686 F.2d 147
UNITED STATES of America, Appellant in Nos. 82-5103; 82-5198v.Francis D. FERRI a/k/a Rick Joseph Laverich, Kenneth R.Matthews, Kenneth R. Matthews, Appellee.UNITED STATES of America, Petitioner in No. 82-3227,v.Honorable Rabe F. MARSH, United States District Judge forthe Western District of Pennsylvania, Nominal Respondent,Kenneth R. Matthews, Respondent.
Nos. 82-5103, 82-5198 and 82-3227.
United States Court of Appeals,Third Circuit.
Argued July 7, 1982.Decided Aug. 3, 1982.Rehearing and Rehearing En Banc Denied Aug. 24, 1982.

J. Alan Johnson, U. S. Atty., Sandra D. Jordan (argued), Asst. U. S. Atty., Pittsburgh, Pa., for appellant.
George F. Schumacher, Federal Public Defender, Thomas S. White (argued), Asst. Federal Public Defender, Pittsburgh, Pa., for appellee/respondent, Kenneth R. Matthews.
Before SEITZ, Chief Judge, and VAN DUSEN and SLOVITER, Circuit Judges.
OPINION OF THE COURT
SLOVITER, Circuit Judge.

I.
BACKGROUND

1
Based on his alleged participation in a conspiracy to bomb the automobile of his business associate, Lynn P. Dunn, as part of a scheme to collect the proceeds of an insurance policy on Dunn's life, appellee Kenneth Matthews was convicted for maliciously damaging a vehicle used in interstate commerce by means of an explosive; for illegally making a destructive device; for the unregistered possession of a destructive device; and for mail fraud.  18 U.S.C. §§ 2, 371, 844(i); 26 U.S.C. §§ 5861(f), 5871; 26 U.S.C. §§ 5861(d), 5871; 18 U.S.C. § 1341.  On April 23, 1975 a sentence of 15 years incarceration was imposed.  The convictions were affirmed by this court and on December 1, 1977 Matthews began serving his sentence.

2
Since June, 1976 Matthews has challenged his sentence in numerous motions which have been the subject of previous decisions by both this court and the district court, as well as one decision by the Supreme Court.  In the consolidated actions presently before us the government challenges two orders of the district court relating to two of these motions.  In No. 82-5198, the government directly appeals an order reducing Matthews' sentence to time served; in No. 82-3227 the government seeks to vacate that same order via a petition for a writ of mandamus; No. 82-5103 is an appeal from an order of the district court directing the United States Parole Commission to provide Matthews with a new parole hearing utilizing the parole eligibility criteria which would have been applicable at the time of the commission of the crimes for which he was convicted.  We will focus only on the facts essential to the government's challenge to these orders.

II.
THE ORDER REDUCING MATTHEWS' SENTENCE
A.
Appellate Jurisdiction

3
On August 4, 1978 Matthews filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, alleging, inter alia, that he was denied the effective assistance of counsel because his attorney failed to file a timely motion for a reduction of sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure.1  By an order dated March 12, 1979, the district court denied Matthews' motion.  However, on June 9, 1980, this court vacated that order and remanded the case to the district court for an evidentiary hearing on Matthews' ineffective assistance of counsel allegation.  United States v. Ferri, 624 F.2d 1091 (3rd Cir. 1981).  The district court thereafter conducted a hearing and found that Matthews had been denied effective assistance of counsel.  Accordingly, the court, following the procedure suggested in United States v. Ackerman, 619 F.2d 285, 288 (3d Cir. 1980), vacated Matthews' sentence and, on December 2, 1980, reimposed exactly the same sentence as had been originally imposed in 1975.  The purpose of the resentencing was to afford Matthews 120 days within which to file a motion to reduce his sentence pursuant to Rule 35.  In March, 1981 Matthews' counsel filed two timely Rule 35 motions, one to correct and the other to reduce his sentence.  On April 1, 1981, the district court granted both motions and ordered that Matthews' sentence be corrected from 15 years to 10 years2 and reduced from 10 years to 9 years.  The April 1, 1981 order also denied various pro se motions to correct the sentence.  Although the sentence as originally imposed in 1975 provided for immediate parole eligibility under 18 U.S.C. § 4208(a)(2) (1970) (recodified in 1976 at 18 U.S.C. § 4205(b)(2)), the April 1, 1981 order directed that Matthews would be eligible for parole upon serving one-third of his sentence pursuant to 18 U.S.C. § 4205(a) (1976).

4
On appeal Matthews claimed, inter alia, that the district court erred in changing his parole eligibility designation.  In affirming the April 1, 1981 order on November 13, 1981, we noted that the government had previously "conceded before the district court that Matthews' sentence should be modified to provide for parole pursuant to 18 U.S.C. § 4205(b)(2) (1976)."  United States v. Ferri, 673 F.2d 1302 (3rd Cir. 1981) (reprinted in app. at 161a).

5
On December 1, 1981, the district court entered an order changing Matthews' parole eligibility status.  The order stated that "the sentence imposed on December 2, 1980 and corrected by order of court on April 1, 1981 shall remain in full force and effect except that the defendant shall become eligible for parole pursuant to 18 U.S.C. § 4205(b)(2) and not pursuant to 18 U.S.C. § 4205(a)."  App. at 165a.  Thereafter on March 2, 1982, Matthews filed a second motion for reduction of sentence pursuant to Rule 35.  On March 23, 1982, before a response was filed by the government, the district court granted the motion, ordering that Matthews' sentence be reduced to time served and that he be immediately released from custody.  The government immediately sought a stay of the district court order, pending appeal to this court.  This motion was not ruled upon by the district court and Matthews was released from custody on March 26, 1982.

6
The government contends that Matthews' March 2, 1982 motion for reduction of sentence was filed outside the time limits established by Rule 35 and that, therefore, the district court was without jurisdiction to grant the motion.  Before addressing the merits of this contention, we must first determine whether we have jurisdiction to review the government's challenge to the order reducing Matthews' sentence.  The government asserts that the order is "final" and presents the "necessary characteristics of independence and completeness" to be appealable under the general authority of 28 U.S.C. § 1291 and that, alternatively, review is appropriate by way of mandamus.

7
The government has conceded that 18 U.S.C. § 3731, the statute ordinarily invoked to authorize government appeals in criminal cases, does not authorize an appeal from an order such as the one in question.3 We agree.  Neither a sentencing order nor an order reducing a sentence are specifically mentioned in section 3731.  As the Fifth Circuit recently stated in United States v. Denson, 588 F.2d 1112, 1125 (5th Cir.), vacated on other grounds, 603 F.2d 1143 (5th Cir. 1979) (en banc):

8
Section 3731 cannot be construed to authorize a Government appeal from any and every District Court order.  To so construe Section 3731 would do violence to Congress' express intention to carefully identify and define the situations in which the Government might appeal.

9
Accord, United States v. DeMier, 671 F.2d 1200, 1204 n.12 (8th Cir. 1982).  Contra, United States v. Hetrick, 644 F.2d 752, 754-55 (9th Cir. 1981).

10
We turn then to the government's contention that this appeal is authorized under 28 U.S.C. § 1291, which confers on the courts of appeals "jurisdiction of appeals from all final decisions of the district courts of the United States."  It is well established that as a general rule "the Federal Government enjoys no inherent right to appeal a criminal judgment, and that the grant of general appellate jurisdiction, now contained in 28 U.S.C. § 1291, does not authorize such a federal appeal."  Arizona v. Manypenny, 451 U.S. 232, 246, 101 S.Ct. 1657, 1666, 68 L.Ed.2d 58 (1981).  See DiBella v. United States, 369 U.S. 121, 130, 82 S.Ct. 654, 659, 7 L.Ed.2d 614 (1962); United States v. Jannotti, 673 F.2d 578, 580 n.1 (3d Cir. 1982) (en banc), cert. denied, --- U.S. ----, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982).  In Carroll v. United States, 354 U.S. 394, 403-04, 77 S.Ct. 1332, 1338, 1 L.Ed.2d 1442 (1957) (citations and footnotes omitted), however, the Supreme Court stated:

11
(C)ertain orders relating to a criminal case may be found to possess sufficient independence from the main course of the prosecution to warrant treatment as plenary orders, and thus be appealable on the authority of 28 U.S.C. § 1291 without regard to the limitations of 18 U.S.C. § 3731, just as in civil litigation orders of equivalent distinctiveness are appealable on the same authority without regard to the limitations of 28 U.S.C. § 1292.  The instances in criminal cases are very few....  In such cases, as appropriate, the Government as well as the moving person has been permitted to appeal from an adverse decision.

12
See United States v. Fields, 425 F.2d 883, 886 (3d Cir. 1970) (government may appeal under section 1291 order directing return of seized property to third party because "the motion for return of the motor vehicle was an independent proceeding intended for the benefit of a person not a party to the criminal case and not a step in the criminal case").  Under the authority of Carroll several courts have held that section 1291 authorizes an appeal by the government from certain orders relating to sentencing.  See United States v. Busic, 592 F.2d 13, 25-26 (2d Cir. 1978) (government can cross-appeal under section 1291 from part of sentence order designating an early date for parole eligibility); United States v. United States District Court, 601 F.2d 379 (9th Cir. 1978) (section 1291 authorizes government appeal of district court's failure to impose a special mandatory parole term).  In Busic the Second Circuit reasoned that:

13
The (sentence) order is clearly a "final decision" both within the meaning of (28 U.S.C. § 1291) ... and within the meaning generally given in the context of criminal proceedings ....  Just as surely, it is "truly collateral to the criminal prosecution itself in the sense that (it) will not 'affect, or ... be affected by, decision of the merits of this case.' "

14
592 F.2d at 26 (citations and footnotes omitted).  Based on this same rationale both the Sixth Circuit and the Eighth Circuit have specifically held that the government may appeal, pursuant to section 1291, a district court order reducing a sentence.  United States v. DeMier, 671 F.2d 1200, 1203-04 (8th Cir. 1982); United States v. United States District Court, 645 F.2d 7 (6th Cir. 1981).  The government relies primarily upon these two decisions as support for its contention that a direct appeal is authorized in this case.  Other courts, however, have rejected the contention that orders relating to sentencing fall within the Carroll doctrine.  See United States v. Denson, 588 F.2d at 1126-27; United States v. Lane, 284 F.2d 935, 938 (9th Cir. 1960).  In Denson, the Fifth Circuit reasoned that:

15
The sentencing process is the inevitable culmination of a successful prosecution; it is an integral aspect of a conviction.  Therefore, we hold that the orders of sentence and probation are not possessed of "sufficient independence" from the criminal case to permit a Government appeal under 28 U.S.C.A. § 1291.

16
588 F.2d at 1126.

17
Given the Supreme Court's emphasis upon the rarity of orders falling within the Carroll doctrine and the strict requirement that such orders possess sufficient independence from the criminal case, it is indeed debatable whether the order challenged here can properly be classified as falling within the Carroll doctrine.  However, since we believe that review by way of mandamus, pursuant to 28 U.S.C. § 1651,4 is appropriate in this case, we need not decide whether the order in question is appealable under 28 U.S.C. § 1291.5  See United States v. United States District Court, 509 F.2d 1352, 1354 (9th Cir.), cert. denied, 421 U.S. 962, 95 S.Ct. 1949, 44 L.Ed.2d 448 (1975).  See also Frederick L. v. Thomas, 578 F.2d 513, 516 (3d Cir. 1978); United States v. Jackson, 550 F.2d 830, 831 (2d Cir. 1977).

B.
Propriety of Mandamus

18
Mandamus is an extraordinary remedy which is "to be granted only in extraordinary cases."  United States v. Olds, 426 F.2d 562, 565 (3d Cir. 1970).  "(Mandamus) can, of course, not be availed of to correct a mere error in the exercise of conceded judicial power."  DeBeers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1132, 89 L.Ed. 1566 (1945).  In this case, however, the government contends that the district court was without jurisdiction to reduce Matthews' sentence.  Such an issue of judicial power falls squarely within the narrow range of cases for which mandamus is appropriate.  See Roche v. Evaporated Milk Association, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185 (1943).  See also United States v. Norton, 539 F.2d 1082, 1083 (5th Cir. 1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1129, 51 L.Ed.2d 553 (1977); United States v. United States District Court, 509 F.2d at 1354.  We therefore conclude that we have jurisdiction to review the order in question pursuant to 28 U.S.C. § 1651.

19
In order to ensure that the writ of mandamus will issue only in extraordinary circumstances, the Supreme Court has set forth various conditions for its issuance.  "Among these are that the party seeking issuance of the writ have no other adequate means to attain the relief he desires ..., and that he satisfy 'the burden of showing that (his) right to issuance of the writ is clear and indisputable.' "  Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976) (citations omitted).  Moreover, even if the petitioner is able to meet these heavy burdens, the issuance of the writ is still nonetheless "in large part a matter of discretion with the court to which the petition is addressed."  Id.  See Citibank, N.A. v. Fullam, 580 F.2d 82, 90 (3d Cir. 1978).

20
In the instant case Matthews contends, inter alia, that we should exercise our discretion and decline to grant relief by way of mandamus because of the lapse of time and intervening events between the date his sentence was reduced and the date the mandamus proceeding was instituted.  He relies primarily upon United States v. Olds, 426 F.2d 562, 565 (3d Cir. 1970), in which this court, exercising its discretion and without reaching the merits, declined to grant relief by way of mandamus because of the government's "unexcused tardiness in pursuing its challenge."  In Olds, as in this case, the government challenged a reduction of defendant's sentence pursuant to Rule 35 on the ground the district court had exceeded its power in entering the order.  In denying the government's petition we noted that the government had inexplicably waited nearly three months before seeking relief and that "during this delay Olds resumed his university studies and otherwise adjusted his life in reliance on the district court's order."  Id. at 566.  We concluded that under the circumstances there had been an unreasonable delay in filing the petition and that had the government acted promptly, the order in question could have been tested without personal hardship to Olds.  Id.  Matthews contends that in this case, as in Olds, the government delayed filing the mandamus petition and that in reliance upon the district court's order he has reestablished his relationship with his family and otherwise adjusted his life.

21
We believe that the instant case is distinguishable from Olds.  Here, unlike in Olds, the government filed a timely appeal to this court on March 30, 1982, one week after the order in question was entered by the district court.  Moreover, on March 25, 1982, one day prior to Matthews' release from prison on March 26, 1982, the government filed a motion with the district court for a stay of its order.  Thus, from the outset, Matthews' was put on notice that the government was challenging the reduction of his sentence.  After filing its appeal, the government, being justifiably uncertain as to the proper procedural vehicle for review of an order reducing a criminal sentence, filed its petition for a writ of mandamus on June 11, 1982.  As the Ninth Circuit noted in United States v. Lane, 284 F.2d 935, 939 (9th Cir. 1960), a case involving similar facts,

22
It is true that the government could have filed the latter motion (to file a petition for a writ of mandamus) at an earlier date.  But in view of the pendency of the appeal we would undoubtedly have withheld action on the motion until the appeal was also ready for consideration.

23
Thus, in view of the fact that in this case the government expeditiously appealed the order in question, we reject Matthews' contention that the government is guilty of laches with respect to its filing of the mandamus petition.

24
We likewise reject Matthews' contention that we should decline to exercise our discretion in this case because the government did not object at the outset to the district court's jurisdiction and "did not preserve this issue by appropriate procedures."  Matthews contends that at a hearing before the district court on December 1, 1981, his counsel stated that he would be filing a Rule 35 motion for reduction of sentence and the government did not object.  He further points out that the government filed no response in the district court to his March 2, 1982 motion for reduction of sentence.  There is, however, no indication that the government consented to the filing of the Rule 35 motion at the December hearing.6  While it is true that the government could have acted more promptly in filing a response to Matthews' March 2, 1982 motion,7 the government did immediately seek a stay of the district court's order and promptly appealed to this court upon Matthews' release.  Under these circumstances, we reject Matthews' contention that the government did not properly preserve this issue for mandamus relief.  Accordingly, we proceed to consider the merits of the government's contention that the district court did not have jurisdiction to enter the order reducing Matthews' sentence to time served.

C.
The Timeliness of the Rule 35 Motion

25
Rule 35 provides in relevant part that the district court "may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal."  Rule 45(b) expressly provides that "the court may not extend the time for taking any action under Rules 29, 33, 34 and 35, except to the extent and under the conditions stated in them."  Thus, "(t)he 120-day time limitation stated in Rule 35 'is jurisdictional and cannot, under any circumstances, be extended by order of the court.' "  United States v. Robinson, 457 F.2d 1319 (3d Cir. 1972) (per curiam) (citations omitted).

26
The government argues that in this case the district court was without jurisdiction to reduce Matthews' sentence because the sentence was imposed on December 2, 1980 and, therefore, Matthews' motion to reduce his sentence, filed on March 2, 1982, was outside the 120-day time limit.  Matthews, on the other hand, argues that the government has not met its burden of showing that the district court was "clearly without jurisdiction," see Hazeltine Corp. v. Kirkpatrick, 165 F.2d 683, 685 (3d Cir.), cert. denied, 334 U.S. 819, 68 S.Ct. 1084, 92 L.Ed. 1749 (1948), because the district court had "ostensible jurisdiction" by virtue of the following two triggering events which both occurred within 120 days of Matthews' motion: (1) the district court's correction on December 1, 1981 of the April 1, 1981 order reducing his sentence and (2) this court's affirmance on November 13, 1981 of the April 1 order.  We find that neither event gives the defendant an additional 120 days in which to file a second Rule 35 motion.

27
A somewhat analogous situation arose in United States v. Llinas, 670 F.2d 993 (11th Cir. 1982), where after the defendant filed a timely Rule 35 motion for reduction of sentence which was granted by the district court, the defendant sought a second reduction by filing another Rule 35 motion.  This motion was filed more than 120 days after the imposition of sentence or other triggering events set forth in Rule 35, but less than 120 days after the district reduced the sentence.  The Eleventh Circuit found that the second Rule 35 motion was untimely, holding that: "the 120-day period for reduction of sentence under Rule 35 runs from the date of the original sentence or the events specified in Rule 35, and does not start over again when the original sentence is reduced pursuant to a prior motion."  Id. at 993.  Accord, United States v. Rannazzisi, 443 F.Supp. 916 (S.D.N.Y.1978); United States v. Hughes, 36 F.R.D. 25 (S.D.N.Y.1964).  Neither party has cited to any decision that has reached a contrary result.

28
We believe that the holding in Llinas is clearly supported by the terms, logic and policy of Rule 35.  As we have previously stated, " 'Rule 35 is intended to give every convicted defendant a second round before the sentencing judge, and at the same time, it affords the judge an opportunity to reconsider the sentence in the light of any further information about the defendant or the case which may have been presented to him in the interim.' "  United States v. Johnson, 634 F.2d 94, 96 (3d Cir. 1980) (quoting United States v. Ellenbogen, 390 F.2d 537, 543 (2d Cir.), cert. denied, 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206 (1968)).  Nonetheless, some limitation on the court's power to reduce a sentence is necessary " 'to protect the district court judge from continual importunities while the defendant is serving his sentence,' " United States v. Dansker, 581 F.2d 69, 73 (3d Cir. 1978) (quoting United States v. United States District Court, 509 F.2d 1352, 1356 n.6 (9th Cir.), cert. denied, 421 U.S. 962, 95 S.Ct. 1949, 44 L.Ed.2d 448 (1975)), and, as Professor Moore points out, because "after a lapse of time the peculiar ability of the court to determine sentence gives way to the presumably greater competence, and knowledge, of the penal authorities."  United States v. Dansker, 581 F.2d at 73 (quoting 8A Moore's Federal Practice P 35.02, at 35-4 n.4 (2d ed. 1968)).  Thus, the object of the 120-day time limitation "was to limit, and to limit severely, the district court's jurisdiction."  United States v. Dansker, 581 F.2d at 73.  To allow a defendant who has filed a Rule 35 motion to file subsequent Rule 35 motions by piggybacking on the grant of the previous motion frustrates the object of the 120-day time restraint.  As the Llinas court pointed out, "all the reasons for reduction (of sentence) should be asserted in the (initial) motion."  670 F.2d at 994.  Indeed, if a defendant could, as in this case, file a Rule 35 motion, get a reduction and correction, and then file a subsequent motion for reduction of sentence within 120 days thereafter, he or she would be getting considerably more than "a second round before the sentencing judge."  If this process were repeated a defendant could conceivably get an unlimited number of rounds-thereby stretching the time restraint contained in Rule 35 considerably beyond the 120-day limitation.

29
In this case Matthews, unlike the defendant in Llinas, does not argue that his Rule 35 motion was timely because it was made within 120 days of the date his sentence was reduced.8  Rather, he invokes two other dates as "triggering events"-this court's affirmance of the order reducing his sentence and the district court's correction of that order.

30
As to the first, if the April 1 order reducing the sentence is not equivalent to imposition of sentence for purposes of Rule 35, then our affirmance of that order on November 13, 1981 would likewise not trigger the 120-day period even though our affirmance contained a statement that the government had conceded correction was appropriate.  This conclusion is supported by this court's holding in United States v. Dansker, 581 F.2d at 74, that "the 120-day period of Rule 35 begins to run from the date of receipt of the mandate affirming the judgment of conviction or dismissing the appeal" not from the date proceedings on other collateral appeals are terminated.

31
Nor do we agree with Matthews' suggestion that the mere fact that the district court entered an order on December 1, 1981 correcting the April 1, 1981 order should retrigger the 120-day period in which to file a Rule 35 motion.  There is simply no reason why a correction of Matthews' parole eligibility designation-in his favor-should give him a second opportunity to obtain a reduction in sentence.  Furthermore, as the government correctly points out, it is very difficult to view the December 1, 1981 order as an "imposition of sentence" within the meaning of Rule 35 since the order itself states "the sentence imposed on December 2, 1980 and corrected by order of court of April 1, 1981 shall remain in full force and effect except that the defendant shall become eligible for parole pursuant to 18 U.S.C. § 4205(b)(2) and not pursuant to 18 U.S.C. § 4205(a)."  App. at 165a.

32
We, therefore, hold that the district court was without jurisdiction to grant Matthews' March 2, 1982 motion for reduction of sentence.

III.
THE ORDER REQUIRING A NEW PAROLE HEARING

33
Because we conclude that the district court did not have jurisdiction to reduce Matthews' sentence to time served and to order his release from custody, we must address the government's challenge, in No. 82-5103, to the district court's order of December 1, 1981 requiring the Parole Commission to provide Matthews with a new parole hearing.9  The facts relevant to this appeal are set forth below.

34
On May 30, 1978 Matthews filed a petition for a writ of habeas corpus,10 alleging, inter alia, that the intent of the sentencing judge had been frustrated by the application to him of parole guidelines which were different than those in effect at the time of his sentencing in 1975.  By order dated October 17, 1978, the district court denied the petition.

35
Matthews then appealed to this court, contending in addition that application of the new parole guidelines to him was prohibited by the ex post facto clause of the Constitution.  We affirmed the judgment of the district court.  620 F.2d 288, 290 (3d Cir. 1980) (mem.).  Thereafter Matthews filed a petition for a writ of certiorari to the Supreme Court in which he argued, inter alia, that the Parole Commission had improperly and incorrectly applied its guidelines to him.  His principal claim, however, appears to have been that the application to him of the new guidelines constituted an ex post facto violation.  See United States v. Ferri, 652 F.2d 325, 326 (3d Cir. 1981).  The Supreme Court vacated this court's judgment of affirmance and remanded for further consideration in light of Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981).  Matthews v. United States, 450 U.S. 962, 101 S.Ct. 1476, 67 L.Ed.2d 611 (1981).

36
On June 18, 1981, this court remanded the case to the district court for full consideration of Matthews' ex post facto claim.  United States v. Ferri, 652 F.2d at 329.  In a petition for rehearing, which was denied by this court, the government contended that the district court did not have jurisdiction to consider Matthews' ex post facto claim under 28 U.S.C. § 2255.  This same argument was repeated to the district court by the government in a petition to dismiss for lack of jurisdiction dated September 8, 1981.  That petition was denied by the district court without opinion on October 15, 1981.

37
Pursuant to this court's remand, the district court conducted an evidentiary hearing on Matthews' ex post facto claim, and found that the Parole Commission's new guidelines, promulgated in 1976, had been retrospectively applied to Matthews and that the application of these guidelines had a detrimental impact upon Matthews' parole eligibility.11  Accordingly, the court on December 21, 1981 ordered that the Parole Commission provide Matthews with a new parole hearing "utilizing criteria which would have been applied in 1971 at the time of the commission of the crimes for which petitioner was convicted."  App. at 18a.

38
Although we stayed the district court's order pending appeal on February 26, 1982, App. at 23a, apparently the Parole Commission had conducted a new hearing on February 25, 1982 and reevaluated Matthews' parole eligibility under the criteria in effect in 1971.  The record contains no formal report of the results of the hearing.12

39
The government raises two contentions in challenging the district court's December 21 order: (1) that the district court did not have jurisdiction to consider Matthews' ex post facto claim; and (2) that the district court erred in finding that the application of the new parole guidelines to Matthews violated the ex post facto clause.13

40
As an initial matter, we must consider Matthews' contention that the resolution of the jurisdictional issue is controlled by the law of the case doctrine.  Matthews suggests that we must view the Supreme Court's remand to this court and our subsequent remand to the district court for full consideration of Matthews' ex post facto claim as an implicit determination that the district court had jurisdiction to hear the claim.  There is, however, no indication that the Supreme Court specifically considered the jurisdictional issue presently before us.  As we recently held in United States v. Curtis, 683 F.2d 769, 772 (3d Cir. 1982), "We decline to infer rejection of an allegation of a constitutional violation in the absence of some judicial statement that the contention has been considered and rejected."  Although Matthews is correct, as the government concedes, that the jurisdictional argument was presented to this court in the government's petition for rehearing of our June 18, 1981 decision, our summary denial of that petition cannot be viewed as a determination, sufficient to trigger law of the case consequences, that the district court had jurisdiction to consider Matthews' claim.  As the Fifth Circuit stated in Carpa, Inc. v. Ward Foods, Inc., 567 F.2d 1316, 1320 (5th Cir. 1978), "The reach of the law of the case doctrine is not limitless.  The doctrine is not an inexorable command that rigidly binds a court to its former decisions but rather is an expression of good sense and wise judicial practice."  We, therefore, hold that we are not precluded from considering the government's jurisdictional contention by the law of the case doctrine and, therefore, proceed to consider that claim.14

41
The government maintains that the district court did not have jurisdiction to consider Matthews' ex post facto claim pursuant to 28 U.S.C. § 225515 because that provision does not empower the sentencing judge to review the manner in which the sentence is being executed by the Parole Commission.  The government relies primarily upon the Supreme Court's holding in United States v. Addonizio, 442 U.S. 178, 190, 99 S.Ct. 2235, 2243, 60 L.Ed.2d 805 (1979), that "subsequent actions taken by the Parole Commission-whether or not such actions accord with a trial judge's expectations at the time of sentencing-do not retroactively affect the validity of the final judgment itself," and "do not provide a basis for a collateral attack on ... sentences pursuant to § 2255."

42
Although Matthews' challenge to the original parole determination sweeps more broadly than a claim that the intent of the sentencing judge was frustrated, we agree with the government that the rationale of the Court in Addonizio encompasses the type of challenge presented in this case.  In holding that the claim that a sentencing judge's intent was frustrated by a post-sentencing change in Parole Commission policies is no longer available in a collateral attack, the Supreme Court reasoned that previous decisions which permitted collateral attack pursuant to section 2255 involved claims which, inter alia, went to the "lawfulness of the judgment itself" and that an attack on action taken by the Parole Commission did not fall within this category:

43
The change in Parole Commission policies involved in this case is not of the same character: this change affected the way in which the court's judgment and sentence would be performed but it did not affect the lawfulness of the judgment itself-then or now....  Whether or not the Parole Commission action in this case was constitutional, a question not presented here, there is no claim that the action taken by the sentencing judge was unconstitutional, or was based on "misinformation of constitutional magnitude."

44
442 U.S. at 187, 99 S.Ct. at 2241 (emphasis added).

45
As in Addonizio the challenged action of the Parole Commission in this case affects the way in which the sentencing court's judgment and sentence is performed, but does not affect the lawfulness of the judgment itself.  Further, Matthews' challenge is directed to the constitutionality of the Parole Commission's action in executing his sentence; "there is no claim that the action taken by the sentencing judge was unconstitutional or based on 'misinformation of constitutional magnitude.' "

46
We, therefore, conclude that the claim that the Parole Commission's application of its guidelines to Matthews constituted a violation of the ex post facto clause does not give the court which imposed the sentence jurisdiction pursuant to section 2255.  Accord, Johnson v. United States, 650 F.2d 1, 4 n.5 (1st Cir. 1981) (dictum).  The government has conceded, however, that Matthews' attack on the action of the Parole Commission may be brought in the district court of Connecticut, the district in which he was previously confined and in which he would presumably be reconfined, pursuant to 28 U.S.C. § 2241(a).  See Zannino v. Arnold, 531 F.2d 687, 689 n.5 (3d Cir. 1976); Izsak v. Sigler, 604 F.2d 1205, 1206 n.1 (9th Cir. 1979); Andrino v. United States Board of Parole, 550 F.2d 519, 520 (9th Cir. 1977) (per curiam).  A habeas petition pursuant to section 2241(a) must be sought from a district court with jurisdiction over the custodian of the prisoner.  See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973).  It may be that the matter can be adjusted administratively without the necessity of Matthews filing another action in the District Court of Connecticut.16IV.

CONCLUSION

47
As indicated in part II, supra, because we find that the district court was without jurisdiction to grant the motion for reduction of sentence, we will grant the government's petition in No. 82-3227 for a writ of mandamus vacating the district court's order of March 23, 1982 reducing Matthews' sentence to time served and releasing him from custody.  We are confident that Judge Marsh " 'will fully effectuate these views without the necessity of our entering any formal order.  Petitioners may, however, apply to this court for a formal order directing the issuance of the writ of mandamus if the need therefor should arise.' "  Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 170 (3d Cir. 1982).  The granting of the petition for mandamus renders the appeal in No. 82-5198 moot and accordingly the appeal in that action will be dismissed.

48
In No. 82-5103 we hold that the district court was without jurisdiction to consider Matthews' constitutional challenge to the application of the new parole guidelines to him.  The matter will be remanded to the district court so that it may dismiss the action.

1
 Rule 35 provides in pertinent part:
The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction.  The court may also reduce a sentence upon revocation of probation as provided by law.  Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision.

2
 Relying upon United States v. Schwanke, 598 F.2d 575, 578-79 (10th Cir. 1979), the district court held that the enhanced penalty provisions of 18 U.S.C. § 844(i) were improperly applied to Matthews since only a co-conspirator had been injured in the commission of the crime

3
 18 U.S.C. § 3731 provides in relevant part:
In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.
An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.

4
 28 U.S.C. § 1651(a) provides:
The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

5
 It is often important to determine whether a direct appeal or a petition for a writ of mandamus is the appropriate process by which to review a district court order, since the scope of review differs for the two processes.  See United States v. Cuthbertson, 651 F.2d 189, 193 (3d Cir. 1981).  "On appeal, our scope of review is plenary: we review the court's choice, interpretation, and application of a legal precept....  (On mandamus) the petitioner has the burden of showing that its right to mandamus relief is 'clear and indisputable.' "  Id.  In the instant case, however, we believe that under either standard of review the government should prevail

6
 To the contrary, at the hearing the government made clear that although it believed the parole eligibility designation in the April 1, 1981 order should be corrected, in its view the nine year sentence imposed on that date was otherwise "correct and need not be altered or reduced any further."  App. at 27a

7
 The government attributed its failure to file a response to Matthews' Rule 35 motion to its reliance upon a law clerk's statement that the government would be notified when its response was due.  App. at 172a

8
 Matthews is precluded from making this argument since his motion, filed on March 2, 1982, was not within 120 days of the April 1, 1981 order reducing and correcting his sentence

9
 The government may appeal this order because a proceeding in habeas corpus is not a criminal proceeding.  Accordingly, "the Criminal Appeals Act (18 U.S.C. § 3731) has no applicability to such a proceeding," and the government as well as the prisoner has a right to appeal a final order entered in the context of a section 2255 proceeding.  Andrews v. United States, 373 U.S. 334, 338, 83 S.Ct. 1236, 1239, 10 L.Ed.2d 383 (1963).  Section 2255 provides in part: "An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus."  28 U.S.C. § 2255.  See 28 U.S.C. § 2253.  See generally United States v. Allen, 613 F.2d 1248, 1250 (3d Cir. 1980)

10
 Although Matthews was incarcerated elsewhere, the habeas petition was filed in the Western District of Pennsylvania pursuant to 28 U.S.C. § 2241.  On June 5, 1978, the district court ordered that the petition "be treated as a motion to vacate sentence pursuant to 28 U.S.C. § 2255."

11
 The district court relied primarily upon the testimony of John Lynch, a retired parole and probation officer, who testified, inter alia, that in 1971 there was an "atmosphere of leniency" in granting parole and that after the adoption of the new guidelines in 1976 there was a substantial change in this policy.  App. at 33a-35a

12
 Matthews contends that this hearing resulted in a determination that he would be eligible for parole in November, 1982.  Brief for appellee at 12

13
 Since we conclude that the district court was without jurisdiction, we do not address this contention

14
 We also reject, as without merit, Matthews' contention that this appeal is moot because the Parole Commission has allegedly complied with the district court order in question since it is the government's position that the original action of the Parole Commission was legal, and did not violate the ex post facto provision of the Constitution.  Were we to have decided that the district court had jurisdiction, the government would have been entitled to be heard on the merits

15
 28 U.S.C. § 2255 provides in relevant part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
....
... If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

16
 At oral argument before us, the government indicated that the Parole Commission is willing to reevaluate Matthews' parole eligibility, prior to reincarcerating him.  If the Parole Commission determines that Matthews is eligible for parole, Matthews' ex post facto claim would presumably be moot


786 F.2d 1165
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.ALICE MCQUAID, Plaintiff-Appellant,v.MARGARET M. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES,Defendant-Appellee.
85-3450
United States Court of Appeals, Sixth Circuit.
2/10/86
N.D.Ohio
APPEAL DISMISSED
ORDER

1
BEFORE:  MARTIN and KRUPANSKY, Circuit Judges and CHURCHILL, District Judge.*

2
Plaintiff filed this action challenging the Secretary's denial of social security disability and widow's insurance benefits.  The case was referred to a magistrate, who recommended granting the Secretary's motion for summary judgment.  The district court adopted the magistrate's report and dismissed the complaint.  Plaintiff filed a timely appeal.  The Secretary has moved to dismiss the appeal on the grounds that plaintiff waived his right to appeal.  The appeal has been referred to a panel of this Court pursuant to Rule 9(a), Rules of the Sixth Circuit.  Upon examination of plaintiff's brief and the record, the panel agrees unanimously that oral argument is not needed.  Rule 34(a), Federal Rules of Appellate Procedure.

3
The record reveals that plaintiff failed to file objections to the magistrate's report and recommendation.  Plaintiff admits to this fact in her appellate brief.  The magistrate's report clearly stated that the parties were required to file objections or else waive the right to appeal.  Fifteen (15) days after the magistrate's report was filed, the district court noted that no objections had been filed, adopted the magistrate's report and recommendation and granted the Secretary's motion for summary judgment.  Under these circumstances, plaintiff waived his right to appeal.  See Thomas v. Arn, ---- U.S. ----, 54 U.S.L.W. 4032 (U.S. Dec. 4, 1985); Patterson v. Mintzes, 717 F.2d 284 (6th Cir. 1983); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

4
Accordingly, it is ORDERED that the motion to dismiss the appeal is granted and the appeal is dismissed.  Rule 9(d)(2), Rules of the Sixth Circuit.

*
 The Honorable James P. Churchill, U.S. District Judge for the Eastern District of Michigan, sitting by designation


285 S.E.2d 670 (1981)
Grat WEST, et al.
v.
NATIONAL MINES CORP., et al.
No. 14916.
Supreme Court of Appeals of West Virginia.
December 18, 1981.
*672 David Norken, Pineville, Tobias J. Hirshman, Charleston, for appellants.
Love, Wise, Robinson & Woodroe, E. Glenn Robinson and David L. Wyant, Charleston, for appellees.
*671 McGRAW, Justice:
This is an appeal from a judgment order of the Circuit Court of Wyoming County which denied the appellants' motion for a preliminary injunction and granted the appellees' motion to dismiss. The appellants, Grat and Mila West, husband and wife, live along state secondary route 8/1 on Buffalo Creek in Wyoming County. Appellee, National Mines Corporation, owns the coal *673 lease on property located up the hollow from the appellants' property. National has contracted with the other named appellees, H & S Coal Company, B & F Coal Company, C & L Coal Company, Inc., and Economy Fuel Company, Inc., for the production of coal from its leasehold.
Coal produced from National's leasehold is removed by contract haulers who transport the coal by truck down route 8/1 past the appellants' house to a preparation facility owned by National located approximately three miles west of Pineville, West Virginia. The coal is hauled in large trucks carrying 30 to 50 tons per load. The trucks run six days per week and occasionally all night long. Route 8/1, the only access road between the mine and National's preparation facility, is a dirt and gravel based road. Consequently, much dust is created by the truck traffic in dry weather conditions. The dust problem is exacerbated by the truck operators' practice of travelling in packs of four or five trucks at a speed of approximately 30 miles per hour. Although there is a limited amount of local automobile traffic on the road, the dust problem is caused primarily by the coal truck traffic. The appellants' house sits close to the road and the dust created by the trucks settles on the house and the surrounding property.
Although the appellants have lived in their present house since 1972, Mr. West has lived at the same address for over 45 years. Mining operations have been ongoing above the appellants' property for decades, but more coal is being hauled out now than ever before.[1] Thus more and larger coal trucks travel route 8/1 now than in the past, and as a result the dust problem associated with the truck traffic has become more severe.
The appellants filed a complaint against National and the other coal companies on November 21, 1978 alleging the existence of a nuisance caused by the activities of the appellees and seeking preliminary and permanent injunctive relief, as well as damages. After filing an answer and two amended answers the appellees moved to dismiss the complaint. The appellants then filed a petition for a preliminary injunction requesting that the appellees be temporarily enjoined from hauling coal over route 8/1, or in the alternative that they be required to water the road in order to abate the dust, and for such other relief as may be deemed reasonable and just.
The trial court did not act upon the appellees' motion to dismiss, but a hearing was held on the appellants' petition for a preliminary injunction on September 21, 1979, at which Mr. and Mrs. West testified. Mr. West described the nature of the nuisance created by the appellees' operations in the following manner:
[T]he trucks create this dust coming up from the road, and we have to live there because we have nowhere else to go. It is our home, and we have to breathe and you can't breathe in the dust, as thick as it is. It is like a cloud hanging down there all day long way up into the night. If you are outside trying to do something in the yard or the garden, you've got to wear a dust mask. (R. p. 57.)
The dust is ubiquitous. It permeates the house even with the doors and windows closed. The evidence shows that the dust is oily and greasy, black looking and hard to clean. It interferes with breathing. It spoils the food raised by the appellants in their garden. It fouls the water, and prevents the appellants from sleeping soundly. The oppressive conditions caused by the dust were summarized by Mr. West:
You can stay out in the dust, I believe, and it would actually kill you in the end. I have to get out of it. You all ought to really understand what I am trying to say here, that the dust can be that bad down there. You take a dirt road down there, as much big traffic as is on it, that is the kind of atmosphere we have to live in every day except when it is raining, and, believe me it is not good. It is hard to breathe. I tell you, I've often thought *674 about it like this: A man would be better off over there in jail in solitary confinement than to have to put up with this kind of conditions for the rest of his life. It is just that bad. (R. 60-61.)
The appellees offered no evidence at the hearing, but rather presented a memorandum in support of their motion to dismiss. The appellants requested additional time to file a memorandum, but before they could do so the trial court entered an order denying their petition for a preliminary injunction and dismissed the action, as to the coal companies, on the merits. The memorandum opinion of the circuit court indicates that it dismissed the complaint and denied the injunction against National because none of its trucks or employees were involved in the hauling of coal along route 8/1. The court further concluded that none of the other coal companies were guilty of actionable negligence because the dust problem was created by their use of a public road.
The appellants contend that the circuit court erred in dismissing their complaint. They allege that, notwithstanding the fact that the coal is hauled on a public road, the dust created by the coal trucks is a nuisance because it is excessive and constitutes a substantial and continuing problem that has caused a material disturbance by denying them the use and enjoyment of their house. They further contend that the appellees are responsible for creation of the nuisance even though the haulers may be independent contractors. Finally, the appellants allege that the circuit court erred in denying them a temporary injunction.
Initially we note that it is unclear from the record whether the trial court treated the appellees' motion as a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, or as a motion for summary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure. While Rule 12(b)(6) and Rule 56 are closely related, and perhaps overlap in some respects, only matters contained in the pleadings may be considered on a motion to dismiss under Rule 12(b)(6). If matters outside the pleadings are presented to the court and are not excluded by it, the motion should be treated as one for summary judgment and disposed of as provided in Rule 56. Chapman v. Kane Transfer Company, W.Va., 236 S.E.2d 207 (1977); Barker v. Traders Bank, 152 W.Va. 774, 166 S.E.2d 331 (1969). Since the trial court's ruling on the appellees' motion was made after taking evidence at the hearing on the propriety of a preliminary injunction, we will treat the trial court's disposition of the appellees' motion as a ruling under the provisions of Rule 56.
There are two primary issues presented by this appeal. First, can the unreasonable, negligent or unlawful use of a public road constitute a legally cognizable nuisance, and second, can the primary beneficiary of a contractual relationship escape liability for nuisance through the use of independent contractors whose unreasonable, negligent or unlawful activities give rise to a nuisance.

I.
American courts are agreed on the general rule that any dust which substantially interferes with the comfortable enjoyment of adjacent premises constitutes a nuisance, see Annot., 24 A.L.R.2d 194 § 1 (1952), and the appellees do not here dispute the fact that the coal truck traffic along route 8/1 has created a serious dust problem. Rather they argue that a private party cannot be held liable for a dust nuisance which arises from the use of a public roadway. We disagree.
The issue of whether the use of a public road can constitute an actionable nuisance is one of first impression in this jurisdiction; other jurisdictions have, however, addressed the issue, with varying results. For example, in Shannon v. Missouri Valley Limestone Company, 255 Iowa 528, 122 N.W.2d 278 (1963), property owners brought suit to enjoin a dust nuisance arising from the hauling of limestone by trucks on an unpaved public road adjoining their property. *675 The trial court did not enjoin use of the road or stop operation of the limestone quarry, but did require the limestone company, notwithstanding that the trucks were operated by independent contractors, to treat the surface of the road to prevent dust damage to the plaintiffs and their property. The Supreme Court of Iowa affirmed, noting that:
The dust is irritating to the skin, nose and throat, kills lawns, gets in their homes and food, is injurious to all vegetation and livestock, requires plaintiffs to keep their homes closed in hot weather, and in short makes ordinary use of a home and lawn impossible during spring, summer and fall during dry weather. We are compelled to agree with the trial court that a common law nuisance is created by the dust raised by the trucks hauling crushed rock from the quarry.
122 N.W.2d at 279. Accord, Pottawattamie County v. Iowa Department of Environmental Quality, 272 N.W.2d 448 (Iowa 1978).
In Wales Trucking Company v. Stallcup, 465 S.W.2d 444 (Tex.App.1971) property owners brought suit for dust damages against a trucking company which was engaged in hauling heavy concrete piping for a nearby water project along an unimproved public road which ran in front of the plaintiffs' house. The jury found that the activities of the trucking company had created a nuisance and awarded the plaintiffs $5000 damages. On appeal the trucking company argued that either negligence or unlawful use must be plead and proven in establishing as a nuisance the use of a public roadway. The Court of Civil Appeals rejected this argument, holding that at common law a property owner who sustains damage caused by a nuisance which is created by a member of the public in making an unreasonable use of a public road has a cause of action for the damage caused by the nuisance, and that proof of negligent or unlawful conduct is not a necessary or essential element of such cause of action.
The Texas court's opinion was in part founded upon an earlier decision that held the dust created by a rock crushing operation on private property constituted an actionable nuisance regardless of the degree of care exercised by the operator. Collins Construction Company v. Tindall, 386 S.W.2d 218 (Tex.Civ.App.1965). The court in Wales reasoned:
Does the difference between mobile and immobile equipment operating on public or private property, respectively, require that different rules be applied in connection with responsibility for the creation of a nuisance? We think not. We so hold. The same general rules apply in both cases. 465 S.W.2d at 448.
Wales was subsequently reversed by the Supreme Court of Texas which held that the facts of the case did not warrant a holding of liability without fault or nuisance without fault where the activity is of a temporary nature and involves the lawful use of a public road to deliver pipe for a public water supply project. 474 S.W.2d 184 (Tex.1971). The court stated, however, that:
It is not necessary for us to hold, and we do not hold, that the use for profit of a public highway cannot be, or become, a nuisance. [Shannon v. Missouri Valley Limestone Co., supra] is a strong case for the holding that it may be. (Emphasis added.) 474 S.W.2d at 189.
In Jacobson v. Crown Zellerback Corp., 273 Or. 15, 539 P.2d 641 (1975) the plaintiffs alleged damage to their house caused by vibrations from the operation of heavy logging trucks during wet weather on a county road running past their house. The trial court sustained a demurrer to the nuisance cause of action and the Supreme Court of Oregon affirmed, holding that "public policy dictates that no cause of action lies against an individual member of the public who uses the public way for travel in conformance with the rules laid down therefor."[2] 539 P.2d at 644.
*676 In Blumenthal v. City of Cheyanne, 64 Wyo. 75, 186 P.2d 556 (Wyo.1947) the plaintiffs sought to enjoin the enforcement of a municipal ordinance which established a through truck route on streets in a residential neighborhood. One of the theories advanced by the plaintiffs was that the truck traffic constituted a nuisance. The court rejected this theory on the ground that the truck operators were using the streets in a lawful and reasonable manner, that if the use of the streets abutting the plaintiffs' property were considered a nuisance, so would the use of all city streets, and in such a case all truck traffic would have to be prohibited in the city. The court further noted that "so far as ... the consequences complained of flow naturally and normally from the conduct of the traffic under proper authority, in a reasonable manner and with due regard for the rights of others, one who conceives he has been injured can have no redress." 186 P.2d at 572, quoting Cadwell v. Connecticut Ry. & Lighting Co., 84 Conn. 450, 80 A. 285 (1911).
The appellees cite both Jacobson and Blumenthal as support for their contention that a private party cannot be held responsible for a nuisance which arises from the use of a public road. We do not read these cases so broadly. The holdings of the courts in Jacobson and Blumenthal were both premised on a reasonable and lawful use of a public road. Jacobson held that no cause of action lies for a use of a public road which conforms "with the rules laid down therefor," and the language of Blumenthal quoted in the preceding paragraph implies that a cause of action would have existed had the plaintiffs therein shown an unreasonable or unlawful use of the streets involved. Therefore, insofar as the appellants herein have alleged, and offered uncontested evidence tending to prove an unreasonable and unlawful use of route 8/1 we read Jacobson and Blumenthal as supportive of their position that the haulage of coal along route 8/1 by the appellees has given rise to an actionable nuisance.
This Court treated exhaustively the subject of private nuisance in Martin v. Williams, 141 W.Va. 595, 93 S.E.2d 835 (1956). In Martin we said:
A nuisance is anything which annoys or disturbs the free use of one's property, or which renders its ordinary use or physical occupation uncomfortable. * * * A nuisance is anything which interferes with the rights of a citizen, either in person, property, the enjoyment of his property, or his comfort. * * * A condition is a nuisance when it clearly appears that enjoyment of property is materially lessened, and physical comfort of persons in their homes is materially interfered with thereby. * * * When the prosecution of a business, of itself lawful, in a strictly residential district, impairs the enjoyment of homes in the neighborhood, and infringes upon the well-being, comfort, repose, and enjoyment of the ordinary normal individual residing therein, the carrying on of such business in such locality becomes a nuisance, and may be enjoined. 141 W.Va. at 610, 93 S.E.2d at 844.
Although traditionally private nuisance has been defined in West Virginia as that class of wrongs which arises from the unreasonable, negligent, or unlawful use of one's own property, see, e.g., Pope v. Edward M. Rude Carrier Corp., 138 W.Va. 218, 75 S.E.2d 584 (1953), we see little rational basis in holding a party responsible for the creation of a nuisance when the acts which give rise to the nuisance occur on his private property, and yet relieve him of liability when those same unreasonable, negligent, or unlawful acts are conducted on public property.
It is a part of the great social compact to which every person is a party, and a fundamental and essential principle in every civilized community that every person yields a portion of his right of absolute dominion and use of his own property, in recognition of, and obedience to, the rights of others, so that others may also enjoy *677 their property without unreasonable hurt or hinderance. Wood, The Law of Nuisances at 2-3 (3d ed. 1893). Just as the right to the free use of one's own property is subject to the implied obligation to use it so that it will not be unreasonably injurious to others, so the right to use public property also should be subject to the same implied obligation.
While it is true that the public has a legitimate right to the use and enjoyment of a public roadway, that right must be exercised in a reasonable manner and with due regard for the right of adjoining property owners to the use and enjoyment of their property. The law does not allow anyone, whatever his circumstances or conditions may be, to be driven from his house or compelled to live in it in positive discomfort, although caused by a lawful and useful business carried on in his vicinity. Martin v. Williams, supra. Accordingly we hold that a complaint which alleges an unreasonable, negligent, or unlawful use of public property which materially impairs the right of another to the enjoyment of his house and infringes upon the well-being, comfort, repose, and enjoyment of the regular, natural person residing therein, states a cause of action for nuisance of which the courts of this State have cognizance.

II.
The trial court dismissed the appellants' cause of action against the appellee National Mines Corporation because it apparently viewed the relationship between National and the coal haulers as one of employer  independent contractor, thus relieving National of any liability for the nuisance created by the truck traffic on route 8/1.[3] The appellants contend that this ruling is erroneous. They argue that a party cannot escape liability for a nuisance created by its operations by contracting with others to perform the objectionable segments of its operations.
We agree with the appellants that the defense of the independent contractor is of no avail to National in this case. The general rule that an employer is not liable for the torts of an independent contractor is subject to numerous exceptions. One of the exceptions is where the work contracted to be done is likely to create a nuisance. Law v. Philips, 136 W.Va. 761, 68 S.E. 452 (1952); Humphries v. Black Betsy Consol. Coal Co., 115 W.Va. 768, 178 S.E. 273 (1934). See also Sanders v. Georgia-Pacific Corp., W.Va., 225 S.E.2d 218 (1976); Carrico v. West Virginia Cent. & P. R'y Co., 39 W.Va. 86, 19 S.E. 571 (1894).
It is a well established principle of law that one who employs an independent contractor to do work which the employer knows or has reason to know to be likely to involve the creation of a public or private nuisance, is subject to liability for harm resulting to others from such nuisance. Restatement (Second) of Torts § 427 B (1965). Accord, Weinmann v. DePalma, 232 U.S. 571, 34 S.Ct. 370, 58 L.Ed. 733 (1913); St. Paul Water Co. v. Ware, 16 Wall. (U.S.) 566, 21 L.Ed. 485 (1873); Chicago v. Robbins, 2 Black (U.S.) 418, 17 L.Ed. 298 (1863); Green v. Berge, 105 Cal. 52, 38 P. 539 (1894); Fowler v. Saks, 7 Mackey (D.C.) 570 (1890); Atlanta & F. R. Co. v. Kimberly, 87 Ga. 161, 13 S.E. 277 (1891); Scammon v. Chicago, 25 Ill. 424 (1861); Wabash St. L. & P. R. Co. v. Farver, 111 Ind. 195, 12 N.E. 296 (1887); Shannon v. Missouri Valley Limestone Co., supra; Baumeister v. Markham, 101 Ky. 122, 39 S.W. 844 (1897); Davie v. Levy, 39 La.Ann. 551, 2 So. 395 (1887); Eaton v. European & N. A. R. Co., 59 Me. 520 (1871); Weilbacker v. J. W. Putts Co., 123 Md. 249, 91 A. 343 (1914); Pickett v. Waldford System, 241 Mass. 569, 136 N.E. 64 (1922); Rogers v. Parker, 159 Mich. 278, 123 N.W. 1109 (1909); Palmer v. Lincoln, 5 Neb. 136 (1876); Cuff v. Newark & N. Y. R. Co., 35 N.J.L. 17 (1870), aff'd, 35 N.J.L. 574 (1871); *678 Berg v. Parsons, 156 N.Y. 109, 50 N.E. 957 (1898); Clark v. Fry, 8 Ohio St. 358 (1858).
It is also well established that all persons who join or participate in the creation or maintenance of a nuisance are liable jointly and severally for the wrong and injury done thereby. 58 Am.Jur.2d, Nuisances § 56 (1971). Only when the parties act entirely independently of one another, without any community of interest, concert of action, or common design, must those injured by the nuisance proceed on separate actions against the several wrongdoers for the proportion of damage caused by each separately. See, e.g., Farley v. Crystal Coal & Coke Co., 85 W.Va. 595, 102 S.E. 265 (1920).
A party is not entitled to summary judgment unless the facts established show a right to judgment with such clarity as to leave no room for controversy and show affirmatively that the adverse party cannot prevail under any circumstances, Wheeling Kitchen Equipment Co. v. R & R Sewing Center, Inc., 154 W.Va. 715, 179 S.E.2d 587 (1971); Hanks v. Beckley Newspapers Corp., 153 W.Va. 834, 172 S.E.2d 816 (1970); Aetna Casualty & Surety Co. v. Federal Insurance Co., 148 W.Va. 160, 133 S.E.2d 770 (1963). In other words, on a motion for summary judgment, the facts of the case must be viewed in the light most favorable to the nonmoving party. Board of Education v. Van Buren & Firestone, Architects, Inc., W.Va., 267 S.E.2d 440 (1980).
In this case the allegations contained in the appellants' complaint and the evidence adduced at the hearing support the conclusion that the burden placed upon route 8/1 by the appellees' haulage of coal amounted to an unreasonable and unlawful use of the roadway, that such unreasonable and unlawful use of the roadway materially impaired the appellants' use and enjoyment of their house, and that National had reason to believe that haulage of coal along route 8/1 would result in the creation of the nuisance. Furthermore, it is obvious that National shared a community of interest with the other appellees in the haulage of its coal from its leasehold to its preparation facility. Consequently, it was error for the trial court to grant the appellees' motion for summary judgment.

III.
The appellants' final contention is that the circuit court erred by denying their motion for a preliminary injunction.
The power to grant or refuse a temporary or preliminary injunction ordinarily rests in the sound discretion of the trial court according to the facts and circumstances of the particular case, and its action in the exercise of its discretion will not be disturbed on appeal in the absence of a clear showing of an abuse of such discretion. Mahoney v. Walter, W.Va., 205 S.E.2d 692 (1974); Stuart v. Lake Washington Realty Corporation, 141 W.Va. 627, 92 S.E.2d 891 (1956).
In their complaint the appellants requested that the appellees be temporarily and permanently enjoined from hauling coal over route 8/1. However, at the hearing held to determine the propriety of preliminary injunctive relief, this request was abandoned, and the appellants asked that the appellees be required to abate the nuisance by placing and operating a water truck on the road to control the dust, or to provide such other relief as may be deemed reasonable and just.
We reject the appellees' contention that the court has no authority to impose such a remedy because it would infringe upon the exclusive jurisdiction and duty of the Department of Highways to maintain public roads. While it is true that the Department of Highways has the responsibility to maintain public roads, see W.Va. Code § 17-2A-8 (1974 Replacement Vol.), that law does not prevent a court from requiring a party whose unreasonable, negligent or unlawful use of a public road creates a nuisance, to remedy the conditions giving rise to the nuisance. Moreover, it appears that the appellees have already assumed substantial responsibilities with regard *679 to maintenance of route 8/1, in that they grade the road weekly to facilitate coal haulage.
At the hearing on their motion for a preliminary injunction the appellants presented ample testimony to support their contentions that the appellees' activities have created a serious dust nuisance which substantially interferes with the use and enjoyment of their house, causes them great hardship, and threatens their health and physical well-being. The appellees, on the other hand, presented no evidence to controvert the appellants' testimony.
In McGregor v. Camden, 47 W.Va. 193, 34 S.E. 936 (1899), this Court reversed an order of the Circuit Court of Ritchie County dissolving an injunction prohibiting the operation of an oil and gas well within 70 feet of the plaintiff's house. There, as here, the only evidence before the circuit court was that presented by the plaintiff tending to establish the existence of a nuisance. In reversing the trial court's order dissolving the injunctions, this Court held: "Plaintiff's proofs undoubtedly made a prima facie case of nuisance, which entitled them to have the injunction continued until a final hearing." 47 W.Va. at 199, 34 S.E. 936.
As in McGregor, the evidence presented by the appellants herein established a prima facie case of nuisance, which was uncontroverted by the appellees. Given the gravity of harm to which the appellants have been subjected by the appellees' coal hauling activities, and the absence of evidence of any hardship which abatement of the nuisance would impose upon the appellees, we find that the trial court abused its discretion by denying the appellants' motion for preliminary relief. From the evidence produced at the hearing we must conclude that the appellants are entitled to a preliminary mandatory injunction requiring the appellees to abate the dust nuisance caused by the haulage of coal along route 8/1 from National's leasehold to its preparation facility.
The appellants have indicated in their brief that there are a variety of possible solutions that could be employed to abate the dust without stopping truck traffic. These range from watering or otherwise treating the road, paving the road, imposing speed limits, requiring spacing intervals between trucks, and placing tarps or other coverings on the trucks before they leave the appellees' premises. This list is by no means exhaustive. Consideration should be given to these and any other forms of relief which are reasonable and proper. Accordingly we reverse the decision of the circuit court and direct that a preliminary injunction be granted requiring the immediate abatement of the dust nuisance caused by the appellees' activities. We leave for the trial court the determination of the appropriate method of abatement to be implemented by the appellees.
For the foregoing reasons the judgment order of the Circuit Court of Wyoming County is reversed and the case is remanded for the entry of an order consistent with this opinion.
Reversed and remanded.
NOTES
[1]  During 1977, 74,644 tons of coal were removed by truck past the appellants' house to National's preparation facility. During 1978, 116,868 tons were removed, and from January 1979 to June 1979, 90,158 tons of coal were removed.
[2]  The court did not, however, leave the plaintiffs without a remedy, but indicated that when "[t]he government conducts or permits an activity for public purposes upon its land that is sufficiently massive to amount to a taking of adjacent land, an action for inverse condemnation lies against the government." 539 P.2d at 634.
[3]  Although the appellants alleged in their complaint that H & S Coal Company, B & F Coal Company, C & L Coal Company, Inc., and Economy Fuel Company, Inc. were contract haulers employed by National, and the trial court so found in its memorandum opinion, it is not clear from the record whether this was the actual relationship which existed between the parties, and is a matter which may be in need of further development on remand.


678 F.2d 735
UNITED STATES of America, Plaintiff-Appellee,v.AN ARTICLE OF FOOD, etc., Defendant,FoodScience Laboratories, Inc., Claimant-Defendant-Appellant.
No. 81-1114.
United States Court of Appeals,Seventh Circuit.
Argued Dec. 8, 1981.Decided May 21, 1982.

Robert Ullman, New York City, for claimant-defendant-appellant.
Stephen D. Terman, Asst. Chief Counsel for Enforcement, Food and Drug Administration, Rockville, Md., for the U. S.
Before CUMMINGS, Chief Judge, SWYGERT, Senior Circuit Judge, and CUDAHY, Circuit Judge.
CUMMINGS, Chief Judge.

1
The United States filed its amended complaint in this in rem food condemnation case in May 1979.  The defendant food comprises numerous cases containing tablets of Aangamik 15, also known as "Calcium Pangamate," "Pangamic Acid," "Vitamin B-15," "Gluconic 15," "Sport 15," or "the famous Russian formula."  Aangamik 15 is produced in Burlington, Vermont by the other defendant and claimant herein, FoodScience Laboratories, Inc., and then shipped to various points around the country.  According to the government's complaint, the tablets are an adulterated food under 21 U.S.C. § 342(a)(2)(C) of the Federal Food, Drug and Cosmetic Act in that they contain a food additive-N,N-Dimethylglycine hydrochloride ("DMG")-which allegedly is unsafe under 21 U.S.C. § 348(a).

2
The government also claimed that the Aangamik 15 is misbranded under 21 U.S.C. § 343(a) because the label describes the article as "Vitamin B-15," although calcium pangamate is neither a vitamin nor a pro-vitamin and since indeed "there is no accepted scientific evidence which establishes any nutritional properties of the substance or has identified a deficiency of calcium pangamate in men or animals * * *."  The government further charged that the substance was misbranded because it is "fabricated from two or more ingredients and its label fails to bear the common or usual name of each such ingredient * * *."  Finally, the government alleged that FoodScience violated 21 U.S.C. § 331(a) by introducing this "adulterated and misbranded" article of food into interstate commerce.  The government therefore urged the district court to condemn these cases of Aangamik 15 and to enjoin FoodScience from delivering any more of it into interstate commerce.

3
FoodScience denied the critical paragraphs of the amended complaint and the six consolidated cases were tried without a jury during the week of December 12, 1979.  On October 29, 1980, the district court decided all issues in favor of the government.  United States v. An Article of Food, etc., 503 F.Supp. 925 (N.D.Ill.1980).  Judge Roszkowski first held that DMG is a food additive and, because the parties stipulated that the Secretary had issued no exempting regulations under 21 U.S.C. § 348(i), that DMG is deemed to be unsafe under 21 U.S.C. § 348(a).1  The court next held that the tablets under seizure are adulterated under 21 U.S.C. § 342(a)(2)(C) and misbranded under 21 U.S.C. § 343(a) and (i)(2).  Therefore, in January 1981, the district judge entered an order condemning the 60 cases involved in the consolidated cases and enjoined FoodScience from manufacturing or introducing Aangamik 15 into interstate commerce except "when offered as a single ingredient for food use."2  This appeal by FoodScience followed.

4
* The relevant provisions of the Federal Food, Drug, and Cosmetic Act are straightforward.  "A food shall be deemed to be adulterated-* * * if it is, or it bears or contains, any food additive which is unsafe within the meaning of section 348 of this title * * *."  21 U.S.C. § 342(a)(2)(C).  Under Section 348, a food additive is presumed to be unsafe unless the Secretary of Health and Human Services has promulgated a regulation "prescribing the conditions under which such additive may be safely used" or providing for "investigational use by qualified experts."  21 U.S.C. § 348(a) and (i).  The parties stipulated prior to trial that Aangamik 15 is a food and, as noted, that the Secretary has promulgated no exempting regulations regarding the Aangamik 15 component DMG.  The remaining question in the determination whether Aangamik 15 is an adulterated food, then, is whether DMG is a "food additive."

5
The Federal Food, Drug, and Cosmetic Act defines "food additive" as follows:

6
The term "food additive" means any substance the intended use of which results or may reasonably be expected to result, directly or indirectly, in its becoming a component or otherwise affecting the characteristics of any food (including any substance intended for use in producing, manufacturing, packing, processing, preparing, treating, packaging, transporting, or holding food; and including any source of radiation intended for any such use), if such substance is not generally recognized, among experts qualified by scientific training and experience to evaluate its safety, as having been adequately shown through scientific procedures (or, in the case of a substance used in food prior to January 1, 1958, through either scientific procedures or experience based on common use in food) to be safe under the conditions of its intended use * * *.

7
21 U.S.C. § 321(s).  The district court found that DMG was not commonly used in food prior to January 1, 1958, and FoodScience has not challenged that finding on appeal.  Rather, FoodScience asks us to set aside the district court's findings that under the foregoing definition (1) DMG is an "additive" (a "substance the intended use of which results * * * in its becoming a component or otherwise affecting the characteristics of" Aangamik 15), and (2) DMG is not "generally recognized as safe."

8
DMG Is an "Additive"

9
Even though DMG is quite clearly a "substance" that has become a "component" of Aangamik 15, FoodScience would have us read into the definition of "food additive" an exception for substances that become "principal ingredients" of the food to which they are added.  Although DMG is the lesser of two active components of the tablets (Tr. 154, 755) and accounts for less than 4% of each tablet's weight (Record 10, 77 C 1647, Claimant's Answers to Plaintiff's Interrogatories, p. 11), FoodScience argues that DMG is a "principal ingredient" because the tablets' consumers are particularly hopeful of "the potential usefulness of DMG as a metabolic enhancer (whether or not it is a nutrient in the strict sense) * * *."  Reply Brief 5.  Since many ordinary additives come in relatively small quantities and food manufacturers often attempt to make their presence inconspicuous, an exception from the definition for "principal ingredients" might agree with the notion of "food additive" used in common parlance.  But had Congress intended the Food and Drug Administration and the courts to rely on common parlance it would not have so carefully crafted the foregoing definition of the term.3

10
FoodScience argues it is apparent from the statutory definition that Congress intended to limit the definition of "food additive" to substances that become a component of or affect food in some subtle or incidental fashion, such as substances "intended for use in producing, manufacturing, packing, processing etc."  21 U.S.C. § 321(s) (parenthetical clause), supra, p. 737.  Once again, therefore, important and principal ingredients like DMG in Aangamik 15 should be excepted from the definition, according to FoodScience.  The argument is ironic.  In drafting Section 321(s), Congress obviously was concerned with creating a very broad definition of food additive that could not be escaped by food purveyors claiming that particular substances were present in too small a quantity or had affected the food too indirectly.  FoodScience's argument is that because Congress was concerned with small amounts of unsafe substances, Congress could not similarly be concerned with unsafe substances present in relatively larger quantities.  But the definition itself shows the absurdity: "(t)he term 'food additive' means any substance the intended use of which results * * * in its becoming a component * * * of any food * * *."  The term "component" of course includes large quantities of unsafe substances as well as small quantities.

11
The case law agrees with our interpretation.  For example, in National Nutritional Foods Ass'n v. Kennedy, 572 F.2d 377, 389-392 (2d Cir. 1978), the Court of Appeals concluded that the Food and Drug Administration may regulate high-potency vitamins and minerals as "food additives."  The pill manufacturers in that case argued "that vitamins and minerals are foods (by themselves) * * * and that in the nature of things a 'food' cannot be a 'food additive,' especially when it is just more of the same (i.e., a high-potency vitamin or mineral)."  Id. at 391.  The Court answered that "We do not believe a substance gains immunity from (being a food additive) merely because it also qualifies as a food, * * * we see no reason why (the Food and Drug Administration) cannot determine that too much of even a good thing may come within the definition of a 'food additive.' "  Id. at 391, 392.4  See also United States v. Article of Food, etc., 414 F.Supp. 793 (E.D.Mo.1976), affirmed mem., No. 76-1554 (8th Cir. 1977) ("Orotic Acid" sold as a dietary supplement is a "food additive"); United States v. 41 Cases, More or Less, etc., 420 F.2d 1126, 1131 (5th Cir. 1970) (primary components of "Ferro-Lac" medicated chicken feed are "food additives").

12
The practical effect of holding that DMG is an additive is to place the burden of showing safety upon FoodScience.  In order to avoid the label "food additive," FoodScience must now show that DMG is "generally recognized as safe," whereas if DMG were not an "additive," the Food and Drug Administration would have the burden under 21 U.S.C. § 342 of proving by a preponderance of the evidence that DMG is "injurious to health."  See United States v. Ewig Bros. Co., Inc., 502 F.2d 715, 718-719 (7th Cir. 1975), certiorari denied, 420 U.S. 945, 95 S.Ct. 1324, 43 L.Ed.2d 423; United States v. General Foods Corp., 446 F.Supp. 740, 753 (N.D.N.Y.), affirmed mem., 591 F.2d 1332 (2d Cir. 1978).

13
In Ewig Bros., then Circuit Judge Stevens resolved the difficult question of whether DDT in fish was an "additive" by viewing it as a matter of assigning the burden of proving safety.  In that case, placing the burden on the government might entail inconsistent decisions by different federal judges determining danger to health on a case-by-case basis; whereas, since DDT is not generally recognized as safe, placing the burden on the fishing industry (by deeming the DDT to be an "additive") would mean that "all of the fish in the Great Lakes are 'adulterated' as a matter of statutory definition."  502 F.2d at 717, 719.  To decide who should bear the burden of showing safety, Judge Stevens examined the history of adulterated food regulation prior to the Food Additives Amendment of 1958 and concluded that it "reflected a consistent desire to rationalize the law by reducing the circumstances in which the F.D.A. must prove actual danger to a quantity of food and by establishing a system of tolerances which will protect the public and enable industry to operate effectively."  Id. at 721.  With regard to the 1958 Act's definition of "additive," Judge Stevens found that "(a)lthough Congress was primarily concerned with substances used by a food processor, neither the language nor the history of the 1958 Act limits its application to such substances.  The words 'the intended use of which' are not confined, as they easily could have been confined, to use in food processing."  Id. at 722 (footnote omitted).  Thus DDT was held to be a food additive and the Food and Drug Administration would not have the burden of proving injury, but rather under 21 U.S.C. § 348 it would be permitted to set uniform tolerances for consumption of DDT in fish.  As Judge Stevens noted in a footnote,

14
(T)his court is acutely aware of the fact that it is not the proper body to more narrowly define broad standards in this area so that they can be applied in a particular case.  Courts know neither what is necessary for the health of the consuming public nor what can reasonably be expected from the (various food) industr(ies).  Furthermore, this is not a determination that should be made individually for each case on the basis of expert testimony.  The Food and Drug Administration should set definite standards in each industry which, if reasonable, and in line with expressed Congressional intent, would have the force of law.

15
Id. at 722 n.27 (quoting United States v. 1,500 Cases More or Less, Tomato Paste, 236 F.2d 208, 211 (7th Cir. 1956)).

16
If FoodScience cannot shoulder the burden of proving that DMG is "generally recognized as safe" and cannot persuade the Food and Drug Administration to grant an exemption under 21 U.S.C. § 348, it would certainly be unwise for this Court to create a judicial exception from the definition of "food additive" for DMG simply because it is a primary ingredient of Aangamik 15.  When the quality and magnitude of hazards potentially associated with a new food product are as uncertain as they are here,5 the proper judicial response is aversion to the risks and strict enforcement of the regulatory framework for risk management established by Congress.  See M. Shapo, A Nation of Guinea Pigs 248-262 (1979).

17
DMG Is Not "Generally Recognized as Safe"

18
The second half of the statutory definition of a food additive requires that the substance "not be generally recognized, among experts qualified by scientific training and experience to evaluate its safety, as having been adequately shown through scientific procedures * * * to be safe under the conditions of its intended use."  21 U.S.C. § 321(s).  The district court found that DMG is not "generally recognized as safe," and this finding was amply supported by the evidence.  Five experts presented by the government all testified that DMG is not generally recognized among experts as safe.  FoodScience's four experts testified that DMG is safe at the dosages used in Aangamik 15, but only one of these experts testified that DMG is "generally recognized as safe."  Judge Roszkowski, who heard the expert witnesses, was entitled to credit the testimony of the government's five doctors that DMG is not generally recognized among qualified experts as safe for its intended use of human consumption in these tablets.

19
Because it meets the two statutory tests in Section 321(s), the DMG contained in these tablets is a food additive.  Since DMG has not been exempted by the Food and Drug Administration pursuant to 21 U.S.C. § 348, it is an unsafe food additive and the tablets are an adulterated food under 21 U.S.C. § 342(a)(2) (C).

II

20
The district court also held that the tablets are misbranded under 21 U.S.C. § 343 because (1) the labels all suggest that the tablets contain a vitamin whereas the stipulation of facts and testimony show that the tablets contain no vitamin or pro-vitamin, and (2) the labels do not bear the common or usual name of each ingredient in the tablets.6  FoodScience has not challenged that its tablets are misbranded.

21
Since the tablets were both adulterated and misbranded, the district court concluded that they should be condemned under 21 U.S.C. § 334, which permits the condemnation of any article of food "that is adulterated or misbranded."  FoodScience has not contested this corollary to the adulteration and misbranding.

22
Finally, the district court enjoined FoodScience pursuant to 21 U.S.C. § 332(a) from introducing Aangamik 15 into interstate commerce in food or drug form.7  FoodScience complains that the injunction is overbroad because there was no proof that Aangamik 15 would be unsafe as a drug.  However, the district judge provided FoodScience with appropriate escape hatches for marketing the tablets as a drug should the tablets be found safe for drug usage.  Specifically, FoodScience has been enjoined regarding Aangamik 15 as a drug onlyuntil (1) an approved application filed pursuant to 21 U.S.C. 355(b) is effective with respect to said drug, or (2) a Notice of Claimed Investigational Exemption for such drug, filed by defendants pursuant to 21 U.S.C. 355(i) and 21 CFR 312.1, has been accepted as adequate by the United States Food and Drug Administration.  (App. 3)

23
Any competitive disadvantage that FoodScience may suffer as a result of following the above procedures is more than offset by the need the district court perceived to prevent FoodScience from circumventing the injunction.  FoodScience should not be permitted to market adulterated foods by relabeling them as drugs.

24
Affirmed.

25
CUDAHY, Circuit Judge, concurring.

26
I concur fully in Chief Judge Cummings' conclusion that the government in this case properly condemned defendant's "Aangamik 15" tablets as an adulterated food because they contain an unsafe "food additive"-DMG-for which no exempting regulations have been issued.  I write separately only to emphasize that, in my view, characterizing DMG as a "food additive" depends critically on its being added to or sold in combination with other active ingredients.  Because FoodScience consistently represented to the public, and maintained throughout the pre-trial stages of this proceeding, that its "Aangamik 15" tablets contained two active and beneficial ingredients-DMG and calcium gluconate-I agree that the district court properly found DMG to be a "food additive" within the meaning of 21 U.S.C. § 321(s) (1976).1  I believe, however, as did the district court,2 that this would be a far different case if DMG were being marketed as a single food ingredient.  In that case, the FDA would not be entitled to rely on the "food additive" presumption to condemn plaintiff's product but would instead be obligated to shoulder its normal burden of proving, by a preponderance of the evidence, that DMG was an "adulterated food" within the meaning of 21 U.S.C. § 342(a)(1) (1976)3 or that the product was "misbranded" under the standards set forth in 21 U.S.C. § 343 (1976).

27
Limiting the definition of "food additive" to substances which are either added to or sold in combination with other active ingredients not only comports with common usage, but also makes sense from the point of view of informing the consumer.  When food substances such as DMG are combined with other "beneficial" ingredients and sold under such unrevealing brand names as "Aangamik 15," "Calcium Pangamate," or "the famous Russian formula," consumers may well be unaware of the presence of, or potential dangers associated with, each of the product's individual ingredients; a broad prophylactic rule such as the burden-shifting "food additive" presumption is therefore appropriate.  When substances such as DMG are marketed in pure form, however, and are properly labeled as such, consumers can more reasonably be expected to know what they are buying and, thus, can safely be given the opportunity to weigh for themselves the benefits and risks of their purchase.  Of course, if DMG is in fact deleterious or dangerous to human health, the FDA may condemn it as an "adulterated food" under 21 U.S.C. § 342(a)(1) (1976).

28
In sum, I do not believe that merely because DMG may be properly classified as an "unsafe food additive" (since not generally recognized as safe) when sold as part of a multi-ingredient tablet, it may also be automatically condemned, via the "food additive" presumption, as an "adulterated food" when marketed alone.  Accord United States v. An Article of Food Consisting of ... L-Tryptophan, Civ. 77-687 (D.N.J. Jan. 23, 1979).  The 1958 food additive amendment was designed to provide an extra measure of protection against the introduction into foods and food products of untested and potentially unsafe flavor, texture, processing and preservative agents.  See S.Rep.No.2422, 85th Cong., 2d Sess. 1958, reprinted in (1958) U.S.Code Cong. & Ad.News 5300, 5304.  It should not be stretched so far beyond its intended purposes as to significantly displace the FDA's normal condemnation procedures.

*
 Altogether the United States commenced six in rem seizure actions against lots of Aangamik 15 in Illinois, Florida, Oregon, Hawaii and New Jersey.  The six actions were consolidated for trial in the court below under 21 U.S.C. § 334(b)

1
 21 U.S.C. § 348(a) and (i) provide as follows:
(a) A food additive shall, with respect to any particular use or intended use of such additives, be deemed to be unsafe for the purposes of the application of clause (2)(C) of section 342(a) of this title, unless-
(1) it and its use or intended use conform to the terms of an exemption which is in effect pursuant to subsection (i) of this section; or
(2) there is in effect, and it and its use or intended use are in conformity with, a regulation issued under this section prescribing the conditions under which such additive may be safely used.
While such a regulation relating to a food additive is in effect, a food shall not, by reason of bearing or containing such an additive in accordance with the regulation, be considered adulterated within the meaning of clause (1) of section 342(a) of this title.
(i) Without regard to subsections (b) to (h), inclusive, of this section, the Secretary shall by regulation provide for exempting from the requirements of this section any food additive, and any food bearing or containing such additive, intended solely for investigational use by qualified experts when in his opinion such exemption is consistent with the public health.

2
 The government has not cross-appealed from the single-ingredient exception to the injunction and thus we do not consider whether the district court could (or should) have issued an injunction without the exception

3
 Most primary food ingredients known in common parlance not to be "food additives" are excepted from the statutory definition because either (1) they were used in food prior to 1958 and from common experience are believed to be safe or (2) apart from when they were used in food, they are generally recognized as safe using scientific methods.  Thus FoodScience's citation of testimony before the House Subcommittee on Health and Science to the effect that the chocolate in chocolate ice cream cannot be a food additive is correct but irrelevant.  Food Additives: Hearings on H.R. 13254 Before the House Subcommittee on Health and Science 101-102 (1958).  Chocolate is not a food additive because it was in use before 1958 and is known to be safe from common experience

4
 The language of Section 342 also makes clear that Congress did not intend that foods cannot be food additives.  Section 342(a)(2)(C) leaves open that a food may be a food additive when it states, "A food shall be deemed to be adulterated -* * * if it is, or it bears or contains, any food additive which is unsafe * * * " (emphasis supplied).  Similarly, Food and Drug Administration regulations provide: "The word 'substance' in the definition of the term 'food additive' includes a food or food component consisting of one or more ingredients."  21 C.F.R. § 170.3(g)

5
 There was considerable testimony at trial relating to whether DMG would cause cancer when combined with substances naturally present in the human body

6
 21 U.S.C. § 343(a)(1) and (i)(2) provide in pertinent part:
A food shall be deemed to be misbranded-
(a) If (1) its labeling is false or misleading in any particular,
(i) * * * unless its label bears * * * (2) in case it is fabricated (as here) from two or more ingredients, the common or usual name of each such ingredient * * *.

7
 21 U.S.C. § 332(a) provides in pertinent part:
The district courts of the United States and the United States courts of the Territories shall have jurisdiction * * * to restrain violations of section 331 of this title, except paragraphs (h)-(j) of said section.
In particular, 21 U.S.C. § 331(a) provides:
The following acts and the causing thereof are prohibited:
(a) The introduction or delivery for introduction into interstate commerce of any food, drug, device, or cosmetic that is adulterated or misbranded.

1
 In its appellate briefs, FoodScience attempts to argue, apparently for the first time, that DMG is the sole active ingredient in Aangamik 15 and that all the other components of the tablet-including calcium gluconate-are merely buffering agents, lubricants or binder/fillers.  Appellant's Br. at 8; Reply Br. at 5-7.  This contention is not supported by the record and is belied by FoodScience's own Answers to Interrogatories.  See Tr. 778; R. 10 (No. 77 C 1647); R. 22 (No. 77 C 662)

2
 See ante at 3 & n.2

3
 21 U.S.C. § 342(a)(1) provides that a food shall be deemed adulterated
If it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance such food shall not be considered adulterated under this clause if the quantity of such substance in such food does not ordinarily render it injurious to health.
Under this provision the FDA may condemn a given food product only if the FDA can establish by a preponderance of the evidence that the product is in fact poisonous or deleterious and that it might in fact be injurious to health.  See United States v. Lexington Mill & Elevator Co., 232 U.S. 399, 34 S.Ct. 337, 58 L.Ed. 658 (1914); United States v. 2,116 Boxes of Boned Beef, 516 F.Supp. 321 (D.Kan.1981).