author: JAMESON, Senior District Judge:

text:
    ASSOCIATED ELECTRIC COOPERATIVE, INC. v. Rogers C. B. MORTON, Individually and as Secretary of the Interior and Peter C. King, Individually, and as Administrator of the Southwestern Power Administration, United States of America, (Intervening Defendant), John N. Nassikas et al. ASSOCIATED ELECTRIC COOPERATIVE, INC. v. Rogers C. B. MORTON, Individually and as Secretary of the Interior and Peter C. King, Individually, and as Administrator of the Southwestern Power Administration, United States of America (Intervening Defendant), John N. Nassikas et al. (Members of Federal Power Commission), Appellants.
    Nos. 73-1601, 73-1690.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 11, 1974.
    Decided Nov. 18, 1974.
    Rehearing Denied Dec. 16, 1974.

      Thomas G. Wilson, Atty., Dept, of Justice, with whom Irving Jaffe, Acting Asst. Atty. Gen., Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, and Walter H. Fleischer, Atty., Dept, of Justice, were on the brief for appellants Morton, King and the United States. Robert B. Kopp, Atty., Dept, of Justice, also entered an appearance for appellants Morton, King and the United States.
    Northcutt Ely, Washington, D.C., with whom Frederick H. Ritts, and James E. Hickey, Jr., Washington, D.C., were on the brief, for appellee, Associated Electric Cooperative, Inc.
    Before MacKINNON and WILKEY, Circuit Judges, and JAMESON, United States Senior District Judge for the District of Montana. .

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

   JAMESON, Senior District Judge:

This is an appeal from a summary judgment in favor of plaintiff-appellee, Associated Electric Cooperative (Associated), against Rogers C. B. Morton, Secretary of the Interior, Peter C. King, Administrator of the Southwestern Power Administration (SPA), the United States of America, and the members of the Federal Power Commission (FPC) in an action to declare unlawful and to enjoin the collection of a transmission service charge imposed by the Secretary and approved by the Commission.

In 1962, pursuant to Section 5 of the Flood Control Act of 1944, 16 U.S.C. § 825s, SPA entered into contracts with Associated for the sale of federal hydroelectric power and energy, at rates set by the Secretary of the Interior, approved by the FPC, and providing for the allowance of credits for services to be performed by Associated in transmitting power and energy for SPA’s account. In 1970 the Secretary revised the rate schedule by adding a “transmission service charge” to recover costs incurred by SPA for which SPA claimed it was receiving no commensurate benefit in services from Associated.

Associated then brought this action seeking to enjoin and have declared illegal the Secretary’s 1970 modification of the rate schedule, on the ground that the cancellation of credits allegedly due under the 1962 contract was in violation of the Secretary’s statutory authority and of the contract. The defendants denied these allegations of the complaint and as an affirmative defense alleged that Associated’s contract credits were invalid because they violated standards contained in the Flood Control Act of 1944. The United States counterclaimed for recovery of the transmission service charges as set forth in the modified rate schedule.

Both sides moved for summary judgment. The district court granted Associated's motion in a brief order stating that the court had concluded “that the defendants’ actions were unlawful in that:

1. The Tranmission Service Charge imposed by defendants on plaintiff is not a rate revision authorized by Section 5 of the Flood Control Act of 1944 or other statute; and
2. Defendants are not authorized by law to unilaterally reduce the amounts contractually owed to plaintiff for its transmission services ; and
3. Defendants’ action were arbitrary, capricious and an abuse of discretion”.

Flood Control Act of 1944

The Flood Control Act of 1944 (58 Stat. 890) provides in Section 5 (16 U. S.C. § 825s) that hydroelectric power produced by certain Army dams “shall be delivered to the Secretary of the Interior” for disposal by him “in such manner as to encourage the most widespread use thereof at the lowest possible rates to consumers consistent with sound business principles, the rate schedules to become effective upon confirmation and approval by the Federal Power Commission. Rate schedules shall be drawn having regard to the recovery * * * of the cost of producing and transmitting such electric energy”. The Act provides further that “Preference in the sale of power and energy shall be given to public bodies and cooperatives”, and the Secretary is authorized to construct or acquire only such transmission facilities as may be necessary to make the power and energy “available in wholesale quantities for sale on fair and reasonable terms” to facilities owned by others.

Contracts Prior to 1962

SPA was designated as the marketing agent for the sale of power and energy pursuant to Section 5 of the Flood Control Act of 1944. Initially, SPA proposed to construct extensive facilities, including a transmission system, but this approach was rejected by Congress in 1946. The Administrator of SPA then entered into negotiations with representatives of various distribution cooperatives in Missouri concerning a proposal whereby generation and transmission cooperatives (G & Ts) would be organized to construct transmission facilities and steam-generating plants with funds borrowed from the Rural Electrification Agency (REA). As a result of these negotiations, during 1949-1951 SPA, with the approval of the Solicitors of the Department of the Interior and the Department of Agriculture, entered into a series of 40-year contracts with six Missouri G & Ts and others.

The contracts contained three interrelated agreements: (1) by loan contracts, REA was to loan funds to the G & Ts for the construction of generating and transmission facilities; (2) by lease contracts, SPA was to lease for 40 years the transmission facilities to be constructed with the loans and to pay all costs of operation, maintenance, repair and capital replacements, as well as amortization payments on the loans; and (3) by power contracts, SPA was to purchase the entire output of the steam plants to be constructed and in turn to resell to each of the G & Ts their power and energy requirements. Congress, expressing its approval of the plan, established a “continuing fund” out of which the Secretary was authorized to make expenditures, including expenditures for rentals of transmission lines. Congress appropriated funds for this purpose until 1954.

The operation of these contracts was suspended during fiscal years 1954 and 1955 when Congress withheld appropriations. In 1956 Congress resumed appropriations and reactivated the lease contracts. In doing so the House Committee on Appropriations instructed the Secretary that the contracts should be amended to provide that (1) G & Ts would operate and maintain their own transmission system under lease to SPA; (2) SPA and G & Ts would settle accounts for power sold on the basis of net balances, that is, the bill for power sold would be reduced by credits to the G & Ts for their costs of operating and maintaining the transmission facilities; and (3) power and energy would be delivered to the load centers at all G & T contracting systems at the “basic SPA rate”. The amendments were made pursuant to the Congressional instructions.

1962 Contract Between SPA and Associated

It was subsequently recognized that the existing contracts might not be adequate to fulfill the G & Ts’ power requirements. Accordingly they were superseded in 1962 by a new contract between SPA and Associated. Associated was created in 1961 as a master cooperative, composed of the Missouri G & Ts, for the purpose of consolidating their loads and facilities and building new generation facilities.

Under the 1962 SPA-Associated contract, SPA sells to Associated under the applicable rate schedule (P-2) 288 megawatts of peaking power, plus all of the energy generated at the Table Rock and Bull Shoals power plants less certain reserve quantities. The contract specifies that rates may be increased or decreased by SPA, subject to approval of the FPC.

The contract requires Associated to provide certain services to SPA, including transmission, reserves, power and energy losses and operation and maintenance of certain isolated SPA facilities. As consideration for these services, Associated is to receive the following credits:

“Contract Credits to Annual
Associated Payments
1. Transmission Service
*161 kv (Existing) $1,099,000
*161 kv (New Facilities) 69 kv 516.000
(SPA’s Customers) 278.000
2. Power and Energy Transmission Losses (10%)
*Capacity 777.000
*Energy 256.000
3. Reserve Generation (Standby) 1,152,000
4. Suspension [o/] Contracts (Power Plants) 493,000
5. Operation and Maintenance, SPA Isolated Facilities 85,000
TOTAL $4,656,000”

The Secretary reported the new contractual arrangements to Congress. Congress continued to appropriate money to the “continuing fund” to cover, among other items, the cost for rental and use of transmission facilities.

During the period between 1962 and the time of this action, the Associated-SPA contract came under sharp criticism from other government agencies. The Federal Power Commission repeatedly expressed concern that SPA was failing to meet the requirements of the Flood Control Act — that “rate schedules shall be drawn having regard to the recovery of the costs of producing and transmitting such electric energy, including the amortization of the capital investment * * * ”. The contract credits allowed Associated were singled out as the primary cause.

Revised Rate Schedule in 1970

In 1969 appellant King was appointed Administrator of SPA. From a study of the marketing of SPA’s power and energy, he found that rather than recovering the cost of Government facilities, as required by the Act of 1944, SPA was in fact losing money and that the largest part of the loss resulted from the SPA-Associated contract. Based upon a report of the SPA staff, he determined that SPA had received little benefit from the services for which Associated was credited, and that the credits accordingly were a cost to SPA which was not being recovered.

The Administrator concluded that the loss in revenue and failure to recover costs could not be justified under the directive of the Flood Control Act of 1944. Accordingly he prepared a revised Rate Schedule P-2 which included a new charge for transmission of power and energy to points beyond SPA’s high voltage grids. There were no other customers besides Associated to whom the new transmission service charge was applicable. This charge effectively eliminated the credit items marked with an asterisk on the chart set forth supra.

The Secretary concurred in the Administrator’s action and submitted the revised rate schedule to the FPC on January 30, 1970. On May 28, 1970, the FPC issued an order confirming the new schedule and denying Associated’s petition for intervention and request for a full hearing. The relevant appropriation subcommittees of each House of Congress were made aware of the new transmission service charge, but no action was taken by Congress with respect thereto.

In July, 1970, the SPA began to bill Associated for the new transmission service charge. Associated refused to pay the new charge and challenged its imposition by instituting this action on August 12, 1970.

Contentions of Appellants

In urging reversal of the order granting summary judgment in favor of Associated, appellants contend that:

(1) the transmission service charge represents a valid exercise of the Secretary’s rate-making powers under the Flood Control Act of 1944;

(2) (a) the transmission service charge is consistent with the contract between Associated and SPA, but (b) if the contract credits and the service charge are inconsistent, then the service charge, which is an exercise of the Secretary s rate-making power, must prevail ;

(3) the Secretary’s exercise of his rate-making authority is not subject to judicial review;

(4) even if judicial review is found to exist, the service charge is not discriminatory, arbitrary or capricious;

(5) it was not necessary for the FPC to hold a formal evidentiary hearing pri- or to approving the rate change by the Secretary;

(6) by reason of the foregoing, summary judgment should have been entered in favor of the defendants; but

(7) in the alternative, the court erred in granting summary judgment in favor of Associated because there were disputed issues of fact “as to whether the credits were non-existent or grossly overruled and therefore illegal under the statute”.

Validity of Secretary’s Action Under Rate-Making Power of Flood Control Act

The Flood Control Act of 1944 specifically authorizes the Secretary of the Interior to dispose of power produced “at reservoir projects under the control of the Department of the Army at the lowest possible rates to consumers consistent with sound business principles, . . . having regard to the recovery ... of the cost of producing and transmitting such electric energy . . .”. 16 U.S.C. § 825s. Appellants contend that transmission expenses are costs which the statute au-thorízes and mandates the Secretary to recover, and accordingly, in making the revised rate schedule, the Secretary was merely complying with the directives of the Flood Control Act.

On the other hand, Associated contends that Congress has limited the Secretary’s rate-making authority in various appropriation acts which in effect constitute de facto amendments to the Flood Control Act of 1944. Associated refers to reports of Congressional appropriation committees in 1950, 1951, 1956, and 1962-66 authorizing and directing the Secretary to enter into contracts with the cooperatives, whereby the cooperatives, with loans from REA, would construct transmission lines. The Secretary in turn was to agree to lease the lines and compensate the cooperatives in an amount sufficient to service the REA loans and cover operating costs. The Secretary was also directed to deliver power over the lines of the cooperatives to their load centers at the “basic SPA rate”.

Associated argues that Congress in appropriating funds to implement the committee reports ratified the directives of the committees and gave them the force of law. It is Associated’s position that in establishing the transmission service charge, appellants effectively eliminated the rentals directed to be paid Associated, and also that appellants are billing Associated at a rate in excess of the “basic SPA rate”. In essence Associated contends that Congress in appropriating funds to cover deficits incurred by SPA manifested approval of SPA’s failure to attempt to recover costs as required by the Flood Control Act.

We cannot agree with the reasoning of Associated. In the first place, no cases hold that legislative histories carry the force of law. On the contrary, In re Evans, 146 U.S.App.D.C. 310, 452 F.2d 1239, 1245 (1971), cert. denied, 408 U.S. 930, 92 S.Ct. 2479, 33 L.Ed.2d 342 (1972) holds that “[w]hile [committee] reports are unquestionably entitled to weight in determining the purpose of a statute they are neither enacted by Congress nor signed by the President, and thus they do not have the force of legislation.”

Furthermore, simply because Congress ultimately enacted legislation appropriating funds to implement the contractual scheme between SPA and the cooperatives gives no greater weight to the committee reports. While it is true that appropriations in some instances may constitute ratifications, it is also clear that ratification by appropriation will not be found unless prior knowledge of the specific disputed action can be clearly demonstrated, D.C. Federation of Civic Associations v. Airis, 129 U.S.App.D.C. 125, 391 F.2d 478, 482 (1968) and the appropriation plainly shows “a purpose to bestow the precise authority which is claimed”. Ex parte Endo, 323 U.S. 283, 303 n. 24, 65 S.Ct. 208, 219, 89 L.Ed. 243 (1944).

It is anything but clear that the Congressional committees or Congress as a whole had any intent to require as a matter of law that the Secretary sell power at less than cost contrary to the explicit directive of Section 5 of the Flood Control Act. The mere fact that Congress appropriated funds to cover previous deficits of SPA is not inconsistent with SPA’s attempt to recover costs in the future. Congress has been advised of the imposition of the transmission service charge since 1970, but there is nothing in the record to indicate that Congress or any of its committees has ever suggested that the charge is illegal or improper. We find nothing in the actions of Congress which has limited the rate-making authority of the Secretary under the Flood Control Act of 1944.

Associated next contends that the Flood Control Act itself does not authorize the Secretary to impose the transmission service charge. Associated points out that the Act gives the Secretary authority to make three kinds of contracts (1) power sale contracts, (2) power purchase contracts, and (3) contracts to acquire transmission lines. Associated argues that the Secretary’s rate-making power applies only to power sale contracts. Associated admits that the 1962 contract has a power sale aspect. It contends, however, that the contract provision for transmission services is not a part of the power sale but rather involves the acquisition of transmission facilities. The Secretary, therefore, has no authority to unilaterally reduce the stipulated rental payments made by SPA.

This contention of Associated is without merit. Under the terms of the 1962 SPA-Associated contract, the Secretary acts in a dual capacity. He not only leases the transmission lines from Associated, but also utilizes the transmission lines to deliver electrical power and energy to Associated. Thus, two separate contractual obligations are involved. The Secretary agrees that in his capacity as lessee of the transmission lines, he cannot unilaterally alter the agreed lease price. Were the relationship of SPA to Associated only that of a lessee to a lessor there would be merit in Associated’s contention that the Secretary’s action was violative of the contractual provisions, as well as ultra vires under applicable federal law. This, however, is not the case. The Secretary also sells power and energy to Associated. Section 5 of the Flood Control Act expressly provides that the rates imposed with respect to a sale of power must be adequate to recover the cost of both providing and transmitting the power. The imposition of the transmission service charge thus falls within the Secretary’s rate-making authority.

Validity of Transmission Service Charge Under 1962 Contract

The 1962 SPA-Associated contract incorporated the statutory rate-making authority of the Secretary under the Flood Control Act. The contract states:

“The rates set forth in the said Rate Schedule P-2, or the rates in any superseding rate schedule may be increased or decreased by SPA from time to time subject to the confirmation and approval by the Federal Power Commission . . . ”.

Having concluded that the imposition of the transmission service charge was within the statutory rate-making authority of the Secretary, it is our opinion that the charge was also authorized by the terms of the 1962 contract between SPA and Associated.

Associated argues that even if the transmission service charge is a revision of the rate schedule, “it is an attempt to make the cooperatives pay twice for the same service because the contract rate [of $14.40 per kilowatt per year which has not been changed] includes transmission to the same points of delivery for which SPA would now charge them a second time”.

The plaintiff’s argument misconstrues the nature of the Secretary’s rate-making power. The point of delivery of the power or energy is as much a part of the rate schedule as is the price per kilowatt per year. The 1962 P-2 rate schedule stated that “Delivery of hydro and/or seasonal peaking power service will be from, and at the voltage of the 138 kv or the 161 kv transmission systems owned by or available to SPA . ”. (emphasis added). The revised schedule’s prices per kilowatt per year include transmission only as far as the SPA high voltage grid In other words, the $14.40 rate does not recover costs of transmission beyond the SPA high voltage grid. Costs of transmission beyond that grid are recovered by the new transmission charge. This change in the condition of the service constitutes an exercise of the Secretary’s rate-making power and is thus authorized both by the Flood Control Act and the SPA-Associated contract.

We conclude that the contract between SPA and Associated does not preclude the imposition of the transmission service charge.

Judicial Review of Rate-Making

The Administrative Procedure Act of 1946 “embodies the basic presumption of judicial review to one ‘suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute,’ 5 U.S.C. § 702, so long as no statute precludes such relief or the action is not one committed by law to agency discretion, 5 U.S.C. § 701(a)”. Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967). “[0]nly upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.” Id. In Data Processing Service v. Camp, 397 U.S. 150, 156-157, 90 S.Ct. 827, 831, 25 L.Ed.2d 184 (1970), the Court in quoting from a House Report at the time of the passage of the Administrative Procedure Act stated:

“The statutes of Congress are not merely advisory when they relate to administrative agencies, any more than in other cases. To preclude judicial review under this bill, a statute, if not specific in withholding such re-viéw, must upon its face give clear and convincing evidence of an intent to withhold it. The mere failure to provide specially by statute for judicial review is certainly no evidence of intent to withhold review. H.R.Rep. No. 1980, 79th Cong., 2d Sess., 41.”

Appellants argue that there is no right of judicial review by reason of the provision in 5 U.S.C. § 701(a)(2) that judicial review shall not apply to “agency action * * * committed to agency discretion by law”. This exception has been characterized by the Supreme Court as a “very narrow” one. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971). “The legislative history of the Administrative Procedure Act indicates that it is applicable in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ S. Rep.No.752, 79th Cong., 1st Sess. 26 (1945).” Id.

The construction of the Flood Control Act of 1944 and the 1962 contract between SPA and Associated requires legal as well as factual determinations. Given the narrowness of the exception and the presumption of reviewability, we conclude that the agency action here, although it involves rate-making, is not “committed to agency discretion by law” and is therefore subject to judicial review.

Were Actions Arbitrary, Capricious and an Abuse of Discretion?

Associated argues, and the district court held, that defendants’ actions were arbitrary, capricious and an abuse of discretion. This contention is answered in large part by our conclusion that the imposition of the transmission service charge was a proper exercise of the Secretary’s power. In proposing the rate revision to the FPC, the Secretary, as indicated in the affidavits in support of defendants’ motion for summary judgment, relied upon a Rate and Repayment Study dated January, 1970 and upon the expert opinion of the power engineers of his staff. It cannot be contended that the Secretary acted in a vacuum. Simply because other reports and studies were available and ignored by the Secretary does not make his actions arbitrary or capricious.

Moreover, the fact that Associated . was the only customer of SPA that was affected by the rate revision does not necessarily make the transmission charge discriminatory. A rate distinction between those companies which take their power directly from the high voltage grid of SPA and those which require delivery of power by SPA beyond SPA’s high voltage grid is not unreasonable.

Associated further argues that the action of the Federal Power Commission in denying its petition to intervene and request for a hearing was arbitrary, capricious and an abuse of discretion. The court disagrees. A “rule” is defined by the Administrative Procedure Act to include “ . . . approval or prescription for the future of rates, . . .”. 5 U.S.C. § 551(4). Having determined that the imposition of the transmission service charge was an exercise of rate-making power of the Secretary, we conclude that the action of the FPC in approving the proposed charge constituted rule-making. A formal evidentiary hearing is not required in rule-making proceedings. United States v. Florida East Coast Railway, 410 U.S. 224, 93 S.Ct. 810, 818, 35 L.Ed.2d 223 (1973).

In addition, the Administrative Procedure Act provides that a hearing is not required where there is involved “a matter relating to * * * public property”. 5 U.S.C. § 553(a)(2). Here the FPC was concerned with a rate revision on the sale of public power, and its action was exempt from the notice and hearing requirements of § 553. The denial of Associated’s petition to intervene and request for a hearing accordingly was not error.

Summary Judgment

While appellants contend that summary judgment should have been entered in their favor, they recognize that if the actions of the Secretary and the Commission are subject to judicial review, there are genuine issues of material facts to be resolved which preclude summary judgment.

In contending that. the transmission service charge was not authorized, Associated argues that the intended effect of the charge was to wipe out the agreed compensation of Associated (through credits) for transmitting SPA power for the account of SPA. On the other hand, SPA contends that the “credits” were either nonexistent or grossly over-valued and therefore illegal under the Flood Control Act.

Appellants rely on affidavits (with detailed specifications) of the Administrator of SPA and its power expert to support their claim that the “public is being required to subsidize Associated to the extent of millions of dollars a year” by reason of the “lack of value of each of the ‘services’ supplied by Associated to SPA”. The findings and conclusions of appellants’ experts are disputed in an equally detailed affidavit of Associated’s power expert. The opposing affidavits present disputed issues of fact of a highly technical and complex nature which cannot be resolved through summary judgment.

Specifically, there is a factual dispute with respect to Associated’s contention that it uses only 52% of the power and energy it is required to transmit over its lines. Associated claims that under its contract with SPA it is obligated to transmit the remainder of the power (approx. 48%) to three power companies, six municipalities and the Bureau of Reclamation. Nevertheless, according to Associated, the Secretary by imposing the transmission service charge requires Associated to bear 100% of the cost of transmission.

The appellants point out that Associated continues to receive $278,000.00 for transmitting power to the municipalities. With respect to the three private utilities and the Bureau of Reclamation, appellants claim that either Associated provides no transmission service or the transmission service is nominal and warrants no consideration. The extent of the transmission services performed by Associated for SPA is a question of fact material to a determination of the reasonableness of the Secretary’s action.

There are genuine issues of material facts which preclude summary judgment for either appellee or appellants.

Reversed and remanded.

      . Initially Morton, King and the members of the Federal Power Commission were named as defendants. The United States was granted leave to intervene as a defendant.

      . See 92 Cong.Rec. 7186-7200.

      . In a suit by private utility companies the Secretary’s authority to enter into these agreements was sustained in Kansas City Power & Light Co. v. McKay, 115 F.Supp. 402, 407—408 (DJXC.1953), judgment vacated for lack of plaintiffs’ standing to sue, 96 U.S.App.D.C. 273, 225 F.2d 924, cert. denied, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955).

      . 16 U.S.C. § 825s-l.

      . House Committee on Appropriations in its Report to Accompany T.R. 6766, the Public Works Appropriation Bill for F.Y. 1956 (H. R.Rep.No.747, 84tli Cong., 1st Sess. pp. 5-6.

      . The P-2 Rate Schedule provides for a demand charge for high voltage delivery of $14.40 per kilowatt per year and an energy charge of 2 mills per kilowatt hour.

      . Besides the contract between Associated and SPA, four other related contracts were executed at approximately the same time. One agreement suspends the contracts between SPA and the Missouri G & Ts unless the SPA-Associated contract is terminated prior to July 1, 1995 in which case the suspended contracts are revived. Others include a contract by SPA with three Missouri utility companies under which it sells them 190 megawatts of capacity with 1200 hours of energy under the P-2 Rate Schedule; a contract between Associated and the utility companies; and contracts between Associated and its six members.

      . 40 F.P.C. 291, 295 (1968).

      . The committees were advised by the Administrator during the 1970 hearings of the filing of the proposed rate with the FPC. Hearings, Senate Committee on Appropriations, Public Works, etc., Appropriations for 1971, 91st Cong., 2d Sess. ser. 26, pt. 3 at 331, 368 (1970) ; Hearings, House Committee on Appropriations, Public Works, etc., Appropriations for 1971, 91st Cong., 2d Sess., ser. 41, pt. 3 at 999-1000 (1970). The rate increase was also mentioned to the committees the following year. Hearings, House Committee on Appropriations, Public Works, etc., Appropriations for 1972, 92nd Cong., 1st Sess., pt. 2 at 773-744 (1971). At the House committee hearings on the 1973 appropriations bill, the Administrator advised the committee of the status of this suit. Hearings, House Committee on Appropriations, Public Works, etc., Appropriations for 1973, 92nd Cong., 2d Sess., ser. 38 pt. 3 at 765 (1972). And in 1973, he gave the Senate Committee a similar report and generally discussed the rate to Associated. Hearings, Senate Committee on Appropriations, Public Works, etc., Appropriations for 1974, 93rd Cong., 1st Sess., pt. 3 at 3181-3184 (1973).

      . While the House Committee on Appropriations spoke of power being delivered at the “basic SPA rate” (H.R.Rep.No.747, 84th Cong., 1st Sess., pp. 5-6 (1955)), it is significant that in its report, the conference committee called for delivery of power to the G & Ts “at the basic SPA rate” “if practical", (H.R.Rep.3STo.l085, 84th Cong., 1st Sess., p. 4 (1955)) (emphasis added). The addition of the phrase “if practical” indicates that the committee instructions were not as binding as Associated contends.

      . Moreover, the rules of each House of Congress expressly provide that appropriation bills are not to include general legislation. Rule XVI, paras. 2, 4, Standing Rules of the Senate, Rules and Manual, United States Senate, 84tli Cong. (1955) ; Rule XXI, para. 2, Rules of the House of Representatives, Rules and Manual, House of Representatives, 84tli Cong. (1955).

      . “* * * [RJepeals by implication are not favored. When there are two acts upon the same subject, the rule is to give effect to both if possible. * * * The intention of the legislature to repeal ‘must be clear and manifest’ United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 188, 84 L.Ed. 181 (1939).

      . See note 9 supra.

      . Associated relies on a construction given Section 5 in a Solicitor’s Opinion, July 15, 1949, 95 Cong.Rec. 11449 (1949).

      . We agree with appellants that “What the transmission service charge does * * * is change the point at which SPA begins to charge for the costs incurred in the delivery of the power and energy”.

      . Because of the credits received by Associated, SPA incurs costs of transmission beyond the high voltage grid. Other customers of peaking power take it from SPA’s high voltage grid and as to them SPA incurs no cost of transmission beyond its grid.

      . Even assuming that the transmission charge were precluded by the terms of the SPA-Associated contract, the transmission charge is nevertheless within the Secretary’s rate-making power under the Flood Control Act. It is well settled that a Government agency cannot contract in derogation of its statutory powers. See United States v. City and County of San Francisco, 310 U.S. 16, 28, 60 S.Ct. 749, 84 L.Ed. 1050 (1940).

      . Appellants rely heavily on Panama Canal Co. v. Grace Lines Inc., 356 U.S. 309, 78 S.Ct. 752, 2 L.Ed.2d 788 (1958) which held that the “initiation of a proceeding for readjustment of the tolls of the Panama Canal is a matter that Congress has left to the discretion of the Panama Canal Co.” Id. at 317, 78 S.Ct. at 757. The case was concerned with the failure to initiate new rate-making and the Court held that judicial review was precluded. The Court noted, however, that “We do not say, for we are not called upon to do so, that no justiciable issue can arise out of the toll-making procedure for the Panama Canal. All we hold is that the controversy at present is not one appropriate for judicial action”. Id.

      . At the hearing on appeal, the Secretary stated with respect to the discrimination contention that one other SPA customer, the City of Hermann, now pays a charge for transmission beyond the high voltage grid.

      . The principles governing summary judgment were reviewed by this court in Leonard v. BHJK Corporation, 152 U.S.App.D.C. 97, 469 F.2d 108, 110 (1972), where the court stated in part:
      “Tire movant has the burden of clearly demonstrating the absence of any genuine issues as to all of the material facts applicable under his theory of the law, and a party opposing summary judgment is entitled to the benefit of all favorable infer-enees that may be drawn from the evidence. The court may not weigh or resolve issues.” (citations omitted).

        Accord, Wright and Miller, Federal Practice and Procedure: Civil § 2712, (1973) ; Weiss v. Kay Jewelry Stores Inc., 152 U.S.App.D. C. 350, 470 F.2d 1259,1261-1262 (1972).

      . A substantial part of the oral argument before the district court was devoted to this issue.


source: Caselaw Access Project

author: MATTHEWS, Senior District Judge:

license: Public Domain

text:
    Helen B. ELLIOTT, Individually and as Administratrix of the Estate of Darlene Julie Elliott, Appellant, v. MICHAEL JAMES, INC., t/a Gentlemen II, et al.
    No. 72-1710.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 18,1973.
    Decided Nov. 26, 1974.
    Rehearing Denied Jan. 7, 1975.
    Roger E. Warm, Washington, D. C., with whom Laidler B. Maekall and John Day, Washington, D. C., were on the brief for appellant.
    James C. Gregg, Washington, D. C., was on the brief for appellee.
    Before WRIGHT and LEVENTHAL, Circuit Judges, and MATTHEWS Senior United States District Judge for the District of Columbia.

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

   MATTHEWS, Senior District Judge:

This is an appeal from a judgment for the defendants in a wrongful death action tried by the District Court without a jury. The plaintiff-appellant (plaintiff), Helen B. Elliott, is the adminis-tratrix of the estate of her twenty-year old daughter, Darlene Elliott, whose death was allegedly caused by the negligence of the defendant-appellees (defendants), Michael James, Inc., Michael G. O’Harro and James Michael Desmond.

On June 23-24, 1968, the defendant Corporation operated a restaurant-bar, known as Gentlemen II, located at 1800 M Street, N. W., in Washington, D. C. The two individual defendants,. Michael G. O’Harro and James Michael Desmond, were then president and vice-president, respectively, of the defendant corporation, and responsible for the day-to-day operations of the restaurant-bar.

Darlene Elliott, plaintiff’s decedent, had been hired to work as a bookkeeper in a restaurant to be opened later in Baltimore. In the meantime, until the restaurant opened, she was working as a trainee bookkeeper on Monday through Friday of each week at defendants' restaurant, Gentlemen II. Her hours were from about 9:00 a. m. to 5:00 p. m. She had commenced this work in June 1968 — about three weeks prior to her death.

I

During her last June week end, Darlene Elliott visited her mother in Baltimore, and went to the beach at Ocean City with a young Maryland man she had long known. They reached Washington late Sunday afternoon, June 23, 1968. Expecting to stay with her sister but not finding the sister at home, Darlene Elliott picked up her car in Georgetown and then stopped by the restaurant-bar with her friend for refreshments.

While they were being served as guests, Paul Fleischer, night manager, expressly invited Darlene Elliott to remain after the midnight closing and to drive him home. Accordingly, she remained when her Maryland friend departed about 9:30 p. m. The individual defendants knew that the night manager, who had no car, sometimes asked a guest to remain after hours and drive him home. Thus they were aware that an individual not working at the restaurant-bar might be there after closing hours. The closing duties of the night manager included counting the day’s receipts, making the appropriate entries and the like, all of which would take about an hour.

It is undisputed that between midnight and 4:00 a. m. on Monday June 24, 1968, at the restaurant-bar, Stanley Cobb, who was employed by the corporate defendants as a combination night busboy and clean-up man at the restaurant-bar, knifed to death Darlene Elliott during a violent struggle. The body of Miss Elliott was found on the first or main floor. Stanley Cobb was found alive in the kitchen area of the first floor, suffering from superficial wounds. Later, during a general search of the premises by the police, the dead body of the night manager was discovered in the basement.

A United States Park Police officer, driving east on M Street, passed the restaurant-bar at approximately 3:00 a. m. on June 24, 1968. He heard a scream which sounded to him to be that of a woman. He stopped and listened but heard nothing further.

On the same day about an hour later the police arrived at the restaurant-bar in response to a call made to the telephone company (allegedly by Stanley Cobb) of intruders in the restaurant-bar. When the police found no evidence of forcible entry and all doors to the restaurant-bar securely locked, they broke into the place to gain admittance.

Once on the first floor of the premises the police discovered “a massive crime scene” and “extensive evidence” of an over-all struggle between Darlene Elliott and Stanley Cobb. The struggle was long drawn out and indicated that Darlene Elliott fought with Cobb in an effort to save her life.

All exits from the restaurant-bar were found by the police securely locked from the inside in such a fashion that they could not be opened from the inside except by a key which was not in any lock.

The restaurant-bar, Gentlemen II, was a Group F-2 Assembly use building as defined by Section 8-209 (b) of the 1961 Building Code of the District of Columbia. As a Group F-2 Assembly, use building the restaurant-bar was subject to the following requirements of the Building Code:

Section 3-643(j) “All doors used in connection with means of egress shall be so arranged as to be always readily opened from the side from which egress is made. Locks, where allowed, shall not require a key to unlock from the inside.” (Emphasis supplied.)
Section 3-6143 (e) “All exit doors shall remain entirely unobstructed and/or unobscured at all times.”

In the introduction to the 1961 Building Code at page vii, it is stated:

“Purpose and Scope. This code provides minimum standards to safeguard life and limb, health and property, by regulating the design, construction, quality of materials, and maintenance of all buildings and structures within the jurisdiction of the Board of Commissions of the District of Columbia.
“The provisions of this code constitute minimum standards. Compliance with these standards will result in construction which is reasonably free from hazard but not necessarily the most efficient or convenient. This code is to be regarded neither as a design specification nor an instruction manual. Good service and satisfactory results may necessitate designs of higher standards than the required minimum.”

The restaurant-bar in question had only three exits, all located on the main floor level, one on M Street and two on 18th Street.

The exit on M Street consisted of two double doors secured by a deadbolt lock in the middle of the doors and two sliding bolt locks on one of the doors at the top and bottom of the door. A deadbolt is not a spring-operated bolt but a solid rectangle of metal that can only be operated with a key. These main front doors were secured by sliding the hand-operated bolt locks into the ceiling and floor and locking the deadbolt lock in the middle of the doors with a key. When the hand-operated bolt locks and/or the small inside latches on the main front doors were in place, these doors could be opened from the inside or outside only with the use of the key to the deadbolt lock.

One of the two 18th Street exits was not regularly used and was secured by padlocks and bolts and also had equipment piled against it. The other 18th Street exit was secured with a hasp, padlock and crossbar. It was used for delivery of drygoods and liquor and by the help, but was always secured at night.

The defendants had established and regularly engaged in the practice of locking all exits after the restaurant-bar was closed for business so that the doors could not be opened without a key. Responsibility for locking up the restaurant-bar rested upon the night manager. After the customers left the restaurant-bar at the close of business, the night manager, pursuant to such established practice, locked the doors, thus locking the customers out and locking the staff in.

It was customary for the night manager to lock the doors from the inside with his keys while he counted the day’s receipts and then when he left to lock Cobb inside the restaurant-bar for the remainder of the night without a key. The practice of locking the night staff inside the restaurant-bar after closing was due to the fact that the defendants did not trust Stanley Cobb with the keys to the exits of the restaurant-bar. Keys to the doors were issued only to the defendants O’Harro and Desmond and the day and night managers.

While the premises of the restaurant-bar consisted of a basement, a main floor, a mezzanine, and a third floor, the windows in the building did not provide an escape route. The basement windows opened on barred-in window wells below the surface of the street; the windows on the first floor were plate glass and could not be opened. No outside windows opened onto the mezzanine. Although the third floor had windows, they were three floors above the ground.

The main floor of the restaurant-bar consisted of a lobby or vestibule, the principal dining room, an alcove dining room, a ladies’ restroom, and the kitchen facilities. Upon entering the main door on M Street there was an open stairway on the left leading to the open mezzanine facing down on the principal dining room. Access to the basement was through a stairwell leading through the kitchen which was always open. Use of the same stairwell was necessary to get out of the basement as no exit from the basement existed.

Police officers who arrived at the massive crime scene found considerable physical evidence throughout the entire main floor of an over-all struggle which had taken place between Darlene Elliott and Cobb. Strewn around the first floor of the restaurant were the contents of a woman’s purse, an earring, and a woman’s underclothing including a pair of blue panties and a bra. Blood had been spilled in various places on the main floor, including the dining room and the kitchen, and bloody hand prints were on some of the walls. In the vestibule or lobby to the right of the main door was a cloakroom containing coat racks, and there was blood on a hook at the bottom of one of the coat racks. The body of Darlene Elliott was on the main floor, her head near the foot of the mezzanine stairway, and her feet toward the principal exit. There was blood on the “panic bar” at an 18th Street exit on the main floor, blood on the floor there, together with a button and a tablecloth. This “panic bar,” when depressed, would release the top and bottom locks so that the door could be opened but for the other devices preventing such opening. The body of the night manager was not found on the main floor but in the basement.

Stanley Cobb was convicted of two counts of second degree murder on January 29, 1970, and his conviction was affirmed. United States v. Cobb, 146 U.S.App.D.C. 69, 449 F.2d 1145 (1971). He did not testify at his trial, nor in the instant case.

II

In the present ease, plaintiff maintains that the defendants’ affirmative acts created an unreasonable risk at the restaurant-bar, and hence that the resulting negligence was active rather than passive. The evidence clearly shows that after Darlene Elliott entered the restaurant on Sunday, June 23, 1968, while it was open for business, the defendants deliberately used operative locks “that required a key to unlock from the inside” on all three ground floor exits. The defendants established and approved of the practice of securing these doors each evening. The plaintiff’s complaint does not limit itself to the claim that egress was prevented solely because of pre-existing conditions negligently created by the defendants, such as the installation of key locks on the exit doors. The evidence clearly shows that these pre-existing conditions were activated after Darlene Elliott entered the premises. This was done by the defendants’ employee, Paul Fleischer, when he took affirmative steps to secure the doors as he was required to do each and every evening.

While it is true that doors must be secured to keep intruders out, the defendants could have easily and conveniently realized this purpose without creating undue risk to those on the premises. The defendants could have used the panic bar devices and other widely used locks that prevent unauthorized entry from the outside while permitting easy and safe egress from the inside.

The 1961 Building Code was designed to provide “minimum standards to safeguard life and limb” by regulating “the design, construction, quality of materials, and maintenance of all buildings.” (Emphasis added.) These minimum standards require that all egress doors of restaurant-bars “be so arranged as to be always readily opened from, the side from which egress is made” and prohibited the installation and use of locks that “require a key to unlock from the inside.” These standards were formulated with due regard to the burdens that such requirements would place upon commerce. This in turn was a function of the then existing state-of-the-art regarding building construction and design and the availability of required appliances on the market, such as locking devices that would keep unauthorized persons out and at the same time permit quick and convenient egress.

We view the 1961 Building Code requirements as design standards. Their application is not dependent upon whether the building is open to the public. This distinct difference between building code regulations and other specialized safety regulations is substantiated by the fact that the similar requirements imposed by the Police and Fire Regulations of the District of Columbia are effective only when “the building is occupied” (Art. 17, Sec. 1 of the Police Regulations of the District of Columbia) or “whenever any place of assembly is occupied as such.” (Title 7 of the D.C. Rules and Regulations (Fire Department), Chapter II, Section 21.4.) These police and fire regulations contain these limitations because they were designed to minimize specific risks that would occur under certain circumstances, such as panic and fire when assembly buildings were filled with people. The 1961 Building Code, on the other hand, does not contain this qualifying language because it was recognized that there were a great number of internal hazards which would necessitate easy egress for any person within a particular building at any time and that this risk could be minimized without undue burden upon the owners of buildings through the design of exits and the use of locks readily available on the market.

We note that at the time of her death Darlene Elliott had been employed for only three weeks at the restaurant-bar. Her normal working hours were from 9:00 a. m. to 5:00 p. m. As the place was already open for business at those hours, the use of a key by any one of the four individuals possessing a key, seems not to have been involved during Darlene Elliott’s working hours. On the other hand, the night manager and Stanley Cobb had been employed at the restaurant-bar longer than Darlene Elliott, their hours of employment differed from hers, and involved a period during which the restaurant-bar was closed for business by securing the door with a key. There is nothing in the record to reflect that prior to the night Darlene Elliott was killed she was aware of the practice of the defendants (through their night manager) of locking the exit doors and then removing the key, thus leaving no visible means of escape from the establishment in the event of an emergency.

Ill

In his memorandum opinion the District Judge described the claim of negligence in this case as “that at the time of the killing all exits from the restaurant were locked from the inside, that plaintiff’s decedent did not have a key, and that accordingly plaintiff’s decedent was prevented from fleeing the assailant.” Further, the District Court commented that on the night in question, Darlene Elliott “did not have a key, the door had no key in the inside lock, and without a key she had no clearly visible means of escape from the restaurant.”

As for the safety regulation, the District Court concluded that the defendants did in fact violate Section 3 — 643 (j) of the Building Code of the District of Columbia “in that on the particular evening the doors were not readily opened from the inside but required a key to unlock them and no key was in the locks.”

Under the circumstances the court viewed the crucial factual issue presented as “whether defendants’ violation of this [safety] regulation was the proximate cause of the wrongful death of plaintiff’s decedent.” Stated differently, the issue was whether “the locked doors were the proximate cause of the death.” Ruling in favor of the defendant violators of the safety regulation the court said in part:

“Cobh [the employee who killed Darlene Elliott] did not testify at the trial and accordingly all facts are entirely circumstantial. * * * Most importantly, there is no direct evidence that the locked exits contributed to the death of either victim.” (Emphasis added.)

For this jurisdiction the evidence rule was stated by Mr. Justice Rutledge, then of this court, and later of the Supreme Court, in Christie v. Callahan, 75 U.S.App.D.C. 133, 124 F.2d 825 (1941) as follows:

“Generally speaking, direct and positive testimony to specific acts of negligence is not required to establish it. Circumstantial evidence is sufficient, either alone or in combination with direct evidence. Circumstantial evidence may contradict and overcome direct and positive testimony. The limitation on its use is that the inferences drawn must be reasonable. But there is no requirement that the circumstances, to justify the inferences sought, - negative every other positive or possible conclusion. The law is not so exacting that it requires proof of negligence or causation by testimony so clear that it excludes every other speculative theory.” 75 U.S.App.D.C. 147-148, 124 F.2d 839-840.

Prosser, renowned writer on the law of torts, commenting on the factual issue of causation says:

“[The plaintiff] must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in the result. * * *
* * * * . * *
“He need not negative entirely the possibility that the defendant’s conduct was not a cause, and it is enough that he introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. The fact of causation is incapable of mathematical proof, since no man can say with absolute certainty what would have occurred if the defendant has acted otherwise. * * * If as a matter of ordinary experience a particular act or omission might be expected, under the circumstances, to produce a particular result, and that result in fact has followed, the conclusion, may be permissible that the causal relation exists.” (Citations omitted.)

It is asserted by plaintiff that the circumstantial evidence adduced at trial and facts found to exist by the court were such as to have reasonably permitted an inference favorable to plaintiff regarding causation but for the court’s mistaken belief that direct evidence was required.

According to plaintiff, the testimony at the trial proved the following facts:

1. The doors to the restaurant-bar, Gentlemen II, were locked in the normal manner after the close of business on the evening of June 23, 1968, or the early morning of June 24, 1968.

2. There was a brutal struggle between Stanley Cobb and Darlene Elliott that lasted over a considerable period of time and throughout the entire main floor of the restaurant-bar.

3. A long struggle had also taken place between Stanley Cobb and Paul Fleischer in the basement and on the basement stairs.

4. As to the main floor, there were blood stains on a panic bar on one of the 18th Street exits, blood stains on a coat rack near the locked front door exit and an earring near one of these exits.

These facts viewed in the context of common sense and experience argue strongly for the following conclusions:

1. That Darlene Elliott made an attempt or repeated attempts to escape from the building while she was struggling with Cobb or when Cobb was attacking Paul Fleischer in the basement. Such attempts would be the normal response of anyone situated in a similar situation.

2. That Darlene Elliott had an opportunity to make such escape attempts. This is confirmed by the facts that (a) she was able and in fact did move throughout the entire main floor in order to avoid the repeated attacks of Stanley Cobb; and (b) Stanley Cobb was also involved in a brutal struggle with Fleischer which occurred prior to or during Cobb’s repeated assaults upon Darlene Elliott. It is extremely unlikely that the attack upon Fleischer occurred after Darlene Elliott was dead, since such a conclusion would necessitate an inference that Fleischer acquiesced in the long drawn out attack upon Darlene Elliott.

3. That the locked doors prevented Darlene Elliott from making good her escape attempts. This is confirmed by her movements throughout the main floor which brought her in close proximity to all three main floor exits, by blood stains on the panic bar and front door coat rack and the presence of decedent’s earing near one of these exits.

Because it is normal for one to attempt to escape from such terrifying circumstances and because Darlene Elliott had an opportunity to do so, the most reasonable conclusion is that she did in fact try to escape. This coupled with evidence that someone attempted to escape from various exits seems to compel the conclusion that in all reasonable probability that person was Darlene Elliott.

IV

The Building Code itself makes evident its purpose to provide “minimum standards to safeguard life and limb.”

Clearly, we think, the requirement that doors be readily opened from the inside without a key was designed to protect persons within the restaurant-bar against entrapment by affording them a reasonably quick exit, evacuation, or escape, in the event of the arising of an internal danger or peril of whatever kind. Ordinarily, when the requirement that doors be readily opened from the inside without a key is fulfilled, it expedites the exercise by persons within the building of their normal power of self-protection, namely, flight from the danger or peril threatened. On the other hand, when, as in this case, there is a failure to meet the requirement such failure negates the protection intended by the safety measure, and increases the risk of ha:rm. We think that plaintiff’s decedent was a member of the class of persons for whose protection the safety measure was adopted.

The negligence in this case embraces not only the violation of the safety requirement but also the affirmative acts of defendants (through their manager) of securing all exits in such a manner that occupants of their restaurant-bar could not leave the premises without a key which was not in any lock.

“If there was negligence it very properly could be found to have been the proximate cause of the death.” Munsey v. Webb, 231 U.S. 150, 156, 34 S.Ct. 44, 45, 58 L.Ed. 162 (1913). While causal connection between the negligence complained of and the loss incurred must, of course, be proved, physical causation need not be proved by eyewitnesses, but causation may be found as an inference from evidentiary facts. Emery v. Tilo Roofing Co., 89 N.H. 165, 195 A. 409 (1937).

Lastly, we note that there is an “instinct of self-preservation” which the District Court was free to judicially notice as to the plaintiff’s decedent, Darlene Elliott. Kirincich v. Standard Dredging Co., 112 F.2d 163, 164 (3rd Cir. 1940). The recognition here of this instinct of self-preservation would be entirely consistent with the long drawn out struggle which Darlene Elliott waged for her life throughout the entire main floor of the restaurant-bar.

We are not satisfied that the trial judge gave effect to inferences reasonably to be drawn from the plaintiff’s case.

Accordingly, the judgment of the District Court is reversed, and the case remanded for a new trial.

So ordered.

      . The basement contained the liquor room, a drygoods storeroom, female employees’ locker room and restroom, male employees’ locker room and restroom, and the boiler room.

      . Memorandum Opinion, filed June 2, 1972, Brief of Appellant and Appendix, p. A 43.

      . Id. at A 45.

      . Id. at A 46.

      . Id.

      . Id. at A 47.

      . Id. at A 45.

      . Prosser, Tlie Law of Torts § 44, pp. 222-223 (2d ed. 1955).


text:
    Ronald WALLACE et al., Appellants, v. James T. LYNN, Secretary of Housing and Urban Development, et al.
    No. 71-1629.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 26, 1973.
    Decided Dec. 4, 1974.

      Karl W. Carter, Washington, D. C., for appellants.
    Raymond Banoun, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and John A. Terry, Asst. U. S. Atty., for appellees. Harold H. Titus, Jr., U. S. Atty., entered an appearance for appel-lees.
    Before ROBINSON, MacKINNON and ROBB, Circuit Judges.
   SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

The named appellants, four employees of the Department of Housing and Urban Development (HUD), brought this class action against appellees alleging that they and 141 other HUD employees had unlawfully been suspended from employment because of absence without leave from their work posts on May 13, 1971. The action seeks declaratory relief and damages arising out of the allegedly wrongful suspensions. The District Court denied appellants’ motion for a preliminary injunction, holding that they had not proven sufficient likelihood of success on the merits due to their failure to exhaust available administrative remedies. We affirm.

I.

The District Court made findings of fact describing the events that gave birth to this litigation. At approximately noon on May 13, 1971, a large group of HUD employees assembled outside the office of Lester P. Condon, HUD’s Assistant Secretary for Administration, to present grievances regarding equal employment opportunity in HUD and specifically to seek a response to a May 4 memorandum submitted to HUD by appellant Ronald Wallace, co-chairman of the HUD Employees Task Force Against Racism. Condon returned to his office at 12:30 p. m. and spoke with appellants, the apparent group leaders; he twice requested that they return to their jobs and ask all other employees to follow suit. Appellants refused, disclaiming any control over the assembled group. At about 1:00 p. m. Condon himself, without avail, asked the employees to return to work. The group finally dispersed at about 3:30 p. m. All employees identified by their supervisors as participants in the incident were charged with absence without leave and denied compensation for the period of the absence.

On May 21, 1971, HUD sent to the accused employees three types of letters giving notice of proposed actions of suspension. The first type, a proposed suspension for five days, was sent to the four appellants. It stated that their absences from work posts on May 13, and their refusal to comply with the orders to return and to request the return of demonstrators, amounted to insubordination. In addition, a letter noting absences without leave on May 13 and proposing a one-day suspension was sent to 146 other employees. Both types of letters also informed the affected employees of their right to respond in writing to the charges within five days and directed them to the HUD Personnel Office for further information. A third kind of letter, not here relevant, was sent to eight probationary employees notifying them of their absences without leave on May 13.

Replies were received within the five-day period from 52 of the 150 employees who had the right to reply. HUD found that five responses gave satisfactory justification for being off the job and that the other 47 responses gave unsatisfactory reasons. The latter group of employees was suspended for one day. Of the remaining 98 nonprobationary employees to whom letters were sent, 94 were ordered suspended for one day and the four appellants for five days. The individual notices to the 145 employees who were ordered suspended described available appeals to the Civil Service Commission and the HUD grievance procedures, but none of these employees pursued these remedies before seeking relief from the District Court.

II.

In ruling on appellants’ motion for a preliminary injunction, the District Court found that the suspensions, if unrestrained pending trial on the merits, would inflict irreparable injury on the affected employees. The court denied the motion, however, because appellants had not proven sufficient probability of success on the merits. The basis for this finding was appellants’ failure to exhaust available administrative remedies, and in this court appellants have sought vigorously to justify that omission.

The scope of our review is restricted to a determination as to whether the District Court’s action was founded on an erroneous legal premise or constituted an abuse of its discretion. Four inquiries have traditionally governed decisions on motions for preliminary injunctions: (1) whether the movant has demonstrated a substantial likelihood of success on the merits, (2) whether denial of relief prior to a decision on the merits would cause the movant to suffer irreparable injury, (3) whether harm to the respondent from granting relief outweighs the possible injury to the movant, and (4) whether, and if so how, the public interest will be affected by granting or denying relief. The factors unearthed by the first two inquiries compel us to affirm the denial of pretrial relief; we regard the factors developed by the latter two as neutral in this case.

It is well settled that resort to the judicial process must ordinarily be postponed until administrative remedies capable of rectifying claimed error have been pursued to finality. Where a failure to exhaust administrative remedies would likely preclude an award of relief at the end of the litigation, the party seeking relief has not made a sufficient showing of probability of ultimate success to obtain a preliminary injunction. A number of diverse policies have motivated application of the exhaustion doctrine, and some we find relevant to this appeal.

The Supreme Court has noted that administrative tribunals should generally be given the opportunity to correct their own errors and thereby obviate the need for judicial review. This policy is particularly viable where an established scheme of decision making might be undermined by permitting circumvention of administrative procedures. This court has noted that close adherence to the exhaustion rule in such circumstances will prevent waste of judicial resources and discourage forum shopping.

Appellants contend that they are not bound by the general rule, because the administrative remedies available to them are inadequate and any endeavor to utilize them would be futile. It is beyond question that “the exhaustion requirement contemplates an efficacious administrative remedy,” but appellees claim, and ■ we agree, that two possible courses in the administrative process could provide appellants with the relief they now seek in court. Appellants could have obtained review of their suspensions by the Civil Service Commission under government-wide regulations or by HUD under its grievance procedures. Among the grounds for relief urged in the District Court were lack of a hearing before suspension, failure by HUD to follow its own guidelines, and insufficiency of the time given appellants to respond to the notices of suspension. It appears that each of these claims would lie within the scope of an appeal either to the Commission or within HUD. It is also clear that appellants’ contention that the suspensions were by-products of racial discrimination could likewise be presented to the Commission.

Appellants also assert that the exhaustion requirement is inapplicable, because they are seeking to remedy violations of constitutional rights over which the Commission and HUD have no jurisdiction. On the contrary, “[t]he very fact that constitutional issues are put forward constitutes a strong reason for not allowing . . . suit either to anticipate or take the place of [agency action].” To be sure, neither the Commission nor HUD could finally set-tie the claim that appellants were victimized by racial discrimination or were protected by the First Amendment in their efforts to redress their grievances. But there are grounds on which appellants could succeed in nullifying the suspensions through the administrative process and eliminating any need for the courts to pass on the constitutional issues. If the administrative appeals open to appellants and others similarly situated are unsuccessful, the constitutional issues will remain alive and judicial intervention in this employment dispute will become appropriate at that time.

III.

The failure to exhaust administrative remedies prevents appellants from demonstrating sufficient likelihood of success on the merits. As a result, the District Court properly denied their motion for a preliminary injunction. Appellants are free, of course, to now avail themselves of those remedies. Initiation and pursuit of the administrative process does not appear particularly burdensome, and in the usual case need not long delay judicial resolution, if necessary. We repeat that “ [i]f [appellants] are unable to obtain justice through administrative remedies, they may then seek review and correction by the federal judiciary.”

The judgment of the District Court appealed from is

Affirmed.

      . Appellees are the Secretary of HUD, two Assistant Secretaries and HUD’s Director of Personnel.

      . Wallace v. Romney, Civil No. 1113-71 (D. D.C. June 29, 1971).

      . We have utilized the opportunity to review appellants’ arguments in light of Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed. 2d 166 (1974), and Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), decided after this case was argued in this court.

      . The memorandum asked HUD to clarify and itemize its response to fourteen demands that had originally been submitted by the Task Force shortly after a demonstration on October 13, 1970., The employees who participated in the October 13 incident were disciplined, resulting in a loss in pay; the demands were aimed at the elimination of alleged racial discrimination in HUD. These grievances were subsequently aired before an impartial appeals examiner who, on October 5, 1971, found a “pattern or practice” of discrimination at HUD as of October 13, 1970, and recommended that the disciplinary actions following the incident of that date be rescinded.

      . These two types of letters also referred to á HUD memorandum that .had been issued following the October 13 incident. The memorandum emphasized that employees absent from work without authorization were absent without leave, and stated that regulations regarding employee conduct were to be strictly adhered to.

      . The pertinent part of the notices stated :
      You have a right to appeal this action to the Appeals Examining Office, U. S. Civil Service Commission, 1900 E Street, N. W., Washington, D. C. 20415 in accordance with Subchapter 3, Chapter 752 of the Federal Personnel Manual. Your appeal may be submitted at any time after receipt of this memorandum, but in no event later than 15 calendar days after the effective date of your suspension.
      You also have a right to request a review of this action under the grievance procedures of the Department of Housing and Urban Development in accordance witli HUD Handbook 771.2, Employee Grievances. Mr. Furman Layman in the Personnel Office will make available to you the Civil Service Commission regulations and HUD Handbook 771.2.
      The provisions of the Federal Personnel Manual referred to are at 5 C.F.R. §§ 752.-101-.402 (1974).

      . Twenty-nine employees, including two of the appellants herein, appealed their suspen- ■ sions to the Civil Service Commission two days after the District Court denied appellants’ motion for a preliminary injunction. On Xovember 19, 1971, their appeals were denied on the ground that the procedures used by HUD complied with civil service regulations.

      . The District Court was of the view that appellants had shown the suspensions would cause irremediable harm to the affected employees despite the availability of retroactive reinstatement and back pay, 5 C.F.R. § 752.-402 (1974), 5 U.S.C. § 5596 (1970), and the possibility of expunging the suspensions from their personnel files, see 5 C.F.R. § 752.401 (1974). True there is no provision in the Civil Service regulations for a stay pending appeal to the Commission, see Sampson v. Murray, supra note 3, 415 U.S. at 93, 94 S.Ct. 937. (Douglas, J., dissenting), and HUD was not disposed to hold off the suspensions voluntarily. The Supreme Court, however, subsequently held that “the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury,” id. at 90, 94 S.Ct. at 952; moreover, the Court noted that damage to reputation is insufficient to establish the irreparable injury required to order preliminary relief in favor of federal civil servants, id. at 91, 94 S.Ct. 937. AVe are thus constrained to hold appellants did not “make a showing of irreparable injury sufficient in kind and degree to override [the] factors cutting against the general availability of preliminary injunctions in Government personnel cases.” Id. at 84, 94 S.Ct. at 950.

      . At the same time, the court issued an order staying the suspensions pending this appeal.

      . Delaware & Hudson Ry. v. United Transp. Union, 146 U.S.App.D.C. 142, 158, 450 F.2d 603, 619, cert. denied, 403 U.S. 911, 91 S.Ct. 2209, 29 L.Ed.2d 689 (1971) ; A Quaker Action Group v. Hickel, 137 U.S. App.D.C. 176, 180, 421 F.2d 1111, 1115 (1969) ; District 50, UMW v. International Union, UMW, 134 U.S.App.D.C. 34, 35, 412 F.2d 165, 166 (1969).

      . Delaware & Hudson Ry. v. United Transp. Union, supra note 10, 146 U.S.App.D.C. at 158, 450 F.2d at 619; A Quaker Action Group v. Hickel, supra note 10, 137 U.S.App.D.C. at 181, 421 F.2d at 1116; Industrial Bank v. Tobriner, 132 U.S.App.D.C. 51, 54, 405 F.2d 1321, 1324 (1968).

      . The second factor is discussed in note 8, supra. The likelihood of success is examined below. See notes 14-28, infra, and accompanying text.

      . AVith respect to the third factor, the parties disagree as to the effect of a preliminary injunction on the daily operations of HUD. The District Court made no finding on this score, and we do not believe that restraint of the suspensions pending final determination of the merits would inflict appreciable injury on I-IUD. Appellants contend that a preliminary injunction would serve the public interest, because they were suspended for exercising First Amendment rights; appellees respond that the suspensions resulted from absence without leave and not from any exercise of constitutionally protected freedoms. The District Court has not yet passed on the validity of the asserted constitutional claims, nor do we, and appellants have not convinced us that the public interest factor is strong enough in any event to overcome the likelihood of loss on the merits for failure to exhaust administrative remedies.

      . FCC v. Schreiber, 381 U.S. 279, 296-297, 85 S.Ct. 1459, 14 L.Ed.2d 383 (1965) ; Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 82 L.Ed. 638 (1938) ; Lodge 1858, AFGE v. Paine, 141 U.S.App.D.C. 152, 166, 436 F.2d 882, 896 (1970) ; Sohm v. Fowler, 124 U.S.App.D.C. 382, 384-385, 365 F.2d 915, 917-918 (1966).

      . See Lodge 1858, AFGE v. Paine, supra note 14, 141 U.S.App.D.C. at 166, 436 F.2d at 896; Young v. Higley, 95 U.S.App.D.C. 122, 220 F.2d 487 (1955).

      . McGee v. United States, 402 U.S. 479, 484, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971) ; McKart v. United States, 395 U.S. 185, 195, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969).

      . McGee v. United States, supra note 16, 402 U.S. at 484, 91 S.Ct. 1565; McKart v. United States, supra note 16, 395 U.S. at 195, 89 S.Ct. 1657.

      . Sohm v. Fowler, supra note 14, 124 U.S. App.D.C. at 384, 365 F.2d at 917. See also McKart v. United States, supra note 16, 395 U.S. at 195, 89 S.Ct. 1657.

      . Lodge 1858, AFGE v. Paine, supra note 14, 141 U.S.App.D.C. at 166, 436 F.2d at 896. Three courts applied the exhaustion doctrine to deny preliminary relief for air traffic controllers following the 1970 “sick out;” the remedies there do not appear any more adequate than those available to appellants. United States v. Professional Air Traffic Controllers Org., 438 F.2d 79 (2d Cir. 1970), cert. denied, 402 U.S. 915, 91 S.Ct. 1373, 28 L.Ed.2d 661 (1971) ; Ogden v. Department of Transportation, 430 F.2d 660 (6th Cir. 1970) ; Henson v. United States, 321 F.Supp. 122 (E.D.La.1970).

      . 5 C.F.R. §§ 752.301 et seq. (1974).

      . Department of Housing and Urban Development, Personnel Policy- — Employee Griev-anees Part 771.2 (1971) [hereinafter cited HUD Handbook],

      . We recognize that these claims could be framed as a due process challenge to the suspensions. See Arnett v. Kennedy, supra note 3. Nevertheless, the appeals could be resolved in favor of appellants on nonconstitutional grounds clearly within the jurisdiction of the agencies involved. See Freeman v. Shultz, 152 U.S.App.D.C. 16, 18, 468 F.2d 120, 122 (1972) ; Hadnott v. Laird, 149 U.S.App.D.C. 358, 361, 463 F.2d 304, 307 (1972) ; Douglas v. Hampton, 338 F.Supp. 18, 23 (D.D.C.1972). The presence of constitutional questions is, by itself, not enough to avoid operation of the exhaustion doctrine. See text infra at notes 26-28.

      . 5 C.F.R. §§ 752.304(b) (1) (1974).

      . I-IUD Handbook, supra note 21, Part 771.-2, If 7.

      . 5 C.F.R. § 752.302(b)(2) (1974). In fact, the employees racial grievances have been submitted to an impartial examiner. See note 4, supra.

      . Aircraft & Diesel Equip. Corp. v. Hirsch, 331 U.S. 752, 772, 67 S.Ct. 1493, 1503, 91 L.Ed. 1796 (1947). See Hadnott v. Laird, supra note 22, 149 U.S.App.D.C. at 363-365, 463 F.2d at 309-311.

      . Appellants raise a number of First and Fifth Amendment claims. “This doctrine seems particularly applicable here because of the far reaching and difficult nature of the-constitutional claims.” Sohm v. Fowler, supra note 14, 124 U.S.App.D.C. at 385, 365 F.2d at 918.

      . Two cases in this circuit have held that the exhaustion doctrine applies despite claims of unconstitutional racial discrimination. Freeman v. Shultz, supra note 22; Hadnott v. Laird, supra note 22. In the First Amendment area, judicial action has also been postponed pending administrative proceedings. See Waters v. Peterson, 161 U.S.App.D.C. 265, 268, 495 F.2d 91, 94 (1973).

      . The Commission’s regulations permit employee appeals up to 15 days after suspensions have been effected. 5 C.F.R. § 752.-304(c) (1974). The suspensions at issue here have been stayed pending this appeal, so the suspended employees may still prosecute their cases before the Commission. See note 7, supra.

      . Freeman v. Shultz, supra note 22, 152 U.S.App.D.C. at 20, 468 F.2d at 124. Such review would be forthcoming, after exhaustion of administrative remedies, if appellants were permitted to file a supplemental pleading alleging exhaustion. See Fed.R.Civ.P. 15(d) ; Lodge 1858, AFGE v. Paine, supra note 14, 141 U.S.App.D.C. at 168, 436 F.2d at 898.


author: PER CURIAM:

text:
    UNITED STATES of America v. William PETERSON, Appellant. UNITED STATES of America v. John F. POLLARD, Appellant (two cases). UNITED STATES of America v. Joseph L. KENNEDY, Appellant. UNITED STATES of America v. Joseph C. RUMBER, Appellant. UNITED STATES of America v. James R. JANOSKO, Appellant.
    Nos. 72-2086, 73-1522, 73-2033, 73-2088, 73-2091 and 73-2127.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 5, 1974.
    Decided Dec. 2, 1974.

      Mark Andrews, Washington, D. C., for appellants. Sherman L. Cohn, Washington, D. C. (appointed by this Court), and June D. W. Kalijarvi were on the brief for appellants. Francis J. Murray, Jr.* entered an appearance for appellants.
    Steven R. Schaars, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Charles H. Roistacher and Stuart M. Gerson, Asst. U. S. Attys., were on the brief for appellee.
    Before ROBINSON, ROBB and WILKEY, Circuit Judges.

       Entered an appearance as student counsel pursuant to Bule 20 of the General Buies of this Court.

   PER CURIAM:

The question presented by these consolidated appeals is whether a defendant who is sentenced to imprisonment by the District Court is entitled to credit under 18 U.S.C. § 3568 for the time spent on conditional release pending trial or appeal. We answer the question in the negative.

The statute, 18 U.S.C. § 3568 provides :

The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.

The appellants contend that the periods during which they were on conditional release pending trial or appeal were “days spent in custody” within the meaning of the statute. They argue that this conclusion follows because while on conditional release they were not completely at liberty. We think however that “in custody”, as used in the statute, means detention or imprisonment in a place of confinement and does not refer to the stipulations imposed when a defendant is at large on conditional release.

Prior to 1960, the first paragraph of 18 U.S.C. § 3568 read:

The sentence of imprisonment of any person-convicted of an offense in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence.

Act of June 25, 1948, eh. 645, 62 Stat. 838.

In 1960 this paragraph was amended to read:

The sentence of imprisonment of any person convicted of an offense in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence: Provided, That the Attorney General shall give any such person credit toward service of his sentence for any days spent in custody prior to the imposition of sentence by the sentencing court for want of bail set for the offense under which sentence was imposed where the statute requires the imposition of a minimum mandatory sentence, [emphasis supplied.]

Act of Sept. 2, 1960, Pub.L. No. 86-691, § 1(a), 74 Stat. 738.

In 1966 the paragraph was again amended to its present form. Act of June 22, 1966, Pub.L. No. 89-465, § 4, 80 Stat. 217.

It is apparent that as used in the 1960 statute the words “in custody” referred to confinement “for want of bail”, not to the restrictions imposed when a defendant was released on bail. There is no evidence that Congress in amending this statute in 1966 intended to change its meaning to extend credit for time spent on bail. On the contrary, the Senate Report on the bill, explaining why the words “for want of bail” were deleted from the 1960 statute, noted that

persons charged with a nonbailable offense or not released for some reason other than lack of bail should also receive credit for such time against service of any sentence eventually imposed. Accordingly, S. 1357 guarantees credit for “any days spent in custody in connection with the offense for which sentence was imposed. * * * ” [emphasis supplied.]

S.Rep. No. 750, 89th Cong., 1st Sess., pp. 21, 22. Thus, the purpose of Congress was to benefit those who were not released ; there was no intention to extend credit to those who were released. Had Congress, in amending the statute, intended to give credit to those who were released pending trial or appeal we think Congress would have said so in plain language; certainly there would have been some discussion of this novel proposal in the reports on the legislation.

We note that the construction placed upon the statute by the appellants would lead to absurd results: if the time he spent on conditional release exceeded the term of imprisonment imposed on a defendant he would never be imprisoned at all. We cannot believe that Congress intended to make such a radical change in the federal penal system.

The conclusion we reach is in accord with that of other circuit courts of appeals. Sica v. United States, 454 F.2d 281 (9th Cir. 1971); Marchese v. Mc-Eachen, 451 F.2d 555 (9th Cir. 1971), cert. denied, 406 U.S. 945, 92 S.Ct. 2043, 32 L.Ed.2d 332 (1972); Polakoff v. United States, 489 F.2d 727 (5th Cir. 1974).

The appellant Pollard was confined in St. Elizabeths Hospital for approximately 130 days, and the government concedes that he is entitled to credit for this time under 18 U.S.C. § 3568. See Cephus v. United States, 128 U.S.App. D.C. 366, 389 F.2d 317 (1967); Sawyer v. Clark, 128 U.S.App.D.C. 206, 386 F.2d 633 (1967). His case is therefore remanded for the entry of a judgment directing the Attorney General to allow such credit. In all other respects the judgments of the District Court are

Affirmed.