author:
CLARK, Circuit Judge:
      GOLDBERG, Circuit Judge

text:
    Robert J. COOPER, Plaintiff-Appellant-Cross Appellee, v. Ivan ALLEN, Jr., Mayor of the City of Atlanta, Georgia, et al., etc., Defendants-Appellees-Cross Appellants.
    No. 73-2849.
    United States Court of Appeals, Fifth Circuit.
    May 6, 1974.
    Rehearing and Rehearing En Banc Denied June 6, 1974.

      Robert Neil Dokson, Michael H. Terry, David A. Webster, Elizabeth R. Rindskopf, Atlanta, Ga., for plaintiff-appellant.
    Robert Wiggins, Henry L. Bowden, Atlanta, Ga., for defendants-appellees.
    Before GEWIN, GOLDBERG and CLARK, Circuit Judges.
   CLARK, Circuit Judge:

On the first appeal of this case asserting racial discrimination in employment, we invalidated a testing procedure and remanded the cause to the district court with directions to grant relief to plaintiff unless the City of Atlanta could prove by clear and convincing evidence that when Robert J. Cooper sought employment in 1969 as a municipal golf professional he would not have been hired even if the City had not used the Otis-Lennon Mental Ability Test as a prerequisite for the position, and to reconsider both the denial of attorneys’ fees to Cooper and the assessment of costs. Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972). On remand, the district judge awarded Cooper 12,000 dollars in attorneys’ fees “as a result of his success through the [first] appeal,” but denied his request for back pay and in-junctive relief because the City was found to have discharged its burden of proving that James Russell Hazelwood, the golf professional whom defendants had hired for the position sought by plaintiff, was better qualified for the job. Cooper appeals from that judgment asserting error in the district court’s denial of individual relief, in its refusal to award additional attorneys’ fees incurred on remand, and in its assessment of one-half of the costs against him. The City cross-appeals from the award to Cooper of attorneys’ fees. We affirm on both appeals.

It is admitted that when Cooper applied for the position of golf pro in 1969, Atlanta required: (1) a satisfactory score on the now-discontinued Otis test; (2) age between 25 and 40; (3) at least five years’ experience as a golf pro or an assistant golf pro; (4) Class A membership in the PGA, or eligibility therefor; and (5) a successful oral interview. Having rejected the use of the Otis test, but lacking a basis for determining the final consequence of this adjudication, our prior mandate sent the cause back for further fact development with the provision that, to prevail, Atlanta must show by clear and convincing proof “that, in the light of the enumerated qualifications, Cooper would not have been entitled to the job even had there been no requirement to take and pass the Otis test. That is, the City must show that the person actually hired was on the whole better qualified for the job.” 467 F.2d at 840. The test was also restated thus: “Since there was but one job opening at the time . . ., the City’s burden . . . is to show that Cooper was not the most qualified applicant.” 467 F.2d at 840 n. 3.

On the basis of facts adduced at an evidentiary hearing held after remand, the district court concluded that “Hazel-wood’s [prior] experience ... of having the responsibility of a golf course and running a pro shop outweighs the plaintiff’s work history as a pro or assistant pro and is clear and convincing proof that Hazelwood was better qualified for the 1969 vacancy .” Accordingly, the court declined to award back pay or enter an injunction. Cooper’s instant appeal broadly attacks this unfavorable finding of fact. He first contends that the district court erred in relying on Hazelwood’s previous experience, without assessing his [Hazelwood’s] prior performance and ability to perform in the new position. He also asserts that while experience is a facially neutral requirement, it operates unlawfully here to perpetuate past racial discrimination since until recently blacks were traditionally foreclosed from obtaining experience as golf pros. Second, Cooper urges that the City failed to prove Hazelwood was the more qualified by clear and convincing evidence. Cooper’s third assignment of error is that the district judge improperly admitted hearsay evaluations of Ha-zelwood’s previous job performance and refused to admit testimony from a banker about Cooper’s business ability.

The district judge heard testimony from Atlanta Parks and Recreation Department officials and a practicing municipal golf professional about the duties and responsibilities of a City golf pro which demonstrated that teaching lessons only occupies about five percent of his time, whereas the bulk of his duties requires skills wholly unrelated to athletic ability. Of primary importance is a measure of merchandising expertise and financial ability. Golf professionals in Atlanta are principally engaged in collecting and accounting to the City for approximately 40,000 dollars a year in green fees. In addition, he operates concession stands and the pro shop, which he must personally stock with golf equipment and other merchandise from his own finances. He is obliged to keep the course open for business during daylight hours seven days a week. The pro also exercises varying degrees of authority over the entire operation of the golf course from supervising golf starters, assistant pros, and building custodians; to advising on course maintenance and upkeep; to assisting in the organization and management of golf tournaments.

It was against this backdrop that the court below assessed the comparative abilities of Hazelwood vis-a-vis Cooper. This task was to be framed “in light of the enumerated qualifications.” Both men fit the age and PGA membership prerequisites. Evaluation of their oral interviews was considered to be impracticable. Consequently, the district judge was left “to consider each man’s experience as one of the qualifications in determining which one was better qualified for the 1969 vacancy.” Hazelwood, whose educational attainments included a high school diploma and fourteen months of legal training, had been successively employed over a nine-year period by Lockheed Aircraft Corporation, a financing company, and the United States Post Office before he became a golf professional in 1962 at the Toccoa Country Club, an organization of approximately 175 to 250 members which also had approximately 200 non-member players. During his four-year tenure, Hazelwood’s duties were gradually expanded until, when appointed golf course superintendent and club manager at Toe-coa, he was responsible for the club’s entire golfing and social activities. He next spent two years as golf pro and golf course superintendent at the Conley Depot Golf Club, an army-affiliated organization which had about 300 members and a pro shop that averaged 3,300 dollars in gross sales per month. At both courses he was sole proprietor of the pro shop and also was charged with maintaining the condition of the golf course, purchasing and maintaining equipment, and the hiring, firing and supervision of course personnel. In addition to his business obligations, he gave individual golf lessons, conducted clinics for women and children, attended PGA-sponsored seminars and its one-week business school, and competed in several hundred golf tournaments during his years at Toccoa and Conley.

Cooper’s association with golf began as a player at age seven. He caddyed thereafter as he completed ten and one-half years of elementary schooling in Jacksonville, Florida. As a teen-ager he worked during one summer in a New York City golf shop where he sold golf items and helped the owner, Zeke Harts-field, give lessons. Cooper returned to Atlanta in 1954 and labored for two years in the repair shop at the Druid Hills Golf Club. He cleaned and repaired clubs and informally offered players tips and lessons. He was variously employed over the next ten years as a truck driver, Fuller Products vendor and a used car salesman. During this time he occasionally worked on the greens and played at the private, predominantly black New Lincoln Golf Club and regularly gave golfing instruction upon request. In 1968 he attended the one-week PGA business school and completed a 30-day correspondence course from the Etonic Shoe Company, which was primarily oriented to personality development and the sale of golf products. From 1969 until the first trial he tried unsuccessfully to establish a used car business on borrowed funds. Cooper’s acquaintance with golfing competition included fifteen USGA tournaments and several local tournaments in Jacksonville. He had also participated in the organization of one local golf tournament.

This record furnishes more than ample support for the district court’s conclusion that Hazelwood clearly and convincingly was, on the whole, better qualified to serve as an Atlanta municipal golf professional. Cooper charges, however, that a comparative evaluation grounded upon previous golf experience discriminates against him on account of his race. It is not arguable that blacks have in the past been excluded from PGA membership and competition and generally relegated to the role of caddy and greenskeeper; but, this to the contrary notwithstanding, the determinative shortcomings in Cooper’s employment resumé are not attributable either to his race or to past racial discrimination.

In strict compliance with our prior mandate, the district court disregarded race and instead weighed the evidence tendered by the City to determine whether “in light of the enumerated qualifications” the defendants had sustained their burden of proof. We cannot say that the court accorded any pri-ma facie superiority to the fact that Ha-zelwood’s purely golfing experience was greater. Furthermore, contrary to Cooper’s assertion on this appeal, the district judge explicitly refused to consider the hearsay, written reports of Ha-zelwood’s employment references upon which city officials had based their opinions of the applicants’ comparative abilities. This record disclosed that both men were talented golfers and teachers, perhaps equally so. It was when evaluations of the competing applicants’ entrepreneurial expertise and fiscal responsibility were juxtaposed that the composite pointed clearly and convincingly in Hazelwood’s favor.

Cooper simply lacked the commercial experience that would indicate he possessed the necessary competence to discharge the fiscal and merchandising responsibilities of this golf pro position with the same level of proficiency which Hazelwood’s background predicted. This comparative prognostication called for an evaluation of each man’s present capability and a forecast of his competency to fill the vacant position. The record shows without dispute that Ha-zelwood was continuously employed and progressively assigned expanded responsibilities over a six year period by two golf clubs. Such proof permits the reasonable inferences that (1) he performed satisfactorily in these two previous employments and (2) he was capable of discharging the business-type duties of an Atlanta municipal golf pro. These inferences were buttressed by Ha-zelwood’s testimony that under his leadership the Toccoa Country Club showed a profit in all phases of its operations for the first time in its fifteen year history.

Cooper argues that the missing commercial link in his background could have been forged by his banker, Lucius Clay, who would have opined that Cooper was industrious and a good credit risk. The district court excluded Clay’s testimony because he was not acquainted with Cooper in 1969 when Cooper’s application was under consideration. Although this evidentiary ruling was well within the ambit of the district judge’s discretion, its admission still would not have overridden Cooper’s lack of mercantile expertise as of the time he applied for the job in question.

Cooper asserts that today’s appeal presents issues of racial discrimination, but this assertion is not well taken. The record does not warrant the conclusion that the City appraised Cooper poorly because of the lack of golf-related experience which he could not get because of his race. The decisive shortcoming in Cooper’s background was that he lacked privity with any comparable business outside the world of golf. If Cooper had been a successful merchant or businessman in any line of endeavor, or if the city’s decision to hire had depended upon possession by an applicant of a line of prior experience which his race barred him from acquiring, this ease would assume a different appellate posture. Cooper’s situation as a comparative commercial novice, however, was wholly unrelated to historic racial discrimination in the golfing profession; thus, the city’s decision did not operate to penalize Cooper on account of his race.

Plaintiff deprecates all of Hazelwood’s supportive evidence about his work history as self-serving and insufficient against the enthusiastic endorsements of Cooper’s three “disinterested” witnesses, who revealed little familiarity with the duties and responsibilities expected of a municipal golf professional. Any infirmities in Hazelwood’s background were equally vulnerable to exposure on cross-examination. The weight and credibility of the evidence were matters within the province of the district judge. Equating experience with demonstrated proficiency, and disavowing any reliance on race related deficits, this record affirms his conclusion that “Hazelwood’s [prior] experience ... is clear and convincing proof that Hazelwood was better qualified for the 1969 vacancy, especially since the duties of the position included the operation of the pro shop and the golf course. This task could be best discharged by a person who, in addition to being proficient in playing the game of golf, has demonstrated the business skill necessary to the successful management of a golf course operation.”

Although the district court initially denied Cooper any attorneys’ fees for the first trial of this cause, on remand the court granted him 7,000 dollars for services rendered during the original trial and 5,000 dollars for the first appeal. Since he was not successful on remand, the district judge refused to award additional fees or to modify the assessment of costs equally against both parties. Neither action constituted an abuse of discretion. See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).

The judgment of the district court is Affirmed.

GOLDBERG, Circuit Judge

(dissenting) :

I am in substantial agreement with Judge Clark’s statement of the law relating to this case. However, because I am not convinced, as are my brothers in the majority, that the district court properly applied that law, I respectfully dissent.

The panel majority has made a persuasive case for the proposition that the City of Atlanta carried its burden of proving by clear and convincing evidence that Cooper was not the most qualified applicant for the job of municipal golf professional in 1969. I am satisfied that, within the broad boundaries of the rule that fact findings “shall not be set aside unless clearly erroneous,” the district court could have found from the record the same facts as did the panel majority; and if the district court had done so, it would have been justified in concluding that the City had carried its heavy burden.

On the other hand, the district court might have concluded from the record that the City had failed to provide clear and convincing evidence that Cooper was not the most qualified applicant in 1969. The record reveals a substantial amount of evidence that would support a judgment for appellant Cooper. For example, the only competent testimony regarding the quality of Hazelwood’s performance as a golf pro was that offered by Hazelwood himself; several persons testified favorably regarding Cooper’s performance in golf-related jobs. Zeke Hartsfield, a professional golfer and pro shop operator for whom Cooper had worked for a few months, testified that he knew both men and that he would choose Cooper over Hazelwood as a city professional. Hazelwood’s employment experience prior to becoming a golf professional at Toccoa Country Club and at Conley Depot Golf Club provides no indication that he had gained the merchandising expertise, financial ability, or other skills necessary to success as a municipal golf pro. Between layoffs, Hazelwood did structural assembly work and electrical work for Lockheed; he served as a mail handler and substitute carrier for the U. S. Postal Service; his duties with Community Loan and Town Finance were not disclosed.

My purpose here, however, is not to engage in an extended comparison of the qualifications of Cooper and Hazelwood. My quarrel with the district court’s decision is not that it adopted the view of the evidence set forth by my Brother Clark rather than the alternative interpretation urged by plaintiff Cooper. The district court erred, in my view, because it adopted neither of those analy-ses, nor any other comprehensive interpretation of the evidence, but chose instead to base its decision entirely on the applicants’ experience as golf professionals. By so doing, the district court neglected its remanded obligation to demand proof that Hazelwood “was on the whole better qualified for the job.” Cooper v. Allen, 5 Cir. 1972, 467 F.2d 836, 840 (emphasis added).

Regarding Hazelwood’s experience and abilities, the court’s decision spoke only of the fact that he was employed at Toc-coa and Conley. Comparing Cooper and Hazelwood the court stated, in relevant part:

(a) Both men met the age requirement in 1969;
(b) Both men fulfilled the eligibility requirement for membership in the PGA;
(c) A comparison of performance in oral interview is impossible and, consequently such a factor cannot be considered in determining either . applicant’s qualifications for the 1969 vacancy;
(d) The plaintiff lacked the requisite five years’ experience as a golf pro or assistant pro, while Hazelwood fulfilled this requirement by his four years of work as a professional at the Toccoa Country Club and two years’ experience at the Conley Depot Golf Club ....
Hazelwood’s experience at Toccoa and Conley of having the responsibility of a golf course and running a pro shop outweighs the plaintiff’s work history as a pro or assistant pro and is clear and convincing proof that Ha-zelwood was better qualified for the 1969 vacancy, especially since the duties of the position included the operation of the pro shop and the golf course. This task could best be discharged by a person who, in addition to being proficient in playing golf, has demonstrated the business skill necessary to the successful management of a golf course operation.

The district court did not take note of the quality of Hazelwood’s work. Rather the court apparently reached its result on the narrow, empirical basis that Hazelwood had held positions which Cooper did not hold, but which Cooper could not have held in the Atlanta area prior to 1969.

The record reveals that before this lawsuit was originally filed in 1969, no Negro had ever been employed by the City of Atlanta as a golf pro or assistant pro. There were no black club pros in the Atlanta area or in the State of Georgia in 1969, with the exception of one man who worked for no salary at the predominantly black New Lincoln Golf Club. Thus, though the criterion of prior experience appears racially neutral on its face, in practice it is not. Cooper had no way of securing the same kind of golf jobs that Hazelwood held. This Court has held, emphatically and repeatedly, that an employment practice whose effect is to deny genuine opportunity to blacks is impermissible and cannot be salvaged simply because it may be facially nondiscriminatory. Morrow v. Crisler, 5 Cir. 1974, 491 F.2d 1053; Local 189, United Papermakers & Paperworkers v. United States, 5 Cir. 1969, 416 F.2d 980, 988; Local 53 of Int’l Ass’n of Heat & Frost I. & A. Workers v. Vogler, 5 Cir. 1969, 407 F.2d 1047; cf. Ross v. Dyer, 5 Cir. 1963, 312 F.2d 191, 196.

I would remand this case to the district court once again, this time for a determination of whether Cooper or Ha-zelwood was more capable in 1969 of doing the tasks required by the job. This would necessitate the binocular task of measuring the applicants’ pertinent qualifications — merchandising ability and salesmanship, financial ability and responsibility, golfing and instructional skill, etc., — rather than the monocular comparison of job titles.

      . Jurisdiction was predicated on 28 U.S.C. § 1343(3) and 42 U.S.C. § 1981.

      . Because we find no race discrimination at the bottom of this case, we decline to draw an analogy here to cases in which seniority or other facially neutral employment criteria perpetuate the lingering effects of past discrimination. See, e. g., Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (5th Cir. 1974) ; United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973) ; Paperwork-ers Local No. 189 v. United States, 416 F.2d 980 (5th Cir. 1969) ; see also Morrow v. Crisler, 491 F.2d 1053 (5th Cir. 1974) (en banc) ; NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974). We also note that the City hired its first two black assistant golf professionals in 1971.

      . In his dissent, Judge Goldberg concludes that the district court’s decision turned entirely on a comparison of the applicants’ prior experience as golf professionals. Looking to the findings of fact as a whole and the unabridged evidentiary record before the district judge, we cannot agree that his view was so myopic. The record discloses a gross disparity in business ability between Hazelwood and Cooper. We consider this quantum difference in proven, job-related skills to be dispositive of this appeal.

      . Fed.R.Civ.P., Rule 52(a).


source: Caselaw Access Project

author: COLEMAN, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Tommie Dell ROSS and Dorothy Ruth Ross, Defendants-Appellants.
    No. 73-2203.
    United States Court of Appeals, Fifth Circuit.
    May 9, 1974.

      Charles C. Foster, Houston, Tex. (court-appointed), for defendants-appellants.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Edward S. Marquez, Ronald F. Ederer, Asst. U. S. Attys., El Paso, Tex., for plaintiff-appellee.
    Before JONES, THORNBERRY and COLEMAN, Circuit Judges.
   COLEMAN, Circuit Judge:

On December 20, 1971, the Supreme Court decided Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427. It was there held that plea bargaining is an essential component of the administration of justice and, properly administered, is to be encouraged. In Santobello, the bargain for a particular plea was for the purpose of securing the dismissal of more serious charges, including no sentence recommendation by the prosecutor.

The present appeal requires the application of Santobello principles to prose-cutorial presentation of evidence and oral argument to the trial jury.

Tommie Dell Ross and Dorothy Ruth Ross, husband and wife, of Waco, Texas, were convicted of fraudulently conspiring to import heroin into the United States from Juarez, Mexico, and of actually importing it (two counts). Ross was sentenced, among other things, to fifteen years imprisonment while his wife was sentenced to five years imprisonment. According to brief of the appellants (Court appointed counsel) Ross is at Leavenworth and Mrs. Ross is at Alderson.

For the reasons hereinafter stated, we reverse these convictions and remand for a new trial.

Since the verdict was for the government, we give its version of the facts.

On or about November 29, 1972, Mrs. Glenna Faye Sims, Tommie Dell Ross, Dorothy Ruth Ross, and their two year old child went to El Paso, Texas, in appellants’ automobile to do some Christmas shopping.

On the following day, about 5:00 p.m., all went to the “Club 77”, Juarez, Mexico. At approximately 6:00 or 6:30 p.m. Mrs. Sims felt tired and told the Rosses she wanted to return to El Paso, however, they wanted to remain in Juarez a little longer. About this time, they left the club and Mr. Ross went down the street about a block while Mrs. Ross and Mrs. Sims waited for him outside the club. Mr. Ross returned and went back into the club with Mrs. Ross. Mrs. Sims waited in the car with the Ross baby. After a while, appellants came out and got into the car. From there they drove to a taxi stand to get a cab for Mrs. Sims for her return to El Paso. In the car, Mrs. Ross removed from her brassiere some packages wrapped in tissues, gave them to Mr. Ross, who in turn gave them to Mrs. Sims. Mrs. Sims inquired as to what they were, to which Mr. Ross replied that it wasn’t anything and to place them in her brassiere and not in her purse. Mr. Ross then proceeded to get a taxi for Mrs. Sims. Prior to this, both appellants had instructed Mrs. Sims that when she got to the bridge, the only thing she had to do was to declare her citizenship, show her I.D. card, pay for the liquor and nothing else. Mrs. Sims was further instructed to wait for appellants at the first traffic light once over the bridge in El Paso, and they would follow in a little bit.

Mrs. Sims arrived at the bridge where she was met at primary by Inspector Willie Perez. Since she appeared to be nervous and overly friendly, Mr. Perez decided to send her to secondary for further examination. Mrs. Sims was taken to the office where she was searched by Inspectress Joy Martin. This revealed the packages of heroin. This happened at approximately 7:00 to 7:30 p.m.

Agent George A. Hirsch was notified to investigate the case. He advised Mrs. Sims that she was under arrest for possession of heroin. Mrs. Sims maintained that she did not know that the packages contained heroin. After relating to Agent Hirsch what had transpired in Juarez, the type of vehicle they were driving and where she was to meet them, she decided to cooperate with the Agent in delivering the heroin. Upon obtaining the description of the automobile, the inspectors were alerted, and it was determined that appellants had come through the bridge into El Paso, Texas, at 8:00 p.m.

A plan was devised whereby Mrs. Sims would deliver the heroin as originally planned by appellants. The same taxi, with its hood and trunk up, was to park approximately one block from the designated corner so that if appellants inquired why Mrs. Sims was late, she could use as an excuse that the taxi had broken down.

The agents and Mrs. Sims proceeded to meet the appellants, but neither they nor their car was anywhere around. Mrs. Sims then located Mr. Ross by phone at the Society Club. Upon inquiry by Mr. Ross, Mrs. Sims told him that she was late because the cab broke down and that she had not been searched at the bridge. Mrs. Sims was told by Mr. Ross to wait where she was and that they would pick her up. While she was waiting, two police officers came up to Mrs. Sims and stopped to talk to her. Right about this time, Mrs. Sims noticed appellants’ car come up and drive by without stopping. The car came back again through an alley where it stopped. Mrs. Ross got out of the car and went over to Mrs. Sims, and inquired of her what the policeman wanted. Mrs. Ross and Mrs. Sims proceeded to the car where Mr. Ross was waiting. Mrs. Sims sat in back and Mrs.. Ross in the front passenger seat. In the car, Mrs. Sims gave the heroin to Mr. Ross who in turn gave it to Mrs. Ross to place in her brassiere. Mrs. Sims asked what it was, to which Mr. Ross answered with a smile, “Oh, nothing”. As they drove away from the alley, the agents followed. At the appropriate time, the agents turned on their siren. Upon hearing the siren, Mr. Ross asked Mrs. Sims why she had not told them that there was a police car. Mr. Ross at this time tried to run away from the agents and told Mrs. Ross to throw the heroin away, which she did. Agent Hirsch stated that as they were following the appellants, Mr. Ross suddenly turned left into Eucalyptus. Street. Mr. Ross then quickly turned right, jumping the curb, but could not proceed in that direction because there was a house in his way. He reversed the car and made a U-turn in the sidewalk area and proceeded back into Eucalyptus Street, however, by this time, the agents had him blocked and- Mr. Ross was forced to stop his automobile. During the chase, Agent Hirsch saw the passenger side window go down where Mrs. Ross was sitting, and the heroin packages were thrown out but later retrieved by Agent Hirsch.

From this it will be seen that Mrs. Sims, not the defendants, performed the act of transportation across the border. The defendants were never seen in possession of the contraband; Mrs. Sims was apprehended in possession of it. Later on, under police surveillance, Mrs. Sims says she gave the heroin to Ross, who gave it to his wife, and the police saw the packages thrown out a car window, although they could not see who threw them. To make a long story short, this case hinged altogether on the testimony of Mrs. Sims, who was caught at the border and who, in return for incriminating the Rosses, was neither arrested nor prosecuted.

In this state of affairs, while a witness for the government, on redirect examination government narcotic agent George A. Hirsch, over objection, was allowed to testify as follows [Tr. 211-218]:

“Q. (By Mr. Marquez:) Did you have a conversation with Mr. Ross after he was arrested ?

“A. Yes, sir, I did.

“Q. Was this after he was advised of his rights, if he was ?

“A. That’s correct.

“Q. I’ll ask you whether or not did he ever indicate to you during this conversation the price of this heroin? Did you ever get around to talking about price? Objection and overruled.

“Q. (By Mr. Marquez:) Okay, what if anything did he say, Mr. Hirsch ?

“A. Okay, Mr. Ross stated that he would take the blame for everything if I would release his wife. At this time 1 had already talked to you (emphasis ours) and you expressed the thought that if he is going to do this, then we -will go ahead and not file on Mrs. Ross. But he came out with some story about—

“Q. Excuse me, Mrs. Ross did have a child with her at the time, is that correct?

“A. About a two or three year old child. And I said look, Tommy, I said if it is actually your stuff and you are responsible for it, then fine, I’ll go along with you giving me a statement. But if it’s not yours, I don’t want any part of your statement.

RECROSS EXAMINATION

By Mr. Abraham:

“Q. Mr. Hirsch, when you arrested Mr. Ross, you told him you were going to take him and his wife to jail, didn’t you ?

“A. Correct.

“Q. You told them that they were under arrest?

“A. Right.

“Q. And then you had a further conversation with Mr. Ross, did you not?

“A. Yes.

“Q. What you just told Mr. Marquez?

“A. Yes, sir.

“Q. And his remarks were ‘I’ll take the blame for everything. I’ll say it’s my stuff. I’ll take the blame for everything. But let my wife go’. Isn’t that what he told you?

“A. That’s correct.

“Q. And then did you arrest Mrs. Ross? Did you put her in jail and arrest her ?

“A. No, I didn’t.

“Q. And she was permitted to go on back to Waco ?

“A. Correct.

“Q. And when was it that you arrested her?

“A. We detained her at the time we stopped the car at Eucalyptus and San Antonio.

“Q. The question I was asking is when did you arrest Mrs. Ross?

“A. Actually thinking back, I don’t believe I placed her under arrest at this time. I warned Tommy Ross that he was under arrest, warned him of his constitutional rights and then I turned and warned Mrs. Ross of her constitutional rights in the event that I did decide to put her under arrest. And so if she made any statements, she had been warned.

“Q. All right. Well, when you took Mr. Ross to the jail house there in El Paso, you took Mrs. Ross, didn’t you?

“A. Yes, I took her to our office.

“Q. And then you subsequently took her to the jail, didn’t you? Or excuse me, you took Mr. Ross to the jail, didn’t you?

“A. Yes, sir.

“Q. Enroute from the place of the arrest to your office, had Mrs. Ross wanted to leave, you wouldn’t have permitted her to, would you?

“A. At this time, no.

“Q. So then whenever Mr. Ross told you ‘I’ll take the blame for all of the stuff, I’ll take the blame for all of the stuff but let my wife go’, is when you let her go ?

“A. Yes, but he didn’t put it that way. He said ‘If I take the blame, is there a chance you will let my wife go’ ?

“Q. Okay. And your response to that was yes ?

“A. I said I will discuss it with the United States Attorney and we will see what he decides.”

During closing argument, the prosecutor said,

“He [Ross] was arrested. He was apprehended. Later on after he was questioned, he tried to make some deal with the agents that he would be willing to take the rap for everything if they would turn his wife loose”. [Tr. 251-252].

Defense counsel immediately objected and the Court instructed the jury not to consider the last remark, the last statement.

From the foregoing, we have no doubt that Ross’ discussion with the agent, especially since the prosecutor had already been consulted, must be classified as an effort to bargain a plea. Moreover, it is undisputed that in pursuance of it the wife was released and went back to Waco. For reasons not readily apparent from the record, the proposed bargain was not consummated. At' least we know that the wife was prosecuted and that both she and her husband pleaded not guilty.

If, as the Supreme Court said in Santobello, plea bargaining is an essential component of justice and, properly administered, is to be encouraged, it is immediately apparent that no defendant or his counsel will pursue such an effort if the remarks uttered during the course of it are to be admitted in evidence as proof of guilt. Moreover, it is inherently unfair for the government to engage in such an activity, only to use it as a weapon against the defendant when negotiations fail.

The testimony concerning the discussion between the agent and Ross should not have been admitted. It should not have been made the subject of comment in the closing argument.

For this the convictions must be reversed and remanded for a new trial.

Upon a retrial, the jury must be carefully instructed as to the testimony of accomplices and the prosecutor must be careful not to comment on the failure of the defendants to testify if, as before, they do not take the witness stand.

Reversed and remanded.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Frank DeVOE, Defendant-Appellant.
    No. 73-1562.
    United States Court of Appeals, Fifth Circuit.
    May 3, 1974.
    Melvyn Kessler, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Robert C. Byrne, Harold F. Keefe, Asst. U. S. Attys., Miami, Fla., for plaintiff-appel-lee.
    Before BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.
   PER CURIAM:

Pursuant to the limited remand directed by our February 8, 1974 opinion in this cause, United States of America v. DeVoe (5 Cir. 1974), 489 F.2d 158, the district court held an evidentiary hearing on February 28, 1974. In addition to receiving testimony of the defendant-appellant Frank DeVoe, and the confidential government informant, Joe C. King, the court heard the testimony of three government witnesses, Detective Sergeant Robert Silber of the Hollywood Florida Police Department, Detective Marco Ceritelli, of the Organized Crime Unit of that organization, and Mr. Michael Patrick Sullivan, Assistant U. S. Attorney for the Southern District of Florida. The defendant-appellant’s counsel, Mr. Melvyn Kessler, was sworn and gave evidence. The court took note of the prior trial testimony, of the appellate record before this court in this appeal, and of the briefs, motions and administrative rulings therein. One evi-dentiary exhibit was received, the original statement made by the informant Joe C. King to Detective Sergeant Silber on July 6, 1972, describing the alleged heroin transaction the subject of the indictment and conviction of Frank De-Voe.

Based upon the foregoing, the trial judge has certified to this court under date of April 3, 1974, his detailed findings, conclusions and recommendations. This document is reproduced as an Appendix to this per curiam order. It is precise, objective and well documented, and needs no elaboration at our hands.

We approve and adopt the recommendations of the distinguished trial judge. The purpose of the limited remand having been accomplished, we now affirm the judgment of conviction appealed from.

Affirmed.

APPENDIX

CAPTION AND CLERK’S CERTIFICATE OMITTED

CERTIFICATION TO COURT OF APPEAL (sic) ON DEFENDANT’S MOTION FOR NEW TRIAL

After having been remanded by the Court of Appeals for the limited purpose of considering the defendant’s motion for a new trial based on newly discovered evidence filed in this Court after the appeal from his judgment of conviction had been pending for several months, this cause is before the Court for the entry of the “appropriate findings of fact and conclusions of law as to whether the conviction of DeVoe should be permitted to stand.” This Order incorporates those findings and conclusions.

I

The facts involved are set forth briefly in the opinion remanding this cause, United States v. DeVoe, 489 F.2d 158 (5th Cir. 1974), and need not be repeated here. Suffice it to say that the defendant was convicted by a jury of two counts relating to the sale of approximately one gram of heroin on July 5, 1972. The sale allegedly involved DeVoe, Detective Thomas and a confidential informant [hereinafter referred to as Cl]. When the defendant’s attorney, at trial, requested information relating to the whereabouts of the Cl because of the defendant’s possible desire to subpoena him as a witness, the government offered testimony by a DALE agent to the effect that there were no statements made by the Cl which would be favorable to the defendant. In addition, the Assistant U. S. Attorney represented to the Court that the Cl’s life would be endangered by the disclosure of his identity. Based on this information, together with the Court’s review of the law relating to confidential informants, see e. g., Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) ; United States v. Fallings, 482 F.2d 1352 (5th Cir. 1973), and United States v. Clark, 482 F.2d 103 (5th Cir. 1973), the Court allowed the Cl to be described ******and the questions relating to his availability to be answered. Testimony as to the Cl’s actual location was not allowed. At no time during either trial did defense counsel request the identity of the informant. In point of fact, he disclaimed such a request on at least two occasions in the second trial. Because of this disclaimer of interest the Cl was not identified.

After the denial of the defendant’s pro forma motion for a new trial following the jury verdict of guilty, DeVoe was sentenced by the Court. An appeal was filed January 29, 1973, the record on appeal was sent to the Court of Appeals on March 6, 1973; this motion for' new trial based on newly discovered evidence was filed March 21, 1973, and amended on April 10, 1973. It was clear to the defendant that the District Court has no jurisdiction to entertain such a motion while the appeal was then pending, and for that reason he filed a motion with the Fifth Circuit to Remand Cause to Trial Court in the hopes of receiving a ruling on the motion for new trial. An administrative panel denied that motion on June 21 and denied a rehearing on July 16, 1973. After receiving notification from the Court of Appeals that the defendant’s motion to remand had been denied, and realizing that no jurisdiction existed to entertain the motion for a new trial based on newly discovered evidence, the Court denied that motion without prejudice to refiling at the conclusion of the appeal.

Under the procedure employed by the Court of Appeals the motion for new trial based on newly discovered evidence has in essence been reactivated and is now properly before this Court for findings and certification. The motion alleges that although the identity of the Cl was not released during either trial in the District Court, the defendant has learned his identity, and that Joe C. King (the Cl) has given a sworn statement exculpating Frank DeVoe from any complicity in the sale of heroin on July 5, 1972. As the Court of Appeals summarized:

The appellant urges that his conviction be reversed under the circumstances now brought forth. The appellant suggests two possible views of the actions of the prosecution: (1) that the prosecution knew that if the informant came forward he would deny the testimony of the agents, and that the suppression was thus knowingly carried out; and (2) that the prosecution was acting in good faith and did not suspect that King was prepared to repudiate his prior identification and inculpation of DeVoe. In either event, it is asserted that Brandy’s teachings mandate a new trial.

489 F.2d at 160.

Having the order of the Court of Appeals, the Court is of the opinion that two questions must be answered at this point and they are somewhat intertwined: (1) Did the government know that Joe C. King, the confidential informant in the ease of United States v. Frank DeVoe, had changed, or would at trial change, his testimony that it was Frank DeVoe who sold the heroin to him and Agent Thomas on the night of July 5, 1972; and (2) Was the statement given by Joe C. King in the office of Mr. Kessler, the defendant’s attorney, voluntarily and truthfully given or was it coerced or false? The first question can be summarized as the Brady question — did the government withhold information favorable to the accused? The second question concerns the existence of newly discovered "evidence”— notwithstanding the government’s ignorance of a possible change in testimony would such a change require a new trial for the defendant in the interests of justice.

II

At the conclusion of the hearing held by the Court in compliance with opinion of the Court of Appeals an announcement was made concerning the first question posited above:

THE COURT: On the basis of the record before me at this time, I find no Brady material circumstance with respect to the Government’s knowledge or failure to disclose prior to the occasion of the two trials involving this defendant. The defendant did not seriously contend that anyone connected with the government knew that Joe C. King would make a statement exculpating Frank DeVoe, although his counsel refused to concede the matter. It is not necessary to decide now whether the government would have had an obligation to disclose to the defense the existence of the statement by Joe C. King should it have been given to someone other than the defense attorney after the trial. The testimony is clear that even up to the day of trial the government attorneys firmly believed that the Cl, Joe C. King, would testify in conformance with his written statement given the day after the sale in question. No attempt was made to determine whether he had ever given another statement prior to trial, either to the government attorneys or agents, that varied in any material respect from the statement elicited July 6, 1972. Absent such a showing the Court is compelled to find that no change in testimony existed, and ipso facto, no government attorney could have suppressed such information in violation of the commands in Brady.

Ill

The next question that must be answered is whether or not the statement given by Joe C. King to Mr. Kessler justifies the grant of a new trial to the defendant. The standards to be applied in this instance are derived from the analysis of two very closely analogous areas of criminal law and they are: (1) the recantation of testimony given by a material witness; and (2) the discovery of Brady material by the government before trial. The law on the first point is clear.

As the Fifth Circuit has observed in United States v. Nolte, 440 F.2d 1124, 1128 (5th Cir. 1971), “Motions for a new trial based on recanted testimony of a material witness are looked upon with the utmost suspicion.” The Supreme Court in Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956), pointed out:

It must be remembered that we are not dealing here with a motion for a new trial initiated by the defense, under Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., presenting untruthful statements by a Government witness subsequent to the trial as newly discovered evidence affecting his credibility at the trial. Such an allegation by the defense ordinarily will not support a motion for a new trial, because new evidence which is “merely cumulative or impeaching” is not, according to the often-repeated statement of the courts, an adequate basis for the grant of a new trial, (footnote omitted)

352 U.S. at 9.

No issue is taken with the allegation that the “evidence” was discovered after the trial, nor with the defendant’s assertion that he was diligent in pursuing the defense. What must be evaluated, however, are the requirements that “the new evidence [must] be material and such that, if presented to a jury at a new trial, would probably produce an acquittal.” Shuler v. Wainwright, 341 F.Supp. 1061, 1069 (M.D.Fla.1972). Recently this last element was mentioned in Ross v. Texas, 474 F.2d 1150 (5th Cir. 1973):

. In our estimation, the likelihood of changing a jury’s decision as a result of newly discovered evidence must rise considerably above the level of speculation. Otherwise, finality would be a vanishing element from all judgments of conviction in criminal cases.

474 F.2d at 1153.

The analogy to the Brady v. Maryland case is not quite as clear, but can be seen to exist when the philosophy of that decision is explored.

The principle of Mooney v. Holohan [294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935)] is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.

373 U.S. at 87. Even though the government may not be required to alert the defense to exculpatory developments subsequent to trial, and at this point the Court is assuming that it is not, the discovery by the defense of that same information may serve, in appropriate circumstances, to call into question the fairness of the earlier trial for the same reasons explicated by Mr. Justice Douglas in Brady. Unfairness may have crept into the trial unexpectedly and should therefore be corrected in a new trial if the evidence was material to the outcome. Even in the Brady instance, though, some guidelines are apparent.

We do not, however, automatically require a new trial whenever “the combing of the prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict. . ” United States v. Keogh, 391 F.2d 138, 148 (CA2 1968). A finding of materiality of the evidence is required .... if “the false testimony could ... in any reasonable likelihood have affected the judgment of the jury. . . . ” Na-pue v. Illinois, supra, 360 U.S. 264 at 271, 79 S.Ct. at 1178, 3 L.Ed.2d 1217.

Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972).

The decision has been made that no Brady material existed prior to trial, so the government cannot be held to have, unwittingly or otherwise, suppressed evidence favorable to the accused. A new trial would have been automatic otherwise. Giglio, supra at 155. What we are confronted with is the discovery of information that would have been Brady material had it existed before trial. Because it didn’t then exist an automatic new trial is not mandated. Bather, this newly discovered evidence must meet the standards discussed in Boss v. Texas, supra, before a new trial would be appropriate.

A synopsis of the “newly discovered evidence” is advisable now. On July 6, 1972 Detective Bobert Silber of the Hollywood Vice and Narcotic Unit Office took a statement from Joe C. King that described, inter alia, the purchase of approximately one gram of heroin from Frank DeVoe. Instead of summarizing the statement, a short quote from the statement will be sufficient:

I again got into Detective Jim Thomas’ car, we drove to the north side of West Side Park in Dania and parked the car. We then left the car and walked over to Frank DeVoe’s house. We walked up to Frank De-Voe’s house and knocked on the door and he told us to come in. I then advised Frank DeVoe, Detective Jim Thomas wanted to cop some stuff. Frank DeVoe stated that he did not want to give this stuff to Detective Jim Thomas and for me to take the money from Detective Jim Thomas and to give it to him and then he would give me the heroin. Detective Jim Thomas then handed me $20 which I handed to Frank DeVoe and Frank DeVoe took a packet of heroin from his pocket and handed it to me at which time I handed it to Detective Jim Thomas. Frank DeVoe then told me the next time that I came to his house with anybody that he wasn’t going to let me in and if I ever wanted to buy heroin that I would have to come by myself. At this time Detective Jim Thomas and myself left Frank DeVoe’s house.

The substance purchased by Detective Thomas and Joe C. King was subsequently analyzed and found to be heroin. The same Joe C. King who gave that statement came to the defense attorney’s office on February 8, 1973, accompanied by DeVoe and a white female, and gave a sworn statement before the court reporter denying each of the particulars contained in his earlier statement to the Hollywood police. He denied going to DeVoe’s house on July 5, 1972, accompanied by agents or otherwise; he denied buying heroin from DeVoe; and he denied being searched after the alleged purchase. In substance he completely exculpated the defendant, Frank DeVoe, from any participation in the heroin transaction charged in the indictment.

Absent any extenuating circumstances, and accompanied by the government’s acknowledgment that the individual making the February 8 statement was the same as the individual who made the July 6 statement that they relied on, this newly discovered evidence would clearly be sufficient to justify a new trial. True, the testimony of Joe C. King was not necessary to obtain the conviction in the first instance. However, the actions of the Cl were testified to by Detective Thomas at the trial and the Cl’s repudiation of that testimony could very well affect the credibility of Detective Thomas. “[T]he likelihood of changing a jury’s decision as a result of newly discovered evidence [would] rise considerably above the level of speculation.” Ross v. Texas, 474 F.2d at 1153.

Nevertheless, a review of the testimony elicited at the hearing on remand evidences the existence of extenuating circumstances. The informant testified that the statement given to DeVoe’s attorney was false and was given under duress. He further testified that the original statement of July 6, 1972, was true. Mr. King refused to be sworn by the clerk on two occasions prior to his testifying at the hearing, but it was obvious to the Court that he was in great fear of his life at that time and was obviously reluctant to testify. He seemed to be under the impression that as long as what he said was not under oath he would not be harmed by the defendant or his friends. His testimony did describe at least two occasions between the trial of the defendant and the hearing that day when he had been, to his mind at least, threatened by either DeVoe or his friends. This was in addition to the threats he felt he received when he was taken by the defendant to Mr. Kessler’s office for purposes of giving the February 8 statement. Although the informant was not as eloquent as he might have been, the message relayed to the Court was nevertheless clear — he had only given the statement to DeVoe’s attorney because he had been threatened with bodily harm or death if he didn’t. At the time the request was made to give a statement relating to his participation, he had no reason to refuse it. He was secure in the knowledge that they could not be sure he had been the informant — the government had promised that his identity would not be discovered. When Joe C. King was confronted with the realization that DeVoe did know that he was the Cl, he tried to protect himself in the only method still available — by refusing to testify at all, or at least under oath.

The story finally came out, albeit grudgingly. The witness’s refusal to be sworn affects the weight to be given to his testimony, but under the peculiar and bizarre facts of this case the Court credits Joe C. King’s version of the facts, and finds that the February 8, 1973 statement given to Mr. Kessler was false when given, and made only under duress and threat of physical harm When viewed in this light, it would be this Court’s conclusion that the interview of Mr. Joe C. King conducted by defense counsel is not newly discovered evidence at all, but only “manufactured” evidence. The Court is convinced that Mr. Kessler was not aware of the coerced nature of the responses elicited by his questions, but they were nevertheless involuntary. It has been the defendant’s contention throughout that he is entitled to have a new trial so that the jury will have a chance to weigh the credibility of Joe C. King for itself. While that would be true if the statement was voluntary, such involuntary, “manufactured” evidence can never justify a new trial. The credibility of any witness should never be impeached by statements given under threat of death or great bodily harm. “Otherwise, finality would be a vanishing element from all judgments of convictions in criminal cases.” Ross v. Texas, 474 F. 2d at 1153. Were it up to this Court, the motion for new trial based on newly discovered evidence would be denied for failure to adduce any competent, newly-discovered evidence.

Entered at Miami, Florida this 3rd day of April, 1974.

C. CLYDE ATKINS

United States District Judge

      . Agent Charette testified that “[t]he person was approximately five foot, ten, medium build, Negro male, . . .” Transcript of trial at 62, United States v. DeVoe, No. 72-595-Cr-CA [hereinafter cited as Transcript] .

      . Out of the presence of the jury, Government counsel disclosed to the Court and defense counsel that the 01 was then incarcerated in Broward County, although when the jury returned the question by the defense as to Ms availability only elicited the response that the Cl was within the Southern District. Transcrij>t at 77, 88 and 90.

      . There was some confusion on the government’s part as to the meaning of the word “availability” as used in this context. At one point the government made the announcement that “[w]e do not think he is available, Tour Honor.” Transcript at 78. The word related to the Cl’s actual physical presence within the district as opposed to the actual decision to allow him to testify. As to the former, the statement was incorrect, as was demonstrated by Agent Char-ette’s later testimony before the jury. Transcript at 90. See note 2 supra.

        . Transcript at 78-80.

      . During the course of the discussions relating to the availability of the Cl, defense counsel announced: “But I did not go into the identity of the witness. I do not feel that I have laid sufficient predicate at this point to go into the identity of the confidential informant.” It is clear, then, that the decision not to release the identity of the Cl, per se, is not under review here. Bather, the question relates to the possible Brady testimony that might have been elicited from the Cl. The non-disclosure of his identity is relevant only insofar as it bears on that question.

      . The Assistant U. S. Attorney was criticized by the Court of Appeals for not meeting “the thrust of appellant’s contentions.” 489 F.2d at 160. A cursory review of the briefs filed on appeal demonstrates that this criticism was justified, although perhaps some further explanation would be appropriate. As indicated in the text of the Fifth Circuit’s opinion, the defendant was challenging as violative of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the government’s withholding of the identity and whereabouts of the Cl. The Point on Appeal, as phrased by the appellant DeVoe, was clear in this regard:
      Whether the prosecution by failing to disclose the identity of a confidential informant or place him on the stand, violates Fifth Amendment Due Process when said informant, who played a major role in the criminal activity complained of in the indictment, could totally exonerate the defendant from the charges in the indictment.
      Brief for Defendant/Appellant at 6, United States v. DeVoe, 489 F.2d 158 (5th Cir. 1974).
      Notwithstanding this clear indication of the issue on appeal, the government in its brief devoted four and one-half pages to its argument that
      1) No evidence had been suppressed; and 2) The District Court acted correctly in denying the defendant’s motion for new trial based on newly discovered evidence.
      The second point relied on by the government was obviously a non sequitur since the motion had not been denied on its merits. The Order of July 2, 1973, indicated as much on its face. As to whether evidence favorable to the accused had been suppressed, whether in good faith or bad faith, the brief made only the conclusory assertion that no such evidence existed. This was clearly not what the Court of Appeals needed to review this issue.

      . At the hearing held by the Court on this matter the following question was asked of the government: “When was the name of Joe C. King first disclosed?” The Assistant U. S. Attorney stated that the response to the defendant’s motion for new trial admitted that Joe C. King had been the Cl on this case, but he was not sure when or how Mr. Kessler learned of that fact. Mr. Kes-sler, the defense counsel, opined that it may have been disclosed during a sidebar conference, but that he was not sure of that and would therefore rely on the record. Transcript of Proceedings, United States v. De-Voe, February 28, 1974 [hereinafter cited as Hearing] at pp. 46 and 87.
      The fact is that the Cl’s identity was not disclosed at either trial, during a bench conference or otherwise, although because of the government’s unusually casual handling of this case it may as well have been. During the second trial, at the same time the Court was being told that the Cl’s life would be in danger and almost in the same breath, the announcement was made that the Cl was presently incarcerated in the Bro-ward County Jail. It did not take much deductive power to arrive at the identity of the Cl once the defendant reviewed the Court’s docket sheet in this cause, which is a public record and available in the Clerk’s office during business hours, because item 12 on that docket sheet reflects the following information:
      Nov. 8 DeVoe: Writ of Habeas Corpus ad
      Prosequendum issued to USM, for Joe C. King from Broward County Jail, for purpose of giving testimony at trial 9:30 a. m., on 11/8/72.
      Since this was the only writ requested, tbo Cl’s identity was established.

      . Hearing at 82.

      . At one point in his argument to the Court the defense counsel stated to the Court that under the precepts of Brady the government was bound to disclose exculpatory evidence discovered both before and after the trial.
      THE COURT: But the Government has to have some knowledge of it [the existence of the subsequent change in testimony], of course.
      MR. KESSLER: Yes, but the Government doesn’t have to have knowledge at the time. If the Government comes into knowledge later, say at a later date, it wouldn’t make any difference they still have the burden of coming forward and divulging that to the defense at any time, whether before, during or after the trial.
      Hearing at 83.

      . The testimony at the hearing discloses a discrepancy in this regard. Agent Ceritelli testified that on February 9, 1973, the day after the interview with DeVoe and his attorney, Joe O. King called him. After Ceri-telli picked him up and took him to the DALE office, King explained what had occurred the previous day. According to Ceri-telli, King said that DeVoe, a white female, and two other black males accompanied him to Mr. Kessler’s office. Hearing at 32. Assistant U.S. Attorney Sullivan, the man to whom the story was related, could not recall whether King mentioned the presence of any men other- than DeVoe. Hearing at 25. King at the hearing testified that only De-Voe and the white female accompanied him. Hearing at 73. The discrepancy, however, does not appear to be material.

      . The Government’s Response to Defendant’s Motion for New Trial admitted that Joe C. King was the 01 in this case. See note 7, supra.

      . “Q Mr. King, here is a statement that is Government’s Exhibit 1 with your signature on it. Is that statement true?
      A Yes, sir.
      Q Is the statement that you gave the court reporter in Mr. Kessler’s office false?
      A Is that Mr. Kessler sitting back there with glasses on?
      Q No, over here. At the, lawyer’s office with Frank DeVoe?
      A With Frank?
      Q Yes.
      A It is false
      Q Did you do that under duress and fear?
      A Yes.”

      . Hearing at 56.

      . Hearing at 25.

      . This threat was credible. The trial transcript contains an elementary example of what happens to informants these days. REDIRECT EXAMINATION OP DONALD J. ALIMEDA, JR.
      “Q What were you in the hospital for?
      A Well, on June 23rd I had part of my brains knocked out. I had seven stiches and plastic surgery, from somebody that I had turned in. This dope addict hit me and that was it. I stayed in the hospital 11 days and I am still suffering from it.”

      . Hearing at 56-57.

      . The defendant, through his attorney, attacked the credibility of the Cl’s fear for his life. On several occasions he questioned the government’s witnesses seeking to find out what measures had been taken to protect the Cl, such as moving him to another part of the country, changing his identity, etc. Hearing at 28 and 38. He determined that little, if anything, had been done to protect the Cl, and theorized that obviously the po-
      lice did not take seriously the Cl’s fears. Hearing at 83-84. That conclusion is not necessarily the only one that can be drawn under the circumstances. Prior to the filing of the motion for new trial based on newly discovered evidence, there was no reason for the Cl to leave Dania because he was sure that no one knew he had been the informer against DeVoe. After his participation became known, it would have been appropriate to assist him in relocating if the Cl qualified for protection under the Organized Crime Control Act of 1970, 18 U.S.C. prec. § 3481, but he obviously did not. Without such authorization, the government could do nothing but be willing to come to his assistance if he actually was harmed. However, that protection may prove to be illusory.
      It is truly unfortunate that, due to an attorney’s inadvertence, Joe C. King must now live in fear, realizing all too well his circumstances and the government’s inability to assist him. As Mr. King put it in his testimony, “I am just as good as being a policeman. I don’t have a badge or gun, though.” Hearing at 60.


author: ALVIN B. RUBIN, District Judge:

text:
    MOBIL OIL CORPORATION, Plaintiff-Appellee, v. Claude KELLEY, Director of the Department of Conservation, et al., etc., Defendants-Appellants.
    No. 73-1793.
    United States Court of Appeals, Fifth Circuit.
    May 6, 1974.
    Rehearing Denied June 14, 1974.

      William J. Baxley, Atty. Gen., George L. Beck, Deputy Atty. Gen., Myron H. Thompson, Asst. Atty. Gen., Montgomery, Ala., William T. Watson, Asst. Atty. Gen., University, Ala., for defendants-appellants.
    W. Dewitt Reams, James D. Brooks, Mobile, Ala., Roy M. Talley, New Orleans, La., for plaintiff-appellee.
    Before BROWN, Chief Judge, GEW-IN, Circuit Judge, and RUBIN, District Judge.
   ALVIN B. RUBIN, District Judge:

Mobil Oil Corporation invoked federal question and diversity jurisdiction in a suit against the director and members of the Alabama Department of Conservation and the director and members of the Alabama Oil and Gas Board. The district court determined that it had jurisdiction, and decided in favor of Mobil on the merits. The defendants appeal only the trial court’s determination that it had jurisdiction. The multiple issues presented by the effort to ascertain the answer to this apparently simple question require detailed analysis. But, to put the conclusion at the beginning, we decide that the district court had jurisdiction. ■

I. DETERMINATION OF JURISDICTION

Jurisdiction refers to the court’s competency to consider a case. In essence, it is authority “to decide a given type of case one way or the other.” Hagans v. Lavine, 1974, - U.S. -, 94 S.Ct. 1372, 39 L.Ed.2d 577, 42 L.W. 4381. This is determined at the outset of the suit for reasons that are at least partially practical: the parties, the witnesses, and the public should not be put to the inconvenience and expense of a trial only to be told, after the trial is over, that they were in the wrong courthouse and must'go to another for a new trial. Hence the determination whether a suit arises under the Constitution or laws of the United States rests upon “the plaintiff’s statement of his own cause of action.” Louisville & Nashville R. R. Co. v. Mottley, 1908, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126. See also Bell v. Hood, 1946, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939; Skelly Oil Co. v. Phillips Petro. Co., 1950, 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194; Chandler v. O’Bryan, 10 Cir. 1971, 445 F.2d 1045; 1 Barron & Holtzoff, Federal Practice & Procedure § 25 (Wright ed. 1960).

After jurisdiction has been determined to exist on the basis of the allegations of the complaint, the court has the power to decide the dispute between the parties even though the complainant ultimately fails to prove the cause of action on which jurisdiction was originally based. Bell, supra; Siler v. Louisville & Nashville R. Co., 1909, 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753. Thus a complaint that alleges the existence of a federal question establishes jurisdiction, even though the court ultimately decides that the plaintiff’s federal rights were not violated. Bell v. Hood, supra; Hagan v. Lavine, supra; Southern Pac. Co. v. Van Hoosear, 9 Cir. 1934, 72 F.2d 903; State of Georgia v. Wenger, 7 Cir. 1951, 187 F.2d 285; Moore’s Federal Practice ¶2.06[5].

II. SCOPE OF ELEVENTH AMENDMENT

The State Immunity Amendment, adopted in 1798 as the Eleventh Amendment to the Constitution, prohibits the federal courts from hearing suits against one of the United States by a citizen of another state; it extends a like shield for actions against a state by its own citizens. Hans v. Louisiana, 1890, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842.

But this buckler has been limited to its exact constitutional width. As early as 1898, a bill to enjoin a state officer from executing an unconstitutional statute was held permissible, Smyth v. Ames, 1898, 169 U.S. 466, 18 S.Ct. 418, 42 L.Ed. 819, because it sought to prevent the officers from acting without authority. If the state statute authorizing the act was unconstitutional, it did not protect the state officer from suit. The action was only against the individual officer, not the state itself; though, as has been pointed out, this construction is anomalous, for the only basis for relief under the Fourteenth Amendment is that the action of the state officer is state action. McGuire v. Sadler, 5 Cir. 1964, 337 F.2d 902; C. Wright, Law of Federal Courts § 48.

It is now rubric that state officials may be sued in federal court on the basis that the state statutes under which they are acting are unconstitutional. Ex Parte Young, 1908, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714; Alabama Pub. Ser. Comm’n v. Southern Ry. Co., 1951, 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002. By like reasoning the state’s inl-munity has been held not to shelter state officials from suit when it is claimed that their acts go beyond federal constitutional bounds, whether or not the constitutionality of the state statute is involved. Georgia Railroad & Banking Co. v. Redwine, 1952, 342 U.S. 299, 72 S.Ct. 321, 96 L.Ed. 335. “A valid law may be wrongfully administered by officers of the state, and so as to make such administration an illegal burden and exaction upon the individual.” Reagan v. Farmer’s Loan & Trust Co., 1894, 154 U.S. 362, 14 S.Ct. 1047, 1051, 38 L.Ed. 1014. See also Alabama Public Service Comm., supra; Greene v. Louisville & Interurban R. Co., 1971, 244 U.S. 499, 37 S.Ct. 673, 61 L.Ed. 1280; Williams v. Eaton, 10 Cir. 1971, 443 F.2d 422; Duckworth v. James, 4 Cir. 1959, 267 F.2d 224; Peay v. Cox, 5 Cir. 1951, 190 F.2d 123; Cook v. Davis, 5 Cir. 1949, 178 F.2d 595.

III. THE COMPLAINT

In 1969 Mobil obtained four oil and gas leases on land in Mobile Bay from the Department of Conservation of the State of Alabama. Later it applied unsuccessfully to the State Oil and Gas Board for a permit to drill wells on lands covered by the leases. The complaint alleges that the issuance of such permits had always previously been routine, and there was no legal reason for the Director and members not to follow the usual practice.

The complaint, as amended prior to trial, is directed at state officials because, under the Eleventh Amendment, Mobil could not sue the State of Alabama or its agencies. While that part of the complaint focussed on the Oil and Gas Board does not plead a violation of federal constitutional rights in haec verba, it gives adequate notice of the existence of a claim that denial of the permit violated Mobil’s rights to due proe-ess of law under the Fourteenth Amendment since, in addition to its other allegations, it recites, “Jurisdiction of this Court is invoked pursuant to and in accordance with 28 U.S.Code, Sections 1331 and 1332, and amendment 14, Section 1, to the Constitution of the United States.” The notion that the Fourteenth Amendment itself confers jurisdiction is inartful, but the notice thus given is clear. The claim, as pleaded, is substantial, and the complaint was therefore sufficient to confer jurisdiction on the District Court as an action arising under the Constitution of the United States. 28 U.S.C. § 1331. Ha-gans v. Lavine, supra.

Following the general jurisdictional recital, the complaint alleges that, when Mobil could not obtain a permit to drill from the Oil and Gas Board, it sought an extension of the leases from the State Conservation Department, with no results. It therefore also sued the director and members of the State Conservation Department. But Mobil nowhere alleged that the inaction of these officials violated any of its constitutional rights. Its sole contention with respect to the Conservation Department was, “There exists an actual and bona fide controversy between the parties as to whether the Director of the Department of Conservation is authorized to toll the running of the primary term of said leases for the time that Mobil as Lessee is precluded by action or inaction of the State or any of its officers or agents from drilling on said leases, and, if he has such authority, whether or not he should grant such extension under the circumstances alleged herein.” The relief requested as to the Director of the Department was a decree that he “has the power and right to grant an extension” and an order that he “extend the primary terms of the four leases for the period of time prayed for above, without the requirement of payment of delay rentals or other charges. . . . ”

Hence neither the facts alleged nor the claims made suggested a contention that the failure of Conservation Department officials to extend the leases violated its constitutional rights. The defendants promptly challenged the court’s jurisdiction alleging its lack generally as well as their contention that this was in effect a suit against the state, hence barred by the State Immunity Amendment.

Whether there was jurisdiction of the claim made against the officials of the Conservation Department, then, is crucial because the sole relief awarded by the District Court was to extend the obligation and payments under the leases until 3 years and 76 days after the Oil and Gas Board shall have issued a valid drilling permit, that being the period of the lease term remaining when the permit was sought; and to extend the terms of the leases until the Oil and Gas Board shall issue a valid drilling permit. The order is not addressed in terms to any state official, but it must be directed to the director and members of the Conservation Department since the Oil and Gas Board could not grant such an extension, and the court clearly had no jurisdiction as to the state itself by virtue of the State Immunity Amendment.

After considering the evidence, the trial court construed the complaint as contending that all of the defendants had taken the plaintiff’s property without due process of law, in violation of the Fourteenth Amendment. The court considered that the complaint, thus interpreted, claimed that the officials of the Conservation Department, as well as the officials of the Oil and Gas Board, had denied Mobil due process of law, and that this claim was not wholly insubstantial or frivolous.

We need not dwell on whether the words of the complaint, standing alone, would be a sufficient key to the federal court. The construction given the pleadings by the trial court after hearing the evidence, was not clearly in error. Had the invocation been insufficient, the court could have permitted the allegation of jurisdiction to be amended, as, indeed, this court could now do. 28 U.S. C.A'. § 1653. That therapeutic legislation, originally designed to permit belated amendment to allege diversity of citizenship, was extended in the 1948 code revision to permit amendment of all jurisdictional allegations. That the trial court decided that a federal question was alleged should not cause us to reconsider his conclusion merely because we might read the bare words of the complaint differently. Since he could have permitted them to be amended to assert a federal question with precision, we look to whether there was substantial error in his ultimate jurisdictional conclusion.

IV. PENDENT JURISDICTION

Decision has created an extension to the jurisdiction of federal courts to meet the needs of equity to litigants and judicial economy. Jurisdiction may be based on the assertion of a federal claim but the claimant may be unable to prove his allegations; the evidence may however prove a basis for relief under state law. In that event, a remedy may be granted by a federal court though a complaint based solely on the state claim would have been beyond the court’s competency. Siler, supra; Wright, Federal Courts, § 19; See also Moor v. County of Alameda, 1973, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596. Similarly, where the complaint itself alleges a claim with respect to which federal courts are given jurisdiction and, in additional, a claim based on state law arising out of a common nucleus of operative fact, the federal court may adjudicate both claims in a single proceeding without requiring the parties to present the same facts to two different courts, United Mine Workers v. Gibbs, 1966, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218; Hurn v. Oursler, 1933, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148; Connecticut General Life Ins. Co. v. Croton, 5 Cir. 1968, 405 F.2d 41.

“Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim ‘arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority .,’ U.S.Const., Art. Ill,,§ 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional ‘ease.’ The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. Levering & Garrigues Co. v. Morrin, 289 U.S. 103 [, 53 S.Ct. 549, 77 L.Ed. 515]. The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.” United Mine Workers v. Gibbs, supra, 383 U.S. at 725.

See also Hagans v. Lavine, supra

Since a substantial federal claim was stated against the director and members of both the Oil and Gas Board and the Conservation Department, there was pendent jurisdiction of the nonfederal claims on which the case was ultimately decided. We therefore do not need to address the question whether the assertion of federal question jurisdiction as to the officials of the Oil and Gas Board also conferred pendent jurisdiction of the claims against the officials of the Department of Conservation as additional parties.

This type of pendent jurisdiction has been called “pendent party” jurisdiction, to distinguish it from “pendent claim” jurisdiction, where the judicial power embraces only additional claims between the same parties. See Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 2 Cir. 1971, 441 F.2d 627; Leather’s Best, Inc. v. S. S. Mormaclynx, 2 Cir. 1971, 451 F.2d 800; Almenares v. Wyman, 2 Cir. 1971, 453 F.2d 1075, and Professor Jo Desha Lucas’ comments in Supplement to Moore’s Federal Practice, ¶ 18.07 (Supp.1972) and compare Williams v. U.S., 9 Cir. 1969, 405 F.2d 951, and Wojtas v. Village of Niles, 7 Cir. 1964, 334 F.2d 797. See also Shannon v. United States, 5 Cir. 1969, 417 F.2d 256, and Connecticut General Life Insurance Company v. Craton, 5 Cir. 1968, 405 F.2d 41; and Comment (1974) 20 Loyola L.Rev. 176. The Supreme Court recently considered the issue in Moor v. County of Alameda, 1973, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596, and, while recognizing a trend in the lower courts “to hear pendent claims involving pendent parties,” chose not to decide the question.

Mobil’s claims against the officials of the two state departments was inextricably interwoven. They arose out of a common nucleus of operative fact. The trial court exercised its discretion wisely.

For these reasons, we conclude that the complaint as filed conferred federal question and consequent pendent jurisdiction over the director and members of the Oil and Gas Board and over the director and members of the Conservation Department. The judgment of the district court is therefore affirmed.

      . Since the Supreme Court’s decisions authorize the type of suit brought here as to Oil and Gas Department officials despite the Eleventh Amendment armor, we do not consider whether, in the jurisprudence of the 65 years since Ex Parte Young, supra, was decided, a broader compass is given the effect of the Fourteenth Amendment on the Eleventh. Griffin v. County Sch. Bd. of Prince Edward Co., 1964, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256; Worcester County Trust Co. v. Riley, 1937, 302 U.S. 292, 58 S.Ct. 185, 82 L.Ed. 268 (dictum) ; Louisiana St. Bd. of Ed. v. Baker, 5 Cir. 1964, 339 F. 2d 911; McCoy v. Louisiana St. Bd. of Ed., 5 Cir. 1964, 332 F.2d 915.

      . When jurisdiction is based on diversity of citizenship, the fundamental claim for relief is by definition based on state law. The issue of pendent jurisdiction arises when there is a lack of the requisite jurisdictional amount with respect to the pendent claim, when a case filed in state court is removed to federal court, or when it is sought to join in a pendent claim a new defendant — sometimes one with respect to whom diversity is lacking. Whether or not pendent jurisdiction lies in any of these situations is matter as yet undecided by this circuit. See, generally, Seyler v. Steuben Motors, Inc., 3 Cir. 1972, 462 F.2d 181; Hatridge v. Aetna Cas. & Sur. Co., 8 Cir. 1969, 415 F.2d 809; Stone v. Stone, 4 Cir. 1968, 405 F.2d 94; Campbell v. Triangle Corp., E.D.Pa.1972, 336 F.Supp. 1002; Sherrell v. Mitchell Aero, Inc., E.D.Wis.1971, 340 F.Supp. 219; Robison v. Castello, E.D.La.l971, 331 F.Supp. 667. If pendency of parties is extended to instances where federal jurisdiction is based on diversity, the long-held interpretation of the diversity statute as requiring complete diversity of parties would require reconsideration. See Strawbridge v. Curtis, 1806, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435.

      . “Whether there exists judicial power to hear the state law claims against the County is, in short, a subtle and complex question with far reaching implications. But we do not consider it appropriate to resolve this difficult issue in the present case, for we have concluded that even assuming arguendo
        the existence of power to hear the claim, the District Court, in exercise of its legitimate discretion, properly declined to join the claims against the County in these suits.” Moor v. County of Alameda, 1973, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596.

      . The invocation of diversity jurisdiction was therefore unnecessary. We do not mean by mentioning that plaintiff relied upon diversity of citizenship, to imply that this was appropriate. See, e. g. Ohio v. Wyandotte Chemicals Corp., 1971, 401 U.S. 493, 91 S.Ct. 1005, 28 L.Ed.2d 256; Harris v. Pennsylvania Turnpike Comm., 3 Cir. 1969, 410 F.2d 1332.


author: PER CURIAM: GOLDBERG, Circuit Judge

text:
    Brett MERKEY and Young Socialist Alliance, Plaintiffs-Appellants, v. The BOARD OF REGENTS OF the STATE OF FLORIDA, etc., et al., Defendants-Appellees.
    No. 72-3231.
    United States Court of Appeals, Fifth Circuit.
    May 10, 1974.
    Rehearing and Rehearing En¡ Banc Denied June 11, 1974.
    Michael F. Cycmanick, Jerome J. Bornstein, American Civil Liberties Union of Fla., Orlando, Fla., for plaintiffs-appellants.
    Robert D. Bickel, Gen. Counsel, Fla. State Univ., Herbert D. Sikes, State Bd. of Educ., Stephen M. Slepin, Tallahassee, Fla., for defendants-appellees.
    Before BELL, GOLDBERG and SIMPSON, Circuit Judges.
   PER CURIAM:

This appeal was taken from an opinion and order in which the district court upheld the right of Florida State University (FSU), a member of the state-supported university system of the State of Florida, to refuse recognition as a student organization to the Young Socialist Alliance (YSA). Merkey v. Board of Regents, N.D.Fla.1972, 344 F. Supp. 1296. Appellant, Brett Merkey, and one other, Jack Lieberman, filed a petition for recognition on behalf of YSA in March of 1970. That petition was denied on the basis of a determination by Chairman Kibler of the Board of Regents, the governing body of the university system, that YSA, because of its dedication to the principle of revolution, had no place on a college campus and would not be entitled to official recognition on campuses of state universities in Florida.

Suit was filed in the district court challenging this denial on First, Fifth, and Fourteenth Amendment grounds. Though the suit was initially filed as a class action on behalf of all groups of students required to seek official recognition as student organizations in state-supported schools, the district court denied class standing on grounds (1) that the plaintiff Merkey was not a student at the time that the suit was filed and hence not a member of the class he purported to represent, and (2) that each group applying for recognition would have to be considered on its individual merits and would thus pose differing questions of fact inappropriate to class actions. The denial of class standing is not challenged on this appeal.

During oral argument it was agreed by counsel in response to a question from the bench that neither the appellant, Merkey, nor his co-applicant, Lieberman, were students at FSU. As non-students they can have no interest in whether or not any student organization is allowed recognition on university campuses of Florida. Hence, Merkey is beyond the impact of any decision that this Court could render on this appeal. No present FSU student is shown by the record to seek recognition for YSA as an official student organization. In these circumstances and absent any appeal from the denial below of class action status, the appeal is moot. We therefore do not consider the merits. North Carolina v. Rice, 1971, 404 U.S. 244, 92 S.Ct. 402, 30 L.Ed.2d 413. The Court noted in Rice:

“Early in its history, this Court held that it had no power to issue advisory opinions, and it has frequently repeated that federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them. To be cognizable in a federal court, a suit ‘ . must be a real and substantial controversy admitting of specific relief through a decree of conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts, (citations omitted).’” 404 U.S. at 246, 92 S.Ct. at 404, 30 L.Ed.2d at 415-416.

Cf. United States Servicemen’s Fund et al. v. Killeen Independent School District et al., 5 Cir. 1974, 489 F.2d 693, recently dismissed as moot by this Court.

So that the district court judgment will not stand as a barrier to reapplication by students who might wish to seek recognition of YSA, or engender any other precedential consequences, it is vacated and this cause is remanded with directions that it be dismissed as moot. United States v. Munsingwear, 1950, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36; National Lawyers Guild v. Board of Regents, 5 Cir. 1974, 490 F.2d 97; New Left Education Project v. Board of Regents, 5 Cir. 1973, 472 F.2d 218.

Vacated and remanded.

GOLDBERG, Circuit Judge

(dissenting) :

Abandoning the sometimes turbulent but relatively well-charted waters of jus-ticiability, the majority opinion in this case plunges into murky new depths of judicial abdication. Because I am unwilling to accompany my Brothers on this dangerous and unwise journey, I respectfully dissent.

In response to defendants-appellees’ initial challenge to plaintiff-appellant Merkey’s standing, the trial court held that Merkey “possessed the requisite interest in the outcome of this litigation as a member of Young Socialist Alliance so as to have a justiciable interest in its outcome.” Merkey v. Board of Regents, N.D.Fla.1972, 344 F.Supp. 1296, 1303 (emphasis added). Appellees have not challenged that holding on appeal, and I think it is clearly correct. As a member of YSA, Merkey has certainly alleged “that the challenged action has caused him injury in fact . . . . ” Association of Data Processing Service Organizations v. Camp, 1970, 397 U.S. 150, 152, 90 S.Ct. 827, 829, 25 L.Ed.2d 184, 187.

The Supreme Court in Data Processing emphasized that apart from the “case” or “controversy” test, the question of standing concerns “the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected ... by the statute or constitutional guarantee in question.” 397 U.S. at 153, 90 S.Ct. at 830, 25 L.Ed.2d at 188. The Court also recognized that standing may stem from an injury to noneconomic values, such as those arising from the First Amendment. 397 U. S. at 154, 90 S.Ct. at 830, 25 L.Ed.2d at 188.

Merkey has alleged that the action of the appellees in refusing .to recognize the YSA as a campus organization denies the plaintiffs, including the organization itself, certain First Amendment rights as well as .rights of procedural due process and equal protection of the law. Although the YSA has both student and non-student members, the action of defendantsappellees in denying recognition to the YSA was not based on the fact that the group has some non-student members. Merkey — who as a former student and employee of the university is certainly no officious, disinterested interloper— pursues this litigation as a member of the YSA, on its behalf. The constitutional values he seeks to vindicate, especially freedom of speech and association, are shared by all members of the group, including the students. Proceeding as he is on behalf of the YSA, Merkey has a sufficient stake in the outcome of the controversy “to ensure that ‘the dispute sought to be adjudicated will be preserved in an adversary context and in a form historically viewed as capable of judicial resolution.’ Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947, 962.” Sierra Club v. Morton, 1972, 405 U.S. 727, 732, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636, 641.

If, as I believe, the district court’s holding on the issue of Merkey’s standing is correct, I cannot understand the reasoning that leads my Brothers to conclude that the case is moot. “An issue becomes moot and hence no longer justiciable where as a result of intervening circumstances there are no longer adverse parties with sufficient legal interests to maintain the litigation.” Hollon v. Mathis Independent School District, 5 Cir. 1974, 491 F.2d 92, 93, citing 6A Moore’s Federal Practice ¶ 57.13 at 57-128 (2d ed. 1973). The exact contours of the mootness doctrine may sometimes be shrouded in fog, but it takes no special lighthouse to recognize that in the instant case no intervening circumstances have reduced the adverse position of the parties or depreciated their legal interests in the litigation. The case stands in exactly the same posture today as it did the day it was filed.

Today, as then, Merkey is a member of the YSA, and a former employee and student at the university. Today, as then, the YSA has student members, seeks recognition as a campus organization, and has been denied that recognition. There has been no subsequent remedial action. There has been no change in the procedures followed, and most significantly, there has been no change in the decision denying recognition to YSA. Under any interpretation of the words, there remains a “subject matter on which the judgment of this Court could operate.” St. Pierre v. United States, 1943, 319 U.S. 41, 42, 63 S.Ct. 910, 911, 87 L.Ed. 1199, 1201; Troy State University v. Dickey, 5 Cir. 1968, 402 F.2d 515, 516. 3

Neither the majority opinion nor my own study of the record in this case convinces me that there has been any fundamental change in the “particularized . . . fact situation from which this suit arose.” United States Servicemen’s Fund v. Killeen Independent School District, 5 Cir. 1974, 489 F.2d 693, 694. Nor have events put these argument's to rest. Doremus v. Board of Education, 1952, 342 U.S. 429, 72 S.Ct. 394, 396, 96 L.Ed. 475. For all I can determine, there continues to exist “a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” North Carolina v. Rice, 1971, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413, 415-416, citing Aetna Life Insurance Co. v. Haworth, 1937, 300 U.S. 227, 240-241, 57 S.Ct. 461, 81 L.Ed. 617. I would, therefore, review the decision of the trial court on the merits.

Mootness is a jurisdictional precept, founded on the requirement of Article III of the Constitution that predicates the exercise of federal judicial power on the existence of a case or controversy. North Carolina v. Rice, supra. In Kil-leen Independent School District, supra, and National Lawyers Guild v. Board of Regents, 5 Cir. 1974, 490 F.2d 97, this Court went to the nethermost reaches of legitimate non-justiciability. Today the Court passes the last milepost of mootness as a constitutional command, and makes it what it was most certainly never meant to be — a haven for indecision.

      . See Fla.Stat. (1971) §§ 240.001 and 240.-042(2) F.S.A.

      . The sole individual appellant. Lieberman did not participate other than as a witness' in the proceedings below.

      . The majority mentions the failure to appeal the trial court’s denial of class action status. The named plaintiffs were Merkey and the YSA, although another member of the organization named Lieberman had joined with Merkey in making the original application for recognition on behalf of YSA. Plaintiffs sought to represent a class consisting of all students in state universities in Florida who are required to obtain official recognition for campus organizations. The trial court found that Merkey, as a non-student, was not a member of the class he purported to represent, and also concluded that the possibility of significant differences of fact and law made a class action unwise. This conclusion in no way affected the right of Merkey and the YSA to proceed on behalf of the members of that organization at Florida State University.

      . The original YSA application was made in March 1970. The first complaint was filed in June 1970, but that cause was ultimately dismissed after this Court had reversed the trial court’s dismissal for failure to state a claim. At the time of the YSA application and the filing of the suit, Merkey was a staff employee of the university. According to Merkey’s deposition taken in May 1972, record at 66-67, his staff position was terminated for budgetary reasons in February 1972, or about the time plaintiffs’ amended complaint was filed. I do not believe that any change in his employment status renders the case moot. He acted then, and continues to act, primarily on behalf of the organization itself and its members. If he has standing, the case cannot be moot. Moreover, the YSA itself remains a party to the action, and changes in Merkey’s individual status can hardly' affect the organization’s position in the case.
      In any event, it is clear to me that the majority believes that the case has become moot during the pendency of the appeal rather than between the time of application and the time of trial. In support of the order to vacate and remand with instructions that the district court dismiss the case as moot, the majority cites United States v. Munsingwear, 1950, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36; National Lawyers Guild v. Board of Regents, 5 Cir. 1974, 490 F.2d 97, and New Left Education Project v. Board of Regents, 5 Cir. 1973, 472 F.2d 218. In all three cases something happened during the pendency of the appeal to render the controversy moot. I submit that nothing of the kind has happened here.

      . The Dielcey case is instructive. There, plaintiff, a former student newspaper editor, challenged tire refusal of the university to readmit him for the fall semester because of his refusal to follow instructions to publish a certain editorial. Because he subsequently decided not to re-enroll in the university, the only relief he had sought, this court concluded that the case had become moot. Here, by contrast, the change in Merkey’s individual status as student has occasioned no change in the relief being sought, recognition of the YSA, and has done nothing to alter the concreteness of the fundamental controversy between the parties.