text:
    Charles R. RAMBO, Plaintiff-Appellee, v. UNITED STATES of America and District Director of Internal Revenue for the District of Kentucky, Defendants-Appellants.
    Nos. 73-1131, 73-1413.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 17, 1973.
    Decided Feb. 12, 1974.
    Richard Farber, Tax Div., Dept. of Justice, for defendants-appellants; Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Crombie J. D. Garrett, Attys., Tax Div., Dept. of Justice, Washington, D. C., on brief; George J. Long, U. S. Atty., of counsel.
    David W. Gray, Louisville, Ky., for plaintiff-appellee; Michael J. Clare, Louisville, Ky., on brief.
    Before CELEBREZZE and MILLER, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
   WILLIAM E. MILLER, Circuit Judge.

These consolidated appeals raise important and difficult questions concerning the statutory authority of the Internal Revenue Service to collect “jeopardy assessments” and the procedural safeguards available to the taxpayer.

Charles Rambo, the taxpayer-appellee, was arrested on April 6, 1972, for reckless driving. A search of his ear and person revealed a supply of drugs and $2,200 in cash. The arrest resulted in the revocation of the appellee’s probation arising from previous charges, for which he is currently serving a sentence in the Jefferson County Jail. However, he was not prosecuted on any charge relating to the arrest of April 6.

On April 24, 1972, the District Director of Internal Revenue for the District of Kentucky wrote appellee, advising him that pursuant to Section 6851 of the Internal Revenue Code, his taxable period beginning January 1, 1972 was terminated as of April 24, 1972. An income tax of $28,446.88 was said to be immediately due and payable. The next day, on April 25, 1972, an assessment for income taxes in the above amount was made, and a notice of a federal tax lien was filed with the Jefferson County Court in Louisville. Simultaneously, notices of levy were served on appellee and his bank. Three automobiles were taken from the taxpayer while the bank turned over to the I.R.S. appellee’s account, amounting to $12,661.25. Public sale of the automobiles was scheduled for September 14, 1972.

On August 14, 1972, Rambo filed in the United States District Court a complaint seeking both a preliminary and permanent injunction prohibiting the sale of his cars and requiring that the seized property be returned to him. The court enjoined the public sale, and an interlocutory appeal was taken to this Court. Before the appeal could be heard, the district court entered summary judgment for appellee — thereby ordering the government to return all property and to refrain from further attempts to collect the tax assessed for the terminated period. Furthermore, the court ordered the I.R.S. to release all encumbrances from the taxpayer’s property. However, during the pendency of this appeal that order was stayed, except that one automobile was released for the use of Rambo’s wife.

Because the issues in this case involve the interpretation and inter-relationship of a substantial number of sections of the Internal Revenue Code, we reproduce the principal ones in the appendix to this opinion rather than in footnotes.

The I.R.S. decided that Rambo’s tax was “in jeopardy” within the ambit of Sec. 6851. This section authorizes the Secretary to terminate the taxable period of a taxpayer and to demand payment of the tax due for such terminated period upon finding that the taxpayer designs to do “any other act tending to prejudice or to render wholly or partly ineffectual” collection of the tax for the current year. Acting pursuant to Sec. 6851, the Service terminated Rambo’s taxable year; determined a tax for the year to date and proceeded to assess the tax. The Service concedes that Sec. 6851 does not contain any independent authority for making an assessment; instead, as authority for making the assessment it relies on the general provisions of Sec. 6201. That section generally authorizes the I.R.S. to make assessments of taxes but it makes no reference to a “deficiency notice.” Once an assessment is made under that section, the I.R.S. could use its extensive statutory power to levy on the taxpayer’s property and hold a public sale to satisfy the amount of the tax. See Sec. 6331 et seq. The taxpayer normally would have no recourse to the courts to halt these proceedings because of the provision in the code which generally prohibits suits that seek to restrain the assessment or collection of any tax. Sec. 7421(a).

The taxpayer’s only remedy would be to pay the tax; file a return at the end of the taxable year; then bring an action for a refund. See Secs. 6511, 6532 and 7422.

In the present case the district court rejected the position of the I.R.S. that the assessment was made under See. 6201 primarily because it found that the statutory authority for assessing a tax, which has been determined under Sec. 6851, is conferred by Sec. 6861, not Sec. 6201. Section 6861, which appears in the code under the heading, “Jeopardy Assessment,” provides that once the I. R.S. determines that the collection of a “deficiency” may be jeopardized by delay, it can immediately assess the deficiency and demand payment thereof. In so doing, it must give a deficiency notice to the taxpayer within 60 days after the assessment. This is in contrast to the general “deficiency notice” provision of See. 6212 which authorizes the secretary upon determination of a deficiency to send notice to the taxpayer of such deficiency without specifying the time within which the notice must be given. If the Service fails to issue a deficiency notice under Sec. 6861 after declaring a deficiency, within 60 days of the assessment, the taxpayer may seek an injunction against the collection of the tax and invalidation of any prior levy. Schreck v. United States, 301 F.Supp. 1265 (D.Md.1969); Lisner v. McCanless, 356 F. Supp. 398 (D.Ariz.1973). Cf. United States v. Ball, 326 F.2d 898, 902, 903 (4th Cir. 1964). That is exactly what happened in this case. Since the Internal Revenue Service did not send Rambo a deficiency notice, and since the district court held that authority for assessment was derived from Sec. 6861, the court enjoined collection of the tax and ordered his property returned.

The issuance of a deficiency notice is of substantial importance to the taxpayer. The receipt of the notice is a jurisdictional prerequisite to litigation in the Tax Court, 26 U.S.C. Sec. 6213(a); Mason v. Commissioner of Internal Revenue, 210 F.2d 388 (5th Cir. 1954), to contest the validity of the tax before it is paid. Otherwise, he must pay the full tax and then bring suit in a federal district court for refund. Flora v. United States, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960) [decision on rehearing of 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958)]. Also, while awaiting the decision of the Tax Court, the jeopardy taxpayer may stall collection proceedings if he is able to post an adequate bond, Sec. 6863(a). If he cannot, the seized property cannot be sold absent certain limited exigent circumstances. Sec. 6863(b)(3)(A). The I.R.S. may abate the jeopardy assessment if it finds that jeopardy does not exist. Sec. 6861(g). Although the I.R.S. still has extensive power under the jeopardy assessment provisions of Sec. 6861, such as the power to make an assessment and to seize but not to sell property, the limited procedural safeguards to the taxpayer under that section are of unquestionable value to him.

The government argues that the crucial flaw in the opinion of the district court is that See. 6861 is only for the jeopardy assessment of a deficiency as defined in Sec. 6211. That section reads in pertinent part:

§ 6211. Definition of a deficiency, (a) In general.
For purposes of this title in the case of income, estate gift, and excise taxes, imposed by subtitles A and B, and chapter 42, the term “deficiency” means the amount by which the tax imposed by subtitle A or B or chapter 42 exceeds the excess of—
(1) the sum of
(A) the amount shown as the tax by the taxpayer upon his return, if a return was made by the taxpayer and an amount was shown as the tax by the taxpayer thereon, plus
(B) the amounts previously assessed (or collected without assessment) as a deficiency, over—
(2) the amount of rebates, as defined in subsection (b)(2), made.

Therefore, the Service concludes that a deficiency can only exist after a taxpayer files a return showing a lesser amount of tax than is due or until the time for filing a return is past, and the taxpayer has not complied. On the other hand, Sec. 6851 says nothing about a deficiency, but merely that a taxable year may be terminated early whenever collection of the tax would be prejudiced or rendered ineffectual. By definition, the government argues, termination under Sec. 6851 cannot result in a deficiency because the taxable year is not at an end, and a return has not been filed. Instead of a deficiency, a Sec. 6851 termination results in a “provisional statement of the amount which must be presently paid as a protection against the impossibility of collection.” Ludwig Littauer & Co. v. Commissioner, 37 B.T. A. 840, 842 (1938).

Support of the position of the Internal Revenue Service comes also from a decision of the Tax Court and two recent Circuit Court decisions. In Puritan Church — Church of America v. Commissioner, 10 TCM 485 (1951), aff’d per curiam on other grounds, 93 U.S.App.D.C. 129, 209 F.2d 306 (1953), cert. denied 347 U.S. 975, 74 S.Ct. 787, 98 L.Ed. 1115 (1953), the Tax Court implied that no deficiency notice was required when a tax year was terminated under the predecessor of Sec. 6851. Interestingly, the court seemed to believe that the assessment authority came from Sec. 6851 itself — a position which the I.R.S. now concedes is incorrect. Similarly, in Williamson v. United States, 31 A.F.T.R.2d 800 (7th Cir. 1973), the court held that no deficiency notice need be sent under Sec. 6851. The court appeared erroneously to have relied on Sec. 6851 for the assessment authority. The tax due after the taxable year was terminated, pursuant to the statute, was characterized as follows;

We believe, however, that the deficiency notice requirement cannot be read into § 6851 because the assessment made under that section is not a deficiency as defined in § 6211. That section defines a deficiency as the amount by which the “tax imposed” exceeds the amount shown on the tax return. The assessment in this case was not an imposed tax, but merely an amount which the I.R.S. believed justified the termination of the taxable year. Since no return had been filed at the date of the assessment, no deficiency was determinable. Ludwig Littauer & Co., Inc. v. Com’r of Int. Rev., 37 B.T.A. 840, 843 (1938).

Relying on this language, the Second Circuit also held that a deficiency was not created by the termination of the taxable year under Sec. 6851. Irving v. Gray, 479 F.2d 20 (2nd Cir. 1973). However, apparently accepting the new position of the I.R.S., the court found that authority for short year assessments came under Sec. 6201, not Sec. 6861.

In the current case the district court recognized these decisions but was persuaded by the reasoning of those courts which have found that the only assessment authority for Sec. 6851 is under Sec. 6861. It therefore was held that a deficiency notice was necessary as Sec. 6861 clearly mandates. Schreck v. United States, 301 F.Supp. 1265 (D.Md. 1969); Clark v. Campbell, 341 F.Supp. 171 (N.D.Tex.1972); Lisner v. McCanless, 356 F.Supp. 398 (D.Ariz.1973). We find this reasoning to be persuasive.

In order to approve this result it is critical to find that the district court was correct in concluding that the short year tax declared under Sec. 6851 was a “deficiency” within the meaning of 6211 and 6861. Under Sec. 6211(a), as we .have seen, a “deficiency” is the amount by which the tax imposed exceeds the amount shown as the tax by the taxpayer on his return. Sec. 443(a)(3) of the 1954 code requires a return to be filed when the secretary terminates the taxable year under Sec. 6851. No such return was filed by the taxpayer in this case. And by its own regulations the Service has provided in case of a terminated year that if no return is filed or if a return is filed which lists no tax, “the deficiency is the amount of the tax imposed by subtitle A, chapter 11, or chapter 12.” Revenue Regulations Sec. 301.6211-1 (a). The letter which Rambo received from the District Director of the Internal Revenue Service stated: “I declare the taxable period 1-1-72 thru 4-24-72 immediately terminated and the income tax for such period immediately due and payable.” The letter went on to state that any part of the $28,446.88 which was unpaid would be immediately assessed against Rambo, as it in fact was. Clearly, the I.R.S. has imposed a tax and just as clearly the taxpayer has denied that he owes that amount by refusing either to pay the imposed tax or to file a return. Consequently, the tax imposed, $28,446.88, became the deficiency. See Schreck v. United States, supra. The statute itself in no way limits the definition of a deficiency to a determination made only at the end of the taxable year.

Sections 6851 and 6861 both appear in Chapter 70, Subchapter A of the Internal Revenue Code under the heading “Jeopardy.” Since Sec. 6851 does not authorize assessment for the tax which is found due for the terminated year, it is reasonable that Congress intended that the next succeeding section in the code (Sec. 6861), entitled “Jeopardy Assessments,” should provide that authority.

This reading of the code is further supported by its legislative history. Section 250(g) of the Revenue Act of 1918, the forerunner of § 6851, authorized the I.R.S. to terminate the taxpayer’s taxable year; determine the taxes owed and declare them due and payable. Assessment authority for all taxes, with or without jeopardy, was contained in § 1317. Moreover, all taxpayers were required first to pay a disputed tax and later bring an action for a refund. In succeeding revenue acts — first in 1924, then in 1926 — the Congress sought to mitigate the harshness of the rule which required the taxpayer to pay the tax before he could have a hearing. See H.R. Rep.No.179, 68th Cong., 1st Sess. 7 (1924). Consequently, Congress established the Board of Tax Appeals, later the Tax Court, as a non-prepayment forum. Under the 1926 Revenue Act, the I.R.S. was given the authority to make jeopardy assessments; but it was required to give notice of the deficiency within 60 days after the assessment.

We interpret this development of the tax law as a movement away from the harsh, and often unjust, effects of a code which required the taxpayer to pay his tax before he could have a judicial hearing on the amount properly due. The nonjeopardy taxpayer was protected from assessment while his case was pending in the tax court. The jeopardy taxpayer, although his tax could be assessed, was guaranteed certain procedural safeguards — for example, as a general rule his property could not be sold during the pendency of the proceeding before the tax court. It is inconceivable to us that Congress could have intended to have given this minimal procedural protection to jeopardy taxpayers against whom a deficiency is assessed at the end of the taxable year but not to taxpayers whose year is terminated under Sec. 6851. Instead, we find that the procedural requirements of Secs. 6861 and 6863 are meant for “jeopardy assessments,” including those made following termination of the tax year under Sec. 6851.

Were the code to be interpreted as the I.R.S. suggests, significant constitutional problems would arise. A system that permits the government to seize and sell property without affording the taxpayer any opportunity for a judicial determination of the validity of the tax prior to payment could very well raise a serious question of a denial to the taxpayer of his property without due process of law. Cf. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 1999, 32 L.Ed.2d 556 (1972), and Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). Interestingly, in Fuentes the Court recognized that there are “ ‘extraordinary situations’ that justify postponing notice and opportunity for a hearing.” 407 U.S. at 90, 92 S.Ct. at 1999. These situations all involve “[an] important governmental or general public interest” coupled with a “special need for very prompt action.” Id. at 92, 92 S.Ct. at 2000. In support the Court cited Phillips v. Commissioner, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289 (1931), a case in which the taxpayer challenged the collection of a deficiency that had been made under Sec. 280(a)(1) of the Revenue Code of 1926. The taxpayer argued that due process was violated because the taxes would be collected before he could have the proper amount determined by a federal district court. Justice Brandéis, speaking for the Court, disagreed:

The procedure provided in Section 280(a)(1) satisfies the requirements of due process because two alternate methods of eventual judicial review are available to the transferee. He may contest his liability by bringing an action, either against the United States or the collector, to recover the amount paid. ... Or the transferee may avail himself of the provisions for immediate redetermination of the liability by the Board of Tax Appeals. . . . 283 U.S. at 597-598, 51 S.Ct. at 612.

Since we conclude that the taxpayer has been denied the procedural safeguards set forth herein, including access to the tax court for redetermination of the tax imposed, we affirm the judgment of the district court.

Affirmed.

APPENDIX

Internal Revenue Code of 1954 (26 U.S.C.):

SEC. 6201. ASSESSMENT AUTHORITY.

(a) Authority of Secretary or Delegate. — The Secretary or his delegate is authorized and required to make the inquiries, determinations, and assessments of all taxes (including interest, additional amounts, additions to the tax, and assessable penalties) imposed by this title, or accruing and under any former internal revenue law, which have not been duly paid by stamp at the time and in the manner provided by law. Such authority shall extend to and include the following:

(1) Taxes shown on return. — The Secretary or his delegate shall assess all taxes determined by the taxpayer or by the Secretary or his delegate as to which returns or lists are made under this title.
(2) Unpaid taxes payable by stamp.—
(A) Omitted stamps. — Whenever any article upon which a tax is required to be paid by means of a stamp is sold or removed for sale or use by the manufacturer thereof or whenever any transaction or act upon which a tax is required to be paid by means of a stamp occurs without the use of the proper stamp, it shall be the duty of the Secretary or his delegate, upon such information as he can obtain, to estimate the amount of tax which has been omitted to be paid and to make assessment therefor upon the person or persons the Secretary or his delegate determines to be liable for such tax.
(B) Check or money order not duly paid. — In any case in which a check or money order received under authority of section 6311 as payment for stamps is not duly paid, the unpaid amount may be immediately assessed as if it were a tax imposed by this title, due at the time of such receipt, from the person who tendered such check or money order.
(3) Erroneous income tax prepayment credits. — If on any return or claim for refund of income taxes under subtitle A there is an overstatement of the credit for income tax withheld at the source, or of the amount paid as estimated income tax, the amount so overstated which is allowed against the tax shown on the return or which is allowed as a credit or refund may be assessed by the Secretary or his delegate in the same manner as in the case of a mathematical error appearing upon the return.

(b) [as amended by Sec. 2(b), Act of August 7, 1969, P.L. 91-53, 83 Stat. 91] Amount Not To Be Assessed.—

(1) Estimated income tax. — No unpaid amount of estimated tax under section 6153 or 6154 shall be assessed.
* * * * * *

(d) [as amended by Sec. 101 (j) (38), Tax Reform Act of 1969, P.L. 91-172, 83 Stat. 487] Deficiency Proceedings.—

For special rules applicable to deficiencies of income, estate, gift, and chapter 42 taxes, see subchapter B.

SEC. 6211. DEFINITION OF A DEFICIENCY.

(a) [as amended by Sec. 101(f), Tax Reform Act of 1969, supra] In General. —For purposes of this title in the case of income, estate, gift, and excise taxes, imposed by subtitles A and B, and chapter 42, the term “deficiency” means the amount by which the tax imposed by subtitle A or B or chapter 42 exceeds the excess of—

(1) the sum of
(A) the amount shown as the tax by the taxpayer upon his return, if a return was made by the taxpayer and an amount was shown as the tax by the taxpayer thereon, plus
(B) the amounts previously assessed (or collected without assessment) as a deficiency, over—
(2) the amount of rebates, as defined in subsection (b) (2), made.
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SEC. 6212. NOTICE OF DEFICIENCY.

(a) [as amended by Sec. 89(b), Technical Amendments Act of 1958, P.L. 85-866, 72 Stat. 1606, and Sec. 101(j)(40), Tax Reform Act of 1969, supra] In General. — If the Secretary or his delegate determines that there is a deficiency in respect of any tax imposed by subtitle A or B or chapter 42, he is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail.

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(c) Further Deficiency Letters Restricted.—

(1) [as amended by See. 101(f), Tax Reform Act of 1969, supra, and Sec. 102(d), Excise, Estate and Gift Tax Adjustment Act of 1970, P.L. 91-614, 84 Stat. 1836] General rule. —If the Secretary or his delegate has mailed to the taxpayer a notice of deficiency as provided in subsection (a), and the taxpayer files a petition with the Tax Court within the time prescribed in section 6213(a), the Secretary or his delegate shall have no right to determine any additional deficiency of income tax for the same taxable year, of gift tax for the same calendar quarter, of estate tax in respect of the taxable estate of the same decedent, of section 4940 tax for the same taxable year, or of chapter 42 tax (other than under section 4940) with respect to any act (or failure to act) to which such petition relates except in the case of fraud, and except as provided in section 6214(a) (relating to assertion of greater deficiencies before the Tax Court), in section 6213(b)(1) (relating to mathematical errors), or in section 6861(e) (relating to the making of jeopardy assessments).
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SEC. 6213. RESTRICTIONS APPLICABLE TO DEFICIENCIES; PETITION TO TAX COURT.

(a) [as amended by Sec. 101 (j)(42), Tax Reform Act of 1969, supra] Time for Filing Petition and Restriction on Assessment. — Within 90 days, or 150 days if the notice is addressed to a person outside the States of the Union and the District of Columbia, after the notice of deficiency authorized in section 6212 is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day), the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency. Except as otherwise provided in section 6861 no assessment of a deficiency in respect of any tax imposed by subtitle A or B or chapter 42 and no levy or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer, nor until the expiration of such 90-day or 150-day period, as the case may be, nor, if a petition has been filed with the Tax Court, until the decision of the Tax Court has become final. Notwithstanding the provisions of section 7421(a), the making of such assessment or the beginning of such proceeding or levy during the time such prohibition is in force may be enjoined by a proceeding in the proper court.

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§ 6331. Levy and distraint.

(a) Authority of Secretary or delegate.

If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary or his delegate to collect such tax (and such further sum as shall be sufficient to cover the expenses of the levy) by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax. Levy may be made upon the accrued salary or wages of any officer, employee, or elected official, of the United States, the District of Columbia, or any agency or instrumentality of the United States or the District of Columbia, by serving a notice of levy on the employer (as defined in section 3401(d)) of such officer, employee, or elected official. If the Secretary or his delegate makes a finding that the collection of such tax is in jeopardy, notice and demand for immediate payment of such tax may be made by the Secretary or his delegate and, upon failure or refusal to pay such tax, collection thereof by levy shall be lawful without regard to the 10-day period provided in this section.

(b) Seizure and sale of property.

The term “levy” as used in this title includes the power of distraint and seizure by any means. A levy shall extend only to property possessed and obligations existing at the time thereof. In any ease in which the Secretary or his delegate may levy upon property or rights to property, he may seize and sell such property or rights to property (whether real or personal, tangible or intangible). * * *

§ 6332. Surrender of property subject to levy.

(a) Requirement.

Except as otherwise provided in subsection (b), any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made shall, upon demand of the Secretary or his delegate, surrender such property or rights (or discharge such obligation) to the Secretary or his delegate, except such part of the property or rights as is, at the time of such demand, subject to an attachment or execution under any judicial process. * * *

§ 6335. Sale of seized property.

(a) Notice of seizure.

As soon as practicable after seizure of property, notice in writing shall be given by the Secretary or his delegate to the owner of the property (or in the case of personal property, the possessor thereof), or shall be left at his usual place of abode or business if he has such within the internal revenue district where the seizure is made. If the owner cannot be readily located, or has no dwelling or place of business within such district, the notice may be mailed to his last known address. Such notice shall specify the. sum demanded and shall contain, in the case of personal property, an account of the property seized and, in the case of real property, a description with reasonable certainty of the property seized.

(b) Notice of sale.

The Secretary or his delegate shall as soon as practicable after the seizure of the property give notice to the owner, in the manner prescribed in subsection (a), and shall cause a notification to be published in some newspaper published or generally circulated within the county wherein such seizure is made, or if there be no newspaper published or generally circulated in such county, shall post such notice at the post office nearest the place where the seizure is made, and in not less than two other public places. Such notice shall specify the property to be sold, and the time, place, manner, and conditions of the sale thereof. Whenever level is made without regard to the 10-day period provided in section 6331(a), public notice of sale of the property seized shall not be made within such 10-day period unless section — 36 (relating to sale of perishable goods) is applicable.

* * * * * *

§ 6511. Limitations on credit or refund.

(a) Period of limitation on filing claim.

Claim for credit or refund of an overpayment of any tax imposed by this title in respect of which tax the taxpayer is required to file a return shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires.the later, or if no return was filed by the taxpayer, within 2 years from the time the tax was paid. Claim for credit or refund of an overpayment of any tax imposed by this title which is required to be paid by means of a stamp shall be filed by the taxpayer within 3 years from the time the tax was paid.

•X- * * * * *

§ 6532. Periods of limitation on suits,

(a) Suits by taxpayers for refund.

(1) General rule.

No suit or proceeding under section 7422(a) for the recovery of any internal revenue tax, penalty, or other sum, shall be begun before the expiration of 6 months from the date of filing the claim required under such section unless the Secretary or his delegate renders a decision thereon within that time, nor after the expiration of 2 years from the date of mailing by certified mail or registered mail by the Secretary or his delegate to the taxpayer of a notice of the disallowance of the part of the claim to which the suit or proceeding relates.

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SEC. 6851. TERMINATION OF TAXABLE YEAR

(a) Income Tax in Jeopardy.—

(1) In General. — If the Secretary or his delegate finds that a taxpayer designs quickly to depart from the United States or to remove his property therefrom, or to conceal himself or his property therein, or to do any other act tending to prejudice or to render wholly or partly ineffectual proceedings to collect the income tax for the current or the preceding taxable year unless such proceedings be brought without delay, the Secretary or his delegate shall declare the taxable .period for such taxpayer immediately terminated, and shall cause notice of such finding and declaration to be given the taxpayer, together with a demand for immediate payment of the tax for the taxable period so declared terminated and of the tax for the preceding taxable year or so much of said tax as is unpaid, whether or not the time otherwise allowed by law for filing return and paying the tax has expired; and such taxes shall thereupon become immediately due and payable. In any proceeding in court brought to enforce payment of taxes made due and payable by virtue of the provisions of this section, the finding of the Secretary or his delegate, made as herein provided, whether made after notice to the taxpayer or not, shall be for all purposes presumptive evidence of jeopardy.
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(b) Reopening of Taxable Period.— Notwithstanding the termination of the taxable period of the taxpayer by the Secretary or his delegate, as provided in subsection (a), the Secretary or his delegate may reopen such taxable period each time the taxpayer is found by the Secretary or his delegate to have received income, within the current taxable year, since a termination of the period under subsection (a). A taxable period so terminated by the Secretary or his delegate may be reopened by the taxpayer (other than a nonresident alien) if he files with the Secretary or his delegate a true and accurate return of the items of gross income and of the deductions and credits allowed under this title for such taxable period, together with such other information as the Secretary or his delegate may by regulations prescribe. If the taxpayer is a nonresident alien the taxable period so terminated may be reopened by him if he files, or causes to be filed, with the Secretary or his delegate a true and accurate return of his total income derived from all sources within the United States, in the manner prescribed in this title.

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SEC. 6861. JEOPARDY ASSESSMENTS OF INCOME, ESTATE, AND GIFT TAXES.

(a) Authority for Making. — If the Secretary or his delegate believes that the assessment or collection of a deficiency, as defined in section 6211, will be jeopardized by delay, he shall, notwithstanding the provisions of section 6213(a), immediately assess such deficiency (together with all interest, additional amounts, and additions to the tax provided for by law), and notice and demand shall be made by the Secretary or his delegate for the payment thereof.

(b) Deficiency Letters. — If the jeopardy assessment is made before any notice in respect of the tax to which the jeopardy assessment relates has been mailed under section 6212(a), then the Secretary or his delegate shall mail a notice under such subsection within 60 days after the making of the assessment.

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(g) Abatement if jeopardy does not exist.

The Secretary or his delegate may abate the jeopardy assessment if he finds that jeopardy does not exist. Such abatement may not be made after a decision of the Tax Court in respect of the deficiency has been rendered or, if no petition is filed with the Tax Court, after the expiration of the period for filing such petition. The period of limitation on the making of assessments and levy or a proceeding in court for collection, in respect of any deficiency, shall be determined as if the jeopardy assessment so abated had not been made, except that the running of such period shall in any event be suspended for the period from the date of such jeopardy assessment until the expiration of the 10th day after the day on which such jeopardy assessment is abated.

§ 6863. Stay of collection of jeopardy assessments.

(a) Bond to stay collection.

When a jeopardy assessment has been made under section 6861 or 6862, the collection of the whole or any amount of such assessment may be stayed by filing with the Secretary or his delegate, within such time as may be fixed by regulations prescribed by the Secretary or his delegate, a bond in an amount equal to the amount as to which the stay is desired, conditioned upon the payment of the amount (together with interest thereon) the collection of which is stayed, at the time at which, but for the making of the jeopardy assessment, such amount would be due. Upon the filing of the bond the collection of so much of the amount assessed as is covered by the bond shall be stayed. The taxpayer shall have the right to waive such stay at any time in respect of the whole or any part of the amount covered by the bond, and if as a result of such waiver any part of the amount covered by the bond is paid, then the bond shall, at the request of the taxpayer, be proportionately reduced. If any portion of the jeopardy assessment is abated, the bond shall, at the request of the taxpayer, be proportionately reduced.

(b) Further conditions in case of income, estate, or gift taxes

In the case of taxes subject to the jurisdiction of the Tax Court—

(1) Prior to petition to Tax Court.
If the bond is given before the taxpayer has filed his petition under section 6213(a), the bond shall contain a further condition that if a petition is not filed within the period provided in such section, then the amount, the collection of which is stayed by the bond, will be paid on notice and demand at any time after the expiration of such period, together with interest thereon from the date of the jeopardy notice and demand to the date of notice and demand under this paragraph.
(2) Effect of Tax Court decision.
The bond shall be conditioned upon the payment of so much of such assessment (collection of which is stayed by the bond) as is not abated by a decision of the Tax Court which has become final. If the Tax Court determines that the amount assessed is greater than the amount which should have been assessed, then when the decision of the Tax Court is rendered the bond shall, at the request of the taxpayer, be proportionately reduced.
(3) Stay of sale of seized property pending Tax Court decision.
(A) General rule.
Where, notwithstanding the provisions of section 6213(a), a jeopardy assessment has been made under section 6861 the property seized for the collection of the tax shall not be sold—
(i) if section 6861(b) is applicable, prior to the issuance of the notice of deficiency and the expiration of the time provided in section 6213(a) for filing petition with the Tax Court, and
(ii) if petition is filed with the Tax Court (whether before or after t'he making of such jeopardy assessment under section 6861), prior to the expiration of the period during which the assessment of the deficiency would be prohibited if section 6861(a) were not applicable.
(B) Exceptions.
Such property may be sold if—
(i) the taxpayer consents to the sale,
(ii) the Secretary or his delegate determines that the expenses of conservation and maintenance will greatly reduce the net proceeds, or
(iii) the property is of the type described in section 6336.
(C) Applicability.
Subparagraphs (A) and (B) shall be applicable only with respect to a jeopardy assessment made on or after January 1, 1955, and shall apply with respect to taxes imposed by this title and with respect to taxes imposed by the Internal Revenue Code of 1939.

SEC. 7421. PROHIBITION OF SUITS TO RESTRAIN ASSESSMENT OR COLLECTION.

(a) [as amended by Sec. 110(c), Federal Tax Lien Act of 1966, P.L. 89-719, 80 Stat. 1125] Tax. — Except as provided in sections 6212(a) and (c), 6213(a), and 7426(a) and (b)(1), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.

******

§ 7422. Civil actions for refund.

(a) No suit prior to filing claim for refund.

No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary or his delegate, according to the provisions of law in that regard, and the regulations of the Secretary or his delegate established in pursuance thereof.

      . An assessment is an administrative determination that a certain amount is currently due and owing as a tax. It makes the taxpayer a debtor in much the same way as would a judgment. See Bull v. United States, 295 U.S. 247, 259-260, 55 S.Ct. 695, 79 L.Ed. 1421 (1935); Cohen v. Gross, 316 F.2d 521 (3rd Cir. 1963); Chommie, Federal Income Taxation, 650 (1968).

      . The Supreme Court has carved out a very limited judicial exception to § 7421(a). Enochs v. Williams Packing Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). Because of our decision we need not decide whether the facts of this case would be within this judicially-created exception.

      . Such a deficiency notice, as xiointed out below, is a jurisdictional xirerequisite to the right to x>etition the Tax Court for a redeter-mination of the tax.


source: Caselaw Access Project

author: MERRILL, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Armando Martinez VALENCIA, Defendant-Appellant.
    No. 73-1653.
    United States Court of Appeals, Ninth Circuit.
    Feb. 1, 1974.

      Leon Thikoll, Thikoll & Johnston, Tucson, Ariz. (argued), for defendant-appellant.
    William C. Smitherman, U. S. Atty., Daniel Knauss, Asst. U. S. Atty. (argued), Tucson, Ariz., for plaintiff-appellee.
    Before MERRILL and WALLACE, Circuit Judges, and CONTI, District Judge.

       Honorable Samuel Conti, United States District Judge for the Northern District of California, sitting by designation.

   OPINION

MERRILL, Circuit Judge:

Appellant has been convicted of importation of narcotics and of conspiracy to import narcotics. He has received consecutive sentences. The principal question upon appeal is whether the two offenses were identical, with the result that appellant has twice been placed in jeopardy, receiving consecutive sentences for identical offenses.

Count I of the indictment read:

“That on or about May 4, 1972, at the Port of Entry, Nogales, in the District of Arizona, ARMANDO MARTINEZ VALENCIA did knowingly and intentionally import into the United States from Mexico approximately five (5) ounces of a Schedule I. narcotic drug controlled substance, to-wit: heroin, in violation of Title 21, United States Code, Section 952(a).” Count III read:
“That on or about May 4, 1972, at Tucson, in the District of Arizona, and elsewhere, ARMANDO MARTINEZ VALENCIA, the defendant herein, Christine Lucille Spriggs and diverse other persons whose names are unknown to the Grand Jury, did wilfully and knowingly combine, conspire, confederate and agree together and with each other to import into the United States from Mexico approximately five (5) ounces of a Schedule I narcotic drug controlled substance, to-wit: heroin, in violation of Title 21, United States Code, Section 952(a), all in violation of Title 21, United States Code, Section 963.”

The facts as recited by appellant are as follows:

“It was the theory of the prosecution that Christine Spriggs conspired with VALENCIA in Tucson, Arizona, to illegally import into the United States a quantity of heroin. A motor vehicle was provided to Christine Spriggs by VALENCIA, and she was instructed that the heroin would be given to her in Nogales, Mexico, by VALENCIA; and she should then cross the border with that heroin and drive it up to Tucson. On May 4,1972, Miss Spriggs went to Nogales, Mexico, and in a bakery was handed a quantity of heroin by ARMANDO VALENCIA. She went to the port of entry and was subjected to a strip search, perhaps even amounting to a body cavity search, and the heroin was discovered. A few minutes later ARMANDO VALENCIA came through the port of entry and was detained as a suspect but then released. Customs Agent, Wayne Brown, after speaking with Christine Spriggs, determined that she had come down in a certain motor vehicle, obtained a description of that vehicle and caused it to be searched and registration documents in the name of VALENCIA were taken.
At some time after her arrest, Christine Spriggs told the United States customs agents that she had been working with ARMANDO VALENCIA and would testify against him if he were to be charged with the offense. ARMANDO VALENCIA was then arrested in Tucson, Arizona, and held for trial.”

It is conceded that appellant did not, by his own act, import narcotics under count I. His liability is founded on 18 U.S.C. § 2.

“(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”

Appellant contends that the substantive offense with which he was charged was one that cannot be effectuated without the concerted activity of two persons; that when such is the case those two persons cannot be charged, in addition to the substantive offense, with conspiracy for engaging in or having agreed to engage in the concerted activity.

The law, however, is otherwise. It may be conceded that the typical case under § 2 is one of knowing concert of action pursuant to agreement. However, it is not the only case. As to § 2(a), it is stated in Pereira v. United States, 347 U. S. 1, 11-12, 74 S.Ct. 358, 364, 98 L.Ed. 435 (1954):

“Aiding, abetting, and counseling are not terms which presuppose the existence of an agreement. Those terms have a broader application, making the defendant a principal when he consciously shares in a criminal act, regardless of the existence of a conspiracy. [Citation omitted.] Thus, the charge of conspiracy requires proof not essential to the convictions on the substantive offenses — proof of an agreement to commit an offense against the United States — and it cannot be said that the substantive offenses and the conspiracy are identical * * -X- »

As to § 2(b), it is clear that one can use an innocent pawn to cause an act to be done which, if performed by the principal, would be unlawful. Such was the ease in Pereira where the conspirators caused mailing to be done by a bank.

We conclude that the two offenses set forth in counts I and III of the indictment were not identical.

Other assignments of error are directed to judgment on count I.

Appellant moved to suppress the narcotics recovered in the search of Spriggs at the port of entry described by appellant in his factual statement as “a strip search, perhaps even amounting to a body cavity search.”

At that time count II of the indictment charged appellant with possession of narcotics with intent to distribute. At the hearing on appellant’s motion to suppress the Government dismissed this count. The District Court then denied the motion on the ground that upon the remaining counts appellant lacked standing to object to the search.

This was not error. Possession is not an element of the offenses charged in counts I or III, and denial of the motion for want of standing was proper. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); United States v. Felix, 474 F.2d 610 (9th Cir. 1973); Diaz-Rosendo v. United States, 357 F.2d 124 (9th Cir. 1966).

Appellant protests the dismissal of the one count that would have afforded him standing to challenge the search. We find abuse of neither prosecutorial nor judicial discretion. Consent of appellant was not necessary since trial had not yet commenced. Fed.R.Crim.P. 48(a).

It was neither error nor abuse of discretion to admit testimony of Spriggs relating to evidence of previous narcotics transactions between her and appellant. Such evidence bore on issues of intent, knowledge, and scheme or plan relevant to a case founded on aiding and abetting or causing commission of the offense.

With reference to limiting instructions, no such charge to the jury was requested at the time of trial; nor was objection made to any omission. Accordingly we decline to entertain the issue.

Judgment affirmed.


author:
MANSFIELD, Circuit Judge:
      LUMBARD, Circuit Judge

text:
    George P. BAKER et al., Plaintiffs-Appellees, v. UNITED STATES STEEL CORPORATION et al., Defendants-Appellants, Edgewater Steel Company, Defendant.
    Nos. 386, 596 to 599, Dockets 73-2200, 73-2218, 73-2394 to 73-2396.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 13, 1973.
    Decided Feb. 25, 1974.

      Haliburton Fales, 2d, New York City (Thomas McGanney, J. Michael Brown, James Rossi, White & Case, New York City, of counsel), for defendant-appellant U.S. Steel Corp.
    Cravath, Swaine & Moore, New York City (Edward C. Perkins, Asst. Gen. Counsel, Bethlehem, Pa.), for defendant-appellant Bethlehem Steel Corp.
    Breed, Abbott & Morgan, New York City (Donald da Parma, New York City, of counsel), for defendant-appellant Armco Steel Corp.
    Morgan, Lewis & Bockius, Philadelphia, Pa. (Miles W. Kirkpatrick, Philadelphia, Pa., of counsel), for defendant-appellant Baldwin-Lima-Hamilton Corp.
    Milbank, Tweed, Hadley & McCloy, New York City (William E. Jackson, Briscoe R. Smith, New York City, of counsel), for defendant-appellant Abex Corp.
    Dennis N. Garvey, New Haven, Conn. (John E. Lee, Garvey, Colleran, Weiner & Levy, P. C., New Haven, Conn., of counsel), for plaintiffs-appellees.
    Before KAUFMAN, Chief Judge, and LUMBARD and MANSFIELD, Circuit Judges.
   MANSFIELD, Circuit Judge:

Appellants, who are the defendants in a rather hoary private civil antitrust action pending before Judge Newman in the District of Connecticut, seek review of an order entered by Judge Wyatt in the Southern District of New York transmitting to the Connecticut district court, at Judge Newman’s request, transcripts of testimony given years earlier before a grand jury in the New York district which had filed an indictment against the defendants based on the same charges later asserted in the civil suit.' Appellant United States Steel Corporation, alone, has also appealed from an order by Judge Newman, dated November 2, 1973, denying a stay of the release to plaintiffs of redacted portions of the transcripts, which appeal was consolidated with the pending appeal from Judge Wyatt’s order by an order of this Court dated November 9, 1973. Since we find these interlocutory orders to be non-appealable, we must dismiss these appeals.

On April 2, 1963, a grand jury sitting in the Southern District of New York filed an indictment against five manufacturers of steel railroad wheels charging a conspiracy in violation of § 1 of the Sherman Act, 15 U.S.C. § 1, to fix the price of railroad wheels at artificially high levels. The criminal case was terminated upon the court’s acceptance of nolo contendere pleas by the defendants. Approximately four years later the Trustees of the New Haven Railroad, to whose interest the Trustees of the Penn Central succeeded as plaintiffs, commenced a civil antitrust suit in the District of Connecticut which, tracking the allegations of the indictment, sought treble damages against the same five defendants for alleged overcharges for railroad wheels during the period from 1948 to 1967.

After the civil action, still in the discovery stage, had languished for another five years or so plaintiffs sought transcripts of testimony given by seven witnesses before the New York district’s grand jury, who at the time of testifying were officials of the defendants but are now deceased. Plaintiffs were unable to satisfy the test of showing a “particularized need for the testimony,” see Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959); United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958); In re Biaggi, 478 F.2d 489, 491 (2d Cir. 1973), their object being to use the transcripts as “leads” to evidence that might support their claims. However, they succeeded in persuading Judge Newman that the particularized need test should not be applied in this case since some of the considerations which underlay it no longer existed. As a result he ruled that “only a slight need for disclosure will be sufficient” and that the public interest against unwarranted disclosure could be protected by his examining the transcripts in camera and redacting those portions not relevant to the civil suit, including names and comments of grand jurors as well as parties and activities not charged in the criminal and civil proceedings.

Lacking custody or control over the New York district’s grand jury minutes, Judge Newman adopted a procedure suggested by the District of Columbia Court of Appeals in Gibson v. United States, 131 U.S.App.D.C. 143, 403 F.2d 166 (1968). As part of his decision he certified to the Southern District of New York that the grand jury testimony sought by plaintiffs should be reviewed by him in camera for disclosure in the Connecticut proceeding and requested the New York district court to forward the transcripts to him for that purpose. Counsel for the defendants then asked the Southern District of New York for a hearing on the request, which was held by Judge Wyatt on June 27, 1973. For that purpose a civil miscellaneous proceeding entitled “In the Matter of the Grand Jury Proceedings from the United States District Court, District of Connecticut; Re: George P. Baker, et al. v. United States Steel Corp., et al., Civil M 11-188” was established. Upon hearing the parties Judge Wyatt indicated that he did not propose to sit in review of Judge Newman’s decision and that for “reasons of judicial administration” he was inclined to grant Judge Newman’s request. On the following day Judge Wyatt filed a short memorandum decision granting the request.

Defendants immediately appealed from Judge Wyatt’s order to this court and on July 30, 1973, we denied their motion for a stay of that order. We also denied plaintiffs’ motion to dismiss the appeal without prejudice to its being reargued upon argument of the appeal. The transcripts of some 951 pages of grand jury testimony were then forwarded to Judge Newman who, after reviewing them in camera, sealed all or portions of 378 pages as involving parties or activities different from those alleged here, and held the balance of 573 pages for release to the plaintiffs. In an opinion filed November 2, 1973, Judge Newman denied defendants’ motion for a stay of the release of the minutes but in order to preserve the status quo so that a ruling could be obtained from this court he delayed release of the transcripts until November 12, 1973. On November 6, 1973, United States Steel Corporation filed a notice of appeal from Judge Newman’s November 2 ruling. On November 12, 1973, we directed that both appeals be heard together and stayed release of the transcripts pending our decision of the appeals.

Discussion

At the outset we face the question of whether either of the two orders, both of which deal with pretrial discovery, is appealable. Normally

“[ojrders dealing with discovery have been held interlocutory and therefore unappealable, when issued in the same jurisdiction as that of the main proceeding, e. g., Horvath v. Letay, 343 F.2d 463 (2 Cir. 1965); Cimijotti v. Paulsen, 323 F.2d 716 (8 Cir. 1963); Hoffa v. United States, 309 F.2d 680 (5 Cir.), cert. denied, 371 U.S. 878, 83 S.Ct. 147, 9 L.Ed.2d 115 (1962), or when, though issued in outside jurisdictions, they compelled disclosures, see, for example, Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); National Nut Co. of California v. Kelling Nut Co., 134 F.2d 532 (7 Cir. 1943); Korman v. Shull, 310 F.2d 373 (6 Cir. 1962); but also see Covey Oil Co. v. Continental Oil Co., 340 F.2d 993 (10 Cir), cert. denied, 380 U.S. 964, 85 S.Ct. 1110, 14 L.Ed.2d 155 (1965).” Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551, 554 (2d Cir. 1967).

Our strong policy against interlocutory appeals is based principally on the view that since review is ultimately available upon appeal from the final judgment in the action, unnecessary intermediate appeals only serve to delay trial and to provide an opportunity for harassment and abuse, burdening us with procedural issues at a time when our dockets are swamped. See American Express Warehousing, Ltd. v. Transamerica Insurance Co., 380 F.2d 277, 280 (2d Cir. 1967); United States v. Fried, 386 F.2d 691 (2d Cir. 1967). Indeed, appeal from Judge Newman’s order appears to be foreclosed by our decision in Atlantic City Electric Co. v. A. B. Chance Co., 313 F.2d 431 (2d Cir. 1963), where we applied the foregoing principles to deny both a petition for a writ of mandamus and for leave to appeal under 28 U.S.C. § 1292(b) from an order granting disclosure of grand jury minutes for use in a civil antitrust case, absent a showing that “there has been a manifest abuse of discretion.” 313 F.2d at 434.

Appellants virtually concede that, if their sole appeal were from Judge Newman’s order, dismissal would be mandated. However, relying principally upon In re Biaggi, 478 F.2d 489 (2d Cir. 1973); Gibson v. United States, 131 U.S.App.D.C. 143, 403 F.2d 166 (1968), and United States v. Byoir, 147 F.2d 336 (5th Cir. 1945), they contend that since Judge Wyatt’s order represented a complete disposition of. the only proceeding pending in the Southern District of New York it is final and appealable, and that since Judge Newman’s November 2d decision hinged upon Judge Wyatt’s order the two are inextricably intertwined and must be considered together.

Although we agree that both orders are “of a piece” we fail to perceive how this helps appellants or renders the orders any more final or appealable than if both had been entered in the same district court. Passing over the argument that, Judge Wyatt’s order having been carried out, an appeal from it may at this stage be moot, nothing about that order precludes an ultimate review of the basic underlying issue of whether discovery may be had of the grand jury testimony for use in this civil ease. We are not here dealing with an order of a different district court denying access to the transcripts, which conceivably could be directly or separately reviewable as a final order because it could not be reviewed in the case pending in the Connecticut district, see, e. g., Gibson v. United States, supra; Republic Gear Co. v. Borg-Warner Corp., supra, but with an order which, no matter how it was la-belled, was in effect ancillary to the main proceeding in the Connecticut district. See, e. g., National Nut Co. of California v. Kelling Nut Company, 134 F.2d 532 (7th Cir. 1943) (discovery order of Northern District of Illinois issued pursuant to order granted in main proceeding in Southern District of California held to be ancillary and not ap-pealable to the Seventh Circuit). Although appellants, in opposing Judge Newman’s request, sought to induce Judge Wyatt to review the merits and thus overrule Judge Newman’s June 12, 1973, decision, Judge Wyatt refused the invitation, stating:

“I feel that I ought to honor Judge Newman’s request because he has the civil action pending before him. He has gone into the matter and especially he having the responsibility for the trial of the civil action and having made his determination and having sent this to me, I do not think I ought to review.”

Thus Judge Wyatt’s order was in effect merely a mechanical step taken as a matter of “judicial administration” for the purpose of enabling the Connecticut district court to have the essential evidence before it so that the substantive issue could be resolved by it, subject to ultimate review upon entry of a final judgment on the merits in that proceeding. To permit a review of Judge Wyatt’s order without going into the merits of Judge Newman’s ruling would be meaningless, and to permit a review at this stage of the latter decision would concededly erode our strong policy against review of interlocutory orders, which we applied with respect to the very same issue in A. B. Chance Co., supra.

In re Biaggi, supra, cited by appellants, is clearly distinguishable for the reason that there the issue of whether the grand jury testimony should be released represented the only proceeding pending before any court and unless review were granted there could never have been any review of that issue. Here, in contrast, the propriety of releasing the grand jury transcripts may still be reviewed upon an appeal from the final judgment entered in the Connecticut district.

Although the appeals must be dismissed we recognize that if Judge Newman’s ruling ultimately should turn out to have been erroneous, considerable harm could result not only to appellants but also to the public interest in maintaining the confidentiality of grand jury proceedings. The minutes, once disclosed, could not be restored to a state of secrecy. While Judge Newman has given careful and conscientious thought to the issue before him and we do not at this stage suggest that there has been a manifest abuse of discretion, we take this occasion, as was recently done in Stans and Mitchell v. Gagliardi, 485 F.2d 1290 (2d Cir. 1973), to suggest that he reconsider his ruling in the light of certain facts brought to this court’s attention upon oral argument, which may not have been known to or considered by him.

It is undisputed that the grand jury transcripts, even assuming they contained evidence relevant to the issues to be tried, would be inadmissible at trial, since the witnesses are dead and of course no opportunity for cross-examination could have existed before the grand jury. At best, therefore, the minutes might be useful as providing “leads” to plaintiffs’ counsel that conceivably could direct them to competent evidence. However, plaintiffs delayed approximately four (4) years after the termination of the criminal proceeding before bringing the present civil suit and lingered still another five (5) years before seeking release of the grand jury minutes. Upon oral argument it appeared that not only were some of the seven witnesses (now deceased) available for deposing during part of that nine-year period but that plaintiffs have not yet exhausted the deposing of other live and available witnesses who might provide the “leads” plaintiffs seek to gain from disclosure of the grand jury testimony of the deceased officials.

Having in mind that disclosure of grand jury proceedings may substantially inhibit the deliberations of other grand juries and the willingness of witnesses to appear and testify freely in the future, we would not want our dismissal of these appeals to be construed as approval of the standard of “slight need” formulated by the district court. Perhaps some relaxation of the “particularized need” test might be justified under other circumstances. See, e. g., United States Industries, Inc. v. United States District Court, 345 F.2d 18, 21 (9th Cir. 1965). However, it seems to us that where plaintiffs’ predicament is to such a large extent of their own making and the use to which they could put the transcripts so speculative, greater weight should be given to the fact that, while some of the reasons for maintaining secrecy no longer exist in this case, other traditional reasons survive. As the Supreme Court stated in United States v. Procter & Gamble Co., supra, for instance, the institution of the grand jury “might suffer if those testifying today knew that . . . their testimony would be lifted tomorrow,” 356 U.S. at 682, 78 S.Ct. 986. For the most part the decisions relied upon by the district court in support of its new “slight need” standard reveal the existence of more specific, forceful and persuasive exigencies than those shown here, which were described by the courts in terms of compelling or particularized need. For instance, disclosure has been permitted to enable counsel to perform the vital function of cross-examining a witness who is obligated for other reasons to testify publicly with respect to the same matters which were the subject of his grand jury testimony. See, e. g., United States v. Youngblood, 379 F.2d 365 (2d Cir. 1967); Atlantic City Electrical Company v. A. B. Chance Company, supra; City of Philadelphia v. Westinghouse Electric Corp., 210 F.Supp. 486 (E.D.Pa.1962); Illinois v. Harper & Row Publishers, Inc., 50 F.R.D. 37 (N.D.Ill.1969). No such situation exists here. Nor do these authorities support the proposition that grand jury transcripts should be released to permit general discovery in a civil case, as distinguished from satisfying the compelling need for impeachment or refreshment of a witness’ recollection, without any showing that other possible sources have been exhausted or that the transcripts, if disclosed, would not be publicized.

Thus, while we are powerless to act at this stage, we are hopeful that the able district judge will reconsider his ruling in light of the thoughts here expressed.

LUMBARD, Circuit Judge

(dissenting) :

I dissent.

The majority agrees that it was improper for Judge Newman to order the release of secret grand jury testimony here simply on the showing of a “slight need” for such testimony by the plaintiffs. While the “particularized need” test of Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959) and United States v. Procter & Gamble Co., 356 U.S. 677, 682-683, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958), has been eroded to some extent, no previous decision of this court has endorsed a standard which would permit the breach of grand jury secrecy merely for general discovery purposes. Such a lenient standard would seriously jeopardize the effective functioning of grand juries. Ready access to grand jury minutes would likely have the effect in the future of substantially inhibiting the deliberations of the grand jury, and, perhaps more significant, the willingness of witnesses to appear and testify freely. With these consequences in- mind, this court has required a showing of exigent circumstances before overriding the strong policy in favor of grand jury confidentiality. See, e. g., United States v. Youngblood, 379 F.2d 365, 367 (2d Cir. 1967), Atlantic City Electrical Co. v. A. B. Chance Co., 313 F.2d 431, 434 (2d Cir. 1963).

The plaintiffs have failed to point to such exigent circumstances here in support of disclosure. They seek to use secret grand jury testimony to obtain “leads” to competent evidence that could then be used in this civil suit against the defendants. No showing, however, has been made that the usual channels of discovery have proved fruitless or have even been diligently pursued. As the majority notes, plaintiffs have yet to exhaust “the deposing of other live and available witnesses who might provide the ‘leads' plaintiffs seek to gain from disclosure of the grand jury testimony of the deceased officials.” Moreover, any difficulties plaintiffs may be encountering in obtaining evidence are largely traceable to their own lackadaisical prosecution of this civil suit. Plaintiffs procrastinated four years after the termination of the criminal action before initiating this civil proceeding. Even then, they waited another five years and seven months before requesting the release of grand jury minutes. During this period, many of the witnesses, whose grand jury testimony plaintiffs now seek to have released, were available for deposing.

Despite the absence of any justification for overriding the principle of grand jury secrecy under the circumstances of this case, the majority nevertheless argues that it is powerless to review at the present time the orders of Judges Newman and Wyatt. They assert that these orders are interlocutory in nature and therefore nonappealable. 28 U.S.C. §§ 1291, 1292. Yet, only last term, in In re Biaggi, 478 F.2d 489 (2d Cir. 1973), this court, confronted with a similar appeal from an order directing release of grand jury minutes, concluded that the order was “obviously appeala-ble,” id. at 491, and went on to decide the question of the release of grand jury testimony on the merits.

The majority attempts to distinguish Biaggi by noting that in that case, “unless review were granted there could never have been any review of [the disclosure] issue.” In contrast, it is blithely suggested that the orders here “may still be reviewed upon an appeal entered in the Connecticut district.” While this may be true in a technical sense, the release of the grand jury minutes here will, in practical terms, foreclose any later, meaningful appeal. A subsequent determination by this court that grand jury secrecy should have been preserved will not undo the damage to the principle of secrecy which will have been done by the dissemination of the testimony. Additionally, should this court conclude that disclosure was unwarranted, as would almost certainly be the case, it would face the hopeless task of determining the extent to which the leads from the grand jury testimony facilitated plaintiffs’ investigation and the production of evidence, and the degree to which this tainted evidence was responsible for the judgment in the district court on the merits of this antitrust suit. It is contrary to all the practical considerations, which must always play an important part in the judicial process, to suggest seriously that any court would ever reverse a judgment, years later and after lengthy proceedings, because grand jury minutes had been made available for discovery purpose.

These considerations should guide us in determining whether the orders here under review are presently appealable. The Supreme Court has made clear, Gillespie v. United States Steel, 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964), that “a decision ‘final’ within the meaning of § 1291 does not necessarily mean the last order possible to be made in a case” and that “the requirement of finality is to be given a ‘practical rather than a' technical construction.’ ” See also Cohen v. Beneficial Ind. Loan Corp., 337 U.S. 541, 545, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). In practical terms, nothing could be more final than the order requiring the release of the grand jury minutes here. Once disclosure takes place, there will be no way to restore the secrecy of the testimony, should it later be decided that there was no basis for its release. Preserving the secrecy of grand jury minutes, in accordance with Rule 6, Fed.R.Cr.P., is an important concern of the courts, and to the end that the administration of criminal justice is effectively and properly conducted, the courts of appeals should not hesitate to exercise their supervisory powers when a situation jeopardizing secrecy of grand jury minutes is brought to their attention.

Atlantic City Elec. Co. v. A. B. Chance Co., 313 F.2d 431 (2d Cir. 1963), on which the majority so heavily relies, involved a quite different situation than that presented here. In A. B. Chance Co., the grand jury testimony was to be released pursuant to a National Deposition Program designed to expedite, but not circumvent, discovery in the many electrical antitrust cases then pending. Id. at 433. Moreover, the trial judge had concluded “that many facts were disclosed in the grand jury testimony ‘of vital importance to essential issues in the . . . litigation which were not recalled or were denied by deponent in his deposition testimony,’ and that a ‘compelling need for disclosure . has been shown and that the ends of justice clearly require it.’ ” Id. at 434. The situation here is quite different as it is conceded that the minutes cannot be used as evidence in any way.

Moreover, the court in A. B. Chance was careful to distinguish the case before it from one involving “a manifest abuse of discretion.” In the latter situation, the court concluded, appellate review would be permissible. Since we all agree that there is no authority whatever supporting the trial court’s decision to release grand jury testimony, this case suggests the possibility of precisely the sort of manifest abuse of discretion permitting immediate review. Accordingly, I would allow the appeal from the orders of Judges Newman and Wyatt, reverse the orders to the extent that they permit any disclosure, and direct the return of the minutes to the Southern District of New York.

      . The civil suit also named as defendants two railroad wheel manufacturers not included in the prior criminal case.

      . The court took the view that secrecy was no longer required to prevent escape of persons who might be indicted, to avoid harassment of the grand jury, or to protect an innocent accused. However, public release of proceedings before a grand jury that has been discharged can still deter future grand jury deliberations and inhibit free and full revelation to grand juries in the future of all relevant evidence. A witness who knows that his testimony may eventually be made public may be more reluctant to furnish his best recollection of all facts known to him than one who is assured of secrecy. Similarly a grand jury aware of this risk may be more guarded or circumspect in its discussions and deliberations.

      . Undoubtedly because of A. B. Chance Co., supra, United States Steel Corporation bas not sought either a writ of mandamus or for leave to appeal from Judge Newman’s order pursuant to 28 U.S.C. § 1292(b).

      . Appellants argue that Judge Wyatt’s order is not moot because, should it be reversed, Judge Newman would be obligated to return the grand jury transcripts to the Southern District of New York without making them available to plaintiffs for discovery.


author: BELL, Circuit Judge:

text:
    Willie THOMPSON, Plaintiff-Appellant, v. UNITED STATES of America, FEDERAL PRISON INDUSTRIES, Defendant-Appellee.
    No. 73-2573
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 19, 1974.
    Willie Thompson, pro se.
    Ralph E. Harris, Asst. U. S. Atty., El Paso, Tex., for defendant-appellee.
    Before BELL, GODBOLD and GEE, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.

   BELL, Circuit Judge:

Willie Thompson, who is presently imprisoned in the Federal Correctional Institution at Anthony, New Mexico-Texas, filed an action, styled as a mandamus action under 28 U.S.C.A. § 1361, in the district court below seeking “back compensation” and industrial good time for an injury allegedly suffered during the course of his employment with the Federal Prison Industries. The district court granted the Government’s motion to dismiss. We vacate and remand with direction.

The district court dismissed on the ground that 28 C.F.R., § 301.1 et seq. requires an inmate to be within 30 days of release before claims for compensation can be filed and that appellant had not exhausted his administrative remedy in that the Inmate Compensation Board had not finally ruled on appellant’s claim for disability benefits. As will be seen, the district court did not reach the question whether appellant was due partial interim compensation under the applicable regulations.

Appellant alleged that in November, 1971 while confined in the United States Penitentiary at Leavenworth, Kansas, he injured his lower back in the process of moving racks of shoes, a job to which he had been assigned by the Federal Prison Industries. Appellant alleged that he reported the injury to his work supervisor. He was hospitalized in that institution, but later transferred to the Medical Center at Springfield, Missouri, where he underwent surgery for the removal of a ruptured disk in January or February, 1972. He further alleged that it is still necessary for him to use back and leg braces, as well as crutches to move about.

As a result of this allegedly work-related impairment, appellant sought wages and good time credits that he would have earned had the injury not occurred. He rests his claim on 28 C.F.R. § 301.10.

Appellant also argued that he had exhausted all administrative avenues for relief and attached to his answer to the Government’s motion to dismiss, copies of letters denying relief from the Safety Officer of the Springfield Penitentiary and the Director of the Bureau of Prisons.

By virtue of the enactment of 18 U.S.C.A. § 4126, the Federal Prison Industries is authorized to compensate inmates or their dependents for injuries sustained in the course of their employment with the corporation. These payments are to be made in accordance with the rules and regulations promulgated by the Attorney General of the United States. 28 C.F.R., § 301 et seq. sets forth the procedures and regulations governing inmate accident compensation. 28 C.F.R., § 301.5 includes the bar to processing a claim for accident compensation until 30 days before the disabled prisoner is to be released from custody. This remuneration is intended, like civilian workmen’s compensation laws, to supplement lost wage capacity when the prisoner returns to the economic community; and therefore cannot be practically determined until near the release date. Included among these regulations is a provision permitting payment of partial compensation to an inmate for lost wages resulting from his industries-related injury. It is evident by the terminology of the section itself that this kind of compensation is not only claimable, but also collectable, while the injured is still in custody. Cf. Granade v. United States, 2d Cir., 1966, 356 F.2d 837, 843.

The focus of appellant’s claim is for relief in terms of the partial interim 66% per cent compensation allowed under the regulation, note (4), and the good time credit, if any, which may flow from such relief. This narrow claim was not considered by the district court. Indeed, the government missed the import of the claim altogether in its answer. It will be necessary therefore to vacate and remand the case to the district court for consideration of the claim as filed rather than as it was construed by the government.

On remand the district court should have in mind that the matter of awarding compensation or lost pay under the statute and regulations is a matter for determination by the prison authorities, subject to the supervision of the Attorney General of the United States, 18 U.S.C.A. § 4128. The decision of the prison authorities, once made, is conclusive in the absence of a showing that the decision was arbitrary or capricious.

The federal prison system has now established a formal administrative remedy, effective April 1, 1974, for consideration of complaints such as that of appellant here. Bureau of Prisons policy statement 2001.6, dated February 14, 1974. (Copy appended hereto.) Because the case is to be reconsidered and because it is not clear that it has received the attention of the prison authorities as being based on the claim for partial compensation under 18 C.F.R., § 301.10, supra, the district court is directed to require that appellant exhaust his prison remedy but to retain jurisdiction of the case for a reasonable time while exhaustion is in process. Cf. Ross v. Henderson, 5 Cir., 1974, 491 F.2d 116.

Vacated and remanded with direction.

Appendix to follow.

APPENDIX

BUREAU OF PRISONS WASHINGTON, D. C. 20537

Policy Statement

SUBJECT: ADMINISTRATIVE REMEDY OF COMPLAINTS INITIATED BY OFFENDERS IN BUREAU OF PRISONS FACILITIES

2001.6

February 14, 1974

1. PURPOSE. This*Policy Statement establishes procedures by which offenders may seek formal review of complaints which relate to their imprisonment if informal procedures have not resolved the matter.

2. DISCUSSION. Most complaints can be resolved quickly and efficiently through direct contact with staff who are responsible in the particular area of the problem. This is the preferred course of action. Staff awareness of the importance of prompt attention and reply to these routine requests will minimize the use of formal complaint procedures.

A viable complaint procedure will serve the inmates, the administration, and the courts. It will provide the inmates with a systematic procedure whereby issues raised relating to their confinement, will receive attention and a written, signed response within a short period of time from the administration, including the Central Office, if appealed.

Such a procedure assists the administration by providing an additional vehicle for internal solution of problems at the level having most direct contact with the offender. It also provides a means for continuous review of administrative decisions and policies. Further it provides a written record in the event of subsequent judicial or administrative review. A viable Administrative Remedy Procedure should reduce the volume of suits filed in court and will develop an undisputed record of facts which will enable the courts to make more speedy dispositions.

If the inmate cannot resolve his complaint informally, and wishes to utilize this Administrative Remedy Procedure, he shall file his complaint with the Warden or his designee. If not satisfied with the institution's reply, he may appeal to the Director or his designee.

An inmate may, if he chooses, forward his complaint through the Prisoners' Mail Box or he may file his law suit directly with the appropriate court. However, courts frequently require evidence that administrative remedies have been exhausted before ruling on a complaint, and inmates should be so advised.

3. ACTION. The Chief Executive Officer of each Bureau of Prisons facility is responsible for the establishment and monitoring of an Administrative Remedy Procedure which is compatible with the provisions of this Policy Statement. The operation of the program will be the responsibility of the Warden or the Associate Warden. The investigation of complaints and the drafting of the reply should ordinarily be done by department heads or their representatives, subject to review of the Warden or Associate Warden. The final response shall be signed by both the department head or his representative, and the reviewer.

APPENDIX — Continued

Page 2 2001.6 2-14-74

4. PROCEDURES, All inmates should be advised of this Administrative Remedy Procedure. This can be accomplished, among other means, by posting the local Policy Statement on inmate bulletin boards, through inmate publications and by including it in the admission-orientation program. Where appropriate, the local Policy Statement should be translated into Spanish.

It is suggested that the forms be maintained by the Correctional Counselors wherever practicable. Experience has demonstrated that complaints can frequently be resolved by the counselor.

A record of filings under this procedure shall be maintained in a log and include at least the following information: Name, Number, Date of Receipt, Subject of Complaint, and Disposition. A simple key may also be included to show whether the disposition of the complaint was essentially in the inmate's favor or against him. A copy of this log should be sent monthly to the Central Office, Office of General Counsel.

5. JJJ5E_0j^TI^^C0M^LAI^jrj20RjVk If an inmate cannot resolve his complaint through informal contact with staff, and wishes to file a formal complaint for administrative remedy, he should secure a copy of form BP-DIR-9 and write his complaint in the space provided. He may obtain assistance from other inmates or from staff to help him complete the form. The inmate should then give the completed form to the designated staff member who in turn will provide a signed receipt for the inmate.

The complaint ordinarily must be filed within 30 days from the date on which the basis of the complaint occurred unless it was not feasible to file within such period. Institution staff have up to 15 days from receipt of the complaint, excluding weex-ends and holidays, to act upon the matter and provide a written response to the inmate. When the complaint is of an emergency nature and threatens the inmate's immediate health or welfare, reply must be made as soon as possible, and within 48 hours from receipt of the complaint. The institution duty officer may be utilized in such instances.

When the proper course of action is determined, the 'Response' (Part B) should be completed and signed. One carbon copy should go to his central file, and the original and other copy given to the inmate. Responses should be made as quickiy as possible, should be based upon facts, and should deal only with the issue raised, and not include extraneous material.

If the inmate is not satisfied with the institution's response, he may file an appeal to the Director, Bureau of Prisons, or his designee through the Prisoners' Mail Box. This should be done on form BP-DIR-iO and include a completed copy of BP-DIR-9 (the initial complaint) with the institution's response. A receipt for his appeal will be sent to the inmate. The Director, or his designee, has up to 30 days from receipt of the appeal, excluding week-ends and holidays, to reply.

APPENDIX — Continued

Page 3 2001.6 2-14-74

If an inmate's complaint is of a sensitive nature, and he believes he could be adversely affected if it is known at the institution that he is making the complaint, he may file it directly with the Director, Bureau of Prisons or his designee through the Prisoners' Mail Box. In such cases, he must clearly explain a valid reason for not filing in the institution.

If the time limit expires without a reply, it will be deemed to be a denial of the request. If dissatisfied with the response to his complaint and appeal, the offender may file suit in an appropriate court and attach documentary proof that he exhausted his administrative remedy.

6. EXCEPTIONS. Nothing in this Policy Statement should be construed to affect in any way, the procedure established pursuant to the Federal Tort Claims Act, the Claims for Inmate Injury Compensation under 18 U.S.C. 4126, or procedures for appeal from Good Time Forfeiture actions pursuant to Policy Statement 7400.6A.

The period of time referred to for action by the reviewing officials may be extended for a like period upon a finding that the circumstances are such that the initial period is insufficient to make an appropriate decision. This must be communicated in writing to the inmate.

7. LOCAL ISSUANCE. The head of each Bureau of Prisons facility will develop a local Policy Statement on this subject, and forward a completed copy to the Office of General Counsel.

8. THIS POLICY IS EFFECTIVE APRIL I, 1974.

NORMAN A. CARLSON Director Bureau of Prisons

      . 18 U.S.C.A. § 4126; 28 C.F.R. § 301 et seq.

      . 28 C.F.R., § 301.10 does not provide for the award of industrial good time credits as a result of employment time lost due to a work related injury. 18 U.S.C.A. § 4162 authorizing industrial good time allows a sentence reduction in the discretion of the Attorney General “for each month of actual employment.” (Emphasis added). There is no statutory or regulatory basis for industrial good time credit for time not actually employed.

      . In a letter to appellant dated January 26, 1972, Safety Officer A. E. Wilson wrote:
      “There is no injury report in your central file concerning your alleged injury. There is a specific notation in your medical file which states you were admitted to the hospital at Leavenworth on November 29, 1971 with a history of several months of gradually worsening pain in the left hip, radiating into the left leg. Some pain was noted in the low back. The record states ‘no specific injury was claimed.’ Based on the information available at this time, I am sorry, but I cannot recommend a continuation of your industrial pay/or good time.”
      Norman A. Carlson, Director of the Bureau of Prisons, relied, in a letter dated February 23, 1973, on the Safety Officer’s investigation and report to reject appellant’s claim.

      . 28 C.F.R., § 301.10:
      No accident compensation will be paid for compensable injuries while the injured inmate remains in custody. However, inmates assigned to industries will be paid wages for the number of regular work hours in excess of three consecutive inmate man days they are absent from work because of injuries suffered while in the performance of their work assignments. The rate of pay shall be 66% per cent of the standard hourly rate for the grade if the injured is not helping to support dependents, and 75 per cent of the standard hourly rate for the grade if the injured is helping to support dependents. No claim for compensation will be considered if full recovery occurs while the injured is in custody and no significant disability remains after the release.

      . The jurisdictional predicate for many of these federal prisoner cases in this circuit has ranged from mandamus, Taylor v. Blackwell, 5 Cir., 1969, 418 F.2d 199, 201; cf. Carter v. Seamans, 5 Cir., 1969, 411 F.2d 767, to habeas corpus, Theriault v. Blackwell, 5 Cir., 1971, 437 F.2d 76, cert. denied, 402 U.S. 953, 91 S.Ct. 1637, 29 L.Ed.2d 122. Judicially fashioned, arbitrary and capriciousness has been the consistent standard of review followed. Theriault, supra; Sexton v. United States, 5 Cir., 1970, 429 F.2d 1300; Taylor v. Blackwell, 5 Cir., 1969, 418 F.2d 199.
      In the instant case, 18 U.S.C.A. § 4126 does not confer jurisdiction in the federal courts to review the correctness of prisoner compensation claims under the applicable regulations, supra note (4). Rather, jurisdiction here is found in the Administrative Procedure Act, 5 U.S.C.A. § 701 et seq., and review is governed by the arbitrary and capricious standard there prescribed. 5 U.S.C.A. § 706. See Abbott Laboratories v. Gardner, 1967, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681, 687; Davis, Administrative Law, § 28.03, at 510-12 (3rd ed. 1972). See also United States v. One 1970 Buick Riviera, 5 Cir., 1972, 463 F.2d 1168, 1171, n. 4.

      . Ordinarily the complaint should be dismissed where it appears that a federal prisoner has not exhausted his administrative prison remedy. Paden v. United States, 5 Cir., 1970, 430 F.2d 883; Quick v. Thompkins, 5 Cir., 1970, 425 F.2d 260.