author: DONALD RUSSELL, Circuit Judge:

text:
    CAMPAIGN CLEAN WATER, INC., Appellee, v. Russell E. TRAIN, Administrator, Environmental Protection Agency, Appellant.
    No. 73-1745.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 2, 1973.
    Decided Dec. 10, 1973.

      Edmund W. Kitch, Atty. U. S. Dept, of Justice (Irving Jaffe, Acting Asst. Atty. Gen., Brian P. Gettings, U. S. Atty., Rodney Sager, and David G. Lowe, Asst. U. S. Attys., William D. Ap-pier and Walter H. Fleischer, Attys., U. S. Dept, of Justice, on brief) for appellant.
    W. Thomas Jacks, Washington, D. C. (Alan B. Morrison, Washington, D. C., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and RUSSELL and FIELD, Circuit Judges.
   DONALD RUSSELL, Circuit Judge:

Like a number of other pending actions, this suit, brought by an environmental group concerned with water quality in Virginia, involves the discretionary power, if any, of the defendant Administrator, Environmental Protection Agency, to allot appropriation authority for fiscal 1973 and 1974, particularly as those allotments relate to Virginia, under the provisions of Section 205 of the Federal Water Pollution Control Act Amendments of 1972. The Act sets forth a comprehensive legislative program for controlling and abating water pollution. In Subchapter II of that Act, provision is made for federal financial assistance to states and localities in planning and constructing sewage treatment plants, designed to assist in assuring the prompt attainment of specified standards of water quality. Under Section 207 of that Subchapter, grant authorizations are made “for the fiscal year ending June 30, 1973, not to exceed $5,000,000,000, for the fiscal year ending June 30, 1974, not to exceed $6,000,-000,000, * * *.” The grant authorizations in Section 207 are supplemented by Section 205 which provides for the allotment by the Administrator of such authorizations as approved among the States on a statutorily stated formula “not later than the January 1st immediately preceding the beginning of the fiscal year for which authorized, except that the allotment for fiscal year 1973 shall be made not later than 30 days after October 18, 1972.”

On November 22, 1972, the President wrote the Administrator directing the latter not to “allot among the States the maximum amounts provided by section 207”; specifically, he directed that, “[N]o more than $2 billion of the amount authorized for the fiscal year 1973, and no more than $3 billion of the amount authorized for the fiscal year 1974 should be allotted.” In directing such action, the President referred to the fact that the Act “permits a significant increase over our programs to fund the construction of wastewater treatment facilities” and stated that budget requests for funding such construction under the earlier programs in fiscal 1973 amounted to “$2 billion”. In fixing the allotments to be made under Section 205, the President observed that, “[T]hese amounts will provide for improving water quality and yet give proper recognition to competing national priorities for our tax dollars, the resources now available for this program and the projected condition of the Federal treasury under existing tax laws and the statutory limit on the national debt ”

The plaintiff brought this action for both declaratory and injunctive relief in connection with the administration of the Act. By way of declaratory relief, it asked judgment that “(a) the defendant [Administrator] lacks the discretion to refuse to allot among the states the full sums authorized by Congress; or, alternatively, (b) the defendant abused whatever limited discretion he possesses by withholding a greater amount of funds than contemplated by the Congress under the Act.” It, also, requested injunctive relief, “directing the defendant to allot among the states the full sums of $5 billion and $6 billion authorized to be appropriated by section 207 of the Act for fiscal years 1973 and 1974.” Without answering, the defendant Administrator moved to dismiss on the grounds “that the Court lacks jurisdiction over the subject matter of this suit and that the Complaint fails to state a claim upon which relief can be granted.” At the same time, the plaintiff moved for summary judgment “on the grounds that there is no genuine issue as to any material fact and that, * * * plaintiff is entitled to judgment as a matter of law.” After a hearing, the District Court denied the motion of the defendant to dismiss and granted in part the motion of the plaintiff for summary judgment. From that decision, the defendant Administrator appeals. We remand for further proceedings.

I.

The defendant Administrator at the outset raised a number of procedural barriers to the maintenance of this action. He put in issue the standing of the plaintiff to maintain this action, the jus-ticiability of the issues, the prematureness of the proceedings, and finally, the bar of sovereign immunity. These claims were carefully considered in the thoughtful opinion of the District Court and were found meritless. For the reasons assigned by the District Court and for the reasons hereafter developed, we agree.

II.

Turning to the substantive controversy: The plaintiff concedes the Congress intended to give the executive certain discretion in making allotments under Section 205; the defendant Administrator asserts the existence of such discretion; and the District Court found that there was such discretion. The existence of discretion, therefore, is not in issue on this appeal. The point of controversy is the extent of that discretion and the power of the Court to review. The plaintiff, in the District Court, contended that the discretion granted by Congress to the Administrator was not “unbridled”; that specifically it was not broad enough “to give the Administrator the discretion to gut the Act.” In developing this contention, it emphasized the purposes and goals of the Act and argued that the Administrator’s discretion may not be exercised in a manner and to an extent that the purposes of the Act are frustrated and nullified and that Courts have both the power and the duty to prevent such nullification. The defendant, on the other hand, took the position that, while the Administrator had not by his limited allotments frustrated the legislative purposes reflected in the Act, he has absolute discretion in making such allotments, and that his exercise of discretion is immune from judicial review. In resolving these conflicting positions, the District Court found that, on its face, an “impoundment policy, by which 55% of the allocated funds will be withheld, is a violation of the spirit, intent and letter of the Act and a flagrant abuse of executive discretion.” It found authority to declare judgment “that that policy is null and void”. Though it thus found the allotments as fixed by the Administrator invalid, it denied injunctive relief on the ground the Court was not equipped to “supervise the Administrator in the administration of the Act”, partially because of “the expert discretion designed for the appropriations stage.” And, finally, it limited the application of its judgment “to those interests in Virginia represented by the plaintiff organization.”

As we have already stated, the right of the defendant to exercise discretion in making the allotment under Section 205 is not challenged by this appeal: that right is conceded. We are not concerned with the question whether an appropriation, either by its very nature or under the terms of the Antideficiency Act, even in the absence of any expressed grant of executive discretion in its use, involves some element of discretion in the executive. We are dealing here with a legislative provision which it has been held (and from this holding there is no appeal) does vest the executive with discretion. In short, the issues on this appeal are whether, accepting the holding that there was discretion in this case, its exercise is judicially reviewable, and, if reviewable, what standards or criteria are to be used in assessing the validity of its exercise. Those are the only issues posed by the appeal.

It is the defendant’s position that, by conceding executive discretion in the fixing of the allotments under Section 205, the plaintiff has admitted a want of judicial power to review his exercise of that discretion. He rests this argument upon Section 10 of the Administrative Procedure Act, which provides that administrative action, the exercise of which is “committed to agency discretion” is not judicially reviewable. Cf., Davis, Administrative Law Treatise, 1970 Supp., § 28.16, p. 964. What the defendant urges is similar to the administrator’s argument in Overseas Media Corporation v. McNamara (1967) 128 U.S.App.D.C. 48, 385 F.2d 308, 316, n. 14, i. e., that we should “adopt the view that the [legislative] act of committing a matter to an agency’s discretion forecloses court consideration of an alleged abuse of that discretion” under any circumstances. To that argument, the Court in Overseas replied firmly, “The Legislative History of the Administrative Procedure Act belies this position.” And this conclusion in Overseas was confirmed in Citizens to Preserve Overton Park v. Volpe (1971) 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed. 2d 136, where, speaking of this exception, the Court characterized it as “a very narrow exception”, whose application, according to “The legislative history of the Administrative Procedure Act” is limited to “those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ ” In resolving whether the matter falls within that “rare” instance in which the executive action is non-reviewable, the problem is “that of determining when the agency action is ‘committed to agency discretion’ within the meaning of section 10 of the Administrative Procedure Act, and when it merely ‘involves’ discretion which is nevertheless reviewable.” Ferry v. Udall (9th Cir. 1964) 336 F.2d 706, 711, cert. denied 381 U.S. 904, 85 S.Ct. 1449, 14 L.Ed.2d 286. Unquestionably, whether an agency, in exercising its asserted discretionary power under a legislative authorization, is acting in a manner consistent with the legislative purpose and with proper regard for the constitutional principle of separation of powers between the executive and legislative is an issue that Section 10 did not intend to make non-reviewable; it patently is not an issue “committed to agency discretion”. See, Note, Protecting the Fisc: Executive Impoundment and Congressional Power, 82 Yale L.J. 1636, at p. 1647; DeVito v. Shultz (D.C.D.C.1969) 300 F.Supp. 381, 383; Hamel v. Nelson (D.C.Cal.1963) 226 F.Supp. 96, 98. The power to spend rests primarily with Congress under the Constitution; the executive, on the other hand, has the constitutional duty to execute the law in accordance with the legislative purpose so expressed. When the executive exercises its responsibility under appropriation legislation in such a manner as to frustrate the Congressional purpose, either by absolute refusal to spend or by a withholding of so substantial an amount of the appropriation as to make impossible the attainment of the legislative goals, the executive trespasses beyond the range of its legal discretion and presents an issue of constitutional dimensions which is obviously open to judicial review. And it was this issue and this issue alone to which the District Court carefully restricted itself in this case. It specifically denied any power on its part to review or supervise the defendant’s discretion so far as it was exercised in a manner that was not so arbitrary or drastic as to represent a nullification of legislative purpose. We agree generally with this construction of its power by the District Court.

Our only difficulty with the decision of the District Court relates to its conclusion on the issue of arbitrary frustration of legislative policy by the executive action taken. The District Court found that an allotment under Section 205 in the amount of 45% of the authorization under Section 207, established such a drastic and arbitrary administrative reduction in the contract authorization as, on its face, without any other evidentiary support, to require a finding of executive nullification of the purposes of the Act. With this factual finding, we are unable to agree. The statement of the President must be read in conjunction with the explanation given by the Administrator both in his presentation to this Court and in his Congressional appearances, for his allotments as made. In his presentation to this Court, the Administrator has disclaimed any purpose of evading the responsibilities given him under the Act. In his appearance before the Senate ad hoc Subcommittee on Impoundment of Funds on February 6, 1973, where he defended the allotments made for the years in question here, he forcefully expressed his commitment to the goals intended by the Act and affirmed that the reductions in the contract authorizations, as represented by the allotments made by him under Section 205 for fiscal years 1973 and 1974, were arrived at on the basis of an administrative judgment that greater authorizations could not be spent “in a wise or expeditious manner” in achieving such goals during those years. This judgment was based, in turn, he testified, on a conclusion that “there was not sufficient technical capacity, technical capability, I think it was, or contractual capacity” to carry out a greater or more extensive program. In reaching that conclusion, he had taken note, according to his testimony, that there were already available other contract authorizations for the same purposes as that authorized under the Act, which, when added to the authorizations actually allotted by the Administrator, meant that “there was $7.25 billion released on the 27th of November [1973] to be spent over the next 18 months” in meeting the goals of the program. He argued that to attempt a more rapid rate of spending would inordinately inflate the cost of the program without appreciably accelerating the attainment of its goals. He pointed out in partial confirmation of this opinion that “the construction industry has inflated the cost of the building of the project at the rate of 120 percent”, while at the same time “the cost of living has gone up at the rate of 40 percent.”

The Administrator, also, asserted in his brief, without contradiction by the plaintiff, that as of August 31, 1973, all of the States had utilized but 73 percent of their 1973 allotments and 8 percent of their 1974 allotments. There is no way for us at this juncture to venture an opinion whether the Administrator had been “dragging his feet” in approving projects or whether these figures indicate that the allotments made represented reasonable goáls for the two fiscal years in controversy. The experience in the use of the allotments so far in fiscal 1973 and 1974 is, though, a matter that might well be considered in determining whether the Administrator, in exercising his discretion under Section 205, acted so arbitrarily as to frustrate the attainment of the legislative goals.

Moreover, it must not be overlooked that the Administrator claims the power to increase allotments during a fiscal year and has declared in this Court that, should it appear that the allotments made for fiscal years 1973 and 1974 are not sufficient to support the applications made and qualifying under the standards established, he will give consideration to making additional allotments out of the maximum authorizations provided by Section 207. The Act itself grants contract authorizations for the fiscal years 1973-1974-1975 in the overall amount of $18 billion. It provides for reallotment of unused allotments. The defendant asserts that, considered as a whole, the Act gives the defendant the power to add to allotments for any fiscal year, within, of course, the legislative máximums, as the need demonstrates. Because he claims there has been no denial of any qualified project in either fiscal year 1973 or fiscal year 1974, there is no demonstrable need for an increase in the allotments heretofore made. Moreover, he avers without contradiction by the plaintiff that no qualified project for the Commonwealth of Virginia has been denied contract authorization during fiscal 1973 or 1974. He goes further and asserts that if there are qualifying projects from Virginia in the fiscal years in question that exceed the allotments already made, the plaintiff has suffered no prejudice or injury unless he [the Administrator] refuses to make additional allotments to cover qualifying projects in Virginia in the two fiscal years in question. It is true, as the plaintiff argues, that Section 205 declares that allotments are to be made no “later than the January 1st immediately preceding the beginning of the fiscal year for which authorized” but the defendant presses the point that this provision simply establishes a date for initial allotments and was not intended and does not represent a restriction on the defendant’s right, if the need develops, to add to or to increase the allotments as initially made. Whether this construction is sound — and we are strongly persuaded that it is — it would seem unlikely that any party would have standing successfully to challenge any increase made by the Administrator in the initial allotment. In any event, this is an issue that should be given consideration in determining whether the action of the Administrator was arbitrary.

These observations do not establish that the District Court’s conclusion was incorrect; they do indicate, though, that the issue in controversy here is not one to be resolved by any per se rule but is one that requires inquiry into the basis for the Administrator’s action. After all, there is a presumption of legality that attaches ordinarily to an administrator’s action and the burden of establishing impropriety rests on him who challenges. Even if the District Court had concluded, as some other courts have, that the Administrator was without discretion in making allotments under Section 205, he would still have been empowered under the terms of the Anti-deficiency Act “to withhold funds for reasons of efficiency and economy”; and, if the plaintiff wished to challenge an impounding of funds made under the authorization of the Antideficiency Act, it would have had the burden of showing “that the impoundment was in fact not warranted by efficiencies or other new developments”, and pari passu, it would seem to follow that “a plaintiff challenging an assertion that the executive has discretion to impound under a particular spending bill must show that the discretion granted was less than that claimed”. Note, Impoundment of Funds, 86 Harv.L.Rev. 1505, 1529 (1973). Beyond the bare assumption that an expenditure of approximately half the authorized appropriation establishes a frustration of legislative purpose the plaintiff has done nothing to satisfy its burden. Such an assumption, in the face of other circumstances to which we have adverted, and recognizing that the District Court has found at least some discretion in the Administrator to fix the allotment, is insufficient to support the conclusion reached by the District Court that the allotments made were “a violation of the spirit, intent and letter of the Act and a flagrant abuse of executive discretion”, or involved a use of irrelevant factors in arriving at his action. That issue should not have been resolved on the pleadings but a record should have been made that would support the conclusion reached by the District Court. We accordingly remand to the District Court for further proceedings in order to determine, on the basis of such evidence as may be submitted by the parties, whether as a fact the amount of allotments made by the Administrator under Section 205 were “a violation of the spirit, intent and letter of the Act and a flagrant abuse of executive discretion”, or involved irrelevant or improper standards in fixing such amount. In connection with that inquiry, it will be appropriate for the District Court to consider whether the factors used by the defendant in fixing the allotments were the ones that were “relevant” under a proper construction of the discretionary power found to exist in the executive.

Remanded with directions.

      . See, City of New York v. Ruckelshaus (D.C.N.Y.1973) 358 F.Supp. 669; Brown v. Ruckelshaus and City of Los Angeles v. Ruckelshaus (D.C.C.D.Cal.1973) (decided 8/17/73); Martin-Trigona v. Ruckelshaus (D.C.N.D.Ill.1973) (decided June 28, 1973); Minnesota v. USEPA (D.Minn.1973) (decided June 25, 1973).

      . Section 1285, 33 U.S.C.

      . Section 1251 et seq., 33 U.S.C. The legislative history is set forth in U.S.Code Cong. & Adm.News, 92d Cong., 2d Sess., pp. 3668, et seq.

      . Section 1281 et seq., 33 U.S.C.

      . Section 1287, 33 U.S.C.

      . The statutes involved in this action concern not direct appropriations but what has often been described as “obligational authority”. The Office of Management and Budget, in its listing of appropriated funds withheld from disbursement, omitted those represented by “obligational authority”. See, New York Times, Feb. 6, 1973, at 1, col. 1 (city ed.). In principle, however, the difference between the two is unimportant, so far as the issues in this jjroeeeding are concerned. As one commentator has aptly remarked, “Appropriations are passed in various forms, and permit actual expenditures as well as the incurring of obligations. However, there is another species’ of financial authority, the contract authorization [also termed obliga-tional authority), which empowers the governmental unit only to incur obligations. Under such contract authority power, the agency will have to later request an appropriation to liquidate the obligations it has incurred.” Note, The Likely Law of Executive Impoundment, 59 Iowa L.Rev. 50, 54 (1973). There is thus no reason to treat the two forms of authorizations other than as appropriations and to adjudge the right of the executive to withhold the same in both instances. See, Note, Impoundment of Funds, 86 Harv.L.Rev. 1505, 1506, n. 2 (1973).

      . The decision of the District Court is reported in 361 F.Supp. 689.

      . Thus the plaintiff in its brief, states the issues on appeal to be “whether, in passing the Federal Water Pollution Control Act Amendments of 1972, Congress intended to give the President boundless discretion to withhold funding under the Act, or whether, as plaintiffs contend and the district court held, the discretion granted the Executive is limited and was grossly exceeded.”
      While a number of courts have found a want of discretion in the Administrator in • fixing the authorized allotments, the commentators on the Act are not as definite in their opinions. See, for instance, Note, The Likely Law of Impoundment, 59 Iowa L.Rev. 50, 55, n. 42 (1973) and Note, Impoundment, 86 Harv.L.Rev. 1505, 1526, n. 116; but of., Note, Protecting the Fisc: Executive Im-poundment and Congressional Power, 82 Yale L.J. 1636, 1952. The issue of discretion, it is conceded by one of the commentators is plainly “arguable”, something that cannot be said, it suggests, with reference to the appropriation made in support of the Federal Aid Highway Act, Section 101--44, 23 U.S.C., involved in State Highway Commission v. Volpe (8th Cir. 1973) 479 F.2d 1099, 50 Iowa L.Rev. at p. 55. In fact, Congress made it as plain as it could in the Highway Act that it intended to confer no right of impoundment on the executive. (See Page 1111, 479 F.2d.)
      Ralph Nader, in his testimony before the Senate Ad Hoc Committee on Impoundments (hereafter referred to as Impoundment Hearings) ranged himself with those who found discretion in the executive in executing Section 205. He testified in this connection :
      “Granted, the legislative history of these 1972 amendments suggests that Congress may have intended to grant the President limited discretion in controlling the level of obligations. However, the decisive overriding of the veto indicated a clear congressional mandate to have sufficient funds immediately available for obligation to meet the timetable for water quality goals which the act established.” (at 34)
      For a thoughtful statement of reasons for discretionary spending authority in the executive, see Fisher, Presidential Spending Discretion and Congressional Controls, appearing in the Winter, 1972, issue of Law and Contemporary Problems and quoted in Im-poundment Hearings, at 719:
      “The reform advocate is therefore advised to regard executive spending discretion as an essential, ineradicable feature of the budget process. Expenditures deviate from appropriations for a number of reasons. Appropriations are made many months, and sometimes years, in advance of expenditures. Congress acts with imperfect knowledge in trying to legislate in fields that are highly technical and constantly undergoing change. New circumstances will develop to make obsolete and mistaken the decisions reached by Congress at the appropriation stage. It is not practicable for Congress to adjust to these new developments by passing large numbers of supplemental appropriation bills. Were Congress to control expenditures by confining administrators to narrow statutory details it would perhaps protect its power of the purse but it would not protect the purse itself. Discretion is needed for the sound management of public funds.”
      But, cf., the comment of the editor in 82 Yale L. J. 1636, at p. 1640, n. 26:
      “It is important, to note that this argument at its strongest only establishes a limited kind of impoundment power for the Executive, the power to impound when conditions intrinsic to the program indicate that further spending would be wasteful. There is no principle that would indicate that the President must necessarily have all impoundment powers or none at all.”

      . The term “impoundment” has provoked some disagreement. The editor in one recent Note would define it “as the executive practice of withholding appropriated funds or obligational authority, beyond the bounds of any statutorily conferred discretion.” Note, 59 Iowa L.Rev. 50, 56 (1973). Similarly, Professor Miller defines it as “deliberate attempts to scuttle projects authorized by Congress, but disliked by the Executive.” Impoundment Hearings, at 752. This would limit the application of the term to those acts of the Executive which represent an illegal withholding of appropriated funds. Other authorities use the term to identify any executive withholding of appropriated funds and make no effort to engage in the “semantic” game. Thus, in the Note, Im-poundment of Funds, 86 Harv.L.Rev. 1505, n. 1, impoundment is defined as a “refusal by the executive, for whatever reason, to spend funds made available by Congress.” Another writer uses similar language, stating that, “In its broadest context, impoundment occurs whenever the President spends less than Congress appropriates for a given period.” Fisher, Funds Impounded by the President: The Constitutional Issue, 38 Geo.Wash.L.Rev. 124 (1969). This would seem the more sensible definition. Under this definition, any withholding would be an impoundment and whether such impoundment was permissible would depend on the legislative intent.

      . 361 F.Supp. at 700.

      . 361 F.Supp. at 700.

      . 361 F.Supp at 700.

      . 361 F.Supp. at 701.

      . It has been sometimes stated that an appropriation is “permissive rather than mandatory”, by which the author states “it is meant that the Executive Branch is auth-rized but not required to spend funds up to a given amount for designated purposes.” (Italics in text.) Miller, Presidential Power to Impound Appropriated Funds: An Exercise in Constitutional Decision-Making, 42 N.C.L.Rev. 502, 511 (1965). In somewhat similar vein, Professor Corwin summed the matter up with the statement that the Constitution “assumes any expenditure is primarily an executive function, and conversely that the participation of the legislative branch is essentially for the purpose simply of setting bounds to executive discretion — a theory confirmed by early practice under the Constitution.” Corwin, The President: Office and Powers, 127-8 (4 ed. 1957).

        See, also, McKay v. Central Electric Power Co-operative (1955), 96 U.S.App.D.C. 158, 223 F.2d 623, 625.

      . Section 665, 31 U.S.C. This section authorizes the executive to withhold funds “to provide for contingencies, or to effect savings whenever savings are made possible by or through changes in requirements, greater efficiency of operations, or other developments subsequent to the date on which such appropriation was made available” (Italics added, 665(e)(2).) Two constructions of the terms “savings” and “other developments” have been advanced. Under a narrow view, these terms relate to “developments within the individual programs involved, and that impoundment is only permissible to the extent that it does not interfere with achieving the underlying purposes of the program involved.” Note, Impoundment, 86 Harv.L.Rev. at p. 1517 (1973). “According to a more expansive view, however, ‘other developments’ should refer to any subsequent development, whether or not uniquely program related, which would, in the administrator’s mind, call for the making of savings through reduced program expenditure. A determination that a subsequent situation of inflation justified program reduction or termination in order to cut government spending would fit into this category.” Note, The Likely Law of Exeetuive Impoundment, 59 Iowa L.Rev. 50, 67 (1973). Most commentators, however, lean to the narrow view. See 86 Harv.L.Rev. 1517; 59 Iowa L.Rev. 67; 82 Yale L.J. 1642.
      Mr. Fisher in an article quoted in the Im-poundment Hearings, p. 399, takes this narrow view of the application of the Act. In support he quotes from the language of House Appropriations Committee in reporting the Act:
      “It is perfectly justifiable and proper for all possible economies to be effected and savings to be made. But there is no warrant or justification for the thwarting of a major policy of Congress by the impounding of funds.”

      . Section 701, 5 U.S.C.

      . 385 F.2d at 316, 317, n. 14.

      . Article I, Section 9, Clause 7, Constitution.

      . Article II, Section 3, Constitution.

        See, also, Spaulding v. Douglas Aircraft Co. (D.C.Cal.1945) 60 F.Supp. 985, 988, aff., 9th Cir., 154 F.2d 419:
      “The purpose of the appropriations, the terms and conditions under which said appropriations were made, is a matter solely in the hands of Congress and it is the plain and explicit duty of the executive branch of the government to comply with the same.”

      . See statement of then Assistant Attorney General Rehnquist, quoted in the Impoundment Hearings, at 609:
      “ ‘It is in our view extremely difficult to formulate a constitutional theory to justify a refusal by the President to comply with a Congressional directive to spend. It may be argued that the spending of money is inherently an executive function, but the execution of any law is, by definition, an executive function, and it seems an anomalous proposition that because the Executive Branch is bound to execute the laws, it is free to decline to execute them.’ Memorandum Re Presidential Authority to Impound Funds Appropriated for Assistance to Federally Impacted Schools (Dec. 1, 1969), reprinted in Impoundment Hearings at 279, 283.”
      It may be said, too, that, by absolutely refusing to spend or obligate funds appropriated by Congress, the executive is for all practical purposes exercising an “item veto”, terminating or delaying a particular program, thereby avoiding the embarrassment of a public veto message with the risk of a Congressional overriding.

      . Cf., Housing Auth., San Francisco v. United States Dept., H.U.D. (D.C.Cal.1972) 340 F.Supp. 654, 656; Church, The Impoundment of Appropriated Funds: The Decline of Congressional Control Over Executive Discretion, 22 S tan.L.Rev. 1240, 1252 (1970); Boggs, Executive Impoundment of Congressionally Appropriated Funds, 24 U. of Fla.L.Rev. 221, 228 (1972); and Stassen, Separation of Powers and the Uncommon Defense: The Case Against Impounding of Weapons System Appropriations, 57 Geo.L.J. 1159, 1201 (1969); and Miller, Presidential Power to Impound Appropriated Funds: An Exercise in Constitutional Decision-Making, 43 N.C.L.Rev. 502, 536 (1965).
      ' The court’s power is well stated in 82 Yale L. J. at p. 1651:
      “The court need not seek to derive some lower figure but need simply test the contested impoundment against the legislative intent as expressed in the act to determine whether the impoundment was an abuse of discretion. It will derive its own construction of the statute, then test the administrative action to see whether it could rationally be a carrying out of .the Act’s mandate.”

      . Of course, in the exercise of his discretion, the Administrator may not consider factors that are irrelevant to the legislative intent. Overton Park, supra (401 U.S. at 416, 91 S.Ct. 814.)

      . Impoundment Hearings, at 403, et seq.

      . Ibid, p. 405.

      . Ibid, p. 413.

      . Ibid, p. 416.

      . Ibid, p. 416.

      . Ibid, pp. 416-417.
      In connection with this latter statement of the Administrator, it may be observed that one of the disputed issues in some of the controversies over executive impoundments concerns whether there is legislative warrant under the particular legislation for the executive to consider the need to thwart general inflationary tendencies in the economy in determining a withholding of appropriations. The claimed basis for the exercise of such power is stated by the Department of Justice in its reply to certain questions propounded by the Chairman in the Impoundment Hearings, pp. 837-8. it is not clear whether this issue is present here. It is possible to interpret the testimony of the Administrator as indicating that it was the unique, inflationary forces prevalent at the moment in that part of the construction industry involved in sewage plant development which were considered by him. Actually, however, the general objection to impoundment on the part of the Congress seems to be directed at the re-ordering of priorities as a result of impoundment. Thus, the Chairman of the Subcommittee at the Im-poundment Hearings, Senator Erwin, after quoting from Mr. Fisher to the effect that, “Impoundment is not being used to avoid deficiencies, or to effect savings, or even to fight inflation, but rather to shift the scale of priorities from one Administrator to the next, prior to Congressional action,” said, “That is our complaint.” Impoundment Hearings, p. 277.

      . This procedure, if followed, it could be argued, would carry out the Congressional intent.

      . See, Impoundment Hearings, pp. 840-1.

      . Cf., State of Minnesota v. United States Environmental Protection Agency (D.C. Minn.1973) (decided June 25, 1973), in which the plaintiff, complaining, as the plaintiff does here, that the allotments were improper as they applied to it, offered in affidavit form, proof that projects in its state had qualified for grant but were being denied approval because of the paucity of the allotment.

      . See, Citizens to Preserve Overton Park v. Volpe, supra, at 420 of 401 U.S., 91 S.Ct. 814.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Allan GRADSKY, Plaintiff-Appellant, v. SPERRY RAND CORPORATION, Defendant-Appellee.
    No. 73-1283.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 4, 1973.
    Decided Dec. 18, 1973.
    Armistead W. Gilliam, Jr., Dayton, Ohio, for appellant; Michael R. Merz, Smith & Schnacke, Dayton, Ohio, on brief.
    Murray S. Monroe, Cincinnati, Ohio, for appellee; G. David Schiering, G. Jack Donson, Cincinnati, Ohio, on brief; Taft, Stettinius & Hollister, Cincinnati, Ohio, of counsel.
    Before PECK, MILLER and LIVELY, Circuit Judges.
   PER CURIAM.

This is an appeal from a jury verdict in favor of the defendant in a civil antitrust suit. The plaintiff-appellant, Allan Gradsky, brought the action against the defendant-appellee, Sperry Rand Corporation, pursuant to 15 U.S.C. § 15 (Clayton Act section 4) to recover damages to his business caused by alleged violations of 15 U.S.C. §§ 1 and 2 (Sherman Act sections 1 and 2).

The appellee manufactures and markets data processing equipment. One of its lines of equipment used data entry cards containing 90-columns for information storage. The appellee developed most of this 90-column equipment in the 1930’s and the industry thereafter standardized 80-column equipment. The appellant used Sperry Rand 90-column equipment in his accounting practice. In June, 1966, the appellee announced that it would not develop new 90-column equipment, but that service would be offered until July, 1971, to all 90-column customers, including those who converted to competitive equipment or who otherwise were not buying or renting equipment from Sperry Rand. After an extension until July, 1972, the appellee ceased maintaining 90-column equipment. Since the appellee is the only source of service for the 90-column equipment, the appellant is unable to continue using it. He contends that he is unable to afford converting to 80-column equipment and he thus no longer provides data processing service to his clients. The appellant charges the appellee with breach of contract, with illegal combinations and tying arrangements, and attempting to or actually monopolizing trade.

All of the issues raised on appeal are based on exceptions to the court’s instructions to the jury. Before considering these exceptions, we must first determine if the appellant preserved the record for appeal by complying with Rule 51 of the Federal Rules of Civil Procedure.

Since the ease involves complex issues of law, the trial judge requested an early submission of proposed instructions. The appellant submitted 50 proposed instructions; Sperry Rand submitted 112. Appellant filed 96 written objections to Sperry Rand’s proposed instructions. Sperry Rand, in turn, submitted 45 objections. The trial briefs totaled 206 pages. After an exhaustive review, including three informal conferences in chambers where the proposed charges were reviewed and discussed, the trial court charged the jury. The appellant did not formally object to the court’s charge, but now urges that his detailed requests for jury instructions and his written objections to the defendant’s requested jury instructions are sufficient to preserve his objections under Rule 51.

Rule 51, construed in light of Rule 46’s discouragement of formality in procedures, does not require formal objections, but the Rule is satisfied only if it is clear that the judge was made aware of the .possible error in or omission from the instructions. E. g. Sears v. Southern Pacific Co., 313 F.2d 498 (9th Cir. 1963). The purpose of the Rule is to inform the court of possible errors in the charge “to afford [the] trial judge opportunity to correct error in his charge before the case is finally submitted to the jury.” Moore v. Stephens, 271 F.2d 119, 120 (6th Cir. 1959). The court, insofar as the instructions were covered by the appellant’s proposals and objections to the appellee’s proposals, was aware of the appellant’s objections to the charge as given. To that extent, the requirements of Rule 51 have been met. However, assignments of error on points not included in the appellant’s proposed instructions nor covered in his objections to the appellee’s proposals are not properly preserved for appeal.

In reviewing exceptions to a trial court’s charge to the jury, this Court must consider whether the instructions, taken as.a whole, fairly and adequately submit the issues in the case to the jury. Waxler v. Waxler Towing Co., 342 F.2d 746 (6th Cir. 1965). As this Court stated in Tyree v. New York Central R. R., 382 F.2d 524, 527 (6th Cir.), cert. den. 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659 (1967):

“In 53 Am.Jur. — Trial—Section 842, the general rule is well stated: ‘In considering the correctness and adequacy of a charge to the jury, it should be taken as a whole and read in its entirety; that is, each instruction must be considered in connection with others of the series referring to the same subject and connected therewith, and if, when taken together, they properly express the law as applicable to the particular case, there is no just ground of complaint, even though an isolated and detached clause is in itself inaccurate, ambiguous, incomplete, or otherwise subject to criticism.’ ”

See also Nolan v. Greene, 383 F.2d 814 (6th Cir. 1967).

In the present case the trial court’s charge consumed nearly two hours and covered seventy written pages. The appellant seeks reversal by challenging certain instructions included in the charge and by alleging error. in the court’s failure to give certain proposed instructions. A review of the court’s charge reveals that the court specified in great detail the elements of the appellant’s ease as to monopoly, misuse of monopoly power, tie-in agreements and combination. The instructions to which the appellant objected, taken in context with reference to preceding and subsequent instructions, are fair and correct. Concerning the proposed instructions which the court failed to include in the charge, we note that the trial judge is not “required to incorporate every proposition of law suggested in counsel’s requests provided he covers the specific principles necessary for the jury’s guidance.” Puggioni v. Luckenback S.S. Co., Inc., 286 F.2d 340, 344 (2d Cir. 1961). In our considered opinion, the charge, read as a whole, fairly instructed the jury as to the applicable law and covered the specific principles necessary for the jury’s guidance.

Therefore, the judgment of the district court is hereby affirmed.

      . Rule 51. Instructions to Jury: Objection.
      At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of, its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.

      . Rule 46. Exceptions Unnecessary
      Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.

      . The appellant assigns eleven basic points of error. Two of the assigned errors are in the above mentioned category, thus not preserved for appeal under Rule 51.


author: ROSENN, Circuit Judge.

text:
    UNITED STATES of America v. Leonard WATSON a/k/a "Step”, Appellant.
    No. 73-1489.
    United States Court of Appeals, Third Circuit.
    Argued Oct. 26, 1973.
    Decided Dec. 20, 1973.

      David A. Garfunkel, Defender Assn, of Philadelphia, Philadelphia, Pa., for appellant.
    John F. Penrose, Asst. U. S. Atty., Philadelphia, Pa., for appellee.
    Before McLAUGHLIN, GIBBONS and ROSENN, Circuit Judges.
   OPINION OF THE COURT

ROSENN, Circuit Judge.

This" appeal from a narcotics conviction raises the question of whether the trial court committed reversible error when it instructed the jury, in a bifurcated charge on the entrapment defense, that the defendant had the burden of proving the Government induced the criminal activity. Since we find that the defendant raised sufficient evidence of entrapment to be entitled to an instruction on entrapment, and that the bifurcated charge was improper, we reverse as to all counts on which defendant was convicted except Count III.

I. The Contentions

Watson was tried on a total of six counts involving distribution of heroin, possession with intent to distribute, illegal use of communications facilities, and conspiracy to distribute. He took the stand, admitting most of the acts alleged and raising entrapment as his principal defense. Without objection by the Government, the trial court granted defendant’s request for an entrapment charge.

The first five paragraphs of the charge conform to the suggested language in 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 13.13 (2d Ed. 1970), which we approved in Government of the Virgin Islands v. Cruz, 478 F.2d 712, 717 n. 5 (3d Cir. 1973). The dispute arises from the next paragraph in the charge. It stated:

The question of entrapment involves two issues. The first is whether the defendant was led or induced to commit the crime by anyone acting for the Government. That is, did the Government initiate the criminal transaction? On this issue the defendant has the burden of proof. [Emphasis supplied.]

The charge went on to say that the defendant had to prove by a preponderance of the evidence Government initiation of the criminal transaction; if such inducement were shown, then at that point the burden was on the Government to prove beyond a reasonable doubt that the defendant was ready and willing to commit the crime without persuasion, i. e., that he had a propensity to commit the crime. The final paragraph of the charge stated:

As I have instructed you, the Government has the burden of proof. To sustain its burden, the Government must prove its case beyond a reasonable doubt. There is no burden on the defendant to introduce any evidence or to convince you of any fact, which, if true, would be a defense to the crime charged in the indictment. It is sufficient for a verdict of not guilty if, from all the evidence ' presented^ or the lack of it, a reasonable doubt exists in your minds as to the guilt of the defendant.

Defendant’s counsel excepted to the entrapment charge on the ground that the burden of proving inducement should not be on the defendant. Defendant was convicted on five of the six counts in the indictment, and contends on appeal that the conviction must be reversed because the entrapment charge was improper.

The Government first contends that we need not decide the propriety of the entrapment charge because Watson was not entitled to the charge on the evidence adduced; thus, he could not have been prejudiced. United States v. Bishop, 367 F.2d 806, 809 (2d Cir. 1966). Cf. Lopez v. United States, 373 U.S. 427,

We first note that the Government is clearly correct in its contention as to Count III of the indictment. The count alleges that on or about January 5, 1972, Watson violated 21 U.S.C. § 843 by knowingly and intentionally using a telephone to facilitate the knowing, intentional distribution of heroin (a felony under § 841(a)(1)). Abrams, the Government witness to this call, testified that Watson called him to suggest that Watson had kilograms of heroin to sell. Watson on the other hand, denied that he had made such a telephone call. Rather, he testified, around that date Abrams had called him to ask if he, Watson, knew anyone who could supply Abrams, but Watson replied that he did not deal in narcotics. Under Watson’s version of the conversation, he did not violate § 843. Since he did not admit the crime charged, he was not entitled to any entrapment instruction as to this count, and he cannot complain that the entrapment charge was erroneous as to this count. United States v. Hendricks, 456 F.2d 167 (9th Cir. 1972).

As to the other counts on which Watson was convicted, he admitted that he had committed the acts alleged. We therefore must determine whether he was entitled to an entrapment charge as to those counts. In making this determination we must resolve all conflicts in testimony in favor of the defendant, United States v. Sawyer, 210 F.2d 169 (3d Cir. 1954), no matter how improbable we may find the defense version of the facts.

II. The Testimony

Watson testified as follows. On December 28, 1971, he ran into an old friend, Emmett, whom he had not seen since 1967 or 1968. Emmett was accompanied by Abrams, who, unknown to Watson, was a special agent with the Bureau of Narcotics and Dangerous Drugs. Emmett, introducing Abrams to Watson as his partner in the bartending business, talked Watson into stopping and having a drink. While Watson and Emmett were talking, Abrams interrupted and told Watson that Abrams and Emmett would appreciate his help in their attempt to buy narcotics. Watson, who had not discussed narcotics with Emmett up to this point, refused, saying that he only bought a few bags at a time for his own use.

Within a week, Abrams called Watson and asked him whether he had tried to obtain drugs. Watson replied :

I told you from the beginning I don’t deal in any nob or know nothing about buying or setting up anybody. I buy for myself, and that’s it. I worked in the bar business, but I don’t do no dealing in narcotics.

Abrams called again a few days later and asked if he could come to Watson’s home to talk. Watson, saying he had “nothing to hide,” left it up to Abrams. Abrams came, saying that he had lost his connection in New York and was looking for an introduction to someone who would sell him a kilo or two of heroin. He also bragged about his other connections and the size of his network. Watson said that he didn’t know anyone who could supply the quantity Abrams wanted to buy. As Abrams left, he told Watson that he would “make it worth your while” if Watson would connect him with a dealer. When Abrams called a week later, presumably from Ohio, Watson told him, “ . . .1 keep telling you over and over this isn’t my thing.” Abrams was not put off, saying that when he was back in town he might stop off to see Watson.

When Abrams did stop off, Watson decided he would try to “burn” Abrams by telling him he, Watson, could get the drugs, taking his money, and then not making delivery. With no intent of supplying drugs, he told Abrams that he could supply a kilo if Abrams would pay cash in advance. The “burn” scheme failed, however, when Abrams refused to turn over any money without first seeing the drugs. This meeting between Abrams and Watson was in late January or early February.

Watson at that point arranged with his wife and daughter that when Abrams called, Abrams was to be told that Watson was not home. Watson testified that he did this because “after I found out that he wasn’t going to let me take his money, I had no more use to deal with him.” He was still primarily concerned with obtaining drugs for his own use and “did not want to have anything to do with setting up sales of narcotics.”

Abrams called “quite a few times” in the next two months, but was told that Watson was not home. Abrams became known as “Creep” in the Watson household. One time when his daughter told him that Abrams had called and had been told that Watson was not home, Watson had responded,

Good. What does he want? Why doesn’t he leave me alone? Can’t he see it’s two months? Can’t he see I don’t want to be bothered ?

According to the Watsons, the phone calls kept coming, however. In March, in the course of his small purchases, Watson met “Herb”, who mentioned that he was a big dealer. The next time Abrams called, Watson still refused to talk to him. However, a short time later, in Watson’s own words,

I was sitting around. Money was no good. No narco, and I got quite a few refusals from my wife for any more advancements of money, so I felt, within myself I said, “Well if he calls, I’ll try to hook him and Herb.”

The next time Abrams called, Watson told him that he, Watson, could connect Abrams with a supplier. Abrams agreed, and suggested that Watson represent him in price negotiations. Watson initially refused, but agreed after Herb refused to meet directly with Abrams. The sale was arranged and took place at Watson’s house a few days later on March 22. At Abrams’ urging, Watson arranged another telephone contact between Abrams and Herb. On March 31, while Abrams was in Watson’s home, Watson called Herb and gave the phone to Abrams, who spent several minutes negotiating a purchase. The sale never occurred however, and thereafter Watson refused to do anything more for Abrams despite Abrams’ statement that “you could make yourself some big money.” Watson was arrested shortly thereafter.

Watson stuck to his story on cross-examination. He admitted that he had been convicted in 1971 for the use and possession of narcotics, and had been arrested for the same offense in 1972. He had been convicted of selling narcotics in 1955, but he denied on the stand that he had actually committed the offense.

III. Sufficiency of the Evidence to Raise the Defense

In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the Supreme Court recently reconsidered the basis of the entrapment defense and reaffirmed the majority opinions of Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), and Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). The Court restated that

[T]he entrapment defense prohibits law enforcement officers from instigating criminal acts by persons “otherwise innocent in order to lure them to its commission and to punish them.” Thus, the thrust of the entrapment defense was held to focus on the intent or predisposition of the defendant to commit the crime.

411 U.S. at 428-429, 93 S.Ct. at 1641. As this court has stated in United States v. Catanzaro, 407 F.2d 998, 1001 (3d Cir. 1969),

The basic question in an alleged entrapment case is whether the accused was ready and willing to commit the crime if an opportunity should be presented, or whether a person not otherwise disposed to wrongdoing was corrupted by some overreaching or special inducement, often amounting to reprehensible conduct.

We of course are not confronted with the question of whether Watson was entrapped as a matter of law, but rather with the question of whether he presented enough evidence of entrapment to be entitled to have the jury consider the defense. While this Circuit has not articulated a test to determine when a defendant becomes entitled to an entrapment charge, the Second Circuit has applied a workable test which we adopt. The charge must be given, however unreasonable the judge would consider a verdict in favor of the defendant to be, when the accused shows (1) evidence that the Government initiated the crime, regardless of the amount of pressure applied to the defendant, and (2) any evidence negating the defendant’s propensity to commit the crime. United States v. Riley, 363 F.2d 955, 958-959 (2d Cir. 1966). See also United States v. Cohen, 431 F.2d 830, 832 (2d Cir. 1970).

It is clear that, at least absent Watson’s admission that he arranged the March 21 sale because he needed money, Watson would have been entitled to the entrapment charge on all the counts involving March events. Abrams mentioned narcotics dealings to Watson before Watson had discussed the subject, and Abrams persisted in taking the initiative over three months in calling and meeting Watson. Watson’s considerable resistance over that period, and his rejection of each opportunity to sell to Abrams for three months, entitled Watson to have the jury consider under proper instructions whether he was entrapped.

The Government urges, however, that Watson’s admitted monetary motive for eventually agreeing to connect Abrams with a supplier establishes a predisposition to commit the crime and an absence of entrapment as a matter of law. We reject this contention. We believe that Watson’s statement of his reason for succumbing should be weighed by a jury in the light of the evidence of considerable and persistent importunities by Abrams. The jury would be justified in finding, assuming it believed Watson’s entire story, that Watson would not have agreed to arrange the sale, despite his need for money, were it not for Abrams’ persistent solicitations.

IV. The Correctness of the Charge

The trial court in this case, after giving the standard entrapment charge we approved of in Cruz, instructed the jury with the bifurcated charge which originated with Judge Learned Hand. As stated by Judge Hand,

Therefore in such cases two questions of fact arise: (1) did the agent induce the accused to commit the of-fence charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offence. On the first question the accused has the burden; on the second the prosecution has it.

United States v. Sherman, 200 F.2d 880, 882-883 (2d Cir. 1952).

The Second Circuit has recently held that the giving of this charge did not constitute reversible error, although the court suggested that in the future

[I]t will be enough to tell the jury that if it finds some evidence of government initiation of the illegal conduct, the Government has to prove beyond a reasonable doubt that the defendant was ready and willing to commit the crime. [Emphasis supplied.]

United States v. Braver, 450 F.2d 799, 805 (2d Cir. 1971).

Other circuits have also rejected the bifurcated charge. In Notaro v. United States, 363 F.2d 169, 174-175 & n. 6 (9th Cir. 1966), the court stated that the defendant’s burden of raising the entrapment issue was met by a showing that the commission of offense was attended by the intervention of a government agent, and that thereupon the burden was on the prosecution to disprove entrapment beyond a reasonable doubt. The court was to decide whether the issue was raised, and the only question going to the jury was the ultimate defense as a whole.

This court has never had to directly face the question of whether the giving of the bifurcated charge constitutes error. However, we have indicated our preference for a unitary charge. In United States v. Silver, 457 F.2d 1217 (3d Cir. 1972), we called it a “settled principle” that “when the'defense of entrapment is properly raised the burden of proof is on the Government to prove beyond a reasonable doubt that the defendant was not entrapped.” 457 F.2d at 1220.

Furthermore, in Government of the Virgin Islands v. Cruz, 478 F.2d 712 (3d Cir. 1973), decided after the district court decision in this case, we approved of an instruction which places the burden on the Government to disprove the whole defense beyond a reasonable, doubt. 478 F.2d at 717 n. 5. We stated: could have created the erroneous impression in some jurors’ minds that the accused carried the burden of proof as to the positive elements of an entrapment defense. Moreover, the Notaro court said that it must be made clear to the jury that the accused is “entitled to be acquitted if, from the evidence, the jury, because of the entertainment of reasonable doubt, should be unable to ‘find’ that the necessary elements of the defense had not been excluded.” 363 F.2d at 176. This must be made explicit even though the jury is properly informed in a general instruction as to the burden of proof which rests upon the prosecution.

In Notaro v. United States, 363 F. 2d 169 (9th Cir. 1966), . " . .the Ninth Circuit held that an instruction almost identical to the one above constituted reversible error because it

Although Notaro has not been specifically adopted by this Circuit, we would follow it and reverse the district court here if the defendant had timely objected to the court’s charge

478 F.2d at 717.

In this case, there is no contention that the defendant’s objection was not timely. We therefore hold that once there is sufficient evidence of Government inducement to commit the crime to entitle the defendant to go to the jury with an entrapment defense, the jury should be given only the instruction we approved in Cruz, putting the burden on the Government to negate the defense as a whole.

This conclusion is consistent with the Supreme Court’s reaffirmation that the focus of the entrapment defense is on the predisposition of the defendant rather than on the nature of the police behavior. United States v. Russell, 411 U.S. 423, 429, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). Inducement does not become irrelevant to either party, to be sure, since the stronger the inducement, the more likely that any resulting criminal conduct of the defendant was due to the inducement rather than to the defendant’s own predisposition. Under the unitary approach we require, inducement therefore enters as an element of predisposition which the Government must disprove, rather than as an independent element which the defendant must prove.

Pragmatic considerations also inhibit us from approving an entrapment charge involving two elements, with different burdens of proof on different parties for each element. We see no valid justifications for imposing such a confused standard on a jury in a criminal case for a judicially created defense which, as pointed out above, involves essentially a single element. Indeed, we are supported in this view by the Government brief in this case which concedes that “it must fairly be said that the initial treatment in the charge of the entrapment issue could generate confusion on the part of the jury.”

The judgment of the district court will be affirmed as to Count III and reversed as to all other counts on which defendant was convicted. The case will be remanded for a new trial or other proceedings consistent with this opinion.

      . Counts I and II involved possession with intent to distribute, and knowing and intentional distribution, on March 22, 1972. Count III involved intentional use of a telephone in facilitating the intentional distribution of heroin on January 5, 1972.. Count IV is not in issue, since Watson was acquitted on this count. Counts V and VI involved intentional use of a telephone to facilitate distribution, and conspiracy to distribute, on March 31, 1972. 21 U.S.C. §§ 841(a)(1), 843(b), 846. He was sentenced on Count I to a prison term of ten years and given suspended sentences or parole on the other counts on which he was convicted. 436-437, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963).

      . Although the Government stated at oral argument that its failure to object to the giving of the charge was merely tactical, we note that Government counsel in his closing argument to the jury conceded that Watson’s testimony had raised the defense of entrapment and had made the defense a question of fact for the jury.

      . Watson admitted that he had been using narcotics for two years prior to the meeting. The fact that he was a user, however, does not establish that he was also a predisposed seller unable to claim entrapment. United States v. Ewbank, 483 F.2d 1149, 1151 (9th Cir. 1973).

      . Watson’s wife testified that Abrams had called once or twice every week, usually when Watson was home, but Watson would not talk to him.

      . We do not find the 17 year old sales conviction to be of significant probative value in showing a present predisposition to sell. Sherman v. United States, 356 U.S. 369, 375-376, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). See also note 3 supra.

      . To convict on Count III of the indictment, the jury must have believed Abrams’ testimony that on January 5, Watson had called Abrams, began discussing kilograms of heroin, and suggested that Abrams meet Watson at the latter’s home. Even accepting this testimony, however, we believe that Watson was entitled to an entrapment charge.
      In United States v. Klosterman, 248 F.2d 191 (3d Cir. 1957), this court reversed the bribery conviction of an IBS agent, Deeney, on the ground that he had been entrapped as a matter of law by his superior, King. Even though Deeney had made the initial approach to King in regard to a taxpayer who had offered a bribe, Deeney thereafter did nothing to set up a meeting with the taxpayer’s agent despite King’s ten or eleven inquiries as to whether Deeney had done so. This court found as a matter of law that even if Deeney’s initial approach to King were a criminal act, Deeney’s abandonment of the scheme was sincere, and the criminal intent for Deeney’s ultimate participation originated with King.

      . In United States v. Klosterman, supra, this court found entrapment as a matter of law even though no motive was given for the accused’s participation other than the desire for monetary gain.

        See United States v. White, 390 F.2d 405 (6th Cir. 1958), where the court found that a factual question of entrapment existed when the defendants “testified that their initial reluctance to participate was overcome by [the agent’s] insistence and by their pressing financial needs. . . .” 390 F.2d at 406. See also Johnson v. United States, 115 U.S.App.D.C. 63, 317 F.2d 127 (1963), where failure to give an entrapment charge was held reversible error when the only possible motive of the defendant given by the court was his hope for a reward from the agent.

      . See also United States v. Harrell, 436 F.2d 606, 612 (5th Cir. 1970), cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972); United States v. DeVore, 423 F.2d 1069, 1072 (4th Cir. 1970), cert. denied, 402 U.S. 950, 91 S.Ct. 1604, 29 L.Ed.2d 119 (1971); Kadis v. United States, 373 F.2d 370, 373-374 (1st Cir. 1966); Johnson v. United States, 115 U.S.App.D.C. 63, 317 F.2d 127, 129 n.2 (1963).

      . The case cited for this proposition was United States v. Conversano, 412 F.2d 1143, 1149 (3d Cir.), cert. denied, 396 U.S. 905, 90 S.Ct. 219, 24 L.Ed.2d 181 (1969), which had contrasted the quoted doctrine with the doctrine represented by the bifurcated charge. 412 F.2d at 1149 & n.6.

      . Brief for Appellee at 8. The Government’s two responses to its concession are (1) “any such confusion was not plain error in light of the circumstances under the existing law”, and (2) any confusion was “completely cured by the final portion of the charge” which stated that “there is no burden on the defendant to introduce any evidence or to convince you of any fact which, if true, would be a defense to the crime charged in the indictment.” As to the first argument, we can reverse even though we do not find the charge to be plain error, since proper objection was made. Compare Crus, supra, at 717 of 478 F.2d. As to the contention that the error was cured by the rest of the charge, we rejected the identical contention in Crus, supra, at 717, and in Silver, supra, at 1219 of 457 F.2d.


author: PER CURIAM:

text:
    Robert B. GROVE, Appellee, v. The FIRST NATIONAL BANK OF HERMINIE, Appellant.
    No. 73-1172.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 21, 1973.
    Decided Dec. 12, 1973.
    As Amended Jan. 21, 1974.

      Harry J. Gruener, David R. Brown, Litman, Litman, Harris & Specter, P. A., Pittsburgh, Pa., for appellee.
    Ralph H. German, Thomas E. Lippard, Houston, Cooper, Speer & German, Pittsburgh, Pa., for appellant.
    Before FORMAN, ALDISERT and GARTH, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

Plaintiff-appellee Grove sought damages alleging violations of Federal Reserve margin requirements (Regulation U: 12 CFR § 221) promulgated pursuant to the Securities Exchange Act of 1934, 15 U.S.C.A. § 78g. Jurisdiction is asserted under 15 U.S.C.A. § 78aa.

I.

In a non-jury proceeding, the trial court found that the defendant-appellant First National Bank of Herminie, (hereinafter “Bank”) had violated Regulation U, and awarded damages in the amount of $67,367.49 to the plaintiff. In addition, the court dismissed defendant’s counterclaims seeking recovery for loans made by the Bank to plaintiff, and for damages resulting from alleged misrepresentations by the plaintiff. Challenging both findings of fact and conclusions of law, the defendant appeals pursuant to 28 U.S.C.A. § 1291.

The trial court found the following facts recited in its opinion: Plaintiff, whose formal education was terminated after the 9th grade, was a used car repairman and salesman. His dealings with the Bank in obtaining loans commenced April 2, 1965, but the damages sought in this action relate only to five loans, as follows: October 23, 1967 $5,000; November 1, 1968 $99,300; December 2, 1969 $8,000; March 3, 1970 $7,000; September 8,1970 $2,500.

The loan limitations established by Regulation U for the periods involved were :

November 1963 to June 7, 1968 — 30% of the value of the stock;

June 8, 1968 to May 5, 1970 — 20% of the value of the stock;

May 6, 1970 to December 3, 3971 — 35% of the value of the stock.

The trial court found that Grove personally knew the Bank cashier (John Pittavino) at the time that he [Grove] began to obtain stock-collateralized loans from the Bank and that the relationship continued until Pittavino’s death in February 1971. Pittavino, a former school acquaintance of Grove’s, arranged the loans made by the Bank to plaintiff. In the course of these dealings he [Pittavi-no] did not explain to plaintiff that according to federal law, the Bank could lend only a certain percentage of the market value of stock to purchase registered securities. No one at the Bank, or at other banks at which plaintiff borrowed monies against stock collateral, ever made it clearly understood to plaintiff that Regulation U proscribed plaintiff’s dealings by which he borrowed bank funds to buy registered stock or. to pay off prior loans made for such purposes.

At trial, not one of the defendant Bank officers could adequately demonstrate that as a loan officer he understood the margin requirements of Regulation U at the time of dealing with the plaintiff. With only one exception, the Regulation U forms were signed in blank by plaintiff. The one exception to 'that practice occurred when Pittavino directed Grove to write in the purpose of the loan as being for inventory. Further, the Bank frequently loaned money to Grove without even requiring him to deliver the collateral on the day that the loan was made. In one instance the Bank received delivery of the collateral directly from a stock broker. The Court found that the Bank had constructive as well as actual knowledge (through its cashier, Pittavino) that the proceeds of the loans were being used by plaintiff almost totally for the purpose of carrying or purchasing registered securities, rather than for any purpose related to Grove’s small used car business. The court thereupon concluded, and the record supports the conclusion, that the Bank violated Regulation U.

The trial court also found that the plaintiff did not have “sophisticated information regarding Regulation U which he advantageously and deceitfully employed see Serzysko, supra and Goldman, supra.” Further, with respect to the counterclaims asserted by the Bank, the court found that the filing of the instant district court action constituted an election by Grove to rescind his loans, thereby terminating any liability on the loans, and that there was no evidence to substantiate any claim by the Bank that Grove had deceived the Bank or had misrepresented the value of certain Studebaker-Packard stock which had been pledged by him as additional security.

II.

At no time has the appellant Bank disputed the theory under which plaintiff has brought his action. Indeed by concession in its brief and at oral argument, appellant has removed this issue from our consideration. We therefore do not meet the question of the propriety of the implied tort theory of recovery. In Jennings v. Boenning & Co., 482 F.2d 1128 (3d Cir. 1973), discussing the Second Circuit decision in Pearlstein v. Scudder & German, 429 F.2d 1136 (1970), we reserve the question “whether this court would adopt the view of the Pearlstein majority, see, e. g., the dissenting opinion of Chief Judge Friendly, 429 F.2d at 1145-1149 . .” Because this appeal presents no controversy on this issue, we continue to reserve the question of whether a party under a Regulation “T” or “U” transaction may maintain a private cause of action. Appellant’s concession requires us to proceed on the assumption that such a cause of action is available.

Our scope of review of the findings made by the trial court is set forth in F.R.Civ.P. Rule 52(a), which provides: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.”

The gist of appellant’s argument on this appeal — that plaintiff’s testimony was substantially contradicted and therefore is untrustworthy — has little merit when directed to an Appellate Court. Credibility is a matter to be determined by the trial judge, and not by the Court of Appeals. Speed v. Transamerica Corporation, 235 F.2d 369, 373 (3d Cir. 1956).

“It is the responsibility of an appellate court to accept the ultimate factual determination of the fact-finder unless that determination either (1) is completely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no rational relationship to the supportive evidentiary data.” Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972). The facts found by the district court are fully supported in the record, and we cannot say that they are clearly erroneous.

Among other contentions, the Bank argues that (1) no causal relationship has been proved between the Regulation U violations and the damages claimed by Grove; and (2) the trial court erred in the “formula” it utilized in determining damages.

Our review of the record satisfies us that the causal relationship essential to the trial court’s award of damages was amply demonstrated.

As to the damage award itself, the Bank claims that the plaintiff has realized a “profit” by virtue of the manner in which the trial court formulated damages. We cannot agree.

The trial court computed the plaintiff’s damages by measuring the decline in value of the registered stock pledged by Grove (with the Bank), from the dates on which the stock was pledged, until the date on which the stock was sold. The parties stipulated that under such a “formula” the amount of damages would be $67,367.49.

Contending that Grove is made whole if he receives the difference between the value of the total collateral pledged ($161,641.66) and the amount loaned to Grove ($118,806.62), the Bank argues that the damage award, exceeding this difference by $24,532.45, contains an unauthorized “profit”. The amount asserted by the Bank to be a profit is also the amount that the Bank lost in its transactions with Grove, and is the subject of the Bank’s first counterclaim.

If we were to accept the Bank’s argument, it would have the effect of permitting the Bank to recover its claim for deficiency against the plaintiff despite the dismissal of its counterclaim. Such a result is contrary to the Congressional policy which provides, in pertinent part, that:

Every contract made in violation of any provision of this chapter’ or of any rule or regulation thereunder, and every contract . . . heretofore or hereafter made, the performance of which involves the violation of, or the continuance of any relationship or practice in violation of, any provision of this chapter or any rule or regulation thereunder, shall be void (1) as regards the rights of any person who, in violation of any such provision, rule, or regulation, shall have made or engaged in the performance of any such contract .

15 U.S.C. § 78cc(b). The effect of this provision is to preclude a lending bank from recovering a deficiency where the bank has violated Regulation U. Cooper v. Union Bank, supra. Such a recovery may be precluded even if the borrower knowingly and intentionally deceives the bank as to the actual purposes of the loans. See Serzysko v. Chase Manhattan Bank, supra; but cf. Goldman v. Bank of Commonwealth, supra. Since the Bank is precluded from recovering its deficiency, the method of damages computation suggested by it cannot be sustained. The record supports the damages awarded by the trial court.

The judgment of the district court will be affirmed.

      . A bank would be in violation of Regulation U if it loaned amounts in excess of the percentages noted to purchase stock or to pay off loans previously made to purchase stock, if it knew or bad reason to believe that the loans to its customers were being so used.

      . See: 12 C.F.R. § 221.1 et seq.

      . With regard to the five loans for which plaintiff seeks damages, the following chart indicates the disparity between plaintiff’s ratio of indebtedness to collateral and the Federal Reserve’s margin requirements, (which requirements apply only with regard to credit secured by stock and obtained for the purpose of purchasing or carrying registered stock, 12 C.F.R. § 221.1(a)):

      . Serzysko v. Chase Manhattan Bank, 290 F.Supp. 74 (S.D.N.Y.1968) aff’d. 409 F.2d 1360 (2d Cir. 1969), cert. denied 396 U.S. 904, 90 S.Ct. 218, 24 L.Ed.2d 180 (1969); Goldman v. Bank of Commonwealth, 467 F.2d 439 (6th Cir. 1972).

      . “Had there been adequate believable evidence in the record to support these conclusions as to the fact of violations, Herminie could not dispute the legal correctness of these conclusions under the cited authorities.” (Appellant’s Brief, 10.) Appellee had relied upon Goldman v. Bank of the Commonwealth, supra; Serzysko v. The Chase Manhattan Bank, supra; and Remar v. Clayton Securities Corp., 81 F.Supp. 1014 (Mass. 1949). See also Cooper v. Union Bank, 354 F.Supp. 669 (D.C.Calif.1973); Tartell v. Chelsea National Bank, 351 F.Supp. 1071 (S.D.N.Y.1972).

      . At trial, the Bank proposed no theory of damages other than what could be inferred from its claim for the deficiency. The plaintiff’s evidence contrasted the value of his securities on the dates pledged to the Bank with the value on sell-out. (Plaintiff’s Exhibit 51). We therefore limit our opinion as to tbe correctness of the district court’s measure of damages to the contentions and theories presented and the evidence at trial.

      . The Bank asserts that such a “profit” is unauthorized because the function of tort damages is normally to restore the injured party to his “pre-tort” position.

      . Other contentions raised by the appellant have been considered by the court and rejected.


author: VAN DUSEN, Circuit Judge. McLAUGHLIN, Circuit Judge

text:
    Warren CURTIS, Appellant, v. Angus Russell EVERETTE et al.
    No. 72-1935.
    United States Court of Appeals, Third Circuit.
    Submitted Sept. 11, 1973.
    Decided Dec. 17, 1973.
    McLaughlin, Circuit Judge, dissented and filed opinion.

      James G. Gavin, Community Legal Services, Inc., Philadelphia, Pa., for appellant.
    Hermann Rósenberger, II, Philadelphia, Pa., for appellee.
    Before McLAUGHLIN, VAN DUSEN and ROSENN, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This appeal challenges an August 8, 1972, district court order dismissing a complaint under the Civil Rights Acts (42 U.S.C. §§ 1981 and 1983, and 28 U. S.C. § 1343(3)), which also asserts pendent jurisdiction of a state law claim against a fellow prisoner (Everette), alleging that while plaintiff was a state prisoner at the Huntingdon Correctional Institute, “[o]n or about March 24, 1970 at approximately 11:45 a. m., Defendant Everette physically attacked without provocation Plaintiff . ... in the kitchen at [such] Institute” (par. 11). Plaintiff was assaulted by Everette allegedly “solely because defendants Hess [dietician and kitchen guard], Smith [head steward and kitchen guard] and Brindle [correctional officer] had stopped him from defending himself and due to his reliance on the fact [that such] Defendants . . . who had custody of [Everette] would perform their duty in disarming and restraining [Everette] and in protecting [plaintiff] .” Paragraph 12 of the complaint alleges that plaintiff “suffered great pain and suffering and the permanent loss of sight of his right eye.” Paragraph 21-a and d alleges that defendants Smith, Hess and Brindle deprived plaintiff of his civil rights by

“a. Failing to disarm Defendant Angus Russell Everette while in their custody after he had, in their presence, attacked Plaintiff Warren Curtis with a home-made knife.

“d. Failing to restrain

Everette after he had once attacked Plaintiff . . . with a home-made knife and allowing him to attack Plaintiff a second time causing the loss of sight in his right eye.”

Finally, paragraphs 14 and 21-f allege that these three defendants had actual knowledge of the dangerous nature and propensity of Everette.

These allegations were made in a complaint signed by a member of the Bar of the United States District Court for the Eastern District of Pennsylvania, which signature constitutes a certification by such attorney that, to the best of her knowledge, information and belief, there is good ground to support such complaint. Furthermore, such allegations assert intentional conduct within the rule stated by Judge Aldisert in Howell v. Cataldi, 464 F.2d 272, 281 (3d Cir. 1972), as follows: See also Basista v. Weir, 340 F.2d 74, 81 (3d Cir. 1965).

“All that is required is proof that the conduct was intentional. There is no requirement of proof of a further objective toward which the conduct is directed. ‘While a specific intent to deprive a person of his constitutional rights is required under criminal sections . . ., neither specific intent nor purpose to deprive an individual of his civil rights is a prerequisite to civil liability under the civil provisions of the Civil Rights Act.

In view of the requirement that the allegations of the complaint and all reasonable inferences therefrom must be considered as true on a motion to dismiss, we have concluded that, at this stage of the litigation, plaintiff may prove a set of facts constituting a cause of action under 42 U.S.C. § 1983 based on a violation of the due process clause of the Fourteenth Amendment. See Johnson v. Glick, 481 F.2d 1028, 1032-1033 (2d Cir. 1973), and cases there cited; cf. Kish v. County of Milwaukee, 441 F.2d 901, 904 (7th Cir. 1971). The plaintiff’s reliance on his alleged constitutional “right to be secure in his person” (see note 2 above) and on the proposition that the “Fourteenth Amendment is the constitutional basis for 42 U.S.C. 1983” (page 17 of his brief) makes applicable the principle of Glick (481 F.2d p. 1032) that a prisoner may not be deprived “of liberty without due process of law.” Applying the language of the Supreme Court in Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952), the alleged activities of these three state officials “do more than offend some fastidious squeamishness or private sentimentalism .... This is conduct that shocks the conscience.” Again, at pages 173-174, 72 S.Ct. at page 210, Mr. Justice Frankfurter said:

“So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society.”

As stated in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957):

“In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

In view of the above reliance on the due process clause of the Fourteenth Amendment, it is not necessary to discuss the possible application of the equal protection clause of that Amendment or of the language concerning cruel and unusual punishment in the Eighth Amendment. See, for example, Kish v. County of Milwaukee, supra.

Under these circumstances, the dismissal of the complaint as to the above-mentioned three defendants (Hess, Smith and Brindle) must be set aside. Using the language of Wiltsie v. California Department of Corrections, 406 F.2d 515, 518 (9th Cir. 1969), which is cited by Judge Friendly in Johnson v. Glick, supra,

“It must be clear from what is said above that the ‘facts’ of this case to which we have been referring are simply those which have been alleged by [Curtis] and which are as yet unproved. We have accepted those allegations of fact as true only for the purpose of this appeal. At the trial the plaintiff will have the burden of proving allegations which state a claim for relief. In addition to contesting those issues of fact, defendants will have an opportunity to develop such other defenses as they may plead.”

I.

It is conceded that the complaint states a claim under state law against Everette. This claim arises from the same operative factual situation that constitutes a federal claim against the above three defendants of sufficient substance to confer subject matter jurisdiction on the district court. Under these circumstances, it was held in United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966), that the district court had the power to hear the pendent claim

“. . . 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 ‘case.’ The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. . . . 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.”

The fact finder may well be enlightened rather than confused by having Everette’s connection with, and responsibility for, the alleged assault presented in the same trial. See Nelson v. Keefer, 451 F.2d 289, 291 (3d Cir. 1971); Jacobson v. Atlantic City Hospital, 392 F.2d 149, 153-155 (3d Cir. 1968); Wilson v. American Chain & Cable Co., 364 F.2d 558, 564 (3d Cir. 1966). The Supreme Court recently noted that the trend of decisions throughout the courts of appeals since Gibbs has been to recognize the existence of judicial power to hear pendent claims involving pendent parties where “the entire action before the court comprises but one constitutional ‘ease’,” as defined above. See Moor v. County of Alameda, 411 U.S. 693, 711-715 and n. 28, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). Pendent jurisdiction of a claim similar to the claim against Everette has recently been approved by the Second Circuit. See Leather’s Best, Inc. v. S. S. Mormaclynx, 451 F.2d 800, 809-811 (2d Cir. 1971) (Friendly, Chief Judge). Mr. Justice Brennan has recently stated in Moor, supra, 411 U.S. at 716, 93 S.Ct. 1785, that “broad discretion” should be given to the district court “in evaluating such matters,” but the district court in this ease never considered the possible exercise of discretion since it dismissed the action against all defendants except Everette on the ground that the complaint failed to state a claim upon which relief can be granted. We have concluded that the complaint against Everette should be remanded to the district court so that it may consider the exercise of “the substantial element of discretion inherent in the doctrine of pendent jurisdiction.” See Moor, supra at 716-717 n. 36, 93 S. Ct. 1799.

For the foregoing reasons, the district court order will be vacated, and the case remanded for further proceedings consistent with this opinion, insofar as it dismisses the complaint against Everette.

II.

There were also named as defendants Arthur T. Prasse, Commissioner of Corrections of the Commonwealth of Pennsylvania, and Harry E. Russell, Superintendent of the Huntingdon Correctional Institute. Plaintiff’s brief states its claim against these defendants as follows: 10, 11.) Among other reasons it is alleged that appellees Prasse, Russell, the Bureau of Corrections, and the Commonwealth of Pennsylvania did intentionally, wilfully and recklessly cause appellant’s personal injury and deprivation of his constitutional rights by failing to provide adequate training to the guards for the protection of inmates, failing to hire adequate personnel to protect the inmates, permitting prisoners to retain home-made weapons, failing to inspect prisoners leaving the dining room for secreted kitchen utensils which are converted to weapons, failing to inspect the cells for weapons, and allowing the said dangerous conditions to continue with actual knowledge. (Complaint, Paragraphs 16, 17; See Appendix, p. 10, 11). [page 2]

“Although appellees Prasse and Russell were not present at the time of the injury, it is alleged that due to thirteen reasons they breached a duty specifically owed to appellant Warren Curtis, and that as a result of the breach of that duty appellant suffered personal injury and deprivation of constitutional rights. (Complaint, Paragraphs 16, 17; See Appendix, p.

“. . . the allegations are made, not on the basis of respondeat superi- or, but on the basis of personal liability for these acts by the defendants, Prasse, Russell, the Bureau of Corrections, and the Commonwealth of Pennsylvania. All these appellees clearly had a common law and statutory duty to keep Warren Curtis in ‘safe custody’. 61 Purdon’s Statutes § 74.” [page 12]

Assuming that there is a duty under Pennsylvania law to make reasonable efforts to keep plaintiff in “safe custody,” there is no allegation of facts indicating intentional action by these defendants “under color of” state law subjecting plaintiff or causing plaintiff to be subjected to deprivation of his civil rights. See Howell v. Cataldi, supra; Williams v. Field, 416 F.2d 483 (9th Cir. 1969), cert. denied, 397 U.S. 1016, 90 S.Ct. 1252, 25 L.Ed.2d 431 (1969); cf. Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); Kish v. County of Milwaukee, supra, 441 F.2d at 904. The Kish case states that a clear abuse of discretion in operating a jail is necessary to make the superintendent (Russell) liable for an assault such as this. This court has repeatedly held that conclusory allegations, such as “intentionally, wilfully and recklessly,” without supporting facts are not sufficient to make out a complaint under 42 U.S.C. § 1983. See Negrich v. Hohn, 379 F.2d 213, 215 (3d Cir. 1967); Kauffman v. Moss, 420 F.2d 1270, 1275 (3d Cir. 1970); Esser v. Weller, 467 F.2d 949, 950 (3d Cir. 1972). There are no allegations that Prasse or Russell had reason to know Everette would commit such an assault or that similar assaults had taken place.

For these reasons, we will affirm the district court order dismissing the complaint as to defendants Prasse and Russell.

III.

The district court order must also be affirmed insofar as it dismissed the complaint against the Commonwealth of Pennsylvania and the Bureau of Corrections of that Commonwealth, who are not “person[s] ” within the use of that term in 42 U.S.C. § 1983 and hence not subject to suit under that section of the Civil Rights Act. See Moor v. County of Alameda, supra, 411 U.S. at 699-700 and 706-710, 93 S.Ct. 1785, 36 L.Ed.2d 596; Monroe v. Pape, 365 U.S. 167, 187-191, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84, 86 n. 2 (3d Cir. 1969).

For the above reasons, the above-mentioned August 8, 1972, district court order will be vacated insofar as it dismissed the complaint against defendants Everette, Smith, Hess and Brindle, and the case will be remanded to the district court for further proceedings as to these defendants in accordance with this opinion. In all other respects, such district court order is affirmed.

McLAUGHLIN, Circuit Judge

(dissenting).

I must respectfully dissent from the conclusion reached by the majority as to defendants Everette, Smith, Hess and Brindle.

The Supreme Court’s decision in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) requires that the Civil Rights Act, particularly 42 U.S.C. § 1983, “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Id. at 187, 81 S.Ct. at 484. However, this should not be construed to mean that every tort constitutes a denial of rights, privileges and immunities secured by the Constitution and Laws of the United States simply because such tort is committed under “color of law”. Here, one inmate of a state correctional institute atrociously assaulted a fellow inmate, appellant herein. Appellant alleged that the presence of the defendants, Hess, Smith and Brindle (prison personnel), at the scene of the attack and their failure to adequately restrain the attacker constituted conduct under “color of law” and therefore a violation of federally guaranteed rights. These allegations are frivolous and clearly insufficient to establish a cause of action under 42 U.S.C. § 1983.

Appellant’s remedy should have been pursued in the State courts of the Commonwealth of Pennsylvania under general tort principles of the common law. Therefore, the district court properly dismissed appellant’s complaint against all defendants for failure to state a cause of action upon which relief can be granted.

      . Paragraph 13 of the complaint.

      . Similarly, paragraph 20 alleges that Hess, Smith and Brindle “under" color of state law did intentionally, willfully, and recklessly deprive Plaintiff ... of the right to be secure in his person, to be free of cruel and unusual punishment and to equal protection of the laws and are jointly and severally liable for their action.” See 42 U.S.O. § 1983.

      . F.R.Civ.P. 11 provides, inter alia:

      “The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information and belief that there is good ground to support it; and that it is not interposed for delay .... For a wilful violation of this rule, an attorney may be subjected to appropriate disciplinary action.”

      . See Walker v. Food Machinery, 382 U.S. 172, 174-175, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965), and case there cited in note 4. The brief of appellant (pp. 9 & 10) contends that the allegations and reasonable inferences therefrom support this factual situation :
      “These appellees did not restrain Angus Russell Everette, did not disarm him, and intentionally, wilfully, and recklessly released him to resume his attack on appellant, causing the injury to his eye.
      “. . . not more than minutes before Appellant was stabbed in the eye, Everette had attempted to stab appellant with the very same weapon right before the appellant correctional officers’ ey.es.”

      . We note that the district court relied on Gray v. Creamer, 329 F.Supp. 418 (W.D. Pa.1971), in dismissing the complaint on August 8, 1972, and our decision reversing that opinion was not filed until August 14, 1972. See Gray v. Creamer, 465 F.2d 179 (3d Cir. 1972).

      . As stated in Brown v. Brown, 368 F.2d 992, 993 (9th Cir. 1966),
      “The pleadings filed by appellant contain allegations which could be said to tax a reader’s credulity. • . . . However, in passing on a motion to dismiss for failure to state a claim, the facts set forth in the complaint must be assumed to be true.”

      . The above-cited cases involved situations where, in addition to stating a claim that independently met federal jurisdictional requirements, the complaint stated a related claim involving different parties which met the diversity of citizenship requirement but failed to meet the jurisdictional amount requirement. In each case, the Third Circuit held that, nevertheless, it was permissible for the district court to apply the doctrine of pendent jurisdiction because the claims were such that a plaintiff would ordinarily be expected to try them in one judicial proceeding.. Therefore, this case (see third cause of action), where the pendent claim meets the jurisdictional amount but fails to meet the diversity requirement, falls within the principle of Gills, supra.

      . See also Almenares v. Wyman, 453 F.2d 1075, 1083-1085 (2d Cir. 1971); Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 441 F.2d 627, 629 (2d Cir. 1971).

      . We note the unusual circumstances of this case, where the primarily active tortfeasor’s part is so crucial in the alleged tortious event.

      . With reference to possible liability under the doctrine of respondeat superior, which is not relied on by plaintiff in this case, see Vicarious Liability Under Section 1983, 6 Indiana Law Review 509 (1973).

      . It is noted that 61 P.S. 74, cited by appellant, imposes a duty upon defendant Russell as “superintendent” only where a prisoner has been transferred or retransferred due to overcrowded conditions (see 61 P.S. 72) and there is no allegation in the complaint of any transfer or retransfer of plaintiff to the Huntingdon Correctional Institute. Furthermore, it is clear that 61 P.S. 74 imposes no duty upon defendant Prasse, who is alleged to be Commissioner of the Bureau of Corrections.