author: CRAVEN, Circuit Judge: B OREM AN, Senior Circuit Judge ALBERT V. BRYAN, Senior Circuit Judge

text:
    Joseph P. MOODY et al., Appellants, v. ALBEMARLE PAPER COMPANY, a Virginia corporation et al., Appellees. Equal Employment Opportunity Commission, Amicus Curiae.
    No. 72-1267.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 3, 1972.
    Decided Feb. 20, 1973.

      Boreman, Senior Circuit Judge, concurred in respect to testing issue, but dissented in respect to back pay issue, and filed opinion.
    Albert V. Bryan, Senior Circuit Judge, concurred in respect to back pay issue, but dissented in respect to testing issue, and filed opinion.
    See also, D.C., 50 F.R.D. 494.

      George Cooper, New York City, and Robert Belton, Charlotte, N. C. (J. Le-Vonne Chambers, Chambers, Stein, Ferguson & Lanning, Charlotte, N. C., T. T. Clayton, Clayton & Ballance, Warrenton, N. C., Conrad O. Pearson, Durham, N. C. , Jack Greenberg, William L. Robinson, Morris J. Bailer, Eric C. Schnap-per, New York City, on brief), for appellants.
    Leonard Appel, Washington, D. C., (Warren Woods, Betty Southard Murphy, Wilson, Woods & Villalon, Washington, D. C., and James B. Ledford, Charlotte, N. C., on brief), for appellee, Halifax Local No. 425, United Papermakers and Paperworkers, AFL-CIO.
    Francis V. Lowden, Jr., Richmond, Va. (Paul M. Thompson, Hunton, Williams, Gay & Gibson, Richmond, Va., Gordon G. Busdicker, Faegre & Benson, Minneapolis, Minn., Julian R. Allsbrook, Allsbrook, Benton, Knott, Allsbrook & Cranford, Roanoke Rapids, N. C., Charles F. Blanchard, and Yarborough, Blanchard, Tucker & Denson, Raleigh, N. C., on brief), for appellees, Albemarle Paper Co. and others.
    Martin Slate, Atty., E. E. O. C. (John De J. Pemberton, Jr., Acting Gen. Counsel, Julia P. Cooper, Chief, Appellate Section, E. E. O. C., on brief), for ami-cus curiae, E. E. O. C.
    Before BOREMAN and BRYAN, Senior Circuit Judges, and CRAVEN, Circuit Judge.
   CRAVEN, Circuit Judge:

This is a class action arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiffs are representative members of the class composed of all Negroes employed at defendant’s Roanoke Rapids plant and all Negroes who may hereafter apply for employment at the Roanoke Rapids plant. The multitude of defendants is occasioned by changes in corporate ownership which occurred subsequent to the institution of the action. Since the Roanoke Rapids operation has at all pertinent times been called the Albemarle Paper Company, the corporate defendants will hereinafter be referred to as Albemarle.

The district court found that Albe-marle practiced racially disciminatory employment practices prior to July 2, 1965, and that the effect of that discrimination had been perpetuated through a job seniority system. Thus, the district court enjoined Albemarle and the defendant union, Halifax Local 425, United Papermakers and Paper-workers, AFL-CIO, from discriminating against Negro employees, and ordered that the job seniority system be abolished and a plant-wide seniority system be implemented. There has been no appeal from these provisions of the court’s decree.

The district court refused to order the abolition of or changes in the pre-em-ployment testing procedures used by Al-bemarle. Plaintiffs appeal from the district court’s determination. Judge Bore-man concurs with Judge Craven in reversing and remanding to the district court on this issue. Judge Bryan dissents.

The district court also refused to award the plaintiffs back pay. Judge Bryan concurs with Judge Craven in reversing the district court on this issue. Judge Boreman dissents.

The effect of this division in the court is to reverse and remand the district court’s determination as to the testing procedures and the refusal to award back pay.

I

TESTING PROCEDURES

Prior to 1958, no employment personnel tests were given to applicants for employment at Albemarle. In 1956, the personnel manager was requested to design a screening program for selection of employees for certain departments. In this connection, the Revised Beta Examination (Beta) and the Bennett Mechanical Comprehension were selected to test applicants. A brief study was made at that time to determine the usefulness of the Beta test.

About 1963, the then personnel manager discontinued using the Bennett Mechanical Test since it had not been studied. Use of the Wonderlic Test, A and B series, was initiated at that time. Whereas the Beta is a non-verbal test developed to measure the intelligence of illiterate and non-English speaking individuals, the Wonderlic Tests are verbal tests of general mental ability. Use of the Wonderlic Tests was adopted in connection with the Beta because Albemarle felt it essential for new employees to have a certain level of verbal facility because of the increasing technical nature of the operation and the increasing use of printed instructions in the operation of machinery and the like.

The operations of Albemarle are, like other pulp and paper mills, organized on a departmental basis. For purposes of employee classification and promotion, each department is organized into one or more lines of progression. Entrance into each department is effected at the bottom of a line of progression and employees move up, depending on their ability and experience, as vacancies occur. In all, Albemarle has 11 separate departments containing 17 lines of progression. Since 1963, applicants for 8 of these departments and 14 of the lines of progression were required to score successfully on the Beta and Wonderlic pre-employment tests.

After the Supreme Court decision in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), Albemarle hired an expert in industrial psychology and testing to conduct a validation study of its pre-em-ployment testing procedures. A validation study determines whether test results have a significant relationship to actual performance on the job. The technique adopted for the validation study of Albemarle’s tests was concurrent validation. In concurrent validation, a sample of current employees occupying the jobs, or job groups, in question is selected. These employees are then given the tests, and the test scores compared with one or more criteria of the employees’ ability to perform their jobs.

Albemarle’s validation study covered 10 job groups in only 8 of the 14 lines of progression, and 5 of the 8 departments for which the tests are required. The sample of employees was generally selected from the higher level jobs and encompassed approximately 30 percent of the different jobs for which tests are required. The test scores from that sample were compared with two supervisors’ comparative ratings of employees in each job slot. The criteria for the supervisors’ ratings was: “Excluding a man’s attitude, just how well the guy can do the job when he’s feeling right.” (A. 471). No job analysis was done for the jobs in question.

Albemarle’s expert found that one of the tests was validated for 9 of the 10 job groups studied. However, both tests were valid for only one job group.

The effect of the district court’s approval of Abemarle’s testing procedure is to approve a validation study done without job analysis, to allow Albemarle to require tests for 6 lines of progression where there has been no validation study at all, and to allow Albemarle to require a person to pass two tests for entrance into 7 lines of progression when only one of those tests was validated for that line of progression. We think this was error.

Title VII of the Civil Rights Act “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). If an employment practice, though facially neutral as the testing procedures here, is shown to have a differential impact on minority employment, it is prohibited unless the employer can prove business necessity. Griggs, at 432, 91 S.Ct. 849. The plaintiffs made a sufficient showing below that Albemarle’s testing procedures have a racial impact. It was thus incumbent upon Albemarle to establish business necessity by showing that its testing requirements “have a manifest relationship to the employment in question.” Griggs, at 432, 91 S.Ct. at 854. United States v. Jacksonville Terminal Co., 451 F.2d 418, 455-457 (5th Cir. 1971).

While § 703(a)(2), (h) specifically authorizes professionally developed tests not used to discriminate, Griggs makes clear that that section allows only those tests proven to be job related. 401 U.S. at 436, 91 S.Ct. 849. In so holding, the Court gave great deference to the interpretation of the Act evinced in a set of guidelines by the enforcing agency, the Equal Employment Opportunity Commission. Griggs, at 433-434, 91 S.Ct. 849. We have also recently noted with approval these guidelines. Robinson v. Lorillard Corp., 444 F.2d 791, 798 n. 7 (4th Cir. 1971).

We think Albemarle has failed in several respects to show that its tests are job related, have a manifest relationship to employment, and have been validated in accordance with EEOC guidelines.

In developing criteria of job performance by which to ascertain the validity of its tests, Albemarle failed to engage in any job analysis. Instead, test results were compared with possibly subjective ratings of supervisors who were given a vague standard by which to judge job performance. Other courts have expressed skepticism about the value of such ill-defined supervisor appraisals. See, e. g., Rowe v. General Motors Corp., 457 F.2d 348, 452 (5th Cir. 1972). Also Cooper and Sobol have stated in their article, Seniority and Testing Under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion, 82 Harv.L.Rev. 1598, 1662 (1969):

Supervisory ratings, for example, which are possibly the single most common performance measure used in validity studies, are subject to personal prejudice. When test scores are correlated with such ratings, the validation, if it can be called that, is of questionable value and may simply prove that the test has the same bias as the supervisors.

Likewise, in this regard the EEOC guidelines provide:

(3) The work behaviors or other criteria of employee adequacy which the test is intended to predict or identify must be fully described; and, additionally, in the case of rating techniques the appraisal form(s) and instructions to the rater (s) must be included as part of the validation evidence. Such criteria may include measures other than actual work proficiency, such as training time, supervisory ratings, regularity of attendance and tenure. Whatever criteria are used they must represent major or critical work behaviors as revealed by careful job analyses.
(4) In view of the possibility of bias inherent in subjective evaluation, supervisory rating techniques should be carefully developed, and the ratings should be closely examined for evidence of bias.

29 C.F.R. § 1607.5(b) (1970).

We agree that some form of job analysis resulting in specific and objective criteria for supervisory ratings is crucial to a proper concurrent validation study. See, Western Addition Community Organization v. Alioto, 340 F.Supp. 1351, 1354-1355 (N.D.Cal.1972). To require less is to leave the job relatedness requirement largely to the good faith of the employer and his supervisors. The complaining class is entitled to more under the Act.

Even if the validation procedures had been proper, it was error to approve the testing procedures for lines of progression where there had been no validation study. In this case the tests were approved as a requirement for 6 lines, of progression for which the tests had not been validated. While it is true that a test need not always be validated for each job for which it is required, there are narrow limits on when a test may be used without validation. The EEOC guidelines provide:

(2) Where a test is to be used in different units of a multiunit organization and no significant differences exist between units, jobs, and applicant populations, evidence obtained in one unit may suffice for the others. 29 C.F.R. § 1607.4(c) (1970).

In this case, a failure to perform job analyses in the lines of progression involved in the validation study and in the other lines of progression for which the tests are required prevents concluding that no significant differences exist in the jobs in question.

Not only was it error to approve the testing procedures for lines of progression not validated, but it was also error to approve requiring applicants to pass two tests for positions where only one test was validated. Albemarle seeks to justify this under the business necessity rule. Albemarle originally hires all employees into a pool. From this pool the employees move into a line of progression as vacancies occur. Since it is not known into which line of progression an employee will be placed, Albemarle asserts there is nothing wrong with requiring all employees to be qualified for any line.

Albemarle has not shown that hiring all employees into a pool is necessary to the safe and efficient operation of its business, nor has it shown that hiring employees for specific lines of progression is not an acceptable alternative. This they were required to prove to justify their policies under the business necessity test. Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir. 1971).

Thus we hold that the district court erred in upholding the validity of the pre-employment personnel tests and in refusing to enjoin their use.

II

BACK PAY

Title 42 U.S.C. § 2000e-5(g) provides in relevant part:

The court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include reinstatement or hiring of employees, with or without back pay ....

The district court found that Albemarle had practiced discriminatory employment practices and that these practices had been perpetuated through a job seniority system. Consequently, the district court enjoined Albemarle and the defendant union, Halifax Local 425, from continuing the discriminatory practices. Nevertheless, the district court, finding an award of back pay to be within his discretion, refused to award back pay to the complaining class. The reasons given by the district court for refusing such an award were that the claim for back pay was filed nearly five years after the institution of the action, and that there was no evidence of bad faith noncompliance with the Act. Neither of these is sufficient to justify the district court’s refusal to award back pay.

In Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971), a case which also dealt with a seniority system which perpetuated past discriminatory practices, the defendants made the contentions presented to us here.

The complaint filed by the plaintiffs in the District Court did not specifically request an award of back pay . ' . . At a pretrial hearing concerning the appropriateness of a class action, one of the lawyers for the plaintiffs clearly indicated that the suit was one for injunctive relief rather than recovery of lost wages. It was not until well after trial of the case, though before the judge had entered a decision, that a request was made for additional relief in the form of back pay for the class.

444 F.2d at 802-803. In Robinson, as here:

[Bjeeause the obligation to provide back pay stems from the same source as the obligation to reform the seniority system, any general defenses relevant to the back pay award were equally relevant to the suit for injunc-tive relief .... The defendants have in no way been prejudiced by the belated claim.

444 F.2d at 803.

Other courts have held likewise. The Fifth Circuit held, in United States v. Hayes Int’l Corp., 456 F.2d 112 (1972), that the broad aims of Title VII require that the issue of back pay be fully developed and determined even though it was not raised until the post-trial stage of litigation.

Also, the Seventh Circuit, in a case which was not a class action, remanded the case in order that “ ‘relief should be made available to all who were so damaged whether or not they filed charges and whether or not they joined in the suit.’ ” Sprogis v. United States Air Lines, Inc., 444 F.2d 1194, 1202 (7th Cir.), cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971).

In Robinson the argument was also made that back pay should not be awarded where the defendant had acted in good faith. Put negatively, the argument, urged by Albermarle, is

that back pay should not be awarded in the absence of a specific intent to discriminate. A corollary argument is that the award was improper in light of the unsettled state of the law. The principal answer to both points is that back pay is not a penalty imposed as a sanction for moral turpitude; it is compensation for the tangible economic loss resulting from an unlawful employment practice. Under Title VII the plaintiff class is entitled to compensation for that loss, however benevolent the motives for its imposition.

444 F.2d at 804. See also, Johnson v. Goodyear Tire & Rubber Co., 349 F.Supp. 3, (S.D.Tex., 1972) (also a seniority case where good faith was present).

The only significant difference between Robinson and the present case is that in Robinson the district court had awarded back pay and the district court below refused to award back pay. The question then is whether, in light of the broad aims of Title VII, this court may affirm the opposite result as to back pay on similar factual situations because such award rests in the discretion of the district judge.

“Discretion in a legal sense necessarily is the responsible exercise of official conscience on all the facts of a particular situation in the light of the purpose for which the power exists.” Bowles v. Goebel, 151 F.2d 671, 674 (8th Cir. 1945) (emphasis added). Thus in determining the proper scope of the exercise of discretion, the objective sought to be accomplished by the statute must be given great weight. Hecht Co. v. Bowles, 321 U.S. 321, 331, 64 S.Ct. 587, 88 L.Ed. 754 (1944). Where a district court fails to exercise discretion with an eye to the purposes of the Act, it must be reversed. Wirtz v. B. B. Saxon Co., 865 F.2d 457 (5th Cir. 1966); Shultz v. Parke, 413 F.2d 1364 (5th Cir. 1969).

“The clear purpose of Title VII is to bring an end to the proscribed discriminatory practices and to make whole, in a pecuniary fashion, those who have suffered by it.” Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 720 (7th Cir. 1969). In light of the congressional purpose, courts should give “a wide scope to the act in order to remedy, as much as possible, the plight of persons who have suffered from discrimination in employment opportunities.” Rowe v. General Motors Corp., 457 F.2d 348, 354 (5th Cir. 1972).

Also, as we stated in Robinson, “[t]he back pay award is not punitive in nature, but equitable — intended to restore the recipients to their rightful economic status absent the effects of the unlawful discrimination.” 444 F.2d at 802. See also, Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5th Cir. 1969).

Because of the compensatory nature of a back pay award and the strong congressional policy embodied in Title VII, a district court must exercise its discretion as to back pay in the same manner it must exercise discretion as to attorney fees under Title II of the Civil Rights Act. See Bowe, supra 416 F.2d at 719. Thus, a plaintiff or a complaining class who is successful in obtaining an injunction under Title VII of the Act should ordinarily be awarded back pay unless special circumstances would render such an award unjust. Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). See Bowe, supra 416 F.2d at 719-720.

Because there are no such special circumstances here, on remand the district court should include an award of back pay in its order. It is to be remembered, of course, that a back pay award is limited to damages which are actually suffered. Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971).

Reversed.

B OREM AN, Senior Circuit Judge

(concurring in part and dissenting in part):

I am in agreement with the result reached by Judge Craven in that portion of his opinion which holds that Albe-marle Paper Company has failed to show a business relationship between the racially biased tests administered to pro--spective employees, and its personnel requirements. However, from that portion of his opinion reversing the district court’s refusal to award back pay, I must respectfully dissent.

The appellants advance multiple theories in their effort to persuade this court to modify the relief granted below to include an award of back pay. The two arguments approved and adopted by Judge Craven are: first, the equation of § 706(g) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g), with § 706(k) of the Act, 42 U.S.C. § 2000e-5(k), which provides for an award of attorney’s fees in the discretion of the court and under which the federal courts have held attorney’s fees are to be awarded as of course, in the absence of “special circumstancesand second, that failure to grant back pay was an abuse of discretion under Robinson v. Lorillard, 444 F.2d 791 (4 Cir. 1971).

In Lea v. Cone Mills, 438 F.2d 86, 88 (4 Cir. 1971), this court, over my strenuous objections stated in dissent, extended the holding of the Supreme Court in Newman v. Piggie Park Enterprises, 390 U.S. 400, 402-403, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), that attorney’s fees should ordinarily be granted in suits under Title II of the Act, to include suits under Title VII as well. A study of the relevant sections and the reasoning behind the Newman and Lea decisions reveals the fallacy of a comparison between the provision for attorney’s fees and for back pay.

The pertinent provisions with respect to the allowance of attorney’s fees under Title II and Title VII are virtually identical, and each was considered by Congress as sufficiently significant to be expressed in an individual subsection. However, the grant of authority to award back pay is found in a completely different subsection of Title VII, the congressional separation of these two provisions indicating an intent to treat them independently. Furthermore, the subsection in which the provision for back pay is found generally sets out the equitable remedies which the district court may utilize in fashioning relief should the complaining party prevail, indicating no congressional intent to give an award of back pay any greater presumption of appropriateness than its companion remedies.

More significant, however, is the reason for which the district courts’ discretion was found to be limited with respect to the award of attorney’s fees to prevailing parties plaintiff. In bringing an action against an employer (or manager of a public accommodation under Title II) for discrimination in the operation of his business, the plaintiff is more than a private party litigant; he acts as a “private attorney-general” in vindicating the interests of the public, and it is this advancement of the commonweal that is the basis for allowing attorney’s fees as of course. Such a public purpose is not present in the more delicate task of fashioning the appropriate equitable relief to fit the peculiar fact pattern of each case, and the monetary award is intended to redress purely private inequities.

I must conclude, therefore, that the award of back pay, unlike the grant of attorney’s fees, is an element of affirmative relief which has been entrusted to the more general discretion of the district courts.

Judge Craven’s opinion also apparently adopts the view that this court’s decision in Robinson v. Lorillard, supra stands for the proposition that under facts similar to those in Robinson, it would be an abuse of the district court's discretion to deny a request for back pay. Such a construction misinterprets the holding in Robinson and the proper scope of appellate review of discretionary decisions. The burden of persuasion falls on the party attempting to show an abuse of discretion and not on the successful party below. In Robinson the holding of this court was that the appellant company failed to show, under the factual situation before the district court, that it was an abuse of discretion to award back pay, not that back pay was mandated under those circumstances. The term “discretion” denotes that more than one acceptable alternative is available and the choice of the most appropriate is properly left in the hands of the district courts which are more intimately involved with the ambiance of the cases and the merits of each position than are the Courts of Appeal.

‘We must keep in mind that the discretion is to be exercised by the district court and not by a court of review. This court should not substitute its discretion for that of the district court.’ ” (Emphasis supplied by Larson.) Larson v. United States, 296 F.2d 167, 170 (8 Cir. 1961).

The first reason assigned by the district court for its refusal to award back pay — that there was no evidence of bad faith noncompliance with the Act as evidenced by the active recruitment of Negroes into the company’s training program for certain skilled lines of progression as early as 1964, the company-initiated merger of some lines of progression to increase advancement opportunities and good faith attempts to validate its testing procedures — is not sufficiently compelling, in and of itself, to support a denial of back pay. In Robinson this court made clear that the remedy of back pay is not in the nature of a punishment but is an equitable measure to restore those discriminated against to their proper economic position had the complained of actions not occurred. This is not to say, however, that the good faith of the company may never be taken into account in considering and determining the proper relief to be granted. Should there exist equitable factors of which the district court may properly take cognizance, and which are supportive of a decision to deny back pay, then innocence and good faith efforts on the part of the employer may be factors to be weighed in the balancing of equities.

Some insight into the proper application of that equitable balancing power may be gained from an examination of the third argument advanced by the appellants, a comparison of § 706(g) with § 10(c) of the National Labor Relations Act, 29 U.S.C. § 160(c). In the case of Phelps Dodge v. N.L.R.B., 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 (1941), which was decided under § 10(c), the Labor Board had ordered reinstatement of a discriminatorily discharged employee together with a full award of back pay, although the employee had not earned wages during the period of his lay-off. In remanding to the Board for modification in light of the principle of mitigation of damages, the Supreme Court stated:

[T]he advantages of a simple rule must be balanced against the importance of taking fair account, in a civilized legal system, of every socially desirable factor in the final judgment. The Board, we believe, overestimates administrative difficulties and underestimates its administrative resourcefulness. Here again we must avoid the rigidities of an either-or-rule. The remedy of back pay, it must be remembered, is entrusted to the Board’s discretion; it is not mechanically compelled by the Act. And in applying its authority over back pay orders, the Board has not used stereotyped formulas but has availed itself of the freedom given it by Congress to attain just results in diverse, complicated situations. (313 U.S. at 198, 61 S.Ct. at 854.)

The primary factor given by the district court in the instant case was prejudice to the interests of the company arising from representations made by the appellants in their status as plaintiffs below. During the early stages of this case, the company moved for Summary Judgment and in replying to that motion, the plaintiffs set out the limits of the relief sought:

It is important to understand the exact nature of the class relief sought by plaintiffs. No money damages are sought for any member of the class not before the court, nor is specific relief in the way of job changes, promotions or the like being sought for any member of the class not before the court. The only relief sought for the class as a whole is that defendants be enjoined from treating the class as a separate group and discriminating against the class as a whole in the future. ...
[T]he matter of specific individual relief for other class members is not before this Court.

Judge Craven in the majority opinion erroneously characterizes the prayer for back pay as merely a tardy request, when as illustrated above, it in fact was a reversal of express representations made three and one-half years prior to the request for additional relief. This situation is plainly distinguishable from Robinson, in which the oral representation by counsel for the plaintiffs that no monetary relief was sought was made at pre-trial conference. The prejudice to Albemarle stemmed not from a failure of defenses, with which this court was concerned in Robinson, but from the unconscionably long delay between the express disclaimer and the unindicated, abrupt reversal of position.

Rule 54(e), Federal Rules of Civil Procedure, provides that the federal courts “shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings,” but this is not the ordinary case of a mere failure to request a specific form of relief ; here there was an express and formal disclaimer of intention to seek that particular remedy. An opposng party should be permitted to rely on such a statement, and to the extent that in relying thereon he has acted to his detriment, Rule 54(c) does not mandate the grant of the contested award.

More importantly, Rule 54(c) is merely the vehicle by which the party is to obtain the “relief to which he is entitled.” The relief and the entitlement thereto are to be determined by the district court under § 706(g), and Rule 54(c) cannot compel the grant of relief which is within the discretion of the district court. The court below did not base its refusal to award back pay on the failure to request such relief pursuant to Rule 8(a), F.R.Civ.P., but by virtue of its discretionary powers under § 706(g); the source of the claim of authority for granting the award sought is the very source relied upon by the court below to deny the request.

I do not find it possible to say that the reasons assigned by the district court in support of its decision not to award back pay show an abuse of discretion, and I would therefore affirm the decision below. Under the circumstances here I would not be willing, in any event, to go beyond a direction to the district court to investigate the propriety of awarding back pay with respect to those named plaintiffs actually before the court since the representations of the appellants in their Memorandum in Opposition to Summary Judgment explicitly indicate an intent to seek affirmative, individual monetary relief only for themselves, a relatively small group, and for no others.

ALBERT V. BRYAN, Senior Circuit Judge

(dissenting in part, and concurring in part):

I would affirm the District Court’s refusal to enjoin the employee testing practices of Albemarle Paper Company. However, I would reverse for its depri-val of the employees of an opportunity to recover back pay, if any, lost by reason of the practice of fixing seniority on a job instead of a plant basis.

One cannot read the District Judge’s opinion without being impressed by its thoroughness, completeness and fairness. Overall, save for the disallowance of back pay just mentioned, I think the opinion honors the dictates of the Civil Rights Act of 1964 and squares with the exactions of the Act as expounded in Griggs v. Duke Power Company, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

While Judge Craven’s recitation of the facts is altogether accurate, I would add this synopsis. A full appraisal of the Court’s ruling calls for review of the steps taken by Albemarle to meet the statute’s demands. Before the effective date of the Civil Rights Act of 1964, Al-bemarle commenced recruitment of black applicants from the nearby high schools for participation in the company’s apprentice program. It also sought applications from among its black employees.

Following Griggs, Albemarle conducted validation studies of its testing requirements. To this end an acknowledged expert in such matters was retained. He gauged his study by the manual, among others, issued August 1, 1970 by the Equal Employment Opportunity Commission, entitled “Guidelines of Employee Selection Procedures”. Pursuant to his directions each employee was given three well-known tests, the Wonderlic, Forms A and B, and the Beta. The tests purported to show the employee’s capability to do the work assigned him. His performance was thereafter rated twice by two different supervisors, who made independent evaluations without knowledge of his test scores.

The test results and job ratings were sent to Purdue University for statistical correlation. The District Judge found:

“35. The results of the validation study, presented both in statistical and graphical form, showed positive correlations of a statistically significant nature for nine of the ten specific job groupings. . . . ”

The expert advised that “the company utilize these tests for its initial hiring”, observing, however, that “no test or set of tests will validate for all jobs.” With this evidence in mind, I look to the errors ascribed in Judge Craven’s opinion to the District Court’s refusal to direct Albemarle to abolish or change its testing procedures.

I. First, I cannot agree that the employer did not validate the tests and relate them to the jobs in all the lines of skilled employment. The District Judge found otherwise, saying: “The group tested was typical of employees in the skilled lines of progression”. This, for me, is a conclusion that the groups tested fairly exemplified the remaining groups and also fairly represented the qualifications existing in all the skilled lines. This reading of his factual findings is reinforced by his later statement: The personnel tests administered at the plant have undergone validation studies and have been proven to be job related”. (Accent added.) This statement, I understand, encompasses all the groups at the plant, whether tested directly or by sample. Such a method of testing in a multiunit organization is, as noted by Judge Craven, approved by the Guidelines of Employee Selection Procedures, supra, § 1607.5.

The breadth of the expert’s survey is described in his report as follows:

“General Summary:

“Inspection of the correlations and charts shown in this report shows quite conclusively that both the Beta and Wonderlic A tests can be reasonably used for both hiring and promotion for most of the jobs in this mill. . The EEOC could not reasonably object to these standards in the light [of] the validation data covered in this report.” (Accent added.)

Secondly, in view of the findings by the Court that validation studies had been applied to the personnel tests and that the tests had been proved to be job related, I cannot join in the determination that discrimination resulted from the absence of “job analyses”. It seems to me that these findings necessarily recognize that the equivalent of “job analysis” was utilized. In rating the employees, the jobs’ features were undeniably considered, for the supervisors were unquestionably familiar with these elements.

Thirdly, also unwarranted, it seems to me, is criticism of the District Court’s acceptance of the company’s practice of “requiring applicants to pass two tests for positions where only one test was validated”. The two are the Beta and Wonderlic. Beta (non-language) measures merely native intelligence, while Wonderlic (verbal) tests reading ability. The District Court justifies its approval of Albemarle’s utilizing both tests because it was a business necessity. The Court found that the complexity of Albe-marle’s newly adopted machinery made reading an absolute requirement for the safe and efficient operation of the machines and called for employees “with a high level of native intelligence”. A personal inspection of the machinery revealed the intricacy to the judge.

Each of these aptitude tests is “demonstrably a reasonable measure of job performance”. Griggs, at 436, 91 S.Ct. at 856. Thus they are their own proof of their validation. My understanding is that a test cannot be declared discriminative if it searches for an indispensable factor of a job. Griggs, supra, at 431, 91 S.Ct. 849.

It does not appear from the District Judge’s findings that low scores on one or both tests would bar all applicants for employment. Decisions on employment in non-technical areas are apparently not made solely upon test results, but include such considerations as experience, references and interviews.

In my judgment the District Judge, in regard to the testing requirements, exercised a cautious solicitude, both for the employees’ entitlements and the employer’s obligations under the Civil Rights Act of 1964. His injunction against a high school education as a job prerequisite and against the use of job seniority instead of plant seniority removed the employees’ sustainable grievances. Ten days were devoted to the hearing of the case — July 26 to August 5, 1971. With this industry and application, along with the knowledge of the rigors of Griggs, as well as of the EEOC guidelines, the District Judge did not, to my mind, omit or deviate in any significant degree from the Act. It must be remembered, throughout, that the three items of the District Judge’s determination just enumerated constitute findings of fact, and I cannot say they are clearly erroneous.

II. Lastly, recovery was asked by the plaintiffs for “the amount of pay which would have accrued to the employees had there been no unlawful practice”. Under the Act, 42 U.S.C. § 2000e-5(g), back pay may be ordered in accompaniment of an injunction — and only then— against an employer who has engaged in “an unlawful employment practice” and has done so “intentionally”.

As Judge Craven notes, the District Court found that “Albemarle has practiced racially discriminatory employment . prior to July 2, 1965 and that the effect of this discrimination had been perpetuated through a job seniority system”. Accordingly the Court issued an injunction, pursuant to the Act, against the maintenance of this discrimination, terming it “an unlawful employment practice” and concluding that it had been committed “intentionally”. No objection was made by the employer to this finding and conclusion, and no appeal taken from the injunctive order. Indeed, in the oral argument of the appeal the appellee-defendants conceded that the District Judge had indeed stated this conclusion on “intentionally”.

For this reason I think back pay lost by an employee through the company’s resort to job-seniority should be recovered. Of course, the reimbursable loss must be proved to be the direct result of the invidious practice and, as Judge Craven admonishes, the grant of monetary relief is not to exceed the “damages which are actually suffered”.

Conclusion

In sum, as set forth in Part I hereof, I dissent from Part I of Judge Craven’s opinion; but I concur with the award, in his Part II, of back pay insofar as it is granted for loss occasioned by the job seniority practice, as explained in my Part II.

      . It was demonstrated in plaintiff’s exhibits that on the Wonderlic Series 96 percent of whites passed as opposed to 64 percent of blacks. This corresponds with . the national average as determined in a study by the authors of the test. Negro Norms, A Study of 38,452 Job Applicants for Affirmative Action Programs, E. F. Wonderlic & Assoc., Inc. (1970).

      . “[T]he applicable test is not merely whether there exists a business purpose for adhering to a challenged practice. The test is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business. Thus, the business purpose must be sufficiently compelling to override any racial impact; the challenged practice must effectively carry out the business purpose it is alleged to serve; and there must be available no acceptable alternative policies or practices which would better accomplish the business purpose advanced, or accomplish it equally well with a lesser differential impact.”
      Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir. 1971). See also, Note, Employment Testing: The Aftermath of Griggs v. Duke Power Company, 72 Colum.L.Rev. 900, 908 (1972).

      . § 703(a) (2), (h) provides in relevant part:
      “Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer ... to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin.” 42 U.S.C.A. § 2000e-2(h).

      . The appellants also question the validity of the validation study because the employees tested were primarily from higher level, rather than entry level, positions. As pointed out by the EEOC guidelines, 29 C.F.R. § 1607.4(c)(1) (1970), such a validation technique is permissible only where new employees will progress to the higher level “within a reasonable time and in a great majority of cases.” As stated by Cooper & Sobol, Seniority and Testing under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion, 82 Harv.L.Rev. 1598, 1649 (1969):
      In addition, the problems inherent in test use are compounded by the fact that the higher level jobs may not be reached for several years, during which time an employee may improve his capabilities. This possibility seems particularly likely in the case of an individual whose potential has been artificially suppressed through discrimination, in education and otherwise. In order for a promotability interest to justify test use, therefore, it is essential that the test have been properly evaluated and shown to be predictive of performance at some job level to which promotions can be expected in the reasonable future.
      In Griggs the Court failed to reach the question of whether a testing procedure which takes into account higher level job requirements is permissible. 401 U.S. at 432, 91 S.Ct. 849. We likewise fail to reach this question because of insufficient evidence below as to the time in which it takes an employee to progress to higher level jobs.

      . For examples of such special circumstances said to justify refusal of a back pay award, see Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002 (9th Cir., June 20, 1972); Le Blanc v. Southern Bell Tel. & Tel. Co., 333 F. Supp. 602, 610-611 (E.D.La.1971), aff’d, per curiam, 460 F.2d 1228 (5th Cir. 1972).

      . Lea v. Cone Mills, 438 F.2d 86, 88 (4 Cir. 1971).

      . Accord, Wooten v. Moore, 400 F.2d 239, 242 (4 Cir. 1968).

      . Title II, 42 U.S.C. § 2000a-3(b) :
      (b) In any action commenced pursuant to this subehapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, and the United States shall be liable for costs the same as a private person.
      Title VII, 42 U.S.C. § 2000e-5(k) :
      (k) In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the samo as a private person.

      . The authorities generally deal with injunctive relief as within the discretion of the district courts. E. g. Sprogis v. United Air Lines, 444 F.2d 1194, 1202 (7 Cir. 1971).

      . Lea v. Cone Mills, 438 F.2d 86, 88 (4 Cir. 1971). See, Jenkins v. United Gas Corp., 400 F.2d 28, 32 (5 Cir. 1968). Developments in the Law — Employment Discrimination and Title VII of the Civil Rights Act of 1904, 84 Harv.L.Rev. 1109, 1254 (1971).

      . See, Austin v. Reynolds Metals, 327 F.Supp. 1145, 1153 (E.D.Va.1970).

      . E. g., Schaeffer v. San Diego Yellow Cabs, 462 F.2d 1002, 1006 (9 Cir. 1972); LeBlanc v. Southern Bell Tel. & Tel., 460 F.2d 1228, 1229 (5 Cir. 1972): United States v. Dillon Supply Co., 429 F.2d 800, 804 (4 Cir. 1970); Johnson v. Georgia Highway Express, 417 F.2d 1122, 1125 (5 Cir. 1969). Developments in the Law — Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1265 (1971).

      . LeBlanc v. Southern Bell Tel. & Tel., 460 F.2d 1228, 1229 (5 Cir. 1972).

      . The Supreme Court has defined “discretion” as follows:
      The term “discretion” denotes the absence of a hard and fast rule. . When invoked as a guide to judicial action it means a sound discretion, that is to say, a discretion exercised not arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result.
      Langnes v. Green, 282 U.S. 531, 541, 51 S.Ct. 243, 247, 75 L.Ed. 520 (1931).

      . United States v. Dillon Supply Co., 429 F.2d 800, 804 (4 Cir. 1970) :
      The government has urged us to remand with directions to enter specific injunctive relief. After careful consideration we have concluded to deny this request. The fashioning of effective une! appropriate injunctive relief depends in part on the discretion of the district court. The function of the courts of appeal is to review the relief which the district court grants in light of finding's and the supporting record and to determine if there has been an abuse of discretion.

      . In 1963 the company discontinued the use of the Bennett Mechanical Comprehension Test, which is regarded to be racially biased (See Cooper and Sobol, Seniority and Testing Under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion, 82 Harv.L.Kev. 1598, 1641 n. 16 (1969)) in favor of Wonderlic A & B tests.

      . 444 F.2d 791 at 802, 804.

      . See, Schaeffer v. San Diego Yellow Cabs, 462 F.2d 1002, 1006-1007 (9 Cir. 1972).

      . The answer was filed on November 22, 1966.

      . The request was first communicated to the company on June 4, 1970.

      . Illustrations of the detriment arising from the reliance of the defendants upon the express disclaimer by the plaintiffs of their intention to seek back pay for members of the class generally, were argued before the district court at pretrial conferences: (1) The extensive period of time taken for prosecution of the suit exposed the defendants to the unexpected hazard of a potentially enormous award, unavailable for consideration during their continued efforts to arrive at a settlement, and which threatened the financial viability of the defendant paper mill. (2) During the hiatus with respect to the back pay claim, the paper mill was sold by the defendant Ethyl Corp. to the defendant Iloerner-Waldorf Corp., with the transfer agreement taking express notice of the pend-ency of suit, a strong indication of the impact the status of that suit had upon the deliberations of the principals. (3) The inordinately long delay tended to preclude the defendants from adequately preparing a defense to individual claims, due to the impossibility or impracticality of deposing witnesses and claimants nearly five years after the occurrences of events of which plaintiffs complain.

      . Rental Development Corp. v. Lavery, 304 F.2d 839, 842 (9 Cir. 1962).


source: Caselaw Access Project

author: DYER, Circuit Judge:

license: Public Domain

text:
    G. H. JETT and Bart B. Chamberlain, Jr., Plaintiffs-Appellees, v. Albert Barnes ZINK, as individual trustee for Sterling Oil of Oklahoma, Inc., Defendant, Sterling Oil of Oklahoma, Inc., et al., Defendants-Appellants. G. H. JETT and Bart B. Chamberlain, Jr., Plaintiffs-Third Party PlaintiffsAppellees, v. Albert Barnes ZINK, as individual trustee for Sterling Oil of Oklahoma, Inc., Defendant, W. H. James, Jr., etc., et al., Defendants-Appellants, Cornwall Trading Corporation et al., Third Party Defendants-Appellees. Albert Barnes ZINK, as individual trustee for Sterling Oil of Oklahoma, Inc., Plaintiff, W. H. James, Jr., etc., et al., Plaintiffs-Appellants, v. G. H. JETT and Bart B. Chamberlain, Jr., Defendants-Third Party PlaintiffsAppellees, Cornwall Trading Corporation et al., Third Party Defendants-Appellees.
    Nos. 71-2745, 72-1637.
    United States Court of Appeals, Fifth Circuit.
    Feb. 9, 1973.
    Rehearing and Rehearing En Banc Denied March 30, 1973.

      Willis C. Darby, Jr., Mobile, Ala., for appellants.
    Harold Parkman, Charles B. Arendall, Jr., Mobile, Ala., for Chamberlain and Citronelle.
    Lester M. Bridgeman, Washington, D. C., Wm. DeWitt Reams, Lewis G. Odom, Jr., Montgomery, Ala., M. A. Marsal, Mobile, Ala., for Chamberlain and others.
    Sam W. Pipes, III, Mobile, Ala., for Pack and Kahn.
    Joseph M. Matranga, Mobile, Ala., for G. H. Jett.
    Champ Lyons, Montgomery, Ala., for Equity and Cornwall.
    C. A. L. Johnstone, Jr., Mobile, Ala., for James E. Kemp, Four States Drilling Co., and Big Four Oil Co.
    Albert J. Tully, Mobile, Ala., for Zink.
    Before COLEMAN, AINSWORTH and DYER, Circuit Judges,
   DYER, Circuit Judge:

These appeals are before us for the third and hopefully final time in the protracted litigation over the purchase of certain oil leases and a gathering system in or near Mobile County, Alabama. As in each of the two previous appeals, the questions presented do not concern the merits of the dispute, but instead ask us to decide the forum — state or federal — in which the “main” battle should properly be joined. We find that the district court’s refusal to enjoin the pending state court proceeding and its recognition of the res judicata effect of that court’s final judgment were not erroneous. Therefore we affirm the judgment of the district court in both appeals.

When this case was first before this court we described the state of the litigation as it existed in early 1964 as “convoluted.” Jett v. Zink, 5 Cir. 1966, 362 F.2d 723, cert. denied, 385 U.S. 987, 87 S.Ct. 600, 17 L.Ed.2d 448. The ensuing eight years have clarified little except Chamberlain’s unabated desire to have the case heard in a state court and Sterling Oil Company’s equally strong preference for a federal court. To understand our resolution of these competing interests in the two present appeals we find it necessary to repeat a small portion of the voluminous procedural history of this case.

I. Factual Background

In 1963 Jett and Chamberlain brought suit against Sterling Oil in the Circuit Court of Mobile County, Alabama, seeking a declaratory judgment as to the validity of the “Sterling Agreement,” or, in the alternative, a favorable construction of that agreement. (This case will be referred to as the Jett-Chamberlain action). There being complete diversity among the parties and an adequate amount in controversy, Sterling Oil removed the case to federal court. Soon thereafter, petitions were filed on behalf of Pack, Kahn, and Geo. H. Jett Drilling Company, among others, to intervene in the removed action; Jett and Chamberlain then moved to add these parties as plaintiffs, and, based on the anticipated granting of all these motions, moved to remand for lack of diversity jurisdiction. While the motions were pending, the three intervenors had a suit filed on their behalf, primarily against Jett, Chamberlain, and Sterling Oil, in the Circuit Court of Mobile County, Alabama. (This case will be referred to as the Pack-Kahn action). The requested relief was identical to that sought in the Jett-Chamberlain action. Despite an apparent absence of complete diversity in the Pack-Kahn action, Sterling Oil removed it, alleging fraudulent joinder and the existence of a separable controversy. Pack and Kahn then had motions filed to remand. On January 6, 1964, the district court denied the petitions to intervene and the motions to remand, and Jett, Chamberlain, Pack, and Kahn appealed.

Although the exact scope of our opinion disposing of these appeals is questioned it clearly decided two things. First, in the Jett-Chamberlain appeal we said that, since none of the non-party petitioners was an indispensable party, the district court’s refusal to remand the case was proper. Secondly, in the Pack-Kahn appeal we held that, on the state of the record as it existed then, there was no clear and persuasive evidence of fraud inherent in the bringing of that action while motions to intervene in the Jett-Chamberlain action were still pending; we thus ordered the Pack-Kahn action remanded.

With the decision made that the federal forum was appropriate for one action and inappropriate for the other, the opinion concluded:

The result is unfortunate in that it leaves the same issues pending simultaneously in a state and federal court but we see no escape from our conclusion. The parties here brought it upon themselves in their battle over the forum in which to try their case.

362 F.2d at 730.

As all parties now concede, our decision signaled the start of a race to the courthouse. Despite our signal, which was supposed to remove the brakes from the wheels of justice, it took an additional five years for either of the cases to get in gear. ■ The interim saw a great deal in the way of sparks — extensive discovery, another unsuccessful removal, and interminable procedural squabbling —but little motion down the road to a decision. Finally, in February 1971, the district court, on its own motion, began pre-trial proceedings that were intended to lead to a federal trial beginning July-12, 1971. In response to this federal warm-up, Chamberlain’s group filed in the state court a motion to have the Pack-Kahn action set for trial before the Jett-Chamberlain action; it ultimately was set for trial May 4, 1971. Sterling Oil in turn reacted to this development on April 15, 1971, by asking the district court for a preliminary and permanent injunction against the state court proceeding. On April 20, 1971, the district court heard argument on the motion for preliminary injunction and on April 28, 1971, denied relief. Sterling Oil appealed this denial, but was unsuccessful in obtaining an injunction pending appeal from either the district court or this court. Subsequently this appeal was dismissed for lack of prosecution.

With the final impediment removed, the state court began six weeks of hearings in the first phase of its trial — determining the validity vel non of the Sterling Agreement — and on July 10, 1971, that court entered an interlocutory decree finding it valid. Having made extensive, although at that point unsatisfactory, progress in the resolution of several substantial questions and having invested considerable time, Chamberlain’s group on July 12, 1971, the day the federal trial was to begin, filed a motion in the district court to stay the federal proceedings pending a final determination in the state court. After hearings on July 12 and 14, the district court granted that motion. Additionally, at the hearing on July 14, Sterling Oil’s petition for permanent injunction filed on April 15, 1971, was submitted to the court without further argument; this petition was denied July 16, 1971. Sterling Oil’s appeal from this denial is before us as appeal number 71-2745.

Free of the complications that a simultaneous federal trial would have caused, the state court reconvened on August 2, 1971, for phase two of its trial. After weeks of hearings, that court issued its final decree November 4, 1971. Withdrawing its interlocutory decree of July 10, it found the Sterling Agreement to be unenforceable, but subsequently held that Sterling Oil was entitled to a finders fee and reasonable compensation for services totaling in excess of $500,000. This decree was incorporated into the pleadings of the Jett-Chamberlain action and on January 27, 1972, the district court granted the Chamberlain group’s motion for summary judgment based on the res judicata effect of the state court decree. Sterling Oil’s appeal from the summary judgment is before us as appeal number 72-1637.

II. Number 71-27b5

Separated from the chaff, Sterling Oil’s argument essentially is that its right to proceed in a federal forum has been frustrated by the district court’s refusing to halt the pending state court action. Recognizing that in order to be entitled to such an injunction it must come within the provisions of 28 U.S.C. A. § 2283, Sterling Oil has advanced four theories in support of its position. Our examination of these theories, however, must proceed from a proper awareness of the potential state-federal conflicts generated by that section and its predecessors, as recently explained by the Supreme Court in Atlantic C.L.R.R. v. Brotherhood of Locomotive Engineers, 1970, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234. The Court there cautioned against loose construction of the exceptions to section 2283, and stated that any doubts about the propriety of such a federal injunction should be resolved in favor of permitting the state courts to proceed, “with relief from error, if any, through the state appellate courts and ultimately this Court.” 398 U.S. at 287, 90 S.Ct. at 1743. This statement is particularly relevant where, as is the case here, the final state judgment is currently on appeal in the Alabama state court system.

A. Fraud

Because no Act of Congress expressly authorizes an injunction in this situation, Sterling Oil has relied primarily upon qualifying under the “where necessary in aid of its jurisdiction” language, one of the other two exceptions to section 2283. It first argues that the Pack-Kahn action, filed after the district court had obtained jurisdiction over the Jett-Chamberlain action by removal, raised identical issues and was a fraudulent attempt by Chamberlain to defeat federal jurisdiction. Because a federal district court after removal may enjoin further state proceedings in that action by a plaintiff (see Lowe v. Jacobs, 5 Cir. 1957, 243 F.2d 432, cert. denied, 355 U.S. 842, 78 S.Ct. 65, 2 L.Ed.2d 52; Peters v. Standard Oil Co., 5 Cir. 1949, 174 F.2d 162, and Armstrong v. Alliance Trust Co., 5 Cir. 1942, 126 F.2d 164), Sterling Oil argues that a federal court should enjoin a state proceeding fraudulently brought by the original plaintiff but in the name of third persons, if that action is in fact merely an attempt to .litigate in state court the same issues already removed.

The evidence in the record upon which Sterling Oil bases its allegations of fraud is of two kinds. First there are depositions of Pack, Kahn, and Jett which show that, although they were financially interested in the dispute with Sterling Oil, they did not follow the litigation closely and did not originate the idea of either intervening in the JettChamberlain action in federal court or bringing the Pack-Kahn action in state court. Instead each individual stated that his interests were similar to Chamberlain’s and that he had given Chamberlain general authority to act on his behalf in the litigation. The second kind of evidence is documents showing that Chamberlain acted on this authority to retain counsel for his “group” and to have that counsel file the Pack-Kahn action.

At two different times in 1966 we had occasion to consider partially developed allegations of fraud in the Pack-Kahn action. On the first appeal, confronted only with the fact that the action had been filed while the plaintiffs’ petitions to intervene were still pending, we invoked the hornbook rule that “fraud is never presumed but must be established by clear and persuasive evidence” and concluded that no fraud had been proved. After the Supreme Court had denied certiorari on that appeal, Sterling Oil moved this court to recall its mandate, claiming that the just completed Jett deposition raised “serious questions” as to the true motivation behind the bringing of the Pack-Kahn action. This motion was denied.

Sterling Oil now says that all the evidence of fraud is before us and asserts that “the admissions of Pack, Kahn and Jett conclusively establish that the only purpose of the Pack-Kahn action was to deprive Sterling Oil of Sterling’s federally created right to have the Jett-Chamberlain-Sterling controversy decided in a federal forum.” We disagree. As we stated on the first appeal:

[T]here was good reason for bringing the second suit in order to assure the plaintiffs therein [Pack, Kahn, and Geo. H. Jett Drilling Company] a day in court in the event that they were not admitted as parties plaintiff in the earlier suit, as indeed they were not. The question is whether they have stated a cause of action against any of the defendants whose presence in the litigation would destroy complete diversity of citizenship of the parties. We think they have.

362 F.2d at 729-730. The now apparent fact that Chamberlain controlled both pieces of litigation is cause for serious concern, but it does not constitute “clear and persuasive evidence” of fraud. Chamberlain had been given authority to act for Pack, Kahn, and Jett and he was justified in bringing a suit in their names to protect their interests.

B. Quasi In Rem Jurisdiction

Sterling Oil’s second ground for seeking an injunction as “necessary in aid of [the federal court’s] jurisdiction” is its argument that the Jett-Chamberlain action is quasi in rem and that once the federal court took jurisdiction of that case, it was required to protect it by enjoining a state action which raised identical issues. See generally Pacific Indemnity Co. v. Acel Delivery Service, Inc., 5 Cir. 1970, 432 F.2d 952, cert. denied, 1971, 401 U.S. 955, 91 S.Ct. 973, 28 L.Ed.2d 238. Sterling Oil contends that the action is one to settle title to and rights in certain property, that it asked for an accounting in its counterclaim and later has requested specific performance, and that the whole agreement gave it an equitable lien and imposed a constructive trust on Jett and Chamberlain.

To dispose of this quasi in rem contention we need only look to the first appeal in this case and to the assertions of the parties before the court at that time. Although the legal questions there centered on the indispensability of certain parties, much of the argument was directed at determining whether the Jett-Chamberlain action was in rem, quasi in rem, or in personam. In an attempt to defeat the arguments as to indispensability of parties, Sterling argued throughout its briefs that the Sterling Agreement was carefully drawn to make the obligations of Jett and Chamberlain personal obligations, that the Agreement was a mere contract to pay money and transfer oil royalties, and that the Agreement clearly stated that it did not operate as a conveyance to Sterling of any interest in the leases or any other estate in land. Jett and Chamberlain, on the other hand, maintained that the controversy unquestionably concerned an interest in land. From this Sterling now argues that, because we stated in the first appeal that the Sterling Agreement bound Jett and Chamberlain to convey “certain ‘overriding royalties’ and other interests in properties,” we rejected its earlier contentions that the action was in personam, 362 F.2d at 727; thus it concludes that it is not precluded from adopting a new argument after its initial argument was rejected. We find little merit in this contention.

There is nothing in our first opinion which would indicate that we rejected the in personam theory advanced by Sterling Oil. Sterling Oil argues that we held that the Sterling Agreement purported to convey interests in real property; actually we held that the Agreement bound Jett and Chamberlain to convey such interests at some later date. If our earlier decision can be read to have any effect on the question of the status of the Jett-Chamberlain action, it would be that the opinion is more consistent with Sterling Oil’s first line of argument than it is with Sterling Oil’s new position. It is inconceivable that this court would have allowed the Paek-Kahn action to be remanded if, after extensive argument on the quasi in rem-in personam argument, it in fact had concluded that the action was one which required the exclusive jurisdiction of the federal court. Sterling Oil has argued one position before this court and now, after obtaining the benefit of that position, has advanced an admittedly inconsistent position in hopes of prevailing again. We hold that it is precluded from utilizing such a tactic. Cf. Scarano v. Central R. Co., 3 Cir. 1953, 203 F.2d 510; Iselin v. La Coste, 5 Cir. 1945, 147 F.2d 791; Texas Co. v. Gulf Refining Co., 5 Cir. 1928, 26 F.2d 394, cert. denied, 278 U.S. 625, 49 S.Ct. 27, 73 L.Ed. 545.

C. Partial Summary Judgment

As an alternative basis for reversal Sterling Oil argues that, because of a partial summary judgment entered by the district court on November 3, 1966, in the Jett-Chamberlain action, an injunction should have been issued “to protect or effectuate its judgment.” We hold that this judgment is not within the scope of the third exception of section 2283.

Jett and Chamberlain’s original complaint alleged that the Sterling Agreement was null and void because Sterling Oil had not qualified to do business in Alabama at the time the Agreement was entered into. Alternatively, they asked for a declaratory judgment construing the contract favorably to them. On August 19, 1966, Sterling Oil moved for a partial summary judgment on the sole question whether it had qualified to do business at the proper time; it also asked for a “declaratory judgment that the Sterling Agreement is a valid existing agreement . . . .” This motion was granted November 3, 1966, and the court’s order found the Agreement to be a “valid enforceable and subsisting agreement.” That order, however, was supplemented by a new order on November 15, 1966, which explained that the court’s earlier order was only intended to dispose of the question of Sterling’s qualifying to do business. The November 15 order continued:

in using such language [as to the validity of the Agreement] the court had no intention of determining the meaning or enforceability vel non of any of the specific provisions of the Sterling Agreement which are the subject of controversy between the parties to this cause.

If any doubt remained as to the limited scope of this order, it was removed on March 11, 1971, when the district court denied Sterling Oil’s motion, based on the partial summary judgment, to strike amendments to Jett and Chamberlain’s complaint and answer to counterclaim. These amendments, filed April 17, 1968, questioned the validity of the Sterling Agreement on grounds of fraud, misrepresentation, duress, and business compulsion. Thus, the district court refused to give its 1966 order final res judicata effect on the question of the validity of the Sterling Agreement. That it was not necessary to protect this “judgment” by an injunction is also apparent from the state of the record on July 16, 1971, the date the injunction was denied. ' At that time both the district court and the state court had found the Sterling Agreement valid insofar as Sterling Oil’s having qualified to do business was concerned. No conflict existed and, in the absence of any other reason for protecting the partial summary judgment, the district court had rendered no judgment that warranted protection under section 2283.

D. Pendency of Two Suits

Finally, Sterling Oil contends that, under Alabama law, the pendency of both a state and a federal case involving the same parties and issues is vexatious as a matter of law and argues that this entitles it to an injunction of the state proceeding. Regardless of the Alabama law on this question, it is clear under federal law that the dual court structure of our federal system creates a situation in which the same case can be heard simultaneously in a state court and a federal court. See e. g., Kline v. Burke Construction Co., 1922, 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226. We recognized that this was such a case in our first opinion. 362 F.2d at 730. Since the determination whether a federal injunction of a state proceeding should issue under section 2283 must be made by reference to federal law, we conclude that two such actions can proceed concurrently so long as it has not been demonstrated that either is in rem or quasi in rem.

Taken separately, none of Sterling Oil’s theories properly entitle it to an injunction against the state proceeding; even when viewed collectively they fail to establish the impropriety of the state action necessary to overcome the restrictive construction placed on section 2283 by Atlantic C.L.R.R., supra.

III. 72-1637

Sterling Oil has advanced only one argument as to why, with the JettChamberlain action stayed and the Pack-Kahn action free to proceed, a final judgment in the latter should not be res judicata in the former. It contends that the district court considered the July 10, 1971, order of the state court res judicata and that the parties agreed on July 14, 1971, to raise no “new issues” in the state court if that action were allowed to continue. This statement, while correct, does not aid Sterling Oil. The July 10 state court order was virtually identical to the November 15, 1966, partial summary judgment in the district court, and dealt with Sterling Oil’s having qualified to do business. While withdrawn by the state court’s final judgment, it was not contradicted; instead the Sterling Agreement was invalidated on grounds which had already been incorporated in the federal pleadings prior to July 14, 1971 and which were therefore not “new” in terms of the parties’ agreement. Because it was conceded that the PackKahn action raised issues which were identical to those raised in the Jett-Chamberlain action, we hold that the district court correctly granted summary judgment in the Jett-Chamberlain action based on the final state judgment in the Pack-Kahn action.

Number 71-2745 is dismissed in part and affirmed in part, and number 72-1637 is affirmed.

      . The merits of the dispute, to the extent that they concern us, are adequately set out in our 1966 opinion. 362 F.2d 723.

      . The Sterling Agreement entered into by Jett, Chamberlain, and Sterling Oil attempted to define the interests of these parties in an oil field purchased by Jett and Chamberlain. The Agreement is described in greater detail in 362 F.2d at 727.

      . Sterling Oil also filed a suit against Jett and Chamberlain in federal court asking for various forms of relief under the Sterling Agreement that amounted to the same relief sought in its counterclaim in the Jett-Chamberlain action.

      . The term “Chamberlain’s group” has reference to the apparent control given Chamberlain over the two related cases by virtually all interested persons, except of course Sterling Oil. This control is apparent from the deposition of Pack, Kahn, and Jett, and from an agreement entered into between Chamberlain, Cornwall, Citronelle Properties, Inc., and The Equity Corporation. See Part II A of this opinion infra.

      . Sterling Oil also applied for prohibitory relief in the Alabama Supreme Court. After a hearing on April 30, 1971, that application was denied on May 3, 1971.

      . Sterling Oil later amended its Notice of Appeal to include the district court’s order of July 14, 1971, which granted a stay of the federal proceedings. See footnote 12 infra.

      . The federal action filed by Sterling Oil (see footnote 3 supra) had been consolidated with the Jett-Chamberlain action for trial and was included within the scope of the district court’s order granting summary judgment.

      . 28 U.S.C.A. § 2283 provides:
      A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of it jurisdiction, or to protect or effectuate its judgments.

      . Despite indications in the record that some other parties had intended to join as plaintiffs in the Pack-Kahn action, the only named plaintiffs were Pack, Kahn, and Geo. H. Jett Drilling Company, which was controlled 100% by Jett.

      . This same counsel also apparently prepared and filed the Jett-Chamberlain action, prepared and filed the petitions to intervene in that action, and assisted in the preparation of the answer of several defendants to the Pack-Kahn action. All of these services were billed to Chamberlain.

      . Sterling Oil cites for this proposition, Watson v. Mobile & O.R.R., 1937, 233 Ala. 690, 173 So. 43, which states that the pendency of the federal case may be pled in abatement in the state action. See also Fegaro v. South Central Bell, 1971, 287 Ala. 407, 252 So.2d 66.

      . Sterling Oil has also attempted to attack, by. amended notice of appeal in No. 71-2745, the validity of the district court’s order of July 14, 1971, staying the Jett-Chamberlain action. See footnote 6 supra. In addition to there being a serious question about whether the order was appealable (see Jackson Brewing Co. v. Clarke, 5 Cir. 1962, 303 F.2d 844, cert. denied, 371 U.S. 891, 83 S.Ct. 190, 9 L.Ed.2d 124), Sterling Oil’s amended notice of appeal was filed far beyond the time limit allowed for such notices by Fed.R.App.P. 4(a). The order was entered on July 14, 1971, but the amended notice of appeal was not filed until November 1, 1971. As such this aspect of appeal No. 71-2745 is dismissed.
      In its argument on the propriety of this stay order, Sterling Oil made an oblique reference to the Federal Arbitration Act, 9 U.S.C.A. § 1 et seq. To the extent that this argument is addressed to the stay order, the above dismissal disposes of it. If, however, Sterling Oil is arguing that this Act supports in some way its request for an injunction, we need only point out that the Act provides no independent right to a federal forum. See Ballantine Books, Inc. v. Capital Distributing Co., 2 Cir. 1962, 302 F.2d 17; Metro Industrial Painting Corp. v. Terminal Construction Co., 2 Cir. 1961, 287 F.2d 382, cert. denied, 368 U.S. 817, 82 S.Ct. 31, 7 L.Ed.2d 24; Robert Lawrence Co. v. Devonshire Fabrics, Inc., 2 Cir. 1959, 271 F.2d 402, cert. granted, 1960, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618, petition for cert. dismissed per stipulation, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37.


author: CRAVEN, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Alfred ERDOS, Appellant.
    No. 72-1328.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 30, 1972.
    Decided Feb. 14, 1973.

      William E. McDaniels and Aubrey M. Daniel, III, Washington, D. C. (Williams, Connolly & Califano, Washington, D. C., on brief), for appellant.
    Justin W. Williams, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and CRAVEN and WIDENER, Circuit Judges.
   CRAVEN, Circuit Judge:

On August 30, 1971, in the American Embassy in the new Republic of Equatorial Guinea, Alfred Erdos killed Donald Leahy. Both were American citizens and embassy employees, with Erdos occupying the position of senior diplomat or charge d’affairs.

Returned to the United States, Erdos was tried and convicted of voluntary manslaughter in the District Court for the Eastern District of Virginia. On appeal, the more important issues raised are whether the district court: (1) had jurisdiction to try Erdos for a crime occurring within an American embassy located in(a foreign country; (2) erred in holding that venue lay in the Eastern District of Virginia rather than the District of Massachusetts where the plane bearing Erdos first landed; and (3) improperly curtailed the cross-examination of a psychiatrist from a psychiatric treatise. We conclude there was jurisdiction and venue, and that the district judge’s error in curtailing cross-examination was not sufficiently prejudicial to require reversal. We have also considered the other 13 assigned points of error and find them to be without merit. Accordingly, the judgment below will be affirmed.

Jurisdiction

The district court based jurisdiction upon 18 U.S.C. § 7, which provides in part:

The term “special maritime and territorial jurisdiction of the United States”, as used in this title, includes:
(3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building. [Emphasis added].

The power of Congress to lawfully proscribe the killing of an American citizen by another American citizen within a diplomatic compound located in a foreign country is, we think, beyond question. U.S.Const, art. III, § 2; United States v. Flores, 289 U.S. 137, 146-147, 53 S.Ct. 580, 77 L.Ed. 1086 (1933); United States v. Bowman, 260 U.S. 94, 96-98, 43 S.Ct. 39, 67 L.Ed. 149 (1922). The-problem is not one of power but of intention, i. e., statutory construction. Erdos contends that the district court lacked jurisdiction to try him for an offense committed outside the territorial limits of the United States because Congress has not exercised its constitutional power so as to extend American criminal court jurisdiction to the United States Embassy in Equatorial Guinea. It is urged that 18 U.S.C. § 7(3) must be read to apply only to areas within the geographical boundaries of «the United States and may not be given extraterritorial effect.

The embassy in question is leased by the United States from a private citizen of the new Republic of Equatorial Guinea. This lease agreement does not itself defeat criminal jurisdiction, however, since fee simple “ownership” of the property by the United States is not a prerequisite to such jurisdiction. As the court in United States v. Archer, 51 F.Supp. 708 (S.D.Cal.1943), said at 709:

A consulate is, ordinarily, a building owned by the Government of the United States. And although it be not owned by the United States, it is a part of the territory of the United States of America.

In Bowman, supra, 260 U.S. at 98-99, 43 S.Ct. 39, both public and private ships on the high seas were characterized as “constructively” a part of the territory of the United States. Subsection (3) is not framed in the language of conveyancing. The test, as to property within or without the United States, it one of practical usage and dominion exercised over the embassy or other federal establishment by the United States government.

The much harder question is whether the third phrase of § 7(3) (dealing with places acquired by the federal government with the consent of the states and thus presumably within the territorial boundaries of the United States) modifies and limits the more general coverage of the preceding two phrases. The meaning is not perfectly clear. Nor is the legislative history. Such an interpretation is not implausible, and, indeed, it is possible that when the statute was enacted the attention of the Congress was not in the slightest focused on extraterritorial jurisdiction. But if so, why the broad general language of phrases one and two — wholly unnecessary to implement the establishment of forts, dockyards and other needful buildings within the states plainly accomplished by phrase three ?

Where the power of the Congress is clear, and the language of exercise is broad, we perceive no duty to construe a statute narrowly. The first two phrases connected by the conjunctive “and” relate to and modify each other. The result is to create a jurisdictional category: lands reserved or acquired for the use of the United States and under its exclusive or concurrent jurisdiction. It is only the third phrase, separated from the first two by a comma and the disjunctive “or,” that limits jurisdiction to places acquired (within the United States presumably) by the consent of state legislatures. We think the third phrase is independent of and does not modify the first two, and so read, the sentence describes two kinds of places or lands within the “special” jurisdiction of the United States.

We hold that 18 U.S.C. § 7(3) is a proper grant of “special” territorial jurisdiction embracing an embassy in a foreign country acquired for the use of the United States and under its concurrent jurisdiction. We further hold that 18 U.S.C. § 1112 is a specific grant of subject matter jurisdiction with respect to manslaughter committed at a place within the special maritime and territorial jurisdiction of the United States.

Venue

Venue, in cases of crimes committed outside any district, is controlled by 18 U.S.C. § 3238, which provides in part that venue shall be in the district within the United States where the offender “is arrested or first brought.” The statute has a long history. It was first enacted in 1790, amended in 1825, again in 1874, and most recently in 1963. In its original form, the statute used the word “apprehended.” The 1825 version used the words “first apprehended.” In the 1874 version the word “found” was substituted for the words “first apprehended,” but in the latest reenactment, the Congress reverted to the original idea of restraint and substituted the word “arrested” for the word “found.” The legislative history of the 1963 version explains that “The term ‘found’ in most cases means ‘arrested.’ ” 1963 U.S. Code Cong. & Ad.News 660.

The various versions of the statute have been construed time and again. E. g., United States v. Provoo, 215 F.2d 531, 537 (2d Cir. 1954); United States v. Townsend, 219 F. 761, 762 (2d Cir. 1915). The eases seem to agree, whether construing the words “found,” “apprehended,” or “first apprehended,” that'the Congress had restraint in mind. We think the phrase in the current version of the statute that venue shall be in the district in which the offender “is arrested or is first brought” means simply “arrested” — i. e., that venue is in that district within the United States where the offender is first restrained of his liberty in connection with the offense charged. Obviously, “first brought” could plausibly be interpreted to mean what it says, so that wherever an offender (traveling by air) touches down in the United States, that is the place where trial must be had. But it is settled otherwise. “First brought” within the context of the statute means first brought in custody with liberty restrained. United States v. Ross, 439 F.2d 1355, 1358 (9th Cir. 1971); Provoo, supra, at 537; Chandler v. United States, 171 F.2d 921, 927, 932-933 (1st Cir. 1948); Kerr v. Shine, 136 F. 61, 63-65 (9th Cir. 1905).

The commercial airplane in which Erdos returned to the United States was scheduled to make its initial landing in the United States at Dulles International Airport — located in the Eastern District of Virginia. Instead, it made an unscheduled intermediate stop in Boston, Massachusetts.

Erdos contends that the District of Massachusetts is the district with exclusive venue because that is the district into which he was “first brought.” He would be correct but for the judicial gloss, to which we have adverted, that has long since been applied to the statute.

The district court found as a fact that Erdos was not in custody on the return flight to the United States, nor in Boston, stating that “all the evidence was he was free to go where he wanted to,” even when the plane landed at Dulles. The district court, consequently, determined that Erdos was “first found” at Dulles when he was served with the complaint and summons upon his arrival there. For reasons previously stated, we read “first found” as meaning arrested. But it does not matter, for the record is clear that, if not arrested at Dulles, Erdos was subsequently arrested at Alexandria, also within the jurisdiction of the district court.

Findings of fact by a district court in a criminal case may not be disturbed on appeal unless they are clearly erroneous. Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963); United States v. Graves, 428 F.2d 196, 200 (5th Cir. 1970). After carefully examining the record we believe there was ample evidence from which the district court could find that Erdos was not in custody within the meaning of 18 U.S.C. § 3238 when his flight landed in Boston and, therefore, that venue was appropriate in the Eastern District of Virginia since that was the district in which he was first arrested.

Cross-Examination

At trial Erdos admitted killing Leahy and pleaded insanity as his defense. In furtherance of his defense, Erdos called as witnesses four psychiatric nurses who had attended him during his hospitalization and two psychiatrists. In rebuttal the government called two court-appointed psychiatrists, both of whom testified on direct examination that Erdos was only feigning mental illness after he killed Leahy.

While cross-examining one of the court-appointed psychiatrists, counsel for Erdos attempted to question the witness from an apparently recognized psychiatric treatise. The district judge sustained the government’s objections to the use of the psychiatric treatise after the witness said that he had “read portions of it . . . [but was] not familiar with the whole text.”

There has been much progress in recent years toward expanding the “learned treatise” exception to the hearsay rule to allow liberal cross-examination of expert witnesses from respected texts. This trend was recognized and approved by the Supreme Court in Reilly v. Pinkus, 338 U.S. 269, 275, 70 S.Ct. 110, 94 L.Ed. 63 (1949), and expressly adopted by this court in Lawrence v. Nutter, 203 F.2d 540 (4th Cir. 1953), at 543:

We need go no further in the pending case than to hold that the attention of an expert may be called in the course of cross examination to statements in conflict with his testimony contained in relevant scientific works which he recognizes as authoritative. This holding accords . . . with the more liberal view taken in the recent cases ....

Before allowing cross-examination from a treatise, however, it must be established that the book is known by the witness and is a generally respected authority in the relevant field. Reilly, supra, 338 U.S. at 275, 70 S.Ct. 110; Lawrence, supra, 203 F.2d at 542. Since the district court prevented counsel for Erdos from establishing the authenticity and authority of the book, we assume it to be a “learned treatise” for purposes of appeal. We hold it was error to restrict cross-examination from this text. But error alone is not sufficient to justify reversal. Erdos was given every opportunity during his trial to present evidence supporting his defense of insanity. He was allowed ample latitude both in the direct examination of his own numerous witnesses and on cross-examination of the court-appointed psychiatrists. We think the curtailing of the cross-examination of one witness from one particular treatise during a lengthy trial was not error so grave as to require reversal where extensive evidence was properly admitted on the issue in question. Erdos’s rights were not substantially affected by this incorrect ruling, and we therefore disregard the error.

Affirmed.

      . 18 U.S.C. § 1112 provides :
      (a) Manslaughter is the unlawful killing of a human being without malice. It is of two kinds :
      Voluntary — Upon a sudden quarrel or heat of passion.
      Involuntary — In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.
      (b) Within the - special maritime and territorial jurisdiction of the United States,
      Whoever is guilty of voluntary manslaughter, shall be imprisoned not more than ten years;
      Whoever is guilty of involuntary manslaughter, shall be fined not more than $1,000 or imprisoned not more than three years, or both.

      . See e. g., 42 Cong.Rec. 590, 1186 (1909) (remarks of Senator Heyburn and Congressman Sherley).

      . 18 U.S.C. § 3238 provides:
      The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia.

      . See Orfield, Venue in Federal Criminal Cases, 17 U.Pitt.L.Rev. 375, 393-398 (1956).

      . The following colloquy between counsel for Erdos and the district judge demonstrates agreement that Erdos’s movements after his arrival at Dulles were not restrained.
      THE COURT: [T]hey claim when he landed he was never in custody, that they did give a summons, just like a parking ticket, to appear on a certain clay, but he was not arrested, he was free to go where he wanted to.
      MR. MeDANIELS : That is correct.
      THE COURT: And he did go where he wanted to.
      MR. MeDANIELS: That is correct.

      . See Proposed Rules of Evidence for United States Courts and Magistrates, R. 803(18), 50 F.R.D. 183, 302 (1972); 0 "VVigmore on Evidence §§ 1090-1700 (3d ed. 1940).

      . 28 U.S.C. § 2111 provides :
      On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.
      Fed.R.Orim.P. 52(a) provides:
      Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.

        See Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1907).