author: LUMBARD, Circuit Judge: HAYS, Circuit Judge

text:
    The NASSAU COUNTY ASSOCIATION OF INSURANCE AGENTS, INC., et al., Plaintiffs-Appellants, v. AETNA LIFE & CASUALTY CO., et al., Defendants-Appellees.
    No. 890, Docket 73-2359.
    United States Court of Appeals, Second Circuit.
    Argued April 23, 1974.
    Decided May 29, 1974.
    Frederick Fagelson, Bay Shore (Donner, Fagelson, Hariton & Berka, P. C. and Richard M. Sherman, Bay Shore, N. Y., on the brief), for plaintiff s-appellants.
    Henry L. King, New York City (Davis Polk & Wardwell, New York City, on the brief), on behalf of Steering Committee for defendants-appellees.

      Before LUMBARD and HAYS, Circuit Judges, and JAMESON, District Judge.

       Senior District Judge of the District of Montana, sitting by designation.

   LUMBARD, Circuit Judge:

Seeking to recover over $3,750,000,000 in treble damages from 164 insurance companies, four unincorporated associations of insurance agents, the Nassau County Association of Insurance Agents, the Suffolk County Association of Insurance Agents, the Independent Insurance Agents Association of Queens, and the Richmond County Association of Insurance Agents, commenced this class action on behalf of member and independent insurance agents and their policyholders in the Southern District on November 3, 1972, alleging that the defendants had terminated or threatened to terminate thousands of agency contracts with the insurance agents on grounds violative of the federal antitrust laws. Specifically, it was alleged that agents were required regularly to sell new lines of insurance, meet higher minimum volume requirements, and maintain a low pay-out ratio on policies sold or face termination. Plaintiffs contended that enforeement of these requirements by the defendant insurance companies represented “illegal coercion, illegal intimidation, illegal restraints of trade, all of which are in violation of the Clayton Act, the Sherman Act, [and] the McCarran-Ferguson Act. . .

On July 24, 1973, Judge Stewart dismissed the action on the ground that the plaintiff associations lacked standing to sue under the antitrust laws in either their own or a representative capacity, 361 F.Supp. 967. He emphasized that under § 4 of the Clayton Act, 15 U.S.C. § 15, a plaintiff must demonstrate that it has either sustained direct injury in its “business or property” or that it was in the “target area” of the alleged illegal conduct, that is, a party against whom the illegal activity was aimed. We affirm for the reasons given by Judge Stewart and because of the misjoinder of parties.

I.

Section 4 of the Clayton Act, 15 U.S.C. § 15, provides that “[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor .” As we emphasized in Billy Baxter, Inc. v. Coca-Cola Co., 431 F.2d 183, 187 (2d Cir. 1970), cert. denied, 401 U.S. 923, 91 S.Ct. 877, 27 L.Ed.2d 826 (1971):

“The statutory requirement that treble damage suits be based on injuries which occur ‘by reason of’ antitrust violations expressly restricts the right to sue under this section . . . . [A] plaintiff must allege a causative link to his injury which is ‘direct’ rather than ‘incidental’ or which indicates that his business or property was in the ‘target area’ of the defendant’s illegal act.”

Plaintiffs here have pointed to no direct injury suffered as a result of the practices engaged in by defendants. Nor have they shown that they were in the target area of the actions by the defendants. Plaintiffs neither do business with the defendant insurance companies nor compete with them. Indeed the only loss alleged by plaintiffs is a decrease in membership and dues as a result of the termination of contracts with certain agents by defendants. This injury is too remote, however, to confer standing under the Clayton Act. In Calderone Enterprises Corp. v. United Artists Theatre Circuit, Inc., 454 F.2d 1292 (2d Cir. 1971), cert. denied, 406 U.S. 930, 92 S.Ct. 1776, 32 L.Ed.2d 132 (1972), we affirmed the trial court’s dismissal of an antitrust suit brought by the lessor of a movie theatre, who alleged that the defendant motion picture distributors had conspired to deny his lessee certain profitable first-run films. The plaintiff claimed that as a result of the defendants’ practices it had suffered considerable losses, since the rent paid by the lessee was based on a percentage recapture of gross receipts from the exhibition of movies. We held, however, that this was not a sufficiently direct injury to confer standing on the plaintiff and stressed that a line had to be drawn between “those who have suffered economic damage by virtue of their relationships with ‘targets’ ” and those who are the “ ‘targets’ themselves.” Id. at 1295.

The Ninth Circuit had previously adopted the same position in a case closely resembling the present one. In Conference of Studio Unions v. Loew’s Inc., 193 F.2d 51 (9th Cir. 1951), cert. denied, 342 U.S. 919, 72 S.Ct. 367, 96 L.Ed. 687 (1952), the court of appeals affirmed the district court’s dismissal of a complaint by a conference of trade unions which alleged that as a result of illegal anticompetitive practices engaged in by major motion picture producers and a rival union aimed at lessening competition from independent producers, members of its member unions had lost their jobs and withdrawn from the unions with a resultant loss in the conference’s revenues. The court rejected this claim, finding the damage alleged too incidental to confer standing.

Plaintiffs, nevertheless, argue that they should be afforded standing since their members fear “reprisal and retaliatory action” should they be named individually in a suit against the defendant insurance companies. Plaintiffs maintain that the McCarran-Ferguson Act was intended to protect against such intimidation and allude to N.A.A.C.P. v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), in which the Supreme Court upheld the standing of the N.A.A.C.P. to represent the interests of its members.

There is no merit whatever to this argument. As Judge Weinfeld emphasized in Free World Foreign Cars, Inc. v. Alfa Romeo S.p.A., 55 F.R.D. 26 (S.D.N.Y.1972) in rejecting a similar argument:

“The history of antitrust litigation records instance after instance where small dealers have not hesitated to take on giant corporations in antitrust litigation, and there is no basis to assume that if any dealer for whom plaintiff professes to speak believes the franchise agreement violative of our antitrust laws, he is not capable or would not hesitate to bring suit to vindicate his rights.” 55 F.R.D. at 29.

Moreover, the situation here is unlike the one in N.A.A.C.P. v. Alabama, supra, in which the very right which plaintiff sought to preserve was the anonymity of its membership, so that having required individual members to bring suit would have resulted “in nullification of the right at the very moment of its assertion.” 357 U.S. 449 at 459, 78 S.Ct. 1163 at 1170, 2 L.Ed.2d 1488.

II.

Not only do plaintiffs lack standing to bring this antitrust action, but by joining the 164 defendant companies in one action they have failed to comply with Rule 20(a) of the Federal Rules of Civil Procedure relating to joinder of defendants. Rule 20(a) provides that

“All persons . . . may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to .all defendants will arise in the action.”

Here there has been no showing of a right to relief arising from the same transaction or series of transactions. No allegation of conspiracy or other concert of action has been asserted. No connection at all between the practices engaged in by each of the 164 defendants has been alleged. Their actions as charged were separate and unrelated, with terminations occurring at different times for different reasons with regard to different agents.

Kenvin v. Newburger, Loeb & Co., 37 F.R.D. 473 (S.D.N.Y.1965) involved a similar, though less extreme situation. There, plaintiff joined four stockholders, who, he alleged, had extended credit to him in violation of Federal Reserve Board Regulations and the Securities Exchange Act. The wrongdoing of each defendant was identical, but the loans and securities involved and the dates on which the transactions were entered into differed. The court held that defendants had been misjoined since plaintiff had merely “alleged against each of the four defendants distinct and unrelated acts which happened to involve violations of the same statutory duty” and the “operative facts” of each transaction were unrelated to those of any other.

Here, unrelated transactions running into the thousands are asserted as the basis of joinder. Indeed, plaintiffs have not limited joinder of insurance companies on the basis of insurance agents whose contracts have been terminated or who have been threatened with termination, but have also sought to join defendants on the basis of policyholders whose policies were cancelled or not renewed because of the termination of the agency contract with their particular agent by one of the defendant insurance companies.

The misjoinder here, resting on thousands of unrelated transactions, is such a gross abuse of procedure that dismissal under F.R.Civ.P. 41(b) for failure to comply with the federal rules is warranted. Although the usual remedy under Rule 21 is severance, that would be inadequate to remedy the present abuse since the result would be thousands of individual actions, in all of which the association, rather than individual agents and policyholders, would be plaintiff.

Although we affirm Judge Stewart’s dismissal of this action, the rights of any aggrieved individuals to seek appropriate relief are in no wise affected.

Affirmed.

HAYS, Circuit Judge

(concurring in the result):

I concur in the result and in Part II of the opinion.

      . Specifically, plaintiffs claimed to represent the interests of all member and independent insurance agents who had since November 1, 1967 either had their agency contracts terminated or had sought to comply with defendants’ alleged illegal requirements in order to prevent termination, as well as policyholders in New York whose policies had been cancelled or not renewed because of termination or threatened termination of their particular agent’s contract with a defendant. Plaintiffs also included themselves within the class, claiming that they had suffered a decrease in membership and dues as a result of defendants’ actions.

      . Of the $3,750,000,000 in damages claimed as a result of these alleged antitrust violations, only $750,000 is sought by plaintiffs for injury to their business and property. $1,000,000,000 is claimed for insurance agents who had had their contracts terminated since November 1, 1967. $500,000,000 is sought for agents who had yielded “to the coercion, intimidation, and other unconscionable practices of the defendants” since November 1, 1967, in order to avoid having theii contracts terminated. An additional $1,000,000,000 is sought for policyholders who had met all existing underwriting requirements “but were nevertheless cancelled, nonrenewed or refused normal increases in coverage merely because their agents had their agency contracts terminated. ...”

      . On July 13, 1972, a similar suit brought by three of the four plaintiffs had been dismissed for the same reason that plaintiffs lacked standing. Nassau County Ass’n of Ins. Agents, Inc. v. Aetna Cas. & Sur. Co., 345 F.Supp. 645 (S.D.N.Y.1972). Unlike the present action, however, see n. 2 supra, plaintiffs in that earlier proceeding claimed no actual damage to themselves and sought relief solely on behalf of individual agents terminated or threatened with termination.
      No appeal was taken from the dismissal of this prior action. When the present action was commenced defendants raised the defense of res judicata, relying on the dismissal in the prior action. Judge Stewart, however, found it unnecessary to decide this question or defendant’s additional claim of misjoinder under F.R.Civ.P. 20(a) as he rested the dismissal instead on plaintiffs’ lack of standing.

      . For the same reasons, plaintiffs also lack standing to sue for injunctive relief under § 16 of the Clayton Act, 15 U.S.C. § 26. United States v. Borden Co., 347 U.S. 514, 518, 74 S.Ct. 703, 98 L.Ed. 903 (1954); SCM Corp. v. Radio Corp. of America, 276 F.Supp. 373 (S.D.N.Y.1967), aff’d, 407 F.2d 166 (2d Cir.), cert. denied, 395 U.S. 943, 89 S.Ct. 2014, 23 L.Ed.2d 461 (1969); Reibert v. Atlantic Richfield Co., 471 F.2d 727, 731 (10th Cir.), cert. denied, 411 U.S. 938, 93 S.Ct. 1900, 36 L.Ed.2d 399 (1973).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellant, v. STATE OF ALASKA, Defendant-Appellee.
    No. 73-2400.
    United States Court of Appeals, Ninth Circuit.
    March 19, 1974.
    Edward F. Bradley, Jr. (argued), Wallace H. Johnson, Asst. Atty. Gen., Bruce C. Rashkow, Dept. Justice, Washington, D. C., G. Kent Edward, U. S. Atty., Anchorage, Alaska, for plaintiff-appellant.
    Thomas M. Phillips (argued), Houston, Tex., Charles K. Cranston (argued), and John E. Havelock, Atty. Gen., State of Alaska, Anchorage, Alaska, for defendant-appellee.
    Before KOELSCH, CARTER and WALLACE, Circuit Judges.
   OPINION

PER CURIAM:

The United States sued the State of Alaska to quiet title to the lower part of Cook Inlet located on the Alaska coast and to enjoin Alaska from offering oil and gas leases for sale in the area. The district court found in favor of Alaska. United States v. Alaska, 352 F.Supp. 815 (D.Alaska 1972). The United States appealed and we affirm.

In early 1967, Alaska offered to sell, at competitive bidding, an oil and gas lease to a tract of 2,500 acres of submerged lands located in lower Cook Inlet. The United States does not contest Alaska’s right to the upper part of Cook Inlet. The tract in question, however, is located more than 3 geographic miles seaward of the low-water line, the closing lines of rivers and small bays within Cook Inlet and the 24-mile fallback line drawn across the narrows at Kalgin Island. The essence of the controversy involves the proper location of the Alaska coastline. The United States would place the coastline at the 24-mile fallback line at Kalgin Island. Alaska would place it at the 47-mile opening of Cook Inlet extending from Cape Douglas through the Barren Islands to Point Gore. The significance of the placement of this line is that under the Submerged Lands Act of 1953 (43 U.S.C. §§ 1301-1343), a state is entitled to the natural resources of the seabed and subsoil in waters up to 3 geographic miles seaward from the state’s coast line at low tide or its functional equivalent as drawn by connecting the land openings of water inlets such as rivers and small bays. The waters landward from the line forming the functional equivalent of the coast line are inland waters belonging to the state and the 3-mile distance extends seaward from that line. Whether this line should be drawn at Kalgin Island (as the United States contends) or at Cape Douglas-Point Gore (as Alaska contends) will determine whether the area in question may be leased by Alaska. The pivotal question in this determination is whether this is a seabed over which there are “inland waters” as denominated in, but not defined by, the Submerged Lands Act. If so, Alaska is correct and the district court’s judgment must be affirmed.

The Supreme Court has adopted the definition of inland waters as contained in the Convention on the Territorial Sea and the Contiguous Zone (T.I.A.S. No. 5639). United States v. California, 381 U.S. 139, 165, 85 S.Ct. 1401, 14 L.Ed.2d 296 (1965). Article 7 describes inland bays; but Cook Inlet fails to meet the definition which requires a distance of no more than 24 miles between the natural entrance points of the bay. Cook Inlet is 47 miles wide at its natural entrance points. Nevertheless, the Court has recognized that whether or not a body of water is inland may depend upon historical as well as geographical factors. The Court has stated:

Certain shoreline configurations have been deemed to confine bodies of water, such as bays, which are necessarily inland. But it has also been recognized that other areas of water closely connected to the shore, although they do not meet any precise geographical test, may have achieved the status of inland waters by the manner in which they have been treated by the coastal nation.

United States v. Louisiana (Louisiana Boundary Case), 394 U.S. 11, 23, 89 S.Ct. 773, 781, 22 L.Ed.2d 44 (1969). Historic bays, which Article 7 exempts from the requirement of being no more than 24 miles between the natural entrance points, fall within this classification. As to such waters the Court in the Louisiana Boundary Case continued: “[I]t is generally agreed that historic title can be claimed only when the ‘coastal nation has traditionally asserted and maintained dominion with the acquiescence of foreign nations.’ ” 394 U.S. at 23, 89 S.Ct. at 781, quoting from United States v. California, 381 U.S. 139, 172, 85 S.Ct. 1401, 14 L.Ed.2d 296 (1965). As further guidance the Court noted with apparent approval:

A recent United Nations study recommended by the International Law Commission reached the following conclusions :
“There seems to be fairly general agreement that at least three factors have to be taken into consideration in determining whether a State has acquired a historic title to a maritime area. These factors are: (1) the exercise of authority over the area by the State claiming the historic right; (2) the continuity of this exercise of authority; (3) the attitude of foreign States. First, the State must exercise authority over the area in question in order to acquire a historic title to it. Secondly, such exercise of authority must have continued for a considerable time; indeed it must have developed into a usage. More controversial is the third factor, the position which the foreign States may have taken towards this exercise of authority. Some writers assert that the acquiescence of other States is required for the emergence of an historic title; others think that absence of opposition by these States is sufficient.” Juridical Regime of Historic Waters, Including Historic Bays, [1962] 2 Y.B.Int’l L. Comm’n 1, 13, U.N.Doc.A/CN. 4/143 (1962).

394 U.S. at 23-24 n.27, 89 S.Ct. at 781. The district court correctly adopted and applied this three-pronged test. Since the district court correctly applied the law, our sole remaining task is to determine whether the facts found by the trial court were clearly erroneous. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).

The United States mounts a heavy attack, reviewing in detail evidence which it contends leads unquestionably to the conclusion that the waters involved are at the most territorial rather than inland. It has succeeded in demonstrating that the evidence was in conflict and that the question of determining the ultimate inferences to be drawn was close. But it failed to show the findings to be clearly erroneous. The trial judge received the testimony of hundreds of witnesses and examined volumes of documents. The clearly erroneous test applies to both. W. S. Shamban and Co. v. Commerce and Industry Ins. Co., 475 F.2d 34 (9th Cir. 1973); United States v. Ironworkers Local 86, 443 F.2d 544, 548-49 (9th Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971); Lundgren v. Freeman, 307 F.2d 104, 114-15 (9th Cir. 1962).

As the Court in the Louisiana Boundary Case has instructed, boundary disputes involving such complex and detailed evidence as has been presented in this case must be resolved by answering questions that are primarily factual. This task can best be done by the trier of fact who has heard the evidence in the first instance. The Court stated:

Historic bays are not defined in the Convention, and the term therefore derives its content from general principles of international law. As the absence of a definition indicates, there is no universal accord on the exact meaning of historic waters. There is substantial agreement, however, on the outlines of the doctrine and on the type of showing which a coastal nation must make in order to establish a claim to historic inland waters. But because the concept of historic waters is still relatively imprecise and its application to particular areas raises primarily factual questions, we leave to the Special Master — as we did in United States v. California — the task of determining in the first instance whether any of the waters off the Louisiana coast are historic bays.

394 U.S. at 75, 89 S.Ct. at 808 (emphasis added and footnotes omitted).

As the law applied by the district court was correct and its findings were not clearly erroneous, we affirm.

Affirmed.


author: FEINBERG, Circuit Judge:

text:
    Mary Ann BUTKOWSKI as Administratrix of the Estate of Ronald F. Butkowski, Deceased, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.
    No. 766, Docket 73-2515.
    United States Court of Appeals, Second Circuit.
    Argued May 6, 1974.
    Decided May 28, 1974.

      Charles P. McCabe, Buffalo, N. Y., for plaintiff-appellant.
    Alexander C. Cordes, Buffalo, N. Y. (Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo, N. Y., on the brief), for defendant-appellee.
    Before FEINBERG, MANSFIELD and MULLIGAN, Circuit Judges.
   FEINBERG, Circuit Judge:

Plaintiff’s husband, Ronald F. Butkowski, was fatally injured in a single ear accident in Norfolk, Virginia in 1967. Thereafter, in the United States District Court for the Western District of New York, plaintiff Mary Ann Butkowski sued the manufacturer of the car, defendant General Motors Corporation, for the wrongful death of her husband. The theory of the action was that the absence of an external grease fitting on the car’s idler arm had caused the part to “seize up,” resulting in a sudden and fatal loss of steering control. After the close of plaintiff’s evidence at trial, Judge John T. Curtin took the case from the jury and dismissed the complaint for failure to establish that a defect in the idler arm caused the accident. Plaintiff appeals from that decision and from the judge’s earlier ruling denying discovery concerning defendant’s campaign to recall ears of the model involved in the accident.

We affirm the judgment of the district court. Plaintiff’s motions for discovery relating to the recall campaign were not made until February and March 1973 — after the parties had assured the magistrate that all pre-trial steps had been completed, after the case had been referred to the court for trial, and some three and a half years after the complaint was filed. Moreover, the discovery sought concerned an entirely different defect from the one that plaintiff claimed caused the accident. The recall campaign was aimed at correction of a defect which could cause the idler arm to separate from the rest of the steering assembly; plaintiff never alleged that the idler arm separated, contending rather that it froze. On these facts, the district judge could reasonably conclude that the discovery motions were untimely and “irrelevant and immaterial to the issues in this case.”

Similarly, the judge did not commit error in dismissing the complaint. Plaintiff attempted to prove her theory of causation with the testimony of Myers, a passenger in the car at the time of the accident, and of Brehm, an auto mechanic proffered as an expert witness. But Judge Curtin refused to permit Brehm to testify before the jury, ruling that he was not a qualified expert because he was unfamiliar with the particular type of lubrication system employed on the model of car involved in the accident. This ruling was a permissible exercise of the trial judge’s broad discretion to determine the qualifications of witnesses. The most significant aspect of Myers’s testimony was the attribution to plaintiff’s husband of the excited utterance “I can’t steer the car.” This was insufficient standing alone to justify submission of the causation issue to the jury,especially since the allegedly defective part was undamaged in the accident and remained available for an inspection (which was never made) while the car was driven another 1,500 miles. See Barker, Circumstantial Evidence in Strict Liability Cases, 38 Albany L.Rev. 11 (1973). Appellant cites to us the Appellate Division decision in Codling v. Paglia, 38 A.D.2d 154, 327 N.Y.S.2d 978 (3d Dep’t 1972), aff’d in relevant part, 32 N.Y.2d 330, 337, 345 N.Y.S.2d 461, 298 N.E.2d 622 (1973), which apparently was not called to the attention of the trial court. To be sure, Myers’s version of events was very similar to testimony admitted to prove causation on behalf of the successful plaintiffs in Codling. However, the plaintiffs in Codling also introduced detailed expert testimony concerning a defect in the automobile’s hydraulic pump system, see 38 A.D.2d 154, 327 N.Y.S.2d at 982, 984-985; Barker, supra, 38 Albany L. Rev. at 11-12, and we think that difference is crucial. Of course, had this diversity suit been brought in the New York courts, where distinguished authority suggests it belongs, the issue would be authoritatively resolved under state law. But — for the present, at least — we must decide it, and we surely cannot say that Judge Curtin was wrong in holding plaintiff’s evidence insufficient to get to the jury.

We have considered all of plaintiff’s arguments and, after reviewing the record, find them to be without merit.

Judgment affirmed.

      . Plaintiff first learned of the campaign when she received a recall letter in October 1967, three weeks before the accident.

      . Unpublished opinion at 7 (April 4, 1973). Indeed, in March 1971, plaintiff’s counsel informed defendant it would be a waste of time for plaintiff to depose GM engineers, a principal object of the March 1973 discovery motion.

      . Plaintiff also called a GM engineer to the stand in an unsuccessful attempt to elicit an admission that the lubrication provisions for the idler arm of the car were defective.

      . Indeed, plaintiff’s counsel appeared to agree with this conclusion at trial, offering to stipulate that the liability aspect of his case had been defeated for failure to establish causation after the judge refused to admit Brehm’s testimony.

      . We note that Myers’s credibility was seriously undermined by his signed statement in 1970, which did not mention the excited utterance and suggested that the car skidded while rounding a curve on a wet road surface at too high a speed, although we do not rely on this.

      . Friendly, Federal Jurisdiction: A General View 139-52 (1973) ; ALI, Study of the Division of Jurisdiction Between State and Federal Courts 99-110 (1969). Plaintiff resides in the Western District of New York.

      . We put to one side the much discussed issue whether a state or federal test applies to determine the sufficiency of the evidence here. See Boeing Co. v. Shipman, 411 F.2d 365, 368-370 (5th Cir. 1969) (en banc); 5A Moore’s Federal Practice ¶ 50.06 at 2347-2350. Both parties argued this appeal on the apparent assumption that New York law was controlling and, as we have noted previously, the federal and New York standards for directing verdicts are quite similar. See Fortunato v. Ford Motor Co., 464 F.2d 962, 965 (2d Cir.), cert. denied, 409 U.S. 1038, 93 S.Ct. 517, 34 L.Ed.2d 487 (1972); O’Connor v. Pennsylvania R.R., 308 F.2d 911, 914-915 (2d Cir. 1962).


author: WALLACE, Circuit Judge:

text:
    Gary Stevens JONES, a minor, By and Through Lola Mae Jones, his guardian ad litem, Petitioner-Appellant, v. Allen F. BREED, Director of the California Youth Authority, and Robert McKibben, Superintendent of the Southern Regional Center Clinic, California Youth Authority, Respondents-Appellees.
    No. 72-2644.
    United States Court of Appeals, Ninth Circuit.
    May 15, 1974.

      Robert L. Walker (argued), Peter Bull, San Francisco, Cal., for petitioner-appellant.
    Russell Iungerich, Deputy Atty. Gen. (argued), Evelle J. Younger, Atty. Gen., Los Angeles, Cal., for respondents-appellees.
    Before GOODWIN and WALLACE, Circuit Judges, and EAST, District Judge.

       Honorable WILLIAM G. EAST, Senior United States District Judge, Eugene, Oregon, sitting by designation.

   WALLACE, Circuit Judge:

Seventeen-year-old Jones was apprehended for robbery, detained and adjudicated a ward of the juvenile court. Subsequently, he was referred for trial as an adult and was convicted. Having exhausted his state remedies, he unsuccessfully applied to the district court for habeas corpus relief, claiming a violation of his Fifth Amendment right against double jeopardy. We reverse.

California does not challenge the use of habeas corpus as a proper remedy in this case, see Fain v. Duff, 488 F.2d 218 (5th Cir. 1973), or contend that Jones has not exhausted his state remedies. The sole question before us is whether jeopardy attached during the juvenile court proceedings to prevent Jones’ trial as an adult.

The State of California filed a petition in the juvenile court alleging that

Jones, a minor, had committed an act which, if committed by an adult, would be a violation of Cal.Penal Code § 211 (robbery). If the allegations in the petition were true, the juvenile court had jurisdiction pursuant to Cal.Welf. & Inst’ns Code § 602. The juvenile court, following a preliminary hearing, ordered that Jones be detained pending a hearing on the delinquency petition.

Twenty days later, the juvenile court held the delinquency hearing for the purpose of determining whether Jones had committed the crime alleged, whether the juvenile court had jurisdiction and whether Jones would be adjudged a ward of the court. Thus, for the juvenile court to proceed, the state had to prove that Jones committed the robbery. With the exception of a right to a jury trial, the delinquency hearing is in the nature of a criminal trial. See In re Winship, 397 U.S. 358, 365-366, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Gault, 387 U.S. 1, 49-51, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Jones and two prosecution witnesses testified at the hearing. The juvenile court found that Jones had committed the robbery and that Jones was under the jurisdiction of the juvenile court and continued the proceedings to a later date at which time the court would determine the proper disposition of Jones. At the subsequent hearing, the juvenile court judge announced he did not intend to proceed with Jones as a juvenile but intended to find him unamenable to the rehabilitative facilities of the juvenile court and to direct the District Attorney to prosecute Jones as an adult. Upon an objection by Jones that he had assumed the hearing was to determine disposition to the appropriate juvenile facility, not to determine certification to the adult court for criminal prosecution, the court granted a one-week continuance. At the next hearing, Jones objected to the certification, contending, among other things, that he had already been adjudicated a person described in Cal.Welf. & Inst’ns Code § 602 by the juvenile court and, therefore, certification to be “tried” again would place him twice in jeopardy. The court rejected the argument and certified Jones to be tried as an adult.

Following an unsuccessful attempt to secure habeas corpus relief in the state courts, Jones was tried and found guilty of armed robbery and his double jeopardy argument was again rejected.

Undaunted, Jones filed a petition for habeas corpus in the district court, once more claiming double jeopardy. The district court judge denied the petition, holding that jeopardy does not attach in the juvenile proceedings and even if it had, no new jeopardy arose by the procedure of certifying Jones to be tried and ultimately convicted as an adult. Jones v. Breed, 843 F.Supp. 690 (C.D.Cal.1972).

We must first resolve whether the protection of the Fifth Amendment “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . ” applies to juvenile court proceedings. Certainly the constitutional mandate makes no distinction between adults and juveniles. See In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 16 L.Ed.2d 1013 (1967). The district court found that the nature of the juvenile court proceeding is such that it should be treated differently from adult criminal proceedings and double jeopardy restrictions should not be applied.

The juvenile court system was conceived around the turn of the century with the emergence of the enlightened concept of separating erring children from hardened felons. The primary objective of the new system was to take juvenile offenders out of adult courts and adult bastilles and provide them with a sound rehabilitation program. The system was envisioned as civil in nature rather than criminal. Traditional adversarial fact-finding procedures were abandoned in favor of informal procedures that would allow the court to determine what was in the juvenile’s best interest and how he could be retrained, while at a pliable age, to live lawfully in society. The juvenile court judge, in his role as “father” to the erring juvenile, was to protect his interest and welfare. Rules of evidence were abandoned and constitutional guarantees provided in adult proceedings were not afforded juveniles.

Although the adoption of these informal methods was perhaps sound in principle, the complexities of our society and our overcrowded juvenile court facilities dictated some modification. In Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), the Court analyzed the procedure for referring a juvenile for trial as an adult. Recognizing the significant disparity of what could happen to the juvenile depending upon whether he was tried as a juvenile or as an adult, the Court was no longer willing to have the waiver of jurisdiction decision made without the due process requirements of a hearing, representation by counsel, a statement of reasons or considerations for any referral to the adult court and opportunity for the juvenile’s counsel to review the child’s social study records.

Kent was followed by In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 16 L.Ed.2d 1013 (1967), in which the Court mandated due process protection at the delinquency hearing by requiring (1) that the juvenile be given adequate notice of the charges, (2) that he be given the right to counsel, (3) that he be allowed to assert the privilege against self-incrimination and (4) that he be given the right to confront and cross-examine witnesses. More importantly, the Gault Court sounded a new approach to the juvenile system and rejected the theory that constitutional safeguards should be denied juveniles by the expedient of labeling the proceedings as civil when in fact they were criminal in nature. The Court reemphasized this requirement in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), holding that the charges against the juvenile must be proven at the delinquency hearing beyond a reasonable doubt. After Winship, if the state wished to limit constitutional rights, it inherited the burden of proving that criminal safeguards would be detrimental to particular aspects of the juvenile system.

It was unclear, however, whether these constitutional safeguards included the Fifth Amendment protection against double jeopardy. Court has held that not all common-law protections available to adults are available to juveniles. The Constitution does not require the total emasculation of juvenile court procedures. As Justice Blackmun stated in McKeiver v. Pennsylvania, 403 U.S. 528, 551, 91 S.Ct. 1976, 1989, 29 L.Ed.2d 647 (1971): The Supreme

If the formalities of the criminal adjudicative process are to be superimposed upon the juvenile court system, there is little need for its separate existence. Perhaps that ultimate disillusionment will come one day, but for the moment we are disinclined to give impetus to it.

The basic approaches of the juvenile and adult adjudicative processes dictate that the systems not operate exactly alike. In McKeiver, the Court rejected the contention that a juvenile court must provide a jury trial; Justice Blackmun stated:

If the jury trial were to be injected into the juvenile court system as a matter of right, it would bring with it into that system the traditional delay, the formality, and the clamor of the adversary system and, possibly, the public trial.

403 U.S. at 550. But that case does not dictate the nonapplicability of double jeopardy. Whether a jury is required deals with the method of juvenile adjudication; whether double jeopardy applies goes to the very core of basic application of rights and does not affect how the juvenile is tried. Its only effect on procedure pertains to whether the hearing to determine whether a minor is a fit subject for the juvenile program must be held before he is adjudicated a ward of the court. Applying double jeopardy protection to juvenile proceedings will not impede the juvenile courts in carrying out their basic goal of rehabilitating the erring youth. Indeed, basic constitutional guarantees such as that against double jeopardy are so fundamental to our notions of fairness that our refusal to find them applicable to the youth may do irreparable harm to or destroy their confidence in our judicial system. Ultimately, this may be more important than our recognition of the need for special and informal procedures to rehabilitate juveniles.

A youth is entitled to double jeopardy protection particularly when the state has elected to try him as an adult. We agree with the Fifth Circuit’s statement in Fain v. Duff, 488 F.2d 218, 225 (5th Cir. 1973):

Here we have a juvenile threatened with a criminal prosecution. By indicting him, the state has expressed a desire to treat him in all respects as an adult. Is there any question that since the state now proposes to subject him to the powers of the state as it would an adult, it must now accord him all the procedural rights that an adult has ? '

We hold that the Fifth Amendment guarantee of double jeopardy is fully applicable to juvenile court proceedings.

Having concluded that the protection against double jeopardy is among the safeguards available to a juvenile, we must decide whether jeopardy attaches during the delinquency hearing. When the juvenile court can, on the basis of the delinquency hearing, impose severe restrictions upon the juvenile’s liberty, we believe jeopardy attaches. As the Fifth Circuit, when faced with a similar question in Fain v. Duff, 488 F.2d at 225, concluded:

Although commitment to the Division of Youth Services may result in the juvenile being allowed to return to his home, it may also result in incarceration until age 21. Fain’s commitment to the division resulted from his having been found delinquent. And his being found delinquent resulted from his having violated a criminal law of the State of Florida. F.S.A. § 39.-01(9). Thus, a violation of the criminal law may directly result in incarceration. This is a classic example of “jeopardy.”

Several states have held that jeopardy attaches in the juvenile court proceeding. The California Supreme Court in Richard M. v. Superior Court, 4 Cal.3d 370, 93 Cal.Rptr. 752, 482 P.2d 664 (1971), held that a second juvenile prosecution is barred where the identical delinquency petition has been dismissed in a prior juvenile court proceeding where, after a hearing on the merits, a termination similar to an acquittal has been ordered.

Although California concedes that jeopardy attaches when the juvenile is adjudicated a ward of the court, it argues that no new jeopardy attaches when the juvenile is referred to the adult court and subsequently convicted. It contends that the juvenile’s prosecution in both the juvenile and adult courts is one continuous proceeding. To provide a legal theory for its position, California points to its own decisions contending that there is a “continuing jeopardy.” Bryan v. Superior Court, 7 Cal.3d 575, 583, 102 Cal.Rptr. 831, 498 P.2d 1079 (1972), cert. denied, 410 U.S. 944, 93 S.Ct. 1380, 35 L.Ed.2d 610 (1973). That theory was applied by the California District Court of Appeal and by the United States District Court in this case. In re Gary J., 17 Cal.App.3d 704, 95 Cal.Rptr. 185 (1971); Jones v. Breed, 343 F.Supp. 690, 692 (C.D.Cal.1972).

Jones argues, on the other hand, that if the juvenile court is to certify a child to' the adult court free of jeopardy, it must do so at a fitness hearing held prior to any determination of delinquency. There is no doubt that this is the preferred practice. Antieau, Constitutional Rights in Juvenile Courts, 46 Cornell L.Q. 387, 397-98 (1961); California Juvenile Court Deskbook, § 10.4, at 148-50 (Cal. College of Trial Judges (1972)); Model Rule for Juvenile Courts 9, National Council on Crime and Delinquency (1969). In fact, the California Supreme Court has commended this procedure. Donald L. v. Superior Court, 7 Cal.3d 592, 598, 102 Cal.Rptr. 850, 498 P.2d 1098, 1101 (1972).

The question, however, is not whether it is preferable to have the fitness hearing first, but whether the subsequent adult trial is a new jeopardy rather than a continuing jeopardy which both parties agree attaches at the juvenile court delinquency hearing. The theory of continuing jeopardy was implied in United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), and enunciated by Justice Holmes in his dissent in Kepner v. United States, 195 U.S. 100, 134-135, 24 S.Ct. 797, 49 L.Ed. 114 (1904). In Kepner the Court held that to allow the prosecution to appeal from a judgment of acquittal would place a defendant in double jeopardy. Justice Holmes dissented, arguing that “a man cannot be said to be more than once in jeopardy in the same cause, however often he may be tried. The jeopardy is one continuing jeopardy from its beginning to the end of the cause.” The prohibition of double jeopardy, he argued, only forbids “a trial in a new and independent ease where a man already [has] been tried once.” 195 U.S. at 134.

The Court has never adopted Holmes’ theory, but it has adopted a form of continuing jeopardy under which a person may be retried on any changes of an indictment for which he has been convicted and for which he has, upon an appeal initiated by him, had that conviction reversed. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). If he has been acquitted, either implicitly or expressly, of any charge, he cannot be retried on that charge. Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). Similarly, he may not be tried for a single offense growing out of a single occurrence, criminal episode or transaction by two courts created under the authority of one state. Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970); Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

The principles of continuing jeopardy, as adopted by the Supreme Court, do not support California’s argument that the jeopardy that attaches at the juvenile adjudicatory hearing continues through the adult trial. First, the trial in adult court does not follow as a result of an appeal taken by the minor from his juvenile court conviction, but is a retrial for the same offense initiated by the state. Continuing jeopardy allows retrial following an appeal initiated by the defendant claiming error in his first conviction. If the conviction is reversed, retrial must be in the same court as the first trial. It would be in violation of the principles enunciated in Price v. Georgia and Green v. United States to allow the state to initiate a retrial after it has already obtained a conviction in juvenile court. Second, transfer following the adjudicatory hearing would essentially allow the minor to be tried for one offense in two courts created by the same state in violation of the principles enunciated in Waller v. Florida and Ashe v. Swenson. The juvenile courts are a separate court system from the adult courts and once a minor has been placed in risk of conviction he cannot be retried. Although trial in both the juvenile and the adult court may riot result in separate punishment, double jeopardy protects double risk of conviction, not just double risk of punishment. Price v. Georgia, 398 U.S. at 331. Rather than supporting California’s approach, the principles of continuing jeopardy dictate that once jeopardy has attached to a minor in a juvenile court delinquency hearing, he may not be placed in peril of conviction in an adult court for charges based on any oceurrence, criminal episode or transaction used as the basis for the petition in the juvenile court.

The Fifth Circuit in Fain v. Duff, 488 F.2d 218 (5th Cir. 1973), reached this same conclusion. Fain was arrested for rape and adjudged a delinquent by a juvenile court. Subsequently, a grand jury indicted him for the same offense. Habeas corpus issued from the district court based upon former jeopardy and the circuit court affirmed. We detect no reason to distinguish Fain from our case and are disposed to adopt its reasoning. We recognize there is dicta to the contrary in United States v. Dickerson, 271 F.2d 487 (D.C.Cir. 1959), but that language has been so undercut by Kent, Gault and Winship, that we are not persuaded that it is a correct statement of today’s law.

There are basic issues of fairness upon which we should comment. Nowhere in our criminal system do we allow the prosecution to review in advance the accused’s defense and, as here, hear him testify about the crime charged. The most heinous and despicable criminal is saved from such an invasion of his fundamental rights. Yet, if we adopt California’s position, we approve having such a procedure applied to those of tender years. This offends our concepts of basic, even-handed fairness.

We hold that once jeopardy attaches at the adjudiciatory or jurisdictional hearing in the juvenile court (here held pursuant to Cal.Welf. & Inst’ns Code § 602), the minor may not be retried as an adult or a juvenile absent some exception to the double jeopardy prohibition. There was none here. We cannot allow this fundamental constitutional right to be wrenched from the minor under the guise of providing a system for his protection.

We reverse with directions for the district court to issue a writ of habeas corpus directing the state court, within 60 days, to vacate the adult conviction of Jones and either set him free or remand him to the juvenile court for disposition.

      . Cal.Welf. & Inst’ns Code § 602 provides in part:
      Any person who is under the age of 18 years when he violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime ... is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.

      . Cal.Welf. & Inst’ns Code § 701 provides in part:
      At the hearing, the court shall first consider only the question whether the minor is a person described by Sections 600, 601, or 602, and for this purpose, any matter or information relevant and material to the circumstances or acts which are alleged to bring him within the jurisdiction of the juvenile court is admissible and may be received in evidence; however, proof beyond a reasonable doubt supported by evidence, legally admissible in the trial of criminal cases, must be adduced to support a finding that the minor is a person described by Section 602 . ' .

      . See note 1, supra.

        . Cal.Welf. & Inst’ns Code § 702 provides in part:
      After hearing such evidence, the court shall make a finding, noted in the minutes of the court, whether or not the minor is a person described by Section 600, 601, or 602. If it finds that the minor is not such a person, it shall order that the petition be dismissed and the minor be discharged from any detention or restriction theretofore ordered. If the court finds that the minor is such a person, it shall make and enter its findings and order accordingly and shall then proceed to hear evidence on the question of the proper disposition to be made of the minor. Prior to doing so, it may continue the hearing, if necessary, to receive the social study of the probation officer or to receive other evidence on its own motion or the motion of a parent or guardian for not to exceed 10 judicial days if the minor is detained during such continuance

      . Cal.Welf. & Inst’ns Code § 707 provides in part:
      At any time during a hearing upon a petition alleging that a minor is, by reason of violation of any criminal statute or ordinance, a person described in Section 602, when substantial evidence has been adduced to support a finding that the minor was 16 years of age or older at the time of the alleged commission of such offense and that the minor would not be amenable to the care, treatment and training program available through the facilities of the juvenile court, . . . the court may make a finding noted in the minutes of the court that the minor is not a fit and proper subject to be dealt with under this chapter, and the court shall direct the district attorney or other appropriate prosecuting officer to prosecute the person under the applicable criminal statute or ordinance and thereafter dismiss the petition or, if a prosecution has been commenced in another court but has been suspended while juvenile court proceedings are held, shall dismiss the petition and issue its order directing that the other court proceedings resume.

      . See note 1, supra.

      . The double jeopardy clause of the Fifth Amendment applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (overruling Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937)).

      . Mennel, Origins of the Juvenile Court: Changing Perspectives on the Legal Rights of Juvenile Delinquents, 18 Crime and Delin. 68, 69 (1972); Comment, Constitutional Rights of Juveniles: Gault and Its Application, 9 Wm. & Mary L.Rev. 492 (1967); Note, Due Process and the Juvenile Offender: The Scope of In re Gault, 14 How.L.J. 150, 151 (1968). For a very thorough history of- the juvenile justice system in the United States from its meager beginning in the 1820’s to the landmark enactment of the juvenile court in Illinois in 1899 (the forerunner of the modern movement), see Fox, Juvenile Justice Reform: An Historical Perspective, 22 Stan.L.Rev. 1187 (1970), and Mennel, supra.

      . Note, supra note 8, at 151; Comment, supra note 8, at 492.

      . Mennel, supra note 8, at 69; Note, supra note 8, at 151; Comment, supra note 8, at 492.

      . Haviland, Daddy Will Take Care of You: The Dichotomy of the Juvenile Court, 17 Kan.L.Rev. 317, 322 (1969).

      . Id.

      . McKeiver v. Pennsylvania, 403 U.S. 528, 543-545, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); Comment, supra note 8, at 492; see Note, supra note 8, at 151.

      . The Supreme Court, 1969 Term, 84 Harv.L.Rev. 1, 160 (1970).

      . Following Q-ault, many commentators speculated on what additional constitutional safeguards would be available to juveniles. See Carver and White, Constitutional Safeguards for the Juvenile Offender, Implications of Recent Supreme Court Decisions, 14 Crime and Delin. 63 (1968); Gardner, Gault And California, 19 Hastings L.J. 527 (1968); Comment, Juvenile Court Procedures Beyond GAULT, 32 Albany L.Rev. 126 (1967); Note, Extending Constitutional Rights to Juveniles — Gault in Indiana, 43 Ind.L.J. 661 (1968); Note, The Constitution And Juvenile Delinquents, 32 Mont.L.Rev. 307 (1971); Comment, In Re Gault And The Persisting Questions of Procedural Due Process And Legal Ethics In Juvenile Courts, 47 Neb.L.Rev. 558 (1968).

      . Note, Double Jeopardy and the Waiver of Jurisdiction in California’s Juvenile Courts, 24 Stan.L.Rev. 874 (1972); Note, Double Jeopardy and Due Process in the Juvenile Courts, 29 U.Pitt.L.Rev. 756 (1968).

      . E. g., Arizona: Anonymous v. Superior Court, 10 Ariz.App. 243, 457 P.2d 956 (1969); Idaho: State v. Gibbs, 94 Idaho 908, 500 P.2d 209 (1972); Iowa: State v. Halverson, 192 N.W.2d 765 (Iowa 1971); Texas: Collins v. State, 429 S.W.2d 650 (Tex.Civ.App.1968).

      . The thrust of Jones’ argument is that, in order to comport with the prohibition against double jeopardy, the juvenile court must waive jurisdiction in favor of the adult court prior to the delinquency hearing and not after it. Some states provide for this by statute. E. g., Ga.Code Ann. § 24A-2501; N.M.Stat.Ann. § 13-14-27.

      . The fitness hearing procedure is described in Jimmy II. v. Superior Court, 3 Cal.3d 709, 91 Cal.Rptr. 600, 478 P.2d 32 (1970).

      . [Justice Holmes] did dissent from the holding in Kepner — that the Government could not appeal an acquittal — on the ground that a new trial after an appeal by the Government was part of a continuing jeopardy rather than a second jeopardy. But that contention has been consistently rejected by this Court.
      Green v. United States, 355 U.S. 184, 196, 78 S.Ct. 221, 228, 2 L.Ed.2d 199 (1957).

      . As one commentator recently asserted:
      Continuing jeopardy relies on the assumption that the several trials are all based on the same complaint. In the certification situation this underlying premise is lacking. When the juvenile court judge enters a finding of nonamenability, the juvenile petition is dismissed; subsequent criminal action is based on a new complaint alleging the same facts. Even under Holmes’s formulation this would not be continuing jeopardy since each prosecution proceeds under the authority of a different complaint.
      Note, Double Jeopardy and the Waiver of Jurisdiction in California’s Juvenile Courts, 24 Stan.L.Rev. 874, 888 (1972) (footnotes omitted).


author: VAN DUSEN, Circuit Judge.

text:
    UNITED STATES of America v. Maria Rodriguez DE LAZO et al. Appeal of Angel PEREZ in No. 73-1712. Appeal of Joshua MOORE in No. 73-1793.
    Nos. 73-1712, 73-1793.
    United States Court of Appeals, Third Circuit.
    Argued April 4, 1974.
    Decided May 30, 1974.

      George J. Koelzer, Evans, Koelzer, Doyle & Marriott, Rumson, N. J., for appellant Perez.
    Howard J. Diller, Diller & Schmukler, New York City, for appellant Moore.
    Jonathan L. Goldstein, U. ^S. Atty., Richard S. Zackin, John J. Barry, Asst. U. S. Attys., Newark, N. J., for appellee.

      . We agree that it would be preferable for the trial judge to have substituted for the last sentence in his charge, beginning on N. T. 1203, concerning reasonable doubt a sentence such as the following in § 11.01, p. 205, of Devitt & Blackmar, Federal Jury Practice and Instructions, 2d ed.:
      “Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that you would be willing to rely and act upon it unhesitatingly in the most important of your own affairs.”
      See United States v. Stubin, 446 F.2d 457, 465 &n. 7 (3d Cir. 1971).

   OPINION OF THE COURT

Before VAN DUSEN, WEIS and GARTH, Circuit Judges.

VAN DUSEN, Circuit Judge.

This is an appeal by defendants, Angel Perez and Joshua Moore, from a conviction, after a jury trial, for conspiracy to import and distribute cocaine and for possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and 18 U.S.C. § 2. At trial the Government introduced evidence to show that Perez and Moore were part of a conspiracy to manufacture cocaine outside of Bogota, Colombia, and to smuggle it into the United States for distribution. Perez was in charge of the manufacturing function, Lazo of the smuggling into the United States, and Moore and Walcott of the distribution within the United States. In furtherance of that conspiracy, 3885 grams of cocaine were brought into Newark airport on April 30, 1972, where it was seized by federal agents. Named in the indictment as co-conspirators were Maria De Lazo, Norma Hunter, George Walcott, Carrie Wilkerson, and Edelberto Esquijarosa. Susan Boehlke and Mei Ling Moy were unindicted co-conspirators who were given immunity and testified for the Government at trial.

Appellants advance a number of arguments to support their claim that they are entitled to a judgment of acquittal or a new trial. After careful consideration, we find all of them to be without merit.

First, there is sufficient evidence on the record to permit the jury to infer that the cocaine which was seized from Maria Lazo’s luggage at Newark airport came from the manufacturing establishment of Perez in Colombia. Thus the jury could reasonably conclude that Perez was a member of the alleged conspiracy, in furtherance of which the cocaine was brought into Newark, and that he was an aider and abettor of Maria Lazo, whose constructive possession of the cocaine was, therefore, attributable to him. See Pinkerton v. United States, 328 U.S. 640, 646-647, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); United States v. Boyance, 329 F.2d 372, 375 (3d Cir.), cert. denied, 377 U.S. 965, 84 S.Ct. 1645, 12 L.Ed.2d 736 (1964); United States v. Malfi, 264 F.2d 147, 151-152 (3d Cir. 1959).

Second, there is sufficient evidence to support the finding of the jury that Moore was also a member of that same conspiracy and that he was in constructive possession of the cocaine. The testimony of co-conspirators Susan Boehlke and Mei Ling Moy clearly establishes the existence of the alleged conspiracy and Moore’s connection with it as one of the principal distributors of the cocaine after it arrived in the United States, and the evidence does not support Moore’s contention that he withdrew from the conspiracy prior to the arrival of the cocaine in Newark. It is, of course, true that there must be independent evidence of Moore’s participation in the conspiracy to permit the use against him of the declarations of his alleged co-conspirators. However, where, as here, the existence of the conspiracy is established by proof aliunde, slight evidence may be sufficient to connect a defendant with it. See, e. g., United States v. Kenny, 462 F.2d 1205, 1226 (3d Cir.), cert. denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972); United States v. Bey, 437 F.2d 188, 190 (3d Cir. 1971). In the present case there was sufficient evidence of Moore’s participation in the conspiracy apart from any declarations of co-conspirators, and the trial court properly admitted into evidence against Moore the testimony of Susan Boehlke and Mei Ling Moy.

Third, there is no plain error in the trial court’s charge to the jury (appellants having failed to object to the charge at the time it was given). See F.R.Crim.P. 52(a). The trial court’s instruetion on reasonable doubt was not reversible error, United States v. Restaino, 369 F.2d 544, 546 (3d Cir. 1966), And the remainder of the charge, read as a whole, supported, rather than weakened, that instruction. In addition, there was no plain error in the trial court’s instruction on the absence of an overt act requirement under 21 U.S.C. § 846, see Leyvas v. United States, 371 F.2d 714, 717 (9th Cir. 1967), or on the Pinkerton doctrine, Pinkerton v. United States, supra at 646-647.

A11 other contentions of appellants ^ave ^een considered and rejected.

Accordingly, the district court orders of judgment and commitment will be affirmed.

      . In addition to the conspiracy and possession counts, Lazo was charged with a violation of 18 U.S.C. § 924(c). At the time of trial, Esquijarosa was a fugitive and was . severed from the case. During the course of the trial, co-defendants Wilkerson, Walcott, Lazo and Hunter pleaded guilty to the conspiracy count and were then severed from the trial.

      . (1) Both Susan Boehlke and Mei Ling Moy testified that they were recruited by Maria Lazo to go to Colombia in order to bring back cocaine which was to be manufactured there by Maria’s husband, Angel Perez (N.T. 81, 590-91). (2) Both Susan and Mei Ling went to Colombia, where they, as well as Maria Lazo, watched and occasionally assisted Perez in the manufacturing operation (N.T. 121-24, 682-86). (3) Within a short time after the cocaine was produced, Maria arrived at Newark airport via Kennedy Airport, accompanied by Carrie Wilkerson (“Tina”) and Norma Hunter (“Lisa”) (N.T. 865-74). Both Susan and Mei Ling identified Tina and Lisa as women who also had been with Perez in Colombia and had been sent there for the express purpose of transporting Perez’s cocaine into the United States (N.T. 92-101, 104-07, 128-30, 690-91). (4) Maria, Tina, and Lisa had arrived at Kennedy Airport from California (N.T. 869). Susan testified that while in Colombia, Maria had discussed the possibility of bringing Perez’s cocaine to New York through California (N.T. 129). (5) Susan testified that the luggage in which the cocaine was found was the same luggage which Maria had with her while she was with Perez in Colombia (N.T. 296-97, 941-43, 949-51).

      . (1) Mei Ling Moy testified that just before Maria Lazo and Tina left for Colombia in January of 1972, Maria gave Mei Ling a note to deliver to Moore. Mei Ling met with Moore shortly thereafter, and he asked her how she knew Maria and engaged her in a discussion concerning cocaine. He offered to sell, and later did in fact sell, a quantity of cocaine to Mei Ling (N.T. 621-25). (2) BNDD agents testified that they observed Moore and other co-conspirators meet Maria Lazo, Tina, and Lisa when the three women arrived at Kennedy Airport from California. Moore accompanied the three women from Kennedy to Newark airport where the women’s luggage had been sent, luggage which contained four kilos of cocaine (N.T. 865-74). (3) After bis arrest and release on bail, Moore met with Susan Boehlke. Susan testified that, when she asked Moore how Tina and Lisa were doing, Moore told her the girls liad “messed up” and that he himself was going to South America and take one or two girls with him (N.T. 284). Though Moore’s conversation with Susan occurred after the conspiracy is alleged to have been in existence, it may constitute independent evidence of Moore’s participation. See United States v. Ragland, 375 F.2d 471, 477 (2d Cir. 1967), cert. denied, 390 U.S. 925, 88 S.Ct. 860, 19 L.Ed.2d 987 (1967).

      . There is likewise no merit in Moore’s contention that, even granting the sufficiency of the non-hearsay evidence, the introduction of tlie declarations of his co-conspirators violated his right to confront the witnesses against him and deprived him of due process of law. See United States v. Kenny, supra, at 1218.

      . In the course of its charge on the substantive count of possession, the court instructed the jury as follows:
      “[I]f you find that these defendants were members of the conspiracy alleged in Count 1, and if you find that the substantive offense of wilfully and knowingly having possession of cocaine with intent to distribute, as set forth in Count 2, was committed by one or more of the members of the conspiracy in furtherance of the conspiracy, then each of the defendants who was a member of the conspiracy at the time of the offense is guilty of the unlawful possession committed or done by any one of them.” (N.T. 1231-32) (Emphasis added.)
      Appellants point out that this instruction differs from that approved in Pinkerton, supra at 645 n. 6, in that the latter merely permits a jury to convict a member of a conspiracy of the substantive crimes committed by his coconspirators in furtherance of the conspiracy, whereas the instruction in this case requires such a conviction. If appellants had objected to the above-quoted instruction, there might be a basis for a reversal and a new trial. However, we note that the trial court instructed the jury that the “necessity of proof beyond a reasonable doubt extends and relates to each essential element of the crime charged” (N.T. 1203) and concluded its instruction on the Pin leer-ton doctrine by cautioning the jury as follows :
      “I charge you, however, that with respect to the charges made in Count 2, that if you find a defendant not guilty of the conspiracy alleged in Count 1, then you cannot consider any of the testimony introduced concerning acts or any statements of other defendants in furtherance of the conspiracy in determining that particular defendant’s guilt or innocence.” (N. T. 1232)
      We also note that the Supreme Court’s opinion in Pinkerton, supra at 647, contains the following language:
      “The criminal intent to do the act is established by the formation of the conspiracy. Each conspirator instigated the commission of the crime. The unlawful agreement contemplated • precisely what was done. It was formed for that purpose. The act done was in execution of the enterprise. The rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle. That principle is recognized in the law of conspiracy when the overt act of one partner in crime is attributable to all. ... If . . . [an overt act] can be supplied by the act of one conspirator, we fail to see why the same or other acts in furtherance of the conspiracy are likewise not attributable to the others for the purpose of holding them responsible for the substantive offense.”
      In light of this language, and reading the charge as a whole, we do not believe that the trial court’s Pinkerton instruction was plain error.

      . These include the following: (1) that the refusal of the trial judge to allow appellant Moore to explain the circumstances of an alleged prior inconsistent statement during cross-examination constitutes reversible error ; (2) that the conduct of the prosecutor during appellant Moore’s cross-examination and during summation deprived appellants of a fair trial. See F.R.Crim.P. 52(a).


author: LIVELY, Circuit Judge.

text:
    COMMONWEALTH OF KENTUCKY ex rel. Ed W. HANCOCK, Attorney General, Plaintiff-Appellant, v. William D. RUCKELSHAUS, Administrator of the Environmental Protection Agency, et al., Defendants-Appellees.
    No. 73-2099.
    United States Court of Appeals, Sixth Circuit.
    Argued April 8, 1974.
    Decided June 5, 1974.

      Ed W. Hancock, Atty. Gen., Commonwealth of Kentucky, David D. Beals, David C. Short, Asst. Attys. Gen., Div. of Natural Resources and Environmental Law Commonwealth of Kentucky, Robert F. Trevey, Atty., Dept, of Natural Resources and Environmental Protection Div. of Air Pollution, Frankfort, Ky., on brief for plaintiff-appellant.
    Andrew P. Miller, Atty. Gen. of the Commonwealth of Virginia, amicus curiae, J. Thomas Steger, Asst. Atty. Gen., Richmond, Va., on brief, for the Commonwealth of Virginia as amicus curiae in support of plaintiff-appellant.
    Evelle J. Younger, Atty. Gen., Robert H. O’Brien, Asst. Atty. Gen., Nicholas C. Yost, Jan. E. Chatten, Deputy Attys. Gen., Los Angeles, Cal., on brief, for the California Attorney General as amicus curiae in support of the plaintiffs-appellants’ interpretation of the Clean Air Act.
    John L. Hill, Atty. Gen. of Texas, Larry F. York, First Asst. Atty. Gen., Philip K. Maxwell, Asst. Atty. Gen., Austin, Tex., on brief, for the State of Texas as amicus curiae in support of plaintiffs-appellants.
    Beauchamp E. Brogan, Associate Gen. Counsel, Knoxville, Tenn., for defendants-appellees, Tennessee Valley Authority, Aubrey J. Wagner, Lynn Seeber, J. L. McPherson and T. E. Cavaniss; Robert H. Marquis, Gen. Counsel, Herbert S. Sanger, Jr., Deputy Gen. Counsel, Justin M. Schwamm, Asst. Gen. Counsel, Tennessee Valley Authority, Knoxville, Tenn., on brief.
    Robert L. Klarquist, Dept, of Justice, Wallace H. Johnson, Asst. Atty. Gen., George Long, U. S. Atty., Louisville, Ky., Jacques B. Gelin, Robert L. Klarquist, Attys., Dept, of Justice, Washington, D. C., on brief, for the Federal defendantsappellees.
    Before WEICK and LIVELY, Circuit Judges, and CECIL, Senior Circuit Judge.
   LIVELY, Circuit Judge.

This case is concerned with the Clean Air Act Amendments of 1970 (the Act), and more particularly with the meaning of section 118 thereof, 84 Stat. 1689, 42 U.S.C. § 1857. The Attorney General of Kentucky brought this action against various federal departments and agencies which operate facilities within the State that employ pollutant emitting equipment. Included among the defendants were the Secretary of the Army and various Army officers, the chairman of the Board of Directors of the Atomic Energy Commission (AEC) and various officials of that agency and the managing officers of the Tennessee Valley Authority (TVA). The complaint recited that a “Kentucky Plan” for implementation of air quality standards had been adopted, and approved by the Environmental Protection Agency (EPA), and that the plan included a regulation which requires the owners and operators of air pollutant emitting equipment to apply for and obtain from the Kentucky Air Pollution Control Commission (Commission) “a permit to operate their air contaminant equipment.” Stating that the defendants had refused to apply for and obtain such permits, the plaintiff asked for an order directing them to do so and that they be permanently restrained from refusing to comply with the provisions of section 118 of the Act.

Also named defendants were the Administrators of EPA and the regional administrator whose responsibility includes Kentucky. It was complained that these defendants had refused to initiate appropriate actions against the previously named defendants to require their compliance with the permit requirements of the Kentucky Plan. It was alleged that section 113 of the Act requires the EPA administrators to proceed in the manner requested. The relief sought against these defendants was entry of an order directing them to commence an action under section 113 to obtain full compliance by the other defendants with the permit requirement. In addition, a declaratory judgment was sought to the effect that the defendant operators of federal facilities do not have the right to refuse to comply with the permit regulations of the Kentucky Plan and that the EPA defendants, with knowledge of widespread violations by the other federal defendants, do not have a right to fail to initiate appropriate action under section 113.

All defendants filed motions to dismiss or for summary judgment. The plaintiff also filed a motion for summary judgment and various parties filed affidavits in support of their motions. Although plaintiff did not concede that all the federal facilities in Kentucky are in compliance with air pollution emission standards or have adopted schedules which will bring them into compliance, the district court determined that resolution of this issue was not required for decision of the case. Upon consideration of the cross-motions, District Judge James F. Gordon granted summary-judgment to the defendants and dismissed the action.

The issues on appeal are narrow. In the first place, the appellant contends that section 118 of the Act “requires that those persons in charge of the administration and operation of air contaminant sources owned or operated by the federal government comply with all state requirements respecting the control and abatement of air pollution including Kentucky’s permit requirements.” The appellees maintain that section 118 requires compliance with substantive provisions of the Kentucky Plan, but does not compel federal officials to obtain state or local permits for the operation of federal facilities. It is the position of the appellant that the permit requirement is substantive in nature because the Kentucky Plan is so formulated that the State cannot meet its primary responsibility under the Clean Air Act without the use of permits. To this the appellees respond that they are willing to supply, and in fact have supplied, the information sought on the permit application form, but will not seek the permit itself.

It is agreed by the parties that section 304 of the Act provides a means by which the United States may be sued for violation of an emission standard or limitation, or order with respect thereto. The appellant argues that this provision only permits abatement actions and that the Commission needs to be able to prevent air pollution as well as abate violations. It is maintained that the permit device is the only means by which the State can exercise preventive control over polluters. The language of section 304 does not require that suit be deferred until an actual violation of an established emission standard occurs. Sub-section (f)(1) clearly permits the filing of an action for violation of a schedule or timetable of compliance. Thus, it is not necessary under section 304, that the State or other aggrieved party wait until an emission standard is violated to bring suit. It may be done at the first instance where the owner or operator of polluting equipment fails to meet a level prescribed in a schedule or timetable of compliance. Such an action would surely be preventive in nature.

Both the doctrine of sovereign immunity and the application of the Supremacy Clause of the Constitution are involved in the decision of this case. We view the action against the non-TVA defendants as a suit against the United States. The sovereign can only act through its agents, and the relief sought in this case does not seek to impose personal liability of the named defendants, but rather would affect public administration Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688-689, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949); Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947). Every declaration of a waiver of sovereign immunity must be strictly construed. United States v. Sherwood, 312 U.S. 584, 590, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Section 118 contains no waiver and that included in section 304 does not permit suit to require owners and operators of federal facilities to obtain permits from a state agency in order to continue to operate. The two sections are part of the same Act and must be read together. By failing to include a separate waiver of immunity in section 118 Congress indicated that compliance with its provisions may be compelled by suit only to the extent permitted by section 304. This section provides ample means for enforcement of air quality and emission standards.

The TVA defendants do not claim sovereign immunity from suit, but do maintain that the Supremacy Clause of the United States Constitution exempts federal agencies and officials in the performance of their duties from state and local regulations. From the time of McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819), this has been a settled principle of our federalism. See Mayo v. United States, 319 U.S. 441, 445-448, 63 S.Ct. 1137, 87 L.Ed. 1504 (1943). The doctrine has been held applicable to TVA. Posey v. Tennessee Valley Authority, 93 F.2d 726, 727 (5th Cir. 1937). The appellant argues that Congress determined in this instance to submit federally owned and operated facilities to state regulation by providing, in section 118, that agencies of the federal government “shall comply” with state requirements. This does not necessarily follow. An examination of the legislative history of the 1970 Act reveals no congressional intent to subject federal instrumentalities and agencies to state administrative regulations. Separate House and Senate bills were interpreted in the respective Reports as requiring federal agencies to comply with applicable “emission standards” and the Joint Conference Report stated that the House bill and Senate amendment which became section 118 “declared that Federal departments and agencies should comply with applicable standards of air quality and emissions.” This language appears to us to refer only to substantive requirements and not to encompass the Kentucky regulation which requires permits. In the absence of a clear congressional purpose to subject federal agencies to state regulation, the district court was prevented by the Supremacy Clause from granting the injunctive relief sought by the plaintiff.

The plaintiff also relies on Executive Order No. 11507 which was issued on February 4, 1970 as authority for the proposition that the federal agencies and instrumentalities sued here are required to obtain Kentucky permits. This Executive Order, while in force, was never so construed by the Environmental Protection Agency, as shown by documents filed in connection with the motions for summary judgment. Such administrative construction is entitled to great weight particularly when it is supported by the legislative history of the Act to which the Order refers. Griggs v. Duke Power Co., 401 U.S. 424, 433-434, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Furthermore, the order in question was superseded by Executive Order No. 11752 on December 17, 1973 which contains this policy statement:

Section 1. Policy. It is the purpose of this order to assure that the Federal Government, in the design, construction, management, operation, and maintenance of its facilities, shall provide leadership in the nationwide effort to protect and enhance the quality of our air, water, and land resources through compliance with applicable standards for the prevention,control, and abatement of environmental pollution in full cooperation with State and Local governments. Compliance by Federal facilities with Federal, State, interstate, and local substantive standards and substantive limitations, to the same extent that any person is subject to such standards and limitations, will accomplish the objective of providing Federal leadership and cooperation in the prevention of environmental pollution. In light of the principle of Federal supremacy embodied in the Constitution, this order is not intended, nor should it be interpreted, to require Federal facilities to comply with State or local administrative procedures with respect to pollution abatement and control.

We find no support in the language of Executive Order No. 11507 for an interpretation of section 118 in accord with plaintiff’s contention, and such an interpretation is clearly negatived by the quoted portion of Executive Order No. 11752.

There has been a congressional waiver of immunity with respect to one group of defendants in this action, the EPA administrators. Section 304(a)(2) of the Act (42 U.S.C. § 1857h-2(a) (2)) provides for an action “against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.” The question here is whether the act or duty which the plaintiff sought to have the court order the EPA defendants to perform is mandatory or discretionary. This requires a consideration of the language of section 113 of the Act since the complaint demands that these defendants be “[ojrdered to commence appropriate action under Section 113” to obtain full compliance with the Kentucky Plan. A reading of section 113(a)(1) reveals that that Administrator shall give notice to persons in violation of the plan, but that he may thereafter issue an order or bring an action under sub-section (b). The same language is used in section 113(a)(2), which deals with widespread violations of an implementation plan. Again, the Administrator is required to give public notice of his finding, but may enforce

any requirement of the plan by issuing an order or commencing an action under sub-section (b). Section 113(b) uses only the discretionary “may”; the mandatory “shall” does not appear. The district court correctly held that it had no power to review the decision of EPA not to commence actions under section 113 since this was a decision on “agency action committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).

A review of the Act as a whole supports the views set forth in this opinion. Congress clearly intended that federal facilities comply with the emission standards and limitations of the state plan where they are located. Such compliance is mandated by section 118 and made enforceable by legal action pursuant to section 304. By defining the term “emission standard or limitation” broadly in section 304(f) Congress provided a means of enforcing all of the substantive provisions of a state plan, for prevention as well as after-the-fact violation. The chief purposes of the Act are “to protect and enhance the quality of the Nation’s air resources” (§ 101(b)(1)) and rapidly bring into being “a program to achieve the prevention and control of air pollution.” (§ 101(b)(2). We do not believe the congressional scheme for accomplishment of these purposes included subjection of federal agencies to state or local permit requirements. Congress did commit the United States to compliance with air quality and emission standards, and it is undisputed in this record that the federal facilities in Kentucky have cooperated with the Commission toward this end. The national dedication to improvement of the environment by prevention and control of air pollution is in no way impeded by exempting federal agencies from the permit requirement of Administrative Regulation No. AP-1, § 5.

The judgment of the district court is affirmed.

      . Section 118 provides :
      Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge of air pollutants, shall comply with Federal, State, interstate, and local requirements respecting control and abatement of air pollution to the same extent that any person is subject to such requirements. The President may exempt any emission source of any department, agency, or instrumentality in the executive branch from compliance with such a requirement if he determines it to be in the paramount interest of the United States to do so, except that no exemption may be granted from section 1857c — 6 of this title, and an exemption from section 1857c — 7 of this title may be granted only in accordance with section 1857c — 7(c) of this title. No such exemption shall be granted due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. Any exemption shall be for a period not in excess of one year, but additional • exemptions may be granted for periods of not to exceed one year upon the President’s making a new determination. The President shall report each January to the Congress all exemptions from the requirements of this section granted during the preceding calendar year, together with his reason for grant-' ing each such exemption.

      . Administrative Regulation NO. AP-1, § 5 provides:
      (1) No person shall construct, modify, use, operate, or maintain an air contaminant source or maintain or allow physical conditions to exist on property owned by or subject to the control of such person, resulting in the presence of air contaminants in the atmosphere, unless a permit therefor has been issued by the Commission and is currently in effect.

      . Section 113 (42 U.S.C. § 1857c-8) provides, in part, as follows:
      (a) (1) Whenever, on the basis of any information available to him, the Administrator finds that any person is in violation of any requirement of an applicable implementation plan, the Administrator shall notify the person in violation of the plan and the State in which the plan applies of such finding. If such violation extends beyond the 30th day after the date of the Administrator’s notification, the Administrator may issue an order requiring such person to comply with the requirements of such plan or he may bring a civil action in accordance with subsection (b) of this section.
      (2) Whenever, on the basis of information available to him, the Administrator finds that violations of an applicable implementation plan are so widespread that such violations appear to result from a failure of the State in which the plan applies to enforce the plan effectively, he shall so notify the State. If the Administrator finds such failure extends beyond the 30th day after such notice, he shall give public notice of such finding. During the period beginning with such public notice and ending when such State satisfies the Administrator that it will enforce such plan (hereafter referred to in this section as “period of federally assumed enforcement”), the Administrator may enforce any requirement of such plan with respect to any person—
      (A) by issuing an order to comply with such requirement, or
      (B) by bringing a civil action under subsection (b) of this section.
      ❖ S|! í¡{ itt

      (b) The Administrator may commence a civil action for appropriate relief, including a permanent or temporary injunction, whenever any person—
      (1) violates or fails or refuses to comply with any order issued under subsection (a) of this section; or
      (2) violates any requirements of an applicable implementation plan (A) during any period of Federally assumed enforcement, or (B) more than 30 days after having been notified by the Administrator under subsection (a) (1) of this section of a finding that such person is violating such requirement;

      . Section 304 (42 U.S.C. § 1857h-2) provides in pertinent part:
      (a) Except as provided in subsection (b) of this section, any person may commence a civil action on bis own behalf—
      (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or
      (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.
      * * * * *
      Definition
      (f) For purposes of this section, the term “emission standard or limitation under this chapter” means — ■
      (1) a schedule or timetable of compliance, emission limitation, standard of performance or emission standard,