author: STEVENS, Circuit Judge.

text:
    COTOVSKY - KAPLAN PHYSICAL THERAPY ASSOC., LTD., an Illinois professional corporation d/b/a, Edgewater Physical Therapy Associates, et al., Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Appellees.
    No. 74-1831.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 9, 1974.
    Decided Jan. 7, 1975.

      Alan I. Boyer and Lawrence S. Bloom, Chicago, 111., for plaintiffs-appellants.
    James R. Thompson, U. S. Atty., Gary L. Starkman and Carol E. Moseley, Asst. U. S. Attys., Chicago, 111., for defendants-appellees.
    Before HASTINGS, Senior Circuit Judge, and CUMMINGS and STEVENS, Circuit Judges.
   STEVENS, Circuit Judge.

The question is whether a supplier of services, whose own interests are not directly regulated by statute or administrative action, has standing to challenge a regulation which requires his regulated customers to take their patronage elsewhere.

Plaintiffs, five professional physical therapy corporations, appeal from a dismissal of their complaint, which alleges that a Medicare regulation adopted by the Secretary of the Department of Health, Education & Welfare deprives them of property without due process of law; the district court, in an unreported memorandum opinion and order, concluded that plaintiffs lacked standing to challenge the constitutionality of the regulation.

The regulation in question was adopted on July 16, 1973, by the Secretary pursuant to his authority under 42 U.S.C. § 1395x(o )(6) (Supp. II, 1972) to establish conditions of participation for “home health agencies” in the federal Medicare program. Home health agencies provide services such as nursing care, physical therapy, or speech therapy to recipients of Medicare benefits. The statute states that these “home health services” may be provided by the agencies themselves “or by others under arrangements with them made by such agency. . . . ”

The challenged regulation, 20 C.F.R. § 405.1221(a) (38 Fed.Reg. 18980 (1973)) provides, in pertinent part, that:

A public or nonprofit home health agency must provide at least one of the qualifying services directly through agency employees but may arrange with another public or nonprofit agency or organization to provide the second qualifying service and any additional services.

Thus, the regulation requires, as a condition of their continuing participation in the Medicare program, that nonprofit home health agencies may contract out the provision of physical therapy services only to nonprofit therapy agencies or organizations, and not to proprietary corporations such as the plaintiffs. The plaintiffs have alleged that various home health agencies have notified the plaintiffs that their physical therapy contracts may be terminated in order to protect the Medicare certification of the agencies. The essence of plaintiffs’ Fifth Amendment challenge to the regulation is that it arbitrarily discriminates against profit-making physical therapy corporations in favor of nonprofit therapy organizations and individual profit-seeking therapists.

In Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184, and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192, the Court held that a party possesses standing to seek nonstatutory judicial review of administrative action if he “alleges that the challenged action has caused him injury in fact, economic or otherwise,” and if “the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” 397 U.S. at 152, 153, 90 S.Ct. at 829, 830.

It is not necessary for us to consider whether the subsequent decisions of the Court in Arnold Tours, Inc. v. Camp, 400 U.S. 45, 91 S.Ct. 158, 27 L.Ed.2d 179, and Investment Company Institute v. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367, have vitiated the need to comply with the “zone of interests” component, as some commentators have suggested, for we are satisfied that plaintiffs’ interests, as described in their complaint, are arguably within the zone regulated by the statute.

The “zone of interests” component of the Data Processing test of standing is itself composed of two parts, for it refers both to “protected” interests and “regulated” interests. Since Data Proc essing, the Court has upheld standing for plaintiffs asserting that their interests were “protected” by statute, but the Court has not had occasion to decide any standing cases which turn on whether the plaintiffs’ interests were within the “regulated” zone. In analyzing the standing of the physical therapy corporations in this case we are, however, guided by the Court’s reminder in Data Processing that

Where statutes are concerned, the trend is toward enlargement of the class of people who may protest administrative action. 397 U.S. at 154, 90 S.Ct. at 830.

Whether or not the regulation challenged in this case is valid, it certainly relates to an area of activity which the underlying Medicare statutes direct the Secretary to regulate. He is expressly authorized to adopt “conditions of participation” for home health agencies. 42 U.'S.C. § 1395x(o)(6). The subcontracting of physical therapy services by such agencies is specifically authorized in 42 U.'S.C. § 1395x(m)(2). It is at least arguable that these statutory provisions give the Secretary power to regulate the kind of physical therapy services which the agency provides, whether the agency provides the services itself or by subcontracting with others. If, as a condition of certification of a home health agency, its contractual relationships with physical therapy corporations, such as plaintiffs, were directly regulated, there would be no doubt that plaintiffs’ interests were within the regulated zone. We think the same conclusion is required when the regulation takes the form of a prohibition against doing business with persons who do not satisfy criteria prescribed by the Secretary. Since the “zone of interests” test merely requires that plaintiffs’ interests in contracting with nonprofit home health agencies be “arguably” within the regulated zone under the statute, the standard is easily met in this case.

Defendants respond and the district court concluded, however, that the regulation purports to regulate only home health agencies and that it does not regulate plaintiffs or their contracts. To focus on whether the plaintiffs are directly regulated themselves is to read the Data Processing test too narrowly. The test is not whether these plaintiffs are regulated by the statute but whether the interests asserted by them arguably fall within the zone of interests so regulated.

Nearly three decades before its Data Processing decision, the Supreme Court held that indirect regulation, like that involved in this case, was adequate to confer standing to challenge administrative action. In Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563, the Court held that CBS had standing to challenge F.C.C. regulations conditioning the grant of broadcast licenses to local stations on the nature of their contracts with radio networks. Neither CBS nor its contractual relationship with any local station was directly regulated. Nevertheless, in response to a standing argument similar to that made here, the Court held:

Appellant’s standing to maintain the present suit in equity is unaffected by the fact that the regulations are not directed to appellant and do not in terms compel action by it or impose penalties upon it because of its action or failure to act. It is enough that, by setting the controlling standards for the Commission’s action, the regulations purport to operate to alter and affect adversely appellant’s contractual rights and business relations with station owners whose applications for licenses the regulations will cause to be rejected and whose licenses the regulations may cause to be revoked. 316 U.S. at 422, 62 S.Ct. at 1202-1203 (emphasis added).

Even more directly in point is the holding in Air Reduction Co., Inc. v. Hickel, 137 U.S.App.D.C. 24, 420 F.2d 592 (1969). In that case private producers and distributors of helium challenged regulations of the Secretary of the Interior providing that government contractors must purchase all of their helium requirements for those contracts from the government. The regulations, of course, did not directly regulate the plaintiffs or their contracts with government contractors. Nevertheless, the court of appeals held that they had standing.

We therefore conclude that if, pursuant to what it perceives to be its statutory authority, a government agency regulates the contractual relationships between a regulated party and an unregulated party, the latter as well as the former may have interests that are arguably within the regulated zone for purposes of testing standing, and for this purpose a total prohibition is a form of regulation.

As the interests of these plaintiffs arguably fall within the zone regulated by the Medicare statutes, we hold that they have standing to obtain judicial review of 20 C.F.R. § 405.1221(a).

Finally, in their brief, defendants appear to argue that, since the Medicare statutes contain specific provisions for judicial review of administrative actions at the behest of home health agencies and Medicare beneficiaries but not of suppliers of services, such as plaintiffs, Congress did not intend to permit such review. Since the district court did not reach this question of “reviewability,” it is inappropriate for us to do more than note that defendants must meet the stringent standards set forth in Data Processing, 397 U.S. at 156 — 157, 90 S.Ct. 827; Barlow v. Collins, 397 U.S. at 165-167, 90 S.Ct. 832; and Abbott Laboratories v. Gardner, 387 U.S. 136, 139-141, 87 S.Ct. 1507, 18 L.Ed.2d 681, before a Congressional intent to preclude judicial review of this regulation can be found.

The judgment entered below is vacated and the case is remanded to the district court for further proceedings.

      . Defined in 42 U.S.C. § 1395x(o) (1970), as amended (Supp. II, 1972).

      . 42 U.S.C. § 1395x(m) (1970), as amended (Supp. II, 1972).

      . Notice of Proposed Rulemaking was given at 36 Fed.Reg. 18696 (1971). The provision in question originally was to appear as 20 C.F.R. § 405.1221(d)(1).

      . The regulation further provides that, “A proprietary agency, however, must provide all services directly, through agency employees.” This latter restriction is not at issue in this case.

      . We note that a case challenging this same regulation has been brought by a similarly-situated plaintiff in the District Court for the District of Columbia, Physical Therapy Services Rehabilitation Agency v. Weinberger, Civil No. 74-897 (D.D.C., July 2, 1974). In granting plaintiff’s motion for preliminary injunction, Judge Green concluded that the plaintiff did have standing.

      . Mr. Justice Brennan, joined by Mr. Justice White, concurred in the results reached in the two cases, but dissented from the Court’s inclusion of the “zone of interests” criteria. These Justices would have the question of a litigant’s standing turn solely on whether the requisite allegation of “injury in fact” was made. 397 U.S. at 168, 90 S.Ct. 827.
      Professor Davis supports the Brennan-White approach, K. Davis, The Liberalized Law of Standing, 37 U.Chi.L.Rev. 450, 457 (1970). Professor Jaffe, on the other hand, would retain the interest requirement; he argues that “a plaintiff without a ‘protected interest’ does not have a right to judicial review, but a court may in its discretion take jurisdiction of a suit brought by such a plaintiff.” L. Jaffe, Standing Again, 84 Harv.L. Rev. 633, 638 (1971) (emphasis in original). Professor Albert has criticized both positions; he sees Professor Davis as attempting to “transform substantive rules of law . into procedural or preliminary principles of access to a court.” He accuses Professor Jaffe of failing to recognize that, when a court determines that a plaintiff’s claim does not fall within the interests protected by a statute, it has in fact made a determination on the merits. L. Albert, Standing to Challenge Administrative Action: An Inadequate Surrogate for Claim for Relief, 83 Yale L.J. 425, 44CMW3 (1974).

      . See K. Scott, Standing in the Supreme Court — A Functional Analysis, 86 Harv.L.Rev. 645, 666 (1973); R. Sedler, Standing, Justicia-bility, and All That: A Behavioral Analysis, 25 Vand.L.Rev. 479, 486 (1972); Comment, Standing: Suits Against Federal Regulatory and Administrative Agencies, 1^ B.C.Ind. & Com.L.Rev. 289, 304-305 (1971).'

      . If, instead of disqualifying plaintiffs because they are proprietary corporations, the regulation were to disqualify them because they employ too many Republicans or too many blacks, for example, the same test of standing should determine whether plaintiffs’ interests fail within the regulated zone since the validity of their constitutional claim is unrelated to their standing to assert it.

      . The district court relied heavily, in denying the plaintiffs’ standing, on State of Florida v. Richardson, 355 F.Supp. 1027 (N.D.FIa.1973). In that case, the district court concluded that national and state associations of private nursing homes, administrators and examiners did not have standing to challenge a regula-tlon of the Secretary of H.E.W. altering the composition of the Florida nursing home administrator licensing board. It noted that these plaintiffs had no direct relationship with the Secretary: “The relationship of the non-state plaintiffs is directly and solely with the state in which they reside and any remunerative benefits derived by these plaintiffs from the medicaid program is by virtue of this relationship with the states.” 355 F.Supp. at 1032. The court of appeals, however, reversed the district court judgment and held that most of the non-state plaintiffs did in fact meet the Data Processing tests. State of Florida v. Weinberger, 492 F.2d 488, 493-496 (5th Cir. 1974).

      . “The Secretary’s regulations would interfere with appellees’ existing beneficial business relations with Government contractors, and are subject to challenge by appel-lees on the ground that they are invalid and hence an unlawful termination of a beneficial business relationship for supplying the needs of the Government.” 420 F.2d at 594.
      A similar standing question was also presented in New Jersey Chapter Incorporated of the American Physical Therapy Association, Inc. v. Prudential Life Insurance Co. of America, 502 F.2d 500 (D.C.Cir. 1974). There the association challenged regulations of the Social Security Administration defining the standards to be used in judging the reasonableness of charges submitted by physical therapy service providers for reimbursement under Medicare. While two members of the court of appeals panel declined to rule on the standing question, preferring to dispose of the case on the merits, Chief Judge Bazelon concluded that the association had standing under Data Processing. 502 F.2d at 505 (Bazelon, C. J., concurring).

      . Professor Davis, however, has suggested that the Data Processing “zone of interests regulated” formula would not allow a party aggrieved by agency regulations to challenge their legality or constitutionality unless that party was in fact validly regulatable:
      “A plaintiff should have standing if he is in fact regulated to his disadvantage; to have standing he should not be required to show that the interest he asserts is within the zone of interests ‘to be’ regulated by the statute or constitutional guarantee.
      “For instance, if a statute authorizes the administrator to regulate from A to M, and he regulates X without statutory authorization, X should obviously have standing to challenge, but he does not have under the Court’s test, tor he cannot show that he is ‘to be’ regulated.” K. Davis, supra n. 6, at 458.
      We do not read the Data Processing test this narrowly; the Court defined the category of plaintiffs with standing as those persons whose interests are “arguably within the zone of interests to be . . . regulated by the statute or constitutional guarantee in question.” 397 U.S. at 153, 90 S.Ct. at 830 (emphasis added). Whether the interests of the particular plaintiff are in fact lawfully subject to regulation is the question to be answered on the merits, and not in the threshold standing determination.

      . We need not consider whether plaintiffs have standing because their interests arguably fall within the zone of interests protected by the Fifth Amendment, the constitutional provision in question. One commentator has so read Data Processing.

        “When the plaintiff is challenging governmental action on constitutional grounds, he necessarily is asserting that his interest is protected by the constitutional guarantee upon which he is relying. Any further inquiry goes to the merits.” R. Sedler, supra n. 7, at 486.

      . Appellees’ Brief at 12-13.

      . 42 U.S.C. § 405(g) (1970), § 1395ff (1970), as amended (Supp. II, 1972).


source: Caselaw Access Project

author: RONEY, Circuit Judge: THORNBERRY, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Billy Cecil DOOLITTLE, William Augustus Sanders, Jr., Ernest Massod Union, Julian Wells Whited, Frank Joseph Masterana, Cliff Anderson, Darnice T. Malloway, and William E. Baxter, Defendants-Appellants.
    No. 72-3263.
    United States Court of Appeals, Fifth Circuit.
    Feb. 14, 1975.
    Rehearing En Banc Granted April 7, 1975.

      Floyd M. Buford, Macon, Ga., for Union and Whited.
    Oscar B. Goodman, Las Vegas, Nev., for Doolittle, Sanders and Masterana.
    Louis Weiner, Jr., Las Vegas, Nev., Manley F. Brown, Macon, Ga., for Anderson.
    Wesley R. Asinof, Atlanta, Ga., for Malloway and Baxter.
    William J. Schloth, U. S. Atty., Charles T. Erion, Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.
    Before THORNBERRY, AINS-WORTH and RONEY, Circuit Judges.
   RONEY, Circuit Judge:

All defendants were convicted in a non-jury trial for conspiracy to violate 18 U.S.C.A. §§ 1084 and 1952, which prohibit the use of interstate wire and telephone facilities to carry on illegal gambling operations. All defendants were similarly convicted of substantive violations of § 1952, and defendants Mastera-na and Doolittle were also convicted of substantive violations of § 1084. The convictions were obtained primarily by the use of conversations intercepted by a wiretap authorized by the district court under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. §§ 2510-2520, and the fruits of searches for which the wiretap provided probable cause. Recognizing that without this evidence the Government’s case would be substantially weakened, if not destroyed, defendants mounted a multifaceted assault on the wiretap in a motion to suppress the evidence in the district court. The district court denied the motion, and the convictions followed. The attack has been renewed in this Court, but like the district court, we find no infirmity warranting suppression of the evidence and affirm all convictions.

Defendants first attack the wiretap provisions of the Omnibus Crime Control Act as unconstitutional for violations of the First, Fourth, Fifth and Sixth Amendments. We have recently upheld this portion of the statute against a similar constitutional attack. United States v. Sklaroff, 506 F.2d 837 (5th Cir. 1975).

Next the defendants assert that various procedural irregularities in the authorization of the wiretap request within the Justice Department require that the evidence be suppressed. See 18 U.S.C.A. § 2515. The Supreme Court of the United States has ruled that irregularities of the kind asserted here do not render the communications “unlawfully intercepted” or the interception request “insufficient on its face.” United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974); see 18 U.S.C.A. §§ 2518(10)(a)(i), -2518(10)(a)(ii). At the time this case was argued, the Supreme Court had not decided Chavez and appellants relied on the Ninth Circuit decision in that case. United States v. Chavez, 478 F.2d 512 (9th Cir. 1973). The Supreme Court modified that portion of the Ninth Circuit decision upon which the appellants relied. We find nothing in this case to warrant a different result than that determined by the Supreme Court in Chavez. Considering the other information contained in the Interception Order Authorization, such as the location of the phones to be tapped, address of the Sportsman’s Club, and its owner, we find the one incorrect digit in one of the four telephone numbers listed therein to be an immaterial variation from the actual, correct number for which the tap was requested of the district court. Cf. United States v. Chavez, supra.

The procedure of filing the affidavits of the Attorney General and his subordinates, as a method of proving the administrative history of the specific authorization in this case, is identical to that used in Chavez. There is no constitutional infirmity in the district court’s refusal to require more of the Attorney General on this narrow issue of fact.

Appellants contend that the use of a “pen register,” as in this case, is not specifically authorized by Title III and must, therefore, be considered rejected by Congress as an appropriate investigative tool. The Act does not prohibit the use of pen registers and we do not view its use in this case, based upon probable cause and with a separate authorization from the district court, as being constitutionally offensive. See United States v. Giordano, 416 U.S. 505, 553-554, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974) t(Powell, joined by the Chief Justice, and Black-mun and Rehnquist, JJ., concurring in part and dissenting in part); United States v. Finn, 502 F.2d 938 (7th Cir. 1974); United States v. Brick, 502 F.2d 219, 223 (8th Cir. 1974); cf. United States v. Falcone, 364 F.Supp. 877 (D.N. J.1973), aff’d, 500 F.2d 1401 (3rd Cir. 1974).

Certain defendants assert that the Government lacked probable cause to believe that their conversations would be intercepted by the wiretap. They con-, tend that this lack of probable cause should render the tap unlawful as to them. A similar argument has been rejected by the Supreme Court in United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). At oral argument, the appellants relied upon the Seventh Circuit decision in United States v. Kahn, 471 F.2d 191 (7th Cir. 1972). The reversal by the Supreme' Court of the Seventh Circuit decision is dispositive of the issue as framed here. The statute does not require that there be probable cause as to all persons whose conversations are intercepted. See 18 U.S.C.A. § 2518(l)(b)(iv). Since the wiretap in this case was validly issued, the wiretap conversations of those individuals not known to be involved in criminal activity at the time of the court authorization may be used against them.

The wiretap authorization referred to “Billy Cecil Doolittle and others as yet unknown.” Anderson and Baxter contend that the Government had reasonable cause to believe that their conversations would be intercepted. Relying on certain language in the Supreme Court’s opinion in Kahn, they argue that, not being “unknown,” they should have been named in the authorization. They contend that since they were not named, the wiretap order was illegal as to their conversations. The same argument could be made for Sanders. We reject this argument. The defendants neither allege nor demonstrate any prejudice to them in not being named in the authorization. The Government contends that its agents had personal knowledge, as opposed to information, to support probable cause as to illegal activity only of Doolittle, the co-owner of the Sportsman’s Club, the establishment wherein the telephones were located and to which the telephone bills were sent. All defendants received an inventory of the intercepted conversations, were allowed to listen to the tapes and received transcripts of the conversations prior to use against them at trial, as if they had been named in the order. Most of the conversations of each defendant were with Doolittle, the person named in the order. There is no indication of bad faith or attempted subterfuge by the Government in its wiretap application. The application and affidavit delineated specifically the information expected to be gathered from the tap. We hold there was substantial compliance with the requirements of the Act, and that the failure to name other defendants does not render the evidence obtained as to them inadmissible under 18 U.S.C.A. § 2518(10)(a).

The last general attack by all defendants is that the wiretaps exceeded the scope of the interceptions authorized by the court order. The testimony by the monitoring agent at the suppression hearing reveals that they listened to each call only long enough to determine whether in their judgment it could be one dealing with gambling as authorized to be intercepted by the district court. Only those calls which the agents reasonably believed were related to gambling were recorded on tape. There is no question that some irrelevant and personal portions of gambling conversations were intercepted or that certain nonpertinent conversations were intercepted. But this is inherent in the type of interception authorized by Title III, and we do not view the simple inclusion of such conversations, without more, as vitiating an otherwise valid wiretap. The procedure testified to by the agents appears a reasonable method for complying with the order of the district court, in accord with the statutory mandate that the interception be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under Title III. United States v. Cox, 462 F.2d 1293 (8th Cir. 1972), cert. denied, 417 U.S. 918, 94 S.Ct. 2623, 41 L.Ed.2d 223 (1974).

The district court specifically found that defendants Malloway and Baxter lacked actual knowledge of the use of interstate facilities in the gambling operation. This lack of specific knowledge is legally irrelevant. The words of § 1952 do not require specific knowledge of the use of interstate facilities and we agree with the decisions in other Circuits that such knowledge is not a prerequisite to criminal liability thereunder. See, e. g., United States v. Ro-selli, 432 F.2d 879 (9th Cir. 1970), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971); United States v. Hanon, 428 F.2d 101 (8th Cir. 1970), cert. denied, 402 U.S. 952, 91 S.Ct. 1608, 29 L.Ed.2d 122 (1971); United States v. Miller, 379 F.2d 483 (7th Cir.), cert. denied, 389 U.S. 930, 88 S.Ct. 291, 19 L.Ed.2d 281 (1967).

Anderson individually challenges the district court’s handling of his evidentiary objection to certain of the intercepted conversations as hearsay. The trial court’s rulings on this matter shows a clear understanding of the law on the exception to the hearsay rule which applies to statements made by co-conspirators in furtherance of the conspiracy. See, e. g., United States v. Register, 496 F.2d 1072, 1078-1079 (5th Cir. 1974); United States v. Williamson, 482 F.2d 508, 513 (5th Cir. 1973). An examination of the record shows sufficient independent evidence of the existence of a conspiracy to which Anderson was a party to warrant the introduction of the hearsay conversations against him.

Affirmed.

THORNBERRY, Circuit Judge

(concurring in part and dissenting in part):

I concur in the decision affirming the convictions of Doolittle, Malloway, and Masterana. With regard to appellants Anderson, Baxter, and Sanders, however, I would reverse; hence I respectfully dissent from so much of the majority opinion as affirms their convictions.

I do so not without reluctance, for the majority admirably attempts to demonstrate that the latter defendants were not prejudiced by the procedure under which their intercepted telephone communications were used against them at trial. That is while these defendants enjoyed along with every member of the public a Congressionally-recognized interest in individual privacy, their interest must be balanced against the government’s interest in enforcing laws relating to the crimes enumerated in 18 U.S.C. § 2516(l)(a)-(g). Under the circumstances of this case, these defendants having obtained inventories and access to the evidence, the majority necessarily reasons that the governmental interest must prevail.

If the choice were ours to make, I probably would not quarrel with the majority’s conclusions that “there was substantial compliance with the requirements of [Title III],” and, consequently, no requirement of suppression as to Anderson, Baxter, and Sanders due to the failure of the government and the district court to name them in either the wiretap application or the resulting order. The controlling issue of statutory construction, however — an issue with which the majority does not come to grips — has already been decided rather clearly by the Supreme Court. It is in the application of the Court’s rule of statutory construction to the facts that I find myself in basic disagreement with the majority.

In United States v. Kahn, 415 U.S. 143, 155, 94 S.Ct. 977, 984, 39 L.Ed.2d 225, 237 (1974), the square holding is as follows:

We conclude, therefore, that Title III requires the naming of a person in the application or interception order only when the law enforcement authorities have probable cause to believe that the individual is “committing the offense” for which the wiretap is sought. Since it is undisputed that the Government had no reason to suspect Minnie Kahn of complicity in the gambling business before the wire interceptions here began, it follows that under the statute she was among the class of persons “as yet unknown” covered by Judge Campbell’s order.

Having so held, the Court proceeded to reverse the Seventh Circuit, which had ordered Minnie Kahn’s gambling-related telephone conversations suppressed, albeit for reasons more onerous to the government than the test announced by the Supreme Court.

Perhaps apprehensive about its quick dismissal of Kahn in this case, the majority somehow divines a contention by the government that probable cause to suspect participation “in the gambling business” existed only as to Doolittle at the time when wiretap authorization was sought. The majority suggests that this absence of probable cause as to the “others as yet unknown” may have resulted from government possession of mere hearsay information, rather than personal observation by investigating agents, concerning the behavior of these “others.” Such a dichotomy, if seriously advanced, could indeed effect a major reformulation of the law of probable cause. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) ; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Draper v. United States, 358 U.S. 307, 311, 79 S.Ct. 329, 332, 3 L.Ed.2d 327, 331 (1959); Gonzales v. Beto, 5th Cir. 1970, 425 F.2d 963, 968-970, cert. denied, 400 U.S. 928, 91 S.Ct. 194, 27 L.Ed.2d 189 (1970) . Nor do I understand the majority to suggest that “probable cause” as to a given individual or telephone number connotes a more demanding standard when wiretaps are used by contrast to other types of searches. Again such a suggestion would, in my view, be erroneous. See United States v. Falcone, 3rd Cir. 1974, 505 F.2d 478, 481; United States v. Finn, 7th Cir. 1974, 502 F.2d 938, 941. The question with which I shall attempt to deal, then, is whether, at the time when wiretap authorization was sought, the government had probable cause to suspect that Anderson, Baxter, and Sanders were conspiring with or assisting Doolittle in illegal gambling involving the use of the telephone at the Sportsman’s Club. For reference, reproduced in the margin are the government’s wiretap application and supporting affidavit of Special Agent Gary W. Hart, insofar as these materials are illu-minative of the question at hand.

Among the features of these materials which convince me that law enforcement officers had probable cause as to Anderson, Baxter, and Sanders are the following: (a) The basis of the application was Hart’s affidavit. Repeatedly Hart explicitly refers to a telephone wagering operation conducted over the Sportsman’s Club telephone by Doolittle, Anderson, Baxter, and Sanders, (b) Hart avers that these activities were reported to him by confidential informants, alleged upon Hart’s oath to have made declarations against penal interest as in-dicia of reliability, one of whom is further alleged to have given reliable information on twenty-two prior occasions, (c) The information is quite specific with respect to the players, their roles, certain wagered athletic contests, and the physical setting, (d) Hart avers that this specificity is the product of personal knowledge on the part of the informants, whose personal knowledge Hart swears he has verified through “independent investigation.” Without belaboring the point, I simply confess my bemusement that if the Hart affidavit did not provide probable cause as to Anderson, Baxter, and Sanders, I do not know what would. See Gonzales v. Beto, supra, 425 F.2d at 968-969; see also Polanco v. Estelle, 5th Cir. 1975, 507 F.2d 81 (“in judging probable cause magistrates are not to be confined by restrictions on their use of common sense”); United States v. James, 9th Cir. 1974, 494 F.2d 1007; United States v. McHale, 7th Cir. 1974, 495 F.2d 15. Yet, for reasons not entirely apparent to this court, the government saw to it that neither the application nor the order made reference to any of these three defendants.

The government’s own statements shed additional light on the issue. When this appeal was briefed, the Supreme Court had not yet decided Kahn. At that time the government’s position was that the term “person, if known,” as used in § 2518(l)(b)(iv) and 4(a), meant only the “subject” of the interception, whom the government contended was Doolittle. Not anticipating that the Supreme Court would choose a middle ground between its argument and the “discoverability” test successfully advanced by Minnie Kahn in the Seventh Circuit, the government stated in its brief to this court:

The application in the present case demonstrated that agents of the government actually “knew,” that is had personal knowledge as opposed to information, of only one defendant who was using the phones in question: defendant Doolittle, the person named in the order. They and the Court had nothing more than “probable cause to believe” that Anderson and Baxter [and Sanders] would be intercepted.

Or, I would add, that these three were “committing the offense” for which the wiretap was sought.

Thus, the majority manufactures for the government a result which reflects considerable profit from inconsistent positions, while purging the government’s contention of any adverse consequences, however logical or proper they may be. Appellant Anderson argues that in this respect the government should now be estopped. There may be merit to Anderson’s argument, inasmuch as the government was equally as capable as appellants to anticipate what the Supreme Court would hold in Kahn. I need not rest my views on estoppel, however, since I have already concluded that the requisite probable cause existed as to Anderson, Baxter, and Sanders at the time when tap authorization was sought. Under Kahn, therefore, I would reverse as to these three with directions to the district court to suppress their intercepted communications pursuant to 18 U.S.C. § 2518(10)(a)(ii) (“order of authorization or approval under which it was intercepted is insufficient on its face”).

Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBER-RY, COLEMAN, GOLDBERG, AINS-WORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

BY THE COURT:

A member of the Court in active service having requested a poll on the applications for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc,

It is ordered that the cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.

      . The pertinent provisions of 18 U.S.C. § 2518 are:
      (l)(b)(iv) — “Each application shall include the following information: . . . the identity of the person, if known, committing the offense and whose communications are to be intercepted. . . . ” (4)(a) — “Each order authorizing or approving the interception of any wire or oral communication shall specify — the identity of the person, if known, whose communications are to be intercepted . . .

      . APPLICATION
      (Number and Title Omitted)
      Charles T. Erion, an Assistant United States Attorney, Middle District of Georgia, being duly sworn states:
      This sworn application is submitted in support of an order authorizing the interception of wire communications. This application has been submitted only after lengthy discussion concerning the necessity for such an application with various officials of the Organized Crime and Racketeering Section, United States Department of Justice, Washington, D. C., together with Agents of the Federal Bureau of Investigation.
      1. He is an “investigative or law enforcement officer — of the United States” within the meaning of Section 2510(7) of Title 18, United States Code, that is — he is an attorney authorized by law to prosecute or participate in the prosecution of offenses enumerated in Section 2516 of Title 18, United States Code.
      2. Pursuant to the powers conferred on him by Section 2516 of Title 18, United States Code, the Attorney General of the United States, the Honorable John N. Mitchell, has specially designated the Assistant Attorney General for the Criminal Division of the United States Department of Justice, the Honorable Will Wilson, to authorize affiant to make this application for an order authorizing the interception of wire communications. The letter of authorization signed by the Assistant Attorney General is attached to this application as Exhibit A.
      [516] 3. This application seeks authorization to intercept wire communications of Billy Cecil Doolittle and others as yet unknown concerning offenses enumerated in Section 2516 of Title 18, United States Code, that is — offenses involving the transmission, by means of an interstate wire facility, of gambling and wagering information by a person engaged in the business of gambling, in violation of Title 18, United States Code, Section 1084, and the use of interstate telephone communication facilities for the transmission of betting information in aid of a racketeering enterprise (gambling), in violation of Section 1952 of Title 18, United States Code, and a conspiracy to commit such offenses in violation of Section 371 of Title 18, United States Code, which have been committed and are being committed by Billy Cecil Doolittle and others as yet unknown.
      4. He has discussed all the circumstances of the above offenses with Special Agent Gary W. Hart of the Macon, Georgia office of the Federal Bureau of Investigation who has directed and conducted the investigation herein, and has examined the affidavit of Special Agent, Hart (attached to this application as Exhibit B and incorporated by reference herein) which alleges the facts therein in order to show that:
      (a) there is probable cause to believe that Billy Cecil Doolittle and others as yet unknown have committed and are committing offenses involving the transmission, by means of an interstate wire facility, of gambling and wagering information by a person engaged in the business of gambling, in violation of Title 18, United States Code, Section 1084, and the use of interstate [517] telephone communication facilities for the transmission of betting information in aid of a racketeering enterprise (gambling), in violation of Section 1952 of Title 18, United States Code, and are conspiring to commit such offenses in violation of Section 371 of Title 18, United States Code. (b) there is probable cause to believe that particular wire communications of Billy Cecil Doolittle and others as yet unknown concerning these offenses will be obtained through the interception, authorization for which is herewith applied for. In particular, these wire communications will concern the interstate transmission of gambling information relating to the outcome of professional baseball games and the dissemination of such information to persons engaged in the unlawful business of gambling, and the participants in the commission of said' offenses.
      (c) normal investigative procedures reasonably appear to be unlikely to succeed and are too dangerous to be used. (d) there is probable cause to believe that the telephones listed to the Sportsman’s Club located in the premises of the Sportsman’s Club, 222 Third Street, Macon, Georgia, and carrying telephone numbers 912-746-9110, 912-745-2843, 912-745-2844, and 912-745-2845 have been used and are being used by Billy Cecil Doolittle and others as yet unknown [518] in connection with the commission of the above-described offenses.
      5. No previous application has been made to any Judge for authorization to intercept or for approval of interception of wire or oral communications involving any of the same persons, facilities, or places specified herein.

        WHEREFORE, your affiant believes that probable cause exists to believe that Billy Cecil Doolittle and others as yet unknown are engaged in the commission of offenses involving the transmission of gambling and wagering information by means of an interstate wire facility, by a person engaged in the business of gambling and the use of interstate telephone communication facilities for the transmission of betting information in aid of a racketeering enterprise (gambling), and a conspiracy to do so; that Billy Cecil Doolittle and others as yet unknown have used, and are using the telephone listed to the Sportsman’s Club, located at 222 Third Street, Macon, Georgia, and bearing numbers 912-746-9110, 912-745-2843, 912-745-2844, and 912-745-2845, in connection with the commission of the above-described offenses; that communications of Billy Cecil Doolittle and others as yet unknown concerning these offenses will be intercepted to and from the above-described telephone; and that normal investigative procedures appear unlikely to succeed and are too dangerous to be used.
      On the basis of the allegations contained in this application and on the basis of the affidavit of Special Agent Hart, which is attached hereto and made a part hereof, affiant requests this court to issue an order, pursuant to the power conferred on it by Section 2518 of Title 18, United States Code, authorizing the Federal Bureau of Investigation of the United States Department of Justice to intercept wire communications to and from the above-described telephones until [519] communications are intercepted which reveal the manner in which Billy Cecil Doolittle and others as yet unknown participate in the illegal use of interstate telephone facilities for the transmission of betting information in aid of a racketeering enterprise (gambling), and which reveal the identities of his confederates, their places of operation, and the nature of the conspiracy involved therein, or for a period of fifteen (15) days from the date of that order, whichever is earlier.
      /s/ CHARLES T. ERION
      CHARLES T. ERION
      Assistant United States
      Attorney
      Middle District of Georgia
      Subscribed and sworn to before me this 21 day of August, 1970.
      /s/ W. A. BOOTLE
      UNITED STATES
      DISTRICT JUDGE
      AFFIDAVIT OF GARY W. HART
      Gary W. Hart, Special Agent, Federal Bureau of Investigation, Macon, Georgia, being duly sworn, states:
      1. I am an “investigative or law enforcement officer of the United States” within the meaning of Section 2510(7) of Title 18, United States Code — that is, an officer of the United States who is empowered by law to conduct investigations of and to make arrests for offenses enumerated in Section 2516 of Title 18, United States Code.
      2. I have conducted an investigation of the offenses of'Billy Cecil Doolittle and, as a result of my personal participation in that investigation and of reports made to me by other agents, I am familiar with all the circumstances of the offenses.
      3. A confidential informant who has admitted personal participation in gambling activities, has stated that Doolittle operates a bookmaking operation in the Sportsman’s Club, located at 222 Third Street, Macon, Georgia. Doolittle is assisted in his bookmaking operation by Will Sanders who is a full partner. Doolittle obtains the “line” for professional baseball games from an unknown individual by placing a call from a pay telephone booth located in the poolroom of the Sportsman’s Club at approximately noon each day, and Doolittle and Sanders thereafter disseminate the “line,” accept wagers on professional baseball games, and “lay off” bets through use of several telephones, one of which is numbered 745-2844, located in the “members only” room of the Sportsman’s Club which is adjacent to the pool room. Among individuals contacted by Doolittle and his associates in this manner are Cliff Anderson of Columbus, Georgia, and Billy Baxter of Augusta, Georgia.
      I have established through independent investigation that this informant has had the opportunity to obtain first-hand knowledge of the activities the informant has described. This informant has been contacted by Special Agents of the Federal Bureau of Investigation [521] on several occasions since January 1970 and on four occasions the informant has furnished information which has been determined to be accurate by independent investigation. On a date during the week beginning on August 2, 1970, this informant stated that within five (5) days prior to that date through personal' observation of Doolittle’s activities in the Sportsman’s Club, the informant determined that Doolittle is currently operating as described in the preceding paragraph. This informant further stated that through firsthand knowledge the informant knows that Anderson and Baxter are engaged in accepting wagers on the outcome of professional baseball games as of a date during the week beginning on August 2, 1970.
      4. A second confidential informant who has admitted personal participation in gambling activities has also stated that Doolittle operates a bookmaking operation in the Sportsman’s Club located at 222 Third Street, Macon, Georgia, in a room off the pool hall area of the building. Further, informant states that during the 1970 professional baseball season, Doolittle, assisted by Will Sanders who is a partner, has utilized telephones, one of which is numbered 745-2844, located in this room to facilitate the placing and acceptance of wagers based upon the outcome of professional baseball games. Doolittle is associated with Cliff Anderson of Columbus, Georgia, and Billy Baxter of Augusta, Georgia, and he participates with these individuals, and others unknown, in the placing and accepting of wagers based upon the outcome of professional baseball games. Doolittle is associated with Cliff Anderson games by placing a call from a pay telephone booth located in the Sportsman’s Club at approximately noon each day, and subsequently supplies this line to the aforementioned to assist them in the placing and acceptance of wagers based on the outcome of professional baseball games.
      [522] I have established through independent investigation that this informant has had the opportunity to obtain first-hand knowledge of the activities the informant has described. This informant has been contacted by Special Agents of the Federal Bureau of Investigation on several occasions since January 1970 and on 22 occasions the informant has furnished information which has been determined to be accurate by independent investigation. On a date during the week beginning on August 9, 1970, this informant stated that within five (5) days prior to that date, through personal conversation with one of the principals at the Sportsman’s Club, the informant determined that Doolittle is currently operating as described in the preceding paragraph. This informant further stated that through first-hand knowledge the informant knows that Anderson and Baxter are engaged in accepting wagers on the outcome of professional baseball games as of a date during the week beginning on August 9, 1970. ******
      6. Examination of the records of the Macon, Georgia, Credit Bureau on April 27, 1970, disclosed that Doolittle and William A. Sanders, Jr., are listed as owners of the Sportsman’s Club, Macon, Georgia. Sanders was also listed as a former employee of the Southern Bell Telephone Company for 13 years.
      ******
      /s/ GARY W. HART
      Special Agent
      Federal Bureau of Investigation
      Subscribed and sworn before me this 21 day of August, 1970.
      /s/ W. A. BOOTLE
      United States District Judge

      . The district court, in drawing the wiretap order, simply adopted the “others as yet unknown” language used by the government in its application.

      . Brief for the government at 28-29.

      . Although the majority does not make this argument in support of its conclusion that Title III was substantially complied with, one might contend that paragraph 4 of the wiretap application, which purports to incorporate the Hart affidavit by reference, operated in legal usage to name Anderson, Baxter, and Sanders insofar as § 2518(l)(b)(iv) required that they be named in the application. One might then argue that since neither the application. the supporting affidavit, nor the order in Kahn mentioned Minnie Kahn, and that since the Supreme Court phrased its holding disjunctively in terms of naming a person in the application or interception order, the Court implied thereby that the naming of probable cause suspects in either the applica-tion_or the order would satisfy the statute. I may assume that the incorporation by reference operated to name Anderson, Baxter, and Sanders in the application, but I reject the idea that Kahn supports or implies the rest of the argument. First, the significant feature of Kahn is its emphasis on the literal language and terms of Title III. In addition to requiring, under Kahn, the naming of probable cause suspects in the application, Title III literally requires that they also be named in the order. § 2518(4)(a). That was not done in this case, and Kahn — inasmuch as it involved no question of half-compliance, through incorporation by reference or otherwise — cannot be deemed to support an analysis which runs counter to the statute’s literal provisions. Second, although Kahn holds that the district court’s duty to include names in the order is no broader than the government’s duty to include them in the application, the Court explicitly recognized that “[sjection 2518(4)(a) requires that the order specify ‘the identity of the person, if known, whose communications are to be intercepted.’ ” 415 U.S. at 151, 94 S.Ct. at 982, 39 L.Ed.2d at 234. This part of the Court’s discussion does strongly imply a responsibility on the government to see that the names of its probable cause suspects are placed in the court’s order — the operative document for initiating a lawful wiretap — as well as the application. This responsibility arises because “the judge who prepares the order can only be expected to learn of the target individual’s identity through reference to the original application . . ..’’Id.


author: PER CURIAM.

text:
    Robert FLOWERS, Plaintiff-Appellant, v. CROUCH-WALKER CORPORATION, Defendant-Appellee.
    No. 74-1163.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 22, 1974.
    Decided Dec. 18, 1974.
    Rehearing Denied Jan. 13, 1975.
    George F. Galland, Jr., Chicago, 111., for plaintiff-appellant.
    John J. Henely, Chicago, 111., for defendant-appellee.
    Before CUMMINGS and TONE, Circuit Judges, and WYZANSKI, Senior District Judge.

       Senior District Judge Charles Edward Wyzanski, Jr., of the District of Massachusetts, is sitting by designation.

   PER CURIAM.

This is an appeal from a judgment for the defendant entered by the United States District Court for the Northern District of Illinois upon a complaint alleging a violation of Title VII of the United States Civil Rights Act of 1964 (42 U.S.C. § 2000e) as well as a violation of the United States Civil Rights Act of 1866 (42 U.S.C. § 1981). The principal point which requires our consideration is whether the manner in which this case was referred by the district court to a magistrate pursuant to its Local Magistrates Rule 1, subd. D(2)(b)(i) was permissible in view of specific provisions of the Civil Rights Act of 1964, general standards appropriate for the trial of cases in the United States District Court, the inhibitions of Article III of the United States Constitution, and the due process clause of the Fifth Amendment to the United States Constitution.

In view of what is the dominant issue before us, we may be brief with respect to the description of the allegations in the complaint which was filed on September 15, 1972.

Plaintiff alleged that defendant violated the two statutes already cited by discharging him on account of his race from a job at the Standard Oil Building in Chicago in February 1972.

When the case was filed in the district court, which ordinarily, under its General Rule 10, in the generality of cases provides for an immediate assignment of a newly-filed case to a particular judge, the clerk instead assigned it immediately to Magistrate Jurco. This assignment was in accord with the special provisions of the court’s Magistrates Rules governing actions brought under Title VII, Subchapter VI, of the Civil Rights Act of 1964 (42 U.S.C. § 20Q0e et seq.), as those provisions are interpreted and applied by the court. The full text of the relevant magistrates rule to which reference has just been made follows.

Local Magistrates Rule 1, subd. D(2)(b) provides:

D. Pursuant to Section 636(b), Title 28, United States Code, each full-time magistrate is assigned and shall perform the following additional duties anywhere in this district and for those purposes is hereby granted the following plenary powers:
(2) Civil Proceedings.
(b) To consider all motions and, where appropriate, [prepare] findings of fact and proposed conclusions of law in the following non-jury matters:
(i) Actions brought under Title VII, Subchapter VI, 42 U.S.C. § 2000e, et seq., for discrimination in equal employment opportunity; .

Magistrate Jurco conducted pre-trial conferences, supervised discovery, and received status reports. When on February 1, 1973 discovery had largely been completed, the clerk assigned the case to District Judge McLaren. On February 12, Judge McLaren referred the case back to Magistrate Jurco to hold further conferences and prepare a final pre-trial order. After having held a pre-trial conference on April 13, 1973 and approved a pre-trial order on April 19, 1973, she returned the case to Judge McLaren to be set for trial. On May 7, 1973 Judge McLaren, using a standard form and without purporting in any way to exercise a discriminating judgment with respect to this particular case or its relation to his total docket, entered the following order without advance notice to the parties or hearing and without requesting of them whether they would prefer to wait beyond June 7, 1973 rather than to have the case tried by a magistrate:

This matter has been assigned to this Court since February 7, 1973 but cannot be scheduled for trial by June 7, 1973 owing to the priority required to be accorded to criminal cases. Accordingly, pursuant to 42 U.S.C. § 2000e — 5(f)(5), this cause is hereby referred to United States Magistrate Olga Jurco as a master for the preparation of a report, including findings of fact and conclusions of law. Fed.R. Civ.P. 53.

Magistrate Jurco held a trial June 26, 1973, and received testimony of witnesses whose stories conflicted and whose credibility was necessarily drawn into dispute. Believing defendant’s witnesses, Magistrate Jurco prepared a report and recommendation that the complaint should be dismissed because plaintiff was laid off not for racial reasons but because of poor work.

Plaintiff filed objections to the Magistrate’s report, and they, together with the record, were received by Judge McLaren. He did not conduct any hearing, nor did he ever see the witnesses whose credibility was in dispute. On November 29, 1973, he issued findings and conclusions upholding Magistrate Jureo’s report in all essential respects and entered judgment for the defendant.

We start with the undoubted proposition that there is no constitutional provision, no specific statute, and no rule approved by the Supreme Court of the United States, or indeed by this court, which authorizes the assignment of cases by clerks of court to magistrates. There are, of course, provisions for assignment to magistrates by judges.

Next, we note that there is in Rule 53 of the Federal Rules of Civil Procedure the clear statement that “a reference to a master shall be the exception and not the rule . . . [and] shall be made only upon the showing that some exceptional condition requires it.” Without pausing for additional citations, it will be sufficient to refer to a celebrated case coming from this circuit in which the Supreme Court added sinew to the rule. LaBuy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957). See also In re Irving-Austin Building Corporation, 100 F.2d 574 (7th Cir. 1938); Adventures in Good Eating v. Best Places to Eat, 131 F.2d 809 (7th Cir. 1942).

Beyond the generally applicable standards governing assignment of cases to magistrates, we now turn to the specific provisions in Title VII of the Civil Rights Act of 1964, more particularly § 706(f)(4) and (5) (42 U.S.C. § 2000e-5(f)(4) and (5)), which provide:

§ 706(f)(4). It shall be the duty of the chief judge of the district (or in his absence, the acting chief judge) in which the case is pending immediately to designate a judge in such district to hear and determine the case. In the event that no judge in the district is available to hear and determine the case, the chief judge of the district eg the acting chief judge, as the case may be, shall certify this fact to the chief judge of the circuit (or in his absence, the acting chief judge), who shall then designate a district or circuit judge of the circuit to hear and determine the case.
§ 706(f)(5). It shall be the duty of the judge designated pursuant to this subsection to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited. If the judge has not scheduled the case for trial within one hundred and twenty days after issue has been joined, that judge may appoint a master pursuant to rule 53 of the Federal Rules of Civil Procedure.

Against the background just cited, we think it plain that, as here applied, and indeed apparently as applied under all cases brought under the Civil Rights Act of 1964, Rule 1, subd. D(2)(b)(i) of the Local Magistrates Rules adopted by the United States District Court for the Northern District of Illinois is invalid because it is so plainly repugnant to the letter and the spirit of § 706(f)(4) and (5) of the Civil Rights Act of 1964.

In language that is unmistakably clear, Congress has imposed upon the judges of the court themselves the duty to assign cases under the Civil Rights Act of 1964. It has indicated a preference to have the case heard by a judge, and has authorized the appointment of a master to hear such a case only when a particular judge has determined that that specific case cannot be heard within 120 days after issue has been joined.

Inasmuch as the rule adopted by the Northern District of Illinois flouts the statute, we find it unnecessary to consider the broader questions: whether the principle of the LaBuy case interpreting Rule 53 of the Federal Rules of Civil Procedure, or the radiations of Article III of the United States Constitution, or the restraints of the due process clause of the Fifth Amendment to the United States Constitution would also condemn . the local rule.

We, of course, recognize that in following the local rule, Judge McLaren deferred to his brethren’s action and is subject to no personal criticism for the way he made the reference or conducted this case. Indeed, he painstakingly went over the formal record and made his own findings and conclusions, even though he did not see the witnesses ore tenus.

In accordance with the foregoing, the judgment is vacated; the case is returned to the Clerk of the district court with instructions to draw the case by lot for assignment to some judge of that court, so that he may proceed in accordance with the law.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The LAIDLAW CORPORATION, Respondent.
    No. 74-1111.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 14, 1974.
    Decided Dec. 12, 1974.
    Elliott Moore, Deputy Associate Gen. Counsel, John F. Depenbrock, Atty., N.L. R.B., Washington, D. C., for petitioner.
    Allen W. Teagle, San Francisco, Cal., for respondent.
    Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and FAIRCHILD, Circuit Judge.
   PER CURIAM.

The National Labor Relations Board seeks enforcement of its order directing respondent Laidlaw Corporation to pay a total of $99,621.67 in backpay to 48 named employees in varying amounts as determined by an administrative law judge after a backpay hearing. The hearing was made necessary by the fact that Laidlaw and the Board were unable to come to any informal agreement concerning the proper backpay awards. We find the various awards made in the Board’s order to be supported by substantial evidence on the record as a whole and further find these awards to be in harmony with existing law. We therefore enforce the Board’s order in all respects.

These awards grew out of a labor dispute which took place in 1966. As a result of that dispute unfair labor practice charges were filed against Laidlaw. On June 13, 1968 the Board issued a decision and order finding Laidlaw guilty of violations of sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 151 et seq., and ordering it to offer to certain named discriminatees immediate and full reinstatement to their former or substantially equivalent employee positions. Laidlaw Corp., 171 NLRB 1366 (1968). It was further ordered that these employees be made whole for loss of pay resulting from the company’s discrimination against them. Id. This Court issued an opinion and order on July 28, 1969 enforcing the Board’s order in full. Laid-law Corp. v. NLRB, 414 F.2d 99 (7th Cir. 1969), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 100 (1970). Subsequent to our decision and order attempts were made to settle on an agreed backpay award for the various discriminatees. When these efforts proved fruitless, a backpay specification and notice of hearing was issued and a hearing had before an administrative law judge. His supplemental backpay decision was ■ issued on November 28, 1973. The Board’s decision and order adopted the administrative law judge’s decision and order without modification. Laidlaw Corp., 207 NLRB No. 94, 85 LRRM 1476 (1973).

Respondent Laidlaw first questions the validity and propriety of the original order for reinstatement and backpay. This question was settled in our previous opinion in this case, and we decline to reconsider our holdings in that opinion.

It is next contended that a strike settlement agreement reached in December of 1966 cut off backpay claims for all claimants not included on a list of 23 names given by the union to Laidlaw incident to that agreement. Laidlaw says that the list was represented by the union to contain the names of all employees seeking reinstatement and that this representation constituted a waiver of reinstatement and backpay rights of all discriminatees not included on the list. The short answer to this contention is that the company had no right to bargain with the union using these employee rights for the ante. At the time of the settlement agreement the company was under a duty to make a bona fide offer of full reinstatement to each of the named discriminatees. Until such an offer was made, these rights could not be waived. Heinrich Motors, Inc., 166 NLRB 783 (1967), enforced, 403 F.2d 145 (2 Cir. 1968). It is clear that the company never intended to make a general offer of reinstatement at the time of the settlement agreement, and in fact this is admitted by Laidlaw in its brief to this Court:

Thus the Company was thoroughly justified in relying upon the Union’s representations that only twenty-three of the strikers desired to return to work. But for those representations, the Company would not have agreed to settle the strike, to reinstate the twenty-three strikers, or to enter into a new and more costly agreement when it was under no obligation to do so.
Respondent’s brief at 19.

Furthermore, Laidlaw failed to offer full and unconditional reinstatement even to the employees named on the list, but instead took these employees back as “new hires” without seniority benefits of any kind. Thus, even accepting Laid-law’s contention that the union list represented all discriminatees desiring to accept the company’s offer, the fact remains that the offer “made” was not the offer to which these people were entitled. A refusal of an offer of partial reinstatement does not waive a discrimi-natee’s right to full reinstatement.

Laidlaw also challenges the Board’s refusal to deduct from the back-pay awards sums received from the union, allegedly for picketing. The record shows, however, that monies disbursed by the union were not contingent on picketing time, but were in fact based on need and family situation. Moreover, those who were employed and who continued to man the picket lines did not receive any strike benefits, consistent with the “need” criteria used to disburse these benefits. Clearly, then, the Board’s finding that the benefits received from the union during the strike were not earnings is supported by substantial evidence on the record.

Finally, respondent claims that certain of the discriminatees failed to make a diligent search for employment as required and that the backpay awards for these employees should be reduced accordingly. Our review of the record shows, however, that the administrative law judge made a careful evaluation of the evidence on this point and that his findings as to each discriminatee are fully supported on the record.

The order of the Board will therefore be

Enforced.


author: CUMMINGS, Circuit Judge.

text:
    Douglas PAULOS, Plaintiff-Appellant, v. Harold A. BREIER, as an Individual and as Chief of Police of the City of Milwaukee, Defendant-Appellee.
    No. 74-1387.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 4, 1974.
    Decided Dec. 30, 1974.

      Gerald P. Boyle, Milwaukee, Wis., for plaintiff-appellant.
    James B. Brennan, City Atty., Thomas E. Hayes, Asst. City Atty., Milwaukee, Wis., for defendant-appellee.
    Before MARIS, Senior Circuit Judge, and CUMMINGS and PELL, Circuit Judges.

      . Senior Circuit Judge Albert B. Maris of the Third Circuit is sitting by designation.

   CUMMINGS, Circuit Judge.

In this action brought under 42 U.S.C. § 1983, plaintiff, a detective employed by the Milwaukee, Wisconsin, Police Department, sought a declaratory judgment that Rule 29, Section 31, of that Department’s Rules and Regulations be declared unconstitutional. He also sought the revocation of an April 6, 1972, order of the defendant Chief of Police finding him guilty of violating the rule and ordering his suspension for five alternate regular off days. Finally, plaintiff sought to recover “an amount equal to his regular rate of pay for all the time worked on his regular five (5) off days,” plus interest.

Rule 29, Section 31, provides as follows:

“Members of the [Police] Department shall not solicit or make contribution in money or other thing, directly or indirectly on any pretext to any person, committee, or association, for political purposes, nor shall they interfere or use the influence of their office for political reasons” (emphasis added).

On March 3, 1972, plaintiff sent the following letter to 54 Milwaukee police officers holding lesser positions:

“Dear Fellow Police Officer:
“Attorney John J. Valenti is a candidate for the office of [County] Supervisor in your district. As you are probably aware, he is the personal attorney for many police officers.
“John has been both my friend and my attorney for more than 15 years. Based on that relationship, I can assure you that he is a man of high integrity, ability and dedication. He is highly qualified for the office he seeks and can best represent your interests in that capacity.
“I strongly urge you, your family, your neighbors and your friends to consider him when you cast your ballot on Tuesday, March 7, 1972.
“Sincerely,
/s/ Douglas Paulos Detective — Milwaukee Police
Dept.”

On March 31, 1972, plaintiff was charged with violating the above rule by “using the influence of his office for political reasons” through sending the foregoing letter “for the express purpose of supporting a candidate seeking political office.” As noted, on April 6th, two days after his departmental trial, the defendant Chief of Police found plaintiff guilty as charged.

Defendants filed a motion to dismiss the action on the ground that the complaint failed to state a claim upon which relief could be granted. After considering the respective parties’ briefs, the district court rendered an unreported memorandum opinion and order. One of the two defendants, the City of Milwaukee, sought and received a dismissal of the case as to it because of City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109, and plaintiff has not appealed this ruling. The district court also upheld the constitutionality of Rule 29, Section 31, and dismissed the action, resulting in this appeal. We affirm.

Relying primarily upon United Public Workers v. Mitchell, 330 U.S. 75, the Supreme Court’s celebrated opinion upholding the constitutionality of the Hatch Act (5 U.S.C. § 7324(a)(2)), the district court held that Rule 29, Section 31, is not unconstitutional for vagueness. An overbreadth attack was also rejected on the ground that the rule “primarily proscribes conduct” and that any over-breadth in the regulation was not “substantial . . . judged in relation to [its] plainly legitimate scope.” Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830.

In this Court plaintiff makes a three-pronged attack on the constitutionality of Rule 29, Section 31. He asserts that the regulation violates the First and Fourteenth Amendments as applied to the facts of this case, that the regulation is overbroad on its face, and that it is void for vagueness.

Constitutionality of the Regulation as Applied

Plaintiff admits that he “sent a letter to some fellow officers, recommending their votes for a candidate” for political office. He also concedes that as a detective, he has a superior position to that of the patrolmen to whom the letter was sent. It is clear on the face of the letter that Paulos identified himself as a detective. The department found that plaintiff had thereby used “the influence of office for political reasons.” In asking this Court to find the regulation unconstitutional as applied to his activity, plaintiff asserts, in effect, that sending the letter was an act entitled to constitutional protection and that defendant cannot demonstrate a sufficiently compelling interest to justify the restriction placed upon plaintiff’s First Amendment freedoms by the department’s application of the challenged regulation to the facts of this case. We disagree.

The Supreme Court has recognized that a balance must be struck between the First Amendment interests of a state employee and the interests of the state in promoting the efficiency of the public services that it performs through its employees. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811, cited approvingly in CSC v. Letter Carriers, 413 U.S. 548, 564, 93 S.Ct. 2880, 37 L.Ed.2d 796. The latter opinion detailed many of the interests that the federal government has in restricting the political activities of its employees. 413 U.S. at 554-567, 93 S.Ct. 2880. We believe that a municipality has similar interests in preserving the apolitical nature of its police force. Since the Court’s opinion in Letter Carriers fully explores the justifications for restricting government employees in their participation in political campaigns and party activities, there is no need to reiterate them here.

In a companion case to Letter Carriers, Broadrick v. Oklahoma, supra, the Supreme Court upheld a state statute that restricted the political activities of certain state employees. In the course of the opinion the Court noted, “Under the decision in Letter Carriers, there is no question that [the Oklahoma statute] is valid at least insofar as it forbids classified employees from: * * soliciting votes or assisting voters at the polls * * * (emphasis added).” 413 U.S. at 616-617, 93 S.Ct. at 2918. Thus it is clear that a state government may forbid its employees to solicit votes. The Supreme Court has recognized that an interest like plaintiff’s is not unqualifiedly entitled to constitutional protection and that a government may have interests which outweigh those of its employees. On the facts of this case we conclude that the interests of the municipality in preserving a nonpartisan police force and the appearance thereof, which are similar to the federal interests enumerated in Letter Carriers, outweigh the interests of plaintiff in conveying his endorsement to subordinate officers. Accordingly, the regulation was not unconstitutional as applied to the activity of plaintiff.

Facial Overbreadth Argument

We have determined supra that Rule 29, Section 31, is not constitutionally overbroad in proscribing plaintiff’s activity in this case. In order to attack the regulation as overbroad on its face, he must, therefore, demonstrate that he has standing to raise the rights of others, those who may be chilled in the exercise of their constitutional rights by the allegedly overbroad sweep of the regulation’s language. Ordinarily, of course, a litigant lacks standing to assert the rights of others. See, e. g., Austin v. The Alderman, 7 Wall. 694, 698-699, 19 L.Ed. 224; United States v. Raines, 362 U.S. 17, 21-22, 80 S.Ct. 519, 4 L.Ed.2d 524. In the area of First Amendment freedoms, however, the Supreme Court has recognized an exception to this rule based upon the Court’s concern for the chilling effect that an overbroad statute might have on the rights of others. Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 14 L.Ed.2d 22.

The Supreme Court has recently made clear that this exception does not confer standing to assert the rights of others where there are a substantial number of situations to which the statute or regulation might validly apply. Letter Carriers, supra, 413 U.S. at 580-581, 93 S.Ct. 2880; Broadrick, supra, 413 U.S. at 609-618, 93 S.Ct. 2908; Parker v. Levy, 417 U.S. 733, 756-762, 94 S.Ct. 2547, 41 L.Ed.2d 439. It is obvious that a regulation prohibiting policemen from “using the influence of office for political reasons” is constitutionally applicable to a myriad of situations. For example, the regulation could be constitutionally invoked against a • police officer who promised promotion only to those of his subordinates who agreed to campaign for the candidate of the superior’s choice or to an officer who threatened a merchant on his beat with unusually strict enforcement of local ordinances if the merchant refused to put a certain candidate’s placard in his store’s window. The regulation has a substantially legitimate sweep and, therefore, plaintiff lacks standing to assert the rights of others. If there are persons on the edges of the regulation’s applicability whose rights will be unconstitutionally infringed, it will be for them to make the challenge in the context of a concrete dispute, so that a court need not base its decision on mere hypothetical infringements which this plaintiff asserts.

Void for Vagueness Argument

We cannot agree that the applicable language in Rule 29, Section 31, is “so vague as not to comprise fair warning to him of what conduct was thereby prohibited.” A reasonable man would have had fair notice that as a police detective he was prohibited by the regulation from sending a political endorsement to the patrolmen in his voting district. The regulation was not so vague that “men of common intelligence must necessarily guess at its meaning.” Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322. As the Court noted in Letter Carriers:

“there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.” 413 U.S. at 578-579, 93 S.Ct. at 2897.

In United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989, the Court stated its reluctance to invalidate a provision with a substantially constitutional sweep: “[T]he general class of offenses to which [the provisions are] directed is plainly within [their] terms [and they] will not be struck down as vague even though marginal cases could be put where doubts might arise.” 347 U.S. at 618, 74 S.Ct. at 812,-quoted, approvingly in Letter Carriers, supra, 413 U.S. at 579, 93 S.Ct. 2880. Paulos’ activity clearly falls within the ambit of the challenged regulation.

Paulos asserts that the regulation would be unconstitutionally vague if applied to a number of situations arguably within its sweep. Since he had fair warning that discipline would be imposed for his conduct, he is not entitled to attack the regulation “because the language would not give similar fair warning to other conduct which might be within its broad and literal ambit.” Parker v. Levy, 417 U.S. at 756, 94 S.Ct. at 2562. Paulos, like Dr. Levy, has confused the standing concepts regarding facial overbreadth in First Amendment areas with those regarding vagueness. Paulos lacks standing to raise the rights of others in his vagueness attack on the regulation.

A prior case also decided by the Supreme Court last term reinforces our decision. In Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605, a Massachusetts flag misuse statute was invalidated because of vagueness. Justice Powell’s opinion noted, however, that if Goguen’s behavior had rendered him a hard-core violator, the statute might not be impermissibly vague, whatever its implications for those engaged in different conduct, adding:

“To be sure there will be statutes that by their terms or as authoritatively construed, apply without question to certain activities, but whose application to other behavior is uncertain. The hard-core violator concept makes some sense with regard to such statutes.” 415 U.S. at 577, 94 S.Ct. at 1249.

Through its proscription of using the influence of their position as police officers for political reasons, this regulation by its terms applies to Paulos’ letter to police officers of inferior rank, signed in his capacity as a detective, and endorsing a named lawyer for election to the office of County Supervisor, thus satisfying the hard-core violator concept. See also Arnett v. Kennedy, 416 U.S. 134, 158 — 163, 94 S.Ct. 1633, 40 L.Ed.2d 15.

Finally, in Bence v. Breier, 501 F.2d 1185 (7th Cir. 1974), a panel of this Court (Judge Jameson concurring) held a Milwaukee Police Department rule unconstitutionally vague. Although neither party has cited Bence to this panel, it deserves discussion here. Bence was disciplined under a regulation that proscribed “conduct unbecoming a member and detrimental to the service.” He had “merely sent a letter to the city’s labor negotiator outlining a proposed bargaining demand for the next round of negotiations, explaining the incident which provided a basis for the demand, and requesting that if the facts relative to the incident were found to be true, the appropriate compensatory measures be taken.” 501 F.2d at 1193. Judge Castle’s opinion distinguished Levy (which had upheld an almost identical provision applicable to the armed services) because there was no long history of interpretations in the police context which gave meaning to the broad regulation and because the reasons for a looser standing of vagueness in cases involving the military enunciated in Levy were not present in municipal police cases.

We have found Rule 29, Section 31, to be constitutionally applicable to Paulos’ conduct in this case, despite his charge of vagueness, and without resort to either a history of clarifying interpretations or a looser standard of vagueness for police cases. In Bence both the opinion of the Court and the concurrence found the challenged regulation vague as applied to the particular conduct in question. The opinion of the Court also found the regulation vague on its face, relying in part upon the “as applied” holding to avoid standing problems. 501 F.2d at 1193. Unlike the panel in Bence, we have here held that plaintiff had notice that his conduct in endorsing the County Supervisor’s candidacy of his attorney to the patrolmen was proscribed by Rule 29, Section 31, and that, therefore, the regulation is not vague as applied to his conduct. The two cases involve different regulations and different conduct. An examination of these cases demonstrates that the vagueness argument in Bence was much stronger than here and that, therefore, the cases are distinguishable.

In light of the recent closely related Supreme Court precedents the judgment is affirmed.

      . The district judge noted and plaintiff concedes that as a detective, Paulos “stood in a position of authority over those patrolmen who received the letter.”

      . The Mitchell holding was recently reaffirmed in CSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796.

      . Plaintiff’s brief at 10.

      . In Letter Carriers the Supreme Court noted:
      “it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it if confidence in the system of representative Government is not to be eroded to a disastrous extent.” 413 U.S. at 565, 93 S.Ct. at 2890.

      . The district judge held that Paulos had engaged in “conduct bordering on speech.” Consequently, he applied a stricter standard in determining whether plaintiff was entitled to use the exception to the normal rules of standing. This was in accord with the Supreme Court’s dictates in Broadrick v. Oklahoma, supra, where the Court said:
      “But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ towards conduct and that conduct — even if expressive — falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect — at best a prediction. — cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. Of. Alderman v. United States, 394 U.S. 165, 174-175, 89 S.Ct. 961, 966-967, 22 L.Ed.2d 176 (1969). To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” 413 U.S. at 615, 93 S.Ct. at 2917-2918.
      While we agree with the district court that the sending of the letter to subordinates urging them to support a political candidate is toward the conduct end of the speech-conduct continuum, we think that, even if it were viewed as closer to pure speech, plaintiff would not have standing to assert the rights of third parties because the interests of the state and the substantiality of the clearly legitimate sweep of the regulation are so great.

      . Plaintiff’s brief at 3.

      . Pending on petition for certiorari, No. 74-565, Supreme Court October Term, 1974.


author: PER CURIAM:

text:
    Charles A. SCHICKE et al., Plaintiffs-Appellants, v. James T. LYNN, Secretary of Housing and Urban Development, et al., Defendants-Appellees.
    No. 198, Docket 74-1690.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 21, 1974.
    Decided Dec. 20, 1974.
    John Keogh, Jr., Norwalk, Conn. (John A. Mottalini, Keogh, Candee & Burkhart, Norwalk, Conn., of counsel), for plaintiffs-appellants.
    Karen K. Siegel, Atty., Dept, of Justice, Washington, D. C. (Stewart H. Jones, U. S. Atty., for the District of Connecticut, Hartford, Conn., Carla A. Hills, Asst. Atty. Gen., New York City, Stephen F. Eilperin, Atty., Dept, of Justice, Washington, D. C., of counsel), for Federal defendants-appellees.
    Arthur J. Goldblatt, Corp. Counsel, Norwalk, Conn., for defendant-appellee City of Norwalk.
    Before SMITH, HAYS and MANSFIELD, Circuit Judges.
   PER CURIAM:

The order of the district court is affirmed for the reasons set forth in Judge Blumenfeld’s well-reasoned opinion, see 386 F.Supp. 97 (D.Conn.1974).