author: LAY, Circuit Judge.

text:
    Marie LANDESS, Appellant, v. Casper W. WEINBERGER, Secretary of Health, Education and Welfare, Appellee.
    No. 73-1493.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 16, 1973.
    Decided Feb. 12, 1974.
    James R. Reynolds, Ford, Ford & Crow, Kennett, Mo., for appellant.
    J. Patrick Glynn, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before GIBSON, LAY and HEANEY, Circuit Judges.
   LAY, Circuit Judge.

This is an appeal from the district court’s grant of summary judgment in favor of the Secretary of Health, Education and Welfare on the basis that substantial evidence supported the Secretary’s denial for disabled widow’s insurance benefits under 42 U.S.C. §§ 402(e) (1)(B)(ii) and 405(g).

We reverse with directions to the district court to remand the case to the Secretary for further evidentiary proceedings.

The only contested issue is whether the claimant, Marie Landess, is disabled under the Act. Mrs. Landess is 52 years of age and has been a widow since December 26, 1969. She has not been employed since 1945. At the hearing before the administrative law judge Mrs. Landess was not represented by counsel. She complained of back problems with nerve root symptoms, arthritis in her feet and a hiatus hernia which causes constant heartburn and regurgitation of food on stooping or bending. She said she had been instructed to remain off of her feet. In addition she has a fibroid uterus which causes her to be incapacitated on an intermittent basis. Although surgery has been recommended for her fibroid uterus and hiatus hernia none has been performed. Also myelo-graphic studies for her back have been suggested but not given.

At the hearing held on October 20, 1971, sketchy medical reports were submitted by the claimant’s two doctors. These reports generally confirm plaintiff’s illnesses; however, the reports are silent as to her complaints involving arthritis. Claimant’s back condition is diagnosed as a degenerative disc at the space of the first lumbar vertebra with a calcium deposit found at the space of S-4.

The hearing examiner telephoned Mrs. Landess’ physician, Dr. A. D. Brookre-son of Poplar Bluff, Missouri on September 18, 1970. He again verified her condition but indicated that he felt her hiatus hernia was getting better under treatment.

The Secretary requested an orthopedic examination from Dr. Frank Tull on December 15, 1970. Dr. Tull saw Mrs. Landess on only one occasion. He examined her primarily for her back complaints. He made certain objective findings which included limitations of motions bn flexion and extension. He suggested a myelogram as a basis for further study of her back condition. Thereafter two medical advisers for Health, Education and Welfare, Dr. F. S. Morest and Dr. John J. Holcomb, reviewed all of the medical reports submitted by the Secretary and without personal examination of the claimant independently concluded that “all of the medical evidence” shows that “claimant’s impairments do not meet or equal the level of severity prescribed in the Listings of Impairments, Appendix, to Sub-part P of Regulations No. 4.”

On the basis of the above evidence the hearing examiner found that the claimant had not sustained her burden of proof to show that she was disabled from engaging in “any gainful activity.” The claimant applied to the Appeals Council of the Social Security Administration for review. Thereafter she retained counsel, Mr. James R. Reynolds, who now represents her. Prior to the Appeals Council order affirming the hearing examiner, Mr. Reynolds obtained medical reports from claimant’s two physicians, Drs. A. F. and A. D. Brookreson, dated February 4, 1972 and March 30, 1972. The February report from Dr. A. F. Brookreson concluded:

It is my opinion from the physical examination that Mrs. Marie Landess is not able to do manual labor due to the above conditions, but a report from a neurosurgeon, with a myelogram to prove the ruptured disc might give more evidence to the seriousness of her condition.

We agree with the district court’s evaluation that the claimant did not sustain her burden of proof that she was unable to engage in any gainful activity by reason of any medically determinable physical impairment. However, our recent decisions have made it clear that the hearing examiner has a duty to fairly and fully develop the matters at issue. See Johnson v. Richardson, 486 F.2d 1023 (8th Cir. 1973); Sellars v. Secretary, 458 F.2d 984 (8th Cir. 1972). The administrative law judge in social security cases is in the peculiar position of acting as an adjudicator while also being charged with developing the facts. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). This is especially true when the claimants appear without counsel. Where it is obvious that the examiner has not fully developed the evidence, we have ruled the Secretary has the duty to reopen the claim until the evidence is sufficiently clear to make a fair determination as to whether the claimant is disabled or not. Sellars, supra, 458 F.2d at 986.

In the instant case, Mrs. Landess’ own testimony recites sufficient evidence to show that she is disabled to the extent that she cannot engage in any gainful activity. Of course, this by itself is not enough; there must be medical corroboration of her disability. Here the evidence gathered by the examiner from her physicians does not in any way develop the extent of her disability. Counsel’s belated attempt to supplement the record before the Appeals Council by additional reports demonstrates only that Mrs. Landess is disabled and cannot do manual labor. These reports still fall short of disclosing whether Mrs. Landess is so disabled that she cannot pursue any gainful activity. Claimant should be entitled to have the views of her treating physicians more fully developed.

We recognize the difficulties which come from the type of hearing often necessitated in social security cases where much of the medical evidence is submitted in report form. Written medical reports seldom provide a medical witness the opportunity to fully develop the overall physical or mental condition of a claimant and therefore the evidence is sometimes cryptic and without sufficient detail or opinion for a trier of fact to be able to reach a fair conclusion.

Although the law recognizes that written medical reports are admissible in a social security hearing and may be the sole basis for substantial evidence to support a social security determination agency adjudicators and courts cannot ignore their inadequacies. Experience within our adversary trial system has long demonstrated that naked conclusions and opinions by medical experts are often subject to reserved and unwritten qualifications requiring searching evaluation. Medical diagnosis is seldom an exact science. However, since expediency is deemed an important consideration in processing social security claims the Secretary and reviewing courts must closely scrutinize the evidence to avoid miscarriages of justice. For the right to disability payments is a significant one to the applicant; it may well constitute the only ray of hope left to him.

In the present case the Secretary has relied on reports of certain medical advisers to determine that the claimant is not disabled from engaging in any gainful activity under the Act. We think these written reports, without personal examination of the claimant, deserve little weight in the overall evaluation of disability. The advisers’ assessment of what other doctors find is hardly a basis for competent evaluation without a personal examination of the claimant.

This court six years ago voiced disapproval of this type of practice in. Murphy v. Gardner, 379 F.2d 1, 4 n. 4 (8th Cir. 1967). In a similar vein, in Hayes v. Gardner, 376 F.2d 517 (4th Cir. 1967), the examiner based his decision denying benefits to the claimant on a report written by a Dr. Glendy. Dr. Glen-dy did not examine the claimant but based his opinion on facts he gleaned from the medical reports. In reversing and awarding benefits to the claimant the court held:

We reach the conclusion that, in view of the opinion evidence as to the existence of a disability, combined with the overwhelming medical facts, the uneontradicted subjective evidence, and claimant’s vocational background, the opinion of a doctor who never examined or treated the claimant cannot serve as substantial evidence to support the Secretary’s finding.

Id. at 520-521.

Although the use of medical advisers was approved by the Supreme Court in Richardson v. Perales, 402 U.S. 389, 408, 91 S.Ct. 1420, 1431, 28 L.Ed.2d 842 (1971), we think it significant that the Court there noted he was used “primarily in complex cases for explanation of medical problems in terms understandable to the layman-examiner .... He did offer his own opinion on the claimant’s condition.” The latter fact clearly distinguishes our discussion here.

In evaluating whether a claimant is capable of engaging in any gainful activity it is essential that the Secretary view the individual as a whole. It is senseless to view several disabilities as isolated from one another as the medical advisers did here. Each illness standing alone, measured in the abstract, may not be disabling. But disability claimants are not to be evaluated as having several hypothetical and isolated illnesses. These claimants are real people and entitled to have their disabilities measured in terms of their total physiological well-being. Different people react in markedly different ways to similar injuries. A back condition may affect one individual in an inconsequential way, whereas the same condition may severely disable another person who has greater sensitivity to pain or whose physical condition, due to age, obesity, deformity, or general physical well-being is generally deteriorated. To attempt to evaluate disability without personal examination of the individual and without evaluation of the disability as it relates to the particular person is medical sophistry at its best.

We reverse and remand the case to the district court with directions to remand to the Secretary for further proceedings in accord with this opinion.

      . The claimant originally filed her application for widow’s insurance benefits on July 24, 1970. Upon being denied benefits, she reapplied for reconsideration on October 20, 1970. This was denied on April 20, 1971. She thereafter requested a hearing.

      . It might be advisable for the Secretary to submit a short set of interrogatories to examining physicians which will require the physician not only to set forth his full detailed opinion as to the extent of disability but also whether in his opinion the claimant was disabled from pursuing substantial gainful activity or, in a widow’s case, any gainful activity within the relevant time period of disability. We note Health, Education and Welfare medical advisers utilize forms in giving their opinions.

      . See Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

      . See Richardson v. Perales, 402 U.S. 389, 406, 91 S.Ct. 1420 (1971).


source: Caselaw Access Project

author: WILLIAM D. MURRAY, District Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellant, v. HAYS ROOFING & SUPPLY, INC., a corporation, Defendant-Appellee.
    No. 71-2988.
    United States Court of Appeals, Ninth Circuit.
    Jan. 23, 1974.

      William D. Keller, U. S. Atty., L. Douglas Brown, Asst. U. S. Atty., Los Angeles, Cal., Walter H. Fleischer, Edwin E. Huddleson, III (Argued) Judith S. Ziss, U. S. Dept, of Justice, Washington, D. C., for plaintiff-appellant.
    Oliver F. Green, Jr., William B. Campbell, Dennis E. Wollan, Geoffrey L. Thomas (Argued) of Paul, Hastings, Janofsky & Walker, Los Angeles, Cal., for defendant-appellee.
    Before DUNIWAY and GOODWIN, Circuit Judges, and MURRAY, District Judge.

       Honorable W. D. Murray, Senior United States District Judge, District of Montana, sitting by designation.

   WILLIAM D. MURRAY, District Judge:

This is an action by the United States against a shipper of goods in interstate commerce for imposition of civil forfeitures under Section 222(h) of Part II of the Interstate Commerce Act. The lower court granted the motion to dismiss of appellee, Hays Roofing and Supply, Inc., and the government appealed. The judgment of the district court is affirmed.

The United States alleges that Hays Roofing hired James .Owen Miller to transport its products by motor carrier from South Gate, California, to Phoenix, Arizona. The complaint also states that Hays was aware at the time of hiring that Miller did not have a certificate of public convenience and necessity or a permit issued by the Interstate Commerce Commission authorizing interstate operations. The government asks that judgment be entered against Hays in the amount of $6,000 pursuant to 49 U.S.C. 322(h).

Section 222(h) of the Interstate Commerce Act (49 U.S.C. 322(h)) provides in relevant part as follows:

“Any motor carrier, broker, or lessor, or other person, or any officer, agent, employee, or representative thereof, . . . who shall fail or refuse to comply with the provisions of section 303(c) or section 306(a)(1) or section 309(a)(1) of this title shall forfeit to the United States not to exceed $500 for each such offense . . . All forfeitures provided for in this subsection . . . shall be recoverable in a civil suit in the name of the United States . . . .”

Sections 303(c), 306(a)(1) and 309(a)(1) prohibit interstate transportation of goods by motor carriers unless the Interstate Commerce Commission has issued a certificate or permit authorizing such transportation. Section 303(c) states:

[N]o person shall engage in any for-hire transportation business by motor vehicle, in interstate or foreign commerce, . . . unless there is in force with respect to such person a certificate or a permit issued by the Commission authorizing such transportation. . . . ”

The United States offers a three-prong argument to support its attempt to subject a shipper of goods in interstate commerce to civil forfeitures designed to punish motor carriers operating in violation of the Interstate Commerce Act. The government’s first contention is that Section 322(h), as amended, applies to shippers as well as motor carriers. This contention must be rejected.

Section 322(h) is applicable only when a motor carrier, broker, lessor, or “other person” fails or refuses to comply with the provisions of Sections 303(c), 306(a)(1) or 309(a)(1). Section 303(c) applies only to motor carriers i. e. those who “engage in any for-hire transportation business by motor vehicle.” See United States v. Williamson, 235 F. Supp. 836, 837 (S.D.Tex.1964). Hays Roofing has not engaged in any for-hire transportation business by motor carrier, and therefore could not possibly have violated Section 303(c).

No contention is made that Hays Roofing is either a common carrier or a contract carrier by motor vehicle, and thus Hays Roofing could not have violated Section 306(a)(1) or Section 309(a)(1). The inescapable conclusion is that Hays Roofing, as a shipper, cannot be subjected to the civil-forfeiture provisions of Section 322(h). United States v. Mont Stahlman Lumber, Inc., 362 F.Supp. 826, 828 (W.D.Pa.1973).

The government next argues that it can impose civil forfeitures upon the appellee by utilizing Section 2 of the Elkins Act in conjunction with Section 322(h). Section 2 of the Elkins Act, as amended, 49 U.S.C. 42, provides:

“In any proceeding for the enforcement of the provisions of the statutes relating to interstate commerce, whether such proceeding be instituted before the Interstate Commerce Commission or be begun originally in any district court of the United States, it shall be lawful to include as parties, in .addition to the carrier, all persons interested in or affected by the rate, regulation, or practice under consideration, and inquiries, investigations, orders, and decrees may be made with reference to and against such additional parties in the same manner, to the same extent, and subject to the same provisions as are or shall be authorized by law with respect to carriers.”

The government cites no cases, and the court has found none, in which Section 2 of the Elkins Act was used in the manner desired by the government here. The Elkins Act has been used extensively to subject shippers to equitable proceedings such as injunctions. This fact prompted the court in United States v. Phillips Petroleum Company, 36 F.Supp. 480 (D.Del.1941), to state that this section is aimed at enforcement of the Interstate Commerce Act as distinguished from punishment for its violation. Phillips, supra at 484.

Since Section 2 was drafted before the concept of civil forfeitures in Interstate Commerce cases was presented to Congress, the authors of the Elkins Act could not have intended this section to be a vehicle for punitive measures like those requested in this case. This court perceives no compelling reason for the expansion of Section 2 of the Elkins Act to encompass civil forfeitures by shippers. The punitive character of civil forfeiture requires a restrictive reading of the statute that is not necessary when the court is dealing with equitable measures serving remedial functions.

Finally, the government complaint alleges that a shipper can be subject to civil forfeitures pursuant to 18 U.S.C. Section 2 if it aids and abets a motor carrier in violating the Interstate Commerce Act. This allegation, however, appears to have been abandoned by the government in the light of United States v. American Carpet Mills, Inc., N.D.Ga., Civil Action No. 2180, June 22, 1970, which held that civil forfeitures under 322(h) could not be imposed on a shipper by virtue of the criminal aiding and abetting statute.

However, we need not rely on American Carpet Mills here since it is the opinion of the court that the activities of Hays Roofing in this case were not sufficient to constitute aiding and abetting. Under the test developed in United States v. Williamson, supra, knowledge that the motor carrier was operating without a certificate from the I.C.C. is not in itself sufficient to support a conviction under the aiding and abetting statute.

“Concluding, it should be made clear that the foregoing should not be construed as a holding that a shipper, or other person, may not conspire with a carrier to violate § 303(c); or that a shipper, or other person, may not be guilty as an aider or abettor if, in fact, he ‘aids, abets, counsels, commands, induces or procures’ the violation. The holding simply is that the knowing shipment of his goods by a shipper, and the payment of the proper tariff, does not constitute such shipper an aider or abettor. Such conduct merely makes it possible for the carrier to violate the law.” Williamson, supra at 838, 839 of 235 F. Supp.

This rule has been followed consistently in cases decided under the aiding and abetting statute. In United States v. J. & J. Truck Leasing, 258 F.Supp. 105 (D.Kan.1966), the court re-stated the rule and then went on to note the additional facts necessary to gain a conviction against a shipper for aiding and abetting a carrier’s violation of the provisions of the Interstate Commerce Act. Those facts are not present in this case. Most recently, the rule stated in Williamson was followed in United States v. Mont Stahlman Lumber, supra. The court stated in that case:

“Under this court’s understanding of the law, a shipper may aid and abet a carrier in violating §§ 303(c), 306(a)(1) and 309(a)(1), but the shipper must do more than merely hire the carrier despite knowledge that the carrier does not have proper authorization from the ICC.” Mont Stahlman, supra at 828, 829 of 362 F.Supp.

Under this test, Hays Roofing did not aid and abet Miller in his violation of the Interstate Commerce Act. Consequently, there is no merit in the government’s argument that civil forfeitures can be imposed on Hays Roofing by means of the aiding and abetting statute.

Affirmed.

      . Facts established in J. & J. Truck Leasing included substantially lower shipping rates, a sufficient number of licensed carriers in the vicinity of the shipper to handle shipper demands, and false billing descriptions of such transportation costs as “truck rental” rather than freight charges,


author: HEANEY, Circuit Judge.

text:
    Roy HOWARD and Eugene Lindsay, Appellants, v. James D. HODGSON, Secretary of Labor, Appellee.
    No. 73-1220.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 12, 1973.
    Decided Jan. 21, 1974.
    John R. Igoe, St. Louis, Mo., for appellants.
    Michael H. Stein, Atty., U. S. Dept, of Justice, Washington, D. C., for appellee.
    Before GIBSON, LAY and HEANEY, Circuit Judges.
   HEANEY, Circuit Judge.

This is an appeal from the District Court’s order dismissing plaintiffs’ mandamus action. The plaintiffs, members of Local 600 International Brotherhood of Teamsters, Chauffeurs, Warehouse-men and Helpers of America, were candidates for offices in the union in an election held December 20, 1971. On December 22, 1971, plaintiffs filed a protest with respect to the conduct of the election with the Local 600 Secretary-Treasurer. This protest was not acted upon. On April 13, 1972, plaintiffs wrote a letter to the St. Louis Office of the Labor Management Service Administration, complaining of the conduct and results of the election. They asserted that: (1) the nominating procedures were improper; (2) balloting was done by mail, and the ballots were improperly mailed; (3) they were denied an opportunity to mail their literature to all eligible voters; (4) the union magazine was improperly used by their opponents; (5) secrecy was not preserved in the balloting; (6) their observers were not given proper access to the tallying of the ballots; and (7) the ballots were not properly tallied. They then complained that the irregularities affected the conduct and results of the election. They asked that the election be set aside and that a new one be conducted by the United States Department of Labor. An investigation was conducted by the St. Louis Office. Leonard J. Lurie, Director of the Office of Labor-Management and Welfare-Pension Reports, advised plaintiffs by letter on July 7, 1972, that:

* * * an investigation was conducted which disclosed that no violations occurred in the election of officers during the period December 8 to December 20, 1971, which may have affected the outcome of the election.

The plaintiffs then filed a complaint in District Court seeking a writ of mandamus ordering the Secretary to file an action to set aside the election. The plaintiffs asserted that the action arose under the Labor Management Reporting and Disclosure Act. 29 U.S.C. § 401 et seq. (1959), and that 28 U.S.C. § 1361 (1962) provided subject matter jurisdiction. The complaint is ambiguous but appears to allege, in substance, that inasmuch as the Secretary of Labor found at least one violation of § 481 of the Act, he was obligated to bring an action in District Court to set the election aside and his failure to do so was contrary to the law and evidence.

The Secretary filed alternative motions, requesting: (1) that the complaint be dismissed either for lack of subject matter jurisdiction or for failure to state a claim upon which relief could be granted; or (2) that the court grant summary judgment. The District Court dismissed the action for lack of subject matter jurisdiction.

The District Court reasoned that the Secretary need not bring an action unless he finds probable cause to believe that the violations may have affected the outcome of the election. We agree with the trial court’s reasoning and affirm. We do so, however, on the ground that the complaint failed to state a claim upon which mandamus relief could be granted, rather than on the jurisdictional ground given by the trial court. The allegation that the Secretary acted contrary to law was broad enough to give the trial court authority to decide the case. See, Clayton Miller & Dennis Shea, et al. v. Captain Carl Ackerman, et al., 488 F.2d 920, 922 (8th Cir., 1973); 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1350, n. 54 (1969). However, the action necessarily fell with the determination that the Secretary’s actions were in accordance with the law.

, The critical question is: Does the Secretary of Labor have an obligation to commence an action whenever he finds a violation, or may he refrain from bringing an action, as he did here, if he does not find probable cause to believe the violation may have affected the outcome of the election. The appellants argue that the court alone has the authority to decide when the outcome of an election may have been affected by a violation.

Section 482 of Title 29 of the United States Code provides that after exhaustion of union remedies and the filing of a complaint with the Secretary of Labor alleging a violation of § 481:

(b) The Secretary shall investigate such complaint and, if he finds probable cause to believe that a violation of this subchapter has occurred and has not been remedied, he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization as an entity in the district court of the United States in which such labor organization maintains its principal office to set aside the invalid election, if any, and to direct the conduct of an election •X*
(c) If, upon a preponderance of the evidence after a trial upon the merits, the court finds—
* * •» * * *
(2) that the violation of section 481 of this title may have affected the outcome of an election, the court shall declare the election, if any, to be void and direct the conduct of a new election under supervision of the Secretary * * *. (Emphasis added.)

While § . 482(b) contains the word “shall,” a regulation promulgated by the Department of Labor provides:

Violations of the election provisions of the Act which occurred in the conduct of elections held within the prescribed time are not grounds for setting aside an election unless they “may have affected the outcome.” The Secretary, therefore, will not institute court proceedings upon the basis of a complaint alleging such violations unless he finds probable cause to believe that they “may have affected the outcome of an election.”

29 C.F.R. § 452.16(b) (1963).

This regulation is consistent with the legislative history of the Act. The Senate Report on the bill stated:

* * * Since an election is not to be set aside for technical violations but only if there is reason to believe that the violation has probably affected the outcome of the election, the Secretary would not file a complaint unless there were also probable cause to believe that this condition was satisfied * * *

Senate Report No. 187, 86th Cong., 1st Sess.1959; U.S. Code Congressional and Administrative News, at p. 2337.

The interpretation we adopt is also consistent with a common sense approach. No useful purpose would be served by requiring the Secretary of Labor to bring frivolous suits.

Only one case has been called to our attention which is precisely on point— Schonfeld v. Wirtz, 258 F.Supp. 705 (S.D.N.Y.1966). Judge McLean stated:

In my opinion, the fundamental purpose of the statute overrides the rather inept literal language. If Congress intended, as the Supreme Court has said it did, to “utilize the special knowledge and discretion of the Secretary of Labor in order best to serve the public interest,” it makes no sense to say that the Secretary must sue for every violation, even though he believes that the suit would be futile because the violation could not have affected the outcome. I hold, therefore, that Section 482(b) confers discretion upon the Secretary to determine both the probable violation and its probable effect.

Id. at 708.

This is not to say that the Secretary’s discretion under § 482 is absolute. If the Secretary finds probable cause to believe that a violation has occurred and also finds probable cause to believe that the violation may have affected the outcome of the election, the Act requires that he commence an action against the labor organization.

The plaintiffs contend for the first time on appeal that the Secretary owes a duty to a complainant to make a full statement of the reasons underlying his decision. They ask this Court to compel him to provide plaintiffs with an adequate written statement of his reasons for not commencing suit. They cite DeVito v. Schultz, 300 F.Supp. 381 (D.D.C.1969), in support of their request. We reject the request. While there may be merit to the views expressed by the court in DeVito, it would be inappropriate for us to grant a request for relief not made in the court below.

      . Title 28 U.S.C. § 1361 provides :
      The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

      . The Supreme Court in Calhoon v. Harvey, 379 U.S. 134, 140, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964), substituted the word “may” for “shall” in discussing the duty of the Secretary under § 482. It stated:
      * * * Upon complaint, the Secretary investigates and if he finds probable cause to believe that Title IV has been violated, he may file suit in the appropriate District Court. * * * (Emphasis added.)


author: FRIENDLY, Circuit Judge:

text:
    In the Matter of CASCO FASHIONS, INC., Bankrupt. NEW YORK CREDIT MEN’S ADJUSTMENT BUREAU, INC., Trustee, Appellant, v. BALLON, STOLL & ITZLER, Appellee.
    No. 71, Docket 72-1961.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 7, 1973.
    Decided Dec. 17, 1973.

      Julius J. Abeson, New York City (Hahn, Hessen, Margolis & Ryan, New York City, of counsel), for appellant.
    Ronald S. Itzler, New York City (Bal-lon, Stoll & Itzler, New York City, of counsel), for appellee.
    Before WATERMAN, FRIENDLY and TIMBERS, Circuit Judges.
   FRIENDLY, Circuit Judge:

This appeal from an order of the District Court for the Southern District of New York was presented to us as raising the question whether attorneys for a debtor in possession in a proceeding under Ch. XI of the Bankruptcy Act, which has been superseded by an ordinary bankruptcy proceeding pursuant to § 376, may be awarded compensation out of the estate for legal services rendered during the aborted Ch. XI proceeding. The district judge answered the question in the affirmative and the trustee in bankruptcy has appealed.

I.

Although the proceedings here at issue involved both Casco Fashions, Inc. and its affiliate Kuro Fashions, Ltd., it will generally be convenient to refer only to Casco. In July 1969, it filed a Ch. XI petition for an arrangement under § 322 and was authorized to continue as debtor in possession. Pursuant to General Order 44, it was authorized to retain as counsel Ballon, Stoll & Itzler (hereafter the Ballon firm), to whom it had paid a retainer of $15,000 before the filing of the petition. The Ballon firm rendered substantial legal services during the Ch. XI proceeding. These included the renegotiation of a factoring arrangement, apparently expanded in renegotiation to include considerable inventory financing, and preparation of applications for its approval and periodic renewal; preparation of the required schedules, statement of affairs and list of executory contracts; negotiation of the settlement of the claim of an equipment rental company against Casco, and preparing an application for approval; negotiating the sale of Casco’s leasehold, which was no longer needed in view of the consolidation of its operations with Kuro’s and preparing the necessary papers; resisting and attempting to settle a claim for the imposition of a mechanic’s lien on the proceeds of the sale; resisting and attempting to settle, prior to successful negotiation of the sale of the leasehold, a motion by the landlord of the leased premises to be permitted to commence summary eviction proceedings against the debtor, largely because of the filing of the mechanic’s lien on the premises; negotiation of a sublease of premises in New Jersey and preparing an application for approval; negotiating with the creditors’ committees and preparing papers for the consolidation of the proceedings of Casco and Kuro; and negotiating with the creditors’ committee and preparing a plan of arrangement which was accepted by the committee. The plan aborted before formal acceptance under § 336 for reasons not appearing clearly of record but acknowledged not to be attributable to any fault of the Ballon firm. Ultimately on April 23, 1970, an order was made, pursuant to § 376, adjudging the debtor a bankrupt and directing that the bankruptcy be proceeded with under the other provisions of the Act.

New York Credit Men’s Adjustment Bureau, Inc., the trustee in the bankruptcy proceeding, then applied to the referee under the first paragraph of § 60d for a review of the $15,000 payment by Casco to the Ballon firm in contemplation of the filing of the petition. The firm cross-petitioned “for the dual purpose of opposing the motion of the Trustee herein pursuant to Section 60(d) of the Bankruptcy Act, and supporting your petitioner’s application for an allowance for professional services rendered to the debtors-in-possession and the bankrupts subsequent to the filing of the original petitions for an arrangement . . . .’’It asked that the entire $15,000 be decreed fair and reasonable compensation for the sum of its services before and after the filing of the Ch. XI petition.

Understanding will be promoted if we here interrupt the narrative to set forth the Second Circuit precedents with regard to § 60d which establish the context within which the referee was working. In a line of cases of ordinary bankruptcy, this court had held that the services for which a “reasonable amount” may be retained in proceedings under § 60d, supra note 1 — as distinguished from the possibility of collection under other sections of the Act — include only those rendered while the debtor was contemplating bankruptcy and not those rendered after the proceedings had commenced. In re Rolnick, 294 F. 817 (2 Cir. 1923); In re Falk, 30 F.2d 607 (2 Cir. 1929); In re David Bell Scarves, Inc., 61 F.2d 771, 773 (2 Cir. 1932), aff’d sub nom. Conrad v. Pender, 289 U.S. 472, 53 S.Ct. 703, 77 L.Ed. 1327 (1933) (Supreme Court citing In re Rolnick, supra, with approval, 289 U.S. at 476, 53 S.Ct. 703); In re Buchanan, 66 F.2d 416, 419 (2 Cir.), cert, denied, 290 U.S. 682, 54 S.Ct. 120, 78 L.Ed. 588 (1933). The ease of In re Knickerbocker Leather & Novelty Co., 158 F.Supp. 236 (S.D.N.Y.1958), aff’d sub nom. Haar v. Oseland, 265 F. 2d 218 (2 Cir. 1959) (per curiam), raised the question whether the same rule applied when the post-petition legal services were rendered to a debtor in possession under Ch. XI. Judge Sugar-man there sustained an order of a referee directing the return of the bulk of a pre-petition payment, refusing by so doing to allow any amount for services rendered after filing of the Ch. XI petition, but added that this did not preclude a subsequent application for compensation for post-petition services under § 64a(l) upon notice under § 58a (8). Cf. In re Falk, supra. This court affirmed per curiam on the opinions below, saying:

The order, of course, did not purport to preclude an application for an allowance as an expense of the administration of the estate.

265 F.2d at 219.

Relying on this and other authorities, the referee in the instant case found that $3,000 constituted a reasonable fee for pre-petition services and directed that $12,000 be returned. He said nothing about an allowance under § 64a (1); but his reference to the Knickerbocker case (at the Second Circuit level) could be taken as indicating that this subject remained open for later consideration. After a rehearing held at the Ballon firm’s request, the referee adhered to his initial determination; his remarks during the argument on rehearing lend more support to the proposition that he was leaving open the subject of a possible allowance under § 64a (1) than to any suggestion that he was precluding such an allowance.

In their petition for review, the Bal-lon firm asserted, among other things, that it was error for the referee not to consider their application as under § 64a(l); the referee certified this as one of the alleged errors to be reviewed; and the parties apparently argued at length before the district court whether, among other things, § 64a(l) permitted an allowance such as that sought by the firm. The court found that, in contrast to the situation in Knickerbocker, there had here been notice of the application conforming to § 58a(8), which is no longer disputed. Judge Lasker then ruled, relying on a passage in 3A Collier, Bankruptcy 1601 (14th ed. 1969), which we do not find particularly conclusive, that the referee was bound to consider the application on its merits then and there. 346 F.Supp. 1252, 1255 (1972). Although any fee to the Ballon firm for its services in the Ch. XI proceeding would be subordinated to administration expenses in the ensuing bankruptcy by virtue of the final sentence of 64a(l), the judge thought this unimportant in the instant case in view of the amount of the assets and of the probable administrative and legal expenses. Id. at 1255-1256. Accordingly, he proceeded to the merits and held that attorneys for a debtor in possession under an aborted Ch. XI proceeding were entitled to a proper allowance under § 64a(l) in a subsequent bankruptcy. Id. at 1256. Judge Lasker issued an order remanding to the referee for determination of the amount of legal fees earned by the Ballon, firm as counsel to the debtor in possession in addition to the $3,000 already awarded for pre-petition services to the debtor.

II.

If the trustee had sought reversal here on the basis that the referee did not abuse his discretion in deferring consideration of the application under § 64a (1), we might well have agreed. Convenience may be served by considering all claims for administration expenses, and particularly for attorneys’ fees, at one time. Optimistic prognostications of the sufficiency of assets to meet the administration expenses of the superseding bankruptcy may prove erroneous. Moreover, a single consideration enables the referee to take into account the totality of the claims for administration expenses as against the amount available for creditors. However, appellant has not asked us to reverse the district court on that ground; apparently both sides desire a determination on the merits of a question important in the administration of the Bankruptcy Act, as to which the decisional law does not establish a clear answer, at least in this circuit. In affirming, as we do, we are not to be taken as deciding that a referee in every case must fix such compensation on a petition filed by the attorneys in response to one filed by the trustee under § 60d; decision whether to fix the compensation then or to postpone the issue lies in the referee’s sound discretion.

III.

Turning to the merits, we begin by agreeing with the trustee that the permissibility of awarding fees under § 64a (1) for services as attorney for a debtor in possession in an aborted Ch. XI proceeding was not decided by this court in Haar v. Oseland, supra, 265 F. 2d 218, although the Ballon firm is not alone in reading that case to validate such awards. See, e. g., In re Shon Indus., Ltd., No. 64-B-11 (E.D.N.Y. Oct. 1, 1965); In re Styles Express, Inc., No. 62-B-922 (S.D.N.Y. Dec. 9, 1971); In re B.N.S. Int’l Sales Corp., No. 69-B-169 (S.D.N.Y. April 27, 1971) (Herzog, Referee in Bankruptcy). Such question as was raised in Haar with regard to the later opportunity of the attorneys to obtain compensation under § 64a(l) was tangential to the main arguments in the case, and did not in any event concern the very authority of the referee under § 64a(l) to compensate services in the aborted proceeding. This court therefore did not rule on the question whether such authority exists; rather, we merely affirmed the district court’s ruling that in that case compensation did not have to be — indeed in view of the lack of notice could not be —fixed on the hearing of a motion under § 60d. The most that the Ballon firm can extract from Haar v. Oseland is that this court would not have said what it did if it had thought that an application under § 64a (1) would necessarily be futile. This carries negligible weight when the court in that case had not been furnished the substantial arguments against the legality of an allowance that have been here presented.

At first blush the provision in § 64a(l) to which we have already referred, see note 4 supra, would seem to imply that legal services rendered to the debtor in possession in an aborted Ch. XI proceeding may be allowed in a subsequent bankruptcy, although they must be subordinated to the administration expenses of the bankruptcy itself. The trustee argues with force that this is reading the statute too quickly and fails to give the necessary significance to the words “including the allowances provided for in such chapter.” Allowances for attorneys for a debtor in possession or a trustee are provided for in Ch. X, §§ 241, 242 and 246, and in Ch. XII, Real Property Arrangements, §§ 491, 492 and 495, but there is no corresponding provision in Ch. XI. The closest approach to such a provision in Ch. XI is § 337(2), specifying that, after the acceptance of the arrangement, the judge shall fix a time within which the debtor shall deposit the consideration distributable to creditors, the money necessary to pay priority claims, and “the money necessary to pay the costs and expenses of the proceeding.” Since here apparently no such deposit was made, appellant contends that no compensation may be allowed, a position sustained in Robinson, Wolas & Hagen v. Gardner, 433 F.2d 1104 (9 Cir. 1970).

While the argument is impressive, we think it unduly literal. It ignores the necessary implications of § 342, providing that where no receiver or trustee is appointed, the debtor shall continue in possession of his property “and shall have all the title and exercise all the powers of a trustee appointed under this [Act].” In light of that section and the applicability, by virtue of § 302, of the provisions of Chs. I-VII insofar as they are not inconsistent or in conflict with the provisions of Ch. XI, a Ch. XI debt- or in possession has the power, and the duty, among other things, to avoid liens under § 67a, to avoid transfers and obligations under § 70e, and to recover preferences under § 60b. See 8 Collier, Bankruptcy ¶ 6.32 and particularly 6.32 [7] (14th ed. 1971). It would have been odd for Congress to have imposed such duties on attorneys for a debtor in possession — for it is they rather than the debtor who generally must perform them —but to have ruled out any payment for them in cases where, through no fault of the attorneys, bankruptcy ensues but there are assets adequate for paying such expenses as well as those in the bankruptcy. This is particularly true since what the attorneys for the debtor have accomplished along the lines indicated will diminish pro tanto the work that must be performed by the attorneys for the trustee, and failure to compensate them would constitute an unjust enrichment of the creditors at the expense of attorneys working in good faith with the approval and at the direction of the bankruptcy court.

Moreover, the argument made by the trustee proves too much. If compensation for services in an aborted Ch. XI proceeding cannot be awarded to attorneys for a debtor in possession because there is no specific provision for an allowance, the same would be true of attorneys for a receiver appointed under § 332 or for a trustee in bankruptcy continued in possession under that section. Congress could not have contemplated such a result. We therefore adopt the approach of the dissenting opinion of Chief Judge Hastie, joined by Judges Aldisert and Stahl, in In re Hydrocarbon Chems., Inc., 411 F.2d 203, 207-210 (3 Cir.) (en banc), cert, denied, 396 U. S. 823, 90 S.Ct. 66, 24 L.Ed.2d 74 (1969), citing Application of Pinetree Associates, Inc., 77 F.Supp. 270 (E.D. N.Y.1948), insofar as here relevant, and hold that the general provisions of § 62 constitute sufficient authority for an allowance to attorneys for a debtor in possession in an aborted proceeding under Ch. XI.

The briefs contain much discussion of the provision in § 339(2) that expenses of a creditors’ committee, including attorneys’ fees, “shall be allowed as an expense of administration to the extent deemed reasonable and necessary by the court, provided the arrangement is confirmed.” Citing Referee Herzog's decision in In re Styles Express, Inc., No. 62-B-922 (S.D.N.Y. Oct. 8, 1971), confirmed, supra, Dec. 9, 1971 (Bonsai, J.), the Ballon firm argues that the proviso with respect to expenses of committees shows a Congressional intention not to impose such a limitation on the attorneys for a debtor in possession; this is supposed to prove, among other things, that the Robinson court erred in reading the predecessor of § 339(2), namely § 337(2) as it read before 1967, to impose the proviso on attorneys for a debtor in possession. Although we neither regard the legislative history of § 339(2) as having the strength thus urged nor read Judge Hufstedler’s opinion in Robinson as resting on the proviso as it previously appeared in § 337(2), the argument is worth some examination.

Section 337(2) had originally required, so far as here relevant, that the debtor must, after acceptance of the arrangement, deposit “the money necessary to pay the costs and expenses of the proceedings and the actual and necessary expenses incurred in connection with the proceedings and the arrangement by the committee of creditors and the attorneys or agents of such committee, in such amount as the court may allow.” 52 Stat. 908 (1938). The final phrase was amended in 1952, 66 Stat. 432, to read “and the actual and necessary expenses, in such amount as the court may allow, incurred after its appointment by a committee appointed pursuant to section 338 of this Act, or incurred before or after the filing of the petition under this chapter by a committee designated in writings filed with the court and signed and acknowledged by a majority in amount of unsecured creditors . . . Provided, however, That in fixing any such allowances the court shall give consideration only to the services which contributed to the arrangement confirmed or to the refusal of confirmation of an arrangement, or which were beneficial in the administration of the estate, and the proper costs and expenses incidental thereto.” The 1952 amendment had a two-fold purpose — to include an unofficial committee which had functioned prior to appointment under § 338, thus overruling Lane v. Hay-tian Corp. of America, 117 F.2d 216 (2 Cir.), cert, denied, 313 U.S. 580, 61 S.Ct. 1101, 85 L.Ed. 1537 (1941), and to define the types of services by committees which were entitled to compensation. See H.R.Rep.No.2320, 82d Cong., 2d Sess., reprinted in 2 U.S.Code Cong. & Admin.News 1960, pp. 1980, 1981 (1952). Under that amendment Congress recognized the propriety of compensating attorneys for a creditors’ committee for services beneficial to an estate even though an arrangement was not confirmed, although only out of the deposit required by § 337. It was under this form of the statute, as perfected by the 1958 amendment, see note 8 supra, that the Robinson controversy arose.

The statute was further amended in 1967, 81 Stat. 516-517, with the provisions related specifically to expenses of committees being placed separately in new § 339. Again the purpose was two-fold — to remedy certain deficiencies in the 1952 overruling of the Haytian case and to limit the type of compensa-ble services by a creditors’ committee more narrowly than in the 1952 legislation. See S.Rep.No.750, 90th Cong., 1st Sess., reprinted in 2 U.S.Code Cong. & Admin.News, p. 2007 (1967).

As indicated above, we cannot agree with the Ballon firm that the Robinson court made the error of applying the proviso to § 337(2) in its pre-1967 form to attorneys for a debtor in possession. The decision rested rather on the absence of any specific provision “for compensating the unsuccessful Chapter XI attorney,’’ 433 F.2d at 1106, in a case that had not advanced to the making of a deposit under § 337. Nothing in Judge Hufstedler’s opinion suggests that she misread Congress’ intention in 1952 to recognize the propriety of compensating attorneys for a creditors’ committee for services beneficial to an estate even though an arrangement was not confirmed or applied such a misreading to attorneys for a debtor in possession. The holding of Robinson turns rather on the requirement at the outset of § 337 that the plan first be accepted.

Further, we reject the contention that the 1967 amendment, which Judge Huf-stedler had before her although it did not apply to the facts of her case, undercuts the logic of Robinson as we have just read the opinion. That amendment left intact the § 337 requirements of acceptance and a deposit on which the Ninth Circuit opinion turned. Indeed, we have already said that we recognize under the current statute the substantial technical force of the Robinson court’s argument. However, for the reasons advanced in this opinion, above all what we consider the fundamental unfairness of the Ninth Circuit’s result, we prefer to find authority in § 62 for allowance of fees to the attorneys for a debtor in possession in an abortive Ch. XI proceeding. The statute is not a tidy one, but we must make the best sense of it that we can until Congress acts on the proposal now pending before it for a complete revision of the Bankruptcy Act.

We are simply unable to share the view that in passing the Chandler Act Congress deliberately chose to make life hazardous for attorneys for debtors in possession, even in wholly legitimate Ch. XI proceedings, compare In re Dole Co., 244 F.Supp. 751, 756-757 (D.Me. 1965). The Supreme Court has recognized the value of Ch. XI for “small individual or corporate business where there are no public or private interests involved requiring protection by the procedure and remedies afforded by chapter X,” SEC v. United States Realty & Improvement Co., 310 U.S. 434, 454, 60 S.Ct. 1044, 84 L.Ed. 1293 (1940). No other machinery, save ordinary bankruptcy, is available to the individually owned business and, even for corporations, Ch. X requires a petition to state “the specific facts showing the need for relief under this chapter and why adequate relief cannot be obtained under Chapter XI of this Act,” § 130(7); ef. § 146(2). To be sure, if a court finds that a Ch. XI proceeding was filed without any reasonable prospect of success or in an effort to head off an inevitable adjudication of bankruptcy, compensation to a debtor’s attorneys should be denied. It may also be, although we do not now decide this, that services in formulating an arrangement that was not accepted should not be compensated, cf. In re Tariffville Mfg. Co., 253 F.Supp. 412 (D.Conn.1965), or should be compensated only at subnormal rates; certainly this should be true if the proposed arrangement was so unfair that creditors could not be expected to accept. But when the institution of the Ch. XI proceeding was legitimate, we believe the attorneys for a debtor in possession are entitled, subject to the subordination described in § 64a(l), to fair compensation for legal services in assisting the debtor to perform the duties imposed by the statute and in operating the business with a view to its preservation so long as that goal seems reasonably attainable.

Affirmed.

      . If a debtor shall, directly or indirectly, in contemplation of the filing of a petition by or against him, pay money or transfer property to an attorney at law, for services rendered or to be rendered, the transaction may be examined by the court on its own motion or shall be examined by the court on petition of the trustee or any creditor and shall be held valid only to the extent of a reasonable amount to be determined by the court, and the excess may be recovered by the trustee for the benefit of the estate. sfc % * sfc

      . Although the cross-petition before the referee rested in some part on services rendered after Casco was adjudicated bankrupt, the Ballon firm’s petitions to review the referee’s orders were limited to his treatment of fees earned as counsel to the debtor in possession. Any issue with respect to the firm’s services after adjudication was therefore not before the district court and is not before us.

      . Their application had been titled “Petition of Debtor’s Counsel in Opposition to Trustee’s § 60(d) Application and in Support of Application for Allowance Under § 64a(1).” (Emphasis supplied.)

      . Where an order is entered in a proceeding under any chapter of this title directing that bankruptcy be proceeded with, the costs and expenses of administration incurred in the ensuing bankruptcy proceeding, including expenses necessarily incurred by a debtor in possession, receiver, or trustee in preparing the schedule and statement required to be filed by section 638, 778, or 883 of this title, shall have priority in advance of payment of the unpaid costs and expenses of administration, including the allowances provided for in such chapter, incurred in the superseded proceeding and in the suspended bankruptcy proceeding, if any ....

      . Appellant goes further and says that even where a deposit is made but confirmation fails, no compensation may be paid out of the deposit. See § 367(2). Robinson did not reach this issue. See 433 F.2d at 1106 n.2.

      . By virtue of § 302, § 62 applies to Ch. XI unless inconsistent or in conflict. We think it is neither.

      . The majority opinions in the Third Circuit are not to the contrary in this regard.

      . Although this amendment omitted, by apparent inadvertence, see 2 U.S.Code Cong. & Admin.News, p. 3810 (1958) (Letter to Senator James O. Eastland, Chairman, Committee on the Judiciary, from Edwin L. Covey, Chief of the Division of Bankruptcy, Administrative Office of the United States Courts, June 13, 1957), the words “and the attorneys or agents of such committee” that had appeared in the original, this was corrected in 1958 by insertion of-the phrase “including fees and expenses of attorneys, accountants and agents.” 72 Stat. 821.

      . We reject the conflicting analysis offered by an extraordinarily bold referee within the Ninth Circuit in In re S & S Vending Machine Co., No. 571-1585-C (N.D.Cal. Mar. 20, 1973) (Cowans, Referee in Bankruptcy), although we think he reached the right result. Referee Cowans read the Robinson opinion to rest on the proviso that appeared before 1967 in § 337 (2) and therefore to be without force under the amended statute.

      . The trustee relies also on In re Times Sales Finance Corp., No. 30377 (E.D.Pa. 1972), aff’d without opinion, 475 F.2d 1396 (3 Cir.), cert, denied, 42 U.S.L.W. 3199 (Oct. 9, 1973). However, in that case, although the point does not appear clearly from either the referee’s opinion or that of the district court, the Ballon firm informs us that a receiver had been appointed under § 332, and the fee application that was denied was by counsel for a debtor not in possession. Such a debtor does not have the powers conferred on a debtor in possession by §§ 342 and 343.

      . The trustee has relied rather heavily, particularly at argument, on the statements in Nicholas v. United States, 384 U.S. 678, 685-686 & n.13, 86 S.Ct. 1674, 16 L.Ed.2d 853 (1966), that adjudication marks a division between two separate proceedings, but see id. at 696, 86 S.Ct. 1674, 1686 (Harlan, J., concurring in part and dissenting in part) (“it seems to me that the entire period starting with the Chapter XI operation and carrying through the bankruptcy proceeding should be regarded as a continuum of court administration”), and that nothing in the Bankruptcy Act “requires us to collapse these important distinctions between an arrangement proceeding and a superseding bankruptcy . . . . ” The question in Nicholas was whether the Government could claim interest and penalties, in a superseding bankruptcy, on a tax liability accumulated during an abortive Ch. XI proceeding. That case thus raised issues totally different from this one.


author: HILL, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Frank Alfred ANALLA, Jr., Defendant-Appellant.
    No. 73-1635.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Jan. 7, 1974.
    Decided Jan. 29, 1974.

      Winston Roberts-Hohl, Asst. Federal Public Defender, Albuquerque, N. M., for defendant-appellant.
    Richard J. Smith, Asst. U. S. Atty. (Victor R. Ortega, U. S. Atty., Albuquerque, N. M., on the brief), for plaintiff-appellee.
    Before HILL, BARRETT and DOYLE, Circuit Judges.
   HILL, Circuit Judge.

This is an appeal from a conviction of assault resulting in serious bodily injury under 18 U.S.C. § 1153, as defined in N.M.S.A. § 40A-3-5, Aggravated Battery. Trial was to a jury in the United States District Court for the District of New Mexico.

The evidence is virtually undisputed. Appellant, an Indian, resided on the Laguna Indian Reservation in New Mexico. Late in the evening of April 7, 1973, or early in the morning of April 8, 1973, his younger brother was badly beaten in a fist fight with several other Indians. When the young man returned home, appellant, who had been drinking earlier in the evening, became angry at what had happened. He ascertained the identities of the assailants and, accompanied by a friend, left his residence in search of the men. They took appellant’s pickup truck, in which a 12-gauge shotgun and several shells were stored, and drove to the home of Melton Cheromiah, one of the men involved in the fight. Several other men who were involved in the fight also were there, drinking beer and discussing the evening’s activities.

Appellant and his companion parked their vehicle some distance past Chero-miah’s house, and walked back. Appellant carried the shotgun and his companion carried the shells. Upon reaching the house the men hid in a nearby ditch. Appellant instructed his friend to throw rocks on the roof of the house to lure the occupants outside. His friend did as instructed, and Cheromiah appeared at the front door. Appellant then fired seven or eight shots into the house, one of them striking Cheromiah. Appellant subsequently fired a few more shots into vehicles parked nearby, and then he and his friend left.

Upon these facts appellant was indicted and charged with violating 18 U.S.C. § 1153, as defined in N.M.S.A. § 40A-3-5. Pre-trial motions to dismiss the indictment for failure to state an offense against the United States and for failure to allege essential elements were denied. Appellant’s requested instructions on temporary insanity also were denied. The jury found appellant guilty as charged, and he was sentenced to ten years imprisonment.

Appellant’s first argument is that the indictment does not charge a crime against the United States. Relying upon Acunia v. United States, 404 F.2d 140 (9th Cir. 1968), he contends the crime of assault resulting in serious bodily injury lacks both a definition and a prescribed penalty, and that any indictment based thereon must be dismissed. We do not agree. Acunia involved a conviction for incest under § 1153. At the time of the alleged offense, however, there was no penalty prescribed for incest; therefore § 1153 was unenforceable as to that crime. The court in Acunia noted, however, that incest would be enforeeably proscribed if § 1153 included it among the offenses to be defined and punished in accordance with the law of the state where the offense was committed. Since assault resulting in serious bodily injury is defined and punished by reference to state law, we find appellant’s position in this regard to be without merit.

Because the indictment defines assault resulting in serious bodily injury as a lesser included offense of the more serious crime of aggravated battery, appellant contends, the indictment still is defective. He argues that § 1153 must be strictly construed and cannot be extended by intendment to crimes not clearly within its terms. We agree with these legal principles, but we nevertheless find that the plain language of § 1153 and N.M. S.A. § 40A-3-5 supports the indictment. Section 1153 requires more than a mere assault intended to cause serious injury; it requires an assault culminating in a serious injury. It therefore is consistent with N.M.S.A. § 40A-3-5 because a consummated assault is a battery. State v. Grayson, 50 N.M. 147, 172 P.2d 1019 (N. M.1946); 6 C.J.S. Assault and Battery § 57 (1937). Nor are the two statutes different in the type of injury that must be sustained. Section 1153 requires “serious bodily injury” and the state statute requires “great bodily harm”. The difference in wording throughout the statutes amounts only to a difference in nomenclature, and not substantive law. The same elements are present in both.

Appellant’s final argument concerning the indictment’s defectiveness is that it is insufficient for failure to set forth the element of intent, as required by N.M.S.A. § 40A-3-5.

To be legally sufficient an indictment must apprise an accused of the nature of the charge(s) which he must meet, and the allegations contained therein must be sufficiently specific to stand as a bar to further prosecution. Although the indictment in question is not a model of proper criminal pleading, we do not believe its imperfections are prejudicial. It does not, as appellant correctly contends, contain an allegation of specific intent. However, the sufficiency of the indictment must be determined on the basis of practical rather than technical considerations. Robbins v. United States, 476 F.2d 26 (10th Cir. 1973). The gravamen of the charge is a violation of federal law, which the indictment sets forth in the language of § 1153. It therefore is not necessary to allege the elements of the state substantive offense. United States v. Karigiannis, 430 F.2d 148 (7th Cir. 1970). Both the statutory language of § 1153 and a reference to the state statute are incorporated within the indictment. This is all that the law requires and is sufficient to fairly notify appellant of the charge against him. No prejudice appearing, such an omission furnishes no ground for reversal of the conviction.

Appellant’s second argument is that he has been denied equal protection of the laws. Section 1153 expressly provides that Indians charged thereunder “shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” Appellant states this conflicts with the later provision declaring that assault resulting in serious bodily injury is to be defined and punished in accordance with applicable state law.

In considering this argument, it is to be noted that although the equal protection clause of the Fourteenth Amendment does not apply to the federal government, federal discrimination may be so gross as to be unconstitutional by virtue of the Fifth Amendment’s due process clause. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). The test for determination of this equal protection issue under the Fifth Amendment is whether the racial distinction embodied in § 1153 is reasonably related to any proper governmental objective or whether it is invidious or capricious. To be sure, § 1153 is based upon a racial classification. The constitutionality of such a classification, however, is apparent from the history of the relationship between Indians and the federal government. See Kills Crow v. United States, 451 F.2d 323 (8th Cir. 1971); Gray v. United States, 394 F.2d 96 (9th Cir. 1967). That relationship from the beginning has been characterized as resembling that of a guardian and ward. As an incident of such guardianship the federal government has full authority:

to pass such laws ... as may be necessary to give to [Indians] full protection in their persons and property, and to punish all offenses committed against them or by them within [federally granted] reservations.

United States v. Thomas, 151 U.S. 577, 585, 14 S.Ct. 426, 429, 38 L.Ed. 276 (1894). Given such a perspective, we are unable to ascribe to § 1153 an invidious classification, and we conclude that appellant’s argument thereon must fail.

Appellant next contends the trial court erred in refusing his instructions on the elements of assault and the definition of serious bodily injury, and his requested instructions on temporary insanity. Addressing ourselves first to the requested instructions on “assault resulting in serious bodily injury,” we find that such instructions attempted to define the crime in terms of 18 U.S.C. § 114. Section 1153, however, provides that “assault resulting in serious bodily injury” shall be defined in accordance with applicable state law. We therefore find no error in the trial court’s refusal to instruct on § 114, and its subsequent instruction on the basis of N.M.S.A. § 40A-3-5.

Turning our attention to the requested instructions on temporary. insanity, it is equally clear that no error was committed in refusing these instructions. Appellant presented no medical evidence on the issue. Virtually the only evidence raising the question was appellant’s own testimony that he was distraught and that he had vivid recollections of past combat activities while a soldier in Viet Nam. An accused must introduce some evidence of insanity before he is entitled to an insanity instruction. The trial court did not view the evidence presented as sufficient to raise the issue. We have carefully examined the record, and are in complete agreement with the trial court’s decision.

The next argument presented by appellant is that his motion for acquittal should have been granted because the government failed to prove serious bodily injury. In deciding whether to grant a motion for acquittal, a trial court must consider the evidence in a light most favorable to the prosecution. United States v. Mallory, 460 F.2d 243 (10th Cir. 1972), cert, denied, 409 U.S. 870, 93 S.Ct. 197, 34 L.Ed.2d 120. The evidence established that the victim sustained a gunshot wound. There were wounds of entry, located on the lower right side of his chest, where he had been hit by at least two double aught buckshot pellets. One of the pellets struck his liver, tearing a one-inch by two-inch hole in that organ, and causing internal bleeding. Based upon this evidence, we cannot say that serious bodily injury has not been proven.

Appellant’s final argument is that his sentence according to state law was illegal. We do not agree. Section 1153 provides that assault resulting in serious bodily injury is to be punished in accordance with applicable state law. Appellant was convicted of what is a third degree felony in New Mexico, the penalty being imprisonment for not less than two nor more than ten years. The trial court sentenced him to ten years. This was not error. See, e. g., State v. Henry, 78 N.M. 573, 434 P.2d 692 (1967). Under New Mexico’s indeterminate sentencing theory, a sentence is in effect for the maximum time, subject to reduction. State v. Deats, 83 N. M. 154, 489 P.2d 662 (1971). Any reduction in a sentence is a function of the state’s probation and parole authorities, and not the sentencing court. The sentence was not improper.

The judgment of the trial court is affirmed.

      . 18 U.S.C. § 1153 (Supp.1973) provides in part:
      Any Indian who commits against the person ... of another Indian ... assault resulting in serious bodily injury . . . shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

      . N.M.S.A. § 40A-3-5 (1953) provides in part:
      (A) Aggravated battery consists of the unlawful touching or application of force to the person of another with intent to injure that person or another.
      (C) Whoever commits aggravated battery inflicting great bodily barm or does so with a deadly weapon ... is guilty of a third degree felony.


author: COFFIN, Chief Judge. LEVIN H. CAMPBELL, Circuit Judge KILKENNY, Circuit Judge

text:
    Douglas GOMES et al., Plaintiffs, v. Anthony P. TRAVISONO et al., Defendants.
    Nos. 73-1065, 73-1066.
    United States Court of Appeals, First Circuit.
    Argued Sept. 7, 1973.
    Decided Dec. 28, 1973.
    As Amended Jan. 7, 1974.

      Richard J. Israel, Atty. Gen., with whom W. Slater Allen, Jr., Asst. Atty. Gen., was on brief, for Anthony P. Travisono, and others.
    Max D. Stern, Boston, Mass., with whom Stern & Shapiro, Boston, Mass., Cary J. Coen, Providence, R. I., Jack Greenberg, New York City, and Stanley A. Bass, Chicago, 111., were on brief, for Douglas Gomes, and others.
    Before COFFIN, Chief Judge, KILKENNY  and CAMPBELL, Circuit Judges.

       Of the Ninth Circuit, sitting by designation.

   COFFIN, Chief Judge.

These appeals raise the general question: to what extent, if at all, does the Constitution require that procedural rights be extended to prisoners prior to their transfer from a prison in one state to that in another state? The district court, in a lengthy and thoughtful opinion, 353 F.Supp. 457 (D.R.I.1973), granted broad injunctive and declaratory relief. We affirm in part and reverse in part.

This action, brought on behalf of all male Rhode Island inmates under 42 U.S.C. § 1983 and 28 U.S.C. § 1343, challenges the constitutionality of transfers from Rhode Island’s Adult Correctional Institution (A.C.I.) to various out of state and federal prisons without prior notice, statement of reason, or hearing. The named plaintiffs were among eleven inmates of A.C.I. who were transferred to prisons throughout the country in the fall of 1971. Tensions at the correctional institution following the September prison uprising at Attica had been compounded by a work strike of correctional officers, a predominance of unseasoned employees, discovery of bomb blueprints and racial animosities. An Afro-American Society had become active and had put forward a list of grievances which were being discussed. Rumor spread that serious disruption was contemplated and planned by the Society.

As a result of these circumstances, which created anxiety among the personnel, several of the Society’s most prominent members along with four white prisoners, suspected of planning to take advantage of any distraction to attempt an escape, were summarily taken out of the prison population and transferred. No charges or statement of reasons were presented to the prisoners. Neither the prisoners’ attorneys nor the prisoners themselves were given notice of transfer or afforded an opportunity to be heard. They were transferred to prisons in several states, including Georgia, Kansas and Illinois. All of those removed were segregated in the receiving prisons for a period of from two to six weeks.

We note at the outset that what is not at issue in this case is the power to transfer prisoners. Nor does the resolution of this case depend on any “right” to remain in a particular prison. What is at issue is whether and to what extent procedural rights exist when a prisoner’s transfer out of state is contemplated. Analysis of the right to procedural due process begins with an assessment of the prisoner’s deprivation on transfer. Invocation of any rights depends upon whether treatment inherent in the transfer process constitutes “grievous loss”. Morrissey v. Brewer, 408 U.S. 471, 483, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Board of Regents v. Roth, 408 U.S. 564, 570-571, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1969); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 95. L.Ed. 817 (1951) (Frankfurter, J., concurring). In this case assessments of deprivation of the particular prisoners transferred are a predicate to any judgment giving them relief. And, since broad declaratory and injunctive relief was sought and granted, it is relevant to inquire whether, apart from the unique facts relating to these plaintiffs, transfer in general is attended by sufficient deprivation to warrant procedural safeguards.

The district court examined the short and long range consequences to the individuals transferred by A.C.I. to discover whether those transfers resulted in grievous loss. The court made findings, supported by the evidence, that: (1) transferred inmates were placed in “administrative” segregation in the receiving institution for a period of two to six weeks, often in cells used for discipline; (2) the records of the transferred inmates rarely accompanied them, nor was the reason for transfer made clear to receiving institutions; (3) as a result, the classification board of the receiving prison placed the inmates in work assignments and other programs not consistent with prior treatment; (4) generally, because they were transferees, they were precluded from rehabilitative programs, psychological therapy sessions, and educational programs; (5) they received less or no pay for their work; (6) all transferred prisoners had fewer visits from family and friends; (7) none saw an attorney during the period of transfer; (8) transfer affected parole chances because it denoted troublemaker status on the record and because the transferred inmate may not be present at parole board hearings while resident inmates usually are present; and (9) there were serious problems of orientation to a new environment.

Wholly apart from the specifics of this case, we think it well recognized that transfer characteristically entails inconveniences and privations. Some arise by the distance factor alone, increasing the difficulty of communication and visitation. See Capitan v. Cupp, 356 F.Supp. 302 (D.Or.1972). Other disadvantages stem from the breaking off of established programs, both educational and rehabilitative, and orientation to a new setting, programs, rules and companions. Still other privations exist by reason of the administrative requirements of the receiving prison. New inmates must often be subject to “administrative” isolation pending examination, classification, and integration into a new prison community. Although the reason for this segregation may be distinguished from the reason for punitive segregation, the impact upon the inmate is no less. Finally, if the fact of transfer noted on an inmate’s record without further explanation connotes “troublemaker”, the inmate may be faced with recurrent unfavorable dispositions as to his status within the prison and might eventually suffer an unfavorable parole decision, resulting in a longer term adverse alteration of the inmate’s living conditions.

Whatever may be the purpose of transfers or the inevitability of some of their consequences, we necessarily look to their effect on the inmate. Having examined both the initial or short term consequences to the transferred prisoner and the potential for continuing impact upon his liberty, we conclude that some due process is mandated in all transfer cases. Here, as in Palmigiano v. Baxter, (1st Cir.1973), 487 F.2d 1280 the e*tent of the process due requires more delicate examination, and a balancing of the state’s interests against those of the prisoner.

The balancing of interests is more complex in these transfer cases than it is where discipline for a specific act is contemplated. Discipline, or punishment, while ranging in degrees of severity, is generically all of a piece. Transfer of a prisoner from one state to another may be made for any of a number of reasons. It may be “punitive”, in the sense that the prison administration is simply attempting to punish a misdeed. It may be for “security” if, as here, it is predicated on the apprehension of general and uncontrollable disturbance or on predictions of future misconduct by an inmate. It may be made for the best interests of other inmates if the prisoner is disruptive, a threat to others, or otherwise a bad influence as would be the case of a professional with continuing outside criminal contacts. A transfer may be for the best interests of the prisoner himself, for his safety or for his rehabilitation if it is believed that he will be better off elsewhere. And a transfer may be dictated by the needs or shortcomings of the institution, e. g., to alleviate overcrowding. The variety in kinds of transfer decisions and the need for latitude in administrative discretion dissuade us from attempting to impose any extensive blanket of due process procedures to cover all transfers.

This, however, was what the district court did. It prescribed as a predicate for any transfer, except an emergency situation, notice of reasons for transfer, a review of the basis for transfer by an investigative officer, a hearing before an impartial board at which the inmate would have the right to call and examine witnesses with the help of a lay advocate, the decision to transfer to be based on substantial evidence, with a record to be kept and administrative review of the decision to be available. In addition to these hearing-related procedures, an investigation was mandated, prior to transfer, of the rehabilitative programs of the receiving institution and a statement given the receiving institution identifying in what respect Rhode Island’s facilities were inadequate for the particular needs of the putative transferee. After transfer, the court required periodic review of the transferee’s status and the adoption of regulations ensuring the return of transferees for parole board hearings, for conferences with counsel in preparation for legal proceedings, and for appearance in court proceedings. Finally the court ordered that the eleven inmates transferred on November 18, 1971 be returned to custody and that inmates transferred at other times be returned for hearings on the issue of the propriety of their transfer.

We feel constrained to paint with a smaller brush. While much of what the court required is appropriate for some transfer situations and some of it appropriate for all, our approach requires us to be rather stringently selective. We observe at the outset that we endorse the exception for emergencies, provided for by the district court. We recognize that present or impending disturbances which might overtax the control capacity of a prison creates a dominant interest in prison authorities being able to act without delay if they feel that delay would endanger the inmate, others, or the prison community. Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 28 L.Ed.2d 113 (1970). This is so even though the assessment of difficulties may subsequently prove to be unfounded and the transfers unjustified. Due process requires, however, that once the transfer takes place, the inmate be granted at the earliest opportunity the minimal procedures which we identify infra as due.

At the other end of the spectrum from the emergency situation, where the authorities may act without present hindrance, is the transfer which is made to punish a prisoner for his past conduct. In such a situation, where, but for transfer, the loss of classification and privileges would be imposed within the prison, we think that the balance has already been struck by the A.C.I. rules set forth in Morris v. Travisono, 310 F.Supp. 857, 871-874 . (D.R.I.1970), and adopted as law by Rhode Island. While transfer” itself is not contemplated by those rules, we would think it anomalous, both from a due process and an equal protection point of view, if the prison authorities could accomplish by transfer a procedure-free punishment which they could not accomplish within their own walls. We therefore affirm the district court insofar as its order imported the Morris rules, but only as to transfers which are based on prisoners’ past misconduct within the prison.

As for the variety of other transfers, we work from the premise that once the application of due process requirements is justified by the loss or disadvantage stemming from the institution’s action, the state must afford minimally those processes which are of little or no burden. Palmigiano, supra, text at notes 19-20. These procedures must be supplemented with the opportunity to correct errors of fact on which administrative decisions are based and to assure that grievous loss will not be imposed without careful examination to determine that grounds for such an imposition exist. We consider due process in the present circumstances to include: (1) notice that a transfer is contemplated; (2) notice of the reasons for the proposed transfer; (3) a personal hearing before a decisionmaker; and (4) a reasonable opportunity, at the hearing, to controvert factual assertions concerning the inmate that have been advanced in support of the decision to transfer. The function of the hearing would not be to force the warden to justify his de-cisión by any quantum of evidence, or to provide the basis for review by a remote independent official, board, or court. But it would serve the prisoner’s interest in not being subjected, without an opportunity to present his views and factual corrections, to an arbitrary decision stemming from the malice of a guard or other prisoner, or an untrue rumor.

We are clear that these four requirements are the least that due process requires. We are also presently of the view that, in the kinds of transfers we are addressing, we cannot impose on the prison authorities the requirements of a pre-hearing investigation, the right of the inmate to the help of a lay advocate, decisions based on substantial evidence, or administrative review.

We are not so clear about two other matters. The first is the degree of impartiality of the decisionmaker. While absolute impartiality is the ideal, we see difficulty in requiring this in the type of transfer case we are dealing with. For, having separated out the kind of case where charges of misconduct are being pressed against the inmate, and where it is most inappropriate that the prosecutor and decider be the same person, we are left with matters where the superintendent or warden is necessarily vested with wide discretion. Moreover, it may well be important for the inmate to be able to address directly the warden or his designate. With these admittedly limiting strictures, we leave to the district court the fashioning of a transfer hearing tribunal which can aspire to reasonable objectivity while recognizing the responsibility and wide discretion of the warden or superintendent. In like manner we leave to the court to work out an informal record-keeping requirement, short of a verbatim transcript, that will preserve the points and contentions made.

As to those parts of the court’s order going beyond the notice and hearing procedure itself, we again must be selective. Because noting the reason for transfer on the papers forwarded with the transferred inmate is so little to require and may substantially avoid unnecessary restrictions in the transferee institution, we do not disturb that requirement. We also believe that the reason for the transfer must be noted in the inmate’s records in Rhode Island, so that unwarranted inferences will not unfairly diminish opportunities for parole. Nor do we take issue with the requirements of periodic review of the status of transferred inmates on terms which the court may deem feasible from the standpoint of A.C.I. or of regulations governing the return of transferred inmates to Rhode Island for parole board hearings, reasonable consultation with counsel, and appearance in court proceedings. We do not, however, affirm the requirement that prior to transfer prison authorities investigate rehabilitative and treatment programs in receiving institutions or submit a statement to receiving institutions of A.C.I.’s inadequacies and recommendations relating to the particular transferee. As is true of much of the court’s order, this may well be desirable; we cannot say that it is compelled.

Finally, we affirm the court’s order returning to Rhode Island the eleven inmates transferred on November 18, 1971 for the kind of hearing we have described. As to other inmates who have been transferred, while they have a right to hearing, they should be advised of their right and those wishing to avail themselves of it should be given the opportunity.

Time and experience may indicate that the procedures we have identified as minimally necessary will prove to be illusory or inadequate. We prefer, however, to move gingerly in this uncharted area.

The judgment is affirmed in part and reversed in part. The case is remanded for further proceedings consistent with this opinion.

LEVIN H. CAMPBELL, Circuit Judge

(concurring).

At the risk of repeating what is clear, it is my understanding that the opinion is limited to the situation before us, namely transfers to out-of-state prisons. I do not believe that a transfer from one to another institution within the jurisdiction of commitment would carry with it any of the rights described in the court’s opinion. Transfer to a foreign jurisdiction has traditionally been regarded as altogether different: to be cast outside the jurisdiction within which one was sentenced is often to be separated from rights, privileges and standards otherwise available — to become, to some degree, a “man without a country”. In such event, but not otherwise, there may be said to be “grievous harm” requiring constitutional protection.

KILKENNY, Circuit Judge

(dissenting).

The atmosphere in the Rhode Island Adult Correction Institution in the fall of 1971, following the bloody uprising in September in the prison at Attica, New York, was one of acute tension and confrontation between militant black inmates and members of the prison staff. Shortly before the transfers, blueprints and materials for making a bomb were found in the prison. Then, the Warden received what he considered reliable information that a plot was afoot. The plot involved two plans of action; one plan calling for the presentation of impossible demands to the Warden by the Afro-American Society, the other involving a contemplated seizure of hostages. In the surrounding confusion of this disruption, several inmates would then attempt to escape. This information was obtained from informants and prison personnel. Although there were several versions of the plot and some of them inconsistent, there was little question in the mind of the Warden that there was something behind the rumors. Four of the transferred inmates were white, the rest were black. The black inmates were active in the Afro-American Society. The white inmates who were transferred were suspected of planning to escape. As it turned out, there was a clear mistake as to two of the white inmates. The trial judge found that the transfers were motivated by the stories of a forthcoming prison riot, that the prison officials were of the honest belief that there was a plot, and that their action in transferring the inmates was not arbitrary or capricious. The judge expressed the opinion, however, that the Warden’s fear of an imminent prison uprising was not based on reliable evidence.

I am unable to agree with the majority view “. . . that some due process is mandated in all transfer cases.”, or with the conclusion that “. . . notice of charges or reasons for the action and of the intent to transfer with an opportunity for the inmate to challenge the facts . . .” is a constitutional requirement in all cases where transfer is contemplated. In the circumstances, here presented, a notice of the charges, served on the suspected inmates, might well have triggered the riot which the authorities feared.

It seems to me that the majority has failed to recognize that the consequences of conviction of a crime involve not merely the loss of liberty enjoyable in a free society, but additionally the subsequent impairments which are inevitably associated with membership in a closely supervised prison community. A good faith determination that swift action is necessary to forestall a riot should substantially outweigh an immediate determination of individual culpability. For that matter, the inherent characteristics of a prison society are such that prison officers must make prompt decisions as problems confront them, and this governmental interest in maintaining disciplined order far outweighs the individual interest in perfect justice. On this record, the alleged autocratic action taken by the concerned officials was an inevitable incident of effective management of the suspected inmates.

At best, due process is flexible and calls for only those procedural protections that the situation demands. Consideration of what procedures due process may require under any given set of circumstances must begin with the determination of the precise nature of the governmental function involved, as well as the private interest that may have been affected by the governmental action. Consequently, even conceding, which I do not, that the action of the authorities, on the record before us, rises to constitutional dimensions, we still must weigh the predictable tragic consequences of an imminent prison riot against the highly restricted personal rights of prison inmates. I find nothing in the guidelines enunciated in Morris-sey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed. 2d 287 (1970); Cafeteria Workers Union v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), or other Supreme Court cases which I have analyzed, to suggest that, on this type of record, the suspected inmates were entitled to a hearing before transfer.

Although the rules imposed in Morris v. Travisono, 310 F.Supp. 857 (D.R.I. 1970), outline what would appear to be reasonable procedures in every day disciplinary problems, they should not be employed to handcuff prison officials in their efforts to prevent what might well be a bloody prison mutiny. The trial judge concedes that his hindsight observations on the seriousness of the threat are of no consequence.

The transferred inmates do not challenge the validity of the New England Interstate Corrections Compact, under the provisions of which they were transferred. Despite what is said by the majority, transfers without hearings, under such compacts are not per se unconstitutional. Hillen v. Director of Dept. of Social Service & Housing, 455 F.2d 510 (CA9 1972), cert, denied 409 U.S. 989, 93 S.Ct. 331, 34 L.Ed.2d 256; Duncan v. Madigan, 278 F.2d 695 (CA9 1960), cert, denied 366 U.S. 919, 81 S.Ct. 1096, 6 L.Ed.2d 242 (1961); Duncan v. Ulmer, 159 Me. 266, 191 A.2d 617 (1963).

I would reverse the judgment of the lower court and dismiss the action.

      . The transfers to both state and federal prisons were authorized under R.I.G.L. § 13-11-1 et seq.; R.I.G.L. § 13-12-1 (1956, 1969 Reenactment) and 18 U.S.C. § 5003.

      . Much of the precedent cited to us is directed to the transfer power issue. See, e. g., Hillen v. Director of Social Service and Housing, 455 F.2d 510 (9th Cir. 1972), (no challenge to procedures under which the prisoner was transferred) ; Hanvey v. Pinto, 441 F.2d 1154 (3d Cir. 1971) ; Rodriguez-Sandoval v. United States, 409 F.2d 529 (1st Cir. 1969) (held that the Attorney General had right to determine the federal prison in which to initially place the prisoner) ; Lawrence v. Willingham, 373 F.2d 731 (10th Cir. 1967) (reached only the issue of the Attorney General’s power to designate the place of confinement for a prisoner under 18 U.S. C. § 4082(a) contrary to the sentencing court’s recommendation; no procedural due process challenge was raised) ; Duncan v. Madigan, 278 F.2d 695 (9th Cir.), cert, denied, 366 U.S. 919, 81 S.Ct. 1096, 6 L.Ed.2d 242 (1960) (upheld the constitutionality of 18 U.S.C. § 5003 permitting transfers to federal prisons). United States ex rel. Stuart v. Yeager, D.C., 293 F.Supp. 1079, aff’d, 419 F.2d 126 (3d Cir.), cert, denied, 397 U.S. 1055, 90 S.Ct. 1400, 25 L.Ed.2d 673 (1969) (no procedural due process challenge) .

      . Some cases have disposed of challenges to transfers on the simplistic ground that a prisoner lias no vested or constitutional right to remain in a particular prison. See, e. g., Gray v. Creamer, 465 F.2d 179 (3d Cir. 1972) (“a state prisoner has no constitutional right to remain in any particular prison.”) ; United States ex rel. Thomas v. Bookbinder, 330 F.Supp. 1125 (E.D.Pa. 1971) ; Bundy v. Cannon, 328 F.Supp. 165 (D.Md.1971) (“a prisoner has no vested right to be assigned or to remain in a medium security prison”, but where prisoners are segregated in the receiving prison they must be afforded procedural safeguards) ; Verde v. Case, 326 F.Supp. 701 (D.C.Pa.1971) (due process challenge to transfer failed to state a claim) ; Duncan v. Ulmer, 159 Me. 266, 191 A.2d 617 (1963) (“it must be pointed out that the prisoner is speaking of a privilege not a right”). The force of the inference drawn from the premise of these cases is substantially eroded by the Supreme Court’s rejection of “the concept that constitutional rights turn upon whether a government benefit is characterized as a ‘right’ or as a ‘privilege’.” Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 1853, 29 L.Ed.2d 534 (1971). We therefore reject the basis for these decisions on' the authority of Graham, supra, and for reasons discussed in the text, we reject their conclusion as well.

      . Hoitt v. Vitek, 361 F.Supp. 1238 (D.N.H. 1973) ; cf. Holt v. Sarver, 309 F.Supp. 362 (E.D.Ark.1970) ; see generally Turner, Establishing the Rule of Law in Prisons, 23 Stan.L.Rev. 473, 501-503 (1971).

      . See Ault v. Holmes, 369 F.Supp. 288 (W.D. Ky. Aug. 23, 1973) (prisoners in receiving prisons segregated for five or six days) ; Hoitt v. Vitek, 361 F.Supp. 1238 (D.N.H. 1973) (transferees routinely placed in quarantined segregation) ; Bundy v. Cannon, 328 F.Supp. 165 (D.Md.1971) (55 transferred prisoners were kept segregated for 30 days in receiving prison).

      . A prisoner’s “disciplinary record may follow him throughout the prison system; if liis punishment was without cause, he is punished anew each time his record is used against him. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 ... (1967). Similarly, his disciplinary record may affect his eligibility for parole . ” Hudson v. Hardy, 137 U.S.App. D.C. 366, 424 F.2d 854, 856 (1970).

      . Ault v. Holme, 369 F.Supp. 288 (W.D.Ky. Aug. 23, 1973) ; Hoitt v. Vitek, 361 F.Supp. 1238 (D.N.H.1973) ; White v. Gillman, 360 F.Supp. 64 (S.D.Iowa 1973) ; Capitan v. Cupp, 356 F.Supp. 302 (D.Or.1972) ; see Bundy v. Cannon, 328 F.Supp. 165 (D.Md. 1971) (court ruled that procedural due process must be afforded when transfer was to segregated - confinement in receiving prison); cf. Biagrelli v. Siegliff, 483 F.2d 508 (July 7, 1973) (a prisoner put into administrative segregation is entitled to written notice of the basis of his removal and opportunity to rebut the charges in a hearing) ; Bowers v. Smith, 353 F.Supp. 1339 (D.Vt.1972) (inprison transfer to segregated area for non-punitive reason required due process safeguards) ; Urbano v. McCorkle, 334 F.Supp. 161 (D.N.J.1971) (prisoners confined to administrative segregation entitled to same minimal due process as prisoners confined to segregation for disciplinary infractions). See also citations in Kranz, The Law of Corrections and Prisoners’ Rights 677 n. 2 (1973).

      . We confine ourselves here to interstate transfers, partly because this appeal concerns only such transfers and partly because the disadvantageous impact of transfer to different state correctional systems is more likely to be greater in significant respects than transfers within a state.

      . For example, where the prison, lacking sufficient maximum security facilities, seeks to transfer an inmate, presently a member of the general prison population with normal privileges, to another institution’s maximum security unit.

      . IVe recognize the possibility that a prisoner who has recently engaged in misconduct may be sought to be transferred because of the authorities’ apprehension that the conduct may be repeated, endangering the security of the prison. In the absence of other basis, we think that the Morris rules and their intent would preclude the boot-strapping result which would occur were past misconduct to provide a sufficient basis for apprehension of future misconduct. We necessarily rely on the good faith of the authorities.

      . The effort to premise action imposing substantial losses on accurate factual determinations is a central theme in procedural due process cases. See, e. g., Gagnon v. Scarpelli, 411 U.S. 778, 785, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) ; Morrissey v. Brewer, 408 U.S. 471, 479-480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ; Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1969).

      . Smith v. Hooey, 393 U.S. 374, 89 S.Ct. . 575, 21 L.Ed.2d 607 (1969) ; Klopfer v. North Carolina, 386 U.S. 213 at 219, 87 S.Ct. 988, 18 L.Ed.2d 1 (1966).

      . The court below based a requirement of evaluation of receiving prison facilities on due process. As we have indicated we do not think that due process extends this far. See Sostre v. McGinnis, 442 F.2d 178 (2d Cir. en banc 1971). Nor do we feel such investigation of receiving prisons is required by the New England Corrections Compact or 18 U.S.C. § 5003. In addition, we agree with the court that neither the Compact nor federal law preclude transfers for nonreha-bilitative purposes.