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https://www.courtlistener.com/api/rest/v3/opinions/259132/

311 F.2d 496 WATKINS PRODUCTS, INC., formerly known as The J. R. Watkins Company, Plaintiff-Appellee,v.SUNWAY FRUIT PRODUCTS, INC., Defendant-Appellant. No. 13736. United States Court of Appeals Seventh Circuit. December 14, 1962. Rehearing Denied February 4, 1963. W. Thomas Hofstetter, Robert M. Newbury, Chicago, Ill. (Woodson, Pattishall & Garner, Chicago, Ill., of counsel), for defendant-appellant. Theodore W. Miller, Chicago, Ill., for appellee. Before DUFFY, CASTLE and SWYGERT, Circuit Judges. DUFFY, Circuit Judge. 1 Plaintiff's complaint herein asked the District Court to reverse the Trademark Trial and Appeal Board of the Patent Office, which canceled a trademark registration of plaintiff on the Supplemental Register. Defendant filed a counterclaim charging plaintiff, among other things, with trademark infringement and unfair competition. The District Court reversed the decision of the Patent Office Trademark Trial and Appeal Board, ordered plaintiff's registration restored to the Supplemental Register, and dismissed the counterclaim. 2 Defendant is a small family-owned corporation. Its predecessor, doing business as Sunway Fruit Products, in July 1944, adopted and began using the trademark FRESHIE for a beverage base for various flavored soft drinks. On December 31, 1946, defendant acquired all rights to the trademark FRESHIE, and the appurtenant good will. Defendant and its predecessor have made continuous use of FRESHIE for its beverage base throughout the United States and Canada. The sale of FRESHIE beverage base represented 95% of the defendant's business. 3 The greater part of defendant's sales of its FRESHIE beverage base is by means of house-to-house sales. It is also sold as a premium product for special promotion programs. Commensurate with its comparatively small size, defendant has spent substantial sums in advertising and promoting its FRESHIE beverage base. Defendant has conducted some radio and newspaper advertising, including radio advertising in Minnesota where plaintiff's principal place of business was located at the time that plaintiff selected its trademark FRESH-AID for its beverage base product. 4 Plaintiff is a Minnesota corporation. It engages in the manufacture and sale of a variety of products for home and personal use. The bulk of plaintiff's sales is through house-to-house route sales. 5 For many years prior to 1957, plaintiff marketed a beverage base under its "Watkins" name. In 1957, plaintiff decided to adopt a new name for its beverage base. Plaintiff selected the marks FRESH-AID and FRESH-ADE. It did so in spite of the fact a trademark search report disclosed defendant's prior registration of the trademark FRESHIE. The front label on plaintiff's product, in addition to the trademark FRESH-AID, shows the name Watkins in substantially smaller letters and a different script. The back label bears only the trademark FRESH-AID underneath which appears the list of ingredients and directions, being twenty-one lines of printed matter. At the extreme bottom in very small type appears "Watkins Products, Inc." and four of its business addresses. 6 Plaintiff's sale of its FRESH-AID base constitutes about 4% of its business. This is double the volume of sales prior to its use of the trademark FRESH-AID. 7 On December 9, 1957, plaintiff applied to register FRESH-AID and FRESH-ADE as trademarks in the United States Patent Office. Registration upon the Principal Register was refused, but on January 20, 1959 and on February 3, 1959, plaintiff succeeded in registering its marks on the Supplemental Register. 8 When defendant learned from the Official Gazette of the Patent Office of the publication of the trademarks FRESH-AID and FRESH-ADE, it notified plaintiff that it objected to plaintiff's use of these marks and demanded that plaintiff cease such use. Plaintiff refused. On April 13, 1959, defendant filed its petition to cancel plaintiff's registrations. In the cancellation proceeding, both plaintiff and defendant offered testimony. 9 On October 12, 1960, the Trademark Trial and Appeal Board unanimously held that the concurrent use of plaintiff's FRESH-AID or FRESH-ADE and defendant's trademark FRESHIE is likely to cause purchaser confusion. The Board ordered that plaintiff's registrations of FRESH-AID and FRESH-ADE be canceled (127 U.S.P.Q. 171). 10 The Board stated, p. 172: "It is apparent that the goods of the parties here involved are both essentially imitation beverage bases for making soft drinks and are of such a nature that if marketed under the same or similar marks they might readily be assumed to emanate from a single source. While respondent's `FRESH-AID' and `FRESH-ADE' may differ slightly from petitioner's `FRESHIE' in the suffix portions thereof, the marks are otherwise quite close in sound, appearance, and suggestive connotation, and hence, purchaser confusion would be quite likely to occur." 11 It should be kept in mind that the instant case did not arise in the District Court. This was a Patent Office cancellation proceeding. The role of the District Court is different in this kind of proceeding than in a case where a suit involving the validity of a trademark is originally commenced in the District Court. 12 The case of Esso Standard Oil Company v. Sun Oil Company, 97 U.S. App.D.C. 154, 229 F.2d 37, points out the distinction. That suit arose in a Patent Office proceeding in which the registration of the trademark SUNVIS for lubricating oils was opposed. The Patent Office held the concurrent use of the two marks being considered were likely to cause confusion and registration was refused. The applicant brought suit in the District Court to review the Patent Office decision. The District Court there, as here, disagreed with the Patent Office and substituted its own findings for the crucial fact of confusing similarity. The Court of Appeals reversed saying, 229 F.2d at page 40: "* * * In patent and trademark cases under Rev.Stat. § 4915 a finding of fact by the Patent Office as to priority of invention or confusing similarity of marks must be accepted as controlling, unless the contrary is established by evidence 'which, in character and amount carries thorough conviction.' Morgan v. Daniels, 1894, 153 U.S. 120, 125, 14 S.Ct. 772, 38 L.Ed. 657 (citing additional cases). As we pointed out in Abbot v. Coe, 1939, 71 App.D.C. 195, 197, 109 F.2d 449, 451, a mere preponderance of the evidence is not sufficient with regard to invention; the Patent Office finding must be accepted if it is `consistent with the evidence,' the Patent Office being an expert body preeminently qualified to determine questions of this kind." 13 In Yale Electric Corporation v. Robertson, 2 Cir., 26 F.2d 972, the Court, speaking through Judge Learned Hand, said, page 973: "The District Judge took more testimony, and also reached the conclusion that there was likelihood of confusion. As the case came up, he was, and we are, required to accept the findings of the Patent Office on such an issue of fact, unless the evidence to the contrary is altogether convincing * * * for the new evidence was not of a kind to change the result." 14 We have held the likelihood of confusion is a question of fact. G. D. Searle & Co. v. Chas. Pfizer & Co., Inc., 7 Cir., 231 F.2d 316, 318; Albert Dickinson Co. v. Mellos Peanut Co. of Illinois, 7 Cir., 179 F.2d 265, 269-270. 15 We have also held a trademark is confusingly similar to a prior trademark if it is similar in sound, appearance, or suggestive connotation. Independent Nail & Packing Co., Inc. v. Stronghold Screw Products, Inc., 7 Cir., 205 F.2d 921, 924; Northam Warren Corporation v. Universal Cosmetic Co., 7 Cir., 18 F.2d 774, 775. 16 The cases above cited from this Court are also authority for the rule that evidence of actual confusion is not necessary to a finding of likelihood of confusion. 17 We have stressed on numerous occasions that one entering a field already occupied by another, has a duty to select a trademark that will avoid confusion. Thus, in Northam Warren Corporation v. Universal Cosmetic Co., supra, we said, at page 775: "One entering a field of endeavor already occupied by another should, in the selection of a trade-name or trade-mark, keep far enough away to avoid all possible confusion." 18 The District Court held that FRESHIE is descriptive of defendant's beverage base product and, therefore, not entitled to protection. Apparently the Court overlooked the distinction between suggestive and descriptive trademarks. In Independent Nail & Packing Co., Inc. v. Stronghold Screw Products, Inc., 205 F.2d 921, 925, we said: "However, a trademark may consist of a word or words suggestive of the character of the goods or the properties which the owner of the mark wishes the public to attribute to them, such as `Holeproof', Holeproof Hosiery Co. v. Wallach Bros., C.C., 172 F. 859, and be valid." 19 Plaintiff relies on such cases as Skinner Mfg. Co. v. Kellogg Sales Co., 8 Cir., 143 F.2d 895; and Kellogg Company v. National Biscuit Company, 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73. In the Skinner case, the term "Raisin Bran" was held descriptive of cereal made with raisins and bran. In the National Biscuit Company case, the term "Shredded Wheat" was held descriptive of a cereal made of wheat which had been shredded. We agree with these decisions, but they are not authority for holding FRESHIE to be descriptive of a beverage base any more than they were authority for holding "Stronghold" to be descriptive of a nail. 20 In order to support its contention that confusion is not likely, plaintiff relies on the holding of the District Court that FRESHIE had not acquired a secondary meaning. This argument ignores the fact that a suggestive mark such as FRESHIE, as opposed to a wholly descriptive mark, is entitled to protection without secondary meaning being proved. As was said in Huntington Laboratories, Inc. v. Onyx Oil & Chemical Co. (1948), 165 F.2d 454, 35 C.C.P.A. 819: "* * * [I]t has never been deemed necessary in order to establish the validity of a suggestive mark to show that it had a secondary meaning." The judgment of the District Court is reversed and this cause is remanded with instructions to dismiss the complaint and to enjoin plaintiff from its wrongful use of FRESH-AID. 21 Under the circumstances of this case, an accounting will not be ordered. 22 Reversed.

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08-23-2011

https://www.courtlistener.com/api/rest/v3/opinions/259133/

311 F.2d 500 UNITED STATES of America, Plaintiff-Appellee,v.John COLE, Defendant-Appellant. No. 13765. United States Court of Appeals Seventh Circuit. January 4, 1963. Rehearing Denied February 1, 1963. R. Eugene Pincham, Charles B. Evins and Glenn C. Fowlkes, Chicago, Ill., for appellant John Cole. James P. O'Brien, U. S. Atty., John Powers Crowley, Asst. U. S. Atty., Chicago, Ill., for appellee; John Peter Lulinski, Asst. U. S. Atty., of counsel. Before HASTINGS, Chief Judge, SWYGERT, Circuit Judge, and GRUBB, District Judge. SWYGERT, Circuit Judge. 1 After a jury-waived trial in the District Court, defendant, John R. Cole, was found guilty of violating the federal narcotics laws, and was sentenced to a term of imprisonment. He had been charged in a one-count indictment with having received, concealed, and facilitated the transportation and concealment of heroin in violation of 21 U.S.C. § 174, as amended by the Narcotic Control Act of 1956. 2 Before the trial defendant moved to suppress as evidence the contraband heroin taken from him when he was arrested. The motion was denied by the trial judge. The same evidence adduced on the motion to suppress was admitted at the trial. 3 The sole question on this appeal is whether Agent Valentine of the Federal Bureau of Narcotics had probable cause to arrest defendant without a warrant and, coincident to such arrest, search his person for narcotics. 4 Defendant argues that his arrest was unlawful because the arresting officer, Agent Valentine, was without any personal knowledge of the identity of defendant, having never seen him prior to the arrest. The facts follow. 5 On July 1, 1961, an informant told Agent Valentine that he had been getting narcotics from defendant Cole for several months. He also gave Valentine Cole's address — 7947 South Ellis, Chicago. He said it was his practice to call Cole at his home and later meet him at Mable Love's house at 61st and Dorchester, Chicago, for delivery. On July 26, the informant, in the presence of Valentine called a certain telephone number. A man's voice answered "yes" when the informant said "Cole"? Thereupon, the person who identified himself as Cole arranged to sell an ounce of heroin to the informant and to deliver it to him later that day at "Mable's house." The telephone conversation was overheard by Agent Valentine. Valentine then drove to the designated rendezvous. During this trip he was in radio contact with other narcotic agents from whom he learned that a man had left the Cole residence on Ellis Avenue and was driving toward 61st and Dorchester. A car drove up and parked behind Agent Valentine's car on 61st Street. One of the other agents who had followed defendant from his residence to this spot, drove up to where Agent Valentine was sitting in his car and said, "He's pulling behind you." Defendant got out of his car and started walking toward a nearby residence. Valentine got out of his car and followed defendant. The agent testified: 6 "At that time I said `Cole.' He stopped and turned around and I held up the Federal Narcotics Badge and I said `Federal Narcotics Agents, John.' He turned around and saw Agent Meyer walking towards him from the other direction and he said, `All right, you have got me. The stuff is in my pocket. You don't have to rough me up.'" 7 A search of Cole's person produced a brown paper bag in which there were ten smaller bags containing heroin. 8 The evidence in the record furnishes substantial support for concluding that the arrest and subsequent search of defendant were pursuant to information given to Agent Valentine by a government informant, buttressed by his own personal knowledge and observations and by reason of information supplied to him by other agents of the Federal Bureau of Narcotics. After considering the evidence, as well as the briefs and arguments of the parties, we conclude that both the arrest1 and search were lawful and the trial judge's denial of the motion to suppress the evidence was correct. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); United States v. Smith, 2 Cir., 308 F.2d 657 (1962); Rodgers v. United States, 9 Cir., 267 F.2d 79 (1959); United States v. Walker, 7 Cir., 246 F.2d 519 (1957). 9 The judgment is affirmed. Notes: 1 26 U.S.C. § 7607, as amended, reads in pertinent part: "The * * * agents, of the Bureau of Narcotics of the Department of the Treasury * * *, may — "(2) make arrests without warrant for violations of any law of the United States relating to narcotic drugs * * * or marihuana * * * where the violation is committed in the presence of the person making the arrest or where such person has reasonable grounds to believe that the person to be arrested has committed or is committing such violation."

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08-23-2011

https://www.courtlistener.com/api/rest/v3/opinions/259134/

311 F.2d 502 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.The HOWE SCALE COMPANY, Respondent. No. 13825. United States Court of Appeals Seventh Circuit. January 2, 1963. Marcel Mallet-Prevost, Asst. Gen. Counsel, Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Melvin J. Welles, Janet Kohn, Attys., National Labor Relations Board, for petitioner. Mervin N. Bachman, Chicago, Ill., for respondent. 1 Before CASTLE and SWYGERT, Circuit Judges, and GRUBB, District Judge. 2 GRUBB, District Judge. 3 This case is before the court on petition for enforcement of the order of the National Labor Relations Board against respondent. 4 The Board found that respondent withdrew recognition from and refused to bargain with the Union (District No. 8, International Association of Machinists) and discharged Shop Steward Edward J. Spicer in order to discourage membership in the Union and undermine its majority status in violation of Sections 8(a) (5), (3), and (1) of the National Labor Relations. Act. The Board also found a violation of Section 8(a) (1) in respondent's promises of increased benefits if its employees abandoned the Union and bargained directly with the respondent. 5 In August 1956, the Union was certified as exclusive bargaining representative of respondent's Chicago service employees, and annual written contracts were negotiated thereafter. In 1958, respondent suggested that a "more effective relationship" would be possible if dealings were "informal," i. e., without a written contract. The parties then agreed orally to carry forward the provisions of their last written contract. 6 In the spring of 1959, Shop Steward Spicer and employee Brown were given merit increases. Employee Karpinski asked District Manager Haskins why he had not received a raise. Karpinski's testimony, credited by the trial examiner, was that Haskins suggested that he might be able to get the employees more money if they did not have the Union as their bargaining agent. There was also credited testimony of Shop Steward Spicer that in the summer of 1959, Personnel Director Zitzmann sought to persuade Spicer of the desirability of having the men deal directly with respondent rather than through the Union. Zitzmann told Spicer that under such an arrangement, respondent would be in a better position to grant wage increases and better working conditions. 7 In June 1960, the Union sent its customary letter notifying respondent of its intention to reopen the contract and requested early negotiations. Respondent failed to acknowledge this letter. About July 27, 1960, having heard nothing from respondent, Union representative Britt and Spicer called upon Haskins and presented their contract proposals. Haskins told them that he no longer had authority to negotiate; that the proposals should be sent to the home office at Rutland, Vermont. The proposals of the Shop Committee were then sent to Personnel Director Zitzmann at Rutland, Vermont. Zitzmann called Haskins in Chicago to "find out what was behind this" and "who was the Shop Committee." Haskins replied it was Spicer. 8 During this same conversation, Haskins told Zitzmann of a "threat" that Spicer had made to an employee, Thomas H. Clemens, to the effect that he (Spicer) could "make it pretty rough" if Clemens did not join the Union. Zitzmann later notified Willie Jensen, Service Manager and Spicer's immediate supervisor, that Spicer was to be discharged at the close of work the next day. Zitzmann cautioned Jensen "not to go into details, to give any reasons or to discuss any reasons." Zitzmann's alleged reason for this caution was that Jensen was not familiar with labor relations, and he didn't want Jensen to be drawn into a long discussion in which his words might be misinterpreted or misunderstood. 9 On the same day that Spicer was discharged, Zitzmann sent a letter to Union representative Britt after Britt had written to Zitzmann a second time enclosing proposals for a new contract. In this letter Zitzmann formally refused to meet with the Union "unless you are certified," because the company "For some time * * * has had reason to believe" that the Union did not represent a majority of the employees. 10 On Monday, August 15, 1960, Spicer and Britt, who had not yet received Zitzmann's August 12th letter withdrawing recognition, asked Haskins why Spicer had been fired. Haskins said he knew nothing about it and suggested they call Zitzmann in Vermont. Britt called Zitzmann who refused to discuss the matter, and reiterated his unwillingness to talk with the Union representatives unless the Union obtained a current certification, and proposed that the Union petition for a Board election. Britt replied that an election was unnecessary since the Union already represented a majority, and that any effort to decertify the Union should come from the employees rather than from the Union. 11 With regard to the defenses raised by respondent, it is pointed out that Section 8(c) of the Act makes the use of opinions, views, or arguments inadmissible as evidence of unfair labor practices if they contain no threat of reprisal or force or promise of benefit. Respondent submits that the expressions by Haskins and Zitzmann that individual bargaining would be better for its Chicago servicemen come within the scope of Section 8(c). This contention is not tenable since there is substantial evidence in the record that Haskins and Zitzmann did more than express their opinions. Karpinski testified that Haskins suggested he could get the employees more money if they did not have the Union as their bargaining agent. In addition, Spicer testified that Zitzmann tried to impress on him that if the men would deal directly with the company, it would be in a better position to grant wage increases and better working conditions. Such promises of benefits in exchange for abandoning the Union constitute a violation of Section 8(a) (1) of the Act. Medo Photo Supply Corp. v. N. L. R. B., 321 U.S. 678, 684-685, 64 S.Ct. 830, 88 L.Ed. 1007 (1944); N. L. R. B. v. Taitel, 261 F.2d 1, 3-4 (7th Cir. 1958), cert. denied 359 U.S. 944, 79 S.Ct. 725, 3 L.Ed. 2d 677; N. L. R. B. v. Popeil Brothers, Inc., 216 F.2d 66, 67-68 (7th Cir. 1954) 12 With regard to the finding that respondent violated Sections 8(a) (5) and (1) of the Act by its refusal to recognize and bargain collectively with the Union, respondent's defense is that it had a good faith doubt as to the Union's continued majority status. Such a doubt is a proper defense but only where the doubt has a rational basis in fact. N. L. R. B. v. John S. Swift Company, Inc., 302 F.2d 342, 346 (7th Cir. 1962). 13 The evidence established that there were six employees in the appropriate bargaining unit as of August 12, 1960, the date of respondent's final refusal to bargain with the Union. As of that date, respondent was withholding Union dues pursuant to voluntary checkoff authorizations signed by four of the six employees. Respondent discontinued the dues checkoff as of September, and the four employees continued to tender their dues directly to the Union. If Spicer is excluded as having been properly discharged, a majority of the employees in the bargaining unit (three out of five) were Union members on August 12, 1960, and at the time of the hearing. Therefore, the Union in fact at all times represented a majority of the employees in the appropriate unit. Respondent nevertheless claims a "good-faith" doubt existed as to the Union's continued majority status for the following reasons: 14 1. Zitzmann had heard nothing from the Union since the fall of 1959. 15 2. When a wage increase was given in November 1959, the Union did not "object" or "thank" respondent for it. 16 3. Haskins had reported in the spring of 1960 that employees Brown and Spicer had expressed disinterest in the Union. 17 The trial examiner and the Board rejected these reasons as not being explanatory of respondent's failure to recognize the Union. It was pointed out that during this period the parties were operating under the terms of a contract concluded in the fall of 1959, so it is irrelevant if respondent had heard nothing from the Union until June of 1960 when the Union sought to reopen that contract. 18 The fact that respondent continued to check off Union dues of four of the six employees, pursuant to their voluntary authorization, is a further indication that respondent had no reasonable doubt of the Union's majority status. Cf. N. L. R. B. v. Auto Ventshade, Inc., 276 F.2d 303, 307 (5th Cir. 1960). 19 As to the alleged report that employees Brown and Spicer had lost their interest in the Union, there was no testimony to corroborate this assertion. Brown was not called upon to confirm Zitzmann's testimony, and Spicer specifically denied the statements attributed to him indicating dissatisfaction with the Union. As will be later brought out, Spicer tried to get Clemens to join the Union. Respondent, while expressing doubt because of an indicated belief that Spicer was one of the two who had become disenchanted with the Union, discharged him on the alleged basis that he threatened a co-employee in order to get the co-employee to join the Union. 20 Finally, respondent's failure to answer Britt's letter of June 25, 1960, requesting the opening of negotiations is not consistent with good-faith doubt. No response was made until August 12th after Britt had written a second time, and respondent's answer then was to refuse to negotiate and simultaneously to discharge Spicer. As the trial examiner stated, "Good-faith doubt would have dictated immediate response stating candidly the Respondent's position." 21 There is also a finding that respondent discharged Shop Steward Spicer in implementation of its unlawful purpose of undermining the Union's prestige, influence, and majority status in violation of Sections 8(a) (3) and (1) of the Act. The trial examiner and the Board recognized that unquestionably an employee may be discharged for threatening another employee. The examiner concluded that the alleged incident with employee Clemens was seized upon as a "pretext," when in fact the reason for the discharge of Spicer was to undermine the Union. This court has often held that even though a valid ground for discharge exists, there is nevertheless an unfair labor practice if in fact the reason for the discharge was Union activities on the part of the employee. Sunshine Biscuits, Inc. v. N. L. R. B., 274 F.2d 738, 742 (7th Cir. 1960); N. L. R. B. v. Deena Products Co., 195 F.2d 330, 334-335 (7th Cir. 1952), cert. denied 344 U.S. 827, 73 S.Ct. 29, 97 L.Ed. 644. There is substantial evidence supporting the finding that the true reason for Spicer's discharge was his Union activities summarized as follows: 22 Spicer was the Union's representative in the shop and was an employee of eight years' standing whose services had never been criticized. Spicer was discharged without explanation on the same day that Zitzmann refused to meet with the Union unless and until it obtained a new certification from the Board. 23 It was Spicer to whom Haskins proposed that the men "drop the Union" in return for increased benefits, but Spicer rejected that offer, suggesting instead that the parties pursue the negotiations already sought by the Union. 24 In addition, by relieving local officials of any authority in the matter, respondent made it difficult for Spicer or anyone on his behalf to discuss his discharge except by long distance telephone or letter to Zitzmann in Vermont. The presentation of such alternatives is not reflective of good faith. 25 Zitzmann conducted no investigation about the threat by Spicer to employee Clemens. This threat is virtually admitted and would be ground for Spicer's discharge. See N. L. R. B. v. Kaye, 272 F.2d 112 (7th Cir. 1959). In that case the Board found that an employee had been discharged for engaging in union activities, whereas the employer claimed he was discharged for criticizing other workers for turning out too much work. The court reversed the Board's finding that the employer had no knowledge of this criticism, stating that this finding was based on "a dubious inference, in face of direct and positive evidence to the contrary." Respondent contends that the finding of a discriminatory discharge is based on an inference which cannot be upheld in the face of direct testimony that Spicer had threatened Clemens. Respondent overlooks the important fact that the trial examiner must look at the totality of the circumstances. In the Kaye case, supra, the court found no proof of any anti-union bias or activity by the respondent, whereas here the refusal to recognize or bargain with the Union was found to go hand in hand with Spicer's discharge. 26 It appears that the examiner and the Board could reasonably conclude that the discharge of Spicer was motivated by a desire to undermine the Union in violation of Sections 8(a) (3) and (1) of the Act. We cannot find that the Board's findings are without substantial support in the evidence. 27 The Board's petition for a decree enforcing its order is hereby Granted.

01-03-2023

08-23-2011

https://www.courtlistener.com/api/rest/v3/opinions/259139/

311 F.2d 519 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.TRANSPORT CLEARINGS, INC., Respondent. No. 19423. United States Court of Appeals Fifth Circuit. Dec. 27, 1962, Rehearing Denied Jan. 21, 1963. Stuart Rothman, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Peter M. Giesey, Melvin Pollack, Attys., N.L.R.B., Washington, D.C., for petitioner. George E. Seay, Malone, Seay & Gwinn, Dallas, Tex., for respondent. Before BROWN and BELL, Circuit Judges and SIMPSON, District Judge. BELL, Circuit Judge. 1 The Labor Board seeks enforcement of an order1 finding that the employer violated 8(a)(3) and (1) of the Act by discharging two employees because of union activity and 8(a)(1) of the Act by interrogating employees concerning union activity and by threatening them with economic reprisal for union activity. 29 U.S.C.A. 158(a)(1) and (3).2 2 Respondent was engaged in the business of purchasing and collecting freight bills of motor carriers. At the time in question, October 1960, some twenty eight clerical employees were employed by Respondent and these were supervised by a general manager and an office manager. The evidence on which the Board could have relied was that Brewer, one of the employees whose discharge is here involved, spoke to an union organizer and arranged for a meeting of interested employees off premises on Friday, October 14. Lindsey, the other employee discharged, attended the meeting along with Brewer and several other employees. Lindsey was contacted prior to the union meeting but during the same day by the office manager regarding union activity. Lindsey advised him that he and Brewer were equally guilty in organizing for the union. The office manager, in response to an inquiry from Lindsey, state that he did not think the general manager would fire anyone because of union activity. 3 Lindsey was summoned to the office of the general manager and summarily discharged, effective immediately, on Monday, October 17 on the ground that his work had not been satisfactory. He was told that a more experienced collector was being employed in his place. This proved not to be the fact as the replacement employee had no previous experience and he was not interviewed until two days after the discharge. Lindsey had been hired on July 12 during the same year and had received a regular pay raise in mid-September. He had been complimented by the office manager on his September work. There was evidence showing that he had decreased the delinquency rate on the accounts assigned to him from August to September. He had a run in with the general manager during September concerning a matter unrelated to the discharge which resulted in the general manager apologizing to him and refusing to let him resign. On the other hand, there was evidence that Lindsey was doing poor work, had been previously warned, was discharged purely for this reason, and that the general manager who discharged him did not know of his union activity. The office manager who did know of his union activity was present at the time he was discharged but testified that his union activity had nothing to do with his being discharged. The Board ascribed the knowledge of the office manager of his union activity to the general manager. 4 There was testimony that on the same day the general manager asked another employee whether he had been to the union meeting and whether two other named employees had attended the meeting. The employee admitted that he had been there and signed an union card but did not identify any other employees who attended the meeting. The office manager later told this employee that the employer might close if the employees went union. The office manager told another employee that there would be twenty-odd women walking the streets looking for jobs if the union came in because the doors would be closed tight, and to another he said, 'If that union comes in, these doors will be closed; there will be a lot of you girls looking for a job.' 5 The replacement for Lindsey was hired on Wednesday, October 19 and reported to the general manager that Brewer confronted him during his first two days of work in an effort to get him to join an union. The general manager then instructed the office manager to have Brewer stop his union activity during working hours. On Monday, October 24, Brewer asked the secretary to the general manager to show him a petition against the union which he understood had been circulated. It was shown to him but he refused to sign it. Later in the day Brewer was called into the office of the general manager and questioned regarding his reasons for favoring the union. During the course of this conversation Brewer was reminded that he had received seven raises since being employed in August 1959 but was cautioned not to discuss his raises with other employees. On the same day but after office hours, Brewer, while conversing with the secretary to the general manager and two other employees, stated to them that he had been in the office of the general manager and had been reminded of his seven raises during the past year. This conversation was reported to the general manager the next morning by his secretary. Brewer was called that afternoon to the office of the general manager and discharged in the presence of the office manager and with the secretary taking down the conversation in shorthand. His discharge was also effective immediately. In fact, both of the discharges here involved were in the midst of a pay period. 6 The order of the Board followed. In addition to finding the violations, Respondent was required to cease and desist from the unfair labor practices found, and from in any manner infringing upon the rights of its employees under the Act. The two discharged employees were to be reinstated with back pay. 7 According to Respondent the Board erred in holding that Brewer and Lindsey were discharged for union activity. It is contended that the holding is contrary to and unsupported by the substantial evidence on the record considered as a whole, and that both were discharged for cause. This assignment of error is couched in the background of a strenuous assertion that the trial examiner was not an impartial factfinder but a zealous prosecutor, prejudiced and biased against Respondent. Respondent also complains of that part of the order instructing it to cease and desist telling employees that they were putting their jobs in jeopardy by engaging in union activity. 8 We will consider first the charge against the trial examiner. This court in the leading case of N.L.R.B. v. Phelps, 5 Cir., 1943, 136 F.2d 562, speaking through Judge Hutcheson, carefully considered the necessity for impartiality on the part of a trial examiner. The principle was said to be that a respondent in a hearing before a trial examiner under the National Labor Relations Act is entitled to a fair trial by an impartial non-partisan trier of the facts. This is, it was said: 9 '* * * the essence of the adjudicatory process as well when the judging is done in an administrative proceeding by an administrative functionary as when it is done in a court by a judge. Indeed, if there is any difference, the rigidity of the requirement that the trier be impartial and unconcerned in the result applies more strictly to an administrative adjudication where many of the safeguards which have been thrown around court proceedings have, in the interest of expedition and a supposed administrative efficiency been relaxed. Nor will the fact that an examination of the record shows that there was evidence which would support the judgment, at all save a trial from the charge of unfairness, for when the fault of bias and prejudice in a judge first rears its ugly head, its effect remains throughout the whole proceeding. Once partiality appears, and particularly when, though challenged, it is unrelieved against, it taints and vitiates all of the proceedings, and no judgment based upon them may stand.' 10 And in Sardis Luggage Company v. National Labor Relations Board, 5 Cir., 1956, 234 F.2d 190, we noted that the Act requires that the rules of evidence be followed in Board hearings only 'so far as practicable.' 29 U.S.C.A. 160(b). Departure from the rules of evidence without more is no proof of bias on the part of the hearing officer.3 11 A careful study of the original record has demonstrated conclusively that Respondent was not deprived of its fundamental right to a fair trial in a fair tribunal. Counsel for Respondent was vigorous in his conduct of the defense and on occasion clashed with the examiner, even to an extent that would perhaps not have been tolerated in a court. The examiner conducted himself throughout the hearing with proverbial patience and we think that his conduct, including that in connection with the rulings specifically asserted, comported with the high standards that a litigant has a right to expect under the Labor Act and under the Administrative Procedure Act. 29 U.S.C.A. 160, 5 U.S.C.A. 1006. The examiner neither prosecuted nor assisted the general counsel in the prosecution, nor did he, as sometimes happens in administrative and judicial hearings, take over the trial from counsel. We think it sufficient to say that it did not: 12 '* * * appear * * * that the proceedings were characterized by fell expedition or determined purpose to reach a predetermined end, or were attended with suppressive and exclusionary rulings and actions, designed to prevent and preventing a fair hearing.' Continental Box Company v. N.L.R.B., 5 Cir., 1940, 113 F.2d 93. 13 Substantial evidence on the record considered as a whole supported the finding that Respondent interfered with, restrained and coerced its employees in violation of 8(a)(1) of the Act. The facts heretofore set out make this clear, and the examiner was authorized to reach this conclusion by crediting the witness who gave the underlying testimony. This conduct falls within the teachings of N.L.R.B. v. Dan River Mills, 5 Cir., 1960, 274 F.2d 381; N.L.R.B. v. Hudson Pulp and Paper Corporation, 5 Cir., 1960, 273 F.2d 660; and N.L.R.B. v. Nabors, 5 Cir., 1952, 196 F.2d 272, cert. den., 344 U.S. 865, 73 S.Ct. 106, 97 L.Ed. 671. 14 The finding that employees Lindsey and Brewer were discharged because of their union activity thereby resulting in a violation of 8(a)(3) and (1) of the Act by Respondent is also amply supported. The resolution of conflicting testimony concerning the discharge of these employees, and the drawing of inferences from facts established on the hearing falls within the province of the Board, and we are not to pass on the credibility of the witnesses or reweigh the evidence. Our function is to take the record as a whole and enforce if we find substantial evidence to support the findings of the Board. N.L.R.B. v. Ferguson, 5 Cir., 1958, 257 F.2d 88; N.L.R.B. v. Fox Manufacturing Company, 5 Cir., 1956, 238 F.2d 211; Universal Camera v. N.L.R.B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; and N.L.R.B. v. Walton Manufacturing Co., 1962, 369 U.S. 404, 82 S.Ct. 853, 7 L.Ed.2d 829. And it was proper to ascribe the knowledge of the office manager of the union activity of Lindsey to the general manager on the facts adduced. N.L.R.B. v. Abbott Worsted Mills, 1 Cir., 1942, 127 F.2d 438, 440 and Northern Virginia Steel Corporation v. N.L.R.B., 4 Cir., 1962, 300 F.2d 168, 173. 15 It is true, of course, that 'Management can (still) discharge for good cause, or bad cause, or no cause at all. It has, as the master of its own business affairs, complete freedom with but one specific, definite qualification: it may not discharge when the real motivating purpose is to do that which Section 8(a) (3) forbids.' N.L.R.B. v. McGahey, 5 Cir., 1956, 233 F.2d 406. According to the Board the employer in this instance ran four square into this qualification, and the evidence is such that the finding must stand. 16 The last assignment of error regards that portion of the order instructing the employer to cease 'Telling employees that they are putting all jobs in jeopardy by engaging in union activity.' This is to be distinguished from that portion of the order directing the employer to cease 'Threatening employees that the operation would close and the girls would be walking the streets if the union came in.' The portion of the order complained of is set out as paragraph 1(d). It is based on evidence to the effect that the general manager stated that respondent, a cooperative non-profit organization representing freight motor carrier members, might be forced out of business if the motor carriers had to pay the company the same amount to operate as it would cost them to collect their own bills. We think the Board was in error in including this requirement is the order. Its broad terms constitute a proscription of economic prophecies allowable under 8(c) of the Act, 29 U.S.C.A. 158(c). It has been well stated by the Third Circuit in the case of N.L.R.B. v. Morris Fishman and Sons, Inc., 3 Cir., 1960, 278 F.2d 792 that a threat to close a plant if it becomes unionized constitutes an unfair labor practice, while a prediction that a plant will be forced to close if an union contract is signed is protected by 8(c). This particular statement of the general manager falls in the protected class. It is an example of a prophecy by an employer of dire results for employees that may flow solely from an union's policy or practices rather than from employer action, and is privileged under the free speech section of the Act. Cf. Chicopee Manufacturing Company, 1953, 107 NLRB No. 31, 33 LRRM 1064. 17 The order will be enforced with the exception of paragraph 1(d) thereof. 1 Reported at 133 NLRB No. 82 2 Both the examiner and the Board found that a third employee had not been discriminatorily discharged 3 See also N.L.R.B. v. National Paper Company, 5 Cir., 1954, 216 F.2d 859 and Annotation, 93 L.Ed. 1607. On the problem of bias being found to exist in view of the creditability findings all being in favor of the general counsel, with the result that the findings are not accorded their usual weight, see National Labor Relations Board v. Miami Coca Cola Bottling Company, 5 Cir., 1955, 222 F.2d 341. The rule in this regard was set out in National Labor Relations Board v. Robbins Tire and Rubber Company, 5 Cir., 1947, 161 F.2d 798, and followed in N.L.R.B. v. Pittsburgh Steamship Company, 1949, 337 U.S. 656, 69 S.Ct. 1283, 93 L.Ed. 1602, where the Supreme Court said: 'The gist of the matter has been put well by the Court of Appeals for the Fifth Circuit, speaking through Judge Hutcheson, in granting enforcement of NLRB order: 'The fact alone * * * of which Respondent makes so much, that Examiner and Board uniformly credited the Board's witnesses and as uniformly discredited those of the Respondent, though the Board's witnesses were few and the Respondent's witnesses were many, would not furnish a basis for a finding by us that such a bias or partiality existed and therefore the hearings were unfair. Unless the credited evidence * * * carries its own death wound, that is, is incredible and therefore, cannot in law be credited, and the discredited evidence * * * carries its own irrefutable truth, that is, is of such nature that it cannot in law be discredited, we cannot determine that to credit the one and discredit the other is an evidence of bias." And see N.L.R.B. v. The Newton Company, 5 Cir., 1956, 236 F.2d 438, 444.

01-03-2023

08-23-2011

https://www.courtlistener.com/api/rest/v3/opinions/259163/

311 F.2d 604 John W. PATTNO, Administrator of the Estate of Gene A.Lewis, deceased, Appellant,v.UNITED STATES of America, Appellee. No. 6899. United States Court of Appeals Tenth Circuit. Nov. 19, 1962, Rehearing Denied Dec. 17, 1962. Charles E. Graves, Cheyenne, Wyo., and William E. Shade, Denver, Colo. (Roncalio & Graves, Cheyenne, Wyo., on the brief), for appellant. Kathryn H. Baldwin, Attorney, Department of Justice (Joseph D. Guilfoyle, Acting Asst. Atty. Gen., Robert N. Chaffin, U.S. Atty., and John G. Laughlin, Attorney, Department of Justice, on the brief), for appellee. Before LEWIS, BREITENSTEIN and SETH, Circuit Judges. BREITENSTEIN, Circuit Judge. 1 A mid-air collision between a Wyoming Air National Guard F-86 jet airplane and a private plane resulted in the death of Lewis, the pilot of the private plane. The appelant-plaintiff, as administrator of the estate of Lewis, sued the United States under the Federal Tort Claims Act. The trial court denied recovery on the ground that the accident was not caused by the negligence of an employee of the United States while acting within the scope of his empolyment. 2 Captain Meckem and Lieutenant Anderson, both officers of the Wyoming Air National Guard, were on a training flight in which Meckem was evaluating the flying proficiency of Anderson. The flight was not under the command responsibility of the United States Air Force but was authorized by the Operations Section of the Wyoming Air National Guard. Prior to the collision, Meckem was flying the No. 2 position in a close formation, the lead plane of which was piloted by Anderson. Anderson saw the private plane in time to take evasive action but Meckem, whose vision was obstructed by Anderson's plane, hit the private plane on the side at a 70-degree angle. Meckem parachuted to safety and received superficial injuries. 3 The Federal Tort Claims Act1 imposes liability on the United States for death caused by the negligent act of a Federal employee while acting within the scope of his employment 'under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.' Before reaching the issue of negligence we must determine whether either Meckem or Anderson was an employee of the United States and, if so, whether the accident occurred within the scope of such Federal employment. In examining these issues we must decide it state or Federal law controls. 4 The Supreme Court has said in Williams v. United Stares, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761, that the law of the place of the accident controls the doctrine of respondeat superior. Following this decision, the Tenth Circuit held in United States v. Mraz, 10 Cir., 255 F.2d 115, 116, that state law governs in determination of scope of employment. 5 The fact of employment is in a different category. The States may not decide for the United States who are and who are not Federal employees because the existence of Federal employment is a Federal question to be answered by application of Federal Law.2 In the case at bar both the Federal Constitution and statutes bear on the fact of employment. The supremacy of Federal law requires the determination of Federal employment by Federal law. 6 Art. 1, 8, cl. 16, of the United States Constitution reserves to the states: 7 '* * * the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; * * *.' 8 Under this constitutional provision and the implementing statutes, Air National Guard officers are appointed by the State3 and the training of the National Guard is effected by the State.4 As officers of the Wyoming Air National Guard, not in active Federal service, Meckem and Anderson were State, rather than Federal employees,5 and this status is not changed by the fact that they were paid by the United States,6 or the fact that at the time of the accident they were flying planes owned by the United States and loaned to the Wyoming Air National Guard.7 9 We must give further consideration to Meckem because he was both a National Guard officer and a civilian flying training instructor, sometimes referred to as an air technician. The basic authority for his status as such comes from the so-called 'cartaker' statute.8 10 Recent appropriation bills have authorized the use of funds appropriated under this statute not only for payment to persons entrusted with the care of property owned by the Air National Guard but also to air technicians who render necessary services.9 As an air technician or flying training instructor, Meckem was appointed under Air National Guard Regulation 40-02 which relates to 'Civilian Personnel' and which provides in its Paragraph 2 that: 11 'Air National Guard civilian personnel are considered to be employees of the State, * * * (21 Comptroller General Decision 305).' 12 Paragraph 7b(3)(a) of the Regulation places upon the State the responsibility to 'employ, assign, promote, demote, and separate Air National Guard civilian personnel.' The statute10 empowers the Secretary of the Air Force to fix the pay of caretakers and to 'designate the person to employ them.' This authority was delegated to the States and in Wyoming was lodged in the Adjutant General. Meckem was employed as a flying training instructor by the Base Detachment Commander of the Wyoming Air National Guard under authority delegated by the State Adjutant General. 13 United States v. Holly, 10 Cir., 192 F.2d 221, and several cases following it,11 hold that one employed under the caretaker statute is an employee of the United States. Thus, Meckem had two masters. As a commissioned officer in the Wyoming Air National Guard he was an employee of Wyoming. As a flying training instructor or air technician or caretaker, he was an employee of the United States. The inquiry narrows to the question of the particular employment in which he was engaged at the time of the accident. 14 Meckem was on a flight authorized, commanded, and controlled by the Wyoming Air National Guard and not by the United States or any agency thereof. The purpose of the flight was to evaluate the flying skill of Anderson. An evaluation flight is part of a training program because without evaluation the sufficiency and adequacy of the training cannot be determined. To say that the educational process ends just before the final examination is to disregard realities. 15 Scope of employment, as distinguished from fact of employment, is determined by state law. Blessing v. Pittman, 70 Wyo. 416, 251 P.2d 243,12 lays down two tests for the application of the doctrine of respondeat superior. These are (1) who had control over the servant and (2) in whose business was the servant engaged at the time of the accident. Wyoming had control over Meckem for the crucial flight, as has been shown, and the business of the flight was the training of a Guard member, a function which both the Federal Constitution and statutes place on Wyoming. 16 Appellant urges that the increase in Federal interest in National Guard activites, the comprehensive regulation of National Guard members by reason of the need for Federal recognition to obtain Federal funds, and the possible activation of units and individuals lessens the impact of traditional reasoning that the training of National Guard units is under the control of the States by reason of the mentioned constitutional and statutory provisions.13 Support for this argument comes from congressional recognition that national defense places a heavy responsibility on the National Guard and that the use of contemporary war machines has increased the danger to persons and property within training areas. While legislative history indicates that all legislation regarding the National Guard has been enacted with the intent and understanding that the Guard was primarily the responsibility of the States until called into active duty,14 Congress has amended Title 32 to provide a limited administrative adjustment and settlement of claims arising by reason of torts committed by National Guard personnel.15 17 This recognition of moral obligation for torts of those acting under dual Federal and State authority does not invite the conclusion that all National Guardsmen are in the service of the United States for the purposes of suit under the Federal Tort Claims Act. While the interest of the United States is served by the existence of trained reserve forces, that interest is shared by each of the States and the Constitution specifically commits the responsibility of training the National Guard to them. 18 The facts that Meckem was controlled by the State and on the business of the State distinguish this case from United States v. Holly, supra, because they establish that under Wyoming law respondeat superior does not operate to impose liability on the United States. In Holly, the Government agreed that the accident occurred within the scope of employment and the only question was the identity of the employer. 19 An interpretation of the record before us to permit the conclusion that either flying instructor Meckem or trainee Anderson was an employee of the United States would so weaken the pertinent constitutional provision as to once more corrupt the distinctions, clearly set forth therein, between the powers and duties of the two governments. The decision that neither Meckem nor Anderson, at the time of the accident, was acting as an employee of the United States disposes of the case and does away with any need to discuss the question of negligence. 20 Affirmed. 1 28 U.S.C. 1346(b), 2401(b), 2671-2680 2 Courtney v. United States, 2 Cir., 230 F.2d 112, 114, 57 A.L.R.2d 1444; contra, Hopson v. United States, D.C.W.D.Ark., 136 F.Supp. 804, 812 3 32 U.S.C. 101(6)(B); 10 U.S.C. 8379 4 32 U.S.C. 501(b) 5 Williams v. United States, 10 Cir., 189 F.2d 607, 608 6 Cromelin v. United States, 5 Cir., 177 F.2d 275, 277, certiorari denied 339 U.S. 944, 70 S.Ct. 790, 94 L.Ed. 1359 7 Pearl v. United States, 10 Cir., 230 F.2d 243, 247 8 32 U.S.C. 709, which in material portion provides: '(a) Under such regulations as the Secretary of the Air Force may prescribe, funds allotted by him for the Air National Guard may be spent for the compensation of competent persons to care for material, armament, and equipment of the Air National Guard. A caretaker employed under this subsection may also perform clerical duties incidental to his employment and other duties that do not interfere with the performance of his duties as caretaker.' 9 Pub.L. 85-117, Aug. 2, 1957, title V, 71 Stat. 322; Pub.L. 84-639, Act of July 2, 1956, ch. 488, title V, 70 Stat. 466 10 32 U.S.C. 709(f) 11 United States v. Wendt, 9 Cir., 242 F.2d 854; Courtney v. United States, supra, note 2; Elmo v. United States 5 Cir., 197 F.2d 230; United States v. Duncan, 5 Cir., 197 F.2d 233; State of Maryland for Use of Levine v. United States, D.C.W.D.Pa., 200 F.Supp. 475; cf. Watt v. United States, D.C.E.D.Ark., 123 F.Supp. 906 12 See also Fox Park Timber Co. v. Baker, 53 Wyo. 467, 84 P.2d 736, 120 A.L.R. 1020, and Stockwell v. Morris, 46 Wyo. 1, 22 P.2d 189. The Tenth Circuit followed the rule stated by Blessing v. Pittman in Leonard v. United States 10 Cir., 235 F.2d 330, certiorari granted and case remanded 352 U.S. 996, 77 S.Ct. 555, 1 L.Ed.2d 540 13 See United States ex rel. Gillett v. Dern, 64 App.D.C. 81, 74 F.2d 485, 487 14 2 U.S.Cong. & Adm.News '60, p. 3492 15 32 U.S.C. 715

01-03-2023

08-23-2011

https://www.courtlistener.com/api/rest/v3/opinions/259169/

311 F.2d 628 George PEKAR, Joseph Rozell, Edward Patterson, John Audia,Melvin Gower and Robert Schmantowsky, Individually and inBehalf of All Other Employees of Goebel Brewing Company WhoWorked at Plant No. 3 of Said Company Prior to the ClosingThereof, Plaintiffs-Appellees,v.LOCAL UNION NO. 181 OF the INTERNATIONAL UNION OF UNITEDBREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS OFAMERICA, AFL-CIO and International Union of United Brewery,Flour, Cereal, Soft Drink and Distillery Workers of America,AFL-CIO, Defendants-Appellants. No. 14818. United States Court of Appeals Sixth Circuit. Dec. 31, 1962. 1 James C. Paradise, Cincinnati, Ohio and Winston L. Livingston, Detroit, Mich., for appellants. 2 Dee Edwards, Detroit, Mich., for appellees. 3 Before McALLISTER, Circuit Judge, and BOYD and TAYLOR, District judges. 4 ROBERT L. TAYLOR, District Judge. 5 Pekar, Rozell, Patterson, Audia, Gower and Schmantowsky, individually and in behalf of all other employees of Goebel Brewing Company who worked at Plant No. 3 of said Company prior to its closing, filed an action under the Declaratory Judgments Act, 28 U.S.C. 2201, and the National Labor Relatinos Act, 29 U.S.C. 157, against Local Unions No. 3, 38 and 181 of the International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO and the International Union of the brewery industry,1 praying the Court to enforce their seniority rights under a collective bargaining agreement entered into between the brewers of Detroit, including Goebels and the Locals of the International Union of brewery workers. 6 Plaintiffs also sought a declaratory judgment determining their rights under the collective bargaining agreement and an injunction against the Unions from refusing to process their grievances with respect to their layoff, or in the alternative a restraining order against the Unions from failing and neglecting to negotiate another agreement with Goebel which will fairly reflect all the rights and claims of all employees to the remaining available jobs at Goebel Brewing Company. 7 The District Judge issued a declaratory judgment and ordered an injunction as prayed for in the complaint and this appeal followed. 8 The Company is not a party to the action. 9 Local No. 3 represents the brewing department employees and Local No. 38 represents the delivery and freight department employees. The action was dismissed as to Locals 3 and 38 and an order entered against Local Union 181 and appellant International Union only. 10 Local 181 represents the bottling department employees and checkers. 11 The Company operated two plants. Prior to 1948, none of the breweries had more than one plant in Detroit. The Company in 1948 purchased a plant of Koppitch-Melchor Company which was a party to the collective bargaining agreement. This plant became known as Goebel's Plant No. 3 and the Company's other Detroit plant as Plant No. 1. They are about a mile and a half apart. 12 A number of Plant 1 bottling department employees were transferred to Plant 3 in 1948 and 1949. Those employees of Plant 1 who were transferred to Plant 3 were credited with their service with the Company and the former Koppitch-Melchor employees were also credited with their service with that Company for seniority purposes with Goebel. Seniority lists were posted and maintained at Plants 1 and 3 from the date of acquisition of Plant 3 by the Company. 13 The May 20, 1949 agreement was the first collective bargaining agreement negotiated following the acquisition of Plant 3. It provided that no permanent transfers might be made from one plant to another except on a voluntary basis. The provision applied only to Goebel as no other brewery operated two plants in Detroit. An additional provision required that a list of employees be arranged in the order of their seniority and that such list be posted in a conspicuous place on the premises of the employer and that, after the expiration of 90 days, no changes be made in the senority list except those necessitated by termination of employment or the addition of employees. Separate lists were always posted in each of the plants without objection, although the contract used 'list' in the singular. 14 The 1949 agreement provided further for strict adherence to seniority in laying off and rehiring, preference of shifts, division of overtime equally among regular employees, and choice of vacation periods in the respective departaments based on length of service with the employer. These provisions were always applied separately in each plant. 15 In December, 1949, negotiatinos between the Detroit breweries and the Local Unions were carried on concerning a supplemental agreement affecting Local 3, but the Company refused to sign the agreement without assurance that its two plants would continue to be treated separately for seniority purposes. 16 The Company's Labor Relations Counsel wrote a letter dated December 8, 1949 confirming the understanding of the parties that the contract required the Company to maintain two distinct seniority lists, one for each plant; and that the Company had no right to make transfers from one plant to another except to fill vacancies and no vacancy would be deemed to exist at one plant at any time that men with seniority at such plant were not working, and in making transfers from one plant to the other, the men selected would be taken from the bottom of the seniroity list from which transfers were being made. This letter was read to the membership of the Local Union at the following membership meeting. 17 Seniority and other provisions of the 1949 contract were carried through succeeding contracts without material change, including the 1958 contract, except for the change that was made when the checkers were organized in October, 1950. The Union requested a single company-wide seniority system for the checkers. 18 An agreement was executed on October 23, 1950 setting out the condition of the Company's recognition of the Local as representative of the checkers. Section 4 thereof provided for one seniorty for both plants covering all checkers, but stated that it should in no way be used as an argument that one seniority list should be established for both plants to cover other employees represented by the bottlers, brewers, or drivers. The supplemental agreement of October 23, 1950 was reconfirmed and supplemented in May, 1951. 19 The October 22, 1956 contract provided again for one seniority list for both plants covering checkers. The provision as to checkers was incorporated in the 1958 agreement and was the only specific reference therein to a company-wide seniority list. As a result, the checkers moved from one plant to another. 20 Only five bottlers moved from one plant to another between 1949 and 1955. These bottlers were moved to Plant 3 in June, 1954. Before moving, they were advised by the Company that there was no transfer of seniority between the two plants and each signed an acknowledgment of his loss of seniority in Plant 1 and went to the foot of the Plant 3 seniority list. No bottler in one plant ever bumped an employee with lesser seniority in the other plant out of a job, or attempted to do so. Plant 3 was shut down for a period of eighteen months commencing in December, 1955, but none of the Plant 3 employees bumped any of the employees in Plant 1 who had less seniority. 21 Prior to the December, 1955 shutdown, seniority rights of the Plant 3 employees had been discussed at Union meetings. The minutes of the Local Executive Board and shop stewards, including representatives from Plants 1 and 3, held on October 23, 1955, show that it was noted that only the checkers seniority list was company-wide. The minutes were read and accepted by the Local Union on November 6, 1955. 22 At a regular Executive Board meeting of the Local on December 5, 1955, certain of the Plant 3 representatives discussed with the Board the manner of handling the problems that would arise when Plant 3 was closed. The minutes of the meeting disclosed that it was the consensus of the Plant 3 employees that when employees were hired at Plant 1, the job should be filled by starting from the top of the seniority list of Plant 3. 23 At the January 3, 1956 meeting of the Local Executive Board, after Plant 3 had closed, a question was raised concerning the application of the contract provision granting superseniority to officers and shop stewards. The minutes show that a motion was adopted that an officer who was a Plant 3 employee should be permitted to exercise his top seniority as an officer of the Union and that he be the first sent to the next job opening at Plant 1; but that because of the dual seniority list, he would be placed at the bottom of the seniority list at Plant 1. The minutes were read and accepted at the January 8, 1956 membership meeting. 24 On January 20, 1956, in resposne to a request from the business agent of the Local, the General Counsel of the International gave a legal opinion concerning the seniorty rights of the Plant 3 bottlers. He stated that Plant 3 employees could not assert their seniority in Plant 1 if Plant 3 should be permanently closed. He suggested that arbitration be considered. The Local Executive Board decided that arbitration was not required inasmuch as the Company and the Union were in agreement that the contract provided for plant-wide seniority rather than company-wide seniority. 25 On February 2, 1956, the General Counsel of the International gave another opinion reaffirming his January 20, 1956 view that seniority rights were plant-wide rather than company-wide. This opinion was read at a regular membership meeting on February 5, 1956, in which the membership concurred. 26 On February 26, 1956, John Audia communicated with the International on behalf of the Plant 3 bottlers who had previously worked in Plant 1, claiming the right to exercise their seniority in Plant 1, and requested consideration of their problem. No rights were claimed for Plant 3 employees who had not previously worked in Plant 1. The President of the International treated the communication as an appeal and wrote the Local Union. The President concurred in the opinion of the Internaitonal General Counsel that seniority of the employees was plant-wide and not company-wide. Many of the Plant 3 bottlers who were laid off as a result of the December 15, 1955 shutdown obtained employment in Plant 1, but went to the bottom of the seniority list in that plant as of the date of their employment. 27 On March 4, 1956, the appeal of the Plant 3 employees to the International was discussed at a membership meeting and it was noted that the membership had previously concurred in the legal opinion received from International Counsel. 28 The Local Executive Board again considered a problem with respect to seniority rights of Plant 3 employees on August 6, 1956 and reaffirmed its previous decision that the seniority date of a Local Union officer from Plant 3 who was hired in Plant 1 was his date of hire in Plant 1. 29 The Plant 3 employees during the shutdown from 1955 to 1957 consulted a lawyer about starting suit to establish their claim to company-wide seniority rights. The matter was not pursued because of rumors that Plant 3 was shortly to reopen. 30 In May, 1957, the Company and Union representatives met to agree upon the procedure for the recall of the Plant 3 employees. It was agreed that Plant 3 employees would be given at least seven days' notice of recall and that those who were working in Plant 1 would have the option of remaining in Plant 1 and utilizing their Plant 3 seniority or returning to Plant 3 and utilizing their Plant 1 seniority. 31 The Company sent a letter and questionnaire to all Plant 3 bottle shop employees on May 7, 1957 informing them of its intention to reopen Plant 3 and advising them of the principles agreed upon governing their recall. They were advised that employees on the Plant 3 seniority list then working at Plant 1 would be given the opportunity to elect whether to remain at Plant 1 or reutrn to Plant 3. If they elected to remain at Plant 1, they would be dropped from the seniority list at Plant 3. If they elected to return to Plant 3, and should be laid off for a period of 10 successive working days at that plant at any time prior to January 1, 1958, they would have the right to return to Plant 1 with the same seniority that they had at the date they transferred to Plant 3, plus such additional seniority as they may have acquired at Plant 3 after the reopening. It was specifically pointed out that an election to return to Plant 1 at that time would result in their being dropped from the Plant 3 seniority list. It was also pointed out that the Company was not in a position to assure them that Plant 3 would be continued in operation for any specified time; that the question would be determined by Management in the light of future business conditions. 32 Each of the plaintiffs received the letter and questionnaire and they elected to return to Plant 3 under the conditions set forth in the May 7, 1957 letter and questionnaire. Plant 3 had been modernized during the shutdown and it was the view of the men that Plant 3 would remain open permanently. 33 The seniority provisions of the various contracts which had been made prior to 1958 were identical to those incorporated in the 1958 contract. Those provisions had been interpreted over the years by the Union and the Company as being plant-wide as distinguished from company-wide and the membership of the Union, including all of the plaintiffs, were familiar with those interpretations. 34 In November, 1957, the Local Union's Contract Committee began a series of meetings for the purpose of considering contract changes to be submitted to the Company in the forthcoming negotiations as the bargaining agreement then in effect was due to expire in April, 1958. All the plants in Detroit were represented on the Contract Committee. Patterson represented Plant 3. 35 At the first meeting of the Contract Committee, the question was raised, whether Goebel employees desired to change the seiority provisions of the contract to provide for company, rather than plant, seniority. The representative of Plant 3 was told that if the employees of Plant 3 wanted to change the seniority provisions that then was the time to try to get it into the contract. It was suggested that a vote of the employees at Plant 1 and Plant 3 be taken as to whether they wanted plant or company seniority. Patterson took up the question of a vote with the members at Plant 3. At a meeting of the group on January 25, 1958, it was decided that a vote would not be fair as there were over 200 employees at Plant 1 and only 80 employees at Plant 3 and that since separate seniority lists had been in practice for ten years, the matter should not be changed. 36 On October 10, 1958, the Company announced to its employees that it intended to suspend operations at Plant 3. At the same time, there were about 40 Plant 1 employees with seniority rights who were laid off. The number of laidoff Plant 1 employees increased during the winter to a total of 20% to 25% of the Plant 1 working force of about 230. 37 On June 23, 1960, the Company advised the employees that Plant 3 had been sold and that they were terminated. 38 Plant 3 bottlers submitted a statement to the Local Executive Board on January 5, 1959 asking the Board to see that they were given the right to replace men with less seniority at Plant 1. In the statement, they stated that they had checked the collective bargaining agreement, but could find nothing in it stating that they had either company or plant seniority. The statement recited that the Company recognized total company service for the purpose of computing vacation periods; that the employees who transferred from Plant 1 to Plant 3 in 1948 and 1949 carried seniority with them; and, the checkers had a company-wide seniority system and the dockmen who were represented by Local 38 also had interplant rights. The Local Executive Board advised Plant 3 employees that it could not grant their request without violating the contract. 39 The representatives of the Plant 3 bottlers then filed an appeal with the International President. The appeal presented 10 points relied upon by the Plant 3 employees and repeatedly stated that the contract did not define the nature of the seniority of the Goebel employees. The International President requested a statement from the Local of its position in the matter. A statement from the Local was received, a copy of which was sent to the appealing members. 40 The International President advised the appealing members on February 4, 1959 that the Local Union had correctly interpreted the contract and that there was no reason for the International to interfere. It was pointed out that the 1958 contract was entered into with full knowledge that previous contracts had been construed to apply on a plant-wide basis rather than company-wide basis with respect to seniority rights. 41 Plaintiffs presented a grievance to the Company in the Spring of 1959 and were granted a hearing. The Company took the position that through the years there were two separate seniority lists and there was no way to help the employees in Plant 3 because the contract had always been interpreted as providing employees seniority on a plant-wide basis. 42 The District Judge found: That Plant 1 and Plant 3 each had its own seniority list and status and that the employees of each plant had plant-wide rather than company-wide seniority for layoff and rehiring or recall purposes; that seniority lists were posted at Plant 3 and Plant 1 and that tahe employees on one list could not bump employees for job preference on the other list with the result that in transferring from one plant to the other in either direction, an employee did not carry his seniority to his transferred status, but went to the bottom of the seniority list at the time of such transfer; that checkers had company-wide seniority with Goebel by virtue of special contract agreements; that in October, 1958, the employees at Plant 3 were told that the Company was going to terminate production at that plant and that on that day employees of Plant 3 were told that they could not go to Plant 1 for work even though there were employees of Plant 1 with less seniority than some of the men being laid off at Plant 3; that Plant 3 employees submitted their seniority grievance to Local 181, but obtained no relief, then to the International with the same result; that during the year 1955, when Plant 3 had been shut down for an extended period of time, there was a discussion about seniority with Local Union 181, as to whether the employees at Plant 3 were invested with plant-wide seniority or company-wide seniority; that during this layoff, employees from Plant 3 went to work at Plant 1, but were placed, under protest, at the bottom of the seniority list at Plant 1; that when Plant 3 was reopened, the employees of that plant who were working at Plant 1 were asked if they wanted to remain at Plant 1 or return to Plant 3; that since Plant 3 was modernized during the shutdown, they felt that it would remain open permanently, so they returned to Plant 3 and assumed their Plant 3 seniority; that Section 11 of the 1958 agreement provides that employees shall have preference of shift in accordance with their seniority, but the preference was granted separately in each plant with the result that an employee in Plant 3 could not avail himself of this preference in Plant 1; that the converse was also true. 43 He further found: That after the layoff in 1955, while Plant 3 was being modernized, the seniority status of the members of Local 181 employed at Plant 3 became a matter of concern and controversy within the Union; that a legal opinion from the General Counsel of the International was forwarded to Mr. Peter Hann, Business Representative and Corresponding Secretary of Local 181, regarding the question of seniority rights of members of Local 181 at Plant 3; that the General Counsel advised that it had never been the intention of the Company or the Union to establish company-wide seniority; that a laid-off employee had no right to bump employees with less seniority at Plant 1 and that the same would be true of an employee of Plant 1 attempting to bump an employee of Plant 3; that he further advised that since seniority was on a plant-to-plant basis a Plant 3 employee who would transfer to Plant 1 would go to the bottom of the seniority list, and the same would be true of a Plant 1 employee transferring to Plant 3; that this opinion was submitted to the general membership of the Local at a meeting held on February 5, 1956 and was discussed by the members and approved. 44 The Court further found: That in relation to the negotiation of the 1958 agreement, the first meeting of the Contract Proposal Committee was held during the fall of 1957, at which time the seniority rights of the employees of the two Goebel plants were discussed pro and con; that at another meeting of the Contract Committee held on January 25, 1958, the problem of one or two seniority lists of Plants 1 and 3 of Goebel was again brought up and discussed and it was determined that it should be left as is because a vote at that time would not be fair to all concerned since there were over 200 employees at Plant 1 and 80 employees at Plant 3, and that inasmuch as separate seniority lists had been in practice for the past ten years, it was better for the contrct to remain unchanged. 45 He found finally that the proposals agreed upon by the Contract Committee were submitted to the general membership of Local 181 for ratification, then to the Joint Executive Board for endorsement and then to the International Union for its attention; that at the time that proposals were being submitted and considered, it was a matter of common knowledge of the officials of Local 181 that the Plant 3 employees were contending that there was company-wide seniority; that Local 181 never asked or considered asking the Company to do anything about the seniority rights of its employees; that the Local's position was that the employees of Plant 3 had no seniority rights at Plant 1, and that the Local further felt that it was not its duty to try to reopen the contract to change the seniority rights of the respective parties. 46 In its conclusions of law, the Court stated that the distinction between plaint-wide and company-wide seniority was not spelled out in the agreement of May 22, 1958, but that this fact did not indicate the existence of an ambiguity; that the language in the agreement in its entirety relating to seniority permitted no other interpretation than that of company-wide seniority; that defendants pointed to no provision clearly construable as referring to plant-wide seniority and that the implications to be drawn from the language of the contracts were entirely consistent with company-wide seniority. 47 The Court further concluded that whether or not defendants deliberately discriminated against, or intended to discriminate against, the plaintiffs was immaterial for purposes of the resultant effect upon plaintiffs; that defendants breached their duty of fair representation which resulted in a type of injury to plaintiffs against which they were entitled to have been protected by virtue of the terms of the bargaining agreement; that the fact that the plaintiffs made no complaints prior to 1955 is no reason for their having been precluded from attempting to assert the rights to which they were entitled under the bargaining agreement; that the various situations which arose in relation to seniority rights were of such a nature that it would have served no practical purpose for plaintiffs to have raised the issue of company-wide seniority versus plant-wide seniority and that their non-insistence did not waive or release their contract right to company-wide seniority, and further that there was no intention upon the part of plaintiff to do so. 48 The District Court concluded finally that discrimination was practiced upon plaintiffs by defendants, regardless of intent on the part of the defendants; that they have suffered ultimate discrimination just as much by the allegedly good intentions of the defendants as they would have had the defendants acted willfully and maliciously; that plaintiffs had a right, and a continuing one, to rely upon the terms of the agreement since there was no valid modification of said agreement with respect to issues here raised, plaintiffs were entitled to recognition of company-wide seniority; that the contract, being clear, reliance upon acts and conduct in construction thereof is unnecessary and improper. 49 The District Judge noted that the contract provided that 'No verbal understanding or representations of any nature that would change the meaning of any section of this Agreement will be recognized or considered valid and no Union representative or Employer representative shall have the authority to change any provisions of this Agreement.' 50 The question of damages was reserved for the taking of testimony, or making an order of reference to a special master, to determine the amount of damages suffered by plaintiffs following the disposition of all other issues in the action. 51 Plaintiffs contend that the 1958 contract is unambiguous and that its pertinent provisions show that seniority was company-wide as held by the District Judge. They pointed out that Section 4 classifies employees as probationary, temporary and regular, and that Section 6(b) provides that all probationary employees shall be laid off first, all temporary employees shall then be laid off in accordance with their seniority, and, when a 40-hour work week cannot be given to all regular employees, the regular employees shall then be laid off according to their seniority, the last regular employee to be the first laid off, and so on in order; and that the contract is silent, whether the layoffs are to be carried out on a single plant or a company-wide basis. 52 Section 6(b)(5) provides that there shall be seniority list for Stroh checkers and a seniority list for Goebel checkers at Plant 1 and at Plant 3 that shall be strictly used to determine layoffs and recalls in the Checking Department only. Reading 6(b)(4) and 6(b)(5) together, it appears that the parties took pains to make it clear that the single seniority list of checkers was to control the lay-offs of checkers in both plants on a company-wide basis. The fact that it was specifically stated that this provision was to apply to checkers only would indicate that the single seniority list would not apply to bottlers and other employees. We think there is an ambiguity in Sections 6(b) (4) and (5). 53 Section 11 provides that employees shall have preference of shift in the order of their seniority. It is argued that in order to sustain the claim of seniority on a plant-wide basis that it would be necessary to read the word 'all' out of Section 6(b) of the contract, and to eliminate the definition of senority in Section 11. 54 It is contended that the understandings, agreements and customs of the Union and the Company from 1948 unitl 1958 do not change the 1958 agreement because such understandings and agreements were not negotiated and ratified in accordance with the requirements of Union procedure and were superseded by the agreement of May 22, 1958. 55 As previously indicated, we do not share the view of plaintiffs as to the certainty of the meaning of the seniority provisions in the contract. Even plaintiffs, in submitting their grievance to the Local Union were not sure of the contract meaning with respect to seniority. In the statement of their grievance they say: 'We have checked the contract very carefully and can find nothing stating that we have either Company or Plant seniority.' 56 In their appeal to the International Union, they repeated that neither they nor the Local Executive Board could find anything in the contract stating that they had either company or plant seniority, and further stated that 'the type of seniority that we have is not defined in the contract.' 57 Similar doubts as to the meaning of the contract are created by the comparison of Section 6(b)(5) and Section 6(d), of Section 6(b)(5) and Section 6(d), employees arranged in their order of seniority shall be revised and posted March 1 and September 1 of each year and a copy of the seniority list shall be furnished the Local Union. The question arises, whether the word 'list' applies to each plant or to one plant. The Company and Local Union construed it to mean a list for each plant. 58 The record shows clearly that except for the checkers, each plant has had a separate seniority list since 1949, which it has used in determining layoffs, recalls, shift preference, vacation preference and division of overtime, and that no employee of one plant has been permitted to exercise his seniority to bump an employee in the other plant. Where past practice has established a meaning for language that is used by the parties in a new agreement, the language will be presumed to have the meaning given it by such past practice. Werne, Law and Practice of the Labor Contract, Vol. 1, pp. 195, 196. 59 The contract must be construed to give effect to the intent of the parties when it was made and the circumstances existing at the time it was made should be looked to to ascertain the intent. Sobczak v. Kotwicki, 347 Mich. 242, 249, 79 N.W.2d 471 (1956). 60 When parties by their uniform conduct over a period of time have given a contract a particular construction, such construction will be adopted by the courts. Chesapeake & Ohio Railway Co. v. Michigan Public Service Commission, 347 Mich. 234, 240, 79 N.W.2d 586. 61 'The construction of a contract which the parties have given it while operating thereunder, should be followed.' Franklin Fire Ins. Co. v. Chesapeake & Ohio Railway Co., 140 F.2d 898, 899 (C.A.6). 62 Plaintiffs are residents of Michigan and were employed there, and the collective bargaining agreement was made in Michigan. This Court has held under like circumstances that the law of Michigan is important, if not indeed controlling. Union News Co. v. Hildreth, 6 Cir., 295 F.2d 658, 663. In the same case, the Court quoted with approval the language of the Michigan Supreme Court in the case of Cortez v. Ford Motor Company, 349 Mich. 108, 84 N.W.2d 523, as follows: 63 "Our Court has repeatedly held that proper exercise of such discretion over grievances and interpretation of contract terms in the interest of all its members is vested in authorized representatives of the Union, subject to challenge after exhaustion of the grievance procedure only on grounds of bad faith, arbitrary action or fraud.' 349 Mich. 108, at page 121, 84 N.W.2d 523, at page 529.' 64 Defendants owed plaintiffs the duty to exercise fairly the power conferred upon them under the National Labor Relations Act without hostile discrimination. If they exercise that power in good faith, which would mean free from hostile discrimination, they would not be liable for a mistake in interpreting the bargaining contract. 65 In the case of Ford Motor Company v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 686, 97 L.Ed. 1048, relied upon by plaintiffs to support their contention, the Court said: 66 'The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.' 67 Another case relied upon by plaintiffs is that of Syres v. Oil Workers International Union, 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785, reversing 223 F.2d 739 (C.A.5). That case involved representative action by members of a local negro union against representatives of a local white union to obtain judgment declaring void bargaining agreement which provided for two lines of seniority based upon race. The case involved hostile discrimination upon the part of the bargaining agent and is differentiated on its facts from our case. 68 If the contract provides for company-wide seniority when properly interpreted, was the duty of fair representation violated by the Local and International Unions in misinterpreting the contract and in failure to arbitrate plaintiffs' seniority problem with the Company? Plaintiffs contend that the Unions acted in bad faith, arbitrarily and fraudulently. As evidence of bad faith, they rely on the letters of the International to the Local in connection with the dispute over the 1955 layoff. In the first letter dated January 20, 1956, the International pointed out that the various provisions governing seniority were drawn as though they applied on a company-wide basis rather than a plant-wide basis and suggested arbitration of the dispute. The second letter dated February 2, 1956 contained no reference to the language of the contract. It was devoted to defending the Local's position that the employees had plant and not company-wide seniority. It is argued that the letters are significant because the letter of February 2, 1956 was the only one read to the membership by Hann, the Business Agent. The International based its refusal to represent plaintiffs following the 1958 layoff upon the previous decision with reference to seniority rights first made in connection with the 1955 layoff and announced in these letters. 69 It is argued by plaintiffs that the contract provides for the order of layoff in clear terms and the Unions arbitrarily failed to follow the terms of the contract. On the question of fraud, plaintiffs contend that defendants placed reliance on a series of memorandums and letters between the Local and the Company, both oral and written, to establish plant seniority. It is contended that none of the understandings found in the memorandums and letters were reached pursuant to the requirements of the Union constitution and are void by the terms of the Union constitution and the terms of the negotiated contracts; that no explanation is offered as to why the socalled understandings were not incorporated into the collective bargaining agreements made subsequent thereto; and that since the understandings were not divulged to the Union members, a deceit was practiced upon them by the Company and the Union. They further argue that correspondence between the Union and the Company was not brought to the knowledge of the Union members and defendants should have insisted upon the inclusion of provisions for plant seniority during the 1958 negotiations if they felt they owed the Company and duty in that respect. Plaintiffs argue that a secret agreement between the Union and the Company as to the terms of the agreement was a fraud upon its members, and that the defendants are asking the Court to hold that they have discharged their duty of fair representation by nullifying the express provisions of the contract. 70 In our case, the District Court did not find that the defendants acted arbitrarily or with bias, or in bad faith or with hostile discrimination. The bill of complaint charged that the defendants failed to represent plaintiffs fairly and equally and showed partiality and favoritism towards those persons who are still employed by the Company. 71 The District Court concluded that whether the defendants deliberately discriminated against or intended to discriminate against plaintiffs was immaterial to the resultant effect upon plaintiffs and that there was a breach of duty of fair representation which resulted in injuries to plaintiffs. 72 Defendants construed the contract in the same manner that it had been construed by the Company and by the Local Union for a period of some nine or ten years and the language in the 1958 contract with respect to seniority was identical with that in the preceding contracts over the entire period of time. 73 The case of Trotter v. Amalgamated Association of Street Electric Railway, etc. et al., 309 F.2d 584, decided November 9, 1962, by this Court in an opinion by Judge Shackelford Miller, involved a question of seniority similar to the one involved in our case. In that case, the Court said: 74 'Appellants rely strongly upon Steele v. L. & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173, Tunstall v. Brotherhood, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187, Mount v. Grand International Brotherhood of Loc. Eng., 226 F.2d 604, C.A.6th, cert. denied, 350 U.S. 967, 76 S.Ct. 436, 100 L.Ed. 839 and Hargrove v. Brotherhood of Locomotive Engineers, 116 F.Supp. 3, D.C. These cases are examples of the now well settled rule that the bargaining representative of employees has the duty to exercise fairly the power conferred upon it in behalf of all those for whom it acts, without hostile discrimination against any employee or group of employees. Whether he bargaining representative has acted fairly and impartially and without hostile discrimination depends upon the facts of each case. * * *' 75 The Court concluded that there was no hostile discrimination. 76 Although the facts in that case were not the same as those now before us, the rationale of the decision supports our conclusion. The facts which we have recounted and the findings of the District Court which we have reviewed indicate to us that throughout the ten-year history of this contract, the actions of the Union were governed by candidness in its dealings with its members. There was a recognition of the possible conflict between the members of the Union in the two plants and Union officers more than once endeavored to have the matter resolved prior to negotiations with the Company. The record is clear that the plaintiffs to this lawsuit were well aware of the difficulty and that they declined to bring the matter to a vote within the Union because they felt they would lose in a contest with the members of the other plant. Under these facts, we do not see how the Union either deceived its members of favored one group over another. In our opinion, in their bargaining negotiations with the Company, the facts show that the defendants acted fairly and impartially and with no hostile discrimination toward the plaintiffs and those whom they represent in this lawsuit. 77 It results that the decision of the District Judge must be reversed and the case dismissed. 1 Appellants will sometimes be referred to as Local Union and International Union, respectively, and appellees as plaintiffs and Goebel Brewing Company as the Company

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311 F.2d 660 UNITED STATES of America, Appellee,v.Ernest Lattie HONEYCUTT, Appellant. No. 8704. United States Court of Appeals Fourth Circuit. Argued November 8, 1962. Decided December 27, 1962. Harold K. Bennett, Asheville, N. C. (J. Harry Sample, Asheville, N. C., on brief), for appellant. William Medford, U. S. Atty., and James O. Israel, Jr., Asst. U. S. Atty. (Robert J. Robinson, Asst. U. S. Atty., on brief), for appellee. Before SOBELOFF, Chief Judge, BRYAN, Circuit Judge, and BUTZNER, District Judge. ALBERT V. BRYAN, Circuit Judge. 1 Inadequacy of the proof to warrant the verdict of guilty against him is the sole ground upon which Ernest Lattie Honeycutt now appeals his conviction of violating 18 U.S.C. §§ 1952 and 19531 — interstate travel in aid of racketeering and interstate transportation of wagering paraphernalia. The trial court, we think, should have granted the motion for a judgment of acquittal. We do so now. 2 Honeycutt was indicted with Sam Roy Bryant on four counts: No. 1, conspiring to violate §§ 1952 and 1953 supra; No. 2, carrying and sending, interstate, baseball ticket "pull boards" to be used in bookmaking and wagering pools; No. 3, using a facility, that is, a trailer, interstate, to promote and carry on, and thereafter promoting and carrying on, an unlawful activity involving the use of "tip boards" and "pull boards" in gambling offenses against the laws of the state of North Carolina; and No. 4, travelling interstate with intent to promote and carry on, and thereafter promoting and carrying on, an unlawful activity involving the use of "tip boards" and "pull boards" in gambling offenses in contravention of the laws of North Carolina. The interstate termini were Bristol, Tennessee and Asheville, North Carolina. Bryant pleaded guilty to counts 2 and 3. Both he and Honeycutt were acquitted on count 1, the conspiracy. Bryant was found guilty on count 4, and Honeycutt on counts 2, 3 and 4. 3 The measurement of the sufficiency of evidence in a criminal case was stated by this court in Bell v. United States, 185 F.2d 302, 310, cert. den. 340 U.S. 930, 71 S.Ct. 492, 95 L.Ed. 671 (1951), by quoting from Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, 232, cert. den. 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947), as follows: 4 "The true rule, therefore, is that a trial judge, in passing upon a motion for a directed verdict of acquittal, must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt." 5 A chronicle of the proof here reveals it as wanting in the weight required by this test. It was, at least, as consistent with the accused's innocence as with his guilt; "a reasonable mind" could not "fairly conclude guilt beyond a reasonable doubt." This is true of all the counts. 6 Honeycutt's prosecution was premised on participation in January 1962 as an aider or abettor in a crime dependent upon interstate conduct. 18 U.S.C. § 2. It is conceded that tip boards and pull boards are instruments for gambling, an activity denounced by the laws of North Carolina. Neither Bryant nor Honeycutt took the stand or offered evidence. Bryant operated Sam's Grocery in Asheville in a building with a store in front and a gambling room behind. The property belonged to Honeycutt's sister. Elsewhere in the city Bryant rented an outbuilding for the storage of his gambling materials. A Federal gambling stamp had been obtained by him in June 1961, and he had filed monthly reports of his operations. In his application for the gambling stamp Bryant stated he was engaged in accepting wagers on his own account with no employees. But Honeycutt in a similar — and successful — application in August, 1961 declared he was receiving wagers as Bryant's employee. Witnesses for the Government testified that Bryant had said he owned the store and lottery business with no one else having an interest in it. 7 Honeycutt, they also stated, was an employee of Bryant drawing $50.00 per week to sell lottery tickets. According to the testimony, he had been seen selling tip boards in the rear section of the building from time to time. He had on occasion paid off the employees in the store and once had paid the printer upon delivery of certain basketball cards. All of these incidents were said to have occurred between May 1961 and January 15, 1962. 8 On January 8, 1962 Bryant in person purchased from the Tri-State Corporation printing plant in Bristol, Tennessee tip boards and baseball pull boards for $4,012.00 in cash. Thereupon they were packed in 87 large cartons marked by Bryant as "chair covers", and loaded into a truck that Bryant had borrowed in Asheville and driven to Bristol. 9 On January 9, 1962 these cartons were taken by Bryant in the same truck to the E. T. & W. N. C. Transportation Company, in Bristol, for transportation to Asheville. The bill of lading showed the merchandise was shipped by Bryant consigned to himself at Asheville. In the course of loading them on the trailer of the Transportation Company, one of the cartons was accidentally broken open, revealing its true contents. The Federal Bureau of Investigation was immediately alerted. 10 On January 11, 1962 the shipment arrived at the Asheville terminal of the Transportation Company in one of its trailers. Bryant — with the assistance of an undercover FBI agent — then loaded the cartons on the same truck he had used in Tennessee. Driving from the terminal he was at once followed by FBI agents, who arrested him as he drove into the entrance to his storage outbuilding. 11 Honeycutt, who occasionally acted as an informer for the FBI, on two occasions previous to January 8 had inquired of FBI agents if they knew of any method by which tip boards and pull boards could be brought into North Carolina without violating the new Federal laws. While Bryant was in Bristol, on January 8, Honeycutt called Agent Moore from Sam's Grocery for an appointment to meet him. When they met, after some preliminary discussion, Honeycutt stated that "we" had been talking with an attorney and "we" think we have found a loophole in the new law, making it possible to bring gambling materials into the State from Bristol, Tennessee without violating the Federal law. Somewhat similar statements were repeated by Honeycutt to the Agents on January 12 and January 15, 1962. After his arrest he denied any knowledge of Bryant's trip to Tennessee. Honeycutt declined to answer when the Agents asked whether he had any interest in the land or the building in which the gambling operation was conducted, or whether he received a percentage of the profits from the operations. 12 This is all the evidence the Government marshalled against Honeycutt. To convict him as an aider or abettor the prosecution had to show conduct on his part amounting to counselling or other assistance in Bryant's interstate criminal activity. 18 U.S.C. § 2; Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949). To this end it pitched its case on a proprietorship or partnership of Honeycutt in the enterprise carried on in the back room of Sam's Grocery. The evidence on this score upon a fair assay is not of requisite weight. In our opinion a reasonable juror could not be without a reasonable doubt of Honeycutt's aid or abetment of the interstate crime. The judgment in the District Court must be reversed and an acquittal entered here. 13 Reversed and final judgment. Notes: 1 Acts of September 13, 1961, Pub.L. 87-228, 75 Stat. 498, 18 U.S.C. § 1952; Pub.L. 87-218, 75 Stat. 492, 18 U.S.C. § 1953

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311 F.2d 663 MOORE-McCORMACK LINES, INC., Appellant,v.MARYLAND SHIP CEILING COMPANY, Inc., Appellee. No. 8652. United States Court of Appeals Fourth Circuit. Argued Nov. 6, 1962.Decided Dec. 27, 1962. Randall C. Coleman, Jr., Baltimore, Md. (Jervis Spencer Finney and Ober, Williams, Grimes & Stinson, Baltimore, Md., on brief), for appellant. David R. Owen, Baltimore, Md. (Peter Parker and Semmes, Bowen & Semmes, Baltimore, Md., on brief), for appellee. Before SOPER and J. SPENCER BELL, Circuit Judges, and BUTZNER, district judge. SOPER, Circuit Judge. 1 Richard F. Jenkins and Frank J. Malikowski, ship ceilers or carpenters, in the employ of Maryland Ship Ceiling Company, Inc., were made ill and suffered injuries from noxious fumes and gases as they were performing ship ceiling services in the hold of the steamship MORMACSTAR in the harbor of Baltimore, Maryland, on November 21, 1959. The ship had been loaded with hogsheads of tobacco in holds No. 1 and No. 2 on November 20, 1959 at Norfolk, Virginia. The tobacco had been previously fumigated with hydrogen cyanide by an agent of the ship owner at the terminal dock in Norfolk, and on the evening of that day she sailed, with the hatches battened down, for Baltimore, arriving the next morning. In the interval, fumes arising from the fumigation of the cargo accumulated in the holds of the vessel and caused the illness of the carpenters when they entered the holds to do their work. Jenkins and Malikowski brought the instant suit against the owners of the ship, alleging that the ship was unseaworthy and that her owner was negligent in failing to furnish a safe place for them to work. Jurisdiction was based on diversity of citizenship. 2 The ship owner filed a third party complaint against the ship ceiling company, alleging that the injuries to the carpenters resulted from the failure of their employer to perform its work in a careful and workmanlike manner. At the trial before the District Judge with a jury, the ship owner admitted that the vessel was unseaworthy when she was discharged in Baltimore, and evidence was then taken upon the claim of the ship owner for indemnity against the ship ceiling company. At the conclusion of the evidence, the ship owner, as third party plaintiff, moved for a directed verdict in its favor against the ship ceiling company on the issue of indemnity but the motion was denied. The correctness of this ruling, which is the principal question before the court on this appeal, requires a consideration of the evidence which may be summarized as follows. 3 The loading operation at Norfolk was supervised by Frank L. Ostroski, Chief Mate of the ship. He found the conditions normal and the air clean in holds Nos. 1 and 2 where the tobacco was stowed. He was not aware that the tobacco had been fumigated by the ship owner's agent in Norfolk, although a list of the cargo furnished by the agent showed that one lot of the cargo stowed in hold No. 2 had been fumigated. Had he known of the fumigation he would not have been apprehensive for he had encountered no difficulty with tobacco in his experience of 20 years on the sea. 4 On the morning of November 21, 1959 at 8 A.M., eight employees of the ship ceiling company, under the supervision of their foreman, Edward M. Lipo, boarded the vessel at Baltimore to shore up the cargo in accordance with an arrangement that had been made between the ship owner and the ship ceiling company. After a conference between .lipo and the Chief Mate of the ship the carpenters, under Lipo's supervision, secured the cargo on the main deck and then uncovered the hatch to No. 1 hold in order to enter and shore up the hogsheads stowed therein. One section or pontoon of the five which constituted the hatch of No. 1 hold was taken out in order to make an entrance into the hold; and, when this was done, everyone present noticed an odor emanating from the hold which was variously described as peculiar, musty, unfamiliar, awful or unpleasant. Jenkins, one of the plaintiffs, then summoned Lawrence A. Burlingame, who had also come aboard at 8 A.M. that morning as a Relief Deck Officer and Mate to relieve the regular deck officers of the ship. It was Burlingame's duty on behalf of the ship to supervise the proper loading and discharge of the cargo, and he had the authority to stop any hazardous action in the course o the operation. When he arrived at the No. 1 hatch, the carpenters called his attention to the strong smell coming from the hold; and, according to their testimony, he assured them that the odor came only from the tobacco and that there was not anything harmful in the hold. Relyind upon this assurance, the carpenters entered the hold, and very soon the complainants suffered the ill effects above described. Because of the disagreeable odor, the foreman of the carpenters instructed the men, as a safety precaution, to enter the hold in pairs and to come out immediately if they felt any ill effects. This practice is frequently followed. The removal of all of the sections of the hatch would doubtless have helped to ventilate the hold more effectively than the removal of only two sections but it was not shown that this precaution would have prevented the injuries suffered by the plaintiffs in this case. 5 It was later shown by expert testimony that the fumes did not consist merely of the odor from tobacco but of hydrogen cyanide gas the odor of which is so similar to the odor of tobacco that a layman would not recognize it as dangerous. Prior to assuring the carpenters that the situation was not dangerous, Burlingame had made no inquiry, had been given no instructions and had no knowledge as to the nature of the cargo. He had not seen the stowage plan of the cargo, and, until he looked into the hold, he did not know that the ship carried tobacco. Nor did he note the cargo document furnished to the ship owner in Norfolk which showed that at least a portion of the cargo had been fumigated. The existence of this document was not disclosed to the officers of the ship by the agent o the ship owner which had the cargo fumigated at Norfolk. Lipo, the carpenters' foreman, was not told that the cargo had been fumigated. 6 Upon this evidence, the case was submitted to the jury after a charge by the court. Requests were made by the ship ceiling company as third party defendant for the submission of specific issues or interrogatories to the jury. After consideration of these requests, the Judge prepared and submitted to the jury the interrogatories which are appended below with the jury's answers. 7 '1. Was the S.S. MORMACSTAR unseaworthy with respect to its No. 1 hold at the time of the accident, in that said hold was filled with a dangerous amount of hydrogen cyanide gas, and was this unseaworthy condition the proximate cause of the plaintiff's injuries? 8 'Yes. 9 '2. Did the relief officer, Burlingame, in effect, tell the foreman, Lipo, that only hogsheads of tobacco were in the No. 1 hold and that it was all right to send his men down there? 10 'Yes. 11 '3. If the answer to Interrogatory No. 2 is 'Yes', did the Maryland Ship Ceiling Company foreman, Lipo, act reasonably and with due care in sending men into the No. 1 hold in reliance upon this statement. 12 'Yes. 13 '4. If the answer to Interrogatory No. 2 is 'No', did the Maryland Ship Ceiling Company foreman, Lipo, nonetheless, under all the circumstances, act in a reasonably safe and workmanlike manner when he ordered the carpenters to enter the No. 1 hold? 14 'Did not answer. 15 '5. Was the presence of hydrogen cyanide gas in the No. 1 hold such a dangerous condition that the Maryland Ship Ceiling Company, by the exercise of reasonable care, should have discovered? 16 'No. 17 '6. If the answer to Interrogatory No. 5 is 'Yes', did the Maryland Ship Ceiling Company, nonetheless, under all the circumstances act in a reasonably safe and workmanlike manner in ordering, through its foreman, the carpenters to enter the No. 1 hold in pairs? 18 'Did not answer. 19 '7. Did Moore-McCormack exercise ordinary care under the circumstances to place the S.S. MORMACSTAR in such condition that an expert, and experienced ship ceiling contractor, mindful of the dangers he should reasonably expect to encounter, would be able, by the exercise of reasonable care, under the circumstances, to shore up the cargo in a workmanlike manner and with reasonable safety? 20 'No. 21 '8. Was the presence of cyanide gas in the No. 1 hold such a latent or hidden danger that is not usually encountered by an expert and experienced ship ceiler? 22 'Yes. 23 '9. If the answer to Interrogatory No. 8 is 'Yes', did Moore-McCormack know or, by the exercise of ordinary care under the circumstances, should it have known of this dangerous condition? 24 'Yes. 25 '10. If the answer to any of Interrogatories No. 3, No. 4, or No. 6 is 'No', was the failure of the Maryland Ship Ceiling Company to act in a reasonably safe and workmanlike manner a proximate cause of the accident? 26 'Did not answer.' 27 In addition, the jury rendered a general verdict in favor of the ship ceiling company as third party defendant on the claim for indemnity for the ship owner as third party plaintiff. 28 We consider first the contention of the ship owner that the Judge erred in denying its motion for directed verdict against the ship ceiling company for indemnity. In this connection, the jury found, in answer to specific questions propounded by the Judge that the ship was unseaworthy because of the presence of the noxious gas and that this condition was the cause of the plaintiff's injuries. This portion of the verdict the ship owner concedes to be correct. The jury, however, also found (1) that the ship owner knew, or by the exercise of reasonable care, should have known of the dangerous condition; (2) that the presence of the gas in No. 1 hold was a condition not usually encountered by an experienced ship ceiler; and that the presence of the gas was not a condition that the ship ceiling company by the exercise of reasonable care should have discovered; (3) that Burlingame, the relief officer of the ship, told Lipo, the carpenters' foreman, that it was all right to send the men into the hold; and (4) that Lipo acted with due care in relying upon the statement of Burlingame. 29 The jury also found in general terms that the ship owner did not exercise ordinary care in conditioning the ship in such a manner that an experienced ship ceiling contractor would be able by the exercise of reasonable care to shore up the cargo with reasonable safety. 30 The question is whether there was substantial evidence to support the jury's findings. The ship owner contends that the ship ceiling company had knowledge that something was amiss since its foreman and the carpenters smelled the unusual odor, made specific inquiry of the deck officer as to the cause and took the precaution of sending the workers only in pairs into the hold with orders to come out immediately if they found conditions uncomfortable. Having suspected that the condition was dangerous the ship ceiling company, it is said, rendered itself liable to indemnity when it sent its men into a condition of danger. 31 This argument, however, takes into consideration only a portion of the relevant facts. It is conceded that the dangerous condition was caused entirely by the action of the ship owner's agents and officers in having the tobacco fumigated before it was loaded on the ship and in having it stored in closed holds of the ship without warning to the crew that the cargo had been fumigated. The ship owner was, of course, charged with the knowledge of what its agents had done and was responsible for their actions. The carpenters entered the hold only after they had been assured by the ship's officer that the condition was safe; and there was expert testimony that the odors of hydrogen cyanide and of tobacco are so similar that a layman might easily confuse them. Hence, there was reasonable ground for the finding that the carpenters reasonably relied upon the assurance of the deck officer that it was safe for them to enter the hold. 32 The ship owner stresses particularly the failure of the carpenters to remove all of the pontoons of the hatch cover in order to ventilate the hold and thereby dissipate the gas. It is argued that since the carpenters were aware of the presence of disagreeable and unpleasant fumes, care would have led them to ventilate the hold before entering. There was testimony that only one section of the hatch cover was removed because of the shortage of men and countervailing testimony that it is not unusual in an operation of this type to remove only a portion of the hatch cover. There was expert testimony that the way to remove hydrogen cyanide gas from a fumigated cargo is to dissipate it with clean air, the more air the better, and that, consequently, before sending the men into the hold in pairs, it would have been a reasonable precaution to remove the remaining pontoons from the hatch for purposes of ventilation. Undoubtedly, this evidence was relevant and possessed probative value; but, it was only a part of the whole testimony submitted to the jury, all of which they were obliged to pass on in determining the existence of negligence on the part of the ship ceiling company. It did not compel a directed verdict in favor of the ship owner. In summation, there was evidence from which a jury might find that the dangerous condition was caused by the ship owner and its agents and that the employees of the ship ceiling company were not negligent in attempting to do their work after receiving assurances from an officer of the ship that the condition was not dangerous. 33 In reaching this conclusion we do not overlook the decisions which hold that a vessel owner may not be denied indemnity merely because he has not fully performed all of his obligations to persons who have contracted to perform services for him on the ship. Thus, it was held in Ryan Stevedoring Co., Inc. v. PanAtlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, that a ship owner's failure to perform its obligation to supervise the stowage of a cargo did not destroy its claim to indemnity from a stevedoring company which had contracted to perform all the stevedoring operations required by the ship owner in its coastwise trade. The stevedore had stowed a cargo so carelessly at one port that one of its employees was injured in unloading the ship at a subsequent port of discharge. The Supreme Court held that, as between the parties, the failure of the ship owner to discover the stevedore's carelessness in the loading port did not forfeit the ship owner's right to indemnity for damages caused to the workman at the port of discharge. 34 Again, in Weyerhaeuser S.S. Co. v. Nacirema Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491, a stevedoring company, in unloading a ship, made use of an insecure temporary winch shelter which had been used at a previous port and, through the carelessness of the ship owner, had been allowed to remain on the ship when she sailed. It was held that the ship owner was not deprived of its right to indemnity against the stevedore for injuries to a workman caused by the careless use of the shelter by the stevedoring company at the port of discharge. The court held that it was error to direct a verdict for the stevedore on the issue of indemnity and that the matter should have been submitted to the jury. It was specifically held that if a stevedore renders a substandard performance which leads to liability of the ship owner the latter is entitled to indemnity 'absent conduct on its part sufficient to preclude recovery.' 35 The Supreme Court considered the same matter in Crumady v. The J. H. Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413, in which, as in the instant case, a stevedore workman was injured in the unloading of the ship by an accident which was traceable to the unseaworthy condition of the ship. It was found, however, that the primary cause of the accident was the negligence of the stevedoring company in using a winch for unloading the cargo which had been previously set by the ship's crew for other work in a way which made in improper for the work at hand. It was held that the ship was entitled to indemnity. We applied the same principle in Calmer Steamship Corp. v. Nacirema Operating Co., 4 Cir., 266 F.2d 79; American Export Lines, Inc., v. Revel, 4 Cir., 266 F.2d 82, and Smith v. Jugosalvenska Linijska Plovidea, 4 Cir., 278 F.2d 176. 36 It will be observed that in all these cases the ship's right of indemnity was preserved, although the unseaworthiness of the ship was established, because it was also shown that the stevedoring company, having knowledge of the defective condition on the ship, carelessly made use of defective equipment or proceeded with the work under defective conditions so that its actions constituted the immediate cause of the injury. No such situation is found in the facts of the pending case. 37 The primary cause of the injury was the unseaworthiness of the ship. The jury found that the ship ceiling company was free from negligence in causing its men to enter the hold of the ship since it had no knowledge of the dangerous conditions, could not reasonably have been expected to know of the presence of the hydrogen cyanide gas and was led to proceed with its work by the assurances of the Relief Mate of the ship that it was safe to do so. We think that there was substantial evidence to support the ruling of the Judge and the findings of the jury in this respect and that the facts of the case warrant the finding that the performance of the ship, in the language of the Supreme Court in the Weyerhaeuser case, 355 U.S. 563, 567, 78 S.Ct. 438, 440, amounted to 'conduct on its part sufficient to preclude recovery.' 38 The ship owner contends that the Judge erred in his instructions to the jury and in framing the questions submitted to the jury for decision. In the charge the Judge instructed the jury with reference to the claim of the ship owner against the ship ceiling company for indemnity. The jury were told in effect that the ship owner could not recover on this claim unless the ship owner 'fully performed' its obligations to the ship ceiling company under the contract; and that these obligations included the duty to exercise ordinary care to place the ship and its equipment in such condition that the ship ceiling company, mindful of the dangers usually encountered, would be able to shore up the cargo in a workmanlike manner and with reasonable safety and also the duty to give the ship ceiling contractor a reasonable warning of latent or hidden dangers. It is argued that, under the decisions of the Supreme Court and of this court cited above, a ship owner under certain circumstances may recover indemnity from a contractor even if it has not performed all of the obligations resting upon the owner of a ship. Undoubtedly, this is true and the portion of the instruction that the ship owner could not recover unless it had 'fully performed' all of its obligations, taken by itself, was too broad; but it is obvious that the jury were not misled. It was made clear to the jury that the ship owner had failed to furnish a seaworthy ship and, therefore, had admitted liability to the injured men, and yet the right of the ship owner to indemnity was submitted to them for decision. The difference between the ship owner's obligations to the individual workmen and its obligations to the ship ceiling contractor was pointed out, and the jury were told that it was the performance of the latter obligations which was a prerequisite to the recovery of indemnity. Moreover, the interrogatories addressed to the jury called their attention to crucial points in the evidence on which the parties relied for their conflicting contentions, so that the jury were made aware of the area of conflict which they had to consider in making their determination. We think that the ship owner suffered no detriment through the use of the broad language in the charge of which it complains. 39 The ship owner also finds fault with interrogatories 2 and 3 addressed to the jury which required the jury to find whether the relief officer of the ship told the foreman of the carpenters that only tobacco was in the No. 1 hold and that it was all right to send the men into the hold, and whether, if the answer to this interrogatory was yes, the foreman of the carpenters acted reasonably in sending the men into the hold in reliance upon the mate's statement. It is said that these two interrogatories were improper because they assumed that the foreman had the right to rely on the statements of the relief officer. We think that this criticism is not justified. The Judge made it clear to the jury that they could not decide in favor of the ship ceiling company if they found that it was negligent in allowing the carpenters to enter the hold when, by the exercise of ordinary care, it should have known that it was dangerous to do so. In answering this inquiry it was important to determine exactly what the Relief Mate had said to the carpenters' foreman in respect to the condition of the hold. This was important because of conflicting evidence on the point. We see no error in asking this question of the jury, especially as in the next breath the jury were asked to determine whether the carpenters' foreman acted with due care in reliance upon the statement of the Relief Mate. Objections to the remaining inquiries Nos. 5, 7 and 8 do not call for extended discussion on our part. An examination of the interrogatories set out above clearly indicates that they were addressed to important points of the evidence and that the consideration of them was helpful to the jury in making its final general determination on the question of indemnity. 40 Affirmed.

01-03-2023

08-23-2011

https://www.courtlistener.com/api/rest/v3/opinions/259184/

311 F.2d 691 Lee HENSLEE, Superintendent of Arkansas State Penitentiary, Appellant,v.Clarence STEWART, Jr., Appellee. No. 17148. United States Court of Appeals, Eighth Circuit. Jan. 11, 1963, Rehearing Denied Feb. 6, 1963. Jack L. Lessenberry, Chief Asst. Atty. Gen., Little Rock, Ark., for appellant and J. Frank Holt, Atty. Gen., on the brief. Wiley A. Branton, Pine Bluff, Ark., for appellee and Harold B. Anderson, Little Rock, Ark., on the brief. Before VOGEL, BLACKMUN and RIDGE, Circuit Judges. PER CURIAM. 1 This is an appeal by the Superintendent of the Arkansas State Penitentiary from an order1 entered upon the amended petition of Clarence Stewart, Jr., for a writ of habeas corpus. 2 Stewart, a negro then about 21 years of age, was charged, by information filed in Pulaski County, Arkansas, with the crime of murder in the first degree. He was convicted by a jury at the March 1960 term of the Circuit Court, First Division, of that county. The jury did not render a verdict f life imprisonment under Ark.Stats. 43-2153. Stewart consequently received a death sentence. 41-2227; Turner v. State, 1955, 224 Ark. 505, 275 S.W.2d 24, 31. 3 Stewart appealed his conviction to the Supreme Court of Arkansas. He argued there, inter alia, that his jury panel should have been quashed because of discrimination in its selection. That court, nevertheless, affirmed the judgment. Stewart v. State, 1961, 233 Ark. 458, 345 S.W.2d 472. It held specifically, p. 475 of 345 S.W.2d, that 'the evidence fails to show a systematic inclusion of Negroes on jury panels which would amount to discrimination' and that it was therefore unnecessary to pass upon the argument that systematic inclusion was a denial of due process and equal protection of the law under the Fourteenth Amendment of the Constitution of the United States. Certiorari was denied by the United States Supreme Court, Stewart v. State of Arkansas, 1961, 368 U.S. 935, 82 S.Ct. 371, 7 L.Ed.2d 197, with Mr. Justice Douglas in dissent. 4 Stewart then filed his application for a writ of habeas corpus with the United States District Court for the Eastern District of Arkansas. He urged there, among other things, that members of his race were systematically limited and discriminated against in the selection of the panel for the petit jury which convicted him and that the First Division jury commissioners allowed race to be considered as a factor in selecting the panel and made no special effort to acquaint themselves with Negroes who were qualified for jury service. The district court felt that there was little significant distinction factually between the Stewart record then made before it and that in our Pulaski County case of Bailey v. Henslee, 8 Cir., 1961, 287 F.2d 936, cert. den. 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78, and, with an expression of some reluctance, came to the conclusion that the jury selection procedure followed for Stewart's trial 'does not measure up to the standards of the equal protection clause of the Fourteenth Amendment as interpreted by the United States Supreme Court'. 206 F.Supp. 137, 141. The order now appealed from was then entered. 5 We emphasize initially here, as we did in Bailey, p. 939 of 287 F.2d, and as we had already done once before in an earlier appeal in that case, Bailey v. Henslee, 8 Cir., 1959, 264 F.2d 744, 746, cert. den. 361 U.S. 945, 80 S.Ct. 408, 4 L.Ed.2d 364, that the question of Stewart's guilt is not now before us. This aspect of his problem has been discussed by the Arkansas Supreme Court in Stewart v. State, supra, pp. 473-474 of 345 S.W.2d. Here again, as was the situation in the second Bailey appeal, supra. the only issue which confronts us is whether Stewart's federal constitutional rights were preserved in the jury selection process. If they were not and if the district court's order is to be affirmed, the question of Stewart's guilt will be determined in due course at the retrial in state court upon the evidence then presented. 6 We also emphasize that here, as in Bailey, p. 945 of 287 F.2d, there is no question of complete exclusion of Negroes from the regular jury panels in the Pulaski county First Division for some years. The question, instead, is one directed to limitation of Negroes in the selection process. 7 We agree with the trial court that Bailey v. Henslee controls this case and that our conclusion there to the effect that a prima facie case of selection limitation was established and was not rebutted by the State compels Stewart's retrial here. Judge Young's detailed opinion at 206 F.Supp. 137 sets forth the factors this court stressed in Bailey and draws the manifest parallel between those factors and the jury selection features present here. 8 We need not repeat at length what Judge Young cogently spelled out in his opinion. It suffices to note that this record discloses, as did Bailey: (1) The absence of Negro names from the First Division's panel of alternates continuously from 1952 through the March 1960 term. (2) The presence during the same period of never more than three Negro names in any regular panel of twenty-four. (3) Repetition in the names of Negroes on the panels from 1953 to 1960. (4) The jury commissioners' carry-over of race identification to the jury lists. Specification of color on poll tax records is required by Ark.Stats. 3-227. The payment of a poll tax is a prerequisite for voting. 3-104.2. Pitit jurors are selected from among the electors. 39-208. 9 This record of course also reveals facts which are somewhat different from the record in Bailey: (1) The presence of three Negro names on Stewart's special panel of 50, with one of these five, however, also among the three on the regular panel. (2) The absence of proof as to the racial composition of jury panels in the Second and Third Divisions which try only civil cases in the Pulaski Circuit Court. (3) The apparent immateriality here of the composition of the March 1956 First Division special panels. (4) The presence of perhaps somewhat more helpful testimony from two jury commissioners. The Superintendent stresses: 10 1. The 'lack of proof of the compsotion of the Pulaski Civil Division juries'. This factor, however, was obviously no more than a minor one in Bailey for our allusion to it these was only 'for what atmosphere it may provide'. The district court in the present case, although mentioning it, gives the factor no great emphasis. In any event, the appellant does not deny the fact of the complete exclusion of Negro names from all panels of the Pulaski County Civil Divisions since 1939, as established in Bailey, p. 946 of 287 F.2d, and we have no hesitancy in taking judicial notice of that fact. Our conclusion would be no different were this factor absent. We note, incidentally, that the possible transfer of jurors between the civil divisions and the criminal division of the Pulaski County Circuit Court has now been terminated as of August 30, 1961. Acts 1961 (1st Ex. Sess.) No. 3, amending Ark.Stats. 22-326.4 to 22-326.6, inclusive. 11 2. The 'absence of proof of the number of poll tax sold by the Pulaski County collector with the designation 'c". The district court, however, noted that the evidence showed that from 1953 through March 1960 three Negro names appeared on the regular panel of 24 persons on six of 15 occasions, that this ratio was never exceeded, and that none appeared in 1952. The county collector himself characterized as a guess his testimony as to the race ratio poll tax figures for 1959 which would enter into the qualification of jurors for the March 1960 term.2 No objection to this guess testimony was noted. Its lack of substance was recognized by the district court. The important facts, however, are the evident top proportion of one in eight, its appearance 40% of the time, and its lesser status than one in six which the appellant attributes to 'late reliable information' which 'was superior and to be preferred'. 12 3. The presence f five Negro names among the 50 comprising the March 1960 special panel. One of these, however, is D. B. Lacefield who also was named to the regular panel. No explanation for this repetition is offered. Lacefield's name, furthermore, is one of those the repetitious use of which was observed and questioned in Bailey, pp. 946-947 of 287 F.2d. 13 4. The testimony of the jury commissioners which appellant says 'convey a sincere, honest, and dedicated effort to be absolutely fair and impartial in the composition of the jury.' There was testimony that the commissioners used the city directory as well as the poll tax records. One of the commissioners referred to Negroes he knew personally other than those finally selected to serve on the jury. Two commissioners (of the thrre who served, Ark.Stats. 39-201) testified. Portions of that testimony are set forth in the margin.3 We note the emphasis there on proportionate representation. This concept is referred to in Bailey v. Henslee, supra, p. 942 of 287 F.2d and cases cited. 14 Although there are these differences, as is certainly to be expected, between this record and the Bailey record, we are forced to conclude, as did Judge Yong, that the differences are not sufficient for us to reach a conclusion contrary to that reached in Bailey. There, pp. 941-945 of 287 F.2d, we reviewed in some detail the principles attendant upon constitutional jury selection. These principles have been enunciated by the Supreme Court of the United States and they bind this court. We noted four Supreme Court cases which are particularly pertinent. Norris v. State of Alabama, 1935, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; Smith v. State of Texas, 1940, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Every v. State of Georgia, 1953, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244; Eubanks v. State of Louisiana, 1958, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991. We noted, too, p. 943 of 287 F.2d, that the Supreme Court of Arkansas has frequently referred to and followed these principles in opinions both affirming and reversing state criminal convictions. We then observed, citing Supreme Court cases, that 15 'Although the question whether racial discrimination exists has been said to be a question of fact, this does not relieve a federal court of the duty to make independent inquiry and to determine whether a federal right has been denied.' 16 With these principles in mind we conclude on the record before us, as we did on the Bailey record, p. 947 of 287 F.2d: 17 'The foregoing facts, taken in the aggregate, lead us to the conclusion that a prima facie case of limitation of members of the Negro race in the selection of this defendant's petit jury panel was established, (and) that the State did not rebut it * * *. Here there appears to be a definite pattern of race selection; here there is a device for race identification with its possibility of abuse; here there is exclusion from the laternate panels * * *; here there is an element of recurrence of the same Negro names; and here there is the additional factor, for what attmosphere it may provide, of exclusion from the civil Divisions' panels.' 18 This court, after the appeal had been perfected, and upon the Superintendent's application, granted the State of Arkansas time to April 12, 1963, in which to retry Stewart. Hunter Douglas Corp. v. Lando Products, Inc., 9 Cir., 1956, 235 F.2d 631, 632-633. It is possible that the appellant will seek review of our judgment by a petition for certiorari to the United States Supreme Court. We assume that it any such application is made it will be effected prior to the issuance of our mandate or that a stay of mandate will be sought as is contemplated by our Rule 16(c). If this is done, any complication such as that presented in Bailey v. Henslee, 8 Cir., 309 F.2d 840, will be avoided. Accordingly, the Superintendent and the State are now granted still further time in which to retry Stewart to and including the expiration of one hundred twenty (120) days from the date of the filing of this court's mandate with the United States District Court for the Eastern District of Arkansas. If this amount of time is deemed then to be unreasonablyshort, any application by either party for additional time will be directed to the district court. 19 Affirmed. 1 'The State of Arkansas is given seven months from June 12, 1962, to retry Stewart. If, for good cause shown, it becomes impossible or inappropriate to try him within that period of time, application may be made to this court by either Stewart or the State for a reasonable extension of time 'If Stewart is retried, the court will enter dismissal of Stewart's present petition for release on habeas corpus. If he is not retried within the time prescribed in this Opinion, or within such other period of time as may be set by an appellate court, his petition for writ of habeas corpus will be granted. 'Pending a retrial by the State, a stay of execution will issue.' 2 '* * * all poll tax requests coming in by mail are all written, unless otherwise designated, with a 'w', because we have no way of knowing who is white and who is black, and so in order to keep from offending a white person by putting a 'c' by their name or offending a colored person by putting a 'w' by his name we put a 'w' all the way through. The practice in my office for the last 15 years I have been employed there is that in most instances, there are some exceptions, a colored person would be less apt to be offended if there is a 'w' by his name than a white person if we had a 'c' by his name. So there is no accurate way of determining the poll tax or the total number or percentage issued to colored or white in one year '* * * this is a definite fact-- last year the colored people bought more poll taxes than they have ever purchased in the history of Pulaski County, so, you cannot make a fair estimate of last year and the year before. They made an effort to buy more-- you know that. * * *' 3 Commissioner Edward Granoff: 'I seek to selection persons who would make good jurors * * * We tried to get the better type of people-- we tried to get the ones we knew something about. * * * We tried to select the people that would be the best qualified and we spent quit a bit of time on selecting the jury. There was no special investigation. 'Q. As one of the jury commissioners, Mr. Granoff, was it not the intention and plan of the jury commissioners to select three negroes so as to give the negroes their proportionate representation? 'A. We wanted to have some on there so they would have a say in thegovernment of our county. 'Q. You wanted to give them a proportionate part? 'A. Sure. 'Q. You knew that the regular jury panel might be used to trysome negroes and youthought it would be fair to have three negroes on the regular panel, is that correct? 'A. That's right, not only in trying negroes but to use them in trying white people too. 'Q. You wanted tham to have proportionate representation? 'A. That's right. 'Q. Are you a member of some church? 'A. Yes, two. 'Q. Which church? 'A. The First Lutheran and the Jewish Temple up here. I belong to the minority group too, so I don't pick on any of them.' Commissioner Jack L. Branch: 'Q. Mr. Branch, you heard Mr. Granoff testify? 'A. That's right. 'Q. As one of the Jury Commissioners, you, too, thought that the negroes should have representation on the jury? 'A. That's right. 'Q. And in thinking that, you sought to give them three negroes on the regular panel? 'A. Three or six. We worked from 10:00 o'clock in the morning until 5:00. 'Q. On the regular panel you picked three? 'A. That's right. 'Q. In proportion to their proportionate part of the poll tax holders of this county, do you substantially agree with Mr. Granoff's testimony? 'A. Yes, I do. 'Q. Mr. Brahc, the question was asked if you apportioned the negroes that were placed on the regular panel and I took it from Mr. Granoff's testimony that you all didn't have any figures and you don't know what the proportion would be? 'A. We picked enough so they would represent the county government. 'Q. You wanted to put some negroes on the jury and you checked the poll book and you ended up with three? 'A. I know we worked from 10:00 o'clock to 6:00. 'Q. You all made a special effort to see that there were some negroes on there? 'A. That's right.'

01-03-2023

08-23-2011

https://www.courtlistener.com/api/rest/v3/opinions/286558/

416 F.2d 61 UNITED STATES of America, Plaintiff-Appellee,v.Joseph Richard WICK, Defendant-Appellant. No. 17301. United States Court of Appeals Seventh Circuit. August 19, 1969. Certiorari Denied December 8, 1969. See 90 S. Ct. 436. Joseph Howlett, Leonard Bornschein, Shaw, Hanks & Bornschein, by Charles M. Shaw, Clayton, Mo., for defendant-appellant. Richard E. Eagleton, U. S. Atty., Herman C. Runge, Jr., John W. Roberts, Asst. U. S. Attys., Springfield, Ill., for plaintiff-appellee. Before DUFFY, Senior Circuit Judge, KERNER, Circuit Judge, and BEAMER, District Judge.1 KERNER, Circuit Judge. 1 Defendant Joseph Richard Wick, was indicted on three counts for violation of 18 U.S.C. § 472, uttering and possessing counterfeit obligations of the United States with intent to defraud. A jury found defendant guilty on all counts and defendant appeals. 2 On August 11, 1966, defendant picked up Joseph Foley in a 1960 Dodge and drove to Edwardsville, Illinois. In Edwardsville, defendant and Foley went to a card shop. They bought some cards with a counterfeit ten dollar bill. Defendant then went to a clothing store and gave the owner a ten dollar bill for the purchase of a $1.00 pair of socks. The owner of the clothing store refused to accept the bill because he thought it was counterfeit. The owner of the store followed defendant to a 1960 Dodge where he saw defendant put a package in the car. Defendant was arrested at the car with Foley and a woman, Norine Greenberg. In towing the car to the police station an employee for the towing company found a box of counterfeit ten dollar bills in the glove compartment. 3 The woman at the card store and the owner of the clothing store identified the defendant as the one who gave them counterfeit ten dollar bills. At the police station defendant admitted that he knew Foley but denied knowing Norine Greenberg. Norine Greenberg later testified that she was defendant's sister. 4 Defendant attacks the testimony of Agent Allen who interviewed him at the police station because of the agent's failure to give defendant the proper warnings under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R. 3d 974 (1966). The agent testified: 5 I advised him of the fact that he did not have to tell me anything; that anything he told me could possibly be used in Court against him; I advised him of the fact that he had a right to an attorney; I advised him of the fact that if he couldn't afford an attorney, the Government had provisions whereby they would appoint one for him; I advised him that if he chose to answer my questions, he could stop answering questions at any time. And I think that's complete, so far as the advice of the rights are concerned, I think I remember it all. 6 The Court in Miranda said that the defendant should be told "that anything said can and will be used against * *" him. 384 U.S. at 469, 86 S.Ct., at 1625. We do not think that the defendant was prejudiced by the use of the words "could possibly be used. * * *" Since during the interrogation defendant refused to answer any questions regarding the counterfeit money, it is evident he understood the warnings. 7 During the trial Agent Colquhoun testified that at the interrogation he heard Agent Allen ask the defendant where he obtained the counterfeit notes and defendant refused to answer the question. This conversation also was briefly mentioned in the closing argument of the government attorney. Defendant claims that these statements violated his fifth amendment privilege against self-incrimination and that he was prejudiced. In Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R. 3d 974 (1966), the Court extended Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), and held that a defendant's refusal to answer questions at an interrogation could not be used at trial. We agree with defendant that it was error to introduce defendant's reliance on his fifth amendment privilege at the interrogation in the trial. However, we find that the error was harmless. The Court in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), held that for error to be harmless it must be "harmless beyond a reasonable doubt. * * *" 386 U.S. at 24, 87 S.Ct. at 828. In Chapman the state's attorney commented extensively upon the defendants' refusal to testify and interwove their refusal into his entire argument to the jury. Here, the two statements, one by the witness and one by the government attorney, amidst the overwhelming evidence against the defendant including two positive identifications, could not have contributed to the jury's verdict, and we do not think that he was prejudiced. Cf. Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (June 2, 1969). 8 Defendant also alleges that it was prejudicial error to give the following instruction over his objection: 9 A defendant has the absolute right not to testify, and the jury must not draw a presumption of guilt or any inference against the defendant because he did not testify. 10 In Bruno v. United States, 308 U.S. 287, 60 S. Ct. 198, 84 L. Ed. 257 (1939), the Court held that it was error to refuse defendant's request for the instruction. Courts have also held that it is not error for the district judge to give the instruction sua sponte. United States v. Garguilo, 310 F.2d 249 (2d Cir. 1962); Hanks v. United States, 388 F.2d 171 (10th Cir. 1968). There is no evidence that such an instruction has a prejudicial effect but rather it is thought to be helpful. United States v. Garguilo, 310 F.2d at 252. Here, the instruction may have helped to cure any error created by the testimony of the agent and the comment of the government attorney. United States v. Agueci, 310 F.2d 817, 831 (2d Cir. 1962). We do not think it was error to give the instruction in the face of defendant's objection. United States v. Schwartz, 398 F.2d 464, 469-470 (7th Cir. 1968). 11 For the foregoing reasons, the judgment of the district court is affirmed. 12 Affirmed. Notes: 1 Judge George N. Beamer is sitting by designation from the United States District Court for the Northern District of Indiana

01-03-2023

08-23-2011

https://www.courtlistener.com/api/rest/v3/opinions/775805/

273 F.3d 693 (6th Cir. 2001) Carolyn Comstock, Plaintiff-Appellee,v.Norris McCrary; V. S. Thyagarajan; and David Howell, Defendants-Appellants. No. 99-2448 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Argued: April 25, 2001Decided and Filed: December 12, 2001 Appeal from the United States District Court for the Eastern District of Michigan at Detroit., No. 97-74806--Anna Diggs Taylor, District Judge.[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted] Brian T. Dailey (briefed), Todd J. Stearn(argued), BRIAN DAILEY LAW FIRM, Farmington Hills, Michigan, for Plaintiff-Appellee. John L. Thurber (briefed), OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS DIVISION, Lansing, Michigan, Michael C. McDaniel, OFFICE OF THE ATTORNEY GENERAL, TORT DEFENSE DIVISION, Lansing, Michigan, for Defendants-Appellants. Before: MARTIN, Chief Judge; MOORE, Circuit Judge; O'MALLEY, District Judge.* OPINION MOORE, Circuit Judge. 1 Billy Wade Montgomery committed suicide on March 3, 1995 at the Reception and Guidance Center ("RGC") of the State Prison of Southern Michigan. Plaintiff-appellee Carolyn Comstock, the personal representative of Montgomery's estate, brought suit under 42 U.S.C. 1983 against defendants-appellants Norris McCrary, a psychologist, V.S. Thyagarajan, a medical doctor, and David Howell, a physician's assistant, all of whom were employed by the Michigan Department of Corrections, alleging, inter alia, that defendants displayed deliberate indifference to Montgomery's serious medical needs, thereby denying him his rights under the Eighth Amendment to the Constitution. The plaintiff and the defendants cross-moved for summary judgment. The district court denied both parties' motions for summary judgment, concluding that the defendants were not protected from suit by qualified immunity. The defendants appeal the district court's denial of their motions for summary judgment. For the following reasons, we AFFIRM the district court's judgment as to defendant McCrary, but REVERSE as to defendants Howell and Thyagarajan. BACKGROUND 2 On February 22, 1995, Montgomery was transferred from the St. Joseph County Jail in Centerville, Michigan, where he had been housed since June 28, 1994, to the RGC at the State Prison of Southern Michigan.1 Montgomery was completing a sentence for his third Operating Under the Influence of Liquor conviction. His earliest release date from prison was April 11, 1995. Upon his arrival at the RGC, Montgomery was placed in administrative segregation on the floor of a cell block known as "Top 6." 3 On March 2, 1995, Montgomery was referred for psychological evaluation by a resident officer who observed him acting despondently in his cell, and had heard that the previous shift's guard had removed sharp objects from Montgomery out of concern for his safety. Norris McCrary, a prison psychologist, was assigned to evaluate Montgomery. McCrary met with Montgomery in his cell at 10:55 a.m. that morning. McCrary's notes indicate that, in the course of their meeting, Montgomery reported feeling depressed and stated that "his nerves are shot and that he 'feels like he's going to die.'" Joint Appendix ("J.A.") at 61. McCrary then noted, "Inmate reports feeling suicidal but with no specific plan. Lethality however appears to be moderate." Id. McCrary's notes also reveal that Montgomery "[s]tated that he wasn't being pressed or threatened by anyone." Id. At 11:30 a.m., McCrary placed Montgomery on close observational status, or "suicide watch." While on suicide watch, Montgomery was dressed in a suicide or "bam-bam" suit, restricted to finger foods, prohibited from having sharp objects, and checked on every ten minutes. McCrary also scheduled Montgomery to meet with the Outpatient Mental Health Team. J.A. at 24, 61, 107. 4 The next day, March 3, 1995, at 9:45 a.m., Howell conducted a previously scheduled physical examination of Montgomery. McCrary's notes from his interview with Montgomery the day before were not in the file. J.A. at 179 (Howell Dep.). Howell made a contemporaneous "progress report," which noted the following: 5 Patient seen in "BAM-BAM" suicide prevention garment . . . states that he is not depressed and has no thoughts of self-harm. States that his main problem is that other inmates have threatened to kill him because they believe he is a "snitch" -- stated he had thoughts of dying in order to get locked down in safe area. No psychotic signs/symptoms noted. 6 J.A. at 62. Howell's progress note was placed in Montgomery's medical file. Howell did not report to anyone that Montgomery had been labeled a snitch.2 7 Thyagarajan, who was Howell's supervisor, reviewed Howell's progress note as required by prison procedure, and signed off on the note sometime on March 3, 1995. J.A. at 62, 203. He never met with Montgomery or looked at his medical records. 8 At 10:13 a.m. that same morning, following Howell's visit, McCrary met with Montgomery for slightly less than a half hour, during which time he reevaluated Montgomery's mental state. McCrary performed his evaluation by speaking with Montgomery. He stated that while the conversation did not last a long time, it "was enough time for me to ascertain from him, you know, was he feeling suicidal." J.A. at 84 (McCrary Dep.). McCrary then stated that he "suspected that something was going on between Mr. Montgomery and the other prisoners. But Mr. Montgomery did not inform me of what that was. I asked him that question again when I saw him on the 3rd, and he still didn't say anything to me about that." Id. Based on their conversation, McCrary concluded that, 9 [H]e wasn't suicidal. That's what he told me. He said he wasn't feeling suicidal. He had no thoughts of going to hurt himself. I did ask him some questions, mental status. And he said something that he knew he was going to go back up to Top Six. 10 And when he told me that he wasn't feeling suicidal, and based just on his affect and how he came across to me, I took him at his word that he wasn't feeling suicidal. So I took him off of close observational status. 11 Id. (emphasis added). According to McCrary, there was a change from Montgomery's demeanor the day before: Montgomery was "less anxious," and "he didn't seem to be as worried and uptight as" he had been. Id. Indeed, he was like "a lot of prisoners who've been in the same situation." Id. Therefore, he recommended that Montgomery be sent back to his cell in administrative segregation. 12 At approximately 4:29 p.m. that afternoon, Montgomery committed suicide in his cell on Top 6 by hanging himself with a sheet fashioned into a rope. He left a suicide note for his girlfriend which read: "I love you Cindy, and I always will. I am sorry, but I couldn't let them do it to me. Please forgive me. I will always be with you. Love, always and forever." J.A. at 70 (Suicide Note). 13 Subsequent to her appointment as the representative of Montgomery's estate, Comstock commenced this litigation by bringing suit under 42 U.S.C. 1983 against McCrary, Howell, and Thyagarjan, in their individual capacities. The complaint alleged that defendants violated Montgomery's Eighth Amendment right to be free from cruel and unusual punishment by displaying deliberate indifference to his medical needs, and that, under state law, they were grossly negligent in his care. In an amended complaint, Comstock added an Eighth Amendment failure-to-protect-from-harm claim against McCrary and Howell. 14 Comstock then moved for summary judgment with respect to defendant McCrary, alleging that there was no genuine issue of material fact that McCrary recklessly removed Montgomery from suicide watch "without conducting any investigation into the reasons and causes underlying Mr. Montgomery's suicidal ideation" and that this conduct proximately caused Montgomery's death. J.A. at 36. According to Comstock, McCrary's failure to perform a thorough psychological examination, which would have revealed that Montgomery had been labeled a "snitch" and that his suicidal urge was motivated by his fear of the other inmates, amounted to deliberate indifference to Montgomery's serious medical needs. As evidence of this deliberate indifference, McCrary simply took Montgomery at his word that he was feeling better and released him from suicide watch, instead of taking steps to confirm Montgomery's changed mental status, identify the source of Montgomery's fears, and take further action to protect Montgomery from himself. 15 In response, McCrary filed a motion for summary judgment, asserting that he did not perceive that there was a substantial risk of harm to Montgomery on March 3, 1995 when he made the decision to release Montgomery from close observation. J.A. at 160. Moreover, McCrary argues, whether he could have performed a more in-depth evaluation of Montgomery is irrelevant because a dispute over a doctor's medical judgment does not amount to a violation of a patient's constitutional rights. He then asserted that, "[a]t the very least," he was entitled to qualified immunity. J.A. at 162. McCrary also sought summary judgment on the claims for failure to protect under the Eighth Amendment and gross negligence under state law. 16 Defendants Howell and Thyagarajan then moved for summary judgment, respectively, asserting that they failed to perceive that Montgomery posed a risk of harm to himself and that their lack of knowledge was not disputed. Each also invoked the shield of qualified immunity. 17 The district court denied plaintiff's motion for summary judgment on her claims of deliberate indifference and gross negligence, as well as McCrary's cross-motion on those counts, finding that summary judgment was inappropriate because there were genuine issues of material fact in dispute. The district court also denied McCrary's motion for summary judgment based on qualified immunity, although it granted McCrary's motion for summary judgment on the failure to protect claim. J.A. at 251. 18 All three defendants then filed a renewed motion for summary judgment arguing for qualified immunity in light of this court's decision in Williams v. Mehra, 186 F.3d 685 (6th Cir. 1999) (en banc), handed down after the district court's first order. Thereafter, the district court held a hearing on the applicability of Williams to the case before it, and again denied the defendants' motion for summary judgment. J.A. at 303. Defendants' timely interlocutory appeal followed. J.A. at 288. ANALYSIS I. Jurisdiction 19 Before proceeding to the merits of this case, we must consider our jurisdiction to hear this appeal. A district court's denial of a motion for summary judgment is generally not appealable because the applicable statute, 28 U.S.C. 1291, only vests appellate courts with jurisdiction over a district court's "final decision." "Given this statute, interlocutory appeals -- appeals before the end of district court proceedings -- are the exception, not the rule." Johnson v. Jones, 515 U.S. 304, 309 (1995). The Supreme Court has held, however, that under the collateral order doctrine, "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Subsequently, in Johnson v. Jones, 515 U.S. at 313, the Supreme Court clarified that the Mitchell decision was "explicitly limited . . . to appeals challenging, not a district court's determination about what factual issues are 'genuine,' . . . but the purely legal issue what law was 'clearly established'." Consistent with Johnson, we have stated that "in order for an interlocutory appeal to be appropriate, a defendant seeking qualified immunity must be willing to concede to the facts as alleged by the plaintiff and discuss only the legal issues raised by the case." Shehee v. Luttrell, 199 F.3d 295, 299 (6th Cir. 1999) (citing Berryman v. Rieger, 150 F.3d 561, 564 (6th Cir. 1998)). 20 Although factual issues were contested before the district court, for the purposes of this appeal, both parties have explicitly stipulated to plaintiff's version of the facts.3 Cf. Booher v. N. Kentucky Univ. Bd. of Regents, 163 F.3d 395, 396 (6th Cir. 1999) (determining that appellate court lacked jurisdiction over defendants' appeal from district court's decision denying them qualified immunity because, while defendants claimed in their brief that they had conceded facts on appeal, defendants actually disputed "several of the factual determinations underlying the district court's denial of qualified immunity"). Therefore, just as we held in Williams v. Mehra, 186 F.3d 685, 690 (6th Cir. 1999) (en banc), another prisoner-suicide case in which the defendants-officials invoked qualified immunity, because this case turns on whether the facts, admitted by the defendants for purposes of this appeal, "'show[] a violation of clearly established law,' not on 'which facts the parties may be able to prove,' the district court's denial of qualified immunity is a 'final order' under 28 U.S.C. 1291, and we have jurisdiction to decide the case on the merits." Id. (quoting Johnson, 515 U.S. at 311). II. Standard of Review 21 We review a district court's denial of qualified immunity de novo. Shehee, 199 F.3d at 299; Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996). III. Qualified Immunity 22 In civil suits for money damages, government officials acting in their official capacity are entitled to qualified immunity for discretionary acts which do not violate clearly established law of which a reasonable person would have known. Anderson v. Creighton, 483 U.S. 635, 638 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is not a defense to liability; where it is applicable, its purpose is to shield the officer from suit altogether, saving him from the burdens of discovery and costs of trial. Mitchell, 472 U.S. at 526. The Supreme Court has recently clarified that, in order to assess whether the defendants-officials in this case should be cloaked with immunity from suit, we must engage in a two-part, sequential analysis: first, we must determine whether the plaintiff has alleged facts which, when taken in the light most favorable to her, show that the defendant-official's conduct violated a constitutionally protected right; if we answer the first question in the affirmative, we must then determine whether that right was clearly established such that a reasonable official, at the time the act was committed, would have understood that his behavior violated that right. Saucier v. Katz, 121 S. Ct. 2151, 2156 (2001). 23 It is crucial, the Supreme Court has noted, that the second inquiry "be undertaken in light of the specific context of the case, not as a broad general proposition." Id. Thus, "[t]he relevant, dispositive inquiry . . . is whether would it be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." In other words, as the Court stated in Anderson, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640. We need not, of course, find a case in which "the very action in question has previously been held unlawful," but, "in the light of pre-existing law[,] the unlawfulness must be apparent." Id. In evaluating the contours of the right, "we look first to decisions of the Supreme Court, then to decisions of this Court and other courts within our circuit, and finally to decisions of other circuits." Dickerson, 101 F.3d at 1158 (internal quotation omitted). 24 Addressing the first inquiry of the qualified immunity analysis, whether plaintiff has alleged facts which, when assumed to be true, show that the defendants' conduct violated a constitutional right, the Supreme Court has held that, under the Eighth Amendment's proscription on cruel and unusual punishment, prisoners have a constitutional right to medical care. Estelle v. Gamble, 429 U.S. 97, 103 (1976). The Court explained that a prisoner's Eighth Amendment right is violated when prison doctors or officials are deliberately indifferent to the prisoner's serious medical needs. Id. at 104. While the right to medical care for serious medical needs does not encompass the right "to be screened correctly for suicidal tendencies," we have long held that prison officials who have been alerted to a prisoner's serious medical needs are under an obligation to offer medical care to such a prisoner. Danese v. Asman, 875 F.2d 1239, 1244 (6th Cir. 1989), cert. denied, 494 U.S. 1027 (1990), (noting that "[i]f a prisoner asks for and needs medical care, it must be supplied"); see also Yellow Horse v. Pennington Cty., 225 F.3d 923, 927 (8th Cir. 2000) (holding that prisoner "had a clearly established constitutional right to be protected from the known risks of suicide and to have his serious medical needs attended to"); Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989) (noting that prison inmate has Eighth Amendment right be free from deliberate indifference to serious psychiatric needs). 25 An Eighth Amendment claim has two components, one objective and one subjective. To satisfy the objective component, the plaintiff must allege that the medical need at issue is "sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the subjective component, the plaintiff must allege facts which, if true, would show that the official being sued subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and that he then disregarded that risk. Farmer, 511 U.S. at 837. Emphasizing the subjective nature of this inquiry, the Supreme Court has noted that "an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment." Id. at 838 (emphasis added). 26 The requirement that the official have subjectively perceived a risk of harm and then disregarded it is meant to prevent the constitutionalization of medical malpractice claims; thus, a plaintiff alleging deliberate indifference must show more than negligence or the misdiagnosis of an ailment. See Estelle, 429 U.S. at 106 ("[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment."); Farmer, 511 U.S. at 835 (noting that deliberate indifference "describes a state of mind more blameworthy than negligence"). When a prison doctor provides treatment, albeit carelessly or inefficaciously, to a prisoner, he has not displayed a deliberate indifference to the prisoner's needs, but merely a degree of incompetence which does not rise to the level of a constitutional violation. On the other hand, a plaintiff need not show that the official acted "for the very purpose of causing harm or with knowledge that harm will result." Farmer, 511 U.S. at 835; see also Horn, 22 F.3d at 660 ("Officials may be shown to be deliberately indifferent to such serious needs without evidence of conscious intent to inflict pain."). Instead, "deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk." Farmer, 511 U.S. at 836. 27 Although the plaintiff bears the onerous burden of proving the official's subjective knowledge, this element is subject to proof by "the usual ways." Farmer, 511 U.S. at 842. Thus, the Supreme Court noted that it was permissible for reviewing courts to infer from circumstantial evidence that a prison official had the requisite knowledge. Id. at 842. Moreover, the Court warned, a prison offical may "not escape liability if the evidence showed that he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist." Id. at 843 n.8. 28 With these principles in mind, we turn to the merits of plaintiff's case. A. Defendant-Appellant McCrary 29 (1)Objective component of Eighth Amendment claim 30 As noted above, to satisfy the objective component of an Eighth Amendment claim, the plaintiff must allege that the medical need at issue is "sufficiently serious." Farmer, 511 U.S. at 834. We have held that a prisoner's "psychological needs may constitute serious medical needs, especially when they result in suicidal tendencies." Horn v. Madison Cty. Fiscal Ct., 22 F.3d 653, 660 (6th Cir. 1994). Because plaintiff alleges that defendants were indifferent to Montgomery's psychological needs, namely his suicidal tendency, she easily satisfies the objective component of her constitutional claim. 31 (2)McCrary's subjective knowledge that Montgomery posed serious risk of harm to himself 32 To satisfy the first part of the subjective component of her Eighth Amendment claim, plaintiff alleges that McCrary had subjective knowledge of Montgomery's risk of suicide on March 3, 1995 because he had placed him on close observational status the day before. McCrary counters that because Montgomery lied to him about his mental state on March 3, 1995, he did not subjectively perceive that Montgomery was suicidal when he released him from suicide watch. Because he lacked the requisite subjective perception of Montgomery's suicidal state, McCrary argues that he cannot be found deliberately indifferent to Montgomery's medical needs. 33 While defendants try to frame our analysis as whether McCrary perceived that Montgomery was suicidal when he made the decision to release Montgomery from close observation, we believe that the proper analysis requires us to ask whether McCrary perceived that Montgomery was suicidal when he commenced his evaluation of Montgomery on the morning of March 3, 1995. We believe that we must focus on this anterior question because it was McCrary's cursory evaluation of Montgomery prior to his recommendation that Montgomery be released which, according to plaintiff, constituted the deliberate indifference to Montgomery's serious medical needs. 34 When viewed from the proper perspective, we believe that the plaintiff has alleged sufficient facts from which a trier of fact could conclude that McCrary subjectively perceived that Montgomery was suicidal when he went to evaluate Montgomery on the morning of March 3, 1995. We know that McCrary had found Montgomery suicidal on March 2, 1995 because he took notes remarking on Montgomery's suicidal state and placed Montgomery on close observational status. J.A. at 61 (McCrary progress note). In the absence of any intervening events, we must conclude that, when McCrary went to interview Montgomery on the morning of March 3, 1995, he still believed him to be at risk of serious self-inflicted harm. Cf. Ellis v. Washington Cty. & Johnson City, Tenn., 198 F.3d 225, 227 (6th Cir. 1999) (rejecting plaintiff's claim that jailors were deliberately indifferent to prisoner because prisoner gave no indication of his suicidal state from the time he arrived at jail to moment he committed suicide that would have put a reasonable jailor on notice of prisoner's suicidal intent); Horn, 22 F.3d at 660 (same). 35 Moreover, plaintiff has put forward evidence tending to show that McCrary was aware that Montgomery was having problems with other inmates, which was at least one source of Montgomery's suicidal urge. Although in his deposition McCrary stressed that Montgomery did not explicitly tell him, either on March 2 or March 3, 1995, that he had been labeled a "snitch" and that the other prisoners were threatening him, McCrary's deposition testimony reveals that he had knowledge that Montgomery was not on good terms with the other members of his cell block. 36 Q: When you evaluated Mr. Montgomery on March 2nd and March 3rd of '95, did, in your opinion, did you feel like he felt in any physical jeopardy or peril from other inmates? 37 A: That was something that was on my mind that I asked Mr. Montgomery several times, both on the second and the third, but -- I had a suspicion that something was going on, but Mr. Montgomery would not tell me directly that something was going on between him and the other prisoners. 38 Q: Why were you suspicious that something was going on? 39 A: The first time I had contact with him, on the 2nd, when I went up to top six to see him, the other inmates were making a lot of noise and racket, which seemed to me sort of out of place. I mean, it was more than just general chitchatter. When I first had contact with Mr. Montgomery I was interviewing him through his cell door, and I couldn't hear exactly what the other inmates were saying, but they just seemed to be making a lot of agitation, a lot of noises and whatnot. And I just -- and in terms of me talking with him, I asked him directly, I said, Are you being pressed by the other inmates? I asked him that question directly, and he -- only thing he said to me -- now, these are his words -- he said, There's some shit going on up here. That's all he said with regard to that, he didn't say anything else. And then I went on ahead to assess his mental status. 40 * * * * * * 41 Q: At that time what did you think, in your opinion, based on your experiences in the prison, and, again, with inmates, was the reason for the commotion; what do you think they were agitated about? 42 A: Well, I did ask Mr. Montgomery was he being pressed and meant, you know, was he having problems with the other inmates, have the other inmates threatened him, and, of course, the other inmates could threaten another inmate for a variety of reasons. I didn't know what particularly was going on, but I just had -- and I felt that it was something going on between him and the other men on the block. 43 Q: They didn't like him? 44 A: They didn't like him for some reason, yes. 45 J.A. at 93, 96 (emphases added). When asked to describe the commotion on the floor when he went to visit Montgomery, McCrary stated that "it seemed like the whole block was just sort of in an uproar. It seemed like noise was not just coming from one or two men in a couple adjacent cells, it just seemed like a whole block that the inmates were just being verbally agitated and were making a lot of noise. And as I was talking to Mr. Montgomery, so I just thought maybe there's something else going on up here . . . ." J.A. at 94-95 (emphasis added). Indeed, McCrary reported that the inmates "were yelling" and that he "had to kind of get closer to the door to hear what Mr. Montgomery was saying, that's how loud the noise was." Id. 46 McCrary's testimony reveals that, because of the "uproar," the unusual amount of "noise and racket," and the "yelling" coming from the cellblock when he went to visit Montgomery, he "had a suspicion" that "something was going on between him and the other men on the block," and that he perceived that the other inmates "didn't like" Montgomery for some reason. Although it is true that Montgomery did not directly inform McCrary that he had been labeled a "snitch" and felt threatened, neither did he deny it. Instead, he informed McCrary that, "[t]here's some shit going on up here," indicating that he was, in fact, experiencing some difficulty with the other prisoners, although he apparently declined to elaborate further on the nature of the difficulty.4 47 In light of McCrary's admitted suspicion on March 2, 1995 that "something was going on between [Montgomery] and the other men on the block" and his conclusion that Montgomery was suicidal enough to be placed under close observation, we must conclude that McCrary subjectively perceived the risk of serious harm to Montgomery on March 3, 1995, including the fact that Montgomery's mental state was affected by the other inmates' dislike for him. McCrary cannot escape a finding of his subjective knowledge of risk just because he "declined to confirm inferences of risk," namely that Montgomery felt threatened by other prisoners, "that he strongly suspected to exist." Farmer, 511 U.S. at 843 n.8. 48 (3) Evidence demonstrating that McCrary disregarded the risk of serious harm 49 Even though, on the facts alleged, McCrary perceived a substantial risk of serious harm to Montgomery on the morning of March 3, 1995, McCrary may still prevail if he "responded reasonably to the risk, even if the harm ultimately was not averted." Farmer, 511 U.S. at 844. In other words, if McCrary was not "failing to treat" Montgomery, or "doing less than [his] training indicated was necessary," Williams, 186 F.3d at 692, when he reevaluated Montgomery on March 3, 1995, then he cannot be said to have consciously disregarded the risk of serious harm. 50 Comstock asserts, and McCrary admitted in his deposition testimony, that, when making the decision to send Montgomery back to his cell, McCrary did not (1) review the battery of psychological tests administered to Montgomery on February 27, 1995, J.A. at 81; (2) review Montgomery's medical records or institutional file, and therefore did not read Howell's progress note indicating that Montgomery had been labeled a snitch, J.A. at 85; (3) speak to the resident officer who had referred Montgomery for a psychological consultation, J.A. at 86; (4) speak with the prison guards who daily observed Montgomery, J.A. at 87; (5) check the log book entries kept by the RGC control center or Top 6 where Montgomery was housed, J.A. at 92, which noted that Montgomery told a prison guard that "they are going to kill him," J.A. at 105, and that he did not want yard time and did not want to shower, J.A. at 106; or (6) speak with other two psychologists who had met with Montgomery previously, J.A. at 90. Plaintiff also claims that McCrary did not ensure that the Outpatient Mental Health Team conducted an evaluation of Montgomery, as McCrary had ordered only the day before. 51 Comstock further alleges that McCrary's conduct violated the Department of Corrections policy directive regarding suicide prevention in several ways: (1) he failed to review the custody staff referral form CHX-212 or, alternatively, speak with the custody officers who referred Montgomery for evaluation; (2) he failed to follow form CHJ-180, an evaluation of suicide risk prisoners, and to review Montgomery's institutional file and health record; and (3) he failed to complete a written health record when removing Montgomery from close observation. J.A. at 40 n.3, 153 (Suicide Prevention Policy Directive). 52 Notwithstanding the facial inadequacy of McCrary's March 3, 1995 evaluation, McCrary's own deposition testimony reveals that he did not respond reasonably to, and therefore disregarded, the risk that Montgomery might inflict harm upon himself when he interviewed Montgomery on the morning of March 3, 1995. His testimony is particularly striking in light of the fact that McCrary testified that he knew that a prisoner might lie about how he was feeling in order to be taken off close observation and to thereby gain an opportunity to commit suicide. J.A. at 81 (McCrary Dep.); see also J.A. at 99 (McCrary Dep.) ("Well, a lot of times inmates are not truthful about things that are going on with them, so it doesn't surprise me that, in this instance, that maybe that same kind of thing was happening."). 53 McCrary testified at length about the ways in which his evaluation of Montgomery's mental status would have been improved by consultation with other sources in order to corroborate Montgomery's assertion that he was feeling fine and that he was not being threatened by other inmates. In his deposition, McCrary acknowledged (1) that reviewing the results of the battery of psychological tests administered to Montgomery on February 27, 1995 in conjunction with his progress note of March 2, 1995 would have heightened his awareness that Montgomery was at risk of committing suicide, J.A. at 83; (2) that, had he reviewed Montgomery's medical file prior to releasing him from close observation, he would have known that Montgomery had confided in Howell about being labeled a "snitch" and that Montgomery was, therefore, lying to him about his fear of the other inmates; (3) with this information, he would have recommended that Montgomery be taken off of close observational status and placed in protective custody, as opposed to being sent back to his cell in administrative segregation, J.A. at 85; (4) there was no reason why he did not look at the medical file before meeting with Montgomery, and that he easily could have looked at the file but chose not to, J.A. at 85; (5) information gleaned from conversations with custody officers who observed Montgomery would have been useful in evaluating Montgomery's mental state, J.A. at 87; and (6) entries in the log book from February 28, 1995, just two days before he evaluated Montgomery, which indicated that Montgomery stated "they are going to kill him," J.A. at 105, that he did not want yard time, that he would not open his door during yard time, and that he refused a shower, J.A. at 106, would have alerted him to the fact that Montgomery was lying to him about feeling threatened by other inmates, J.A. at 98. Finally, McCrary stated that, if he had known all of the information that was available to him, he would not have removed Montgomery from close observational status, J.A. at 102, and that he would have determined that Montgomery was a suicide threat, J.A. at 104. 54 McCrary's defense hinges on whether his decision to evaluate Montgomery by merely asking him questions, as opposed to performing any additional corroborative investigation, constituted "an inadvertent failure to provide adequate medical care," Estelle, 429 U.S. at 105, or a reasonable response to a known risk to the inmate's health or safety, Farmer, 511 U.S. at 844, both of which would entitle him to qualified immunity.5 Supporting plaintiff's contentions that McCrary was deliberately indifferent to Montgomery's serious medical needs are depositions from three experts, one by Dr. Robert Walsh, who was the Administrator of Psychological Services for the Jackson Clinical Complex, one by Brian Smith, a Department of Corrections psychologist in 1995, and one by Dr. Gerald Shiener, the plaintiff's expert psychiatrist, describing the appropriate standard of care. 55 Dr. Walsh testified in a deposition that, had he committed a prisoner to close observational status on day one, he would perform the following evaluation on day two: 56 I would review whatever file material I had on him. I would probably talk with the officers that are up there in terms of any observations they might have on him. And then I would sit down and have an interview with him. 57 I would evaluate what he was telling me and compare it with what was going on the day before. I would evaluate his affect or his emotion, how coherent and how clear his thinking and thoughts seem to be and I would try to compare the difference between the two to look for any change in terms of the factors that were present the day before and how they compare with the way he is interacting on this new day. 58 J.A. at 133 (Walsh Dep.). Dr. Walsh then stated that he would not take anyone off suicide watch without reviewing his medical file, J.A. at 134; that it was "routine[]" to talk to the custody officers who referred the inmate to psychological services, because they would tell him anything "that the prisoner isn't telling" him, J.A. at 134; that he would "definitely" look at the control center log book for "[a]nything unusual" that would be noted there, J.A. at 138, and that he would "definitely" look at any psychological testing that had been done, J.A. at 140. Finally, he noted that it would be "inconceivable" that he would fail to consult the above sources of information if they were available to him. J.A. at 149. 59 Brian Smith, the Department of Corrections psychologist, testified that it would be "helpful" to review the results of any psychological testing when evaluating an inmate's mental health; it would be "helpful" to review the medical file, and that he could not recall an incident in which he had released an inmate from suicide watch without reviewing the medical file; that it would be "routine" to talk to the custody officers on the inmate's cell block when evaluating the inmate; and that, prior to placing an inmate on close observational status, he would have checked the log books for observations made by custody officers for "collaborative information." J.A. at 112-13. 60 Finally, Dr. Shiener, a psychiatrist and an expert for the plaintiff, testified that McCrary's March 3, 1995 interview with Montgomery was "grossly inadequate," and that McCrary "used none of his professional skills" in making the assessment that Montgomery was no longer suicidal. J.A. at 124 (Shiener Dep.). Dr. Shiener noted that "certain obvious and glowing factors were ignored in a very cavalier manner," J.A. at 123 (Shiener Dep.), including the fact that only the day before, McCrary had "judged [Montgomery] to be at such great risk that he should be relieved of his clothes; not given utensils but only finger foods; be placed in a situation of close observation and . . . that nothing had really changed [from the day before]." J.A. at 125-26 (Shiener Dep.). Dr. Shiener then elaborated: 61 There's no documentation that he [McCrary] talked to him [Montgomery] in any depth or at any length. There's no documentation that he described or appreciated what had changed, other than the fact that, "Oh, he was saying he was going to kill himself yesterday. He's saying he's not going to do it today." And there was no detailed description of his emotional state, his state of agitation, his state of desperation, what his resolution was about some of the problems he was facing in the population. There was none of that." 62 J.A. at 127 (Shiener Dep.) (emphasis added). 63 McCrary offers nothing to refute the evidence that his level of care was grossly substandard other than to say that he exercised his medical judgment when he removed Montgomery from suicide watch. Neither does he dispute plaintiff's assertion that when he discharged Montgomery, he failed to follow the prison's policies with regard to suicide prevention. Indeed, the Michigan Department of Corrections Police Directive on Suicide Prevention, included in the record, J.A. at 150, indicates that a psychologist's evaluation of an inmate who has been placed in close observation must "include review of the prisoner's institutional file and health record as well as an interview with the prisoner." J.A. at 153 (emphasis added). There is nothing in the record to indicate that McCrary followed these procedures. Cf. Yellow Horse, 225 F.3d at 927-28 (affirming summary judgment for prison guard because plaintiff could point to no evidence showing that guard failed to follow prison policies when releasing inmate from suicide watch). 64 After reviewing this record in the light most favorable to the party alleging a constitutional injury, we are left with the impression that McCrary did not act with actual malice or an intent to harm Montgomery. On the other hand, McCrary's failure to conduct any investigation into whether Montgomery was lying to him about his state of mind must, when compared to the standard of care described by Dr. Walsh and Smith for evaluating a suicidal inmate's mental state, as well as the prison's internal policies for suicide prevention, be considered more than negligent. Cf. Sanderfer v. Nichols, 62 F.3d 151, 155 (6th Cir. 1995) (holding that where nurse treated inmate for asthma and inmate subsequently died of heart failure, nurse was, at most, negligent in her care, despite fact that she failed to learn from inmate's medical records that he had high blood pressure and to treat him accordingly, because she was not aware that inmate was at substantial risk of heart failure). Simple negligence would have been the failure to perform one, or even some, of the tasks that the other psychologists testified would be "routinely" conducted by them in evaluating a known suicide risk. In this case, however, McCrary admittedly performed none of these tasks, other than to ask Montgomery how he was feeling, and then to take him at his word that he was better. Our conclusion that McCrary's conduct was more than negligent is bolstered by the fact that he had found Montgomery sufficiently at risk to put him on suicide watch only the day before; that he knew that something was going on between Montgomery and the other inmates, and that the other inmates did not like Montgomery; and that he knew that suicidal inmates on close observational status may lie about their state of mind to facilitate their transfer to a place where they have an opportunity to commit suicide, but he took no precaution to account for that possibility. 65 Having concluded that McCrary's conduct was clearly more than negligent, we are left with the question whether it was recklessly indifferent. Defendants strenuously argue that the answer is provided by Williams v. Mehra, another prisoner-suicide case, in which we held that the defendants-psychiatrists who administered care to the prisoner should be granted qualified immunity. We believe Williams is completely distinguishable from the instant case. The Williams decision was based upon the en banc court's conclusion that while the defendants-psychiatrists there perceived that the patient-inmate was suicidal, they did not, through their method of treatment, clearly disregard the risk that he would inflict self-harm. In that case, the defendants-psychiatrists knew that the inmate had previously attempted to kill himself by overdosing on pills, so they administered his medication to him in a pill line to prevent the possibility of hoarding. Despite the precaution of the pill line, the inmate managed to stockpile pills and ultimately killed himself by overdosing. See Williams, 186 F.3d at 688-89. We rejected the plaintiff's 1983 claim alleging that the defendants-psychiatrists who had cared for the inmate were deliberately indifferent to his medical needs because they failed to give him his medication in liquid, as opposed to pill, form. In concluding that defendants-psychiatrists did not disregard the risk of harm to the inmate, we noted that "the doctors recognized the possibility of suicide and prescribed [the inmate's] medication knowing that it would be dispensed, one dose at a time, under the supervision of a nurse who would watch while he took it to prevent hoarding." Id. at 692. In light of this method of treatment, we noted that "[t]here is nothing to suggest that the doctors were failing to treat [the inmate] or doing less than their training indicated was necessary." Id. 66 In this case, in contrast, there is an abundance of evidence that McCrary did not respond reasonably to the substantial risk of harm, of which he was subjectively aware, to Montgomery's health and safety. See Farmer, 511 U.S. at 844. Contrary to McCrary's assertions, we do not quarrel over whether "an additional diagnostic technique[] or form[] of treatment," Estelle, 429 U.S. at 107, would have been helpful in preventing Montgomery's suicide. On the record before us, it does not appear that McCrary chose one medically reasonable form of treatment over another, as did the doctor in Estelle, who treated an inmate suffering from chronic back pain with bed rest, muscle relaxants, and pain relievers, instead of ordering an X-ray which might have better diagnosed the inmate's problem, or the psychiatrists in Williams, who took the precaution of administering the inmate's medication to him in a pill line, although not in liquid form, to prevent the possibility of hoarding and overdosing. In this case, the plaintiff has alleged facts which show that McCrary released Montgomery from suicide watch without making any "reasoned assessment or evaluation of the patient's suicide risk," J.A. at 126 (Shiener Dep.). 67 Because we must adopt as true, for purposes of our review, Dr. Shiener's conclusion that McCrary's evaluation was "grossly inadequate" and was conducted with "none of [McCrary's] professional skills," J.A. at 124, as well as the fact that McCrary's follow-up "evaluation" left him with no way to corroborate Montgomery's self-serving statement that he was feeling better, despite the fact that McCrary knew that a suicidal prisoner on close observation may lie in order to gain the opportunity to commit suicide, we conclude that plaintiff has presented sufficient evidence that, if true, would show that McCrary's evaluation was unreasonable and constituted deliberate indifference to the risk that Montgomery would harm himself when presented with the opportunity. Cf. Jacobs v. West Feliciana Sheriff's Dep't, 228 F.3d 388, 395-96 (5th Cir. 2000) (finding that plaintiff had presented sufficient evidence for jury to conclude that sheriff who knew that inmate was suicidal was deliberately indifferent to inmate, even though he "did not completely ignore [inmate's] suicidal condition," because he put inmate in cell with "tie-off points" and a blind spot). 68 (4)Clearly Established Law 69 Once we have concluded that plaintiff has alleged facts which, if true, would show the violation of a constitutional right, we must assess whether that right was clearly established in March 1995 such that a reasonable official would have understood that his conduct violated the right. See Saucier, 121 S. Ct. at 2159; Danese, 875 F.2d at 1242 (noting that relevant question "is whether any official could have, in light of the preexisting law, reasonably believed that his action was lawful"). As the Supreme Court has instructed, we need not find a case in which "the very action in question has previously been held unlawful," but, "in the light of pre-existing law[,] the unlawfulness must be apparent." Anderson, 483 U.S. at 640. 70 The right at issue in this case is not, as defendants argue, the right to be diagnosed accurately for one's propensity to commit suicide; Montgomery had already been correctly identified as suicidal by McCrary and the prison staff. As we have discussed above, the right that plaintiff claims on Montgomery's behalf is the more basic right to continuing medical treatment once a prisoner has been determined to be suicidal. This circuit has consistently recognized a prisoner's established right to medical attention once the prisoner's suicidal tendencies are known. See Williams, 186 F.3d at 691 (recognizing implicitly that suicidal condition is serious medical condition which requires medical attention and relying on Estelle, 429 U.S. at 105-06, for principle that "the right at issue is [prisoner's] right not to have his serious medical needs treated with deliberate indifference"); Horn, 22 F.3d at 660 (recognizing that prisoner's psychological needs may constitute serious medical needs which require medical attention, especially when they result in suicidal tendencies); Danese, 875 F.2d at 1244 (noting that if officials have knowledge that prisoner is suicidal, they cannot ignore his needs). 71 Based on case law from the Supreme Court and our circuit, we conclude that a reasonable prison psychologist in 1995 "would have clearly understood that [he] was under an affirmative duty" to offer reasonable medical care to a prisoner whom he knew to be suicidal, in the circumstances confronted by McCrary. Rich v. City of Mayfield Heights, 955 F.2d 1092, 1095 (6th Cir. 1992). Because, viewed in the light most favorable to plaintiff, McCrary's conduct violated Montgomery's constitutionally protected right to medical care for his serious medical needs under the Eighth Amendment, and the constitutional right was clearly established such that a reasonable official, at the time McCrary acted, would have understood that his behavior violated that right, we AFFIRM the district court's denial of summary judgment with respect to McCrary. B. Defendant-Appellant Howell 72 As noted earlier, to establish that Howell violated Montgomery's clearly established right to medical treatment, plaintiff must put forward facts which would show that Howell was deliberately indifferent to Montgomery's health and safety. Plaintiff is unable, however, to allege facts from which we could conclude that Howell subjectively perceived "a substantial risk of serious harm" to Montgomery's health and safety. Of course, Montgomery was presumptively suicidal because he was on suicide watch. Plaintiff, however, must do more than put forward facts that would show that Howell, the physician's assistant, perceived Montgomery to be suicidal. Even if he was aware that Montgomery was suicidal, Howell would not have perceived that Montgomery posed a substantial risk of harm to himself while on suicide watch. During Howell's physical examination, Montgomery was in close observational status and dressed in a suicide prevention garment. Montgomery had been stripped of his personal clothing, limited to finger foods, and was checked on every ten minutes; all sharp objects had been removed from his surroundings. It is simply impossible for us to conclude that Howell perceived a substantial risk that Montgomery would commit suicide when he observed Montgomery in these circumstances. Thus, plaintiff has failed to put forward facts that would demonstrate that Howell was aware of a substantial risk of serious harm to Montgomery, i.e., that Montgomery actually would, or could, inflict serious harm to himself while on suicide watch. 73 In other words, even if he subjectively perceived that Montgomery was suicidal, Howell had no way of knowing that McCrary would remove Montgomery from suicide watch shortly after the physical examination and thus that Montgomery would have the opportunity to carry through on any perceived suicidal intentions. Howell played no part in McCrary's decision to remove Montgomery from suicide watch. Although Howell recorded his observations of Montgomery in a brief progress note, the record is clear that McCrary failed to consult this progress note before deciding to remove Montgomery from suicide watch. In addition, we cannot conclude that Howell's progress note evidences deliberate indifference to Montgomery's health or safety. The progress note merely records what Montgomery said to Howell regarding why he was on suicide watch and notes, "No psychotic signs/symptoms noted." J.A. at 62. Plaintiff's theory is that Howell should have done more than record his observations -- that once Howell was aware that Montgomery had been labeled a "snitch" by other prisoners, he should have taken additional steps to protect Montgomery from himself. Given that Montgomery was already on suicide watch, however, there was nothing more Howell reasonably should have done to secure Montgomery's health and safety. 74 Because plaintiff has failed to put forward any facts demonstrating that Howell subjectively perceived a substantial risk that Montgomery would harm himself, we REVERSE the district court's order denying Howell's motion for summary judgment based on qualified immunity. C. Defendant-Appellant Thyagarajan 75 Plaintiff attempts to overcome Thyagarajan's qualified immunity by asserting that he displayed deliberate indifference to Montgomery's medical needs by failing to properly supervise Howell. "This court has held that 1983 liability must be based on more than respondeat superior, or the right to control employees." Shehee, 199 F.3d at 300. The supervisor is not liable for failing to supervise the offending employee unless the supervisor "either encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum a plaintiff must show that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers." Id. (quoting Hays v. Jefferson Cty., 688 F.2d 869, 874 (6th Cir. 1982)). If Howell did not violate Montgomery's clearly established right to medical treatment, then Thyagarajan is entitled to qualified immunity because he did not "implicitly authorize[]" or "knowingly acquiesce[]" in any unconstitutional conduct. Therefore, the district court's decision with respect to Thyagarajan must also be REVERSED. IV. State Law Claims 76 Because the district court will maintain jurisdiction over at least one federal cause of action, we decline to decide the defendants' state law claims. CONCLUSION 77 For the foregoing reasons, we AFFIRM in part and REVERSE in part the district court's judgment, and REMAND for further proceedings. Notes: * The Honorable Kathleen McDonald O'Malley, United States District Judge for the Northern District of Ohio, sitting by designation. 1 All male felons over the age of 21 pass through the RGC for medical and security clearance prior to being sent to the appropriate correctional facility. 2 Being labeled a "snitch" was dreaded, because it could make the inmate a target for other prisoners' attacks. J.A. at 115 (Smith Dep.). McCrary testified in his deposition that he knew that "a prisoner in prison definitely doesn't want to be labeled a snitch, that's probably the worst label that you can -- could have put on you if you were in prison." J.A. at 97 (McCrary Dep.); see also J.A. at 67 (Howell Dep.) (stating that "to be called a snitch can place you at peril"). 3 Our review is made difficult by the district court's failure to make findings of fact for this court to assume as true. Cf. Johnson, 515 U.S. at 319 (noting that when "[d]istrict judges . . . deny summary judgment motions without indicating their reasons for doing so[,]" appellate courts "may have to undertake a cumbersome review of the record to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed"). In order to conduct our review, we have, therefore, read the record in the light most favorable to the plaintiff. 4 McCrary recognized that Montgomery may have been reluctant to explain to him the situation with the other inmates on March 2, 1995, because the inmates in adjacent cells could overhear their conversation. J.A. at 97 (McCrary Dep.). 5 Although defendants strenuously argue that "if medical treatment is given it is not a courts [sic] job to second guess the treatment given," Appellant's Reply Br. at 1, the issue is not whether McCrary provided some medical attention to Montgomery, but rather whether McCrary's conduct evinced deliberate indifference to Montgomery's serious medical needs. Defendants' position is, apparently, that if a prison doctor offers some treatment, no matter how insignificant, he cannot be found deliberately indifferent. This is not the law: as the Supreme Court noted in Estelle, 429 U.S. at 104-05 & n.10, a prison doctor's medical response to an inmate's serious need may constitute deliberate indifference just as readily as the intentional denial or delay of treatment. 78 O'MALLEY, District Judge, dissenting. 79 Although the majority's opinion is generally well-reasoned and certainly well-written, I must respectfully dissent because I believe we do not have jurisdiction in this case. As the majority notes, "factual issues were contested before the district court," op. at 8, and, when the district court denied the defendants' motion for summary judgment based on qualified immunity, it "fail[ed] to make findings of fact," id. at 8 n.3. Thus, the factual record on appeal is, at best, unsettled and incomplete. The Supreme Court has ruled that "a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court's summary judgment order insofar as that order determines whether or not the trial record sets forth a 'genuine' issue of fact for trial." Johnson v. Jones, 515 U.S. 304, 319-20 (1995). Accordingly, I believe we do not have jurisdiction over this appeal. 80 The majority avoids the jurisdictional hurdle by stating that, "for the purposes of this appeal, both parties have explicitly stipulated to plaintiff's version of the facts." Op. at 8. I believe the defendants' "stipulation" in this case is no jurisdictional cure. First, defendants' "stipulation" appears overly convenient. Earlier, the defendants stipulated in district court that the court's order denying the motion for summary judgment based on qualified immunity was unobjectionable "both as to form and content." Joint Appendix at 251. In essence, defendants stipulated below that there were material facts in dispute precluding a finding of qualified immunity. How can defendants now propose to stipulate on appeal that those same facts mandate a finding of qualified immunity? 81 Second, despite their latest "stipulation," the defendants' version of certain facts clearly does not "concede the best view of the facts to the plaintiff." Booher v. Northern Kentucky University Bd. of Regents, 163 F.3d 395, 396 (6th Cir. 1998). For example, plaintiff asserts that defendant Howell did subjectively perceive Montgomery's risk of suicide if released from suicide watch. Cf. op. at 26 ("[e]ven if he was aware that Montgomery was suicidal, Howell would not have perceived that Montgomery posed a substantial risk of harm to himself while on suicide watch") (emphasis added). In his appellate brief, Howell does not merely fail to concede this, he disputes it, and acknowledged this dispute at oral argument. Simply, defendants seek to stipulate to a set of facts in an effort to justify appellate review while steadfastly refuting the inferences plaintiffs assert can and should be drawn from those facts. Without an "unqualified concession" on all issues of fact, however, we do not have jurisdiction over "an interlocutory appeal from the denial of qualified immunity." Id. at 396-97. 82 Clearly, all questions presented by this appeal, including the jurisdictional ones, would have been easier if the district court had issued an opinion delineating those facts upon which it relied in rendering judgment. I believe, however, that the district court correctly concluded, as the parties then agreed, that material facts relevant to qualified immunity are in dispute. And, I believe that defendants' appellate "stipulation" does nothing to alter this fact. Accordingly, I believe we should dismiss this appeal for lack of jurisdiction and revisit these issues, if at all, after a full development of the record. This course would allow us to rely on a fact-finder's inferences, rather than our own. For these reasons, I respectfully dissent.

01-03-2023

04-18-2012

https://www.courtlistener.com/api/rest/v3/opinions/775806/

273 F.3d 714 (6th Cir. 2001) In re: William Kyle Kisseberth and Ekaterina Kisseberth, Debtors.Ronald R. Henderson, Appellant,v.William Kyle Kisseberth and Ekaterina Kisseberth, Appellees. No. 00-3715 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Argued: October 24, 2001Decided and Filed: December 12, 2001 Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 99-07567--James G. Carr, District Judge.[Copyrighted Material Omitted] Ronald R. Henderson (argued and briefed), Toledo, Ohio, for Appellant. Elliot H. Feit (argued and briefed), BARRY & FEIT, Toledo, Ohio, Derrick V. Rippy (argued and briefed), U.S. TRUSTEES OFFICE, Cleveland, Ohio, for Appellees. Before: BOGGS and GILMAN, Circuit Judges; QUIST, District Judge.* OPINION GILMAN, Circuit Judge. 1 Ronald R. Henderson, an attorney who represented William Kyle Kisseberth and Ekaterina Kisseberth in their bankruptcy case, sued the Kisseberths in state court to collect $3,212.02 in unpaid attorney fees following the close of the bankruptcy proceeding. The Kisseberths responded by filing a motion to reopen their bankruptcy case. Henderson then filed an application for attorney fees in the bankruptcy court. Because the bankruptcy court found that Henderson's fees were excessive and that he had not disclosed to the court the majority of the fees charged, the court ordered Henderson to disgorge $9,600.00 of the $11,887.98 that he had previously collected, as well as to forfeit any claim to the unpaid fees. On appeal, the district court upheld the order of the bankruptcy court in part and reversed in part. For the reasons set forth below, we AFFIRM the judgment of the district court. I. BACKGROUND A. Factual background 2 The Kisseberths owned and operated two jewelry stores in Toledo, Ohio. In 1994, one of their stores was destroyed by fire. Although the Kisseberths had insured their business through Eagle American Insurance Company, they were unable to recover any part of their loss because an Ohio court determined that they had intentionally caused the fire. On March 11, 1994, four days before the insurance ruling, the Kisseberths retained Henderson, an experienced bankruptcy attorney, to counsel them regarding their poor financial condition. Two months later, the Kisseberths, with Henderson as their counsel, filed a joint petition for personal bankruptcy under Chapter 7 of the United States Bankruptcy Code. 3 Henderson included a compensation statement in the Kisseberths' bankruptcy petition, as required by 329 of the United States Bankruptcy Code and Rule 2016(b) of the Federal Bankruptcy Rules. In the compensation statement, Henderson disclosed that he had been paid a $1,500 retainer and that he would be billing the Kisseberths $100 per hour for his services. During the two months between the hiring of Henderson in March of 1994 and the filing of the bankruptcy petition in May of that year, Henderson had already billed $5,420 in legal fees for approximately 50 hours of work. Henderson did not disclose this fact in the Chapter 7 petition, and the Kisseberths testified that they were unaware of the size of Henderson's prepetition fees. According to Henderson, these fees were incurred in (1) preparing the Chapter 7 petition, (2) preserving the possible appeal of the state court's adverse insurance judgment, and (3) handling general matters concerning the Kisseberths' financial affairs. 4 After the Kisseberths' bankruptcy case had begun, the United States Trustee assigned to their case decided to appeal the insurance ruling. The bankruptcy court required the Kisseberths to personally bear a portion of the financial burden of the appeal, based on its determination that they would indirectly benefit from a favorable outcome. Specifically, the Kisseberths were required to pay $6,196 for the appellate transcript. William Kisseberth's mother, Bonnie Kisseberth, along with two other relatives, loaned the Kisseberths the funds to pay for the transcript. The funds were tendered to Henderson's law firm with the express understanding that the lenders were to be paid back in the event of any recovery in the insurance case. 5 Henderson ultimately recorded 147.2 billable hours on the Kisseberths' bankruptcy case, bringing the total cost for his legal services to $15,100. The large number of hours spent on the case, Henderson maintained, was justified because the petition was "not an ordinary Chapter 7 no asset case." Henderson, for example, notes that the case was open for 27 months and involved a business with over 100 unsecured creditors. He also testified that his postpetition services involved, among other things, (1) attending the statutorily required meeting of creditors, (2) avoiding a possible $100,000 creditor action against the Kisseberths' estate, and (3) conducting negotiations with a party that was considering an action to prevent the Kisseberths from receiving a discharge in bankruptcy due to their fraud. In addition, Henderson aided in the appeal of the adverse insurance judgment, even though the Kisseberths and the Trustee had retained two other lawyers for this purpose. Henderson was not asked for this help by the Kisseberths or the Trustee, nor had he been approved by the bankruptcy court to act as legal counsel in this matter. 6 Eagle American settled the insurance case while the appeal was pending, despite the trial verdict in its favor. Funds became available from the proceeds of this settlement to reimburse the Kisseberths' relatives for the funds that they had provided for the appellate transcript. Instead of returning the advanced amount directly to the relatives, however, Henderson applied $6,787.98 to the unpaid fees for his work on the Kisseberths' bankruptcy case. The Kisseberths, meanwhile, had personally paid Henderson $5,100 toward his $15,100 total bill. At the completion of the bankruptcy proceedings, $3,212.02 remained unpaid. 7 Henderson did not disclose to the bankruptcy court the subsequent payments by the Kisseberths or his retention of the funds paid to him from the proceeds of the insurance case settlement. Rule 2016(b) of the Federal Bankruptcy Rules requires a debtor's counsel to report the receipt of fees during the course of bankruptcy proceedings. There is no dispute that Henderson failed to comply with Rule 2016(b), although Henderson contends that his noncompliance was inadvertent. B. Procedural history 8 In December of 1997, after the bankruptcy case was closed, Henderson sued the Kisseberths in an Ohio state court for the $3,212.02 unpaid balance of his fees. The Kisseberths, in turn, filed a motion to reopen their bankruptcy case. In addition, Bonnie Kisseberth sued Henderson in state court to recover the $6,196 that she and two other relatives had advanced for the appellate transcript. 9 After the Kisseberths filed the motion to reopen their bankruptcy case, Henderson filed an application for fees in the amount of $15,100 in the bankruptcy court. He disclosed that he had been paid $11,887.98, including the transcript funds that he had applied toward his fees. 10 The bankruptcy court held a pretrial conference on October 20, 1998, at which time it asserted the authority to determine the proper amount of fees to be paid Henderson for services rendered in the bankruptcy proceeding. Although it expressed uncertainty about its jurisdiction to adjudicate Bonnie Kisseberth's claim for recovery of the transcript funds, the bankruptcy court ordered Henderson to disgorge $9,600.00 of the $11,887.98 that he had collected, including the transcript funds. The transcript funds were then allocated to the bankruptcy estate, with the rest of the disgorgement going to the Kisseberths. In addition, the bankruptcy court ordered a forfeiture of the unpaid balance of the funds that Henderson had sought to collect through his state court action against the Kisseberths. That case had been removed to the bankruptcy court pursuant to 28 U.S.C. 1452 (authorizing removal of cases related to bankruptcy proceedings). 11 Henderson appealed the bankruptcy court's order to the United States District Court for the Northern District of Ohio. The district court rendered a decision on March 31, 2000, affirming the order of the bankruptcy court. On April 12, 2000, the district court modified its March 31, 2000 decision to reallocate the transcript funds to the Kisseberths as debtors, rather than to the bankruptcy estate. Henderson then filed this appeal. II. ANALYSIS 12 A. The bankruptcy court did not err in exercising jurisdiction over all of the fees that Henderson collected, including the transcript funds claimed by Bonnie Kisseberth 13 Henderson contends that the bankruptcy court did not have jurisdiction to order the disgorgement of the fees he collected from the transcript funds claimed by Bonnie Kisseberth. The bankruptcy court asserted its jurisdiction over the transcript funds based on its in rem jurisdiction over the debtors' estate. Included in the Kisseberths' bankruptcy estate are their assets as of the time the petition was filed. 11 U.S.C. 541 (defining the bankruptcy estate). But the transcript funds, as the subject of a postpetition loan between the debtors and third parties, are not part of the bankruptcy estate. Id. The bankruptcy court therefore relied on an inapplicable basis for its jurisdiction over these funds. 14 Nevertheless, the bankruptcy court was empowered to order disgorgement of the transcript funds based on its jurisdiction over attorney fees charged "in connection with" the bankruptcy case. See 11 U.S.C. 329 (providing that the bankruptcy court may order disgorgement of any excessive fees charged "in connection with" a bankruptcy case). "[A]ny payment made to an attorney for representing a debtor in connection with a bankruptcy proceeding is reviewable by the bankruptcy court notwithstanding the source of payment." In re Walters, 868 F.2d 665, 668 (4th Cir. 1989) (affirming the bankruptcy court's jurisdiction to order disgorgement of attorney fees collected from a source that was exempt from the bankruptcy estate). Because Henderson used the insurance proceeds to compensate himself for services rendered "in connection with" the Kisseberths' bankruptcy case, we conclude that the bankruptcy court had jurisdiction over the proper disposition of these proceeds. 15 B. In exercising jurisdiction over the transcript funds, the bankruptcy court did not deny Henderson the due process of law 16 Henderson also contends that the bankruptcy court violated his Fifth Amendment right to due process of law in ordering disgorgement of the transcript funds. The bankruptcy court denied him an evidentiary hearing, according to Henderson, by exercising jurisdiction over the transcript funds after it had disavowed such jurisdiction at a pretrial conference. This argument fails because the bankruptcy court had placed Henderson on notice that it intended to exercise jurisdiction over the full amount of Henderson's fees. 17 The disavowal of jurisdiction allegedly occurred when, during the pretrial conference, the bankruptcy court made statements questioning its ability to assert in personam jurisdiction over Bonnie Kisseberth. Regardless of these statements, Henderson had reasonable notice that his entire fee was at issue in the bankruptcy proceeding. The bankruptcy court, at the same pretrial conference, repeatedly expressed the view that it had the authority to determine the amount of fees to be paid for services in any and all bankruptcy proceedings. In addition, Henderson submitted all issues relating to his fees to the bankruptcy court by filing his application for fees with the court. By including the transcript funds in the amount of collected fees for which he sought approval, Henderson was on notice that the bankruptcy court would examine the propriety of his receipt and retention of those funds. 18 C. The order directing Henderson to disgorge $9,600.00 of the $11,887.98 in fees that he had collected, as well as forfeit $3,212.02 in unpaid fees, was not an abuse of discretion 19 1. The bankruptcy court's finding of excessiveness does not, by itself, support the amount of disgorgement ordered 20 The bankruptcy court's finding of excessive attorney fees is a mixed question of law and fact. Coulter v. Tennessee, 805 F.2d 146, 151 (6th Cir. 1986) (holding that a finding of excessive attorney fees involves mixed questions of law and fact, such as "whether the lawyer used poor judgment in spending too many hours on some part of the case or by unnecessarily duplicating the work of co-counsel."). We review mixed questions of fact and law de novo. Kuper v. Iovenko, 66 F.3d 1447, 1453 (6th Cir. 1995). 21 Henderson's fees were excessive, the bankruptcy court concluded, because he worked on matters that he had not been asked or authorized to address, and the hours that he spent on the bankruptcy proceeding were unnecessary given the relative lack of complexity of the Kisseberths' case. These findings are not erroneous in light of the facts set forth in Part I.A. above. 22 The bankruptcy court, however, did not explicitly set forth the degree to which Henderson's fees were excessive, and the amount of excessiveness does not appear to approach the amount of disgorgement ordered. Because 329 states that the amount of any excessive fees should be disgorged "to the extent excessive," the bankruptcy court's finding of excessiveness does not by itself support the heavy sanction imposed. 23 2. Henderson's failure to disclose his fees justifies the amount of disgorgement regardless of the degree to which his fees were excessive 24 A court must exercise its power to levy sanctions "with restraint and discretion." In re Downs, 103 F.3d 474, 478 (6th Cir. 1996). In reviewing a bankruptcy court's decision concerning the proper amount of attorney fees, we will not set aside its determination unless the court abused its discretion. Id. We will find an abuse of discretion only upon a "definite and firm conviction that the trial court committed a clear error of judgment." Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989). Henderson argues that the bankruptcy court abused its discretion in awarding him only $2,287.98 in attorney fees out of his total bill of $15,100.00, because the extent of the disgorgement is far beyond the extent to which his fees might have been excessive, and his violations of 329 of the United States Bankruptcy Code and Bankruptcy Rule 2016(b) were technical and inadvertent. 25 Section 329 of the Bankruptcy Code provides as follows: 26 (a) Any attorney representing a debtor in a case under this title . . . shall file with the court a statement of the compensation paid or agreed to be paid . . . for services rendered or to be rendered in contemplation of or in connection with the case by such attorney, and the source of such compensation. 27 (b) If such compensation exceeds the reasonable value of any such services, the court may cancel any such agreement, or order the return of any such payment, to the extent excessive, to-- (1) the estate . . .; or (2) the entity that made such payment. 28 Section 329 is implemented by Bankruptcy Rules 2016(b) and 2017. Rule 2016(b) provides in pertinent part: "Every attorney for a debtor . . . shall file and transmit to the United States trustee . . . the statement required by 329 of the Code . . . . A supplemental statement shall be filed within 15 days after any payment or agreement not previously disclosed." Under Rule 2017, the bankruptcy court may determine, after notice and a hearing, that any portion of an attorney's fee for work in a bankruptcy case is excessive. 29 Even if the bankruptcy court had not determined that Henderson's fees were excessive, however, the disgorgement would still be within the court's discretion in light of the 329 and Rule 2016(b) disclosure requirements. In re Lewis, 113 F.3d 1040, 1045 (9th Cir. 1997) (rejecting the argument that a bankruptcy court's disgorgement order, based in part upon violations of the 329 and Rule 2016(b) disclosure requirements, should be reversed because the court made no findings of excessiveness). An attorney in a bankruptcy case has an affirmative duty to disclose fully and completely all fee arrangements and payments. In re Plaza Hotel Corp., 111 B.R. 882, 883 (Bankr. E.D. Cal. 1990). In the present case, Henderson submitted a compensation statement that disclosed the $1,500 retainer that he had been paid, but not the $5,420 in prepetition legal fees that he had billed. This disclosure violated 329 because it was incomplete. Henderson also billed the Kisseberths for over $8,000 in legal fees during the course of the bankruptcy proceedings, but he failed to file any supplemental fee disclosures as required by Bankruptcy Rule 2016(b). Even though Henderson might not have intended to deceive either the court or the Kisseberths, the bankruptcy court did not abuse its discretion in heavily sanctioning Henderson for these violations. 30 The provisions of the Bankruptcy Code and the Bankruptcy Rules that regulate attorney fees are designed to protect both creditors and the debtor against overreaching attorneys. In re Walters, 868 F.2d 665, 668 (4th Cir. 1989). To ensure such protection, bankruptcy courts have broad and inherent authority to deny any and all compensation where an attorney fails to satisfy the requirements of the Code and Rules. In re Downs, 103 F.3d 472, 479 (6th Cir. 1996) (denying all compensation to an attorney who disregarded his obligation to disclose his fee arrangement under 329 and Rule 2016); Matter of Prudhomme, 43 F.3d 1000, 1003 (5th Cir. 1995) (concluding that a bankruptcy court may order disgorgement as a sanction against the debtor's counsel for failing to disclose fees). Disgorgement may be proper even though the failure to disclose resulted, as Henderson claims, from negligence or inadvertence. In re Park-Helena Corp., 63 F.3d 877, 882 (9th Cir. 1995) ("Even a negligent or inadvertent failure to disclose fully relevant information [in a Rule 2016 statement] may result in a denial of all requested fees."). 31 As the district court concluded, Henderson's argument that the extent of the disgorgement is excessive "disregards the critical importance of 329(a) and Rule 2016(b) to the Bankruptcy Court as it exercises its jurisdiction," including reducing "the likelihood of subsequent inquiry, and further and fragmented proceedings." Given, in the words of the district court, "the importance of the fee disclosure requirement, the extent to which that requirement was almost totally disregarded by an experienced bankruptcy practitioner, and the need to compel future compliance on his part and on the part of all counsel appearing in bankruptcy court," we find no error by the district court in sustaining the bankruptcy court's disgorgement order. 32 D. The district court did not err in reallocating the transcript funds to the Kisseberths 33 The bankruptcy court allocated the transcript funds to the bankruptcy estate based upon its equitable power under 11 U.S.C. 105(a) to issue any judgment that is "necessary or appropriate to carry out the provisions of this title." In turn, the district court reversed the bankruptcy court's judgment and exercised its own equitable power in reallocating the transcript funds to the Kisseberths. 34 A lower court's equitable judgment will be overturned only if we find an abuse of discretion. In re Terex Corp., 984 F.2d 170, 172 (6th Cir. 1993) (reviewing the bankruptcy court's exercise of its equitable powers under an abuse of discretion standard). We will find an abuse of discretion only upon a "definite and firm conviction that the district court committed a clear error of judgment." Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989). 35 In allocating the transcript funds to the bankruptcy estate, the district court found that the bankruptcy court had abused its discretion because those funds were not properly part of the bankruptcy estate. We agree. The Kisseberths' bankruptcy estate consisted of their assets as of the time the petition was filed. 11 U.S.C. 541 (defining the bankruptcy estate). Because the transcript funds were transferred to the Kisseberths as a postpetition loan from third parties long after the petition was filed, these funds were never part of the bankruptcy estate. Id. Although the transcript funds benefitted the bankruptcy estate by enabling the Kisseberths to appeal their insurance case and reach a settlement, the funds were expected to be returned to their source from the proceeds of any settlement. Allocation of the transcript funds to the estate would thus constitute an inequitable windfall because it would allow the estate to keep for itself funds that were provided to Henderson's law firm on behalf of the debtors through a postpetition loan. 36 The district court reversed the bankruptcy court's allocation and instead directed that the transcript funds be given to the Kisseberths personally. We agree that this was the proper disposition. The section of the Bankruptcy Code that addresses the allocation of excessive fees, 11 U.S.C. 329, provides that such funds should be returned to the bankruptcy estate if they: 37 (A) would have been property of the estate; or 38 (B) [were] to be paid by or on behalf of the debtor under a plan under chapter 11, 12, or 13 of [the Bankruptcy Code] . . . . 39 11 U.S.C. 329(b)(1). If neither of the above conditions is met, then 329 provides that the funds should be allocated to the "entity that made such payment." 11 U.S.C. 329(b)(2). Although we recognize that 329 deals with the disgorgement of fees only to the extent that they are excessive, we see no reason why the principles of allocation set forth in 329 should not apply to all of the funds disgorged in the present case. Because the transcript funds were not part of the estate, and because the Kisseberths' petition was brought under Chapter 7, not Chapters 11, 12, or 13, the appropriate and equitable allocation of the transcript funds is to the "entity that made such payment." 40 The ultimate source of the transcript funds, of course, is Bonnie Kisseberth and the two other relatives. But as between the parties to this appeal, the Kisseberths are the "entity that made such payment," because the funds were tendered on their behalf and they are obligated to repay the loan. The district court's allocation of the transcript funds to the Kisseberths is therefore equitable, and not an abuse of discretion. We trust that the Kisseberths will in turn relay the funds back to their original sources; if not, the concerned parties can address that issue separately from the bankruptcy proceeding. III. CONCLUSION 41 For all of the reasons set forth above, we AFFIRM the judgment of the district court. Notes: * The Honorable Gordon J. Quist, United States District Judge for the Western District of Michigan, sitting by designation.

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