author: GIBSON, Circuit Judge. VAN OOSTERHOUT, Senior Circuit Judge

text:
    W. H. Pat O’BRYAN, Appellant, v. Stephen S. CHANDLER, Appellee.
    No. 73-1466.
    United States Court of Appeals, Tenth Circuit.
    Submitted Feb. 22, 1974.
    Decided May 6, 1974.

      Reagan M. Martin and Harvey L. Davis, Dallas, Tex., for appellant.
    Carl L. Shipley, Washington, D. C., for appellee.
    Irwin Goldbloom, Washington, D. C., for the U. S., amicus curiae.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and GIBSON, and STEPHENSON, Circuit Judges

       All of the Eighth Circuit, sitting by designation.

      . The United States Department of Justice filed an amicus curiae brief for Judge Chandler in this case.

   GIBSON, Circuit Judge.

This appeal involves another chapter in the litigation between Judge Stephen S. Chandler and W. H. Pat O’Bryan. Plaintiff-appellant O’Bryan asks us to reverse the District Court’s granting of Judge Chandler’s second petition for removal of a state libel suit and motion for summary judgment for Judge Chandler in the removed libel action in federal district court. O’Bryan further requests us to reverse the District Court’s order expunging the judgment entered in the state libel action and to order a remand of the libel suit to Oklahoma state court.

A complete repetition of the facts in this case is unnecessary, for in Chandler II, swpra at 1047-1051, we detailed the relevant facts. The following information is pertinent to this appeal.

On December 8, 1965, O’Bryan filed a libel action in an Oklahoma state court seeking damages of $2,500,000 for an alleged libelous statement that Judge Chandler released to a newspaper editor prior to an appellate argument before this court in Chandler I. Judge Chandler then filed his first petition to remove the libel suit to federal court pursuant to 28 U.S.C. § 1442(a)(3). The Honorable Richard B. Austin, United States District Judge, Northern District of Illinois, sitting by designation in the Western District of Oklahoma, conducted a hearing on April 18, 1966, on this petition to remove, and on May 24, 1966, held that the state libel action was not removable pursuant to 28 U.S.C. § 1442(a)(3). Chandler II, supra at 1050 n. 4.

Since the petition to remove was denied by Judge Austin, the state libel action was remanded to Oklahoma state court and tried there. Sometime during the week of trial beginning February 20, 1967, and ending February 25, 1967, O’ Bryan altered his original complaint in the libel suit, according to the Government’s brief , “to allege that the libelous statement occurred in the tan brief, a different document from that alleged in the original complaint.” Judge Chandler unsuccessfully objected to this amendment at trial. The state trial judge directed a verdict for O’Bryan, the jury awarded $40,000 in compensatory and $10,000 in punitive damages on February 25, 1967, and the Oklahoma District Court entered judgment on September 22, 1967. Judge Chandler had filed a second petition to remove in federal courts on February 26, 1967, and this appeal in part is concerned with a review of the District Court’s (Chief Judge Battisti’s) granting of that second petition to remove.

With Judge Chandler’s second petition to remove and O’Bryan’s motion to remand pending, Judge Chandler filed a declaratory judgment action “in the nature of a Bill of Peace” in the federal district court, seeking to enjoin O’Bryan from any further litigation and to expunge the state libel judgment. Chief Judge Battisti was assigned to hear the second petition to remove, the motion to remand, and the declaratory judgment action. The second petition to remove and the motion to remand were held in abeyance. After receiving evidence on the declaratory judgment action, Chief Judge Battisti granted a motion for summary judgment for Judge Chandler in the declaratory judgment action, holding that Judge Chandler was judicially immune from liability for the complained-of-acts in the libel action, and ordered that the Oklahoma District Court expunge the judgment in the libel suit from its, records. Judge Chandler’s second petition to remove and O’Bryan’s motion to remand were held in abeyance, while O’Bryan appealed the declaratory judgment action to this court.

Chandler II dealt with O’Bryan’s appeal from the declaratory judgment and injunction granted in Judge Chandler’s favor. In that case, this court held that there was no federal jurisdiction over the declaratory judgment action and reversed the District Court. Chandler II, supra at 1057. We also stated:

Appellant O’Bryan, in addition to urging reversal of the judgment in the declaratory judgment action, requests us to enter an order requiring remand of the second removal of the libel suit to the State court. Since this matter is still pending in the trial court and has not been finally acted upon, we do not feel that we have jurisdiction to grant this relief.

Chandler II, supra at 1058.

Judge Chandler had not appealed the judgment entered in Oklahoma District Court to the Oklahoma Supreme Court and instead on remand of Chandler II sought a favorable determination in federal court on his second petition to remove. We now consider the validity of the second removal petition.

On remand of Chandler II to the federal district court, Chief Judge Battisti ruled for Judge Chandler on the second petition to remove and granted Judge Chandler’s motion for summary judgment on the removed libel suit. O’Bryan’s motion to remand was denied, and the expungement of the state libel judgment stood. Chief Judge Battisti first found that Judge Chandler’s second petition to remove fell within the requirements of the second paragraph of 28 U.S.C. § 1446(b), which allows more than one petition to remove. Fritzlen v. Boatmen’s Bank, 212 U.S. 364, 29 S.Ct. 366, 53 L.Ed. 551 (1909); 1 Barron and Holtzoff, Federal Practice and Procedure, § 107 at 514 (1960). Chief Judge Battisti held that Judge Austin’s order of remand in 1966 no longer controlled and that the second petition to remove should be granted, because O’Bryan amended his complaint in state court subsequent to Judge Austin’s denial of Judge Chandler’s first petition to remove in 1966, which amendment made applicable the provisions of § 1446(b).

There is no dispute factually concerning how plaintiff changed his original complaint in the state libel suit. That original complaint contained a plaintiff’s Exhibit “A”, entitled Official Statement of Judge Chandler, which was in part the final draft of the brief filed with this court in Chandler I. O’Bryan v. Chandler, 352 F.2d 987 (10th Cir. 1965), cert. denied, 384 U.S. 926, 86 S.Ct. 1444, 16 L.Ed.2d 530 (1966). This Exhibit “A” was a portion of what this court labeled the “blue” brief in Chandler II. During the trial of the state libel action, O’Bryan, over Judge Chandler’s objection, was allowed to remove the two pages of the “blue” brief and to attach two pages of what we termed the “tan” brief to his original complaint. The “tan” brief was a preliminary brief of the final “blue” brief and was released to the editor of the Oklahoma Journal. We said in Chandler II that the “tan” brief “differed in some respects from the blue brief as filed, but which included the bribery charge.” Chandler II, supra at 1049. Chief Judge Battisti found that the plaintiff voluntarily amended his petition by the substitution of the two pages of the “tan” brief and that this amendment rendered the ease removable under § 1446(b) pursuant to Judge Chandler’s second petition to remove.

Since the state libel action was removed to federal court, Chief Judge Battisti proceeded to try that case. Judge Chandler moved for a summary judgment in the libel action pursuant to Fed.R.Civ.P. 56, which • was granted upon the rationale that the alleged libel by Judge Chandler was protected by judicial immunity. O’Bryan appeals from the granting of Judge Chandler’s petition to remove, from the denial of O’Bryan’s motion to remand the libel suit to state court, and from the granting of summary judgment in the libel action in Judge Chandler’s favor. We affirm the granting of Judge Chandler’s second petition to remove and the granting of the summary judgment for Judge Chandler. The order expunging the state judgment of $50,000 therefore stands.

The first major issue in this appeal is whether Judge Chandler’s second petition to remove the state libel suit should have been granted pursuant to the second paragraph of 28 U.S.C. § 1446(b) supra. Judge Chandler makes the following argument:

28 U.gS.C.A. § 1446(b) provides an absolute right for Appellee Chandler, as a federal judge, to remove an action previously removed, when, as in this case, the complaint has been amended (the original complaint was based on two pages of a brief filed in the Tenth Circuit but was later amended to state a different cause of action by substituting two pages of another document which had not been filed in the Tenth Circuit . . .), or when a “motion, order or other paper” discloses grounds for removal (subsequent to Judge Austin’s May 24, 1966, order, there were depositions, a court proceeding, affidavits, exhibits, and other motions, orders and other papers, which were never before Judge Austin . . .). [emphasis in original].

The Department of Justice in its amicus curiae brief expands defendant’s argument under 28 U.S.C. § 1446(b). In addition to arguing that plaintiff’s amending of his original complaint in the state libel suit provided a sufficient basis for granting a second petition to remove, the Government contends that the most important reason for requiring removal under 28 U.S.C. § 1446(b) is the Supreme Court’s decision in Willingham v. Morgan, 395 U.S. 402, 89 S. Ct. 1813, 23 L.Ed.2d 396 (1969), which, according to the Government, reversed the Tenth Circuit’s interpretation of the “color of office” test for removal. The Government states that the case “became removable” after Willingham, which was decided by the Supreme Court in 1969. Although not basing his rationale of removal on Willingham alone, Chief Judge Battisti also referred to Willingham by saying that “the Supreme Court held the right of removal under Section 1442 is made absolute whenever a suit in a State court is for any act ‘under color’ of federal office, and the test for removal is even broader than the test for official immunity itself.” (emphasis in original).

O’Bryan first argues that Judge Chandler did not file his second petition to remove within the time requirements of 28 U.S.C. § 1446(b). The substance of O’Bryan’s claim is that his alteration of his state court complaint cannot be considered an amendment under § 1446(b), and therefore there was no commencing of a 30-day period of time to file a second petition to remove. He also argues that there was no other “amended pleading, motion, order or other paper” that demands application of § 1446(b). We think O’Bryan’s substitution of two pages of the “tan” brief for two pages of the “blue” brief to an exhibit of the state court complaint did constitute “an amended pleading”, within the provisions of § 1446(b). From this point, there is no dispute concerning the actual dates involved. O’Bryan amended his original state court petition sometime during the state court trial, which took place from February 20-25, 1967. Judge Chandler filed his second petition to remove in federal court on February 26, 1967. Since the 30-day time period under § 1446(b) commenced from the receipt by the defendant Chandler of the amended state court complaint, which occurred during the trial, Judge Chandler’s filing of his second petition to remove on February 26, 1967, was timely.

We turn next to the issue of whether O’Bryan’s substitution of two pages of the “tan” brief to his original state court complaint constitutes an amendment that provides a sufficient basis to invoke the second -paragraph of § 1446(b) and to grant Judge Chandler’s second petition to remove. Initially, we agree with the District Court that § 1446(b) allows for more than one petition to remove. The enactment of § 1446(b) has been said to codify or be “declaratory of the existing Rule as laid down by the decisions.” Putterman v. Daveler, 169 F.Supp. 125, 129 (D.Del. 1958); accord, 1 Barron and Holtzoff, Federal Practice and Procedure, § 107 at 514 (1960); 2 U.S.Code Cong. & Admin. News, pp. 1248, 1268 (1960), quoted in 1A Moore’s Federal Practice § 0.168 [3-5] at 1232 n. 6 (2d ed. 1965), quoting H. Rep.No. 352, to accompany HR 3762, 81st Cong. 1st Sess. (1949). Clearly, before the enactment of § 1446(b) in 1949, more than one petition to remove was permissible. E. g., Fritzlen v. Boatmen’s Bank, 212 U.S. 364, 29 S.Ct. 366, 53 L.Ed. 551 (1909); 1A Moore, supra at § 0.168[3.-5] at 1240-47. Section 1446(b) has enacted the decisional law in this regard, and therefore more than one petition to remove may be allowed in certain cases.

Generally, the second paragraph of § 1446(b) is designed to allow a defendant to remove a state action when it was not originally removable as stated by the plaintiff’s initial complaint in the state court, but has become removable due to the filing in state court of “an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b); Powers v. Chesapeake & Ohio Railway, 169 U.S. 92, 102, 18 S.Ct. 264, 42 L.Ed. 673 (1898); Fritzlen v. Boatmen’s Bank, supra at 372. Differing amendments of state court complaints have established varying and commonly occurring circumstances in which a defendant is allowed to remove a case beyond the time requirements of removal as stated in the first paragraph of § 1446(b) or for a second time. For example, a defendant’s second petition to remove should be granted when the plaintiff has dismissed certain defendants, making it first ascertainable that diversity of citizenship exists. Powers v. Chesapeake & Ohio Railway, supra; 1A Moore, supra at § 0.168[3.-5] at 1242 n. 32. The amending of a complaint in state court to allege the federal jurisdictional amount of damages is another circumstance allowing application of the second paragraph of § 1446(b) and granting of a second petition to remove. Remington v. Central Pacific R. R. Co., 198 U.S. 95, 25 S.Ct. 577, 49 L.Ed. 959 (1905).

It is equally clear, however, that not every amendment to a plaintiff’s original complaint in state court allows the granting of a second (or subsequent) petition to remove. Although a defendant may file a petition to remove an action in which plaintiff has varied his original state court complaint, it does not follow that the amendment per se establishes a right to remove. According to the statute itself, there must be both an amended pleading or paper and a ground for asserting removability that exists for the first time. 28 U.S.C. § 1446(b). Not all amended pleadings or papers in state courts have sufficed for removal. McLaughlin v. Hallowell, 228 U.S. 278, 33 S.Ct. 465, 57 L.Ed. 835 (1913); St. Paul & Chicago Railway Co. v. McLean, 108 U.S. 212, 2 S.Ct. 498, 27 L.Ed. 703 (1883); Poindexter v. Gross & Janes Co., 167 F.Supp. 151 (W.D.Ark.1958); Gray v. Stanford Research Institute, 108 F.Supp. 639 (N. D.Tex.1952); Key v. West Kentucky Coal Co., 237 F. 258 (W.D.Ky.1916).

To come within the perimeters of § 1446(b), the amendment of the state court complaint must be one that makes the case removable at the time of the amendment, when the original state court petition did not state a removable action. Judge Austin held the original complaint not removable. We cannot and do not review that decision. Professor Moore says:

The remand order [a first remand] is, therefore, conclusive only as to the matters that were adjudged or could have been presented at that time as a basis for removal. And when subsequent developments make the case removable, since these were not concluded by the prior remand order, a timely second petition for removal may be made.

1A Moore, supra at § 0.169[3] at 1491 (footnotes omitted).

The cases develop the following principles to be applied in determining the granting of a second petition to remove. First, the plaintiff must voluntarily amend his state court complaint after an order of remand has been entered. Key v. West Kentucky Coal Co., supra at 263-64; 1A Moore, supra at § 0.169 [3] at 1491. In this case, there is no dispute that O’Bryan substituted the two pages of the “tan” brief for the two pages of the “blue” brief.

Second, the voluntary action of the plaintiff in amending his state complaint must set forth a ground for removal that appears for the first time. In West Kentucky Coal Co., the court said that “we see from that opinion [Powers v. Chesapeake & Ohio Railway Co., supra] that two things must concur to vindicate the filing of a second petition for removal, namely, the appearance in the record for the first time of a state of fact which authorizes the removal and the prompt filing by the defendant of a new petition showing the facts as they then exist.” Key v. West Kentucky Coal Co., supra at 261. In McLean the Supreme Court held that a second petition to remove could not be granted to the same party upon “the same grounds” as a first petition. St. Paul & Chicago Railway Co. v. McLean, supra at 217. In McLaughlin v. Hallowell, the Supreme Court, in denying a second petition to remove, again said that the second petition for removal alleged the same grounds as the first petition. McLaughlin v. Hallowell, supra at 293-94.

These cases, therefore, hold that a different ground for removal must be alleged in the second petition that was not alleged in the first petition. For example, if the plaintiff adds or dismisses a party to his state action after the remand and creates diversity of citizenship, a defendant may remove the action for the second time. The federal court then again may determine whether diversity exists so as to grant the second removal petition. Powers involved this situation. Similarly, if the plaintiff amends his state court petition to exceed the federal jurisdictional amount, as in Remington, the federal court can determine whether the second petition to remove should be granted.

The legal phrase “same grounds,” used by the Court in McLean and Hallowell, does not mean the same cause of action or theory of recovery. In order to state a sufficient basis for a second petition to remove, plaintiff need not allege another claim upon which relief could be granted. In other words, plaintiff originally in suing on a libel theory need not allege a slander averment to state a different ground for removal. Stated oppositely different grounds more precisely mean a different set of facts that state a new ground for removal. Key v. West Kentucky Coal Co., supra at 261. The removal cases in which parties were added or dismissed by amendment thereby creating diversity and the removal cases in which the federal jurisdictional amount is reached due to amendments are consistent with this interpretation. In those cases, the theory or claim for relief did not change; only the parties or the amount in controversy was altered by the plaintiffs’ voluntary actions.

In this case, plaintiff voluntarily amended his state court complaint after Judge Austin’s 1966 order of remand to aver that the alleged libelous statements occurred in the “tan” brief rather than the “blue” brief. Judge Austin had before him the non-amended state court petition alleging that the libelous statements appeared in the “blue” brief, and, therefore, could only have properly ruled that the case was not removable as stated by the original state court complaint. Judge Chandler’s second petition to remove was based on a different ground or set of facts than the first removal petition. In attempting to remove the case to federal court in both petitions, Judge Chandler relied on 28 U.S.C. § 1442(a) (3), which reads:

Federal officers sued or prosecuted. —(a) A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: ******
(3) Any officer of the courts of the United States, for any act under color of office or in the performance of his duties * * *.

The place where the alleged libel is published is significant in determining whether an officer of the court is acting “under color of office or in the performance of his duties.” 28 U.S.C. § 1442(a)(3). Since plaintiff here voluntarily changed his state court complaint, since this amendment could not have been known to Judge Austin, and since the place of the alleged libel stated a different ground for removability, Chief Judge Battisti properly reviewed the second petition to remove to determine the changed factual circumstances and to apply the appropriate law.

We next must decide whether the actual granting of the petition to remove was correct. We think the second petition to remove based on § 1442(a)(3) was properly granted by Chief Judge Battisti. After Chief Judge Battisti determined that the second petition to remove should be allowed due to O’Bryan’s amending of his state court complaint, he applied Willingham v. Morgan, 395 U.S. 402, 406, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969), which held that the right of removal under § 1442(a)(1) is made absolute whenever a suit in a state court is for any act “under color” of federal office, regardless of whether the suit could originally have been brought in a federal court. The Supreme Court in Willingham reversed the lower court decision of this court in Morgan v. Willingham, 383 F.2d 139 (10th Cir. 1967).

Under the unusual facts of this case it was correct for the District Court to apply the 1969 Supreme Court decision in Willingham to Judge Chandler’s second petition to remove filed on February 26, 1967. Due to the continuing litigation in this case, a strange set of circumstances has developed. The second petition to remove was held in abeyance from February 26, 1967, until the granting of that petition on February 28, 1973. In that hiatus, the Supreme Court decided Willingham on June 9, 1969, adopting broad standards for removal. However, we are faced with the issue of whether Willingham should be applied to a case involving an amended petition and a later court decision allegedly changing the law.

First, this ease does not involve the situation in which a later opinion changing the law is said to be the only and sufficient reason for removal. Avco Corporation (Lycoming Div.) v. Local 1010 of International Union, 287 F.Supp. 132, 133 (D.Conn.1968), properly held that § 1446(b) does not reach “a subsequent court decision, in a wholly unrelated case, defining what constitutes a basis for removal to the federal court.” That rationale comports with the purpose of nonreviewability of an order to remand under § 1447(d). To allow a subsequent court decision to provide a sufficient basis in itself for a second petition to remove under § 1446(b) would destroy the finality of an order to remand and the “Congressional policy of ‘not permitting interruption of the litigation of the merits of a removed case by prolonged litigation of questions of jurisdiction of the district court to which the cause is removed.’ ” Chandler II, supra at 1057, quoting United States v. Rice, 327 U.S. 742, 751, 66 S.Ct. 835, 90 L.Ed. 982 (1946). We see no end to that rationale and to a remanded case, if a later court decision would be a sufficient reason in itself to permit subsequent petitions to remove.

This case is unlike Avco Corporation. The plaintiff here voluntarily amended his state court complaint, which allows the filing and consideration of the second petition to remove. The question here is whether Willing-ham should be applied to a case in which an amended petition has allowed application of § 1446(b). Since this case is removable due to the plaintiff’s voluntary amending of his state court complaint, we think that it would serve no purpose to apply any law but the current Supreme Court’s position on removal as announced in Willingham. According to Willingham, Judge Chandler had the right to remove this case to federal court, for § 1442(a)(3) concerning court officers should be read as broadly as the Court read § 1442(a)(1) concerning federal officers in Willingham. We also think that at the very least, Judge Chandler had the right to present “a colorable defense arising out of [his] duty to enforce federal law.” Willingham v. Morgan, 395 U.S. at 407. Certainly removal and federal jurisdiction in this case as in Poss rest on a strong federal interest. Poss v. Lieberman, 299 F.2d 358, 359 (2d Cir.), cert. denied, 370 U.S. 944, 82 S.Ct. 1585, 8 L.Ed.2d 810 (1962). Judge Chandler had the right to present his claim of judicial immunity to a federal court. The question is whether Judge Chandler’s publication of the “tan” pages with the allegedly libelous statements therein to a newspaper editor raised at least a colorable defense that must be heard on the merits in federal court.

We turn next to the merits of the removed libel suit. The subject matter of this new removed libel suit is the same libel suit referred to as the “second libel suit” in Chandler II, supra at 1050. In September, 1963, O’Bryan filed a malicious prosecution, libel, and slander action against Judge Chandler in state court, which was removed to federal court and heard by Judge Roy Harper, who found that Judge Chandler was protected from liability due to the doctrine of judicial immunity. O’Bryan v. Chandler, 249 F.Supp. 51 (W.D.Okla.1964). O’Bryan appealed that adverse decision to this court.

On August 15, 1965, a Sunday, Judge Chandler asked John Clabes, then managing editor of the Oklahoma Journal, to meet with him in his chambers. During that meeting on August 15th, Judge Chandler asked Clabes to look over the “tan” brief for technical and grammatical corrections. Judge Chandler was going to file a final copy of that brief with this court in O’Bryan’s appeal from O’Bryan v. Chandler, 249 F.Supp. 51 (W.D.Okla.1964). That document, the “tan” brief, was not filed with this court. Chandler II, supra at 1049. Judge Chandler specifically told Clabes that the contents of the “tan” brief should not be released until Clabes procurred the final document, the “blue” brief, filed with this court. Judge Chandler did file a final document, the “blue” brief, with this court on August 18, 1965, the day of oral argument for Chandler I.

In the “blue” brief, Judge Chandler made many references to O’Bryan as being an accomplice in the bribery of the Oklahoma Supreme Court in the Selected Investments case. These comments were made in explanation of Judge Chandler’s defense of O’Bryan’s first libel, slander, and malicious prosecution suit then on appeal. We found in Chandler II that the “[tan brief] differed in some respects from the blue brief as filed, but which included the bribery charge.” Chandler II, supra at 1049. This conclusion was in relation to the following situation. The “blue” brief contained the phrase “O’Bryan was an ACCOMPLICE if not the MASTER MIND”, whereas the “tan” brief contained the phrase “O’Bryan was an ACCOMPLICE if not the MASTER MIND” in typing, with the handwritten words of “in the selected bribery of the court” immediately following. It is unclear who added those handwritten words. Nevertheless, the omitted phrase, we think, changes little, so far as the law of libel here is concerned (not the law on removal), the import of Judge Chandler’s statements in the “blue” brief, which contained many references to O’Bryan as being an accomplice of the bribery of the Oklahoma Supreme Court.

On August 19, 1965, the day after the final “blue” brief was filed, the Oklahoma Journal published a front page article with a full page headline reading “O’Bryan called ‘Bribe Mastermind’ ”, Judge Chandler’s picture appeared prominently next to the headline and article. Judge Chandler had sent copies of the “blue” brief to Clabes of the Oklahoma Journal and to the Times and Oklahoman. Other area newspapers published short articles on the case but “did not include the bribery charge.” Chandler II, supra at 1050. On November 30th, 1965, this court found that Judge Chandler was judicially immune from liability in the first libel, slander, and malicious prosecution suit. Chandler I, supra. Thereafter, this instant suit was filed, the second libel suit, and eventually Chief Judge Battisti granted a summary judgment for Judge Chandler in the removed libel suit.

The major issue regarding judicial immunity is whether Judge Chandler’s publication of allegedly libelous statements in either the “blue” or “tan” briefs is protected by the doctrine of judicial immunity. We think that the judicial immunity doctrine encompasses this entire situation. In defending the Chandler I law suit, Judge Chandler basically repeated in his briefs substantially similar statements that were presented to the grand jury. Judge Chandler also released the substantially similar “tan” brief to an editor of the Oklahoma Journal, but with explicit instructions to read the final draft and to publish no article before the brief was filed, and, therefore, became public information. Judicial immunity covers the entire situation ; no matter which brief or publication of alleged libel is at issue. Appellant’s brief does not argue that the doctrine of judicial immunity was improperly applied by the District Court, for he has only argued on this appeal that the second petition to remove should not have been granted. Under the posture of this case, we feel compelled to explain our reasons for upholding the summary judgment.

The publication of libel most advantageous to reverse the summary judgment is the release of the “tan” pages to Clabes before the final “blue” brief was filed. The pertinent question is whether this publication was an official act of a judge, thereby requiring the application of absolute judicial immunity. Judge Learned Hand pinpoints the crux of judicial immunity:

The decisions have, indeed, always imposed as a limitation upon the immunity that the official’s act must have been within the scope of his powers ; and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment’s reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him.

Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) (emphasis added).

Judge Chandler’s release of the “tan” pages to Clabes was such an “occasion” when he was using his judicial powers entrusted to him. The alleged libel in the “tan” and “blue” legal briefs was in defense of an action with allegations concerning acts of Judge Chandler performing in his capacity as a judicial officer. In Chandler I, the District Court and this court applied the doctrine of judicial immunity to those actions.

Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), indicates the strength of the broad-reaching protection of immunity. Though involving a libel suit against a federal agency officer, Matteo includes broad language in respect to all “officers of government” , and its holding is applicable here.

In Matteo, the plurality held that the federal officer’s allegedly libelous act “was within the outer perimeter of petitioner’s line of duty” and applied the doctrine of absolute immunity. Barr v. Matteo, supra at 575. Mr. Justice Black concurred, reasoning that the allegedly libelous publication was neither “unauthorized nor plainly beyond the scope of [the officer’s] official business.” Barr v. Matteo, supra at 577-78. By either standard, the alleged libel by Judge Chandler was within his official function as a judicial officer by defending himself in his appellate brief in a suit in which the allegations concerned a judge’s official acts. As a matter of law, Judge Chandler is not legally responsible for the alleged libel. Since there are no disputed factual issues and since the doctrine of judicial immunity applies as a matter of law, summary judgment was properly granted for Judge Chandler.

Of course, the merits of the alleged libel against O’Bryan have never been decided in federal court. This opinion has not stated any view on the merits of those claims or the propriety of Judge Chandler’s activities. The issues of removal and judicial immunity only have been discussed. If acting within his official capacity, a judge may scurriously attack counsel, parties, and witnesses who appear before him and escape legal accountability. The rule of judicial immunity is not designed to create a privileged class of citizenry immune from illegal acts, but rather its purpose is to protect the judge from the necessity to constantly defend himself, at the expense of the administration of justice, from possibly countless suits filed by dissatisfied litigants and counsel. One basis of judicial immunity is the expectation that those who are wronged by prejudicial acts of judges are far outnumbered by those who would harass judges with frivolous and unfounded suits. Gregoire v. Biddle, supra at 581, quoted in Barr v. Matteo, supra at 572-573. If a judge is acting within his official capacity, absolute immunity applies to protect the functioning of the judicial system so as to serve the people as a whole. A judge should not have to submit to trials to establish any qualified immunity. Summary judgment was prudently granted in this case. Unfortunately, this controversy, with its attendant suits, has consumed years of time and energy that could have been more creatively used otherwise. We hope for the sake of the parties and the public this controversy can come to a final resting place.

The District Court is affirmed.

VAN OOSTERHOUT, Senior Circuit Judge

(dissenting).

■ Contrary to the view expressed by my brethren in the majority opinion, I am convinced that Judge Chandler has had a full and fair hearing before Judge Austin on plaintiff’s original motion to remand to the state court. Judge Chandler’s right to remove to federal court under 28 U.S.C. § 1442 on the basis of judicial immunity was raised by Judge Chandler in his petition to remove and was fully considered by Judge Austin. An evidentiary hearing was held, after which the case was remanded to the state court. The remand order, dated May 24, 1966, filed June 3, 1966, in pertinent part reads:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Defendant’s acts complained of in the Plaintiff’s Original Petition were not done in the performance of his official duties as a Judge of the District Court of the Western District of Oklahoma, that they were not acts done under color of judicial office. There is no other Federal issue involved therefore the Plaintiff’s motion to remand is granted and the case is remanded to the State Court from whence it came.

I agree with the majority holding that the second paragraph of 28 U.S.C. § 1446(b) governs the right to file the second petition for removal here involved, and that said statute applies only if both an amended pleading or paper is filed and a ground for asserting removability is thereby disclosed for the first time.

My departure from the majority arises with respect to applying such law to the facts of this case as disclosed by the record.

The amendment which is described in some detail in the majority opinion was filed during the course of the state trial on the merits. Such amendment made no material change in plaintiff’s cause of action. The basis of plaintiff’s action before and after the amendment was that Judge Chandler on August 14, 1965, delivered to Mr. Clabes, Managing Editor of the Oklahoma Journal, a document charging that plaintiff was the mastermind of bribes alleged to have been paid to the Supreme Court of Oklahoma. Attached as an exhibit was the blue brief which was subsequently filed with the Tenth Circuit on August 19, 1965, in connection with Chandler I. The pages of the tan brief (preliminary draft) which were substituted by the amendment differ in no material respect from those of the blue brief.

More importantly, the amendment did not for the first time assert a ground for removability which had not previously been asserted. The defense of judicial immunity was raised and considered in the remand proceedings before Judge Austin and such defense was raised by the defendant in the state court proceeding by his answer filed in July 1966. The second petition for removal was filed February 26, 1967, several days after the completion of the state court trial and the jury verdict in the state court against Judge Chandler.

I agree that the well-established doctrine of judicial immunity should be liberally construed. Such is the holding in Willingham v. Morgan, 395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969). I find nothing in Judge Austin’s remand order which reflects the judicial immunity issue was not so considered. In any event Judge Austin’s remand order is not reviewable by reason of 28 U.S.C. § 1447(d). Chandler v. O’Bryan, 445 F.2d 1045, 1056 (10th Cir. 1971).

I agree that this prolonged litigation has placed a heavy burden on all parties. I am not shocked by the result reached by the majority. However, I feel no legal basis exists for permitting the second removal petition under § 1446(b) or otherwise. The trial court lacked jurisdiction to enter the judgment appealed from. I would reverse the judgment and remand to the state court.

      . The history of the involved litigation of this case and some of the related cases appears in an earlier decision of this court. Chandler v. O’Bryan, 445 F.2d 1045, 1047-1051 (10th Cir. 1971), cert. denied, 405 U.S. 964, 92 S.Ct. 1176, 31 L.Ed.2d 241 (1972), rehearing denied, 405 U.S. 1049, 92 S.Ct. 1310, 31 L.Ed.2d 592 (1972) (hereinafter Chandler II). Herein, we shall refer to an earlier case, O’Bryan v. Chandler, 352 F.2d 987 (10th Cir. 1965), cert. denied, 384 U.S. 926, 86 S.Ct. 1444, 16 L.Ed.2d 530 (1966), involving the same parties, as Chandler I. The instant case therefore, is Chandler III.

      . Hon. Frank J. Battisti, Chief Judge of the United States District Court for the Northern District of Ohio, sitting by designation in the Western District of Oklahoma, filed memoranda and orders on the petition to remove and the motion for summary judgment, which are published. O’Bryan v. Chandler, 356 F. Supp. 714 (W.D.Okla.1973) ; O’Bryan v. Chandler, 356 F.Supp. 719 (W.D.Okla.1973).

      . The second paragraph of that section reads:
      If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

      . The appendix filed on appeal is this case contains two errors concerning the filing date of Judge Chandler’s second petition to remove. The appendix shows that Judge Chandler filed his second petition to remove on February 2, 1967. Appendix at 2. However, the original federal district court’s files show that the second petition for removal was officially stamped as being filed on February 26, 1967. Judge Chandler’s counsel also sent a Notice of Removal to O’Bryan and his attorney, which was also filed. The appendix shows that this notice was filed on February 26, 1962 (Appendix at 58) ; however, the actual date of filing was February 26, 1967.

      . In West Kentucky Coal Co., the court found that the status of the parties in relation to diversity citizenship, separable controversy (see 1A Moore, supra at § 0.162 [1], separable controversy is no longer a basis for removal), and fraudulent joinder had not changed since the first petition for removal and denied the second petition. The court also held that a judicial decision dismissing the action against a defendant due to a jury’s verdict and making the case non-diverse did not make the case removable.

      . Judge Austin did not have the amended state court complaint before him when lie denied the first petition to remove. O’Bryan argues that the amendment to the state court complaint “was anticipated by Judge Austin” and, therefore, the exact facts presented during the state trial and according to the amended complaint were before Judge Austin. We agree that Judge Austin was aware of the existence of the “tan” and “blue” briefs when he ruled on the first petition to remove. Chandler II, supra at 1052-54, at some length discusses what was before Judge Austin. However, we disagree that Judge Austin’s 1966 order of remand can be seen as anything other than remanding the state court complaint as it stood at the time of remand, a libel action based on the unamended complaint. In fact Judge Austin’s May 24, 1966, order of remand stated in part that “Defendant’s acts complained of in the Plaintiff’s Original Petition were not done in the performance of his official duties as a Judge.” (Emphasis added). The transcript of the hearing on the first petition to remove does not show that plaintiff said that he was going to amend his state court petition. In determining removability for a federal court officer, the state court complaint, the petition to remove, and any affidavits may be evaluated. Poss v. Lieberman, 299 F.2d 358, 359 (2d Cir.), cert. denied, 370 U.S. 944, 82 S.Ct. 1585, 8 L.Ed.2d 810 (1962); accord, Blitz v. Boog, 328 E.2d 596, 600 (2d Cir.), cert. denied, 379 U.S. 855, 85 S.Ct. 106, 13 L.Ed.2d 58 (1964) ; Teague v. Grand River Dam Authority, 279 F.Supp. 703, 705 (N.D.Okla. 1968); Vendetti v. Schuster, 242 F.Supp. 746, 750-51 (W.D.Pa.1965). If plaintiff contests by a motion to remand the defendant’s assertions that defendant was acting under color of office, the district court must hold a hearing to determine the jurisdictional issues. Wilson v. Republic Iron Co., 257 U.S. 92, 97, 42 S.Ct. 35, 66 L.Ed. 144 (1921) ; 1A Moore, sivpra at § 0.164 [2] at 832-33. Judge Austin properly conducted a hearing and had before him the state court unamended complaint and the defendant’s first petition to remove. However, no authority holds that the affidavits, petition to remove, or evidence at the hearing can change the state cause of action to determine removability. Judge Austin’s 1966 order of remand does not extensively describe the basis for his decision, and we can only assume that the order remanded the unamended state court complaint as the order so stated.

      . We have to this point determined that the second petition to remove was timely filed, that the plaintiff voluntarily amended his petition, and that the amended petition stated a new factual ground for removal. We now review whether the new grounds for removal (the alleged libel as appearing in the “tan” brief) stated a case for removal under § 1442(a)(3). An order granting removal is reviewable by this court, Wilson v. Republic Iron Co., 257 U.S. 92, 96-97, 42 S.Ct. 35, 66 L.Ed. 144 (1921), whereas an order remanding an action is not reviewable. 28 U.S.C. § 1447(d) ; Chandler II, supra at 1050, 1057.

      . It is not entirely clear that the Supreme Court’s decision in Willingham reversed the Tenth Circuit’s view on removal for a defendant-court officer. Willingham involved removal by a warden and chief medical officer of a federal penitentiary under § 1446(a) '(1). In Morgan v. Willingham, 383 F.2d 139, 141 (10th Cir. 1967), this court stated:
      In this respect, the removal statutes parallel the common law doctrine of immunity which applies broadly to judicial officers and narrowly to agents of the Executive Branch of the Federal Government.

      . The layman often wonders how the judicial process can be so entangled with a maze of a series of cases, all with their separate arguments, intricacies and delays. So do we.

      . Chandler II, supra at 1049.

      . Barr v. Matteo, supra at 569.

      . It could be argued that Judge Chandler would have an absolute privilege also as an attorney, since he prepared his own brief. Even though the concepts overlap, the doctrine of judicial immunity, we think, extends to the facts of this case.

      . The doctrine of absolute judicial immunity is well-established. Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1871); Garfield v. Palmieri, 297 F.2d 526, 527 (2d Cir. 1962); Meredith v. Van Oosterhout, 286 F.2d 216, 221-222 (8th Cir. 1960); Brictson v. Woodrough, 164 F.2d 107, 109 (8th Cir. 1947); Restatement of Torts § 585 (1938); Wm. Prosser, Torts § 109 at 796 (3rd ed. 1964); A.B. Hanson, Libel and Related Torts §§ 111 and 112 (1969).


source: Caselaw Access Project

author: SEITZ, Chief Judge. ALDISERT, Circuit Judge

license: Public Domain

text:
    Richard A. ASH, on Behalf of Himself, and on Behalf of Bethlehem Steel Corporation, Appellant, v. Steward S. CORT et al., Appellees, and Bethlehem Steel Corporation, Nominal Defendant.
    No. 73-1739.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 17, 1974.
    Decided April 16, 1974.

      Cletus P. Lyman, Lyman & Ash, Philadelphia, Pa., for appellant.
    Edwin P. Rome, Jerome R. Richter, William H. Roberts, Philadelphia, Pa., for appellees; Blank, Rome, Klaus & Comisky, Philadelphia, Pa., of counsel.
    Before SEITZ, Chief Judge, and HASTIE and ALDISERT, Circuit Judges.
   OPINION OF THE COURT

SEITZ, Chief Judge.

Plaintiff, a stockholder in Bethlehem Steel Corporation and registered to vote in federal elections, appeals from an order' of the District Court for the Eastern District of Pennsylvania denying his request for an evidentiary hearing and granting defendants’ motion for summary judgment. Defendants are directors of Bethlehem. The gravamen of plaintiff’s complaint is that defendants caused Bethlehem to expend money to help secure the election of the Republican party’s 1972 presidential candidate. Plaintiff asserts that the corporate expenditures, for an advertisement and a pamphlet, violated a federal prohibition on corporate campaign spending, 18 U. S.C. § 610 (1970), as amended (Supp. II 1972). Plaintiff, seeking an injunction and damages, invokes federal jurisdiction over this claim under 28 U.S.C. § 1331 (1970), making the requisite jurisdictional allegations.

The district court’s order granting summary judgment merely recited that no material factual dispute existed and that defendants were not liable to plaintiff for the claimed violation of federal law. We presume that this assertion was bottomed on the findings and conclusions relied upon by the district court to support its earlier denial of a preliminary injunction. See 350 F.Supp. 227 (E.D.Pa.1972). Defendants argue on appeal the propriety of those findings and conclusions and urge that the summary judgment be affirmed on that basis. The major points of the district court’s decision are that plaintiff would have no cause of action from defendants’ violation of 18 U.S.C. § 610 (1970), as amended (Supp. II 1972), and that, in any event, defendants did not violate § 610.

I.

Before addressing the points urged by defendants to justify and plaintiff to attack summary judgment, we must consider two matters of justiciability.

Mootness

In affirming the district court’s earlier denial of a preliminary injunction, we limited our decision narrowly, holding only that the court’s finding of no irreparable harm to plaintiff from denying the injunction was not clearly erroneous. 471 F.2d 811 (3d Cir. 1973). At that time, however, we noted that the question of mootness would have to be examined at a later point in these proceedings. Id. at 812. As originally drawn, plaintiff’s complaint focused on the 1972 presidential election and sought to prevent corporate expenditures from influencing that election. That election is now history. Nonetheless, plaintiff alleges that defendants intend to make similar expenditures in future elections, and defendants, far from denying this, hotly defend their right to do so.

Controversies concerning elections often have presented mootness problems. See, e. g., Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969); Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969). These problems arise since election controversies almost always are spawned shortly before the election, seek prospective relief directed to the election, and reach appellate courts only after the election. Where the basis of such a controversy remains after an election and where the dispute is likely to recur, the case will not be found moot, even where prospective relief alone is sought. Moore v. Ogilvie, supra,, 394 U.S. at 816, 89 S.Ct. 1493. When this case was before us on appeal of the preliminary injunction denial, the complaint asserted pendent federal jurisdiction over a claim arising under state law; although the complaint was ambiguous, it apparently sought injunctive relief for defendants’ alleged violation of federal law and, on behalf of the corporation, damages for the claimed state law violation. Our concern with mootness arose in this context.

Were plaintiff’s federal claim pressed solely to secure injunctive relief, we would be required to determine whether plaintiff’s bare allegation of defendants’ intention to make future similar expenditures would support review, given no showing of a consistent pattern of such conduct and no assurance of plaintiff’s'continued ownership of Bethlehem stock. After proceedings resumed in the district court, however, the plaintiff amended his complaint and now clearly demands, in addition to injunctive relief, damages on behalf of the corporation for violation of § 610. Even if plaintiff has no live claim for injunctive relief, the dispute over damages renders this controversy justiciable. See Powell v. McCormack, 395 U.S. 486, 495-500, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). We need not decide whether plaintiff’s claim would be moot if he did not seek damages as well as an injunction.

Standings

Question also is raised concerning plaintiff’s standing to prosecute this action. As a constitutional matter, all that is required for standing is that the plaintiff have been personally injured or be threatened with such injury and that the injury be directly related to plaintiff’s legal claim. Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Plaintiff alleges economic injury, as a stockholder whose interest in Bethlehem is worth less than it would be had defendants not caused the challenged expenditures to be made, and further injury as a citizen and voter whose ability to secure a responsive federal government has been lessened. While these injuries, tangible and intangible, may be small, they are personal to plaintiff, directly related to his claim, and may be remedied by the injunctive and damage relief sought; hence they are sufficient to support plaintiff’s standing. See United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 685-689, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), and cases cited id. at 689, n. 15, 93 S.Ct. 2405.

Plaintiff’s standing is not defeated by the fact that his injuries are shared by countless others. Although the Supreme Court’s language in Frothingham v. Mellon, 262 U.S. 447, 487, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), indicated that an injury to many might confer standing to none, Flast intimates that Frothingham stated policy, not constitutional dogma, Flast v. Cohen, supra, 392 U.S. at 93-94, 88 S.Ct. 1942, and SCRAP declared that standing is not lost because the harm asserted is universally shared, United States v. SCRAP, supra, 412 U.S. at 686-688, 93 S.Ct. 2405. Finally, because we are asked not to review administrative action but to adjudicate private rights, we need not determine whether the statute asserted to provide plaintiff’s cause of action places him outside the class permitted to invoke our processes. Cf. Davis v. Romney, 490 F.2d 1360, 1363-1364 (3d Cir. 1974); compare Flast v. Cohen, supra, 392 U.S. at 101-106, 88 S.Ct. 1942, and Baker v. Carr, supra, 369 U.S. at 204-208, 82 S.Ct. 691, with Sierra Club v. Morton, 405 U.S. 727, 733, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), and Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153-154, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Alleging personal injury from defendants’ violation of a federal statute, plaintiff may invoke our jurisdiction under 28 U.S.C. § 1331 (1970); questions of statutory construction will be met in determining whether plaintiff has stated a cause of action and in ruling on the merits of his claim.

II.

The district court’s decision that defendants were entitled to judgment as a matter of law rested on several legal conclusions, among them that plaintiff failed to state a cause of action. Plaintiff relies upon 18 U.S.C. § 610 (1970), as amended (Supp. II. 1972), as providing his cause of action. Section 610, inter alia, makes it “unlawful for any corporation ... to make a contribution or expenditure in connection with any [federal] election . ,” and provides criminal penalties for its violation. Plaintiff contends that, although it expressly provides only penal sanctions, § 610 “implies” a cause of action in his favor.

Standards for Implied Cause

To find a cause of action “implied” in a statute, we must determine (1) that the provision violated was designed to protect a class of persons including the plaintiff from the harm of which plaintiff complains and (2) that it is appropriate, in light of the statute’s purposes, to afford plaintiff the remedy-sought. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 395-397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Wyandotte Co. v. United States, 389 U.S. 191, 200-202, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967); J. I. Case Co. v. Borak, 377 U. S. 426, 431-435, 84 S.Ct. 1555, 12 L.Ed. 2d 423 (1964). Finding an implied cause pursuant to these criteria is not entirely an exercise in divining legislative intent. Certainly, legislative intent is relevant; where the legislature clearly has indicated its intent to grant or withhold a cause of action, implicitly or explicitly, courts will give effect to that intent. E. g., National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 458-461, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974). Absent some reasonably clear indication of legislative attention to the possible creation of a cause of action, however, courts ascertain the policies underlying the substantive law and determine the propriety, as a means of effectuating those policies, of affording litigants a particular remedy. Bivens v. Six Unknown Named Agents, supra, 403 U.S. at 395-397, 91 S.Ct. 1999 (opinion of the Court), and 402-403, n. 4, 91 S.Ct. 1999 (Harlan, J., concurring); Holloway v. Bristol-Meyers Corp., 485 F.2d 986, 989-999 (D.C.Cir. 1973).

We are urged to find that this process of judicial policy consideration to determine whether an “implied” cause of action can be asserted was rejected by the Supreme Court in National Railroad Passenger Corp. v. National Association of Railroad Passengers, supra (hereinafter “Amtrak”). Relying on the maxim expressio unis est exclusio alterius [expression of one thing is exclusion of others], the Court declared in Amtrak that “ . . . when legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies.” 414 U.S. at 458, 94 S.Ct. at 693. This rule of statutory construction does not alter the process used to determine if a cause should be inferred in the absence of statutory language indicating legislative intent; rather, it aids the court merely in determining when legislative intent to preclude a remedy can be fairly implied.

For the Amtrak rule to apply, the statute must expressly provide the plaintiff a remedy that may logically be said to be exclusive. In Amtrak, the remedy expressly provided to correct the harm of which plaintiffs complained was a civil action prosecuted by the Attorney General. 45 U.S.C. § 547 (1970). In the instant case no express civil action is provided to remedy plaintiff’s, or any other, alleged injury. Only a criminal sanction is expressly provided for violation of § 610. Courts have consistently held that statutes providing for criminal liability do not preclude assertion of private causes of action. E. g., Wyandotte Co. v. United States, supra, 389 U.S. at 200-202, 88 S.Ct. 379; Texas & Pacific Railway Co. v. Rigsby, 241 U.S. 33, 39-41, 36 S.Ct. 482, 60 L.Ed. 874 (1916). In Rigsby the Supreme Court, inferring a private cause of action for violation of a criminal provision, distinguished “remedial” from “penal” application of a statute. Id. at 41, 36 S.Ct. 482. Thus, since § 610 cannot be said to provide any remedy for the alleged harm to plaintiff here, Amtrak would not preclude finding an implied cause.

Statutory Design

Our inquiry, then, must be, first, whether § 610 was designed to protect plaintiff from the harm he alleges. Section 610 is the end-product of a series of enactments limiting campaign giving and spending. See United States v. UAW, 352 U.S. 567, 570-584, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957). In discussing the seminal federal limitation on corporate campaign contributions, carried forward into the present § 610, the Supreme Court stated that it was “motivated by two considerations. First, the necessity for destroying the influence over elections which corporations exercised through financial contribution. Second, the feeling that corporate officials had no moral right to use corporate funds for contribution to political parties without the consent of the stockholders.” United States v. CIO, 335 U. S. 106, 113, 68 S.Ct. 1349, 1353, 92 L.Ed. 1849 (1948) [footnotes omitted].

As a voter and citizen, plaintiff is within the class Congress sought to protect by prohibiting corporate expenditures in campaigns for federal office; Congress, in the various enactments embodied in § 610, declared its view that such expenditures reduced the ability of voters to secure a government responsive to their wishes and increased the likelihood of governmental actions favorable to particular economic blocs but inimical to the general welfare. Id.; 117 Cong.Ree. 43379-81 (1971) (remarks of Congressman Hansen). ,

As a stockholder, plaintiff is within the class secondarily protected by § 610, which keeps control over political contributions in his hands and not in those of corporate managers or directors. Id.; 117 Cong.Ree. 43384-85 (remarks of Congressman Thompson). The harm to plaintiff as a voter and citizen, while not set forth explicitly in his complaint, is presumably the intangible harm foreseen by Congress. The alleged harm to plaintiff and other Bethlehem stockholders is the loss of over one-half million dollars from the corporation’s treasury for the challenged expenditures. Clearly plaintiff satisfies the first requirement for determining a cause of action to be implied in § 610.

Defendants contend, however, that Congressional intent to protect voters, citizens and stockholders does not satisfy the implied cause test. First, defendants argue that § 610 primarily protects not voters and citizens but the public in general and that a cause of action will only be implied to protect members of a specific, limited class. We reject defendants’ argument that provisions designed for the protection of the entire American public cannot give rise to implied causes. See Bivens v. Six Unknown Named Agents, supra (finding a private cause of action implied in the Fourth Amendment’s protection of “[t]he right of the people to be secure . . . against unreasonable searches and seizures . . . .”). The breadth of the protected class is, however, relevant to the propriety of allowing criminal sanctions, rather than private actions, to enforce a statutory prohibition and will be considered below.

Second, defendants argue that no cause of action may be implied to protect plaintiff qua stockholder because such protection was only a secondary purpose of § 610. Although it may be improper to infer a cause of action from a statute only incidentally protecting plaintiff, the Supreme Court has indicated that protection of stockholders was not merely an incidental purpose of § 610, United States v. CIO, supra, 335 U.S. at 113, 68 S.Ct. 1349, and protection of plaintiff need not be the act’s primary purpose. See J. I. Case Co. v. Borak, supra, at 431-432, 84 S.Ct. 1555; cf. Wyandotte Co. v. United States, supra.

Propriety of Private Action

In determining the propriety of affording plaintiff a cause of action for violation of § 610, we must ascertain whether such a remedy will effectuate the act and whether any “collateral” considerations counsel withholding this remedy. Since the purpose of the section is to prevent certain expenditures, allowing suit to enjoin or recover such expenditures would seem to be consistent with accomplishment of § 610’s goal. Although the breadth of § 610’s coverage favors enforcement solely by criminal sanction to avoid a multiplicity of possible suits challenging intangible public harm, the intent to protect many people from many possible violations also favors individual suits to enforce the act as the number of putative defendants, committing acts more likely to be covert than notorious, is so great that government enforcement alone might prove insufficient, cf. Byram Concretanks, Inc. v. Warren Concrete Products Co., 374 F.2d 649, 651 (3d Cir. 1967). We note that stockholders, able to protect their investments by recovering damages on behalf of the corporation, may be expected to be particularly vigilant in detecting violation of § 610.

The nature of the prohibited conduct further supports provision of private remedies. Contributions or expenditures to influence federal elections are prohibited; yet the politician whose election is facilitated by violation of § 610 may be in charge of the statute’s enforcement. This possible conflict of interest is not simply hypothetical; plaintiff alleges that in the instant case non-enforcement of § 610 by the Justice Department was due to the Department’s control by the candidate defendants supported.

The relative expeditiousness possible in civil, contrasted with criminal, proceedings also supports implication of a cause here. The section’s primary focus is on preventing the corruption of elections by corporate contributions. Violations of § 610 are, we presume, most likely to occur in the period immediately preceding an election, and, given the delays incident to criminal investigation and grand jury indictment as well as trial, the election may well be over before the section’s violation is determined. Private enforcement, particularly by injunction, can be relatively swift.

We note no countervailing reason for denying private remedies here. The matter before us involves none of the “special circumstances” discussed in Borak as counseling denial of a private cause of action. See J. I. Case Co. v. Borak, supra at 396-397, 84 S.Ct. 1555, 12 L.Ed.2d 423. Nor does § 610 involve the operation of a regulatory agency whose policy determinations on this or other matters might be threatened by allowing private enforcement. See Holloway v. Bristol-Meyers Corp., supra, 485 F.2d at 990-992, 997-1002. Thus, we find allowance of a private cause of action, whether brought by a citizen to secure injunctive relief or by a stockholder to secure injunctive or derivative damage relief, proper to remedy violation of § 610.

III.

The district court concluded, defendants contend rightly, that even if plaintiff were found to have a cause of action under § 610, defendants would be entitled to judgment as a matter of law. 350 F.Supp. at 231-232. The court decided that the meaning of “contribution or expenditure” in § 610 was governed by the definition of those terms in 18 U.S.C. § 591 (1970), as amended (Supp. II 1972); that § 591 requires a purpose to influence the nomination or election of a particular person; and that defendants’ advertisements and pamphlets were designed not to influence election of any person but to advocate an honest campaign and “respond to an accusation leveled against the business community.” Id. Plaintiff contests and defendants support each of these conclusions.

Scope of § 810

Plaintiff disagrees with judging Bethlehem’s expenditures by the § 591 definition of that term, claiming that § 610 contains a more specific definition of the term, which should control here. Section 591, in relevant part, reads:

When used in sections 597, 599, 600, 602, 608, 610 and 611 of this title—

* * -X- -X- -X- -x-
(f) “expenditure” means—
(1) a purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value . . . made for the purpose of influencing the nomination for election, or election, of any person to Federal office

Section 610, as pertinent, states that “[a]s used in this section, the phrase ‘contribution or expenditure’ shall include any direct or indirect payment to any candidate, campaign committee, or political party or organization . . . .” Corporate communication to stockholders and non-partisan “get-out-the-vote” drives aimed at stockholders and their families are explicitly excluded.

The definition given “expenditure” in both sections traces back to the Federal Election Campaign Act of 1971, P.L. 92-225, Title II, §§ 201, 205, 86 Stat. 3. The drafters clearly intended § 591’s definition to affect interpretation of § 610, for they expressly provided that the definitions in § 591 applied to use of those terms in § 610. We note also that § 591 indicates the “meaning” of expenditure while § 610 only indicates certain matters “included” in that term. We therefore read § 610 as supplementing rather than replacing § 591’s definition. Nothing specifically included as an expenditure for § 610, however, covers Bethlehem’s challenged actions. Thus, it appears that the district court was correct in concluding that Bethlehem’s challenged expenditures are not proscribed unless they fall within § 591’s definition of “expenditure.”

An integral part of § 591’s definition of prohibited expenditures is the requirement that they be for the purpose of influencing someone’s election to federal office — in other words, § 591 requires a partisan purpose. Plaintiff argues, however, that § 610, by negative implication in its exclusion of only some non-partisan get-out-the-vote drives, makes unlawful other get-out-the-vote drives, even though non-partisan. Plaintiff supports his contention by reference to legislative history.

Several comments by key Congressmen in debate over the most recent amendment to § 610 indicate that the section now would prohibit a non-partisan get-out-the-vote drive if financed from a corporation’s general treasury and aimed at the general public. See, e. g., 117 Cong.Rec. 43380-81 (remarks of Congressman Hansen), 43381 (remarks of Congressmen Hansen and Hays), 43387-88 (remarks of Congressmen Ash-brook, Hansen and Hays). The debates also indicate that members of Congress had a fairly specific and limited type of activity in mind when speaking of “get-out-the-vote” drives, primarily door-to-door canvassing and escorting people to the polls, see id. at 43386 (remarks of Congressman Crane), 43387 (remarks of Congressman Ashbrook), 43388 (remarks of Congressman Hays), and that the primary concerns with such drives were, first, that they were generally non-partisan in name only, and, second, that their partisanship was not often apparent to observers, see id. at 43388 (remarks of Congressman Ashbrook), 43390 (remarks of Congressman Steiger).

Application of § 610

The expenditures challenged here were for activities that would not seem to have the hallmarks of a “get-out-the-vote” drive — Bethlehem’s communications were in writing and aimed at the entire public, rather than selected portions, so their partisanship, if any, could be readily determined. We would not, on the present record, find Bethlehem’s expenditures for these communications, if non-partisan, to be proscribed by any prohibition on non-partisan get-out-the-vote drives that may be implicit in § 610. We turn to the inclusion or exclusion of these expenditures from the definition of that term in § 591.

The district court found that Bethlehem’s expenditures were non-partisan and thus outside the sweep of § 591 and, hence, of § 610. This finding rests on the fact that no candidate or party was named in the corporation’s ad and pamphlet. Unless § 591 requires that a candidate or party be named, the district court’s grant of summary judgment cannot be upheld; the partisanship of Bethlehem’s statements is a factual question as to which the parties are in dispute, and on summary judgment we must accept as true plaintiff’s allegation of partisanship. See Johnson v. Alldredge, 488 F.2d 820, 823 (3d Cir. 1973).

Nothing in the language or legislative history supports an interpretation of sections 591 and 610 that would make lawful an expenditure simply because in the communication it paid for no candidate was named. There is no evidence Congress thought the American public so unperceptive that it would recognize a statement as supporting or attacking a particular candidate only by use of his name; such a requirement would eviscerate § 610. Since dispute exists as to a material factual issue, the district court erred in granting summary judgment and denying plaintiff’s motion for an evidentiary hearing.

IV.

Defendants contend that § 610 is unconstitutional, urging a variety of grounds. Although defendants do not treat their various constitutional contentions separately, their underlying argument appears to be that, if applied to prohibit non-partisan political speech, § 610 would violate the First Amendment. Because we have decided that § 610 would proscribe Bethlehem’s expenditures only if they financed partisan communications, we do not reach defendants constitutional contentions. See United States v. UAW, supra, 352 U.S. at 591-592, 77 S.Ct. 529, 1 L.Ed.2d 563. We note that the district court has never passed on these contentions and that they may be reasserted on remand.

The judgment of the district court is reversed and the matter is remanded for further proceedings consistent with this opinion.

ALDISERT, Circuit Judge

(dissenting).

Standing in this ease does not trouble me. This is not a taxpayer’s suit, Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L. Ed. 1078 (1923); nor a suit to obtain judicial review of agency action, United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L.Ed.2d 184 (1970); nor a voter’s complaint alleging impairment of his right to vote, Baker v. Carr, 369 U. S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Only the damages aspect of the complaint has survived the mootness of the injunctive request. Thus, the claim is reduced to a garden variety case or controversy in which a plaintiff stockholder asserts economic harm to the corporation for which he has standing derivatively on behalf of the corporation. Kauffman v. Dreyfus Fund, Inc., 434 F. 2d 727 (3d Cir. 1970), cert. denied, 401 U.S. 974, 91 S.Ct. 1190, 28 L.Ed.2d 323 (1971).

I have heretofore expressed discomfort with certain decisions of this court regarding standing. See, United States v. Richardson, 465 F.2d 844 (3d Cir. 1972) , (Adams, J., dissenting, joined by Aldisert and Hunter, JJ.), and Schiaffo v. Helstoski, 492 F.2d 413 (3d Cir., 1974) (Aldisert, J., dissenting.) And I would hope that the district courts and courts of appeals will soon receive definitive guidance in this “complicated specialty of federal jurisdiction, the solution of whose problems is in any event more or less determined by the specific circumstances of individual situations. . ” The Supreme Court has heard argument in two important standing cases, United States v. Richardson, supra, (No. 72-885, argued October 10, 1973) , 42 U.S.L.W. 3216, and Richardson v. Reservists Committee to Stop the War, (No. 72-1188, argued January 14, 1974) , 42 U.S.L.W. 3418.

The standing issue aside, I would affirm the district court because I find that Congress has not provided a civil remedy for the plaintiff expressly or by implication. While an implied right of action may be rationalized with considerable persuasion, this can be done only by defying the Supreme Court’s recent pronouncement in National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974) (Amtrak). I see Amtrak to be a definite signal to the courts of appeal and district courts to decelerate use of excerpts from Justice Clark’s opinion in J. I. Case Co. v. Borak, 377 U.S. 426, 431-432, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964), to find implied civil remedies not expressly authorized by Congress. Three bright warning lights were flashed in Amtrak:

1. “[T]he inference of
a private cause of action not otherwise authorized by the statute must be consistent with the evident legislative intent and, of course, with the effectuation of the purposes intended to be served by the Act.”
2. “A frequently stated principle of statutory construction is that when legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies. ‘When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.’ Botany Worsted Mills v. United States, 278 U.S. 282, 289, [49 S.Ct. 129, 132, 73 L.Ed. 379] (1929). This principle of statutory construction reflects an ancient maxim — expressio unius est exclusio alterius.”
3. “[T]he most basic general principles of statutory construction must yield to clear contrary evidence of legislative intent. Neuberger v. Comm’r of Internal Revenue, 311 U.S. 83, 88, [61 S.Ct. 97, 85 L.Ed. 58] (1940).”
414 U.S. at 458, 94 S.Ct. at 693.

I.

Amtrak’s first principle, the imperative to ascertain legislative intention, requires that we examine the entire legislative package known as the Federal Election Campaign Act of 1971. This case is brought under Title II of the Act, containing amendments to Title 18 of the United States Code, including 18 U.S.C. § 610. There is no express provision for a civil remedy, public or private, in Title II. By contrast, Title III of the Act authorizes the Attorney General on behalf of the United States to commence a civil action for violation of its subchapter. See, 2 U.S.C. § 438(d) (l)-(5). This public cause of action in Title III supplements the penal provision of that Title, 2 U.S.C. § 441. See also, 11 C.F.R. §§ 20.10 and 20.11. In T.I.M.E., Inc. v. United States, 359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952 (1959), the Court refused to imply a private right of action in favor of shippers under the Motor Carrier Act of 1935, 49 U.S.C. § 316(b) and (d) (Interstate Commerce Act, Part II), for overcharges by certified carriers. The government, as a shipper, brought suit against the carrier contending that this language imposed a statutory duty on motor carriers not to charge or collect other than “reasonable” rates and urged that a cause of action be implied. The Supreme Court refused to imply a cause of action. Noting that the provisions of Part I and III of the Interstate Commerce Act, relating to rail and water carriers, granted a private remedy to shippers, the Court emphasized that similar provisions were conspicuously absent in Part II relating to motor carriers. The Court said that creation of a remedy under these circumstances “would require a complete disregard of these significant omissions in Part II of the very provisions which establish and implement a similar right as against rail carriers in Part I.” 359 U.S. at 471, 79 S.Ct. at 908. I would apply the ratio decidendi of T.I.M.E., Inc., to these proceedings.

Further, Congress recently has had occasion to reexamine § 610. In the course of amending this section and enacting the Federal Election Campaign Act of 1971, Congress did not provide a private remedy to supplement the express criminal sanctions.

I detect no language in this Act manifesting Congressional intent to create a private right of action by implication similar to J. I. Case Co. v. Borak, supra, and Texas & Pacific Railway Co. v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L. Ed. 874 (1916). I therefore would accept the cogent reasoning of the Tenth Circuit in Chavez v. Freshpict Foods, Inc., 456 F.2d 890, 895 (10th Cir.), cert. denied, 409 U.S. 1042, 93 S.Ct. 535, 34 L.Ed.2d 492 (1972):

We recognize that the tripartite classification of governmental powers— legislative, executive and judicial — has no absolutes, and that governmental functions are not easily defined as “legislative”, “executive” or “judicial”. But in the cases at bar the substantive rights relied upon by the appellants have been promulgated by Congress in the exercise of its power to enact penal statutes. In effect, appellants urge this court, under its classical adjudicative power, to legislate. When Congress was dealing with the subject matter of the statutes here involved, it was capable of clearly and directly providing the rights and remedies urged by the appellants.

II.

I am persuaded that this is a classic case for the application of Amtrak’s second principle which teaches: “when legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies.” A legislative schema expressly providing for a private remedy in one title of the Act and not in another title would call into play the familiar “principle of statutory construction [reflecting] an ancient maxim — ex-pressio unius est exclusio alterius.”

III.

Amtrak’s third principle, that statutory construction must yield to clear contrary legislative' intent, renews the previous emphasis on Congressional intent. But appellant conceded at oral argument that the Congressional history is devoid of any reference to a private civil remedy. Therefore, we lack any semblance of contrary legislative intent, let alone clear contrary legislative intent.

It seems to me, therefore, that a discussion of the necessity for destroying the influence over elections which corporations exercise through financial contributions and the recognition that corporate officials have no right to use corporate funds improperly, United States v. C. I. O., 335 U.S. 106, 113, 68 S.Ct. 1349, 92 L.Ed. 1849 (1948), is simply irrelevant to the narrow issue posed by this appeal: whether it can be properly concluded that a private civil right of action may be implied to supplement the penal provisions of Title II. Our polestar is Congressional intention. To imply such a right is to presume that Congress intended to provide for such an action, but overlooked its inclusion when the Federal Corrupt Practices Act was originally enacted, and that Congress overlooked it again when it enacted the comprehensive Federal Election Campaign Act of 1971. I cannot impute such derelictions to a Congress vitally concerned in a matter so universally discussed and the subject of manifest, if not all-consuming, public interest.

The Supreme Court’s entreaty for restraint in Amtrak is justified. Otherwise a reasoned case for an implied private right of action could be constructed within the framework of every federal criminal statute simply by showing that plaintiff is “within the class Congress sought to protect by prohibiting” certain conduct. Three comprehensive criminal codes have been introduced in the 93rd Congress: S.I., “Criminal Justice Codification, Revision and Reform Act of 1973,” described by its proponents, Senators McClellan, Ervin, and Hruska, as the lengthiest bill ever introduced in the Senate, exceeding the Internal Revenue Code of 1954; H.R. 6046; S. 1400, “Criminal Code Reform Act of 1973”; and H.R. 10047, reflecting the recommendations of the National Commission on Reform of Federal Criminal Laws, styled “Federal Criminal Code Reform Act of 1973.” Every criminal statute is designed to protect some individual, public, or social interest. The criminal statutes define offenses involving danger to the person, against property, against public order, health, safety and sensibilities, as well as offenses against national security, foreign relations, immigration and nationalization, integrity and- effectiveness of government operations, internal revenue and customs, civil rights and elections. Is it to be inferred that Congress is also considering an unwritten, but intended, comprehensive civil code at the same time ? I don’t think so.

If the “ambit of protection” test were to be applied to every criminal statute by the court, then it would follow that, given particular circumstances, a remedy could be fashioned to afford civil relief upon the breach of every criminal statute. And thus the federal judiciary, and not the Congress, would be defining the metes and bounds of federal court jurisdiction. But there is no authority for this, because it is the Congress, and not the federal judiciary, which creates subject matter jurisdiction for the federal courts. See, Sheldon v. Sill, 8 How. 440, 12 L.Ed. 1147 (1850); Ex Parte Mc-Cardle, 7 Wall. 506, 19 L.Ed. 264 (1869).

I am persuaded that the Amtrak court could not fail to notice the plethora of implied civil remedy eases which arose from an unrestricted application of J. I. Case Co. v. Borak, supra, and an overgenerous use of Justice Black’s overgenerous quotation in Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 777, 90 L.Ed. 939 (1946), that “federal courts may use any available remedy to make good the wrong done.” I am convinced that the Amtrak court consciously and deliberately applied the brakes and meant exactly what it said when it declared that a “private cause of action not otherwise authorized by the statute” may not be implied in the absence of clear “evidence of legislative intent.”

Although I recognize that the Presidential election of 1972 is a matter of dominant national, sociological and political interest in 1974, an imperative of a detached decisional process commands that neutral principles of construction be employed in all o.ur eases because of the precedential or institutional effect of our determinations. To find an implied civil cause of action for the plaintiff in this case is to find an implied civil right of action for every individual, social, or public interest which might be invaded by violation of any criminal statute. To do this is to conclude that Congress intended to enact a civil code companion to the criminal code. And to do this is to suggest that for every written volume of Title 18 of the United States Code there is an unwritten volume of Title 28.

Because I cannot begin to accept this notion, I would affirm the judgment of the district court.

      . Plaintiff in his amended complaint has dropped the allegations contained in the state law count of his original complaint. One allegation from the federal count of the original complaint and carried over verbatim in the amended version, however, declares, without elaboration that defendants violated both state and federal law. Defendants, presuming that plaintiff thus had not abandoned his state claim, moved for summary judgment on the federal claim and dismissal of plaintiff’s pendent state claim for want of jurisdiction following judgment for defendants on the only federal matter. The district court does not mention plaintiff’s state claim, but merely grants defendants’ motion, We assume that if plaintiff did not abandon his state law claim, the district court’s order dismissed that claim for want of federal jurisdiction but do not reach the dismissal’s propriety,

      . Since the controversy between plaintiff and defendants is not moot, the viability of plaintiff’s claim for injunctive relief must be determined, if plaintiff prevails on the merits, according to settled principles controlling the district court’s discretion to grant or withhold injunctive relief. Bee J. Moore, 7 Moore’s Federal Practice j[ 65.18[3] (2d ed. 1969).

      . The extent to which the Supreme Court relied on the rule of statutory construction in Amtrak is unclear. After announcing the rule, the Court went on to find evidence of a clear legislative intent to withhold the remedy sought, National R.R. Pass. Corp. v. National Ass’n of R.R. Pass., 414 U.S. 453, 458-461, 94 S.Ct. 690, 693-695, 38 L.Ed.2d 646 (1974); the Court also examined the policies, as it conceived them, behind the “Amtrak Act”, Railroad Passenger Service Act of 1970, 45 U.S.C. § 501 et seq. (1970), and found that implication of a private remedy there would be inconsistent with those policies, id. at 461-464, 94 S.Ct. 690.

      . Judge Aldisert notes that, in contrast to Title II of the Federal Election Campaign Act of 1971, amending inter alia § 610, Title III expressly provides a civil cause of action to the Attorney General. This provision referred to by Judge Aldisert allows the Attorney General to institute a civil action for violation of certain reporting and disclosure requirements imposed on candidates and campaign committees. These requirements were first imposed by the 1971 Act and criminal penalties for their violation were first provided in the 1971 Act.
      Provision of this civil remedy may well bar inference of a private remedy for violation of these reporting and disclosure requirements. We do not, however, believe that any intent to bar the remedies sought here can be inferred from the 1971 Act’s grant of a civil, as well as a criminal, action for violation of conduct first proscribed in 1971 and its failure to grant any civil remedies for conduct prohibited since 1907. Amtrak certainly does not require that such an inference be drawn from the 1971 Act’s amendment of long-standing criminal provisions coincidentally joined, albeit in separate titles, with promulgation of new civil and criminal actions.

      . In focusing on tlie harm to plaintiff and the propriety of according him a remedy, we are aware that damages are sought not for plaintiff as an individual stockholder but, in the form of a derivative action, for all injured stockholders. Where stockholders suffer injury jointly from violation of federal rights, a derivative action may be an implied remedy. See Drachman v. Harvey, 453 F.2d 722, 736-738 (2d Cir. 1972) (in banc).

      . This objection pertains to suits by non-stockholder citizens. Here, of course, plaintiff sues not only as a citizen and voter but also as a stockholder of the allegedly offending corporation, a narrower class suffering tangible harm. We recognize also that the number of putative § 610 plaintiffs would be much smaller where, for instance, a Congressional rather than Presidential election is involved.

      . Among reasons cited by the district judge for concluding that plaintiff lacked a cause of action was his unwillingness to “assume the partisan enforcement of the Act as plaintiff suggests.” 350 F.Supp. at 231. We make no sucli assumption here. While plaintiff has alleged, and presumably stands ready to prove, partisan enforcement of § 610, our finding of a cause of action is supported simply by the possibility of such enforcement, or non-enforcement — presence or absence of actual partisan enforcement in this case is irrelevant to our determination.

      . The propriety of awarding such relief must depend on the circumstances of each case. We note also that where a non-stockholder plaintiff sues, presumably only for injunctive relief, there may be a question as to the plaintiff’s ability to satisfy the $10,000 jurisdictional amount for 28 U.S.C. § 1331 (1970).

      . The definition of expenditure in § 591 requires a partisan purpose; we assume here that where a communication is the expendíture’s direct product, the partisan purpose must appear from the communication’s content, viewed in light of surrounding circumstances,

      . United States ex rel. Chapman v. Federal Power Commission, 345 U.S. 153, 156, 73 S.Ct. 609, 612, 97 L.Ed. 918 (1953).


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Stuart Blackburn PERRY, Defendant-Appellant.
    No. 73-1488.
    United States Court of Appeals, Tenth Circuit.
    May 16, 1974.

      Leon E. Tabor, Oklahoma City, Okl., for defendant-appellant.
    James M. Peters, Asst. U. S. Atty., (William R. Burkett, U. S. Atty., Oklahoma City, Okl., with him on the brief), for plaintiff-appellee.
    Before LEWIS, Chief Judge, and SETH and MeWILLIAMS, Circuit Judges.
   PER CURIAM.

Defendant was charged and convicted of a violation of 50 U.S.C.App. § 462, failure to report for induction into the armed forces, following a second trial in the District Court for the Western District of Oklahoma. An earlier judgment of conviction was vacated by this court, United States v. Perry, 474 F.2d 983, for trial error and the case remanded for a new trial. The jury again convicted and this appeal followed.

Defendant makes three present appellate contentions of error the first of which, the admission into evidence of the entire Selective Service record, was considered and rejected by this court in its earlier decision. See in that regard 28 U.S.C. § 1732; United States v. Freed, 10 Cir., 460 F.2d 75; United States v. Downing, 10 Cir., 454 F.2d 373; Gretter v. United States, 10 Cir., 422 F.2d 315; Brandon v. United States, 10 Cir., 381 F.2d 727.

Next, defendant asserts that the court erred in giving the following instruction:

The jury is instructed that proof that a letter properly directed was placed in a Post Office, creates a presumption that it reached its destination in usual time and was actually received by the person to whom it was addressed. The jury may regard such presumption as sufficient evidence of the basic fact established by said presumption but is not required to do so. The jury must be satisfied on all the evidence that the Defendant received the said Notice to Report for Induction beyond reasonable doubt.

The cited instruction is in complete accord with the directive of our earlier decision and is manifestly a correct statement of the law.

Finally, defendant asserts that the trial court should not have reimposed a five-year sentence in view of defendant’s laudatory conduct during his period of confinement pending the first appeal. This is a matter entirely within the discretion of the trial court absent extraordinary circumstances or a gross abuse of discretion. United States v. Floyd, 10 Cir., 477 F.2d 217, cert. denied, 414 U.S. 1044, 94 S.Ct. 550, 38 L.Ed.2d 336; United States v. Donohoe, 10 Cir., 458 F.2d 237, cert. denied, 409 U.S. 865, 93 S.Ct. 157, 34 L.Ed.2d 113. And although the prosecution now involves stale subject matter we do not consider this to be an extraordinary circumstance indicating the imposition of a grossly harsh sentence. The offense occurred January 2, 1969 and the indictment was returned May 24, 1971.

Affirmed.


author: BREITENSTEIN, Circuit Judge.

text:
    Maxine DAKIL, Individually and as Executrix of the Estate of Louis N. Dakil, Deceased, Plaintiff-Appellant and Cross-Appellee, v. UNITED STATES of America, Defendant-Appellee and Cross-Appellant.
    Nos. 73-1607 and 73-1608.
    United States Court of Appeals, Tenth Circuit.
    Argued Jan. 24, 1974.
    Decided May 6, 1974.

      James K. Peden, III, Dallas, Tex. (Royal H. Brin, Jr., and Strasburger, Price, Kelton, Martin & Unis, Dallas, Tex., of counsel, on the brief), for plaintiff-appellant and cross-appellee.
    Robert S. Watkins, Atty., Tax Div., Dept..of Justice (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks and Jonathan S. Cohen, Attys., Tax Div., Dept. of Justice, and Richard A. Pyle, U. S. Atty., of counsel, on the brief), for defendant-appellee and cross-appellant.
    Before BREITENSTEIN, McWILLIAMS and DOYLE, Circuit Judges.
   BREITENSTEIN, Circuit Judge.

Dr. Louis N. Dakil and his wife Maxine sued for a refund of federal income taxes and the government counterclaimed for additional taxes and fraud penalties. Dr. Dakil died during pendency of the suit and his wife was named executrix of his estate. The case was tried to a jury and on the basis of its answers to special interrogatories the court entered judgment against the executrix in the amount of $28,386.04 ($17,574.11 as taxes and $10,811.93 as penalties). The court rejected the request of the government for judgment against Maxine Dakil individually for the unpaid taxes. Both the government and the executrix have appealed. We affirm.

No good purpose would be served by discussing the evidence. The record shows that the taxes in question were due and unpaid and that the evidence of fraud is clear and convincing. The executrix puts prime reliance on claimed errors in the instructions. The government’s reconstruction of Dr. Dakil’s income and deductible expenses was complex and was summarized in charts which were received in evidence. The executrix adduced no evidence of any consequence to dispute the testimony of the government witnesses or the accuracy of the underlying documents. The court instructed the jury that the figures shown on the summaries must be accepted as true. The failure of the executrix to present any evidence worthy of consideration to controvert the evidence of the government entitled the government to a directed verdict on the question of Dr. Dakil’s tax liability. If there was any error in the instruction, the executrix was not prejudiced. Wonnacott v. Denver & Rio Grande Western R. Co., 10 Cir., 187 F.2d 607, 608, and Rule 61, F.R.Civ.P. This is not a case like George v. Commissioner of Internal Revenue, 1 Cir., 338 F.2d 221, 223, where a substantial item entering into the calculation of a taxpayer’s gross income depended on a presumption of correctness of the government’s calculations.

The executrix objects to the instruction that “[a] consistent, and substantial understatement of income is by itself strong evidence of fraud.” An essentially comparable instruction was upheld in United States v. Thompson, 10 Cir., 279 F.2d 165, 169-170. The combined effect of the instructions given in Thompson, and here, was to tell the jury that continued failure to report income is to be considered only with all the other evidence in the case in determining the issue of fraud. Ibid. The instruction was not prejudicial. See also Holland v. United States, 348 U.S. 121, 139, 75 S.Ct. 127, 99 L.Ed. 150, and Browne v. Commissioner of Internal Revenue, 4 Cir., 367 F.2d 386, 387.

We find nothing wrong with the instruction that a false statement in a return may be fraudulent if made without any knowledge of its truth or falsity. The instructions have to be considered as a whole. The court told the jury that inadvertence, mistake or oversight did not suffice to establish fraud, and that fraud must be established by clear and convincing evidence of deliberate acts intended to evade income tax liability. One of the special interrogatories submitted to the jury specifically required that to establish fraud the questioned returns must have been filed with intent to evade income tax liability. Our decision in United States v. Thompson, 279 F.2d at 169-170, is dispositive of the issue. We reject all objections to the instructions. The government was entitled to judgment against the executrix for the unpaid tax and fraud penalties.

The appeal of the government presents the question of the individual liability of Mrs. Dakil .for the unpaid taxes. Section 6013(e)(1) of the Code relieves a spouse of liability under certain conditions, only one of which is pertinent here. Subsection (1)(C) provides for relief from liability if (1) the spouse claiming relief did not significantly benefit “directly or indirectly from the items omitted from gross income” and (2) “taking into account all other facts and circumstances, it is inequitable” to impose liability. As we read the statute, significant benefit is not determinative if all other facts and circumstances make the imposition of the tax inequitable.

The Senate Report on the bill which became § 6013(e) says that a finding of benefit to the spouse is insufficient to deny relief from tax .liability, that the benefit must be “significant” and that “taking into account all other facts and circumstances,” it is not “inequitable to hold the other spouse liable for the deficiency in tax * * S.Rep.No.91-1537, 91st Cong.2d Sess., 3 U.S.Code Cong. & Admin.News, ’70 pp. 6089, 6092.

The interrogatory to the jury presented only the question of whether Mrs. Dakil did “significantly benefit” from the understatement of income in her husband’s returns. The jury answered this adversely to Mrs. Dakil. The question of equity was not presented to the jury. The trial court held that the evidence was insufficient to sustain the jury’s answer and did not say whether it based its ruling on significant benefit or equity.

To sustain its claim of significant benefit the government relies on luxurious lifestyle and joint ownership of property. As to the latter, nothing shows that Mrs. Dakil ever received anything as the result of that ownership. She accumulated no cash during the years in question. As to the former, the record does not disclose what would be luxurious lifestyle and what would be ordinary support for a doctor’s wife in McAlester, Oklahoma, the home of the Dakils. The government points to the ownership of three cars of indeterminate value, a country club membership which was little used, vacation trips, private schools for the children, and house remodeling. The money spent on these activities is not disclosed.

The government blithely ignores the § 6013(e) provision relieving a spouse of liability if it would be inequitable to impose that liability. Mrs. Dakil testified that she was a housewife, that since the doctor’s death she received $207 a month Social Security benefits, that she was a part-time “out reach” worker with senior citizens for which she received $1.60 per hour, and that the beneficiaries of the doctor’s life insurance were the children.

We are not convinced that the benefits to Mrs. Dakil were significant. Even if they were, the overwhelming equitable considerations require that the unnecessarily harsh attempt to collect from her individually the tax liabilities of her husband should never have been made, and, having been made, should be cast into oblivion. Even a tax collector should have some heart.

On each appeal the judgment is affirmed.