text:
    UNITED STATES of America v. Lewis C. ECKER, II, Appellant.
    No. 73-1154.
    United States Court of Appeals, District of Columbia Circuit.
    May 29, 1973.
    As Amended June 7, 1973.

      Herbert M. Silverberg, Chief, Mental Health Division, Public Defender Service, Washington, D. C., was on the motion for Summary Reversal.
    Harold H. Titus, Jr., U. S. Atty., John A. Terry, Oscar Altshuler, Roger C. Spaeder, and Lawrence H. Wechsler, Asst. U. S. Attys., were on the opposition to motion for Summary Reversal.
    Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and Mac-KINNON, Circuit Judge.
   BAZELON, Chief Judge:

Appellant Ecker has moved for summary reversal of the District Court’s denial of St. Elizabeths Hospital’s recommendation for his conditional release from that hospital on the ground that the trial judge clearly abused his discretion. We deny the motion for summary reversal and, sua sponte, summarily affirm the decision below.

On the basis of this record, we find that the hospital’s evidence raised sufficient questions about appellant’s mental stability and about the adequacy of its own investigation into his mental status to support the-trial judge’s denial of Ecker’s conditional release in February of 1973. This determination does not prejudice future recommendations for conditional release or attempts by the hospital to clarify the questions raised in this record, now five months old.

I.

The facts of this case need be only briefly recited. In 1968, appellant Ecker was acquitted by reason of insanity, in an uncontested proceeding, of the rape-murder of a young Congressional secretary. He was committed to St. Eliza-beths with a diagnosis of severe soeio-pathic personality disturbance, sexual deviance (sadism) with organic features. He spent a total of four years in maximum security in the John Howard Pavilion, and nineteen months in minimum security prior to the hospital’s request for his conditional release.

This request, dated January 4, 1973, encompassed the pursuit of an educational program at a technical institute in Virginia and visits to his parents’ home at the discretion of the hospital. A hearing was held on January 30, 1973, in the District Court. Dr. George Saiger, appellant’s ward psychiatrist since July of 1971, was the only witness. He testified at length as to appellant’s case history and hospital record, and gave his evaluation of Ecker’s current mental status. The Government did not oppose the hospital’s request for release for schooling, but did oppose the request for visits to Ecker’s parental home.

At the conclusion of the testimony and arguments, the District Judge found that Ecker was still suffering from mental illness; and that there were indications that many issues were still unresolved so that appellant, still in turmoil, could not control his impulses. Because of this uncertainty and instability, the judge denied the hospital’s recommendation since, “if released into the community, [Ecker] might be likely to injure himself or others.”

II.

While the findings below are not a model of precision or completeness, we think the record offers a sufficient basis for the trial court’s determination to withstand appellant’s attack under the high standard set for motions for summary reversal. Moreover, we think that the interests of justice are best served by a sua sponte affirmance of the trial court since a careful study of the record convinces us that such relief is clearly warranted.

Without exploring and exposing the details of appellant’s mental condition at greater length than necessary, we find that the testimony of Ecker’s psychiatrist raises not only ambiguities, but real doubts about the sufficiency of the investigation of Ecker’s condition, and the conclusions drawn therefrom that he was ready for a dramatic increase in both responsibility and unsupervised leave time from the hospital.

These doubts are raised by three aspects of Dr. Saiger’s testimony. First, the extremely short period of time during which Ecker had been without medication. Second, the apparent haste to subject him to psychological testing and the inner turmoil still reflected therein. Third, Ecker’s elopement from the hospital shortly after being told to assume a great deal of “responsibility” for his own future.

These factors all raise doubts about appellant’s reliance on the “down-to-earth persuasiveness” of Dr. Saiger’s testimony. They point out at least the need for further observation and information. Furthermore, they call into question the hospital’s conclusion that the likelihood of Ecker’s being dangerous to others was reduced to such a degree in January so as to permit his extensive, although not unconditional, release. Doubts about the expert’s conclusion were reflected in the trial judge’s concern that it was still “likely” that Ecker might be dangerous if released into the community. The consequent refusal to allow conditional release at that time, based as it was on the facts and uncertainties revealed by the hospital’s evidence, was not without a substantial basis in the record.

III.

Appellant challenges the validity of the trial judge’s exercising such a broad power of review over the hospital’s decision to release him. The thrust of this attack is that the differential handling of the release of civilly committed patients from those who, like Ecker, were civilly committed after a finding of not guilty by reason of insanity, deprives the latter of the equal protection of the laws. In Bolton v. Harris, this court upheld the release provisions of D.C.Code § 24-301 (e) which require court approval of the hospital’s recommendation. We did not think “equal protection is offended by allowing the Government or the court the opportunity to insure that the standards for the release of civilly committed patients are faithfully applied to [so-called “criminally” committed] patients.”

Appellant re-asserts the proposition that any differential treatment of the release of the two groups of patients violates equal protection. But he fails totally to assert any facts or reasons why the Bolton rationale should be abandoned. At best, he argues that the trial court’s function must be severely restricted to the limited review of an essentially “medical” judgment, along the lines of the standard set forth in Tribby v. Cameron. That the issue of what standard of review should be applied to release decisions is a question of constitutional dimensions is beyond dispute. This court is continually called upon to test the validity of the substantive and procedural terms of commitment against the requirements of the Constitution. Moreover, it does seem relevant to examine more closely the statutory requirements of D.C.Code § 24-301 in light of current developments in the law.

However, this case does not provide the opportunity to do so. Even under the standard outlined in Tribby, that the court assess whether the hospital has made a “permissible and reasonable decision in view of the relevant information and within a broad range of discretion,” the trial court’s judgment must be sustained. In the record before us, we find to be crucial the lack of extremely relevant information concerning the termination of Ecker’s medication. Not only is this important factor virtually brushed off by the psychiatric expert, but the period of time elapsed since the termination appears to us too short to provide any opportunity for adequate observation. We have noted previously the relevance of this type of medication to psychiatric evaluations of mental status and we find that the failure to deal with this issue undermines the “reasonableness” of the hospital’s decision. Similarly, we note that the recommendation for conditional release was based on only five months of liberalized privileges since Ecker’s elopement. Such a time span raises further doubts about whether the hospital’s decision was based on adequate relevant information.

IV.

We have decided to take the somewhat unusual step of affirming the judgment in this case sua sponte for a variety of reasons. First, because we are convinced that the standard for summary disposition is met, on this record, by the Government. Second, we see no real prejudice to the rights of appellant in so doing. • The emergency nature of appellant’s motion — to obtain release for schooling in February — has already been frustrated. Rather than simply deny summary reversal and allow the appeal to follow its normal course, it will better serve the interests of justice to terminate now what we would see to be a process which could not in the end provide the relief requested and might therefore only waste both the parties’ and the court’s resources.

Moreover, our affirmance should in no way be interpreted as foredooming future recommendations for conditional release. We respect St. Elizabeths’ obvious efforts to secure a meaningful educational experience for this patient and we would urge that these efforts not cease. There is nothing finally determined by the denial of conditional release — particularly so in this case where the record raised questions and doubts which can, and may, be readily answered by the passage of time. Refusal by the court to allow release as of January in no way prejudices future attempts, and should not discourage the hospital from seeking release arrangements for its patients.

If we were not convinced of the good faith of the trial judge in considering the hospital’s recommendations solely in light of the statutory standards for conditional release, we would be more deeply troubled by his reference at the hearing to the length of prison term to which Ecker might have been sentenced had he been convicted of murder. Ecker was not found to be legally responsible for his acts, he was not convicted, and he is not being punished. No considerations other than the terms of his release, his mental condition, and the possibility of dangerousness to himself or others should influence the decisions of either the hospital staff or the court. In this regard, we were appalled to read in the record that Dr. Saiger was instructed to contact the Senate Office in which Ecker’s victim had worked prior to her death to find out if Ecker’s release would “bother” anybody, a matter wholly irrelevant to the decision to be reached by those charged with responsibility in the matter. And we assert again that the theoretical limits of Ecker’s theoretical imprisonment are of no relevance in determining whether he should be conditionally released from the hospital.

The motion for summary reversal is denied, and the judgment is

Affirmed.

      . Transcript at p. 61.

      . The Government did contend that the conditions for release be “extremely narrowly circumscribed” to permit no time in the community other than bus trips and to provide for careful supervision. Tr. at p. 63.

      . Tr. at p. 66.

      . A party seeking summary disposition bears the burden of “demonstrating both that his remedy is proper and that the merits of his claim so clearly warrant relief as to justify expedited action.” United States v. Allen, 133 U.S.App.D.C. 84, 85, 408 F.2d 1287, 1288 (1969). See also Ashe v. Robinson, 146 U.S.App. D.C. 220, 450 F.2d 681 (1971).

      . The Government opposed appellant’s motion for summary reversal but did not file an opposing motion for summary affirmance.

      . Tr. at pp. 18, 38. Ecker received heavy doses of tliorazine at the time of his admission, and had been receiving other unnamed medication until December of 1972. Thus it was conceded that he had been without major tranquilizers for only a month and a half prior to the hearing.

      . Tr. at pp. 44-45. In November of 1972, a psychological tester found continued turmoil in Ecker’s unconscious fantasy life. Dr. Saiger explained this by adverting to the fact that the psychologists had asked him to delay the testing because Ecker had begun individual therapy, and because one expects unconscious turbulence in anyone in individual treatment. Dr. Saiger responded that it would not be possible to delay testing since “the notion of school in the spring” was already being discussed.

      . Tr. at p. 14. The connection between the elopement and “dumping” responsibility in Ecker’s lap was mentioned by the psychiatrist and is raised in appellant’s memorandum at p. 9.

      . This ease illustrates, of course, all the difficulties and ambiguities in setting standards for a patient’s conditional release from St. Elizabeths. Such standards have, unfortunately, received scant judicial attention. This is primarily due to the rapidity with which patients’ circumstances can be, and are changed, and the consequent frustration of adequate judicial review. See Jackson v. Robinson, 155 U.S.App.D.C. 94, 476 F.2d 539 (Issued March 20, 1973). As we have construed the conditional release provision of D.C.Code § 24-301 (e), complete recovery from a mental illness is not required. Indeed, for some patients conditional release may be an important and essential part of “recovery.” To approve such release, “the court must conclude that the individual has recovered sufficiently so that under the proposed conditions . . . ‘such person will not in the reasonable future be dangerous to himself or others.’ ” Hough v. United States, 106 U.S.App.D.C. 192, 195, 271 F.2d 458, 461 (1959).
      Whether this interpretation continues to be sound may be open to future examination. It is clear, however, that the nature of the conditions set for release play an important part in a determination of “sufficient” recovery and lack of dangerousness. Since neither determination may be capable of absolute precision or certainty, the standards are elusive. It is important, therefore, that both the hospital and the trial court elucidate with specificity those factors which weigh heavily in their decisions. Only by such explication on the record can there develop standards for review of conditional release decisions more meaningful than merely the “persuasiveness” of psychiatric testimony.

      . 130 U.S.App.D.C. 1, 395 F.2d 642 (1968).

      . Id. at 11, 395 F.2d 652.

      . “Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made.” Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 763, 15 L.Ed.2d 620 (1966). See Bolton v. Harris, 130 U.S.App.D.C. at 10, 395 F.2d at 651.

      . “We do not decide whether the agency has made the best decision, but only make sure that it has made a permissible and reasonable decision in view of the relevant information and within a broad range of discretion.” 126 U.S.App.D.C. 327, 328, 379 F.2d 104, 105 (1967). For a discussion of the types of decisions calling for different standards, see Dixon v. Jacobs, 138 U.S.App.D.C. 319, 427 F. 2d 589, 597 (1970).

      . See, e. g., In re Ballay, 157 U.S.App. D.C. -, 482 F.2d 648 (Issued May 31, 1973); Waite v. Jacobs, 154 U.S.App.D.C. 281, 475 F.2d 392 (Issued March 8, 1973); Jackson v. Robinson, supra note 9.

      . E. g., Jackson v. Indiana, 406 U.S. 715, 729, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972).

      . Not only is the change in dosage levels virtually ignored, Dr. Saiger offered no explanation as to why he doubted medication was ever necessary in this case. Tr. at p. 38. This is not to intimate any judicial views on the psychiatric treatment Belter received. The point is that the issue of medication was passed over, and we are not convinced either of its irrelevance, or of the hospital’s implicit conclusion that 4-6 weeks was a sufficient span of time to observe Belter’s adjustment to the withdrawal of medication.

      . United States v. Bennett, 148 U.S.App. D.C. 364, 460 F.2d 872 (1972).

      . It was also brought out by Ecker’s psychiatrist that he felt Ecker had been treated “special in reverse” because of his advantageous background. Tr. at pp. 6-7. We hope it is unnecessary to state that this factor too should have no bearing on the determination to seek Ecker’s release.


source: Caselaw Access Project

author: MacKINNON, Circuit Judge:

license: Public Domain

text:
    Henry LOWENSTERN, Appellant, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, et al.
    No. 73-1012.
    United States Court of Appeals, District of Columbia Circuit.
    May 21, 1973.

      Joseph M. Stone, Washington, D. C., was on the brief for appellant.
    Plato E. Papps, Washington, D. C., was on the brief for appellees.
    Before WINTER, Circuit Judge for the Fourth Circuit, and MacKINNON and ROBB, Circuit Judges.

       Sitting by designation pursuant to 28 U.S.C. § 291(a) (1970).

   MacKINNON, Circuit Judge:

This is an appeal from an order of the District Court granting summary judgment in favor of the International Association of Machinists and Aerospace Workers, AFL-CIO (hereinafter IAM) in a dispute over the “vesting” provision of their “Grand Lodge Pensions.” The District Court found that the interpretation of the Plan adopted by the Administrators in denying appellant Lowenstern the vested rights he claimed was not arbitrary and capricious and therefore must be upheld. We agree.

The IAM maintains a Pension Plan for its officers, representatives and employees administered by designated Administrators. Appellant Lowenstern was employed by the IAM on March 15, 1952 as a “professional or technical employee,” was initiated into the IAM on January 5, 1954 and was at all relevant times thereafter a member in good standing of the union. On September 16, 1968, appellant requested and was granted a leave of absence from his employment with IAM for the period from September 16, 1968 to February 1, 1969 to “try . . . out in a new position as Executive Editor of the monthly Labor Review at the U. S. Department of Labor.” Appellant never returned to work at the IAM and on January 22, 1969 appellant submitted his resignation from IAM to be effective February 1, 1969. At no time subsequent to December 31, 1968 did appellant do any work for IAM. These facts are not in dispute.

Appellant sought a determination from the Administrators that he was entitled to “vested” benefits under section 6 of the Pension Plan. The Administrators found he was not so entitled and appellant instituted this action in the District Court. The relevant provisions of the Pension Plan concerning “vesting” of benefits provide in toto:

“Vesting”
Sec. 6. G.L. elective and appointive officers, representatives and all G.L. R.s., G.L.As., special representatives and coordinators assigned to G.L. Headquarters, regional offices or to special assignment work who must be good-standing members of the I.A.M. and who have rendered service in any of the above capacities on or after January 1, 1957, shall accrue vested rights in the Pension Plan as herein provided. Vested rights shall also extend to any professional or technical employee of the G.L. who is employed on January 1, 1969, and who is, and has been, a member in good-standing of the I.A.M. from at least September 1, 1968.
All of the G.L. officers, representatives and other personnel referred to in the preceding paragraph who have rendered 15 years of service, as set forth in Section 4 of this Art., and whoj on or after January 1, 1957, voluntarily leave the employment of the G.L. or are otherwise terminated prior to reaching the age of 55, will qualify for payments from the Pension Plan as provided for in Sec. 7 of this Art. upon reaching the age of 55.
The vested rights ■ accorded herein shall be cancelled upon the death of an individual with less than 15 years of credited service or upon termination of good-standing membership in the I.A.M., and are also subject to the provisions prescribed in Secs. 10 and 11 of this Art.
All office and clerical employees, and any other personnel not specified in this Sec. as having vested rights, shall not accrue any vested rights in the Pension Plan. They shall, however, continue to be eligible for pensions as provided in Secs. 3, 4, and 5 of this Art. as long as they maintain an employment relationship with the I.A.M. (such employees will be considered to be in an employment relationship during periods of regularly scheduled employment, temporary layoffs, any other layoffs during which rights of recall remain effective, sick leaves, and leaves of absence). Any employee covered by this paragraph will become ineligible for pension when his or her employment relationship with the I.A.M. is terminated.
No person shall qualify for more than one pension under the Pension Plans embodied in this Constitution.

Constitution of the International Association of Machinists and Aerospace Workers, AFL-CIO, Art. XIV, § 6 (emphasis added). Since appellant was a professional or technical employee who was a member in good standing of the IAM, the only issue is whether he was “employed” by IAM on January 1, 1969 when he was trying out in a new position with the U.S. Department of Labor during his leave of absence from the union. The decision on this issue determines whether his rights “vested” under the terms of the italicized language of § 6, supra.

Our scope of review in such cases is limited to a determination of whether the decisions by the Administrators were arbitrary and capricious in denying appellant his request. Assalone v. Carey, 154 U.S.App.D.C. 69, 473 F.2d 199 (1972); Gaydosh v. Lewis, 133 U.S. App.D.C. 274, 410 F.2d 262 (1969). In this case appellant urges an interpretation of the word “employed” that is broader than that adopted by the Administrators. However, even assuming appellant’s construction were reasonable, as between two competing interpretations of the Plan, we are bound by that of the Administrators if it is not arbitrary and capricious. Miniard v. Lewis, 128 U.S.App.D.C. 299, 387 F.2d 864 (1967), cert. denied, 393 U.S. 873, 89 S.Ct. 166, 21 L.Ed. 144 (1968); see also Roark v. Lewis, 130 U.S.App.D.C. 360, 364, 401 F.2d 425, 429 (1968).

The appellees point out that their interpretation comports more closely with the scheme of § 6 as a whole. The Pension Plan of the IAM distinguishs between three classes of employees: (1) elective and appointive officers and representatives; (2) professional and technical employees; and (3) office and clerical employees. While the requirements for vesting are now different for each class, prior to January 1, 1969, the professional and technical employees had no vesting rights as is still the case with the office and clerical employees. Members of the latter class are not entitled to vested rights in the plan but are eligible for pensions as long as they maintain an “employment relationship” with IAM at retirement age. Under § 6 an “employment relationship” is explicitly defined to include leaves of absence. As to professional and technical employees, the term used to determine their eligibility under the Plan for vested rights is simply “employed.” Thus with regard to these professional and technical employees the broader term “employment relationship,” with its accompanying definition including leaves of absence, is not used. Appel-lees contend that the framers of the Pension Plan intended to apply a narrower construction to vestiture than to pension rights and rely upon the familiar maxim of interpretation that expres-sio unius est exclusio alterius. We agree and under these circumstances we cannot say that the interpretation by the Administrators, which concludes that appellant was not “employed” by the union on the same day that he was working for the U.S. Department of Labor, is arbitrary and capricious. This conclusion conforms to the fine analysis of the facts and the issues by the District Court and its judgment therefore must be and is

Affirmed.

      . IAM Constitution, Art. XIV, adopted September, 1968, effective January 1, 1969.

      . Id., Art. XIV, § 2.

      . Appellant’s brief, p. 8.

      . It is only the vesting rights, not his pension rights, that are here in dispute.

      . Appellant’s brief, p. 5, asserts: “Plaintiff believes that an employee on leave of absence remains an employee during such period and is ‘employed’ while on such leave. . . . ” This statement of the issue fails to take into account a vital fact here, that during said “leave of absence” appellant was employed by another employer, i. e., the United States Government.


author: WILKEY, Circuit Judge:

text:
    Laurence GAGE et al., Petitioners, v. UNITED STATES ATOMIC ENERGY COMMISSION and United States of America Commonwealth Edison Company, Intervenor.
    No. 72-1459.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 6, 1973.
    Decided May 23, 1973.

      Joseph Karaganis, Washington, D. C., with whom Wallace Duncan, Washington, D. C., was on the brief, for petitioners.
    Jerome Nelson, Sol. A. E. C., with whom Kent Frizzell, Asst. Atty. Gen., Martin R. Hoffmann, Gen. Counsel, Harvey S. Price, Atty., A. E. C., Edmund B. Clark and Peter R. Steenland, Attys. Dept, of Justice, were on the brief, for respondent.
    Marx Leva, Washington, D. C., with whom Craig Matthews, Richard Shlak-man and Lois Sehiffer, Washington, D. C. , were on the brief, for intervenor.
    William H. Cuddy, Hartford, Conn., filed a brief on behalf of American Electric Power Co. Inc., and others, as amici curiae.
    Before TAMM and WILKEY, Circuit Judges, and JAMESON, Senior United States District Judge for the District of Montana.

       Sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   WILKEY, Circuit Judge:

This case arises on petition to review an order of the Atomic Energy Commission. The challenged order promulgated rules designed to implement the National Environmental Policy Act (NEPA), the policies of which are required to be reflected in agency regulations to the fullest extent possible. As amended by the AEC’s order, the regulations operate to prevent utilities from undertaking certain site preparation activities prior to the Commission’s decision on their applications for permits to construct nuclear facilities. Since a detailed environmental impact statement must be issued and analyzed prior to the grant of such a construction permit, the regulations also operate to bar site preparation prior to environmental review.

Petitioners, who could have but did not participate in the underlying rule-making proceedings, challenge the regulations on the grounds that (1) NEPA requires the rules to go farther, to bar all land acquisition by license applicants before permit issuance, and (2) the regulations should themselves have been accompanied by a detailed statement concerning their impact on the environment. We hold that petitioners have come to the wrong forum with an inappropriate claim in search of an unavailable remedy. We dismiss their petition.

I. Facts

The new regulations challenged here effect a radical change in the concept of “construction of a production or utilization facility” subject to AEC regulation and barred before issuance of a construction permit. Under previous provisions, a utility planning to build a nuclear facility could extensively alter the proposed site before the AEC had reviewed potential environmental impacts or decided on the construction permit application. The new rule bars “any clearing of land, excavation or other substantial action that would adversely affect the natural environment of a site and construction of non-nuclear facilities . for use in connection with the facility.” However, the rule still allows, among other things, “changes desirable for the temporary use of the land for public recreational uses, necessary borings to determine foundation conditions or other preconstruction monitoring to establish background information related to the suitability of the site or to the protection of environmental values.”

Both on proposal and promulgation, the AEC stated that “the Commission considers these amendments to be consistent with the direction of the Congress, as expressed in Section 102 of the National Environmental Policy Act of 1969, that, to the fullest extent possible, the policies, regulations and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in that act.” Petitioners primarily contend that these regulations do not in fact go “to the fullest extent possible” in implementing NEPA; specifically, that land acquisition prior to AEC approval is not barred.

Petitioners’ current lively interest in the challenged regulations stems from their plight as farmers caught in the path of a land acquisition program undertaken by the Commonwealth Edison Company. In November 1970 Edison applied for a construction permit to build a nuclear generating facility in LaSalle County, Illinois. Without awaiting any AEC action, the utility acquired 90% of the land needed for the proposed site and now plans to complete this acquisition with the use or threat of condemnation power granted by the State of Illinois.

Petitioners contend that the mere acquisition of land — its change in ownership from these farmers or their landlords to Edison — would significantly damage the environment. Further, they argue that allowing acquisition to proceed before the AEC gets a chance to review the environmental impact of construction permit approval would change the balance of costs and benefits, thereby potentially affecting the AEC’s decision. Petitioners claim that NEPA requires the regulations to bar an applicant’s acquisition of land before the AEC’s grant of a construction permit, in order to prevent environmental damage and to protect the ability of the AEC to conduct a full and fair environmental review.

Notice of the proposed regulations, in substantially the same form as those promulgated, appeared in the Federal Register on 1 December 1971. Fifteen interested persons became parties to the rule-making proceedings and submitted comments. Significantly absent were both petitioners and any other party advancing the arguments they attempt to raise now before this court. Petitioners stood aside, uninvolved, despite the fact that they had actual knowledge of the proceedings and were urged by AEC staff members to join the fray.

II. Petition for Review

Petitioners refrained from participating in the appropriate and available administrative procedure, which is the statutorily prescribed prerequisite for this court’s jurisdiction to entertain their petition for review of an Atomic Energy Commission order. The Atomic Energy Act, at 42 U.S.C. § 2239, provides that “any person whose interest may be affected” by certain proceedings, including those concerning issuance or modification of rules dealing with the activities of licensees, may get a hearing on request and shall be admitted “as a party to such proceeding.” Any final order of the AEC in such a proceeding is “subject to judicial review in the manner prescribed in the Act of December 29, 1950, as amended, and to the provisions of section 10 of the Administrative Procedure Act, as amended.”

This petition for review was brought pursuant to the Act of 29 December 1950, which grants the Court of Appeals “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or determine the validity of . all final orders of the Atomic Energy Commission made reviewable by section 2239 of title 42.” Jurisdiction may be invoked by the filing of a petition, under 28 U.S.C. § 2344, by “any party aggrieved by the final order.” (Emphasis added.) Since petitioners were never parties to the rule-making proceedings, this court simply does not have jurisdiction over their claim.

Petitioners argue that the “party” status requirement, and the “exhaustion” doctrine implicit therein, does not apply in the context of an order promulgating rules of general and continuing effect. They base that claim on evidence that the Hobbs Act was originally intended to cover review of adjudicative orders. If taken too far, the argument from the legislative history of the Hobbs Act would lead to the conclusion that rule-promulgating orders are not properly the subject of petitions for review. That would vindicate petitioners’ interpretation of the statute’s origins; but it would also leave them without any remedy in this court. At best, their argument from legislative history is inconclusive.

The clear words of the statutes involved make no distinction between orders which promulgate rules and orders in adjudicative proceedings. This court seems to have assumed that the “party” status requirement applies in either case. In addition, the general policy supporting this requirement applies with, if anything, even more force in the context of direct appellate court review of rule-making.

Unlike requests for review of adjudicative orders, petitions for “direct” review of rule-promulgating orders demand judicial scrutiny of regulations which may well not have been applied in a concrete case. Unlike adjudication, rule-making may proceed in the absence of those who may ultimately have a right to complain of the application of the regulations which result. Unlike those subject to adjudicative orders, persons who may ultimately be affected by regulations may have legitimate grounds for deciding not to join in the formulation of the rules. For example, the ultimate impact, or even the likelihood of enforcement, of proposed rules may be far from clear. Standing aside may not foreclose all opportunity to propose new regulations or to challenge the validity of the promulgated regulations when they are applied to such a person’s detriment in a concrete case; but such abstinence will probably preclude the compilation of a record adequate for judicial review of the specific claims he has reserved. That is what happened in this case — and the effect of this void in the record on our ability to analyze petitioners’ major claim highlights the flaw in their petition for relief from this court.

Petitioners seek expansion of a major rule of nationwide application on the basis of arguments which were never considered and which, therefore, are not addressed at all in the record compiled by the AEC. Yet the questions they raise would be very serious, complex and difficult even if a record had been compiled. The “party” status requirement operates to preclude direct appellate court review without a record which at the least has resulted from the fact-finder’s focus on the alternative regulatory provisions which petitioners propose. Whatever other routes may exist for their challenge to the validity of the promulgated regulations, petitioners’ failure to join as “parties” to the rule-making was at peril of their right to seek “direct” appellate review.

An extensive factual record would clearly be required in order to judge whether or riot the present regulations implement the policies of NEPA “to the fullest extent possible.” The actual environmental impact of acquisition per se would be an essential subject of inquiry. .The potential extent and effectiveness of efforts to delay site acquisition would also have to be explored. If long delays were necessary to assure full environmental review, an expanded regulation might frustrate early site acquisition designed to foster advance environmental impact planning. On the other hand, an effective bar to pre-licensing acquisition might be impossible if utilities could purchase sites long before they even applied for an AEC construction permit. To the extent that acquisition may be necessary to gain access for adequate testing, petitioners’ proposed regulation might make the filing of detailed environmental impact studies impossible and thereby conflict with a basic policy of NEPA itself.

The absence of a developed record on such issues would preclude satisfying analysis of the many troubling, legal issues lurking behind petitioners’ proposal. Any reviewing court would have to decide whether or not a bar to pre-licensing acquisition exceeded the statutory mandate of the AEC, impermissibly interfered with traditional state powers over land use and utility land acquisition, or unconstitutionally preempted private rights of free alienation. The reviewing court would also have to consider whether an expanded regulation would fail to serve the goals of NEPA because effective site-acquisition review requires centralized authority beyond the province of the AEC. The resolution of any of those questions would be impossible without a detailed record concerning the practical workings of AEC licensing procedures, the extent and nature of state and private interests, the structure of the affected industry, and actual environmental effects. No such record is before this court.

The inappropriateness of the remedy sought by petitioners here is further highlighted by their counsel’s description, at oral argument, of the relief they seek. Although their primary concern centers on Edison’s acquisition program in Illinois, they were aware that this court lacks, at least in the context of a petition for review, the general equitable power required to issue an injunction directly, against the utility. Even if we could entertain this petition for review, and even if we found the AEC regulations allowing acquisition unlawful, it would still be up to the AEC to issue new valid regulations and to seek an injunction in federal District Court against actions in violation of the expanded rules. Recognizing this problem, petitioners asked for a general “declaration” to the effect that acquisition must stop. While we acknowledge their accompanying assertion that all of the parties would be respectful of the court’s view, the fact that the remedy they care most about is not available here gives pause.

In addition, petitioners apparently recognized that the record in this rule-making proceeding was totally devoid of the factual background required to analyze the issues they raised. Even the substantial data submitted in their briefs, gleaned from other proceedings and technically not before this court, would prove insufficient for the task. To calm us on that score, they suggested a remand to the Commission for further proceedings. However, since they can petition the AEC for rule-making proceedings on their proposal at any time, such a remand is wholly unnecessary to provide a forum for their views. In short, petitioners’ request for an unenforceable “remedy” and a superfluous remand demonstrates that. they have simply come to the wrong forum for relief.

III. Alternative Remedies

Petitioners argue that despite the inappropriate procedural posture of this case this court should nevertheless take jurisdiction because they will otherwise be forever deprived of an opportunity to advance their claims. Even if petitioners’ sense of frustration were justified, we note that an absence of satisfactory alternative routes to review would not necessarily operate to create jurisdiction before this court. Furthermore, petitioners have had and will continue to have numerous opportunities to voice their objections.

Despite reluctance to join formally in any AEC proceedings, petitioners have explored other avenues in an attempt to block Edison’s acquisition program. They complained informally to the AEC staff. They intervened in a proceeding before the Illinois Commerce Commission in order to oppose the state’s grant of eminent domain power with respect to the project in LaSalle County. They filed a suit seeking injunctive relief against both Edison and the AEC in the District Court for the Northern District of Illinois. Alternatives for the future include participation in the construction permit application proceedings and in any condemnation cases which may arise. To the extent that the AEC violated a clear, non-diseretionary legal duty in failing to issue an environmental impact statement in conjunction with the promulgation of these regulations, injunctive relief may be available in a District Court. Most significantly, with regard to the major claim presented in this case, petitioners retain the right to initiate rule-making before the AEC by formally proposing the promulgation ,of the expanded rules iS&ey desire.

All these alternatives share the common characteristic of providing an opportunity to compile a detailed and focused record. Where appropriate, they allow the Commission a chance, within statutory limits, for informed exercise of its substantive discretion to issue regulations which protect the environment to the fullest extent possible. Together, they assure not only adequate but more meaningful review of every one of the various claims on which petitioners could conceivably deserve to gain relief. In contrast, this court could only act both ineffectively and out of ignorance. Accordingly, the petition for review is

Dismissed.

      . See 10 C.F.R. § 50.10. The regulations were proposed on 1 December 1971. 36 Fed.Reg. 22848. They were promulgated, in substantially the same form, on 21 March 1972. 37 Fed.Reg. 5745.

      . 42 U.S.C. § 4321 et seq.f

      . See Calvert Cliff’s Coordinating Committee v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971).

      . Prior to these amended regulations, a utility was permitted to excavate, prepare the site, drive piles, and construct roadways, railroad spurs, transmission lines and “non-nuclear facilities” (such as tur-bogenerators) which would be used in connection with the “nuclear facility.”

      . The new regulations also allow “construction of buildings which will be used for activities other than operation of a facility and which may also he used to house a facility. . . . ” 10 C.F.R. § 50.10(c)(3).

      . The Commission went on to declare that “these amendments will facilitate consideration and balancing of a broader range of realistic alternatives and provide a more significant mechanism for protecting the environment during the earlier stages of a project for which a facility or materials license is being sought.”

      . The list of petitioners also includes numerous civic organizations to which these farmers belong.

      . After extensive hearings, the Illinois Commerce Commission issued a Certificate of Public Convenience and Necessity for this project.

      . One of petitioners’ major arguments against Edison’s project is that the nuclear facility could be serviced by cooling towers, which would obviate the need for a large cooling lake and render much of the acquisition unnecessary. They claim that, in weighing these alternatives at the construction permit stage, the AEC will inevitably be influenced to some degree by the extent of acquisition which has already been completed.

      . The Sierra Club was a party to the rule-making. They suggested several changes, but did not argue that the regulations should include land acquisition within the concept of “construction” barred before permit issuance.

      . Since the record before us concerns the rule-making proceeding itself, in which petitioners did not participate, it obviously contains no evidence concerning their reasons for failing to join as parties. However, both sides concede that Gage, et al., were neither unaware of the proposed rule nor strangers to the AEC staff. At oral argument, counsel for petitioners attempted to justify their failure to intervene in the rule-making on the ground that the proposed rules said nothing at all about “acquisition,” which was his clients’ major concern. We cannot accept that excuse. The only fair reading of the proposed rules is that, on their face, they not only bar site preparation but also permit acquisition. They not only specifically allowed some types of construction but also clearly stated that they represented the AEC’s current judgment on what was necessary to protect the environment to the fullest extent possible. Another attempted excuse was that the petitioners had already informally presented their views, without success, to the Commission staff. At best, this argument amounts to a claim that, once certain in their own minds that the AEC would reach a result contrary to their views in the rule-making, petitioners had no further obligation to participate in order to preserve their right to petition for review. We reject that contention.

      . The Administrative Orders Review Act, hereinafter sometimes referred to as the “Hobbs Act.”

      . The legislative history of the Atomic Energy Act contains no reference to, and shows no awareness of, any special problems created by providing “exclusive” court of appeals review of rule-promulgating “orders.” See 1954 U.S.Code Cong. & Admin.News at p. 3456 et seq. However, the Supreme Court has rejected the notion that rule-promulgating orders may not be reviewed under the Administrative Orders Review Act. In Port of Boston Marine Terminal Assoc., et al. v. Rederiaktiebolaget Transatlantic, the Court described an argument that such orders were unreviewable because they “lacked finality” and had “no independent effect on anyone” as having “the hollow ring of another era.” 400 U.S. 62, 70-71, 91 S.Ct. 203, 209, 27 L.Ed.2d 203 (1970).

      . This court assumed that the status of the petitioners in Outward Continental No. Pac. Pr. Conf. v. PMC as “active parties to the rule-making proceedings which preceded issuance of [the contested orders]” was a prerequisite, along with their being “aggrieved,” in order for the court to entertain their petition for review under the Hobbs Act. 128 U.S.App.D.C. 199, 200-201, n. 3, 385 F.2d 981, 982, n. 3 (1967). See also Easton Utilities Commission v. AEC, 137 U.S.App.D.C. 359, 424 F.2d 847 (1970).

      . See Vining, Direct Judicial Review and the Doctrine of Ripeness in Administrative Law, 69 Mich.L.Rev. 1443 (1971).

      . Although we do not reach the issue, the need for a record on actual environmental impact is highlighted by the speculative . nature of petitioners’ description of the harm done by Edison’s acquisitions in LaSalle. While we cannot agree that the mere identity of Edison as a new landowner in the community could of itself damage the environment, we can tentatively accept petitioners’ argument that any effects of such ownership on population density and use characteristics of the site environs” may constitute “environmental harm.” See 10 C.F.R. § 100.10 (b). The broad sweep of NEPA’s policies includes protection even of “culturally pleasing surroundings.” 42 U.S.C. § 4331(b)(2). Petitioners claim that much rich farm land has been removed from cultivation as a result of adjacent owners’ decisions to “sell out.” However, it is far from clear that a conversion from farming tise would not have occurred (or could have been prevented) even without this particular change in ownership. In any event, Edison contends that it has re-leased most of the property for farming purposes pending the AEC’s decision. Indeed, the Illinois Commerce Commission has ordered it to minimize dislocation and ineffective land use. Even if we accepted petitioners’ version of the facts, it would take careful analysis on a detailed record to convince this court that environmental (as opposed to economic) interests were harmed by temporarily sparing the grassy plains of Illinois from the rude annual intrusion of the plow. We note that the distinct issue of the impact of subsequent conversion to nuclear power plant use will be considered in the construction permit proceedings.

      . Petitioners argue against acquisition before licensing on the ground that allowing the consolidation of utility-held acreage would affect the final cost-benefit balancing process when alternatives, such as those requiring less acreage or on sites for which no acquisition has begun, are considered. That argument tends to prove too much. Virtually every action taken independently by a private party whose project will eventually require government approval (and face a NEPA review) will affect the outcome of that analysis. For example, collection of certain types of technical personnel inevitably affects which sort of power plant can be constructed at lowest cost and which efforts to protect against environmental harm are technically feasible — yet petitioners could hardly argue that the AEC can or should hold up utility staffing decisions merely because the NEPA balancing-process will necessarily be affected thereby. If every decision which altered the “cost of change” had to await an impact statement, we would soon be reduced to government by impasse.

      . 42 U.S.C. § 2232, along with related safety and environmental regulations, requires applicants to submit detailed environmental information concerning the proposed site prior to issuance of a construction permit. This information must relate to site criteria such as “[pjhysical characteristics of the site, including seismology, meteorology, geology and hydrology.” 10 C.F.R. § 100.10(c). Much of this information may be unavailable without extensive on-site testing. Yet landowners hostile to the proposed project might well deny the necessary access. Precluding acquisition until after permit issuance might lead to a total stalemate.

      . NEPA does not mandate action which goes beyond the agency's organic jurisdiction. See Kitchen v. FCC, 150 U.S. App.D.C. 292, 464 F.2d 801 (1972). Application of the limits of the AEC’s statutory mandate might produce two different sorts of analysis with respect to the two distinct prongs of petitioners’ major argument. They claim, first, that the Commission’s regulations should bar acquisition in order to prevent environmental harm resulting directly therefrom. While “construction” of a nuclear facility, including site preparation, will almost invariably involve activities which will eventually come within the overall jurisdiction of the AEC, acquisition of land by a utility may well precede construction of a fossil fuel plant of the type totally foreign to the Commission’s regulatory sphere. Intervention to prevent environmental harm from private and non-federal action, as opposed to merely withholding its own “major federal action” of granting a construction permit until a NEPA review has occurred, may very well go beyond the AEC’s organic power, especially where the Commission’s eventual involvement is only indicated by a permit application which may be withdrawn at any time. See Boston v. Volpe, 464 F.2d 254 (1st Cir. 1972). The cases cited by petitioners to the contrary are not in point since they all arose subsequent to the existence of statutorily mandated federal action or federal partnership in private action. See Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971); Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir. 1972); La Raza Unida v. Volpe, 337 F.Supp. 221 (N.D.Cal.1971); Silva v. Romney, 473 F.2d 287 (1st Cir. 1973).
      Petitioners’ second, and distinct, argument is that the regulations must bar acquisition before decision on the construction permit application in order to preserve the AEC’s ability to conduct a fair environmental review. The cost of land acquisition at one site or another is certainly a factor which the AEC may consider in connection with its review of a construction permit application and the alternatives to approval which may be available. In this light, a bar of pre-licensing acquisition might legitimately operate not to control environmentally harmful private activity per se but to protect the AEC’s own organic jurisdiction by preserving an unaltered balance of cost and benefit factors. And if the AEC’s ban only applied to utilities with applications pending, the difficulties present with regard to the pure “prevention of environmental harm” argument discussed above might evaporate.
      Of course, extension of the Commission’s regulations “to the fullest extent” to protect the decision-making process in this manner may very well not be “possible” within the terms and purposes of NEPA itself. It may also not be practical, for until the utility filed an application for a construction permit, presumably AEC would have no jurisdiction. Site acquisition might take place with no officially announced intention, and thus not be subject to the present very definite environmental protection restrictions of the AEC regulations. Sustaining petitioners’ position might thus be argued to promote evasion.

      . There are at least seven proposals now pending before Congress which would institute coordinated national regulation of power plant siting. See Brief of Inter-venor at p. 24. It is quite possible that meaningful regulation would absolutely require centralized siting control. A utility might acquire a site, on a river for example, which could be water, fossil fuel, or atomic powered. Until a decision was made, no one could say whether the Army Corps of Engineers, Federal Power Commission, or Atomic Energy Commission would have regulatory jurisdiction.

      . See 10 C.F.R. § 50.110.

      . 10 C.F.R. §§ 2.802 and 2.803.

      . It is arguable that if no adequate alternative remedies appeared and if their failure to join as “parties” to the rule-making was justifiable, petitioners could bring an action for “direct” review of the regulations. For example, if one party had been entrusted to represent petitioners’ interests but had, after promulgation, “dropped the cudgel,” they might be entitled to petition for review. See Easton Utilities Commission v. AEC, 137 U.S. App.D.C. 359, 365, 424 F.2d 847, 853 (1970).

      . In its Docket No. 56034, the Illinois Commerce Commission conducted an exhaustive environmental review of both Edison’s plans for this site and several alternatives. Petitioners were represented and fully participated. The Commission considered many factors, including the effects of the removal from production of the farm land in question.

      . Gage, et al. v. Commonwealth Edison Company, et al., 356 F.Supp. 80. The District Court issued its Memorandum and Order granting defendants’ motions to dismiss on 27 November 1972. To the extent that their complaint could be read to challenge the validity of the AEC’s regulations, the District Court concluded that this Court of Appeals had exclusive jurisdiction over that cause of action. To the extent that their complaint attacked the AEC’s failure to prepare an environmental analysis prior to Edison’s land acquisition, the District Court concluded that it might have jurisdiction to enjoin such “final agency inaction.” While dismissing for lack of jurisdiction on more technical grounds, the court strongly suggested that it would also deny relief on the merits because the AEC had violated no “clear, non-diseretionary legal duty.” We should note in parsing that we find the District Court’s substantive analysis quite sound.

      . Standing for such a challenge in District Court would, of course, turn on a showing that the regulations had been applied specifically to petitioners’ detriment. Their chances for success on the merits of that argument are even less than those on their major substantive claim. The Council on Environmental Quality has interpreted its own guidelines as not requiring a § 102 NEPA statement for regulations which themselves implement NEPA. See letter of CEQ General Counsel to the Chairman of the AEC, dated 17 August 1972, AEC Brief at p. 20.

      . Petitioners do have the right to petition the Commission for institution of a rule-making proceeding under 10 C.F.R. §§ * 2.802 and 2.803. This course has been suggested to them by the AEC itself. Denial of such a petition would constitute a final order reviewable by this court.


author: JAMESON, District Judge:

text:
    C. M. CLARK INSURANCE AGENCY, INC., Appellant, v. David O. MAXWELL, Appellee. SAFEGUARD MUTUAL INSURANCE COMPANY, Appellant, v. David O. MAXWELL, Appellee.
    Nos. 71-1927, 71-2010.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 9, 1973.
    Decided May 30, 1973.

      James C. Eastman, Washington, D. C., for appellants. George P. Lamb, Jr., Washington, D. C., also entered an appearance for appellant.
    Joseph A. Califano, Jr., Washington, D. C., with whom Charles H. Wilson, Jr., Washington, D. C., was on the brief, for appellee.
    Before LEVENTHAL and ROBB, Circuit Judges, and WILLIAM J. JAMESON, Senior United States District Judge for the District of Montana.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   JAMESON, District Judge:

This is a consolidated appeal from orders dismissing plaintiffs’ complaints for failure to state a claim. The appellants, Standard Mutual Insurance Company and C. M. Clark Insurance Agency, Inc., asserting claims under the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985, and for malicious abuse of process, sought damages and injunctive relief from the appellee, David O. Maxwell, for actions taken by him while Insurance Commissioner of the Commonwealth of Pennsylvania.

The primary question presented on this appeal is whether the District Court erred in dismissing the complaints for failure to state a claim on the ground that the appellee was immune from suit. Since we conclude that appellee was entitled to the protection of official immunity, it is unnecessary to determine the procedural questions presented.

It appears from the complaints and exhibit thereto attached that on April 12, 1967 appellee in his capacity as Insurance Commissioner for the Commonwealth of Pennsylvania, “by authority of Section 502 of the Insurance Department Act of May 17, 1921, P.L. 789, as amended (40 Purdon’s Statutes 202),” issued a suspension order declaring Safeguard Mutual Insurance Company “to be in such condition that its further transaction of business will be hazardous to its policyholders, to its creditors, and to the public” and prohibiting Safeguard from conducting further business “without prior written approval of the Insurance Commissioner of the Commonwealth of Pennsylvania.” On the same day appellee filed in the Court of Common Pleas of Dauphin County, Pennsylvania a petition for liquidation of Safeguard.

Section 502 of the Insurance Department Act <40 P.S. § 202) provides in pertinent part:

“Whenever any domestic insurance company * * * is found, after an examination, to be in such condition that its further transaction of business will be hazardous to its policyholders, or to its creditors, or to the public * * * the Insurance Commissioner, after examination, shall suspend the entire business of any such domestic insurance company * * *. Upon suspension of any such organization by the Insurance Commissioner * * * he shall after approval of the Attorney General apply to the Court of Common Pleas of Dauphin County * * * for an order directing such company * * * to show cause why its business should not be closed, and the Insurance Commissioner should not take possession of its property and conduct its business, and for such other relief as the nature of the case and the interests of its policyholders, creditors, stockholders, or the public may require.”

Following an extended hearing the Dauphin County Court denied the appellee’s petition for the appointment of a liquidator and granted Safeguard’s petition to vacate the suspension order. Commonwealth ex rel. Maxwell v. Safeguard Mutual Insurance Company, 91 Dauph. 305 (1969).

Thereafter Safeguard and its agent, appellant C. M. Clark Insurance Agency, Inc., filed separate suits in the Eastern District of Pennsylvania against appel-lee as Insurance Commissioner, various members of his staff, and deputy attorneys general of the Commonwealth. The actions were dismissed as to appellee for lack of personal jurisdiction. Subsequently the actions were dismissed as to the remaining defendants under Rule 12(b) (6) Fed.R.Civ.P. on the ground of official immunity. Safeguard Mutual Ins. Co. v. Miller, 333 F.Supp. 822 (E.D.Pa.1971). The Court of Appeals reversed and remanded for further proceedings. 472 F.2d 732 (3 Cir. 1973).

It is well established that judges are immune from liability for damages for official acts within their jurisdiction and that this immunity was not abolished by § 1983. Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). The same is true of legislators for acts within the legislative role. Tenney v. Brandhove, 341 U. S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). A like immunity extends to other public officials who are performing quasi-judicial functions or whose duties are related to the judicial process. Yaselli v. Goff, 12 F.2d 396 (2 Cir. 1926), aff’d per curiam, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395, involving a Special Assistant to the Attorney General.

Even where public officers are not engaged in performing quasi-judicial functions, they may be immune from liability for their discretionary acts performed pursuant to their lawful authority. This rule was early stated by this court in Cooper v. O’Connor, 69 U.S. App.D.C. 100, 99 F.2d 135, 142, 118 A.L.R. 1440 (1938), an action against the Comptroller of the Currency and other federal officials for allegedly procuring a false indictment of plaintiff, “falsely, maliciously and without probable cause”. In holding the defendants immune from liability the court recognized that immunity “has been applied, not only to officials, judicial and quasi-judicial, but to executive officers generally” (listing various officers, boards and commissions), and concluded “that as the acts of appellees were performed in the discharge of their official duties, the motives with which those duties were performed are immaterial * *

In Barr v. Matteo, 360 U.S. 564, 79 S. Ct. 1335, 3 L.Ed.2d 1434 (1959), an action for libel against the Acting Director of the Office of Rent Stabilization, the Court, after referring to the absolute immunity granted public officials whose duties are related to the judicial process, recognized that this privilege has not been “confined to officers of the legislative and judicial branches of the Government and executive officers of the kind involved in Yaselli.” The Court quoted from its prior opinion in Spalding v. Vilas, 161 U.S. 483, 498-499, 16 S.Ct. 631, 40 L.Ed. 780 (1895), sustaining a plea by the Postmaster General of absolute privilege, where the Court said in part:

“In exercising the functions of his office, the head of an executive department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government, if he were subjected to any such restraint. * * -- ” 360 U.S. at 570, 79 S.Ct. at 1339.

Recognizing that “the occasions upon which the acts of the head of an executive department will be protected by the privilege are doubtless far broader than in the case of an officer with less sweeping functions,” the Court stated that it was “not the title of his office but the duties with which the * * * officer * * * is entrusted” which must provide the guide in delineating the scope of his immunity. The Court concluded that the action of the petitioner was “an appropriate exercise of the discretion which an officer of (his) rank must possess if the public service is to function effectively.” 360 U.S. at 573-575, 79 S. Ct. at 1340-1341.

Citing Barr v. Matteo, supra, this court in Carter v. Carlson, 144 U.S.App. D.C. 388, 447 F.2d 358, 362 (1971), rev’d on other grounds, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973) recognized that in distinguishing “between discretionary and ministerial functions” and in “determining whether a particular governmental function falls within the scope of official immunity,” the “proper approach is to consider the precise function at issue, and to determine whether the officer is likely to be unduly inhibited in the performance of that function by the threat of liability for tortious conduct.”

It is true, as appellants argue, that the doctrine of official immunity should be applied sparingly and that to “hold all state officers immune from suit would very largely frustrate the salutary purpose” of § 1983. Jobson v. Henne, 355 F.2d 129, 133 (2 Cir. 1966). Rather it is necessary to balance “competing considerations” in determining whether particular officers are immune. Dale v. Hahn, 440 F.2d 633, 637 (2 Cir. 1971). This was clearly recognized in Barr v. Matteo, supra, the Court calling attention to the conflict between “two considerations of high importance” — the protection of the individual citizen against oppressive or malicious action by governmental officers and the “protection of the public interest” by shielding responsible governmental officers on “account of action taken in the exercise of their official responsibilities.” 360 U.S. at 564-565, 79 S.Ct. at 1336. As in Barr v. Matteo, we conclude that the balance here must be resolved in favor of immunity.

Appellee was the chief executive officer of the Department of Insurance of the Commonwealth of Pennsylvania, “which is charged with the execution of the laws of this Commonwealth in relation to insurance.” The duties, responsibilities and function of the Insurance Commissioner are clearly defined by statute. Upon specified findings he was required “to suspend the entire business” of an insurance company and apply for an order to show cause why the business should not be closed and the Insurance Commissioner take possession of its property and conduct its business. He was required to engage in the fact finding and decision making process and had the sole responsibility of determining, after investigation, whether a suspension order should be issued. While investigation may not be categorized as a judicial function, the role of the commissioner in the issuance of a suspension order — based on a finding of hazard to the public, coupled, as required, with the filing of what amounts to a petition for a court order of liquidation, that assured exposure, adversarial testing, and judicial resolution of the matters underlying the commissioner’s determination — may properly be labeled as “quasi-judicial” and an integral part of the judicial process.

Moreover, appellee as the chief executive officer of the Commonwealth’s Department of Insurance was performing a governmental function which required the exercise of discretion. In exercising his discretionary function he was acting pursuant to lawful authority. In the performance of that function it is “likely” that he would “be unduly inhibited * * * by the threat of liability for tortious conduct.” Carter v. Carlson, supra.

We conclude that appellee is entitled to the protection of official immunity on the grounds that (1) he was an executive officer performing a quasi-judicial function, and (2) he was performing a discretionary act in the exercise of his official duties and pursuant to lawful authority.

Having determined that appellee is immune from suit for the acts alleged in the complaint, the orders of the District Court dismissing the complaints for failure to state a claim may properly be affirmed. Bauers v. Heisel, 361 F.2d 581, 591 (3 Cir. 1966), cert. denied, 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457 (1967); Tenney v. Brandhove, supra.

Affirmed.

      . The court initially entered an order of dismissal in each case because of plaintiff’s failure to object to defendant’s motion to dismiss within the time allowed by local court rule. Plaintiffs filed motions to vacate the orders “pursuant to Rule 7 (b), 12(b) (6) and 56 of the Federal Rules of Civil Procedure.” The court treated the filings as motions for relief from a judgment or order under Rule 60 (b) Fed.R.Civ.P. and held that plaintiffs had “not made out a case for excusable neglect” and that after reviewing the “tardily filed opposition” the court was still “of the opinion that the complaint failed to state a claim upon which relief can be granted.” We affirm on the second ground. It is accordingly unnecessary to determine whether the district court abused its discretion in failing to find excusable neglect or erred in failing to hold a hearing under Rule 56.

      . Appellee was no longer a resident of the State of Pennsylvania when the actions were filed, having moved to the District of Columbia. These actions were commenced after dismissal as to appellee in the Eastern District of Pennsylvania, with the complaints in those actions attached as exhibits to the complaints in the District of Columbia.

      . The District Court concluded that while the remaining defendants were not entitled to the absolute immunity of judges and legislators or those acting in a quasi-judicial position they were entitled to governmental immunity for discretionary acts performed in scope of their authority. The court also quoted from the opinion of the Dauphin County court that, “We are satisfied * * * that the Commissioner’s action in suspending Safeguard on April 12, 1967 was a prudent one, embarked upon only after a careful examination of such information as was available to him at that time and in the reasonable belief that such action was mandatory upon him in light of section 502 of the statute.” 91 Dauph. 305 (1969).

      . Pointing out that “the complaints, while naming the office held by each defendant, do not describe the function, the relationship to the total functioning of the insurance department, or the degree 'of discretion vested in each office”, the court concluded that it could not “tell whether their position in the government of the Commonwealth is analogous to that of the judge held to be immune from suit for damages in Pierson v. Ray, 386 U.S. 547 [87 S.Ct. 1213, 18 L.Ed.2d 288] (1967), or more closely analogous to the law enforcement officers held, in the same case * * * not to be immune.” The court held further that good faith immunity is a matter of defense.

      . “This immunity applies even when the judge is accused of acting maliciously and corruptly, and it ‘is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.’ (Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868), quoted in Bradley v. Fisher (13 Wall. 335) 349, note, at 350 [20 L.Ed. 646].)” (1872). Pierson v. Ray, supra, 386 U.S. at 554, 87 S.Ct. at 1218.

      . The respondent had sued petitioners alleging that in connection with an investigation by a committee of the California Legislature, of which petitioners were members, he had been deprived of rights guaranteed by the Federal Constitution. The district court dismissed the complaint. The court of appeals held that the complaint stated a cause of action. The Supreme Court reversed, holding that it appeared from the complaint that the petitioners were acting in a field where legislators traditionally have power to act. 341 U.S. 367, 376-379, 71 S.Ct. 783, 95 L.Ed. 1019.

      . See also Silver v. Dickson, 403 F.2d 642, 643 (9 Cir. 1968), where the court held that members of the California Adult Authority and other state officials, while employed in the processing of applications for parole, were “performing quasi-judicial functions” and “therefore have immunity from suits for damages under the Civil Rights Act”.

      . See also Hoffman v. Halden, 268 F.2d 280, 300 (9 Cir. 1959), relying upon Cooper v. O’Connor, supra, as a case “widely cited and followed”.

      . In further explanation of the reasons for recognizing the privilege, the Court quoted (360 U.S. at 571, 79 S.Ct. at 1339) from Judge Learned Hand :
      “It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. * * *» Gregoire v. Biddle, 177 F.2d 579, 581 (2 Cir. 1949).

      . Jobson v. Henne is factually distinguishable. It was an action by an inmate of a state mental institution against its officers and psychiatrist on account of their allegedly having subjected the inmate to “involuntary servitude, peonage or slavery”.

      . Insurance Department Act of 1921, May 17, 1921, P.L. 789, as amended, 40 P.S. § 41.

      . While the Court of Appeals for the Third Circuit held in Safeguard Mutual Insurance Co. v. Miller, supra, that the action was improperly dismissed because the functions and “degree of discretion vested” in the offices held by the defendants were not described, it recognized that where the functions are precisely known, as with judges and prosecutors, a decision on the pleadings is proper, citing Bauers v. Heisel. As noted above, the functions of appellee as Insurance Commissioner are precisely defined by statute. The defendants left in Federal court for Eastern Pennsylvania after dismissal as to appellee (see note 2, supra) were officials below “cabinet” rank. Their duties and functions were left to development at trial.


text:
    Bernard E. SCHILT, Esquire, Successor Guardian of the Estate of John Wesley Duvall, Jr., Appellant, v. Myrtle B. DUVALL, Trustee, and National Surety Corporation, her Surety, Appellees.
    No. 72-1482.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 12, 1973.
    Decided May 30, 1973.

      Fred Warren Bennett, Washington, D. C., with whom James R. Sharp, Washington, D. C., was on the brief, for appellant.
    James K. Foley, Silver Spring, Md., for appellee, National Surety Corp.
    Before LEVENTHAL and ROBB, Circuit Judges, and JAMESON, Senior United States District Judge for the District of Montana.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   JAMESON, District Judge:

This is an appeal from an order of the District Court entered March 7, 1972 denying the appellant’s motion to surcharge the appellee trustee and her surety for the trustee’s alleged misappropriation of trust funds.

A. Factual Background

By order entered March 29, 1968 in Civil Action 2915-67, appellee Myrtle B. Duvall was appointed trustee to convey the interest of John Wesley Duvall, her 16 year old son, in certain real estate in the District of Columbia, “provided that she file an undertaking in the amount of $14,000.00 with approved surety. * * *” A surety bond in that amount executed by appellee National Surety Corporation was duly filed.

On June 10, 1968, Mrs. Duvall filed a “Sixty Day Report under Rule 22” showing that she held a certificate of deposit in the amount of $12,609.61 in the American Heritage Bank and Trust Company in Colorado Springs in the name of “Myrtle B. Duvall, Trustee in C.A. 2915-67 for John Wesley Duvall.” No certificate of deposit, however, was ever issued to Mrs. Duvall by Heritage Bank and Trust Company.

Also on June 10, 1968 Mrs. Duvall executed in Colorado for filing in the District of Columbia an “Annual Report under Rule 22” showing a deposit of $12,609.61 in the National Bank of Washington in the name of “Myrtle B. Duvall, Trustee in C.A. 2915-67 for John Wesley Duvall.” The deposit of $12,609.61- — representing the proceeds of the sale — was in fact made in the National Bank of Washington on June 21, 1968. With interest of $126.09 credited October 1, 1968 the account totalled $12,735.70.

At about this time Mrs. Duvall, with her son, apparently decided to take up permanent residence in Colorado. She began a series of steps to transfer her son’s estate from Washington, D. C. to Colorado, and to obtain authority from the Colorado courts to act as his fiduciary in that jurisdiction.

On July 9, 1968 Mrs. Duvall was appointed Guardian of John Wesley Du-vall, Jr., by the Probate Court of the City and County of Denver and State of Colorado and filed a personal bond in the sum of $500.00 “until money is received from Washington, D. C.”

On August 28, 1968 Mrs. Duvall filed in the District Court for the District of Columbia a “petition to transfer trust funds” to “herself in the State of Colorado”, reciting her domicile and appointment as guardian dn Colorado. On the same date the court entered an order providing:

“1. That the Trustee, Myrtle B. Duvall, submit a final account and report with regard to the Trust account of John Wesley Duvall, Jr.
“2. FURTHER ORDERED that after approval by the Court of the report on [sic] the Auditor on the final account and report of Myrtle B. Du-vall, trustee, and the payment of administrative costs, the trustee is hereby authorized to transfer the balance of the assets to Myrtle B. Duvall guardian of the estate of John Wesley Duvall, Jr., Minor in the Probate Court in and for the City and County of Denver and State of Colorado, No. P-47737.”

A “final account” filed August 30, 1968 for the period March 29, 1968 to August 2, 1968, and executed by Mrs. Duvall on August 2, 1968, reports the sale of the real estate for $12,601.61. An “Annual Report under Rule 22” and “Sixty Day Report under Rule 22”, both filed September 24, 1968, show the deposit of that amount in the National Bank of Washington, in Mrs. Duvall’s name as trustee.

On October 18, 1968 Mrs. Duvall withdrew $10,500.00 from the trustee savings account in the National Bank of Washington, obtaining a cashier’s check for $10,000.00 payable to “Myrtle B. Duvall, for credit to #D 64740-8, c/o Columbia Savings and Loan Association”, Colorado Springs, Colorado. On October 17, 1968 Mrs. Duvall had applied for a savings account at Columbia Savings and Loan Association in her name, No. D-64740-8, as Trustee for John Wesley Duvall, Beneficiary, a Totten trust agreement. On October 21, 1968 the check for $10,000.00 was deposited in that account, and $10,000.00 was withdrawn the same day.

An additional $2,000.00 was withdrawn from the account in the National Bank of Washington on January 14, 1969 through a cashier’s check payable to “Myrtle B. Duvall”, and $200.00 was withdrawn on March 8,1969.

On May 26, 1969 the “Report of the Auditor” was filed. The report reviewed the account for the period March 29, 1968 through August 2, 1968, referring to the “Sixty Day Report filed June 10, 1968, First-and-Final Account (designated Final) filed August 30,1968, Amended Sixty Day Report filed September 24, 1968 and Report filed September 24, 1968 of Myrtle B. Duvall, Trustee.” It concluded that the unpaid distributive shares, as of August 2, 1968, consisted of:

“To: Edna Belle Duvall $ 156.75

Myrtle B. Duvall 19.00

John Wesley Duvall, Jr. 12,718.86”

The auditor’s report concluded:

“8. After confirmation of the Report of the Auditor, order to be prepared and presented by the Trustee, and after full settlement and distribution has been made and a verified statement to that effect filed with the Clerk of the Court as provided by Rule 22(g), together with vouchers, receipts, or canceled checks evidencing final distribution, the Auditor recommends that the Trustee and her surety stand discharged, except as to prior defaults, if any.”

By order dated June 20, 1969 the court confirmed the report of the auditor and “ordered that Myrtle B. Duvall file the Certificate of Distribution and Settlement in compliance with Local Civil Rule 22g, after which, trustee and the Surety on his undertaking shall stand discharged, except for prior defaults, if any.”

On August 22, 1969 the trustee filed a “Certificate of Distribution and Settlement by Fiduciary under Paragraph (g) of Local Civil Rule 22”, reciting that she had “made complete distribution of the funds entrusted to her * * * in compliance with decree of March 29, 1968.” This was executed May 5, 1969 — before the report of the auditor was filed. No certificate has been filed stating that the trustee has made distribution pursuant to the auditor’s report and order of the court confirming the report or the court order entered August 28, 1968; nor does the file contain any evidence that “vouchers, receipts or can-celled checks evidencing final distribution” were filed.

On August 4, 1969 Mrs. Duvall opened two more savings accounts in the Colorado Savings and Loan Association, both in the form of Totten trusts, in the name of Myrtle B. Duvall as trustee for John Wesley Duvall. Account No. 05-87375-5 was opened with $8,000.00, and No. 05-60571-2 with $1,293.01.

On January 5, 1970 Mrs. Duvall borrowed $14,540.98 from the Columbia Savings and Loan Association, giving them her note and pledging the three savings accounts. On May 5, 1971 the account balances were:

D-64740-8 $ 8.03

05-87375-5 7,743.53

05-60571-2 15.78

On October 30, 1970 an order was entered by the probate court in Colorado removing Mrs. Duvall as guardian of the estate of John Wesley Duvall, Jr., upon a finding that the estate “was not properly administered.” Bernard E. Schilt, appellant, was appointed successor guardian, and letters of guardianship were issued to him on May 3,1971.

By letter dated July 19, 1971 the Columbia Savings and Loan Association refused appellant’s demand for the surrender of the Totten trust accounts by reason of the fact that they had been pledged to secure Mrs. Duvall’s loan and the loan was delinquent.

The motion to surcharge the trustee and her surety was filed by appellant on January 3, 1972. Following the oral argument on February 24, 1972 the motion was denied, the court concluding that the “motion comes too late to try to surcharge the surety * * * ”. A formal order was entered on March 7, 1972. Appellant filed a motion for reconsideration, which was denied on April 5, 1972, the court finding.:

“(1) That petitioner’s motion to surcharge rests on a single authority, D.C. Code § 28-2504, which is directed toward attorney/trustees and sureties thereof, and that such provision is inapplicable to the case at bar, see United States Fidelity & Guarantee Co. v. Klein, 60 App.D.C. 354, 54 F.2d 828, cert. denied 285 U.S. 544 [52 S. Ct. 394, 76 L.Ed. 936] (1931);
“(2) That the report of the auditor in this case, disclosing no illegal or improper transactions on the part of the trustee, has not been the subject of any objection;
“(3) That the trustee and surety have been discharged by order of the Court; and
“(4) That petitioner has made no showing that the funds — removed from this jurisdiction by the trustee prior to the order confirming the report of the auditor and discharging the trustee and surety — were expended by the trustee against the interests of her minor son”.

Two related issues are presented on this appeal: (1) whether the trustee and her surety were discharged from liability by the order confirming the auditor’s report and certificate of distribution and settlement filed by the trustee; and (2) whether there was a misappropriation of funds in the District of Columbia, constituting a “prior default” under the order confirming the auditor’s report.

B. Effect of Order Confirming Auditor’s Report

Both the auditor’s report and order confirming it required the filing of a certificate of distribution and settlement in compliance with Rule 22(g), “after which” the trustee and her surety would “stand discharged, except for prior defaults, if any.” The certificate filed by the trustee failed completely to meet the requirements of either the court order or Rule 22(g). Although filed subsequent to the order confirming the report, it was actually executed prior to the report. It recited compliance with the order appointing the trustee to convey the property and receive the proceeds of the sale. Nothing was ever filed to show compliance with the recommendations of the auditor and the court order confirming his report.

All of the withdrawals from the National Bank of Washington were made prior to the filing of the auditor’s report. In making the withdrawals the trustee failed to comply with the order of August 28, 1968: (1) that she submit a final account and report, and (2) that after approval of the report of the auditor on her final account she transfer the balance of the assets to “Myrtle B. Du-vall, guardian of the estate of John Wesley Duvall, Jr., Minor in the Probate Court In and for the City and County of Denver and State of Colorado, No. P-47737.”

The so-called “final account” filed on August 30, 1968 was executed on August 2, 1968 and covered the period ending on that date. No true “final account” covering the period subsequent to that date was ever filed. Between August 2, 1968 and May 5, 1969, when Mrs. Duvall executed the so-called “certificate of distribution”, she made the improper and unauthorized withdrawals of the trust funds.

Appellee surety argues that the auditor presumably had all documents and must have known of the transfer of the funds to Colorado at the time of the audit. There is no evidence to support that assumption. As noted, the audit covered the “final account” for the period ending August 2, 1968. On that date the funds were still on deposit in the National Bank of Washington. All of the defaults occurred subsequent to the period covered by the report, but prior to the filing of the report.

Under these facts we find no merit in appellee’s contention that the order confirming the auditor’s report became res judicata. Nor was appellant required to seek to set aside the auditor’s report.

C. Trustee’s Default and Misappropriation of Trust Funds

16 D.C.Code § 601 (Supp. V, 1972) provides for entry of a judgment against a trustee and surety “upon default by the principal in any of the conditions” of the undertaking or bond. The judgment may be entered, upon motion, in the action in which the undertaking is filed, as an alternative to an independent action. Schmidt v. Smith, 120 U.S.App.D.C. 74, 344 F.2d 168, 169 (1965).

Appellee surety contends that there was no default through misappropriation of funds in the District of Columbia and that any misappropriation or misuse of trust funds took place in Colorado while Mrs. Duvall “was guardian.” It is true, as appellee argues, that where a trustee transfers property to “himself in another capacity in accordance with his duty or authority”, the surety is not liable for subsequent defalcations.” Here, however, the trustee failed to transfer the assets to herself in her capacity of guardian, as required by law and express order of the court. Instead the funds withdrawn from the account in the National Bank of Washington were paid to her individually or to her credit in a Totten trust in Colorado. This was in itself a misappropriation of the trust funds. It contributed to the eventual conversion by making the minor’s funds available for Mrs. Duvall to pledge them for her own use. This would not have been possible had she deposited the funds in the guardianship account pursuant to the court’s order of August 28, 1968. 5A Michie, Banks and Banking, §§ 57e, 91.

The unauthorized withdrawals of the trust funds constituted “prior defaults” for which the surety is liable.

D. Sufficiency of Evidence

Appellee surety contends finally that (1) the documents upon which appellant relies were not properly in evidence and (2) there was no proof of the amount of any misappropriation.

In its opposition to appellant’s motion appellee set forth as one of eleven grounds that the motion was filed “with allegations, opinions and conclusions unsupported by affidavit or admissible evidence.” Thereafter appellant filed his affidavit reciting that the statements in the motion were true to the best of his knowledge, information and belief.

The hearing consisted of statements of counsel for the respective parties. Counsel for the surety contended (1) that the “attempt now to attack the report of the auditor” came too late, and (2) “that the auditor, at the time of the report was aware of the fact that funds had already been transferred to Colorado and were not in this jurisdiction.” He argued also that the motion “contains a series of allegations, none of them under oath, none of them verified.”

The court did not rule upon the admissibility of the evidence, but concluded that a “certificate of distribution is in the file,” and that the “motion comes too late to try to surcharge the surety.” Before the court at the hearing were the motion with attached copies of documents, appellant’s affidavit, and appellee surety’s written opposition to the motion. While it does not appear that the original documents were formally offered in evidence, neither does it appear that it was necessary.

In its opposition to the motion the appellee did not deny the authenticity of any of the documents or deny any of the statements of fact set out in the motion or in the documents. The order of the district court recited that it was based “[u]pon consideration of the pleadings filed herein”. Under these circumstances, it appears that the court gave judgment on the pleadings, and that it was not necessary for the appellants to offer the documents into evidence.

Since the pleadings show a misappropriation and a prior default under the terms of prior court orders, appellant was entitled to judgment on the pleadings. The pleadings do not, however, indicate the final amount of the misappropriations, including interest due.

The order of the district court is reversed, and we remand for a determination of the amount of the surcharge.

So ordered.

      . The proceedings and transactions with which the court is concerned are somewhat complicated and confusing and may be best understood by setting them out in chronological order.

      . A letter from the president of the American Heritage Bank and Trust Company, dated December 23, 1971 states that on May 13, 1968 Mrs. Duvall brought to the bank a check for $12,609.61 with the request that it be placed in a certificate of deposit. She was informed that the check would have to be sent for collection before this certificate could be delivered. She did not make the deposit but did obtain a photo copy of the certificate, which was never issued.

      . It is uncertain when this report was . filed. The filing date of June 20, 1968 was stamped on the report, but crossed out.

      . The remaining $500.00 of the withdrawal is apparently unaccounted for.

      . A Totten trust is a tentative trust, revocable at will. The beneficiary has no right or title to the deposit until the death of the trustee. While the trustee lives, he has full control over the deposit. See 10 Am.Jur.2d Banks, § 392.

      . On May 29, 1969, a deposit of $109.25 was made in the National Bank of Washington account, and on July 1, 1969 a check for $127.17 was issued to “Myrtle B. Duvall.”

      . This was the order confirming the contract for the sale of the property and appointing Mrs. Duvall trustee to convey the minor’s interest.

      . Rule 22(g) provides:
      “(g) Statement of Distribution and Settlement. Promptly after full distribution and settlement of a trust estate the fiduciary shall file with the Clerk a verified statement to that ef-. feet, together with vouchers, receipts, or cancelled cheeks evidencing final distribution.’’ (emphasis supplied)

      . This was the primary contention of ap-pellee trustee at oral argument in the District Court, although it is not urged in its brief on this appeal. The court relied upon the order confirming the auditor’s report and his conclusion that a certificate of distribution had been filed in compliance therewith.

      . A certificate of distribution and settlement properly prepared in compliance with the court’s orders would have revealed the withdrawal of the trust funds from the National Bank of Washington.

      . There is no evidence that the auditor’s report was in any respect incorrect. It sets forth accurately the accounting transactions pertaining to the sale of the property and the proper allocation of the proceeds as of August 2, .1968.

      . This was the holding in Poole v. Garrett, 56 App.D.C. 378, 15 F.2d 892 (1926), upon which appellee surety relies. There an ancillary administrator collected assets and delivered them to himself as domiciliary administrator, and thereafter converted funds. The court held that the surety bond of the ancillary administrator was not liable.

      . As noted above, the deposits in the Columbia Savings and Loan Association were Totten trusts. A letter to appellant dated May 5, 1971 from the Association’s resident counsel stated that as far as he could determine the “Association had no knowledge that any of these funds were in fact belonging to the minor’s estate.”

      . The District Court assumed, improperly we think, that appellant’s right to recover depended upon D.C.Code § 28-2504 (1967), and cited United States Fidelity & Guar. Co. v. Klein, 60 U.S.App.D.C. 354, 54 F.2d 828 (1931), cert. denied, 285 U.S. 544, 52 S.Ct. 394, 76 L.Ed. 936 (1932).
      In the Klein case, however, there was no basis for recovery other than the cause of action asserted under § 28-2504. That is, there was no question that both the sale trustee and his surety had been fully and properly discharged at the time of the transfer; the testamentary trustee to whom the transfer was made took full possession of the sale proceeds in his fiduciary capacity; all conditions of the discharge order were fully performed by the sale trustee; and there was no allegation that the sale trustee had in any way deviated from or breached the terms of his undertaking prior to his discharge. As a result, disallowance of the purported statutory claim left plaintiff with no cause of action against the surety.
      In the case at bar, as in Klein, no cause of action lies under § 28-2504. But appellant also contends that there were misappropriations of funds prior to the discharge proceeding. These misappropriations were unauthorized withdrawals of trust funds and constitute “prior defaults” which give rise to an independent cause of action on the surety bond, and for which the surety is liable.

      . The statements were relatively brief and did not relate to many of the facts herein set forth and considered on this appeal.

      . It appears that $12,609.61, the proceeds of the real estate sale, plus $126.09 interest to October 1, 1968 was deposited in the "Washington, D.O. trust account. Mrs. Duvall’s misappropriations apparently began with unauthorized withdrawals of $12,700, but it also appears that Mrs. Duvall made another deposit of $109.25 on May 29, 1969, and on July 1, 1969 made another withdrawal of $127.17.