, denied, 397 U.S. 1029, 90 S.Ct. 1278, 25 L.Ed.2d 540 (1970) , one of the factors relied upon by the court to refuse disclosure was that defendant had never demanded production of the informant prior to trial. See also United States v. Smart, 448 F.2d 931 (2d Cir. 1971), cert, denied, 405 U.S. 998, 92 S.Ct 1269, 31 L.Ed.2d 467 (1972); United States v. Roberts, 401 F.2d 538 (2d Cir.), cert, denied, 393 U. S. 1005, 89 S.Ct. 496, 21 L.Ed.2d 469 (1968); Firo v. United States, 340 F.2d 597 (5th Cir. 1965); United States v. Coke, 339 F.2d 183 (2d Cir. 1964).

The government contends that it is not obligated to produce the informant for interview prior to trial. It argues that the Sixth Amendment right of confrontation does not involve pretrial disclosure, citing United States ex rel. Meadows v. New York, 426 F.2d 1176 (2d Cir. 1970), cert, denied, 401 U.S. 941, 91 S.Ct. 944, 28 L.Ed.2d 222 (1971) . Although we agree with the latter contention, under the facts presented here, where the informant is shown to be a material witness and the government does not plan to use the informant as a witness it owes a duty to make every reasonable effort to have the informant made available to the defendant to interview or use as a witness, if desired. See United States v. Kitchen, 480 F.2d 1222 (8th Cir. 1973); United States v. Pollard, 479 F.2d 310 (8th Cir. 1973); United States v. Hayes, 477 F.2d 868 (10th Cir. 1973). As stated in Ve-larde-Villarreal v. United States, 354 F. 2d 9, 13 (9th Cir. 1965):

“We think we have here a special case in which the Government should be required to demonstrate its inability through reasonable efforts to produce Margarito. It appears that Margarito is frequently used by the Government, for one customs agent indicated that Margarito has occasion from time to time to contact the agent. If Margarito is available for hire, he should be available to come and testify. One wonders whether the agent might have made such an arrangement during one of those ‘contacts’. We think whether there was a failure to expend every reasonable effort to obtain the witness is a question of fact for the trial judge.
“The practice of the Government in employing agent-informers in narcotics eases is well known. We also know that such agents are usually not trained officers — often they are themselves addicts or former addicts. The Government must know that an eager informer is exposed to temptations to produce as many accuseds as possible at the risk of trapping not merely an unwary criminal but sometimes an unwary innocent as well. One could hardly expect such informants always to stay on the proper side of the line which separates those two cases. And since the Government chooses to utilize such agents, with the attendant risk of entrapment, it is fair to require the Government which uses this inherently dangerous procedure to take appropriate precautions to insure that no innocent man should be punished.” (Our emphasis.)

Turning to the facts here, we feel the government owed a duty to disclose Bullock’s name and address prior to trial. Under the present facts, since the government failed to make the proper disclosure, the government was obligated to have at least made a reasonable effort to locate him prior to trial for interview by the defendant and use as a possible witness. We think a new trial, however, does not automatically follow. Possible prejudice is not enough. Rather than reverse the conviction, at the present time we remand for an evidentiary hearing, with defendant and counsel present, for examination of the informant; Bullock. Cf. United States v. Hurse, 453 F.2d 128 (8th Cir. 1971). The government has the burden to demonstrate that it has not deliberately concealed any exculpatory information possessed by him. This is a factual determination to be made by the trial court. The district court should likewise make a factual determination as to whether prejudice arose from the failure of the government to make him available to the defendant. The sole question is whether defendant was denied a fair trial. In the event the informant possesses evidence which in any way impeaches the credibility of the government’s case or would have been helpful as a defense to the charge, the trial court should view the same, in light of the testimony existing, to determine if any prejudice arose. Upon such hearing and finding the cause shall be certified with the complete record to this court.

Judgment of conviction on the possession charges, Counts III and IV, is affirmed; our ruling on Counts I and II will be held in abeyance pending an evi-dentiary hearing and findings by the district court to be certified to this court.

      . Robertson was originally named a co-defendant with Barnes. On December 11, 1972, he pled guilty to the two counts of distribution of heroin. At the time of trial he was in the custody of the United States pending sentencing. He allegedly testified against the defendant before the grand jury. He was not called as a witness by either the government or the defendant. Although the defendant urges be did not know Robertson’s exact whereabouts, knowledge of his custody was generally known and the defendant made no request for a writ of habeas corpus ad testificandum for his production at trial. Cf. Johnson v. United States, 291 F.2d 150 (8th Cir.), cert, denied, 368 U.S. 880, 82 S. Ct. 130, 7 L.Ed.2d 80 (1961).

      . These factors are discussed more fully in 8 Wigmore, Evidence § 2374(f) (McNaughton rev. 1961). See also United States v. Turchick, 451 F.2d 333 (8th Cir. 1971).

      . In cases involving the “tipster” type of informant, who merely conveys information to the government but neither witnesses nor participates in the offense, courts generally hold that disclosure is not material and therefore not required. See, e. g., United States v. Willis, 473 F.2d 450 (6th Cir. 1973) ; United States v. Alvarez, 472 F.2d 111 (9th Cir. 1973) ; United States v. Picard, 464 F.2d 215 (1st Cir. 1972) ; United States ex rel. Abbott v. Twomey, 460 F.2d 400 (7th Cir. 1972) ; United States v. Kelly, 449 F.2d 329 (9th Cir. 1971) ; United States v. Anthony, 444 F.2d 484 (9th Cir. 1971), cert, denied, 406 U.S. 959, 92 S.Ct. 2069, 32 L.Ed.2d 346 (1972) ; Churder v. United States, 387 F.2d 825 (8th Cir. 1968) ; Williams v. United States, 273 F.2d 781 (9th Cir. 1959), cert, denied, 362 U.S. 951, 80 S. Ct. 862, 4 L.Ed.2d 868 (1960) ; Miller v. United States, 273 F.2d 279 (5th Cir. 1959), cert, denied, 362 U.S. 928, 80 S.Ct. 756, 4 L.Ed.2d 747 (1960) ; Anderson v. United States, 106 U.S.App.D.C. 340, 273 F.2d 75, cert, denied, 361 U.S. 844, 80 S.Ct. 95, 4 L. Ed.2d 81 (1959) ; Pegram v. United States, 267 F.2d 781 (6th Cir. 1959) ; United States v. One 1957 Ford Ranchero Pickup Truck, 265 F.2d 21 (10th Cir. 1959).

      . The Second Circuit remanded the case for a hearing on the factual question of whether defendant’s counsel had made a sufficient request for the informant’s whereabouts.

      . The government is, of course, not required to use the informant as a witness. For this reason, United States v. Williams, 481 F.2d 735 (8th Cir. 1973) ; United States v. Martin, 482 F.2d 202 (8th Cir. 1973), and United States v. Mosby, 422 F.2d 72 (8th Cir.), cert, denied, 399 Ü.S. 914, 90 S.Ct. 2217, 26 L.Bd.2d 571 (1970), are all distinguishable. In each of those cases, the defendant contended that the government should have been required to put the informant on the stand. As was said in Mosby:

      “Absent unusual circumstances such as knowingly concealing evidence favorable to a defendant, the Government has a wide discretion with respect to the witnesses to be called to prove its case. The government is not ordinarily compelled to call all witnesses competent to testify including special agents or informers.” Mosby, supra at 74.

      . As Judge Waterman observed in dissent in United States v. Cimino, 321 F.2d 509, 514 (2d Cir. 1963) :
      “Seldom can government informers be expected to be pillars of stability in their communities. If the common understanding is to be credited they are often narcotic addicts or petty criminals whose cooperation with law enforcement officials is not entirely voluntary. Under these circumstances, to give defendants the name (perhaps, as here, one of several aliases) of the Government’s informer, without revealing the further information about the informer which the Government may be expected to possess, and without aiding defense counsel to find the potential witness, would only further expose the sharp disadvantages which a defendant often faces in preparing his defense to a criminal prosecution.”


author: SIMPSON, Circuit Judge:

text:
    Mrs. Gertwyl Amakyi GAMBLE, etc., Plaintiff-Appellant, v. CENTRAL OF GEORGIA RAILWAY COMPANY, Defendant-Third Party Plaintiff-Appellee, v. McGREGOR PRINTING CORPORATION, Third Party Defendant-Appellee.
    No. 73-2171
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 23, 1973.
    Timothy M. Conway, Jr., Al G. Rives, Birmingham, Ala., Fred D. Gray, Tuskegee, Ala., for plaintiff-appellant.

      Roy L. Smith, Phenix City, Ala., for Central of Ga. Ry. Co.
    Russell, Raymond & Russell, Tuskegee, Ala., for Central of Ga. Ry. Co.
    W. F. Horsley, Opelika, Ala., for Mc-Gregor Prtg. Corp.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   SIMPSON, Circuit Judge:

We review an interlocutory order entered below denying plaintiff-appellant’s motion for remand of her FELA (Federal Employer’s Liability Act,. 45 U.S.C. Sec. 51 et seq.) action to the state court from which it was removed. A panel of this court granted leave for the plaintiff to appeal the district court’s interlocutory order under the provisions of Title 28 U.S.C. Sec. 1292(b). We determine that the motion for remand should have been granted and reverse.

Proceedings Below

Plaintiff filed suit in Circuit Court of Macon County, Alabama, her place of residence, under the provisions of the FELA. She sought damages for the death of her husband, a deceased employee of the defendant Central of Georgia Railway Company (Railway). Her complaint alleged that her husband’s death had resulted from injuries sustained when he was caught between one of the Railway’s boxcars and a loading platform in Bullock County, Alabama, built and maintained by McGregor Printing Company (McGregor), a Delaware corporation, on the property of Railway, a Georgia corporation.

On the basis of the indemnification provision of a “close clearance” agreement as to the loading platform entered into between the Railway and McGregor, Railway impleaded McGregor as a third party defendant for all or a part of the sums for which the railway might eventually be held liable under the FELA suit. McGregor thereupon filed a removal petition in the federal district court, alleging diversity of citizenship and a controversy over sums in excess of $10,000.

The plaintiff moved for remand to the Circuit Court of Macon County, Alabama, on the ground that FELA cases are specifically non-removable under Title 28 U.S.C. Sec. 1445(a). The district court denied this motion, and subsequently also denied the plaintiff’s motion in the alternative for a rehearing on the original motion or for a severance of the third-party suit and remand of the original action.

The sole question below and here is a jurisdictional one. The question is quite simply whether the provisions of the general removal statute, Title 28 U.S.C. Sec. 1441(c), permit removal of FELA actions otherwise non-removable under the provisions of Title 28 U.S.C. Sec. 1445(a). The general statute, Sec. 1441(e) permits removal of an otherwise non-removable action when joined with a removable separate and independent claim or cause of action. Sec. 1445(a) expressly prohibits removal from state to federal courts of FELA cases in which the plaintiff has chosen to proceed in the state forum.

In formulating its answer to the question of precedence between the two statutory provisions, the district court began by recognizing that the purpose underlying Sec. 1441(e) was the conservation of valuable judicial time in cases where joinder was properly made of two or more separate actions. From there, the court turned to a consideration of the question whether the statutory criteria for joinder and removal had been met in the instant case. Only after concluding that they had, did the court finally confront the plaintiff’s motion for a remand. The court acknowledged that Congress undoubtedly intended in enacting Sec. 1445(a) that FELA actions be non-removable, but opined that when balanced against considerations of judicial economy, non-removability might properly yield to allow joinder and removal “in individual cases in isolated incidents” without doing wholesale violence to the mandate of See. 1445(a). On this basis the court reached its conclusion that Sec. 1441(c) took precedence over Sec. 1445(a) in this case and refused to remand the entire lawsuit or to order a limited remand of the original FELA action.

We have no quarrel with the district court’s respect for the diseconomy attendant upon separate trials in different courts for causes of action arising out of the same circumstances. Nevertheless concern for conserving judicial time may not be permitted to override the manifest intent of Congress. The district court adopted an ad hoc approach for determining whether the removal or the non-removal statute takes precedence in a given FELA suit. We think that a different and uniformly applicable rule has been adopted by Congress, which compels an opposite outcome to that reached by the district court. The rule articulated by the district court is completely at variance with the purpose of Congress as we will attempt to demonstrate.

The limitation upon the removability of FELA suits in 28 U.S.C. Sec. 1445(a), note 5, supra, was added by Congress by the 1910 amendments to the FELA, later being incorporated into the Judicial Code. The 1910 amendment was precipitated by developments subsequent to the enactment of the FELA in 1908. As originally, enacted, the FELA left unclear the question of jurisdiction to hear suits arising under the Act. This caused the courts of several states, notably Connecticut, to refuse to assume jurisdiction of FELA suits on the grounds that federal courts had exclusive jurisdiction under the Act. In the instances where the state courts did not refuse jurisdiction, the plaintiff often found his case removed to federal court by the defendant railroad company on diversity grounds. The Congress, therefore, undertook to remedy what it perceived to be jurisdictional defects in the Act.

The discussion of proposed amendments to the FELA was conducted in an atmosphere of concern over the erosion of the power of the states and the concomitant expansion of the power of the federal government. Not surprisingly, in this setting, the amendments initially proposed to the FELA envisioned stripping the federal courts of jurisdiction to try cases arising under the Act altogether. One proposal would have eliminated the possibility of removal from state courts by declaring the railroad to be a citizen of every state in which it operated. This proposal was viewed by some Senators as inadequate on the stated ground that removal under federal question grounds would remain as a possibility by which state court jurisdiction might be defeated. An alternative amendment would have conferred exclusive jurisdiction upon the state courts in express statutory terms. This proposal failed to satisfy other Senators who favored concurrent state-federal jurisdiction over FELA cases.

Out of this disagreement over amendments emerged a compromise proposal, the second amendment offered by Senator Paynter of Kentucky, which provided both for concurrent jurisdiction in the state and federal courts, and for the plaintiff to have the right to choose the forum in which he wished to proceed. The crucial provision made it impossible for FELA suits instituted in state courts ever to be removed to federal courts on any grounds. The Paynter amendment read as follows: “And no case arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States.” In offering this amendment, Senator Paynter made the following statement:

“I suggested yesterday an amendment giving exclusive jurisdiction to the state courts. I would very much prefer seeing the bill confer exclusive jurisdiction upon state courts. * * * But in deference to the opinion of others who desire the same purpose to be accomplished that I have in view, I offer an amendment which will give to the plaintiff the right to select the forum in which his case shall be tried.”

The spirit in which the Paynter proposal was received by other members of the Senate is indicated by the following remarks of Senators Bailey of Texas, Bor-ah of Idaho, and Hale of Maine:

MR. BAILEY: That [the Paynter proposal] is entirely agreeable to me, because it takes these cases out of the operation of the removal act. * * *
MR. BORAH: [T]he amendment of the Senator from Kentucky enables the plaintiff to go into the federal court if he desires to do so, but the case can not be removed. It takes these cases from under the removal act. * * *
MR. HALE: In other words, the federal law and federal authority can not lay its strong hand upon all forms of litigation on such a subject matter as this until the state courts have had trial, verdict and judgment. * * *

The bill was duly amended as proposed by Senator Paynter, passed by the Senate and sent to the House of Representatives for consideration of the Senate amendments. There was relatively little discussion of the amendments in the House, but the following comments by Representative Garrett of Tennessee are significant in the present context: “I want to get clearly the amendment about removal in mind. Now it is clear that no case brought in a state court shall be removed to a federal court. * * *

We think the doubts expressed by the district judge as to the existence of possible conflicts between the removal provisions of 28 U.S.C. Sec. 1441(c) and the non-removal provisions of 28 U.S.C. Sec. 1445(a) are dispelled completely by this legislative background. Congress patently intended that FELA suits be not removed once instituted in state courts. The intended result was to take FELA suits “out of the operation of the removal act” by the Paynter amendment, the forerunner of current Sec. 1445(a). The district court’s conclusion that nonremovability may be disregarded in “individual cases in isolated incidents” was erroneous. It is mandated by the Constitution, Article III, Sec. 2, that Congress has the sole power to fix the jurisdiction of the federal courts and it follows that when Congress has deprived the federal courts of jurisdiction in certain cases, the courts cannot ad hoc reinvest themselves with that jurisdiction, either in “individual cases” or otherwise. See the statement of the Court in Ex Parte McCardle, 1869, 74 U.S, (7 Wall.) 506, 514, 19 L.Ed. 264, 265:

“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is the power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” * * *

Congress has unequivocably declared that in FELA suits filed in state courts, the federal courts are without jurisdiction to proceed in the matter until the cause has run its course at the state level. The Supreme Court has noted this fact in Miles v. Illinois Central R. Co., 1942, 315 U.S. 698, 703, 62 S.Ct. 827, 830, 86 L.Ed. 1129, 1133. These principles govern this case. The court below was without jurisdiction to hear Mrs. Gamble’s case, and should have granted the motion for remand of the entire action or alternatively should have severed the FELA suit and remanded it.

Reversed.

      . The district court’s opinion is published, Gamble v. Central of Georgia Ry. Co., M.D. Ala.1973, 356 F.Supp. 324.

      . Under the State Third-Party Act, Code of Alabama, Title 7, Sec. 259(2).

      . Title 28, U.S.C. Secs. 1332(a)(1) and 1441(a).

      . Title 28 U.S.C. Sec. 1441(c) provides:
      “Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise nonremovable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.”

      . The text of Sec. 1445(a) is as follows :
      “A civil action in any State court against a railroad or its receivers or trustees, arising under sections 51 to 60 of Title 45, may not be removed to any district court of the United States.”

      . The non-removal provision originated from amendments made in the Senate to HR 17263, 61st Cong. 2d Sess. After ratification of the Senate amendments by the House of Representatives, the bill became the Act of April 5, 1910, c. 143, Sec. 1, 36 Stat. 291, and was codified as 45 U.S.C. Sec. 56. The non-removal provision was thereafter incorporated in the Judicial Code of 1911, Act of Mar. 3, 1911, c. 231, Sec. 28, 36 Stat. 1094. The Act of June 25, 1948, e. 646, See. 18, 62 Stat. 989, recodified the Judicial Code and the non-removal provision became 28 U.S.C. Sec. 1445(a). At the same time, the non-removal provisions were deleted from 45 U.S.C. Sec. 56.

      . The Act of April 22, 1908, c. 149 Sec. 1, 35 Stat. 65, was silent as to the forum for the trial of FELA suits.

      . See S.Rep. 432 by the Senate Judiciary Committee, Mr. Borah, chairman, on H.R. 17263 61st Cong. 2d Sess., Mar. 22, 1910, pp. 5-12 for a discussion of the Connecticut case, Hoxie v. New York, New Haven and Hartford R. R. Co., 1909, 82 Conn. 352, 73 A, 754, and the confusion caused by it.

      . See the comments of Senator Dixon of Montana at 45 Cong.Record 4092, col. 1.

      . Id. at 3995-98.

      . Id. at 3995, col. 1.

      . See the comment of Senator Bailey of Texas, Id. at 3996, column 2.

      . Id. at 3998, col. 1 (the amendment offered by Senator Paynter of Kentucky.)

      . This is apparent from the comments of Senator Paynter. Id. at 4051, col. 1.

      . Id.

      . Id. at 4051.

      . Id.

      . Id. at 4092.

      . Id. at 4093.

      . Id. at 4158.


author: VAN OOSTERHOUT, Senior Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Thomas Daniel STONE, Appellant.
    No. 73-1390.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 12, 1973.
    Decided Nov. 5, 1973.

      Joseph L. Mannikko, Minneapolis, Minn., for appellant.
    John M. Lee, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and ROSS, Circuit Judges.
   VAN OOSTERHOUT, Senior Circuit Judge.

This is a timely appeal by defendant Thomas Daniel Stone from his conviction upon an indictment charging him with failure to submit to induction in violation of Title 50, Appendix, U.S.C. § 462.

Defendant waived his right to a jury trial and was tried by the court and found guilty as charged, D.C., 357 F. Supp. 491 and thereafter, after the court considered the probation officer’s report, was sentenced to one year’s imprisonment with the provision that after serving twenty days the balance of the sentence be suspended and defendant be placed on probation for the remainder of the year, provided he do alternate type of employment approved by the probation officer.

The material facts are not in dispute. Defendant registered with his draft board on November 24, 1967. He applied for and received a student’s deferment which continued until he received his college degree on July 16, 1971.

On June 10, 1971, he personally appeared before the board and requested and obtained form 150, the conscientious objector claim form. On June 17 he wrote the local Board requesting that the 30 day period for completing the form be extended, assigning as a reason : “I find this task a difficult one, in that in order to do a honest and capable job of filling this out, I believe more days are necessary, to work on it.” The board extended the time for filing form 150 to approximately the last week in July 1971.

On July 26, 1971, defendant was ordered to report for a physical examination; a statement of acceptability was sent to the local board on August 20, 1971. On August 25, 1971, the local board classified defendant 1-A and mailed him form 110 which advised him of his classification and his right to request a personal appearance before the local board or to effect an appeal. The defendant pursued neither avenue. On October 6, 1971, he was mailed an order to report for induction on November 8, 1971. On October 21, 1971, the defendant submitted a completed form 150 to his local board, together with supporting documents and materials. The board took no action on the C. O. claim. On November 8, 1971, the defendant appeared at the induction center as ordered, but refused to submit to induction.

Defendant appeared as a witness at the trial but offered no explanation for the belated filing of the claim, some three months after the extended time granted for filing and several weeks after receiving notice of induction.

As grounds for reversal, defendant urges:

I. Defendant’s oral request for form 150 and his written request for an extension of time in which to submit the form constitute sufficient claim for C. O. status to require the local board to determine the merits of the claim.

II. Where defendant’s conscientious objections became fixed prior to the mailing of notice of induction, doubt exists as to whether defendant will receive a full and fair in-service hearing on his conscientious objector’s claim and this defendant may never receive a determination on the merits of his claim.

We affirm the conviction for the reasons hereinafter stated.

Defendant first contends that his oral request for a form 150 followed by his written request for an extension of time in which to complete and file the form constituted a sufficient prima facie claim for conscientious objector status so as to require the local board to determine the merits of his claim.

The Supreme Court in Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971) clearly states that a draft board need not consider a claim of conscientious objection filed or asserted after a registrant has received an induction notice. The Eighth Circuit has interpreted this ruling to mean that a local board does not even have the authority to do so, absent an objective change in circumstances over which the registrant had no control. United States v. Whalen, 451 F.2d 755, 757 (8th Cir. 1971). See 32 C.F.R. § 1625.2. Thus, in the instant case, the board was required, or even authorized, to consider only claims presented by appellant before his notice, to report for induction, sent on October 8, 1971; claims presented after that date could not be considered by the board. See United States v. Salem, 479 F.2d 340, 341 (9th Cir. 1973); United States v. Larson, 455 F. 2d 187, 188 (8th Cir. 1972).

It is well established that when a local board is presented with evidence sufficient to establish a prima facie claim for conscientious objector status, it must reopen a classification and determine whether the registrant is entitled to the requested claim. However, that evidence must consist of nonfrivolous allegations of fact. Mulloy v. United States, 398 U.S. 410, 416, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970); United States v. Larson, 455 F.2d 187, 188 (8th Cir. 1972); Davis v. United States, 410 F.2d 89, 93 (8th Cir. 1969). See C.F.R. § 1625.2. “[A registrant] is required to submit written evidence of objective facts in support of his claim of exemption.” Vaughn v. United States, 404 F. 2d 586, 590 (8th Cir. 1968). In the instant case, before notice of induction defendant had only orally requested a form 150 and had submitted a written request for an extension of time “in order do a honest and capable job of filling [it] out.” Surely this does not constitute evidence of “objective facts” to support his claim for conscientious objector status. See id.; United States v. Lawton, 455 F.2d 328, 329 (9th Cir.), cert, denied, 406 U.S. 960, 92 S.Ct. 2071, 32 L. Ed.2d 347 (1972); United States v. McKinley, 447 F.2d 962, 963-64 (9th Cir. 1971). A “naked claim of conscientious objection [does] not entitle [a registrant] to a reopening and reconsideration of his classification.” United States v. Larson, 455 F.2d 187, 188 (8th Cir. 1972). See United States v. Stow, 474 F.2d 1132, 1135 (9th Cir. 1973); Vaughn v. United States, 404 F.2d 586, 590 (8th Cir. 1968).

Defendant claims that the local board should have been required to reopen his classification on the ground that his actions in June 1971 were sufficient to alert the local board that he was claiming conscientious objector status. However, the cases upon which he relies were based on pre-Mulloy holdings or on Local Board Memorandum No. 41, as amended July 30, 1968. The latter was rescinded on August 27, 1970, and thus cannot be relied upon for the standard required of claimants for conscientious objector status. Post-1970 cases, including Mulloy, clearly require written presentation of objective facts sufficient to support a conscientious objector claim before a local board is required to reopen a classification and determine a claim on the merits. This must be done before receipt of an induction order. Ehlert v. United States, supra. Defendant’s actions in the instant case before receiving his notice of induction were not sufficient to establish a prima facie claim of conscientious objection.'

Defendant’s second contention is that even if he failed to file a sufficient prima facie claim for conscientious objector status until subsequent to his notice of induction, he has the right to have his claim determined on the merits. He argues that significant doubt exists as to whether he would be able to receive a full and fair in-service hearing, and that his conviction must therefore be reversed, for had he submitted to induction, his claim may never have been determined on the merits, neither in the selective service system nor in the armed forces.

Ehlert v. United States, supra, held that a draft board need not consider a conscientious objector claim filed or asserted after a registrant has received an induction notice, upholding a selective service regulation to that effect. See 32 C.F.R. § 1625.2. The opinion indicated that it was based on the regulation and on the assurance from the General Counsel of the Department of the Army that individuals whose conscientious objector views crystallized after notice but before induction would be given an in-service hearing on the merits of their claim. 402 U.S. at 107, 91 S.Ct. 1319. If such a hearing were not available, the regulation would not have been upheld. “That those whose views are late in crystallizing can be required to wait, however, does not mean they can be deprived of a full and fair opportunity to present the merits of their conscientious objector claims for consideration * * *. For if, contrary to that assurance, a situation should arise in which neither the local board nor the military had made available a full opportunity to present a prima facie conscientious objection claim for determination under established criteria, see Welsh v. United States, supra [398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970)], a wholly different ease would be presented.” Id. at 103, 107, 91 S.Ct. at 1323, 1325.

Some circuits have interpreted that language to mean that every conscientious objector applicant must have a meaningful opportunity for at least one full and fair administrative determination of his conscientious objector claim. See United States v. Alioto, 469 F.2d 722 (1st Cir. 1972); United States v. Ziskowski, 465 F.2d 480 (3d Cir. 1972); United States v. Shomock, 462 F.2d 338 (3d Cir. 1972); United States v. Mus-ser, 478 F.2d 1068, 1069 (9th Cir. 1973) (dissenting opinion of J. Hufstedler); see also United States v. Takala, No. 47047, 5 SSLR 3773 (E.D.Mich. Sept. 11, 1972). Compare United States v. Waldron, 474 F.2d 90 (7th Cir. 1973). In the instant case, defendant argues the evidence is such that he would have been denied such a hearing if he had submitted to induction. The Selective Service refused to consider the merits of his claim under the Ehlert doctrine. Unlike the situation in Ehlert, however, there is also evidence the Army would have refused to hear his claim. The registrant in Ehlert was a “late crystal-lizer,” one whose conscientious objection beliefs were first apparent after notice but before induction. The language quoted from Ehlert above refers specifically to this status. Defendant, on the other hand, is a “late claimant,” one whose conscientious objection views crystallized before his notice of induction, but who failed to claim conscientious objection status until after he had received his notice. Defendant makes no claim that he is a “late crystallizer.” One in appellant’s situation may not receive a hearing on his claim in the Army, based on its interpretation of AR 635-20, the applicable regulation. Eh-lert abrogated the procedural “no man’s land” for late crystallizers; defendant claims it still exists for late claimants. The key case is Grubb v. Birdsong, 452 F.2d 516 (6th Cir. 1971). In that case the Sixth Circuit held that AR 635-20 expressly affords a remedy only to those individuals whose conscientious objection became fixed after notice of induction. “It is thus undisputed that the Army can properly refuse to hear applications under AR 635-20 when it finds that the applicant’s conscientious objection existed prior to his receipt of an induction notice.” Id. at 519. Under such a holding, defendant claims it is at least doubtful that he would receive an opportunity to present his claim in the service, even though “the fact remains, however, that somewhere, sometime, [a registrant] is entitled to have a full and fair hearing on the merits of his conscientious objector claim.” United States v. Shomock, 462 F.2d 338, 344 (3d Cir. 1972), citing Ehlert, 402 U.S. at 103-04, 91 S.Ct. 1319. Thus, he argues, his conviction must be reversed.

However, defendant misses one central point. Even if we were to accept the interpretations of Ehlert by the First and Third Circuits that every conscientious objector claimant must have the opportunity to have their claim determined on the merits, defendant has already been given such an opportunity. Stone requested and was given form 150, in order that he might properly claim conscientious objector status; he later was given an extension of time in which to complete and return the form. He did not return the form until over four months after he had received it, and three months after the extended deadline. Had he returned the completed form and supporting materials within the deadline, presenting a prima facie claim as he eventually did on October 21, 1971, he undoubtedly would have received a full and fair determination of the merits of his claim by the local board. Neither did the defendant request a personal appearance before his local board nor effect an appeal of his 1-A classification, other procedural remedies which were open to him and of which he was so advised. As Judge Ne-ville succinctly stated, “Defendant is a college graduate and a man of intelligence. His lack of attention to matters cannot be blamed upon his inability to understand the procedure or failure to read or comprehend the applicable rules or regulations.”

The Selective Service may require registrants to abide by reasonable rules for the orderly administration of the Selective Service System, including those requiring timeliness. As the Supreme Court in Ehlert expressly noted, “The System needs and has the power to make reasonable timeliness rules for the presentation of claims to exemption from service.” 402 U.S. at 102, 91 S.Ct. at 1322. “The power of the Selective Service System to set reasonable time limits for presentation of claims, with the penalty of forfeiture for noncompliance, seems never to have been questioned by any court.” Id. at 102 n. 4, 91 S.Ct. at 1322. (emphasis added). Thus, defendant’s failure to timely assert his claim may be considered a forfeiture thereof. See Grubb v. Birdsong, 452 F.2d 516, 519 & n. 1 (6th Cir. 1971). For a case with virtually identical facts, see United States v. Salem, 479 F.2d 340 (9th Cir. 1973). The Ninth Circuit there upheld a similar conviction.

This is not a situation where “neither the local board nor the military had made available a full opportunity to present a prima facie conscientious objection claim . . . .” See Ehlert, 402 U.S. at 107, 91 S.Ct. at 1325. Rather, defendant failed to take timely advantage of the remedy available to him. One is not denied due process when he is presented with a full opportunity to pursue an administrative or other legal remedy and through negligence does not take advantage of that opportunity.

The judgment is affirmed.

      . Local Board Memorandum No. 41 read in relevant part as follows:
      A registrant should be considered to have claimed conscientious objection to war if he has signed Series VIII of the Classification Questionnaire (SSS Form 100), if he has filed a Special Form for Conscientious Objector (SSS Form 150), or if he has filed any other written statement claiming that he is a conscientious objector.

      . 32 C.F.R. § 1625.2 (1971) provides, in pertinent part:
      “[T]he classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction . . or an Order to Report for Civilian Work and Statement of Employer unless the local board first specifically finds that there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.”

      . AR 635-20 reads in pertinent part as follows :
      a. Consideration will be given to requests for separation based on bona fide conscientious objection to participation in war, in any form, when such objection develops subsequent to entry into the military service.
      b. Federal courts have held that a claim to exemption from military service under Selective Service laws must be interposed prior to notice of induction, and failure to make timely claim for exemption constitutes waiver of the right to claim. Ho.wever, claims based upon conscientious objection growing out of experiences prior to entering military service, but which did not become fixed until entry into the service, will be considered.
      Requests for discharge after entering military service will not be favorably considered when—
      (1) Based on conscientious objection which existed but which was not claimed prior to notice of induction, enlistment or appointment.
      Its predecessor regulation, AR 635-20(3) (July 31, 1970) differed as follows:
      Requests for discharge after entering military service will not be favorably considered when—
      (1) Based solely on conscientious objection which existed, but which was not claimed prior to induction, enlistment, or entry on active duty or active duty for training.
      The difference in language causes no different result. The change only codifies the holding of Ehlert as to late crystallizers; late claimants would be treated the same under either the former or the present regulation.