author: MEHAFFY, Chief Judge.

text:
    NORMAN G. JENSEN, INC., a Minnesota corporation, Petitioner, v. FEDERAL MARITIME COMMISSION, Respondent.
    No. 73-1514.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 11, 1974.
    Decided June 5, 1974.

      Joe A. Walters, Minneapolis, Minn., for petitioner.
    William H. Smith, Jr., Atty., Federal Maritime Comm., Washington, D. C., for respondent.
    Before MEHAFFY, Chief Judge, and GIBSON and WEBSTER, Circuit Judges.
   MEHAFFY, Chief Judge.

Norman G. Jensen, Inc., a Minnesota corporation, has petitioned this court to review and set aside a report and final order of the Federal Maritime Commission. The report and order in question allowed Jensen to retain its license as an independent ocean freight forwarder, but only on the condition that Jensen immediately terminate all relations with International Traders and Counsellors, Inc. (hereinafter “ITC”). Norman G. Jensen, Inc. — Independent Ocean Freight Forwarder License No. 800,

Docket No. 70-45 (June 13, 1973). The Commission’s decision was based upon its conclusion that Jensen was not an “independent ocean freight forwarder” within the meaning of 46 U.S.C. § 801, and that Jensen’s relationship with ITC constituted a violation of § 16 of the 1916 Shipping Act (46 U.S.C. § 815). For reasons hereinafter set forth we disagree and set aside the order.

Norman G. Jensen, Inc. (hereinafter “Jensen”) is primarily engaged in the business of serving as a customhouse broker. In such capacity Jensen acts as an agent for persons importing goods into the United States from foreign countries. Jensen also serves as an air-cargo agent in arranging for the transportation of goods being exported by air carrier. The third and smallest area of Jensen’s activities is ocean freight forwarding. It is only this last area with which we are involved here.

Jensen registered with the Commission in 1950 as an ocean freight forwarder and in 1961, following enactment of the Freight Forwarder Law, applied for and was granted a forwarder’s license. The term “carrying on the business of forwarding” is defined by the relevant statute as meaning “the dispatching of shipments by any person on behalf of others, by ocean-going common carriers in commerce from the United States, * * * and handling the formalities incident to such shipments.” 46 U.S.C. § 801.

ITC, also a Minnesota corporation, functions as a service enterprise for, primarily, only four clients. The services performed by ITC consist of making arrangements for transportation to port, preparing export declarations, consular invoices and related documents, translating documents, receiving purchase orders and payments, preparing commercial invoices and inventory reports, investigating credit, and selecting freight forwarders. Whenever any of ITC’s clients need the services of an ocean freight forwarder, ITC selects Jensen unless its client or consignee has some contrary preference. ITC is paid for its services either a fee on a retainer basis, an amount equal to 10% of the price of the goods shipped, or a transactional service charge plus the 10% fee. Jensen is connected with ITC through common ownership and interlocking officers and directors.

In October 1969 the Commission conducted an investigation into Jensen’s status and activities. As a consequence of the investigator’s report the Commission instituted a proceeding pursuant to 46 U.S.C. §§ 821, 841b to determine whether Jensen continued to qualify as an independent ocean freight forwarder and whether Jensen had violated 46 U.S.C. § 815 by virtue of its relationship with ITC. After an evidentiary hearing held in March 1971, the hearing examiner concluded that: (1) Jensen was not independent because it directly or indirectly controlled and/or was controlled by ITC, a person who was shipper connected and, in addition, had a beneficial interest in shipments to foreign countries; (2) this relationship with ITC was in violation of 46 U.S.C. § 815; (3) Jensen’s relationship with ITC was willfully concealed from the Commission by falsification of its application for the license; and (4) Jensen’s license as an independent ocean freight forwarder should be revoked.

Jensen filed exceptions to the examiner’s decision and on June 15, 1973 the Commission entered its decision in the form of a report and order. A majority of three Commissioners agreed to adopt the trial examiner’s conclusions (1) and (2) above. As to conclusions (3) and (4), the Commission held that the record did not justify a conclusion of “willful” falsification of the license application, and decided that Jensen should be allowed the opportunity to eradicate the control connections with ITC as an alternate to revocation of its license. The Commission has stayed execution of its order until judicial review has been completed. This court is given jurisdiction under 28 U.S.C. § 2342 to review the Commission’s final order.

The issues which are dispositive of this petition can be simply stated: First, whether Jensen is sufficiently independent to come within the definition of “independent ocean freight forwarder” as set forth in 46 U.S.C. § 801; and, secondly, whether Jensen’s relationship with ITC has resulted in the payment by shippers of reduced shipping charges which would constitute a violation of § 16 of the 1916 Shipping Act.

Independent Ocean Freight Forwarder.

. [1] Most forwarders derive their income from two sources. They receive compensation from shippers for the services provided them and brokerage payments from ocean carriers. While a carrier may properly pay brokerage fees to licensed ocean freight forwarders, the 1916 Shipping Act was enacted to prohibit a carrier from making any rebates to shippers. If the freight forwarder is a “dummy”, i. e., owned or controlled by a shipper, the otherwise innocent brokerage fee will result in the unlawful rebate situation because the fee inures to the benefit of the shipper. The Freight Forwarder Law was designed to prevent such abuse by requiring a forwarder to be independent of any shipper. The statute defines “independent ocean freight forwarder” as:

[A] person carrying on the business of forwarding for a consideration who is not a shipper or consignee or a seller or purchaser of shipments to foreign countries, nor has any beneficial interest therein, nor directly or indirectly controls or is controlled by such shipper or consignee or by any person having such a beneficial interest.

46 U.S.C. § 801.

The statute further defines “person” to include a corporation. Id.

There is no doubt that Jensen is engaged in the business of ocean freight forwarding. The issue is whether Jensen is “independent.” The Commission’s order is based in part upon its conclusion that Jensen is not independent. This conclusion, in turn, is premised upon its determination that (1) ITC is a shipper or is “shipper-connected” and has a beneficial interest in the shipments which it services, and (2) that ITC controls, or is controlled by, Jensen.

Although the Commission concluded that Jensen is not independent because ITC is a shipper, the facts of the case plainly show the contrary. The term “shipper,” as used in the Act, is not defined but is commonly understood to mean the owner or person for whose account the carriage of the goods is undertaken. Compagnie Générale Transatlantique v. American Tobacco Co., 31 F.2d 663 (2d Cir.), cert. denied, 280 U.S. 555, 50 S.Ct. 16, 74 L.Ed. 611 (1929). The Commission, however, does not contend that ITC was the owner of the shipments which it serviced; therefore this situation is clearly distinguishable from the dummy-forwarder cases with which the Commission has dealt on previous occasions. Application for Freight Forwarding License — York Shipping Corp., 9 F.M.C. 72 (1965); Application for Freight Forwarding License — Wm. V. Cady, 8 F.M.C. 352 (1964); Application for Freight Forwarding License— Louis Applebaum, 8 F.M.C. 306 (1964). In those cases the forwarder was controlled or owned by persons who were obviously “shippers.” The shipments in the instant case were undertaken for the account of ITC’s shipper-clients, not for ITC which simply assisted in arranging for their shipment. We hold that ITC was not a shipper with regard to the shipments here involved.

The hearing examiner’s conclusion that ITC is “shipper-connected,” while possibly accurate depending on how the term is defined, lacks any significance. It is undisputed that ITC is connected with its shipper-clients because it does render services to them for a fee. Any forwarder, for that matter, who renders services to a shipper-client will be “shipper-connected.” This association, however, would not affect Jensen’s status as an independent ocean freight forwarder under the definition set forth in the Freight Forwarder Law even assuming, arguendo, that Jensen controlled, or was controlled by, ITC. Jensen’s status, for that purpose, would be affected only if ITC was a shipper or consignee or a seller or purchaser of shipments to foreign countries, or had a beneficial interest in such shipments. The hearing examiner’s conclusion that ITC is “shipper-connected,” therefore, has no relevance to the issue of whether Jensen is an independent freight forwarder.

The decision of the examiner that ITC had a beneficial interest in the shipments which its shipper-clients made to foreign countries was also adopted by the Commission. If that conclusion was correct, and again assuming, arguendo, that the necessary control was present, Jensen would not qualify as an independent ocean freight forwarder. Jensen contends that ITC possessed no such beneficial interest. The term “beneficial interest” is not defined by the statute but its traditional meaning is understood to be the right to the use and enjoyment of property. This interest is normally owned by the legal title holder but by agreement or operation of law can be placed in another.

The Commission maintains that the term “beneficial interest” is susceptible to a broader definition — one which would include ITC’s relationship with its clients’ shipments. The Commission’s argument is two-pronged. It contends that inasmuch as ITC is compensated for its services by three of its four clients on the basis of a percentage of the value or proceeds of the goods exported, ITC has a beneficial interest in the shipments. The Commission further contends that the authority given ITC by its shipper-clients in the handling of their shipments was a proprietary right which also constituted a beneficial interest. The benefit to ITC would be the forwarding business which it could direct to Jensen.

The rules and regulations promulgated by the Commission under the authority of 46 U.S.C. § 841a sought to define this term:

The term “beneficial interest” for the purpose of these rules ineludes, but is not limited to, any lien interest in, right to use, enjoy, profit, benefit, or receive any advantage,’ either proprietary or financial, from; the whole or any part of a shipment or cargo, arising by financing of the shipment or by operation of law or by agreement, express or implied, provided, however, that any obligation arising in favor of a licensee by reason of advances of out-of-pocket expenses incurred in dispatching of shipments shall not be deemed a beneficial interest.

46 C.F.R. § 510.21(1).

The purpose served in excluding persons with a beneficial interest in a shipment from the definition of an “independent ocean freight forwarder” becomes more obvious in the context of its legislative background. By so defining the term Congress intended to preclude the possibility of another form of an unlawful rebate situation. Such indirect rebate could result if brokerage fees found their way into the hands of those who indirectly bear the freight charges, e. g., where a forwarder acquires by purchase, or becomes otherwise entitled through financing arrangements to, the right to share in the profit from a shipment and at the same time receives a brokerage fee from the carrier. The Second Circuit has likewise viewed Congress’ intent in requiring an independent ocean freight forwarder to be free of any beneficial interest in a shipment. New York Foreign Freight Forwarders & Brokers Ass’n v. Federal Maritime Commission, supra. The court’s opinion contained this statement:

A forwarder licensee must be “independent” — free of any affiliation with a shipper, consignee, seller, purchaser of the shipment, or with any person having a beneficial interest in the goods, 46 U.S.C. § 801 — in order to eliminate indirect rebates to shippers. (Emphasis added.)

337 F.2d at 293.

The prohibited beneficial interest, therefore, must be something more than that which JTC has in this case because ITC’s relationship to the goods could not give rise to an indirect rebate. Consequently, we hold that neither the manner of computation of ITC’s fee nor the discretion which ITC has exercised in some cases in the selection of a forwarder constitutes a beneficial interest within the meaning of the statute or reasonable intendment of the rules promulgated thereunder.

Inasmuch as the Commission’s conclusions that ITC was a shipper and had a beneficial interest in the shipments were made in error, it is not necessary that we review the Commission’s conclusion that Jensen controlled, or was controlled by, ITC.

Violation of % 16.

The hearing examiner’s conclusion that Jensen’s relationship with ITC was in violation of § 16 of the Act was also adopted by the Commission. The examiner’s decision was obviously based on the provision in § 16 which makes it unlawful for a forwarder, by an unfair or unjust device, to obtain transportation at less than the rates or charges otherwise applicable. The examiner explained his decision on this issue by stating that a forwarder who has any beneficial interest in a shipment and accepts brokerage thereon is guilty of accepting a rebate in violation of § 16. As discussed above, we hold that ITC had no beneficial interest in the shipments of its shipper-clients. We therefore cannot agree with a finding of a violation of § 16 on that basis.

The Commission urges this court to sustain its conclusion on the alternate ground that § 16, Second, was violated. Section 16, Second, provides that it shall be unlawful to directly or indirectly “allow” any person to obtain transportation at less than regular rates or charges through any unjust or unfair device or means. The Commission maintains that Jensen has indirectly allowed ITC’s shipper-clients to obtain lower transportation rates. American Union Transport, Inc. v. United States, 103 U.S.App.D.C. 229, 257 F.2d 607, cert. denied, 358 U.S. 828, 79 S.Ct. 46, 3 L.Ed.2d 67 (1958); Brokerage on Ocean Freight — Max Le-Pack et al., 5 F.M.B. 435 (1958). The rationale employed by the Commission is as follows: Jensen received $100.00 in 1969 and $185.00 in 1970 in the form of brokerage fees from carriers incidental to the forwarding of shipments owned by ITC’s shipper-clients. ITC is subsidized by Jensen through the compensation which Jensen pays to the operations officer of ITC. This subsidy must have included some portion of the above $285.00 of brokerage fees. ITC is thus able to provide services to its shipper-clients at a lesser charge than would have been possible without the subsidy from Jensen, ergo, the $285.00 has found its way back to ITC’s shipper-clients and the arrangement results in an unfair or unjust device for obtaining reduced transportation charges. Although the logic of the argument appears somewhat palpable, it lacks any real merit. This same rationale would require the finding of a violation of § 16 any time a shipper employs an ocean forwarder because it is more economical than maintaining its own forwarding staff. It would strain the words of the statute too far without furthering any of the objectives for which the Act was designed to serve to find a violation in this situation. We hold that the Commission’s conclusion that Jensen’s relationship with ITC effected a violation of § 16 of the Act was made in error.

The decision and order of the Federal Maritime Commission are set aside.

      . Income from ocean f reight forwarding services accounted for only five percent of Jensen’s gross revenues in 1970.

      . When the Commission commenced this investigation, Jensen’s 150 shares of outstanding stock were owned as follows: Norman G. Jensen II and family — 74 shares; Gordon W. Jensen and wife — 74 shares; Bent Jensen (unrelated to the other shareholders) — 2 shares. Jensen’s officers were Gordon W. Jensen, President and Treasurer, and Bent Jensen, Vice President and Secretary. ITC was owned 50% by Bent Jensen and wife and 50% by Gordon Jensen. Bent Jensen was President and Director of ITC and Gordon W. Jensen a Director and its Secretary and Treasurer.
      During pendency of review by the Commission these relationships were altered so that the remaining connection between Jensen and ITC is only via Bent Jensen. Bent Jensen is now the sole shareholder of ITC. He also owns 2 shares of Jensen and continues to serve as an Officer and Director of Jensen.

      . The Commission suggests that the Freight Forwarder Law had as a broader purpose the creation of a fiduciary standard for the forwarding industry. However, the language of the statute does not support that contention and a fiduciary standard would seem to be inherently inappropriate inasmuch as a forwarder receives compensation from both shipper and carrier.

      . See New York Foreign Freight Fowarders & Brokers Ass’n v. Federal Maritime Commission, 337 F.2d 289 (2d Cir. 1964), for a review of the legislative and historical background of the Freight Forwarding Law and the forwarding industry.


source: Caselaw Access Project

author: McCREE, Circuit Judge.

license: Public Domain

text:
    George L. BROOKS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-2195.
    United States Court of Appeals, Sixth Circuit.
    Argued April 3, 1974.
    Decided May 31, 1974.

      Richard N. Rose, Lexington, Ky., for petitioner-appellant.
    Robert M. Murphy, Asst. U. S. Atty., Lexington, Ky., for respondent-appellee; Eugene E. Siler, Jr., U. S. Atty., Lexington, Ky., on brief.
    Before CELEBREZZE, and McCREE, Circuit Judges, and WALINSKI , District Judge.

       The Honorable Nicholas J. Walinski, Judge, United States District Court for the Northern District of Ohio, sitting by designation.

   McCREE, Circuit Judge.

This appeal from the denial of a motion to vacate sentence under 28 U.S.C. § 2255 requires us to determine whether a court before sentencing as an adult, a person eligible for treatment under the Youth Corrections Act, 18 U.S.C. § 5010, must make an express finding that the youth offender will not benefit from the treatment provided by that Act and give reasons for that finding. We hold that the court must make such an express finding supported by a statement of its reasons.

This case arose out of an attempted armed bant robbery on May 21, 1970, in which appellant, then twenty years old, fired several shots at a bank guard. The guard, who was not hit, ordered appellant to drop his gun and, when appellant failed to obey, shot him. Appellant was grievously wounded and required intensive hospital care for several days.

Subsequently, on December 14, 1970, appellant, then twenty-one years old, pleaded guilty to an indictment charging him with violating 18 U.S.C. § 2113(d). The court, without expressly considering appellant’s eligibility for treatment under the Youth Corrections Act, sentenced him as an adult to twenty years imprisonment. This lengthy sentence was imposed despite appellant’s youth, his good family ties, his educational background, and his previously unblemished record. In the order imposing this sentence, the court also directed that Brooks be given a complete psychiatric and physical examination. The commitment for study was not made, however, pursuant to 18 U.S.C § 5010(e) or 18 U.S.C. § 4208(b).

On April 16 of the next year, appellant filed a motion for reduction of sentence. Although the court denied the motion, it is evident from the transcript of the proceeding in connection with the motion that the court was deeply troubled by the severity of the sentence it had imposed. In addition to commenting on appellant’s youth, his family circumstances, his educational achievement, and his lack of a previous record, the court characterized his action as irrational, expressed concern that no motive or reason for the action had been ascertained, and concluded that appellant must have suffered from some kind of emotional strain when he committed the crime. The court added, “I tried every way on earth to think if I could impose any lesser sentence. I’ve never given less than a 15 year sentence in a bank robbery case, and even then that’s where a firearm was not used.” The court concluded that “I think he wanted to hurt himself and his family, and I think he needs help desperately.” At the same time, the court expressed its opinion that appellant would compile an exemplary record at the penal institution in which he would be confined and that appellant is “a bright young man and there are opportunities available to him to advance his education and skill. It need not destroy him.”

Thereafter, on June 14, 1973, appellant, having served two and one-half years of his sentence, filed this motion to vacate on the grounds that the district court, by failing to make an express finding that he could not benefit from the treatment provided by the Youth Corrections Act, had imposed an illegal sentence. The government responded that the imposition of the sentence under 18 U.S.C. § 2113(d) in and of itself constituted a finding that appellant would not benefit from the Act and that such an implicit finding was legally sufficient. The district court agreed, and, without ordering further examination of appellant, also expressly found, in accordance with the recommendation made by the magistrate to whom the motion had been referred, that appellant would not benefit from treatment under 18 U.S.C. § 5010(b) and (c). This appeal followed.

The Federal Youth Corrections Act provides, in relevant part, that

If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c), then the court may sentence the youth offender under any other applicable penalty provision. 18 U.S.C. § 5010(d).

This Act was intended to afford youthful offenders, in appropriate cases, an opportunity to receive rehabilitative treatment designed to enable them to become useful members of their communities and to avoid the dangers inherent in close confinement with experienced adult criminals. Brisco v. United States, 368 F.2d 214 (3d Cir. 1966). The Youth Corrections Act “provides a preferred sentencing alternative which must be used in sentencing a youthful offender unless, in the language of § 5010(d), ‘the court shall find that the youth offender will not derive benefit from treatment under subséction (b) or (c) ....”’ Cox v. United States, 473 F.2d 334, 337 (4th Cir.) (en banc), cert. denied. 414 U.S. 869, 94 S.Ct. 183, 38 L.Ed.2d 116 (1973). (Emphasis added.) Accordingly, persons eligible for sentencing thereunder should be denied the rehabilitative treatment provided by the Act only in those exceptional cases where they are so incorrigible that they could not benefit from it. United States v. Phillips, 156 U.S.App.D.C. 217, 479 F.2d 1200 (1973); United States v. Coefield, 155 U.S.App.D.C. 205, 476 F.2d 1152 (1973) (en banc).

Yet, despite the purpose of the Act and its direction that a district court affirmatively determine that a youth offender will not benefit from the treatment provided by the Act before sentencing him as an adult under other statutory provisions, courts have been unable to agree whether this required determination must be made expressly or may be made implicitly. At least one court has upheld an adult sentence imposed upon a youthful offender based upon an implicit determination, holding that a reviewing court may infer such a determination solely from the imposition of an adult sentence. United States v. Dorszynski, 484 F.2d 849 (7th Cir. 1973), cert. granted, 414 U.S. 1142, 94 Sup.Ct. 892, 39 L.Ed.2d 99 (1973). Although other courts have stated that implicit findings are permissible, they have, at the same time, remanded the very cases in which such language appears to the district courts for an explicit determination whether the youth offenders would benefit from treatment under the Act. Cox v. United States, supra; United States v. Jarratt, 471 F.2d 226 (9th Cir. 1972), cert. denied, 411 U.S. 969, 93 S.Ct. 2161, 36 L.Ed.2d 691 (1973). See also Williams v. United States, 476 F.2d 970, 972 (3d Cir. 1973), where the court suggested, but did not require, that district courts, when sentencing youth offenders, make express the finding prescribed by the Act.

We believe, however, that the language of the Act and the remedial policies underlying it require the district court, before sentencing a youthful offender as an adult, to determine expressly that the person convicted will not benefit from treatment provided by the Youth Corrections Act and to state its reasons for this determination. E. g. United States v. Kaylor (Appeal of Hopkins), 491 F.2d 1133 (2d Cir. 1974) (en banc); United States v. Riley, 157 U.S.App.D.C. 27, 481 F.2d 1127 (1973); United States v. Coefield, supra. Like other courts that have required an express determination, we are persuaded that it is necessary to insure that the sentencing court, on the basis of evidence presented at trial, and information derived from a presentence report or from a report made after study pursuant to Section 5010(e) of the Act, has deliberately considered whether a youth offender may benefit from the treatment provided for in the Act, and has not abused its discretion in applying the standards imposed by the Act in its disposition. Without an express determination that a youth offender cannot derive benefit from the Act and a statement of reasons supporting that determination, a reviewing court cannot exercise properly its responsibility of determining whether the sentencing court has abused the discretion conferred upon it by the Act. It is evident that “[w]hen an appellate court is asked to determine the propriety of a denial of Youth Act treatment to an apparently eligible offender, and the record contains only a comment on the defendant’s record and a reference to a probation officer’s ‘recommendations’ instead of an explicit supporting rationale for the sentencing judge’s action, meaningful review is impossible.” United States v. Forrest, 157 U.S.App.D.C. 188, 191, 482 F.2d 777, 780 (1973).

The facts of this case demonstrate vividly the necessity for the procedure we have stated. The record contains no reference whatsoever to the Youth Corrections Act either at the time of appellant’s sentencing or at the time that his motion for reduction of sentence was denied. All that the record contains is a description of the unlawful conduct engaged in by appellant and a recommendation by a magistrate two and one-half years after sentencing, that appellant will not derive benefit from the treatment provided by the Youth Corrections Act. Of greater importance is the virtual absence of any facts that would suggest that appellant would not benefit from sentencing under the Act. On the contrary, the evidence, including appellant’s family circumstances, his prior good record, and his successful educational pursuits until the time of his offense, suggests that appellant may be the kind of individual whom Congress intended to assist in rehabilitation when it passed the Youth Corrections Act. We do not, however, consider the merits of the decision to impose an adult sentence at this time.

The judgment of the district court is reversed and the case is remanded with instructions to vacate appellant’s sentence and for further proceedings consistent with this opinion.

      . That statute provides, in relevant part:
      A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

      . Section 5010 provides, in relevant part:
      (a) If the court is of the opinion that the youth offender does not need commitment, it may suspend the imposition or execution of sentence and place the youth offender on probation.
      (b) If the court shall find that a convicted person is a youth offender, and the offense is punishable by imprisonment under applicable provisions of law other than this subsection, the court may, in lieu of the penalty of imprisonment otherwise provided by law, sentence the youth offender to the custody of the Attorney General for treatment and supervision pursuant to this chapter until discharged by the Division as provided in section 5017 (c) of this chapter; or
      (c) If the court shall find that the youth offender may not be able to derive maximum benefit from treatment by the Division prior to the expiration of six years from the date of conviction it may, in lieu of the penalty of imprisonment otherwise provided by law, sentence the youth offender to the custody of the Attorney General for treatment and supervision pursuant to this chapter for any further period that may be authorized by law for the offense or offenses of which he stands convicted or until discharged by the Division as provided in section 5017(d) of this chapter.
      (d) If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c), then the court may sentence the youth offender under any other applicable penalty provision.
      (e) If the court desires additional information as to whether a youth offender will derive benefit from treatment under subsections (b) or (c) it may order that he be committed to the custody of the Attorney General for observation and study at an appropriate classification center or agency. . . .

      . Section 2113 provides, in relevant part:
      (a) Whoever, by force and violence, or by intimidation, takes or attempts to take, ■from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, or any savings and loan association ; or
      Whoever enters or attempts to enter any bank, or any savings and loan association, or any building used in whole or in part as a bank, or as a savings and loan association, with intent to commit in such bank, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny—
      Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.
      * # * * *
      (d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.

      . The district court stated when he denied the motion for reduction of sentence:
      . . . I never had a case that bothered me as much, and I anguished about it before I imposed sentence — I gave him 20 years. If it hadn’t been for his youth and his previous record I would have given him 25. It’s the only case I ever gave less than 25 where a firearm was actually fired. It anguished me — it still does — still worry about it — he wrecked his life, but I wonder what I can do. I just can’t conceive of a young man, a Junior at the University, had no financial problems, had no personal problems, came from a good family ....

      . The district court may wish to order appellant committed to the custody of the Attorney General for observation and study pursuant to Section 5010(e) of the Youth Corrections Act in order to determine whether he will derive benefit from treatment under Section 5010(b) or (c) of the Act.


author: ROSS, Circuit Judge.

text:
    Jane DOE, Appellant, v. John H. POELKER, Mayor of the City of St. Louis, Missouri, and R. Dean Wochner, M.D., Director of the Department of Health and Hospitals and Acting Hospital Commissioner of the City of St. Louis, Missouri, Appellees.
    No. 74-1232.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 17, 1974.
    Decided June 4, 1974.
    Rehearing and Rehearing Eh. Banc Denied June 27, 1974.

      Frank Susman, St. Louis, Mo., for appellant.
    Eugene P. Freeman, St. Louis, Mo., for appellee.
    Before BRIGHT and ROSS, Circuit Judges, and TALBOT SMITH, Senior District Judge.

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

   ROSS, Circuit Judge.

This is an action for a declaratory judgment and a permanent injunction against implementation of the policies, rules, regulations and procedures barring the performance of abortions in the two public hospitals in the City of St. Louis, Missouri. From an order dismissing the complaint for lack of standing and mootness, Doe appeals. For the reasons hereinafter expressed, we reverse.

Jane Doe alleged in her complaint, and verified by way of affidavit, that she was pregnant, was the mother of two children, was in severe financial straits, and was suffering from cervical fibroid tumors and polyps, a retroverted uteris, and trichomycosis. Twice she consulted staff members at Starkloff Memorial Hospital, owned and operated by the City of St. Louis, and was advised that she would require a hysterectomy. They told her to procure an abortion elsewhere and then return to the hospital for the hysterectomy. The reasons proffered by the hospital for the two-operation recommendation was the hospital’s stated policy against performing abortions. Doe thereupon commenced this action against the Mayor of St. Louis and the Director of the Department of Health and Hospitals on her own behalf and on behalf of the entire class of pregnant women residents of the City of St. Louis, Missouri, desiring to utilize the personnel, facilities and services of the general public hospitals within the City of St. Louis for the termination of pregnancies.

After the complaint had been filed and service perfected upon one of the defendants, but before service on the other defendant, Doe procured an abortion from an alternative source. Defendants thereafter moved the court to dismiss Doe’s complaint for lack of standing. In granting defendants’ motion, the court held that, by virtue of the fact that Doe had obtained an abortion, Doe was no longer a member of the class she purported to represent. The court then ordered that Doe could not represent the class of pregnant female residents of St. Louis. Next, the court determined that although she may have had standing to proceed on her own behalf on the date she filed her complaint, her individual case had become moot after she procured an abortion. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) compel a different result on both standing and mootness.

The question of standing in the federal court is to be considered in the framework of Article III which restricts the judicial power to “cases” and “controversies.” Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 151, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). In terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968). The prerequisites of standing are a “logical nexus between the status asserted and the claim sought to be adjudicated,” Flast v. Cohen, supra, 392 U.S. at 102, and the necessary degree of contentiousness, Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969).

These requirements are met on these facts. Plaintiff’s injury and that of her class is her inability to obtain an abortion prior to fetal viability in St. Louis public hospitals free from regulations other than those that advance interests in maternal health. The interest sought to be protected is the constitutionally guaranteed right to an abortion prior to viability. The defendants are attempting to regulate that interest by the challenged rules and policies of the hospital which inhibit and (in effect) proscribe abortions.

This conclusion that Doe has standing is mandated by the resolution of the identical issue in Roe v. Wade, supra, 410 U.S. at 124, and Doe v. Bolton, supra, 410 U.S. at 187. Each of the plaintiffs in those actions was, like the plaintiff here, not shown to have been pregnant at the time of the district court hearing. Likewise, each of the plaintiffs was, at the relevant time, precluded from implementing her previability abortion decision by the challenged statutes and regulations. In Roe, the Supreme Court said:

Viewing Roe’s case as of the time of its filing and thereafter until as late as May [yet prior to the May 22 district court hearing], there can be little dispute that it then presented a case or controversy and that, wholly apart from the class aspects, she, as a pregnant single woman thwarted by the Texas criminal abortion laws, had standing to challenge those statutes. . . . The “logical nexus between the status asserted and the claim sought to be adjudicated,” and the necessary degree of contentiousness are both present.

Id. at 124 (emphasis supplied and citations omitted). The court thereupon found that Roe had standing to undertake the litigation. Id. at 125. A similar result was reached in Doe v. Bolton where it was concluded that Doe’s pregnant state on the date of the commencement of the action gave her standing to maintain the action. Id. at 187. Recently, in Doe v. Israel, 482 F.2d 156, 158 (1st Cir. 1973), cert. denied,-U. S.-, 94 S.Ct. 2406, 40 L.Ed.2d 772, 42 U.S.L.W. 3627 (1974), the First Circuit has said:

In response to questioning defendant essentially suggests only one: that plaintiffs, no longer being pregnant, have no sufficient interest or standing. In the light of Roe, this argument proves too much.
We consider that defendant’s claim of mootness is a will-o’-the-wisp and assumes the very question at issue. If a plaintiff has a right to terminate her pregnancy — which is the legal question before us — the sooner she succeeds in doing so, the better. We have in mind the trimester trilogy, on which defendant relies in another connection, and its effect on viability and the pregnant plaintiff’s health. It seems not only illogical but, to use a polite word, harsh, to argue that in order to establish her right to an abortion a woman must decline to have it. (Citation omitted.)

We conclude here that Doe has standing to challenge the hospital policy. Moreover, since she has adequate standing to proceed in her own behalf, on the authority of Doe v. Bolton, supra, 410 U.S. at 188, Doe and her class can be recognized.

Separate and distinct from standing is the doctrine of mootness. That question is also a product of the Article III requirement of a case or controversy. North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971). The usual rule in federal cases is that an actual controversy must exist at all stages of appellate or certiorari review, and not simply at the date the action is initiated. SEC v. Medical Committee for Human Rights, 404 U.S. 403, 406, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972); Golden v. Zwickler, supra, 394 U.S. at 108; United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 36 (1950). However, a case presenting a question that is “capable of repetition, yet evading review,” is nevertheless amenable to federal adjudication even though it might otherwise be considered moot. Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911). As is clear from the Supreme Court’s treatment in Roe and Doe, pregnancy is one of the exceptional situations exempted from the usual rule.

In Roe, the Court said:

But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be “capable of repetition, yet evading review.”

Id. at 125 (citations omitted). The Court accepted as true Roe’s pregnant state as of the inception of her suit. The Court did not find, however, that Roe was likewise pregnant at the time of the trial court’s hearing on May 22, 1970. Yet, based upon the foregoing reasoning, the Court held that she presented a justiciable controversy and “the termination of her 1970 pregnancy ha[d] not rendered her case moot.” Id. at 125. Likewise in Doe v. Bolton, supra, 410 U.S. at 187, the Court accepted the plaintiff’s pregnant state on the date of the filing of the complaint and thereupon held, on the basis of the decision in Roe, that the interim termination of her pregnancy had not rendered the case moot. To interpret the Supreme Court’s discussion of mootness, as the district court did here, to require pregnancy to be established at the time of trial, would be to permit frustration of the logic announced by the Supreme Court. Through dilatory tactics opposing counsel could effectively preclude review of the challenge until abortion or birth terminated the pregnancy. Crowded dockets could cause the same unfortunate result. Accordingly, we find that the plaintiff Jane Doe in this case presents a justiciable controversy and the termination of her pregnancy sometime after the filing of the complaint, but prior to trial, does not render her case moot.

For the reasons hereinbefore expressed, we reverse and remand to the district court for further proceedings consistent with the views expressed in this opinion and in our opinion in Nyberg v. City of Virginia, 495 F.2d 1342 (8th Cir. 1974).

      . That policy is expressed in the defendants’ joint answer:
      10. Abortion, for reasons other than to save the mother from grave physiological injury or death, is against and contrary to the laws and public policy of the State and City.
      12. [A]bortion, other than to protect the mother from grave physiological injury or death, is a medical procedure which lawfully can and has been reasonably excluded from such services given by the City’s hospitals.

      . This fact was verified to the court by Doe’s counsel. Throughout the litigation her counsel has sought to protect Doe’s true identity in order to avoid harassment. However, counsel has assured the court that Doe remained ready and able for deposition or other discovery procedures. Counsel’s assurances and the fact that Doe herself, under her pseudonym signature, has filed an affidavit affirming the veracity of the relevant facts, permit us to accept as true, her existence and her pregnant state at the commencement of this action. See Roe v. Wade, 410 U.S. 113, 124, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v. Bolton, 410 U.S. 179, 187, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973).

      . This motion was brought six months after the filing of the complaint and presumably upon defendants’ first notice that Doe had obtained an abortion.