author: JOHN R. BROWN, Chief Judge:

text:
    GULF OIL CORPORATION, as owner pro hac vice, of the STEAMSHIP GULFSPRAY, Plaintiff-Appellant-Cross Appellee, v. PANAMA CANAL COMPANY, Defendant-Appellee-Cross Appellant.
    No. 72-2074.
    United States Court of Appeals, Fifth Circuit.
    June 29, 1973.

      Joseph C. Smith, New York City, David De C. Robles, Balboa, Canal Zone, for appellant.
    Dwight A. McKabney, John L. Haines, Jr., Balboa Heights, Canal Zone, for appellee.
    Before JOHN R. BROWN, Chief Judge, and THORNBERRY and MORGAN, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

Proving again that mortals die but some cases never do, see Brothers Inc. v. W. E. Grace Manufacturing Co., 5 Cir., 1963, 320 F.2d 594, 597-598, this run-of-the-mill maritime allision, see Andros Shipping Co. v. Panama Canal Co., 5 Cir., 1962, 298 F.2d 720, 725, has gone from Gulf spray I to Gulf spray II and hopefully will end with this as Gulf spray III?

What and all that is now involved is the issue of recoverable damages. That none but one of the questioned items would merit any more discussion than a single-worded Rule 21 opinion highlights the fact that for the first time in 59 years the 1914 regulations culminating in § 293 of the Canal Zone Code are the subject of judicial decision. Not until this case did Judge Crowe, in his two decades on the Canal Zone bench, ever consider it or for that matter apparently ever have to pass on a collision damage claim. But thereby in part hangs this tale. For unlike a private non-governmental tortfeasor whose settled “practice” in adjusting damage item claims would scarcely impress an adversary, Canal Company insists that in these six decades it has developed settled practices which, emanating from a sovereign’s bosom, somehow have the force of the law of the Medes and Persians which altereth not, and certainly not in favor of allowing a disputed item.

Dollarwise the big items, both in principle and principal, are pre-judgment interest and the temporal duration of the detention period beyond the actual time of making repairs on which the Court in a Solomonic way, The Noah’s Ark v. Bentley & Felton Corp., 5 Cir., 1961, 292 F.2d 437, 438, 1961 A.M.C. 1641, 1642, held both for shipowner and Canal Company by disallowing the former and allowing the latter. Neither party is satisfied and both appeal. We hold that he was half right, half wrong. See Commercial Trading Co., Inc. v. Hartford Fire Insurance Co., 5 Cir., 1972, 466 F.2d 1239, 1241, 1972 A.M.C. 2495, 2496.

In The Beginning

The incident, long ago held in Gulf-spray I, to give rise to a claim against Canal Company and determined in Gulf-spray II to have been the fault of Canal Company, still has some relevance.

On April 2, 1966, the S/S GULF-SPRAY, conned by Canal Company pilots left the Port of Cristobal for a southbound transit through the Canal anchoring in Balboa Harbor that evening. After shifting to a bunkering dock at Balboa she departed in the early hours of April 3, 1966. Shortly after entering the Canal bound for the Pacific terminal it was discovered that a 15-20° right rudder was required to maintain the channel course. After departing the sea buoy at 0512 hours the vessel continued to take a 15-20° right rudder. Her master determined to return to Canal Zone waters for underwater inspection which he did at about 1218 hours. On April 4, a Canal Company diver determined that the rudder was in a position 22 inches off center to the left when the rudder indicators were in an amidships position.

In view of this information as to the extent of her damage, it was decided that the GULFSPRAY should deviate from her voyage to Yokahoma and proceed directly to San Pedro, California, to make repairs. It was necessary to discharge her cargo of jet fuel at San Pedro.

Counting the time from putting back into the Canal Zone, survey and inspection there, steaming time to San Pedro, time required for surveys, inspections, discharging, reloading of the vessel, and making repairs, the District Court, 335 F.Supp. 406, found that a total of 11 days was lost and detention claim items were computed on that basis.

Canal Company asserted unsuccessfully that detention and related expenses should be confined to the four days actually used in making the repairs in the shipyard at San Pedro. But the Judge under compulsion of the Canal Zone Code did disallow pre-judgment interest.

The Ebb And Flow of Sovereign Immunity

As Gulfspray I develops, the change in the political and industrial structures of Panama Canal operations brought about a marked relaxation in sovereign immunity and a like extension of the waiver. In 1914, Congress ordained the promulgation of regulations to permit the acceptance and payment of claims for vessel damage in the locks (now 2 C.Z.C. § 291). In the major restructuring of the Panama Canal operations in 1950, Congress for the first time prescribed a like liability for injuries outside the locks. By § 292 of the Canal Zone Code, in its post-1950 form, Congress imposed on Canal Company the obligation to “promptly adjust and pay damages”. Undoubtedly because of the international character of these waters and the likelihood that the great majority of the claims would be asserted either by foreign governments or their nationals for damage to men of war or privately owned merchantmen, the approach was an affirmative one, rather than the traditional negatively framed waiver of sovereign immunity.

In this structure it was therefore appropriate that — to use a term coined much later in the 20th Century — guidelines were ordained for the settlement of such claims. The heart of our problem is found in § 293 of the 1963 recodification which in its current form is virtually a codification of regulations originating in 1914 as issued by the Governor of the Canal Zone, later executive orders of the President and finally legislation enacted by Congress in 1950. But, of course, this was backed up in § 296 by the traditional language which allowed suit to a claimant “who considers himself aggrieved by the findings, determinations, or award . . .’’of Canal Company.

We Never Have — So Why Pay Now?

With respect to each of the ten items allowed over Canal Company’s objection and the disallowed prejudgment interest, Canal Company through claims managers, auditors, examiners, both present and past, sought to establish that these types of claims had never been allowed. They were rejected for GULFSPRAY since the pattern of rejection had been consistent and no one had ever challenged it in Court although § 296 (note 10, supra) opened up an available and physically/geographically contiguous courthouse door. The Judge credited this testimony. But he pointed out that these witnesses “. . . quoted entirely from memory relative to the criteria that has been established throughout the years in settling claims of the nature herein, and no manual or well-defined rules for the interpretation of the statute were ever presented . . .” in Court.

The Judge summed it up in this pithy way. “The witnesses took refuge in the fact that it had just never been done any other way and that they had learned the method of settlement from their predecessors.” The Judge then overruled Canal Company’s objection to the ten items because the “. . . decisions [by Canal Company] were arbitrary and based upon interpretations . . .” which the Judge regarded as outmoded and not in line with the interpretation which, he thought, called for “an equitable approach . with a view toward attaining justice for a damaged litigant . in harmony with the rest of the Code which did not become effective until 1962.” In reaching this conclusion one thing emphasized by the Judge was that Canal Company in the past had been in a position to be quite arbitrary because of the limited opportunity for redress on the part of claimants.

On the Judge’s crediting the historical practice followed in denying claims of these fifteen items, Canal Company insists that, as with any governmental administrative agency, these time honored consistent practices must be accepted by a Court entertaining a suit bottomed on dissatisfaction with such administrative rulings under § 296 (see note 10, supra). To sustain this they stress a number of cases in which courts have held that an established administrative construction of a statute should be observed.

And they particularly stress those which indicate that these principles have particular force where there has been acquiescence by the public in a governmental agency’s interpretation of a law. FTC v. Mandel Bros., 1959, 359 U.S. 385, 391, 79 S.Ct. 818, 823, 3 L.Ed.2d 893, 898. We have, of course, accorded great significance to an administrative agency’s interpretation of its own organic law and the existence of circumstances calling for the exercise of its powers even to the point of its determining initially its own jurisdiction.

Prior. Rejections — How Significant?

Although in a claims-pay-waiver structure of this kind we think the considered practice in the administration of the act is a factor to be taken into account by the Court in a § 296 suit protesting the administrative handling by the Canal Company, we do not believe that this measures up to the significance accorded determinations by congressionally established administrative agencies (see note 12 and related text, supra). Apart from § 293 and its regulatory executive order predecessors (see note 9, supra) which specify allowable and non-allowable items, there is nothing in the administrative machinery which either calls for or provides a set of more or less formalized standards to govern the handling of a particular claim, and more significantly, individual items by the nature of the claim. One of the reasons why a consistent administrative interpretation or practice is of significance is that by its conduct the agency under review has made it known to the public dealing with it that these are the standards which will be and are employed. This gives a sort of fair notice so that those who are aggrieved by such practices can at least see that until challenged and overturned by Judicial review, if available, or by congressional action, the agency action will be taken on such standards. But to accord such significance to the routine day-by-day handling of individual cases with no apparent publication of the practices or results to persons other than those immediately concerned introduces the element of non-disclosure except at the point of decision — a result which stresses our notions of fairness and fundamental due process. Hill v. FPC, 5 Cir., 1964, 335 F.2d 355.

So far as we know, except perhaps for those parties who have dealt with Canal Company over the years in the administrative settlement of collision claims, the first time this so-called uniform practice ever saw the light of day was in the trial below when, also for the first time in the career of this distinguished trial Judge the Court was asked to put a judicial imprimatur on this practice. With a wisdom which must readily accord to him as great an understanding of Canal Zone law as we would attribute to a United States District Judge with respect to his own state, Judge Crowe emphasized in his own way the change in climate. The climate began by Canal Company being “in a position to be quite arbitrary because of . the limited opportunity for redress on the part of claimants. . .”. But it was seriously affected, according to Judge Crowe, by the codification of § 293 which requires “an equitable approach . with a view toward obtaining justice for a damaged litigant . in harmony with the rest of the Code.”

Part of the change of climate has come about by virtue of Gulfspray I. The fact that none of these socalled administrative determinations of individual damage items have ever gotten to Court has little significance and certainly not enough to infuse into the undisclosed standards of conscientious claims examiners the fiat of law. Acquiescence by these undisclosed numbers of claimants in these 60 years may, it is true, be counted as a sense of complete satisfaction on the part of claimants. On the other hand, it may have been the result of despair in surveying the likely travail of pursuing the sovereign with all of its resources to the point, as this case reflects, of three trials in the District Court and three trips to the Fifth Circuit on the mainland.

We therefore conclude that the administrative claims handling practice is a factor to be considered on presentation of damage items for Judicial determination. But they really bear upon reasonableness of the interpretation of the underlying Codal provisions (§ 293) and the objectives sought by that structure. The Court, as it would to an Elder Brethren of Trinity House or the Board of Local Inspectors in the Canal Zone, see Afran Transport Co. v. S/S Transcolorado, 5 Cir., 1972, 458 F.2d 164, 170-171, 1972 A.M.C. 1149, should give careful consideration to the claims analysis but it would be a mistake to frame this in terms of a presumption, procedural or substantive, that the rejection stands unless the claimant proves to the contrary.

Maritime For The Maritime

We think each of the items specifically under review here are readily solved by reaching a basic conclusion on the purpose which Congress finally had in mind in its 1950 énactment. On that we conclude that although some of the literal terms would sustain a different reading, Congress must have meant that, except for a few very rare situations, it was establishing, by a code, a recovery of damages substantially parallel to that accorded by the general maritime law, and certainly that of England and the United States.

Although in its 1914 inception this was at once both a bold and niggardly abandonment of the king-can-do-no-wrong for lock damage, much water had flowed through the juridical locks by the time Congress codified the regulations in 1950. By this time the Public Vessels Act and the Suits In Admiralty Act had been on the books and working effectively to expose the United States to the full liability of a private shipowner, see note 7, supra. And by the Federal Torts Claims Act, Congress in 1949 exposed the Government to almost unlimited claims having an origin in the laws of any of the fifty states.

Indeed, the enactment of § 292 (see note 6, supra) in the 1950 Act shows that Congress deliberately broke away from the past. Up to that time this self-imposed liability to adjust and pay claims was confined to damage done in the locks. Experience had proved that important as this was, it gave protection to vessel owners and others only to a very limited degree both temporally and geographically. Even more significant, the 1950 enactment was a part of a radical structural change in which the political and the industrial-business operations of the Canal Zone were sharply separated. Gulfspray I: 407 F.2d at 29, 1969 A.M.C. at 8-9. See also United States v. Husband R. (Roach), 5 Cir., 1971, 453 F.2d 1054. In divorcing the industrial-business activity from the political government of the area, what more logical thing was there to do than provide a system by which the government was held accountable for consequences of its business activities on a substantial parity with that already established for the mainland or on the high seas ? (See note 7, supra).

In this setting which markedly extended the nature of the Government’s activities and the liabilities it was willing to take on as a vicarious industrial operator, the fact that the congressional enactment used words — or used some of the same words — that had for 35 years reflected a more niggardly approach does not tie the law to an interpretation of those words or phrases fit for the past but now wholly out of keeping with the present.

For damage arising out of the operation of the Canal the objective was to subject the Government to the liabilities of a private person. The substantive standard for maritime cases is unquestionably the general maritime law subject only to specific regulations of the Canal Zone. See Afran Transport Co. v. S/S Transcolorado, 5 Cir., 1972, 458 F.2d 164, and 468 F.2d 772 (on rehearing). There is no reason to suspect that Congress, familiar for a third of a century in dealing with governmental liabilities in relation to ships, thought that damages were to be determined on any other basis except with respect to a few isolated specifies.

Indeed, reading § 293 (see note 8, supra) one might conclude that it came right out of a hornbook on admiralty. Except for “Agents’ fees or commissions, or other incidental expenses of similar character . . . ” every other item enumerated in subparagraphs (1) through (4) and the concluding unnumbered paragraph track the maritime law. These include (1) actual or estimated costs of repairs plus (4) all other expenses shown to have been incurred necessarily by reason of the accident or the injuries. This would include the cost of tugs, pilotage, dockage, entry and clearance in seeking the port of refuge, entering or leaving the port of repairs, the cost of going in or out of shipyards, etc. The detention claim — which covers the value of the loss of use to the shipowner during the time his vessel is out of commission because of the casualty — is minutely covered by reference to (2) charter hire or if not chartered the going charter hire in the market for that trade and vessel (see unnumbered last paragraph) plus- (3) wages and victualling of crew during the lay-up period.

Since it is true that “agents’ fees or commissions or other incidental expenses of similar character” are frequently allowable under general maritime principles § 293 does — for this type of claim —prescribe a different standard. But the exclusion in the last unnumbered paragraph of “any items which are indefinite, indeterminable, speculative, or conjectural” tracks the maritime law precisely.

Except for these very insignificant little items, what § 293 seeks to achieve is what the maritime law seeks to achieve. The principle is broadly symbolized — restitutio in integrum. Ove Skou v. United States, 5 Cir., 1973, 478 F.2d 343, A.M.C. [1973]. And broadly translated and broadly applied it means to make good the total losses suffered by the shipowner for the casualty inflicted by the fault of another. Such losses are not confined to out-of-pocket expenses such as repair bills. They include the loss of the use of the vessel. With this approach the peculiar words of § 293 are not to be given a construction which ignores the goal of making the victim whole.

Pre-Judgment Interest

As anyone would know whoever fingered a single volume of Benedict on Admiralty or thumbed through the leaves of Black and Gilmore, pre-judgment interest in a sole fault collision ease has always been allowed by the maritime law. The Baltimore, 1869, 75 U.S. (8 Wall.) 377, 385, 19 L.Ed. 463, 465. Interest is treated as a part of the loss itself and not just for the delay in payment of the decree. Judge Crowe recognized this but with another application of the curious reverse principle that the result must be so right because it is so wrong, see Gulf spray 1: 407 F.2d at 26 & n. 3, 1969 A.M.C. at 4, he felt compelled to hold that the only way to recover interest was under paragraph (4) as an expense “ . . . definitely and accurately shown to have been incurred necessarily and by reason of the accident or injuries”. He tied “expenses” and “incurred” together to find the necessity for an out-of-pocket disbursement for interest as such.

But this is out of keeping with the general approach. Subject only to demonstrating “definitely and accurately” that the casualty has resulted in injurious consequences to a shipowner, it is “expense” whether it is paid out in cash or is, in a direct operational sense, the economic disadvantage suffered as a result of the casualty. No difficulty is presented by “incurred” since a victim may incur an out-of-pocket expense, a loss without an out-of-pocket disbursement, or both.

To disallow pre-judgment interest in the setting of a scheme to allow substantially the same recovery as under the general maritime law is all the more incongruous since, in the Canal Zone Code, at least seven sections provide for interest.

Canal Company, of course, points to § 296 which provides that in any suit following an unsuccessful or unsatisfactory effort to settle, the provisions of § 293 “relative to the determination, adjustment or payment and payment of claims . . . shall apply” and also the concluding portion which states that the sovereign immunity waiver extends to suits under § 296 and “not . . . otherwise”. But we do not base allowance of pre-judgment interest on § 4651 as a statutory ground imported into the structure for claims under § 291 or § 292. Rather, these consistent provisions by Congress in parallel — if not contemporaneous — legislation recognizing the allowance of interest in practically every eustomáry situation is a strong indicator that Congress could not have had the unrealistic approach on confining the allowance of traditional pre-judgment interest to the necessity of the victim showing, as the District Judge held, not only the loss of the use of his money expended for such items as repair bills, but, in addition, some character of a loan or a similar credit device for all or a portion of those expenditures and an express agreement to pay interest thereon.

Pre-judgment interest should have been allowed.

Duration of Detention and Consequential Damages

Items 1 & 22: As pointed out above the vessel was out of commission for a total of eleven days as a direct consequence of the rudder damage. The District Court allowed this in full both for the loss of charter hire payable and direct out-of-pocket expenses, increased wages, victualling costs and the like. Canal Company asserts that under § 293, ¶[¶[ (2) and (3) only 4/11 are allowable “for the time the vessel is undergoing repairs,” since repairs as such took only 4 days.

Again this is at odds with the goal of substantial parity with general maritime principles and particularly the care with which detention claims are provided for in § 293, ¶¶ (2), (3) and the last unnumbered paragraph which refers generally to “the value of the use of the vessel to its owners in the business in which it was engaged at the time of the injuries shall be used as a basis for estimating the damages for the vessel's detention . 1 Whatever doubt there might be on that score is eliminated by § 293, If (4). Because for a vessel such as the GULFSPRAY, then under charter, the payment of charter hire during the full 11 day period was an “expense” shown to have “been incurred necessarily and by reason of the accident

Items 2, 3, U & 5: These were expenses for harbor pilotage, launch service, tugs, diver’s inspection and wharfage incurred when the vessel returned to the Canal Zone to investigate her rudder damage. These items were disallowed for the curious reason that they were incurred “for the convenience of the vessel owner to find out what his damages were and to prove his claim” and, of course, the general thesis that such claims had never been made before.

For at least two reasons these claims, as the District Court found, fully meet § 293, ]] (4) as expenses necessarily incurred.

First, with the vessel acting up as she did after leaving Balboa which continued on after she got to sea, the only prudent thing for the master to do was to put back to determine the nature and extent of the damage and whether the vessel could safely proceed to another port for repairs. Failure to have taken such action had something serious thereafter occurred would have opened the master and shipowner to the charge of imprudent action to shift on to shipowner the full burden of such “avoidable consequences”. See Southport Transit Co. v. Avondale Marine Ways, 5 Cir., 1956, 234 F.2d 947, 1956 A.M.C. 1498.

Second, had the ship not put back into the Canal Zone their owner may well have lost its entire $110,000.00 claim for failure to comply with the regulation requiring notice, Gulf spray I.

Items 12 & 20: These were travel expenses of three regular employees of Gulf, two for transporting a rudder stock from Pennsylvania to California and another for travel of a Marine inspector from Port Arthur, Texas to California to oversee the repairs. Except for Canal Company’s traditional disallowance on some basis either undisclosed or undecipherable, there is not the slightest suggestion why these travel expenses (not wages) of shipowner’s regular employees were not “necessarily” incurred by reason of the accident.

Item 18: This is for the second marine survey performed at shipowner’s request. This item was disallowed because it covered the cost of marine survey in addition to the one had on behalf of the classification society (American Bureau Shipping) on the traditional ground that they would only allow one surveyor fee. This is a matter of prudence and there are other interests that need to be protected besides that of the underwriters or the continuation of insurance, not the least of which will be that of the shipowner for its exposure to losses and risks that might not be covered by the hull policy.

The upshot is that the Judge was right in allowing the disputed items, but wrong in disallowing pre-judgment interest. Lest this case get more barnacles as it winds its way to and from New Orleans and the Canal Zone we think, as in Noah’s Ark, supra, we should modify the decree to award such interest and bring it to an end.

Affirmed in part, modified in part and as modified, affirmed.

      . The observation was first made by Mr. Justice Story in Ocean Ins. Co. v. Fields, 18 Fed.Cas. 532. We have found it a propos on several occasions. Brown & Root, Inc. v. American Home Assurance Co., 5 Cir., 1965, 353 F.2d 113, 119; 1965 A.M.C. 2689; Oil Screw Noah’s Ark v. Bentley & Felton Corp., 5 Cir., 1963, 322 F.2d 3, 10, 1964 A.M.C. 59, 67.

      . Gulf spray I: Gulf Oil Corp. v. Panama Canal Co., 5 Cir., 1969, 407 F.2d 24, 1969 A.M.C. 1, reversing, D.C.Z., 196, 269 F. Supp. 793; Gulf spray II: 5 Cir., 1970, 311 F.Supp. 1307.

      . See NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F. 2d 966.

      . Canal Company’s cross appeal attacks the trial court’s allowance of ten out of fifteen items rejected wholly or partially in the administrative handling of the claim by Canal Company. The Court sustained Canal Company’s rejection of five items and except for prejudgment interest shipowner acquiesces.

      . On return to the Canal Zone on April 3, a request for investigation by the Board of Local Inspectors was made although none had been made prior to departure earlier that day. In Gulfspray I, reversing the District Judge, we held that this immediate request for inspection satisfied the provisions of 2 Canal Zone Code § 297 requiring notice of a damage claim and request for inspection before departure.
      § 297. Investigation of accident or injury giving rise to claim
      Notwithstanding any other law, a claim may not be considered under this subchapter, or an action for damages lie thereon, unless, prior to the departure from Canal Zone waters of the vessel involved:
      (1) the investigation by the competent authorities of the accident or injury giving rise to the claim has been completed; and
      (2) the basis for the claim has been laid before the Panama Canal Company.
      2 C.Z.C. § 297, 76A Stat. 25.

      . 2 C.Z.O. § 292 provides as follows:
      § 292. Injuries outside locks The Panama Canal Company shall promptly adjust and pay damages for injuries to vessels, or to the cargo, crew, or passengers of vessels which may arise by reason of their presence in the waters of the Canal Zone, other than the locks, when the injury was proximately caused by negligence or fault on the part of an officer or employee of the Company acting within the scope of his employment and in the line of his duties in connection with the operation of the canal. If the negligence or fault of the vessel, master, crew, or passengers proximately contributed to the injury, the award of damages shall be diminished in proportion to the negligence or fault attributable to the vessel, master, crew or passengers. * * *
      76A Stat. 23.

      . Compare Suits in Admiralty Act, 46 U. S.C.A. § 742; Public Vessels Act, 46 U.S.C.A. § 781; and Federal Torts Claims Act, 28 U.S.C.A. §§ 1346(b), 2674 which speak in terms of the government being liable, not in terms of an affirmative obligation to adjust and pay. For a discussion of the interrelationship of these acts see DeBardeleben Marine Corp. v. United States, 5 Cir., 1971, 451 F.2d 140.

      . § 293. Measure of damages generally
      In determining the amount of the award of damages for injuries to a vessel for which the Panama Canal Company is determined to be liable, there may be included:
      (1) actual or estimated cost of repairs ;
      (2) charter hire actually lost by the owners, or charter hire actually paid, depending upon the terms of the charter party, for the time the vessel is undergoing repairs;
      (3) maintenance of the vessel and wages of the crew, if they are found to be actual additional expenses or losses incurred outside of the charter hire; and
      (4) other expenses which are definitely and accurately shown to have been incurred necessarily and by reason of the accident or injuries.
      Agent’s fees, or commissions, or other incidental expenses of similar character, or any items which are indefinite, indeterminable, speculative, or conjectural may not be allowed. The Panama Canal Company shall be furnished such vouchers, receipts, or other evidence as may be necessary in support of any item of a claim. If a vessel is not operated under charter but by the owner directly, evidence shall be secured if available as to the sum for which vessels of the same size and class can be chartered in the market. If the charter value can not be determined, the value of the use of the vessel to its owners in the business in which it was engaged at the time of the injuries shall be used as a basis for estimating the damages for the vessel’s detention; and the books of the owners showing the vessel’s earnings about the time of the accident or injuries shall be considered as evidence of probable earnings during the time of detention. If the books are unavailable, such other evidence shall be furnished as may be necessary.
      2 C.Z.C. § 293, 76A Stat. 23.

      . Canal Companys brief reflects this history:
      Section 293 appears in title 2, Canal Zone Code, 76A Stat. 23. The present Code took effect January 2, 1963, and is a reenactment of the 1934 Code, as amended, that had superseded the general laws and special acts of the United States that made up the law of the Canal Zone during the period from 1904 until 1934. The enumeration of classes of damages payable by the Government in vessel accident claims was first set out in regulations having the force and effect of law, and later in a law, in substantially the same terms that appear in the present section 293.
      By Act of August 24, 1912, Congress provided that regulations should issue allowing prompt adjustment by agreement and immediate payment, of claims for damages arising from the passing of vessels through the locks of the Canal. § 5, 37 Stat. 562. The President of the United States in Executive Order 1990, July 9, 1914, authorized the Governor of The Panama Canal to issue rules governing the adjustment of claims and to approve settlements with shipowners. Pursuant to that order, Governor Harding on July 11, 1918, issued Governor’s Circular No. 720 containing the claims rules.
      Circular No. 720 remained in effect until January 1, 1924, when it was superseded by Executive Order 3938, dated December 20, 1923, which stated, verbatim, the six numbered paragraphs of Governor Harding’s 1918 circular. Those measure-of-damage provisions remained in effect until September 25, 1925 when they were superseded by Rule 94 that was contained in Executive Order 4314. Rule 94 remained in effect until it was reissued and renumbered as Rule 95 by Executive Order 9227 on August 19, 1942.
      As one of several amendments to the Canal Zone Code that were made by the Act of September 26, 1950 (effective July 1, 1951), Congress took the presidential regulations under Rule 95 and enacted them as § 10(c) of title 2 of the 1934 Code. Section 10(c) remained in effect until it was reenacted as section 293 in the present Code.

      . Section 296 provides in relevant part: § 296. Actions on claims
      A claimant for damages pursuant to section 291 or 292 of this title who considers himself aggrieved by the findings, determination, or award of the Panama Canal Company in reference to his claim may bring an action on the claim against the Company in the United States District Court for the District of the Canal Zone. In the action, the provisions of this subchapter, relative to the determination, adjustment, and payment of claims, . . . shall apply. An action for damages cognizable under this section shall not lie against the Company, otherwise, nor in any other court, than as provided in this section; nor may it lie against any officer or employee of the Company.
      2 C.Z.C. § 296, 76A Stat. 24.

      . There is an oblique reference to written directives, presumably within the claims division, but what their form is, how authorative, how precise, and whether routinely available to the public are matters completely undisclosed.

      . The Canal Company emphasizes Brown v. United States, 1884, 113 U.S. 568, 5 S.Ct. 648, 28 L.Ed. 1079; Unemployment Compensation Commission of Alaska v. Aragan, 1946, 329 U.S. 143, 153-154, 67 S.Ct. 245, 91 L.Ed. 136, 145; NLRB v. Hearst Publications, 1944, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170; Udall v. Tallman, 1965, 380 U.S. 1, 18, 85 S.Ct. 792, 13 L.Ed.2d 616, 626.

      . See J. M. Huber Corp. v. Denman, 5 Cir., 1966, 367 F.2d 104, and Weymouth v. Colorado Interstate Gas Co., 5 Cir., 1966, 367 F.2d 84, where we referred to FPC’s primary jurisdiction the issue of whether gas royalties are “sales of gas for resale in interstate commerce.” FPC answered affirmatively, thereby subjecting the royalties to FPC administrative ceilings. In Mobil Oil Corp. v. FPC, 1972, 149 U.S.App.D.C. 310, 463 F.2d 256, cert. denied sub. nom., 1972, 406 U.S. 976, 92 S.Ct. 2409, 32 L.Ed.2d 676, reversed. See also International Paper Co. v. FPC, 5 Cir., 1973, 476 F.2d 121 [1973] (Brown, C. J., concurring) ; United States v. Moretti, 5 Cir., 1973, 478 F.2d 418 [1973] ; Carter v. AT&T, 5 Cir., 1966, 365 F.24 486.

      . See Bernhardt v. Polygraphic Co., 1956, 350 U.S. 198, 204, 76 S.Ct. 273, 100 L. Ed. 199, 206; Tardan v. Chevron Oil Co., 5 Cir., 1972, 463 F.2d 651, 652; United States v. Buras, 5 Cir., 1972, 475 F.2d 1370, 1371 n. 2 [1972] (Brown, C. J., dissenting from denial of rehearing en banc) ; Delduca v. United States Fidelity & Guaranty Co., 5 Cir., 1966, 357 F.2d 204, 205; Freeman v. Continental Gin Co., 5 Cir., 1967, 381 F.2d 459, 466; Sudderth v. National Lead Co., 5 Cir., 1959, 272 F.2d 259, 263; Petersen v. Klos, 5 Cir., 1970, 433 F.2d 911, 912.

      . Notable is § 4651:
      “Section 4651. Recovery of interest on damages. A person wlio is entitled to recover damages certain, or capable of being made certain by calculation, and tlie right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as tlie debtor is prevented by law, or by the act of the creditor, from paying the debt.” 76A Stat. 263.
      See also Ch. 45, § 1518, (Interest on Special Damages) ; § 4652, (Breach of Contract) ; § 4653 (Interest Stipulated by Contract) ; § 4683 (Breach of Contract to Pay Liquidated Sum) ; § 4702 (Conversion of Property) ; § 4723 (Damages Exclusive of Interest).

      . Item numbers refer to the claims analysis of Canal Company.

      . Canal Company’s brief states without contradiction that from 1918 until the effective date of Executive Order 4314, September 25, 1925 (see note 9, supra) tlie phrase read “for the time a vessel is tied up undergoing repairs” (emphasis supplied). Both “undergoing repairs” and “tied up undergoing repairs” are loose terms to describe the period of time in which the vessel cannot be profitably employed as a consequence of the casualty.

      . So that hopefully there will be no Gulf spray IV we commit to the District Judge superintendence over the arithmetical computation of the interest and the total final decree.


source: Caselaw Access Project

author: COFFIN, Chief Judge.

license: Public Domain

text:
    Enrique VELAZCO et al., Plaintiffs, Appellants, v. Steven A. MINTER, etc., Defendant, Appellee.
    No. 73-1018.
    United States Court of Appeals, First Circuit.
    Heard April 10, 1973.
    Decided June 26, 1973.

      Paula W. Gold, Boston, Mass., with whom R. Peter Anderson, Boston, Mass, was on brief, for appellants.
    Kenneth A. Behar, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., and Walter H. Mayo, III, Asst. Atty. Gen., Boston, Mass., were on brief, for appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

Plaintiff and the class he represents are recipients both of federally administered Old Age, Survivors and Disability Insurance (OASDI) benefits and of Old Age Assistance (OAA) benefits, administered by the defendant, the Massachusetts Commissioner of Public Welfare. The issue in this case is whether a general notice to these recipients in September of 1972, alerting them to both forthcoming reductions in their OAA checks and net increases in their combined OASDI and OAA benefits, both in unspecified amounts, resulting from program-wide changes in both OASDI and OAA, met constitutional and regulatory standards.

In the autumn of 1972 in Massachusetts, a series of adjustments became necessary for some 61,000 persons who, like plaintiff, received both OASDI and OAA. The Congress had, on July 1, enacted P.L. 92-336, 86 Stat. 406, effective September 1, increasing OASDI benefits by 20 per cent. Since OAA benefits respond to actual need, increases in income from other sources such as OASDI must be reflected by downward adjustments of OAA benefits. At about the same time, on July 18, the Commonwealth of Massachusetts augmented monthly benefits under its OAA program, effective October 15, by (1) mandating that $7.50 in certain non-OAA income be disregarded for purposes of calculating OAA benefits; (2) raising a recipient’s transportation allowance $5.00; and (3) allowing a 3 per cent cost of living increase. Ch. 788, Mass. Acts of 1972; M.G.L.A. c. 118A § 1 (1973 Pocket Part). As of October 15, therefore, each member of plaintiff’s class was entitled to an OASDI check reflecting a 20 per cent increase and an OAA check reflecting (a) an addition of the transportation and cost of living allowance increases and (b) a subtraction of the OASDI increase to the extent it exceeded $7.50.

Massachusetts coped with this massive, time-foreshortened, interacting computation task in the following manner. Between April and August it had been compiling a computer master file. On September 6 it decided to use its computer to make the changes, stem-ming from the new federal and state laws, because prior experience indicated that manual computation by social workers would require six months. In mid-September, state social workers received instructions and a “turnabout document” for each OAA recipient; two weeks later, most of the cards had been filled out by the workers and returned to Regional Data Control Units which checked and edited the cards. They were then delivered to Regional Data Processing Units to be transferred to magnetic tapes which were, finally, transferred to a Central Data Processing Unit, which, between October 7 and 11, computed the amount of the OAA grant for each recipient, the checks themselves being printed between October 12 and 14 for receipt on or about October 16.

In the meantime, on September 29, the notice, reproduced in the margin, the adequacy of which is the issue in this case, was sent to plaintiff’s class. While specifying the kinds of changes to be expected and indicating that the recipient would be receiving, from both his OAS-DI and OAA checks, more money than before, jjjje notice gave no formulae, computations or amounts. And, while it advised the recipient of his right, if dissatisfied with the first adjusted check, to consult a social worker and to appeal for a hearing on any OAA decrease or termination, such would obviously occur after such actions had taken place. These — the lack of precise computations and the lack of opportunity for a hearing in eases involving factual disputes prior to changing OAA checks — are the two deficiencies which plaintiff alleges constitute a violation both of due process and of the applicable regulations, both federal, 45 C.F.R. § 205.10(a)(5), and state, Massachusetts Public Assistance Policy Manual, Ch. II, Sec. A, par. d.

The district court, on the basis of a stipulation, some testimony, and affidavits, dismissed the complaint. The key to its holding was its finding “that, if we consider the total amount received by any one of the plaintiffs in the case at bar from both OAA grants and OASDI benefits in combination, he has not suffered, and is not threatened with, any discrimination, but, on the contrary, he has an increase in his individual receipts.” Velazco v. Minter, 352 F.Supp. 1109, 1116 (D.Mass.1973). The court accordingly ruled: “It is sufficient to hold that when the total bundle of OAA and OASDI payments to an individual is, increased neither the Constitution nor any of the statutes nor regulations — nor-manuals cited requires thatgoverning authorities give him in advance a detailed or other notice or a hearing of any kind.” Id. at 1117 (original emphasis). We affirm, but on the basis of a somewhat different approach. We conclude that at least 45 C.F.R. § 205.-10(a)(5) requires an advance notice, but that the notice, given did, under these unusual circumstances, satisfy that regulation and due process requirements.

The constitutional challenge is, in the present narrow context, perhaps more easily answered. We begin with the recognition that we must weigh and balance the recipients’ and the state’s interests in determining the extent to which procedural due process must be afforded the recipient. Goldberg v. Kelly, 397 U.S. 254, 262-263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Initially we note that neither Goldberg nor its companion case dealing with the termination of old age benefits, Wheeler v. Montgomery, 397 U.S. 280, 90 S.Ct. 1026, 25 L.Ed.2d 307 (1970) (Wheeler I), struck the balance for the case before us. Those cases dealt only with the procedural due process required when a state “terminates public assistance payments to a particular recipient.” Goldberg, supra, 397 U.S. at 255, 90 S.Ct. at 1014 (emphasis added). See Daniel v. Goliday, 398 U.S. 73, 90 S.Ct. 1722, 26 L.Ed.2d 57 (1970). Nor is our decision' -governed^byTEe many eases holding that; Goldberg applies to individual reductions, as well as terminations of aid. Similar-j ly, we need not consider the cases concerning the application of Goldberg to across-the-board reductions mandated by changes in state law or policy. Rather we have the extremely nariów and unusual situation of a reduction in OAA benefits mandated by federal and state law as a result of an increase in the amount of other public benefits, in this case old age insurance benefits, producing in each case a net increase in total benefits. In these circumstances, we believe the slight risk of loss to members of plaintiff’s class is so heavily outweighed by the burdens and risks to the state’s legitimate interests that the prereduction procedures employed here are constitutionally adequate.

We are not faced here with a recipient “condemned to suffer grievous loss”, a deprivation of “the very means by which to live”, Goldberg, supra, 397 U.S. at 263, 264, 90 S.Ct. at 1018, or even a significant reduction of those means. Even apart from the court’s finding that none of the plaintiff’s class suffered even a temporary net diminution in benefits, the worst fate that could have befallen a recipient would have been a short-term deprivation based on human and/or computer error. The recipient would then have been essentially in no worse a position than if there had been a mistake, human or mechanical, in sending out his regular check. Moreover, the advance notice here, not of course given when regular checks suffer from computer or other error, provided adequate protection against that contingency. It informed the recipient that the total new OAA and OASDI checks would make “more money available for your own use after October 15, 1972 than you [had] in September 1972.” If the first checks did not bear out this prediction, the recipient would be on notice of an error, though not of its exact scope, and thus capable of initiating prompt action to rectify it.

We recognize that recipients receiving a net increase would not have been made aware of, and hence would not have had any reason to inquire into, any discrepancy between the increase they received and the increase to which they were entitled. Such an insufficient increase would obviously be prejudicial. It would entail some deprivation of the means by which the recipient lives, OAA benefits being calculated by need, here properly redefined to account for recent increases in costs of living. Yet it would not be a net worsening of the recipient’s available resources. Moreover, there was no evidence that anyone in plaintiff’s class suffered even this form of shortchanging. But even were we to accept the plaintiff’s assumption that the risk of such errors is substantial, we must balance it against the predicament in which the Commonwealth found itself.! Had it continued OAA checks at the old [ level for another month until notices de-f tailing the computations and final amounts could be sent, it would not only-have distributed several hundred thousand dollars of benefits beyond recipients’ entitlement, but might possibly have forfeited federal matching funds in the same amount. Massachusetts might then have had to lower OAA benefits for all recipients at some later time in the fiscal year. For these reasons, we hold that the pre-reduction notice here provided was constitutionally adequate even though it did not give detailed computations of the specific effects of the state-wide changes on the individual recipient’s benefits.

What we have said regarding notice clearly indicates that we do not believe that pre-reduction evidentiary hearings are required in these circumstances. Without specific notice of the computations and result, one would not have a basis for claiming a factual dispute requiring a hearing. Moreover, even were the detailed notices sought by plaintiff provided, an evidentiary hearing in the Goldberg sense would obviously not be meaningful. There are no questions of credibility, no secret accusers, no personal bias. There is only the question of whether a mathematical formula was correctly applied to a particular amount. We cannot imagine why anything more than an opportunity for a personal meeting with a welfare official with the appropriate information and power to arrange for correction of any error would be necessary. Here because of the costs to the state — and perhaps ultimately all welfare recipients in the state — of delaying this reduction, offset by another program increase, until specific notice and such a meeting could be held, the absence of any showing of actual prejudice, the undefined risk of such prejudice, and the availability of post-reduction hearings and review, we do not believe that due process in this case required a pre-reduction hearing.

These conclusions do not dispose of the case, for however sensible defendant’s action was under the circumstances, we confront the fact that the¡ requirement of “timely and adequate advanee notice” of “any proposed action to . . . reduce assistance” under a relevant title of the Social Security Act (here Title I-OAA), 45 C.F.R. § 205.-10(a)(5), was clearly not fulfilled. The district court held that the advance notice requirement does not apply where total assistance is not reduced. We do not say this is unreasonable. But, since the OAA assistance covered by the regulation was clearly reduced, such reduction being counterbalanced by increases in a program not subject to the regulation, and since HEW interpreted its regulation to apply to this very circumstance, we prefer to rest our decisión on what we deem the sensible scope of the emergency interpretation.

The regulation, apart from its requirement of a 15 day advance notice— clearly met in this case — also specifies the content of that notice: (1) “details of reasons for the proposed agency action”; “explanation of” (2) “the individual’s right to conference”; (3) “his right to request a fair hearing”; and (4) “the circumstances under which assistance is continued if a fair hearing is quested.” § 205.10(a)(5) (i) (b). If the adequacy of notice in this case were measured by this regulation standing alone, we would find adequate only the description of reasons for action (but not its description of the proposed action) and the circumstances under which assistance is continued. We look at the HEW Memorandum, however, as either expressly or impliedly supplying enough “give” to the basic regulation in these extraordinary circumstances to save the remainder of the notice.

The description of “proposed agency action” would normally consist of specific information telling a recipient the amount by which his benefits were to be changed. The HEW Memorandum specifies this kind of action description as one of two alternatives. A second alternative, applicable “[i]n view of the difficulty [sic] some States may encounter in having sufficient time to compute the exact amount of change in each case for the 15 day Advance Notice Period”, was to “develop a general letter advising [OAA and OASDI] recipients . . . that because of P.L. 92-336, the October 1972 assistance payment will reflect a reduction equal to the amount of the increased benefit (if this in fact will be the result after computation). This will satisfy the 15 day Advance Notice Regulation.” Here the description of the action was more diffuse (OAA assistance “may be increased, decreased or . . . terminated”), being limited only by the sentence “In any event, you will have more money available for your own use . . . than you did” before. But we do not adopt an inclusio unius, exclusio alterius reading of the Memorandum, nor do we consider the Memorandum as a binding construction of the regulation. Here, because of the Commonwealth’s generosity, the computations were far more involved than the simple trade-off computation deemed adequate justification for a general letter by the Memorandum, which cited only the time pressures. The complex, massive, re-calculations required in the shortened time lead us to accept the minimal description of individual impact offered here as an adequate statement of the “proposed agency action” required by the regulation.

The notice given of the recipient’s right to conference did not explain, as the regulation arguably requires, that there was a right to be represented by counsel in a discussion before action is taken at which an explanation would be obtained and an opportunity provided to present information showing the proposed action to be erroneous. The notice merely stated that “If you are dissatisfied with the amount of your check of October 15, 1972 you may call your Social Worker for a more detailed explanation.” If a pre-reduction right to such a conference existed here, the notice would clearly have been inadequate. However, we do not believe that a prereduction right to conference existed here, for the simple reason that a meaningful conference would have been impossible. When the notices were sent on September 29, the social workers were just completing and returning the turnabout documents. The computer calculations based on these documents and other information were not completed until October 11. As far as we know, at no time before the checks were sent to the recipients did the social workers receive the final calculations, or even the conversion formulae used. Thus the social worker could have provided recipients with no further explanation of the action than that in the notice and could have made no use of any information provided or arguments made by the recipient or the accompanying representative. The most that could have been accomplished would have been an attempt to calculate the probable new benefits based on the recipient’s last checks and the information in the notice, a calculation that the recipient or his or her attorney could as well have done, as noted supra n. 12.

The notice was similarly cryptic in its explanation of “the right to request a fair hearing”. It spoke first only of “the right to appeal” and later only of a “wish to appeal for a hearing or review”. While the notice did not explicitly state there was a right to a hearing nor describe the exact procedure to be employed, § 205.10(a)(7)-(10), we find that under the circumstances the notice adequately informed the recipient of his or her ability to obtain a hearing with all the procedural implications that term carries.

We note that neither the shortness of time nor the complexity of the mathematical calculations prevented a clear and complete statement of the recipients’ rights. Under normal circumstances, involving an individual adjustment, such shorthand summaries would not be adequate. However, here, where the proposed action is a general mathematical recalculation and the rights to a pre-reduction conference, fair hearing, and continued assistance are clearly inapplicable, we accept, grudgingly, this brief form of notice.

Finally, plaintiff claims that the notice provided was inadequate under state regulations. Clearly, if Chapter II, Sec. A, par. d, Massachusetts Public Assistance Policy Manual, applied to this situation, the notice was inadequate, the regulation requiring that the notice explicitly state the right to personally appear at the welfare office within 15 days to review the matter with an impartial staff member, set a specific appointment but inform the recipient of the opportunity to change it if inconvenient, and explain the right to be accompanied by another, including an attorney, to introduce evidence, and in appropriate cases to cross-examine. We have been pointed to no state administrative or judicial interpretation of this provision. While the end of par. d states that “the procedures outlined above shall also apply when a determination has been made which will result in a reduction of the regular monthly assistance payment”, the wording of that and the surrounding regulations seems to us to indicate that it does not apply to a statewide reduction based on mathematical computations as here. Paragraph c provides that “when a WSO [Welfare Service Office] obtains information which indicates that a change in the individual’s circumstances may affect the amount of assistance to which he is entitled or may make him ineligible”, eligibility must be reconsidered within 30 days. Paragraph d states that “The recipient must be given at least fifteen days advance notice of questions (e. g., hearsay evidence) the WSO has about an individual’s eligibility.” Cases when cross-examination are allowed are those “where veracity or testimony is in dispute”. Similar language is found in paragraph e relating to the appeal procedures after the hearing. The wording of these regulations suggests to us that they only apply to cases where specific factual information relating to an individual’s eligibility or entitlement is involved.

The notice here satisfying due process and the federal regulation, and the state regulation being inapplicable, the judgment is

Affirmed.

      . The OAA program is Title I and the OASDI program Title II of the Social Security Act. 49 Stat. 020 ; 42 U.S.C. §§ 301-431.

      . NOTICE:
      The Social Security check which you will receive on October 3, 1972 will include a 20% increase in benefits. Under Massachusetts law, this increase must be considered in arriving at the amount of your Old Age Assistance grant from this Department.
      Chapter 788 of the Acts of 1972 gives this Department authorization to disregard the first $7.50 of any income you may now be receiving and to increase the amount allowed for travel allowance by $5.00 monthly. In addition, there is a 3% cost of living increase in the amount allowed as a basic budget. In any event, you will have more money available for your own use after October 15, 1972 than you did in September 1972.
      As a result of all these changes, the assistance check you will receive on October 15, 1972 may be increased, decreased or your grant may be terminated.
      If you are dissatisfied with the amount of your check of October 15, 1972 you may call your Social Worker for a more detailed explanation. If your grant is decreased or terminated, you also have the right to appeal this reduction or termination, and blanks for this purpose will be supplied by your Welfare Office upon your request. If you wish to appeal for a hearing or review, you must file your request no later than December 14, 1972.

      . Plaintiff, assuming that the court’s, decision was a judgment on either defendant’s motion to dismiss or defendant’s motion for summary judgment, points to two of thirteen affidavits submitted with plaintiff’s motion for summary judgment, though not offered as evidence at the hearing, which are inconsistent with this finding. Only one of these seems clearly to allege a reduction in total assistance. Notwithstanding, in view of the study made at the court’s suggestion of 20 random recipients and the live testimony received, at what the record clearly indicates was a hearing encompassing plaintiff’s requests for permanent injunctive and declaratory relief, we interpret the court as making a finding based on the evidence before it and a ruling on the merits.

      . See, e. g., Lage v. Downing, 314 F.Supp. 903 (S.D.Iowa 1970) ; Merriweather v. Burson, 325 F.Supp. 709 (N.D.Ga.1970), remanded for evidentiary hearing on point in light of Daniel, supra) 439 F.2d 1092) (5th Cir. 1971) ; Hunt v. Edmunds; 328 F.Supp. 468 (D.Minn.1971) ; Smith v. Graham, 1 Pov.L.Rptr. ¶ 1715 (D.Kan. Jan. 5, 1971); Yee-Litt v. Richardson; 353 F.Supp. 996 (N.D.Cal. Jan. 17, 1973) (preliminary injunction against state regulations denying pre-termination or reduction hearings in cases involving only issues of policy found to have been erroneously applied to cases involving individual questions of fact or judgment), aff’d, •- U.S. -, 93 S.Ct. 2753, 37 L.Ed.2d 152 (June 4, 1973) ; Elliot v. Richardson, 41 U.S.L.W. 2554 (D.Hawaii Apr. 3, 1973).

      . Most courts have held that some or all of the Goldberg requirements are inapplicable in such situations, Merriweather, supra; Provost v. Betit, 326 F.Supp. 920 (D.Vt.1971) ; Rochester v. Ingram, 337 F.Supp. 350 (D.Del.1972) ; Smith v. Graham, supra; Freeman v. Engelman, 2 Pov.L.Rptr. ¶ 15,104 (D.N.J. Sept. 16, 1971) ; State ex rel. Ellis v. Heim, 83 N.M. 103, 488 P.2d 1207 (1971). But see Wheeler v. Montgomery, 1 Pov.L. Rptr. ¶ 1705 (N.D.Cal. Oct. 29, 1971) (Wheeler II) ; Yee-Litt, supra.

      . Our research reveals only two other eases in which a welfare reduction was challenged when coupled with a concomitant increase in another public program benefit. Simmons v. Parham, 1 Pov.L.Rptr. ¶ 1705 (N.D.Ga. Sept. 24, 1971) ; Almenares v. Lavine, 2 Pov.L. Rptr. ¶ 16,190 (S.D.N.Y. Oct. 10, 1972).
      In both cases the reduction procedures were chsflTenged as inadequate only under the applicable federal regulation, see discussion infra, and in both the decrease in one benefit was apparently exactly the same as the increase in the other.

      . The evidence before the district court included an affidavit by defendant’s computer program consultant which states that some 2000 AFDC recipients received improperly reduced checks on October 15 and that supplemental corrective checks were'' sent to those persons on November 1. The affidavit states only that “Effect of improper reduction was equivalent to 3.6% of OASDI.” This would suggest, though there is no direct statement to this effect, that these recipients, not members of plaintiff’s class, did not suffer a net reduction of benefits but only the type of less-than-proper net increase discussed in text.

      . On October 11, the day that the Massachusetts recalculations were completed and the day before the checks were printed, the acting regional commissioner of the federal Department of Health, Education and Welfare wrote defendant that “a disregard of the Social Security Increase would not only raise a confonnity question, but would also present a matching question to the extent the assistance payments are attributable to the improperly disregarded income.” While the wording of 45 C.F.R. § 205.10(b)(1), to which we are referred by plaintiff, insuring federal financial participation for “[p]ayments of assistance continued pending a hearing decision” could be read to cover the costs of unreduced benefits for the extra month delay that detailed notices would have imposed, we think that in light of the unavailability of pre-reduction hearings, see infra, and the HEW Memorandum of July 25, see n. 11 infra, defendant’s reading of the regional commissioner’s letter as threatening withholding of federal funds even for a single month’s disregard of the increase to satisfy the notice requirement in detail is not unreasonable.

      . The only case holding that due process requires a specific pre-reduction notice of the actual, individual effects of statewide changes in the governing law is Wheeler II, supra n. 5. It is unclear, however, whether that case also involved questions of individual eligibility and/or factual questions regarding the application of new state law to individual cases. The prior history suggests that such questions were at least part of the ease. Insofar as only computational applications were involved, the case is distinguishable since it dealt with net reductions, there being apparently no concomitant increase in another benefit program as here.

      . Plaintiff argues that under Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), even a temporary, nonfinal deprivation of a statutory entitlement is a deprivation of property under the Fourteenth Amendment requiring prior notice and hearing. Id. at 85, 92 S. Ct. 1983. As our discussion indicates, we recognize that duo process applies to this situation. Yet as Fuentes repeatedly reaffirmed, the nature of the interests involved is relevant to the form of notice and hearing provided. Id. at 82, 84, 86, n. 21, 92 S.Ct. 1983. We are aware that the Court in stating the latter principle said “But some form of notice and hearing — formal or informal — is required before deprivation of a property interest that ‘cannot be characterized as de minimis.”’ Id. at 90 n. 21, 92 S.Ct. at 1999. (Original emphasis,) Tlie interest here might be labelled de minimis. Moreover, though the notice here only stated that “you may call your Social Worker for a more detailed explanation” after receiving the modified check, there is nothing to indicate that recipients could not have called and obtained an informal conference to explain the changes before the checks went out. Finally, we think this might be one of the “extraordinary situations” mentioned in Fuentes that justify postponing at least the opportunity for a hearing. Id. at 90-93, 92 S.Ct. 1983. There was “a special need for very prompt action”, the changes were effected by government officials, and there existed the government interest of maintaining the appropriated state and matching federal funds for all program recipients which was probably important enough to justify postponement of the hearing though not the notice required by due process. Id. at 91, 92 S.Ct. 1983.

      . On July 25, 1972, HEW sent to all states Information Memorandum No. 73-3 explaining tlie implications of the recent Social Security increase for the state categorical assistance programs. Its discussion of the advance notice requirement began with the statement: “Compliance with the 15 day Advance Notice Requirement to recipients (Section 205.10(a)(5) . . .) is necessary.”

      . All of tlie factors prompting the re-computation — the Social Security increase, the state law requiring consideration of this increase in determining the OAA grant, the new state statute, cited by chapter, authorizing the $7.50 disregard. and the $5.00 increase in travel allowance, and the 3% cost of living adjustment to the basic budget — were stated clearly and specifically. A recipient obtaining this information could compute, with a fairly high degree of accuracy, the individual impact the general implementation of these amendments would have. The only calculation not specifically mentioned is tlie addition of $.92, equal to 20% of the Medicare Part B premium, which is not reflected in the individual’s OASDI payments. This factor, explicit description of which would only have confused the recipient making an effort to implement the information received, as it did us for some time, was, of course, encompassed within the general reference to the Social Security increase.

      . Sections 205.10(a) (5) (iii) (a)(1) and (2) provide that assistance need not be continued until the fair hearing if the state agency determines “that the issue is one of State agency policy and not one of fact or judgment relating to tlie individual case” and if the agency “promptly informs the claimant in writing if assistance will be discontinued based on the State agency’s determination”. Such a determination and communication are, we think, manifest, though not expressly articulated, in the September 29 notice. The references to the various state laws and the general Social Security and cost of living increases describe not only an “agency policy”, but a policy mandated by state and federal legislation. Claimants were jjromptly informed of discontinuance by the statement that the October 15 check might reflect a decrease or termination of the OAA grant.

      . Although like the court in Simmons v. Parham, supra, n. 6, we accept HEW’a suggestion that a general description of agency action is adequate when time and the need to recalculate welfare benefits in light of Social Security increases preclude more specific notice, we need not decide whether the even less complete notice of proposed action, details, and rights given there would be sufficient under these circumstances.
      We recognize that the court in Almenares v. Lavine, supra, dealing with New York’s efforts during the very same changeover period, ordered welfare benefits to be continued until a precise notice of the specific effect of the changes on individual benefits and the individual’s rights could be sent to recipients. In that case, however, not only was the IIEW Information Memorandum of July 25 apparently not relied upon by the state, but there had been a prior court order on April 22 specifically addressing notice, which order had been violated. We do not feel compelled to follow Almenares, deeming the court’s strict application of the regulation to be responsive to a particular history not present here.


author: GEWIN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Bonnie Lee SIMPSON, Defendant-Appellant.
    No. 73-1208.
    United States Court of Appeals, Fifth Circuit.
    June 29, 1973.
    Rehearing and Rehearing Eh Banc Denied Aug. 13, 1973.
    Warren Weir, San Antonio, Tex., for defendant-appellant.
    William S. Sessions, U. S. Atty., James E. Bock, W. Ray Jahn, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

      Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
   GEWIN, Circuit Judge:

Appellant Simpson was indicted for conspiring to possess with the intent to distribute a quantity of lysergic acid diethylamide (L.S.D.) in violation of 21 U.S.C. §§ 841(a)(1) and 846. A jury found her guilty and a sentence of five years imprisonment was imposed to be followed by a special parole term of ten years. On this appeal, Simpson limits her challenge to the imposition of the special parole term of ten years. At the time of sentencing when the term of special parole was imposed by the court no objection was made by the appellant to the special parole term.

In an apparent response to the growing drug problem which infests our nation Congress has enacted special rehabilitative and parole provisions which guide a trial court in sentencing a convicted defendant like the appellant. 21 U.S.C. § 841(b)(1)(B) requires the trial court after imposing the prison sentence under that subsection on a first offender to further provide a special parole term of at least two years. Thus in the instant case after imposing the maximum sentence of five years, the lower court pursuant to the mandate of the above provision added the special parole term now challenged.

Appellant now makes a broad-based constitutional challenge to this special parole provision enacted by Congress. She asserts that her fifth amendment rights to due process of law have been violated because: (a) the imposition of a special parole term is infirm on vagueness grounds; and, (b) Congress has failed to clearly provide an agency to oversee felons sentenced under the special parole provisions or to delineate the conditions of parole. Finally, appellant asserts that the application of the special parole provision by the trial court in imposing a ten year term violates the eighth amendment proscription against cruel and unusual punishment. Recognizing our duty to provide for the fundamental fairness guaranteed by the fifth amendment to all who become en-snarled in the criminal process, we nevertheless conclude that the provisions now challenged do not fall below the applicable standards required by the due process clause of the fifth amendment and therefore affirm.

At the outset it must be noted that the sentence imposed by the district court is succinctly stated. Appellant must spend five years in prison followed by a special parole term of ten years for her misdeeds. At least in this respect then the sentence is unequivocal and its exactitude cannot be questioned. However, the real thrust of appellant’s vagueness argument is that she does not know what will be the conditions of her parole or what agency will supervise her conduct when she is eventually granted conditional freedom.

Such issues are not ripe for adjudication at this time. Appellant has been sentenced to serve five years in prison and will not commence to serve her ten year parole term until the termination of this period. Further, we are aware of no constitutional requirement that a convicted felon is entitled to prior notice of the conditions of his sentence or term of parole. Such lack of knowledge applies to the conditions of her confinement as well as the conditions of her parole. While certain conditions of parole are undoubtedly imposed on all released persons, the prescription of other restrictions must await a detailed examination .of the prisoner and the unique circumstances surrounding each particular case before they can be intelligently imposed. Thus whatever conditions are eventually imposed, the reasons for their imposition are well grounded in the dual needs of protecting society and rehabilitating the felon. Common sense tells us therefore that appellant is not now prejudiced or harmed by the seeming failure of the Act to provide specifically for the administration of her parole term or its conditions.

It is beyond constitutional doubt that Congress has the inherent power to adopt penal and rehabilitative provisions in response to the present pervasive drug traffic problem. This is particularly true when the quantity of the drug and its dangerous ingredients affect not only the individual user but society as well. While in this instance Congress could have been more specific by enacting detailed directives on how this special parole term is to relate to the traditional parole process, we fail to perceive how a lack of such directives is an impediment to the constitutionality of the Act.

Although we do not reach the problem of whether an individual sentenced under the Act will be subject to the control of the United States Board of Parole or under the direct supervision of the sentencing court it is our tentative opinion that such supervision could be provided by the parole board. If it should be concluded that the parole board does not have authority to supervise persons placed on parole pursuant to the Act, it would appear that the sentencing court would have the inherent power to supervise parolees under the recognized role of the judiciary in supervising the execution and implementation of its judgments and sentences.

Courts have wide discretion under many criminal statutes with respect to the imposition of sentences. For example in criminal contempt cases, a federal court has unlimited discretion as to the length of the sentence to be imposed. 18 U.S.C. § 401. Similarly a federal court now exercises plenary control over those whose sentences have been probated. See 18 U.S.C. § 3651. In a somewhat analogous situation Congress has vested in the sentencing court great flexibility in dealing with juvenile offenders under the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq. See particularly section 5010 of that act. Attacks against the Federal Youth Corrections Act similar to the ones asserted here by appellant have been uniformly rejected by the courts. There is some uncertainty inherent in every sentence imposed. Actually each defendant is committed “to the custody of the Attorney General or his authorized representative for imprisonment.” The sentence makes no reference to the place or the specific conditions of confinement. Indeterminate sentences in state courts are not uncommon. Against this background, appellant’s contentions must fail. If it should develop that her supervision and treatment during her parole violate fundamental principles of fairness, surely such treatment would be subject to an attack in an appropriate suit in federal court. At the present time however, such an attack is premature and is based on pure surmise and conjecture.

Likewise, appellant’s eighth amendment attack is without merit. Appellant was convicted of a conspiracy to possess with the intent to distribute 4.8 grams of L.S.D. Without contradiction government counsel points out that the evidence in this case shows that this is enough L.S.D. to market 48,000 unit dosages. We feel that the sentence imposed by the lower court is totally consistent with the “precept of justice that the punishment for crime should be graduated and proportioned to [the] offense.”

Affirmed.

      . An extended discussion of the act, the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq. is unnecessary here. We have previously upheld the constitutional validity of the act. See, United States v. Lopez, 459 F.2d 949 (5th Cir. 1972) Section 841(b)(1)(B) reads in relevant part:
      In the case of a controlled substance in schedule I or II which is not a narcotic drug or in the case of any controlled substance in schedule III, such person shall be sentenced to a term of imprisonment of not more than 5 years, a fine of not more than $15,000, or both.
      Any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such prior conviction, impose a special parole term of at least 2 years in addition to such term of imprisonment
      Further subsection “c” provides :
      A special parole term imposed under this section or section 845 of this title may be revoked if its terms and conditions are violated. In such circumstances the original term of imprisonment shall be increased by the period of the special parole term and the resulting new term of imprisonment shall not be diminished by the time which was spent on parole. A person whose special parole term has been revoked may be required to serve all or part of the remainder of the new term of imprisonment. A special parole term provided for in this section or section 845 of this title shall be in addition to, and not in lieu of, any other parole provided for by law.
      Since appellant was a first offender, the trial court appropriately sentenced her under the above provisions.

      . Although 21 U.S.C. § 841(b)(1)(B) requires a minimum parole term of two years, the maximum limits for the special parole term are left to the discretion of the trial court. Thus, Congress implicitly recognized the equitable and remedial considerations which go into such sentencing processes and accordingly deferred to the expertise of the sentencing tribunal who must deal with such problems on a case by case basis.

      . It should be noted that the statute which creates the Board of Parole provides that it is under the supervision of the Department of Justice. The Act specifically provides :
      The Attorney General shall from time to time designate one of its members to serve as Chairman of said Board and delegate to him the necessary administrative duties and responsibilities, (emphasis supplied;
      18 U.S.C. § 4201.
      By its terms the Parole Board Act apparently applies to all federal prisoners.

      . Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 549, 54 L.Ed. 793 (1910). See, United States v. Scales, 464 F.2d 371, 376 (6th Cir. 1972).

      . See, D. Karlen, Ango-American Criminal Justice 201-202 (1967).