author: DYER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Brett Allen BURSEY and Frances Rutledge Elliott, Defendants-Appellants.
    No. 73-2483.
    United States Court of Appeals, Fifth Circuit.
    March 22, 1974.
    Cameron M. Cunningham (Court-appointed), Brady S. Coleman, Austin, Tex., for defendants-appellants.
    Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before BELL, THORNBERRY and DYER, Circuit Judges.
   DYER, Circuit Judge:

Bursey and Elliott were convicted in a jury trial of possession with intent to distribute peyote, a controlled substance, in violation of 21 U.S.C.A. § 841(a). On appeal they contend that two separate automobile searches resulting in the Government’s discovery of the contraband were violative of their fourth amendment rights. Because we find this contention meritorious, we reverse the judgment below.

As is usual in the search and seizure area, the particular factual setting is of critical importance to the disposition of this case. Viewed most favorably to the Government, the evidence adduced at trial showed that on December 5, 1971, Bursey and Elliott, a married couple traveling under an assumed name, were in the company of two other individuals, including co-defendant Charles Mann, in a green Chevrolet. On that date, this vehicle and its four occupants crossed the border into the United States from Mexico at the Roma, Texas port of entry, where the name of the fourth member of the party, Pat Panella, triggered the customs office computer or “cad-pin” machine. The computer printout indicated that Panella had previously crossed the border in possession of marijuana seeds. On the basis of this information, surveillance was undertaken by two customs agents as the vehicle left the border station and headed for a motel in Roma. On the following morning, while the surveillance was continuing, the agents met with a reliable informant, who indicated that these four individuals were in town to purchase narcotics. The informant neither related any details of an anticipated transaction nor indicated the source of his information. Nonetheless, on the basis of this accumulated information, customs agents stopped and searched the car thoroughly, but without success, as the vehicle was proceeding from Roma toward McAllen, Texas, on the afternoon of December 6. Undaunted by this unfavorable result, the agents telephoned customs agents based in McAllen to inform them of these events and to advise them that the Chevrolet was headed toward McAllen.

Two days later, the customs agents in McAllen took up surveillance of two vehicles, a Dodge and an Oldsmobile, pursuant to another informant’s tip that three persons driving these cars were staying at a local motel and intended to obtain narcotics in nearby Rio Grande City, Texas. The agents then determined that these individuals were three of the occupants of the Chevrolet which had been searched earlier while it was en route to McAllen.

At approximately 9:00 p. m., minutes after the agents began surveilling the two cars at the motel, the Dodge was driven out of the parking lot, and the single agent in pursuit lost sight of the car. Surveillance was not re-established until approximately 3:30 a. m. the following morning when the agent returned to the motel and spotted the Dodge in the parking lot. Two agents remained at the motel observing the vehicles until approximately 11:00 o’clock, at which time the two cars were driven across the street from the motel to another parking lot. There, the drivers switched cars, with Bursey and Elliott getting into the Dodge and co-defendant Mann occupying the Oldsmobile. One agent again attempted to follow the Dodge, which appeared to him to be weighted down in the rear, but again lost surveillance of the vehicle in the traffic. At this point, the agent radioed instructions to his home office to alert a mobile border patrol checkpoint near Sarita, Texas, located approximately eighty miles north of McAllen, to intercept the Dodge. These orders were carried out, the Dodge was searched later that afternoon at the checkpoint without a warrant, and the peyote was uncovered. Armed with this information, several agents who had been following the Oldsmobile during the interim stopped- that car near Refugio, Texas, located about one hundred and fifty miles from the border. The ensuing search of that car revealed another cache of peyote.

BORDER SEARCH

At the suppression hearing, the Government sought to vindicate the warrantless search of the Dodge as a border search, despite the substantial distance between the Sarita checkpoint and the international boundary. The reason for the Government’s proffering this rationale is readily apparent: the search was conducted at a mobile border patrol station, following an investigation by customs officials of possible smuggling, and pursuant to the express direction of a customs agent for the checkpoint officers in Sarita to conduct a “customs search.” We are firmly convinced, however, that this justification is without constitutional foundation under the circumstances of this case. Since it is elementary that exceptions to the warrant requirement imposed by the fourth amendment are to be jealously and carefully delimited, see Coolidge v. New Hampshire, 1971, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564; Jones v. United States, 1958, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514, it is incumbent on the Government to demonstrate that this warrantless search fits within the parameters of the border search rationale. This burden has not, and indeed could not, be carried.

The evidence of record reveals no connection whatsoever between the vehicle searched at Sarita and the international boundary. The Dodge itself neither crossed nor came in direct contact with the border on any occasion. Neither informant’s tip to customs agents contained any reference or intimation of a Mexican transaction or contact. See United States v. Garcia, 5 Cir. 1971, 452 F.2d 419, 420. On the contrary, the information relayed in the second tip indicated that the appellants would seek contraband in Rio Grande City, not in Mexico. Moreover, the agent’s order to the checkpoint officers to search the vehicle was dispatched at a point approximately ten miles from the border, and the ensuing search was effected several hours later at a point almost one hundred miles from the border. More fundamentally, the border crossing at Roma, which occurred four days before the instant search, was the subject of conflicting testimony by Government witnesses, and in any event, the customs search at the port of entry and the subsequent search by the Roma customs agents on December 6 dissipated the nexus between these appellants and the border where there was no further evidence of another border crossing or direct contact with the boundary in any way. Under these circumstances, with no substantial connection of any sort with the border as of the time of the search, it strains credulity to characterize this incursion as a border search.

PROBABLE CAUSE

The Government argues alternatively that this search was based on probable cause and that exigent circumstances justified the warrantless incursion. This rationale was not advanced at the suppression hearing since the Government proceeded entirely under the border search theory, and we find this justification unavailing on appeal. The two informants’ tips, which were instrumental in prompting the agents’ intensive surveillance over a four-day period, are clear examples of what Mr. Justice Harlan characterized as “casual rumor [s] circulating in the underworld,” Spinelli v. United States, 1969, 393 U.S. 410, 416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637, insufficient to support a finding of probable cause. There was no indication in either instance of the basis of the informants’ tips, nor was there related the detail suggestive of a credible basis for the information given by the informants. See Draper v. United States, 1959, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327; United States v. Sellers, 5 Cir. 1973, 483 F.2d 37. If presented to a detached magistrate for purposes of securing a search warrant, these informers statements would have fallen far short of the standards set forth in Aguilar v. Texas, 1964, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States, 1969, 393 U.S. 410, 413, 89 S.Ct. 584, 21 L.Ed.2d 637. Since judicial scrutiny is even more exacting in instances of warrantless searches, it necessarily follows that these vague and generalized pieces of information related by the informants fail to sustain a finding of probable cause.

Moreover, the surveillance in this ease, as in Spinelli, contained no reasonable suggestion of criminal conduct when the appellants’ actions as observed are simply taken by themselves, and Spinelli clearly teaches that otherwise innocent conduct is not imbued with “an aura of suspicion by virtue of the informer’s tip” where the tip fails to comport with the Aguilar requirements. Spinelli, supra, at 418, 89 S.Ct. 584, 590. Changing drivers in a public parking lot in broad daylight and an impression by an agent at the end of a long night’s vigil that a car trunk was sagging more than it had the night before simply cannot, in themselves, warrant a finding of probable cause.

Significantly, the officers in this case acted throughout the investigation as if they lacked probable cause to conduct a warrantless search. During the entire four-day surveillance period, no affirmative action was taken to search either vehicle until an agent lost contact with the Dodge at a point when the car appeared to be heading away from the border town. It was only at this moment that the agent transmitted the order to intercept the vehicle and to conduct a “customs search” at a mobile border patrol checkpoint. Although clearly not dispositive of this issue, we nonetheless find the agents’ conduct instructive, particularly in view of the impression entertained by the investigating officers that the search was in the nature of a border search, and thus to be effected under the more lenient finding of “reasonable suspicion.”

The search of the Dodge was unlawful and the fruits of that search, including the contraband discovered in the Oldsmobile, were inadmissible at trial.

Reversed and remanded.

      . Our determination that the automobile searches were illegal renders a full discussion of the appellants’ alternative contentions unnecessary. Suffice it to say that we find their arguments concerning the Government’s destruction of the peyote and the unconstitutional vagueness of the substantive criminal statute entirely without merit.

      . Pat Panella, who had touched off the customs office computer in the first instance, was no longer accompanying the three co-defendants after their arrival in McAllen. Indeed, he had apparently left south Texas at some prior point.

      . In view of our determination that the search could under no circumstances be viewed as a border search, it is unnecessary to determine whether the Supreme Court’s decision in United States v. Almeida-Sanchez, 1973, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596, narrowing the permissible definition of “border searches” has retroactive effect so as to apply to pre-Almeida searches.


source: Caselaw Access Project

author: GEWIN, Circuit Judge: RIVES, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert MENDOZA, Reuben O. Mendoza, Jr., and Yolanda Ashton Ortiz, Defendants-Appellants.
    No. 73-1684.
    United States Court of Appeals, Fifth Circuit.
    March 21, 1974.

      James R. Gillespie, San Antonio, Tex., for Mendoza.
    M. W. Garcia, Jr., San Antonio, Tex., for Ortiz.
    William S. Sessions, U. S. Atty., Joel D. Conant, Eb F. Luckel, Jr., Asst. U. S. Attys., San Antonio, Tex., for plaintiffappellee.
    Before RIVES, GEWIN and RONEY, Circuit Judges.
   GEWIN, Circuit Judge:

I

Appellants Robert Mendoza, Reuben 0. Mendoza and Yolanda Ortiz appeal from the district court’s judgment of conviction. On November 22, 1972, a two-count indictment was returned charging appellants in court one with unlawfully possessing with the intent to distribute 109.15 grams of cocaine, a controlled substance under Schedule II of the Controlled Substances Act of 1970, in violation of 21 U.S.C. § 841(a)(1), and in count two o.f unlawfully possessing with the intent to distribute 404 dosage units of amphetamines, a controlled substance under Schedule III of the Controlled Substances Act of 1970, in violation of 21 U.S.C. § 841(a)(1). On January 3, 1973, the district court conducted a hearing on a motion filed by appellants to suppress the above mentioned sub' stances which were allegedly seized on the basis of a defective affidavit. On the basis of the facts elicited at the hearing, the court denied the suppression motion. We affirm.

In face of the district court’s order denying suppression, the appellants and the Government filed a stipulation for the trial of the appellants on February 14, 1973, which stipulation admitted in detail all the facts necessary to support a finding of guilt by the district court of the charges contained in the indictment. Even though the appellants had entered a plea of not guilty to the indictment they stipulated that they did not “contest any element of the offense alleged in either count of the indictment and agree [d] that the court may find them guilty as to each count.” In response to the not guilty pleas and the stipulations which supported a finding of guilt, the trial court “adjudged that the [appellants] upon [their pleas] of not guilty, and a finding of guilty [have] been convicted of the offense[s] .” (emphasis added) charged in the indictment.

In the stipulation signed by appellants, their counsel, and Government counsel, it was expressly stated that:

[Defendants] aware of the Court’s ruling on their joint motion to suppress the evidence, and of the nature of the Government’s evidence against them, . . . desire to protect their respective rights to appeal the Trial Court’s ruling on their motion to suppress. At the same time, all three defendants do not desire to unnecessarily prolong the proceedings herein.

Thus, even though appellants stipulated all the essential facts necessary for their conviction, they did not withdraw their pleas of not guilty, and sought to expressly reserve their right to appeal from the order denying the motion to suppress.

On this appeal, there is no attack on the facts as stipulated by appellants and their counsel. The district court carefully interrogated all appellants and their counsel and was assured by them that the stipulations were made knowingly and voluntarily with the full advice of privately retained counsel. Furthermore, the district court implicitly recognized the appellants’ reserved right to appeal from its order denying the motion to suppress the evidence.

As a threshold issue, it is incumbent upon an appellate court to determine whether it may properly exercise its jurisdiction in each case. Although neither party to this appeal has contested our jurisdiction, their omissions do not foreclose our review sua sponte. Accordingly, we must resolve whether an appeal may be properly perfected from a judgment of conviction emanating from a defendant’s contradictory plea of not guilty as compared with his subsequent stipulations which expressly and effectively admit sufficient facts to support an adjudication of guilty of the charges in the indictment but explicitly reserves the right to appeal.

Our sensitivity to the problem posed arises from this circuit’s recent en banc decision in United States v. Sepe, 486 F.2d 1044, affirming 474 F.2d 784 (5th Cir. 1973). In Sepe it was clearly stated that:

In the interest of clarity we point out that this case did not involve an express agreement to allow an appeal, but we now take advantage of an opportunity to say that as a matter of policy this Court disapproves the practice of accepting pleas of guilty or nolo contendere if they are coupled with agreements that the defendant may nevertheless appeal on non-jurisdictional grounds. Id. at 1045. (footnote omitted)

Sepe thus sounded this court’s disapproval of the use of conditional pleas of guilty and nolo contendere in our circuit. The underlying reasons for the court’s pronouncement in Sepe were markedly absent.

Demonstrating the judiciary’s ability to quickly respond to new guiding principles, Chief Judge Brown adequately supplied both the ratio decendi for the Sepe opinion and the remedy to be provided once it is shown that an appeal arises on non-jurisdictional grounds from a conditional plea in United States v. Mizell, 488 F.2d 97 (5th Cir. 1973). Mizell concerned an appeal from a nolo contendere plea on the non-jurisdictional issue of whether the district court properly refused to suppress evidence seized in an allegedly routine inventory search by the police.

The court first noted that the district court had apparently recognized by sanctioning the reserved right to appeal from the plea of nolo contendere, that Mizell’s conviction could not stand but for the allegedly illegally seized evidence. Second, the court noted the difficulty inherent in actually resolving the question whether the government could have established the guilt of Mizell even without the fruits of the search. It was observed that Mizell’s case did not present the situation where the government’s evidence is limited strictly to the surrounding facts or the actual fruits seized during the search.

Thus the Mizell court was requested to play the “appellate guessing game” of determining whether a ruling on the suppression order adverse to that made by the district court would actually result in a different disposition of the case on remand. However, the appellate tribunal is not the only judicial body which must meet the challenge of dealing with the contingencies of its ruling. The district court as well becomes inextricably involved in the “result oriented intrigue” which emanates from a district court approved appeal based on conditional pleas. The Mizell decision succinctly summarized the district court’s dilemma:

If the sentencing Judge accepts the proposed conditional plea he has first to predict what the Court of Appeals will decide as to appealability of that particular case. This means that if, as is true here, his prediction of appealability is faulty because of action of the Court of Appeals, the whole plea and sentencing procedure is infected by an assurance given which either was not, or could not have been made good.

The court wisely refused to accept the proffered challenge and remanded the case to the district court with directions to permit Mizell to plead anew.

We concur completely with the court’s observations in Mizell. Nevertheless, while recognizing the principled direction provided by Mizell, we feel that the tenets of that holding are not controlling here. We are not confronted here with a traditional nolo contendere or guilty plea. We do recognize the fact that subsequent to the not guilty pleas the appellants voluntarily and knowingly filed stipulations of fact with the advice of counsel which fully support the trial court’s finding of guilt. Whatever legal description one wishes to attach to such a procedure, it may be argued that it is closely akin to a plea of nolo contendere. However, we need not decide the legal gender of the stipulations made below because even assuming that they amounted to a nolo contendere plea in effect, it is apparent to us that a strict interpretation of the Mizell holding does not preclude us from exercising our jurisdiction on the merits of this ease.

Mizell discusses the difficulty of ascertaining the factual context of a search which would assure an intelligent resolution of a suppression issue. Where the court allows a conditional plea, the appellate court is often without the benefit of a developed and revealing record fully disclosing the facts which would have been supplied had a complete trial on the merits been conducted. Concomitantly, even assuming that a complete record is supplied on the non-jurisdictional issue presented, an appellate court may become embroiled in the “but for” guessing game condemned by the Mizell court. A review of the record here, however, establishes that neither of these difficulties are presented. Here, a complete hearing was conducted in the district court on the suppression issue. The appellants then admitted by-stipulation the truth of the facts proved at the hearing and other facts critical to a determination of guilt. We thus have the vital facts which are needed to determine the validity vel non of the district court’s ruling on the motion to suppress as well as its finding of guilt.

In sum, we conclude that the facts here demonstrate that the exercise of our jurisdiction is proper in the instant case. The appellants insisted on their pleas of not guilty. The tenor of the proceedings in the district court clearly show that it was the duty and function of the court to make a determination of guilt based upon stipulated facts. The court afforded counsel an opportunity to argue the case and “to challenge anything that he [Government counsel] has said.” Both counsel for appellants responded:

MR. GILLESPIE: ... I think your Honor has the stipulations before your Honor, and your Honor has heard the testimony from the motion to suppress, and anything I can say now would just be surplusage.
MR. GARCIA: I would also adopt the position taken by Mr. Gillespie.

Our conclusion, however, does not detract from the duty of district courts, Government prosecutors and defense counsel to make certain that the product of their good faith negotiations do not contravene the proscriptions set forth in the Sepe and Mizell opinions.

II

The appellants filed a motion to suppress evidence on the ground that the affidavit submitted in support of the Government’s application for a search warrant before the magistrate, although stating probable cause, was not signed by the proper affiant as required by Rule 41 of the Federal Rules of Criminal Procedure. A suppression hearing was conducted at which time Thomas E. Robertson, a special agent with the Bureau of Narcotics and Dangerous Drugs, Jose Losoya, a San Antonio police officer on special assignment to the Drug Abuse Law Enforcement Office of the United States Department of Justice, and Magistrate John P. Giles, the presiding officer who issued the contested warrant, testified.

Robertson testified that he and Lo-soya submitted a request for a search warrant together with a supporting affidavit showing probable cause to Magistrate Giles on September 29, 1971. Even though the supporting affidavit was clearly made by Losoya, Magistrate Giles inadvertently requested Robertson to sign it. Losoya stated that Magistrate Giles asked about the validity of the affidavit’s contents and both he and Robertson swore to its contents before the Magistrate. Questioned on why he did not advise Magistrate Giles that the affidavit was his and not that of Robertson, Losoya responded that he was under the misapprehension that since the search would occur outside the city limits of San Antonio, he did not have “jurisdiction” to conduct the search. Magistrate Giles stated that it was his practice to have all officers that appear before him to swear to the validity of any supporting affidavits.

Appellants contend that the proscriptions of Rule 41 have been violated since technically speaking no affidavit was submitted supporting the Government’s application for a search warrant. It is clear that through the inadvertent directive of the presiding magistrate the affidavit was signed by Robertson even though it contained the averments of Losoya. The evidence shows that this technical flaw was not the result of any intentional misrepresentations on the part of the officers who sought the search warrant.' Moreover, both Robertson and Losoya swore under oath that the contents of the affidavit were true and correct.

In these circumstances we perceive no fatal error in the proceedings which resulted in the issuance of the warrant. This is especially true since the evidence shows that Losoya swore to the validity of the affidavit before the presiding magistrate. “. . . [C]ourts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than common sense, manner.” United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). See also, United States v. Thomas, 489 F.2d 664 (5th Cir. 1973). Cf. United States v. One Olivetti Electric 10-Key Adding Machine, 406 F.2d 1167 (5th Cir. 1969); United States v. Meeks, 313 F.2d 464 (6th Cir. 1963); United States v. Averell, 296 F.Supp. 1004 (E.D.N.Y.1969).

Affirmed.

RIVES, Circuit Judge

(specially concurring) :

I concur in the result and in Part II of the opinion. As to Part I, on the threshold issue of whether this Court may properly exercise its appellate jurisdiction, I concur for reasons expressed in an opinion written by me in United States v. Caraway, 5 Cir. 1973, 474 F.2d 25, 28, but vacated as moot on rehearing en bane, 483 F.2d 215, under circumstances fully stated in the dissenting opinion, 483 F.2d 216-220. This Circuit’s en banc declaration of policy in United States v. Sepe, 5 Cir. 1973, 486 F.2d 1044, 1045, does not, in my opinion, preclude the present method of review where the defendant pleads not guilty but nontheless stipulates that the facts are as charged in the indictment. Compare United States v. Doyle, 2 Cir. 1965, 348 F.2d 715, 719.

      . The formal application for the search warrant was sworn to by special agent Robertson. In the application is the following reference to the affidavit which should have been signed by Officer Losoya:
      See attached Affidavit of Jose C. Losoya, Officer of the San Antonio Police Department who is presently on special assignment to the Office for Drug Abuse Law Enforcement, U. S. Department of Justice. Said Affidavit is incorporated herein for all purposes.
      The search warrant issued by U. S. Magistrate Giles states in part:
      Affidavit having been made before me by Special Agent Thomas E. Robertson and S.A.P.D. [San Antonio Police Department] Officer Jose G. Losoya that he has reason to believe .


author: PER CURIAM:

text:
    Benjamin HOLLAND, 030902, Plaintiff-Appellant, v. K. D. CONNORS, Superintendent of Sumter Correctional Institution, Defendant-Appellee.
    No. 73-3352
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 22, 1974.

      Benjamin Holland, pro se.
    Robert L. Shevin, Atty. Gen., Daniel
    S. Dearing, Asst. Atty. Gen., Thomas A. Harris, Asst. U. S. Atty., Tallahassee, Fla., for defendant-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y. et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Benjamin Holland, an inmate lawfully incarcerated by the state of Florida at its Sumter Correctional Institute, brought this Section 1983 action against the prison superintendent, K. D. Connors, seeking declaratory and injunctive relief and monetary damages for deprivation of rights secured to him by the Constitution. The district court dismissed the complaint without a response or a hearing. We vacate and remand.

Holland’s pro se complaint unadroitly alleged that two prison guards, who believed he was a participant in the homosexual rape of another prisoner, detained him in an isolation cell-block in the course of their investigation of the incident. His interrogators, allegedly “well known for their brutal tactics and dehumanizing stunts on inmates,” “took off their shirts and began to flinch at [him] in an aggressive manner” and threatened him with bodily harm unless he implicated the other inmates involved in the assault. Fearing injury, Holland divulged the names of several fellow prisoners whom he now asserts were falsely implicated since he, Holland, really had no knowledge of the incident. Holland further alleged that as a result of the terrorizing interrogation, “he has partially lost his vision and a homosexual document was placed in his prison record,” which hinders his chances for parole. In addition, he claimed that this same event caused him to be placed for an indefinite term in administrative confinement and denied all privileges enjoyed by other inmates without a disciplinary hearing or any other of the elementary rudiments of due process. Jurisdiction was founded on 28 U.S.C. §§ 1331, 1343(3) and 42 U.S.C. §§ 1983, 1988.

Holland also alleged that Connors was legally responsible for these acts of his subordinates, despite the fact that the Superintendent was not present during the illegal questioning, because such practices were so widespread and had been standard procedure at the institution for so long that he was or must have been aware of them. On the same day that the complaint was filed, the district court dismissed it, reasoning that (1) Holland had failed to explicate any causal connection between the intimidating interrogation and the ultimate impairment of his vision, (2) Superintendent Connors was not alleged to have been personally involved in the events upon which the action was grounded and (3) federal' courts only interfere with the internal operations and administration of prisons in extreme cases. Because “[w]e cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,’ Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957),” Haines v. Kerner, 404 U.S. 519, 521-522, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972), we must vacate this dismissal.

Certainly, the charges that prison authorities coerced a false eonfession, placed an unwarranted statement relating to a homosexual offense in plaintiff’s file and improperly imposed heightened confinement in administrative segregation, if true, would amount to such deprivation of federally protected rights as to form an ample predicate for federal relief under Section 1983. Moreover, fundamental tenets of tort law, negligence and vicarious liability, cardinal doctrines upon which this and other Circuits have invoked prophylactic application of the Civil Rights Act, are sufficiently broad to support such relief against Superintendent Connors on the basis of the bare allegations made.

Indeed, in ruling that similar averments by a state prisoner, who instituted Section 1983 proceedings against the governor and other state officers and prison officials, could, withstand a Fed. R.Civ.P. 12(b)(6) motion to dismiss, the Supreme Court held that “[wjhatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations such as those asserted by petitioner, however in-artfully pleaded, are sufficient to call for the opportunity to offer supporting evidence.” Haines v. Kerner, supra, 404 U.S. at 521, 92 S.Ct. at 595-596; see Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); see also Parker v. McKeithen, supra.

Consequently, without in the slightest intimating any view of the merits of the allegations raised in the complaint sub judice, we vacate the judgment below and remand this cause to the district court for such further fact development, either through a full-fledged evidentiary hearing or utilization of the wide variety of available discovery techniques, which the district judge shall in his discretion prescribe for these claims. See Barlow v. Amiss, 477 F.2d 896 (5th Cir. 1973); White v. Commissioner of Alabama Board of Corrections, 470 F.2d 55 (5th Cir. 1972); Henry v. Van Cleve, 469 F.2d 687 (5th Cir. 1972); Hutchens v. Alabama, 466 F.2d 507 (5th Cir. 1972); Williams v. Wainwright, 461 F.2d 1080 (5th Cir. 1972).

Vacated and remanded.

      . See, e. g., Parker v. McKeithen, 488 F.2d 553 (5th Cir. 1974) ; Tuley v. Heyd, 482 F.2d 590, 594 & cases cited n. 3 (5th Cir. 1973).

      . We note that Holland has been transferred to the Florida State Prison, Starke, Florida. This may have mooted his request for an injunction against Superintendent Connors. Moreover, the district court is free to consider whether it should consolidate Holland’s due process attack on the actions of prison authorities in placing adverse information in his file and in ordering his confinement in administrative segregation with similar actions by Florida state prisoners in Sands v. Wainwright, 491 F.2d 417 (5th Cir. #73-1192 December 26, 1973), which has recently been remanded for consideration by a three-judge district court in this same district.


author: CLARK, Circuit Judge:

text:
    Merrill P. STACEY and Jean C. Stacey, Plaintiffs-Appellees, v. ILLINOIS CENTRAL RAILROAD et al., Defendants-Appellants.
    No. 73-3283.
    United States Court of Appeals, Fifth Circuit.
    March 20, 1974.
    Rehearing and Rehearing En Banc Denied April 22, 1974.

      Henry D. Salassi, Jr., H. Payne Breazeale, Baton Rouge, La., for defendants-appellants.
    Roy Maughan, Baton Rouge, La., for plaintiffs-appellees.
    Before CLARK and GEE, Circuit Judges and COX, District Judge.

       Honorable W. Harold Cox, United States District Judge, sitting by designation.

   CLARK, Circuit Judge:

The jury verdict in this railroad crossing death case was in the form of findings on special issues under Fed.R. Civ.P. 49(a). The railroad appeals from an adverse judgment based upon the findings that it was negligent in failing to keep its right-of-way clear of vegetation at a private grade crossing, and that its negligence was a proximate cause of this accident. It asserts that other findings of causative negligence on the part of the driver of the tractor involved rendered the verdict inconsistent. We affirm the district court’s actions in submitting the case to the jury and in entering judgment for the plaintiffs on the special issues verdict.

The setting was approximately a mile north of Kentwood, Louisiana at a point on the main line of the railroad company where a farm road crossed the tracks. At the time of the accident the train, headed south, was traveling approximately 60 miles per hour. A typical farm tractor, pulling a 20 ft. flatbed hay wagon, attempted to cross the tracks in an easterly direction. In the ensuing crash the locomotive struck the hay wagon and the five year old son of the plaintiffs who was riding on the hay wagon was killed. The plaintiffs charged the railroad with negligence in the operation of the train and with failing to keep its right-of-way reasonably clear of vegetation.

Through photographs and the testimony of observers, the jury obtained vivid descriptions of the conditions of visibility then existing. Trees, bushes and undergrowth on the railroad right-of-way lined the edges of the tracks in this area. Due to the density of the May foliage, the field of view was blocked from ground level to heights in excess of 12 ft. The edge of the foliage nearest to the roadbed was slightly irregular but its mean distance generally tapered from about three feet at a point several hundred feet north of the crossing to about 12 ft. at the crossing roadway. The accident occurred during daylight hours on a clear day. Thus, if the driver of the tractor had stopped short of the tracks, he could have proceeded on foot or had one of his passengers walk to a point near the edge of the tracks that would have afforded visibility of any southbound train. If he had remained on his tractor and brought the front end of his vehicle to the closest safe point of approach, he could have, while in the operator’s seat at the rear of the tractor, observed any southbound train which was within several hundred feet of the crossing. The driver testified that he looked both ways before proceeding onto the railway. He attributed the failure to see the train to the occluding undergrowth and the speed of the train.

The evidence indicating that this particular crossing received frequent use by the missionary group that operated the farm which was divided by the railroad at this site, by deliverers of supplies to the farm, by crews doing power line work, by Boy Scouts going to a camp site and by the railroad itself in performing maintenance work on the crossing was in sharp dispute: The railroad crew, while admitting knowledge that the railroad had maintained this crossing denied that they ever saw anyone use it. The court’s instruction on this issue, framed in terms of the ordinary prudent man test, required the jury to gauge the railroad’s duty to maintain the foliage on its right-of-way by weighing the danger involved in negotiating this crossing and by determining the frequency of its use by the traveling public. The special issues, as posed, and the jury’s answers were as follows:

1. Was the Illinois Central Railroad guilty of negligence? Yes.
2. If your answer to No. 1 is in the affirmative, was that negligence a proximate cause of this accident? Yes.
3. Was Fleet E. Dykes, the engineer on the train, guilty of negligence? Yes.
4. If your answer to No. 3 is in the affirmative, was his negligence a proximate cause of this accident? No.
5. Was Steven Wallace Parrish, the driver of the tractor, guilty of negligence? Yes.
6. If your answer to No. 5 is in the affirmative, was his negligence a proximate cause of this accident? Yes.
7. What is the amount of damages suffered by the plaintiff, Merrill P. Stacey, as a proximate result of this accident ? $35,000.
8. What is the amount of damages suffered by the plaintiff, Jean C. Stacey, as a proximate result of this accident ? $35,000.

The case was properly submitted to the jury. In Boeing Company v. Shipman, 411 F.2d 365 (5th Cir. 1969), this court held that if the record contains substantial evidence of such quality and weight that reasonable and fair-minded men in the exercise' of impartial judgment might reach different conclusions, the case is one for jury resolution. That description fits the evidence in this case.

The lower court correctly relied upon Louisiana’s recognition of what is referred to as the “dangerous trap” doctrine. In McFarland v. Illinois Central Railroad Company, 122 So.2d 845 (La. Ct.App.1960), the court held it could be actionable negligence on the part of a railroad to permit the view at a crossing to become obstructed by trees, bushes, weeds and grass. It ruled that questions of negligence and causation on the part of the railroad and the operator of a crossing vehicle were matters for the jury when a vehicle operator would have to proceed to a point of peril upon or dangerously near the railroad company’s tracks before obtaining an unimpeded view of a train at an appreciable distance.

We reject the railroad’s contention that since it had a right to assume any motorist it could see approaching a crossing would stop at such a crossing, it could not have had any duty to take special precautions at this rural crossing where the line-of-sight of an approaching motorist was obstructed by vegetation. The Louisiana law as expressed in McFarland, places upon the railroad precisely the duty which was defined by the court in its instructions in this case—a duty of exercising caution commensurate with the situation involved. The testimony as to the frequency of the use of this crossing, as well as its obstructed condition, were factors which were for the jury’s weighing. The railroad cannot dissipate its duty to exercise added precaution at a frequently traveled but partially obscured crossing by asserting its right to rely upon the non-negligent operation of vehicles traversing the crossing. We additionally reject the attempt to distinguish McFarland on the basis that it related to an urban crossing. The frequency of use of a crossing is the key, rather than its municipal or rural location. McFarland assigns the task of translating the amount of use shown into a corresponding standard of railroad care to a jury.

The railroad’s reliance on this court’s decision in the Louisiana diversity case of Texas & Pacific Railway Company v. Laborde, 257 F.2d 587 (5th Cir. 1958), to support its theory is misplaced. Mrs. Laborde, the driver of the crossing vehicle, was suing to recover for her own injuries. Contributory negligence on her part was assigned as grounds for reversal and the court held that, as a matter of law, contributory negligence on her part was established by her failure to take the precautions she should have taken in approaching and attempting to traverse the crossing. Consistent with the legal rationale of Laborde and the instructions of the court in the instant case, it is true that the jury here found Parrish, the driver of the tractor, guilty of negligence which was a proximate cause of this collision. However, the flaw in the railroad’s analysis is that neither Laborde nor any other decision in Louisiana jurisprudence holds that the negligence of the driver of the crossing vehicle in such a situation precludes any possibility of negligence by the railroad as a matter of law. To the contrary, Louisiana recognizes that an injury can have more than one proximate cause. See Titard v. Lumbermen’s Mutual Casualty Company, 282 So.2d 474 (La.1973) and Phoenix Indemnity Company v. Givens, 263 F.2d 858 (5th Cir. 1959).

We further reject the railroad’s implicit assertion that the jury’s answers to the special issues are inconsistent. It urges that since they found Parrish to have been guilty of negligence which proximately caused the accident, they must have found he breached the strict standard of care in traversing a railroad crossing which was properly placed on him by the court’s instructions. In fashion similar to its other contention, it reasons from this finding that the jury must have found that Parrish, had he stopped, looked and listened, could have avoided the accident. Such a finding, it insists, means the crossing could not also have been found to be a dangerous trap. The railroad’s view of the possible meanings of the jury’s findings is obscured. For example, the jury could have found the negligence of the driver of the tractor to have occurred after he was in a position of peril, when he tried to complete the crossing rather than backing the tractor down. It may also have considered it negligent for him to go into the “dangerous trap” without stopping the tractor and going, or sending someone else, ahead to look for trains. Perhaps still other possibilities could be shown to exist ; however, since there is a view of the case which would make the jury’s answers consistent, the district court correctly adopted that view and entered judgment accordingly. The answers could fairly be said to represent a logical and probable decision based on the relevant evidence submitted. That is as far as the court’s examination need go. See Griffin v. Matherne, 471 F.2d 911 (5th Cir. 1973).

The railroad raises the spectre that the imposition of liability in this ease will signal judicial recognition of such a unique and burdensome duty to maintain eve.ry private crossing that its ability to operate will be hampered. In the first place, the rule imposed, which we today affirm, is neither unique nor exceptional. The degree of duty owed is traditionally a function of the degree of danger involved. That is all that is involved here. In the second place, while railroads are not insurers of the safety of the motoring public, their efficiency and economy of operation are not above normal rules of law. Their protection from exposure to liability in crossing accidents must be found in actions which are reasonably commensurate with the dangers and extent of use of the crossing involved, not in judicial sanctuary from jury scrutiny.

The judgment appealed from is

Affirmed.

      . At the time of submission, the jury was instructed with regard to Issue No. 1, “That has to do with the upkeep of the riglit-of way.” No other issue was so defined.

      . At the conclusion of its instructions and in response to an objection by the plaintiffs, the court advised that it had included special issues as to the tractor driver who was a non-party, to assure fairness in the jury’s perspective of the case by requiring them to reach a total conclusion as to how the accident happened. This action was well within the court’s discretion. See 9 O. Wright & A. Miller, Federal Practice and Procedure, § 2506 (1971).


author: GIBSON, Circuit Judge.

text:
    NORTH AMERICAN PHARMACAL, INC., etc., et al., Petitioners, v. The DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, etc., Respondent. COASTAL PHARMACEUTICAL CO., INC., Petitioner, v. FOOD AND DRUG ADMINISTRATION, Respondent.
    Nos. 73-1252, 73-1386.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 14, 1973.
    Decided Dec. 28, 1973.

      Richard L. White, McLean, Va., for petitioners.
    Howard S. Epstein, Atty., Consumer Affairs Section, Dept. of Justice, Washington, D. C., for respondents.
    Before GIBSON, Circuit Judge, MOORE, Senior Circuit Judge, and WEBSTER, Circuit Judge.

       The Honorable Leonard P. Moore, Senior Circuit Judge, Second Circuit, sitting by designation.

   GIBSON, Circuit Judge.

Petitioners, manufacturers of anorectic drugs containing amphetamines, in this original action ask for injunctive relief and to set aside an order of the Food and Drug Administration (FDA) withdrawing approval of all New-Drug Applications (NDA’s) covering combination amphetamine products. Jurisdiction in this court is predicated upon 21 U.S.C. § 355(h) which provides for appellate review of final orders of the Secretary of Health, Education and Welfare withdrawing approval of NDA’s. In view of the serious questions presented as to our jurisdiction to entertain certain claims of the Petitioners, we will relate in some detail the background of this case.

On August 8, 1970, the Respondent, FDA, amended 21 C.F.R. § 130.46 by publishing in 35 Fed.Reg. 12652 a statement of policy dealing with amphetamines for human use. The FDA found that current labeling of these drugs did not accurately reflect the present state of knowledge regarding their usefulness, and required all such drugs to be relabeled within 60 days from the effective date of the regulation. Subsection 6 of 21 C.F.R. § 130.46 (1971) provided in part:

Combination products labeled as required by this section are regarded as new drugs and must be subjects of approved new-drug applications.

Manufacturers of combination drugs were given one year in which to submit NDA’s. The FDA received 106 NDA’s but only one of the Petitioners, Eastern Research Laboratories, submitted NDA’s for their drugs as required by this regulation.

On October 31, 1972, the FDA promulgated a new regulation, 21 C.F.R. § 130.-40, which made its Drug Efficacy Study Implementation Notices and Notices of Opportunity for Hearing applicable to all identical, related and similar drugs. This allowed the FDA to proceed against entire classes of drugs at one time rather than on an ad hoc case-by-case basis. This procedure was subsequently approved in Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973). February 12, 1973, the FDA published in 38 Fed.Reg. 4279 its intention to withdraw NDA’s covering combination amphetamine products and sent statutorily required notices to the holders of NDA’s, including Petitioner Eastern Research Laboratories. The notices and conclusions on the safety and efficacy of these drugs were also, pursuant to 21 C.F.R. § 130.40, directed to and affected the Petitioners as manufacturers of the so-called “me-too” drugs, drugs similar in content and formulation to the previously approved new-drugs, which approval the FDA proposed to withdraw. Manufacturers who had submitted NDA’s were notified by certified mail and other interested parties were notified of an opportunity for hearing by the Federal Register publication, provided they submitted a well-organized and full factual analysis of data in support of their opposition to withdrawal. Although five requests for a hearing were filed by other manufacturers, none of the Petitioners in this case requested a hearing during the time allowed.

March 30, 1973, the FDA published in 38 Fed.Reg. 8290 a “Notice of Withdrawal of Approval of New Drug Applications” that withdrew approval of NDA’s for combination amphetamine drugs, except those for which hearings had been requested. No request for a hearing was filed by Petitioners. Subsequently, they were notified by certified mail that their products were included in the withdrawal order and were told these products could no longer be manufactured or shipped in interstate commerce, and were requested to recall all such products in the chain of distribution.

Petitioners in No. 73-1252 filed their Petition for Review with this court together with an application for a stay on April 16, 1973. We issued a temporary restraining order April 23, 1973, which was vacated upon Respondent’s motion April 30, 1973. The cause was submitted to a panel of this court in St. Paul, Minnesota, June 14, 1973, at which time a stay order was entered to remain in effect until the appeal was determined by us. In light of the Supreme Court decisions of June 18, 1973, in Weinberger v. Hynson, Westcott & Dunning, Inc., supra; Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 93 S.Ct. 2488, 37 L.Ed.2d 235; USV Pharmaceutical Corp. v. Weinberger, 412 U.S. 655, 93 S.Ct. 498, 37 L.Ed.2d 244; CIBA Corp. v. Weinberger, 412 U.S. 640, 93 S.Ct. 2495, 37 L.Ed.2d 230; which deal with the powers and procedures of the FDA, we vacated our submission of the case, consolidated the Petition for Review in No. 73-1386, which had been transferred to this circuit by the Fourth Circuit, with No. 73-1252, and granted the parties an additional period of time in which to file supplemental briefs directed towards the recent Supreme Court decisions. The case is now ready for final determination by this Court.

Petitioners present three issues which they claim warrant this court’s setting aside of the FDA withdrawal order of March 30, 1973. They claim: (1) the failure to give Petitioners personal notice of their opportunity for a hearing on the proposed withdrawal of approval denied them due process of law, (2) that Respondent’s order was not supported by substantial evidence, and (3) that Petitioners’ products were exempted from the FDA’s jurisdiction by the “grandfather” clause contained in the 1962 Amendments to the Food, Drug and Cosmetic Act, 76 Stati 788, § 107(c) (4).

The “Grandfather” Issue

Whether Petitioners’ drugs were “grandfathered” by the 1962 amendments, § 107(c)(4), is initially a matter for the determination of the FDA, subject to review in a district court pursuant to the Administrative Procedure Act; hence this issue is not properly before the Court of Appeals. Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, at 653, 93 S.Ct. 2488, at 2494, 37 L.Ed.2d 235 (1973) holds:

[T]he District Court’s referral of the “new drug” and the “grandfather” issues to FDA was appropriate, as these are the kinds of issues peculiarly suited to initial determination by the FDA. * * * Threshold questions within the particular expertise of an administrative agency are appropriately routed to the agency, while the court holds its hand.

That review of such an order is in the district court and not the Courts of Appeals is made explicit in Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 627, 93 S.Ct. 469, 2482, 37 L.Ed.2d 207 where the Court said:

Some manufacturers, however, have no NDAs in effect and are not seeking approval of any drugs. Nevertheless, FDA may make a declaratory order that a drug is a “new drug”. While that order is not reviewable in the Court of Appeals under § 505(h), it is reviewable in the District Court under the Administrative Procedure Act.

We think that the FDA’s order of August 8, 1970, 21 C.F.R. § 130.46 (1971), was such a declaratory order. In it Petitioners were advised that drugs relabeled as required by that regulation are regarded as “new drugs” and must be subjects of approved NDA’s. It is the FDA’s position that such relabeling destroys the grandfather exemption since § 107(c)(4) requires that the drug be intended solely for use under conditions prescribed, recommended, or suggested in labeling with respect to the drug on October 9, 1962. Whatever the proper determination on the merits, it is clear that the procedure Petitioners must follow to obtain a determination of the grandfather status of their drugs is a decision by the FDA with judicial review, if desired, in a district court, not the Court of Appeals.

The Substantial Evidence Claim

The FDA maintains that we are without jurisdiction to review the merits of Petitioners’ Petition for Review as the manufacturers are “me-too” manufacturers and not holders of an NDA, except for Eastern Research Laboratories, to be discussed later. FDA argues that the Supreme Court’s decision in Bentex requires “me-toos” to seek review in a district court. While the Supreme Court decision in Bentex on this point is not entirely clear, we think Bentex, on the contrary, establishes the right of these manufacturers to seek review in a Court of Appeals. The Supreme Court in Hynson, supra, 412 U. S. at 627, 93 S.Ct. at 2482, said “[FDA’s] determination that a product is a ‘new drug’ or a ‘me-too’ drug is, of course, reviewable.” Bentex then establishes where review of that type of FDA order may be sought.

Orders which do not deny or withdraw an NDA are reviewable under the Administrative Procedure Act, if they declare a “new drug” status. Bentex, supra, 412 U.S. at 651, 93 S.Ct. 2488. Implicit in this is that an order declaring a “me-too” status is also one reviewable under the Administrative Procedure Act due to the language previously quoted from Hynson. Further, the Supreme Court in Bentex noted that “an order denying an NDA and withdrawing one is reviewable by the Court of Appeals * * *." Rather than establishing that Petitioners as “me-too” manufacturers cannot seek review of a withdrawal order in the Court of Appeals as argued by the FDA, Bentex establishes the propriety of review in the Court of Appeals.

While § 505(h) [21 U.S.C. § 355(h)] would appear to be the exclusive method of obtaining judicial review of FDA’s order withdrawing an NDA covering the instant drugs, the Government apparently did not oppose the District Court’s taking jurisdiction nor appeal from its action * * *. (emphasis supplied).

Bentex, supra at 635, 93 S.Ct. at 2493.

All the petitioners in Bentex were “me-too” manufacturers and the use of the emphasized words “the instant drugs” would indicate a disposition on the part of the Supreme Court to afford affected “me-too” manufacturers judicial review of the withdrawal order covering their “me-too” drugs.

Respondent further argues that Eastern Research Laboratories must be dismissed as it is an NDA holder having its principal place of business in Maryland. Therefore, its only appellate remedy is in the Fourth Circuit or the District of Columbia Circuit. The FDA recognizes that jurisdiction over at least some of the petitioners is properly in the Eighth Circuit by terms of § 355(h). Further, No. 73-1386 is here on a transfer from the Fourth Circuit since it presents identical questions. We think it is proper in the interest of expediting decision and conserving judicial resources for this Court to determine the questions presented on behalf of all the Petitioners. Pursuant to Rule 2. Fed.R.App.P., this Court will treat the Petition for Review on behalf of all Petitioners not having a principal place of business within this Circuit as requests to intervene under Rule 15(d), Fed.R.App.P., which requests are hereby granted. We turn now to the merits.

Petitioners claim that the FDA’s order of March 30, 1973, was not supported by substantial evidence, but admit in their brief that “there is a lack of long term study of anorectic drug therapy and a need for such study exists. The question of whether the use of anorectic drugs * * * leads to drug abuse or dependence has also been left unanswered due to the scanty and indirect data.” Further, they argue that “[c]linical studies and facts before the Commissioner were scanty and incomplete.”

As the FDA correctly argues, Petitioners’ admissions defeat their claim on the merits. The statutory scheme requires that the manufacturers must carry the burden of showing by substantial evidence the claimed efficacy and safety of their drugs. 21 U.S.C. § 355(e). Hynson, supra, 412 U.S. at 617, 93 S.Ct. 2469; Upjohn Co. v. Finch, 422 F.2d 944, 955 (6th Cir. 1970). Here, the Petitioners admit that the data was scanty and incomplete. Therefore, their burden of showing by substantial evidence that their drugs were safe and effective was not met and the withdrawal order was required by 21 U.S.C. § 355(e).

The Notice Requirement

Petitioners argue that they were deprived of due process by the FDA’s failure to give them personal notice of their opportunity for hearing before a withdrawal of the NDA’s covering combination amphetamines. The FDA asserts it is only required to give personal notice to holders of NDA’s. The question presented is an important one; what type of notice must the FDA give manufacturers of “me-too” drugs in order to subject their products to the consequences of a withdrawal order? As stated in Hynson, supra, 412 U.S. at 625, 93 S.Ct. at 2481:

FDA maintains that a withdrawal of any NDA approval covers all “me-too” drugs. For the reasons stated that procedure is a permissible one where every manufacturer of a challenged drug has an opportunity to be heard.

We are of the view that publication in the Federal Register gives “me-too” manufacturers sufficient opportunity to be heard. 44 U.S.C. § 1508 provides in pertinent part:

A notice of hearing or of opportunity to be heard, required or authorized to be given by an Act of Congress, or which may otherwise properly be given, shall be deemed to have been given to all persons residing within the States of the Union and the District of Columbia, except in cases where notice by publication is insufficient in law, when the notice is published in the Federal Register * * *.

Therefore, unless the notice provided by 38 Fed.Reg. 4279 is “insufficient in law” we must find that petitioners received notice of an opportunity to be heard. That is all that due process or the Administrative Procedure Act requires. In determining whether the notice is “insufficient in law” the pertinent statutory provision is 21 U.S.C. § 355(g) which provides:

Orders of the Secretary issued under this section shall be served (1) in person by any officer or employee of the department designated by the Secretary or (2) by mailing the order by registered mail addressed to the applicant or respondent at his last-known address in the records of the Secretary. (emphasis supplied).

We think that “applicant” or “respondent” referred to in § 355(g) must be read as referring only to holders of NDA’s. Until the Drug Listing Act of 1972, 86 Stat. 559, P.L. 92-387 (August 16, 1972) becomes fully effective, it is only holders . of NDA’s who have a last known address in the records of the Secretary. We do not think that § 355(g) imposes upon the Secretary the duty to personally notify manufacturers of “me-too” drugs, nor does due process or the APA require it. Notice was given in the most effective and practical manner available to the FDA. As we recognized in Amalgamated Meat Cutters v. Allen, 423 F.2d 267, 269 (8th Cir. 1970), all that is required is that:

The notice involved was reasonably calculated to apprise the interested party of the pendency of the action and afforded * * * an opportunity to present its position and objections.

Eastern Research Laboratories did receive notice by certified mail as it had submitted NDA’s in compliance with 21 C.F.R. § 130.46 (1971) ; if the remaining Petitioners had also complied, it is not disputed that they would also have received personal notice. It was Petitioners’ own decision not to submit NDA’s for their drugs. Undoubtedly, the status of being a' “me-too” is desirable as it eliminates the necessity of having to file and pursue an NDA; that it creates a possibility that a “me-too” will not receive actual notice of proposed actions affecting the pertinent NDA’s is a risk which “me-toos” must be held to have accepted.

Since the “me-toos” are riding on the backs of the NDA’s and thus vicariously receive the benefits of the NDA’s approval, it is incumbent upon the “me-too” drug manufacturers to keep advised of the status and the validity of the NDA’s that form the basis for the manufacture and distribution of their “me-too” product. The “me-too” rights to distribute in interstate commerce should certainly be no greater than the rights of the NDA’s to so distribute. Notice in the Federal Register is calculated to reach all such “me-too” manufacturers who, because of their dependence for validity upon the NDA’s, should be required, both as a matter of self-interest and of law, to keep abreast of the FDA regulations affecting their products. Under these circumstances, it should not be incumbent upon the FDA to ferret out the “me-too” manufacturers. Rather, the “me-toos” should be in the forefront, ready to come forth to protect their own interest and supply the necessary data and information to support the safety and efficacy of their products. Their failure to do so was at their peril.

The paramount needs of the public require that unsafe or ineffective drugs should be removed from the market. The congressional regulatory scheme contained in the 1962 Amendments to the Pure Food and Drug Act requires a positive affirmative showing that chemicals sold to the public in prescription form should be both safe and efficacious and the burden of proving these facts rests upon the manufacturers. We therefore find that Petitioners did receive notice sufficient in law of an opportunity to be heard and the failure to personally notify each Petitioner did not deprive them of due process.

The Petitioners have failed to demonstrate any error in the FDA’s procedures in issuing the challenged order. Therefore, our stay order of June 14, 1973, is vacated and the Petitioners’ request to have the March 30, 1973, order of the FDA set aside is denied.

Relief denied.

      . An anorectic drug is a “substance which diminishes the appetite.” Dorland’s Illustrated Medical Dictionary, 24th Ed.

      . “Me-too” manufacturers are ones -which have identical, similar, or related drugs covered by their own or another manufacturer’s NDA.

      . Bentex, supra at 651, 93 S.Ct. at 2493.

      . Petitioners’ main brief at 13.

      . Petitioners’ main brief at 14.


text:
    UNITED STATES of America, Appellee, v. Larry Keith RAUCH, Appellant.
    No. 73-1555.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 10, 1973.
    Decided Jan. 23, 1974.

      Robert H. Laden, Des Moines, Iowa, for appellant.
    Keith E. Uhl, Átty., U. S. Dept. of Justice, Washington, D. C., for appellee.
    Before GIBSON and ROSS, Circuit Judges, and SMITH, Senior District Judge.

       The Honorable Talbot Smith, Senior District Judge, Eastern District of Michigan, sitting by designation.

   GIBSON, Circuit Judge.

Larry Keith Rauch was convicted by a jury of violating 50 U.S.C. App. § 462, by failing to keep his local draft board informed of his home address and/or his occupational status as required by 32 C. F.R. § 1641.7(a). The Honorable William C. Stuart, District Judge for the Southern District of Iowa, suspended execution of a two-year sentence and placed the defendant on three years probation, conditioned on serving in a civilian job similar to those assigned to conscientious objectors.

The defendant registered under the Selective Service System October 3, 1966. On his Classification Questionnaire he gave his mailing address as 6221 N.W. 100th Street, Grimes, Iowa. On the Selective Service Registration Card, SSS Form 1, he gave his place of residence as the above address. This card was completed at the time of registration. Defendant was classified 1-S(H) until June, 1967, his expected date of graduation from high school. May-24, 1967, the defendant informed the local board of an address change to 5000 Park Avenue, Des Moines, Iowa.

His communication difficulties with the draft board began in June, 1967. The Board during June mailed a current information questionnaire to the 5000 Park Avenue address; this was not returned. In July, 1967, the Board reclassified the defendant 1-A. His classification notice and the notice of his rights to a personal appearance and appeal were mailed July 25, 1967, to the 5000 Park Avenue address. They were returned July 31, 1967, annotated “not at this address.” The Board remailed these July 31, 1967, in care of Mr. Robert Baker, 6221 N.W. 100th Street, Grimes, Iowa. Mr Baker had been listed as the person who would always know defendant’s address; this address was also the place of residence given on the SSS Form 1 at the time of registration. However, Mr. Baker did not “always” know defendant’s address; the forms were returned marked “moved, left no address” and were then remailed to Teresa West, the defendant’s mother, 3412 E. 35th Street, Des Moines, Iowa, and were not returned.

In March, 1968, the defendant was ordered to report for a pre-induction physical examination. This notice was mailed to the 5000 Park Avenue address, returned to the Board, and remailed in care of Robert Baker, who returned it as “moved, left no address.” The defendant testified that he received no communications from his draft board after May, 1967. The record also establishes that the defendant was not at any of the addresses given to the draft board, even though it does not indicate the defendant’s whereabouts from June, 1967, until April, 1970, when he left for South Africa. Although the local board tried diligently to communicate with the defendant through the addresses he had given, it was unable to do so. The defendant was ordered to report for induction in October, 1970, and when he failed to report, his case was referred to the United States Attorney for prosecution. The indictment in this case was returned June 23, 1971. However, defendant did not return to the United States from South Africa until April, 1973. Count I of the indictment alleging a failure to report for induction was dismissed on motion of the Government at trial.

The defendant argues that there was a variance between the indictment and the Government’s proof at trial. Defendant was charged with a violation of 32 C.F.R. § 1641.7(a) (1972) which provides :

It shall be the duty of every classified registrant to keep his local board currently informed of his occupational * * * status * * * [and] of his home address. * * * Every classified registrant shall, within 10 days after it occurs, report to his local board in writing every change in such status * * * and home address •X* * -X-

It is the defendant’s contention that the Government mistakenly tried him as though he were charged with violating 32 C.F.R. § 1641.3 (1972) which provides :

It shall be the duty of each registrant to keep his local board advised at all times of the address where mail will reach him. * * *.

The two regulations, § 1641.7(a) and § 1641.3 are separate and distinct, and a violation of one does not establish a violation of the other. United States v. Chudy, 474 F.2d 1069, 1070 (9th Cir. 1973); United States v. Munns, 457 F.2d 271, 273 (9th Cir.), cert. denied, 409 U.S. 871, 93 S.Ct. 199, 34 L.Ed.2d 121 (1972); United States v. Fisher, 456 F.2d 1143, 1145 (10th Cir. 1972). This does not mean that the two offenses may not have common elements of proof at trial.

Section 1641.3 requires the registrant to provide, in good faith, an address through which communications from his local board may be expected to reach him in time for compliance. Bartchy v. United States, 319 U.S. 484, 489, 63 S.Ct. 1206, 87 L.Ed. 1534 (1943); United States v. Burton, 472 F.2d 757, 763 (8th Cir. 1973). Section 1641.7(a) requires that the registrant keep the local board informed of where he is actually residing. United States v. Munns, supra, 457 F.2d at 273.

While it is true that the prosecutor at times referred to defendant’s mailing address at trial, this was not in an attempt to show a § 1641.3 violation or confuse the issues in the case, but was necessary to establish which of the addresses contained in the defendant’s Selective Service file was his home address. No mention of § 1641.3 was made at trial and the Court fully and satisfactorily instructed the jury as to the difference between a mailing address and home address, and the elements the Government must prove to establish a § 1641.7(a) violation. There was no variance between the indictment and proof at the trial.

Defendant also contends that the Government failed to establish the elements of the offense. The Government’s proof established that the defendant did not communicate any change of address to his local board after May, 1967. The Government established that the defendant was not at any of the addresses given the draft board and showed the fruitless attempts to locate the defendant. There was evidence indicating that at some time defendant was in Indiana and that he was in South Africa from April, 1970, until April, 1973. From this evidence the jury could conclude that defendant’s home address had changed during the period covered by the indictment (July 31, 1967, to June 23, 1971) and that defendant failed to notify the Board of this change as required by § 1641.7(a).

Defendant’s testimony indicated that he realized he should have informed the Board of his change of address, and that he was aware of an outstanding induction order early in 1971, but he made no effort to communicate with the local board at that time. This was adequate to support the jury’s finding of the requisite deliberate purpose not to comply with the regulation. The Government offered substantial evidence from which the jury could and did conclude that the essential elements of the offense were established.

Lastly, defendant argues that the provisions of § 1641.7(a) must be violated cumulatively and not in the alternative. In other words, not only must the defendant have failed to inform the Board of a change in his home address, he must also have failed to inform them of a change in his occupational, family, marital, dependency and military status, a change in his physical condition, and of his receipt of a degree in a medical or allied health field before he can be found to have violated § 1641.7(a). This contention is frivolous and is beyond the spirit, the intention, and even the literal language of the regulation. The key directive of the regulation is that “every change” shall be reported. None of the courts affirming convictions under § 1641.7(a) has read the regulation to require a cumulative violation.

Judgment of conviction affirmed.

      . We must view the evidence in the light most favorable to the verdict of the trier of fact, accepting as established all reasonable inferences tending to support the decision. United States v. Dugan, 477 F.2d 140 (8th Cir. 1973) ; United States v. Henson, 456 F.2d 1045 (8th Cir. 1972).

      . See, e. g., Schmidt v. United States, 482 F.2d 561 (8th Cir. 1973) ; United States v. Munns, supra.


author: FRIENDLY, Circuit Judge:

text:
    John HOH, as President of Brewery Workers Local 3, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; and Neil Borra as President of Brewery Delivery Employees Local 46, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Appellants, v. PEPSICO, INC. and its wholly-owned subsidiaries Rheingold Corporation and Rheingold Breweries, Inc., Appellees.
    No. 870 Docket 74-1151.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 6, 1974.
    Decided Feb. 8, 1974.

      I. Philip Sipser, New York City (Sipser, Weinstock, Harper & Dorn, New York City, of counsel), for appellants.
    Herbert Prashker, New York City (Poletti Freidin Prashker Feldman & Gartner, and Robert Morris, Kim Ebb, Lawrence A. Katz, Roger Briton, New York City, Madeline Nesse, Edward Brill, and Kathryn J. Rodgers, New York City, of counsel), for appellees.
    Before FRIENDLY, FEINBERG and MULLIGAN, Circuit Judges.
   FRIENDLY, Circuit Judge:

This appeal, which we heard on an emergency basis, concerns the shutdown of the Rheingold Brewery in Brooklyn, N.Y. The action was begun on January 31, 1974 by petitioners (hereafter the unions) against Pepsi-Co, Inc., Rheingold Corporation, and Rheingold Breweries, Inc. (hereafter the employer) in a New York State court and was removed by the respondents to the District Court for the Eastern District of New York on the basis that the complaints, styled as a petition to compel arbitration under a collective bargaining agreement, stated a claim under § 301 of the Labor Management Relations Act.

The collective bargaining contract, which, as renewed on April 30, 1973, runs until May 31, 1976, contains a broad provision that all complaints or disputes which cannot be settled by agreement shall be referred to an Adjustment Committee and, in the event of its inability to reach a decision by majority vote, to arbitration by a three-man board, one member of which shall be a member of the Brewers Board of Trade, Inc., another a member of the unions, and a third to be selected by them or, failing that, to be appointed through the procedures of the American Arbitration Association. The agreement also contains a provision, Part VI, Section 1(B) and (C), for much faster arbitration. If the Adjustment Committee fails to reach a decision within 36 hours after written notice of a request for adjustment and a party desires to proceed more speedily, or if a party alleges a violation of the contract clause prohibiting strikes, stoppages and lockouts, it can demand one-man arbitration by the American Arbitration Association, with the arbitration to begin within 24 hours after notice and with the award to be issued not later than 48 hours after conclusion of the hearing.

In FTC v. PepsiCo, Inc., 477 F.2d 24, 29, 30 (2 Cir. 1973), denying a preliminary injunction against Pepsico’s acquisition of control of Rheingold Corporation, we noted that Rheingold’s share in the beer market was declining, that it projected a loss of between $2 million and $7® million in its 1973 beer operations, that it had developed no final budget for these, and that “PepsiCo very probably has no interest in the beer business.” As early as mid-December, 1973, Pepsico and its labor counsel alerted the unions as to the probability of an early shutdown of the Rheingold brewery; on January 2, 1974, the unions were told it would have to close by the end of the month except in the unlikely event that a purchaser could be found. Five days later, on January 7, 1974, the employer notified the employees that for the economic reasons of which the unions had already been apprised, it had decided to suspend new brewing operations but that this would not significantly affect the employment level for the rest of the month, since the last brewing cycle commenced on January 4, 1974 would require another three and a half weeks. On January 25, the employer notified the employees that, in view of the large losses being incurred and the failure of its two-year search for a purchaser who could operate the brewery under conditions satisfactory to the unions, all operations would cease on February 1 and all employees (other than those needed for clean-up work) would then be terminated—unless before that date a suitable purchaser could be found.

The unions responded by serving, on January 28, a copy of twelve Issues for Submission to the Adjustment Committee. Several of these related to the alleged impropriety of the February 1 termination. The claim of impropriety was based on two theories—“the representations made by it [the employer] to its employees and the' Union concerning the continuance of its operations and/or its failure to disclose critical information concerning such continuance, at the time of the execution of the current collective bargaining agreement,” and an obligation to continue operations until the contract’s expiration date in 1976. Attempted resolution by the Adjustment Committee proved abortive and on January 30, the unions sent the American Arbitration Association a request for arbitration of the twelve issues. The request did not refer to the quick arbitration procedure of Part VI, Section 1(B) and (C), and the Association’s response of January 31, enclosing a list of names from which the arbitrator would be appointed and requesting a return of the list not later than seven days thereafter, must have made it clear to the unions that the Association did not so understand it.

On the same day, without having received any indication from the employer that it would decline to submit to arbitration, the unions filed in the state courts the petition to compel arbitration to which we have already referred. The petition alleged that the unions had requested deferral of the shutdown pending the determination of the arbitration but that the employer had declined. Accordingly, the unions sought injunctive relief to that end.

After the removal the application came on before Judge Bartels on February 1, at the close of business on which the plant was to shut down. There was some debate whether the application should be regarded as one for a temporary restraining order, F.R.Civ.P. 65(b), or for a preliminary injunction, F.R. Civ.P. 65(a). Both sides seemed to prefer that the judge include consideration of the latter in order that his decision might result in an order appealable under 28 U.S.C. § 1292(a)(1). In the course of the presentation, counsel for the- unions made some suggestion that the unions might be satisfied with an injunction requiring preservation of the plant in shape for future operation or sale and wage payments of not more than $100,000 per week, without a resumption of production. After reviewing such papers as were before him and a number of decisions, the judge concluded “that the petitioners have failed to make a clear showing of probable success on the merits which would justify the issuance of a temporary restraining order or, without a hearing, a preliminary injunction.” Accordingly he denied the application, although granting a stay of the shutdown until midnight on February 4. He relied particularly on Part VII (B) of the collective bargaining agreement which read in relevant part:

(B) In the event that the Employer shall suspend or discontinue the operations of its plants in whole or in part, its obligations hereunder shall be correspondingly suspended or discontinued.

The unions appealed to this court and asked for a hearing on February 4. At that time the parties stipulated that until midnight on February 8, unless this court should determine the appeal earlier, the employer would conduct clean-up operations as previously planned and announced, keep on hand sufficient saleable beer to fill a million cases, and not dismantle.the plant or sell it except to a person who would continue brewery operations. We agreed to hear the appeal on February 6. Since denial of a temporary restraining order is not appealable, Grant v. United States, 282 F.2d 165, 167 (2 Cir. 1960), save in the rare case, not here presented, where despite the label the effect is that of denial of a preliminary injunction, see C. Wright, Federal Courts 459 (2d ed. 1970), the sole question before us is whether the judge abused his discretion in refusing to issue a preliminary injunction.

Somewhat ironically, the unions attack the denial of a preliminary injunction on the ground that in the few hours which were all that he had available, the judge did not conduct an evidentiary hearing or make findings of fact and conclusions of law, F.R.Civ.P. 52(a) and 65(b). It would be a sufficient answer that if the judge should not have denied a temporary injunction under such circumstances, he still more clearly should not have granted one as the unions want, and the parties asked him to do one or the other. The judge made clear that a principal ground for his denial was that there had been no opportunity for a hearing; nothing prevented the unions’ seeking one on February 4 or later. While this alone might suffice to dispose of the appeal, we think it preferable, in light of the human problems involved, to go into the matter somewhat more extensively.

Citing Detroit Newspaper Publishers Ass’n v. Detroit Typographical Union, 471 F.2d 872 (6 Cir. 1972), cert. denied, 411 U.S. 967, 93 S.Ct. 2149, 36 L.Ed.2d 687 (1973), and Emery Air Freight Corp. v. Local Union 295, 449 F.2d 586, 588-589 (2 Cir. 1971), cert. denied, 405 U.S. 1066, 92 S.Ct. 1500, 31 L.Ed.2d 796 (1972), the employer asserts that, despite Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), § 7 of the Norris-LaGuardia Act, 29 U.S.C. § 107, as distinguished from § 4, 29 U.S.C. § 104, remains applicable when an injunction is sought in a labor dispute, even in aid of arbitration. Perhaps this goes somewhat too far. See Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 458-459, 77 S.Ct. 923, 1 L.Ed.2d 972 (1957). We prefer Judge Gibbons’ formulation in United States Steel Corp. v. United Mine Workers, 456 F.2d 483, 487 (3 Cir.), cert. denied, 408 U.S. 923, 92 S.Ct. 2492, 33 L.Ed.2d 334 (1972), that § 7 remains applicable so far as consistent with the policies of § 301 of the Labor Management Relations Act as interpreted in the dissenting opinion' in Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 215, 228-229, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962), which the Court approved in Boys Markets, supra, 398 U.S. at 249-253, 90 S.Ct. 1583. We see no inconsistency with § 301 in such provisions of § 7 as those which prohibit the issuance of an injunction except after hearing the testimony of witnesses in open court and demand a finding, on the basis of such testimony, that “as to each item of relief granted greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief.” Perhaps, despite this, a court might issue an injunction against an employer without taking testimony if on the undisputed facts the balance tipped decisively in favor of the unions and the other criteria governing the issuance of injunctions were met. This was not the case here. If the unions should prevail in the arbitration, their members would receive substantial monetary relief. On the other hand, if they should lose, the employer would be without remedy for its losses, even on the unions’ modified request, unless they were to post a large bond. Time pressures on the district court which the unions could readily have avoided by earlier invocation of arbitration or by insisting on the quick arbitration procedure afford no basis for dispensing with the testimony on disputed issues required by § 7 of the Norris-LaGuardia Act and by F.R.Civ.P. 65.

Furthermore, the “ordinary principles of equity” referred to as a guide in the pprtion of the Sinclair dissent that was approved in Éoys Markets include some likelihood of success. At least this much is required by Judge Frank’s liberal formulation in Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2 Cir. 1953). We think this must mean not simply some likelihood of success in compelling arbitration but in obtaining the award in aid of which the injunction is sought. Although courts have been directed by the Steelworkers’ Trilogy, 363 U.S. 564, 574, 593, 80 S.Ct. 1343, 1347, 1358, 4 L.Ed.2d 1403, 1409, 1424 (1960), to be liberal in construing agreements to arbitrate, this instruction does not extend to the grant of ancillary relief; on such a matter they must continue to exercise the sound discretion of the chancellor. It would be inequitable in the last degree to grant an injunction pending arbitration which was costly to a defendant on the basis of a claim which although arguably arbitrable was plainly without merit.

We see little reason to think the unions here have met the requirement of showing some likelihood of ultimate success. To be sure, the unions allege, although with notable lack of specificity, the employer induced them to agree to the last extension of the agreement by unduly optimistic predictions and concealments. Even putting to one side the question whether parol evidence could override Part VII (B) of the collective bargaining agreement, quoted above, no evidence on all this was produced. The unions also refer to Part VI, Section 2, which provides in pertinent part:

(A) Neither while a controversy is under submission as hereinabove provided, nor during the pendency of an arbitration, nor following one, nor while this contract shall be in force and neither party has been determined to be in violation of any of the provisions hereof shall there be resort to a strike of any kind, shop strike, sit-down strike, slowdown, sympathetic strike, walkout or lockout against any of the parties to this agreement.

But this section must be read along with the clause permitting the employer to suspend or discontinue and in light of the general unlikelihood of an employer’s committing himself to a union to remain in business for a fixed term whatever the losses might be. The Supreme Court has recognized, in the context of determining unfair labor practices under § 8 of the National Labor Relations Act, the difference between “a complete liquidation of a business” and a lockout used as a temporary economic weapon in a labor dispute, just as, on the other side, there is a difference between a permanent quitting of employment and a strike. Textile Workers Union v. Darlington Mfg. Co., 380 U.S. 263, 271-272, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965).

Beyond all this, and most significantly, the unions’ case was lacking in equity because of their failure effectively to invoke arbitration remedies readily available to them. Insofar as they are relying on the anti-lockout clause, they could already have had a quick arbitration under Part VI, Section 1(B)(2) even if they had done nothing until January 25. But the issue of shutdown had been posed long before that. Nothing prevented the unions from submitting the issue of the employer’s right to close to the Adjustment Committee in mid-January, affording ample time for such an arbitration under the broader provision of Part VI, Section 1(B)(1). We fail to perceive what equitable principle would justify a court in giving these unions, by way of preliminary injunction, a remedy they could have had by arbitration if their position was justified, but which they chose not to seek until two days before the date set for the shutdown and then not by the expedited procedure to which the parties had agreed.

Like the district judge, we are not insensitive to the desire of Rheingold’s employees to continue with work to which many have devoted their lives, although the employer says, a position on which we do not pass at all, that the plight of the employees may be a consequence of unions’ pressing demands so high as to destroy their members’ future. It suffices that we are bound by the principles of equity, as was the district judge. When we combine the unions’ delay in pursuing their arbitral remedies, the lack of any testimony before the judge, and the unions’ failure to show that the balance of hardship tips in their favor, we cannot find that he abused his discretion in denying a preliminary injunction. Indeed, he had no alternative.

Affirmed.

      . Rheingold Corporation was merged into Pepsico, Inc. on December 31, 1973. Rheingold Breweries, Inc., the owner and operator of the brewery and the signatory of the collective bargaining agreement, was a wholly-owned subsidiary of Rheingold Corporation and, by virtue of the merger, is now such a subsidiary of PepsiCo.

      . The unions challenge the propriety of the removal because of a provision in the clause relating to quick arbitration, hereafter discussed, which reads as follows :
      The award of the Arbitrator may be enforced in the courts of the State of New York. It is expressly agreed that neither the employer nor the union or any employee will seek removal of any such proceeding in the courts of the State of New York to the Federal Courts and they expressly waive their right to seek such removal.
      But the petition here was to compel submission to arbitration, not to enforce an arbitration award. Moreover, even as to the latter, the clause against removal was limited to awards obtained by the quick arbitration procedure which, as will later appear, the plaintiffs have not invoked. Plaintiffs’ offer to submit parol evidence that the clause, drawn by experienced counsel, was intended to have a broader scope than its plain language was rightly rejected by the district judge.

      . The agreement designates five arbitrators any one of whom would be acceptable. If none should be available, the Association is to make the appointment.

      . The papers indicate that the employer was willing to make the sale for a nominal consideration.

      . The employer has now agreed to arbitration. The unions regard this as unsatisfactory because no similar agreement has been made by the parent. The liability, if any, of the parent to join in the arbitration and to honor an arbitration award clearly is Hot susceptible of summary determination.

      . This was conditioned on the unions’ filing a bond of $100,000 against damage, to the plant; this was never filed.

      . The stipulation did not bar earlier termination of employment, and we are advised that this has occurred except for employees engaged in the clean-up work. On February 4 the employer paid the employees their “banked” vacation pay.

      . The possibility of this seems remote in light of the unions’ failure to post a $100,000 bond, on much more limited conditions, which the judge required as a condition to postponing the shutdown until midnight February 4. Counsel candidly stated that he could afford no assurance that the unions could post a bond adequate to protect the employer against losses if the arbitrator should rule against the unions.

      . An expedited arbitration of similar “no-lockout” clauses in the employer’s collective bargaining agreements with four other unions produced an award on February 3, 1974 that the permanent closing of the brewery did not violate the clauses.

      . The district judge did not have before him a proposal for an injunction as limited as the stipulation approved by this court on February 4. In light of reports in the press that negotiations for sale of the brewery are continuing and the concession of counsel for appellees that compliance with this stipulation does not involve significant expense, we think it would be constructive if appellees were to continue to comply with the stipulation, so long as viable negotiations are in progress, until midnight on February 15, 1974.