author: COFFIN, Chief Judge.

text:
    Arthur SILVA et al., Plaintiffs-Appellants, v. James T. LYNN et al., Defendants-Appellees.
    No. 73-1200.
    United States Court of Appeals, First Circuit.
    Submitted June 20, 1973.
    Decided July 5, 1973.
    Anne M. Vohl, Lexington, Mass., on brief for appellants.
    James N. Gabriel, U. S. Atty., and Frederic R. Kellogg, Asst. U. S. Atty., Boston, Mass., on brief for James T. Lynn and others, appellees.

      J. Owen Todd, and Hale & Dorr, Boston, Mass., on brief for Harry Wolk, in-tervenor, appellee.
    Before COFFIN, Chief Judge, and CAMPBELL, Circuit Judge.
   COFFIN, Chief Judge.

This is our second look at a controversy surrounding a housing project undertaken by a private developer with assistance from the Department of Housing and Urban Development (HUD). The facts of the ease are to be found in Silva v. Romney, 473 F.2d 287 (1st Cir. 1973). See also 342 F.Supp. 783 (D.Mass.1972). Appellants, owners of land abutting the proposed Forest Glen Project in Stoughton, Massachusetts, argue that the district court wrongly dissolved the injunction against HUD and the developer because it erroneously found that the environmental impact statement (EIS) submitted by HUD complied fully with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2) (C). While we agree with the district court that determining good faith compliance with § 4332(2) (C) should not be a vehicle for a court to “interject itself within the area of discretion of the executive”, Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 838 (1972), we have concluded that the EIS in this case was insufficient on its face measured by the restrained but not meaningless applicable judicial review standards.

When HUD withdrew its initial appeal in this case in July, 1972, and agreed to the preparation of an EIS, there was every expectation that, although such an exercise involving a project of this scope was novel, HUD would be able to conduct a thorough analysis within a reasonable time. A draft EIS was sent out for comment on August 18, 1972 and replies collected from numerous federal, state, and local agencies and others, including appellants who presented objections to various as-peets of the plan and the plan as a whole. Appellants contend that the final EIS, issued six and one half months later, on March 5, 1973, is deficient both in failing to discuss adequately the objections put forward and in not sufficiently explaining HUD’s resolution of various environmental problems, as required by § 4332(2)(C). Thus, appellants argue, HUD is thereby legally precluded from giving final approval to the development.

In identifying the source of review power courts have, as did the district court here, drawn on NEPA itself, 42 U.S.C. § 4331 et seq., and the general “federal question” power, 28 U.S.C. § 1331. We think an alternative source, equally applicable, is the Administrative Procedure Act, 5 U.S.C. §§ 702 and 706. In any event, the judicial inquiries are whether the agency’s findings and conclusions in the EIS are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and whether the agency followed the procedures required by law. In this case we face an underlying procedural matter which has much to do with a court’s ability to perform its function of reviewing challenges to environmental impact statements.

In reviewing the final EIS and HUD’s decision to proceed with the plan as described therein, the district court considered only the final statement, the draft statement and comments filed thereto, certain affidavits and testimony taken in court. It refused appellants’ requests that the administrative record be produced. This record contains the more detailed studies and background of deliberation which form the basis of the final EIS. We think that the law requires production of the entire administrative record. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419-420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); see 5 U.S.C. § 706; cf. 28 U.S.C. § 2112.

Aside from the fact that this prerequisite to judicial review seems legally required, it makes good practical sense. Thus, even assuming that the final EIS might seem fully adequate standing alone, uncertainty must attend a court’s approval of a statement based on an unknown “record of expert views and opinions, the technological data and other relevant material ... on which the [agency] acted” but now refuses to supply. Appalachian Power Co. v. E. P. A., 477 F.2d 495, 507 (4th Cir. 1973). Moreover, to the' extent that there is more than a perfunctory exchange of views incorporated in the record, i. e., a reflection of comments not merely on a preliminary draft but on new approaches or evidence subsequently developed, the need for taking additional evidence in court diminishes. The objective should be to develop an administrative record which is self-sufficient for adequate judicial review. Overton Park, supra, 401 U.S. at 420-421, 91 S.Ct. at 825-826. Finally, full disclosure is both a spur to reasoned decision making and a protection against criticism unfairly sought to be made after the agency’s processes have concluded. Cf. General Transportation Co. v. United States, 65 F.Supp. 981 (D.Mass.), aff’d, 329 U.S. 668, 67 S.Ct. 75, 91 L.Ed. 590 (1946).

Once the complete record is before the court, it must determine the adequacy of the EIS. The relevant legal standards are those of NEPA which specifies procedures to be used in preparing an EIS for projects subject to that act; requires that “presently unquantifiable environmental amenities and values ... be given appropriate consideration in decision-making along with economic and technical considerations”, 42 U.S.C. § 4332(2) (B); and mandates the agency involved to “study, develop and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources”. 42 U.S.C. § 4332(2) (D).

The “detailed statement” required by § 4332(2) (C) serves at least three purposes. First, it permits the court to ascertain whether the agency has made a good faith effort to take into account the values NEPA seeks to safeguard. To that end it must “explicate fully its course of inquiry, its analysis and its reasoning.” Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971); Appalachian Power Co., supra, 477 F.2d at 507. See also Natural Resources Defense Council v. E. P. A., 478 F.2d 873 (1st Cir. 1973); Environmental Defense Fund v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584 (1971). Second, it serves as an environmental full disclosure law, providing information which Congress thought the public should have concerning the particular environmental costs involved in a project. To that end, it “must be written in language that is understandable to nontechnical minds and yet contain enough scientific reasoning to alert specialists to particular problems within the field of their expertise.” Environmental Defense Fund v. Corps of Engineers, 348 F.Supp. 916, 933 (W.D.Miss.1972). It cannot be composed of statements “too vague, too general and too conclusory.” Environmental Defense Fund v. Froehlke, 473 F.2d 346, 348 (8th Cir. 1972). Finally, and perhaps most substantively, the requirement of a detailed statement helps insure the integrity of the process of decision by precluding stubborn problems or serious criticism from being swept under the rug. A conclusory statement “unsupported by empirical or experimental data, scientific authorities, or explanatory information of any kind” not only fails to crystallize issues, Natural Resources Defense Council v. Grant, 355 F.Supp. 280, 287 (E.D.N.C.1973), but “affords no basis for a comparison of the problems involved with the proposed project and the difficulties involved in the alternatives.” Monroe County Conservation Council v. Volpe, 472 F.2d 693, 697 (2d Cir. 1972). Moreover, where comments from responsible experts or sister agencies disclose new or conflicting data or opinions that cause concern that the agency may not have fully evaluated the project and its alternatives, these comments may not simply be ignored. There must be good faith, reasoned analysis in response.

The final statement presented here falls far short of what is required and fails to serve the several purposes we have noted. Appellants’ first and major challenge is to the statement’s treatment of the drainage problem. The project’s site contains a low wetland portion, in and near an area where the water table is high. Adjacent lower lying areas have historically experienced chronic flooding. This is plainly a major problem. We think it is not too much to ask that the problem be fully depicted, that HUD describe the approach that was taken, and the reasons why the particular mode of control was chosen in preference to others.

The draft statement circulated to agencies contained a four line description of a third drainage plan, agreed upon by HUD and the developer, describing the diameter of two pipes. This was inserted in the draft statement, together with a prior statement that a second plan, involving the construction of a series of holding tanks, was deemed “workable”, and that the maintenance costs for the second plan could be provided for in the mortgage. The draft plan not only contained this inconsistency on its face but another which appears from external sources. While the draft plan, circulated as of August 18, 1972, stated that HUD had restudied the drainage problem with the developer and agreed to the third plan, the government affidavit, filed after hearing in the spring of 1973, stated that HUD had made its request for an in-house review to provide it with an engineering evaluation of the third drainage plan (dated June 27, 1972) in January of 1973 to be used for the preparation of the Final Environmental Impact Statement. If HUD had in fact “restudied” the plan before August 18, 1972, the sole reference to a January, 1973, review is not easily understood.

In any event, the draft plan’s presentation of HUD’s approach to drainage, internally consistent or not, drew heavy fire, as being wholly inadequate, from the federal Departments of Agriculture and of Commerce, and the Environmental Protection Agency, agencies with expertise as to drainage problems equal to or greater than that of HUD. HUD’s response to these comments in the final statement was a bland reference to the section on drainage. Apart from repeating the pipe diameter descriptions of the draft statement, the final statement contained nine lines of evaluation.

HUD’s first point made was that discharge “to the low area beyond Washington Street would reduce or eliminate the drainage problem ... at Britton Avenue by providing adequate drainage and loweing [sic] the water table in the area of the 42 [sic] inch drain.” No explanation is given for the lowering of the water table or for the scope of “the area” where lowering would take place. While Britton Avenue at the edge of the project seems to be taken care of, nothing is said about the effects of discharge on “the low area beyond Washington Street” where flooding problems have been endemic. A second point is possibly contained in the statement: “With the implementation of Plan Number 3, a determination was made to the addition of the proposed project.” This is one of several statements which, through omission or other error, are simply incomprehensible to us. The references to “the plan” help us no more, for all we find is a pre-plan 1971 letter on run-off estimates from the engineering company which later proposed the plan and a sketchy blueprint which merely indicates several locations for pipes. The statement concludes with the twin pronouncements that the plan “for an off-site drainage system appears to be the best method for draining the site and would certainly lower the water table of those acres surrounding the site”; and that the “proposed project . does not affect any [areas facing present or potential flooding problems].”

The statement does not recognize the scope of the flooding problem as described by others, or, if they are inaccurate, does not say why. It does not describe alternative approaches. It does not say why the plan agreed upon was chosen in preference to others. It does not pretend to estimate with any detail what the agreed-upon plan will accomplish, and for what area. And it is myopic in the sense of focusing on the project site itself, with no supported judgment as to what will happen in other areas nearby. Even the presence of the full administrative record would have done little to remedy the clear violation of the mandate under NEPA for a “detailed statement” of the drainage problem.

A second objection of appellants is that the statement inadequately discussed alternatives as to numbers and placement of housing units. Four alternatives were considered: no action, in which event housing of greater density and under less restriction might be constructed ; recreation or conservation, which would require a public entity, not foreseen, purchasing the property; utilizing another site, there being assertedly no better available sites; and changing the configuration of buildings on the existing site. This last was said to be the real area of choice, allowing (1) high-rise buildings with more vacant land, (2) the same number of low-rise buildings crowding a smaller portion of Forest Glen, or (3) a smaller number of buildings, leaving more of the land in a natural state. As to this last possibility, perhaps the likeliest alternative, the statement said that this “would be to substantially reduce the number of units, an economically unsound alternative.”

This conclusion may very well be supportable. But the agency must go beyond mere assertions and indicate its basis for them. The size of the project began at 186 units. It was reduced once to 166 and then to 138. We echo the comment that the Department of the Interior made to the statement, that the discussion of alternatives should be “expanded to identify costs associated with appropriate alternative actions so as not to prematurely foreclose options which might have less detrimental effects.” It is not too much to require an explanation why a lesser aggregation of housing units on the property would be either economically unsound or, as a policy matter, would represent less of a benefit in terms of low and middle cost housing needs than would be justified by the costs associated with the disadvantages to the environment. Here as with the. drainage problem, what the courts look for is an informed and adequately explained judgment. When courts can say that such a judgment has been made, their mission is at an end.

The EIS and administrative process used by HUD to treat comments falls far short of what is required. Review of the statement and the ultimate decision to proceed on the project has been reduced to a game of “blind man’s bluff”, Appalachian Power Co., supra, All F.2d at 507. The improvement of the regulatory system administered by each agency has been attained in this case, only minimally, if at all; and the full public disclosure required by NEPA is inadequate. An EIS as defective as the one before us cannot serve to fulfill the mandate that environmental factors “be given appropriate consideration in decision-making along with economic and technical considerations”, 42 U.S.C. § 4332(2) (B), and a decision to proceed with a project based on that statement is not in accordance with the law.

Upon remand, the question remains: what should be done at this juncture? HUD has had nearly a year to prepare a satisfactory EIS on a relatively small project. Perhaps, because it was small and involved a partnership arrangement with a private developer, the task was novel. Nevertheless, unless we abdicate all responsibility, we could not conscientiously say that the statement, either in spirit or letter, conformed to the requirements of NEPA. In the meantime, the developer, since earlier argument before us, has stayed his hand. Now, with costs of construction rising, and costs of delay accumulating, he faces further delay. And the appellants, sometimes excessive in their demands, have nevertheless served the public purpose in pursuing this cause.

We remand to the district court with instructions that it return the final EIS to HUD, requesting it to supply more detailed reasons supporting its conclusions as to the third drainage plan — if it is of this opinion still — and, with the same caveat, as to the economic unsoundness of a smaller number of housing units, and sufficient data to serve as a basis for these reasons. We would not contemplate that the district court, in the absence of special circumstances which we cannot now foresee, would have the need to take more evidence. But we do not attempt to prejudge. See, e. g., Allison v. Froehlke, 470 F.2d 1123 (5th Cir. 1972). Upon the presentation of an amended Final Statement, together with the administrative record to date, which we think is required, we would hope that the court could come to a fairly rapid conclusion as to the validity of the statement.

Reversed and remanded.

      . Although the Court in Overton Park was concerned with a decision of the Secretary of Transjjortation not involving NEPA, its review of that decision was pursuant to the Administrative Procedure Act, 5 U.S.C. § 706, as is also the case here. It noted that the material filed by the Secretary in the district court did “not constitute the ‘whole record’ compiled by the agency: the basis for review required by § 706 . . . .” Id. 401 U.S. at 419, 91 S.Ct. at 825. While there may be some instances in which the entire record need not be filed, where the correctness of factual findings are involved or where the complainants request the full record, we think the agency must produce it in court. Cf. 28 U.S.C. § 2112(b). See Appalachian Power Co. v. E. P. A., 477 F.2d 495 (4th Cir. 1973).

      . Among the procedures to be followed is the preparation of a “detailed statement by the responsible official on—
      (i) the environmental impact of the proposed action,
      (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
      (iii) alternatives to the proposed action,
      (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
      (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.” 42 U.S.C. § 4332(2) (C). [Emphasis added.]
      We have emphasized the word “detailed” because it connotes the careful, reasoned and fully explained analysis which we think Congress intended. See text, infra.

      . Specifically, the draft statement said, “The problem of drainage has been restudied by HUD with the developer and a third alternative agreed upon. This calls for collecting all drainage from the site in a 48" line in Charlotte Drive connecting to rebuilt 48" line in Britton Avenue and continuing across Washington Street to the 66" drain at Presidential Courts.”

      . Later, reference is made to criticisms that the effect of hydraulic pressure, i. e., weight of buildings on the land pushing up the water level, and effect on the leaching fields associated with the septic tanks on one street bounding Forest Glen, is not discussed. The calming comment is made that the developer and the Massachusetts Department of Natural Resources had been working on the problems.

      . It is alleged by appellants that the developer has recently acquired another site adjacent to Forest Glen, which should now be considered by I-IUD in accordance with part III of the EIS as widening the scope of choice and planning. The book has to be closed at some point in time. We would say that, unless there was evidence that it was known, before the issuance of the final statement, that there was a distinct likelihood that the developer would acquire such property, such a purchase would not be relevant to HUD’s obligations. By so saying, we would not be understood as foreclosing consideration of the use of such land if it appeared that wider options in resolving persistent problems were now available.

      . While not germane to our decision, we would observe that in form and in substance, the Final Environmental Impact Statement suffered from defects on a broader scale than those put in issue. Leaving aside the lack of pagination and table of contents, the plethora of typographical errors, and- incomprehensible sentences, we refer to matters of substance. The treatment of several important issues, such as noise, the disposition of solid waste, the adequacy of water supply, shortage of school facilities, now requiring out-of-town busing of Stoughton children, population density and traffic implications was bland and superficial. Responses to the often thoughtful comments of other agencies were dismissed with bureaucratic politesse, stating that the comment had been “noted” or simply referring to a skeletal section of the statement.


source: Caselaw Access Project

author: TALBOT SMITH, Senior District Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellant, v. Dale Paul GLUP, Appellee.
    Crim. No. 72-1777.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 17, 1973.
    Decided Aug. 13, 1973.
    Thomas D. Thalken, Asst. U. S. Atty., Omaha, Neb., for appellant.
    William M. Lamson, Jr., Omaha, Neb., for appellee.

      Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and TALBOT SMITH

       Hon. Talbot Smith, United States Senior District Judge, Eastern District of Michigan, sitting by designation.

   TALBOT SMITH, Senior District Judge.

The case before us challenges the sufficiency of count one of the indictment. Such count alleges “that from on or about November 30, 1969 to on or about June 8, 1970, in the District of Nebraska, Dale Paul Glup willfully and knowingly engaged in the business of dealing in firearms in interstate commerce at 5608 Weir Street, Omaha, Nebraska, without having been licensed to do so under the provisions of Chapter 44, Title 18, United States Code.

“In violation of section 922(a)(1) and 924(a), Title 18, United States Code.”

The objection made is that the indictment “is vague and indefinite and fails to inform the accused of what acts he must defend against.” Reliance is had principally upon United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1875), Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1886), and United States v. Hess, 124 U.S. 483, 8 S.Ct. 571, 31 L.Ed. 516 (1888).

There was a time in the history of our law when the indictment was an instrument of such archaic and arcane verbosity that it served more to confuse than to enlighten. Thus an indictment for “Selling a Diseased Cow in the Public Market” required three printed pages of fine print. Such exercises are now, happily, things of the past. As we held in Taylor v. United States, 332 F.2d 918 (8th Cir. 1964):

“Rule 7(c), Federal Rules of Criminal Procedure, 18 U.S.C.A., provides in part:
“The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * * It need not contain * * * any other matter not necessary to such statement.”
The Supreme Court in United States v. Debrow, 1953, 346 U.S. 374, 376, 74 S.Ct. 113, 114, 98 L.Ed. 92, in construing Rule 7 (c), stated:
“ ‘The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, “and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.” ’ ” [Quotation marks as appearing in original.]

An analysis of the indictment, supra, in the light of the applicable statutes, set forth hereinabove, makes clear that it contains the elements of the offense charged. Our conclusion, as we noted in United States v. Anderson, 447 F.2d 833 (8th Cir. 1971), is strengthened by the fact that the indictment substantially follows those found in the Appendix of Forms attached to the Federal Rules of Criminal Procedure. It is true that the indictment before us is not replete with the details formerly thought necessary for a complete indictment. Thus appellant points out that he is not informed by the indictment whether he is to be tried as a seller of “bombs or grenades; rockets or missiles,” or is a “pawnbroker.” Such arguments, if accepted, would have no end as we proceeded next to what kind of a bomb was meant, or what was the category of missile or rocket. This is not to say that such questions may not be material. But what we must distinguish, in the issue before us, are those matters constitutionally essential from those informative only.

Such discovery as is authorized by the Federal Rules of Criminal Procedure may be obtained by utilization, in part, of Rule 7(f), of a motion for a bill of particulars, its grant or denial remaining within the sound discretion of the trial court.

The dismissal of the indictment is reversed and the case remanded.

      . 18 U.S.O., § 922. Unlawful acts (a) It shall be unlawful—
      (1) for any person, except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms or ammunition, or in the course of such business to ship, transport, or receive any firearm or ammunition in interstate or foreign commerce; 18 U.S.C. § 924. Penalties
      (a) Whoever violates any provision of this chapter or knowingly makes any false statement or representation with respect to the information required by the provisions of this chapter to be kept in the records of a person licensed under this chapter, or in applying for any license or exemption or relief from disability under the provisions of this chapter, shall be fined not more than $5,000, or imprisoned not more than five years, or both, and shall become eligible for parole as the Board of Parole shall determine.
      See, also, 18 U.S.C. §§ 921(a)(3) and (11) defining “firearm” and “dealer” respectively :
      18 U.S.C. § 921. Definitions (a) As used in this chapter—
      (3) The term “firearm” means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.
      (11) The term “dealer” means (A) any person engaged in the business of selling firearms or ammunition at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (O) any person who is a pawnbroker. The term “licensed dealer” means any dealer who is licensed under the provisions of this chapter.

      . Joyce, Indictments (1908), pp. 834-837.

      . “The [Rules] were designed to eliminate technicalities in criminal pleading and are to be construed to secure simplicity of procedure.” United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (1953), reversing the dismissal of a perjury indictment for failure to state the name of the person administering the oath. See, also, Committee Notes on Rule 7(c), 8 Moore’s Federal Practice § 7.01 [2]:—“This rule introduces a simple form of indictment, illustrated by Forms 1 to 11 in the ‘Appendix of Forms’.”

      . See United States v. Bagdasian, 291 F.2d 163 (4th Cir. 1961), cert. den. 368 U. S. 834, 82 S.Ct. 60, 7 L.Ed.2d 36 (1961); Martin v. United States, 285 F.2d 150 (10th Cir. 1960), cert. den. 365 U.S. 853, 81 S.Ct. 818, 5 L.Ed.2d 816 (1961); Cf. Form 5, Fed.R.Crim.Proc.App. of Forms, indicting John Doe, in that “On or about the -- day of -, 19 — , in the - District of -, [he] carried on the business of a distiller without having given bond as required by law.”

      . “The specificity formerly held necessary to charge an offense is no longer required or sanctioned.” Donnelly v. United States, 185 F.2d 559 (10th Cir. 1950), cert. den. 340 U.S. 949, 71 S.Ct. 528, 95 L.Ed. 684 (1950).


author: PER CURIAM.

text:
    Joe W. GRANT, Plaintiff-Appellee, v. Casper W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellant.
    No. 73-1115.
    United States Court of Appeals, Sixth Circuit.
    Argued June 8, 1973.
    Decided July 18, 1973.

      Stanton R. Koppel, Dept, of Justice, for defendant-appellant; Harlington Wood, Jr., Asst. Atty. Gen., John P. Milanow-ski, U. S. Atty., Kathryn H. Baldwin, Atty., Dept, of Justice, Washington, D. C., on brief.
    Edward M. Welch, Jr., Muskegon, Mich., for plaintiff-appellee; Mc-Croskey, Libner, Van Leuven, Kortering, Cochrane & Brock, by Edward M. Welch, Jr., Muskegon, Mich., on brief.
    Before WEICK, EDWARDS and PECK, Circuit Judges.
   PER CURIAM.

Appellant, Secretary of Health, Education and Welfare, appeals from the grant of full Social Security disability benefits by the United States District Court for the Western District of Michigan, Southern Division.

This case is an extension of the debate previously joined in Lofty v. Richardson, 440 F.2d 1144 (6th Cir.), cert. denied, 404 U.S. 985, 92 S.Ct. 443, 30 L.Ed.2d 369 (1971), and ultimately decided in Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971). These cases concerned a due process attack upon 42 U.S.C. § 424a (1970), wherein Congress provided an offset against Social Security disability payments of the amount of any payments for disability then being made under a state workmen’s compensation plan.

In the instant case plaintiff Grant suffered the amputation of his arm in the course of his employment at the Lakey Foundry Corporation. The employer paid the sums provided by the Michigan Workmen’s Compensation Act (see M.S.A. 17.237 (361) (Cum.Supp. 1972)), M.C.L.A. § 418.361. This provision provides in part that the “disability . . . shall be deemed to continue for the period specified. arms, 269 weeks . . .” (M.S.A. 17.-237(361) (i) (Cum.Supp.1972)).

The administrative decision and that of the Hearing Examiner and the appeals council was that the payments provided for the loss of the arm must be offset against Social Security disability payments. On petition to review that decision before the District Judge, the Judge recognized that Richardson v. Belcher, supra, and Lofty v. Richardson, supra, were controlling on the constitutional issue pertaining to due process, but held that Michigan case law, particularly Jones v. Cutler Oil Co., 356 Mich. 487, 97 N.W.2d 74 (1959), demonstrated that specific loss benefits under the Michigan Workmen’s Compensation statute are not dependent upon actual (as opposed to presumed) disability, but really amount to arbitrarily determined amounts paid for the loss of a specific portion of the body. See Magreta v. Ambassador Steel Co., 378 Mich. 689, 148 N.W.2d 767 (1967).

The decision of this court in Lofty, supra, and that of the Supreme Court in Richardson, supra, apply an arguably harsh result because it seemed obvious to the courts concerned that Congress intended the offset and that its legislative decision was well within its legislative powers. In this case the harshness of the Congressional enactment is even further illustrated. The loss is permanent and in the instance of this totally disabled plaintiff, it will not result in any benefit at all in excess of what he would have received (without Workmen’s Compensation) from Social Security total disability benefits alone.

The purpose of the offset amendment, as well as its method of operation, seems plain to us from the face of the statute:

§ 424a. Réduction of disability benefits through receipt of workmen’s compensation
(a) If for any month prior to the month in which an individual attains the age of 62—
(1) such individual is entitled to benefits under section 423 of this title, and
(2) such individual is entitled for such month; under a workmen’s compensation law or plan of the United States or a State, to periodic benefits for a total or partial disability (whether or not permanent), and the Secretary has, in a prior month, received notice of such entitlement for such months,
the total of his benefits under section 423 of this title for such month and of any benefits under section 402 of this title for such month based on his wages and self-employment income shall be reduced (but not below zero) by the amount by which the sum of—
(3) such total of benefits under sections 423 and 402 of this title for such month, and
(4) such periodic benefits payable (and actually paid) for such month to such individual under the workmen’s compensation law or plan,
exceeds the higher of—
(5) 80 percentum of his “average current earnings”, or
(6) the total of such individual’s disability insurance benefits under section 423 of this title for such month and of any monthly insurance benefits under section 402 of this title for such month based on his wages and self-employment income, prior to reduction under this section.

42 U.S.C. § 424a. (1970).

We note, of course, the District Judge’s reliance upon state law holdings that under the Michigan Compensation law specific benefits are not dependent upon proof of incapacity for work. See Magreta v. Ambassador Steel Co., 378 Mich. 689, 696, 148 N.W.2d 767 (1967). This fact, however, does not serve to remove these benefits from the Michigan Workmen’s Compensation plan or to demonstrate any Congressional intent to exclude them under § 424a.

Since the benefits for specific loss which are the subject of this dispute are provided for the months concerned “under a workmen’s compensation law or plan ... of ... a State” the offset mandated by the statute must be given effect. Richardson v. Belcher, supra, 404 U.S. at 84, 92 S.Ct. at 258.

The judgment of the District Court is reversed and the case is remanded for entry of judgment in favor of the Secretary.


author: JOHN R. BROWN, Chief Judge:

text:
    Robert GISSENDANNER, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee. Samuel CHOICE, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee. John Forest SMALLEY, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.
    Nos. 72-1311, 72-1565, 72-1566.
    United States Court of Appeals, Fifth Circuit.
    July 17, 1973.

      Fleet & Stone, J. Leonard Fleet, Hollywood, Fla., for petitioners-appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Nelson E. Bailey, Asst. Atty. Gen., West Palm Beach, Fla., for respondent-appellee.
    Before JOHN R. BROWN, Chief Judge, TUTTLE and INGRAHAM, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

In this consolidated appeal from the denial of federal habeas corpus relief, the petitioners (all three of whom were convicted in a Florida court on a charge of rape) contend that the decision was wrong for these reasons: (i) a car belonging to petitioner Smalley was illegally searched without a warrant or his consent with the damaging fruits being introduced against all, (ii) a statement made by petitioner Gissendanner at the time of his arrest was involuntary and, therefore, should have been suppressed, (iii) Choice and Smalley were unfairly incriminated by the hearsay testimony of a police officer who related Gissen-danner’s statement “that he was wanted in Broward County for an alleged rape, that he was with the other fellows but that he didn’t do anything”, (iv) the lineup identification of Choice and Gis-sendanner was the “fruit of the poisonous tree” in that it was made following the coerced and ultimately suppressed confession of Smalley in which he named his co-participants in the crime, (v) all three defendants were insufficiently identified by the prosecutrix, (vi) the trial court’s instruction unfairly placed the burden of proof of alibi on the defendants and, finally (vii) the defendants, all Negroes accused of raping a white woman, were tried in an atmosphere of prejudice.

After oral argument and a careful review of the record as to each point, we conclude that each contention is lacking in merit. Except as to two matters, all are adequately discussed in the identical orders of the District Court involved which we attach as an appendix. As the appendix reflects, there were, on the state court trial, substantial conflicts concerning most of these incidents, e. g., the search of the car, the interrogation of Gissendanner on the highway, etc. Credibility choices had to be, and were made. The state court recofd fully satisfied the requirements of 28 U.S.C.A. § 2254. The District Court was right in rejecting these.

Only two matters need be further discussed. First, petitioners are correct in assertion (vi) that the trial court’s charge improperly placed the burden of proof of the alibi on the defendants, as we held in Smith v. Smith, 5 Cir., 1971, 454 F.2d 572. However, the instant case was tried in 1966, some five years before the decision in Smith v. Smith, supra. We have subsequently held that decision does not apply to trials conducted before December 14, 1968. Bassett v. Smith, 5 Cir., 1972, 464 F.2d 347.

The second point (iv) requiring our attention is petitioners Gissendanner and Choice claim that their identification in the lineup was — to once again put scars on an overworked cliche — the “fruit of the poisonous tree” since their identities were learned initially through the ultimately suppressed confession of Smalley. Thus, they claim that had he not implicated them, they would not have been in the lineup and their participation in the crime uncovered.

At first blush, this is a beguiling argument which might seem to flow from the Supreme Court’s holding in Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. In that case, the Court stated:

Thus, verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers’ action in the present case is no less the “fruit” of official illegality than the more common tangible fruits of the unwarranted intrusion.

371 U.S. at 485-486, 83 S.Ct. at 416, 9 L.Ed.2d at 454 (footnote by the Court omitted).

The holding in Wong Sun stemmed in part from an earlier holding in Silverthorne Lumber Co. v. United States, 1919, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319. The Court’s rationale for excluding tainted evidence was:

The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the government’s own wrong cannot be used by it in the way proposed.

251 U.S. at 392, 40 S.Ct. at 183, 64 L.Ed. at 321. See also Nardone v. United States, 1939, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (Nardone II). The basic doctrine then, is that evidence which is obtained illegally may not be used against the person from whom it is obtained. It is not only the physical or tangible evidence which is excluded, but also the verbal or intangible. Wong Sun, supra.

The basic exclusionary rule has been applied many times. In Williams v. United States, 5 Cir., 1967, 382 F.2d 48, this Court reversed a conviction for forgery of a government cheek where the defendant’s car had been illegally searched, producing evidence that led to the store proprietor who had cashed the check. The defendant had not originally been under surveillance for the suspected theft and forgery of the cheek. It was only through the constitutionally impermissible search of the defendant’s police-impounded automobile that the evidence was uncovered which led to the shopkeeper’s identification of the defendant. The Court found the identification to be tainted because it was “apparent that the identification of [the defendant] by [the storekeeper] was an indirect product of the illegal search and not a product of independent activity of the postal inspectors,” 382 F.2d at 51, [citing Wong Sun and Silverthorne].

In a recent decision, United States v. Marder, 5 Cir., 1973, 474 F.2d 1192, this Court reaffirmed the general principle that if “the identity of a government witness and his relationship to the defendant are revealed because of an illegal search and seizure, the testimony of such witness must be excluded. Williams v. United States, 382 F.2d 48 (1967).” The issue there was whether a witness who could not have been located but for an illegal wiretap should be prohibited from testifying since his identity was the fruit of the poisonous tree. The Court affirmed the conviction on the ground that the evidence given by the witness discovered through an illegal search (the wiretap) had a “de minimis bearing on the question of guilt or innocence when viewed in light of the overwhelming evidence of guilt from other sources.” 474 F.2d at 1197.

But, beguiling as it is, we resist the temptations of the serpent of another tree, not only to eat, but swallow the fruit or the fruit of the fruit, or the theory of the fruit, poisoned, palatable or forbidden. For these cases do not compel a holding that the identification of Choice and Gissendanner was the impermissible product of an illegal confession. In arriving at this result, we note two critical things which make it a non-Wong Sun case. First, Smalley’s confession was suppressed and was never introduced into evidence against any defendant. The thrust of Wong Sun and Silverthome is basically a rule of evidence being used on the trial to obtain conviction. It is fundamental that all relevant evidence is admissible unless excluded on some accepted ground. I Wigmore on Evidence, § 10 at page 293 (3d Ed. 1940); McCormick on Evidence, § 151 at page 314 (1954). While Smal-ley’s confession was clearly a statement of probative value, it was suppressed at the outset on constitutional grounds and hence was never a part of the proof against any of the accused. For whatever reason, the fact remains that the confession was excluded from evidence and in no way was it used against Smal-ley, Choice or Gissendanner at the trial.

Since they do not complain that the poisoned fruit was set before the jury for its consumption, what Choice and Gissendanner seek in effect is an immunity from prosecution because the first finger was put on them by reason of the violation of a third party’s constitutional rights. They claim the state should have arrived at their identities through some independent source other than the confession. The suggestion that the policeman’s mind must be the tabula rasa is a fanciful one at best. The contention would mean that once the authorities have obtained the names of the others involved, not knowing that months or years later the source will prove to be invalid as to someone else, they would have to ignore this information and seek it from another independent source. Added to the problem would be the likelihood that if such a valid independent source were subsequently discovered, the coactors thus revealed could always assert that since the first source was “the poisonous tree” all subsequently discovered sources of the same names would be tainted. The effect of such a holding would be, of course, either to confer an immunity from prosecution bn every person whose name was thus initially revealed or to impose on the prosecution not just the burden of establishing beyond a reasonable doubt the identity and culpability of those charged, but to prove as a part of the prosecution that the identification had come from independent sources without taint from the invalid initial revelation. Choice and Gissendanner cite us no eases where any court has adopted this palimpsest theory, elongating an essentially evidentiary rule into a new form of constitutional immunity.

In support of this theory these appellants urge that to hold otherwise is to free the police from constitutional shackles which protect the citizen from illegal arrests, unconstitutional searches, the extortion or coercion of confessions, and the like. In short, they seek a new application of the exclusionary rule contending that unless all is excluded, policemen who are constitutionally derelict would profit by their excesses and to deter such conduct society must bear the high cost of the guilty going free.

Certainly, before any consequences so destructive of society’s right to be protected from violent crimes is to be set in motion, there would have to be a respectable showing that (i) it was solely through such invalid source that identity was ascertained and (ii) there was no likelihood that it would have subsequently been discovered through other police efforts. In summary, there is no showing on this record that, whatever violations might have occurred as to Smalley, law officers knowingly employed illegal methods to extract from Smalley the names of the other cocrimi-nals or that in the normal police work investigation their identities would not have turned up.

There is a second critical distinction between this case and those cases stressed by these appellants. The vital element of standing in Wong Sun, Silverthorne, Williams, and the others is not present here. To put it simply, what right of the petitioners Choice and Gissendanner was violated? It was not they whose confessions were illegally garnered. It was not they against whom some illegal evidence was used in court. This factor comes into a sharper focus since there has been no contention that the actual lineup which followed the implicating Smalley statement was conducted without all the constitutional sanitation required by the cases of Coleman v. Alabama, 1970, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387; United States v. Wade, 1967, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Stovall v. Denno, 1967, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; and others. Thus, the lineup itself is not the basis for the claim of constitutional impropriety. Rather, it is that without the Smalley confession they would never have been in the lineup.

In a recent decision of this Court, United States v. Maryland, 5 Cir., 1973, 479 F.2d 566 [(on rehearing)], the Court remarked that one must have been a victim of the illegal action in order to challenge it. In the context of a search and seizure question we stated he may not be merely one “who claims prejudice only through the use of evidence gathered as a consequence of a search and seizure directed against someone else,” citing the case of Jones v. United States, 1960, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. We thus agree that no denial of any constitutional right of these two appellants has been shown on this record. They are in no position to assert the invalidity of the Smalley confession because it was not introduced into evidence against them. The tree might have been poisoned, but Smalley, unlike the scriptural Adam, was not the vicarious representative of all man, to bestow on them, here including Choice and Gis-sendanner, not his but the sins of the policeman. They were not a party to it, were not in any way participants, so none of the rights of either was violated in its taking.

Affirmed.

APPENDIX

The District Court’s orders discussed each point as follows:

(i) illegal search of Smalley’s car was conducted, the fruits of which incriminated all:

“The record shows that on January 13, 1966 at approximately 8:15 p. m. in North Miami Beach, Florida the prose-cutrix was accosted on the street by three black youths who arrived on the scene in a 1956 Ford Victoria, blue and white. She was then driven to the home of the sister-in-law of the petitioner Gis-sendanner in Hollywood. Earlier that same day Gissendanner had helped his sister-in-law move from that house. Upon arrival at the house prosecutrix was raped by the three assailants who were positively identified by her at trial as the petitioners. After the rape the prosecutrix sought assistance at the house next door whereupon the police were summoned. That same evening the prosecutrix gave the police a description of the vehicle. The vehicle was detected later that evening in Hollywood and a license tag check revealed it was registered to petitioner Smalley. Upon receipt of this information the officers proceeded to Smalley’s residence. Officer Madole testified that upon arrival at Smalley’s residence he identified himself to Smalley’s mother whereupon Smalley then came out of the house. Madole then testified that Smalley admitted that the car was his; that he later asked Smalley if he could have permission to search the ear and advised him that he had no obligation to do so; that he could contact an attorney and that if he found anything material in the car it could be used against him. Madole then testified Smalley gave his consent to search the car. As a result of this search a sandal was found in the car which was identified by the prosecutrix as being similar to one she wore on the night in question.

It is well accepted that consent may constitute a waiver of Fourth Amendment rights. Zap v. United States, 328 U.S. 624 [66 S.Ct. 1277, 90 L.Ed. 1477] (1946). However, the waiver must be an intentional relinquishment of a known right or privilege, Johnson v. Zerbst, 304 U.S. 458 [53 S.Ct. 1019, 82 L.Ed. 1461] (1938), and is not to be lightly inferred but rather must be shown by clear and convincing evidence. Phelper v. Decker, 401 F.2d 232 (5 Cir. 1968). Although the testimony at the trial was contradictory on the issue of consent, the question of the credibility of the witnesses was for the trier of the facts. .The trial judge obviously gave credit to Officer Madole’s testimony which was legally sufficient to constitute consent to the search of Smalley’s car. In any event the petitioners Gis-sendanner and Choice would not have any standing to object to this search because they were neither present when it was conducted nor did they have any interest whatsoever in the car.”

(ii) that Gissendanner’s statement was involuntary and should have been suppressed;

(iii) that Choice and Smalley were unfairly incriminated by Gissendanner’s statement:

“After the sandal was found in Smal-ley’s car, he was arrested and gave a statement admitting his complicity in the crime and implicated petitioners Gis-sendanner and Choice. This statement was later suppressed and, therefore, not introduced into evidence at the trial. As a result of the statement, however, arrest warrants issued for petitioners Gissendanner and Choice. Officer Robert Elliott then testified that at about 7:30 p. m. on January 19, 1966, he observed a vehicle in Dade County travel-ling at a high rate of speed. He stopped the car which contained some five or six passengers. In questioning some of the passengers he asked one to step to the rear of the car because two of the passengers had given him the same name. While he was talking to one of the passengers, petitioner Gissendanner stepped from the vehicle, walked to the back of the car and told him that his name was Robert Gissendanner, “and that he was wanted in Broward County for an alleged rape, that he was with the other fellows but that he didn’t do anything.” This statement of Gissendanner’s was introduced into evidence at the trial. Petitioners presented evidence which sharply contradicted the testimony of Officer Elliott regarding the circumstances under which Gissendanner made this statement. Petitioners accused Officer Elliott and other officers who had arrived on the scene of threats and other coercive tactics in obtaining Gissendan-ner’s identity and the statement. Here again the credibility issue was obviously decided against petitioners. Under the version of the facts as relayed by Officer Elliott the statement was clearly admissible. It is well settled that volunteered statements not the product of interrogation are admissible into evidence regardless of whether Miranda rights are afforded. United States v. Sanchez, etc., [449] F.2d [204] [5 Cir. #30754, 9/8/71] United States v. Powers, 444 F.2d 260 (5 Cir. 1971). The record provides a factual basis to support the admissibility of Gissendanner’s statement.

Petitioners Smalley and Choice further contend that even if Gissendanner’s statement was admissible against him, its admission was violative of their Sixth Amendment right to confrontation. They rely upon Bruton v. United States, 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476] (1968). It is clear that the instant factual situation is significantly distinguishable from Bruton. The statement of Gissendanner did not in any way implicate Smalley and Choice. At most it acknowledged that there were “other fellows” involved in the commission of the crime. This came as no great revelation because the prosecutrix herself testified that she was raped by three assailants. Nothing in Gissendan-ner’s statement could be interpreted as bearing directly or indirectly against Smalley and Choice. This being so, the reliance upon Bruton is misplaced.”

(v) that the identification of all three defendants was insufficient;

(vii) that an air of racial prejudice existed :

“It is well settled that alleged errors regarding the sufficiency of evidence, jury instructions and alleged prejudicial comments will not provide a basis for Federal Habeas Corpus relief. Only when such matters reach a level of federal constitutional dimension will Federal Habeas Corpus relief be available. The alleged error must be one that rendered the trial so fundamentally unfair so as to amount to a denial of due process. Young v. State of Alabama, [443] F.2d [854] [5 Cir. #71-1355, 6/7/71]; Pleas v. Wainwright, 441 F.2d 56 (5 Cir. 1971); Scolf [Scalf] v. Bennett, 408 F.2d 325 (8 Cir. 1969); Linebarger v. Oklahoma, 404 F.2d 1092 (10 Cir. 1968), cert. den. 394 U.S. 938 [89 S.Ct. 1218, 22 L.Ed.2d 470].

Petitioners’ complaint concerning the sufficiency of the evidence regarding the identification of them by the prose-cutrix stems from testimony of prior statements by her made shortly after the crime indicating her inability to make an identification. Here again a credibility question was involved. Despite these prior statements the record contains sufficient evidence upon which the jury could have reasonably believed the prosecutrix’s identification of petitioners.

The complained of jury instruction and the prosecutor’s comments clearly do not present constitutional questions.”

      . The late Judge Ted Cabot heard the petitions of Choice and Smalley. The Gis-sendanner petition was decided by Judge Peter T. Fay.

      . In Nardone II, which cited Nardone I, (tlie first appeal of the case, in 1937, reported at 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314) the Court dealt with the question of evidence obtained through the use of wiretaps and used derivatively:
      AYe are here dealing with specific prohibition of particular methods in obtaining evidence. The result of the holding below is to reduce the scope of § 605 to exclusion of the exact words heard through forbidden interceptions, allowing these interceptions every derivative use that they may serve. Such a reading of § 605 would largely stultify the policy which compelled our decision in Nardone v. United States, supra. That decision was not the product of a merely meticulous reading of technical language. It was the translation into practicality of broad considerations of morality and public well-being. This Court found that the logically relevant proof which Congress had outlawed, it outlawed because “inconsistent with ethical standards and destructive of personal liberty.” 302 U.S. 379, 384, 58 S.Ct. 275, 277, 82 L.Ed. 314, 317. To forbid the direct use of methods thus characterized but to put no curb on their full indirect use would only invite the very methods deemed “inconsistent with ethical standards and destructive of personal liberty.”
      308 U.S. at 340, 60 S.Ct. at 267, 84 L. Ed. at 311.

      . The record, state and federal, fails to indicate on wliat specific grounds the confession was suppressed, nor are the briefs any more revealing. On oral argument we were informed without contradiction that the confession was suppressed in the state proceedings because of a failure to give the warnings required by Miranda v. Arizona, 1967, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Miranda’s basic premise, that the accused must be informed of his constitutional right to counsel and privilege against self-incrimination, affords no protection to Choice and Gis-sendanner. The admission of evidence against these appellants which may have been the result of Smalley’s inadmissible confession in no way encroaches their right to counsel or privilege against self-incrimination. The exclusionary rule does not provide a basis for asserting these rights in this context.

      . In United States v. Resnick, 5 Cir., 1973, 483 F.2d 354, we pointed out that independent leads could attenuate the taint:
      “Appellant next contends that * * * the identity of the witness was the fruit of the poisonous tree.4
      Of course a witness’ identity may be derived solely or principally from illegally obtained evidence and warrant a court in disallowing his testimony. Williams v. United States, 5 Cir., 1967, 382 F.2d 48, 51. See Silverthorne Lumber Co. v. United States, 1920, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319; Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Harrison v. United States, 1968, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047; United States v. Whelan, 5 Cir., 1972, 463 F.2d 1093. But the taint of the unlawful search may be removed if there are independently sufficient ‘leads’ by which the government may discover the identity. See Nardone v. United States, 1939, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307.”
      [4 The point was preserved in this way;
      THE COURT: Mr. Russ, out of the presence of the jury, my recollection was that there was something you wanted to take up regarding witnesses.
      MR. RUSS : Well, I wanted to sort of challenge the cleanliness of some of the newly found witnesses, Your Honor. There is a suspicion that they are tainted by the — Put it this way: that because of a dirty search, some of the dust has fallen off of them and consequently they fall in the area of rotten apples and poisoned fruit, or something like that.
      THE COURT; Sounds like Chief Judge Brown.]
      483 F.2d 356, 357.

      . We have applied this in a number of cases: Dryden v. United States, 5 Cir., 1968, 391 F.2d 214 (Appellant made self-incriminating statements in conversation over telephone line where subscriber had not consented to wiretap— Court held Appellant had no standing to complain of violation of subscriber’s rights) ; United States v. Coley, 5 Cir., 1971, 441 F.2d 1299 (Appellant’s co-defendant made incriminating statements in telephone conversations which were taped by government informer — Court held that Appellant had no standing to complain of violations of Fourth Amendment rights where he was not a party to the conversations and had no interest in the telephones or premises); Granza v. United States, 5 Cir., 1967, 377 F.2d 746 (Appellants were implicated in a narcotics smuggling conspiracy where the seizure of the incriminating evidence was facilitated by the illegal searches of a suitcase and a hotel room used by other members of the group — Court held appellants had no standing to complain where they had no interest in the items seized and premises searched).

      . See Jacobs v. Warden of the Maryland Penitentiary, 4 Cir., 1966, 367 F.2d 321. That case is factually somewhat similar to the instant ease, and the Court’s resolution of the problem squares with that which we hold today. The appellant there was an employee of a department store, who, after some period of filching clothing became bolder and masterminded an armed robbery of the store. One of the robbers, Kelly, was arrested and confessed, implicating Jacobs who was immediately arrested. Kelly’s confession was later suppressed on the grounds that there was not an adequate showing of probable cause to arrest him and the statement was, therefore, the involuntary product of an illegal arrest. Rejecting Jacobs’ claim that the invalid Kelly confession could not be the basis for probable cause for Jacobs’ arrest, the Court had these comments:
      Jacobs contends that, since Kelly’s confession has been held involuntary as the technical product of his illegal arrest, it could not furnish probable cause for a belief that Jacobs was a participant in the crime which the officer knew had been committed. He concludes that his arrest must also have been unlawful and his confession the product of the unlawful arrest.
      The contention draws the thread too fine. The connection between Kelly’s illegal arrest and his confession is sufficiently close that the latter may be said to be dependent upon the former. The connection between Kelly’s illegal arrest and Jacobs’ confession is far more attenuated. The fruit-of-the-poisonous-tree doctrine need not be extended to its seedlings.
      367 F.2d at 322-323 (footnote by the Court omitted).
      [The exclusionary] rule, however, has been applied only to the protection of the victim of the search from its immediate, if collateral, consequences. Its purpose is to restore the victim to the position he would have been in had his right to be secure, from an unlawful search been observed. It has never been extended to cloak strangers to the unlawful search with absolute or conditional immunities.
      The District Court, here, applied a similar rule to redress the wrong done Kelly when he was arrested without probable cause. Refusal to permit use of Kelly’s confession against him, however, is an entirely sufficient recompense. The protection of Kelly’s right does not require that others, who have suffered no deprivation of their rights, be made the beneficiaries of the exclusionary rule.
      Again, Kelly’s confession had all of the hallmarks of trustworthiness. If now it must be held unusable against Kelly because the police, who kept no records to prod their memories after the lapse of time, are now unable to identify their informants and justify Kelly’s arrest, there was no unfairness of constitutional proportion in confronting Jacobs with the information Kelly had furnished the police,
      Id. at 323.


author: WILLIAM E. DOYLE, Circuit Judge. LEWIS, Chief Judge

text:
    The ANACONDA COMPANY, a Montana corporation, Plaintiff-Appellee, v. William D. RUCKELSHAUS, Administrator of the United States Environmental Protection Agency, et al., Defendants-Appellants.
    No. 73-1272.
    United States Court of Appeals, Tenth Circuit.,
    Argued and Submitted July 11, 1973.
    Decided Aug. 8, 1973.
    Rehearing Denied Sept. 5, 1973.

      Henry J. Bourguignon, Atty., Dept, of Justice (Wallace H. Johnson, Asst. Atty. Gen., James L. Treece, U. S. Atty., and Charles W. Johnson, Asst. U. S. Atty., Denver, Colo., and James A. Glasgow and Carl Strass, Attys., Dept, of Justice, on the brief), for defendants-appellants.
    Harry L. Hobson of Holland & Hart, Denver, Colo. (Robert T. Connery and R. Brooke Jackson, Holland & Hart, Denver, Colo., on the brief), for plaintiff-appellee.
    Before LEWIS, Chief Judge, and McWILIAMS and DOYLE, Circuit Judges.
   WILLIAM E. DOYLE, Circuit Judge.

This is an action instituted in the United States District Court for Colorado by Anaconda Copper Company of Butte, Montana, seeking injunctive relief against various officials of the Environmental Protection Agency. Plaintiff sought relief against the promulgation of a proposed rule controlling emissions of sulfur oxide in Deer Lodge County, Montana unless and until defendants-appellants conduct an adjudicatory hearing and unless and until it promulgates an environmental impact statement. The district court granted the requested relief in an extensive opinion which is reported at 352 F.Supp. 697 (D.Colo.1972).

The suit was instituted here September 26, 1972. The trial court heard testimony on the preliminary injunction request for three days at the completion of which the mentioned declaratory judgment and injunctive relief were issued.

As a partial basis for jurisdiction, the trial court invoked 42 U.S.C. § 1857h-2 authorizing citizen suits to enforce the Act. The trial court also considered the case as one in which the plaintiff’s constitutional rights were in jeopardy and reasoned that the emergency relief was justifiable on this ground.

The questions presented to this court on appeal are first, whether the Environmental Protection Agency must file an environmental impact statement before it proposes or promulgates a regulation as part of a state implementation plan under § 110(c) of the Clean Air Act Amendments of 1970. Second, whether the Environmental Protection Agency is obligated to grant to Anaconda an adjudicatory hearing with the right to subpoena and cross-examine witnesses before promulgating or indeed holding further hearings on its proposed regulation under § 110(c) of the Clean Air Act Amendments. The crucial aspect of the case is then the validity of the proposed EPA regulation for the control of sulfur oxide emissions in Deer Lodge County, Montana where Anaconda operates its smelter. The company is the only significant source of sulfur oxide pollution in the county and so con-cededly the proposed regulation, although general in form, would apply to Anaconda alone.

Preliminary to the issuance by EPA of the proposed regulation, efforts were made to persuade state officials to issue a plan as required by the Clean Air Act Amendments of 1970. The Montana State Board of Health held a public hearing on Montana’s proposed implementation plan. Anaconda was present and presented its views on the state’s proposed regulation for restricting sulfur oxide emissions. Following this hearing, Montana submitted to the EPA an implementation plan, but the provision for control of sulfur oxide emissions was omitted. The state plan then was disapproved by the EPA on May 31, 1972 insofar as it excluded the sulfur oxide emissions provisions. Following this action the administrator of the EPA, on July 27, 1972, proposed a regulation to control the emission of sulfur oxide within the County. This proposal would have limited emissions to a discharge of 7,040 pounds of sulfur oxides per hour. At the same time, EPA gave notice of intent to hold public hearings on its proposal on a date 30 days after the issuance. This provision of the regulation is said to have been patterned after the sulfur oxide emissions limitation which had been in the state’s proposal which was deleted.

Anaconda immediately demanded an adjudicatory hearing on EPA’s proposed regulation, but EPA’s reply was that the public hearings were to be legislative or informational and not adjudicatory. Subsequently, it was further explained that the hearing would not be conducted in the nature of a trial. Instead, any interested persons or corporations could make a statement and all relevant testimony would be received. Also, the hearing record would remain open until October 7, 1972, for written statements or other submissions. After that there would be a further hearing to allow further public statements.

Anaconda’s position expressed at the hearing was that it was spending large sums of money on its own initiative in an effort to control sulfur oxide emissions; that it was preparing to restrict them from the current rate of 64,000 pounds per hour to 50,000 pounds per hour. Its position was further expressed that the 7,040 pounds per hour would be technologically and economically unfeasible and would create a significant water pollution problem.

Soon after this the present suit was filed (on September 26, 1972). An extensive evidentiary hearing was conducted. The district court then rendered its decision on December 19,1972.

The question which we must first determine is whether it was proper for the district court to entertain the injunction suit in view of the fact that the administrative proceedings had not been completed and the statute calls for review by the court of appeals for the appropriate circuit (in this instance the Ninth). We conclude that it was not.

The other points advanced, as we have mentioned, are whether the EPA is subject to the NEPA requirement of environmental impact statements and whether an adjudicatory hearing must be held. The three mentioned issues are somewhat interrelated. Thus, under some circumstances, injunctive action by the district court is proper. Without attempting to formulate a general rule here, such action is ordinarily inappropriate in the middle of the administrative process unless the administrative action is virtually final and threatens irreparable injury consisting of a gross violation of fundamental rights.

I.

The presence of a statutory review remedy will ordinarily render the injunctive interruption of the administrative process improper. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938); Smith v. Duldner, 175 F.2d 629 (6th Cir. 1949); Gates v. Woods, 169 F.2d 440 (4th Cir. 1948). In the statute before us Congress has specifically provided that review of an approval or implementation plan is to be filed only in the United States Court of Appeals for the District of Columbia Circuit or for the appropriate circuit. See 42 U.S.C. § 1857h-5(b) (1). The intent of Congress to make the court of appeals the exclusive forum is apparent from that wording. Unquestionably injunctive relief in this context is a form of judicial review, 3 Davis Administrative Law Treatise § 23.04 (1958), but the injunction does not lie when the statutory remedy is adequate as it is here. The court of appeals is authorized to review all of the questions. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937); Anniston Mfg. Co. v. Davis, 301 U.S. 337, 345-346, 57 S.Ct. 816, 81 L.Ed. 1143 (1937). Indeed, it may even grant an injunction. See Eastern Greyhound Lines v. Fusco, 323 F.2d 477 (6th Cir. 1963); Public Utilities Comm’n v. Capital Transit Co., 94 U.S.App.D.C. 140, 214 F.2d 242 (1954); 28 U.S.C. § 1651.

It cannot be successfully argued that § 1857h-2(a) (2) which authorizes a citizen to commence a civil action against the administrator for failure to perform a non-discretionary duty justifies jurisdiction in this ease since Congress has made clear in § 1857h-5(b) (1) that the courts of appeals are to review the promulgation or implementation of a clean air plan.

Without question the present proceedings were of this character, and so the only effect of this action is to frustrate the administrative proceedings and to intrude on the court of appeals’ function. To allow review by way of injunction in the case at bar could only serve to cause delay and to take the case up in a district court removed from the scene is not appropriate either, for it could conceivably encourage forum shopping and the thwarting of procedures which Congress has carefully adopted. It follows then that where, as here, Congress has specifically designated a forum for judicial review of administrative action and does so in unmistakable terms except under extraordinary conditions, that forum is exclusive. See Getty Oil Company (Eastern Operations) v. Ruckelshaus, 467 F.2d 349 (3d Cir. 1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 (1973). A further reason for denying jurisdiction in this case is that the cause was not ripe for injunctive relief. The regulation here under review was merely a proposed one and not formalized and final. The problem here is much like that before the Supreme Court in Toilet Goods Association v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967). There the regulation had been promulgated but not applied to the particular litigant and the Court held that the promulgation of the regulation did not injure the party involved since there was no certainty that it would be brought to bear on him. The Court added:

We believe that judicial appraisal of these factors is likely to stand on a much surer footing in the context of a specific application of this regulation than could be the case in the framework of the generalized challenge made here.

This court had a somewhat similar problem before it in Pax Company of Utah v. United States, 454 F.2d 93 (10th Cir. 1972). There the Pax Company obtained an injunction against administrative proceedings which, if carried out, could have resulted in the cancellation of registration for weed and pest killers manufactured by Pax. This administrative action was instituted pursuant to the Federal Insecticide, Fungicide and Rodenticide Act. There, as in this case, the administrative procedures were not allowed to take their course. It was held that the administrative procedure in that case could result in Pax’s being exonerated; that Pax was unable to show present injury and, therefore, the extraordinary proceedings were inappropriate. The undesirability of allowing litigants to obtain threshold review by way of preliminary injunction, thereby avoiding the administrative hearing and the court review provided by statute was there mentioned.

In a recent decision, Utah International, Inc. v. Environmental Protection Agency and Jicarilla Apache Tribe of Indians, 478 F.2d 126 (10th Cir. 1973), this court dismissed a petition for review as not being ripe where it had not been finally promulgated. The court said that the matter before it was interlocutory and therefore not ripe for judicial review, citing Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), and Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967). Columbia Broadcasting System v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942) is distinguished in Toilet Goods on the basis that the regulation there was final and effective. Gardner v. Toilet Goods Ass’n, 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967), is also to be distinguished. There the regulation was bearing down on the litigant who was subjected to seizure of goods, heavy fines and possible criminal liability.

, We conclude that the case was not ripe for review and that there was not any justification for intervention by the district court.

II.

We are not called on to decide the merits of Anaconda’s contention that the EPA was required to file (consistent with the NEPA of 1969) a NEPA statement. Our holding above that the district court lacked jurisdiction precludes such decision. It is only necessary to inquire as to whether the contention appears meritorious whereby it could justify jurisdiction. Having done so, we conclude that the contention is lacking in merit and substance. The important point here is that the EPA’s sole mission is to improve the quality of the human environment. To compel the filing of impact statements could only serve to frustrate the accomplishment of the Act’s objectives. Moreover, the legislative history which is developed in Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375 (D.C.Cir., 1973) clearly establishes that such a statement was not contemplated by Congress.

Furthermore, no court of appeals has held that such an impact statement is necessary and the several decisions which have considered it have ruled that it is not. See Appalachian Power Co. v. EPA, 477 F.2d 495 (4th Cir., 1973); Duquesne Light Co. v. EPA, 481 F.2d 1 (3d Cir., 1973); Buckeye Power, Inc. v. EPA, 481 F.2d 162 (6th Cir., 1973); International Harvester Co. v. Ruckelshaus, 478 F.2d 615 (D.C.Cir., 1973).

This is not to say that the EPA is exempt from weighing and considering other environmental effects of its order. Being engaged in the environmental improvement effort, it must weigh these and other factors such as economics. It should, of course, inquire as to whether, for example, water pollution will result from its instant air cleaning program. No doubt it will fully weigh and consider these factors. We cannot assume that the administrative hearing will be a mere formality, that it will turn out to be a rubber stamp operation. If it is deficient, however, the reviewing court can soon remedy the condition.

III.

Our final question is whether there was sufficient substance to Anaconda’s contention so that it would appear that it has been deprived of procedural due process by EPA’s refusal to grant a trial type adjudicatory hearing. Assuming that a showing of real deprivation would justify a threshold injunctive hearing, we must determine that the showing here was grossly insufficient to justify the action taken. The trial court saw as a result of denial of an adjudicatory hearing a violation of procedural due process together with a violation of the Clean Air Act and the Administrative Procedure Act. We must disagree. The Administrative Procedure Act requires that there be an adjudicatory hearing only if the agency statute specifies that the particular rule-making hearings be “on the record after opportunity for an agency hearing.” No such requirement is set forth in the Clean Air Act. Notwithstanding that these words are used in other sections of the Act, omission of them in § 110(c) is therefore significant. See Allegheny-Ludlum Steel Co., 406 U.S. 742, 757, 92 S.Ct. 1941, 32 L.Ed.2d 453 (1972); 2 K.Davis Administrative Law Treatise § 13.08, at 225 (1958).

By requiring that the hearing under § 110(c) be public Congress sought to bring about broad and flexible participation from all interested groups subject always to a review by the court of appeals. The fact that the proceedings are transcribed does not, of course, mean that the hearing is “on the record.”

The fact that Anaconda alone is involved is not conclusive on the question as to whether the hearing should be adjudicatory, for there are many other interested parties and groups who are affected and are entitled to be heard. So the guidelines enunciated by Mr. Justice Holmes in Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915) are not applicable.

We have also examined the early decision in Londoner v. Denver, 210 U.S. 373, 386, 28 S.Ct. 708, 714, 52 L.Ed. 1103 (1908), and nothing therein imposes the adjudicatory requirement. There it was said by Justice Moody:

Many requirements essential in strictly judicial proceedings may be dispensed with in proceedings of this nature. But even here a hearing, in its very essence, demands that he who is entitled to it shall have the right to support his allegations by argument, however brief; and, if need be, by proof, however informal.

From our examination of the Act and the related case law and statutes, it would appear that the congressional requirement of a public hearing has been satisfied. Notice has been given and the proposed regulation has been issued. Anaconda appeared at that hearing and submitted material and was given an opportunity to submit more material and information for a period of 75 days following the public hearing. We perceive no violation of Anaconda’s right to procedural due process. See Myers v. Bethlehem Shipbuilding Corp., supra; NLRB v. Jones & Laughlin Steel Corp., supra; Anniston Mfg. Co. v. Davis, supra; Buckeye Power, Inc. v. EPA, supra; Pax Co. of Utah v. United States, supra.

Unending procedure could be produced by an adjudicatory hearing. This could bring about unending delay which would not only impede but completely stifle congressional policy. We do not, of course, condemn the trial court’s concern for the rights of Anaconda. Those rights are important and the court should be sensitive to them, but those rights are not of such magnitude as to overcome congressional policy and the rights of the remainder of the community.

The judgment of the district court is reversed and the cause is remanded with directions to vacate its judgment herein and to dismiss the action.

LEWIS, Chief Judge

(concurring).

I am not prepared to agree that the trial court lacked naked jurisdiction to entertain this action under 42 U.S.C. § 1857h-2 but am in complete accord with the views expressed in the main opinion when projected against the merits of the controversy. However, I wish to add a comment indicating my subjective disapproval of one aspect of E.P.A. procedure which surfaced during the presentation of oral argument.

It appears that the figure of the allowable sulfur oxide emission of 7,040 pounds set by the E.P.A. in its proposed regulation was not the work product of the agency staff and was simply an arbitrary figure, not intended by the agency as one defendable by the E.P.A. as reasonable in fact, and was used only as the bait for discussion at the public hearing to be later scheduled. Since the figure of 7,040 pounds constituted a reduction of 89% in Anaconda’s emission of sulfur oxide such a proposal certainly activated protest and discussion. However such procedure is inherently unfair, might well serve to destroy the value of corporate stock in a lesser company than Anaconda, and most certainly will deter any acceptance of expertise in the E.P.A. by the courts. All proposals by the E.P.A. should reflect, that agency’s considered judgment. Nothing less than that is acceptable to the public, industry, or the courts.

      . For similar results under other statutes, see UMC Industries, Inc. v. Seaborg, 439 F.2d 953, 955 (9th Cir. 1971); United States v. Southern Railway Co., 380 F.2d 49, 54 (4th Cir. 1967):

      . Our Circuit has a great abundance of environmental cases. There is no need for the courts of this Circuit to poach in the territory of the Ninth Circuit.

      . See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410-415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Cf. Buckeye Power, Inc. v. EPA, 481 F.2d 162 (D.C.Cir., 1973).

      . Although the trial court’s jurisdiction was controverted at the trial level this contention was neither briefed nor argued on appeal.