*1 846 sought. extraordinary relief See dosage units) per unit (international Industries, v. Inc. Great dosage unit, respective- &Gulf Western per and 400 I.U. Inc., Company, Tea Atlantic & Pacific and ly, prescription sale be restricted to 1973), (2 and 687, according- Cir. F.2d 692-93 476 labelled be such vitamins there cited. Fed.Reg. (1972), authorities ly. amend- 26618 as 37 regu- Fed.Reg. (1973). ed, 38 799 stated in reasons We affirm implement the proposed lations opinion. were Judge comprehensive Frankel’s 502 of Sections enforcement” “efficient F.Supp. (S.D.N.Y.1973). 366 1341 503(b) (a), (j) Fed- (f) and and Affirmed. Act, Food, Drug and Cosmetic eral 353(b) (j) 352(a), (f) and and U.S.C. §§ (1970), authorized 21 U.S.C. as powers pursuant 371(a) (1970),

§ delegated to the Commissioner (1973). 2.120(a)(1)

C.F.R. § regula- proposed Consideration making pro- tions standard rule followed prescribed

cedure the Administrative Act, Procedure 5 U.S.C. HUBER, Chris aka Roberta Roberta J. including requirements as notice Plaintiff-Appellant, Holter, Among public participation. the 2500 v. response comments received in BANK NATIONAL UNION PLANTERS invitation com- Commissioner’s were Defendant-Appellee. MEMPHIS, OF herein, appellants from the two ments No. 73-1314. each fac- of which submitted voluminous oppos- expert opinions tual material and Appeals, United States Court regulations. proposed After due Sixth Circuit. consideration, conclud- the Commissioner 10, Argued Dec. 1973. regulations adopt- ed that the should 7, Decided Feb. 1974. Accordingly, they promulgated ed. were July 25, Oc- to become effective Fed.Reg. tober 1973. 38

(1973).

Having failed to dissuade Commis- regula- promulgating

sioner from

tions, August 6, appellants on com-

menced the the South- instant seeking

ern York District of New de-

claratory injunctive Juris- relief.

diction was invoked to 28 U.S.C. later, ap- 1331(a) A week

pellants prelimi- filed their motion for a

nary Judge injunction which Frankel de- September opin-

nied setting findings

ion forth his of fact September On conclusions of law. expedited appeal we ordered an

heard it on 19. October

Our examination of the record careful fully supports us that

satisfies preliminary

district denial of a court’s

injunction under the well established applicable

standards in this Circuit *2 Johnson, Canada,

Robert M. Russell & Turner, Memphis, Tenn., for defendant- appellee. PHILLIPS, Before Judge, Chief S LIVELY,

EDWARD Circuit Judges. LIVELY, Judge. Circuit sought damages pursuant Plaintiff 42 U.S.C. 1983 and 28 U.S.C. rights guaranteed for violation of to her by the Fourth and Fourteenth Amend- ments to the Constitution of the United alleged deprivation States. The consist- taking possession ed of of and withhold- a 1971 Chevrolet parties Malibu automobile. Both moved summary judgment. depositions filed three and two sworn statements with motion. dis- granted trict court the motion of the de- fendant and entered accord- ingly. September In pur- chased a Chevrolet from a dealer in Al- buquerque, New Mexico under a “New Mexico Motor Vehicle Installment Con- agreed tract” which she to make a payment day on the fifth of each month for 36 months. The contract was subse- quently assigned to the First National Albuquerque. May Bank of In payment when she inwas default on one contract, under the drove Albuquerque Memphis, car Ten- advising Albuquerque nessee without departure. of her On June payment. missed her second employee On 1972 an Memphis bank, request defendant bank, posses- took sion of the car and had it towed judicial process em- lot. No Instead, ployed pos- by the defendant. session was taken to a “self- pro- help” article of the contract which vided, part: Buyer

In the event defaults payment . have . . shall Seller and remedies of a Se- all Tenn., Murphy, Memphis, Party under Com- M. cured the Uniform C. including right plaintiff-appellant. Code, mercial County, Shelby Property Tennessee. The repossess wherever Court attorney represented right he may stated that found with free same in the entry. . . . paid his entire fee. action and having signed the Plaintiff admitted employee theAt though contract, depo- in her she stated agent Memphis bank testified as an not read it. sition that she had *3 as to the con- of the bank learning po- Memphis After provisions plaintiff’s and default. tract holding her the defendant was lice that entry Following judgment in of favor of automobile, plaintiff went to the Mem- Albuquerque car the the was re- bank Burkett, phis bank and with Mr. talked eventually Albuquerque and turned to manager. After dis- the collection some attorney Prior to the sale for sold. agreed plaintiff cussion, it that was plaintiff writing in was advised that possessions remove her the could plaintiff days ten on had to submit a bid keys the refused to leave with car. She pay car or her in the account full. to demand the the bank and continued decision, In its the memorandum dis- days later return of the car. A few for trict court wrote that—“Counsel storage plaintiff where lot went argument plaintiff made it clear at on away. parked and drove it the car was summary for the motions that Millington Naval Air She took it to the not base claim under he does his Memphis hus- where her near Station self-help repossession by on the made de- car left The was band was stationed. on fendant Planters Bank June Union parked Navy and was within the base argument Nevertheless, in and 1972.” illegal parking on June 12. ticketed for plaintiff in brief court has attacked this day Navy the had car The next the non-judicial repossession the carried out pass. having no the towed off base by Memphis the bank seeks have nearby removed a service sta- It was Annotated us declare Tennessee Code by company con- wrecker which tion a (TCA) (§ Uni- 9-503 of the 47-9-503 Navy the for such services. tracted with Code) form unconstitu- Commercial Navy judge the Air The traffic court plaintiff In her the de- tional. brief operator the of the Station directed position in district court scribed her the not to release the ear to wrecker service as follows: anyone The without a court order. during operator, Court, the who also wrecker owned the Plaintiff advised ar- predicate where gument, lot the car was service station she did not her that Navy damages upon after removal from the stored that action for first holding base, taking, plain- he the car stated that for the sole reason that towing Navy pos- it reacquired after the lot. the tiff had thereafter plead- her The of automobile. session attorney Memphis An in in stated his proof toas such action was by deposition that he was contacted Mr. solely quantum of offered to show the bring requested Burkett and an ac- by herein the defendant involvement possession car on behalf tion of the bank. Albuquerque He of the bank. was told legali- not the did contest in Since default and that that taking, ty did not the first base of on the lot the automobile was may upon it, attorney for relief we the The near Air Station. legality appeal. on not examine its direct contact with the no constitutionality Ten- of filing Therefore the on a bank before “self-help” Commercial though copy Uniform nessee’s June he did receive a provision is not before us. We Code the contract and discuss case begin case employees Albuquerque, our consideration this thus of the several in point the automobile hearing where at the on 21 at before the June Memphis rightful possession “Judgment Replevin” en- which a agent of the by as judge tered a General Sessions by- pursuant possession to the contract executed S.W.2d Since is replevin action, plaintiff. the heart of a and since Supreme Court stated Fuentes question before us is whether the possessor property is en- Memphis plain defendant bank violated titled to a before chattels are causing tiff’s constitutional him, taken from we must determine brought action to be in the “possessor” whether was the name of the bank which the automobile which was taken possession the sheriff took be car sheriff action. hearing. fore a relies discloses, far as the record So principally on Shevin, Fuentes v. 407 U. 1972 the had not had actual S. 92 S.Ct. 32 L.Ed.2d 556 possession days, car for three Supreme which the Court “ Navy since was ticketed on first held . . . Florida away by base June 12 hauled T. Pennsylvania prejudgment replevin pro- *4 R. Wrecker on the 13th. contin- & She deprivation property visions work a of automobile, ued to the to have title but process without due they of law insofar as possession lost of it on June 9 when right deny prior opportuni- the to a repossessed pro- under it a contract was ty to be heard before chattels are taken vision, expressly repossession which was possessor.” (emphasis their add- declared to the trial court not to be the ed) 407 U.S. at S.Ct. at 2002. damages in for her basis this replevin The Tennessee were statutes possession of the action. Her brief car held they unconstitutional “insofar as au- on the time she re- between deprivation thorize a of property with- moved from the of the it lot right prior out the opportunity to a to Memphis parked she it at the bank until be heard before chattels are taken from Navy base unauthorized. was possessor” (emphasis their added) in Mitchell Tennessee, v. State of 351 F. the On June 15 both Supp. 846, (W.D.Tenn.1972). Ad- representative a of the defendant mittedly possession the sheriff took of Memphis Navy requested to re the prior the Chevrolet on June 15 to Navy the car them. The lease to took judicial hearing though the not car was position it the could not release the that delivered to the bank until after the the automobile to the owner or hearing. was named a de- person order. The who without a court along fendant T. & R. Wrecker car, possession of the had actual the replevin (plain- Service in the action Service, Wrecker stat owner of T. & R. incorrectly spelled tiff’s name was holding the ed that he was car given the address for her the by Navy the and had been instructed replevin writ of that of was the wrecker Navy not it to release to authorities service), but she not was served with anyone court order. He did without a the At the writ. on June replevin At the action. this not contest judge 1972 the of the General Sessions possession point denied the car of was plaintiff. entered Court a non-suit as to Service, plaintiff by R. T. & Wrecker deposition She testified in her that she acting under instructions hearing. had no notice of the Memphis Navy, by not the defendant Replevin proper is the then action was bank. party personal prop when a erty from whom the the of filed name validity has been taken contests the we do Under these circumstances bank. taking the and seeks of the the return Roberta J. not believe that property asking in kind “possessor” rather than of the auto was the Huber damages. Mfg. meaning Lillard Ac v. Yellow of Fuentes within the mobile ceptance Corp., deprived Mitchell, 195 Tenn. 263 S.W. or that she was (1953); 2d possession Pritchard un v. Carter the sheriff’s actions County Co., Motor undoubt was Tenn. der the She writ. edly deprived property of her there, when tioned at naval air a base the car repossessed pursuant possession ear to the surrepti- taken from her self-help provisions tiously installment and without notice em- an However, ployee Ap- contract. she chose not of the Union Planters Bank. taking legal action, pellant contest park- but found the car instead made an unauthorized “self- lot and it took it back. She drove help” recovery property. of the Even the naval air and left it station there on tenuously possession parking illegally parked this held was lost lot. It was when left consequently the car unau- removed to a causing Navy wrecking authority base, garage by thorized area service Navy to deliver it to T. & Wreck- air R. naval base. Service, er the defendant garage, in that While the car was action. Thus the no suffered employee, same Union Planters Bank deprivation of constitutional when Burkett, got Bank law- a Union Planters possession the sheriff took auto- replevin, yer, Norville, to seek a writ subsequently mobile or when the court he, Burkett, garage while possession restored waiting re- On its receive the writ. bank. This conclusion makes it unneces- ceipt it un- is Burkett took the car sary for us to decide whether the Mem- disputed subsequently was sent phis acting bank, in on behalf Al- First Bank of National bank, buquerque would have been liable sold and was there. *5 damages plaintiff’s if constitutional rights missing had been up violated. in- Appellant paid two 15, day, June same stallments judgment of the district court is is- the writ ap- affirmed. will taxed Costs be sued. pellant. upon the doctrine relies Plaintiff Shevin, 92 S.Ct. U.S. v. Fuentes Judge EDWARDS, (dissent- Circuit L.Ed.2d 556 ing). process due denied she was is that Judge grant In this ease the District never served in that she of law summary ed a to defendant proceedings notice of Union National Bank Mem Planters knowledge of them. had no actual dismissing phis appellant Huber’s U. plain I believe these facts Under (1970) deprivation suit S.C. § possessor owner the lawful tiff was resulting from of constitutional question time at the in the automobile repossession of her automo bank’s she and that bile. by defendant deprived her automobile bought Appellant automobile agents with Bank and its Planters Union Albuquerque, New dealer in of the due notice and violation out Mexico, (not title and the sales contract Con States process of the United clause retaining) assigned Na- First v. Fuentes as construed stitution Albuquerque. After she tional Bank L. Shevin, U.S. S.Ct. payments monthly defaulted two Ed.2d 556 Tennessee, Memphis, order moved to who was sta- her husband near reverse. I would