author: MULLIGAN, Circuit Judge: OAKES, Circuit Judge

text:
    Elizabeth HOLTZMAN, Individually and in her capacity as a member of the United States House of Representatives, et al., Plaintiffs-Appellees, v. James R. SCHLESINGER, Individually and as Secretary of Defense, et al., Defendants-Appellants.
    No. 1132, Docket 73-2094.
    United States Court of Appeals, Second Circuit.
    Argued Aug. 8, 1973.
    Decided Aug. 8,1973.
    See also, 94 S.Ct. 11.
    Burt Neuborne, New York City (Leon Friedman, American Civil Liberties Union, New York City, Norman Siegel and Paul G. Chevigny, New York Civil Liberties Union, New York City, of counsel), for plaintiffs-appellees.
    James Dunlop Porter, Jr., Asst. U. S. Atty., Chief, Civil Div., Brooklyn, N. Y. (Robert A. Morse, U. S. Atty., E.D.N. Y.), for defendants-appellants.
    Erie M. Lieberman, New York City (Michael Krinsky, New York City, of counsel), for Parren J. Mitchell, and others, as amici curiae.

      Joseph F. McDonald, New York City, for The Lawyers Committee to End the War and Certain Individuals as amici curiae.
    Before MULLIGAN, OAKES and TIMBERS, Circuit Judges.
   MULLIGAN, Circuit Judge:

This is an appeal from a judgment of the United States District Court, Eastern District of New York, Hon. Orrin G. Judd, District Judge, dated July 25, 1973, 361 F.Supp. 553, granting plaintiffs’ motion for summary judgment and providing both declaratory and injunc-tive relief. The judgment declared that “there is no existing Congressional authority to order military forces into combat in Cambodia or to release bombs over Cambodia, and that military activities in Cambodia by American armed forces are unauthorized and unlawful ..” The order further enjoined and restrained the named defendants and their officers, agents, servants, employees and attorneys “from participating in any way in military activities in or over Cambodia or releasing any bombs which may fall in Cambodia.” The effective date of the injunction was postponed until 4:00 o’clock on July 27, 1973 to provide the defendants with an opportunity to apply to this court for a stay pending appeal. A panel of this court heard oral argument on the stay on the morning of July 27, 1973 and unanimously granted defendants’ motion for a stay, setting the time for argument of the appeal on August 13, 1973 which was the first day of sitting of the next panel of this court. The parties were given leave to move for further expedition of the appeal. Plaintiffs then made application to Mr. Justice Marshall of the Supreme Court, Circuit Justice for the Second Circuit, for a vacatur of the stay. Mr. Justice Marshall denied the application to vacate the stay on August 1, 1973 writing an opinion in which he noted that either side could further advance the date of the argument before this court, - U.S. -, 94 S.Ct. 1, 38 L.Ed.2d 18. On the motion of plaintiffs, not opposed by defendants, this court on August 1st further accelerated argument of the appeal to August 8, 1973. On August 2, 1973, plaintiffs made application to Mr. Justice Douglas to vacate the stay and on August 4, 1973 he issued an opinion and order vacating the stay entered by this court. -U.S. -, 94 S.Ct. 8, 38 L.Ed.2d 28. Later in the afternoon of August 4, 1973, Mr. Justice Marshall reinstated the stay announcing that he had polled the other members of the Supreme Court and that they were unanimous in overruling the order of Mr. Justice Douglas. -- U.S. -, 94 S.Ct. 'll, 38 L.Ed.2d 33.- On August 3, 1973, after a hearing before Mr. Justice Douglas, plaintiffs petitioned this court for an en banc hearing of this appeal. By order dated August 6th this motion was denied by the unanimous vote of the five active judges of this court who could be readily contacted. In view of the admonition of Mr. Justice Marshall that it is in the public interest that the issues herein be resolved as expeditiously as possible, the convening of this court en banc could only have delayed a hearing on the merits.

The argument of this appeal was heard on August 8th and to further speed any further appellate review this court filed its judgment in the late afternoon of that day, reversing the judgment below and dismissing the complaint. Judge Oakes dissented. We announced that opinions would promptly follow so that if the Supreme Court did entertain an appeal it might have the benefit of the views of the panel. Even though the exigencies of time preclude the articulation of the majority view as elaborately or completely as might otherwise be appropriate in a case of this significance, it nonetheless represents our considered and deliberate opinion.

I

At the outset, as the parties agreed below and on the argument on appeal, we should emphasize that we are not deciding the wisdom, the propriety or the morality of the war in Indo-China and particularly the on-going bombing in Cambodia. This is the responsibility of the Executive and the Legislative branches of the government. The role of the Judiciary is to determine the legality of the challenged action and the threshold question is whether under the “political question” doctrine we should decline even to do that. Ever since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803) the federal courts have declined to judge some actions of the Executive and some interaction between the Executive and Legislative branches where it is deemed inappropriate that the judiciary intrude. It is not possible or even necessary to define the metes and bounds of that doctrine here. The most authoritative discussion of the subject is found in Mr. Justice Brennan’s opinion in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed. 2d 663 (1962) which elaborated criteria that have since guided this court in determining whether a question involving the separation of powers is justiciable or is a political question beyond our purview. In Orlando v. Laird, 443 F.2d 1039 (2d Cir.), cert, denied, 404 U.S. 869, 92 S.Ct. 94, 30 L.Ed.2d 113 (1971), this court held that the question of whether or not Congress was required to take some action to authorize the Indo-China war was justiciable under Baker v. Carr, supra, since there was present a judicially discoverable and manageable issue. See Coleman v. Miller, 307 U.S. 433, 454-455, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). On the basis of evidence produced at the hearings in the district court, this court found Congressional authorization in support of the military operations in Southeast Asia from the beginning, relying on the Tonkin Gulf Resolution of August 10, 1964, plus continuing appropriation bills providing billions of dollars in support of military operations as well as the extension of the Military Selective Service Act. We were careful to note:

Beyond determining that there has been some mutual participation between Congress and the President, which unquestionably exists here, with action by the Congress sufficient to authorize or ratify the military activity at issue, it is clear that the constitutional propriety of the means by which Congress has chosen to ratify and approve the protracted military operations in Southeast Asia is a political question. Id., 443 F.2d at 1043 (emphasis in original).

It is significant that the court noted that the Tonkin Gulf Resolution of August 10, 1964 had since been repealed on December 31, 1970.

In Da Costa v. Laird, 448 F.2d 1368 (2d Cir. 1971), cert, denied, 405 U.S. 979, 92 S.Ct. 1193, 31 L.Ed.2d 255 (1972), this court specifically rejected the contention that the repeal by Congress of the Tonkin Gulf Resolution removed the Congressional authorization previously found sufficient in Orlando. We noted:

As the constitutional propriety of the means by which the Executive and the Legislative branches engaged in mutual participation in prosecuting the military operations in Southeast Asia, is, as we held in Orlando, a political question, so the constitutional propriety of the method and means by which they mutually participate in winding down the conflict and in disengaging the nation from it, is also a political question and outside of the power and competency of the judiciary. Id. at 1370.

The most recent holding of this court now pertinent is Da Costa v. Laird, 471 F.2d 1146 (1973) where an inductee urged that the President’s unilateral decision to mine the harbors of North Vietnam and to bomb targets in that country constituted an escalation of the war, which was illegal in the absence of additional Congressional authorization. Judge Kaufman found that this was a political question which was non-justiciable, recognizing that the court was incapable of assessing the facts. He stated in part:

Judges, deficient in military knowledge, lacking vital information upon which to assess the nature of battlefield decisions, and sitting thousands of miles from the field of action, cannot reasonably or appropriately determine whether a specific military operation constitutes an “escalation” of the war or is merely a new tactical approach within a continuing strategic plan. What if, for example, the war “de-escalates” so that it is waged as it was prior to the mining of North Vietnam’s harbors, and then “escalates” again? Are the courts required to oversee the conduct of the war on a daily basis, away from the scene of action? In this instance, it was the President’s view that the mining of North Vietnam’s harbors was necessary to preserve the lives of American soliders (sic) in South Vietnam and to bring the war to a close. History will tell whether or not that assessment was correct, but without the benefit of such extended hindsight we are powerless to know.

We fail to see how the present challenge involving the bombing in Cambodia is in any significant manner distinguishable from the situation discussed by Judge Kaufman in Da Costa v. Laird. Judge Judd found that the continuing bombing of Cambodia, after the removal of American forces and prisoners of war from Vietnam, represents “a basic change in the situation: which must be considered in determining the duration of prior Congressional authorization.” He further found such action a tactical decision not traditionally confided to the Commander-in-Chief. These are precisely the questions of fact involving military and diplomatic expertise not vested in the judiciary, which make the issue political and thus beyond the competence of that court or this court to determine. We are not privy to the information supplied to the Executive by his professional military and diplomatic advisers and even if we were, we are hardly competent to evaluate it. If we were incompetent to judge the significance of the mining and bombing of North Vietnam’s harbors and territories, we fail to see our competence to determine that the bombing of Cambodia is a “basic change” in the situation and that it is not a “tactical decision” within the competence of the President. It is true that we have repatriated American troops and have returned American ground forces in Vietnam but we have also negotiated a cease fire and have entered into the Paris Accords which mandated a cease fire in Cambodia and Laos. The President has announced that the bombing of Cambodia will terminate on August 15,1973 and Secretary of State Rogers has submitted an affidavit to this court 2providing the justification for our military presence and action until that time. The situation fluctuates daily and we cannot ascertain at any fixed time either the military or diplomatic status. We are in no position to determine whether the Cambodian insurgents are patriots or whether in fact they are inspired and manned by North Vietnam Communists. While we as men may well agonize and bewail the horror of this or any war, the sharing of Presidential and Congressional responsibility particularly at this juncture is a bluntly political and not a judicial question.

We think the comments of Judge Wy-zanski writing for a unanimous Court of Appeals panel in the District of Columbia are particularly apt here:

Whether President Nixon did so proceed [to end the war] is a question which at this stage in history a court is incompetent to answer. A court cannot procure the relevant evidence: some is in the hands of foreign governments, some is privileged. Even if the necessary facts were to be laid before it, a court would not substitute its judgment for that of the President, who has an unusually wide measure of discretion in this area, and who should not be judicially condemned except in a case of clear abuse amounting to bad faith. Otherwise a court would be ignoring the delicacies of diplomatic negotiation, the inevitable bargaining for the best solution of an international conflict, and the scope which in foreign affairs must be allowed to the President if this country is to play a responsible role in the council of the nations. Mitchell v. Laird, 476 F.2d 533, 538 (1973).

The court below and our dissenting Brother assume that since American ground forces and prisoners have been removed and accounted for, Congressional authorization has ceased as determined by virtue of the so-called Mansfield Amendment, P.L. 92-156, 85 Stat. 430, § 601. The fallacy of this position is that we have no way of knowing whether the Cambodian bombing furthers or hinders the goals of the Mansfield Amendment. That is precisely the holding of Da Costa v. Laird, supra, 471 F.2d at 1157. Moreover, although § 601(a)(1) of the Amendment urges the President to remove all military forces contingent upon release of American prisoners, it also in § 601(a)(2) urges him to negotiate for an immediate cease fire by all parties in the hostilities in Indo-China. (Emphasis added). In our view, the return and repatriation of American troops only represents the beginning and not the end of the inquiry as to whether such a basic change has occurred that the Executive at this stage is suddenly bereft of power and authority. That inquiry involves diplomatic and military intelligence which is totally absent in the record before us, and its digestion in any event is beyond judicial management. The strictures of the political question doctrine cannot be avoided by resort to the law of agency as the court did below, finding the Congress the principal and the President an agent or servant. Judicial ipse dixits cannot provide any proper basis particularly for the injunctive relief granted here which is unprecedented in American Jurisprudence.

II

Since the argument that continuing Congressional approval was necessary, was predicated upon a determination that the Cambodian bombing constituted a basic change in the war not within the tactical discretion of the President and since that is a determination we have found to be a political question, we have not found it necessary to dwell at length upon Congressional participation. We see no need to address ourselves to the Fulbright provisos discussed in Judge Oakes’ opinion since they predate the Paris Accord which places the military stance in Cambodia in such focus that we cannot judge their present efficacy or applicability. In any event we agree with his conclusion that they do not affect American forces which is the issue here. We cannot resist however commenting that the most recent expression of Congressional approval by appropriation, the Joint Resolution Continuing Appropriations for Fiscal 1974 (P.L. 93-52), enacted into law July 1, 1973, contains the following provision:

Sec. 108. Notwithstanding any other provision of law, on or after August 15, 1973, no funds herein or heretofore appropriated may be obligated or expended to finance directly or indirectly combat activities by United States military forces in or over or from off the shores of North Vietnam, South Vietnam, Laos or Cambodia.

Assuming arguendo that the military and diplomatic issues were manageable and that we were obliged to find some participation by Congress, we cannot see how this provision does not support the proposition that the Congress has approved the Cambodian bombing. The statute is facially clear but its applicability is contested by plaintiffs on several grounds which were essentially adopted by the court below. The argu ment is made that the Congress didn’t really mean what it said because it was coerced by the President who had vetoed Congressional Bills which would have immediately cut off Cambodian funds. Not being able to muster sufficient strength to overcome the veto, the argument runs, the Congress was forced willy nilly to enact the appropriation legislation. Resort is made to the floor debate which it is argued bolsters the view that individual legislators expressed personal disapproval of the bombing and did not interpret the appropriation as an approval to bomb but simply a recognition that it gave the President the power to bomb. It is further urged that since the Constitution entrusts the power to declare war to a majority of the Congress, the veto exercised makes it possible for the President to thwart the will of Congress by holding one-third plus one of the members of either House. We find none of these arguments persuasive.

1) Since the statute is not ambiguous, resort to legislative history is unjustified. See Mr. Justice Jackson’s opinion in Schwegmann v. Calvert Distillers Corp., 341 U.S. 384, 395-396, 71 S.Ct. 745, 95 L.Ed. 1035 (1951).

2) Resort to legislative materials is not permissible where they are contradictory or ambiguous. NLRB v. Plasterers’ Local, etc., 79, 404 U.S. 116, 129 n. 24, 92 S.Ct. 360, 30 L.Ed.2d 312 (1971). A fair reading of the Congressional Record for June 29, 1973 establishes this proposition. Members of Congress Drinan and the plaintiff Holtzman here for example both voted against the measure because it would authorize the bombing until August 15, 1973.

While the court below relied on the colloquy between Senators Eagleton and Fulbright, it inadvertently omitted the following:

Mr. Eagleton. In the light of the legislative history, meaning the statement of former Secretary of Defense Richardson that we will continue the bombing unless the funds are cut off, will we with the adoption of this resolution permit the bombing of Cambodia for the next 45 days? This is the question I pose to the Senator from Arkansas.
Mr. Fulbright.' Until August 15.
Mr. Eagleton. Would it permit the bombing of Laos ?
Mr. Fulbright. It would not prevent it.
119 Cong.Rec. S 12562 (daily ed. June 29,1973) [Emphasis added].

In sum, even if the legislative history were considered it is at best ambiguous and does not clearly support the theory that the Congress did not mean what it said.

• 3) We cannot agree that the Congress was “coerced” by the President’s veto. There was unquestionably a Congressional impasse resulting from the desire of a majority of Congress to stop bombing immediately and the desire of the President that his discretion be unfettered by an arbitrarily selected date. Instead of an acute constitutional confrontation, as Senator Javits noted an “agreement” was reached. (119 Cong. Rec. S 12561 (daily ed. June 29, 1973)). This version of the situation is also the conclusion of Judge Tauro in his opinion of August 8, 1973 (Drinan v. Nixon, 364 F.Supp. 854 (D.Mass.)) which exhaustively studies the record.

4) While the Constitution vests the war declaring authority in the Congress, the Founding Fathers also conferred the veto power upon the President. (Art. I, § 7, cl. 2). The suggestion that the veto power is impotent with respect to an authority vested solely in Congress by the Constitution is unsupported by any citation of authority and is hardly persuasive. It of course assumes here that the Cambodian bombing constitutes a new war requiring a new declaration and that it is not part of the extrication of a long suffering nation from an Indochina war lasting for several years. This again in our view is the nucleus of the issue and we have no way of resolving that question particularly here on a motion for summary judgment.

m

We finally note, although again not necessary in view of our holding in Part I, our disagreement with our colleague Judge Oakes that any of the parties plaintiff have standing. We have held that mere taxpayer status does not confer standing to litigate the constitutionality of the Indo-China war. Pietsch v. President of the United States, 434 F.2d 861 (2d Cir. 1970), cert, denied, 403 U.S. 920, 91 S.Ct. 2236, 29 L.Ed.2d 698 (1971); see Velvel v. Nixon, 415 F.2d 236 (10th Cir. 1969), cert, denied, 396 U.S. 1042, 90 S.Ct. 684, 24 L.Ed.2d 686 (1970). See also Mottola v. Nixon, 464 F.2d 178 (9th Cir. 1972). In Berk v. Laird, 429 F.2d 302, 306 (2d Cir. 1970), we held that a serviceman does have standing if he is under orders to fight in the combat to which he objects. Here none of the servicemen plaintiffs are presently under orders to fight in Cambodia. They have been relieved of any such military obligation and indeed one has been separated from the service. Their present status in our view moots the appeal as to them and we cannot agree that their status is preserved because of the “cognizable danger of recurrent violation” doctrine of United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). In view of the termination of the air strikes on August 15, 1973 and their present status, we can perceive of nothing more than the merest possibility that such eventuality will occur. United States v. W. T. Grant Co., supra, requires more than this. See Atherton Mills v. Johnston, 259 U.S. 13, 42 S.Ct. 422, 66 L.Ed. 814 (1922). Neither do we see any adequate support for the standing of Representative Holtzman. She has not been denied any right to vote on Cambodia by any action of the defendants. She has fully participated in the Congressional debates which have transpired since her election to the Congress. The fact that her vote was ineffective was due to the contrary votes of her colleagues and not the defendants herein. The claim that the establishment of illegality here would be relevant in possible impeachment proceedings against the President would in effect be asking the judiciary for an advisory opinion which is precisely and historically what the “case and controversy” conditions set forth in Article III, Section 2 of the Constitution forbid. See Correspondence of the Justices (1793), reprinted in part in H. Hart & H. Wechsler, The Federal Courts and the Federal System 64-66 (2d ed. P. Bator et al. 1973). The judgment sought could hardly have any subsequent binding effect on those who have the responsibility for such a measure. Its effect on the named defendants would be clearly academic and moot since they have no interest in controverting it.

The judgment is reversed and the case is remanded with instructions to dismiss the complaint. The mandate shall issue forthwith.

OAKES, Circuit Judge

(dissenting):

I believe there is standing for Congresswoman Holtzman under Baker v. Carr, 369 U.S. 186, 207-208, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) and Coleman v. Miller, 307 U.S. 433, 437-446, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). I believe there is standing for the airmen-appel-lees under Berk v. Laird, 429 F.2d 302 (2d Cir. 1970) and Massachusetts v. Laird, 451 F.2d 26, 29 (1st Cir. 1971) which has not been mooted by their return to the United States. United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953).

I believe there is justiciability under Da Costa v. Laird, 471 F.2d 1146, 1156 (2d Cir. 1973), (Da Costa III) where the question “whether a radical change in the character of war operations . might be sufficiently measurable judicially to warrant a court’s consideration . . . . ” was expressly reserved. There is here “a manageable standard” under Da Costa III and Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952), since there has been such a “radical change in the character of war operations.” The Defense Department is continuing to bomb in Cambodia despite the cease-fire in Vietnam and despite the return of our prisoners of war from North Vietnam. The justiciable question then is whether there is any Constitutional authorization for the employment of United States armed forces over Cambodia, now that the war in Vietnam has come to an end. There is no question under the law of this Circuit, Orlando v. Laird, 443 F.2d 1039, 1042 (2d Cir.) cert, denied, 404 U.S. 869, 92 S.Ct. 94, 30 L.Ed.2d 113 (1971), that the Executive lacks unilateral power to commit American forces to combat absent a “belligerent attack” or “a grave emergency.” See Mitchell v. Laird, 476 F.2d 533 (D.C.Cir. 1973).

Has Congress ratified or authorized the bombing in Cambodia by appropriations acts or otherwise? Congress can confer power on the Executive by way of an appropriations act. Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 116, 67 S.Ct. 1129, 91 L.Ed. 1375 (1947) (creation of new agency by Executive Order ratified by appropriation). And this Circuit has expressly held that congressional authorization for the war in Vietnam may be found in appropriations acts. Da Costa v. Laird, 448 F.2d 1368, 1370 (2d Cir. 1971), cert, denied, 405 U.S. 979, 92 S.Ct. 1193, 31 L.Ed.2d 255 (1972) (Da Costa II). Orlando v. Laird, supra, 443 F.2d at 1042.

I do not, moreover, agree with appel-lees’ argument that the Fulbright “proviso” adopted in all of the recent appropriations bills and limiting the use of Defense Department funds to support “Vietnamese or other free world forces in actions designed to provide military support and assistance to the government of Cambodia or Laos,” limited all prior authorizations to expenditures for United States forces in Cambodia only in aid in the release of Americans held as prisoners of war. E. g., Armed Forces Military Procurement Act of 1971, Pub.L.No.91-441, § 502(a)(1), 84 Stat. 905 (1970). The language of the appropriations acts seems to me to differentiate between “other free world forces” and “Armed Forces of the United States,” e. g., id. § 502(a)(2). The legislative history indicates also that there is a difference between “other free world forces” and “United States armed forces.” Even though the Fulbright proviso did not provide any affirmative grant of authority to the President to use “Armed Forces of the United States” in Cambodia, 119 Cong.Rec. S 7385-87 (daily ed. Apr. 13, 1973), Senator Fulbright himself considered the proviso operative only in respect to “South Vietnamese or other foreign military operations in support of the Cambodian or Laotian Governments.” Id. at S. 7385 (emphasis supplied).

Thus an argument could be made that congressional authorization of appropriations with knowledge of our “presence” in Cambodia was ratification. But for authorization on the part of Congress by way of an appropriation to be effective, the congressional action must be based on a knowledge of the facts. Greene v. McElroy, 360 U.S. 474, 506-507, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959) (appropriation to Defense Department for security program did not ratify procedure denying right of an individual to confront witnesses). I am aware of only one instance in which it has previously been argued that a war was illegal as a result of Congress being misinformed as to the underlying facts surrounding American participation in that war. While the argument was unique and unsuccessful to boot, however, time has vindicated it, I believe. Furthermore, it was advanced by one whose views are worth consideration, even if they were expressed in “dissent,” so to speak. I refer of course to Abraham Lincoln and his argument as a lone Congressman on January 12, 1848, in opposition to our “incursion” into Mexico and what later was called the Mexican War. See Cong. Globe, 30th Cong. 1st Sess. 93 et seq. (Appendix 1848).

And here, incredibly enough, it appears that neither the American people nor the Congress, at the time it was voting appropriations in aid of the war in Vietnam, were given the facts pertaining to our bombing in Cambodia. Recent disclosures have indicated that Air Force B-52 bombers were secretly attacking Cambodia in 1969, 1970 and even later while the United States was publicly proclaiming respect for Cambodian neutrality. See N.Y.Times July 17, 1973, at 1; July 18, 1973, at 1, July 22, 1973, Sec. E, at 3; July 24, 1973, at 1; July 25, 1973, at 1; July 29, 1973, at 1; Aug. 8, 1973, at 6; Aug. 9, 1973, at 7.

The government argues that these secret bombings occurred in 1969 and 1970, and ended when our activities in Cambodia became open subsequently. But the Congress whose ratification by way of appropriations acts is contended for here did not become aware of thes*1 covert bombings until July of 1973. And meanwhile the Congress had declared in the so-called Mansfield Amendment that it was “the policy of the United States to terminate at the earliest practicable date all military operations of the United States in Indochina . ” Appropriations Authorization-Miltary Procurement Act of 1972, Pub.L.No.92-156, § 601, 85 Stat. 423 (92nd Cong., 1st Sess. 1971).

The combination of concealment of the facts from Congress together with the enactment of a policy of “earliest practicable” withdrawal do not amount in my mind to an appropriations carte blanche to the military to carry on bombing in Cambodia after the cease-fire, withdrawal of our troops from Vietnam, and return of our prisoners of war from North Vietnam.

We come then to the effect of the legislation, following upon a presidential veto of an immediate prohibition against the use of funds to bomb in Cambodia, adopted as a compromise this July 1st: the Continuing Appropriations Act for Fiscal Year 1974, Pub.L.No.93-52, 93rd Cong. 2nd Sess. (July 1, 1973) which expressly provided that “. . . on or after August 15, 1973, no funds herein or heretofore appropriated may be obligated or expended to finance directly or indirectly combat activities by United States military forces in or over or from off the shores of North Vietnam, South Vietnam, Laos or Cambodia.” § 108. In colloquy between Senators Eagleton and Fulbright, inadvertently omitted in the briefs of appellees and the opinion of the lower court, the former inquired whether “the adoption of this resolution [would] permit the bombing of Cambodia” and Senator Fulbright replied, “Until August 15”. 119 Cong.Rec. S 12562 (daily ed. June 29, 1973). Again, in the same colloquy Senator Fulbright, conceding “Presidential power”, said that “The President has the power to do a lot of things of which I do not approve,” after being asked by Senator Eagleton whether under the resolution the President’s “power to bomb in Indochina - . will now be sanctioned by our action.” Id. In neither case, however, is there recognition of legality or past authorization. Senator Fulbright had previously stated, as Judge Judd recognized, that “The acceptance of an August 15 cut off date should in no way be interpreted as recognition by the committee of the President’s authority to engage U.S. forces in hostilities until that date. The view of most members of the committee has been and continues to be that the President does not have such authority in the absence of specific congressional approval.” 119 Cong.Rec. S 12560 (daily ed. June 29, 1973).

It can be argued that Congress could, if it had so desired, cut off the funds for bombing Cambodia immediately by overriding the Presidential veto. This was indeed championed by those voting against the ultimate compromise Resolution. But it does not follow that those who voted in favor of the Resolution were thereby putting the Congressional stamp of approval on the bombing continuation. While the Resolution constituted a recognition that Executive power was being exercised, it did not constitute a concession that such exercise was rightful, lawful or constitutional.

It may be that those voting for the Resolution thought that in some way previous appropriations acts or the omission expressly to prohibit a continuation of bombing after the cease-fire and return of our prisoners of war amounted to an authorization, which could only be limited by affirmative congressional action. But as I have previously suggested I cannot find any express congressional authorization for such a continuation of the Cambodian bombing, nor do I think that authorization can be implied from prior appropriations acts. This being true, affirmative action on the part of Congress was not necessary as a matter of constitutional law. An agreement by the Executive to some cut off date was essential, however, because the legality of bombing continuation might not be tested or testable for months to come, by the very nature of the judicial process. Therefore, Congress as I see it, took the only practical way out. It acknowledged the reality of the Executive’s exercise of power even while it disputed the Executive’s authority for that exercise. It agreed to a final cut-off date as the best practical result but never conceded the legality or constitutionality of interim exercise.

Thus the Resolution of July 1, 1973 cannot be the basis for legalization of otherwise unlawful Executive action. We are talking here about the separate branches of government, and in doing so we must distinguish between the exercise of power on the one hand and authorization for such exercise on the other. That the Executive Branch had the power to bomb in Cambodia, there can be no doubt; it did so, and indeed is continuing to do so. Whether it had the constitutional authority for its action is another Question.

If we return to fundamentals, as I think we must in the case of any conflict of view between the other two Branches of Government, it will be recalled that the Founding Fathers deliberately eschewed the example of the British Monarchy in which was lodged the authority to declare war and to raise and regulate fleets and armies. See The Federalist No. 69 (A. Hamilton). Rather, these powers were deliberately given to the Legislative Branch of the new American Republic in Article I, section 8 of the Constitution. See 7 Works of Alexander Hamilton 81 (J. Hamilton ed. 1851), cited in Note, Congress, The President, and The Power to Commit Forces to Combat, 81 Harv.L.Rev. 1771, 1773, n. 14 (1968). I fail to see, and the Government in its able presentation has failed to point out, where the Congress ever authorized the continuation of bombing in Cambodia after the cease-fire in Vietnam, the withdrawal of our forces there, and the return of our prisoners of war to our shores. Accordingly, I must dissent, and although on a somewhat different analysis would affirm the judgment below.

      . Affidavit of William P. Rogers Washington,
      District of Columbia, ss.
      William P. Rogers, being duly sworn, deposes and says as follows:
      1. In my capacity as Secretary of State of the United States of America, I have knowledge of and responsibility for the conduct of the foreign relations of the United States, including relations with the Government of Cambodia.
      2. It is my understanding that on July 25, 1973, the United States District Court for the Eastern District of New York in the case of Holtzman et al v. Schlesinger et al, ordered the cessation of further military activities by United States armed forces in Cambodia and that this order was stayed by the United States Court of Appeals for the Second Circuit. It is my judgment, that if that stay were not continued, the District Court’s order would cause irreparable harm to the United States, to the conduct of our foreign relations, and to the protection of United States nationals in Cambodia.
      3. In the conduct of United States relations with Cambodia, the American Ambassador in Phnom Penh has communicated to the Cambodian Government the fact of the enactment on July 1, 1973 of Public Law 93-50 (87 Stat. 99) and Public Law 93-52 (87 Stat. 130). Our Ambassador has further informed the Cambodian Government that the United States Government interprets the aforesaid public laws as requiring a cessation of all combat activities in Cambodia by the armed forces of the United States on and after August 15, 1973.
      4. In consequence of the enactment of the aforesaid public laws, intensive planning has been undertaken within the United States Government and between representatives of the American and Cambodian Governments. As a result, plans have been developed which include:
      (i) emergency increases in the levels of the Cambodian armed forces;
      (ii) accelerated deliveries and distribution during the first two weeks in August of military equipment, especially aircraft and related spare parts, pursuant to the United States Military Assistance Program;
      (iii) accelerated deliveries and distribution during this same period of food stuffs, medical supplies and other items for humanitarian relief of the Cambodian population.
      . (iv) redeployment of Cambodian armed forces, and in some cases civilians whom those forces are protecting, from exposed positions to positions where they can defend themselves and be resupplied in the absence of United States combat air support on and after August 15, 1973.
      5. All of the above-described plans are for the purpose of improving the Government of Cambodia’s self-defense capability through assistance programs approved by the Congress and the President. All of these plans have been premised upon an assumption of continued United States combat air support for the Cambodian armed forces through August 14, 1973. On the basis of the information available to me, it is my judgment that the absence of such air support prior to that date would permit hostile military forces to disrupt those plans and would expose United States military and civilian personnel who are responsible for their implementation, to grave risk of personal injury or death.
      6. Moreover, in view of this close cooperation and planning between the United States and the Cambodian Government, and considerable reliance placed by the Cambodian Government on this agreed timing, any premature and unilateral cessation of needed air support by the United States would be seen by the Government of Cambodia and by many other governments as a breach of faith by the United States and would seriously undermine the credibility of the United States and impair the conduct of our foreign relations.
      7. Quite apart from the question of timing, the order of the District Court, in enjoining “military activities” might well be construed more broadly than the prohibitions against “combat activities” contained in the above-mentioned public laws and thereby could be deemed to preclude such activities as the use of United States armed forces to evacuate United States diplomatic personnel and other United States nationals from Cambodia should this be required at any future time, even after United States combat activities in Cambodia have ceased.
      8. The specific consequences as described herein of a failure to stay the District Court’s order would constitute irreparable harm to the conduct of the foreign relations of the United States by imperiling the ability of the Government of Cambodia to prepare for assuming full responsibility for its defense, by imperiling the safety of United States nationals in Cambodia, and by undermining the credibility of the United States. In a broader sense, the efforts of the United States to achieve a stable peace in Indochina would be undermined and the ceasefire agreements presently in effect in Yiet-Nam and Laos would be gravely jeopardized.
      /s/ William P. Rogers

      . The' resort of the court below to the Second Restatement of Agency § 38, promulgated by the American Law Institute, is indeed inapposite. Aside from its introductory Scope Note (p. 2) which disclaims the Restatement’s applicability to public officers, the denomination of the Congress as the Principal and the President as the Agent in the conduct of hostilities is overly simplistic. It ignores the President’s role as Commander-in-Chief, and his primacy in foreign relations, particularly in achieving the peace. See Wallace, The War Making Powers: A Constitutional Flaw? 57 Cornell L.Rev. 719, 744 (1972). It is perhaps significant that the Constitutional Convention explicitly rejected a proposal that the Constitution provide the Congress with the power to declare peace as well as war, and carefully noted that the conduct of war “was an Executive function.” 2 M. Far-rand, Records of the Federal Convention of 1787, at 313, 319 & n.* (rev. ed. 1937).

      . To date no other federal court has attempted to halt American involvement in hostilities in Southeast Asia. Our own court as well as the First Circuit has concluded that the war-implementing legislation passed by Congress was sufficient authorization. Da Costa v. Laird, 448 F.2d 1368 (2d Cir. 1971), cert, denied, 405 U.S. 979, 92 S.Ct. 1193, 31 L.Ed.2d 255 (1972) ; Orlando v. Laird, 443 F.2d 1039 (2d Cir.), cert, denied, 404 U.S. 869, 92 S.Ct. 94, 30 L.Ed.2d 113 (1971), aff’g 317 F.Supp. 1013 (E.D.N.Y.1970) and Berk v. Laird, 317 F. Supp. 715 (E.D.N.Y.1970) (Judd, J.) ; Massachusetts v. Laird, 451 F.2d 26 (1st Cir.), aff’g 327 F.Supp. 378 (D.Mass.1971). Numerous courts have dismissed suits challenging American involvement on the ground that a “political question” was involved. Mitchell v. Laird, 476 F.2d 533 (D.C.Cir. 1973) ; Da Costa v. Laird, 471 F.2d 1146 (2d Cir. 1973) ; Mora v. McNamara, 128 U.S.App.D.C. 297, 387 F.2d 862, cert, denied, 389 U.S. 934, 88 S.Ct. 282, 19 L.Ed.2d 287 (1967) ; Luftig v. McNamara, 126 U.S. App.D.C. 4, 373 F.2d 664, cert, denied, 387 U.S. 945, 87 S.Ct. 2078, 18 L.Ed.2d 1332 (1967) (cf. Mitchell v. Laird, supra) ; Dri-nan v. Nixon, 364 F.Supp. 854 (D.Mass., 1973) ; Mitchell v. Richardson, Civ.No. 939-73 (D.D.C., July 23, 1973), notice of appeal filed, Aug. 1, 1973; Gravel v. Laird, 347 F.Supp. 7 (D.D.C.1972) ; Atlee v. Laird, 347 F.Supp. 689 (E.D.Pa.1972), aff’d without opinion, 411 U.S. 911, 93 S.Ct. 1545, 36 L.Ed.2d 304 (1973) ; Massachusetts v. Laird, 327 F.Supp. 378 (D.Mass.), aff’d on other grounds, 451 F.2d 26 (1st Cir. 1971) (but cf. Mitchell v. Laird, supra) ; Davi v. Laird, 318 F.Supp. 478 (W. D.Va.1970). One might also include cases such as Sarnoff v. Connally, 457 F.2d 809 (9th Cir.), cert, denied, 409 U.S. 929, 93 S. Ct. 227, 34 L.Ed.2d 186 (1972), and Head v. Nixon, 342 F.Supp. 521 (E.D.La.), aff’d, 468 F.2d 951 (5th Cir. 1972), where the courts dismissed claims that Congressional appropriations were an unconstitutional delegation of the war-making powers, as involving political questions. See also Atlee v. Laird, supra. Other suits challenging the legality of the war have been dismissed on other grounds. Mottola v. Nixon, 464 F.2d 178 (9th Cir. 1972), rev’g 318 F.Supp. 538 (N.D.Cal.1970) (standing) ; Pietsch . v. President of the United States, 434 F.2d 861 (2d Cir. 1970), cert, denied, 403 U.S. 920, 91 S.Ct. 2236, 29 L.Ed.2d 698 (1971) (standing) ; Velvet v. Nixon, 415 F.2d 236 (10th Cir. 1969), cert, denied, 396 U.S. 1042, 90 S.Ct. 684, 24 L.Ed.2d 686 (1970), aff’g 287 F.Supp. 846 (D.Kan.1968) (standing) ; Campen v. Nixon, 56 F.R.D. 404 (N. D.Cal.1972) (standing) ; Gravel v. Laird, supra (political question, standing and sovereign immunity) ; Da Costa v. Nixon, 55 F.R.D. 145 (E.D.N.Y.), aff’d without opinion, 456 F.2d 1335 (2 Cir. 1972).
      We find particularly persuasive the scholarly opinion of Judge Adams of the Third Circuit in Atlee v. Laird, supra, the only case involving the Southeast Asia conflict which the Supreme Court has affirmed. In all other cases where review was sought, cer-tiorari has been denied as this note documents. In Massachusetts v. Laird, 400 U.S. 886, 91 S.Ct. 128, 27 L.Ed.2d 130 (1970), the Supreme Court denied the Commonwealth of Massachusetts legve to file an original bill of complaint seeking an adjudication of the constitutionality of the United States role in the Indo-China war.

      . The dissenting opinion of Judge Oakes, finding no Congressional authorization by appropriation by reason of the secret bombings of Cambodia in 1969 and 1970 as reported in the New York Times (which is not in the Record before us any more than the Pentagon Papers were before this court in Da Costa v. Laird, supra, 448 F.2d at 1370) if anything emphasizes the inability of the judiciary to make reasoned judgments with manageable or discoverable information in foreign relations particularly in time of war. Secrecy in diplomacy and in military strategy during hostilities has been customary since at least the time of the Trojan War. The relationship of the alleged misfeasance here committed and the action of Congress is again a political question. Its propriety in any event is beyond the scope of appropriate judicial scrutiny. See Proverbs 20, v. 18 “Designs are strengthened by counsels: and wars are to be managed by governments.”


source: Caselaw Access Project

author: MANSFIELD, Circuit Judge:

license: Public Domain

text:
    Whitford A. RICE, Plaintiff-Appellant, v. ATLANTIC GULF & PACIFIC CO., Defendant-Appellee.
    No. 8, Docket 73-1151.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 24, 1973.
    Decided Oct. 9, 1973.

      Lester E. Fetell, Brooklyn, N. Y. (Ser-gi & Fetell, Brooklyn, N. Y., of counsel), for plaintiff-appellant.
    Roger P. McTiernan, New York City (Barry, McTiernan, Treanor & Moore, New York City, of counsel), for defendant-appellee.
    Before KAUFMAN, Chief Judge, and MOORE and MANSFIELD, Circuit Judges.
   MANSFIELD, Circuit Judge:

In this action by a seaman, Whitford A. Rice, against a dredge owner, Atlantic Gulf & Pacific Co. (“Atlantic”), for personal injuries allegedly caused by defendant’s negligence and by unseaworthiness of the dredge, the jury, without making any finding on the issue of unseaworthiness, found that the accident was caused by Atlantic’s negligence and awarded Rice $75,000. Thereafter defendant’s motion for judgment n.o.v. was granted by Judge Carter, who set aside the verdict, dismissed the complaint (including the claim of unseaworthiness) and entered judgment for the defendant, D.C., 59 F.R.D. 280, from which Rice appeals. We affirm the judgment insofar as it dismissed the negligence claim. The dismissal of the unseaworthiness claim, however, is reversed and the ease is remanded for a new trial of that issue.

Rice, who was employed by defendant as a fireman, was injured when, on June 26, 1967, he slipped and fell from a metal stairway leading up from the fire room to the main deck of Atlantic’s dredge, the Barlow. His complaint, as supplemented by his pretrial memorandum, alleged that as a result of “the slipperiness and oiliness of the aforesaid metal stairway and the lifting or lurching of the vessel, plaintiff was caused to slip and fall, sustaining the injuries sued for herein, all by reason of the negligence of the defendant, its agents, servants and/or employees, the shipowner’s failure to provide plaintiff with a reasonably safe place in which to work, and by reason of the unseaworthiness of the vessel, its gear and appurtenances.”

At trial Rice testified that while he had not seen grease or oily substance on the stairway immediately before his fall or when he had used the stairway within an hour before the accident, he found oil on his shirt and right arm after his fall, which had not been there before. The Chief Engineer on the Barlow, James N. Spear, testified that there was “a certain amount of atomization of oil” in the Barlow’s fire room, which frequently left a film “about” and that the defendant employed as part of the ship’s permanent crew two wipers whose duties included cleaning off the film from equipment in the area, including the ladder in question. Rice also testified that it was part of his duty as a fireman to clean up any accumulation of grease or oil observed by him on a stair or deck of the fire room.

After both sides had rested Judge Carter denied motions by each for a directed verdict and submitted to the jury the issues of whether the accident had been caused by negligence or unseaworthiness. The jury foreman announced the verdict in Rice’s favor on the issue of negligence but made no reference whatsoever to the issue of unseaworthiness. From Judge Carter’s order setting aside the jury’s verdict on grounds of insufficient evidence and granting judgment n.o.v. Rice appeals.

Negligence

We agree with the district court that the evidence was insufficient to support the jury’s verdict that the accident was caused by negligence on the part of Atlantic. To find negligence the jury was required to find both that the alleged unsafe condition (oil on the ladder) existed and that Atlantic had notice of it (scienter). See, e.g., Poignant v. United States, 225 F.2d 595, 596 (2d Cir. 1955). Aside from Spear’s testimony (elicited during presentation of the defendant's case) concerning oil atomization, which was by itself insufficient, there was no evidence at trial tending to show actual or constructive notice. For instance, there was no testimony that an agent of Atlantic had actually seen an accumulation of oil or grease on the ladder prior to Rice’s fall, and no circumstantial evidence from which such observation might have been inferred. Furthermore, assuming there was such an accumulation of oil or grease on the ladder, there was no evidence regarding its size, its visibility, or the length of time it had been there. In the absence of such evidence the jury could not reasonably find actual or constructive notice. Cf. Daniels v. Pacific-Atlantic S.S. Co., 120 F.Supp. 96 (E.D.N.Y.1954) (directed verdict); Milin v. United States Lines, Inc., 31 N.Y.2d 336, 338 N.Y.S.2d 905, 291 N.E.2d 144 (1972) (directed verdict).

Unseaworthiness

In his opinion granting Atlantic’s motion for judgment n.o.v. Judge Carter interpreted the jury’s express finding of negligence as an implied rejection of the claim of unseaworthiness. We disagree. Indeed, since both claims rested upon the same alleged unsafe condition (oil or grease on the stairway), we might be justified in inferring (as Rice argues) that the jury must have found that a condition amounting to unseaworthiness had existed before it could find negligence. Cf. Spano v. N. V. Ko-ninklijke Rotterdamsche Lloyd, 472 F. 2d 33, 35 n. 1 (2d Cir. 1973) (“It is hard to imagine . . . how an owner could be negligent, if the ship was not unseaworthy”). However, we consider such logic to be inappropriate in the context of this case. The very fact that the jury found negligence in the absence of any supporting evidence of knowledge or notice of the alleged unsafe condition raises serious doubts as to whether, if it had carefully applied governing legal principles, it would have found unseaworthiness. Under the circumstances we should not, in the absence of an express finding by the jury, speculate as to what it might have found.

The district court, relying principally on Wiseman v. Sinclair Refining Co., 290 F.2d 818 (2d Cir.), cert, denied, 368 U.S. 837, 82 S.Ct. 63, 7 L.Ed.2d 37 (1961), held as a matter of law that, regardless of the absence of a specific jury finding, the evidence was insufficient to establish the presence of oil on the stairway. Here again we find ourselves in disagreement. Concededly the proof of unseaworthiness was slim. However, it exceeded that found insufficient in Wiseman, where the only evidence to support the finding of grease on the vessel’s ladder was plaintiff’s testimony that he saw grease on his shoe after his fall. Here, Rice testified that immediately after his fall he discovered oil on his arm and shirt that had not been there before. In addition, there was Spear’s testimony that frequently there was a film of oil “about” the Barlow’s fire room which required continuous wiping of the stairway from which Rice fell. There was, therefore, a basis independent of the testimony by Rice from which the jury could infer the presence of oil on the steps. We must keep in mind the liberal attitude displayed toward unseaworthiness claims such as the present one, compare Waldron v. Moore-McCormack Lines, 386 U.S. 724, 87 S.Ct. 1410, 18 L.Ed.2d 482 (1967), and Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 88 S.Ct. 1185, 10 L.Ed.2d 297 (1963), with Candiano v. Moore-McCormack Lines, Inc., 382 F.2d 961 (2d Cir. 1967), which are closely analogous to claims under the Federal Employers Liability Act, 45 U.S.C. §§ 51-60, where special deference has been accorded to jury findings. See Bagalay, Directed Verdicts and the Right to Trial by Jury in the Federal Courts, 42 Tex. L.Rev. 1053,1064-69 (1964).

Our decision must not be construed as a holding that every case where a seaman claims injuries as the result of slipping on oil or grease must as a matter of law be submitted to the jury. In the operation of a ship of the type here involved a certain amount of oily film normally accumulates on decks and stairs. The mere existence of such a film does not necessarily constitute unseaworthiness. A seaman is not entitled to a deck or ladder that is free of all oil or grease. Unseaworthiness exists only when the oil or grease creates such a condition of slipperiness that the deck or stairway is no longer reasonably fit for its intended use by the crew. Colon v. Trinidad Corporation, 188 F. Supp. 97 (S.D.N.Y.1960); Borgersen v. Skibs, 156 F.Supp. 282 (E.D.N.Y.1957).

Since we thus find ourselves forced to remand the case for a new trial of the unseaworthiness claim, with consequent loss of valuable time and resources of the court, it becomes important to examine the procedure followed by the trial court here so that such waste will be avoided in the future. The mistake made by court and by counsel in this case lay in not obtaining a specific finding from the jury on the issue of unseaworthiness after it had limited its verdict to the issue of negligence. This could have been achieved simply by directing the jury to return for further deliberation and a finding on seaworthiness. In order to avoid recurrence of the unfortunate history of this case, the district court would do well to consider the practice followed by some district judges of obtaining from the jury specific findings as to unseaworthiness and negligence in each case where both are alleged.

The judgment of the district court is affirmed as to the claim of negligence and reversed as to the claim of unseaworthiness. The case is remanded for a new trial of the latter claim.

      . One witness, Mr. Rash, Watch Engineer on the Barlow, stated that while he had been up and down the ladder on numerous occasions on the date of the accident, “at no time did he look to see whether there was any oil on [the] step.”


author: HEANEY, Circuit Judge.

text:
    John D. BURTON, Petitioner-Appellant, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, et al., Respondents-Appellees.
    No. 73-1385.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 14, 1973.
    Decided Oct. 4, 1973.
    John D. Burton, pro se.
    Bert C. Hurn, U. S. Atty., and Frederick 0. Griffin, Jr., and Anthony P. Nu-gent, Jr., Asst. U. S. Attys., Kansas City, Mo., on brief, for appellee.
    Before HEANEY, STEPHENSON and WEBSTER, Circuit Judges.
   HEANEY, Circuit Judge.

The petitioner in this habeas corpus appeal is an inmate of the United States Medical Center for Federal Prisoners at Springfield, Missouri. On January 17, 1973, he filed a petition in the United States District Court for the Western District of Missouri, alleging that he was eligible for parole consideration during November of 1972, and that he had been deprived of a hearing in that month before the Parole Board. He contended that the failure to grant him the parole hearing was based on the negligence of prison officials, and sought release from prison as a remedy. The government responded on March 2, 1973, conceding that he had not been given a hearing in November and alleging that the failure was due to an unintentional “clerical error.” It also stated that the petitioner, under a Warden’s Referral, was given a hearing before a Parole Board Examiner on January 26, 1973, and was denied a parole on the merits. The government asked that the petitioner’s application should be dismissed as moot. In his Traverse, filed on March 8, 1973, the petitioner claimed that his petition was not mooted by the January hearing. He also questioned the adequacy of the January hearing.

The petitioner’s application and other pleadings were referred by the District Court to a United States Magistrate in accordance with the applicable Local Rule of the Western District of Missouri. The magistrate, in a written memorandum, found there were no controverted facts in the pleadings and, without a hearing, recommended dismissal without prejudice of the petitioner’s application for a Writ of Habeas Corpus. The District Court approved the magistrate’s memorandum and recommendation, and ordered dismissal of the petition without prejudice.

The government concedes that the defendant was eligible for parole on December 2, 1972, and that he was thus entitled to a hearing before that date. It also concedes that he was not given a hearing because his institutional parole officer neglected to give the petitioner a proper application form, which failure resulted in the defendant not being included on the list of those who were given hearings in November of 1972. This “clerical error” was inexcusable, but neither the District Court nor this Court has the right to correct the mistake by ordering the petitioner released. The most we can do is require the Parole Board to give the petitioner a fair hearing in accordance with its rules and regulations at the earliest possible date. Here, the petitioner was given a hearing by the Parole Board on January 26, 1973.

The petitioner contends that the January hearing was an invalid one because it was held in response to a Warden’s Referral and not an inmate application. The petitioner argues that a warden may only refer an inmate to the Parole Board for an explanation of his right to apply for parole and not for a parole hearing. He also contends he was not given an adequate notice to prepare for the hearing. These arguments are inconsistent with his contention that he was entitled to an earlier hearing in November and are without merit. It appears to us that the hearing was properly held to correct the “clerical error.”

The petitioner finally contends that the January hearing was violative of the rules of the Parole Board in that the Board did not have before it all of the data required by the “Rules of the United States Board of Parole, 1971.” The government answers this contention with the statement that courts have no right to question the decisions of the Board. See, Brest v. Ciccone, 371 F.2d 981 (8th Cir. 1967).

We think the government misses the point. Even though Brest teaches that we cannot substitute our decision for that of the Parole Board, we think it clear that the Parole Board must substantially comply with its own rules and regulations in reaching its decisions. See, Scarpa v. United States Board of Parole, 477 F.2d 278, 284 (5th Cir. 1973) (Clark & Simpson, JJ., concurring) . On the basis of the record be'fore us, we are unable to tell whether the Parole Board followed its rules and regulations in conducting the petitioner’s hearing. We, therefore, have no alternative but to remand this matter to the District Court with instructions to it to determine whether or not the January hearing was conducted in accordance with the Parole Board’s rules and regulations. If it finds that it*was, the decision of the Parole Board may stand. If it finds to the contrary, it must direct the Parole Board to give the petitioner a new hearing in accordance with its rules and regulations.

Remanded for action consistent with this opinion.

      . “The following factors are considered by the Board in its decision making.
      “A. Sentence Data

        “ (1) Type of sentence
      “ (2) Length of sentence
      “(3) Recommendations of Judge, U. S. Attorney and other responsible officials
      “B. Facts and Circxwnstances of the Offense

      “(1) Mitigating and aggravating factors
      “(2) Activities following arrest and prior to confinement, including adjustment on bond or probation, if any
      “C. Prior Criminal Record

        “ (1) Nature and pattern of offenses
      “(2) Adjustment to previous probation, parole, and confinement
      “(3) Detainers
      “D. Changes in Motivation and Behavior

      “(1) Changes in attitude toward self and others
      “(2) Reasons underlying changes
      “(3) Personal goals and description of personal strengths or resources available to maintain motivation for law-abiding behavior
      “B. Personal and Social History

      “(1) Family and marital
      “(2) Intelligence and education
      “(3) Employment and military experience
      “(4) Leisure time
      “(5) Religion
      “(6) Physical and emotional health

        “F. Institutional Experience

      “(1) Program, goals and accomplishments in areas:

      “(a) Academic
      “(b) Vocational education, training ox work assignments
      “ (c) Recreation and leisure time use
      “(d) Religion
      “(e) Therapy
      “ (2) General adjustment:
      “(a) Inter-personal relationships with staff and inmates
      “(b) Behavior, including misconduct
      “(3) Physical and emotional health, and treatment
      “G. Community Resources, Including Release Plans

        “ (1) Residence; live alone, with family, or others
      “(2) Employment, training, or academic education
      “(3) Special needs and resources to meet them
      “H. Use of Scientific Data and Tools

      “(1) Psychological and psychiatric evaluations
      “(2) Pertinent data from the uniform parole reporting system
      “(3) Other statistical data
      “ (4) Standardized tests
      “I. Comments by Hearing Member or Examiner

      “Evaluative comments supporting a recommendation, including his impressions gained from the hearing.”
      United States Board of Parole, 1971, 14-17 (Emphasis included.).
      The briefs of the parties do not consider what rules and regulations were applicable at the time of the January hearing. This matter can be resolved by the District Court on remand.

      . Included in the record of the District Court are documents referred to as “classification data” which were received by the court from the prison authorities. These documents would appear to include much of the information that the petitioner contends is required to be considered by the Board in disposing of parole applications. However, there is no representation in the record that indeed this is the information that was before or considered by the Board, and it would be improper for us to draw such a conclusion.


author: SETH, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Harold Joe ROMERO, Appellant.
    No. 73-1285.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Sept. 13, 1973.
    Decided Oct. 9, 1973.

      Winston Roberts-Hohl, Asst. Federal Public Defender, Albuquerque, N. M., for appellant.
    Harris L. Hartz, Asst. U. S. Atty. (Victor R. Ortega, U. S. Atty., with him on the brief), for appellee.
    Before CLARK, Associate Justice , and SETH and McWILLIAMS, Circuit Judges.

       Associate Justice Retired of the Supreme Court of the United States, sitting by designation.

   SETH, Circuit Judge.

The defendant, Harold Joe Romero, was charged with a violation of 26 U.S. C. §§ 5861(d) and (i) and of § 5871, by reason of his possession of a sawed-off shotgun not registered in the National Firearms Registration and Transfer Record, and not bearing a serial number.

He was tried before a jury, found guilty, and has taken this appeal. The issues raised relate to the seizure of the weapon, the asserted duplicitous nature of the indictment, and the refusal to give an instruction that for guilt the jury must find the weapon to be a highly dangerous offensive weapon, and to be obvious to the possessor that the carrying of such a weapon would not be an innocent act.

The defendant, with four or five other men, entered the El Rancho Bar at the small community of Pojoaque, New Mexico, about 11:30 p. m. He went up to the bar and began drinking. A deputy sheriff, Frutoso Herrera, was on duty at the place of business and saw the defendant enter with several other persons, and noticed that he was wearing a gun in a gun belt around his waist. The defendant was wearing a large leather hat, leather vest, and Levis. There was another deputy on duty who was out of the room on defendant’s arrival. When this deputy, William Trujillo, returned shortly thereafter, Deputy Herrera told him that defendant was in the bar, and was wearing a gun. The two deputies then went up to the defendant at the bar. One of them asked the defendant if he had a permit for the gun. The defendant replied, “what’s it to you,” or words to that effect. The deputies then took the defendant by the arm, escorted him outside the bar, and unbuckled the gun belt. A deputy took the gun out of the holster, opened it, and found that there was a live shell in the chamber. A deputy tested the gun later that night and found it would fire. The gun was originally a single-shot, single-barreled, twelve-gauge shotgun. The gun had been made between the years 1929 and 1935, before serial numbers were used, and had been owned by defendant’s family for many years. The barrel had been cut off to a length of 9 to 10 inches, and the original stock designed to fit against the shoulder had been modified to a pistol type grip, making the overall length of the gun about 17 inches. When defendant was first seen by the deputy, the gun was in a holster on a belt around defendant’s waist. There is no contention that the gun was concealed.

The defendant strongly urges that there was no justifiable cause for the deputies to seize the gun from the defendant. There was a hearing held on defendant’s motion to suppress; both deputies and the defendant then testified. The defendant described how he was escorted out of the bar by the deputies, and said he was told by them he was not supposed to be carrying a gun, that it was going to be kept that night because he was drinking, and that he could go to the “office” the next day and pick up the gun. He further testified that the deputies were going to see if the gun would fire. Deputy Trujillo testified that he told the defendant he would give the gun back if it didn’t work. He also testified that he asked defendant at the first encounter if he had a “permit.” The deputies did not testify at the suppression hearing as to whether the gun while in the holster was recognized by them to be a pistol or a shotgun, and they were not questioned on the point.

During the course of the trial the deputies appeared as witnesses. Deputy Herrera then testified that he “. noticed Mr. Romero walk into the bar carrying what I believed to be a shotgun.” He then described the holster and belt. He described his request of defendant to produce a permit, and the removal of defendant from the bar. On cross-examination this deputy was asked what type of gun he saw strapped to defendant’s thigh and he replied, “I saw a shotgun.” He was four to six feet from the defendant who was at the bar. The deputy also said he waited for the other deputy because there were “about five” other persons with the defendant at the time, and he did not want to cause any trouble. The other deputy testified he held defendant by the arm when removing him from the bar because he did not want the gun “loose.” He also testified that he was afraid at the time.

The New Mexico Court of Appeals has held that under the state constitution a person can carry a loaded gun which is not concealed although there may be a local ordinance to the contrary. City of Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d 737. Defendant asserts that the seizure of the gun was not justifiable under state law.

As indicated above, the deputies at the suppression hearing did not state whether they recognized the gun to be a shotgun before it was removed from the holster, and they were not questioned on the point. Assuming that the record shows no more than there was “a gun,” we must nevertheless hold that there was cause for the removal of the defendant from the bar, and the examination of the weapon. A dangerous situation existed with the defendant carrying an unconcealed weapon, drinking in a bar late at night, accompanied by four or five others who had entered with him. The testimony of the deputies shows they were well aware that trouble could start under these conditions. This situation warranted an investigation and action by the deputies. They may have asked the wrong questions initially about a permit, as there is nothing in the record to show any was required or could be. But see Davida v. United States, 422 F.2d 528 (10th Cir.). The response to the question about a permit was, however, a further indication that a dangerous situation was developing. This removal of defendant, and the examination of the weapon to see if it was loaded and workable, was a proper and justifiable action. United States v. Miller, 452 F.2d 731 (10th Cir). The right to bear arms under the New Mexico Constitution or under City of Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d 737, is not an absolute right, and defendant’s rights under it were circumscribed by the conditions under which he sought to assert the right. We thus hold that the seizure, with the assumption, was proper under Fourth Amendment standards. See United States v. Anderson, 468 F.2d 1280 (10th Cir.). The general reasonableness standard under the Fourth Amendment is determined in a prosecution for a federal offense by federal law although the acts were by state officers. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, for standards applicable under somewhat comparable conditions.

Also, as indicated above, one of the officers testified at trial that from the outset, he recognized the weapon to be a shotgun. Under this testimony, since the size of the weapon was evidence, further investigation and seizure were proper.

As to probable cause, “practical considerations of everyday life” must prevail. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879. It would appear that the new subdivision (f) under Rule 41 of the Rules of Criminal Procedure has more clearly extended the inquiry to include new facts developed at trial in a pretrial denial of suppression which prevailed before. See also McRae v. United States, 137 U.S. App.D.C. 80, 420 F.2d 1283, a case under Rule 41(e), and United States v. Eagleston, 417 F.2d 11 (10th Cir.), for a hearing on a motion during trial.

The defendant also asserts that his proposed instruction should have been given to the effect that the weapon must be of such a dangerous character, and designed for offensive use, that it would be obviously improper to carry it. He cites United States v. Freed, 401 U. S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356, as authority for his point. We do not so read Freed. Instead it holds that a defendant may be convicted although he had no awareness that his acts were illegal. See also Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380, and Robbins v. United States, 476 F.2d 26 (10th Cir.).

As to the assertion that the indictment was duplicitous, we hold that if it was so, no possible prejudice could have been caused the defendant. The citations of the sections of the statute concerned clarified the allegations. United States v. Cowley, 452 F.2d 243 (10th Cir.). The sentences on the two counts were imposed as concurrent, and this is also proper. Robbins v. United States, 476 F.2d 26 (10th Cir.).

Affirmed.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Lisandro Patricio THORPE, Appellant.
    No. 105, Docket 78-1413.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 13, 1973.
    Decided Oct. 2, 1973.
    Thomas R. Maher, Asst. U. S. Atty.’ (Robert A. Morse, U. S. Atty., E. D. N. Y., and L. Kevin Sheridan, Asst. U. S. Atty., on the brief), for appellee.
    Alfred Lawrence Toombs, New York City, for appellant.
    Before LUMBARD, FRIENDLY and FEINBERG, Circuit Judges.
   PER CURIAM.

Lisandro Patricio Thorpe appeals from his conviction for failing to report for induction into the Armed Forces in violation of 50 U.S.C. App. § 462(a) (1970), entered on December 15, 1972, after a trial without á jury before Judge Judd in the Eastern District of New York. Thorpe claims that the conviction should be set aside because the Local Board erroneously classified him I-A. We reject this contention and affirm the conviction.

Thorpe registered with Local Board No. 48' of Brooklyn, New York, in March 1966. With one brief exception, appellant was deferred as a high school student or as a college student at Parsons College, Fairfield, Iowa, until November 1970. On October 30, 1970, Thorpe sent the Local Board a letter on the stationery of the New Melleray Abbey of Du-buque, Iowa, which stated in relevant part:

At the present time I am not enrolled at Parsons College because: I attended summer school and feel the need for rest and reflection, general finances and most importantly because of my intentions to enter the Catholic priesthood. The decision to enter the priesthood was made after serious consideration of what my [commitment] should be to the Judaic-Christian message and its import to the world that we must both live and grow in. In any case, I am in correspondence with the Paulist Fathers and in [consultation] with Father John Simmons (St. Mary’s Church, Fairfield, Iowa) and Sister Mary-Catherine (Sisters of Loretto, Fair-field, Iowa) and on spiritual retreat at the New Melleray Abbey (the Trappist Order) with Father Matthias, my Retreat Master.
In view of the aforementioned, I request the [initiation] of proceedings towards granting a IY-D classification. I likewise request the granting of some sort of deferment for the Fall of 1970 until Spring entrance into the seminary.

The Local Board received this letter on November 13, 1970, and on November 17 it classified him I-A. On November 18 notice of the classification was mailed to Thorpe on Selective Service Form 110. Thorpe neither requested a personal appearance before the Local Board nor appealed the decision, although Form 110 informed of these rights.

On November 19, the Local Board mailed Thorpe a notice ordering him to appear at Fort Hamilton in Brooklyn for a preinduction physical examination on December 18, 1970. At Thorpe’s request the place for reporting for the physical examination was transferred to Fair-field, Iowa. He failed to appear, as ordered, for the physical examination on February 16, 1971. On March 5, 1971, Thorpe was ordered to report for induction at Fort Hamilton on March 29. He once again failed to appear.

On June 28, 1972, Thorpe was indicted in two counts for failing to perform duties required by the Military Selective Service Act. The first count charged him with failing to report for induction; the second with failing to report for the physical examination. On December 15, 1972, after a one day trial, Judge Judd found Thorpe guilty of the first count and dismissed the second count for lack of venue. On March 12, 1973, Thorpe was placed on probation for two and a half years, on the condition that he spend two years in civilian service that is satisfactory to the Selective Service System.

The then existing statutory provision, section 6(g) of the Military Selective Service Act of 1967, 81 Stat. 100, (codified at 50 U.S.C. App. § 456(g) (1970)), provided an exemption from the draft but not from registration for

students preparing for the ministry under the direction of recognized churches or religious organizations, who are satisfactorily pursuing full-time courses of instruction in recognized theological or divinity schools, or who are satisfactorily pursuing full-time courses of instruction leading to their entrance into recognized theological or divinity schools in which they have been preenrolled ....

In similar terms the regulations provided that anyone who met these conditions was to be classified IV-D. 32 C. F.R. § 1622.43(a) (1970), reprinted in 4 Sel.Serv.L.Rep. 2088. Paragraph 4 of Local Board Memorandum No. 56, issued on August 18, 1954 and reprinted at 4 Sel.Serv.L.Rep. 2179, further provided that the local board must require that a registrant substantiate a claim that he is a pretheological student by furnishing evidence that clearly establishes to the local board’s satisfaction that he meets the statutory requirements.

Appellant argues that the conviction must be reversed because the letter entitled him prima facie to a IV-D classification. We reject this contention. The letter does not show that Thorpe was either pre-enrolled in a divinity school or a full-time student. The letter shows that Thorpe was in correspondence with the Paulist Fathers and planned to enter a seminary, but it gives no indication what seminary he planned to enter and falls far short of alleging that he was pre-enrolled anywhere. Thorpe was not a full-time student, but was at a retreat, in part because of a need for rest after going to summer school. The letter negates two necessary conditions for a IV-D and does not establish a prima facie entitlement.

Appellant argues that regardless of whether a prima facie case was established, Local Board Memorandum No. 56 imposed a duty on Local Board No. 48 to investigate further Thorpe’s claims to a IV-D. It is claimed that by requesting more information the Board would have learned that Thorpe deserved a IV-D or alerted him about any deficiencies in his claim. We cannot read the Local Board Memorandum in this fashion. The Memorandum orders local boards to require that registrants clearly substantiate their claims to IV-D. Neither it nor the cases appellant cites (e. g., United States v. Galluppi, 344 F. Supp. 1015 (E.D.Pa.1972)) require local boards to make further investigation when the registrant supplies information that fails to show he might be entitled to the requested classification.

Finally, appellant would have us read the letter as a request for a specific exemption or for information. As to the former, he claims that the Board should have sent forms allowing him to present his case, and as to the latter, that the Board should have informed him of the requirements of a IV-D. The letter indicates that Thorpe knew he was not entitled to an exemption as a theological student at that time. He requested “some sort of deferment” in the meantime. His letter clearly indicated that he was not entitled to an exemption as a pretheological student. We do not believe that the Board was obliged to send Thorpe a form for requesting a IV-D when he did not ask for the form and the letter failed to show that he might be entitled to the classification. Cases cited by Thorpe wherein classify cations were set aside when requests for forms were denied or when the clerk did not bring the request to the attention of the local board are not in point. See Boswell v. United States, 390 F.2d 181 .(9 Cir. 1968); United States v. Reeves, 325 F.Supp. 179 (M.D.Fla.1971). While it might be argued that the letter could be read as asking whether Thorpe could get a deferment or an exemption in his situation, the reclassification to I-A was an effective, if less than polite, reply to the question. On this record we cannot say that the advice that no deferment was available was inaccurate. Thus this case is not like those in which local boards or their clerks furnished inaccurate information. See, e. g., United States v. Jacques, 463 F.2d 653, 658 (1 Cir. 1972); United States v. Wilson, 345 F.Supp. 894 (S.D.N.Y.1972).

Affirmed.

      . In 1971 the law was amended and the exemption for divinity students was changed to a deferment. 50 U.S.C. App. § 456(g) (Supp. II1972).

      . Appellant makes much of the fact that nothing in appellant’s draft record indicated that the members of the Local Board had actually read his letter. He claims that the clerk may have told them only that he had left school and not told them of his plans to enter the priesthood. Nothing indicates this is what happened. In the absence of evidence we must presume that the Local Board acted in accord with regular procedures. See, e. g., United States v. Isenring, 419 S.2d 975 (7 Cir. 1969), cert, denied, 397 U.S. 1024, 90 S.Ct. 1260, 25 L.Ed.2d 533 (1970).

      . Since we decide that Thorpe’s claims lack merit, we do not have to determine the validity of the Government’s argument that the claims were barred by a failure to exhaust administrative remedies. See McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971).