author: JAMES HUNTER, III, Circuit Judge:

text:
    Aldine ROCHESTER, Individually and on behalf of her minor child, Rose Gibson, Individually and on behalf of her seven minor children; Individually and on behalf of all others similarly situated, Appellants, v. Jack D. WHITE, Secretary of Health and Social Services, Individually and in his official capacity, and Miklos T. Lazar, Director of Social Services, Individually and in his official capacity, Defendants, Third-Party Plaintiffs, v. Caspar W. WEINBERGER, United States Secretary of Health, Education and Welfare and Francis D. DeGeorge, Administrator, Social and Rehabilitation Service, United States Department of Health, Education and Welfare, Third-Party Defendants.
    No. 73-2104.
    United States Court of Appeals, Third Circuit.
    Argued June 28, 1974.
    Decided Sept. 5, 1974.

      Peter M. Siegel, Community Legal Aid Society; Wilmington, Del., for appellants.
    Kent Walker, State Sol., Dept, of Justice, Wilmington, Del., for appellees.

      Before ADAMS, HUNTER and GARTH, Circuit Judges.
   OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This case raises jurisdictional issues under 28 U.S.C. § 1343(3) (1970) and 42 U.S.C. § 1983 (1970) and the Eleventh Amendment. The district court granted defendant-appellee’s motion for summary judgment holding that a state official was not a “person” under Section 1983 and, that as such, there was no jurisdiction in the court to grant either declaratory or monetary relief. The judgment with respect to the absence of declaratory judgment jurisdiction must be reversed.

I.

There is no dispute as to the facts in this case. Plaintiff-appellants challenge the propriety of defendant-administrator’s 1971 reduction in Social Security benefits under Delaware’s Aid to Families with Dependent Children (AFDC) public assistance program. In this class action, plaintiffs alleged that failure to give proper notice of the reduction in benefits violated the due process clause of the Fourteenth Amendment and federal regulations. The notice issue was fully litigated both in the district court of Delaware and in this court at which time the absence of jurisdiction was never raised. Speaking to the merits of the case in May of 1973, Judge Gibbons for this court found non-compliance with federal notice requirements and remanded the case to the district court for a determination of proper remedies. On remand, plaintiffs requested prospective declaratory and injunctive relief and retroactive monetary damages. Alleging that the Eleventh Amendment barred any retroactive monetary relief, the defendant moved for partial summary judgment. The district judge sua sponte granted a complete summary judgment for the defendant upon finding that the court was without jurisdiction to grant either monetary or declaratory relief, 365 F.Supp. 179, 183. The court avoided difficult Eleventh Amendment issues raised in defendant’s motion, 365 F.Supp. 179, 185. Reliance was instead placed on the notion that the defendant, as a representative of the state, was not a “person” under Section 1983. The court rightly cited Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) for the proposition that a city or a state is not a person subject to suit under Section 1983. As a corollary of this rule, the trial judge concluded that when a state official represents the state, he stands in the shoes of the state, and that like the state he is not a person under Section 1983. This conclusion is erroneous.

II.

When a state is named as a defendant under Section 1983, there are two impediments to suit. First, a state is not a person as required under Section 1983, and second, the Eleventh Amendment bars suit against a state. As written, the Eleventh Amendment prohibits suits in federal courts by citizens of one state against another state; the amendment, however, was early interpreted as a bar to suits in federal court by a citizen against his own state, Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). If the State of Delaware had been named as a party to the instant action, the reasoning of the trial judge, that jurisdiction to redress a violation under Section 1983 was absent, would have been correct. Different results must obtain, however, when a state official, rather than the state itself, has been named as a party-defendant.

PROSPECTIVE RELIEF

The district judge’s ruling that he is without jurisdiction to grant prospective relief must be reversed since the public officials named as defendants are “persons” within Section 1983.

In conjunction with Section 1343(3), Section 1983 has served as the basis for many suits against public officials acting in their official capacities.

In Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), Justice Harlan makes clear that when a complaint alleges the unconstitutionality of a state statute “the District Court sitting as a one-man tribunal .... [is] properly seised of jurisdiction over the case under §§ 1343(3) and (4) of Title 28. . . .” 397 U.S. 397, 403, 90 S.Ct. 1207, 1213 to redress grievances under 42 U.S.C. 1983. The defendant in Rosado was a New York State official who administered the same federally supported A.F.D.C. program as that in the present case. Although the opinion discusses jurisdiction in great detail, 397 U.S. 397, 402-407, 90 S.Ct. 1207, there is not the slightest implication that defendant’s status as a representative of the state is relevant under Sections 1343(3) and 1983. This use of Section 1983 as the means of suing state officials has gone unchallenged in both the Supreme Court and in this circuit court. King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), Ser-ritella v. Engelman, 462 F.2d 601 (3rd Cir., 1972), aff’g 339 F.Supp. 738 (D. New Jersey, 1972).

If the trial judge’s interpretation of Section 1983 were correct, very few cases could ever have been successful under the statute. Section 1983 specifically requires that the “person” to be sued has acted under color of state law. When a person acts under color of state law he most often represents the state. Under the trial judge’s view, the state’s status as a non-“person” could be asserted by the state representative who is sued under Section 1983. 365 F.Supp. 179, 183. As the logical consequence of the trial judge’s view, Section 1983 would be used only where the state official had acted beyond the scope of his authority. At other times, a state official would represent the state whose status he could assert. Section 1983 clearly is not restricted to redressing abusive conduct beyond the scope of the authority of the person acting under color of state law. The district court’s jurisdictional analysis under Section 1983 is, in our view, incorrect.

In addition, there is no Eleventh Amendment bar to granting prospective relief in the instant case. Following the reasoning of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Eleventh Amendment does not bar a suit against a state official acting under a state statute allegedly violative of the U.S. Constitution. The Eleventh Amendment does not prevent a “federal court from directing a state official to bring his conduct into conformity with federal law.” Rothstein v. Wyman, 467 F.2d 226, 236 (2nd Cir. 1972). This principle was most recently reaffirmed by the Supreme Court in Edel-man v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). In Edel-man, the Court does not question the view that Ex parte Young authorizes prospective relief. The court states:

Ex parte Young was a watershed case in which this Court held that the Eleventh Amendment did not bar an action in the federal courts seeking to enjoin the Attorney General of Minnesota from enforcing a statute claimed to violate the Fourteenth Amendment of the United States Constitution. This holding has permitted the Civil War Amendments to the Constitution to serve as a sword, rather than merely as a shield, for those whom they were designed to protect. But the relief awarded in Ex parte Young was prospective only; [emphasis added] 415 U.S. 651, 663, 94 S.Ct. 1347, 1356.

In light of these cases, the trial court’s denial of jurisdiction to grant prospective relief must be reversed.

RETROACTIVE MONETARY RELIEF

The trial judge was correct in granting summary judgment for defendant on plaintiff’s petition for retroactive monetary relief. In light of Edelman v. Jordan, decided subsequent to the district court’s opinion, the Eleventh Amendment bars an award of retroactive monetary relief against a state officiala unless the state has waived its Eleventh Amendment objection by consenting to suit. Since consent, according to Edelman, will not be inferred from state participation in a federal program, the Eleventh Amendment bars monetary relief.

III.

The judgment of the district court will be reversed and the cause remanded for further proceedings consistent with this opinion.

      . The district court shall have original jurisdiction of any civil action authorized by law to be commenced by any proper person :
      (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States ;

      . Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

      . Under Title IV of the Social Security Act of 1935, 42 U.S.C. §§ 601-644 (1970) as amended, the Aid to Families with Dependent Children Program was adopted by Delaware. 31 Del.C. §§ 321-331.

      . The district court initially granted defendant’s motion of summary judgment in 337 F.Supp. 350 (D.Delaware, 1972), Judge Gibbons’ reversal for failure to comply with proper notice requirements is found in 479 F.2d 603 (3rd Cir., 1973). On remand the Delaware district court issued a summary judgment which is the subject of the present appeal. 365 F.Supp. 179 (D.Del., 1973).

      . Plaintiff no longer seeks injunctive relief.

      . Meyer v. New Jersey, 460 F.2d 1252, 1253, (3rd Cir., 1972); United States ex rel. Cittlemacker v. County of Philadelphia, 413 F.2d 84, 86 (3rd Cir. 1969) cert. denied 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691 (1970); Fear v. Commonwealth of Pa., 413 F.2d 88, 89 (3rd Cir., 1969), cert. denied 396 U.S. 935, 90 S.Ct. 278, 24 L.Ed.2d 234 (1969).

      . The Eleventh Amendment of the United States Constitution provides:
      The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

      . Although Justice Harlan’s remark mentions only Section 1343(3), the action was brought under both 28 U.S.C. 1343(3) and 42 U.S.C. 1983. Rosado v. Wyman, 304 F.Supp. 1356, 1361 (E.D.N.Y.1969).

      . The kind of Section 1983 relief resulting in individual liability for abuse of official authority was analyzed by the Supreme Court in Monroe v. Pape, 365 U.S. 167, 171-187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) and in Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).
      In the instant case the court ruled that defendants were not guilty of bad faith and therefore were not chargeable with any individual responsibility. Plaintiff-appellant has not challenged this holding.

      . The district court relied heavily on Westberry v. Fisher, 309 F.Supp. 12 (D.Maine, 1970) and Francis v. Davidson, 340 F.Supp. 351 (D.Md.1972) (Three Judge Court) aff’d 409 U.S. 904, 93 S.Ct. 223, 34 L.Ed.2d 168 (1972). Its reliance, however, was based on a misconception of these opinions. Judge Gignoux in the Wesfberry opinion indicated that if monetary relief is sought in a suit against a state official as the named defendant, the judgment must be enforced against the state treasury, unless there is proof that the individual official acted in bad faith. Although a challenge purports to be against the “person” of the state official, it is really an action against the state which must pay any money awards. The state is not a person and the suit is therefore barred. The district court in the instant case miseon-strued this Wesfberry theory by applying it with respect to prospective declaratory relief. Judge Gignoux was careful to conclude in Wesfberry that the Eleventh Amendment was also a major bar to a monetary recovery against a state official. Nowhere does the Wesfberry opinion apply the same rule with respect to prospective relief. The court in Francis v. Davidson reiterated the Westberry rationale.

      . Defendant appellee’s brief raises additional arguments for the denial of prospective relief. They also lack merit. First, appel-lee rightly indicates that denial of declaratory relief is a discretionary act which should be overruled only upon a finding of abuse of discretion. This contention is inajjpropriate in the instant case since the trial judge did not deny declaratory relief as a matter of discretion but because he felt compelled to do so under his reading of Section 1983.
      Additionally, appellee asserts that there is no case or controversy, a fallacious argument in light of the fact that members of plaintiff’s class are still welfare recipients and subject to defendant’s future interpretation of notice requirements.
      Defendant-appellee finally asserts that since Judge Gibbons’ earlier opinion was fully dis-positive of the merits of this case, the issue of notice has been resolved. As such, appel-lee claims there is no reason on the merits to deal with the problem of jurisdiction. This argument is specious. If it had been rendered, without proper jurisdiction, Judge Gibbons’ opinion would have been a nullity.

      . Appellant’s brief alleges in support of a request for monetary relief the fact t at some prospective orders may cost the state more money than do retroactive claims. In light of Justice Rehnquist’s majority opinion in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) this view is meritless. The Court states :
      As in most areas of the law, the difference between the type of relief barred by the Eleventh Amendment and that permitted under Ex parte Young will not in many instances be that between day and night. The injunction issued in Ex parte Young was not totally without effect on the State’s revenues, since the state law which t' e Attorney General was enjoined from enforcing provided substantial monetary penalties against railroads which did not conform to its provisions. Later cases from this Court have authorized equitable relief which has probably had greater impact on state treasuries than did that awarded in Ex parte Young. . . . But the fiscal consequences to state treasuries in these cases were the necessary result of compliance with decrees which by their terms were prospective in nature. State officials, in order to shape their official conduct to the mandate of the Court’s decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct. Such an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young, supra. [Emphasis added.] 415 U.S. 651, 665, 94 S.Ct. 1347, 1357, 39 L.Ed.2d 662.

      a. In Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) the Supreme Court dealt with a related issue. When a state official has been sued for monetary relief under Section 1983, a district court may not dismiss for want of jurisdiction on the basis of the Eleventh Amendment where the complaint can also be read to state a cause of action against the official in his individual capacity.

      . According to the Edelman majority, consent will not be inferred.
      The question of waiver or consent under the Eleventh Amendment was found in those cases to turn on whether Congress had intended to abrogate the immunity in question, and whether the State by its participation in the program authorized by Congress had in effect consented to the abrogation of that immunity. ... In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated “by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction.” Murray v. Wilson Distilling Co., 213 U.S. 151, 171 [29 S.Ct. 458, 464, 53 L.Ed. 742] (1909) 415 U.S. 651, 671, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662.

      . The district court’s denial of retroactive monetary relief was based on the Westberry v. Fisher, 309 F.Supp. 12 (D.Maine, 1970) theory that the state against whom a money judgment would be enforced is not a person under Section 1983. Unlike the district court in the instant case, Westberry then proceeded to ground its Section 1983 reasoning in the Eleventh Amendment (309 F. Supp. 12, 19). The Westberry interpretation of the Eleventh Amendment is reaffirmed in Edelman. There is no discussion of Section 1983 in Edelman.


source: Caselaw Access Project

author: JAMES M. CARTER, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Rose LEVERETTE, Defendant-Appellant.
    No. 74-1929.
    United States Court of Appeals, Ninth Circuit.
    Sept. 19, 1974.
    Albert R. Gamble (argued), Tucson, Ariz., for defendant-appellant.
    Christopher L. Pickrell, Asst. U. S. Atty. (argued), Tucson, Ariz., for plaintiff-appellee.
    Before BARNES and CARTER, Circuit Judges, and LINDBERG, District Judge.

      Honorable William J. Lindberg, Senior United States District Judge, Western District of Washington, sitting by designation.

   OPINION

JAMES M. CARTER, Circuit Judge:

This is an appeal from the judgment of conviction for importation with intent to distribute 110 grams of heroin and 26 grams of cocaine, in violation of 21 U.S. C. §§ 841(a)(1), 952(a), and 960(a)(1). The only issue in the case is whether the facts known to the government agents were sufficient to show a “real suspicion” justifying a strip search. We affirm.

At approximately 9:30 a. m. on December 31, 1973, the defendant, Rose Leverette, a young black female, arrived at the Nogales, Arizona, pedestrian gate from Mexico. Upon inspection of her purse, Customs inspectors found two airline tickets for a flight from Chicago to Tucson in the name of “Mr. and Mrs. Williams.” The defendant stated that they were her tickets, that she lived in Chicago, that she had been in Nogales for two to three days, and that her husband was in Chicago.

Soon after the defendant’s arrival, Charles Williams, a young black male, arrived at the port of entry. He was identified as Charles Williams through an Illinois driver’s license and this fact, along with the inspector’s conversation with the defendant, was communicated to Customs inspector Ralph Guerra, who was then questioning the defendant.

The defendant identified herself to Guerra by means of a welfare IBM card bearing a name other than Williams. She stated that her husband was in Chicago and that the tickets with the name Williams were for a friend, but she refused to say why she was carrying them. Charles Williams had told another inspector that he was from Chicago and had come to Nogales to “get away from' it all.” He stated that he was alone and denied knowing the defendant when she was pointed out to him. The defendant also denied knowing Charles Williams.

Inspector Guerra instructed a female Customs inspector to search the defendant. As the defendant began to undress, the inspectress detected what she believed to be the odor of heroin. The in-spectress told the defendant to remove her slip and upon doing so observed a bulge in her underclothing. The defendant was then instructed to hand over whatever was concealed there, and she turned over three prophylactics which were found to contain heroin and cocaine.

The only contention by the defendant on appeal which merits discussion is her argument that the trial court erred in denying her motion to suppress the heroin and cocaine as illegally obtained.

In order for a strip search to be reasonable under the fourth amendment, the Customs official must have “at least a real suspicion, directed specifically to that person.” Henderson v. United States (9 Cir. 1967) 390 F.2d 805, 808. This “real suspicion” must be

“subjective suspicion supported by objective, articulable facts that would reasonably lead an experienced, prudent customs official to suspect that a particular person seeking to cross our border is concealing something ,on his body for the purpose of transporting it into the United States contrary to law.” United States v. Guadalupe-Garza (9 Cir. 1970) 421 F.2d 876, 879.

We conclude that such articulable, objective facts did exist in this case, and that the strip search of the defendant was therefore justified.

The defendant arrived at the port of entry in the early morning, carrying little luggage, travelling alone but in possession of two airplane tickets bearing the names of Mr. and Mrs. Williams. She stated that her husband was still in Chicago. When it was discovered that a Mr. Williams had arrived at the entry point shortly after the defendant, was from Chicago but denied knowing the defendant, and the defendant stated that the tickets were for friends but refused to say why she was carrying them, the suspicions of inspector Guerra were justifiably aroused.

Inspector Guerra testified at the hearing on the motion to suppress that he was familiar with a particular method of smuggling narcotics into the United States. This method consisted of a female carrying the narcotics on her person through the port of entry alone, followed approximately ten to fifteen minutes later by her male counterpart. In particular, young black persons from large midwestern cities had employed this method at the Nogales port of entry on at least three occasions in the several months preceding the entry of the defendant. At trial, inspector Guerra added that it was unusual for a tourist from as far away as Chicago to be travelling alone, to be entering the country that early in the morning, and to be carrying only three or four dollars worth of purchases.

Under the circumstances, an experienced Customs inspector would justifiably have entertained a “real suspicion” that either the defendant or Mr. Williams or both were concealing contraband. Because the bulge in the defendant’s underclothing was readily visible to the inspectress — there was no “manual or visual intrusion into the [vaginal] cavity itself” — the “clear indication” test for a probe of the cavity itself is inapplicable. United States v. Holtz (9 Cir. 1973) 479 F.2d 89, 92. The motion to suppress was properly denied.

The judgment of conviction is affirmed.


author: PER CURIAM: CHAMBERS, Circuit Judge

text:
    Arnold ESCOBAR, Plaintiff-Appellant, v. The SS WASHINGTON TRADER, her engines, tackle, apparel, etc., et al., Defendant-Appellee. Arnold ESCOBAR, Plaintiff-Appellee, v. The SS WASHINGTON TRADER, her engines, tackle, apparel, etc., et al., Defendant-Appellant.
    Nos. 72-2944, 72-2995.
    United States Court of Appeals, Ninth Circuit.
    June 5, 1974.
    Chambers, Circuit Judge, filed a concurring opinion.
    Eric J. Schmidt (argued), San Francisco, Cal., for appellant cross appellee.
    Frederick W. Wentker (argued), Gary P. Snyder of Lillick, McHose, Wheat, Adams & Charles, San Francisco, Cal., for appellee cross appellant.
    Before CHAMBERS and TRASK, Circuit Judges, and SHARP, District Judge.

       Honorable Morell E. Sharp, United States District Judge from tlie Western District of Washington, sitting by designation.

   PER CURIAM:

Seaman Arnold Escobar and the SS Washington Trader et al. (Shipowner) cross appeal from a judgment which awarded Escobar limited double wage recovery pursuant to 46 U.S.C. § 596, but ruled in favor of the Shipowner on its counterclaim for repatriation and medical costs paid by it on behalf of the seaman. In light of this court’s recent holding in Matise v. American Foreign Steamship Co., 488 F.2d 469 (9th Cir., 1974), we reverse in part and remand for a recomputation of the double wage penalty.

The facts relevant to this appeal are as follows: On March 5, 1969, Escobar was discharged as a wiper aboard the SS Washington Trader and ordered removed from the vessel following an incident which occurred while the ship was tied up at Subic Bay, Philippine Islands. While descending the gangplank under police escort, Escobar fell and suffered a minor back injury. He was taken to a local United States naval hospital and remained there for treatment until March 10, 1969. Upon discharge from the hospital, Escobar was taken to Manila where he formally demanded his wages from an agent of the Shipowner. The agent initiated radio contacts between the company’s New York office and the SS Washington Trader (which was then out at sea) but no payment was made. Meanwhile, Escobar encountered difficulties with Philippine immigration officials because of his alien status and was taken into custody. Upon the intercession of the United States consul in Manila, the Shipowner agreed to pay Escobar’s air fare to San Francisco and Philippine expenses if Escobar signed a guarantee to reimburse the Shipowner for all the repatriation costs. Escobar signed the agent’s “Acknowl-edgement Certificate” to that effect and was flown to San Francisco on March 13, 1969. He was not, however, paid until April 4, 1969, and from his final wages of $883.04 the Shipowner deducted $536.72 representing repatriation costs. Escobar brought suit against the Shipowner in June 1970 challenging the legality of the wage deduction and asserting other claims. arising out of the discharge not relevant to this appeal. On September 14, 1970, the Shipowner, upon the advice of counsel, tendered a cash payment of the disputed $536.72 to Escobar while expressly reserving its rights to the contested sum.

The District Court found that Escobar was discharged for good cause and the Shipowner was not responsible for Esco-bar’s hospitalization and repatriation expenses following discharge. The court characterized the Shipowner’s payment of repatriation expenses as a payment of wages “in kind” and concluded that the $536.72 wage deduction made on April 4, 1969, was proper. Escobar was accordingly ordered to refund the $536.72 he subsequently received in cash and to pay an additional $245 to the Shipowner representing unreimbursed medical expenses. However, the court also found that the Shipowner’s delay in paying Esco-bar’s wages was “without sufficient cause” and therefore subject to a 21-day wage penalty pursuant to section 596. Both parties appeal from the above judgment.

Preliminarily, we affirm the District Court’s finding that the Shipowner was entitled to reimbursement for the repatriation and medical expenses it incurred on Escobar’s behalf following the seaman’s discharge for cause. However, this determination does not affect the central issue on this appeal: namely, the legality and consequences of the Shipowner’s deduction of these costs from Escobar’s wages. Congress has extensively regulated the types of deductions and set-offs which may be made from a seaman’s wages, and the shipowner’s mere right to recovery from the seaman will not legalize a deduction that is not recognized by the statutory scheme. Isbrandtsen v. Johnson, 343 U. S. 779, 72 S.Ct. 1011, 96 L.Ed. 1294 (1952). It is therefore necessary to determine whether the Shipowner’s deduction of repatriation costs was -proper here, and if not, whether the withholding of that portion of the seaman’s wages is subject to a section 596 penalty. We believe that the answer to both these questions is circumscribed by Matise v. American Foreign Steamship Co., 488 F.2d 469, (9th Cir., 1974). In that case the plaintiff seaman, as here, was discharged for cause in a foreign port. The shipowner purchased an air ticket for the seaman, deducted the fare from the seaman’s wages and tendered a voucher for the remainder of the wages. In order to actually collect the wages in San Francisco, the seaman was required to sign a written release. In finding that the air fare deduction constituted an unlawful withholding of Matise’s wages, this court stated: “The statutory scheme enacted by Congress does not provide for set-offs or deductions for return transportation expenses, and Isbrandtsen has been applied to bar the deduction of repatriation costs from a seaman’s wages.” Id. at 472; accord, Schwark v. SS Rio Macareo, 249 F.Supp. 375 (E.D.La.1966); see also Swain v. Isthmian Lines, Inc., 360 F.2d 81 (3d Cir. 1966); 1 Norris, Law of Seamen, § 355 (3d ed. 1970). Moreover, in Ma-tise this court explicitly rejected the argument successfully advanced below that the shipowner’s purchase of the plane ticket and assumption of expenses constituted a payment of wages “in kind”:

“Although the appellee contends that the transportation money spent on Matise’s alleged behalf is the equivalent to the payment of wages to Matise, the applicable statutes explicitly and unequivocally provide that the wages due are to be paid to the seaman, 46 U.S.C. §§ 596-97. Furthermore, the shipowner here was acting to some extent in its own behalf, in view of its legal obligation to remove all persons, including a discharged seaman such as Matise, whom it had transported to South Vietnam. Even, however, had the money been spent entirely for the benefit of Matise, it could not be treated as a partial payment of his wages and thereby deducted from the total amount of wages that he had earned and to which he was entitled.” 488 F.2d at 471.

We are therefore compelled to follow the above interpretation of 46 U.S.C. § 596 and Isbrandtsen, supra, and conclude that the deduction of repatriation costs from Escobar’s wages was improper.

Turning next to the question of whether this deduction constituted a withholding of wages “without sufficient cause” under section 596, we are again bound by the reasoning of Matise, supra. The court there rejected the shipowner’s arguments that uncertainty as to the legality of the deduction and reliance on the seaman’s written release each provided sufficient grounds to remove the withholding from the operation of the penalty statute. With regard to the former justification the court stated;

“ . . . [T]he case law has, for at least two decades, provided full notice to shipowners seeking to avoid the imposition of double wage penalties that only those deductions from wages that are allowed by statute are lawful. As the court remarked in Swain v. Isthmian Lines, Inc., supra: ‘It has been eminently clear in the law, at the very least since the Supreme Court case of Isbrandtsen Co. v. Johnson in 1952 that a deduction from wages for medical expenses such as were incurred by appellee in the instant case is wrongful as falling outside the proper deductible instances .... This question, therefore has been closed for some time.’ 360 F.2d, at 83 (footnote omitted).
“It is therefore clear that the shipowner in our case cannot claim that it had ‘sufficient cause’ to withhold a portion of Matise’s wages because of reliance on the general maritime law which did not require a shipowner to pay the cost of repatriating a seaman discharged for good cause. As we have previously indicated, that argument has been without merit since the Supreme Court decided Isbrandtsen v. Johnson, supra, over twenty years ago.” 488 F.2d at 473.

Accord, 1 Norris, supra § 392. The court also found that because execution of the written release was an express precondition to receipt of wages, the seaman was economically compelled to sign the document. Under these circumstances the court concluded that the shipowner was not justified in relying upon the release it coerced as a “sufficient cause” for withholding Matise’s wages. Although the “Acknowledgement Certificate” signed by Escobar was not explicitly a precondition to the payment of wages, we do not feel that this technical difference justifies a conclusion contrary to Matise. In the instant case the Shipowner demanded the guarantee from Escobar during the period in which it was unlawfully withholding the seaman’s wages. Moreover, this withholding left Escobar, an illegal alien, stranded in the Philippines without funds. In short, these were the very circumstances which prompted Congressional enactment of much of the protective legislation for seamen and section 596 in particular. See e. g., Ladzinski v. Sperling and Trading Corp., 300 F. Supp. 947, 954-955 (S.D.N.Y.1969).

We conclude therefore that the Shipowner improperly deducted repatriation costs from Escobar’s wages and that this action constituted an unlawful withholding subject to the section 596 double wage penalty. The only remaining issue is the designation of the penalty period itself. Despite our concern for a possibly inequitable windfall recovery to the seaman, we agree with the Third Circuit that the language of section 596 is unequivocal and mandatory. Swain v. Isthmian Lines, Inc., 360 F.2d 81, 84-88, (3d Cir. 1966).

We accordingly reverse in part and remand for further consideration in the light of this opinion.

CHAMBERS, Circuit Judge

(concurring) :

While I concur in the foregoing, the result is horrible. I am not concerned with the policy of double wage recovery generally. But the statute in this type of case results in a taking which is unconscionable. The Congress should do something about it.

      . 46 U.S.C. § 596 reads, in pertinent part: “The master or owner of any vessel [making foreign voyages] . . . shall pay to every seaman his wages within twenty-four hours after the cargo has been discharged, or within four days after the seaman has been discharged, whichever first happens .... Every master or owner who refuses or neglects to make payment in the manner hereinbefore mentioned without sufficient cause shall pay to the seaman a sum equal to two days’ pay for each and every day during which payment is delayed beyond the respective periods, which sum shall be recoverable as wages in any claim made before the court . . . . ”

      . Without any explanation, the District Court found that the Shipowner had sufficient cause for nonpayment of wages during Escobar’s hospitalization period from March 5, 1969 to March 10, 1969. The court accordingly assessed double wage penalties beginning on March 14, 1969, (four days after Escobar’s discharge from the naval hospital) and running through April 4, 1969.

      . The contrary view would assess the amount of section 596 penalty by considering “the equities of a particular ease,” Prindes v. SS African Pilgrim, 266 F.2d 125, 128 (4th Cir. 1959). See also, Southern Cross SS Co. v. Firipis, 285 F.2d 651 (4th Cir. 1960), cert. denied, 365 U.S. 869, 81 S.Ct. 903, 5 L.Ed.2d 859; Kontos v. SS Sophie, 236 F.Supp. 664 (D.C.Pa.1964). We find no support for a discretionary assessment of the double wage penalty in the present language of section 596 and find the reasoning in Swain, supra, persuasive.


author: PER CURIAM.

text:
    Hazel A. PARMER, Plaintiff-Appellant, v. The NATIONAL CASH REGISTER COMPANY et al., Defendants-Appellees.
    No. 74-1131.
    United States Court of Appeals, Sixth Circuit.
    Argued June 10, 1974.
    Decided Sept. 20, 1974.

      Milton A. Hayman, Steubenville, Ohio, for plaintiff-appellant.
    N. Victor Goodman, Columbus, Ohio, for International Brotherhood of Electrical Workers; Topper, Alloway, Goodman, DeLeone & Duffey, Columbus, Ohio, on brief.
    J. Mack Swigert, Cincinnati, Ohio, for National Cash Register Co.; Taft, Stet-tinius & Hollister, William K. Engeman, Lawrence J. Barty, Cincinnati, Ohio, Robert E. Signom, Dayton, Ohio, of counsel.
    Donald G. Logsdon, Charleston, W. Va., for Local 1854, International Brotherhood of Electrical Workers; Stanley M. Hostler, Hostler, Logsdon, Shinaber-ry & McHugh, Charleston, W. Va., on brief.
    Before EDWARDS, McCREE and ENGEL, Circuit Judges.
   PER CURIAM.

We consider an appeal from a judgment entered upon dismissal of plaintiff-appellant’s suit brought under Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a), and Section 706 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g), against National Cash Register Company (NCR), International Brotherhood of Electrical Workers, and Local 1854, International Brotherhood of Electrical Workers. Hazel Parmer alleged in her complaint that she was employed by NCR for more than three years until her discharge on August 19, 1969. During that period, she was a member in good standing of Local 1854. On that date, appellant was ordered to work in a lower job classification to fill in for absent employees whose production duties were deemed essential. She refused, claiming that only women were ordered to work temporarily in these lower job classifications, while men with less seniority were never requested to perform similar duties. She was then discharged, pursuant to the collective bargaining agreement, for insubordination. The Local processed her grievance to a step short of arbitration and carried it no further for want of merit. Appellant alleged that, because of her sex, she was discriminatorily harassed and ultimately discharged by the company in violation of her rights, and that the local and international unions, by failing to properly process her grievance, breached their duty of fair representation.

On appeal, Parmer presents five issues in which she claims error on the part of the district court. First, she contends that she proved by a preponderance of the evidence that the International and Local jointly violated their duty of fair representation in processing the grievance relating to her discharge and that the court erred in not so finding; second, that the preponderance of evidence affirmatively established, contrary to the court’s determination, that she was discharged for discrimination because of sex within the meaning of 42 U.S.C. § 2000e-5(g); third, that the court should have held that the evidence clearly established that appellees had collectively violated Title VII of the Civil Rights Act of 1964; fourth, that the court erred in not granting her costs and attorney’s fees for pursuing her cause of action pursuant to 42 U.S.C. § 2000e-5(k); and, fifth, that the court erred in not permitting all issues against all defendants, as stipulated by the parties, to be presented at the same time for its full consideration.

Rule 52(a) of the Federal Rules of Civil Procedure provides that “[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witness.” This means that a determination of fact will not be overturned unless “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake was committed,” United States v. U. S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); Ash v. Hobart Mfg. Co., 483 F.2d 289 (6th Cir. 1973), viewing the evidence in the light most favorable to the prevailing party, Nathan Const. Co. v. Fenestra, Inc., 409 F.2d 134, 137-138 (8th Cir. 1969), see Strickler v. Pfister Associated Growers, Inc., 319 F.2d 788, 790 (6th Cir. 1963). The trial court found that appellant failed to establish her case by a preponderance of the evidence. Although the evidence in this case would permit the inferences that appellant was discharged because of sex, and that the Local and International breached their duty of fair representation, we cannot conclude that the lower court was clearly erroneous in its findings. Also appellant’s fourth assignment is unavailing since, by virtue of the language of Section 2000e-5(k), costs and attorney’s fees are awarded only to the prevailing party.

The final assignment of error is that, since the claims against both the company and the unions, and the evidence relating to them, were so closely interrelated, failure to consider them at the same time was reversible error. The decision to sever issues is left to the sound discretion of the trial court and its determination should only be reversed for abuse of that discretion, Crummett v. Corbin, 475 F.2d 816, 817 (6th Cir. 1973). Here appellant has failed to show how she was prejudiced by any severance of the issues, and since she failed to object to the procedures of which she complains, we find no error in this respect.

Affirmed.

      . There was a general practice of making temporary job assignments of this nature from appellant’s job classification, mechanical line inspector, which was an experimental classification that was being phased out in the ongoing collective bargaining negotiations.


author: McCREE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Hoyt CUPPS, Jr., Defendant-Appellant.
    No. 74-1127.
    United States Court of Appeals, Sixth Circuit.
    Argued June 6, 1974.
    Decided Sept. 24, 1974.

      Combs & Combs, Pikeville, Ky., for defendant-appellant; Dan Jack Combs, Jack Emory Farley, Pikeville, Ky., on brief.
    Eugene E. Siler, Jr., U. S. Atty., John M. Compton, Asst. U. S. Atty., Lexington, Ky., Kenneth P. Glover, Bureau of Alcohol, Tobacco & Firearms, Cincinnati, Ohio, on brief, for plaintiff-appel-lee.
    Before PECK, McCREE and ENGEL, Circuit Judges.
   McCREE, Circuit Judge.

This appeal requires us to decide whether a police officer, who has stopped a motorist on the highway to make a statutory inspection of his operator’s license, may order the motorist to leave his vehicle after a valid license has been produced, in the absence of probable cause to believe that the motorist has committed an offense. We determine that he may not, agreeably with the Fourth Amendment, and therefore do not find it necessary to reach the other issues argued on appeal.

In a jury trial which concluded on September 6, 1973, Cupps was convicted of possessing a pistol in violation of 18 U.S.C. App. § 1202(a)(1). The events which led to his conviction occurred on April 29, 1971. On that day, Kentucky state police officers Hubert Jarvis and Jerry Combs were driving up the access road to a state police barracks when they observed Cupps’ white Cadillac automobile as it preceded them up the drive. Cupps’ vehicle turned around and immediately went back down the road toward the City of Hazard, and the officers recognized Cupps, who they knew had been convicted 12 years earlier for the possession of untaxed alcoholic beverages, a felony. Combs testified that he “immediately turned and gave chase.” He signaled Cupps to pull to the side of the road and, followed by Jarvis, left the police car and approached Cupps’ automobile. Combs then asked to see Cupps’ driver’s license. Cupps showed him a valid license, and Combs handed the license to Jarvis and ordered Cupps out of the ear. Combs then proceeded to walk around to the other side to scrutinize Cupps’ two passengers more closely. At this point, Combs testified that he spotted a Colt pistol on the front seat of the car, in a place that would have been under Cupps’ leg had Cupps still been sitting in the car. He called Jarvis’ attention to it, ordered the other two men out of the car and searched them “[n]ot physically, but more or less sort of went over them with a search.” Cupps was asked why he had gone to the barracks, and he explained that he had been “roughed” by a fellow in a state police vehicle the preceding night and that his attorney had advised him to go to the barracks to ascertain the license number of the police vehicle. Jarvis replied “that [Cupps] had a poor lawyer, that his lawyer would get him killed,” and seized the gun. A Hazard city police officer who had stopped to offer assistance checked police records and reported that the pistol had not been stolen. Cupps claimed ownership of the gun, and Jarvis gave him a receipt for it and informed him that it would be turned over to federal agents.

Combs testified that his purpose in detaining Cupps was “to check and see first if Mr. Cupps still had his operator’s license, and I wanted to know the individuals that was in the vehicle also.” Jarvis testified that he “wanted to see what Hoyt Cupps’ business was up there.” He testified that Cupps might have gone up to the barracks for the purpose of dynamiting it. He believed Cupps should have stopped at the barracks and stated his business there, and that state police “have a perfect right to stop any vehicle upon any public highway for examination,” without a reason.

Under Kentucky state law, state police are empowered to demand, without other justification, the production of a valid driver’s license of any driver. Upon challenge, the Kentucky Court of Appeals upheld the constitutionality of this statute when a roadblock was set up to stop all drivers indiscriminately, but reserved judgment about selective application of the procedure. Commonwealth v. Mitchell, 355 S.W.2d 686 (Ky.1962).

The Supreme Court has said that the law governing warrantless searches and seizures of automobiles “is something less than a seamless web.” Nevertheless, the Fourth Amendment provides certain basic protections to the motorist. “It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is ‘per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.’ Katz v. United States, 389 U.S. 347, 357 [88 S.Ct. 507, 514, 19 L.Ed.2d 576]; Coolidge v. New Hampshire, 403 U.S. 443, 454-455 [91 S.Ct. 2022, 2031-2032, 29 L.Ed. 2d 564]; Chambers v. Maroney, 399 U.S. 42, 51 [90 S.Ct. 1975, 1981, 26 L.Ed.2d 419].” Schneckloth v. Busta-monte, 412 U.S. 217, 218, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973).

One of these exceptions concerns automobiles. Thus, under Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), an unconsented search of an automobile may be conducted without a warrant and without probable cause for arrest, where the police have probable cause to believe it is carrying contraband. However, “the Carroll doctrine does not declare a field day for the police in searching automobiles. Automobiles or no automobiles, there must be probable cause for the search.” Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), extended the Carroll mobile vehicle exception to the warrant-less seizure of an immobile and unoccupied automobile and examination of its exterior in an impoundment area. Card-well did not, however, eliminate the requirement of probable cause. Id. 589-590, 94 S.Ct. 2464.

The case before us now, however, does not involve the search of an automobile. The evidence is uncontroverted that the gun became visible to the police only after Cupps was ordered out of the automobile. If the police were rightfully in the position from which they observed the weapon, the plain view exception would have been applicable and they could have seized the gun without a warrant. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). The question which is presented, then, is whether, in ordering Cupps out of the car, the police exceeded what we assume, arguendo, was their lawful authority to stop him for the purpose of examining his driver’s license. In the absence of consent, this action was a seizure under the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), Justice Rehnquist stated the rule governing searches of persons in automobiles: “So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose.” 407 U.S. at 146, 92 S.Ct. at 1923 (explaining Terry, supra). The officer must be able to point to “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, supra, at' 21, 88 S.Ct. at 1880. In Adams, the officer acted on the basis of an informant’s tip that the defendant was in possession of narcotics and was armed. Because the intrusion was limited to action necessary for self protection, the Court held that the protective search incident to a reasonable investigatory stop was permissible under Terry, even though defendant was suspected only of a possessory offense. In the case before us, when the police officers required Cupps to leave his car, they did not possess any articulable basis for suspecting criminal behavior on his part or possession of contraband, and they had no reason to fear for their own safety. There is nothing in the record to indicate that even the minimal standards of Terry were met. The officers’ personal knowledge of Cupps’ criminal record was not an irrelevant consideration; “[b]ut to hold [that] that knowledge . . . constituted probable cause would be to hold that anyone with a previous criminal record could be arrested at will.” Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964). Knowledge of appellant’s prior record was insufficient either to establish probable cause or to afford the basis for reasonable suspicion. Jarvis testified that he believed that Cupps intended to dynamite the police barracks when in midday he drove up to the facility in a white Cadillac, but this belief, expressed as a second thought, does not validate the search. Jarvis admitted that he did not look for any dynamite after Cupps was pulled to the side of the road, and the district court made no finding crediting this assertion as justification for the seizure.

In determining that the seizure of Cupps went beyond any exception to the rule proscribing warrantless searches of vehicles, we have assumed, arguendo, that the state police have, as appellee contends, under their authority to inspect licenses, an absolute right to stop any driver. Although it is unnecessary to decide the question in this appeal, we observe that the officers’ claim that this was their reason for stopping appellant is refuted by other evidence. They testified that they followed and stopped Cupps because they wanted to know his business and the identity of his passengers, and not because they wanted to inspect his license. At least one of them believed that citizens could be required to state their business in a public place before being allowed to proceed. Police may not lawfully use their general inspection powers as a pretext for stopping motorists for the purpose of inquiring about their business on the public highways. The pretextuous nature of the stop in this case is demonstrated by the fact that Cupps’ driving to the police barracks was an entirely lawful act. A person acts lawfully when he enters a public place without disturbing the peace to make a record of public property openly displayed. Jarvis and Combs acted beyond their authority when they ordered Cupps out of the automobile, and, therefore, the plain view doctrine never became operative. Unless an officer has a right to be where he is, “plain view alone is never enough to justify the warrantless seizure of evidence.” Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564 (1971) (emphasis in original).

The judgment is reversed, and the case is remanded with instructions to dismiss the indictment, since the inadmissibility of the weapon as evidence precludes a conviction for its unlawful possession.

      . 18 U.S.C.App. § 1202(a) provides, in pertinent part:
      (a) Any person wlio—
      (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony,
      and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.

      . The indictment was issued on March 20, 1972, and on March 9, 1973, the defendant’s motion to suppress the weapon as evidence was overruled. A trial leading to a hung jury ended on March 27, 1973, necessitating this trial, which ended on September 6, 1973.
      Cupps was sentenced to 2 years imprisonment, probated to 3 years and was fined $5,000.

      . Cupps was not called as a witness at the hearing on the motion to suppress, but he testified at trial that the gun had been under an armrest in the center of the seat, and not under his leg. Since we hold that the police were not rightfully in a position ' to see the gun even if it were in plain view, as Combs and Jarvis testified, we think this discrepancy is immaterial.

      . Cupps testified at trial that Combs asked him for his license, ordered him out of the automobile, stood him up against the car, hit him, ordered him to stand straight, searched him, opened the car door, and reached under the armrest to get the gun. Both officers denied having searched Cupps, although they admitted having searched his companions.

      . Cupps was not arrested by the state officers, because it was Kentucky practice to refrain from making arrests on federal charges without a warrant.

      . Ky.Rev.Stat. § 186.510 (1971) provides, in pertinent part:
      The licensee shall have his license in his immediate possession at all times when driving a motor vehicle and shall display it upon demand to ... a member of the Kentucky state police ....
      Kentucky police are not empowered to inspect vehicles for possible violation of the motor Vehicle laws without reasonable cause:
      The commissioner, uniformed officers and troopers of the department of public safety and department of motor transportation and such other officers and employees of the department and any other peace officer . . . may, at any time, upon reasonable cause to believe that a motor vehicle is unsafe or not equipped as required by law, or that its equipment is not in proper adjustment or repair, require the driver of ’ such motor vehicle to stop and submit such vehicle to an inspection ....
      Ky.Rev.Stat. § 189.730(1) (1971) (emphasis added).

      . We do not find it necessary to express an opinion about the validity of the selective stopping of motorists for license inspections. Selective license checks were upheld in United States v. Lepinski, 460 F.2d 234 (10th Cir. 1972); United States v. Turner, 442 F.2d 1146 (8th Cir. 1971). But cf. Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973); Commonwealth v. Hagan, 464 S.W.2d 261, 263 (Ky.1971).

      . Cady v. Dombrowski, 413 U.S. 433, 440, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) (Relinquish J.). See generally Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L. Rev. 349 (1974); Note, Warrantless Searches and Seizures of Automobiles, 87 Harv.L. Rev. 835 (1974).

      . Cady, supra, is inapposite. That case affirmed the power of local police, charged with a “community caretaking” function, to search an immobilized and unoccupied automobile in police custody but stored in an open lot, where there is reason to believe it may contain a dangerous weapon — another exigent circumstance.

      . The holding, furthermore, was expressly confined to searches of automobile exteriors:
      [W]e are not confronted with any issue as to the propriety of a search of a car’s interior. ‘‘Neither Carroll . . . nor other cases in this Court require or suggest that in every conceivable circumstance the search of an auto even witii probable cause may be made without the extra protection for privacy that a warrant affords.” Chambers v. Maroney, 399 U.S. at 50, 90 S.Ct. at 1980.
      Cardwell v. Lewis, 417 U.S. 583, 592, 94 S.Ct. 2464, 2470, 41 L.Ed.2d 325 (1974).

      . Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The burden of proof is on the state to demonstrate voluntariness. Id. 248-249, 93 S.Ct. 2041.

      . The informant tipped the officer that the defendant was in possession of a weapon as well as narcotics, and indicated where on the defendant’s person the officer could expect to find the weapon. The officer walked over to Hie defendant, who sat alone in a parked car, and asked him to open the car door. Instead, the defendant rolled down his window. The officer reached in and removed a weapon from the precise spot on the defendant’s body that the informant had described.

      . United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), decided after the trial of this case, is inapposite. That case established that police have authority to conduct a search incident to any lawful full custody arrest, without regard to .the nature of the offense. In short, Robinson presumes the existence of probable cause for arrest.
      The Court, in Robinson, did not directly address the problem of pretext arrests. However, a search incident to full custody arrest is permissible only if it is (1) lawful; and (2) conducted in accordance with regular departmental procedures. 414 U.S. at 221 n. 1, 94 S.Ct. 467 (1973). Presumably, should an arrest be made solely as a pretext to conduct a search, that search would not be in accordance with regular departmental procedure. Certainly, the lower courts have firmly refused to allow evidence gathered from such searches to be used against the defendant. See, e. g., Hill v. United States, 135 U.S.App.D.C. 233, 418 F.2d 449 (1968); Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir. 1968); Montana v. Tomich, 332 F.2d 987 (9th Cir. 1964); Taglavore v. United States, 291 F.2d 262 (9th Cir. 1961); cf. United States v. Santana, 485 F.2d 365, 367-368 (2d Cir. 1973); United States v. Green, 151 U.S.App.D.C. 35, 465 F.2d 620, 622 n. 5 (1972).


author: BUTZNER, Circuit Judge:

text:
    Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Appellant, v. PRINCE WILLIAM HOSPITAL CORPORATION, Appellee.
    No. 73-2331.
    United States Court of Appeals, Fourth Circuit.
    Argued May 8, 1974.
    Decided Sept. 24, 1974.

      Carin Ann Clauss, Associate Sol., U.S. Dept, of Labor (William J. Kilberg, Sol. of Labor, Sylvia S. Ellison and Helen W. Judd, Attys., U. S. Dept, of Labor, and Marvin Tincher, Regional Atty., on brief), for appellant.
    John K. Pickens, Alexandria, Va., for appellee.
    Before BOREMAN, Senior Circuit Judge, and CRAVEN and BUTZNER, Circuit Judges.
   BUTZNER, Circuit Judge:

The Secretary of Labor appeals from the dismissal of an action against Prince William Hospital to equalize pay of male hospital orderlies and female nurses’ aides in conformity with the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1). The district court noted that the facts were not in dispute and that the controversy centered on the inferences to be drawn from them. It found that although aides and orderlies do the same type of patient care work, the following differences exist between the jobs: the proportions of routine care tasks are not the same; aides do work which orderlies are neither required nor permitted to do; andj most important, orderlies do work, including extra tasks, which aides are neither required nor permitted to do. It concluded, therefore, that the Secretary had failed to establish that the aides and orderlies perform substantially equal work.

We believe that the district court gave undue significance to these differences because it misapprehended the statutory definition of equal work, which embraces the concepts of “skill, effort, and responsibility.” Since it applied an improper legal standard to the relevant facts, we reverse and remand for the entry of judgment for the Secretary. See Piedmont Minerals Co. v. United States, 429 F.2d 560, 562 n. 4 (4th Cir. 1970); Schultz v. Wheaton Glass Co., 421 F.2d 259, 267 (3rd Cir. 1969); 9 Wright & Miller, Federal Practice and Procedure § 2589 (1971).

I

In applying the Congressional mandate of equal pay for equal work on jobs which require equal skill, effort, and responsibility, there are two extremes of interpretation that must be avoided. Congress realized that the majority of job differentiations are made for genuine economic reasons unrelated to sex. It did not authorize the Secretary or the courts to engage in wholesale reevaluation of any employer’s pay structure in order to enforce their own conceptions of economic worth. See Hodgson v. Miller Brewing Co., 457 F.2d 221, 227 (7th Cir. 1972). But if courts defer to overly nice distinctions in job content, employers may evade the Act at will. Hodgson v. Behrens Drug Co., 475 F.2d 1041, 1049 (5th Cir. 1973); Hodgson v. Miller Brewing Co., 457 F.2d 221, 227 (7th Cir. 1972); Hodgson v. Fairmont Supply Co., 454 F.2d 490, 493 (4th Cir. 1972); Shultz v. American Can Co.— Dixie Products, 424 F.2d 356, 360 (8th Cir. 1970); Shultz v. Wheaton Glass Co., 421 F.2d 259, 265 (3d Cir. 1969). The response to this dilemma has been to require the Secretary to prove substantial equality of skill, effort, and responsibility as the jobs are actually performed. See Hodgson v. Fairmont Supply Co., supra; Shultz v. Wheaton Glass Co., supra.

One of the most common grounds for justifying different wages is the assertion that male employees perform extra tasks. These may support a wage differential if they create significant variations in skill, effort, and responsibility between otherwise equal jobs, see, e. g., Hodgson v. Golden Isles Convalescent Homes, Inc., 468 F.2d 1256 (5th Cir. 1972). But the semblance of the valid job classification system may not be allowed to mask the existence of wage discrimination based on sex. The Secretary may therefore show that the greater pay received by the male employees is not related to any extra tasks and thus is not justified by them. Higher pay is not related to extra duties when one or more of the following circumstances exists:

If Some male employees receive higher pay without doing the extra work. E. g., Shultz v. American Can Co.— Dixie Products, 424 F.2d 356 (8th Cir. 1970); Shultz v. Wheaton Glass Co., 421 F.2d 259 (3d Cir. 1970).
If Female employees also perform extra duties of equal skill, effort, and responsibility. E. g., Hodgson v. Fair-mont Supply Co., 454 F.2d 490 (4th Cir. 1971).
|f Qualified female employees are not given the opportunity to do the extra work. E. g., Shultz v. Wheaton Glass Co., 421 F.2d 259 (3d Cir. 1969).
|f The supposed extra duties do not in fact exist. E. g., Hodgson v. Security National Bank, 460 F.2d 57 (8th Cir. 1972).
|f The extra task consumes a minimal amount of time and is of peripheral importance. E. g., Hodgson v. Behrens Drug Co., 475 F.2d 1041 (5th Cir. 1973); Hodgson v. Fairmont Supply Co., 454 F.2d 490 (4th Cir. 1972); Shultz v. American Can Co.—Dixie Products, 424 F.2d 356 (8th Cir. 1970).
If Third persons who do the extra task as their primary job are paid less than the male employees in question. E. g., Shultz v. Wheaton Glass Co., 421 F.2d 259 (3d Cir. 1969).

In all of these cases the basic jobs were substantially equal. Despite claims to the contrary, the extra tasks were found to be makeweights. This left sex-— which in this context refers to the availability of women at lower wages than men — as the one discernible reason for the wage differential. That, however, is precisely the criterion for setting wages that the Act prohibits. See Brennan v. City Stores, Inc., 479 F.2d 235, 241 n. 12 (5th Cir. 1973); Hodgson v. Brookha-ven Hospital, 436 F.2d 719, 726 (5th Cir. 1970).

II

Although a number of courts have applied the Equal Pay Act to hospital and nursing home aides and orderlies, varied employment practices among institutions have prevented the development of an industry-wide standard. The Act must be applied on a case by case basis to factual situations that are, for practical purposes, unique. See Hodgson v. Golden Isles Convalescent Homes, Inc., 468 F.2d 1256, 1258 (5th Cir. 1972). It is therefore necessary to examine in some detail the employment practices of Prince William Hospital, even though the material facts are not in dispute.

Prince William is a 154 bed general hospital in Manassas, Virginia. It contains four medical and surgical units, intensive care and cardiac facilities, an obstetric floor with a nursery, four operating rooms, and an emergency room. Average occupancy is 120 patients, 60% female.

Floor orderlies and nurses’ aides provide routine patient care under the supervision of nurses. The hospital hires only men as orderlies and only women as aides. Their numbers varied during the time covered by this case, ranging between 30-40 aides and 5-10 orderlies. When the case was tried, there were four full-time floor orderlies and thirty-four full-time aides, plus three part-time orderlies and three part-time aides. Full-time employees work five eight-hour shifts per week.

The hospital has maintained a pay differential between the two jobs since 1969. It uses a pay system with thirteen pay grades and five steps within each grade. Grades are assigned to positions and steps within grade show merit or longevity. All nurses’ aides are in grade I, in which the hourly pay ranges from $1.98 to $2.31, and all orderlies are in grade II, in which the hourly pay ranges from $2.08 to $2.43, depending on the step in which the employee has been placed.

Before 1969 aides and orderlies had been paid the same wages, but the hospital had difficulty in hiring orderlies. The hospital’s administrator believed that a higher wage was needed to attract orderlies because of the limited number of men willing to do housekeeping and personal care work. When the orderlies’ wage was raised, they were given the additional duty of catheterizing male patients.

Hiring criteria for aides and orderlies are identical: a tenth grade education, personal cleanliness, and a desire to work with people. Experience, though desirable, is unnecessary. Although the educational level of the aides was somewhat lower, both groups included individuals who had not finished high school. The pay differential follows neither experience nor education. An aide with prior hospital experience starts in grade I step 2 ($2.06), while a completely inexperienced orderly starts in Grade II step 1 ($2.08).

Aides and orderlies are the least skilled persons who care for patients. They participate in a common orientation program, but much of their training is acquired on the job. Each is assigned six to eight patients who require routine care. Whenever possible orderlies are assigned to male patients and aides to female, but the shortage of orderlies requires aides to care for males. Most of the time, aides and orderlies are occupied with tasks related to routine patient care that do not require the skills of a trained nurse.

The principal duties of both, which the hospital’s director of nursing stated were identical, can be divided into four groups: patient care, which includes oral hygiene, back rubs, baths, bed-making, answering calls, giving bed pans, feeding, transporting the patient, and assistance with ambulation; minor treatment, which includes weighing, taking pulse, temperature, or blood pressure, draping and positioning the patient, administering heat pads and ice packs, assistance with dressing changes, and giving enemas; housekeeping, which includes room cleaning, equipment care and cleaning, work area cleaning, and obtaining supplies; and miscellaneous tasks, including answering the phone, running errands, and transportation to the morgue.

The hospital emphasized statistical evidence which shows that aides and orderlies do not perform all of their routine tasks with equal frequency. One of its exhibits, for example, shows that aides write charts, make beds, give baths, rub backs, and fetch bed pans more often than orderlies. Orderlies, on the other hand, bring supplies, run errands, and assist the nurses with their duties more often than aides. These distinctions, however, do not show any difference in skill, effort, or responsibility. All of the routine tasks are relatively simple. None performed more frequently by the orderlies requires the exertion of significantly more skill, effort, or responsibility than those performed more frequently by the aides. As hired, trained, and employed, the orderlies and aides are practical substitutes for one another in the performance of their basic duties. Disproportionate frequency in the performance of the same routine tasks does not make the job unequal. See 29 C.F.R. § 800.123 (1973).

III

The district court also found that aides perform certain duties which orderlies do not. Specifically, it found that some of the aides work in the obstetric department and care for infants in the nursery. Orderlies were not assigned to obstetrics, according to the director of nursing, for two reasons : there were no male patients and their lifting ability was, unneeded there. Aides assigned to obstetrics performed the same duties as those on the medical and surgical wards.

These facts do not show any differences in skill, effort, or responsibility. Unless there is a difference of working conditions involved, which is not contended here, there is no reason why the performance of the same duties in a different location should be a significant difference in the jobs. See 29 C.F.R. § 800.123 (1973); Hodgson v. Miller Brewing Co., 457 F.2d 221 (7th Cir. 1972).

IV

The final — and in some respects the most difficult — aspect of this case pertains to extra duties throughout the hospital that are assigned to the orderlies but not to the aides. These duties are specified in the job description of the orderlies. The district court found that the following extra duties were the most significant: heavy lifting, assisting in the emergency room, performing surgical preps on male patients, providing physical security by dealing with combative or hysterical persons, and cathe-terization of male patients.

Job descriptions and titles, however, are not decisive. Actual job requirements and performance are controlling. See 29 C.F.R. § 800.121 (1973); Hodgson v. Brookhaven General Hospital, 436 F.2d 719, 724 (5th Cir. 1970). This aspect of the case, therefore, turns primarily on the extent to which the aides and orderlies actually perform the extra duties nominally assigned to the orderlies and on the skill, effort, and responsibility involved in those tasks which the orderlies alone perform.

In addition to caring for assigned patients, orderlies are required to answer calls to different parts of the hospital. On these excursions, called floating, they perform either their basic duties or the extra tasks. Floating itself adds nothing to the level of skill or responsibility, for that depends on the work done in the other locations. It might add to the degree of effort involved if the orderlies, in addition, had to perform their full basic workload. This, however, is not the case. According to the director of nursing, an orderly’s routine duties at his assigned station are reassigned to other staff personnel, including the aides, when he is in another part of the hospital.

The job description states that orderlies aré expected to perform total lifting of heavy or helpless patients and to set up traction equipment. The district court, however, found that the same tasks are performed by aides when no orderly is available and that aides assist orderlies in these tasks. Due to the small number of orderlies, there are rarely more than two on duty each shift, and from time to time no orderly is available on some of the shifts. It sometimes takes more than one aide, or mechanical assistance, to replace an orderly, but there is no evidence that any heavy lifting cannot be done without male assistance. The performance of tasks involving physical strength, therefore, though necessary to the operation of the hospital, is not a peculiar aspect of the orderlies’ job. Strength is not a factor in the hiring of orderlies, except in the very general sense that the hospital assumes that a man is usually stronger than a woman. A large, burly woman would not be hired as an orderly, nor would a small, delicate man be hired as an aide. But the converse is not true. One of the orderlies is 5'2" tall and weighs 125 lbs., while one aide is 6'1" and weights 225 lbs. The wage differential therefore can not be justified on the grounds that the hospital is maintaining a reserve of strong men for essential tasks.

Heavy lifting does not add significantly to the effort involved in the orderlies’ job. In the ten working days covered by the hospital’s survey of activities, .the orderlies set up traction only once and lifted or assisted patients of unknown weight 54 times. Aides set up traction and lifted or ambulated patients a proportionate number of times. The extra effort, if any, is not substantial.

The emergency room is staffed by an orderly whose status is not questioned in this action. The hospital’s claim that floor orderlies “assisted” there is supported only by the job description, but a mere job description without evidence of actual performance does not establish the existence of extra duties. Hodgson v. Brookhaven General Hospital, 436 F.2d 719, 724 (5th Cir. 1970). Aides were also called to work in the emergency room. The record proves no more than that both aides and orderlies performed their normal duties with minor variations in a different location.

All surgical preps during the day shifts are done by the operating room staff. On the evening and night shifts, surgical preps on men are done by orderlies, and on women by aides or nurses. Aides also do surgical preps in the obstetric ward. A person performing a prep explains to the patient what is about to be done, shaves the area where the incision will be made, and washes it with antiseptic soap. The skill, effort, and responsibility involved are identical regardless of the patient’s sex.

Physical security, as an extra duty, has two components. Because of his size and sex, the presence of a male orderly is claimed to reassure the other staff and exert a calming and deterrent effect on potentially violent patients or intruders. Because of his superior strength, he is given the primary responsibility for restraining actually violent persons. According to the hospital, he therefore possesses a special skill and is required to exert extra effort.

The hospital’s contention, however, is contradicted by the record. Although in theory the orderly deals with disturbances, in practice the nearest staff member is expected to do so until assistance comes. Aides are expected to restrain violent or disoriented patients themselves when possible. They also deal with intruders. The hospital’s tabulation of orderly and aide activity shows aides spending a larger proportion of their time than orderlies in applying restraining devices to patients. There is no evidence that orderlies do more actual physical restraint than aides.

No doubt the physical presence of a man in the house does have a comforting effect on the staff. It is doubtful, though, that this is a significant component of the orderly job. Unlike hospitals in which providing physical security has been found significant, Prince William Hospital does not handle psychiatric, alcoholic, criminal, or other potentially dangerous patients. There is no evidence that episodes caused by violent or confused patients are so frequent ox-dangerous that orderlies are necessary for the safety of the staff. Security guards are called to deal with violent episodes even when ordex-lies are available. Moreover, the ability to deal with confused or violent patients, according to the director of nursing, is as much a function of attitude and experience as of size and strength. If the orderly’s superior strength is an extra skill, it is a peripheral part of -his employment.

The hospital places great emphasis on the fact that orderlies insert Foley catheters in male patients. It contends that the task is a highly skilled and responsible procedure, requiring 30 to 45 minutes of an orderly’s time.

A Foley catheter is a sterile tube which is inserted in the patient’s urethra to drain the bladder. Orderlies catheterize male patents with unobstructed urinary tracts. If any difficulty is foreseen or experienced a physician catheterizes the patient. Nurses catheterize female- patients. They are competent to catheterize males, but prefer not to do so for reasons of modesty. Since the hospital has enough nurses to catheterize women, aides are not assigned this duty. The orderly’s job therefore does call for the exercise of skill and responsibility which is not required of the aides.

However, no more than one or two routine catheterizations are usually performed each week. When no floor orderly is present, other qualified male pei’sonnel are available to do them. The hospital looks for no special skill in this regard from its prospective orderlies but concedes that “any reasonably dextrous person can learn male catheterization on the job.” Ordei-lies were assigned this duty only when the hospital decided that a higher wage rate was needed to attract men for routine care work, and new orderlies who have not yet learned to catheterize are nevex-theless paid at the higher rate.

Like any other exti-a duty, catheterization must be evaluated as part of the entire job. . In Hodgson v. Fair-mont Supply Co., 454 F.2d 490, 496 (4th Cir. 1972), we pointed out that when jobs were substantially equal, a minimal amount of extra skill, effort, or l-esponsibility cannot justify wage diffex-entials. Infrequent performance of catheterizations, unaccompanied by other extra skills and responsibilities, has never been held to support a pay differential between aides and orderlies. The orderlies in Hodgson v. William and Mary Nursing Hotel, 20 W.H. Cases 10 (M.D.Fla.1971), for example, a case in which the district court found catheterization to be a significant extra duty, also moved heavy equipment, administered suction therapy, and did other demanding work not done by aides. Catheterizations, moreover, were frequent and difficult in that geriatric nursing home. Similarly, catheterization was only one element of the orderlies’ duties, which differed fundamentally from the aides’, in Hodgson v. Good Shepherd Hospital, 327 F.Supp. 143 (E.D.Tex.1971). In contrast, catheterization which only consumed a minimal amount of time was considered to be an insubstantial difference in Shultz v. Brookhaven General Hospital, 305 F.Supp. 424 (E.D.Tex. 1969), aff’d in part and remanded in part sub nom. Hodgson v. Brookhaven General Hospital, 436 F.2d 719 (5th Cir. 1970), on remand 20 W.H. Cases 54 (E.D.Tex.1971), aff’d, 470 F.2d 729 (5th Cir. 1972). We conclude, therefore, that the orderlies’ pay differential cannot be justified on the basis of the occasional extra work involved in catheterizing male patients.

In sum, the work performed by aides and orderlies is not identical. But, as we have previously held, application of the Equal Pay Act is not restricted to identical work. Hodgson v. Fairmont Supply Co., 454 F.2d 490, 493. The basic routine tasks of the aides and orderlies are equal. The variations that the district court found, when tested by the Act’s standard of “equal skill, effort, and responsibility,” do not affect the substantial equality of their overall work.

The judgment of the district court is reversed, and this case is remanded for entry of judgment for the Secretary.

      . 29 U.S.C. § 206(d) provides:
      “Xo employer having employees subject to any provisions of this section shall discriminate . . . between employees on the basis of sex by paying wages to employees ... at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. . . .”

      . 29 U.S.C. § 206(d)(1). Congress patterned tbe Equal Pay Act on the principles of job classification by which many employers set wage rates. Under these principles each job is rated in terms of the skill, effort, and responsibility required to do it, and the working conditions of tbe place where it is performed, See Corning Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974).

      . This figure includes two orderlies permanently assigned to the operating rooms and one assigned to the emergency room. Since they are not involved in routine patient care, the case does not concern them,

      . The parties have stipulated that the hospital is covered by § 206(d) and that $23,445.-23 in back wages are payable if it violated the Act.

      . While 29 U.S.C. § 206(d) does not give the Secretary of Labor authority to promulgate binding regulations, his interpretation of the statute is entitled to great deference when it does not contradict the intent of Congress. Griggs v. Duke Power Co., 401 U.S. 424, 434, 91 S.Ct. 849, 28 L.Ed.2d 158 (1970).

      . lu contrast, Hodgson v. Good Shepherd Hospital, 327 F.Supp. 143, 146 (E.D.Tex. 1971), on which the hospital relies, involved orderlies without assigned patients. The court characterized their work as “continuous, demanding, and tiring, ... so rush[ed] as to prevent rest or scheduled coffee breaks or lunch periods,” which was not true of the aides’ job.

      . The reverse was true in Hodgson v. Golden Isles Convalescent Homes, Inc., 468 F.2d 1256 (5th Cir. 1972); Hodgson v. Good Shepherd Hospital, 327 F.Supp. 143 (E.D.Tex.1971) ; and Hodgson v. William and Mary Nursing Hotel, 20 W.H.Oases 10 (M.D.Fla.1972), in all of which orderlies were required to transport and set up heavy, bulky oxygen equipment which was unsafe or impossible for the aides to move. In addition, the aides in 'William and Mary were forbidden to move patients by themselves. 20 W.H.Oases at 23.

      . E. g., Hodgson v. Owensboro-Daviess County Hospital, 21 W.H.Cases 250 (W.D.Ky. 1972) (primary care of violent patients, alcoholics, and addicts); Hodgson v. Good Shepherd Hospital, 327 F.Supp. 143 (E.D.Tex.1971) (violent alcoholics, addicts, and psychiatric patients in lockup cells); Hodgson v. William and Mary Nursing Hotel, 20 W.H.Cases 10 (M.D.Fla.1971) (geriatric facility with many senile patients).


author: PER CURIAM:

text:
    UNITED STATES of America, Appellant, v. Nelson E. “Buck” SANFORD et al., Appellees.
    No. 73-3016.
    United States Court of Appeals, Ninth Circuit.
    Sept. 24, 1974.
    Keigh L. Burrowes, Asst. U. S. Atty. (argued), Billings, Mont., for appellant.
    Ralph S. Wright, of Sandall, Moses & Cavan (argued), Billings, Mont., for ap-pellees.
    Before HAMLEY, MERRILL and SNEED, Circuit Judges.
   OPINION

PER CURIAM:

The Government appeals from dismissal of a seven count indictment against Nelson Sanford and his sons, Rodney, Lon and Rick Sanford. We find that this court lacks jurisdiction to hear this appeal and therefore dismiss it.

The indictment alleged the following facts. The Sanfords are engaged in the business of outfitting and guiding big game hunts in Montana. Rodney Sanford telephoned Paul Bagalio at Baga-lio’s home in Vermont on December 22, 1971. During this conversation, Rodney offered his services, as a guide for late season elk and Rocky Mountain bighorn sheep hunting in Montana. A second conversation to the same effect was held on December 29, at which time the hunts at issue in this case were arranged. Subsequently, Bagalio telephoned Rodney and obtained permission to bring along Bruce Parker, who Baga-lio described as “a friend and business associate.”

The Sanfords were unaware that both Bagalio and Parker were acting in undercover capacities for the Bureau of Sport Fisheries and Wildlife and were authorized by federal officials to do whatever was necessary to complete their investigations.

Bagalio and Parker arrived in Montana early in January, 1972. On January 6, they were transported by Lon, Rick and Rodney Sanford from Bridger, Montana to Greybull, Wyoming, where they secured lodging for the night. The next morning, the party of five boarded a helicopter and were transported to the Crow Indian Reservation in Montana. At this time, they penetrated the boundaries of the Reservation in search of elk. Parker, at the direction of Rodney Sanford, shot at and knocked down a bull elk; the coup de grace was administered by Rodney Sanford. Shortly thereafter, Rick Sanford returned by helicopter and transported the party and the cape of the elk from the Reservation back to Greybull, Wyoming. The cape was then carried by Lon, Rick and Rodney Sanford to Bridger, Montana. Bagalio and Parker apparently joined the Sanfords in Montana on January 10.

A second hunt was planned but first postponed because of inclement weather. The expedition finally got under way on February 2, 1972. At this time, Baga-lio, Parker and Rodney Sanford again penetrated the exterior boundaries of the Crow Indian Reservation. At the direction of Rodney Sanford, Bagalio shot and killed a second elk. Rodney caped the elk, and the party, leaving the carcass behind, left the Reservation.

Within the next few days, Rodney Sanford guided Bagalio and Parker on a hunt for Rocky Mountain bighorn sheep. Rodney led the party into Yellowstone National Park, where he pointed out a sheep for Bagalio to shoot. Bagalio shot and killed the sheep. Rodney removed the cape, head and horns from the sheep, leaving the carcass where it fell.

A seven count indictment was returned against the Sanfords. In Count I, Nelson, Rodney, Lon and Rick were charged under 18 U.S.C. §§ 2, 43, and 371 with conspiracy to transport in interstate commerce animals killed in violation of R.C.M. § 26-307(3) and 16 U. S.C. § 26. Count II charged Lon and Rodney Sanford with the January 8 illegal entry on the Crow Indian Reservation, 18 U.S.C. § 1165, and further charged Nelson and Rick Sanford with aiding and abetting the commission of the offense, 18 U.S.C. § 2. Count III charged Rodney Sanford for a similar offense with respect to the February 2 entry onto the Crow Indian Reservation; Nelson, Rick and Lon Sanford were charged with aiding and abetting this offense. Count IV charged Rodney Sanford with illegal hunting within Yellowstone National Park, 16 U.S.C. § 26. The remaining three counts concerned alleged violations of the Lacey Act, 18 U.S.C. § 43. In Count V, Rodney, Lon and Rick were charged with interstate transportation of the elk killed on January 8; the elk was said to have been killed in violation of federal, 18 U.S.C. § 1165, and state, R.C.M. § 26-307(3), laws. Count VI made the same charge against Rodney Sanford with respect to the elk killed on February 2. Finally, Count VII made an identical charge against Nelson Sanford for the transportation of parts of the bodies of the two dead elk from Billings, Montana, to Seattle, Washington; Rodney, Lon and Rick Sanford were charged with aiding and abetting the commission of this offense.

Trial of this case began on February 5, 1973. A mistrial resulted by reason of a hung jury. Prior to retrial the district judge granted the defendants’ motion to dismiss the indictment. The Government appeals from the grant of this motion.

Our jurisdiction in this case must be found, if at all, in 18 U.S.C. § 3731, as amended, which grants to the Government the right to appeal the dismissal of an indictment “except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.”

In United States v. Hill, 473 F.2d 759, 761 (9th Cir. 1972), this Court quoted with approval the general rule as to when a defendant has been put in jeopardy appearing in McCarthy v. Zerbst, 85 F.2d 640, 642 (10th Cir., 1936) which is as follows:

The general rule is that a person is not in jeopardy until he has been arraigned on a valid indictment or information, has pleaded, and a jury has been impaneled and sworn; and where a case is tried to a court without a jury, jeopardy begins after accused has been indicted and arraigned, has pleaded and the court has begun to hear evidence.

In Hill we then applied this rule to the facts of that case and held that when the defendant had been arraigned on a valid indictment to which he had pleaded and the court had heard evidence going to the general issue whether the defendant was guilty of the offense charged, a finding by the court that the defendant was not guilty of the offense charged constituted jeopardy and deprived us of jurisdiction to hear the appeal by the Government.

Hill is controlling here. The dismissal of the Sanfords’ indictment followed a mistrial at which all relevant evidence was heard. In his Opinion and Order pf August 31, 1973, the district judge found as a matter of law that the Government, through its authorized agents, had given its consent to the acts of the defendants and that their conduct was not criminal. The Sanfords have been once put in jeopardy and this appeal must therefore be dismissed.

The presence of a mistrial in this case does not distinguish it from Hill. Even though a mistrial alone does not constitute jeopardy, the action of the district judge was based upon evidence heard at the trial going to the general issue of guilt and his order dismissing the indictment amounted to a finding of not guilty as a matter of law. As we made clear in Hill, existence of jeopardy does not rest on whether the district judge’s ruling was correct as a matter of law. On this we here express no opinion. We merely hold that under the circumstances of this case the defendants have been acquitted of all charges and that we have no jurisdiction to hear the Government’s appeal.

Appeal dismissed.

      . The Opinion and Order provides the following summary of relevant testimony :
      At the trial, a Government witness, Robert C. Freeman, who was the United States Game Management Agent in charge of the State of Montana, testified that lie authorized the shooting of the animals in question. Furthermore, Freeman testified that a similar authorization was made by the appropriate official in the State of Montana Fish and Game Department. When asked if Mr. Parker and Paul Baga-lio were authorized to do  . . . whatever was necessary to complete this investigation . . .,’ Freeman responded: ‘They were given authority by our Bureau to do what was necessary to complete the investigation, yes.’