author: SETH, Circuit Judge.

text:
    Jean MOUCKA, Appellee, v. Peggy v. WINDHAM, Appellant.
    No. 73-1063.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted July 12, 1973.
    Decided Aug. 17, 1973.

      Gail F. Linn, Denver, Colo. (David H. Caplow, Los Angeles, Cal., and Bill J. Scholer, Albuquerque, N. M., on the brief), for appellant.
    Melvin L.' Robins, Albuquerque, N. M. (Lorenzo A. Chavez, Albuquerque, N. M., with him on the brief), for appellee.
    Before SETH, HOLLOWAY and DOYLE, Circuit Judges.
   SETH, Circuit Judge.

Peggy V. Windham appeals, from the judgment of the United States District Court for the District of New Mexico awarding Jean Moucka the sum of $16,050.00, interest and attorney fees in a diversity action for recovery on a note.

From the rather scant record before us, we are able to glean the following facts: On December 15, 1967, Peggy V. Windham was married to Robert L. Windham. They both were residing at, although apparently were not actual legal residents of, Ruidoso, New Mexico. Both were officers and stockholders of a corporation known as Eldorado Villa Estates, Inc. On that date, Robert L. Wind-ham, as president of Eldorado Villa Estates, Inc., and on behalf of that corporation, executed and delivered a promissory note to Jean Moucka in consideration of her conveyance to the corporation of real property which became part of the Eldorado Villa Estates development in or near Ruidoso, New Mexico. Robert L. Windham also signed the same promissory note as an individual, and the trial court found that this execution of the note was “on behalf of the marital community of himself and his wife, Peggy V. Windham.” This is not challenged on appeal.

The Windhams were divorced in June 1970 by a decree of the District Court of Tarrant County, Texas. In that decree, Robert L. Windham was awarded, as his sole and separate property, inter alia, the interest which he and Peggy V. Windham had formerly owned as community property in Eldorado Villa Estates, Inc., including the lands owned by the corporation in Ruidoso, New Mexico, which, in turn, included the real property which Jean Moucka had conveyed to the corporation. Apart from certain property not here in question, the divorce decree required that:

“. . . Robert L. Windham shall assume full responsibility for, and pay and discharge, all other community liabilities of Peggy V. Windham and Robert L. Windham (excluding any liabilities which Peggy V. Windham has personally incurred since their separation in’ August, 1968) . ' . ; and Robert L. Windham shall fully indemnify and protect Peggy V. Windham from the payment of such community liabilities and from any loss, damage or expense to her of any kind whatever (including but not limited to attorneys’ fees, court costs, investigative „ expenses, and payment of any judgment or settlement) arising out of or as a result of such liabilities, real or asserted.” Shortly after the divorce, Robert L. Windham petitioned for voluntary bankruptcy, listing as part of his assets the stock in Eldorado Villa Estates, Inc. The Referee in Bankruptcy entered an order approving the sale by the trustee of the Eldorado stock to one Don Decker who, in return, agreed to assume certain of Robert L. Windham’s liabilities listed in the petition for bankruptcy, including the remainder of the unpaid balance due to Jean Moucka on the promissory note. The court found that the note became in default “. . . at which time there was due and owing the plaintiff [Jean Moucka] the sum of $16,050.00, together with interest at the rate of 10 percent per annum and reasonable attorneys fees.”

Jean Moucka brought suit against Don Decker and Peggy V. Windham for the amount due her on the note. The matter was tried to the court and, although Don Decker did not appear, Mrs. Windham appeared through counsel. The trial court awarded judgment to Jean Moucka against Peggy V. Wind-ham and Don Decker, “ . . .in the sum of $16,050.00, with interest thereon at 10 percent per annum from July 30, 1970 until paid, together with $500.00 attorneys fees.” The court, in its conclusions of law, found that:

“2. The execution of the promissory note on December 15, 1967, . created a community debt of the marital community of Robert L. Windham and Peggy V. Windham.
“3. The plaintiff is entitled to judgment against the defendant Peggy V. Windham.
“4. Property acquired during cov-erture as part of the marital community of Robert L. Windham and the defendant Peggy V. Windham is subject to enforcement of the judgment to be entered herein against said defendant, including any such property awarded her by reason of the decree of divorce heretofore mentioned. Such judgment is not enforceable against any other property or estate of the defendant Peggy V. Windham.”

On appeal, Peggy V. Windham contends that the trial court’s award violated the Full Faith and Credit Clause of the United States- Constitution, art. IV, § 1, in that it failed to give due credit to the fact that the Texas divorce decree transmuted what had theretofore been community property into Robert L. Windham’s separate property. It is doubtful whether this issue was raised directly at trial; however, assuming that Peggy V. Windham’s requested findings of fact and conclusions of law implicitly relied upon the premise of full faith and credit, the court’s judgment in no way violates that constitutional provision. The Texas decree awarded Peggy V. Windham certain property which had been community property during coverture, free from any claim of Robert L. Windham. Jean Moucka was not a party to that action, was not represented therein and is nowhere mentioned in the final decree, Thus, whether looking to the principles of the Full Faith and Credit Clause, or to the corresponding principles of res judicata and collateral estoppel, see, e. g., Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), Jean Moucka was not bound by the Texas court’s decree. See Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552 (1951). The Texas decree clearly bound Robert L. Windham and Peggy V. Wind-ham, inter sese. However, it could not have any effect upon the rights of a third party not privy to nor in privity with any of the parties to the decree. As the Ninth Circuit stated in the case of Britt v. Damson, 334 F.2d 896 (9th Cir.), “. . . the award purported only to settle property rights as between husband and wife, leaving unaffected the preexisting rights of third persons.”

While there appear to be no New Mexico cases directly in point, we believe that the trial court correctly concluded that under New Mexico law, a community debt incurred prior to the dissolution of the marital community, and for the benefit thereof, would properly be payable out of “community” funds notwithstanding the fact that such “community” property had been transmuted into “separate” property by virtue of a decree of divorce.

The court found that the debt was that of the community. There has been no showing that although Peggy V. Windham’s signature does not appear on the note the debt was not one incurred by the community. Malcolm v. Malcolm, 75 N.M. 566, 408 P.2d 143 (1965). The New Mexico Supreme Court, in Jones v. Tate, 68 N.M. 258, 360 P.2d 920 (1961), stated that ". . . after divorce the parties are no longer husband and wife, and the property, is no longer community property. . . .” This holding was in relation to N.M.Stat.Ann.1953, § 57-4-3, which states that the husband is the manager of the community personalty but that both husband and wife must join “in all deeds and mortgages affecting real estate.” The court there held that after divorce the erstwhile husband could effectively convey his one-half interest in property which, by reason of their divorce, had been transmuted from community property to property which husband and wife held as tenants in common. It is apparent, therefore, that the holding in Jones v. Tate has little, if any, relation to the facts of the case now before us. Likewise the language in Harper v. Harper, 54 N.M. 194, 217 P.2d 857 (1950), that “. . . upon division of community property incident to divorce, separation or support suits, what was theretofore community property becomes henceforth the separate property of the respective spouses,” concerned the divorce court’s power to award alimony out of the husband’s separate property. As such, the characterization of property as “community” or “separate,” as between the former spouses, bears no relation to whether property, whether termed community, separate, or otherwise, which was, during coverture, community property is subject to community debts incurred during coverture.

Washington’s law as to community property is similar to that of New Mexico in some respects. In both states the rule is that when a husband as manager of the community incurs a debt, it is presumptively a community debt. Denton v. Fireman’s Fund Insurance Co., 357 F.2d 747 (10th Cir.); Dizard & Getty v. Damson, 63 Wash.2d 526, 387 P.2d 964 (1964). Under Washington’s community property law :

“. . . [D]ivorce does not terminate such community property obligations. The burdens continue on the property of the community and can be asserted against the portion of it awarded to the wife in divorce as her separate property — and this result follows even though the wife may have no knowledge of the obligation. See Capital Nat’l Bank v. Johns, 1932, 170 Wash. 250, 16 P.2d 452; Dizard & Getty v. Damson et ux., 1964, 63 Wash.2d 526, 530, 387 P.2d 964; Britt v. Damson, 9 Cir., 1964, 334 F.2d. 896.” Watson v. Duce, 380 F.2d 535 (9th Cir.).

See also Mechem, Creditors Rights in Community Property, 11 Wash.L.Rev. 80, 86; 1 de Funiak, Principles of Community Property, § 95, at 267-68. We believe that the state courts of New Mexico would apply the same rule. Our holding in Atlas Corp. v. DeVilliers, 447 F.2d 799 (10th Cir.), is not to the contrary. The question of whether or not the debt owed was one of the community or of the judgment-debtor-husband alone was not in issue. As we stated in that case: '

“. . .In those cases [Eaves v. United States, 433 F.2d 1296 (10th Cir.), and Denton v. Fireman’s Fund Insurance Co., 357 F.2d 747 (10th Cir.)], we were dealing with community property while the man and woman were in coverture. In the instant case, Mrs. DeVilliers was divorced from Rodney DeVilliers by the time Mrs. DeVilliers intervened seeking an adjudication of her interest in the stock.”

Thus, assuming that the “community” funds now in Peggy V. Windham’s possession can be traced and identified as such, they are subject to the payment of the amount due on the promissory note to Jean Moucka. See Eaves v. United States, 433 F.2d 1296 (10th Cir.), and cases cited therein. This is exactly the effect of the trial court’s judgment.

We express no view as to whatever rights, if any, Peggy V. Windham may have against either Robert L. Windham, under the divorce decree or otherwise, Don Decker by way of contribution, indemnity or the like, or against the corporation as joint and several obligor.

Peggy V. Windham also asserts that the provisions of N.M.Stat.Ann. 1953 (1971 Supp.), § 57-4-10, preclude the imposition of the judgment in this case. That section, however, even under a broad interpretation, prohibits holding community property liable for a contract of indemnity unless both husband and wife are signatories thereto. It therefore has no bearing whatsoever on this case which is a simple action for recovery on a promissory note.

Peggy V. Windham further contends that the signature of the supposed secretary of Eldorado Villa Estates, Inc. on the promissory1 fióte was, basically, a forgery and therefore there has been a fraud on the court. If this is so, the courts may inquire into the alleged impropriety and rectify the situation. The matter was, however, presented to the trial court in a motion for new trial and the motion was denied. More importantly, this 'issue has no bearing whatsoever on the facts in issue before us. The question is not whether the corporation is liable on the promissory note; it is whether community funds are liable for the payment of a community debt. Robert L. Windham signed the note in his individual capacity and, as such and on behalf of the community, the community is liable. Whatever the liabilities of the corporation may be is of no import in this action. Jean Moucka did not sue the corporation. She sued Peggy V. Windham for the payment of a community debt and is entitled to recover therefor.

Affirmed.


source: Caselaw Access Project

author: ADAMS, Circuit Judge. ALDISERT, Circuit Judge

license: Public Domain

text:
    Emma BOHLEN, Appellee, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Appellant.
    No. 72-1884.
    United States Court of Appeals, Third Circuit.
    Argued May 25, 1973.
    Decided Aug. 15, 1973.

      Roland J. Artigues, Galfand, Berger, Senesky, Lurie & March, Philadelphia, Pa., for appellee.
    Harlington Wood, Jr., Asst. Atty. Gen., Carl J. Melone, U. S. Atty., Walter H. Fleischer, James C. Hair, Jr., Attys., Department of Justice, Washington, D. C., for appellant.
    Before ALDISERT and ADAMS, Circuit Judges and STAPLETON, District Judge.
   OPINION OF THE COURT

ADAMS, Circuit Judge.

The Court is asked on this appeal to determine the narrow issue whether, under the Medicare provisions of the Social Security Act, prior to the 1972 amendment, the denial by a carrier of reimbursement to an individual for dental care is subject to administrative review. The district court held, in an exhaustive opinion, that, under the Medicare Act, an individual denied reimbursement for the kind of dental care involved here may seek review by the Secretary of Health, Education and Welfare. The Secretary disagrees and has filed this appeal.

Plaintiff, Emma Bohlen, was injured in an automobile accident in August, 1968. She suffered two dislocated hips, a fractured right hip, a laceration of the arm, a broken nose and a fractured jaw. While in the hospital, the fractured jaw was reduced by an oral surgeon, and the cost of that dental procedure was covered by Medicare. Later, Mrs. Bohlen engaged the services of another dentist for follow-up dental work in the nature of realigning and grinding her teeth to correct the separation of the maxilla (jaw) from the cranium, a condition which had so changed her “bite” that her upper and lower teeth did not meet. As a result of this improper “bite,” Mrs. Bohlen was unable to chew and eat adequately and her fracture was not healing correctly. In letters, which are part of the record in this case, the second dental surgeon described the work he had performed on Mrs. Bohlen as “absolutely necessary post-operative treatment” that was “in no way related to normal dental care or maintenance. . . . ”

Mrs. Bohlen submitted to Pennsylvania Blue Cross-Blue Shield a Request for Medicare Payment for the services performed by the dental surgeon. The carrier rejected the claim on the ground that the dental services involved were not covered under Medicare. During an informal review, her claim was again denied by the carrier, and subsequently by a Medicare Fair Hearing Officer. Mrs. Bohlen was then advised by the Social Security Administration that no further review could be sought by her since the Social Security Act does not provide for administrative or judicial review from a determination concerning the type of claim presented by Mrs. Bohlen.

Although this appeal turns solely upon the issue whether the denial of reimbursement is subject to review, it is important to place the problem presented in a perspective appropriately illuminated by the issue upon which review is sought.

Mrs. Bohlen was seeking reimbursement based upon part B of the Medicare Act that provides benefits for “medical and other health services.” The Act limits such benefits to “professional services performed by physicians. .,” and defines “physician,” in part, as “a doctor of dentistry . who is legally authorized to practice dentistry . . . but only with respect to (A) surgery related to the jaw or any structure contiguous to the jaw or (B) the reduction of any fracture of the jaw or facial bone. . . . ”

The Act excludes from coverage under part B “any expenses incurred for items or services (12) where such expenses are for services in connection with the care, treatment, filling, removal, or replacement of teeth or structures directly supporting teeth.” It was on the basis of this exclusion that the carrier and the Fair Hearing Officer determined that Mrs. Bohlen’s dental treatment was not covered under Medicare.

Whether Mrs. Bohlen does or does not have a statutory right of review under the Medicare Act depends upon an interpretation of § 1395ff of the Act. That section, prior to the 1972 Amendment, see note 14 and accompanying text, infra, provides, in relevant part:

“(a) The determination of whether an individual is entitled to benefits under part A or part B, and the determination of the amount of benefits under part A, shall be made by the Secretary -in accordance with regulations prescribed by him.
“(b) Any individual dissatisfied with any determination under subsection (a) of this section as to entitlement under part A or part B, or as to amount of benefits under part A where the matter in controversy is $100 or more, shall be entitled to a hearing thereon by the Secretary to the same extent as is provided in section 405(b) of this title, and in the case of a determination as to entitlement or as to amount of benefits where the amount in controversy is $1,000 or more, to judicial review of the Secretary’s final decision after such hearing as is provided in section 405(g) of this title.”

Thus, the issue whether Mrs. Bohlen qualifies for a statutory right of review narrows itself to whether the claim she submitted for the second dental procedure raises a question of “entitlement” or one of “amount.”

Having carefully considered the record, and the various contentions, we conclude that the district court correctly determined that “a question of entitlement is one which raises the issue of whether regardless of the amount' of benefits in question, the claimant has the right to receive any payment for the services rendered, or, conversely, whether the claim is to be excluded entirely.”

The district court, meticulously examining the legislative history of § 1395ff, noted the reasons suggested in Congress for allowing review in “entitlement” matters but not in those involving “amount,” and articulated several reasons fathomed by the district judge sua sponte to support such a distinction. From its analysis, the district court concluded that Mrs. Bohlen’s claim for reimbursement raises an issue of “entitlement,” not “amount.” It would serve little, if any, purpose for this Court to reiterate the cogent bases for the lower court’s conclusion concerning Mrs. Bohlen’s claim since they are set forth in considerable detail in the trial judge’s opinion, 345 F.Supp. 124. Rather, we hold simply that, for the reasons stated by the district judge, Mrs. Bohlen is entitled to review by the Secretary.

While affirming the judgment of the district court, we are not unmindful that subsequent to the opinion of the lower court in this case Congress amended the Social Security Act in such a way that those now raising claims such as Mrs. Bohlen’s in the present case would apparently not be entitled to administrative review by the Secretary. Thus, under the present version of § 1395ff, it would seem that the concept of “entitlement” relates, as the Secretary has argued throughout this litigation, only to the right of an individual to participate, vel non, in the Medicare program, and not to the right of an enrollee to reimbursement.

But cases must be decided on the basis of a statute’s language and, where appropriate, resort may be had to legislative history at the time of the relevant enactment’s passage. We thus agree with the recent decision by the Court of Appeals for the Fourth Circuit holding that “determinations as to entitlement to benefits are properly subject to review . . .,” notwithstanding the 1972 Amendment. While subsequent legislative history may shed light upon the intent earlier embodied in a given piece of legislation, the remarks of a single proponent of the amending legislation do not, without more, compel the reversal by us of the district court’s well-reasoned judgment. Indeed, one might well argue that the 1972 amendment, and Senator Bennett’s remarks in support thereof, indicate that the 1962 legislation does not express a restrictive notion of reviewability. Thus, nothing in the 1972 Amendment nor the legislative history accompanying it convinces us that the district court erred in concluding that, under the statute as originally enacted, Mrs. Bohlen raised a claim of “entitlement” and therefore was protected by the Act’s review provision.

The judgment of the district court will be affirmed.

ALDISERT, Circuit Judge

(dissenting).

Blue Shield is an insurance carrier under contract with the Social Security Administration to administer a portion of the Medicare program. We are to decide whether the denial by Blue Shield of reimbursement to an individual for dental services necessitated by a broken jaw raises (a) a question of “entitlement” for which there is a statutory right of administrative review by the Secretary of Health, Education and Welfare and thereafter judicial review or, (b) a question of “amount”, for which there is no such statutory right of re-, view. Coneededly there is ambiguity over the meaning of the word “entitlement” as used in the statute.

The Secretary interprets the word to mean eligibility to participate in the Medicare program, i. e., eligibility for any benefits of Medicare. Thus, if an applicant is denied the coverage of the Medicare provisions of the Social Security Act, he is entitled to an appeal to the Secretary and thence to the federal courts. The interpretation of Mrs. Boh-len, accepted by the district court and the majority, and by the Fourth Circuit in Ridgeley v. Secretary of HEW, 475 F.2d 1222 (4th Cir., 1973), is that the word means eligibility not only to participate in the Medicare program, but eligibility for a certain benefit; and that therefore, when the applicant is denied a certain requested Medicare benefit, he has a right to exhaustive administrative and judicial review.

To solve this issue we must wade into the morass of statutory construction; and I am the first to concede that a reasonable case can be made for the majority. In approaching this question, I am reminded of a favorite expression of one of the departed brothers of this court, The Honorable Abraham L. Freedman, who was fond of saying, “The way you come out on this question depends on the way you go 'in.” This was a cryptic method of expressing modern notions of public policy or social welfare, sometimes called Cardoza’s “sociological method,” sometimes called “result-orientation.” I do not use the notion “result-orientation” in a pejorative sense, but merely as some consideration of the relative desirability of the result of one decision or another. Cardozo referred to this type of decision making as “along the lines of justice, morals and social welfare, the mores of the day; and this I will call the method of sociology.” “Result-orientation,” according to Judge Henry Friendly, must “refer to a judge’s personal belief in what is desirable, formed before study of the case at' hand and resistance to contrary arguments . . . [t]he way to handle this kind of ‘result-orientation’ is to require that a judge keep his personal beliefs as to desirability in their appropriate subordinate place in the judicial process — not to insist on his pretending to an intellectual equilibrium on great policy matters that cannot be expected, nor in many instances, desired.”

In this ease, it is relatively easy to resolve the ambiguity in favor of the individual applicant who has claimed a wrong under the Medicare program. There is a strong feeling abroad in this land that there should be review upon review upon review of all decisions, especially those associated with the government. To reach this result one simply takes a broad view of the word “entitlement” in the following provision of 42 U.S.C. § 1395ff(b): “Any individual dissatisfied with any determination under subsection (a) of this section as to entitlement under Part A or Part B, or as to the amount of benefits under Part A . . .

The majority’s interpretation is a warmhearted, generous gesture that comports with the modern concept of unlimited judicial review of virtually every aspect of contemporary American life. Thus, as here, when an applicant for Medicare has a difficulty with her Blue Shield claim she is then entitled to the following: (1) a right to exhaust the entire Blue Shield administrative procedure; (2) if dissatisfied, she then may institute and prosecute an administrative process through the various levels in the Department of Health, Education and Welfare; (3) if dissatisfied, she may file an action in the district court; (4) if dissatisfied there, to the United States Court of Appeals; and (5) if dissatisfied here, to the United States Supreme Court. All this because of a dispute over a Medicare dental bill.

I do not agree. And rather than become involved in an exercise of semantics or the juxtaposition of phrases, I choosé another route. I acknowledge Judge Friendly’s description of the task of statutory construction as “excruciating in its demand for judicial objectivity.” Perhaps, the best advice is that offered by Judge Learned Hand —the judge “must try as best he can to put into concrete form what [the common] will is, not by slavishly following the words, but by trying honestly to say that was the underlying purpose expressed.”

First, I am impressed by the interpretation of this statute by the Secretary of Health, Education and Welfare. The expertise of his department is entitled to some, if not considerable, weight; and here I am willing to accept their view. The Secretary has interpreted the statute to mean that “entitlement” relates only to an individual’s right to participate in the Medicare program. Mrs. Bohlen was not denied the right to participate in the program. She was simply denied the dental services she claimed. The Secretary contends, “It is apparent from the language of the Medicare provision that Congress intended that the Secretary delegate to carriers the day-to-day administration of the Supplementary Medical Insurance Program. Specifically, the Secretary is directed to arrange for carriers to perform the functions of payor, auditor, regulator, innovator of efficient utilization procedures, and communicator of program ideas (42 U.S.C. 1395u(a)). In addition, pursuant to contracts with the Secretary, carriers are to ‘otherwise assist, in such manner as the contract may provide, in discharging administrative duties necessary to carry out the purposes of’ the program (42 U.S.C. 1395u(a)(4)), and to

* * * establish and maintain procedures pursuant to which an individual enrolled under this part will be granted an opportunity for a fair hearing by the carrier when requests for’payment under this part with respect to services furnished him are denied or are not acted upon with reasonable promptness or when the amount of such payment is in controversy * * *.

(42 U.S.C. 1395u(b)(3)(C).”

Conforming with the statutory language, the Secretary by contract and regulation has required carriers to make a determination as to what items and services furnished are covered, but the Secretary has precluded carriers from determining “whether an individual is entitled to coverage under the Supplementary Medical Insurance Plan” because this is a “factor for which thé Social Security Administration has sole responsibility.” 20 C.F.R. 405.803(c). And this is the aspect of the Medicare program which the Secretary deems subject to administrative and judicial review. The Secretary presents a sound argument and no semantic excursions in other directions can convince me otherwise.

Secondly, I am aware that as a general proposition one session of Congress cannot, by subsequent statutory declaration, legislate the intention of a previous Congress. Nevertheless I am impressed that the statutory provision at issue is relatively new legislation adopted in 1965 and that seven years later Congress acted to remove the ambiguity. The Congressional amendment provided:

(b)(1) Any individual dissatisfied with any determination under subsection (a) as to—

(A) Whether he meets the conditions of § 226 of this act or § 103 of the Social Security amendments of 1965, or

(B) Whether he is eligible to enroll or has enrolled pursuant to the provisions of Part B of this title . . . ,

shall be entitled to a hearing thereon by the Secretary to the same extent as is provided in § 205(b) and to judicial review of the Secretary’s final decision after such hearing as is provided in § 205(g). § 2990 Social Security Amendments of 1972 (Pub.L. 92-603 October 30, 1972).

In the Senate debates on H.R. 1, the bill encompassing the 1972 amendment, Senator Bennett stated: “[T]he purpose of the amendment is to make sure existing law, which gives the right of a person to go to court on the question of eligibility to receive welfare [i. e., Medicare benefits], is not interpreted to mean he can take the question of the federal claim to court. If he did we would never have an end to it. This is to reconfirm the original intention of the law that the courts can determine only eligibility.

“The situations in which Medicare decisions are appealable to the courts were intended in the original law to be greatly restricted in order to avoid overloading the courts with minor matters. The law refers to ‘entitlement’ as being an issue subject to court review and the word was intended to mean eligibility to any benefits of Medicare but not to decisions on the claim for payment for a given service.” (Emphasis supplied.) At the risk of repetition, I am aware that Congressional interpretation of previous legislation is not binding. Although not binding, I believe that it is a legitimate consideration in judical statutory interpretation.

My third reason is my own application of Cardozo’s “method of sociology,” otherwise stated as “public policy.” I am persuaded that the federal courts of 1973 are overloaded with cases which do not properly belong here. Recently this court had before us an action for civil damages for $3.00, brought by a prisoner against a guard for an alleged theft of seven packs of cigarettes, Russell v. Bodner, (unreported) (3d Cir. 1973). There are certain aspects of public disputes which should come within the doctrine of “de minimis,” especially where, as here, there is a procedure instituted within the Blue Shield carrier to process disputes. I do not believe that the district court should become the arbiter for determining the propriety of disputes over dental bills between an applicant and Blue Shield in the administration of the Medicare program. Similarly I do not believe that this court of appeals, which increased its caseload over 100% in a five-year period, nor the Supreme Court, already choked with an astronomical caseload, should become involved in this type of litigation. The majority recognize this, but seem to complain: “We know this but Congress made us do it.” I disagree. The majority should properly say, “The statute is ambiguous, but we are interpreting it in such a way as to mean that Congress made us do it.”

I would reverse the judgment of the district court and dismiss the complaint for want of jurisdiction in the federal courts.

      . 42 U.S.C. § 1395j et seq. (part B). Although the plaintiff also raised a number of constitutional questions, since we decide that plaintiff is entitled to administrative review of the denial of her claim, we, like the district court, need not reach them. The major issue confronting the Court concerns the proper interpretation to be given 42 U.S.O. § 1395ff, the review provision of the Act. In October, 1972, this section was amended by Congress to obviate the kind of problem presented in this ease. See notes 10 & 14, infra. All references in the text to § 1395ff refer to that section as originally enacted, and not as amended, unless otherwise specifically stated.

      . Bohlen v. Richardson, 345 F.Supp. 124 (E.D.Pa.1972).

      . These services were paid for pursuant to 42 U.S.C. §§ 1395k and 1395x(q), (r) and (s).

      . To provide for efficient and .convenient administration, Congress authorized the Secretary to enter into contracts with carriers such as Pennsylvania Blue Cross-Blue Shield to perform certain functions. 42 U.S.C. § 1395a. Section 1395u(b) (3) (C) states that such contracts shall provide that the carrier establish and maintain procedures for a fair hearing by the carrier. Such procedures have been established. 20 C.F. R. § 405.801 et seq.

      . 42 U.S.C. § 1395k.

      . Id. §§ 1395x(s), 1395x(q).

      . Id. § 1395x(r) (2).

      . Id. § 1395y(a) (12).

      . The Fair Hearing Officer reasoned, inter alia, that because the second dentist did not perform the in-hospital oral surgery reducing the fracture of Mrs. Bohlen’s jaw, the services rendered by him fell within the exclusion of § 1395y(a)(12). See note 8 and accompanying text, supra. According to the carrier, the second dental procedure would be covered “only when [it is an] integral part of the reduction of the fracture and [is] performed by the dentist who reduced the fracture.” Mrs. Bohlen’s legal problem thus arose because she used two dental surgeons instead of one. From the testimony taken by the Fair Hearing Officer, it would appear that the first dentist, an oral surgeon, had advised Mrs. Bohlen to consult another dentist to perform the additional dental work she required.

      . 42 U.S.C. § 1395ff. This section was amended in October, 1972. 42 U.S.C.A. § 1395ff (Supp.1973). See text accompanying note 14, infra.

      . 345 F.Supp. at 129.

      . Although the legislative history does not indicate what Congress, when enacting the Medicare Act, meant by “entitlement,” it does suggest that Congress did not provide review “of a determination concerning the amount of benefits under part B [because such] claims will probably be for substantially smaller amounts than under part A.” 1965 U.S.Code Cong, and Admin.News, Yol. 1, p. 1995. It should be noted that at the time of filing the complaint Mrs. Bohlen’s bill for the second dentist’s services was $400; by June, 1971, she had spent $600 and, the dentist estimates that Mrs. Bohlen will spend more than $1,000 for Ms services. Bohlen v. Richardson, 345 F.Supp. 124, 131, n.6 (E.D.Pa.1972).

      . The district court perceived reasons other than the one suggested in Congress for limiting review of “amount” questions but not “entitlement” issues. The former are typically “questions of fact that are within the competence of a carrier to find and decide” while the latter “tend to be questions of policy which are broader. . . . [and] are more fundamental than amount questions and usually involve legal analysis or statutory construction ... on which the Secretary or the courts, as opposed to a carrier staffed by laymen, should have the last word.” 345 F.Supp. at 130. The court concluded that Mrs. Bohlen’s claim raised questions of the latter sort.

      . 42 U.S.C.A. § 1395ff (Supp.1973). The government contends, inter alia, that the judgment reached by the district court, and by this Court here, would be productive of much litigation. Of course, the courts must always be alert to such possibilities. But, even assuming, arguendo, that a court could properly decide appeals on the basis of the volume of litigation that might be produced by a given decision in a particular case, there has been no showing that the result we reach in this case will in fact produce more cases of this kind. There has been no indication, for example, that the decisions in Ridgely v. Secretary of HEW, 475 F.2d 1222 (4th Cir. 1973), see note 14, infra, or Cardno v. Finch, 311 F.Supp. 251 (E.D.La. 1970), have in any way confirmed that the possibility of increased litigation is anything more than speculative. Congress could, of course, decide not even to run the risk of overburdening our dockets, but, as the government admitted at oral argument, § 1395ff, prior to the 1972 amendment, was at best ambiguous and, in any event, did not clearly reflect a congressional concern about the docket, or in any way manifest an intent that cases of the present kind be placed in the non-reviewable “amount”, category.

      . See 118 Cong.Rec.S. 17048-49 (daily ed. Oct. 5, 1972) (remarks of Senator Bennett) ; H.Rep.No.92-1605, 92d Cong., 2d Sess., p. 61 (Conference Report).

      . Ridgely v. Secretary of H.E.W., 475 F.2d 1222 (4th Cir. 1973). The Ridgely court was faced with a determination that certain nursing care received by the enrollee was “custodial,” not “skilled,” in nature and thus excluded from Medicare coverage under 42 U.S.C. § 1395y(a) (9). At issue was whether such question was one of “entitlement” or “amount” for purposes of § 1395ff. The court concluded that under the legislation prior to the amendment the case presented an “entitlement” issue subject to review.

      . See Note 15, supra. Senator Bennett’s statement is set out in extenso in Judge Al-disert’s dissenting opinion.

      . Cardozo, The Nature of the Judicial Proeess, 31.

      . Friendly, Reactions of a Lawyer-Newly Become Judge, 71 Yale L.J. 218, 231 (1961).

      . Friendly, supra, at 232.

      . Hand, The Spirit of Liberty, 84 (1952).

      . 118 Cong.Rec. S 17048,49 (daily ed. October 5,1972).


author: PER CURIAM.

text:
    Garland Rex BRINLEE, Jr., Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1340.
    United States Court of Appeals, Eighth Circuit.
    Aug. 31, 1973.

      Albert A. Wolf, Bismarck, N. D., for appellant.
    Nathan G. Graham, U. S. Atty., Tulsa, Okl., for appellee.
    Before VAN OOSTERHOUT and MATTHES, Senior Circuit Judges, and WEBSTER, Circuit Judge.
   PER CURIAM.

This case is before us on the Government’s motion to dismiss defendant’s timely appeal from his conviction by a jury on four counts of an indictment charging violation of 26 U.S.C. §§ 5861(d), (f), 5871, and 18 U.S.C. § 371, and the resulting sentences imposed aggregating twelve years. The motion is based upon the ground that the defendant Garland Rex Brinlee, Jr., escaped from the Oklahoma State Penitentiary where he was serving a state sentence on August 6, 1973, that he is at present a fugitive from justice. The sentences imposed in our present case are consecutive to the Oklahoma State sentence defendant is serving. Defendant through his court-appointed counsel has filed a response which does not contest defendant’s status as a fugitive from justice.

In Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 498, 24 L.Ed.2d 586 (1970), the Court holds:

“No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction. While such an escape does not strip the case of its character as an ad judicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims. In the absence of specific provision to the contrary in the statute under which Molinaro appeals, 28 U.S.C. § 1257(2), we conclude, in light of the Smith and Bonahan decisions, that the Court has the authority to dismiss the appeal on this ground. The dismissal need not await the end of the Term or the expiration of a fixed period of time, but should take place at this time.”

To like effect see Eisler v. United States, 338 U.S. 189 and 883, 69 S.Ct. 1453, 92 L.Ed. 1897 (1949) ; Smith v. United States, 94 U.S. 97, 24 L.Ed. 32 (1876).

In Johnson v. Laird, 432 F.2d 77, 79 (9th Cir. 1970), the court quotes from Smith, supra, as follows:

“It is clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we render.”

And then goes on to say:

“We recognize the difference between appeals to this court and discretionary writs of certiorari. We do not believe, however, that the Supreme Court’s decision in Smith, supra, was based solely on the discretionary nature of writs of certiorari. Rather, we feel that the decision in Smith rests upon the inherent discretion of any court to refuse to hear the claim of a litigant who indicates that he will comply with that court’s decree only if it is favorable.”

See United States v. Tremont, 438 F.2d 1202 (1st Cir. 1971); United States v. Dawson, 350 F.2d 396 (6th Cir. 1965); Stern v. United States, 249 F.2d 720 (2d Cir. 1957).

Upon the basis of the authorities hereinabove cited, it is ordered that this appeal be dismissed thirty days from the date of the filing of this order unless in the meantime defendant has submitted himself to the jurisdiction of the United States District Court or has been found and taken into custody by either state or federal officers.

In the event defendant is taken into custody, the United States Attorney shall immediately report such event to the court. If defendant is not taken into custody prior to the expiration of thirty days from the filing of this order, the United States Attorney shall promptly so advise the court. Upon receipt of a report that the defendant is still a fugitive, the Clerk is directed to dismiss this appeal.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. 40.60 ACRES OF LAND, MORE OR LESS, IN the COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA, CONTRA COSTA COUNTY WATER DISTRICT, Defendant-Appellant.
    No. 71-2018.
    United States Court of Appeals, Ninth Circuit.
    Aug. 29, 1973.
    Frederick Bold, Jr. (argued), of Bold & Polisner, Richmond, Cal., for defendant-appellant.
    Eva R. Datz, Atty. (argued), Dale Kent Frizzell, Asst. Atty. Gen., Dept, of Justice, Washington, D. C., James R. Browning, Jr., U. S. Atty., J. Harold Weise, Asst. U. S. Atty., San Francisco, Cal., Edmund B. Clerk, Land & Natural Resources Div., Dept, of Justice, Jacques B. Gelin, Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before HASTIE, BROWNING and WRIGHT, Circuit Judges.

       Of the Third Circuit.

   PER CURIAM:

Does a district court have jurisdiction in a condemnation action brought by the United States to entertain the counterclaim of a public utility whose facilities are expressly excluded from condemnation?

In 1968, the United States condemned the entire community of Port Chicago, California, for use as part of the Concord Naval Weapons Station. Excepted from the condemnation were all public utility easements. Appellant Water District is the owner of certain of those easements.

Although not named as a defendant in the condemnation suit appellant filed a notice of appearance and counterclaim for compensation. The United States moved to dismiss the counterclaim for failure to state a claim upon which relief may be granted. Rule 12(b)(6), F. R.Civ.P. The district court granted the motion, relying on the decision in Southern Counties Gas Co. v. United States, 157 F.Supp. 934, 141 Ct.Cl. 28 (1958). See United States v. 40.60 Acres of Land, 324 F.Supp. 573 (N.D.Cal.1971).

Southern Counties Gas is directly on point on the merits of appellant’s claim, but the district court should not have reached the merits. The declaration of taking expressly excluded all public utility easements. The nature and extent of the interest to be acquired is discretionary with those authorized officials within the executive branch and may not be increased or decreased by the courts. United States v. 3,317.39 Acres of Land, 443 F.2d 104 (8th Cir. 1971). New York Tel. Co. v. United States, 136 F.2d 87 (2d Cir. 1943) is directly on point and dispositive. The court below had no jurisdiction over the subject matter of appellants’ claim.

In the federal system jurisdiction takes precedence over the merits. Unless and until jurisdiction is found, both appellate and trial courts should eschew substantive adjudication. Opelika Nursing Home, Inc. v. Richardson, 448 F.2d 658 (5th Cir. 1971). The district therefore erred in reaching the merits of appellant’s claim.

Appellant is of course still entitled to its day in court. The appropriate proceeding is an independent suit under the Tucker Act either in the Court of Claims or, if the claim is for $10,000 or less, in the District Court. 28 U.S.C. §§ 1346(a) (2); 1491

The judgment of the district court is vacated and the cause is remanded with instructions to quash the notice of appearance and dismiss appellant’s counterclaim for lack of jurisdiction over the subject matter thereof.

      . There is no occasion for this court to decide whether the district court would have had jurisdiction over appellant’s counterclaim if that claim had been for $10,000 or less. There is a split of authority over whether Tucker Act claims can ever be brought as counterclaims. Compare United States v. Silverton, 200 F.2d 824 (1st Cir. 1952) with United States v. Nipissing, 206 F. 431 (2d Cir. 1913). There is also a dispute whether Rule 71A(e), F.R.Civ.P. precludes a defendant in a condemnation suit from raising a counterclaim against the United States. Compare United States v. 76.15 Acres of Land, 103 F.Supp. 478 (N. D.Cal.1952) with United States v. Merchants Matrix Cut Syndicate, 219 F.2d 90 (7th Cir. 1955) and United States v. Eight Tracts, 270 F.Supp. 160 (E.D.N.Y.1967).
      But there is no question that a counterclaim cannot be maintained in the District Court if the amount sought exceeds $10,000. See United States v. 6.321 Acres of Land, 479 F.2d 404 (1st Cir. 1973) ; United States v. 87.30 Acres of Land, 430 F.2d 1130 (9th Cir. 1970).
      In the present case there was no averment that the matter in controversy did not exceed $10,000. This omission is fatal. Cf. State Committee to Stop Sanguine v. Laird, 317 F.Supp. 664 (W.D.Wis.1970).


author: MATTHES, Senior Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Joseph POLLARD, Appellant.
    No. 73-1006.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 17, 1973.
    Decided Aug. 9, 1973.
    Rehearing Denied Aug, 31, 1973.
    Certiorari Denied Jan. 7, 1974.
    See 94 S.Ct. 882.
    Leonard J. Frankel, Clayton, Mo„ for appellant.
    Daniel Bartlett, Jr., U. S. Atty., Jerry J. Murphy, Asst. U. S. Atty., Frederick J. Dana, Sp. Atty., U. S. Dept, of Justice, Office for Drug Abuse Law Enforcement, St. Louis, Mo., for appellee.
    Before MATTHES, Senior Circuit Judge, and LAY and STEPHENSON, Circuit Judges.
   MATTHES, Senior Circuit Judge.

Appellant was indicted in three counts for distributing heroin on August 28, 1972 (Count I), on August 29 (Count II), and on August 30 (Count III), all in violation of 21 U.S.C. § 841(a)(1). He was tried, found guilty as charged, and is here by appeal from the judgment of conviction.

The facts, although in dispute, are relatively simple. On August 28, through the intermediary of Richard Armstrong, a paid government informant, Dennis Harker, a special agent of the Bureau of Narcotics and Dangerous Drugs, and Daniel Swan, a St. Louis police officer assigned to the Drug Abuse Law Enforcement Agency (DALE), both acting under cover, purchased 4.55 grams of heroin from appellant at a cost of $300. On the following two days, again by the arrangement of Armstrong and in his presence, similar transactions took place involving 41.05 grams of heroin worth $5000. At the conclusion of the third transaction appellant was arrested and taken to the DALE office where, after having been properly warned of his rights, he stated that he had obtained the heroin on all three occasions from Edward Pruitt and that he had given Pruitt the proceeds of the sales.

At the trial, appellant contended that he had been entrapped by Armstrong. According to appellant, who admitted being a heroin addict, Armstrong had offered him a fix and $50 if appellant would help Armstrong test heroin. Appellant’s subsequent participation in the transactions for which he was indicted was allegedly at the direction of Armstrong.

We find no substance in any of appellant’s contentions of error and affirm.

I.

At the outset of the trial, appellant made an oral .motion to strike the jury panel because it contained only four blacks. The motion was denied. Appellant renewed the motion at the close of voir dire on the ground that all four black veniremen had been peremptorily challenged by the government. Again, the motion was denied. Appellant submits that the failure to provide a jury panel more representative of his race, coupled with the peremptory removal by the government of those blacks that were present, established a prima facie showing of invidious discrimination in the selection of the jury.

Pursuant to 28 U.S.C. § 1863, the Eastern District of Missouri, like all other districts in the Eighth Circuit, has adopted a plan for random jury selection. The plan, which has been approved in accordance with the provisions of § 1863, is expressly designed to prevent discriminatory practices in the selection of jury panels. Fortuitously, the venire in the present case contained only four blacks. That circumstance, however, does not warrant the striking of the panel. As we noted in United States v. Williams, 421 F.2d 529, 531 (8th Cir. 1970):

“Appellant was not constitutionally entitled to have either a Negro or one of his ‘peers’ on his petit jury panel; rather, he was constitutionally entitled to a jury array which had been selected from a cross-section of the eligible persons in the community at large without systematic and intentional exclusion or discrimination as to racial, religious, political, economic, geographical or social status.”

See Swain v. Alabama, 380 U.S. 202, 208, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); United States v. Olson, 473 F.2d 686, 688 (8th Cir. 1973).

Appellant has made no effort to attack the jury selection process itself, and, in our view, could not have prevailed in any such attempt.

Nor does the fact that the government peremptorily challenged all four black veniremen support a finding of unlawful discrimination. As was said by Mr. Justice White in Swain v. Alabama, supra, 380 U.S. at 222, 85 S.Ct. at 837:

“The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it.”

See United States v. Pearson, 448 F.2d 1207, 1214-1215 (5th Cir. 1971); Maxwell v. Stephens, 348 F.2d 325, 331-332 (8th Cir.), cert. denied, 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353 (1965).

The Supreme Court in Swain concluded, however, that the presumption protecting the prosecutor may be overcome, and a prima facie case of discrimination established, by proof of a prosecutor’s systematic exclusion of blacks from petit juries over an extended period of time. 380 U.S. at 224, 86 S.Ct. 387. See United States v. Pearson, supra. No such proof has been offered in the present case.

II.

Pursuant to an order of the trial court, the government informed appellant prior to trial of Richard Armstrong’s name and address. Thereafter appellant attempted to locate Armstrong in order to subpoena him to appear at the trial as a witness for the defense. When all efforts proved unsuccessful, appellant asked the court for an order requiring the government to produce Armstrong. The denial of that request is the subject of appellant’s second claim of error.

Both in his brief and on oral argument to this court, appellant suggested that the government could have produced Armstrong if it had been in its best interests to do so. The government, on the other hand, stated that it had no knowledge of Armstrong’s whereabouts, and that since Armstrong and appellant had grown up together, Armstrong was equally available to both sides.

After submission of the case to us on May 17, 1973, we resolved that the government should have been compelled to demonstrate its inability through reasonable efforts to produce Armstrong. In so deciding, we adopted the reasoning of Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir. 1965), in which it was said:

“[S]ince the Government chooses to utilize such agents, with the attendant risk of entrapment, it is fair to require the Government which uses this inherently dangerous procedure to take appropriate precautions to insure that no innocent man should be punished.
* •» * * # *
If [the informant] is available for hire, he should be available to come and testify. . . . We think whether there was a failure to expend every reasonable effort to obtain the Witness is a question of fact for the trial judge.”

354 F.2d at 13.

In accordance with the teachings of Velarde, we issued an order, filed May 18, 1973, 479 F.2d 310, 8 Cir., remanding the cause

“to the trial court for the [limited] purpose of holding a further hearing at which the Government shall be given the opportunity of proving if such be the case that it was genuinely unable through reasonable efforts to produce [Armstrong] and also, if such be the case, that the Government did not take steps to see to it that [Armstrong] would be or become unavailable as a witness. The burden of proving these things should be on the Government.”

479 F.2d at 511.

Pursuant to our order, the trial judge held a plenary hearing on June 1, 1973. The testimony of government witnesses established that Armstrong had received at least one threat on his life as a result of his testimony as a government witness in a prior narcotics case in which he had participated as an informant. Subsequent to the close of that case, Armstrong disappeared and efforts to locate him were fruitless. Agent Har-ker testified that he had attempted to subpoena Armstrong for the hearing, and had been unsuccessful, although he had talked to him on the telephone. Following the hearing, the trial court issued an order, dated June 8, 1973, finding

“that the Government expended every reasonable effort to procure the testimony of Richard Armstrong at said trial and was genuinely unable through such reasonable efforts to produce Armstrong as a witness [and] that the Government took no steps whatever to see to it that Armstrong would be or become unavailable as a witness in this case.”

We have carefully examined the record of the evidentiary hearing, and we agree with the trial judge that the government sustained its burden of proof on this issue.

Our resolution of this question also disposes of appellant’s alternative claim that the trial court erred in refusing to give appellant’s requested missing witness instruction.

III.

Appellant’s third contention is that the trial court erred in refusing to rule, as a matter of law, that appellant had been entrapped. Appellant relies on United States v. Bueno, 447 F.2d 903 (5th Cir. 1971), in which the court held that if the defendant testifies to facts which establish entrapment as a matter of law, and the government cannot come forward with evidence to contradict defendant’s testimony, the defendant is entitled to discharge.

Appellant argues that the only witness who could have contradicted appellant’s testimony that he had been entrapped was Armstrong, and Armstrong, of course, did not testify.

It is by no means clear that the facts testified to by appellant, if undisputed, would have established entrapment as a matter of law. See United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). But we need not decide that difficult question since appellant’s testimony in this ease was plainly contradicted in several respects. And it is fundamental that in determining the sufficiency of the evidence to sustain the conviction we view it in the light most favorable to the government. Plainly, the issue of entrapment goes to the heart of appellant’s guilt or innocence. Appellant denied handing the drugs to Harker on the first two occasions. Harker, on the other hand, testified that he received the heroin directly from appellant in both instances. Appellant denied discussing a possible third sale on the second occasion, and he denied telling Harker where the heroin was hidden when the third transaction took place. Most damaging to appellant’s claim of entrapment, however, are his own oral statements made following his arrest indicating that he had obtained the heroin from, and returned the proceeds to, someone other than Armstrong.

IV.

Appellant complains that the trial court failed to instruct the jury that the burden was on the government to prove beyond a reasonable doubt that the defendant was not entrapped.

The entrapment instruction included in the court’s charge in this case can be found in Devitt & Blackmar, Federal Jury Practice and Instructions § 13.13 (2d ed. 1970), and has been approved by this court time and time again. United States v. Dawson, 467 F.2d 668 (8th Cir. 1972); United States v. Brown, 453 F. 2d 101 (8th Cir. 1971), cert. denied, 405 U.S. 978, 92 S.Ct. 1205, 31 L.Ed.2d 253 (1972); United States v. Haley, 452 F. 2d 398 (8th Cir. 1971), cert. denied, 405 U.S. 977, 92 S.Ct. 1205, 31 L.Ed.2d 253 (1972).

The instruction concludes with the following paragraph:

“[I]f the evidence in the case should leave you with a reasonable doubt whether the Defendant had the previous intent or purpose to commit any offense of the character here charged, and did so only because he was induced or persuaded by some officer or agent of the Government, then it is your duty to acquit him.”

We are satisfied that the entrapment instruction, when considered along with the more general instructions concerning the presumption of innocence and the burden of proof, makes it clear that the government was required to prove beyond a reasonable doubt that appellant had not been entrapped.

V.

Finally, appellant assigns as error the court’s refusal to give his requested position instruction. The contention is without merit. In the final analysis, appellant’s position was that he had been entrapped by Armstrong, and that defense had already been clearly submitted to the jury by the entrapment instruction.

Finding no merit in any of the contentions of appellant, the judgment of conviction is affirmed.

Affirmed.

      . All dates refer to 1972 unless otherwise stated.

      . In United States v. Williams, 481 F.2d 735 (8th Cir. 1973), this court distinguished the present case and held that, on the facts presented, tlie government was not required to call the informant to testify.


author: ROSENN, Circuit Judge.

text:
    John BRAXTON, Appellant in No. 72-1491, et al. v. Norman CARLSON, Individually and as Director, Federal Bureau of Prisons, Noah Alldredge, individually and as Warden, Lewisburg, Federal Penitentiary, together with their employees, agents, attorneys and all others acting in concert with them.
    No. 72-1491.
    United States Court of Appeals, Third Circuit.
    Argued April 5, 1973.
    Decided Aug. 27, 1973.

      David Rudovsky, Kairys & Rudovsky, Philadelphia, Pa., Stanley A. Bass, NAACP Legal Defense Fund, New York City, for appellants.
    S. John Cottone, Harry A. Nagle, Scranton, Pa., J. Michael Quinlan, Bureau of Prisons, Dept, of Justice, George S. Kopp, Appellate Section, Crim. Div., Dept, of Justice, Washington, D. C., for appellees.
    Before McLAUGHLIN, ROSENN and HUNTER, Circuit Judges.
   OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal by six prisoners in a federal penitentiary presents to this court for the first time the question of the extent of the procedural hearing rights to which prisoners are constitutionally entitled when they are disciplined. Although we have held prisoners are entitled in certain circumstances to a hearing before being disciplined, we have not previously been called upon to determine the extent of due process which must be accorded in that hearing. In the case sub judice, Judge Muir of the United States District Court for the Middle District of Pennsylvania held that the prisoners had been accorded all rights constitutionally required. We agree and affirm.

I

Plaintiff-appellants were incarcerated in the Allenwood Prison Camp, a minimal security installation near the Federal Penitentiary at Lewisburg, Pennsylvania, in July 1971. Plaintiff below, George Mische, confronted Correctional Officer Theodore Sulouff on July 26, 1971, complaining that the Officer had inspected the contents of Mische’s personal locker in his absence. Mische suspected Sulouff of conspiring against him with a prison informer, because of Mische’s political beliefs, in an attempt to frame him for possession of contraband. Sulouff wrote a Report of Misconduct on Mische, charging him with insolence toward a prison officer.

Following filing of the report and an investigation of the incident, the Camp Adjustment Committee decided to invoke a prior suspended sentence of punitive segregation against Mische. On the afternoon of July 29, he was prepared for transportation to the Lewisburg Federal Penitentiary where he was to serve the segregation sentence. His removal had to be postponed until the next day when a crowd of unruly prisoners gathered and blocked the truck which was to transport him, an incident characterized by the district court as a near-mutiny.

On July 30, nineteen Allenwood inmates were transported to Lewisburg because they had been identified as participants in the incident. Each was placed in segregated status, pending disciplinary hearings. On August 1 each transferee was read the charges of misconduct against him. Written charges were not presented, but paper and pencil were made available.

The Lewisburg Adjustment Committee met to consider the charges on August 2. On the committee were Lewis-burg Associate Warden William Rauch, and the prison’s chief classification and parolee officer, the chief medical officer, and the chief correctional supervisor. A standard procedure was employed in each inmate’s ease. The charge was read to him. The accused was then given an opportunity to speak in his own behalf. The prison official who made the charge may or may not have been present, but he was not asked to testify or subject himself to cross-examination. The accused was not given any Miranda warnings nor assistance of counsel; neither was he allowed to call witnesses, nor was he informed of his right to appeal to the prison warden.

The Adjustment Committee hearings resulted in assessment of the following penalties against appellants: Prince K. Monyea was sentenced to an unspecified term in segregation, which in fact lasted two months, and resulted in almost a nine month postponement of his tentative release date. Ken Staple spent a week in segregation before being transferred to another federal prison, thus postponing his release date approximately 75 days. John Braxton, Carl Craig and Kevin McLean spent two months, five days and about thirty-five days, respectively, in segregation; and John Hilker was sent to Lewisburg Farm. All plaintiffs had misconduct reports placed in their files. These reports are considered by the United States Parole Board.

The variances among penalties reflected not only varying conduct for which the prisoners were punished, but also the Committee’s review of each accused’s prison record and consideration of comments on his general behavior from prison officials.

The district court denied the prisoners’ claims for injunctive and declaratory relief after holding a factual hearing at which the inmates and prison officials testified. The court assumed ar-guendo that the prisoners had suffered “grievous losses” as a result of their punishments and thus were entitled to due process hearings on the basis of Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1969). It held, however, that all due process guarantees required in the prison disciplinary system had been granted as appellants had: (a) received adequate notice of the charges, (b) been informed of the substance of the evidence against them, (c) been given an opportunity to respond to the charges, and (d) been adjudged by an impartial tribunal which made a reasonable investigation into the charges.

The district court found the prisoners had failed to sustain the burden of proof to demonstrate that (a) they had been adjudged by a partial tribunal, (b) their adjudications had been based on irrelevant evidence, or (c) they were unaware of their right to appeal to the prison warden. The court rejected the prisoners’ claims to be entitled to (a) written notice of the charges, (b) representation by counsel or a lay substitute, (c) confrontation by and cross-examination of their accusers, (d) presentation of witnesses on their own behalf, and (e) written notice of the disciplinary committee’s determination.

On this appeal, the prisoners dispute the district court’s finding of an impartial tribunal which considered only relevant evidence and its conclusion that they were not constitutionally entitled to written notice, representation by counsel, confrontation and cross-examination of adverse witnesses, presentation of favorable witnesses, an accurate written record of the proceedings, and a written report of the committee’s findings and conclusions. Appellants also seek reversal of the district court determination that immunity against future use of his testimony by a prisoner need not be given in prison disciplinary hearings.

U

The threshold question in this appeal is whether appellants had a constitutional right to hearings before they were disciplined. In Gray v. Creamer, 465 F.2d 179, 185 (3d Cir. 1972), we stated:

[W]e do hold that the transfer of a prisoner from the general prison population to solitary confinement without either notice of the charges or a hearing does not, absent unusual circumstances . . . , meet minimal due process requirements.

In dicta explicating the Gray holding, we said further in United States ex rel. Tyrrell v. Speaker, 471 F.2d 1197, 1203 (3d Cir. 1973), that a transfer to punitive segregation must “be based, after hearing, on ‘facts rationally determined.’ ” Although we dealt solely with-claims of state prisoners in Gray and Tyrrell, we see no reason why the principles we stated therein would not be applicable to. federal prisoners.

In the present case, appellants Mon-yea, Braxton, Staple, McLean and Craig were disciplined with terms of segregated confinement varying from five days to two months. Two questions are involved in determination of whether a due process hearing was required before the assessment of these penalties: (1) Is Gray v. Creamer to be applied retroactively? and (2) Were the periods of segregated confinement so short as to constitute the “unusual circumstances” in which Gray would not require a due process hearing?

Gray v. Creamer was filed August 14, 1972, more than one year after the hearings in dispute in the present case. This court has not yet had to determine whether its holding in Gray is to be applied retroactively. United States ex rel. Arzonica v. Scheipe, 474 F.2d 720, 722 (3d Cir. 1973). That question, however, is squarely presented in the case sub judice: appellants’ contentions hinge on a preliminary determination that they had a constitutional right to a hearing. Nonetheless, in light of our subsequent conclusion, see pp. 938-942 infra, that adequate due process was accorded these prisoners in the hearings which they were afforded, we need not reach the issue of retroactivity to dispose of the present appeal, particularly since it was not argued or briefed and any such determination would have major effects not only on federal prisons but also on state prisons within the circuit.

We do, however, reach the issue of whether the shortness of the periods of segregated confinement constituted an “unusual circumstance,” which precluded the necessity of holding a hearing. We find that even in the cases of appellants McLean and Craig, each confined in punitive segregation for five days, a due process hearing would be constitutionally required.

In United States ex rel. Arzonica v. Scheipe, 474 F.2d 720, 722 (3d Cir. 1973), we stated:

We therefore deem it appropriate to state that Gray may not be interpreted as announcing a per se rule that any transfer of a prisoner to solitary confinement without notice of charges or a hearing constitutes a constitutional deprivation. The rule of reason still prevails; the exigencies of acute and critical situations in prison may require swift and decisive administrative action without the fear of exposing prison officials to the threat of subsequent liability for money damages arising out of decisions made in the good faith exercise of administrative descretion. Moreover, the holding in Tyrrell was predicated upon an allegation of nine months’ segregation. Clearly, this was an example of “substantial punishment,” described in Gray as necessitating establishment of constitutional safeguards.

In Gray itself, we recognized certain “unusual circumstances.”

This is not to say, of course that this notice or hearing must in all cases precede the transfer to solitary confinement; in some cases, as, for example, during a prison riot, notice and hearing must be delayed a reasonable period of time.

465 F.2d at 186 n. 6.

The language we used in both Gray and Arzonica makes it clear that no hearing was required in the present ease before the prisoners were transferred from Allenwood to Lewisburg, where they were placed in segregation pending hearings. After the near-mutiny at Allenwood, such necessary measures for maintenance of prison security and discipline were fully warranted. Segregated confinement for three days awaiting the hearings was not unreasonable under the circumstances.

Further incarceration under segregated conditions, however, could not have been justified on the present record without hearings. Nothing in the record indicates that as of August 2, the day of the hearings, unusual circumstances existed which would have necessitated emergency measures. The segregated sentences imposed after August 2 would have been proper only if preceded by a due process hearing.

It is of course true that hearings were held in the present case. Because we have not met the issue of whether Gray should be applied retroactively, we cannot say that those hearings were constitutionally required in 1971. We have, nonetheless, discussed the issue for future guidance to district courts and prison officials on the scope of the Gray “unusual circumstances” exception.

The sixth appellant, Hilker, was not placed in segregation. He was merely transferred to Lewisburg Farm, another minimum security institution like Allen-wood. Hilker, therefore, neither was transferred out of the general prison population nor suffered any loss of “camp good times days” as a result of the discipline proceedings.

Appellants argue that a due process hearing is required not only before prisoners are placed in segregated confinement, but also before they are transferred to any prison where they lose the right to earn extra “good time” days. Under 18 U.S.C. § 4161, all federal prisoners can receive deductions from their term of sentence for good conduct; under 18 U.S.C. § 4162, prisoners may receive further good time day deductions from their sentence for employment in a prison industry or camp. All prisoners at Allenwood received such bonus good time days. Disciplinary transfer, even if not accompanied by confinement in segregated conditions, can result in a loss of the ability to earn such bonus days.

We need not decide in the present appeal, however, whether discipline resulting in the loss of the ability to earn bonus good conduct days must be preceded by a due process hearing. Five of the appellants were disciplined by segregation penalties; the sixth appellant, by being transferred from a federal prison camp to a federal prison farm, did not lose his right to earn bonus good time days. No appellant therefore claims due process rights solely on the basis of loss of the ability to earn such bonus good time days.

Appellants also argue that due process hearings are required before bad conduct reports are placed in á prisoner’s file. This claim is relevant to appellant Hilker, as well as the other five prisoners, as he received such a bad conduct report following his hearing. At least one court has held due process hearings are required before filing of such reports. Clutchette v. Procunier, 328 F. Supp. 767, 776-777 (N.D.Cal.1971). In light of our conclusion, infra at pp. 938-942, that the hearings which all appellants received were adequate under due process standards, and the absence in the record of extended information about the effect of such bad conduct reports, we do not reach the issue of whether due process hearings are always required before filing of bad conduct reports.

III

On the assumption that a constitutional right to a due process hearing existed before the appellants could have been disciplined by segregated confinement punishments, the primary question presented to us on this appeal is the extent of the procedures required in a correctional institution setting to provide adequate due process.

Determination of the procedural requirements of due process in federal prison Adjustment Committee hearings must begin with an examination of the nature of the proceeding. As Chief Justice Burger stated in discussing parole revocation hearings:

It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. “[Cjonsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the governmental function involved as well as of the private interest that has been affected by governmental action.”

Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).

Adjustment Committee hearings, as employed at the Allenwood and Lewis-burg federal institutions consistent with national policies of the Bureau of Prisons, are low-level disciplinary proceedings. Prisoners apprehended for minor infractions of prison regulations are merely counseled; no written reports are made. Prisoners apprehended for more severe but intermediate offenses, such as insolence or insubordination to correction officials or stealing eggs from the kitchen, are often reported to the Adjustment Committee in writing by a prison official. Serious offenses, which warrant severe penalties and indicate rehabilitative progress has retrogressed, lead to proceedings before the Good Time Forfeiture Board. Offenses which are sufficiently serious as to merit criminal prosecution are referred to the Department of Justice.

The Adjustment Committee is not merely a guilt adjudicating disciplinary body. It is also part of the rehabilitation and correctional system for determining the institutional program and service to which the prisoner should be referred. The Committee therefore considers not only the alleged infraction, but also past reports of the prisoner’s behavior, his sentence, and his attitudes.

Prison officials consider proceedings before the Good Time Forfeiture Board to be considerably more serious than those before Adjustment Committees. Penalties assessed in either proceeding can similarly affect the length of confinement. The Board can revoke already accrued good time days; the Committee can deprive the prisoner of the chance to earn bonus good time days in the future. The likelihood of parole, however, seems to be much more seriously affected by Board proceedings. Good Time Forfeiture Board proceedings, therefore, appropriately include more procedural safeguards than do Adjustment Committee proceedings. See note 6 infra.

Adjustment Committee proceedings lack a number of the due process practices familiar in judicial proceedings. The normal procedure, followed in the hearings of the six appellants, begins with the filing of a bad conduct report by a correctional official. An “investigator” is assigned to the case. His investigation may include interviewing the officer who filed the report and other observers of the alleged conduct, but it also may, as in the case of the six appellants, involve- little more than a reading of the misconduct charges to the prisoner and an inquiry of him as to his comments.

The prisoner is then brought before the Adjustment Committee itself. Present besides the Committee, consisting in the instant case of four chief administrative prison officials, may be other prison officials. The reporting correctional officer himself is often not present; his original report alone (with any added comments written in by the investigator) often constitutes the entire case against the prisoner. The prisoner is asked if he has any comments on the report. The prisoner may also be asked about other reports in his prison file dealing with his behavior. The prisoner then leaves the committee room while it determines the proper disciplinary action, if any, which should be taken — placement in segregated confinement, transfer to another prison, or merely filing of a bad conduct report.

Lewisburg prison officials candidly admitted at the hearing in the district court that they normally believe the charges in the original misconduct report filed by a correctional officer, even when the accused prisoner denies them. They stated that one of the reasons for allowing the accused to give his side of the story was therapeutic. Nonetheless, the officials said one purpose of the Adjustment Committee hearing was to determine the truth of the allegations. If the charges were found to be false, no disciplinary action, of course, would be taken.

The officials further stated that the reason witnesses, other than the accused, were not called before the hearing was that the previously prepared staff reports were normally sufficient to lay out the facts. They indicated further investigation would be ordered when the accused’s testimony cast serious doubt on the reports.

The Adjustment Committee proceeding, highly informal, is thus perceived as and used as an administrative rehabilitation mechanism at Lewisburg, although its deliberations have an overtone of judicial fact-finding. Although reliance on staff written reports as a fact-finding mechanism obviously does not measure up to judicial standards which in this country traditionally rely on the crucible of cross-examination, we do not find the practical procedures for what is essentially a rehabilitation and correctional process so devoid of fairness as to constitute a denial of due process. Due process in a correctional institution setting should not be “so rigid as to require that the significant interests in informality, flexibility, and economy must always be sacrificed.” See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

In light of the combined goals of fact determination and correctional treatment and rehabilitation intrinsic in the Adjustment Committee’s tasks, we agree with the Second Circuit that due process is present when facts are rationally determined in a proceeding where the prisoner (1) is notified of the accusation and informed of the evidence against him, and (2) is afforded a reasonable opportunity to explain his actions. Sostre v. McGinnis, 442 F.2d 178, 198-199 (2d Cir. 1971), cert. denied sub nom. Oswald v. Sostre, 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972). Under these standards, the hearings granted appellants in this case comported with due process. As the district court found:

Before the disciplinary committee acted

(1) Plaintiffs received adequate notice of the charges,

(2) Plaintiffs were informed of the substance of the evidence against them,

(3) Plaintiffs were given an opportunity to repond, and

(4) The Committee made a reasonable investigation into the facts.

340 F.Supp. at 1002.

Appellants attack these findings in their assertion that the Adjustment Committee was partial because among its four members was Lewisburg Associate Warden Rauch. We do not find that the initiation of measures by such a high level administrative official to bring the near-mutiny at Allenwood under control disqualified him from serving as an impartial committee member. He had no personal involvement with any of the appellants because of their alleged infractions. He was neither a witness nor an investigator. Allenwood Superintendent Engle, who had prepared the written charges against the prisoners and given them to another prison official to investigate, was present at the committee hearings, not as a committee member, but as a resource person.

We also find no error with the district court determination that the Committee considered only relevant evidence. Although past misconduct reports and general comments on prison behavior were considered in determining the penalties to be assessed, such consideration was quite relevant and permissible for achievement of rehabilitation goals. We do not find clearly erroneous the explicit district court finding that plaintiffs “failed to prove that the Committee’s determination was based on irrelevant evidence, and in particular failed to prove their contention that prison officials in the course of the disciplinary hearings considered letters written by the Plaintiffs to Congressmen and other governmental officials.” 340 F.Supp. at 1002-1003.

The balance of appellants’ contentions involve claims that further due process procedures should be required in Adjustment Committee hearings, i. e., written notice of the charges, representation by counsel or a lay substitute, confrontation and cross-examination of adverse witnesses, presentation of favorable witnesses, and a written report of the Committee’s conclusions. We agree with appellants that the thrust of each of these procedural devices might improve the fact-finding function of the Adjustment Committee, but, in light of the sensitive needs of prison discipline, limited resources, and the proceeding’s related goal of rehabilitation, we do not find that due process mandates their use.

As the Second Circuit noted in Sostre:

[W]e think it inadvisable for a federal court to pass judgment one way or another as to the truly decisive consideration, whether formal due process requirements would be likely to help or to hinder in the state’s endeavor to preserve order and discipline in its prisons and to return a rehabilitated individual to society.

442 F.2d at 197. As we have noted, the focus of the Adjustment Committee function is rehabilitative rather than punitive. We believe, therefore, that the transformation of this informal hearing into a formal adversary proceeding with the full panoply of counsel, cross-examination, witnesses, and written record could be self-defeating. We are apprehensive of the volatile effect such adversarial proceedings could have on internal prison control and stability. We fear that prisons, by their very nature packed with intensive emotional problems, would be kept at a perpetual boiling point by formal adversarial proceedings often involving varying shades of minor infractions. The procedures we approve of in this case, although perhaps not optimal in establishing the facts, are, we believe, adequate in view “of the precise nature of the governmental function involved as well as of the private interest” affected by it. See Morrissey v. Brewer, 408 U.S. at 481, 92 S.Ct. at 2600.

Two of the requested procedures of appellants are not so clearly oriented toward making adjustment committee hearings more adversarial. Neither written notice of the charges nor a written report of the committee’s findings and conclusions would necessarily alter the nature of the proceedings in such a manner. We do not, however, believe either procedure is constitutionally required. Adequate notice of the charges was provided all appellants here verbally; written notification would add little to their ability to present their case to the Committee. Nor would a written report be necessary to insure a rational determination of the facts by the Committee, although it is undeniable that requiring such reports tends to force closer examination of the evidence. Written notice and a written report are desirable, however, and we recommend their future usage in such proceedings. We also note that since the prison proceedings in this case, the Bureau of Prisons has required both procedures of subsequent Adjustment Committee hearings. Bureau of Prisons Policy Statement 7400.5B, “Inmate Discipline.” We can also visualize situations where a prisoner may be completely inarticulate or have minimal ability to present his version of the facts. In such eases, the Adjustment Committee may find, it desirable to appoint a staff person to assist him.

Courts for years had declined to interfere with prison procedures. Recognition of the important rights at stake in the prison environment has led recently to a much more activist judicial tone. Prevention of arbitrary prison procedures which unduly deprive inmates of important rights is now recognized ; the hands-off policy has been abandoned. When important rights are at stake, courts should not be reluctant to protect them. Nonetheless, we believe the judiciary must move with measured caution when it lays down requirements for affirmative action by prison administrators. “We do not doubt the magnitude of the task ahead before our correctional systems become acceptable and effective from a correctional, social and human viewpoint, but the proper tools for the job do not lie with a remote federal court.” Sostre v. McGinnis, 442 F.2d at 205. Our expertise is limited; our knowledge of the extensive day to day prison problems is minimal; our ability to foresee the effect of procedural changes on treatment, rehabilitation and programmatic process is imperfect.

The judgment of the district court will be affirmed.

      . United States ex rel. Tyrrell v. Speaker, 471 F.2d 1197 (3d Cir. 1973) ; Gray v. Creamer, 465 F.2d 179 (3d Cir. 1972) ; Biagiarelli v. Sielaff, 483 F.2d 508 (3d Cir., filed July 7, 1973).

      . Nine prisoners were plaintiffs in the district court; three of them, George Mische, Robert Baton, and Michael Simons, have not appealed.

      . Basic authority for the administration of inmate discipline in federal prisons is delegated by the head of each institution to an Adjustment Committee and/or Treatment Team. Regulations provide that the Committee shall consist of at least three mem- • bers appointed by the head of the institution, one of whom shall be selected from the Correctional Service. Federal Bureau of Prisons Policy Statement 7400.5B, “Inmate Discipline,” June 6, 1972.

      . A more complete recitation of the facts can be found in the district court opinion. 340 F.Supp. 999 (M.D.Pa.1972).

      . Although the district court found that the prisoners were aware of their right to appeal to the warden and the prisoners did not do so, we do not find this an appropriate case in which to deny review until exhaustion of all administrative remedies has been completed. Cf. Soyka v. Alldredge, 481 F.2d 303 (3d Cir., filed July 10, 1973), a habeas corpus proceeding, and Waddell v. Alldredge, 480 F.2d 1078 (3d Cir. filed June 29, 1973), a mandamus proceeding. We do not denigrate the doctrine that available administrative remedies must be exhausted first before judicial review is available; but in this civil rights action the primary thrust of appellants’ arguments is that the standard procedures used in Lewisburg Adjustment Committee hearings are insufficient under the due process clause. Appeal to the warden on the grounds alleged would therefore have been futile.

      . A district court in this circuit has just recently held Gray retroactive for purposes of equitable relief, but not with regard to money damages. Jones v. Rundle, 358 F.Supp. 939 (E.D.Pa.1973).

      . Our interpretation of “unusual circumstances” should cause no disruption of present federal prison disciplinary procedures. Since the hearings in issue in this case, Federal Bureau of Prisons Policy Statement 7400.5B, “Inmate Discipline,” June 6, 1972, has announced that investigation of prison misconduct charges and written notification of the charges to the accused prisoner must be made within 24 hours after he is placed in segregation.

      . We note, however, that due process hearings have been required before such transfers in Sostre v. Rockefeller, 312 F.Supp. 863 (S.D.N.Y.1970), reversed in part, Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971) ; Meola v. Fitzpatrick, 322 F.Supp. 878 (D.Mass.1971). Compare Hanvey v. Pinto, 441 F.2d 1154 (3d Cir. 1971), where we held no due process hearing was required before a state prisoner was transferred from one prison to another, resulting in a loss of the ability to earn good time days, in a non-disciplinary context.

      . The preceding section canvasses appellant claims that due process hearings are required before the following types of disciplinary punishment are inflicted: (a) solitary confinement, (b) transfer to a different prison environment where bonus good time days cannot be earned, and (c) filing of bad conduct reports. The present case does not involve a question of whether due process hearings are required before prisoners are deprived of already accrued good time credits. That question is not raised because federal prison Adjustment Committees, as are involved here, cannot withdraw already earned good time credits.
      Penalties in deprivation of accrued good time credits may only be assessed by a Good Time Forfeiture Board. • .That Board’s procedures involve some of the safeguards sought by appellants here for Adjustment Committee proceedings: written notice of the charges, availability of a staff person as counsel . substitute, the opportunity to present favorable witnesses and notice of the right to appeal to the Bureau of Prisons Office of General Counsel. See Bureau of Prisons Policy Statement 7400.6A “Withholding, Forfeiture, and Restoration of Good Time,” August 13,1971.
      Due process hearings were required before good time credits already accrued could be revoked in Carothers v. Follette, 314 F. Supp. 1014, 1026-1027 (S.D.N.T.1970).

      . Two other contentions of appellants deserve little comment. Their claim that they had a right to be informed of the availability of appeal of the adjustment committee disposition to the prison warden lacks substance since they failed to demonstrate any ignorance of that right of appeal. Their claim that prisoners are entitled to use immunity for their testimony before the Adjustment Committee in order to allow them to speak freely without fear of future criminal prosecution is frivolous in light of the absence of any showing that these appellants felt precluded from making such a defense because of such fears. Moreover, it is the standard practice at Lewisburg not to hold adjustment hearings when a case is serious enough to warrant consideration of criminal charges.

      . See, e. g., Collins v. Hancock, 354 F. Supp. 1253 (D.N.H.1973) ; Lathrop v. Brewer, 340 F.Supp. 873 (S.D.Iowa 1972) ; Urbano v. McCorkle, 334 F.Supp. 161 (D.N.J.1971) ; Landman v. Royster, 333 F.Supp. 621 (E.D.Va.1971) ; Clutchette v. Procunier, 328 F.Supp. 767 (N.D.Cal.1971) ; Bundy v. Cannon, 328 F.Supp. 165 (D.Md. 1971) ; Kritsky v. McGinnis, 313 F.Supp. 1247 (N.D.N.Y.1970) ; Morris v. Travisono, 310 F.Supp. 857 (D.R.I.1970) ; Nolan v. Scafati, 306 F.Supp. 1 (D.Mass.1969), rev’d, 430 F.2d 548 (1st Cir. 1970).


text:
    Delbert V. MATHIS, Appellant, v. Melvin R. LAIRD, Secretary of Defense, Appellee.
    No. 72-2511.
    United States Court of Appeals, Ninth Circuit.
    Sept. 4, 1973.
    Delbert V. Mathis, in pro per.
    Richard F. Locke, Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for appellee.
    Before BARNES, HUFSTEDLER and GOODWIN, Circuit Judges.
   PER CURIAM:

Delbert V. Mathis appeals from a summary judgment in favor of the Secretary of Defense. Mathis sought judicial review of his separation from the Air Force following a conviction by court-martial and other relief.

Mathis was separated from the Air Force in 1958, after a conviction of a military offense was affirmed by the Air Force Board of Review, and further review was denied by the United States Court of Military Appeals. Eleven years after his separation, Mathis sought relief from the Air Force Board for the Correction of Military Records. His latest request for administrative relief was denied by that board on September 14,1971.

Mathis argued below, and in this court, that the Air Force order convening his general court-martial had not been properly signed by his commanding general. He contends that the court-martial therefore had no jurisdiction to try him. He then argues that his separation from the service was based upon a void conviction and was itself void, with the result that he is still “in” the Air Force. We need not reach the merits of his contentions, because the district court and this court are without jurisdiction to consider his complaint.

Mathis is seeking back pay and allowances from the date of his allegedly defective discharge to the present. He also seeks promotion to the grade he would have achieved had he suffered no adverse personnel action. Although his complaint is cast in terms of an action for mandamus and a declaratory judgment, the case is essentially one for a money judgment.

The Court of Claims has been given exclusive jurisdiction for such money claims against the United States when they exceed $10,000. See 28 U.S.C. §§ 1346(a)(2), 1491. Mathis’ claim greatly exceeds $10,000. Although the Supreme Court in United States v. Augenblick, 393 U.S. 348, 350-352, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969), specifically refused to decide whether a collateral attack on a court-martial judgment will lie in the Court of Claims through a back-pay suit alleging a “constitutional” defect, the Court did not challenge the jurisdiction of the Court of Claims over back-pay suits where the courts-martial lacked jurisdiction in the traditional sense, viz., where no law authorized the court-martial or where the statutory requirements for the convening or jurisdiction of the court-martial were not observed. Moreover, since Augenblick the Court of Claims has continued to hear back-pay claims alleging absence of jurisdiction by the court-martial. See, e. g., Gallagher v. United States, 423 F.2d 1371 (Ct.Cl. 1970). To permit this action in District Court would be to undermine the Court of Claims’ jurisdiction by permitting the District Court, in effect, to grant relief in excess of the Tucker Act limit. 28 U.S.C. § 1346(a)(2). See McClendon v. Blount, 452 F.2d 381, 383 (7th Cir. 1971); Carter v. Seamans, 411 F.2d 767 (5th Cir. 1969).

The judgment of the District Court is modified to a judgment of dismissal under Fed.R.Civ.P. 12(h)(3), and affirmed as modified.