author: JAMES HUNTER, III, Circuit Judge: ADAMS, Circuit Judge ALDISERT, Circuit Judge

text:
    In re GRAND JURY PROCEEDINGS. Appeal of Jacqueline SCHOFIELD.
    No. 74-2179.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 9, 1974.
    Decided Jan. 16, 1975.

      Robert E. J. Curran, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Philadelphia, Pa., for appellee.
    Joseph A. Torregrossa, Morgan, Lewis & Bockius, Philadelphia, Pa., for appellant.
    Before ALDISERT, ADAMS and HUNTER, Circuit Judges.
   OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This case raises questions concerning the district court’s application of our holding in In re Grand Jury Proceedings, 486 F.2d 85 (3d Cir., 1973) (Schofield I). Because we conclude that the requirements of Schofield I have been met, the district court order is affirmed.

I.

In Schofield I this court soundly rejected any contention that the district court should “rubber stamp” petitions for the enforcement of grand jury subpoenas. Instead we held that the trial court would first be required to satisfy itself of the propriety of the subpoena. Under our supervisory powers we required the party seeking enforcement of a grand jury subpoena to make some minimal showing by affidavit of the existence of a proper purpose. We suggested three tests for determining whether the required showing had been made.

. [W]e think it reasonable that the Government be required to make some preliminary showing by affidavit that each item is at least relevant to an investigation being conducted by the grand jury and properly within its jurisdiction, and is not sought primarily for another purpose. 486 F.2d at 93.

Despite the fact that the burden is generally on the witness to show abuse of the grand jury process, Schofield I requires the government to present affidavits in every case irrespective of whether the witness has challenged the propriety of the subpoena. This broad rule is designed to prevent abuse of the grand jury process by requiring a minimum disclosure of the grand jury’s purpose in every case.

Schofield I emphasizes that where the district court is not satisfied with the affidavits presented by the government, whether because the matters set forth challenge the court’s credibility or because the witness has made some colorable challenge to the affidavits, the court can require something more.

The district judge is vested with considerable discretion in determining whether additional proceedings are warranted. Various avenues of inquiry are open to a court which questions the sufficiency of the affidavits, among them discovery, in camera inspection, additional affidavits and a hearing. If it was not made clear in Schofield I, we emphasize now that the decision to require additional investigation is committed to the sound discretion of the district court. In Schofield I we stated:

the court must in deciding that request [for additional proceedings,] weigh the quite limited scope of an inquiry into abuse of the subpoena process, and the potential for delay, against any need for additional information which might cast doubt upon the accuracy of the Government’s representations. 486 F.2d at 93.

We will not disturb a decision to deny additional review unless we find that the district court’s “weighing” was an abuse of discretion.

Our decision in Schofield I was made against the backdrop of a long line of Supreme Court decisions on the subpoena enforcement powers of grand juries. Despite the fact that those cases deal with constitutional power as opposed to Schofield I’s reliance on the court’s supervisory powers, we are not inclined to interpret Schofield I as a major deviation from the thrust of these Supreme Court decisions. Indeed, the court in Schofield I concludes that United States v. Dionisio, 410 U.S. 1, 12, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) and Branzburg v. Hayes, 408 U.S. 665, 709-710, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) “explicitly reiterating . . . the power of the district courts to control the use of grand jury subpoenas”. 486 F.2d at 89. In bottoming its analysis in Dionisio and Branzburg; Schofield I makes clear that no radical departure from these cases is intended. Implicit in Schofield I therefore is a realization that the grand jury must be given broad investigative powers. With the Court in Dionisio, we conclude that any holding that would “saddle” a grand jury with minitrials would impede its investigative duty. 410 U.S. at 17, 93 S.Ct. 764. Schofield I clearly did not intend to impede the grand jury process by requiring hearings in every case. It merely restated a district court’s authority to deal individually with the facts of each subpoena. No Supreme Court case has implied that an enforcing judge is without power to deal with a subpoena judged to be abusive or improper. Our holding in Schofield I, that a district court is vested with discretion to require additional proceedings, is merely an implementation of that power to deal with questions of abuse based on the facts of each subpoena.

Our holding in Schofield I did not require a showing of reasonableness, it did not require any determination of probable cause and it clearly did not require a hearing in every case.

What Schofield I did require, however, was a minimum showing by affidavit in every case that each item sought was (1) relevant to an investigation, (2) properly within the grand jury's jurisdiction, and (3) not sought primarily for another purpose.

None of the Supreme Court cases deal with the precise issue raised in Schofield I. Nevertheless, we feel that the three-pronged showing requirement of that case is perfectly compatible with Supreme Court decisions. It should be noted that in United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99; United States v. Dionisio, supra and Branzburg v. Hayes, supra, affidavits were supplied to the district court. The affidavit requirement was never addressed in those cases. But under our supervisory power over the grand jury and over the district court’s enforcement of subpoenas, supra n. 2, we feel empowered to specify the particular way in which relevancy and proper purpose of a grand jury investigation shall be shown in this Circuit.

II.

The first subpoena relevant to this case was issued in April of 1973. Mrs. Schofield was directed to permit photographs, fingerprints and handwriting exemplars to be taken. She refused to comply. This court vacated the district court’s order adjudging the witness in civil contempt in Schofield I. Upon remand, the subpoena was not renewed.

In January of 1974, Mrs. Schofield was subpoenaed to testify before the grand jury. After being granted immunity, she did in fact testify for seven hours.

The present appeal deals with a subpoena issued in July of 1974 which again directed the witness to permit photographs, fingerprints and handwriting exemplars to be taken. When Mrs. Scho-field refused to comply, the United States Attorney’s office moved to enforce the subpoena in the district court. Appellant filed an answer to the enforcement motion averring, among other things, that the affidavit was insufficiently detailed to determine relevancy and that the government already had in its possession a photograph and a handwritten letter. The court nevertheless denied further discovery and ordered enforcement of the subpoena. Mrs. Scho-field refused to comply and was ultimately adjudged in civil contempt.

In a detailed opinion the district court concluded that the government affidavit in support of the enforcement motion had in fact complied with the Schofield I three-pronged affidavit requirement. We agree. The affidavit states:

Walter S. Batty, Jr., Assistant United States Attorney in and for the Eastern District of Pennsylvania, states as follows:
1. The January 25, 1974 Grand Jury for the Eastern District of Pennsylvania is now conducting investigations of various alleged illegal activities in the said District; said investigations involve possible violations of federal criminal statutes, including 18 U.S.C. §§ 1621 [perjury], 1623 [giving false declarations]. Jacqueline Scho-field has been subpoenaed by the said Grand Jury and has been fully advised that she is a potential defendant in its investigation.
2. It is essential and necessary to the said Grand Jury investigation that Jacqueline Schofield furnish before and to the Grand Jury, or to any duly appointed agent of the said Grand Jury, exemplars of her handwriting and/or handprinting, and to permit that her photograph and fingerprints be taken. Such items will be used solely as a standard of comparison to determine whether or not the witness uttered any forged, falsely made, altered or counterfeited checks. (Appendix at 38.)

While the information supplied was scant, it was not insufficient as a matter of law. The affidavit gave the trial judge some basis for determining that the three-pronged test of Schofield I had been met. Considering the slender information supplied and Mrs. Schofield’s allegation that the government already had the information it sought in the affidavit, the district court could have required something more of the government. We state again, however, that we will not review the trial court’s refusal to grant additional inquiry except where we find the refusal to be abuse of discretion.

The government affidavits state that the grand jury was investigating violations of criminal statutes and that the witness was a potential defendant, thus clearly satisfying the requirement that the items be relevant to the grand jury investigation and properly within the grand jury’s jurisdiction. The last requirement of Schofield I, that the item not be sought for another purpose, is less clearly laid out in the affidavit but sufficiently met in the district judge’s and our view. Paragraph two of the affidavit states that the material will be used solely as a standard of comparison to determine whether the witness had committed forgery. The district judge knew that the grand jury was investigating perjury and that the witness had been granted immunity from prosecution for forgery during her seven hours of grand jury testimony. A viable conclusion is that the exemplars were relevant to determine whether Mrs. Schofield perjured herself during her earlier testimony before the grand jury.

Having satisfied the minimum showing requirements of Schofield I, we can only disturb the failure to require more if an abuse of discretion is shown. Although Mrs. Schofield contested the need for the exemplars, alleging that the government already had copies of her photograph and handwriting, the district judge satisfactorily explained his refusal to require more. Because of the limited scope of inquiry into abuse of the grand jury process, the court concluded that there had been no charge of harassment or unreasonableness and that additional review was, therefore, unnecessary. The slight burden of compliance did not warrant further inquiry into the grand jury’s reasons for requesting the information. We find no abuse of discretion and consequently hold meritless appellant’s contention that additional proceedings are required in this case.

III.

Since Schofield I has been met in all respects, the district court’s order of civil contempt will be affirmed.

ADAMS, Circuit Judge

(concurring):

I concur in the result reached by Judge Hunter. Because in some respects it seemed to undercut the holding by the Supreme Court in Dionisio and Mara, I had some question regarding the compatibility of Schofield I. However, until overruled, Schofield I is the law of this Circuit, and the conclusion reached by Judge Hunter is an appropriate application of it.

The affidavit here is not a model of clarity or precision, and it might have been better for the affidavit to have specifically negated an intent to harass the witness. Nevertheless it would not appear that the district court abused its discretion in ruling that the affidavit on its face provides “some preliminary showing” that each of the requested items was relevant to a properly authorized grand jury investigation, and that the requested items were not sought “primarily for some other purpose.” Nor would it appear that the district judge abu.sed his discretion in concluding that the “quite limited scope” of the inquiry and the potential for delay outweighed the witness’s need for additional information in order to enable her to contest the government’s need for the exemplar, fingerprints and photograph sought.

ALDISERT, Circuit Judge

(dissenting).

Before treating my disagreement with the majority, which follows an extremely narrow compass, I find it necessary to discuss the precise holding of In re Grand Jury Proceedings, 486 F.2d 85 (3d Cir. 1973) (Schofield I), and to answer the government’s attack on it in this case.

I.

In Schofield I we recognized that United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), “[b]oth hold that the fourth amendment does not require any preliminary showing for the issuance of a grand jury subpoena, either to compel testimony, or to compel production of voice or handwriting exemplars.” Schofield I, supra, 486 F.2d at 89. (Emphasis supplied). We then carefully proceeded to delineate the distinction between an adjudication predicated on constitutional principles and one “involving] the district court’s supervisory power over the proper use of its process in a grand jury proceeding, the supervisory power of this court over the manner in which the district court supervises the proper use of its process, or the substantive and procedural law of civil contempt.” Ibid.

We then set forth precise guidelines to be followed as the law in this circuit:

In view of the fact that information which would justify obtaining the handwriting exemplars, fingerprints, and a mug shot, is in the Government’s sole possession, we think it reasonable that the Government be required to make some preliminary showing by affidavit that [1] each item is at least relevant to an investigation being conducted by the grand jury and [2] properly within its jurisdiction, and [3] is not sought primarily for another purpose.

Ibid, at 93. So that there would be a complete understanding that these requirements were not constitutionally mandated, see United States v. Dionisio, supra, and United States v. Mara, supra, we said:

We impose this requirement both [a] pursuant to the federal courts’ supervisory power over grand juries and [b] pursuant to our supervisory power over civil proceedings . . .. Ibid.

Thus, we must understand what is meant in Judge Hunter’s expressions that “we are not inclined to interpret Schofield I as a major deviation from the thrust of [several] Supreme Court decisions” and “[i]n bottoming its analysis in Dionisio and Branzburg, Schofield I makes clear that no radical departure from these cases is intended.” (p. 965). Judge Hunter is saying (1) we are not altering the constitutional parameters of those decisions and (2) we are reasserting district court power to control grand jury subpoenas.

As to the creation of new procedures, however, Schofield I has mandated, in Judge Hunter’s phrase, “a major deviation” and a “radical departure.” Under Mara and Dionisio no preliminary showing by the government is required. Under Schofield I “three tests for determining . . . the required showing” are mandated. (Judge Hunter’s Op., p. 964). Prior to Schofield I, the government was not required to make a showing. Now it is. That is the “major deviation”; that is the “radical departure.”

II.

The foregoing is the precise interpretation urged by Mrs. Schofield in the present appeal. The government would contest this: “Implicit in Mrs. Schofield’s argument on this appeal is the assertion that federal courts can, pursuant to their supervisory power, impose requirements on the Government which the Supreme Court has specifically ruled are not required by the Constitution. This assertion can not be supported. See, e. g., United States v. Watson, 469 F.2d 362, 364—65 (5th Cir. 1972).” (Government Brief at 4.) There is neither procedural nor substantive merit to the government’s position.

Dissatisfied with Schofield I, the government petitioned for rehearing, alleging in substance the argument it now repeats:

2. The Court’s opinion is not only without precedent but is also in direct contravention of recent opinions of the Supreme Court, including [Dionisio], [Mara] and Branzburg v. Hayes, 408 U.S. 665 [92 S.Ct. 2646, 33 L.Ed.2d 626] (1972). . . .
* * * * * *
3. While it is true that the Supreme Court’s opinions in Mara and Dionisio emphasized the constitutional issues, . . . [the Court] found that such questions could not be properly raised unless the witness were claiming some abuse of the Grand Jury process.

The petition for rehearing was denied. The government did not seek review by the United States Supreme Court. Scho-field I is the law of this circuit.

It was expected that the decision be respected by all — including that department of the Executive Branch of the federal government charged with the enforcement of both statutes and case law in this circuit. I do not deem it procedurally proper for the government to re-litigate the holding of Schofield I. However, such “a second bite” is exactly what the government attempts here, albeit through the transparent device of asserting that the holding of Schofield I was ambiguous and that appellant’s contention, which I have characterized as a precise interpretation, is unwarranted. Nevertheless, I would meet the government’s substantive attack.

Present reliance on United States v. Watson, supra, is misplaced. There the Fifth Circuit held that the government need prove “knowing, intelligent and voluntary” waiver of a defendant’s constitutional rights during police interrogation only by a preponderance of evidence, not beyond a reasonable doubt. Analogizing to Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), which held that in order to establish the admissibility of a confession the prosecution was constitutionally required to show voluntariness only by a preponderance of the evidence, the court made reference to a Lego footnote. This footnote must not be considered in vacuo; it must be related to the text. The text states: “But we are unconvinced that merely emphasizing the importance of the values served by exclusionary rules is itself sufficient demonstration that the Constitution also requires admissibility to be proved beyond a reasonable doubt.” Ibid, at 488, 92 S.Ct. at 626. The Supreme Court decided to go further, and rejected the argument that it mandate a higher burden of proof in the exercise of the Supreme Court’s supervisory power. By footnote the Supreme Court stated:

It is no more persuasive to impose the stricter standard of proof as an exercise of supervisory power than as a constitutional rule. Cf. Ralph v. Warden [438 F.2d 786 (4th Cir. 1970)], clarifying United States v. Inman [352 F.2d 954 (4th Cir. 1965)]; Pea v. United States [130 U.S.App.D.C. 66, 397 F.2d 627 (1967)]. Ibid. n.16.

In Watson the Fifth Circuit suggested that where the Supreme Court had declined to adopt a higher burden of proof in the exercise of its supervisory power, the inferior federal courts could not, on the same or related subject matter, impose a higher burden of proof in the exercise of the Court of Appeals’ supervisory power. As I have already noted, supra p. 968, the Supreme Court opinions in Dionisio, supra, and Mara, supra, were confined to the constitutional issue; they did not address the question whether the Court, in the exercise of its supervisory power, would require a preliminary showing for the enforcement of a grand jury subpoena. In the absence of this second step, I would have no necessity to accept or reject the Fifth Circuit’s interpretation. Suffice it to say, I would not read Lego or Watson to suggest that a federal court may not impose, upon the government, requirements not mandated by “constitutional rule.” Neither have I been directed to, nor has my independent research disclosed, a Supreme Court holding that would foreclose such a court-imposed rule of law. Therefore, I would reject the government’s substantive attack.

Deciding a case in the exercise of a court’s supervisory power means little more than ruling on a basis not specifically set forth in the Constitution, or by statute, procedural rule, or precedent. Although generally associated with the imposition of procedural safeguards for proper judicial administration, exercise of the supervisory power of the Supreme Court or of the Court of Appeals is but a legitimate function of a court’s law-making role. Whatever had been the ancient debate over the power of a court to make, as well as interpret, law suggested in Swift v. Tyson, 41 U.S. (16 Pet.) 1, 10 L.Ed. 865 (1842), that old saw has been laid aside for decades. As recently as Illinois v. City of Milwaukee, 406 U.S. 91, 99, 92 S.Ct. 1385, 1390, 31 L.Ed.2d 712 (1972), the Court has emphasized:

“[F]ederal courts have an extensive responsibility of fashioning rules of substantive law . . . . These rules are as fully ‘laws’ of the United States as if they had been enacted by Congress.”

In the context of federal courts, the expression “exercise of its supervisory authority” had its genesis in McNabb v. United States, 318 U.S. 332, 340-341, 63 S.Ct. 608, 613, 87 L.Ed. 819 (1943), wherein Mr. Justice Frankfurter explained that in the review of direct criminal appeals, the Supreme Court was not limited to a consideration of constitutional rules:

For, while the power of this Court to undo convictions in state courts is limited to the enforcement of those “fundamental principles of liberty and justice,” Hebert v. Louisiana, 272 U.S. 312, 316 [, 47 S.Ct. 103, 104, 71 L.Ed. 270], which are secured by the Fourteenth Amendment, the scope of our reviewing power over convictions brought here from the federal courts is not confined to ascertainment of Constitutional validity. Judicial supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence. .
The principles governing the admissibility of evidence in federal criminal trials have not been restricted to those derived solely from the Constitution. In the exercise of its supervisory authority over the administration of criminal justice in the federal courts, see Nardone v. United States, 308 U.S. 338, 341-342, 60 S.Ct. 266, 267, 268, 84 L.Ed. 307, this Court has, from the very beginning of its history, formulated rules of evidence to be applied in federal criminal prosecutions. And in formulating such rules of evidence for federal criminal trials the Court has been guided by considerations of justice not limited to the strict canons of evidentiary relevance.

Three years later the Court was to say in Fay v. New York, 332 U.S. 261, 287, 67 S.Ct. 1613, 1627, 91 L.Ed. 2043 (1947):

Over federal proceedings we may exert a supervisory power with greater freedom to reflect our notions of good policy than we may constitutionally exert over proceedings in state courts, and these expressions of policy are not necessarily embodied in the concept of due process.

In La Buy v. Howes Leather Co., 352 U.S. 249, 259-260, 77 S.Ct. 309, 315, 1 L.Ed.2d 290 (1957), Mr. Justice Clark stated flatly:

We believe that supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system.

Bartone v. United States, 375 U.S. 52, 54, 84 S.Ct. 21, 23, 11 L.Ed.2d 11 (1963) (per curiam), emphasized that “the Courts of Appeals and this Court (McNabb v. United States, 318 U.S. 332 [63 S.Ct. 608, 87 L.Ed. 819],) have broad powers of supervision” over federal proceedings.

The Court of Appeals for the Third Circuit has not been hesitant in expressing what would best further the administration of criminal justice in the exercise of our supervisory authority. And in each case we imposed requirements not mandated by Constitutional rule. United States v. Schiavo, 504 F.2d 1, 7 (3d Cir. 1974) (in banc), cert. denied sub nom., Ditter v. Philadelphia Newspapers, Inc., - U.S. -, 95 S.Ct. 690, 42 L.Ed.2d 688 (1974); United States v. Crutchley, 502 F.2d 1195, 1200 (3d Cir. 1974); United States v. Barber, 442 F.2d 517 (3d Cir.), cert. denied, 404 U.S. 958, 92 S.Ct. 327, 30 L.Ed.2d 275 (1971); Government of Virgin Islands v. Bodle, 427 F.2d 532, 534 (3d Cir. 1970); United States v. Fioravanti, 412 F.2d 407, 419-420 (3d Cir.), cert. denied sub nom., Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969); Government of Virgin Islands v. Lovell, 378 F.2d 799, 805 (3d Cir. 1967); cf. United States ex rel. Sturdivant v. New Jersey, 289 F.2d 846, 848 (3d Cir.), cert. denied, 368 U.S. 864, 82 S.Ct. 109, 7 L.Ed.2d 61 (1961). For an anthology of cases relating to the supervisory power of federal courts of appeals see Burton v. United States, 483 F.2d 1182, 1187-1188 (9th Cir. 1973), quoted at length in United States v. Bailey, 480 F.2d 518, 520 (5th Cir. 1973) (Goldberg, J., concurring and dissenting).

While Judge Weis and I have expressed concern about promulgating procedures that possess retrospective force and effect in the exercise of our supervisory power, see United States v. Schiavo, supra, dissenting opinion, no such considerations are present in the instant appeal; the happenings which gave rise to this appeal took place following the effective date of Schofield I. I now turn to these.

III.

The first subpoena, at issue in Scho-field I, was issued in April, 1973, and directed Mrs. Schofield to present herself for photographs, fingerprinting and handwriting or handprinting exemplars. After our court’s decision became final, there was no government effort to enforce the initial subpoena. A second subpoena was issued in January, 1974, requesting that she testify before the grand jury. She did so under a grant of immunity. A third subpoena was issued in July, 1974, again seeking handwriting or handprinting exemplars, photographs, and fingerprints. Appellant filed a motion to quash on the ground that there was no supporting affidavit as required by Schofield I. On July 22 the district court denied this motion, finding that no advance request was made of the appellant to produce the materials. Such a request did follow on July 30; the next day a purported affidavit was submitted. This “affidavit” was not sworn to.

On August 28, appellant filed an answer to the government’s motion to enforce, averring that the government had in its possession both a photograph and a handwriting exemplar. She later moved for additional discovery into the government’s claim of relevance and necessity. On October 16, the district court denied both motions; denying the government’s motion without prejudice.

On October 29, a revised, sworn-to affidavit was filed. On. November 1, the district court ordered appellant to appear before the grand jury on November 12; on November 13, after she refused to comply, a show cause order issued and, following a hearing on that order November 15, the district court held her in civil contempt. This appeal followed; appellant has been released on bail.

Reviewing these detailed proceedings and the opinion of the district court, I am persuaded that the government met two of the three requirements of Scho-field I. By affidavit, the government reported that the grand jury was investigating “possible violations of federal criminal statutes, including 18 U.S.C. §§ 1621, 1623 [Perjury and False Swearing before a Grand Jury]. Jacqueline Schofield has been subpoenaed by the said Grand Jury and has been fully advised that she is a potential defendant in its investigation.” Thus, the government demonstrated: (1) the items are relevant to a grand jury investigation and (2) the investigation was properly within the grand jury’s jurisdiction.

The government further averred that the items “will be used solely as a standard of comparison to determine whether or not the witness uttered any forged, falsely made, altered or counterfeited checks.” It was on this averment that the district court reasoned that the third requirement of Schofield I was met: “Thus, the affidavit affirmatively shows that the material ‘is not sought primarily for another purpose.’ ”

Judge Hunter describes the court’s action as a proper exercise of discretion, and would affirm. My difficulty is not in evaluating an exercise of discretion. My problem is more fundamental. I find no exercise of discretion in the most crucial aspect of the proceedings before the district court. There is not one word in the district court’s opinion indicating that it treated appellant’s specific con- ' tentions that the government was in possession of both her photograph and her handwriting in the form of a letter. Paragraphs 2(d) and (e) of Answer of Jacqueline Schofield, Witness, to Motion to Enforce Grand Jury Subpoena. These averments required the district court to proceed as more particularly set forth in Schofield I:

If after such disclosure [of the affidavit] the witness makes application to the district court for additional discovery in the enforcement proceeding the court must in deciding that request weigh the quite limited scope of an inquiry into abuse of the subpoena process, and the potential for delay, against any need for additional information which might cast doubt upon the accuracy of the Government’s representations.

486 F.2d at 93. Because this was neither pursued nor adjudicated, I would require the district court to exercise its discretion. I would vacate the judgment of civil contempt and remand the proceedings for this limited purpose.

      . United States of America v. Grand Jury Investigation Jacqueline Schofield, Witness, No. 74-197 (E.D.Pa., Nov. 15, 1974).

      . Our supervisory power over grand juries is derived from several sources. Under 18 U.S.C. § 3331 and F.R.Cr.P. 6(a) a district court is given power to call a grand jury into existence; under F.R.Cr.P. 17(a), and 28 U.S.C. § 1826(a) respectively, the district court is given the power to issue and the duty to enforce grand jury subpoenas.

      . The investigative powers of the grand jury are very broad. In United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 618, 38 L.Ed.2d 561 (1974), Justice Powell states:
      The scope of the grand jury’s powers reflects its special role in insuring fair and effective law enforcement. A grand jury proceeding is not an adversary hearing in which the guilt or innocence of the accused is adjudicated. Rather, it is an ex parte investigation to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person. The grand jury’s investigative power must be broad if its public responsibility is adequately to be discharged.
      In Calandra the court held that a witness may not refuse to answer questions based on evidence derived from an illegal search and seizure. See United States v. Dionisio, 410 U.S. 1, 11-17, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973) (the grand jury subpoena is not a seizure under the Fourth Amendment and therefore need not be reasonable as required by the Fourth Amendment); Branzburg v. Hayes, 408 U.S. 665, 687-690, 92 S.Ct. 2646, 33 L.Ed.2d 626 (a newsman may not refuse under the First Amendment to testify about materials derived from confidential sources). Kastigar v. United States, 406 U.S. 441, 443, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1973).

      . The district court opinion did not address the witness’ claim that the government already had exemplars. The dissent would, therefore, remand for consideration of this claim on the ground that in failing to treat it, the district court failed to exercise its discretion. Aside from the fact that there is nothing in the record indicating that the district court did not consider this point, we cannot agree that the court’s opinion must address each of the witness’ claims. We are dealing with the narrow decision of whether or not to grant additional proceedings. To require a district court to rebut each colorable contention raised by a witness, as Judge Aldisert’s dissenting opinion does, would facilitate delay in grand jury proceedings.

      . We cite an appropriate definition of relevancy:
      Relevancy, in the context of a Grand Jury proceeding is not a probative relevancy, for it cannot be known in advance whether the document produced will actually advance the investigation. It is rather a relevancy to the subject matter of the investigation.
      In re Morgan, 377 F.Supp. 281, 285 (S.D.N.Y. 1974).


source: Caselaw Access Project

author: RONEY, Circuit Judge:

license: Public Domain

text:
    John R. JETER, Jr., Plaintiff-Appellant, v. ST. REGIS PAPER CO., Defendant-Third Party Plaintiff-Appellee-Appellant, American Employers Insurance Company, Intervenor, Mid South Painting Specialist, etc., Third Party Defendant-Appellee.
    No. 73-3470.
    United States Court of Appeals, Fifth Circuit.
    Feb. 6, 1975.

      Robert B. Sessums, James L. Young, Jackson, Miss., for plaintiff-appellant.
    John M. Roach, Curtis E. Coker, Jackson, Miss., for St. Regis.
    W. Swan Yerger, Jackson, Miss., for Mid South Painting.
    James A. Becker, Jr., Jackson, Miss., for Am. Employ. Ins. Co.

      Before COLEMAN, CLARK and RO-NEY, Circuit Judges.
   RONEY, Circuit Judge:

John R. Jeter, Jr. was paralyzed from the chest down in a forty foot fall from a “swinging scaffold” on which he had been painting. Having received Mississippi Workmen’s Compensation benefits from his employer, Mid-South Painting Specialists, Jeter now seeks compensatory damages against the owner of the chemical silo he was painting, St. Regis Paper Company, for whom his own employer was working as an independent contractor. A jury returned a verdict against plaintiff on the one theory of recovery approved by the trial court, i. e., whether St. Regis had violated a non-delegable duty to insure that proper precautions were taken to avoid injury arising from inherently dangerous work. On this fourteen point appeal, Jeter questions the refusal of the trial judge to submit the case to the jury on his other two theories of liability: first, liability of St. Regis for violations of and failure to remedy violations of the Occupational Safety and Health Act of 1970 (OSHA) and the regulations promulgated thereunder by the Secretary of Labor, and second, liability for negligent performance of assumed obligations regarding safety engineering. We affirm the district court on the grounds that first, OSHA does not provide a private right of action for the employee of an independent contractor against an owner for the owner’s violation of OSHA’s requirements, a decision of first instance in this Circuit, second, the evidence in this case was insufficient to support the allegation that St. Regis assumed safety engineering responsibilities to Jeter, and third, none of the other points on this appeal, principally concerning jury charges, admission of evidence, and rulings of law, merit reversal.

The case brought forth claims and affirmative defenses from virtually everyone connected with Jeter’s work. The initial defendant St. Regis denied the allegations of the complaint and affirmatively asserted as defenses 100% contributory negligence and assumption of risk by Jeter. St. Regis also filed a third-party complaint against Mid-South, as Jeter’s employer, seeking both contractual and common law indemnification in the event that Jeter recovered against it. St. Regis alleged that negligence on the part of Mid-South was the sole or at least a contributing proximate cause of Jeter’s injury. Mid-South responded with allegations of negligence against Jeter and St. Regis, and asserted that Jeter’s exclusive remedy against Mid-South was under the Mississippi Workmen’s Compensation Act. To complete the chorus, American Employers Insurance Company, Mid-South’s workmen’s compensation carrier, intervened as plaintiff to claim the workmen’s compensation and medical payments it had made to Jeter.

A short recital of the facts illustrates the relationship of the various parties and reflects the circumstances of Jeter’s unfortunate injuries. Pursuant to a routine maintenance schedule, St. Regis contacted various industrial painting contractors in the fall of 1971 to solicit bids for the painting of two salt-cake silos and a power-house stack located at the St. Regis plant near Monticello, Mississippi. The job was ultimately awarded to Mid-South, and a contract was executed by both parties on October 18, 1971.

Jeter, age twenty, was employed by Mid-South in the spring of 1972, to assist in the work being done for St. Regis. Jeter’s father had been an industrial painter for many years, and plaintiff had done part-time industrial painting work since he was fifteen years old. While his experience on a swinging scaffold was somewhat limited, Jeter had sufficient general experience in the field to be hired by Mid-South as a “journeyman” painter, a rating higher than either “helper” or “apprentice.” He testified at trial that he was aware of the dangers of the job and of the safety precautions he could have taken, and that he understood the operation of the scaffold.

On April 6, 1971, the day of the accident, Jeter had spent the morning on the ground running the paint pot and assisting in the operation of the swinging scaffold from which a co-worker was sandblasting and painting a salt-cake silo. The silo was a cylindrical structure with a conical top which peaked over eighty-eight feet from the concrete base on which it was anchored. The middle twenty-nine and one-half feet had a vertical surface. The aluminum scaffold was suspended from the “catwalk” at the top of the silo and was raised and lowered by two, one-half inch manila ropes, each laced through two double block-and-tackles, which provided a combined mechanical advantage of four for the rope on each end.

Sometime after lunch Mid-South’s foreman told Jeter to go up on the scaffold and assist a co-worker, Herrington, in the sandblasting and painting operation. At that time no mention was made to Jeter of the availability of a safety belt for his use, even though such belts were at the job site and could have been used. Jeter uneventfully negotiated his way to the scaffold and began to assist in the operation. As the painting of the area accessible from the scaffold was completed, each man would simultaneously untie the rope on his end and lower the scaffold a prescribed distance, where the ropes would be resecured and work begun on the newly accessible area. After lowering the scaffold in this manner several times in the course of over two hours, the two men ran out of paint and decided to lower themselves to the ground, either to get more paint or to prepare to go home since it was almost quitting time. When the two men untied their ropes Jeter had difficulty with his end and shouted this to Herrington, who immediately resecured his rope and stepped from the scaffold onto a narrow ledge on the silo, yelling for Jeter to do likewise. Jeter did not do so, and after holding on for a few more seconds the rope apparently slipped from his hands causing the scaffold to drop to a vertical position, suspended by Herrington’s secured end, and Jeter fell forty feet to the ground, landing on the concrete base.. The fall caused his spinal cord to be severed at about chest level, rendering him a permanent paraplegic.

CAUSE OF ACTION UNDER OSHA

Although in all other aspects of this diversity jurisdiction case we are asked to apply Mississippi law, plaintiff asserts that a federal cause of action was impliedly created in his favor against St. Regis by the Occupational Safety and Health Act of 1970. See 29 U.S.C.A. § 651(b). He appeals the trial court’s charge to the jury that it could not award damages under this OSHA count because Congress had not intended that law to affect or apply to a relationship such as the one between St. Regis and Jeter. Assuming without deciding that St. Regis may have violated the re-quirements of OSHA and the regulations promulgated thereunder by the Secretary of Labor, we affirm the trial court’s charge and hold that no cause of action for such violations can be implied under OSHA to run in favor of a person who was not an employee of the violator against whom recovery is sought.

The Occupational Safety and Health Act of 1970 imposes a duty on employers and provides for enforcement of that duty by criminal sanctions, civil penalties recoverable by the United States for deposit into the Treasury of the United States and, under certain circumstances, injunction of the violation of the duty by a district court acting upon application of the Secretary of Labor. See 29 U.S. C.A. §§ 662, 666. Congress has set up a comprehensive system for the promulgation and enforcement of regulations and standards under OSHA. Nowhere in the language of the Act, its legislative history, or in the statutory declaration of purpose and policy in the Act itself is there the slightest implication that Congress considered OSHA creating a private right of action for violation of its terms. See 1970 U.S.Code Cong. & Admin.News, pp. 5177-5241; 29 U.S.C.A. § 651. The only provision in the statute which addresses itself to a private remedy clearly indicates that Congress did not intend OSHA to create a new action for damages in favor of employees. Section 653(b)(4) of the Act provides that

Nothing in this chapter shall be construed to supersede or in any manner affect any workmen’s compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.

It seems clear that Congress did not intend OSHA to create a new private cause of action, but, on the contrary, intended private rights to be unaffected thereby.

The provisions for the enforcement of OSHA and the regulations promulgated thereunder are sufficiently comprehensive to make such a private right of action unnecessary to effectuate the congressional policy underpinning the substantive provisions of the statute. See Martinez v. Behring’s Bearings Service, Inc., 501 F.2d 104 (5th Cir. 1974); cf. Breitweiser v. KMS Industries, Inc., 467 F.2d 1391, 1394 (5th Cir. 1972), cert. denied, 410 U.S. 969, 93 S.Ct. 1445, 35 L.Ed.2d 705 (1973).

We have been unable to find a single case wherein a court has found such a private right of action created by OSHA. Although the results are not yet conclusive as to the litigation of private claims spawned by this relatively new Act, the courts so far have been unanimous in their rejection of contentions similar to the one made by Jeter. This Court has previously rejected any private right by an employee against the executive officers of the employer. Skidmore v. Travelers Ins. Co., 356 F.Supp. 670 (E.D.La.), aff’d, 483 F.2d 67 (5th Cir. 1973). The Fourth Circuit has refused to imply an action against the employer itself, where state workmen’s compensation was the exclusive remedy of the injured party. Byrd v. Fieldcrest Mills, Inc., 496 F.2d 1323 (4th Cir. 1974). The Sixth Circuit has refused an employee-against-employer action, as well as an action by the employee against the supervising engineer, who was not his employer. Russell v. Bartley, 494 F.2d 334 (6th Cir. 1974). See also Hare v. Federal Compress & Warehouse Co., 359 F.Supp. 214 (N.D.Miss.1973); Dekle v. Todd, 132 Ga.App. 156, 207 S.E.2d 654 (1974).

Although the facts here do not call upon us to decide definitively whether OSHA may create a private right of action by an employee against his employer, we perceive no base upon which to posit a claim on behalf of Jeter, a non-employee, against St. Regis. St. Regis owes no duty to Jeter under OSHA. There being no duty, there can be no breach. The district court was correct in not submitting this theory of action to the jury.

ASSUMPTION OF SAFETY ENGINEERING RESPONSIBILITIES

Jeter next contends that the trial court erred in instructing the jury that it could not award any damages on the count which alleged that St. Regis had assumed the obligation of providing safety engineering services. Jeter argues that the jury should have been instructed to allow recovery if it found negligent performance by St. Regis of its safety engineering responsibilities. The evidence does not support such a charge. The sine qua non of the claim is such an assumption of responsibility as may be relied upon. The district court found as a matter of law that there was no such assumption of responsibility by St. Regis. Jeter does not attack the finding that Mid-South was an independent contractor who selected its own employees, selected their working hours, and provided all of the equipment used on the job. As the Supreme Court of Mississippi has said:

An independent contractor is one rendering services in the course of his occupation representing the will of his employer as to the results alone, and not as to the means of accomplishing those results.

Gulf Coast Motor Express Co. v. Diggs, 174 Miss. 650, 165 So. 292, 293 (1936).

The contract between St. Regis and Mid-South was to accomplish an end result. St. Regis did not reserve any right therein to control the physical conduct of Mid-South’s employees in the performance of the undertaking. The only “safety” feature of the contract was a general term requiring Mid-South to comply with St. Regis’ Safety and Fire Safety Manuals. Before beginning the work for St. Regis, Mid-South’s foreman met with a St. Regis representative who provided him with copies of manuals and other general information, such as the location of a telephone and the first aid station. St. Regis did not have, and knew that it did not have, anyone capable of providing Mid-South with specific safety engineering with regard to the details of the painting assignment. The very reason St. Regis hired an independent contractor to do the job was because none of its employees could perform such a service. Mid-South and St. Regis agree that at no time did either understand St. Regis to be assuming safety engineering responsibilities for Mid-South’s employees. Jeter said he never looked to St. Regis for any safety rules or regulations. Under the circumstances of this case, it is clear that Jeter, Mid-South and St. Regis all understood Mid-South, not St. Regis, to be solely responsible for the safety engineering necessary for the successful completion of the job. With the total absence of any facts showing an assumption of safety engineering by St. Regis, the trial court properly instructed the jury not to consider such a basis for possible recovery by Jeter. See Stacy v. Aetna Casualty & Surety Co., 484 F.2d 289 (5th Cir. 1973); cf. Tillman v. Travelers Indemnity Co., 506 F.2d 917 (5th Cir. 1975).

OTHER POINTS OF ERROR

Jeter objects to the trial court’s refusal to charge the jury as he requested on an alleged nondelegable duty owed by St. Regis as an employer of an independent contractor, Mid-South, to insure that Mid-South followed reasonable safety procedures. Plaintiff requested a charge that if the jury found (1) that St. Regis retained control of any part of the work, (2) that St. Regis knew that the work being done by Mid-South was likely to create a peculiar risk of physical harm unless special precautions were taken, or (3) that the work involved a special danger to others inherent in the work, then St. Regis would have had a duty to see that Mid-South followed reasonable safety procedures on the job. While refusing to charge in the precise words requested by Jeter, the trial court did instruct the jury that if it found a special danger to be inherent in the work, St. Regis would be under a nondel-egable duty to assure the taking of reasonable safety precautions to avoid injury from that danger. We view this charge as stating the law under (2) and (3) above substantially as requested by Jeter. A trial court is not required to instruct the jury in the particular manner or form requested by the parties as long as the subject matter of such requested instructions was sufficiently covered by other instructions by the court. Fleming v. Michigan Mutual Liability Co., 363 F.2d 186, 189 (5th Cir. 1966).

There was no evidence that St. Regis retained control of the work as set forth in request (1). A trial judge need not instruct on any theory of law for which there is no factual predicate in the evidence as presented to the jury. See, e. g., Scrivener v. Atchison, Topeka & Santa Fe Railway Co., 409 F.2d 1356 (5th Cir. 1969). Had there been sufficient facts of control to warrant the requested instruction, the fact might have made St. Regis Jeter’s “employer,” and Jeter’s exclusive remedy would have been workmen’s compensation benefits, which he received. Cf. Biggart v. Texas Eastern Transmission Corp., 235 So.2d 443 (Miss. 1970). The liability instruction, read in conjunction with the rest of the instructions and in connection with the contentions aired by the parties below, and viewed from the standpoint of the jury, fairly instructed the jury of the law to be applied to any facts it could reasonably have found from the evidence presented. See Zeigler v. Seaboard Coast Line R.R. Co., 437 F.2d 80 (5th Cir. 1971).

Jeter contends that the trial court erred in charging the jury that he was guilty of contributory negligence as a matter of law, and in repeatedly mentioning it to the jury. The undisputed facts as elicited in plaintiff’s own testimony establish conclusively that he was guilty of some degree of negligence. He had worked as a painter during summers and school holiday breaks since the summer of 1967 and had worked on a scaffold similar to the one involved in the accident for two weeks in the summer of 1969 and again for a period in the summer of 1970. He had been lowering one end of the scaffold from a position on the ground on the morning of the accident, was acquainted with the operation of the scaffold, and knew that if he grabbed either the “tail” rope or the four ropes running between the two double block-and-tackles that the scaffold would remain stationary. Although not wearing any safety apparatus on the day of his accident, plaintiff had used a safety belt before on another job. Considering all of this experience and the ease with which Jeter could have prevented his own injury, the trial court was correct in concluding that Jeter was negligent as a matter of law.

Under Mississippi’s comparative negligence statute contributory negligence would not bar recovery entirely, see Miss.Code § 11 — 7—15 (1972), if the jury had found some negligence on the part of St. Regis. Reading the instructions to the jury as an integrated whole, not picking any sentences out for special consideration, we disagree with plaintiff that the trial court unduly emphasized Jeter’s contributory negligence. The court did mention it more than once, but, after its initial ruling, each instance was in explanation of one of the various other elements of the instruction, such as the effect of the comparative negligence statute.

Plaintiff asserts error on the part of the district court in various rulings on admission of evidence, instructions to the jury and argument by opposing counsel to the jury, all concerning either Jeter’s benefits under Mississippi’s workmen’s compensation law, or the relationship between the workmen’s compensation carrier and the issues in the suit. Plaintiff first interjected workmen’s compensation into the suit by allegation in the complaint. He did not object when the subject came up in his own cross-examination. At the conclusion of the trial Jet-er’s counsel argued the workmen’s compensation carrier’s right of subrogation to the jury, and requested the court to instruct the jury to consider that the workmen’s compensation insurer of Mid-South, who had intervened as a party-plaintiff, would be reimbursed for any of its payments for medical and rehabilitative expense before plaintiff would re-' ceive any portion of damages awarded. The trial court gave that instruction, but also instructed more fully on what future benefits Jeter could anticipate from the insurer. The trial court did this in an effort to present “all of the facts and all of the circumstances in order that [the jury] might be in a better position to draw reasonable inferences from those facts and circumstances . . . rather than to be kept in the dark on any important question.” Considerations of fairness do not allow plaintiff to interject into the suit the insurer’s claim as it might be beneficial to enhance his recovery, and then object to the full picture as prejudicial.

We find no inconsistency in giving a preemptory instruction on St. Reg-is’ claim for contractual indemnification against Mid-South and then giving the further instruction that Mid-South, because of the workmen’s compensation law, could not be liable to Jeter or St. Regis for any act of its negligence. In context the trial court, as requested by St. Regis, was making it clear that just because Mid-South would ultimately be liable for a jury finding of liability against St. Regis, the jury could not find against St. Regis in order to impose liability for what it considered negligence on the part of Mid-South. Read in such context and in conjunction with all other instructions, this charge was not improper or prejudicial.

Plaintiff asserts error in the trial court’s decision to allow Mid-South’s counsel to make a jury argument after having directed a verdict against Mid-South on the only issue in the third-party complaint, the indemnification of St. Regis for any damages awarded against it. This decision by the trial court gave the defendants twice as much time as plaintiff had to argue his case to the jury. While it might have been preferable for plaintiff to have an equal amount of time or for only one counsel for either St. Regis or Mid-South to present their admittedly similar closing arguments, we do not see such an abuse of discretion as to require reversal. See Hodge v. United States, 271 F.2d 52 (5th Cir. 1959). Rule 14, F.R.Civ.P., allows the third-party defendant to assert any defenses against the plaintiff which the third-party plaintiff has to the plaintiff’s claim. There can be no doubt that Mid-South could argue St. Regis’ lack of liability to Jeter as a defense to the claim against it by St. Regis. Furthermore, the directed verdict against Mid-South effectively meant that it, not St. Regis, would ultimately have the financial burden of paying any recovery allowed Jeter. Mid-South had good reason to argue the basic liability issue to the jury. Plaintiff’s counsel made no mention of the allocation of oral argument until after counsel for St. Regis had argued, and Mid-South’s counsel was about to begin his statement to the jury. Under such circumstance we find no abuse of discretion in the district court’s permitting Mid-South’s counsel to argue St. Regis’ lack of negligence to the jury. The fact that this gave Mid-South and St. Regis a combined total of allocated time greater than Jeter’s counsel does not require reversal, absent manifest injustice. From the record it appears that Jeter’s counsel had sufficient time to complete his full and able argument without the need to request more time. Viewed in the context of the four day trial, the exposure of the jury to a few minutes more of argument on defendant’s position than on plaintiff’s is not reversible error.

We have considered all other contentions of plaintiff including the trial court’s refusal to direct a verdict in his favor, that court’s denial of his new trial motion, and the various alleged evidenti-ary errors, and find them to be without merit.

Affirmed.


author: TALBOT SMITH, Senior District Judge.

text:
    Joseph Victor CUSUMANO and Sidney M. Harmon, Appellants-Plaintiffs, v. Dr. C. Brice RATCHFORD et al., Appellees-Defendants.
    No. 74-1381.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 15, 1974.
    Decided Dec. 17, 1974.
    Rehearing and Rehearing En Banc Denied Jan. 24, 1975.

      Lieberman, Baron & Goldstein, University City, Mo., for appellants-plaintiffs.
    James S. Newberry, Columbia, Mo., for appellees-defendants.
    Before LAY and WEBSTER, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   TALBOT SMITH, Senior District Judge.

The controversy before us concerns yet another aspect of the relationships between educational institutions and their teachers. Here the problem centers around the school’s failure to reappoint probationary teachers and the rights of the disappointed teachers with respect thereto.

The plaintiffs before us are two teachers. The defendants are administrative officers of the University of Missouri and the members of its Board of Curators (hereinafter, collectively, the University). The Complaint states that plaintiff Cusumano was employed in September of 1964, under a term appointment for one year as an instructor of engineering mechanics at the University of Missouri-Rolla, Rolla, Missouri. At or about this time he received a copy of the Academic Tenure Regulations of the University (Regulations) to which reference will hereinafter be made. He subsequently received one-year contracts on September 1st of each year through and including the school year 1970 — 1971. On March 31, 1971 he was notified that he would be appointed to a terminal one-year term for the school year 1971 — 1972 but would not be rehired thereafter.

Plaintiff Harmon was employed in September of 1968 as an associate professor of mathematics at Rolla, also receiving at such time the University’s Academic Tenure Regulations. He was rehired from year to year on term appointments through and including the school year 1970 — 1971. In December of 1970 he was notified that his appointment for the school year 1971 — 1972 was a terminal appointment and that he would not be hired thereafter.

In view of the fact that both teachers were on “term appointments” as opposed to continuous or tenure appointments, neither was given reasons for his non-reappointment, the University relying upon its Regulation specifically so stating:

[I]t shall not be necessary for his [the term appointee’s] dean or department chairman to provide him with any statement of causes or reasons for not recommending reappointment.

Subsequent to the commencement of a prior related action plaintiffs were given a hearing, but they assert that it was fruitless since the hearing produced no reasons for nonreappointment. Apparently plaintiffs sought to utilize this hearing as a forum to establish their academic credentials, since they complain to us that at the hearing they “could not defend against charges concerning their professional competency because they were never informed of those charges.” (Competency is not the issue presented to us, however, though it is pled as a part of the inducement.)

What is presented is the claim that plaintiffs’ constitutional rights to due process under the Fourteenth Amendment were violated by the University’s refusal to give them reasons for their nonreappointment with an adequate hearing thereon. They seek damages, back pay, declaratory relief and an order requiring the University to reinstate them with “tenure or continuous employment.” Ordinarily, under the teachings of Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) and Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), a probationary teacher has an insufficient “property interest” in the continuation of his employment past the expiration of his contract to invoke due process protections concerning the decision not to reappoint him. In this case, however, plaintiffs assert in substance that under their contracts and in the circumstances before us they have acquired a “de facto tenure” entitling them to such protection. The court below found otherwise and dismissed the action. We agree.

The issue presented concerns the proper interpretation of the University’s Regulations which, it is conceded by both parties, are incorporated by reference in the contracts of the plaintiffs. The University of Missouri, in the year 1950, promulgated extensive and specific Academic Tenure Regulations establishing a tenure system for all academic employees of the University. Two types of appointments are specified, terfn appointments and continuous appointments. Only holders of the latter type of appointment have permanent or continuous tenure. Term appointees have no rights thereto although their appointments cannot lawfully be terminated during the term, save “for cause.”

Considering the plaintiffs in turn, Mr. Cusumano was, under his contract, an instructor. The regulations concerning the termination of his service are found in Regulations, Section 4A:

Instructor. Initial appointment at the rank of Instructor shall be a term appointment for one academic year. The maximum probationary period on term appointments shall not exceed seven years. During the appointee’s initial one year term, and during each succeeding term through his seventh year of service, his dean or other appropriate administrative officer shall make one of the following recommendations * * *:
[(l)-{5) list retention alternatives.]
(6) that he be reappointed Instructor for a terminal one year term, expressly stated to be such; or
(7) that he not be reappointed, provided there has been timely notice as stipulated in Section 4E. A formal recommendation to this effect need not be made.

With respect to Associate Professor Harmon the pertinent termination regulations are found in Section 4C:

Associate Professor. Initial appointment at the rank of Associate Professor normally shall be a term appointment. The maximum probationary period on term appointments shall not exceed four years. During the appointee’s initial term, and during each succeeding term through his fourth year of service, his dean or other appropriate administrative officer shall take one of the following recommendations * * Hs.
[(1) — (3) list retention alternatives.]
(4) that he be reappointed Associate Professor for a terminal one year term, expressly stated to be such; or
(5) that he not be reappointed, provided there has been timely notice as stipulated in Section 4E. A formal recommendation to this effect need not be made.

The notice provisions in event of non-reappointment are found in Section 4E of the Regulations and provide, substantially, that notice of not less than one year shall be given to those in the categories of these plaintiffs, but that appointment for a “terminal one year term * * * expressly stated to be such” (one of the University’s options “during each succeeding term”) “shall be sufficient notice that the appointee will not be recommended for reappointment at the end of the terminal period.” As noted, such notice need not include a .statement of reasons for the nonreap-pointment.

The above Regulations as to termination of employment bear directly upon plaintiffs’ basic argument, namely, that “during the period of their employment they acquired a protectable property interest in their jobs” under the teachings of Roth and Sindermann, supra. This property interest, we are told, arose from “the expectancy of reemployment that is fully explained in the Roth and Sinderman [sic] cases.” In view of the fact that the Regulations above quoted (Sections 4A(6), 4C(4) and 4E) clearly state that during any year of a term appointee’s probationary period he may be subject to what amounts to a notification of discharge by appointment to a terminal one year term, and that such notifications actually were given to the plaintiffs on, respectively, December 22, 1970 (Harmon) and March 31, 1971 (Cu-sumano) specifying a terminal academic year ending over a year hence, we are unable to find any reasonable expectancy of reemployment under the teachings of Roth and Sindermann. The entire thrust of the tenure Regulations is to avoid the de facto tenure hypothesized in Sindermann, supra, 408 U.S. at 602, 92 S.Ct. at 2700, amounting to “an unwritten ‘common law’ in a particular university that certain employees shall have the equivalent of tenure.” Peculiarly applicable to the de facto tenure doctrine is Section 3B of the Regulations which states that “Holders of academic staff positions under term appointments shall have no rights of permanent or continuous tenure.”

But plaintiffs would avoid the provisions of the Regulations above cited by reliance upon Section 2 of the 1940 Statement of Principles adopted by the University and attached as an appendix to the Regulations. This 1940 Statement of Principles, we note at this point, has as its stated purpose “to promote public understanding and support of academic freedom and tenure and agreement upon procedures to assure them in colleges and universities.” Its origins, and the “status” of the principles enunciated are described by Machlup thus:

There was first the 1915 Declaration of Principles, formulated by a committee of the AAUP.A This was superseded by the 1925 Conference Statement, approved by both the AAC B and the AAUP. Subsequently, after prolonged discussions over a period of six years begun in 1934, the two organizations agreed on the 1940 Statement of Principles, which is still “on the books” and has been endorsed by 24 [42 in 1967] professional and learned societies. The principles enunciated in the 1940 Statement have the status of “norms,” not merely guidelines — although, of course, they are not norms that could be enforced against those who do not observe them, but merely norms by which the profession can judge academic practices which have become the subject of complaints. [Footnotes added.]
A. American Association of University Professors.
B. Association of American Colleges.

The above-mentioned Section 2, relied upon by plaintiffs, states in part that “Notices should be given at least one year prior to the expiration of the probationary period, if the teacher is not to be continued in service after the expiration of that period.” Plaintiffs would read “should” in the quoted sentence as “must” and conclude therefrom that since notices were not given (as they “must” have been) during “the penultimate year of their maximum probationary periods in the School year 1969— 1970” they had “a property right: the expectancy of reemployment that is fully explained in the Both and Sinderman [sic] cases.”

Our problem, of course, is to determine the effect to be given the language of the Statement of Principles, precatory on its face, when the Statement has been adopted as part of a teacher’s contract. The Statement of Principles, it is clear, was not intended by its promulgators to be a binding legal document. The procedures of the disputed Section 2 are stated to represent “acceptable,” not obligatory, “academic practice.” The “precise terms and conditions of every appointment,” it states, should be reduced to writing — words of admonition contemplating transition from the generalities of the Principles to the precision of a contract. The function of the Principles, it has been said, is to serve as “merely norms by which the profession can judge academic practices which have become the subject of complaints.”

The notification provision itself has as a principal and desirable purpose that of an economic shield: according a probationary teacher reasonable warning of impending cessation of employment with its attendant professional and financial dislocations and adjustments. We find no vulnerability of the University on this score. The plaintiffs, in each instance, received over a year’s warning prior to their separation from the payroll.

But another consideration, as well, forces itself upon us. In addition to the types of tenure now existing, characterized by one writer in the field as “tenure by law,” “tenure by contract,” “tenure by moral commitment under a widely accepted academic code” and “tenure by courtesy, kindness, timidity or inertia; ” we are asked to sanction another: tenure by default. This is clear from the arguments advanced by plaintiffs in support of their position, namely, that such “continuous employment” arises from the University’s alleged failure to comply with the “mandatory” terms of the 1940 Statement of Principles. They argue that any teacher has “an absolute right to rely on the fact that if he were not notified to the contrary at least one year prior to the end of his maximum probationary period as set forth, he would be continued in service under a continuous employment contract.” This, in fact, is the basis for plaintiffs prayer for injunctive relief, that due to a lack of notice in the 1969— 70 school year they are “entitled to tenure or continuous employment.”

We find nothing in the 1940 Statement of Principles warranting a conclusion so drastic. It cannot serve the public welfare or promote the best interests of either the University or its professorial staff to have a body of teachers, whatever their number, the permanent tenures of whom rest upon administrative neglect or oversight as to notice of termination.

Section 2 of the Statement of Principles, we conclude, is not mandatory, it is not inconsistent with the University’s Regulations, and furnishes no support for plaintiffs’ assertions of de facto tenure.

It seems appropriate to express a caveat: We do not, obviously, hesitate to enter the burgeoning school-teacher fray when constitutional issues are at stake. So much should be abundantly clear from the compendium cited in note 1, supra. But aside from such issues, the matters of the selection of teachers, their professional qualifications, and their retention are best (and, as a matter of law, properly) left to those entrusted by the state with the awesome responsibilities for the education of our young.

We find that the probationary teachers before us had acquired no tenure, de facto or otherwise, in the circumstances presented, and that they had no constitutional or contractual rights to a statement of reasons for nonreappointment or a hearing thereon. Frazier v. Curators of University of Missouri, 495 F.2d 1149 (8th Cir. 1974).

Affirmed.

      . See compendium cited in Frazier v. Curators of University of Missouri, 495 F.2d 1149, 1150 n.l (8th Cir. 1974).

      . Regulations, Section 4F.

      . The plaintiffs’ original lawsuit was dismissed without prejudice, the court noting in its Memorandum and Order of October 4, 1972 that:
      Although the complaint makes no reference thereto, it is not disputed that after the Tenure Committee of the University had heard and considered the respective cases of plaintiffs and submitted a majority and minority report with respect thereto, both plaintiffs appealed their non-retention to the Board of Curators (over a month before this suit was filed) and that said appeals were referred by the President of the Board to its Academic Affairs Committee. Thereafter, both plaintiffs through their attorney requested an opportunity to appear before the Committee and present oral arguments by themselves and by their counsel and such opportunity was afforded them, although for various reasons, one of which was related to the convenience of their counsel, the requested hearing has not yet been held. It is now scheduled for October 12, 1972. In this situation * * the procedural due process claim is premature.
      The hearing subsequently held was not to plaintiffs’ satisfaction, and they brought this second action against the University.

      . Plaintiffs’ prayers for relief ask:
      That the Court issue a permanent injunction enjoining Defendants from refusing to honor that portion of the Regulations by which Plaintiff is entitled to tenure or continuous employment.

        Cf. Machlup, In Defense of Tenure, in Academic Freedom & Tenure: A Handbook of the American Association of University Professors 306, 310 (L. Joughin ed. 1967) [hereinafter cited as Machlup]:
      No self-explanatory adjective * * * is available to abbreviate the phrase “tenure until retirement or removal for adequate cause,” which is the meaning of academic tenure in the United States. The adjectives actually used are “permanent,” “continuous,” or “indefinite.”

      . Perry v. Sindermann, 408 U.S. 593, 600, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). “A person’s interest in a benefit is a ‘property’ interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing” Id. at 601, 92 S.Ct. at 2699. “Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).

      . Regulations, Section 2 provides:

        Types of Appointments.

      A. There shall be two types of appointments to academic staff positions, term appointments and continuous appointments.
      B. Term appointments begin at a specified date and terminate at a specified date. Term appointments usually are for a period of one academic year, but may be for a longer or shorter period.
      C. Continuous appointments begin at specified date but have no specified date of termination.
      ******

      . Regulations, Section 3 provides:

        Tenure.

      A. Holders of academic staff positions under continuous appointments shall have permanent or continuous tenure, subject to termination only for cause, for retirement for age in accordance with Board retirement regulations, or under extraordinary circumstances because of financial exigencies. Due consideration shall be given to seniority in' terms of academic rank and length of service in the event certain continuous appointments must be terminated because of financial exigencies.
      B. Holders of academic staff positions under term appointments shall have no rights of permanent or continuous tenure. Their appointments shall not be terminated during the term thereof except for cause, or under extraordinary circumstances because of financial exigencies.
      * * * Hs * *

      . Regulations, Section 4E provides:

        Notice that reappointment will not be recommended. An appointee who is not to be recommended for reappointment at the end of any term of appointment shall be notified in writing to that effect by his dean or other appropriate administrative officer. Notice of not less than one year shall be given to the following persons: (1) an Instructor who has completed at least three years of service; (2) an Assistant Professor who has completed at least two years of service; and (3) an Associate Professor or Professor who has completed his initial term appointment. In all other cases notice of not less than six months shall be given, i. e., in the usual case of a term appointment for the regular academic year, the notice shall be given prior to March 1.
      A terminal one year term appointment expressly stated to be such shall be sufficient notice that the appointee will not be recommended for reappointment at the end of the terminal period.

      . Regulations, Section 4F provides:

        Statement of reasons for not recommending reappointment. The non-reappointment of any appointee on term appointment shall carry no implication that either his work or his conduct has been unsatisfactory. For this reason it shall not be necessary for his dean or department chairman to provide him with any statement of causes or reasons for not recommending reappointment. [Footnote omitted.]

      . The school year 1970-71 was for each plaintiff the last year of his probationary period. Regulations, Sections 4A & 4C. It was Mr. Cusumano’s seventh year as an instructor and Mr. Harmon’s third year as an associate professor. Under Section 5C of the Regulations, one year of Mr. Harmon’s prior service, was credited towards his four year maximum probationary period.

      . Machlup, supra note 4, at 307 n. 4.

      . The context of this quotation from the 1940 Statement of Principles is as follows:

        Academic Tenure

      (a) After the expiration of a probationary period teachers or investigators should have permanent or continuous tenure, and their services should be terminated only for adequate cause, except in the case of retirement for age, or under extraordinary circumstances because of financial exigencies.
      In the interpretation of this principle it is understood that the following represents acceptable academic practice.
      (1) The precise terms and conditions of every appointment should be stated in writing and be in the possession of both institution and teacher before the appointment is consummated.
      (2) Beginning with appointment to the rank of full-time instructor or a higher rank, the probationary period should not exceed seven years, including within this period full-time service in all institutions of higher education; but subject to the proviso that when, after a term of probationary service of more than three years in one or more institutions, a teacher is called to another institution it may be agreed in writing that his new appointment is for a probationary period of not more than four years, even though thereby the person’s total probationary period in the academic profession is extended beyond the normal maximum of seven years. Notices should be given at least one year prior to the expiration of the probationary period, if the teacher is not to be continued in service añer the expiration of that period. [Emphasis added.]

      . Machlup, supra note 4, at 307 n. 4: “The principles could [not] be enforced against those who do not observe them, but [are] merely norms by which the profession can judge academic practices which have become the subject of complaints.”

      . Such considerations are stressed in AAUP, Advisory Letter Number One, 48 AAUP Bull. 394 (1962), in Academic Freedom & Tenure: A Handbook of the American Association of University Professors 121-3 (L. Joughin ed. 1967) which states in part as follows:

        The Year’s Notice Rule — Its History. Of the several rules which protect the teacher in his sought for or achieved tenure status, one of the most important is the provision that he shall receive a year’s notice if he is not being reappointed (applicable to non-tenure status teachers), or if he is dismissed (tenure status teachers). The need for such a rule has been seen from the beginning of the American Association of University Professors in 1915 to the present moment * * *.
      The first major policy statement by this Association, the 1915 Declaration of Principles, stated that “No university teacher of any rank should, except in cases of grave moral delinquency, receive notice of dismissal or of refusal of reappointment later than three months before the close of any academic year, and in the case of teachers above the grade of instructor, one year’s notice should be given.” Ten years later there emerged from a conference called the American Council on Education a statement which was endorsed by the Association of American Colleges and by this Association. The 1925 Conference Statement eliminated the consideration of rank and tied the notice principle to tenure. It said: “Dismissal for reasons other than immorality or treason should not ordinarily take effect in less than a year from the time the decision is reached.” Fifteen years later, the 1940 Statement of Principles, likewise endorsed by the Association of American Colleges and this Association, extended the right to a year’s notice to all. It said: “Notice should be given at least one year prior to the expiration of the probationary period if the teacher is not to be continued in service after the expiration of that period. Teachers on continuous appointment who are dismissed for reasons not involving moral turpitude should receive their salaries for at least a year from the date of notification whether or not they are continued in their duties at the institution.” (Since the one-year provision places the burden of an unrealistic procedure upon an institution at the beginning of its acquaintance with a teacher, Committee A of the Association in its 1957 Recommended Institutional Regulations authorized the Washington Office to relax the requirement to this extent: during the first year of a teacher’s service, notice is adequate if given by March 1; during the second year of service, notice should be given six months before the end of the academic year.)

        The Year's Notice Rule in Practice.

      * * * * * *
      * * * [N]o one can object to a year’s notice for a professional man who has been busy doing his work and has had no time to arrange for next year.

      . Machiup, supra note 4, at 311.

      . We will note, merely for completion of analysis, that it is far from clear that the clause was violated, even if mandatory. The Section 2 notice in the Statement of Principles applies only if the teacher is not to be “continued in service” at the end of his probationary period. Here there was an actual continuation ‘in service under a term appointment (“begin at a specified date and terminate at a specified date,” Regulations, Section 2B), albeit the appointment was terminal.

      . See Greene v. Howard University, 271 F.Supp. 609, 615 (D.D.C.1967) rev’d in part, 134 U.S.App.D.C. 81, 412 F.2d 1128 (1969), quoted in Frazier v. Curators of University of Missouri, 495 F.2d 1149, 1153 (8th Cir. 1974); Jones v. Hopper, 410 F.2d 1323, 1329 (10th Cir. 1969).


author: PER CURIAM:

text:
    MOREY MACHINERY CO., INC., Plaintiff-Appellee, v. GREAT WESTERN INDUSTRIAL MACHINERY COMPANY, Defendant-Appellant.
    No. 73-3881
    United States Court of Appeals, Fifth Circuit.
    Feb. 7, 1975.

      Robert E. Venney, Miami, Fla., for defendant-appellant.
    Jose R. Garcia-Pedrosa, Miami, Fla., for plaintiff-appellee.
    Before RIVES, GEWIN and GOLDBERG, Circuit Judges.
   PER CURIAM:

This diversity case, from Florida, is controlled by the Uniform Commercial Code. We must pass on whether the plaintiff’s filing with the Florida Secretary of State was sufficient to perfect a security interest in lathes that it sold and whether the subsequent buyer of these lathes was a buyer in the ordinary course of business.

Plaintiff Morey Machinery Company [Morey] is a New York dealer in industrial machinery. On or about July 25, 1967 Morey sold 36 lathes to Malina Machinery Corporation [Malina], a Florida machinery dealer. In exchange for the four machines which are the subject of this case, plaintiff took four 180-day promissory notes. Morey then prepared a financing statement for each machine, which contained a specific description of the machine, as well as a stamped overprint which read:

The Documentary Stamps Required By Chapter 201, Florida Statutes, Have Been Placed On The Promissory Instruments Secured Hereby, And Will Be Placed On Any Additional And Similar Instrument That May Be So Secured.

(Emphasis Added).

This statement was signed by both the debtor and the secured party on or before July 21, 1967. The subject machines were released by Morey to Malina on July 27, 1967 and the statement which both described the machinery and contained the above stamp was filed pri- or to August 7, 1967.

On July 25, 1967, either on Malina’s date of purchase or within days of it, and before it took possession of the machines, Malina sold the four lathes to defendant Great Western Machinery Company [Great Western], another machinery dealer. The sales price for each machine was $2,928.86, the same price that Morey charged Malina.

In addition, the district court found, and the record .verifies:

At the time of the sale of the subject machines from Plaintiff to Malina, and from Malina to Defendant, Mr. Jack E. Golsen was acting, for all intents and purposes, as the chief executive officer of Defendant. At such time, Mr. Golsen was also the chief executive officer of a third company dealing in industrial machines, Summit Machinery Company, in which Mr. David Malina, the President of Malina Machinery Corporation, owned between one-third and one-half of the outstanding shares. During mid-and late 1967, Mr. Golsen and Mr. Malina transacted business together in Europe on behalf of Summit Machinery Corporation.
On or before July 25, 1967, Mr. Gol-sen was informed by Mr. Malina about Plaintiff’s sale of the machines to Ma-lina, a.bout the terms of payment of such transaction, and about Plaintiff’s claim of a security interest in each of said machines.

Malina failed to pay Morey for the machines, and, filed an involuntary petition in bankruptcy on January 30, 1968. Great Western refused to pay Morey for the machines as well. After a variety of negotiations between Morey and Great Western, Morey filed this suit, based on its asserted security interest in the lathes, on December 28, 1972, asking for the value of the machines plus interest. The district court entered judgment for the plaintiff for the sum of $15,569.05. Defendant appeals. We affirm the district court’s judgment.

Defendant raises four issues which merit discussion. First, Great Western claims that a three year statute of limitations applies to this action and that it was therefore brought too late.

Fla.Stat.Ann. § 95.11 reads in relevant part:

Limitations upon actions other than for the recovery of real property. — ^Actions other than those for the recovery of real property can only be commenced as follows:
(3) Within five years. — an action upon any contract, obligation or liability founded upon an instrument of writing not under seal.
(5) Within three years.—
(c) An action for taking, detaining or injuring any goods or chattels, including actions for the specific recovery of personal property;

The plaintiff’s action in the instant case is based upon the obligations incurred in the instruments of writing filed with the Florida Secretary of State. The basis of Morey’s right to sue and the basis of Great Western’s obligations are very specifically reliant upon the terms of the UCC filing, in conjunction with the UCC provisions relating to security interests and third party obligations. The action is not based merely on some equitable conversion theory. See Webb v. Powell, 5 Cir. 1937, 87 F.2d 983; American Cyanamid Co. v. Wilson and Toomer Fertilizer Co., 5 Cir. 1931, 51 F.2d 665. Thus the five year statute of limitations is applicable to the case, and the plaintiff brought its action within the proper limits.

Defendant next contends that the instrument signed by Morey and Malina was merely a financing statement, and not a security agreement, and thus that Morey has no security interest in the lathes.

Fla.Stat.Ann. § 679.203 reads in relevant part:

[A] security interest is not enforcible against the debtor or third parties unless:
(b) The debtor has signed a security agreement which contains a description of the collateral

A “security agreement” is defined in § 679.105 as “an agreement which creates or provides for a security interest.”

There is nothing in either of these sections which requires that the financing statement be a separate piece of paper from the security agreement, or that any particular words be used to evidence the security interest. The agreement must merely provide for a security interest, so that a third party might know that such an interest exists in a particular piece of property. In the instant case such a provision was made by the usage in the overprint of the wording “Secured Hereby”. In its other respects the document meets the requirements of a security agreement — it describes the collateral and it is signed by the debtor.

Great Western argues additionally that Morey’s security interest in the lathes was not perfected at the time of Great Western’s purchase. There is clearly no merit in this assertion. Florida Stat.Ann. § 679.302 provides that a financing statement need not be filed to perfect a security interest in collateral which is still in the possession of the secured party. The lathes were transferred to Malina on July 27; until that time they were under the control of Morey. Moreover, as the district court found, and as is supported by the record, Great Western had actual notice of Morey’s security interest from the time of its purchase.

Great Western relies finally, then, upon Fla.Stat.Ann. § 679.307(1) to protect it from Morey’s security interest. It reads in relevant part:

A buyer in the ordinary course of business . . . takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence.

The definition of “buyer in the ordinary course” given in Fla.Stat.Ann. § 671.201(9) is:

[A] person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods .

Great Western is not a buyer in the ordinary course. The mutual business relations between the seller and buyer, the quick sale to Great Western and the terms of that sale do not evidence the arm’s length transaction which occurs between a seller and a buyer in the ordinary course of business. See Taylor Motor Rental, Inc. v. Associates Discount Corp., 1961, 196 Pa.Super. 182, 173 A.2d 688; Cf., Unico v. Owen, 1967, 50 N.J. 101, 232 A.2d 405.

Since all of Great Western’s defenses are without legal support, Morey prevails.

Affirmed.

      . Since the terms of payment were $2,512.92 in cash and a 60 day note for the rest, some advantage did accrue to Malina from the sale.