author: CHRISTENSEN, Judge.

text:
    PEOPLE OF the STATE OF CALIFORNIA, Acting By and Through the STATE LANDS COMMISSION, et al., Plalntiffs-Appellees, and State of Louisiana, Plaintiff Inter-venor-Appellee, v. William E. SIMON et al., Defendants-Appellants.
    No. 9-12.
    Temporary Emergency Court of Appeals.
    July 26, 1974.
    As Modified Aug 14, 1974.

      Jay L. Shavelson, Asst. Atty. Gen., with whom Evelle J. Younger, Atty. Gen., Warren J. Abbott, and Richard A. Haft, Deputy Attys. Gen., Los Angeles, Cal., were on the brief, for plaintiff s-ap-pellees, People of State of California.
    Robert F. Shannon, with whom Leonard Putnam, City Atty., Harold A. Lin-gle, and Robert W. Parkin, Deputy City Attys., of City of Long Beach, Cal., were on the brief, for plaintiff-appellee, City of Long Beach.
    E. F. Barnett, Lake Charles, La., with whom Camp, Carmouch, Palmer, Carwile & Barsh, Lake Charles, La., were on the brief, for plaintiff-intervenor-appellee, State of Louisiana.
    Allen W. Hausman, Atty., Dept, of Justice, Washington, D. C., with whom Carla A. Hills, Asst. Atty. Gen., and Stanley D. Rose and Bruce G. Forrest, Attys., Dept, of Justice, Washington, D. C., were on the brief, for defendants-appellants.
    Richard A. Del Guercio, Los Angeles, Cal., with whom Demetriou & Del Guer-cio, James R. Jurecka, Los Angeles, Cal., and Joseph A. Helyer, were on the brief, for amici curiae Edgington Oil Co., and Independent Refiners Ass’n of California.
    John E. Sparks, San Francisco, Cal., with whom Robert C. Maddox, and Bro-beck, Phleger & Harrison, San Francisco, Cal., were on the brief, for amicus curiae Union Oil Co. of California.
    Before CARTER, CHRISTENSEN, and ESTES, Judges.
   CHRISTENSEN, Judge.

The decisive issue on this appeal is whether the Federal Energy Office (FEO) had already terminated a rule making proceeding initiated by its predecessor The Cost of Living Council (CLC) when it rescinded the state and local government exemption of crude oil from price controls in reliance upon, and effective as of the date of, the CLC’s original rule making notice contemplating such action. We are told that for the appellees alone some quarter of a billion dollars in contested charges, together with daily accessions of more than a million, directly depends upon the answer. We have been mindful also of even farther reaching agency actions and policies which, consistent with basic' fairness, are to be respected within applicable requirements and guidelines of the Economic Stabilization, the Administrative Procedure and the Emergency Petroleum Allocation Acts. Having concluded that in this vital process of modern government the rule in question was not aborted by any significant malformation, we reverse the judgment of the district court which treated the FEO’s withdrawal of the state and local government exemption as invalid.

With powers vested in the President by the Economic Stabilization Act and by him delegated to CLC, the latter on August 22, 1973, as part of its Phase IV price control program, issued Cost of Living Council Regulations which provided comprehensive price controls for various types of property. By the terms of “Subpart L”, all crude petroleum produced in the United States was subject to price regulation, except for new and released petroleum and petroleum produced from stripper wells, which were left free of price control to encourage additional domestic production. But an exemption was established for certain prices and fees charged by state and local governments and government property. By interpretation of the agency this exemption covered sale of crude oil by those governments in their proprietary capacities.

On October 25, 1973, CLC issued a notice of proposed rule making which among other things stated:

“Notice is hereby given that, pursuant to the authority of Executive Orders 11695 and 11730, Cost of Living Council, as part of its continuing review of the operation of price controls with-respect to the petroleum industry is considering the adoption of certain amendments to exclude sales of ‘covered products’ as defined in Subpart L from the exemption of price adjustments by State and Local governments.”

The notice invited interested persons to participate in the rule-making by submitting written data, views or arguments with respect to the proposed regulation and specified that all comments received by November 24, 1973, “will be considered by the Council before final action is taken on the proposed regulation”. California and Louisiana, among others, timely submitted comments. It is not contended by any party that the notice and proceedings up to this point were deficient either in form or substance or that they would not have permitted the promulgation of a regulation by FEO as successor to CLC validly removing the state and local government exemption had the former not reiterated the exemption in establishing the regulatory framework of its activities under the circumstances hereinafter noted.

The Emergency Petroleum Allocation Act of 1973 was approved on November 27, 1973. Section 4(a) required the President to provide within fifteen days after enactment for the mandatory allocation of crude oil and various petroleum products in amounts and at prices “specified (or determined in a manner prescribed by) ” his regulations.

The FEO was created by Executive Order 11748 on December 4, 1973. Its Administrator was thereby vested with all powers delegated to the President by the Emergency Petroleum Allocation Act, and the Chairman of CLC was authorized to delegate to the Administrator “such authority under the Economic Stabilization Act as may be necessary to carry out the purposes of that Act with respect to energy matters.”

Acting pursuant to Section 4(a) the FEO issued proposed mandatory fuel allocation regulations on December 11, 1973. Part 201 of these regulations adopted by reference the pricing provisions of CLC’s. Phase IV Regulation mentioned above, thus continuing in effect the state and local government exemptions in accordance with the CLC’s interpretation.

On December 26, 1973, the Chairman of CLC issued an order delegating to the Administrator of FEO the powers vested in him pursuant to Executive Orders 11695 and 11730 “to make determinations and take actions required or permitted by the Economic Stabilization Act of 1970, as amended, with respect to petroleum products and crude oil . . . . ” ' and further providing as follows:

“6. All orders, regulations, circulars or other diréctives issued and all other actions taken pursuant to any authority delegated to the Administrator by this order prior to and in effect on the date of this order are hereby confirmed and ratified, and shall remain in full force and effect, as if issued under this order, unless or until altered, amended or revoked by the Administrator or by such competent authority as he may specify.”

One of the “actions taken” pursuant to the delegated authority was the pending rule making proceeding which had been instituted on October 25, 1973.

On December 27, 1973, Mandatory Fuel Allocation Regulations were adopted by the FEO as proposed on December 11, 1973. The pricing provisions set out in Part 201 were thus adopted, continuing in effect the state and local government exemption. These regulations specified January 15, 1974, as the implementation date for all of the provisions.

On January 14, 1974, one day before the implementation date last mentioned, FEO revoked the December 27 regulations and promulgated revised regulations designated as Parts 205, 210, 211 and 212 of Title 10, Chapter II of the Code of Federal Regulations. Part 212 set out in full pricing provisions for crude oil and other petroleum products. Section 212.52(b) expressly stated: “Prices charged for any sale or lease-sale of a covered product [which included crude oil] by state and local governments are exempt.” In explanation, the Deputy Administrator stated:

“A new Part.210 has been created establishing the general rules which apply to both the price control and allocation programs. This part extracts sections previously located in Subpart A of Part 200 and in the Phase IV Price Regulations in 6 CFR Part 150.
“The creation of Part 210 recognizes the compelling necessity of viewing both allocation and price problems within the context of a single regulatory framework.
“Due to the fact that a substantial revision of the regulatory scheme has occurred and the Federal Energy Office realizes that unanticipated problems with the regulations will surely arise, the Federal Energy Office is inviting comment on these regulations. Although no specific future changes are currently anticipated, the Federal Energy Office would appreciate all comments or suggestions which might assist in future improvements to the program. . . .”

Neither the' FEO’s December 11 proposal, its regulations of December 27, nor the January 14 codification contained any reference to the rule making proceeding instituted October 25, 1973, by CLC and delegated in general language as noted above by the latter to FEO on December 26. The appellees, in line with the opinion of the court below, contend that this circumstance, coupled with the FEO comment of January 14 hereinabove quoted, indicated an abandonment or termination of the rule making proceeding in question. The appellants draw the opposite conclusion, contending that the absence of any express disposition, the inherently ongoing nature of that process and the interim necessity of establishing on its own responsibility the mandatory regulatory framework with reference to which the proposed rule making could continue and, indeed, was continued under consideration, negated any implied or constructive termination.

In any event, on February 21, 1974, FEO issued an order, by which it expressly acted upon the CLC’s Notice of Proposed Rule Making dated October 25, 1973, to revoke the exemption for state and local governments effective as of the latter date finding, among other things, that the exemption, if not so removed, “would tend to have a disruptive impact on the national distribution system.”

On March 7, 1974, as a result of representations of the appellees, FEO issued a notice of proposed reconsideration of the February 21 decision. A hearing was scheduled for March 13, 1974, and the public was invited to submit written comments by March 15 in lieu of, or in addition to, oral presentations.

April 2, 1974, upon reconsideration in the light of supplemental information provided by the parties, FEO reconfirmed its decision to withdraw as of October 25, 1973, the exemption of state and local government sales of covered petroleum and petroleum products with two modifications: The federal government exemption also was removed; and “. . . with respect to deliveries of crude oil made on or before February 21, 1974, a state or local government may charge a bonus price per barrel of crude oil provided that such bon,us price was stipulated in existing contracts. ”

This action was commenced by plaintiffs-appellees in the district court on March 13, 1974, seeking declaratory and injunctive relief. On April 25, 1974, plaintiffs’ application for a preliminary and permanent injunction was granted with a “memorandum opinion to follow.” The opinion was filed May 1, and in harmony therewith formal findings of fact, conclusions of law and judgment and order were entered May 28, from which this appeal was timely perfected. This court on May 29, 1974, granted defendants-appellants’ Motion for Stay Pending Appeal to “maintain the status quo” and “in no way reflect[ing] a decision on the merits.” An expedited briefing schedule was ordei'ed. Upon hearing oral argument following careful consideration of the briefs, and deeming ourselves fully advised, we reversed without delay in view of the rapidly increasing magnitude of the excess charges in question. This opinion now more fully documents such determination.

While various issues are argued separately in the briefs we regard as largely determinative the one framed at the outset, which may be restated as whether the rule making proceeding initiated by the CLC was terminated prior to February 21, 1974, in the sense of depriving FEO of power in reliance thereon to withdraw the state and local government exemption without giving the statutory notice anew in strict recompliance with the requirements of the Federal Administrative Procedure Act concerning rule making.

We find it unnecessary to rule separately upon appellants’ further contention that even though the rule making procedure initiated by the CLC were terminated there yet was substantial compliance with the Administrative Procedure Act which should be deemed to sustain the FEO order of February 21, 1974, in that since by the initial CLC notice the parties were afforded full opportunity for comment in compliance with the Administrative Procedure Act they were not prejudiced by being restricted to an additional eight days in connection with its reconsideration by FEO order, and considering that order as representing a new proceeding. While we question that procedure for reconsideration may be substituted for the required initial notice — the Administrative Procedure Act requires both — the former, together with other phases of the entire rule making proceeding may be looked to on the termination issue particularly in relation to the problem of essential fairness. In the absence of any termination of the proceeding, the problem of retroactivity becomes less acute.

No dispute is presented concerning the substantive merits of the action withdrawing the state and local government exemption. The attack against it is directed purely to the procedure utilized. There is little of substance to the claim that intervening transfer of authority from CLC to FEO and the subsequent republication of price control regulations by FEO in a different section of the Code of Federal Regulations terminated the rule making proceeding. In the republication of January 14, 1974, upon which appellees principally rely, there was no discussion of FEO’s consideration of the exemption in question, nor was there incorporated a general statement of the purpose for the exemption on the theory that the republication was intended as a determination of the rule making proceeding. That the FEO before issuing its February 21, 1974, order did not intend to substantively resolve the rule making proceeding initiated by its predecessor is not subject to doubt. It never so stated. It indicated expressly to the contrary by its order, the explanatory comments accompanying it and its notice with re-speet to, and order denying reconsideration.

We think the appellants are right in saying that but for unique circumstances which caused FEO to promulgate a massively complex petroleum allocation scheme and hold the issue of state and local government price exemption in abeyance until the issues could be approached in a conscientious manner, this controversy never would have arisen. We are of the opinion, as heretofore indicated, that FEO did not terminate this otherwise valid proceeding “essential to prevent serious inflationary injury to the economy and structural injury to the petroleum industry”, as FEO found. It was entitled to reasonable leeway in the gale of the congressional deadline while it assumed charge of the regulatory structure before being required to complete the repair initiated by CLC.

No case has been called to our attention, nor can we find any, which applies a doctrine of constructive termination of a rule making proceeding after its express termination by final decision of the responsible agency with the result of reversing the effect of that express determination contrary to the findings and intent of the agency. This is not to say that under some circumstances bad faith, basic unfairness or unconscionable delay could not justify a different result. Such were not present here.

Appellees do contend that they justifiably relied upon FEO’s reiterations of the exemption as an assurance that the rule making proceeding had been terminated favorably to them, that subsequent removal of the exemption deprived them of fair opportunity to make current comment and that they were led into an injurious change of position. The district court glanced in the same direction. However, there was no finding, nor do the facts indicate, that there was a change of position by any party in interest that would not have been taken in a general hope of the continuation of the exemption had the takeover by FEO not been accomplished prior to the completion of the rule making proceeding. Had there been any induced assumption that the exemption would not be removed as a result of the pending rule making proceeding, there still could have been no assurance that by new rule making procedures otherwise initiated, whether retroactive or not, most if not all of the injury the appellees had apprehended would not have occurred anyway. On no theory did appellees have a vested right to a continuation of the preferential treatment. The contention that if a new proceeding had been initiated appellees some way would have been more effective in their arguments against change is unconvincing. The intervening circumstances themselves, including passage of the Emergency Petroleum Allocation Act, would have weakened rather than strengthened their hand. And, in fact, they did have fair opportunity for updated arguments in connection with the proceedings for reconsideration. There is simply no indication that any significant arguments were withheld or disregarded or that the appellees were unfairly treated.

The appellees extract from the January 14, 1974, order the phrase “. although no specific future changes are currently anticipated . . . ” and argue that this warranted the assumption on their part that the change contemplated by the pending rule making proceeding had been abandoned. This disregards the preceding sentence stating that “a substantial revision of the regulatory scheme has occurred and the Federal -Energy Office realizes that unanticipated problems with the regulations will surely arise.” There had been a substantial revision as to allocation provisions but not as to prices. The pending rule making did not present an unanticipated problem .but one inherent in the exemption and specifically pointed up from the time of the October 25, 1973, notice. In contrast, the new allocation provisions could reasonably have been referred to as involving no current anticipation of future changes; but in general comments for “future improvements” were invited. Irrespective of any question this statment may have raised, appellees’ claim of good faith reliance takes on a somewhat hollow, if not artful, sound in view of information elicited during oral argument that at no time prior to actual withdrawal of the exemption did any of them so much as inquire of the agency whether the rule making proceeding looking toward the withdrawal of the exemption had, indeed, been abandoned. And such inquiry manifestly would have precluded the present argument. Moreover, while counsel for the State of California said he advised his client that he was “certain” the proposed withdrawal had been abandoned, it continued to use its form of contract providing a hedge against that prospect.

The district court held that “[t]he action of the Federal Energy Office of February 21, 1974, amending its regulations to eliminate the exemption, even if otherwise valid, cannot'be given retroactive effect . . .’’on the findings that each of the original plaintiffs had entered into contracts for the sale of crude oil involving, in the aggregate, millions of dollars in reliance thereon “either as originally promulgated by the Cost of Living Council, or as continued in effect by the Federal Energy Office”; and each of the plaintiffs had “included in its budget revenue from the sale of crude oil at prices determined in reliance on the exemption, and the Executive Officer of the State Lands Commission specifically relied on the rules adopted by the Federal Energy Office on December 27, 1973, and January 14, 1974, in executing royalty oil sales contracts.”

As already observed, the rule making procedure was an ongoing one until it culminated in the order of February 21, 1974. The court’s additional findings with specific reference to retro-activity add little to the considerations already discussed. Similar reliance could be claimed with about equal force to any initiation or continuation of an exemption. Yet typical retroactivity questioned but accepted in the cases has included the absence of advance notice such as involved here. Assuming that there was a retroactive application, the rule does not necessarily fail the test relied upon by appellees upon the basis of the district court’s findings. A retroactive rule is invalid, generally speaking, only if unreasonable. As said in SEC v. Chenery, 332 U.S. 194, 203, 67 S.Ct. 1575, 1581, 91 L.Ed. 1995 (1947), “[R]e-troactivity must be balanced against the mischief of producing a result which is contrary to the statutory design or to legal and equitable principles. If that mischief is greater than the ill effect of the retroactive application of a new standard, it is not the type of retroactivity which is condemned by law.” On balance, and in the absence of any finding of fact precluding this view, we are of the opinion that the fixing of the effective date of the withdrawal of the exemption as of October 25, 1973, was not unreasonable.

But we are not concerned with retro-activity in the usual sense. Involved were prices which from the very inception of the rule making proceeding could be regarded as conditional. The October 25, 1973, notice clearly stated that the change if made would be effective as of said date. An order based upon a statutory notice of contemplated rule making specifying an effective date in accordance with' the intention revealed in the notice itself and no earlier than the date of the notice involves few, if any, of the problems of retroactive regulation generally. It would seem to be comparable in principle to- a judgment which within the court’s jurisdiction treats a situation or awards a remedy as of the time of the commencement of the action. In any event, the effective date of the rule in question is not only fair and reasonable but well designed to advance legitimate statutory and administrative policies.

A related question not addressed by the trial court merits additional concern : Whether there was technical compliance with Section 553(d) of -the Administrative Procedure Act, which requires publication or service of a substantive rule “not less than 30 days before its effective date, except . (3) as otherwise provided by the agency for good cause found and published with the rule. . . .’’It was, indeed, so “provided by the agency”, but the rule itself contained no express finding of such good cause. Yet from the reasons and purposes there assigned for the withdrawal of the exemption itself, and the very nature of the entire proceeding in context with the Economic Stabilization Act and the Emergency Petroleum Allocation Act, the cogent reasons for the withdrawal of the exemption as of the date of the initial notice were quite obvious. Under such circumstances any flaw was at most purely technical, being neither prejudicial nor invalidating.

We agree that substantial compliance with rule making requirements is essential to the validity of administrative rules therein contemplated. The cases relied upon by appellees to demonstrate the necessity of literal compliance are distinguishable on their facts, involving, for example, no notice at all, basically unfair procedures, lack of opportunity to be heard, absence of publication, and similar serious defects. The Supreme Court has furnished no such indication, but to the extent decisions of other courts may suggest a doctrine of technical absolutism in opposition to the effectiveness of the rule under the circumstances here, we decline to follow them. We conclude that the procedure in question from the standpoint of substantial statutory compliance, fairness, circumspection, prior notice, opportunity to be heard and abundant record justification, against the background of an embryonic agency faced with complicated takeover tasks under a Congressional deadline, was such as to properly render such mere technical objection unavailing.

Finally, the “clearly erroneous rule” relied upon by appellees pervasively to support the district court’s conclusions does not aid their position. While we shall assume that the affidavits in the record support the found facts as to any significant issue, these were tenuous at best. Where they are in conflict with the views herein expressed they are either not findings of fact at all, or mixed findings of fact and conclusions of law made under an erroneous view of controlling law, as to which the effect of the clearly erroneous rule is dissipated Closer to the mark is the great deference with which the acts and interpretations of administrative agencies are to be regarded by the courts when, as here, they are acting within their jurisdiction and in the exercise of delegated duties under the Emergency Petroleum Allocation Act and its predecessor, the Economic Stabilization Act.

The judgment of the district court is reversed and the case remanded with directions to grant the defendants’ motion to dismiss the action on the merits.

      . Because of their reliance upon government. sources of supply, a corollary impact will be concentrated upon certain independent refiners concerning whose situation PEO commented during the rule making proceeding: “. . . When this supply data is combined with the dramatically increased prices for exempt crude oil, the magnitude of the impact that primarily is confined to a small group of independent refiners becomes apparent. . . . [T]he amounts involved are not insignificant and the impact upon purchasing refiners and ultimate consumers is magnified by the price spread of about $5.00 per barrel between ceiling prices for old oil and uncontrolled prices for exempt oil.” (39 F.R. 12253-54.)

      . “The procedure of administrative rule making is one of the greatest inventions of modern government.” Davis, Administrative Daw Treatise § 6.15, p. 283 (1970 Suppl.).

      . The jurisdiction of this court is based upon Section 5(a)(1) of the Emergency Petroleum Allocation Act of 1973, which incorporates by reference Sections 205-211 of the Economic Stabilization Act of 1970, as amended, including judicial review provisions granting original jurisdiction to the district courts and appellate jurisdiction to this court with reference to actions, orders and regulations under the Act.

      . 6 C.P.R. §§ 150.54(a)(2) and 150.54(f)(2).

      . Union has contended that the initial state and local exemption, under principles of ejuadem generis, did not apply to sales by the state in its proprietary capacity of crude oil subject to Subpart L and that a contrary construction would present a serious question as to whether the classification conforms with the statute or the Constitution. However, those questions are not presented by this appeal, and for its purposes may be assumed to be laid to rest by the interpretation implicit in the October 25, 1973, notice of the CLC next mentioned. Amici curiae Edgington Oil Company and Independent Refiners Association of California, Inc., contend that even if the termination of the state and local government exemption were invalid, the grant of the exemption itself was also invalid for failure to follow the rule making procedures of the Emergency Petroleum Allocation Act and the Administrative Procedure Act. We do not consider this contention in view of our ruling that, the termination of the exemption by PEO was valid.

      . 38 F.R. 29618, Oct. 26, 1973.

      . 88 F.R. 33575, Dec. 6,1973.

      . 38 F.R. 34414 et. seq., Dec. 13,1973.

      . 6 O.F.R. 150.

      . Delegation Order 47, 39 F.R. 24, January 2, 1974.

      . 39 F.R. 744, et. seq., Jan. 2,1974.

      . 39 F.R. 1924, Jan. 15,1974.

      . 39 F.R. 7176, February 25, 1974, deleting § 212.52(b) of 10 C.F.R., supra.

      . 39 F.R. 8996, March 7, 1974.

      . 39 F.R. 12255, Axmil 4, 1974.

      . The district court found that the FEO liad terminated its rule making xiroceedings before the action of February 21, 1974, thereby rendering that decision invalid. It was held also that, even if otherwise valid, the withdrawal of the exemxition could not be applied retroactively to transactions which occurred before February 21, 1973. While the court below held no formal trial, its findings were based in part upon uncon-troverted affidavits filed by the xilaintiffs and intervenors in sux>x>ort of the motion for preliminary injunction. The judgment among other things permanently enjoined the defendants from attempting to enforce as against the plaintiffs or plaintiffs in intervention the provisions of Part 212, Chapter II, Title 10 of the Code of Federal Regulations insofar as said attempt was based upon the actions of February 21, 1974, and April 2, 1974, and from taking any action against any lessee of, or any x>erson having contractual relations with, x>laintiff or plaintiff in intervention based upon the purported elimination of the exemi)tion as reflected in the actions of the Federal Energy Office of February 21, 1974, and April 2, 1974.

      . The judgment of the district court is reversed. Our judgment shall be entered forthwith. The mandate also shall be issued and filed forthwith. An opinion will follow.
      This order is made in the interests of ex-l>editing a decision and for good causé based on the following facts:
      This is an important case. The parties have sought expedited oral argument. We have set the case for the earliest possible date.
      The amount in controversy which is the difference between the controlled and uncontrolled prices for state and local government sales of crude oil is increasing at the rate of $1.2 million per day. The legal uncertainty surrounding these payments is injurious to the interests of all parties as well as third party small independent refiners who have accrued potential liabilities to the states. (Order of July 26, 1974, from the bench.)

      . 1. Whether FEO terminated the rule making proceeding proposing to withdraw an exemption for price controls on state and local government sales of petroleum products.
      2. Whether such termination, if found, renders invalid .its decision of February 2], 1974, to remove the exemption.
      3. Whether FEO’s reopening the matter for further hearings and written comments cured the alleged legal defect.

        4: Whether in removing the exemption from price controls for sales by state and local governments on February 21, 1974, effective as of October 25, 1973, FEO acted unlawfully by imposing a “retroactive” requirement.

      . Section 5 of the Emergency Petroleum Allocation Act of 1973 provides in part as follows :
      “ § 5. Administration and Enforcement. — (a) (1) Except as provided in paragraph (2), (A), sections 205 through 211 of the Economic Stabilization Act of- 1970 (as in effect on the date of enactment of this Act) shall apply to the regulation promulgated under section 4(a), to any order under this Act, and to any action taken by the President (or his delegate) under this Act, as if such regulation had been promulgated, such order had been issued, or such action had been taken under the Economic Stabilization Act of 1970. . . .”
      By the terms of the Economic Stabilization Act as amended, Section 553 of the Administrative Procedure Act applies. That section provides in substance that general notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice in accordance with law, the notice to state the time, place and nature of the public rule making proceedings, a reference to the legal authority under which the rule is proposed and either the terms or substance of the proposed rule or a description of the subjects and issues involved. The agency is required to give interested persons an opportunity to participate in the rule making through submission of written data, views or argument with or without opportunity for oral presentation. “After consideration of tlie relevant matter presented, the agency shall incorporate in the rule adopted a concise general statement of .their basis and purpose.” It is further provided that the required publication or service of a substantive rule shall be made not less than 30 days before its effective date except as to substantive rules which grant or recognize an exemption or relieve a restriction, interpretive rules and statements of policy or as otherwise provided by the agency for good cause found and published with the rule. It is further provided that each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.

      . Section 553(c) of the APA provides in part as follows: “After consideration of the relevant matters presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.”

      . PEO therein outlined the history of the exemption, stated that it did not act substantively upon the pricing regulations during the course of the transfer of jiowers, and that the issue surrounding the rule making proceeding was “necessarily deferred until the basic regulatory framework called for by the Act had been formulated and put in effect.”

      . See Mandel v. Simon, 493 F.2d 1239 (T. E.C.A.1974).

      . Supplementing the briefs, appellants cited during oral argument Environmental Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093 (1970), on the question whether under some circumstances administrative inaction may be “the equivalent of an order denying relief”. That case involved the reviewability of administrative inaction which had the effect of denying interim relief to petitioners. The issues and facts there were quite dissimilar; but its mandate of remand to the agency for decision confirms the incongruity of applying the ruling to this case where a decision concededly supported by tlie factual record long since has been made by tlie agency.

      . It referred to the following events which “could have had” a significant effect upon the nature and thrust of comments made as of tlie earlier date: A three hundred percent increase in the price of uncontrolled oil, which “means that State and local governments are now receiving less than one-half of the true market value for their oil”; based upon revenue estimates and the actions of the Federal Energy Office seeming to assure the continuance of the exemption, State and local governments involved commenced plans to devote millions of dollars to increased secondary recovery operations; proposals were made by prominent State officials to utilize increased revenues for rapid transit and other purposes; basic legislation, such as the Emergency Petroleum Allocation Act, was enacted.

      . See Buckeye Cablevision, Inc. v. FCG, 128 U.S.App.D.C. 262, 387 F.2d 220, 226 (1967).

      . See Retail, Wholesale and Department Store Union, 151 U.S.App.D.C. 209, 466 F.2d 380 (1974).

      . See Woods v. Stone, 333 U.S. 472, 477, 68 S.Ct. 624, 92 L.Ed. 815; University of Southern California v. Cost of Living Council, 472 F.2d 1065 (T.E.C.A.1972), cert. denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d 590; Fancher v. Clark, 127 F.Supp. 452 (D.C.Colo.1954).

      . Cf. Moving Corporation v. FTC, 290 F.2d 803 (2d Cir. 1961).

      . National Labor Relations Board v. Wy-man-Gordon Co., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969) ; Lewis-Mota v. Secretary of Labor, 469 F.2d 478 (2d Cir. 1972) ; Texaco Inc. v. Federal Power Commission, 412 F.2d 740 (3 Cir. 1969) ; Gonzalez v. Freeman, 118 U.S.App.D.C. 180, 334 F.2d 570 (D.C.Cir. 1964) ; Ann Arbor Railroad Co. v. United States, 358 F.Supp. 933 (E.D.Pa.1973) ; Kelly v. United States Department of Interior, 339 F.Supp. 1095 (E.D.Cal.1972) ; Gerends v. Butz, 357 F.Supp. 143 (1973).

      . The FEO in its February 21, 1974, order found inter alia that “the price exemption has no significant impact on the supply of crude oil”, that it “would tend to have a disruptive impact on the national distribution system”, that it was necessary to eliminate the “incentive for state and local governments to seek to enter into agreements or arrangements regarding the sale of covered products which could tend to result in further dislocations in the national distribution system . . . [and! undermine existing supplier relationships and magnify the inflationary effects of the exemption”.

      . Cf. Mandel v. Simon, 493 F.2d 1239, 1240 (T.E.C.A.1973), supra; University of Southern California v. Cost of Living Council, 472 F.2d 1065, 1069 (T.E.C.A.1972).

      . Rule 53, Fed.R.Civ.P.

      . 5A Moore, § 52.03 [2] pp. 2663-64. See e. g. U. S. v. Mississippi Valley Co., 364 U.S. 520, 526, 81 S.Ct. 294, 5 L.Ed.2d 268 (1961) ; United States v. United States Gypsum, 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 1147 (1948) ; U. S. v. Richberg, 398 F.2d 523, 526 (5th Cir. 1968) ; University Hills Inc. v. Patton, 427 F.2d 1094, 1099 (6th Cir. 1970) Rowe v. General Motors Corporation, 457 F.2d 348, 351 (5th Cir. 1972).

      . Baldwin County Elec. Mem. Corp. v. Price Commission, 481 F.2d 920 (T.E.C.A.1973) ; University of Southern California v. Cost of Living Council, 472 F.2d 1065 (T.E.C.A.1972), supra; United States v. Lieb, 462 F.2d 1161 (T.E.C.A.1972).


source: Caselaw Access Project

author: TALBOT SMITH, Senior District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Carlos LEYBA, Defendant-Appellant.
    No. 74-1037.
    United States Court of Appeals, Tenth Circuit.
    Argued Aug 20, 1974.
    Decided Oct. 24, 1974.
    Certiorari Denied Feb. 18, 1975.
    See 95 S.Ct. 1139.
    Winston Roberts-Hohl, Federal Public Defender, Albuquerque, N. M., for defendant-appellant.
    Richard J. Smith, Asst. U. S. Atty., Albuquerque, N. M. (Victor R. Ortega, U. S. Atty., Albuquerque, N. M., on the brief), for plaintiff-appellee.
    Before HILL and DOYLE, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, United States Senior District Judge, Eastern District of Michigan, sitting by designation.

   TALBOT SMITH, Senior District Judge.

The appellant herein was convicted by a jury of violations of 18 U.S.C. § 2113 (a), (b) and (d), hereinafter summarized, arising out of the robbery at gunpoint of the First National Bank of Santa Fe, New Mexico. His principal defense was alibi, rejected by the jury. He argues on appeal that “it was an abuse of discretion for the Court to deny [his] motion for a new trial,” and objects, as well, to the court’s admission of certain evidence going to his physical characteristics and to his photographic identification.

Viewed most favorably to the Government, the evidence established that before noon on October 15, 1973, two individuals, one of whom bore “a very strong resemblance” to the defendant, were observed by one Miguel Romero donning disguises in a car parked outside the bank. The two entered, announced that this was a holdup, or robbery, and Mr. Sexton, the bank’s manager, was ordered by defendant to lie on the floor. Sexton’s identification of the defendant was positive. He was personally acquainted with him by reason of previous contacts in connection with loans. With Sexton at the time was a customer, Mr. Lucero, who, after hearing in court defendant speak words used in the holdup, testified, “ * * * it’s the same voice. And by his looks I can show you he’s the one that had the gun and everything. I could recognize him just by looking at him now.” The robbers fled in their car, which belonged to defendant’s sister. A short time later, after a chase, the car was stopped “in Mrs. Padilla’s garden.” The passenger was arrested by Officer Sisneros, but the driver, identified by Sisneros as the defendant, escaped on foot. We need not detail further evidence adduced at the trial, including defendant’s fingerprints, his hair traces, and his clothing. The evidence was overwhelming and the jury’s verdict, as we have noted, was guilty.

The defense .tendered was that of two alibis. One alibi, the Romero-Carter version, was that somewhere around noon on October fifteenth they had driven defendant from the College of Santa Fe to the neighborhood where defendant’s sister lived. The other alibi, that of Mrs. Hakkila, was that she saw defendant, with his sister, on the campus of the College of Santa Fe around noon, closer to one o’clock, on the 15th. These alibis, because of the areas involved, were argued by the Government .to be essentially inconsistent. The jury rejected both.

Defendant moved for a new trial, submitting therewith certain affidavits which purported to bolster the Romero-Carter, rather than the Hakkila alibi. Defendant, recognizing “the rule that a new trial will be granted only with caution and only for abuse of discretion will denial of such a motion be reversed[,] United States v. Gleeson, 411 F.2d 1091 (10th Cir. 1969),” urges such abuse of discretion. The ground therefor is that since at trial “he could not successfully rebut the damaging effects of the government’s cross-examination of his chief alibi witnesses,” he should have another trial, where, if his affidavits are to be believed, he might be more successful. The ground, we note, is not that of newly discovered evidence but of “new witnesses.” They would present, he explains, “evidence inadvertently overlooked by the defendant who, throughout the trial, relied upon his abiding conviction of innocence.” Thus he did not, he states in his brief, “communicate the existence of other witnesses,” those whose affidavits he now tenders to rebut the government’s case.

But .the rebuttal of the government’s case must be by trial, not by affidavit. As we held in Wheeler v. United States, 382 F.2d 998, 1002 (10th Cir. 1967):

It is too well settled for discussion that a new trial is not warranted by evidence which, with reasonable diligence, could have been discovered and produced at the trial.

In defendant’s affidavit, attached to his motion, he suggests an additional reason for not producing at trial the witnesses he now produces by affidavit, namely, that he was “too tired” during the trial “for [his] mental facilities to function properly” and that it was not until he was returned to his cell and rested that his memory came back to him. Should, at any time during a trial a defendant become physically incapacitated he may, by appropriate motion, request appropriate relief. We find no such motion on the record before us, nor is the refusal of such suggested as an issue on appeal.

Entirely apart from the issue of diligence, however, it is pertinent to note that, even if receivable on properly established grounds, the evidence submitted therein must, for the grant of a new trial,

“be more than impeaching or cumulative, must be material to the issues involved, and must be such as would probably produce an acquittal.” United States v. Gleeson, 411 F.2d at 1094 (10th Cir. 1969).

United States v. Perea, 458 F.2d 535, 536 (10th Cir. 1972).

The affidavits before us fall far short of the standards here enunciated and we find no abuse of discretion in the trial court’s denial of the motion made.

Defendant also urges error in the admission of the testimony of an F.B.I. agent. The procedure of the bureau, it was testified, is to obtain a physical description of a suspect whether any admissions or statements are made or not. Agents Rommel and Jochem went to defendant’s cell the day after his arrest to interview him. At this time, .the government concedes, “apparently * * * he [Leyba] had been visited by an assistant state public defender who had advised Leyba to make no statements to the authorities.” Defendant responded to two questions asking his height and weight but said further that he did not want to talk with them. This testimony as to height and weight was elicited on Agent Jochem’s direct examination, and its use is argued to be a violation of our holding in United States v. Thomas, 474 F.2d 110 (10th Cir. 1973), cert. denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160 (1973). In Thomas we condemned the practice of agents conferring with a prisoner, even with his consent, and taking a statement from him after counsel had been assigned and in his absence. It was pointed out therein that the practice did not necessarily involve a constitutional issue but rather a violation of the canons of ethics, which we refused to remedy by a reversal of Thomas’ conviction.

The difficulty with applying the Thomas doctrine to the facts before us is that no “statement” of any kind within the meaning of the issues presented was taken from the defendant. He merely acknowledged the existence of physical characteristics clearly observable even to a casual onlooker. His response to the questions, height and weight, was not communicative in nature. Such disclosure, like the disclosure “of name and address is an essentially neutral act.”

Defendant'argues that .the gallery of “mug shots” which had been displayed to witnesses Romero and Sisneros was designed “to put the pointing finger on Carlos Leyba.” We have carefully reviewed the record and are satisfied from the totality of the circumstances there disclosed, that the photographs were not “so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process.” Belton v. United States, 429 F.2d 933 (10th Cir. 1970); see United States v. Coppola, 486 F.2d 882, 887 (10th Cir. 1973), cert. denied, 415 U.S. 948, 94 S.Ct. 1469, 39 L.Ed.2d 563 (1974); United States v. Woodring, 446 F.2d 733, 735 (10th Cir. 1971).

The defendant was charged in two counts under .three subsections of the Bank Robbery Act, 18 U.S.C. § 2113. Count One charged violations of 18 U.S. C. § 2113(a), taking $13,853 from a bank by force and violence and by intimidation, and 2113(d), placing life in jeopardy by the use of a dangerous weapon in so taking. Count Two charged a violation of 2113(b), taking $13,853 from a bank with intent to steal. Defendant was sentenced to fifteen years imprisonment on Count One and to ten years concurrently on Count Two.

It is argued to us that these separate penalties under the various subsections of the Bank Robbery Act are improper, whether imposed consecutively, Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), or concurrently, United States v. Von Roeder, 435 F.2d 1004, 1010 (10th Cir. 1971). On the Government’s concession, we remand to the trial court for the purpose of correcting the sentence by vacating the sentence on Count Two.

The judgment is affirmed but the cause is remanded for the purpose of correction of sentence.

      . California v. Byers, 402 U.S. 424, 432, 91 S.Ct. 1535, 1540, 29 L.Ed.2d 9 (1971).


author: McCREE, Circuit Judge.

text:
    Helen S. CARDWELL, Administratrix of the Estate of Winfred M. Cardwell, Deceased, Plaintiff-Appellee, v. The CHESAPEAKE & OHIO RAILWAY CO., Defendant-Appellant.
    No. 73-1904.
    United States Court of Appeals, Sixth Circuit.
    Decided Oct. 17, 1974.

      James L. O’Connell, Cincinnati, Ohio, for defendant-appellant.
    Philip J. Schneider, Waite, Schindel, Bayless & Schneider, Cincinnati,' Ohio, Wm. H. DeParcq, O. C. Adamson, II, DeParcq, Anderson, Perl & Hunegs, Minneapolis, Minn., for plaintiff-appel-lee.
    Before EDWARDS, McCREE and MILLER, Circuit Judges.
   McCREE, Circuit Judge.

This is an appeal from an order overruling a reserved motion for a directed verdict in a Federal Employers’ Liability Act (FELA) action, 45 U.S.C. § 51 et seq., to recover damages for injury and for wrongful death. The jury awarded $10,500, adjusted for contributory negligence, on the claim for injury, but was unable to decide whether death was caused by the injury. This appeal requires us to decide whether there was sufficient competent evidence of the causal relationship between the injury and death for the submission of this claim to the jury. We determine that there was.

On August 14, 1969, Winfred M. Cardwell filed a complaint under the FELA alleging that he sustained a back injury while he was employed at defendant’s Huntington, West Virginia Diesel Shops on June 27, 1969 when he attempted to close a locomotive cab door that had been left hanging on only its right upper hinge. After the answer was filed and some depositions were taken, a suggestion of plaintiff’s death was filed and Cardwell’s widow, who had been appointed administratrix of his estate, filed an amended complaint August 6, 1971 in which she alleged that Card-well’s death on January 25, 1971 was the result of the accident pleaded in the original complaint.

In a trial that extended over parts of four days, after decision on a motion for a directed verdict was reserved and defendant submitted its proofs, the case was submitted to the jury upon instructions requiring separate verdicts on the claim for injury and lost wages during Cardwell’s lifetime and a verdict on the death claim. The jury found that the accident oh June 22, 1969 resulted in part from the negligence of both Cardwell and the railroad and assessed damages at $10,500. It advised the court that it could not agree whether Cardwell’s death resulted from defendant’s negligence.

Appellant filed a motion for judgment notwithstanding the absence of a verdict on the wrongful death claim and a motion for judgment n. o..v. or for a new trial on the claim for injury. On May 25, 1973, the district court entered judgment on the verdict of $10,500 and overruled both motions, but certified, at defendant’s request that “Whether or not there was sufficient medical evidence of the causal relationship between the accident claimed to have been sustained by the plaintiff’s decedent and the death of the said decedent to warrant submission of such issue to the jury” involved “a controlling question of law as to which there is substantial ground for difference of opinion” and that an immediate appeal from the order overruling the motion for judgment notwithstanding the absence of a verdict “may materially advance the ultimate termination of this litigation.”

Our Court, one judge dissenting, permitted the appeal to be taken in an order entered July 6, 1973.

28 U.S.C. § 1292(b) provides:
(b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: ....

This provision applies to interlocutory orders that are not otherwise appealable of right and requires the existence of four elements: (1) The question involved must be one of “law”; (2) it must be “controlling”; (3) there must be substantial ground for “difference of opinion” about it; and (4) an immediate appeal must “materially advance the ultimate termination of the litigation.”

In considering an application from a defendant in a diversity automobile action, we were asked to review under 28 U.S.C. § 1292(b) the grant.of summary judgment determining that a Michigan statute requiring notice within sixty days of injuries caused by defective roads does not apply to actions for wrongful death. We quoted with approval this statement from Milbert v. Bison Laboratories, 260 F.2d 431, 433 (3rd Cir. 1958.)

“It is quite apparent from the legislative history of the Act of September 2, 1958 that Congress intended that section 1292(b) should be sparingly applied. It is to be used only in exceptional cases where an intermediate appeal may avoid protracted and expensive litigation and is not intended to open the floodgates to a vast number of appeals from interlocutory orders in ordinary litigation.” (Maris, J.)

We observed further in denying the request to permit the appeal:

This statute was not intended to authorize interlocutory appeals in ordinary suits for personal injuries or wrongful death that can be tried and disposed of on their merits in a few days. Haraburda v. United States Steel Corp., 187 F.Supp. 86, 94 (W.D.Mich), (emphasis supplied).
The granting of an interlocutory appeal in the present case would' not “materially advance the ultimate termination of the litigation.” Many months would be required before the case would be reached for argument on the congested docket of this court. If we grant the appeal and then should affirm the order of the district court based upon the opinion published in 236 F.Supp. 677, the case then would be remanded to the district court for trial on its merits.
On the other hand, it would appear that only a few days would be required for a jury trial and final disposition of the case in the district court. This procedure, which would avoid a piecemeal appeal, is preferable except in the extraordinary type of case contemplated by § 1292(b). (Phillips, J.) Krause v. Board of County Road Commissioners, 364 F.2d 919, 922 (6th Cir. 1966).

Appellant’s brief contains the following statement of the question certified as a controlling question of law:

In a wrongful death action under the Federal Employers’ Liability Act, in which the plaintiff’s decedent died as a result of a myocardial infarction occurring approximately nineteen months after a twisting back injury, whether it is error to refuse to direct a verdict in favor of the defendant on the wrongful death claim where the only testimony concerning the re-appearance after such accident of conditions of anxiety, depression and alcoholism in the plaintiff’s decedent (from which conditions he had suffered periodically for many years prior thereto) came from the decedent’s widow, a lay person, in the form of conclusions; where the only medical witness sustaining the causal relationship between the accident and the myocardial infarction assumed the presence of such conditions of anxiety, depression and alcoholism between the accident and the myocardial infarction and used such conditions as an indispensable step in his testimony on causation; and where the testimony of such sole medical witness included his admissions that opposite circumstances and conditions could have caused a myocardial infarction and that he could not rule out anything that had ever happened to the decedent as a cause of his myocardial infarction.

This appears to be precisely the kind of ordinary suit for personal injuries or wrongful death that can be tried and disposed of on its merits within a few days and that we said in Krause, supra, should not be considered on interlocutory appeal. In fact the question in Krause, whether a statutory requirement to give notice of a highway defect applies in wrongful death actions, is more properly a controlling question of law than is the issue stated in appellant’s brief in this appeal. In Krause, the application, vel non, of the statute had to be decided for resolution of the litigation. In this appeal, it is possible that on retrial the state of the evidence at the close of plaintiff’s case may not present the same question of sufficiency for submission to the jury. In that event, we will have rendered only an advisory opinion.

Nevertheless, we have permitted the appeal, and to expedite the ultimate conclusion of this litigation, we consider the issue presented.

Specifically, appellant contends that Cardwell’s wife, a lay person, was incompetent to testify that from the date of the accident until her husband’s death, he suffered from “emotional stresses of anxiety, depression, [and] resentment.” It was on the basis of .this testimony that appellee’s medical expert witness (contrary to the testimony of appellant’s expert witnesses) opined that these factors “played a dominant role in the aggravation of pre-existing coronary arteriosclerosis and. played a dominant role in the precipitation of myocardial infarction and the ventricular fibrillation and the cause of his death.”

Appellant contends that Ohio law should have governed the question of the, admissibility of medical opinion evidence even though the action was brought under the Federal Employers’ Liability Act. It relies for support of this contention on Fed.R.Civ.P. 43(a) that provides :

All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of «uits in equity, or under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held. In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made. The competency of a witness to testify shall be determined in like manner.

It asserts that there is no federal precedent permitting the hypothetical question put to appellant’s expert medical witness, and concludes that the law of Ohio, which it claims would exclude the inquiry, should therefore govern. It cites in support of this contention Padgett v. Southern R. Co., 396 F.2d 303 (6th Cir. 1968), as authority for the proposition that state law controls what medical testimony is admissible. We do not understand Padgett to stand for this proposition. Padgett holds only that “One of the bases of admissibility of evidence in the federal courts is that the evidence is admissible ‘under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held.’ ” (emphasis supplied). 396 F.2d 303, 307. This is a correct statement of the law and it was applied in that case in furtherance of the policy of Rule 43(a) favoring the reception of evidence.

We find appellant’s other asserted authority for choice of the rule for admissibility of evidence equally unpersuasive. That case, Teti v. Firestone Tire and Rubber Company, 392 F.2d 294 (6th Cir. 1968) was a diversity case in which it was recognized, appropriately in rejecting cited authority, that an FELA case is governed exclusively by federal law, and that state rules of evidence are inapplicable.

Federal precedent for the admission of the evidence received in this case is not lacking. In Equitable Life Assur. Soc. v. Bomar, 106 F.2d 640, 643 (6th C.C.A., 1939) witnesses who associated with and personally observed the appearance, manner, habits and conduct of a decedent were permitted to testify over objection that: “ . . . his physical condition was very poor . . . ; his mind wasn’t active . . .; he couldn’t go into any lengthy matters that required any time, or anything like that tf

We hold that whether a witness with adequate opportunity of observation of a person may express an opinion about his physical or mental condition is committed to the discretion of the trial court and that its discretion will not be disturbed unless abused. See Spitzer v. Stichman, 278 F.2d 402 (2d Cir. 1960).

Accordingly, although we regard the proofs on the causal relationship between Cardwell’s death and the accident as very close to the minimum quantum, we determine that no error was committed in submitting the question to the jury.

We decline to consider the other issues briefed by appellant because they were not certified to us as controlling questions of law and there is no substantial assurance that they will recur in the event of a retrial of the death claim.

Affirmed.


author: BARNES, Senior Circuit Judge:

text:
    MULTIPLE USE, INC., Appellant, v. Rogers C. B. MORTON, Secretary of the Interior, Appellee.
    No. 73-1218.
    United States Court of Appeals, Ninth Circuit.
    Oct. 2, 1974.

      Hale C. Tognoni (argued), Phoenix, Ariz., for appellant.
    Jacques B. Gelin (argued), U. S. Dept, of Justice, Washington, D. C., for appel-lee.
   OPINION

Before BARNES and KOELSCH, Circuit Judges, and FIRTH, District Judge.

BARNES, Senior Circuit Judge:

This is an appeal from a judgment rendered by the District Court on cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

The subject of this litigation is a mineral patent application (No. Ar. 034305) concerning the so-called Robe-Roy, Martin-Missing Link placer mining claims (originally filed in 1896 (on 20 acres), in 1915 (on 20 acres), and in 1933 (on 40 acres), respectively).

One of the earlier claimants, by obtaining quit-claim deeds from some locators and instituting quiet title actions against others, claimed by an amended location notice filed on July 15, 1962, with the deletion of overlapping locations, an area of between 103.18 (or 130.18) and 160 acres.

While ' in earlier days (prior to 1896) much placer gold had been removed from the Lynx Creek area near the claims here described, there was no placer gold located, save in miniscule amounts, from 1896 to March, 1960.

On March 25, 1960, the Secretary of the Interior (in Contest Ar. 10388), charged that a valid discovery of minerals sufficient to support a mining location did not exist within appellant’s claim. In processing such action, on January 9, 1962, the claims were examined by mining engineers for the Government, and a report made to all parties to the contest on February 9, 1962, suggesting1 2that “further prospecting on the claims is justified” (Record, 24). Based upon this engineer’s report, the Government moved to dismiss without prejudice its complaint to permit further search for the discovery of mineralization on the claim. This dismissal was granted February 15,1962.

The government subsequently filed a complaint dated February 1, 1966 (and brought on for hearing on December 12, and 13, 1966), Contest No. Ar. 034305, entitled “United States of America v. Silverton Mining & Milling Company, Inc.” — the then alleged owner of the claim — IBLA 70-22 (1970), charging first, that “a valid discovery of minerals as required by the laws of the United States does not exist within the placer mining claims”; and second, “that the lands embraced within the limits of the Robe-Roy, Martin-Missing Link mining claims is (sic) non-mineral in character within the meaning of the mining laws.”

The Hearing Examiner’s decision appears in Record, 88 to 99, inclusive. The mining claim was declared null and void, based on the Examiner’s Final Conclusion.

This final conclusion was based on the following reasoning:

(1) The minerals in the claim are gold, sand, stone and gravel. The gold is recovered by dredging. The stones are picked up by hand and loaded on a truck. Sand and gravel are recovered through use of a mechanical loader. Contestee (here appellant) contends that in a combined operation, all deposits constitute a valuable economic unit. But, because each of these materials is recovered by a different method — that is, no one of them is a by-product of the other — it was concluded the materials must be considered separately.

(2) Common varieties of sand, stone and gravel must have been discovered pi’ior to the Act of July 23, 1955, 30 U. S.C. § 611 to be subject to location. Barrows v. Hickel, 447 F.2d 80 (9th Cir. 1971).

There was no evidence that the sand and gravel were used in quantity prior to July 23, 1955, hence they are not locatable deposits. The stone “and similar deposits are along the creek bed for miles and appear as common as drops of water in San Francisco Bay.” (Record, 92).

The Examiner first noted that the appellant contestee, in 1960 during the resistance to the government’s claim of non-discovery, raised but one issue: whether there had been discovery of a valuable mineral deposit, to wit: gold.

The Examiner then held the government, through its expert testimony, had established a prima facie case. He then heard witnesses O’Dell, Tognoni and others, and saw the written reports of experts Haley, Bradley and McCarthy, and considered affidavits from various witnesses.

Mr. Tognoni’s conclusion was that the claim had a combination of deposits “which make an economic unit.” (Record, 95-96).

The Hearing Examiner, using the “prudent man test,” and “its complement and refinement” the “marketability test” as is required of him (and of us), compared the conflicting testimony of the government’s witnesses and those of the contestee-appellant, held that the contestee’s evidence “falls far short of establishing that there is a sufficient gold deposit to induce a prudent man to expend further time and effort on the development of the deposit with a reasonable prospect of success” (Record, 98), and that the gold values remaining in the placer material within the claim no longer constituted a valuable mineral deposit.

The Hearing Examiner’s decision was appealable, and an appeal was taken to the Bureau of Land Management where it was affirmed, and then taken to the three member Board of Land Appeal, United States Department of the Interi- or, where it was again affirmed unanimously.

Next came the action presently before us, on appeal from the District Court of Arizona. From cross-motions for a summary judgment entered in favor of the government, appellant brings this appeal, asserting there are five issues, which he lists as follows:

Issue I

Whether there is “substantial evidence”' in the administrative record to support the Secretary’s finding of no valuable mineral deposit on the “Robe Roy” claim.

Issue II

Whether the Secretary’s economic consideration, that is, the “marketability test,” of the claim in question has been applied as a complement to the “prudent man test” or as a crucial independent test of mineral discovery.

Issue III

Whether there exists in the administrative record substantial evidence that Appellant has made a valid discovery of mineral on the “Robe Roy” claim under the letter and intent of the mining laws.

Issue IV

Whether Multiple Use, Inc. is entitled to the total 103.18 acres applied for in patent application.

Issue V

Whether the patent applicant has established right to patent under 30 U.S.C., Section 38.

We answer the first issue “yes”; the second, that the “marketability test” is- complementary to the “prudent man test” and was properly applied; to the third issue, “no”; that the fourth issue is immaterial and moot; and to the fifth issue, “no”.

We look first to the question of jurisdiction. The defendant Secretary’s jurisdiction existed in the district court under 28 U.S.C. § 1361 (interpreting the complaint as one seeking mandamus) and under the Administrative Procedure Act. Appellant-plaintiff asserts the district court had jurisdiction under the Administrative Procedure Act. The court below carefully reviewed the authorities (C.T. p. 122 to p. 125, inclusive), and then made his findings and conclusions in an able opinion. (Se,e Multiple Use, Inc. v. Morton, 353 F.Supp. 184, 187-188) (1972).

We have jurisdiction on appeal under 5 U.S.C. § 704, formerly 5 U.S.C. § 1009(c).

The scope of the review permitted both to the district court and to our Court, is extremely limited. The district court and this Court are entitled only to determine if the Secretary’s decision is arbitrary or capricious or unsupportable by substantial evidence, considering the record as a whole. Sanford v. United States, 399 F.2d 693, 694 (9th Cir. 1968).

In considering the questions of whether the Secretary’s decision is supported by the evidence as a whole, we must keep in mind this is not a trial de novo, but a consideration of what evidence was before the district judge, and what evidence he relied upon in making his decision. The courts may not substitute their judgment for that of the administrative agency’s expertise in the field. Port of New York Authority v. Federal Maritime Commission, 429 F.2d 663, 666 (5th Cir. 1970), cert. denied 401 U.S. 909, 91 S.Ct. 867, 27 L.Ed.2d 806 (1971).

Thus, a bald conclusion by the trial judge (that sufficient evidence does or does not exist to support the Secretary’s decision that there had or had not been a sufficient discovery) is of no aid to this Court in making its own decision that such sufficient evidence exists, and that the district judge relied upon it. Cf. Nickol v. United States, et al., No. 74-1011, Tenth Circuit, decided June 18, 1974, 501 F.2d 1389.

There is no such lack in the record before us in this case. Here we have a careful history of • the claims and what was done on them, a well reasoned opinion, and specific findings of fact and conclusions of law, all of which, with its footnotes, covers some 18 pages in the record.

The court was required in coming to its conclusions, to rely only on the administrative record before it. In discussing these matters, the district court properly held, with citation of appropriate cases, that the expertise of the Department of the Interior must be looked upon with respect and considered with care.

After reciting the rules applicable, the district court held: “In view of our decision with respect to the issue of discovery, as discussed below, we find it unnecessary to reach the contingent issue as to the number of acres to which plaintiff may be entitled,” by its claims. (353 F.Supp. 189). We agree.

In our opinion, after a careful study of all the evidence and the cases cited, including those principally relied upon by appellant, the trial court’s findings and conclusions as recited in its “Opinion and Order” are correct; are supported by substantial evidence; and, in truth, could not be improved upon by this Court. Multiple Use, Inc. v. Morton, 353 F.Supp. 184, 189 to 195, inclusive. (D.Ariz.1972).

We therefore adopt such portion of said opinion, by reference, as our own. The district court’s decision affirming the decision of the Secretary of the Interior is

Affirmed.

       Honorable Robert Firth, United States District Judge, Central District of California, sitting by designation.

      . “Record” refers to “Official Report of Proceedings Before the United States Department of Interior, Bureau of Land Management.”

      . Other issues were raised by the government as to the size of the claim. The outcome of the contest as to the validity of the claims rendered the issues as to size moot.

      . “Prom all the evidence at the hearing, I conclude that the gold values remaining in the placer material no longer constitute a valuable mineral deposit, and that the stone on the claim was not valuable at the time ■ the stone was excluded from location under the mining laws.” (C.T. at 98).

      . Chrisman v. Miller, 197 U.S. 313, 25 S.Ct. 468, 49 L.Ed. 770 (1905) ; Best v. Humboldt Placer Mining Co., 371 U.S. 334, 83 S.Ct. 379, 9 L.Ed.2d 350 (1963) ; United States v. Coleman, 390 U.S. 599, 602, 88 S.Ct. 1327, 20 L.Ed.2d 170 (1968).

      . Barrows v. Hickel, 447 F.2d 80, 82 (9th Cir. 1971).

      . Foster v. Seaton, 106 U.S.App.D.C. 253, 271 F.2d 836, 838 (1959) ; United States v. Coleman, supra, 390 U.S. at 600, 88 S.Ct. 1327.

      . United States v. Coleman, supra, 390 U.S. at 602, 88 S.Ct. 1327; Converse v. Udall, 399 F.2d 616 (9th Cir. 1968).

      . No cases are cited by appellant in support of this issue. His conclusion assumes that appellant has “held and worked” his claim for a sufficient period of time. The statute’s words, “ ‘have held and worked their claims,’ presupposes a discovery.” The necessity of a discovery to sustain a mining location is not dispensed with, nor may its absence be cured by virtue of the provisions of this section. Cole v. Ralph, 252 U. S. 286 at 307, 40 S.Ct. 321, 330, 64 L.Ed. 567 (1920).


author: CASTLE, Senior Circuit Judge.

text:
    CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, a corporation, Plaintiff-Appellant, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, a corporation, Defendant-Appellee. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, a corporation, Plaintiff-Appellant, v. BURLINGTON NORTHERN INC., a corporation, Defendant-Appellee.
    Nos. 74-1160, 74-1209.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 20, 1974.
    Decided Oct. 23, 1974.
    Christopher A. Mills, Chicago, 111., for plaintiff-appellant.
    O. L. Houts, Richard J. Schreiber, Chicago, 111., for defendants-appellees.
    Before CASTLE, Senior Circuit Judge, and FAIRCHILD and SPRECHER, Circuit Judges.
   CASTLE, Senior Circuit Judge.

Plaintiff Chicago and North Western Transportation Company (“North Western”) appeals the dismissal of its complaints seeking enforcement of its protective services contract with the defendants Chicago, Rock Island and Pacific Railroad Company (“Rock Island”), and Burlington Northern Inc. (“Burlington”). North Western argues on appeal that the district court erroneously concluded that the contract was unenforceable because it had not been submitted to the Interstate Commerce Commission as required by Section 1(14) (b) of the Interstate Commerce Act, 49 U.S.C. § 1 (14) (b) (1970). We reverse.

North Western, Rock Island, and-Burlington are common carriers by rail. North Western owns and operates a railroad terminal facility known as the Wood Street Terminal, which is used chiefly as a receiving and distribution center for carload shipments of perishable produce. Pursuant to Sections 1(3) (a) and 1(4) of the Act and applicable tariffs, North Western is obligated to provide protective service against heat and cold to refrigerator car shipments of perishables while they are under its control. Protection is accomplished by refilling the ice bunkers of the refrigerator cars while at the Wood Street Terminal with ice supplied to North Western under a contract with City Products Corporation, an independent contractor. City Products loads the ice into the bunkers at the direction of North Western.

North Western, Rock Island, and Burlington are parties to an agreement known as National Perishable Freight Committee Division Sheet 7 (“Division Sheet 7”), under which North Western is entitled to recover its actual cost of performing the protective services. Both Rock Island and Burlington, however, have not fully reimbursed North Western for the actual cost of the protective services rendered, and North Western filed the instant complaints to recover the amounts owed. Division Sheet 7 apparently has never been submitted to the ICC for approval, and the district court found that this fact precluded liability based on that agreement.

Section 1(14)(b) provides in part:
It shall be unlawful for any common carrier by railroad ... to make or enter into any contract, agreement, or arrangement with any person for the furnishing to or on behalf of such carrier ... of protective service against heat or cold . . . unless and until such contract, agreement, or arrangement has been submitted to and approved by the Commission as just, reasonable, and consistent with the public interest. .

In Chicago & N.W. Transp. Co. v. Atchison T. & S. F. Ry., 367 F.Supp. 801, 807-808 (N.D.Ill.1973), Judge Bauer concluded that Division Sheet 7 need not be submitted to the ICC for approval because Section 1(14) (b) does not apply to protective service contracts between common carriers themselves. We agree. In Section 1(3) (a) of the Act, Congress has defined “person” to include “an individual, firm, copartnership, corporation, company, association, or joint-stock association. . . . ” In that same section, however, Congress has separately defined “common carrier” as inter alia, “all persons, natural or artificial, engaged in . . . transportation . . . . ” Thus, the definition of “person” is not sufficient to encompass “common carrier.” Since Section 1(14) (b), which carefully differentiates between the two terms, applies only to agreements between a “common carrier” and any “person,” Commission approval of protective service agreements between common carriers is not required.

The purpose behind the enactment of Section 1(14) (b) confirms our conclusion. Although the Act provides that it is the duty of every common carrier to provide protective services, these services were often supplied to or on behalf of the railroads by railroad-owned subsidiaries (car-line companies) which were not carriers and therefore not subject to Commission regulation. See Ellis v. ICC, 237 U.S. 434, 35 S.Ct. 645, 59 L.Ed. 1036 (1915). This prevented the Commission from determining the actual cost of providing protective services so that it would have a proper basis for prescribing cost-related tariff charges to be paid for by shippers. See, e. g., Refrigeration Charges on Fruits, Vegetables, Berries, and Melons From the South, 151 I.C.C. 649, 693 (1929). To remedy this situation, Section 1(14) (b) was included as part of the Transportation Act of 1940 to enable the Commission to exercise supervision over the cost of furnishing protective services by those who were not common carriers. Accordingly, . Congress employed the term “person” in Section 1(14) (b) to achieve that end. See H.R.Rep.No.2832, 76th Cong., 3rd Sess. 65 (1940-41).

The court below relied on the Commission’s report in Ex Parte No. 137, Contracts for Protective Services, 318 I.C.C. Ill, 125 (1962), directing carriers to submit for its approval “contracts covering protective services which shall replace all prior contracts, including division sheet 7,” to support its ruling that Section 1(14) (b) requires Commission approval of agreements between common carriers. See also 49 C.F.R. § 1032.2 (1973). That reliance, however, is misplaced. First, all of the agreements before the Commission in that report were between various carriers and specified protective service companies, and none was solely between rail carriers. Second, the question whether Section 1(14) (b) requires Commission approval of Division Sheet 7 was never raised in that proceeding. Similarly, that question was not raised before the Commission in Ex Parte No. 137, Contracts for Protective Services, 278 I.C.C. 531 (1950), where agreements for protective services between carriers were submitted by the carriers to the Commission for approval. We are satisfied that these decisions do not indicate any belief by the Commission that Section l(14)(b) requires approval of protective service contracts between common carriers.

The district court also determined that Division Sheet 7 was unenforceable because City Products’ contract to supply ice to North Western had not been approved by the ICC Section 1 (14) (b), however, only requires Commission approval of contracts between a common carrier and the person who furnishes the protective services. City' Products did not contract to provide protection against heat and cold to North Western, and therefore the contract itself does not constitute a protective service agreement as contemplated by Section 1(14)(b).

Moreover, it cannot be found that City Products actually contracted to provide protective services to Rock Island and Burlington. Division Sheet 7 is not converted into a protective service agreement between City Products and the carriers by the fact that the cost of protective services to Rock Island and Burlington depends on the cost of ice to North Western, or by the fact that City Products loads the ice into the bunkers of the refrigerator cars. City Products does not receive any of the tariff revenues paid to North Western under Division Sheet 7, but is compensated for the ice under a separate contract at a stated annual price per ton, and the loading is done only at North Western’s direction and in order to avoid needless duplication of effort. Thus, the arrangement here is readily distinguishable from that in Pacific Fruit Express Co. v. Akron, Canton & Youngstown, R. R., 355 F.Supp. 700 (N.D.Cal.1973) because in that case the mechanical protective service arrangement was directly between the car-line company and the carriers. We conclude, therefore, that the contract with City Products does not defeat the enforcement of Division Sheet 7 by North Western.

Finally, Burlington argues for the first time on appeal that North Western’s actions to recover its uncompensated cost of providing protective services are in reality an attempt to obtain a retroactive division of freight revenues, and that as a result the actions are precluded by Section 15(6) of the Interstate Commerce Act and by Supreme Court decisions interpreting that section. The contention is without merit. North Western is not seeking any retroactive readjustment of revenues, but only brings these actions to recover amounts owed as provided for by the terms of Division Sheet 7 in effect since its existence.

The judgments of the district court are reversed.

Reversed.

      . Two other district courts have reached the same conclusion. Chicago & N.W. Transp. Co. v. Soo Line R.R., 384 F.Supp. 226 (N.D. Ill., 1974) ; Chicago & N.W. Transp. Co. v. Illinois Central Gulf R.R., No. 73 C 1167 (N.D.Ill., March 12, 1974).