author: PER CURIAM: WINTER, Circuit Judge

text:
    CITIZENS FOR BALANCED ENVIRONMENT AND TRANSPORTATION, INC., Successor in interest of Committee to Stop Route 7, et al., Plaintiffs-Appellants, v. John A. VOLPE et al., Defendants-Appellees.
    No. 1241, Docket 74-1730.
    United States Court of Appeals, Second Circuit.
    Argued July 19, 1974.
    Decided Sept. 16, 1974.
    Winter, Circuit Judge, dissented and filed opinion.
    Haynes N. Johnson, Stamford, Conn. (Alphonse R. Noe, Stamford, Conn., Harvey D. Carter, Jr., Bennington, Vt., of counsel), for plaintiffs-appellants.
    Clement J. Kichuk, Asst. Atty. Gen., Hartford, Conn. (Robert K. Killian, Atty. Gen., for the State of Connecticut, Richard Goodman, Bailey & Weschler, Hartford, Conn., William J. Lynch, Trans. Counsel, Conn. Dept, of Trans., Hartford, Conn., of counsel), for defendants-appellees.
    Sarah Chasis, New York City (William F. Morrill, Lakeville, Conn., Jonathan Souweine, Scott Warner, Amherst, Mass., of counsel), for amici curiae Natural Resources Defense Council, Inc., Berkshire Litchfield Environmental Council, Inc., The Housatonic Audubon Society, Housatonic Valley Association, Massachusetts Public Interest Research Group, Vermont Public Interest Research Group.
    Before MULLIGAN and WINTER Circuit Judges, and POLLACK, District Judge.

       Of the Fourth Circuit Court of Appeals, sitting' by designation.

       Of the United States District Court for the Southern District of New York, sitting by designation.

   PER CURIAM:

This is an appeal from an order which denied a motion seeking to enjoin the construction of the segment of Route 7 north from Danbury to New Milford, Connecticut until an environmental impact statement (EIS) has been filed in accordance with the National Environmental Policy Act, 42 U.S.C. § 4332(2)(C). The order is affirmed on the opinion of Judge Newman below. 376 F.Supp. 806 (D.C.Conn.1974).

In Conservation Society of Southern Vermont, Inc. v. Secretary of Transp., 362 F.Supp. 627 (D.Vt.1973), appeal docketed, No. 73-2629 (2d Cir. 1973), Judge Oakes held that the EIS prepared under the supervision of the defendant Secretary of Transportation covering the Bennington to Manchester, Vermont segment of Route 7 was insufficient and barred construction of that portion until an EIS for the entire Route 7 corridor from Burlington, Vermont to Norwalk, Connecticut had been prepared. In his opinion, Judge Oakes made a general finding that federal highway officials have knowledge of the overall planning process by the state officials and that the states have taken advantage of federal highway planning money in connection with Route 7 improvement. 362 F. Supp. at 636. He further found “that there is no overall federal plan for improvement of the Route 7 corridor in the three states into a divided limited access superhighway.” Id.

The question before Judge Newman was whether or not the construction of the segment of Route 7 between Danbu-ry and New Milford constituted “federal action” within the meaning of 42 U.S.C. § 4332(2) (C). In a thorough opinion, he concluded that this portion of Route 7 was not to be deemed “federal action” since only state funds are to be used in its construction, and that therefore no EIS was required.

Judge Newman was fully aware of Judge Oakes’ opinion in Conservation Society. Since, the segment in Connecticut was specifically before the Connecticut District Court and not before the Vermont District Court (the State of Connecticut was not a party and did not appear in that action), we are not persuaded that Judge Oakes’ general findings override the specific finding below that no federal action was present. Thus we agree with Judge Newman that no EIS for this portion of Route 7 (Danbury to New Milford) is necessary prior to the construction of this challenged project.

The order below is affirmed.

WINTER, Circuit Judge

(dissenting):

Because of the interrelation of this case with the appeal pending in Conservation Society v. Secretary, 362 F.Supp. 627 (D.Vt.1973), I think it unwise to decide this case until Conservation Society has been heard and the two can be decided together. But even if we proceed to piecemeal decision, with the attendant risk of inconsistent conclusions and the possible need for further hearing, I cannot agree that Connecticut should be excused from compliance with the National Environmental Policy Act, 42 U.S.C. § 4332 [NEPA], in the construction of the 4.7 mile segment of new or relocated Route 7, which is the subject of the litigation before us. I respectfully dissent and set forth the reasons for my disagreement.

I.

The instant case arose when plaintiffs, whose predecessors in interest were successful in requiring Connecticut to comply with NEPA in the construction of new or relocated Route 7 between Norwalk and Danbury, south of Danbu-ry, Committee to Stop Route 7 v. Volpe, 346 F.Supp. 731 (D.Conn.1972), sought similar relief with respect to all or any part of the construction of Route 7 north of Danbury, and particularly with respect to the construction of the 4.7 mile segment running north from Dan-bury to Brookfield, Connecticut, currently under construction. It is conceded that the proposed construction, which is proceeding apace because both the district court and this court denied permanent and interim relief, has a “major” and “significant” impact upon the environment. The only issue is whether the construction of the segment is “Federal action” within the meaning of NEPA.

II.

Later, I will deal more fully with the findings in Conservation Society v. Secretary, supra, but for present purposes it suffices to say that Circuit Judge Oakes, sitting by designation, found that the proposed improvement of the Route 7 corridor from Norwalk, Connecticut, to Burlington, Vermont, was sufficiently an overall project involving federal action that he required, as a condition to the construction of a two-lane segment between Bennington and Manchester, the preparation of an environmental impact statement (EIS) “in respect to the entire Route 7 corridor . . . ,” 362 F.Supp. at 638. Manifestly, this order is inconsistent with Judge Newman’s order in the instant case that an EIS is not necessary for the Danbury-Brook-field segment.

Although Judge Newman demonstrated that he knew that Conservation Society had been decided, he made no effort to reconcile his decision with that of Judge Oakes. The majority makes none either, except to resort to the rule of thumb of statutory construction that the specific prevails over the genei’al — a rule which may or may not be applicable here —and to call attention to the fact that Connecticut was not a party in Conservation Society. However, the National Environmental Policy Act imposes the duty of preparing an adequate environmental impact statement on federal officials, see Greene County Planning Board v. FPC, 455 F.2d 412 (2 Cir.), cert. denied. 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972), and from the official report of Conservation Society it appears that the plaintiffs in the instant case, Citizens for Balanced Transportation and Environment, Inc., were also plaintiffs in Conservation Society, where they obtained a favorable judgment against the Secretary of Transportation, defendant in both cases, that an adequate environmental impact statement would have to cover the entire Route 7 corridor, including the Danbury to Brookfield segment.

One who sits by designation in a sister circuit should avoid appearing to be an ungrateful guest, but I must nevertheless give voice to dissatisfaction with the majority’s refusal to have these cases heard and decided together by this or another panel of the court. Absent an appellate decision overturning Conservation Society in whole or in part, I must treat it as a presumptively correct decision. Both it and the instant case cannot be reconciled on the single record before us. Under the practice of this circuit, if the decision in this case is at variance with what may ultimately be decided in Conservation Society, resolution may come about only after rehearing or rehearing in banc. In these days of crushing caseloads, the majority should recognize that judicial efficiency is achieved by avoiding duplicate hearings. We ought to do what is to me the obvious — advance Conservation Society, hear and decide it, or order the instant ease reheard and decided by the panel to which Conservation Society is or will be assigned.

III.

If we proceed to decision in the instant case, I cannot agree that NEPA should be held inapplicable. Essentially, I reach that conclusion from viewing the Danbury-Brookfield segment in its historical context and in its physical context as a part of the existing and proposed relocated Route 7, and from considering the extent to which federal funds have been expended in the planning and construction of the segment and its continuations.

In Conservation Society, which at the time of decision of the instant case stands unreversed, Judge Oakes found that while “there is no overall federal plan for improvement of the Route 7 corridor in the three states [Vermont, Massachusetts and Connecticut] into a divided limited access superhighway,” 362 F.Supp. at 636, nevertheless:

The court finds, however, that each of three states’ highway departments are looking toward this end as possible of accomplishment with legislative and federal approval over a long-range period of time, with federal approval taking place on an ad hoc basis at the division engineer level. The court finds, moreover, on the basis of the testimony of Mr. Morris that the construction of isolated sections along the corridor will induce traffic, tending further to require additional construction beyond presently planned termini. The court further finds that federal highway officials have knowledge of the overall planning process by state officials and to a considerable extent work in “partnership” with state officials in connection therewith, and that each of the three states has from time to time taken advantage of federal highway planning money specifically in connection with Route 7 improvement. (Footnote eliminated.) 362 F.Supp. at 636.

Judge Oakes’ findings largely confirm what Judge Newman found in earlier proceedings in the instant case when he concluded that the Norwalk-Danbury segment could not be constructed until Connecticut and federal officials brought themselves into compliance with NEPA. Committee to Stop Route 7, supra. There, Judge Newman described ,the road as “a 31-mile, four-lane limited access expressway to replace U.S. Route 7 from Norwalk to New Milford, arid perhaps eventually on to the Massachusetts line.” 346 F.Supp. at 733. He found:

The state has authorized bonds for the expressway and undertaken extensive planning for it. The expressway will qualify for 50-50 federal funding as part of the system of primary routes, including such routes within urban areas. The state expects to use some $25,000,000 of its apportionment of federal funds on selected segments of the expressway. Federal funds have already been used for one segment in Norwalk and to construct interchanges on Interstate 84 in Danbury, an east-west highway, to which relocated Route 7, if built, will link up from the south just west of Danbury, and from which it will continue north from a point just east of Danbury. 346 F.Supp. at 734.

It would thus seem clear from the findings of Judges Oakes and Newman that the Danbury-Brookfield segment in suit is only part of a very much larger overall project contemplated to be built in large part by the use of federal funds. Connecticut eschewed use of the federal funds to which it would have been entitled in letting contracts for the Danbury-Brookfield segment. It did so only after (a) Judge Newman required an EIS in Committee to Stop Route 7 for the Norwalk-Danbury segment and (b) Connecticut unsuccessfully sought an advisory opinion from Judge Newman of its obligations vis-a-vis NEPA in regard to the Danbury-Brookfield segment before deciding how to finance its construction. Prior to then, Connecticut had considered using anticipated federal funds of $28.4 million for the overall construction of new Route 7 from Norwalk to New Milford, and some were used in constructing the segment from Norwalk to Danbury. While it has used none in letting contracts for the Danbury-Brookfield segment, it is not disputed that Connecticut has followed all procedural steps, except compliance with NEPA, to maintain its eligibility for federal funds for the entire Danbu-ry-New Milford segment. The inference seems inescapable that at some future date it may be found that Connecticut's disavowal of federal funds for building the Danbury-Brookfield segment is no more than a bookkeeping entry shifting federal funds which might have been used for the Danbury-Brookfield segment to other portions of new Route 7 or to other projects where compliance with NEPA will be less onerous.

It is undisputed that approximately $50,000 of federal funds was spent in planning the segment in suit. Admittedly, this is little compared to the estimated cost of construction of $38,000,000. Still, the question is not whether the expenditure of $50,000 of planning dollars had a significant effect on the federal highway trust fund, but rather whether the expenditures “significantly affect [ed] the quality of the human environment.” 42 U.S.C.A. § 4332 (C) (emphasis supplied). “[T]he Department of Transportation has determined that any action significantly affecting the environment is major, DOT Order 5610.1, Definitional Guidelines (2). . . .” Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693, 698 (2 Cir. 1972). The planning stage is the point at which it makes the most sense to impose NEPA’s requirement of consideration of alternatives. It will frustrate the Congressional purpose behind NEPA and will occasion unnecessary and costly delays if we hold that a relatively small initial expenditure of federal planning funds does not trigger NEPA, but that the subsequent expenditure of federal construction funds does.

The Brookfield-Danbury segment is inextricably tied into other roads on which vaster federal expenditures have been made. The southern terminus of the segment is connected, without exit, to an existing federally-funded bridge; and this in turn is connected, again without exit, to 1-84, a federally-funded interstate highway. As found by Judge Newman:

cars travelling north from Danbury on new Route 7 will cross the federally-funded bridge and remain on the state-funded portion of new Route 7 for about one mile until the first exit is reached. Similarly, cars coming south toward Danbury on new Route 7, after passing an exit one mile north of the bridge, will have to cross the bridge and continue into 1-84. ... 376 F.Supp. at 810.

Thus, the physical connection between the segment and construction which is unquestionably “Federal action” is demonstrated. To belittle this fact, Connecticut disingenuously asserts that the state-financed segment simply connects 1-84 to new Route 7. Equally, it seems to me to connect new Route 7 to 1-84. The fact is that one cannot use the southern portion of the segment in question without using a bridge and spur constructed with federal money.

IV.

Were this a case in which the Danbu-ry-Brookfield segment was a middle section of an overall federally-financed road, the case would be clearly one of impermissible segmentation and easily decided. Under such circumstances, the authorities are in accord that Connecticut would be required to comply with NEPA with regard to that segment. Named Ind. Mem. of San Antonio Con. Soc. v. Texas Hy. Dept., 446 F.2d 1013 (5th Cir. 1971); Thompson v. Fugate, 347 F.Supp. 120 (E.D.Va.1972). The case is, of course, not that clear, because the portion of Route 7 north of Brook-field has yet to be built and a final decision as to how to finance that construction has yet to be made. Still, there are striking similarities to a true segmentation case, and I have no doubt that we ought to conclude that NEPA applies.

The findings of Judge Oakes and of Judge Newman make certain that construction of the segment in suit is only part of a grander, more comprehensive plan — a complete relocation of existing Route 7, at least from the Connecticut Turnpike to New Milford, Connecticut, if not to Burlington, Vermont. For the Connecticut portion, if not for the entire project, federal financing has been contemplated and federal financing has been employed. Connecticut has been assiduous in preserving its eligibility for federal financing. I agree that the latter would probably not be a sufficient basis to make NEPA applicable, but in this case there is more. Federal funds have already been used to construct the Norwalk-D anbury segment, and the Danbury-Brookfield segment is so designed and will be so built that it will be a mere continuation of what the federal government has already financed. Moreover, some federal funds have been spent in the design of the Danbury-Brookfield segment. These factors make applicable the principles of La Raza Unida v. Volpe, 337 F.Supp. 221 (N.D.Cal.1971), even though construction of the Danbury-Brookfield segment

is not federally financed. They serve also to distinguish the holding in James River and Kanawha Canal Parks, Inc. v. Richmond, 359 F.Supp. 611 (E.D.Va. 1973), aff’d, 481 F.2d 1280 (4 Cir. 1973) (per curiam) because of the clear evidence of federal action.

This is not a case where there is a clean physical break, or clear escape hatch for the travelling public, between an existing federally-financed project and one to be built by state funds. A traveller on one must use the other. The two do not merely “connect,” as the district court treated them; each is a physical extension of the other. This is not a case, either, where Connecticut has committed itself to exclusively state financing of the continuation of the Dan-bury-Brookfield segment when inevitably it will be built. There is every indication that federal financing will again be resorted to in successive construction where compliance with NEPA will not be burdensome. Manifestly, if the grand design of NEPA, so elegantly articulated in Calvert Cliffs’ Coord. Comm. v. United States A. E. Com’n, 146 U.S. App.D.C. 33, 449 F.2d 1109 (1971), is to be preserved, the Act must be complied with now.

It matters not that the entire Danbu-ry-New Milford segment, of which the Danbury-Brookfield segment is a part, has a useful purpose to serve the two communities, aside from its function as a continuation of new Route 7 and a continuation of other federally-funded facilities. Sierra Club v. Froehlke, 359 F. Supp. 1289, 1324-1325 (S.D.Tex.1973); Conservation Society, supra. And this is true even if one agrees that a four-lane, limited access highway is needed to connect a city of 53,300 with another of 15,400. To conclude otherwise would destroy the overall purpose of NEPA. It is too common an experience not to recognize that there is some local use on every limited access highway, even those admittedly built as a result of major federal action. We ought not to permit this concurrent puz’pose to obscure the function of the Danbury-Brookfield segment as a necessary link in the overall relocated Route 7 — a project treated by Connecticut as a single project (until it experienced the impact of compliance with NEPA in construction of the first segment) and initially undertaken with the use of federal funds.

With commendable candor, Judge Newman characterized the question of whether the cumulative effect of the various factors which I have discussed amounts to federal action as “close.” Even if the facts as I have analyzed them do not mount up to a conclusive showing of “Fedez’al action,” Judge Newman’s characterization serves to decide the case. This is so because § 102(1) of the National Environmental Policy Act, 42 U.S.C.A. § 4332, sets forth the rule of decision for close cases:

The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act. (Emphasis added.)

This Congressional directive to “intez*-pret” the “laws” of the United States “in accordance with the policies” of NEPA “to the fullest extent possible” is not contained in the legislative history of the Act; it is part of the very statute itself. The question of whether the Danbury-New Milford segment is federal action may be a close one, but the application of NEPA depends on its resolution. In the immediate case, to give any effect to the policies of NEPA, much less to implement them to the “fullest extent possible,” it is necessary to interpret NEPA to cover a controversy presenting a close question of “Federal” action.

While it might be argued that § 102(1), 42 U.S.C.A. § 4332(1), was directed at statutes other than NEPA, I would have little difficulty in holding that if all other federal statutes must be intez’preted in accordance with the policies of NEPA to the fullest extent possible, NEPA itself should be interpreted in accordance with its statutory policies to the fullest extent possible. In any event, this circuit has already interpreted the command of § 102(1), 42 U.S.C. A. § 4332(1), as applicable to NEPA itself. In Monroe County Conservation Council v. Volpe, 472 F.2d 693,. 699 (2 Cir. 1972), the court stated:

Congress directed that NEPA, which provided for an impact statement, was to be implemented to “the fullest extent possible,” 42 U.S.C. § 4332.

In sum, in a close case where the impact of a project concededly has a “significant” impact on the environment and is admittedly a “major” undertaking, if, as in this case, the application of NEPA turns on a close question as to whether the project is “Federal,” I think that § 102(1)’s direction to interpret the law in accordance with the Act’s environmental policies to the fullest extent possible provides the rule of decision for the case and requires a holding that the project is “Federal.”

I would reverse the district court and direct that permanent relief be granted on remand. I would have granted interim relief at the time of argument.

      . A permanent injunction preventing construction of Route 7 soutli from Danbury to Norwalk, Connecticut, until an EIS was prepared was issued by Judge Newman in Committee to Stop Route 7 v. Volpe, 346 F.Supp. 731 (I).Conn.1972).


source: Caselaw Access Project

author: PECK, Circuit Judge.

license: Public Domain

text:
    Willie B. TURNER, Plaintiff-Appellant, v. IMPALA MOTORS, Defendant-Appellee.
    No. 73-1826.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 30, 1974.
    Decided Sept. 20, 1974.

      G. Philip Arnold, Memphis and Shelby County Legal Service Assoc., Memphis, Tenn., on brief for appellant.
    James A. Crislip, Memphis, Tenn., on brief for appellee; Gary K. Smith, Memphis, Tenn., of counsel.
    Before WEICK, CELEBREZZE and PECK, Circuit Judges.
   PECK, Circuit Judge.

Tennessee Code Annotated (T.C.A.) § 47-9-503 is the State of Tennessee’s statutory implementation of the Uniform Commercial Code’s § 9-503 which authorizes a secured creditor to peacefully repossess collateral. The provision is generally known as the self-help repossession provision. This case presents the issue as to whether peaceful repossession under the Tennessee statute is action under the color of state law within the meaning of 42 U.S.C. § 1983 and state action within the meaning of the due process clause of the Fourteenth Amendment. Upon motion of the defendant-appellee, the District Court dismissed the suit for failure to state a cause of action and this appeal followed. District Judge Garrity has characterized this issue as “one of the liveliest on the current judicial scene.” Boland v. Essex County Bank, 361 F.Supp. 917 (D.Mass. 1973).

In terms of private repossession, the facts before us offer a classic example. Plaintiff-appellant Turner purchased a 1965 Buick LaSabre in June of 1972 from the defendant-appellee Impala on a conditional sales contract. Turner executed a promissory note specifying a payment schedule of twenty-five dollars per week for twelve weeks, with the remaining balance to be paid at the rate of twenty dollars per week.

The record does not indicate the circumstances of the default but the actual payments were erratic from the beginning. The contract included a provision that “in default of payment of this note, or any part of it, said payee [Impala] may take possession of said property in any manner they [sic] may elect, and dispose of same without recourse to law yy

Almost seven months after the purchase, Turner apparently defaulted on his note and without notice the auto was repossessed from a curbside on a public street. The incident occurred in the early afternoon of a weekday after Turner parked his auto in front of his mother’s house. Turner had left his five-year-old son in the auto and the keys to the auto in his pocket, but the agent of Impala was not deterred. The young child was removed therefrom and the auto sped away. The record indicates that there was no hearing to determine either contractual obligations or the rights to possession.

Turner contends that the Tennessee statute is unconstitutional and that it authorizes a deprivation of property without due process. He principally relies on Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), which held that notice and a hearing are required before the execution of a prejudgment writ of replevin. According to the appellant, the Tennessee statute allows a creditor to circumvent the requirements of notice and hearing and yet replevy his property. He contends that although the case ostensibly involves private conduct, the presence of state action is indicated by the fact that the state has intervened, authorized and encouraged repossession by secured creditors by conferring upon them special powers and exemptions from legal requirements placed on all others. Appellant also argues that the Tennessee statute, similar to the replevin statutes in Fuentes, deprives the debtor of his rights to notice and an opportunity to be heard. The waiver provision contained in the contract does not, appellant contends, necessarily exclude the requirements of notice and a judicial hearing on the issue of the waiver prior to the repossession. The waiver provision allows the creditor to take possession upon default.

Before we consider the constitutional dimensions of the matter before us, we must first examine the key question of jurisdictional requisites. The concept of state action as required by the Fourteenth Amendment has been found to be virtually synonymous with the “under color of state law” requirement of § 1983. United States v. Price, 383 U.S. 787, 794-795 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966); Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153, 161 (6th Cir. 1973). But cf., Adickes v. S. H. Kress & Co., 398 U.S. 144, 211, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (Brennan, J., concurring and dissenting). Appellant would have us hold that the self-help repossession which took place upon the default on a private contract providing for such repossession is an act under color of state law and thus constitutes state action within the scope of the Fourteenth Amendment. If the repossession did not constitute state action but rather only an individual invasion of individual rights, the alleged wrong cannot be remedied under the auspices of the Fourteenth Amendment. Civil Rights Cases, 109 U.S. 3, 11, 3 S.Ct. 18, 27 L.Ed. 835 (1883). The presence of state action allows the invocation of the basic procedural safeguards announced in Sniadach v. Family Finance Corp., infra, and Fuentes v. Shevin, supra.

Instances of private conduct have been found to involve sufficient .state action but each such conclusion should be the product of “sifting facts and weighing circumstances . ” Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). However, a mere finding that state action is present is insufficient. The state action must rise to the level of significant involvement. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1971).

The constitutional attacks on creditors’ tactics such as peaceful repossession or formal legal processes gained support with Mr. Justice Douglas’ majority opinion in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). In that case a garnishment action had been instituted in a state court whose rules allowed the service of summons and complaint upon the alleged debtor’s employer. The effect was to freeze the alleged debtor’s wages until the merits of the case had been decided. The debtor was not required to be notified at the time of service upon the employer and there was no opportunity for the debtor to obtain a hearing or judicial scrutiny of the creditors’ claims. The debtor was restricted to either showing that the suit was brought in bad faith or posting a bond in the amount of the garnishment. With Mr. Justice Black dissenting, the Supreme Court held that the Court Clerk’s ex parte issuance of a summons pursuant to the state statute constituted state action and that the prejudgment wage garnishment without prior notice and opportunity for a hearing deprived the debtor of property without due process of law in violation of the Fourteenth Amendment.

Subsequently, the Supreme Court in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), speaking through Mr. Justice Stewart, held that certain state statutes providing for the summary seizure of personal property by means of a prejudgment replevin procedure involving the sheriff’s execution of a writ issued by a court clerk violated the due process clause of the Fourteenth Amendment insofar as it denied a debt- or the right to notice and the opportunity for a hearing prior to the loss of any possessory interest in that personal property.

However, in the recent case of Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), it would appear that Fuentes has been effectively overruled. See concurring opinion of Powell, J., id. at 623, 94 S.Ct. 1895, and the dissenting opinion of Stewart, J., id. at 629, 94 S.Ct. 1895. In Mitchell, judicial sequestration procedures in Louisiana, similar to the replev-in statutes struck down in Fuentes, allowed a creditor to obtain, on an ex parte basis from a judicial authority, a writ of sequestration upon submission of an affidavit and posting of a security bond. Thereupon a public official, without providing notice and a hearing to the debtor, seized the property. Distinguishing judicial control over the process from the court clerk’s control in Fuentes, the Supreme Court found the procedure was not invalid.

Prior to Mitchell, the challenge to the Commercial Code’s self-help repossession provisions generated considerable litigation. However, the only federal appellate courts to have met the issue to date have failed to find significant state action present. Gibbs v. Titelman, 502 F.2d 1107 (3rd Cir., filed August 1, 1974); James v. Pinnix, 495 F.2d 206 (5th Cir., 1974); Nowlin v. Professional Auto Sales, Inc., 496 F.2d 16 (8th Cir. 1974), citing Bichel Optical Laboratories, Inc. v. Marquette National Bank, 487 F.2d 906 (8th Cir. 1973); Shirley v. State National Bank of Connecticut, 493 F.2d 739 (2d Cir., 1974); Adams v. Southern California First National Bank, 492 F.2d 324 (9th Cir. 1973), rev’g sub nom. Adams v. Egley, 338 F.Supp. 614 (S.D. Cal.1972), petition for cert. filed, 42 U.S.L.W. 3707 (U.S. June 25, 1974).

It is the district court’s opinion in Adams that remains the most frequently cited case finding the requisite state action. In that case, the court relied upon Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), wherein the Supreme Court found that state action existed when private housing discrimination was authorized by a provision of the California constitution. Even though the California constitution did not require discrimination in the sale and rental of housing, the Court stated that the provision in question would “significantly encourage and involve the State in private discriminations” contrary to the Fourteenth Amendment. Id. at 381, 87 S.Ct. 1627. Similarly, the District Court in Adams held that the California enactments of the U.C.C. encouraged and involved the state in private repossession and sale, as demonstrated by their incorporation in the security agreement. Appellants here have mounted that same challenge.

On appeal, the Ninth Circuit held that there was not sufficient involvement by the State of California to constitute state action. Adams, supra, 492 F.2d at 329. The Court distinguished Reit-man as being a racial discrimination case having limited application to the self-help repossession cases and relied on the finding that the California statute merely codified the existing common law. The court also rejected the contention that the repossession was effectively a public function.

We are likewise persuaded that Reitman cannot be relied upon to justify a finding of state action here. Our opinion in Palmer notwithstanding, 479 F.2d 153 (6th Cir. 1973), we view Reitman as dealing with a state attempt to accomplish indirectly what it was prohibited from doing directly. We cannot ignore the fact that the context of onerous racial discrimination in which the case was set demanded special scrutiny. The injustices of racial discrimination cast a different shadow than that of the case now before us. See Oller v. Bank of America, 342 F.Supp. 21, 23 (N.D.Cal.1972).

Our opinion in Palmer likewise responded to a different circumstance. There we considered the policies of a company with monopolistic character whose business was to provide a necessity of life and whose activities and operations were pervasively and significantly regulated by governmental and quasi-go vernmental regulations and statutes. We therefore concluded that the state thereby achieved a position of joint participation with the company. Id., 479 F.2d at 165. See also Burton v. Wilmington Parking Authority, supra, 365 U.S. at 726, 81 S.Ct. 856.

Appellant makes the principal point that the private activity before us should be viewed as encouraged by the statute and therefore a finding of state action is justified. While acknowledging that the point has a measure of merit, we do not find it persuasive.

It is clear that in this case the state did not exert any control or compulsion over the creditor’s decision to repossess. The private activity was not commanded by the simply permissive statute. While mere existence of the statute might seem to suggest encouragement, we conclude that the effect of the statute is only to reduce a creditor’s risk in making repossessions. As a practical matter, a creditor’s decision is more likely to be principally influenced by the economics of the situation than by the presence of a permissive statute.

We fail to see where the creditor has sought to invoke any state machinery to its aid. Rather, the creditor has simply relied upon the terms of its security agreement pursuant to the private right of contract. Compare Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). Assuming that the statute was non-existent, the remedy of self-help repossession could still be utilized based on its common law heritage and the private right to contract. We fail to see how the creditor is attempting to enforce any right in reliance upon a constitutional or statutory provision as in Reitman or is even asserting any state-created right. Rather, we see a creditor privately effectuating a right which was created in advance by contract between the parties. At best, the right is one that is merely codified, but not created, in the statute.

Appellant also argues that the statute authorizes an individual to perform the governmental function of seizing private property. As stated previously, the statute merely codified and did not create any right or state power. Were we to rely upon the mere fact of codification, we would in part be making available to a complex matrix of human behavior, as regulated by statutes, the scope of federal remedies. We decline to establish that precedent, particularly under the circumstance of a statute that is permissive in nature.

The decision of the district court is affirmed.

      . 47-9-503. Secured party’s right to take possession after default. — Unless otherwise agreed a secured party has on default the right to take iwssession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action. If the security agreement so provides the secured party may require the debtor to assemble the collateral and make it available to the secured party at a place to be designated by the secured party which is reasonably convenient to both parties. Without removal a secured party may render equipment unusable, and may dispose of collateral on the debtor’s premises under § 47-9-504. [Acts 1963, ch. 81, § 1 (9-503).]

      . 42 U.S.C. § 1983 (1970) : Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall he liable to the party injured in an action at law, suit in equity, or other proper proceeding . . .

      . U.S.Oonst. Amend. XIV, § 1: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

      . This issue was expressly not before this Court in Huber v. Union Planters National Bank, 491 F.2d 846 (6th Cir. 1974).

      . ¡átate action has been described as a “catch-phrase.” See Black, “State Action,” Equal Protection and California’s Proposition 14, 81 Harv.L.Rev. 69, 88 (1967).

      . See the partial listing of examples cited in Palmer v. Columbia Gas of Ohio, Inc., supra, 479 F.2d at 161.

      . Although state action in self-help repossession cases was neither at issue nor discussed in Fuentes, the Court noted in contrasting self-help and replevin that creditors may “proceed without the use of state power, through self-help . . . . ” Supra, at 79 n. 12, 92 S.Ct. at 1993. Self-help and re-plevin can be distinguished constitutionally on the basis of the state’s involvement.

      . Although we recognize that the Civil Rights Act lias application to cases involving the deprivation of property rights as well, see Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), and Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), we are still faced with the problem of finding the presence of state action.

      . But compare, Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), where the Supreme Court stated that it would not base a holding of state action upon a mere finding that “the private entity receives any sort of benefit or service at all from the State, or [that] it is subject to state regulation in any degree whatever [S]uch a holding would utterly emasculate the distinction between private as distinguished from state conduct.” 407 U.S. at 173, 92 S.Ct. at 1971.

      . See Watson v. Kenlick Coal Co., 498 F.2d 1183 (6th Cir. 1974).

      . The common law of Tennessee allowed repossession of personal property under conditional sales contracts without resort to legal process where the purchaser had agreed to repossession as a contractual matter. Morrison v. Galyon Motor Co., 16 Tenn.App. 394, 64 S.W.2d 851 (1932).

      . Insofar as Palmer, 479 F.2d 153 (6th Cir. 1973), is inconsistent herewith, it is modified.


author: MULLIGAN, Circuit Judge:

text:
    AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and the United States of America, Respondents, Data Transmission Company et al., Intervenors.
    No. 616, Docket 73-1758.
    United States Court of Appeals, Second Circuit.
    Argued June 4, 1974.
    Decided Sept. 23, 1974.
    Alfred Partoll, New York City (Michael Boudin, Hugh B. Cox, Robert H. Loeffler, Washington, D. C., C. Duane Aldrich, Marian Jean Dabney, New York City, on the brief, F. Mark Garling-house, Harold J. Cohen, New York City, of counsel), for petitioner.
    Joseph A. Marino, Associate Gen. Counsel, Federal Communications Commission, Washington, D. C. (John W. Pettit, Gen. Counsel, Philip V. Permut, Counsel, Thomas E. Kauper, Asst. Atty. Gen., Carl D. Lawson, Atty., Dept, of Justice, Washington, D. C.), for respondents.
    William J. Byrnes, Washington, D. C. (Haley, Bader & Potts, Washington, D. C., Michael H. Bader, Kenneth A. Cox, Washington, D. C., on the brief), for in-tervenors Microwave Communications, Inc. & MCI Telecommunications Corp.
    Glaser & Fletcher, Michael L. Glaser, Francis E. Fletcher, Jr., Washington, D. C., John M. Scorce, Vienna, Va., of counsel, for intervenor Data Transmission Co.
    McKenna, Wilkinson & Kittner, Joseph M. Kittner, Edward P. Taptich, Norman P. Leventhal, Washington, D. C., Howrey, Simon, Baker & Murchison, John S. Voorhees, Washington, D. C., on the brief, for intervenor Computer & Business Equip. Mfrs. Ass’n.
    Before KAUFMAN, Chief Judge, and MULLIGAN and TIMBERS, Circuit Judges.
   MULLIGAN, Circuit Judge:

This is a petition by the American Telephone & Telegraph Company (AT&T) for review of a portion of a Federal Communications Commission (FCC) order, 25 F.C.C.2d 957 (1970), reconsideration denied, 40 F.C.C.2d 149 (1973), in which the FCC adopted Rule 61.58, now codified at 47 C.F.R. § 61.58 (1973), which revises the procedures that govern the filing of interstate tariffs by communications common carriers. The sole question raised by the petition is whether Section 203(b) of the Communications Act of 1934, 47 U. S.C. § 203(b), which gives the FCC the power in its discretion and for good cause shown to “modify” its requirements, permits a rule revision which enlarges from 30 days to 60 days the required notice period for common carriers filing rate increases. The petitioner urges that the FCC statutory power to “modify” its requirements must be construed to mean that the Commission has only the authority to shorten, but not to extend the public notice requirement. We are persuaded that the word “modify” used in the statute plainly gives the FCC the power to alter or change the notice period whether it results in an increase or decrease of time involved. The petition for review is therefore denied.

I

Where the FCC has not prescribed a rate, carriers initiate rate changes by filing a tariff with the Commission. Because of the notice provision of Section 203(b), the tariff normally goes into effect 30 days after the filing. The waiting period is designed to give the public the opportunity to review the tariff and to make any pertinent comments. It is further intended to provide the FCC time to study the tariff as well as any comments received from the public. The FCC may reject the tariff, 47 U.S.C. § 203(a), or suspend it and order an investigation of the proposed rates, 47 U.S.C. § 204. The suspension period however, may not exceed 3 months. If the FCC has not completed its investigation within that time, then the rate becomes effective by operation of law. If the rate is subsequently found to be unlawful, the carrier is obligated to refund excess charges. 47 U.S.C. § 204.

By 1969, the FCC was aware of the fact that the notice provisions furnished inadequate time either for public or Commission evaluation. Under the then Commission rules, 47 C.F.R. § 1.773 (1969), the public was requested to file its comments within 16 days of the filing of the proposed tariff which gave the FCC only 14 days to evaluate the public comment and even less time to consider the carrier’s response. Moreover, tariff filings had become increasingly more complex and difficult to assess.

On October 17, 1969, the FCC initiated rule-making procedures seeking to amend its regulations to require carriers to provide more specific data with their tariffs, to provide actual notice of tariff filings to the public (previously, copies of the tariffs were simply posted in areas where the carrier operated) and to extend the 30-day notice period to 60 days. Notice of Proposed Rule Making, 34 Fed.Reg. 17116. The petitioner and other carriers objected. The Commission, on October 13, 1970, released its Final Report and Order, 25 F.C.C.2d 957, adopting in substance the regulations proposed in its Notice. AT&T petitioned for reconsideration and the FCC denied the petition in a Memorandum Opinion and Order released on March 27, 1973, 40 F.C.C.2d 149. This petition for judicial review followed and it is limited to the sole question of the statutory power of the FCC (not the wisdom of its policy) to extend the 30-day notice provision to 60 days.

II

As we noted initially, Section 203(b) clearly provides that the FCC has the power to “modify” the notice requirement. AT&T concedes this but argues that the word “modify” can only mean reduce and cannot be interpreted to mean enlarge. The FCC and the inter-venors urge that to modify means to change or to alter whether or not this results in an increase or decrease in the notice period. Each party and the inter-venors have supplied etymological support for their positions. AT&T even resorts to the philological ultimate, the Latin root, modificare, in which it finds particular comfort. Before succumbing to semantic aphasia, we are persuaded that to “modify” means to alter or to change whether this involves enlargement or reduction. Black’s Law Dictionary 1155 (4th ed. 1951) so defines the word and this is the normal meaning which lawyers and judges attribute to the term. Certainly, to modify an opinion or an order, is not necessarily to reduce it but simply to change it, irrespective of any quantitative result.

The petitioner’s interpretation, in any event, actually supports and does not contradict the position we take. In its brief, AT&T argues that the term “modify” is often employed in statutes to empower an agency to relax its requirements : “This use of ‘modify’ — as a synonym for relaxation — is one of the most familiar of the dictionary meanings of the term. Cf. American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 539 [, 90 S.Ct. 1288, 25 L.Ed.2d 547] (1970).” Brief for AT&T at 12. The case referred to does not involve any statutory construction problem concerning the word “modify,” but simply refers to the ad hoc power of an agency to relax its procedural rules when required by justice. The language relied upon in the Supreme Court decision is excerpted from NLRB v. Monsanto Chem. Co., 205 F.2d 763, 764 (8th Cir. 1953). In the Monsanto case, the court upheld a National Labor Relations Board order despite the claim that the application for a review of an order of the Board’s Regional Director had been filed six days after the time fixed by the Board’s rule. The court held that the agency had the power “to relax or modify its procedural rules.” As we have indicated, the American Farm Lines ease is hardly in point here where the power to modify the time requirement is explicitly provided in the statute. However, it is significant that the modification found permissible in Monsanto actually involved an enlargement of the time to file. Thus, even assuming that AT&T is correct in its position that to modify means to relax, to reduce or to temper, the change effectuated here does just that. By increasing the notice period from 30 days to 60 days, the Commission is providing more timé for the public to file objections to, and for itself to evaluate, new tariffs. It is thus easing the strictures of the present rule; it is relaxing its requirements just as the NLRB did in Monsanto. In sum, an extension of time may well constitute a reduction or easing of the requirements of the regulation. While this is obviously not in the economic interest of the petitioner, the prime responsibility of the agency is to the public and not to the protected monopolist. See GTE Serv. Corp. v. FCC, 474 F.2d 724, 730-732 (2d Cir. 1973).

We conclude, therefore, that the plain meaning of the word “modify” in the statute, no matter what thesaurus is consulted, permits the Commission to extend the notice period from 30 to 60 days as it has done in Rule 61.58.

Ill

AT&T argues further that the legislative history of Section 203(b) establishes that the Commission is not authorized to enlarge the notice requirement. In view of what has already been said here, there is no justification to resort to legislative history since the language of the statute is not ambiguous. The cases so holding are legion and we need cite only a few. Ex parte Collett, 337 U.S. 55, 61, 69 S.Ct. 944, 93 L.Ed. 1207 (1949); United States v. Blasius, 397 F.2d 203, 205-206 (2d Cir. 1968), petition for cert. dismissed, 393 U.S. 1008, 89 S.Ct. 615, 21 L.Ed.2d 557 (1969); Wirtz v. Teamsters Local 191, 321 F.2d 445, 448 (2d Cir. 1963).

In any event, the history relied upon, if anything, bolsters the position we have adopted. The contention of AT&T is that in drafting the Communications Act of 1934, the first comprehensive regulatory plan for telecommunications common carriers offering interstate service, Congress drew on the considerable body of experience gained in framing and amending the Interstate Commerce Act. There is no gainsaying the proposition. However, it is equally clear that the congressional intent was not to provide a carbon copy of the Interstate Commerce Act. The House Report, H.R. No. 1850, 73 Cong., 2d Sess. 4 (1934), states, for example:

While a series of minor amendments have followed this 1910 legislation [Interstate Commerce Act], the act never has been perfected to encompass adequate regulation of communications, but has really been an adaptation of railroad regulation to the communications field. As a consequence, there are many inconsistencies in the terms of the act and also many important gaps which hinder effective regulation. In this bill the attempt has been made to preserve the value of court and Commission interpretation of that Act, but at the same time modifying the provisions so as to provide adequately for the regulation of communications common carriers. (emphasis added).

AT&T argues that the Congress, in enacting the Communications Act, intended to borrow the counterpart filing provisions of the Interstate Commerce Act and that Section 203(b) was taken from Section 6 of that statute, Pub.L. No. 337, 34 Stat. 586 (1906), codified as amended at 49 U.S.C. § 6(3). However, when the Communications Act was passed in 1934, 49 U.S.C. § 6(3) provided in pertinent part:

No change shall be made in the rates, fares, and charges . . . which have been filed . . . , except after thirty days’ notice to the Commission and to the public . . . Provided, That the Commission may, in its discretion and for good cause shown, allow changes upon less than the notice herein specified, or modify the requirements of this section in respect to publishing', posting, and filing of tariffs, either in particular instances or by general order applicable to special or peculiar circumstances or conditions. (emphasis added).

It seems clear that the Congress did not copy Section 203(b) from 49 U.S.C. § 6(3) since the latter explicitly and unambiguously provided that the 30-day period could only be lessened. It is significant that where Congress intended that an agency have the power to modify the 30-day notice period only by decreasing the period, it found clear and unambiguous language to express that power.

In light of the congressional ability, before and after the 1934 Communications Act, to express with precision its intention that a regulatory agency have the power only to curtail and not to enlarge the tariff notice period, the use of the word “modify”, rather than the usual “allow changes upon less than the notice [of thirty days] herein specified,” takes on additional significance. It cannot be dismissed as- a minor stylistic variation in phrasing, as AT&T argues. As we have already indicated, the language of Section 203(b) is clear and, in the words of Senator Dill, who introduced and managed the Senate Bill, “from a drafting standpoint, ... it is a very carefully prepared bill.” 78 Cong.Rec. 8872 (1934). We can only conclude that the plain language employed was intended to mean what it says. The legislative history in no place at all indicates any intent to give the FCC only the power to reduce the notice period. In view of the comparable sections of the other agency provisions, we are convinced that the interpretation of the FCC and of all of the intervenors is sound.

In its reply brief, AT&T takes the position that our decision in American Tel. & Tel. Co. v. FCC, 487 F.2d 865 (2 Cir. 1973) is controlling and mandates the conclusion that Section 203(b) confers no greater power on the FCC than was granted to the ICC and FPC under statutes administered by them. This is simply not so. The issue before us there was the validity of an FCC requirement that AT&T obtain “special permission” from the Commission as a precondition to the filing of tariff changes. We held that the Commission had no such inherent power and we found nothing in Section 203(b) to justify such procedure. The “special permission” procedure there improvised by the FCC was in no fashion authorized by the Communications Act and it did constitute a device which disrupted the statutory scheme of carrier initiated rate changes. It was in effect a rate “prescription” and inconsistent with 47 U.S.C. § 205, which authorizes rate prescriptions only after a full hearing and specific findings.

The language in our opinion primarily relied upon by AT&T to support its position is:

It is clear from the legislative history that Section 203(b) conferred no greater power in this respect upon the FCC than was granted to the ICC and the FPC under the statutes administered by them.

487 F.2d at 879 (emphasis added). The interpretation of our opinion urged upon us ignores the phrase which we have emphasized which makes it clear that Judge Timbers was referring specifically to the special permission gimmickry introduced by the FCC without authorization express or implied in Section 203(b). His later language makes this quite clear when he wrote:

In short, under Section 203(b) the Commission may only modify requirements as to the form of, and information contained in, tariffs and the thirty days notice provision.

487 F.2d at 879 (emphasis added).

In sum, then, we see nothing in the holding and, upon analysis, nothing in the words carefully selected by our brother Timbers which warrants the elation which our opinion generates in AT&T. In fact, we said what the statute says itself — that the FCC can modify the time requirement in the notice provision. Whether such modification could take the form of an increase or a decrease in time was not before us then. It is now and it can.

IV

The final argument of AT&T is like unto its first and, if anything, is even less persuasive. We are urged that if the Commission has the power to extend the notice period from 30 to 60 days, it undermines the present careful and comprehensive statutory rate changing provisions of the Act, to wit, a 30-day advance notice period plus a maximum 3-month subsequent suspension period. Extending the period, AT&T argues, involves irreparable harm since the revenue represented by the new tariff can never be recouped.

The fact that the Congress has provided a comprehensive and careful statutory plan for rate increases cannot and will not be denied here. However, the suggestion that the congressional scheme represents a plan with an immutable time table is frivolous. As we have already noted, the Congress itself specifically provided that the notice time for rate changes could be modified. AT&T argues strenuously that the time can be shortened, which is itself an admission that the time element was intended to be flexible. Whether the loss of revenues involved is counterbalanced by the public interest and the greater ability of the agency to assess the lawfulness of the proposed rates, is a matter left by the Congress to the Commission. It is not for us to make this determination and, in fact, this appeal is limited to the question of agency authority and does not raise the question of abuse of discretion. The argument that the result here would permit the FCC to make gross changes of time which would pervert the statutory grant is not relevant. We are not here presented with such a case or claim and see no point in anticipating such an event. We find no dearth of justiciable controversies to keep us otherwise occupied.

Petition denied.

      . Several carriers were granted permission by this court to intervene in this proceeding and have filed briefs: Data Transmission Co., Microwave Communications, Inc. and MOI Telecommunications Corp., as well as Computer & Business Equip. Mfrs. Ass’n., a trade association representing the computer and business equipment industry. All have argued in support of the FCC regulation.

      . 47 C.F.R. § 61.58 (1978) provides:
      Every tariff irablication which constitutes a rate increase shall bear an effective date and, except as otherwise provided by regulation, special permission, or order of the Commission, shall give not less than 60 days notice to the public and to the Commission. Notice shall be given by filing with the Commission such proposed tariff publications. In addition to this notice, if the tariff publication proposes to increase any charge or to effectuate an authorized discontinuance, reduction or other impairment of service to any customer, the filing carrier shall take such steps as are appropriate under the circumstances to inform the affected customers of the content of the tariff publication. Every tariff publication which does not constitute a rate increase shall bear an effective date and, except as otherwise provided by regulation, special permission, or order of the Commission, shall give not less than 30 days notice to the public and to the Commission regardless of whether or not changes are effected thereby. Any period of notice required herein shall begin on and shall include the date the tariff is received by the Commission, but shall not include the effective date. In computing the notice required, Sundays and holidays shall be counted.

      . 47 U.S.C. § 203(b) provides:
      No change shall be made in the charges, classifications, regulations, or practices which have been so filed and published except after thirty days’ notice to the Commission and to the public, which shall be published in such form and contain such information as the Commission may by regulations prescribe; but the Commission may, in its discretion and for good cause shown, modify the requirements made by or under authority of this section in particular instances or by a general order applicable to special circumstances or conditions.

      . 47 C.F.R. § 1.773 (1969) provided:
      (a) Content. A petition for suspension of a new tariff schedule or any provision thereof shall indicate the schedule affected by its Federal Communications Commission number and give specific reference to the items against which protest is made, together with a statement indicating in what respects the protested tariff schedule is considered unlawful. No petition shall include a prayer that it also be considered a formal complaint. Any such formal complaint shall be filed as a separate pleading as provided in § 1.723.
      (b) When filed. A petition for suspension shall be filed with the Commission and served upon the publishing carrier and the Chief, Common Carrier Bureau at least 14 days before the effective date of the tariff schedule. In case of emergency and within the time limits herein provided, a telegraphic request for suspension may be sent to the Commission setting forth succinctly the substance of the matters required by paragraph (a) of this section. A copy of any such telegraphic request shall be sent simultaneously to the publishing carrier and the Chief, Common Carrier Bureau and forthwith confirmed by petition filed and served in accordance with this section.
      (c) Reply. A publishing carrier may reply to a petition for suspension, but any such reply shall be filed with the Commission and served simultaneously upon petitioner and the Chief, Common Carrier Bureau within 3 days after service of the petition for suspension.
      (d) Copies; service. An original and 14 copies of each petition or reply must be filed with the Commission, and served in accordance with paragraphs (b) and (c) of this section.
      In view of the adoption of the new Rule 61.58, subdivision (b) of the above regulation was modified to provide the public with greater time (25 days) to evaluate carrier tariff filings which increase rates and also to enlarge the period during which the FCC may study the proposed rates and public comments (35 days) as well as carrier replies (32 days), 40 F.C.C.2d 149 (1973). The modified provision is codified at 47 C.F.R. § 1.773 (1973).

      . Our attention has been directed to : Black’s Law Dictionary (4th ed. 1951); Oxford English Dictionary (compact unabr. ed. 1971); Random House Dictionary of the English Language (unabr. ed. 1966); Webster, Third International Unabridged Dictionary (1961); Webster, Second International Unabridged Dictionary (1934).

      . See generally Wagner v. Shapona, 123 Cal.App.2d 451, 267 P.2d 378, 383 (1954); Ex parte Marcus, 11 Cal.App.2d 359, 53 P.2d 1021, 1022 (1936); Johnson v. Three Bays Properties # 2, Inc., 159 So.2d 924, 926 (Pla.Dist.Ct.App.1964); McGoldrick Lumber Co. v. Benewah County, 54 Idaho 704, 35 P.2d 659, 662 (1934); Morris v. The Broadview, Inc., 328 Ill.App. 267, 65 N.E.2d 605, 608 (1946); Jarman v. Collins-Hill Lumber & Coal Co., 226 Iowa 1247, 286 N.W. 526, 528 (1939); In re Independent Consolidated School Dist. No. 16, 241 Minn. 454, 63 N.W.2d 543, 545-546 (1954).

      . See Intercoastal Shipping Act of 1933, Pub.L. No. 415, § 2, 47 Stat. 1425-1426 (codified as amended at 46 U.S.C. § 844) ; Public Utility Act of 1935, Pub.L. No. 333, § 205(d), 49 Stat. 851-852 (codified at 16 U. S.C. § 824d(d)) ; Natural Gas Act, Pub.L. No. 688, § 4(d), 52 Stat. 823 (1938) (codified at 15 U.S.C. § 717c(d)); Civil Aeronautics Act of 1938, Pub.L. No. 706, § 403(c), 52 Stat. 993 (repealed 1958) ; Federal Aviation Act of 1958, Pub.L. No. 85-726, § 403(c), 72 Stat. 759 (codified at 49 U.S.C. § 1373(c)).


author: PER CURIAM:

text:
    In the Matter of BUNA PAINTING & DRYWALL CO., INC., and B & M Drywall, Inc., Bankrupts. BONJOUR, GOUGH & STONE, a professional corporation, as Trustee in Bankruptcy of Buna Painting & Drywall Co., Inc. and Irving J. Kornfield as Trustee in Bankruptcy of B & M Drywall, Inc., Petitioners-Appellants, v. PACIFIC EMPLOYERS INSURANCE CO., DIVISION OF LABOR LAW ENFORCEMENT, et al., Respondents-Ap-pellees.
    No. 73-2447.
    United States Cout of Appeals, Ninth Circuit.
    Aug. 27, 1974.

      Lynn Anderson Roller, of Kornfield & Roller, Bonjour, Gough & Stone, Oakland, Cal., Milton Maxwell Newmark, Lafayette, Cal., for petitioners-appellants.
    Frederic E. Van Dorn, San Francisco, Cal., Eugene B. Baird, Div. of Labor Law Enforcement, San Francisco, Cal., Martin Hineser, Norman Spellberg, Hi-neser, Spellberg & Murtha, Pleasant Hill, Cal., for respondents-appellees.
   OPINION

Before KOELSCH and KILKENNY, Circuit Judges, and McGOVERN, District Judge.

PER CURIAM:

The only question involved in this appeal is whether the trustees are empowered by Section 70(c) of the Bankruptcy Act, 11 U.S.C. § 110(c), to require the surety to pay into the bankruptcy estate the penal sums on the contractors’ licensing bonds. The answer is clearly “no”.

The reasoning of Betzer v. Olney, 14 Cal.App.2d 53, 57 P.2d 1376 (1936), the only case directly in point, is persuasive, and we follow it. (See In re Goldsby, 51 F.Supp. 849 (S.D.Fla.1943)). None of the many changes in what is presently § 70(c) have diminished the soundness of the conclusion there reached — that the trustee may not compel payment of the penal sums to him because the bonds are not property of the bankrupt. The bankrupt contractors here, as required by the California Business and Professions Code §§ 7071.6 and 7071.9, secured licensing bonds as a precondition to securing contractor’s licenses. Under § 7071.5, those bonds are essentially third-party beneficiary contracts, the penal sum protecting certain specified classes of people who are harmed in specified ways in dealing with the contractor. The contractor is never entitled to the penal sum — he never has a property interest in the bonds. Section 70(c) gives the trustee the position and rights of an ideal creditor over property of the bankrupt, but it does not “authorize a trustee to distribute other people’s property among a bankrupt’s creditors.” Pearlman v. Reliance Ins. Co., 371 U.S. 132, 135-136, 83 S.Ct. 232, 234, 9 L.Ed. 2d 190 (1962). See Prairie State Bank v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412 (1896); United States v. Commonwealth of Pennsylvania, Department of Highways, 349 F.Supp. 1370 (E.D.Pa.1972).

The judgment is affirmed.

       The Honorable Walter T. McGovern, United States District Judge for the Western District of AA'ashington, sitting by designation.

      . The appeal is from an order of the district court denying joint petitions for review of orders of the referee in bankruptcy.


author: JOHN W. PECK, Circuit Judge.

text:
    Rex E. JORDAN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 74-1240.
    United States Court of Appeals, Sixth Circuit.
    Argued June 5, 1974.
    Decided Sept. 24, 1974.
    Weick, Circuit Judge, dissented.
    Ralph H. Adams, Detroit, Mich., on brief, for plaintiff-appellant.
    Ralph B. Guy, Jr., U. S. Atty., Michael D. Gladstone, Asst. U. S. Atty., Detroit, Mich., on brief, for defendant-appellee.
    Before WEICK, PECK and MILLER, Circuit Judges.
   JOHN W. PECK, Circuit Judge.

This appeal was perfected from the district court’s order granting defendant-appellee’s motion to dismiss plaintiff-appellant’s malpractice claim on the grounds that it was barred by the lapse of 28 U.S.C. § 2401(b), the two year statute of limitation applicable to tort claims filed against the United States under the Federal Tort Claims Act. The sole question for consideration here is whether the district court correctly found that appellant’s claim “accrued” sometime in 1969 rather than on June 7, 1971, as he contended.

Appellant, Rex E. Jordan, is a one-eyed World War II veteran who relied on Veterans Administration facilities for all his medical needs after 1968. In November of that year, after being treated for chronic sinusitis for the previous four years by the personnel of the Allen Park, Michigan, Veterans Administration Hospital, appellant underwent nose surgery at that facility in the hope's of alleviating his sinus condition. Immediately thereafter his upper face became bruised and swollen, and his right eye was swollen shut to such an extent that it was impossible for him to see at all. Four or five days later when he was again able to see, appellant noted that there were bruised, discolored areas below both his good right eye and his artificial left one. At this time he also observed that the pupil of his right eye wandered to the right and his vision seemed to be reduced. In response to his questions about his right eye, a doctor, who was not the one who performed the operation, informed appellant, after first conducting a brief bedside examination, that the eye problems were the result of muscle damage caused by procedures required to deal with the unanticipated “severity” of his sinus condition. Shortly thereafter appellant was examined by personnel he assumed were “eye” doctors and, prior to his discharge from the hospital, he was told to return early the next year for corrective eye' surgery.

The first eye operation was performed at the Allen Park Hospital in January, 1969 and did not improve appellant’s vision. He was then informed that another operation would be necessary. During this period he prompted the Rehabilitative Service of the Veterans of Foreign Wars to make efforts to get his disability rating increased since his loss of vision in the right eye was the result of his sinus operation. Appellant was operated on again in February, 1969, but this operation was also unsuccessful. He was then told to return to the Hospital every three months for eye examinations.

In the following months appellant’s eyesight grew progressively worse. During this period he was examined by the Post Office medical officer, a Dr. Blough, who indicated that in his opinion appellant was no longer fit to work due to his reduced sight. Finally, in February, 1970, appellant was forced to retire from his job with the Post Office because his eyesight had become so poor.

Appellant continued to return to the VA hospital for treatment of his sinus condition and for his eye examinations. On June 7, 1971, during one of these tri-monthly eye examinations, appellant was told by the examining doctor that such visits were no longer necessary as there was nothing more they could do for the eye, and that it was “too bad they screwed up your eye when they operated on your nose.” Appellant then retained a lawyer and on June 1, 1972, a formal claim was filed on his behalf with the Veterans Administration. This claim was denied on October 20, 1972, and four days later this suit was initiated. Appellee then moved to dismiss appellant’s complaint on the ground that the statute of limitations had run, and the district court ordered a hearing on the issue.

At this hearing, appellant, who was the only witness called by either party, testified that prior to June 7, 1971, he had no idea that his eye problem could have been caused by an act of malpractice committed during the November, 1968 surgery. On cross-examination, he admitted that he had been told that the “severity” of the nose operation led to the eye injury. He also admitted that the signature on a Report of Medical Examination for Disability Evaluation was his, but denied any recognition of the form, or of the handwriting comprising the body of the Report, and testified further that the VFW representative had his medical records and “took care of that [his correspondence in this matter] for me.” Counsel for appellee then offered into evidence a letter dated March 10, 1970, which had been submitted to the VA by the VFW on appellant’s behalf, and, after it was received, he read the following paragraph:

“Further, we would like to bring to your attention that your rating action, dated August 20, 1969, failed to answer the question presented in our letter of February 24, 1969. If you will note, this service had contended that the veteran’s right eye condition was directly due to the operation for his service connected chronic sinusitis. This letter was supported by a medical statement from Glen A. Brough, M.D., which showed, ‘There is considerable hemorrhage about the inter aspect of the right eye which is completely out of balance and points to the outer side.’ In addition, this report also contended that this condition was of such a severe nature, the vereran was unfit for duty.”

Thereafter the hearing was terminated. Subsequently the district court found that appellant’s claim accrued at some unspecified time in 1969, and granted appellee’s motion to dismiss. This appeal followed.

In medical malpractice actions brought against the United States under the Federal Tort Claims Act, it is well established that federal law governs when a “claim accrues” under 28 U.S.C. § 2401(b) for the purpose of fixing the point at which the two year limitation period begins to run against a claimant. See Ytreberg, State or Federal Law as Controlling When Cause of Action Accrues or Statute of Limitations Begins to Run under the Federal Tort Claims Act, 7 A.L.R.3d § 2 at 734 (1966). The test applied in making this determination is that the “claim accrues” against the government, and consequently the statute begins to run “when the claimant discovered, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice.” Hungerford v. United States, 307 F.2d 99, 102 (9th Cir. 1962); Quinton v. United States, 304 F.2d 234, 240 (5th Cir. 1962). Implicit in the federal cases applying this “discovery” rule is the requirement that the claimant must have received some information, either by virtue of acts he has witnessed or something he has heard, or a combination of both, which should indicate to him, when reasonably interpreted in light of all the circumstances, that his injury was the result of an act which could constitute malpractice. Toal v. United States, 438 F.2d 222 (2d Cir. 1971); Ashley v. United States, 413 F.2d 490 (9th Cir. 1969); Kossick v. United States, 330 F.2d 933 (2d Cir. 1964); Hungerford v. United States, supra; Quinton v. United States, supra; Johnson v. United States, 271 F.Supp. 205 (W.D.Ark.1967); Bizer v. United States, 124 F.Supp. 949 (N.D.Cal.1954). Thus the specific question confronted by the district court in this case was when did this claimant receive sufficient information to be chargeable with the knowledge that the acts which damaged his eye muscles could constitute malpractice. Unless it is “clearly erroneous,” the district court’s answer must be affirmed. Fed.R.Civ.P. 5$(a).

The district court concluded, and the government argued here, that particularly after the two unsuccessful eye operations in 1969 and the consequences resulting thereafter from the continuing loss of sight, “there came knowledge of facts sufficient to alert a reasonable person that there may have been negligence . . . .” Jordan v. United States, Civil Action No. 39100 (E.D.Mich., filed September 28, 1973), citing Brown v. United States, 353 F.2d 578, 580 (9th Cir. 1965). Thus they reasoned that appellant should have been “alerted” in 1969, and the subsequent delay in commencing his action was due to his lack of reasonable diligence. Initially we note that we are not persuaded that the standard quoted above is an accurate substitute for the generally accepted test. However, we need not decide this question here since a thorough review of the record has convinced us that the district court’s finding that appellant’s claim accrued sometime in 1969 would be “clearly erroneous” under either version of the test.

As previously indicated, appellant was the only witness to testify before the district court. His credibility was not questioned at all during the proceedings, nor do we think his testimony was effectively rebutted by the government’s evidence. Aside from confirming the fact that the VFW was attempting to get appellant’s disability rating increased, the March 10 letter submitted by appellee established Dr. Blough’s diagnosis of the condition of appellant’s eye and the VFW’s opinion that the loss of vision was “directly due” to the sinus operation. In view of appellant’s denial of any recognition of the form or substance of the Report of Medical Examination for Disability Evaluation and his statements to the effect that the VFW had his medical records and took care of his correspondence for him, it is unclear whether appellant was aware of the contents of this letter. But, even assuming he was aware, the effect of his testimony is not reduced since there is nothing inherent in the letter which would indicate that the eye injury was the result of an act of malpractice, or that appellant perceived such to be the case. See Toal v. United States, 438 F.2d 222, 224 (2d Cir. 1971). The question remains whether appellant should have been aware, in the exercise of reasonable diligence, that his injury could be the result of a tortious act committed by a physician.

Although the evidence contained in the record established that appellant was aware that muscle damage sustained during his 1968 sinus operation led to his loss of sight, it failed to show that this appellant, in the exercise of reasonable diligence, should have been aware that the muscle damage may have been the result of the improper performance of his sinus operation. Contrary to the characterization of the district court and the government, neither the unsuccessful eye operations nor the other events established by the record signified that anything had been done incorrectly in November, 1968. They indicated only that appellant’s injury was causing his loss of vision and was apparently permanent, but not that it was the result of malpractice. Moreover, these developments were not inconsistent with appellant’s belief that the loss of his vision was the inevitable consequence of the proper procedures used by the doctors to treat his “severe” sinus condition during the November, 1968 operation. Thus they provided no clue that his belief, though based on a VA doctor’s response to his questions, might be incorrect.

Admittedly the eye injury which developed after the sinus operation was “unusual and . unexpected,” Brown v. United States, 353 F.2d 578, 580 (9th Cir. 1965), and required some investigation. However, it is undisputed that shortly after discovering the symptoms appellant investigated their cause and received what he considered to be a credible explanation. In addition, the record reveals no evidence which indicates that appellant ever witnessed anything prior to June 7, 1971, which should have led him to believe that the explanation he had received was not totally accurate or that he was the unfortunate victim of an act of malpractice. In this situation we do not believe that it can be said that appellant failed to exercise reasonable diligence. While no reliance is placed on this additional circumstance, it is observed that this determination is not inconsistent with the recognized fact that an individual receiving medical assistance from such an agency is in a substantially different position than that of a patient being ministered to by a private physician, and faces even greater obstacles in attempting to determine any untoward aspect of the treatment administered.

Taken as a whole the facts established by the evidence in the record not only fail to show a lack of reasonable diligence, but also fail to show that, prior to June, 1971, appellant was sufficiently acquainted with the exact nature of his disability and its relationship to the proper performance of his sinus operation, Brown v. United States, supra, to enable him to draw the conclusion that the acts which damaged his eye muscles could constitute malpractice. In short, prior to the VA doctor’s statement on June 7, 1971, there is nothing in the record which would give appellant any reason to believe that the acts performed during the 1968 operation which caused his loss of vision may have been improperly done. Affirmance of the district court’s decision under these circumstances would perpetrate an injustice similar to the one sought to be corrected by the adoption of the so-called “discovery” rule in the federal and state courts since appellant’s claim would be barred prior to the time when he had any reasonable cause to believe that the acts which caused his injury were wrongful. See, e. g., Quinton v. United States, supra, 304 F.2d at 240; Lund-berg v. Bay View Hospital, 175 Ohio St. 2d 133, 137, 191 N.E.2d 821, 824 (1963).

The district court’s decision is reversed, and the case is remanded for further proceedings not inconsistent herewith.

WEICK, Circuit Judge, dissents.

      . 28 U.S.C. § 2401. Time for commencing action against United States.
      “(b) A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.”

      . According to the record appellant lost his left eye as a result of a hand grenade injury sustained in Italy in 1944.

      . Memorandum Opinion on Motion to Dismiss, Jordan v. United States, Civil Action No. 39100 (E.D.Mich., filed April 17, 1973).

      . After these responses, counsel for the government did not offer the Report as evidence, nor does it appear anywhere in the record before us.

      . Jordan v. United States, Civil Action No. 39100 (E.D.Mich., filed September 28, 1973).

      . The record reveals that in addition to the documents noted above several other documents concerning appellant, which were in the possession of appellee, were submitted to the district court appended to appellee’s Memorandum of Law in Response to Plaintiff’s Memorandum of Law in opposition to the Government’s Motion to Dismiss. Except for the following excerpt from a Xeu-ropsychiatric Examination dated July 23, 1969, the documents were not cited by the district court, nor were they made a part of the record before us:
      “[H]e states that during the surgery they injured his right eye causing a deviation and decreasing vision. . . . He was employed at the U. S. Post Office as a mail handler and was told not to come back because of decreasing vision. He also states his eye hurts and although he drives a car he knows it is very dangerous because he doesn’t see well, Since his recent eye difficulties he has become increasingly nervous and worried about his financial future and security.”
      We are of the opinion that the reasoning stated above concerning the March 10 letter would also have been applicable to the excerpt quoted above had it been properly before the districi court.