326 Mass. 185 (1950)
93 N.E.2d 524
CHARLES L. SHEEHAN
vs.
DANIEL J. TOBIN (and a companion case[1]).
Supreme Judicial Court of Massachusetts, Middlesex.
April 4, 1950.
June 30, 1950.
Present: QUA, C.J., LUMMUS, WILKINS, WILLIAMS, & COUNIHAN, JJ.
F.P. Garland, for the defendant.
A. Brogna, (P.E. Troy with him,) for the plaintiffs.
COUNIHAN, J.
These are actions of tort for libel arising out of an article in "The International Teamster," the official magazine of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of *187 America, a labor union, hereinafter referred to as the Brotherhood, of which the defendant was the general president and of whose magazine he was the editor. The plaintiffs were members of Local 25, a subordinate union of the Brotherhood. They complain of this article which was published in the magazine for March, 1946, part of which we quote: "In the case of Charles L. Sheehan and Joseph M. D'Ambrosio, charges had been preferred against these two men by certain officers of the local union, and counter charges filed by Sheehan against all of the officers of the local union. The charges against these two men were based on the fact that they entered the office of Local No. 25 and brutally assaulted one of the business agents, Francis J. Halloran, a man old enough to be their father. They in turn preferred charges against the officers of the local" (emphasis supplied). They allege that the words in italics were libellous as to them. The defendant's answers set up truth, want of malice, and privilege. The publication of the article and the responsibility of the defendant for it were admitted.
The actions were tried to a jury who returned a verdict for the plaintiff in each case. The actions are here on similar exceptions of the defendant in each case: (1) to the denial of the defendant's motion for a directed verdict; (2) to the denial of the defendant's motion to enter verdict for the defendant under leave reserved; (3) to the exclusion of certain evidence offered by the defendant; (4) to the denial of a request for instruction by the defendant; and (5) to the charge of the judge to the jury.
The words complained of were in a report to the members of the minutes of a meeting of the general executive board of the Brotherhood, hereinafter referred to as the board, held in Florida from January 28, 1946, to February 7, 1946. The entire report covered sixteen columns on eight pages of the magazine, which was published monthly under the direction of the general president in accordance with the constitution of the Brotherhood. There was evidence that there was no other method by which the membership was informed of the proceedings of the board.
*188 The material events leading up to this publication were as follows: The plaintiffs were both members in good standing of Local 25 on October 17, 1945. On that day the plaintiff Sheehan filed a written complaint to Local 25 against its officers, including one Francis J. Halloran, one of its business agents. On the morning of October 18, 1945, both plaintiffs visited the office of Local 25 in Boston and an altercation there took place between the plaintiffs and Halloran during which blows were struck and Halloran received injuries for which he was treated at the Boston City Hospital and on account of which he was confined to bed at his home for several days. On October 19, 1945, Halloran and one O'Donnell, an officer of Local 25, filed written charges against both plaintiffs particularly on account of the alleged assault by them on Halloran. The defendant as general president of the Brotherhood took personal jurisdiction of these charges as he had a right to do under the constitution of the Brotherhood. He duly appointed a hearing officer who held a hearing in Boston at which Halloran and others testified. Each plaintiff made a statement and was examined by the hearing officer. A stenographer was present at this hearing and a transcript of what took place was sent to the defendant by the hearing officer together with his report. On December 24, 1945, the defendant, after an examination of the material evidence in the transcript and consideration of the written report of the hearing officer, made a decision adverse to the plaintiffs and imposed a penalty on them. Both plaintiffs thereupon duly appealed to the board and a hearing was held before it at which the plaintiffs appeared and were heard. A summary of what happened at this hearing appears in the record, together with the decision of the board, which unanimously denied the appeals of the plaintiffs, and with slight modification as to the penalties affirmed the decision of the general president. It appears from this summary that, although the defendant gave his reasons for his decision to the board, he was not present and took no part in the executive session at which the board arrived at its decision. *189 On February 23, 1946, the plaintiffs duly appealed to the general convention of the Brotherhood. These appeals were received and acknowledged by the Brotherhood on February 26, 1946. Before any such convention was held, the magazine with the alleged words was published. There was no evidence that the defendant had knowledge of the appeals when the magazine went to press on or about February 20, 1946.
On the defence of truth pleaded by the defendant there was conflicting evidence at the trial. The defendant testified by deposition that he based his original decision on the transcript of the evidence before the hearing officer in which there was ample evidence to justify the belief he had that the assault on Halloran was a brutal one. He further testified that he had never seen either of the plaintiffs prior to the hearing before the board and bore neither of them any personal enmity. There was evidence at the trial that Halloran was forty-seven years old, Sheehan was thirty-one years old; and D'Ambrosio was thirty-four years old when the altercation took place. The defendant testified that when he wrote the article complained of, he believed Halloran was between fifty and fifty-five years old and old enough to be the father of both plaintiffs.
We first consider the defendant's exceptions to the denial of directed verdicts for him and to the denial of entry of verdicts for him under leave reserved.
At the outset we believe that attention ought to be directed to the difference in the principles of law applicable to what is generally termed privileged comment or criticism and that which is termed a conditional or qualified privilege which arises from the circumstances or the occasion on which alleged defamatory statements are made. The question of what is privileged comment or criticism frequently arises out of publication of words alleged to be libellous in reports in newspapers of actions of public officials. Fair comment in the absence of actual malice is a good defence but false statements of fact are not privileged as comment whether accompanied by actual malice or not. Bander v. Metropolitan *190 Life Ins. Co. 313 Mass. 337, 345. This principle is well illustrated by what was said in Burt v. Advertiser Newspaper Co. 154 Mass. 238, 242: "... what is privileged ... is criticism, not statement, and however it might be if a person merely quoted or referred to a statement as made by others, and gave it no new sanction, if he takes upon himself in his own person to allege facts otherwise libellous, he will not be privileged if those facts are not true."
But different considerations arise in dealing with alleged defamatory statements made under what is called a privileged occasion or a conditional or qualified privilege. In these circumstances the truth or falsehood of such statements is not material if there is no abuse of the privilege or, as has been repeatedly said, if no actual malice is shown. "The occasions described ... are conditionally privileged, that is, the protection which they give is conditioned upon the manner in which the privilege is exercised. The unreasonable exercise of the privilege is an abuse of the occasion which defeats the protection otherwise afforded." Restatement: Torts, § 599, comment a. Doane v. Grew, 220 Mass. 171, 176. Childs v. Erhard, 226 Mass. 454, 457.
This principle of immunity arising out of the occasion under which alleged defamatory statements are made has been recognized for many years in our Commonwealth. Gassett v. Gilbert, 6 Gray, 94, 97. Barrows v. Bell, 7 Gray, 301. Brow v. Hathaway, 13 Allen, 239, 242. Atwill v. Mackintosh, 120 Mass. 177.
This defence of conditional or qualified privilege is applied usually in cases where information is sought from an employer as to the qualifications or character of a former employee. Statements made to one contemplating the employment of the person inquired about, in the absence of abuse of the privilege, are protected. Doane v. Grew, 220 Mass. 171, 176. Childs v. Erhard, 226 Mass. 454.
It is now a generally recognized doctrine that the occasion is privileged "where the publisher and the recipient have a common interest, and the communication is of a *191 kind reasonably calculated to protect or further it." And this privilege has been extended to labor unions. Prosser on Torts, pages 837, 838. Restatement: Torts, § 596, comment d. Emde v. San Joaquin County Central Labor Council, 23 Cal. (2d) 146, 154.
No case in Massachusetts has been brought to our attention, and we have discovered none, in which a conditional or qualified privilege was established by the occasion of disseminating information of general common interest to the members of a labor union by its officers through the medium of the official journal of the union.
It is clearly understandable, however, that the members of a labor union are interested in the doings of their officers and committees and have a right to such information. It was the duty of the defendant to furnish them with that information in the only way provided by the Brotherhood, by the publication of it in the official magazine which was sent to all members.
In other jurisdictions such communications have been held to be privileged. We cite but a few. Bereman v. Power Publishing Co. 93 Colo. 581. Emde v. San Joaquin County Central Labor Council, 23 Cal. (2d) 146, 154. Wise v. Brotherhood of Locomotive Firemen & Enginemen, 252 Fed. 961. Dickins v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers, 171 Fed. (2d) 21. See 92 A.L.R. 1029. Applying these principles to the publication here in question, we are of opinion that the defendant enjoyed a conditional or qualified privilege to report the minutes of the meeting of the board as he did.
The existence of the facts surrounding the publication was not in dispute and it was the duty of the judge to determine whether or not the defendant had the benefit of such a privilege. Bander v. Metropolitan Life Ins. Co. 313 Mass. 337, 343, and cases cited. Prosser on Torts, page 851. Restatement: Torts, § 619, comment a. When the judge decided that the occasion of the publication here was a privileged one, as we think he should have done, he should have next considered the sufficiency of the evidence most favorable *192 to the plaintiffs as it related to the abuse of the privilege or the exercise of actual malice by the defendant, for the burden was on the plaintiffs to prove these contentions. Doane v. Grew, 220 Mass. 171. Childs v. Erhard, 226 Mass. 454. Restatement: Torts, § 619, comment b.
The lawful excuse afforded by the privileged occasion may be lost "because of the publisher's lack of belief or reasonable grounds for belief in the truth of the defamatory matter ...; because the defamatory matter is published for some purpose other than that for which the particular privilege is given ...; because the publication is made to some person not reasonably believed to be necessary for the accomplishment of the purpose of the particular privilege ...; or because the publication includes defamatory matter not reasonably believed to be necessary to accomplish the purpose for which the occasion is privileged." Restatement: Torts, § 599, comment a.
The rule long established by this court is "that an occasion which would justify such a communication may be abused in such a manner as to deprive the party making it of the excuse of privilege. Upon this question, the plaintiff would have a right to go to the jury.... The jury may draw the inference of malice, not only from extrinsic facts,  as, for instance, from proof that the defendant knew the charges to be false, or had no reason to believe them to be true,  but also from the terms in which the communication is made. If those terms are in manifest excess of the occasion ... if they contain strictures on motives and conduct not warranted by the facts ... [it] should have been submitted to them [the jury] to decide whether it was an honest report, made in good faith, justified by the information which the defendant had obtained ... or whether, on the other hand, it was made with a purpose wrongfully to defame the plaintiff." Atwill v. Mackintosh, 120 Mass. 177, 183.
Mindful of these principles we must examine the evidence set out in the bill of exceptions, in the light most favorable to the plaintiffs, to ascertain whether the plaintiffs offered *193 any evidence to sustain the burden imposed upon them of proving that the defendant abused the conditional or qualified privilege he enjoyed in the publication of the alleged defamatory matter.
The plaintiffs rightly argue that the terms in which the communication was made have a bearing upon the question of abuse of privilege. They rely particularly upon the words: "The charges against these two men were based on the fact that they entered the office of Local No. 25 and brutally assaulted one of the business agents, Francis J. Halloran, a man old enough to be their father. They in turn preferred charges against the officers of the local." The plaintiffs complain most bitterly of the words "they ... brutally assaulted ... Francis J. Halloran, a man old enough to be their father," and argue that this language imports malice and an abuse of privilege.
In order to determine whether there was any abuse of the privilege the defendant undoubtedly enjoyed, it becomes necessary to consider how far this privilege extended. We doubt if it extended more than was necessary to give the members of the Brotherhood purely factual information as to the disposition by the officers of the Brotherhood of the charges made against the plaintiffs and of the charges the plaintiffs made against the officers of Local 25. This could have been done without characterizing the assault as brutal. It is unnecessary to determine, however, whether this description of the assault without more would have been sufficient to take the case to the jury. It may be that the testimony of Halloran before the hearing officer relative to the manner and consequences of the assault was sufficient to warrant a belief that it was a brutal one. But this description of the assault must be coupled with the statement that Halloran was "a man old enough to be their father."
There was nothing in the record of the proceedings of the tribunal of the Brotherhood which the defendant purported to report to warrant this statement. The record of the proceedings before the tribunal and the record at the trial *194 disclose that the defendant had no personal knowledge of the ages of the parties when the article was published and that he possessed no information upon which he could reasonably predicate a belief as to their ages. At the trial it appeared that Halloran was forty-seven years old, D'Ambrosio was thirty-four years old, and Sheehan was thirty-one years old when the alleged assault took place. While it is literally true that Halloran may have been old enough to have been the father of Sheehan, it is extremely doubtful if such would be the case as to D'Ambrosio. Ordinarily boys are not fathers at the age of thirteen or even sixteen.
Taken together, these words present a picture of two vigorous young men walking in on and viciously beating a middle aged or elderly man too old to defend himself. The picture brought to the mind of a reader was not a favorable one to say the least and may have cast a noxious reflection on the character and reputation of the plaintiffs. We are of opinion that whether the defendant lost the benefit of the privilege by the use of the words complained of presented a question to be passed on by the jury.
The jury could well take the view that the use of this language considered as a whole constituted defamatory matter not reasonably necessary to accomplish the purpose of the occasion. The jury too could well find that the terms of the publication were in manifest excess of the occasion and contained strictures upon the conduct of the plaintiffs not warranted by facts in the possession of the defendant when he published the article. There was no error in the denial of the motions to which the defendant took exceptions.
We believe, however, that there was error in the refusal of the judge to give the requested instruction 27, "The occasion of the publication declared on was a privileged occasion." As we have already pointed out, where it appears, as here, that the facts out of which the occasion arose were not in dispute, it was the duty of the judge to determine, as matter of law, the question whether or not the occasion was a privileged one. The judge should have decided that the occasion was privileged, because of what *195 we have said herein, and he should have given the instruction requested by the defendant. Failure to do so constituted material error because of which a new trial must be ordered.
Because the subjects of the other exceptions of the defendant may arise at another trial we think we ought to discuss them here.
We believe that the judge erred in two statements in his charge to the jury. "If you find these men were accused of a crime, you may take that into consideration as actual malice with all the evidence in the case to decide whether there was malevolence, ill will or hatred." We are of opinion that if the defendant enjoyed a conditional or qualified privilege it matters not if the words were true or false or even if they charged a crime. Furthermore, the sole test is not whether there was malevolence, ill will or hatred but whether there was an abuse of the privilege in the light of what we have already said. In the charge the judge also said, "False statements of fact are not privileged as comment." This is correct as an abstract statement of law and apparently was quoted verbatim from Bander v. Metropolitan Life Ins. Co. 313 Mass. 337, 345. Its application, however, to the facts in the instant cases could only mislead the jury, for here we are dealing not with privileged criticism or comment but rather, as we have emphasized, with conditional or qualified privilege arising out of the occasion of the publication. The principles of law governing these two situations are essentially different.
The remaining exceptions of the defendant are to the exclusion of certain questions and answers in the deposition of the defendant, offered to show the nature of the publication and the consequent protection of a conditional privilege. The questions related to the custom of publishing in the magazine the reports of the meetings of the board, the length of time such custom was in use, and by whom the custom was established. We believe it was error to exclude these questions and answers for they seem to bear directly on the motive of the defendant. If he adopted, as he tried *196 to show, a practice established by the board which had been in existence forty years, it should have been considered in determining the enjoyment of a conditional privilege by the defendant when he authorized the publication. The evidence was relevant and material and should have been admitted.
The plaintiffs argue that this evidence was properly excluded on the basis of the "best evidence" rule,[1] but we believe that doctrine has no application in these circumstances. See Commonwealth v. Stevens, 155 Mass. 291, 292. See also Forster Manuf. Co. v. Cutter-Tower Co. 215 Mass. 136.
The defendant's exceptions to the denial of his motions are overruled. The other exceptions are sustained.
So ordered.
NOTES
[1]  The companion case is by Joseph M. D'Ambrosio against the same defendant.
[1]  The plaintiffs' brief contained the following: "... the best evidence of such a custom would be, not the opinion testimony of any individual, but the publications themselves in the official journal published during the previous years during which it was claimed that this custom existed. No such `best evidence' was offered...."  REPORTER.


447 F.Supp. 788 (1978)
Ralph WHITE et al.
v.
Frank S. BEAL et al.
Civ. A. No. 75-11.
United States District Court, E. D. Pennsylvania.
March 10, 1978.
*789 *790 R. Michael Kemler, Philadelphia, Pa., for plaintiffs.
Axel Shield, Asst. Atty. Gen., Philadelphia, Pa., for defendants.

MEMORANDUM OPINION AND ORDER
VANARTSDALEN, District Judge.
The plaintiffs, having prevailed on the merits, now seek to recover their attorneys' fees. Before determining whether the amount they have requested is reasonable and justified, it is necessary to determine whether there exists a basis for allowing an award of attorneys' fees to the prevailing litigant in a case of this nature.

I. Procedural Background

The plaintiffs brought this civil rights class action pursuant to 42 U.S.C. § 1983 against the state officials who were responsible for administering Pennsylvania's federally funded medical assistance program. They claimed that the defendants' refusal to provide them eyeglasses pursuant to Pa. Stat.Ann. tit. 62, § 443.4, DPW-Pa. Manual §§ 9740 and 9743 which approved the dispensing of eyeglasses only to those eligible welfare recipients who suffered from an eye disease or pathological disorder, violated the due process and equal protection clauses of the fourteenth amendment. In addition, plaintiffs asserted a pendent federal statutory claim alleging that the state *791 statutory scheme was in conflict with the Social Security Act, 42 U.S.C. § 1396, et seq., and the regulations promulgated thereunder, 45 CFR § 249.10, et seq., and was therefore in violation of the supremacy clause of Article VI of the United States Constitution. Because the constitutional claim satisfied the substantiality doctrine of Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974), pendent jurisdiction was exercised over the statutory claim.
The case was certified as a class action, the class consisting of
all Pennsylvania recipients of medical assistance for whom eyeglasses are medically necessary in the judgment of a physician skilled in diseases of the eye or an optometrist, and who have been or will be denied authorization by the Pennsylvania Department of Public Welfare, pursuant to the Department of Public Welfare Manual §§ 9740 and 9743 to receive eyeglasses in that defendants provide eyeglasses only to persons with eye disease or pathology and deny them to persons whose need for eyeglasses is due to reasons other than disease or pathology.
Resolution of the statutory claim resulted in summary judgment in favor of the plaintiff class and the defendants were permanently enjoined from applying the restrictive state regulations. White v. Beal, 413 F.Supp. 1141 (E.D.Pa.1976), aff'd, 555 F.2d 1146 (3d Cir. 1977).
At the time the instant petition was filed, the plaintiffs would arguably have been entitled to attorneys' fees only under the common benefit fund exception to the "American Rule" which generally precludes an award of attorneys' fees to the prevailing litigant. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). This theory, however, raised certain difficult problems because no common fund, monetary or otherwise,[1] the right to which would accrue to a definable class, had been created as a result of this litigation. Despite plaintiffs' arguments to the contrary, there seemed to be no way to spread the cost of counsel fees among those benefited from the litigation, which is the justification for the common fund exception. Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). Furthermore, even if an award of counsel fees were justified under the common benefit exception, the eleventh amendment still presented a formidable obstacle to the recovery of such an award from these defendants.
While this petition was pending, Judge Newcomer denied an award of attorneys' fees in a similar case, on the grounds that the common benefit exception as clarified in Alyeska, supra, does not apply to a noneconomic benefit from which no monetary fund is created. Mental Patients Civil Liberties Project v. Department of Public Welfare, Civil Action No. 73-1512 (E.D.Pa. filed Aug. 18, 1975). Because of the similarity of the issues, decision on the instant petition was stayed pending disposition of the appeal taken from that decision. On September 7, 1976, the Court of Appeals for the Third Circuit affirmed, by judgment order, the decision of Judge Newcomer for the reasons stated in his memorandum. Mental Patient Civil Liberties Project v. Dept. of Public Welfare, 541 F.2d 275 (3d Cir. 1976). Thereafter, the United States Supreme Court granted plaintiffs' petition for a writ of certiorari, vacated the judgment order of the court of appeals and remanded the case for further consideration in light of the Civil Rights Attorneys' Fees Awards Act of 1976, Pub.L. 94-559, § 2, Oct. 19, 1976, 42 U.S.C. § 1988. Mental Patient Civil Liberties Project v. Dept. of Public Welfare, 430 U.S. 925, 97 S.Ct. 1542, 51 L.Ed.2d 769 (1977).
*792 Consideration of the applicability of that act to the Mental Patient case was recently decided by Judge Newcomer having been remanded by the court of appeals, Mental Patient Civil Liberties Project v. Dept. of Public Welfare, 556 F.2d 567 (3d Cir. 1977), for his initial determination. Mental Patients Civil Liberties Project v. Hospital Staff Civil Rights Committee, 444 F.Supp. 981 (E.D.Pa. Dec. 14, 1977). Both parties in this case have briefed the question of that Act's application to this litigation and I see no reason to further delay the final disposition of this petition.

II. Civil Rights Attorneys' Fees Awards Act of 1976

Defendants' opposition to this petition is centered on three arguments. First, they contend that the Act does not apply to cases pending on the date of its enactment. Second, they argue that even if the Act were applicable to pending litigation, it does not apply to this particular case because plaintiffs, having succeeded only on their pendent statutory claim, are not the prevailing litigants in an action to enforce one of the civil rights statutes to which the Act applies. Finally, they argue that the eleventh amendment still stands as a bar to any monetary recovery payable out of the state treasury. These arguments will be considered ad seriatim.

1. Pending Cases

At the time this Act became effective, the order granting plaintiffs' motion for summary judgment was on appeal but the plaintiffs' petition for attorneys' fees was pending before this court pursuant to the order of June 23, 1976, staying resolution of the petition until decision on the appeal in the Mental Patient case.[2]
Although the Act does not expressly provide for its application to pending litigation, the legislative history clearly suggests that it does. The report of the House of Representatives states:
In accordance with applicable decisions of the Supreme Court, the bill is intended to apply to all cases pending on the date of enactment as well as all future cases. Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974).
H.R.Report No. 94-1558, 94th Cong., 2d Sess. p. 4, n. 6 (1976). In addition the remarks of Senator Abourezk, who managed the bill on the floor of the Senate and Senator Kennedy, 122 Cong.Rec. S 17052 (daily ed. Sept. 29, 1969), as well as Representatives Anderson, 122 Cong.Rec. H 12155, and Drinan, id. at H 12160 (daily ed. Oct. 1, 1976), state that the intent of Congress is that the Act be applied retroactively to pending cases.
There are no special circumstances which would render an award of attorneys' fees in this case unjust or inappropriate. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). The defendants were or should have been aware that award of attorneys' fees might be appropriate in the event the plaintiffs should prevail on the merits. The passage of this Act merely substantiated that possibility. Moreover, the amount involved in this case is not so substantial as to suggest that defendants would have followed a different course in litigating this action had the potential for such an award been more likely from the outset.
It is also apparent from the legislative history that the purpose of the Act was to provide the "specific authorization required by the court in Alyeska", S.Rep.No.94-1011, 94th Cong., 2d Sess., p. 4, U.S.Code Cong. & Admin.News (1976), p. 5912, and close the gap created by that decision whereby the prevailing litigant in a suit brought to enforce the Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e et seq., would be entitled to recover attorneys' fees but would not be entitled to the same award in a similar suit brought pursuant to the earlier Civil Rights Acts, 42 U.S.C. *793 § 1981 et seq.[3] This purpose is best effectuated by applying the Act retroactively. Otherwise, successful plaintiffs in cases like the instant action would be denied attorneys' fees solely on the basis that the litigation was concluded subsequent to the decision in Alyeska and prior to the passage of this Act.
Finally, I note that the few cases which have confronted this question, to date, are in unanimous agreement with the decision to apply this Act to those cases pending on the date of its enactment. Wharton v. Knefel, 562 F.2d 550, 557 (8th Cir. 1977); Gates v. Collier, 559 F.2d 241, 243 (5th Cir. 1977); Bond v. Stanton, 555 F.2d 172 (7th Cir. 1977); Rainey v. Jackson State College, 551 F.2d 672 (5th Cir. 1977); Stanford Daily v. Zurcher, 550 F.2d 464 (9th Cir.), cert. granted, 434 U.S. 816, 98 S.Ct. 52, 54 L.Ed.2d 71 (1977);[4]Mental Patient Civil Liberties Project v. Hospital Staff Civil Rights Committee, Civil No. 73-1512, 444 F.Supp. 981 (E.D.Pa. filed Dec. 14, 1977) (Newcomer, J.); Meisel v. Kremens, 405 F.Supp. 1253 (E.D.Pa.1977) (Higginbotham, J.); Commonwealth of Pennsylvania v. O'Neill, 431 F.Supp. 700, 703 (E.D.Pa.1977); Gary W. v. State of La., 429 F.Supp. 711 (E.D.La.1977); Wade v. Mississippi Co-op Extension Service, 424 F.Supp. 1242 (N. D.Miss.1976).

2. Prevailing Litigant

Defendants urge that the Act be interpreted in such manner as to exclude an award of attorneys' fees in this case because plaintiffs' constitutional claim was never adjudicated. As with defendants' first contention, the legislative history offers persuasive guidance against accepting the narrow interpretation urged by defendants. The House Report states:
To the extent a plaintiff joins a claim under one of the statutes enumerated in [the Act] with a claim that does not allow attorney fees, that plaintiff, if it prevails on the non-fee claim, is entitled to a determination on the other claim for the purpose of awarding counsel fees. . . In some instances, however, the claim of fees may involve a constitutional question which the courts are reluctant to resolve if the nonconstitutional claim is dispositive. . . . In such cases, if the claim for which fees may be awarded meets the "substantiality" test . . . attorney's fees may be allowed even though the court declines to enter judgment for the plaintiff on that claim, so long as the plaintiff prevails on the non-fee claim arising out of a "common nucleus of operative fact."
(Citations omitted). H.R.Rep.No.94-1558, 94th Cong., 2d Sess. p. 4, n. 7. See Southeast Legal Defense Group v. Adams, 436 F.Supp. 891, 894 (D.C.Or.1977).
It was determined by the prior opinion in this case, that plaintiffs' due process claim was not so insubstantial as to foreclose jurisdiction over the pendent statutory claim. White v. Beal, 413 F.Supp. at 1150. Following the guidance of Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974) and Westby v. Doe, 420 U.S. 968, 95 S.Ct. 1385, 43 L.Ed.2d 648 (1975), plaintiffs' statutory claim being dispositive of the entire controversy, the case was adjudicated solely on that basis.
In addition, plaintiffs' statutory and constitutional claims were precipitated by the same state action, the denial of eyeglasses to the financially needy on the basis of etiology rather than medical necessity. The *794 case, therefore, falls squarely within the legislative statement quoted above. The non-fee statutory claim was adjudicated pursuant to the court's jurisdiction over the § 1983 constitutional claim and both claims arose out of a common nucleus of operative fact.
Aside from the legislative history, a denial of attorneys' fees on the basis that the constitutional claim was not adjudicated despite the fact that full relief was accorded the plaintiffs on the statutory claim, would only serve to thwart both the judicial policy against unnecessarily deciding issues of constitutional dimension and the purpose for which the Act was passed. See Seals v. Quarterly County Court, 562 F.2d 390, 393-394 (6th Cir. 1977); Bond v. Stanton, supra at 174; Lund v. Affleck, 442 F.Supp. 1109 (D.C.R.I., 1977).

3. Eleventh Amendment

The eleventh amendment embodies the constitutional recognition of the states' sovereign immunity and protects the fiscal integrity of the state by prohibiting an award of damages payable out of the state's treasury.[5]Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The eleventh amendment's cloak of immunity is, however, now subject to qualification by legislative action taken pursuant to the enforcement provisions of the subsequently ratified fourteenth amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976).
In Bitzer, supra, the Supreme Court upheld an award of back pay and attorneys' fees in an action against a state for violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The Court held that legislation enacted pursuant to the power granted Congress by the enforcement provisions of § 5 of the fourteenth amendment may supersede the states' eleventh amendment immunity. The controlling factor in determining whether such legislation does, in fact, abrogate the states' immunity is whether Congress intended and authorized an award of damages to the prevailing plaintiff in a permissible action against a state. Bitzer, 427 U.S. at 452, 96 S.Ct. 2666. Essentially the question presented here is whether, given Congress's power to authorize monetary awards against a state when necessary to enforce the provisions of the fourteenth amendment, it intended to exercise that power when it enacted this statute.
The legislative history shows that Congress passed this legislation pursuant to the enabling clause of the thirteenth and fourteenth amendments, S.Rep.No.94-1011, 94th Cong., 2d Sess. p. 5, U.S.Code Cong. & Admin.News (1976), p. 5908, and intended or at least assumed that it applied to the states. See H.R.Rep.No.94-1558, 94th Cong., 2d Sess. p. 7; Remarks of Representative Drinan at 122 Cong.Rec.H. 12160 (daily ed. Oct. 1, 1976). The few cases which have considered Congress's intent with regard to this aspect of the statute have found that the legislative history was sufficiently explicit to constitute the authorization required by Bitzer to allow an award of attorneys' fees against state officers sued in their official capacity. Seals v. Quarterly County Report, supra at 394; Gates v. Collier, supra at 242-243; Bond v. Stanton, supra at 174-175; Rainey v. Jackson State College, supra at 675-676; Finney v. Hutto, 548 F.2d 740 (8th Cir.), cert. granted, 434 U.S. 901, 98 S.Ct. 295, 54 L.Ed.2d 187 (1977);[6]Mental Patient Civil Liberties *795 Project v. Hospital Staff Civil Rights Committee, supra; Meisel v. Kremens, supra; Gary W. v. State of La., supra at 712-713; Wade v. Mississippi Co-op Extension Service, supra at 1254-1255.
The only case to date, which has held otherwise, is one of the three cases on point decided in this Circuit. Skehan v. Board of Trustees of Bloomsburg State College, 436 F.Supp. 657 (M.D.Pa.1977). In that case, the court refused to subject state officials to an award of attorneys' fees absent express language in the statutes, authorizing such an award. Refusing to find sufficient authorization in the legislative history, the court, distinguished Bitzer on the grounds that the Equal Employment Opportunity Act of 1974 expressly amended Title VII to permit actions against state employers for back pay and attorneys' fees in employment discrimination suits.
I agree with Judge Muir that abrogation of the eleventh amendment should not be read lightly into a Congressional enactment. However, a review of the legislative background of this particular Act leads to the conclusion that it was clearly the intent of Congress to authorize an award of attorneys' fees to a prevailing plaintiff in a suit brought against state officials to enforce the provisions of the earlier Civil Rights Acts, 42 U.S.C. § 1981 et seq. See S.Rep.No.94-1011, 94th Cong., 2d Sess. (1976), U.S.Code Cong. & Admin. News, p. 5913 (1976); H.R.Report No. 94-1558, 94th Cong., 2d Sess., p. 7 n. 14 (1976).[7] Ignoring this legislative history would, I believe, limit the decision in Bitzer beyond that intended by the Court. The intent of Congress is sufficiently clear and unambiguous to satisfy the authorization required by Bitzer. Furthermore, a cause of action pursuant to § 1983 requires state action which in the majority of such cases is supplied by the fact that the named defendants are state officials acting on behalf of the state. Bond v. Stanton, 555 F.2d at 174. The purpose of the Act would be all but obliterated, if it were construed to allow an award of attorneys' fees only in those relatively few cases wherein the named defendants are solely private entities.
As the defendants correctly point out, a state and its agencies and municipalities are not "persons" within the meaning of § 1983 and are not therefore subject to liability for violations of that section. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). However, defendants' reliance upon that principle as the gravamen for their argument that Congress misconstrued the decision in Bitzer fails to take into account that state officials are "persons" within the meaning of § 1983 and are, therefore, subject to liability for actions in violation of that section.[8] The named defendants were proper parties in this § 1983 action and Congress properly relying upon the holding in Bitzer, authorized an award of attorneys' fees in an action brought to enforce the provisions of that section despite any impact such an award may have upon the state treasury.

4. Community Legal Services

Defendants' contention that Community Legal Services (CLS), as a publicly funded organization, established for the purpose of providing free legal services to the financially needy, is not entitled to recover attorneys' fees is rejected for the reasons stated in Rodriguez v. Taylor, 420 F.Supp. 893 (E.D.Pa.1976), aff'd in part 569 F.2d 1231 (3d Cir. December 27, 1977); see Lund v. Affleck, supra.

*796 III. Reasonable Attorneys' Fees

The Senate Report suggests that the proper standards to apply in determining a reasonable fee in cases of this nature, are those which were applied in cases such as the Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D.Cal.1974). S.Rep.No. 94-1011, 94th Cong., 2d Sess. p. 6, U.S.Code Cong. & Admin.News (1976), p. 5913. That case applied the factors enumerated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), within the framework suggested by Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) (Lindy I).
Following the course outlined in Zurcher and the dictates of Lindy I and Lindy II,[9] the following factors will be considered in reaching a reasonable award of attorneys' fees in this case:
1. The actual amount of time devoted to the litigation. The number of hours spent, by whom and in what manner.
2. A determination of a reasonable hourly rate for the time and activities performed.
3. The valuation of the services rendered in terms of the quality of the work performed, the contingent nature of success and the resulting benefits to the individual plaintiffs and class members.
The determination of the first two factors constitutes the "lodestar" from which additions and subtractions can be made dependent upon the variables in the third factor. Lindy I and II, supra; Rodriguez v. Taylor, supra.

1. Hours Devoted to the Litigation

The petition[10] submitted by Mr. Kemler of CLS states that a total of 303 hours were spent on this litigation, 301 of which were spent out-of-court and the remaining 2 hours in court. According to the petition the time was spent in the following manner: 6 hours interviewing the individual and intervenor plaintiffs; 18 hours in consultation with associate counsel, opposing counsel and expert witnesses; and 277 hours for the research preparation and filing of the complaint and various motions and responses required by the litigation. Subsequent to the filing of this petition, plaintiffs' counsel filed a supplemental affidavit which updates the original petition and requests compensation for 107 additional hours expended by counsel for the preparation of appellate briefs and argument before the Third Circuit Court of Appeals and supplemental memoranda requested by this court on the question of the proper application of the Civil Rights Attorneys' Fees Awards Act to this litigation.[11]
*797 I accept the factual allegations as to the time spent. This amount of time appears to be reasonable in light of the unique issues and the thoroughness exhibited by the briefs submitted by both parties on the various issues. I cannot say that the motions and memorandum in support of or in response to either of the parties' positions were unnecessary, frivolous, in bad faith or for the purpose of delay. Therefore, I accept as correct and reasonable the figure of 410 hours devoted by plaintiffs' counsel to this litigation.

2. Reasonable Hourly Rate

The reasonable value of the services rendered by counsel on behalf of the plaintiffs must take into account the cost of those services on the "open market," i. e., the average billing rate of attorneys of similar expertise performing similar work.[12] This determination is usually based upon consideration of the average billing rates of attorneys performing this type of work in litigation of this nature. However, as noted by the Court of Appeals in Rodriguez v. Taylor, supra, this determination is complicated by the fact that CLS itself has no billing rate and private attorneys performing this type of work, because of the nature of the work, often request less than their normal hourly rate. See Rodriguez v. Taylor, 569 F.2d 1231, at 1248 n. 29 referring to Commonwealth of Pennsylvania v. O'Neill, 431 F.Supp. at 707. As a result there is no established market to use as a basic foundation for the purpose of determining the market value of these services.
A review of the lengthy opinion by Judge Fullam of this district, in Commonwealth of Pennsylvania v. O'Neill, supra, in which he carefully considered the reasonableness of the fees requested by plaintiffs' counsel, a private law firm, pursuant to the Civil Rights Attorneys' Fees Awards Act, offers substantial guidance for determining the appropriate amount. That opinion suggests that reasonable fees, in litigation of this nature range between approximately ten ($10) to twenty ($20) dollars per hour for paralegal and research assistance work; twenty-five ($25) to forty ($40) dollars per hour for work performed by associates and from fifty ($50) to eighty ($80) dollars per hour for work performed by a senior partner in the law firm.[13]
Although the original petition failed to set forth any information as to the experience levels of the various CLS attorneys involved in this litigation, the supplemental petition establishes the following: Mr. Stephen F. Gold who devoted 73 hours of work to this litigation has been practicing law for seven years and was the Chief of the Health, Education and Welfare Unit of CLS, a position equal to a junior partner in a private law firm; Mr. Jonathan M. Stein who performed only one hour of work in an advisory capacity is an experienced CLS attorney who was Chief of the Law Reform Unit of CLS, a position comparable to Mr. Gold's; Mr. R. Michael Kemler, the CLS attorney responsible for conducting this litigation has practiced law for the past five years and is comparable to an experienced associate with a private law firm; Ms. Linda M. Bernstein has a similar level of experience as that of Mr. Kemler and would likewise be comparable to an experienced associate with a private law firm; and finally, Ms. Suzanne Reilly whose experience is limited to the one year in which she has practiced law and who would be comparable to a junior associate with a private law firm.
Based on this information and utilizing the figures found to be reasonable in Commonwealth v. O'Neill, supra, I find the following to be reasonable hourly rates for the *798 work performed by the CLS staff attorneys involved in this litigation:

                                    Rate
                        Total       per
    Attorney            Hours      Hour       Total
-------------------------------------------------------
1. Stephen F. Gold    |   73 |   $ 50.00 | $ 3,650.00 |
2. Jonathan M. Stein  |    1 |     50.00 |      50.00 |
3. R. Michael Kemler  |  316 |     40.00 |  12,640.00 |
4. Linda M. Bernstein |    2 |     40.00 |      80.00 |
5. Suzanne Reilly     |   18 |     25.00 |     450.00 |
-------------------------------------------------------

3. Variables

The sole remaining determination is whether any additions to or deduction from this objective fee are required by an analysis of the more subjective considerations enumerated in the third factor.

a. Attorneys' Performance

Counsel's performance must be judged in terms of the difficulty in successfully prosecuting the client's claims and the quality of the work submitted to the court during the litigation. These factors are to some extent intertwined. The more difficult the case, the higher quality of work necessary to accomplish a successful outcome.
1. Contingent Nature of Success

Plaintiffs' success in this case, although important in terms of the type of issued presented, was not contingent upon overcoming particularly difficult obstacles. The issues presented by the case were primarily legal questions requiring counsel to focus the courts' attention upon the problem and argue persuasively for the acceptance of their suggested resolution. In this instance, plaintiffs' counsel were aided substantially by the then recent decision of this circuit's court of appeals in Doe v. Beal, 523 F.2d 611 (3d Cir. 1975), rev'd, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977).
Because the controversy was of a legal rather than factual nature, the case did not require trial or trial preparation nor did it require substantial settlement negotiations with the accompanying strategical maneuvering. This is not to suggest that legal as opposed to factual controversies require less diligence or aptitude but only to point out that this case presented problems attendant to only the legal aspect of the litigation process.
2. Quality of Counsel's Work

The quality of the attorneys' work on behalf of both the plaintiffs and defendants was quite satisfactory. Both counsel diligently provided their clients with the representation, and the court with the information, which was necessary to efficiently and appropriately resolve the controversy. Nevertheless, as noted, the litigation did not involve difficult trial preparation nor particularly complex legal issues. As a result, the quality of counsel's work was not as important a factor in obtaining a successful outcome to the litigation as it might have been had there been substantial factual controversies or more difficult legal issues.

b. Benefit to the Individual Plaintiffs and Class Members

The value of these services in terms of the benefit to the plaintiffs and class members is a more difficult consideration in the context of this particular case. On the one hand, plaintiffs now have what they initially sought, an injunction against further operation of the regulations embodied in Pennsylvania Department of Public Welfare Manual, DPW-Pa. §§ 9740, 9743 insofar as such regulations deprived the members of the class from obtaining eyeglasses under the medical assistance program, 42 U.S.C. § 1396. On the other hand, as a result of this litigation, the court has been advised that the Commonwealth has chosen to eliminate eyeglasses entirely as one of the optional services under the program.
It is difficult to assess the effect, if any, that this result should have upon the reasonable value of counsels' services. Certainly in the realm of private litigation, the actual benefit received as a result of resolving the controversy is of utmost importance to the client. Ultimately, however, in the context of litigation of this nature, the Commonwealth's decision to discontinue this program does not detract from the fact that the plaintiffs were able to vindicate their important statutory rights and rectify *799 certain improper state action. The plaintiffs' success was, therefore, of a fairly valuable nature even if not, ultimately, of a substantial practical benefit.

IV. Conclusion

Having determined that counsels' performance was sufficient to attain a successful outcome in this case but that the litigation did not require extensive trial preparation or involve particularly complex factual or legal issues, I perceive no special circumstances which would warrant an additional award of fees. At the same time, because resolution of the controversy resulted in an important legal determination of dubious practical benefit, no additions to or deductions from the objective fee will be applied on this basis.
Thus, an award of attorneys' fees to the prevailing plaintiffs will be allowed, pursuant to the Civil Rights Attorneys' Fees Awards Act of 1976 in the amount of $16,870.00. This total figure is based on the hourly rates determined as reasonable in Part III, subsection 2 of this opinion multiplied by the number of hours devoted to the litigation by the various CLS attorneys.
NOTES
[1]  Assuming an actual monetary fund is not required in a case of this nature, see Merola v. Atlantic Richfield Company, 515 F.2d 165 (3d Cir. 1975), there is some question as to whether a common benefit has accrued to the class as a result of this litigation. The judgment entered left open the possibility for the Commonwealth to discontinue the eyeglass program entirely if it chose to do so. The Commonwealth has recently, in fact, discontinued the program and, it is at least arguable, that the class has received no benefit as a result of this litigation.
[2]  The Act took effect on October 19, 1976. The final order granting plaintiffs' motion for summary judgment was entered on April 21, 1976 and was affirmed by the court of appeals on May 5, 1977. Plaintiffs' petition for attorneys' fees was filed on May 3, 1976.
[3]  As the legislative history points out, "fees are now authorized in an employment discrimination suit under Title VII of the 1964 Civil Rights Act, but not in the same suit brought under 42 U.S.C. § 1981, which protects similar rights . . .." S.Rep.No.94-1011, 94th Cong., 2d Sess. p. 4, U.S.Code Cong. & Admin.News (1976), p. 5911.
[4]  One of the three questions presented to the Supreme Court in this petition for certiorari is whether this Act should be applied to services rendered prior to its effective date. Normally, I might consider delaying decision on a question presently pending before the Supreme Court. However, in this case plaintiffs' petition has been awaiting resolution since May 3, 1976. It has already been stayed for a period of time pending review in the Mental Patient case and I believe it would be unfair to add any further delay.
[5]  Although the state is not a named defendant and the state agencies were dismissed from this action, White v. Beal, 413 F.Supp. at 1150, the individual defendants were sued in their official capacities as state and county officers. As such, an award of attorneys fees would still have an impact upon the state treasury sufficient to permit these defendants to exercise the Commonwealth's eleventh amendment immunity. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945).
[6]  One of the questions presented to the Supreme Court in this petition for certiorari is whether the eleventh amendment absolutely bars an award of attorneys' fees, pursuant to this Act, payable out of the state treasury. For the reasons stated in note 4 supra, I decided not to stay decision on this issue.
[7]  Deciphering Congressional intent by implication is fraught with uncertainty. However, I note that Senator Helms proposed an amendment to this Act which would have expressly excluded the states from its application and this amendment was tabled. 122 Cong.Rec. § 16434 (daily ed. Sept. 22, 1976). See Bond v. Stanton, 555 F.2d at 174.
[8]  The defendants argue that Bitzer does not apply and that Congress incorrectly relied upon that decision, because the 1972 amendment to Title VII, with which Bitzer was concerned, expressly authorizes suits directly against the state as an employer whereas the state cannot be a defendant in § 1983 action.
[9]  Lindy Bros. Builders, Inc. v. American Radiator and Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976).
[10]  The petition sets forth the number of hours devoted to the litigation, the work performed and the name of the attorney who performed it. The hourly rate requested is forty dollars ($40) office time and sixty dollars ($60) court time. The defendants have objected strenuously to any award of attorneys' fees but they have not objected to the number of hours set forth in the petition or the reasonableness of the rate requested. The petition satisfies the basic requirements of Lindy I although I note that it falls somewhat short of the procedure suggested by the court in Merola v. Atlantic Richfield Company, 515 F.2d at 167 (n.2) (3d Cir. 1975).
[11]  According to counsel's affidavits, 42 of these 410 hours were spent preparing memoranda relevant to the fee application. Lindy II, supra at 110-111 held that no award should be permitted for time spent in the preparation and litigation of the prevailing party's petition for attorneys' fees. The award of attorneys' fees in that case, however, was a common fund rather than statutorily authorized award and the basis for the court's holding was that time spent in preparation of the fee petition would not inure to the benefit of the fund and would, therefore, not serve the policy behind the common fund doctrine. These statutorily authorized fees, however, are payable by defendants and serve the dual purpose of encouraging the prosecution of meritorious civil rights litigation and punishing those defendants who are found to have violated these important rights. See, e. g., Prandini v. National Tea Company, 557 F.2d 1015, 1020 (3d Cir. 1977). Recovery for time invested by counsel in preparation of the fee application would serve to effectuate these policies. Mental Patient Civil Liberties Project v. Hospital Staff Civil Rights Committee, supra; but see Commonwealth of Pennsylvania v. O'Neill, supra at 705.
[12]  As noted in Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D.Cal.1974), an attorney experienced in a particular area of litigation may not be entitled to his/her usual billing rate for work performed in another area with which he/she does not have the same expertise.
[13]  These rates were approximately two-thirds ( 2/3 ) of the rate normally billed by the law firm for work performed by these various individuals.


893 F.2d 348
Harvellv.Morgan*
NO. 89-7374
United States Court of Appeals,Eleventh Circuit.
DEC 15, 1989

1
Appeal From:  N.D.Ala.

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  11th Cir.R. 34-3


501 F.3d 449 (2007)
UNITED STATES of America, Plaintiff-Appellee,
v.
Frederick C. TALBERT, Defendant-Appellant.
No. 06-31233.
United States Court of Appeals, Fifth Circuit.
September 25, 2007.
*450 Catherine M. Maraist, Michael J. Jefferson, Baton Rouge, LA, for U.S.
Joseph Kelsey Scott, III, Baton Rouge, LA, for Talbert.
Before HIGGINBOTHAM, GARZA and BENAVIDES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
The Government indicted Frederick Talbert on one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The indictment alleged that Talbert knowingly possessed two guns found in his vehicle the night he was arrested. A jury convicted him. On appeal, Talbert argues that the district court's jury charge was improper by allowing conviction even if the jurors were not unanimous as to which gun he knowingly possessed. Talbert also argues that the district court improperly ordered him to register as a sex offender under Louisiana law. Rejecting both contentions, we affirm.

I
Although we generally review claims that a court improperly instructed the jury for abuse of discretion, United States v. Correa-Ventura, 6 F.3d 1070, 1076 (5th Cir.1993), Talbert's claim is that the instruction misstated an element of the crime, a claim we review de novo, United States v. Morales-Palacios, 369 F.3d 442, 445 (5th Cir.2004).
This court has recognized that simultaneous possession of multiple firearms constitutes only one crime under § 922(g)(1). See United States v. Bullock, 615 F.2d 1082 (5th Cir.1980); see also United States v. Verrecchia, 196 F.3d 294, 297-98 (1st Cir.1999) (citing Bullock and other cases which so hold). Hence, the Government appropriately charged Talbert with only count of § 922(g)(1), alleging that he possessed two guns. Prior to trial, both the Government and Talbert suggested using the Fifth Circuit pattern jury instruction. On the day of trial, however, the Government *451 suggested a new instruction entitled "No Need for Unanimity as to Firearm," citing the First Circuit's decision in Verrecchia. Talbert objected, but after analyzing Verrecchia and holding a hearing, the district court delivered to the jury a modified version of the Government's charge:
It is not necessary for the government to prove that the defendant possessed both firearms. It is only necessary that you find that the government has proven beyond a reasonable doubt that the defendant possessed a firearm.
Talbert challenges this instruction on appeal, arguing that it improperly allowed conviction even if the jurors were not unanimous as to which gun he actually possessed. This is not just theoretical, he asserts, because defense witnesses at his trial testified that the two guns were left in the vehicle on separate occasions, one days or weeks before the arrest and the other on the day of arrest. Consequently, he asserts, jurors may have disagreed as to which gun he knowingly possessed.
At the outset, we note that the charge could reasonably be read as explaining that the Government need not prove that Talbert possessed both guns, but rather only one gun, while requiring unanimity as to the gun possessed. One reaches this reading from the requirement that the jury find Talbert possessed "a firearm," along with the general unanimity instruction that the court also gave. Of course, the charge could be read not to require such unanimity, as Talbert argues. In any event, the Government implicitly concedes that the instruction does not require such unanimity, arguing instead that such unanimity is not required. We address this contention.
We have not passed on this exact issue, but the First Circuit has. In Verrecchia, the court first noted that, in Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), the Supreme Court held that although jury members must agree on each "element" of a crime, they need not agree on the "underlying brute facts" that make up an element. Consequently, the First Circuit put it, "the crucial distinction is thus between a fact that is an element of a crime and one that is `but the means' to the commission of an element." Verrecchia, 196 F.3d at 299. The court then followed the path outlined by Richardson for making that distinction, applying traditional techniques of statutory construction because the statute controls whether a fact is an element or merely a means. First, the court noted, the language of the statute requires only that the defendant possess "any firearm," hence "any firearm" seems like the element and a particular firearm merely the means. The general term "any firearm," it highlighted, contrasted sharply with the specific, technical language surrounding the types of people who are covered by § 922(g). Second, the court stated that nothing in the statutory structure or legislative history of § 922(g) indicates that Congress intended to link culpability to the nature or quantity of the firearms possessed; to the contrary, it recognized, § 922(g) focuses on the status of the possessor. Third, the court explained that its reading presented no potential unfairness of the kind that the Supreme Court in Richardson noted would attend the government's reading in that case. Usually, the only issue under § 922(g)(1) is whether the defendant possessed a gun, so there is little risk that jurors will ignore underlying factual detail. Finally, the court noted that other courts, including this one, see Correa-Ventura, 6 F.3d at 1075-87, have held that unanimity on a particular firearm is not required for prosecutions under § 924(c) for carrying a firearm during and in relation to, or possessing a firearm in *452 furtherance of, a federal violent or drug trafficking crime.
The Sixth Circuit, the only other of our sister courts to have addressed this issue, expressly adopted the "careful analysis" of Verrecchia. United States v. DeJohn, 368 F.3d 533, 542 (6th Cir.2004). We do the same.

II
Talbert also challenges the district court's imposition of a condition of supervised release. A district court has wide discretion in imposing conditions of supervised release, hence usually we review imposition of conditions for abuse of discretion. United States v. Coenen, 135 F.3d 938, 940 (5th Cir.1998). Talbert did not object below, however, so we review only for plain error. United States v. Phipps, 319 F.3d 177, 192 (5th Cir.2003).
At sentencing, the district court voiced concern about Talbert's lengthy and serious prior criminal history, particularly his two state convictions for sex-related offenses. The court asked Talbert if he had ever been required to register as a sex-offender under state law; Talbert replied that he did not know of such a thing. The court then stated:
Well, there's a case  and I can't remember the case  where I ordered, as part of supervised release, that he register as a sex offender in accordance with state law. . . . And I'm leaving that issue open in this case because I don't want somebody to come back and say: Hey, you know, it's jeopardy. But I'm going to reserve to the probation department the right to order him to do that, depending on what happens to him in prison, because I'm going to order, as part of his prison  I'll recommend, at least, as part of his prison, that he be given some kind of treatment, you know, as a sex offender, and also anger management again. Maybe that will help him stay out of jail.
The court eventually sentenced Talbert to 63 months' imprisonment, within the 51 to 63-month Guidelines range, followed by three years of supervised release. In its written sentence, the court included as a "Special Condition" of supervised release that Talbert "shall register as a sex offender under state law if required to do so." The court did not check the box, appearing in the list of mandatory conditions applicable to certain types of cases, directing that the defendant "shall register with the state sex offender registration agency in the state where the defendant resides . . . as directed by the probation officer," a mandatory condition if registration is required by the Sex Offender Registration and Notification Act, 42 U.S.C. § 16901 et seq., because the crime of conviction (here § 922(g)) was not a sex crime.
Given the court's written sentence and its oral statement that Talbert be directed to register as a sex offender "in accordance with state law," we read the condition to require only that Talbert register under the law of Louisiana, or any other state, if such state law requires. The Government implicitly concedes this in its brief. And it is axiomatic that a district court can include as a condition that the defendant obey the law. See United States v. Love, 431 F.3d 477, 483 n. 20 (5th Cir.2005); see also United States v. Rosario, 386 F.3d 166 (2d Cir.2004) (rejecting defendant's contention that the condition that he register as a sex offender under state law "where applicable" violated the Tenth Amendment, and apparently assuming that "where applicable" meant as required under state law for previous conviction for sex offense). We do not address whether a court can order registration if registration is not required by state law.
*453 Talbert also appears to complain that the court improperly "delegated" to the probation officer the determination of whether he is required to register under state law, suggesting that the court itself should have made that determination. We find no error. Presumably whether Talbert is required to register under state law is a mechanical, straightforward question  one the court did not address merely for lack of definitive information about Talbert's prior sex-related convictions and state law. This, along with the fact that probation officers are often given wide discretion in enforcing conditions of supervised release  indeed, the United States Probation Office is a branch of the federal judiciary and "an investigatory and supervisory arm" of the sentencing court, see United States v. Davis, 151 F.3d 1304, 1306 (10th Cir.1998)  lead us to find no error in with the discretion given here.
AFFIRMED.


317 F.2d 420
FETZER TELEVISION, INC., Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 14986.
United States Court of Appeals Sixth Circuit.
May 13, 1963.

John C. Howard, Kalamazoo, Mich., (Howard & Howard, Kalamazoo, Mich., on the brief), for petitioner.
Margaret M. Farmer, Atty., N. L. R. B., Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Atty., N. L. R. B., Washington, D. C., on the brief), for respondent.

1
Before MILLER and WEICK, Circuit Judges, and THORNTON, District Judge.

2
THORNTON, District Judge.

3
Petitioner, Fetzer Television, Inc., here seeks review of an order of the National Labor Relations Board asking that the Board's Decision and Order of March 26, 1962 be vacated. Petitioner was found to have engaged in unfair labor practices by failing to bargain in good faith. The Board cross-petitions for enforcement. The Decision contains the usual affirmance of the rulings of the Trial Examiner. The Order contains a cease and desist provision and an affirmative action provision, the substance of each being implicit in the other.

4
The core of this controversy may be stated succinctly as the head-on encounter of irresistible force and immovable body, with result and consequence to be evaluated and judged in the light of the numerous judicial interpretations of what constitutes good faith (or the lack of it) within the purview of 29 U.S.C.A. § 158(d). This subsection reads as follows:

5
"For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: * * *."

6
The above quoted subsection implements 29 U.S.C.A. § 158(a) (5) which makes it an unfair labor practice for an employer to refuse to bargain collectively with representatives of his employees. The Trial Examiner, affirmed by the Board, has found by his Decision and Order that petitioner violated § 158(a) (5) and (1) of Title 29 U.S.C.A. and had therefore engaged in unfair labor practices. [29 U.S.C.A. § 158(a) (1) makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;" (157 relates to the rights of employees to organize, bargain collectively, etc.).]

7
The parties agree in their respective statements as to the basis for the Board's findings * * * that the failure of petitioner to bargain in good faith is evidenced

8
A) by its refusal to furnish certain requested wage data to the Union;

9
B) by unilaterally changing its method of pay (wage payments) without consulting (or notifying) or negotiating with the Union;

10
C) by conducting its negotiations with a fixed intention of not reaching or entering into an agreement. We hereafter refer to the above three classifications as categories A, B and C.

11
The period covered by the Board's findings is November 22, 1960 to August 25, 1961, the latter date being the date of the issuance of the complaint by the General Counsel. By way of background, the Board also considered those negotiations which occurred during a three-month period shortly preceding November 22, 1960. These negotiations were carried on by the Union and petitioner in an effort to effect a collective bargaining agreement. The areas in dispute which formed the subject matter of the bargaining sessions held during this period, August 24, 1960-October 28, 1960, were five in number * * * arbitration of grievances, seniority, probation period for engineers, union shop or union security, and wages. During the period August 24, 1960-October 28, 1960 eight bargaining sessions1 were held at which Kevin Efroymson, attorney for the Union, was chief negotiator for the Union and Cletus E. Ellerman, petitioner's general manager and bargaining representative, was chief negotiator for petitioner.

12
The Trial Examiner, in his Decision and Order, has summarized what transpired at each of the eight sessions which took place between August 24, 1960 and October 28, 1960 to the extent he deemed relevant. (It should be borne in mind that these eight bargaining sessions were held prior to the commencement of the period covered by the violations found by the Trial Examiner and affirmed by the Board.) The conduct constituting the failure to bargain in good faith consists of the refusal to furnish the wage data requested, unilateral change in method of pay and conducting negotiations with a fixed intention of not reaching an agreement. In order for us to make our determination on this review, we must consider the above as related to the violation period, November 22, 1960-August 25, 1961. The Trial Examiner appears to have placed much reliance upon the proceedings at the eight bargaining sessions prior to the violation period. We will discuss their relevance shortly. Those sessions terminated October 28, 1960. At that time Ellerman stated an impasse had been reached and that he would discontinue negotiations until some future date. We reserve for the moment consideration of whether or not an impasse actually was reached. Assuming that it was, then the position taken by petitioner in relation to categories A, B and C previously adverted to has certain ameliorative aspects.

13
As to category A the wage data sought by the Union related to three employees whose status as employees includible in the bargaining unit was in dispute, it being the position of petitioner that these three were in a supervisory capacity and that there was therefore no duty to furnish the requested wage data. A fourth individual, Newsman Jones, was also involved and it was the position of petitioner that he was not an employee as such but belonged to on-the-air personnel and was therefore excludible from the bargaining unit. This issue, category A, had been decided adversely to petitioner by the Board. Petitioner declined to comply pending decision of a review by this Court. We conclude as to this action, or nonaction, by petitioner that there was ample justification and that no substantial evidence existed upon which the Board could base a finding of unlawful refusal to bargain.

14
As to category B which involves the change in method of pay, there had been discussion of the change proposed by petitioner at some of the eight bargaining sessions. The Union objected to the change which involved a payday occurring every two weeks instead of semimonthly. The wage scale was not involved in the change. Petitioner had indicated its desire to change the pay periods several months prior to January 1, 1961. This proposed change was a subject of dispute. On October 28, 1960, the date of the last in the series of eight bargaining sessions which had commenced August 24, 1960, Ellerman stated that an impasse was reached and that any further meetings would have to be held at some future date. Petitioner put into effect the proposed change in method of pay on January 1, 1961. This was done after the impasse had been reached and prior to the resumption of further bargaining sessions. Petitioner had announced far in advance that it intended to put into effect the new pay dates. We make three observations which negate the existence of substantial evidence to support the Board's finding of unlawful refusal to bargain. First, petitioner gave full and convincing practical reasons for desiring the change. Second, the effective date of the change was the first day of the new calendar year. Third, from Ellerman's viewpoint negotiations had reached an impasse. "[P]roof that an employer changed wage rates or other terms of employment in the midst of contract negotiations ordinarily gives rise to the inference that he had no intention of coming to an agreement; the factual inference can be negated by showing that there was a need for immediate action or by proving that the negotiations had reached an impasse." Cox, The Duty to Bargain in Good Faith, 71 Harv.L.Rev. 1401, 1423 (1958). Assuming an impasse had been reached, the Board's conclusion on this issue is not based on the requisite substantial evidence.

15
We now consider category C. It appears that during the violation period only two meetings were held between the Union and petitioner. It also appears that these did not constitute bargaining sessions as such * * * the impasse still prevailed. The first meeting (2 sessions) was held on January 13, 1961 and the second on August 1, 1961. We are persuaded from a review of the record presented here that the failure of petitioner during the violation period to enter into negotiations looking toward consummation of a collective bargaining agreement is justifiable for two reasons. One is that there were during that period at least two reviews pending before this Court, each of which involved areas in dispute between the Union and petitioner. Petitioner might well be justified in desiring a postponement of further negotiations pending such determination. Ellerman stated as much. He also stated in a letter of March 22, 1961 to Efroymson that there was a serious question at that time whether the Union represented a majority of the employees and that this was a determination that would have to be made. The other justification for petitioner not having resumed negotiations during the violation period is the simple fact of the impasse reached only a few months previously, after a series of eight bargaining sessions over a two-month period (August 24, 1960 — October 28, 1960). This brings us to a brief consideration of the negotiations which took place at those bargaining sessions. The Trial Examiner saw fit to include a brief summary of the sessions of each of the eight dates. We are impressed that his finding,2 contained in his Decision and Order (affirmed by the Board's Decision and Order of March 26, 1962), that petitioner refused to bargain collectively in good faith, though relating to the violation period (November 22, 1960 — August 25, 1961) is in fact based upon conclusions drawn from the proceedings at the eight bargaining sessions conducted during the August 24, 1960 — October 28, 1960 period. (We except from this discussion the matter of furnishing wage data and the unilateral change in method of pay which we have heretofore disposed of.3 We consider that the conduct and attitude of the parties to those negotiations are relevant to the issue category C only insofar as they may be determinative of whether or not an impasse was reached. It is here where we are conscious of the head-on clash of opposing forces. The five areas of disagreement which were the subject matter of the eight bargaining sessions were areas as to which each side had strong, if not adamant, views. It cannot be said that petitioner declined to "give" in respect to all five. Petitioner declined to concede to the demands of the Union in toto. It wanted a no-strike clause but refused binding arbitration. It may be that the two are customarily complementary but this is not to say that petitioner's prejudice against binding arbitration may be equated to lack of good faith. Ellerman explained that his experience had taught him to have little confidence in binding arbitration. He was opposed to the principle of binding arbitration. He did offer a modified arbitration which was unacceptable to the Union.

16
The seniority as offered by the Union appeared to petitioner as depriving petitioner of the right to evaluate merit. The other aspects of this area included the measuring of severance pay, length of vacations, starting pay in wage rate classifications, regular advancements in the wage scale, vacation relief employment, interruptions in employment by promotions to supervisory positions, and absences due to illness or vacations. Petitioner did offer to make some concessions in this area contingent upon the Union agreeing to grievance proceedings that did not contemplate binding arbitration.

17
In relation to the union shop disagreement, petitioner offered to go along with the check-off of union dues proposal of the Union, this also being contingent upon the non-insistence of the Union upon binding arbitration. Also in relation to the union shop, petitioner offered to waive the no-strike clause if the Union would not insist on a union shop.

18
As to the remaining two areas, probation period for engineers and wages, there appears to have been a fundamental difference in viewpoint. Each side offered to compromise its demand as to the probation period, contingent upon certain other concessions being made. Neither side would make the stated concessions. On the question of wages the Union wanted a wage scale based on that prevailing at an affiliated station of petitioner's at Kalamazoo. Petitioner's view was that a wage scale should be based on wages prevailing in the area of Cadillac where this controversy exists and where the employees involved are employed.

19
We conclude that the impasse reached at the termination of the eight bargaining sessions was not one resulting from the failure of petitioner to bargain in good faith. In the case of National Labor Relations Board v. United Clay Mines Corp., 6 Cir., 219 F.2d 120 (1955), this Court has set down the principles applicable to the situation here presented. We are guided by them and by the authorities cited therein in reaching the above determination. See also: National Labor Relations Board v. Cummer-Graham Co., 5 Cir., 279 F.2d 757, 760 (1960); National Labor Relations Board v. Superior Fireproof Door & Sash Co., 2 Cir., 289 F.2d 713, 721 (1961). Since petitioner did not fail to bargain in good faith at the eight bargaining sessions the impasse that resulted was a bona fide one. This being so, the unilateral change in method of pay effected by petitioner after the impasse was reached does not evidence a failure to bargain in good faith. The refusal to furnish the requested wage data has been heretofore disposed of by us.

20
We are not unmindful of the function of this Court in reviewing a decision of the Board. Section 160(e), 29 U.S.C.A., provides: "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." The Supreme Court, in 1938, supplied the test of substantial evidence that has become a classic touchstone: "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. of New York v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126. In fixing our responsibility as a reviewing court for the Board's decisions, the Supreme Court has said: "We conclude, therefore, that the Administrative Procedure Act and the Taft-Hartley Act direct that courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board's findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456.

21
Upon the record as a whole we conclude that the findings of the Trial Examiner and the Board are not based on substantial evidence. The Order of the Board will be vacated and its request for enforcement denied.

Notes:

1
 Of these eight there were four that consisted of both a morning and an afternoon meeting

2
 that petitioner refused to bargain collectively in good faith "by conducting negotiations with a fixed intention of not reaching an agreement or entering into any final or binding collective-bargaining agreement."

3
 This latter being on the assumption that an impasse had in fact been reached as of October 28, 1960


97 F.3d 1448
NOTICE: Fourth Circuit Local Rule 36(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 Fourth Circuit.In re Abdul SAIYED, Petitioner.
No. 96-535.
United States Court of Appeals, Fourth Circuit.
Submitted Sept. 20, 1996.Decided Oct. 1, 1996.

Abdul Saiyed, Petitioner Pro Se.
Before NIEMEYER, HAMILTON, and MOTZ, Circuit Judges.
PER CURIAM:

1
Petitioner filed a petition for writ of mandamus, seeking to have this court order the court reporters to transcribe and file in the district court, transcripts of his initial hearing, detention hearing, arraignment, suppression hearing, opening and closing statements, and sentencing hearing.  Petitioner failed to show that he has a clear right to the relief sought and that no other remedy is available.   In re First Fed.  Sav. & Loan Ass'n, 860 F.2d 135, 138 (4th Cir.1988);   In re United Steelworkers, 595 F.2d 958, 960 (4th Cir.1979).  While we grant leave to proceed in forma pauperis, we deny the petition for a writ of mandamus.  We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

2
PETITION DENIED.


                                                                              FILED
                            NOT FOR PUBLICATION                               AUG 26 2016

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS

                            FOR THE NINTH CIRCUIT

FARON E. LOVELACE,                               No.   15-35518

               Plaintiff-Appellant,              D.C. No. 1:14-cv-00430-REB

 v.
                                                 MEMORANDUM*
ROBIN SANDY; et al.,

               Defendants-Appellees.

                   Appeal from the United States District Court
                             for the District of Idaho
                 Ronald E. Bush, Chief Magistrate Judge, Presiding

                            Submitted August 16, 2016**

Before:        O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges.

      Idaho state prisoner Faron E. Lovelace appeals pro se from the magistrate

judge’s judgment dismissing with prejudice his 42 U.S.C. § 1983 action arising out

of the allegedly improper termination of a prison visit. We review de novo

whether a magistrate judge has jurisdiction. Allen v. Meyer, 755 F.3d 866, 867-68

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(9th Cir. 2014). We vacate and remand.

      Contrary to the magistrate judge’s statement in its order dismissing

Lovelace’s amended complaint, Lovelace did not consent to proceed before a

magistrate judge. See 28 U.S.C. § 636(c)(1) (authorizing magistrate judge to

“conduct any or all proceedings in a jury or nonjury civil matter and order the entry

of judgment in the case” “[u]pon the consent of the parties”). The consent forms

filed on October 17, 2014 and March 18, 2015 were executed by putative co-

plaintiff Melissa Kuntz-Corta, not Lovelace. Accordingly, we vacate the judgment

and remand to the district court for further proceedings. See Allen, 755 F.3d at 868

(judgment entered by magistrate judge a nullity where some parties did not consent

to magistrate judge’s jurisdiction).

      On remand, the district court may review the complaint de novo in the first

instance pursuant to 28 U.S.C. § 1915A, or may construe the magistrate judge’s

May 18, 2015 order as a report and recommendation and afford Lovelace

reasonable time to file objections.

      In light of our disposition, we do not consider the other issues raised in the

opening brief.

      VACATED and REMANDED.

                                          2                                    15-35518


                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                             No. 01-4049

UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus

WILLIAM MELVIN BAIN,

                                              Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CR-91-53)

Submitted:   July 31, 2001                 Decided:   August 30, 2001

Before WILKINS and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Thomas K. Berger, Reston, Virginia, for Appellant.     Kenneth E.
Melson, United States Attorney, Melvin L. Otey, Special Assistant
United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     William Melvin Bain appeals the district court’s judgment and

commitment order revoking supervised release and sentencing him to

24 months’ imprisonment.    We find that the district court had

jurisdiction to conduct the hearing.   We further find that Bain’s

right to a reasonably prompt revocation hearing was not violated.

See United States v. Scott, 850 F.2d 316, 319-20 (7th Cir. 1988).

Accordingly, we affirm. We dispense with oral argument because the

facts and legal contentions are adequately presented in the mate-

rials before the court and argument would not aid the decisional

process.

                                                          AFFIRMED

                                2


23 B.R. 193 (1982)
In re Washington Henry McCRADY, Loretta McCrady, Debtors.
Bankruptcy No. 4-81-00089.
United States Bankruptcy Court, W.D. Kentucky.
September 21, 1982.
David W. Lamar, Owensboro, Ky., for debtors.
David L. Yewell, Owensboro, Ky., for Francis McCarty.

MEMORANDUM AND ORDER
MERRITT S. DEITZ, Jr., Bankruptcy Judge.
May a codebtor of the bankruptcy petitioner, with actual notice of the bankruptcy proceeding and after a discharge has been granted, sue the debtor on their joint and several obligation? The clear answer is no. A brief recital of the facts reveals the classic case of entitlement to postdischarge protection under the bankruptcy laws.
In November, 1978, Washington H. McCrady and Francis A. McCarty formed a partnership agreement to operate McCrady & McCarty Heating and Air Conditioning. They executed a joint promissory note to Citizens State Bank in the amount of $13,379.40 on April 4, 1979, for working capital.
Five months later they decided to dissolve the venture. In September, 1979, a partnership dissolution agreement was recorded with the county clerk of Daviess County, under the terms of which McCarty was relieved of responsibility for all partnership debts and McCrady assumed "full responsibility for all liabilities, both past and future, *194 which have been or shall be incurred by W.H. McCrady individually and/or by McCrady and McCarty Heating and Air. . . ."
Citizens State Bank was not privy to this agreement, although that institution knew of the agreement and its officers gave verbal assurances to both individuals that only McCrady would be held liable for the promissory note held by the bank.
After the dissolution of the partnership, McCrady individually paid the installments on the note until he filed a Chapter 7 bankruptcy petition on March 12, 1981. With the petition McCrady filed the required creditors' schedules and included the balance due of $5,946.40 on the note, indicating that this was a debt jointly incurred with McCarty. This court, on July 27, 1981, ordered the debtor, McCrady, released from all his dischargeable debts pursuant to § 523 of the Bankruptcy Code. This discharge included the note to Citizens State Bank.
Subsequent to McCrady's discharge, Citizens State Bank turned to the comaker of the promissory note, McCarty, for repayment of the outstanding balance. McCarty demanded that McCrady pay the debt and then on October 30, 1981, sued in Daviess Circuit Court for judgment against McCrady on the note. On March 12, 1982, having previously filed an answer in the state court action,[1] McCrady moved this court to enjoin McCarty's state court action pursuant to § 523(a)(3)(B) of the Bankruptcy Code.
Preliminary to a determination of McCrady's motion to enjoin the state court action is a resolution of the issue of whether McCarty is a "creditor" who may properly object to discharge under § 727(c)(1). According to § 101(9) of the Code, a creditor is any entity with a claim arising at or before the order for relief. Section 101(4) defines a "claim" as the right to payment or equitable remedy for breach of performance even if that right is disputed, unmatured, unliquidated, or contingent.
McCarty was a comaker of the promissory note to Citizens State Bank. As such he is liable for that debt and is required to pay the note either jointly with McCrady or individually if McCrady does not contribute funds. Thus, McCarty is the holder of a contingent claim against McCrady that becomes fixed when he pays the balance on the note. McCarty, as a contingent creditor, may object to the debtors' discharge.
Section 523(a)(3) of the Code excepts from discharge any debt that is not listed or scheduled unless the creditor had notice or actual knowledge of the case in time to file a proof of claim and request a determination of dischargeability. This section of the Bankruptcy Code protects the right of creditors to file a proof of claim and a complaint to determine the dischargeability of a debt. If the particular debt falls within the actual notice or knowledge exception, it may be discharged even though unlisted, because the creditor's rights are adequately protected in that instance.[2]
There is no question that McCarty had notice and actual knowledge of the bankruptcy proceeding in this case. On March 20, 1981, eight days after he had filed the Chapter 7 petition, McCrady personally spoke with McCarty and informed him of the filing. In fact, McCarty spoke with McCrady in February and knew that the bankruptcy proceeding was in the offing and that this would result in a discharge of McCrady's indebtedness to Citizens State Bank. Yet McCarty took no affirmative action to protect his own rights.
*195 McCarty has correctly identified the source of his present problem, the partnership dissolution agreement. McCarty contends that he did not file a claim because he relied on the dissolution agreement which purported to relieve him of liability for the joint promissory note with Citizens State Bank. However, this agreement between the partners does not constitute misrepresentation by McCrady, and in no way can be considered an inducement to McCarty to forbear his contingent claim.[3]
McCarty's real problem is that Citizens State Bank was not a party to the dissolution agreement. The bank did not sign that document and thereby legally consent to relieve McCarty of liability for a debt he jointly incurred.[4] Without the bank's legal consent, McCarty should have known that his liability on the note was intact. Therefore, when McCarty became aware of McCrady's intention to file for bankruptcy he should have realized that McCrady's discharge would mean that he, McCarty, was liable for the entire indebtedness. We do not hesitate to impute this basic business knowledge.
McCrady's actions during the bankruptcy proceedings show no evidence of misrepresentation or an attempt to induce forbearance of a valid claim. His bankruptcy petition accurately listed the promissory note as a debt "incurred May, 1979. Jointly by Petitioner and Francis A. McCarty. . . ." Schedule A-2 clearly does not reflect an attempt to conceal McCarty's contingent claim.[5]
It is our opinion that the personal notice given to McCarty was sufficient to meet the requirements of § 523(a)(3)(B) and the debt in question is dischargeable whether or not it was correctly scheduled.[6] The actual notice and knowledge afforded McCarty time to prove his claim and determine its dischargeability. McCarty could have taken the appropriate action during the bankruptcy proceeding to protect his interests. His inaction during the proceedings was not the result of anything said or done by McCrady. McCarty's failure to act was a consequence of his own incorrect assumption regarding his liability on the promissory note. This fallacy was not traceable to McCrady, and McCarty's inaction will not permit him to have his claim excepted from the discharge previously granted.[7]
We realize that granting the injunction leaves McCarty without legal recourse. Regrettable though that may be for McCarty, it is a result dictated by both the letter and the spirit of the Bankruptcy Code. After a discharge in bankruptcy the debtor is afforded complete protection from his creditors. The loss that McCarty may suffer "must be imposed under public policy to bring about . . . an end to litigation. . . ."[8] Accordingly, this court will today enter a final order enjoining the creditor, McCarty, from further state action against the debtor, McCrady.
NOTES
[1]  In his answer in the state court action McCrady properly set forth his discharge in bankruptcy as an affirmative defense. It should be pointed out that the injunctive relief sought by McCrady in this bankruptcy proceeding is already in existence as a matter of law. McCrady's prior discharge operates as an "injunction against the commencement or continuation of an action . . . to collect, recover, or offset any such debt . . . as personal liabilities of the debtor . . ." 11 U.S.C. § 524(a)(2). In most cases similar to this one, but where the adequacy of notice and schedules is not raised, the customary protection sought by the debtor is to have the comaker held in contempt of the order of discharge.
[2]  3 Collier on Bankruptcy, 15th Ed., ¶ 523.13 at p. 523-81.
[3]  Matter of Neisner Bros., Inc. 2 B.R. 474 (Bkrtcy. SDNY 1980).
[4]  Underlying McCarty's present dilemma is a lack of legal representation when the partnership dissolution agreement was executed and the liability shift attempted. As both partners testified when deposed, the agreement was drawn up by a "pretty sharp" C.P.A. in Owensboro.
[5]  McCrady's counsel in the bankruptcy proceeding could have listed the creditors differently and had separate entries for Citizens State Bank and Francis A. McCarty. This alternative listing might have more clearly portrayed McCrady's creditors, but it also could have artificially inflated the total indebtedness.
[6]  Accord, In re Hamilton, 21 B.R. 487 (Bkrtcy. W.D. Va.1982); In re Davis, 19 B.R. 487 (Bkrtcy. S.D. Fla.1982); Matter of Derrico Const. Corp., 10 B.R. 553 (Bkrtcy. M.D. Fla. 1981).
[7]  Accord, In the Matter of Computer Utilization, Inc. 508 F.2d 673 (5th Cir. 1975) (enjoined state court action by attorney to recover for services rendered to bankrupt when attorney knew of bankruptcy but filed no claim).
[8]  In re Helios Corp., 5 B.C.D. 787, 789 (Bkrtcy. W.D. Va.1979).