author: McGOWAN, Cii-cuit Judge:

text:
    The WASHINGTON FREE COMMUNITY, INC., et al., Paul Becker, Appellant, v. Jerry V. WILSON, Chief of Police, Metropolitan Police, et al.
    No. 71-2008.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 7, 1972.
    Decided May 16, 1973.
    Rehearing Denied Nov. 5, 1973.
    Curtis E. Van Kann, Washington, D. C., with whom Ralph J. Temple, Washington, D. C., was on the brief, for appellant.
    David P. Sutton, Asst. Corp. Counsel for the District of Columbia, with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, were on the brief, for appellee.
    Before BAZELON, Chief Judge, and McGOWAN and TAMM, Circuit Judges.
   McGOWAN, Cii-cuit Judge:

The suit giving rise to this appeal was filed in the District Court nearly four years ago, seeking relief from allegedly unlawful conduct by law enforcement agencies in the District of Columbia. Partial relief was forthcoming after a trial on the merits. This appeal challenges the denial of other relief, primarily injunctive, sought by the litigants. For the reasons set forth below, we affirm the order of the District Court.

I

On July 11, 1969, Washington Free Community, Inc., corporate publisher of a self-styled bi-weekly “underground” newspaper known as the Washington Free Press, and its President Hastings and Vice President Weber, both of whom also served as street vendors of the paper, brought suit against then Chief Layton and Acting Chief Wilson of the District of Columbia Metropolitan Police, and Chief Wright of the United States Park Police, for deprivation of their civil rights. The complaint alleged that the police authorities had, since February, 1969, been engaged in a continuing and tolerated pattern of harassment and intimidation of the Free Press and its vendors. Charging that such actions constituted a denial of both their First Amendment rights to freedom of speech and the press, and their Fifth Amendment right to equal protection of the law, those plaintiffs sought (1) a declaration under 28 U.S.C. § 2201 (1970) that the acts complained of were violative of those constitutional rights, (2) injunctive relief under 42 U.S.C. § 1983 (1970) to prohibit defendants’ interference with the publication, circulation, and distribution of the Free Press and to require defendants to issue written directives to the same effect and subsequently to submit evidence of compliance therewith, and (3) compensatory and punitive damages.

Accompanying the complaint was an application for a temporary restraining order and a motion for a preliminary injunction, with affidavits in support thereof. The District Court denied the application on July 25, 1969, and the motion on August 1, 1969 (the day Chief Wilson officially replaced Chief Layton). In December, 1969, we affirmed the denial of preliminary relief. See note 1 swpra.

In September, 1970, plaintiffs’ motion of July, 1970 to amend their complaint was granted. The amendment added as parties plaintiff, the Quicksilver Times, Inc., corporate publisher, of the underground newspaper Quicksilver Times, its President, one Becker, who was also an editor, reporter, and vendor of the Times, and staff member Jaillet of yet another such newspaper, the Washington Area Free Press; and as parties defendant one Dreseher, a former Metropolitan Police Officer, and the District of Columbia. The relief requested was altered in that (1) the corporate plaintiffs sought certification to represent the class of corporate publishers similarly situated, and the individual plaintiffs sought to represent editors, reporters and vendors similarly situated; (2) the prayer for declaratory relief was revised to include a declaration of the unconstitutionality of a Department of Interior regulation, 36 C.F.R. § 50.24, enforcement of which would have allegedly resulted in the continuation of the Park Police actions complained of; and (3) the prayer for money damages in the original complaint was replaced by a similar prayer, under 42 U.S.C. § 1983 (1970), by Quicksilver and Becker against Drescher and the District for an allegedly wrongful arrest of Becker by Drescher which was said to have violated important rights of these plaintiffs and to have flowed from negligent training and supervision of Drescher by the District.

A two-day trial was held in June, 1971, with respect to that part of the amended complaint directed against the Metropolitan Police (hereinafter Police), Drescher, and the District. The trial court denied all relief sought against the Police. Washington Free Community, Inc. v. Wilson, 334 F.Supp. 77, 79-81 (D.D.C.1971). Plaintiffs moved for a new trial to present new evidence to support their claim against the Police, or alternatively for a vacation of that part of the judgment concerning the Police in light of the new evidence. The motion was denied in October, 1971, and this appeal was brought from the denial of that motion and the order denying the equitable relief sought against the Police.

The relief requested from this court by the appellant (see note 4 supra) is a reversal of the judgment of the District Court with directions that a restraining injunction shall issue against appellee and members of his force to prevent the asserted denial of appellant’s constitutional rights. This request reflects appellant’s acknowledgment that it is in-junctive, not declaratory, relief that is the primary objective of the litigation. Appellant seeks this remedy in reliance upon 42 U.S.C. § 1983, which provides in part that those who, under color of the law of any State or Territory, deprive a party of his constitutional rights, shall be liable to that party in a suit in equity.

The Supreme Court has recently ruled that the District of Columbia is not a “State or Territory” within the meaning of Section 1983. District of Columbia v. Carter, 409 U.S. 418, 93 S. Ct. 602, 34 L.Ed.2d 613 (1973). Appellant therefore does not state a cause of action over which the District Court, by virtue of 28 U.S.C. § 1343(3) (1970), may exercise jurisdiction. Our analysis proceeds, however, on the assumption that appellant by complaint amendment could properly invoke that court’s jurisdiction and state a claim upon which injunctive relief could be granted.

II

We begin our inquiry by reference to our recent reaffirmation of the principle that

[i]n order for a court to grant an injunction [against police action] there should be a showing that there is a substantial risk that future violations will occur. In order to show a substantial likelihood of future conduct, a clear pattern of harassment must be shown.

Long v. District of Columbia, 152 U.S. App. D.C. 187, 469 F.2d 927, 932 (1972). And we are further guided by the more general consideration expressed by Mr. Justice Frankfurter who, in writing for a unanimous Court, stated:

The history of equity jurisdiction is the history of regard for public consequences in employing the extra-ordinary remedy of the injunction. . Few public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies.

Railroad Commn. of Texas v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L.Ed. 971 (1941).

While the latter proposition was stated in the context of a federal court’s abstention from constitutional adjudication when an alternate resolution in a state forum was available, -it appears clear that similar compelling considerations operate in contemplating federal injunc-tive intervention into the operations of a local police force, where a balance must be struck between the role of federal courts in preserving constitutional rights and the independent initiative of local officials to accomplish the same end in a manner of their choosing. See, e. g., Lankford v. Gelston, 864 F.2d 197, .201 (4th Cir. en banc, 1966). “[S]uch relief must not be granted lightly, for unduly obtrusive or hasty judicial intervention can undermine the important values of police self-restraint and self-respect.” Long, supra, 469 F.2d at 934 (Wright, J., concurring). We think the facts of the present case provide good reason for the self-denying discretion exercised by the District Court.

In order to establish a pattern of illegal police conduct and toleration of such conduct by the police hierarchy sufficient to warrant a finding of likely future violations requiring equitable relief, appellant’s original complaint was accompanied by the affidavits of approximately twenty individuals setting forth episodes of police encounters with Free Press vendors ranging from a Virginia arrest for solicitation without a license to a Maryland conviction for possession of, and intent to distribute, obscene matte*;* Eleven such affidavits set forth approximately fifteen encounters with the Metropolitan Police, including at least five wherein the dispute centered around the belief of the officers involved that the vendors were unlawfully engaged in vending without a license. D.C.Code § 47-2336 (1967). Three of those affidavits related instances of Police direction to vendors to “move on.”

In its aforementioned denial of the preliminary injunction, the District Court considered, along with these affidavits, a May 15, 1969 letter from counsel for Free Press vendors to then Chief Layton requesting that alleged vendor harassment and spurious arrests cease, and that a directive be issued to insure that caution be taken in decisions to arrest vendors. Chief Layton’s July 11, 1969 reply stated that an investigation revealed no evidence of police misconduct, and that the requested directive would be superfluous in view of standing instructions concerning proper arrest procedures.

At trial, appellant introduced the eleven affidavits mentioned above, as well as the testimony of eight other witnesses —at least four of whom described situations entailing uncertainty over the applicability of the vending license requirement, and six of whom complained of having been directed to “move on,” some in connection with the license requirement and some not — to substantiate the claim of vendor harassment. Taken together, this evidence revealed some thirty-seven specific episodes of alleged harassment by the Police, five of which were contradicted by appellee’s evidence. In addition, the eight witnesses estimated the number — ranging from four to one hundred and averaging approximately forty-five per witness — of similar episodes, not otherwise described, which each said he had experienced or witnessed; and appellant further proffered the testimony of nine more witnesses— the affidavit of one already having been in evidence — which would have been essentially cumulative.

Both the affidavits and testimony produced by appellant reveal the bulk of Police-vendor confrontations to have been bottomed on the vending license requirement for the sale of newspapers “from a fixed location,” see note 7 supra, and/or Police instructions to vendors to “move on.” While appellant would characterize the latter as “not necessarily related to the vending license issue,” we think there is a sufficient nexus between “fixed location” and “move on” to implicate the statutory requirement in this dispute.

OD v. Wilson, 323 F.Supp. 76 (D.D.C. 1971), decided February 5, 1971, enjoined police interference with the sale of a Free Press supplement, Tasty Co-mix, for the failure of its vendors to have a vending license — even though the Free Press itself had ceased publication. The court held that the administrative control over the exercise of Tasty Co-mix’ First Amendment rights by enforcement of the licensing requirement without appropriate governing standards was constitutionally defective. With reference to the order issued by the three-judge court in OD, plaintiff’s counsel in that case wrote the Corporation Counsel of the District on April 1, 1971, complaining that the Police were interpreting the phrase “fixed location” contained in that order to include newspapers stacked on the sidewalk, permitting the arrest of Quicksilver Times vendors. Mention was made that appellant’s counsel had received assurances that the interpretation would be raised with the addressee; and concern was also expressed on behalf of OD plaintiffs.

Two months later, in order to “obviate the need for litigation,” the Corporation Counsel sent a memorandum to appellee stating his opinion that, properly interpreted, the statutory term “fixed location” did not include newspapers stacked without benefit of- any physical facilities. 334 F.Supp. at 83-84. On June 7, 1971, two days before trial began, appel-lee adopted this interpretation in a directive sent to all members of the Metropolitan Police, stating that vendors may sell newspapers from such stacks without a license, even if sales were made daily from the same location. 334 F.Supp. at 84.

Stating that the licensing statute was the “section of the code police officers had been relying upon when they informed plaintiff vendors that they needed a license to sell papers or had to ‘move on,’ ” 334 F.Supp. at 79, the District Court, noting that no complaint or request for disciplinary action had been filed with the Department nor had any. civil suit been instituted, held: “Any threat to First Amendment rights that existed previously has been cured by the new interpretation of the statute.” Id., at 80. This was so because

the new opinion and directive effectively reverses department policy visa-vis underground newspaper vendors. [Since] the police officers were acting under color of authority as they understood that authority [u]nder the new interpretation . . . there should be no repetition of the police activities on which the complaint was founded. Id.

In support of the motion for a new trial apart from appellant’s own affidavit, see note 8 supra, appellant filed a second affidavit in which the affiant, a Quicksilver Times vendor, recounted three incidents within the two and one-half months subsequent to the promulgation of the directive wherein the Police challenged his right "to sell the Times from a fixed stack without a license. Concerning the only incident for which the affiant had specified a badge number, the officer so identified attested that he had become familiar with the directive and that the affiant’s newspapers were so dispersed on the sidewalk they had become a pedestrian obstacle, necessitating his order to the affiant to remove them. The District Court denied the motion after considering the affidavits and hearing oral argument.

Ill

This court has previously held that a policy revision instituted after and designed to eliminate offending governmental conduct can obviate the necessity for enjoining such conduct, there being no reason to believe the revision would not be fully implemented. Doe v. McMillan, 148 U.S.App.D.C. 280, 459 F.2d 1304, 1316 n. 23, cert, granted, 408 U.S. 922, 92 S.Ct. 2505, 33 L.Ed.2d 332 (1972). Similarly here, appellee’s interpretative directive, striking as it does at what we and the District Court conceive to be the reason for the greater portion of the challenged Police conduct, compare, e. g., Lankford, supra, 364 F.2d at 201, represents the kind of responsive and potentially effective local initiative whose influence in preserving constitutional rights deserves an opportunity to work before the power of the federal judiciary is invoked to achieve the same end.

The evidence brought forth by appellant concerning post-directive Police conduct does not appear to be of such magnitude as to refute the likelihood of general Police compliance therewith; and, to the extent that it does suggest future non-compliance, it would appear too early, especially in light of appellee’s representations in note 9 supra, to support a conclusion that Police conduct revealed by appellant’s pre-directive evidence— even assuming that evidence established the requisite pattern of harassment— would continue. Our remand in Gomez, note 5 supra, on comparable evidence of continuing misconduct, differs critically in that police procedures there concededly permitted apparently unlawful conduct. A few incidents consistent with such a policy establish a significantly different likelihood from a few incidents running counter to Department guidelines, as in the instant case.

In addition to the directive’s likely effect on official behavior, it also serves to weaken whatever claim appellant had that the allegedly unlawful behavior met with that official departmental toleration which would increase the likelihood of future misconduct. Although it is true that appellee must be charged with knowledge of the previously mentioned correspondence between appellant’s counsel and Chief Layton, that matter was concluded adversely to appellant by ap-pellee’s predecessor in office. Only-one similar approach, aside from the continuation of the present litigation, was made to appellee. That effort was not undertaken until nearly two years later, and two months before trial, through the office of the Corporation Counsel, and only in part on behalf of appellant by counsel in another case. Appellant would have us make much of the timing of appellee’s response, issued as it was only two days before trial, but where, as here appellant had ample opportunity to seek an earlier response, and where appellee did respond within five days after receiving the Corporation Counsel's memorandum to him, we do not have a proper basis for suspecting its genuineness.

Appellee’s response also suggests receptivity to administrative procedures to remedy appellant’s complaints short of judicial intervention — procedures the District Court noted had not been sought in this case. While we do not believe such steps to be an invariable condition precedent to the institution of litigation, under circumstances where a new regime’s responsiveness has not been tested by litigants and where such inquiry appears to hold forth a possibility of alternative relief, failure to take those steps is a factor not to be ignored in the avoidance of “needless friction” with local policies. Those policies can arguably prove to be more effective in the preservation of civil rights generally than can isolated and sporadic litigation. See Amsterdam, note 12 supra, at 787-91. Finally, our disposition of this appeal takes cognizance of the present status of the litigants.

In view of the foregoing, we think an adequate remedy was provided by the declaration of the District Court:

To avoid future problems the Court will re-emphasize that the plaintiffs have the right to sell and distribute their papers without obtaining a license, that the plaintiffs can stack the papers on the sidewalks, and that the plaintiffs are not required to keep moving.

334 F.Supp. at 80. Appellant is free to invoke the Department’s administrative procedures or to file another suit should the Police conduct complained of originally be continuing, but under the circumstances here presented this litigation has run its course.

Affirmed.

      . This matter was before us earlier on an appeal from the denial by the District Court of a preliminary injunction. Washington Free Community, Inc. v. Wilson, 426 F.2d 1213 (1969). We declined, Chief Judge Bazelon dissenting in part, to disturb the District Court’s exercise of discretion in this respect.

      . It is clear that, as applied to the District of Columbia, the Due Process Clause of the Fifth Amendment embodies the guarantee against unjustified discrimination underlying the Equal Protection Clause of the Fourteenth Amendment. See, e. g., Shapiro v. Thompson, 394 U.S. 618, 642, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

      . Following this trial the District Court held a separate hearing on cross motions for summary judgment regarding that part of the amended complaint directed against the Park Police. The court subsequently granted plaintiffs’ motion and held the aforementioned regulation to be overly broad and in violation of the First Amendment as it was applied to the sale of newspapers in national capital park areas. Washington Free Community, Inc. v. Wilson, 334 F.Supp. 77, 81-83 (D.D.C. 1971). Since a cross-appeal from that ruling by defendant Wright was later withdrawn, and since the District Court’s ruling provided the principal relief sought against the Park Police, no allegations against the latter are before this court now.

      . The result we reach embraces only such relief since the prayer for damages against defendants Drescher and the District was dropped at trial for want of service of process against the latter parties. It also eliminates our need to pass on questions raised by this appeal concerning the proper scope of that relief, which would be affected by both the parties seeking relief, and their ability to represent persons similarly situated. Concerning the former, only Becker remains a party to this appeal. Following trial, plaintiffs filed a motion in the District Court for leave to proceed on appeal in forma pauperis, which the trial judge granted only as to Becker. A similar motion was filed in this court with respect to the other plaintiffs. That motion was first denied as to the remaining individual plaintiffs Hastings, Weber, and Jaillet (it appearing by affidavit that they had departed the area, current addresses unknown, and thus could not provide the affidavits required by 28 U.S.C. § 1915 (a) (1970)) ; and later denied as to both corporate plaintiffs Washington Free Community, Inc. (it appearing by affidavit that it was no longer an active corporation, its former associates also not being available to file the required affidavits), and Quicksilver Times, Inc. (it having failed to fulfill the affidavit requirements set forth in S.O.U.P., Inc. v. FTC, 146 U.S.App.D.C. 66, 449 F.2d 1142 (1971)). These five parties not having filed, subsequent to the denial of the above motion, a further motion for leave to docket their appeals time having-expired, nor tendered the appropriate fee, see, e. g., Williams v. United States, 115 U.S.App.D.C. 134, 317 F.2d 569, 572 n. 2 (1963) (Miller, ,T., dissenting), only Becker remains as an appellant — although he was unable to attend the trial due to his presence in Florida pursuant to a doctor’s orders. Our affirmance makes it unnecessary to consider whether Becker (hereinafter appellant) may obtain class relief, and treats the issues no differently than if all plaintiffs below were prose curing this appeal.

      . Jurisdiction might be based upon general federal question jurisdiction, 28 U.S.C. § 1331(a) (1970), or, given the time of filing of the original complaint, upon D.C.Code § 11-501(1) (Supp. V, 1972), which continues the jurisdiction of the District Court under D.C.Code § 11-521 (a) (1) (1967) until the effective date of the District of Columbia Court Reorganization Act of 1970. See Gomez v. Wilson, 155 U.S.App.D.C. 242 at 250-254, 477 F.2d 411 at 419-423 (1973).

        Carter, supra, itself suggests the litiga-bility of a claim of alleged deprivation of constitutional rights by reference to authorities permitting such suits directly under constitutional provisions, see, e. g., Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ; and those authorities appear to have been expanded beyond their original dimensions of Fourth and Fifth Amendment violations, see, e. g., Howard v. Warden, 348 F.Supp. 1204 (E.D.Va. 1972) (First and/or Ninth Amendments), and of relief in terms of monetary damages, see, e. g., Brown v. Donielson, 334 F.Supp. 294 (S.D.Iowa 1971) (injunctive relief).

      . Appellant would have us distinguish between the prohibitory nature of the injunction sought here, as contrasted with injunctions mandatory in nature, which would assertedly amount to a greater intrusion of judicial power into internal police operations calling for a correspondingly stronger showing of necessity for such intervention. But the proposed form of injunction at Appendix D of appellant’s brief does envision requiring appellee to formulate a written order to all members of the Department embodying the prohibitions of the proposed injunction itself; and indeed we think the type of allegedly tolerated conduct sought to be prohibited could be dealt with effectively only by affirmative action on appellee’s part, see, 0. g-, Note, The Federal Injunction as a Remedy for Unconstitutional Police Conduct, 78 Yale L.J. 143, 147 (1968), which an injunction cast even in the broad prohibitory language of appellant’s proposal would precipitate. See, e. g., Belknap v. Leary, 427 F.2d 496, 498 (2d Cir. 1970) (Friendly, J.).

      . The statute provides in relevant part:
      No person shall sell . . . anything whatever, excepting newspapers sold at large and not from a fixed location, upon . . public space in the District of Columbia, without a license first having been obtained .... (Emphasis added).

      . One of those witnesses — the vice president of the Quicksilver Times — and one reporter each from the Washington Post and the Washington Bvening Star, testified concerning reporter harassment. The Times official described two incidents in which his attempts to cover an event were prevented by allegedly wrongful Police action; the reporters described the arrest of appellant by Drescher sued upon in the amended complaint; and one of appellee’s witnesses testified to a second such arrest of appellant by a different police officer. Tire District Court, focusing upon Drescher’s arrest of appellant, assumed it to be an improper interference with valid news-gathering but, characterizing it as an isolated incident, held it to be an inappropriate basis for declaratory and injunctive relief. 384 F.Supp. at 81. In partial support of the motion for a new trial, appellant filed his affidavit setting forth his second arrest referred to above, an incident of news-gathering interference by a U.S. Park Police officer, and “four or five other” unspecified occasions of access denial by the Police. These eight or nine versions of encounters, some already controverted by appellee at trial, with a police force of approximately five thousand members, over the two and one-half year span embraced by the allegations of the complaint, do not in our view constitute the substantial likelihood of future viola-tive conduct against reporters justifying equitable intervention by the federal courts, Long, supra; nor do we think the circumstances reveal the kind of substantial controversy of sufficient immediacy and reality to warrant issuance of a declaratory judgment. Golden v. Zwick-ler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed. 2d 113 (1969). This applies with even greater force to the class relief requested for editors of underground newspapers, of which appellant was one, about whom no evidence of harassment was adduced.

      . Appelle in post-hearing memoranda stated that (1) the directive would be treated as a “circular” under the new December, 1971, system for governing the publication and maintenance of directives, (2) it would be given special distribution to each member of the Department, required to be maintained for a year, and incorporated in the Department’s training program, and (3) any knowing violation of such circulars, or officer neglect in familiarizing himself with such statutory interpretations, can be grounds for disciplinary action.

      . In this connection we note that appellant’s claim that Police conduct denied them equal protection of the law, conceded by appellant’s counsel at oral argument to be of lesser importance, fares no better than their claim under the First Amendment, in light of the curative directive’s removal of the primary authority in the name of which discriminatory enforcement might take place.

      . The correspondence was served on ap-pellee as part of appellant’s amended complaint. The two incidents referred to therein, the media coverage of Drescher’s arrest of appellant, appellant’s unadjudi-cated complaint, and the “no-papering” of several charges of vending without a license, do not in any event appear to amount to a showing that appellee was (1) aware (2) of improper Police conduct (3) sufficiently widespread to require formal corrective action, such that his failure to take action prior to the promulgation of the directive constituted official toleration of an unconstitutional pattern of harassment.

      . Apart from appellee’s directive, we note his unilateral adoption of procedures designed to correct Departmental deficiencies. See, e. g., Wilson, J. and G. Alprin, Controlling Police Conduct: Alternatives to the Exclusionary Rule, 36 Law & Cont. Proh. 488, 498 (1971) :
      In cooperation with the local United States Attorney’s Office . . . [t]he Case Review Section maintains records by officer and unit so that recurrent patterns of misconduct or procedural error can be observed and corrected.
      The directive formulation in the instant case also serves to enhance the visibility of Departmental policy making, making the abuses alleged herein even more subject to nonjudieial resolution, as for example through complaints of directive violations, see note 9 supra, through appellee or his District superiors to the Complaint Review Board or Trial Board —procedures which in themselves would appear to be of salutary effect on law enforcement. See generally McGowan, Rule-Making and the Police, 70 Mich.L. Rev. 659 (1972) ; Amsterdam, The Supreme Court and the Rights of Suspects in Criminal Cases, 45 N.Y.U.L.Rev. 785 (1970). We again note a distinction from our remand in Gomez. The opportunity short of litigation to bring complaints of misconduct here would likely meet with comparatively greater receptivity, asserting as those complaints wpuld violations of the Department’s own policies rather than conduct consistent with its policies.

      . See note 4 supra. The cessation of Free Press publication was conceded by appellant and is further substantiated by . the Chairman of the Rutgers University department of political science, who also made this observation about the Times:

      But it is almost entirely gone now, those hundreds of little papers we called the underground press. . . . Departed are . . . the Quicksilver Times and the Washington Free Press in the District of Columbia ....
      Wash.Post, Apr. 8, 1973, § C, at 5, col. 1.


source: Caselaw Access Project

author: WILKEY, Circuit Judge: BAZELON, Chief Judge,

license: Public Domain

text:
    Gilbert A. CUNEO et al., Appellants v. James A. SCHLESINGER, Secretary of Defense, et al.
    No. 72-1328.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 6, 1973.
    Decided Sept. 5, 1973.
    Robert L. Ackerly, Washington, D. C., with whom Herbert L. Fenster, Washington, D. C., was on the brief for appellants.
    William Kanter, Atty., Dept, of Justice, with whom Harold H. Titus, Jr., U. S. Atty., and Walter H. Fleischer, Atty., Dept, of Justice, were on the brief, for appellees.
    Before BAZELON, Chief Judge, and ROBINSON and WILKEY, Circuit Judges.
   WILKEY, Circuit Judge:

Appellant sought to obtain disclosure under the Freedom of Information Act of the Defense Contract Audit Manual, a manual prepared by the Defense Contract Audit Agency in the Department of Defense. On cross-motions for summary judgment, and after an in camera inspection, the District Court held that the portions of the Manual not available to the public were exempt from disclosure under exemptions two and five of the FOIA. For lack of a detailed record essential to this type action, we are unable to determine if the information sought by appellant falls within one of the exemptions. We remand for further proceedings.

I. Facts

The Defense Contract Audit Agency was established .to provide necessary audit services to government officers in contract administration. DCAA acts in an advisory capacity to the contracting officer, and verifies that the costs incurred in performing a contract for the Armed Services comply with criteria of the Armed Services Procurement Regulations by conducting an examination of government contractors’ books and records. In view of the large number of government contractors and the great volume of contracts in different stages of performance, the DCAA must necessarily be selective and must limit its scrutiny to a relatively small portion of the books and records which could be audited. The Defense Contract Audit Agency Manual, first issued in its current form in 1965, was designed to guide DCAA auditors in effective auditing in a selective manner.

Appellant alleges that the Manual, or parts of it, have regularly been made available to members of the public, including on occasion appellant’s clients. Appellees do not dispute this but, rather, allege that these disclosures were never authorized. In addition, a relatively complete description of the contents of the Manual, including quotations from it, has been published in a treatise on defense contract auditing. Finally, the Manual is made available to certain non-federal agencies and foreign governments who deal with American contractors. Thus, to at least some extent, the Manual has been made available to individuals outside the DCAA.

The Government argued before the trial court that the information in controversy was exempt because it was “(2) related solely to the internal personnel rules and practices of an agency”; constituted “(5) inter-agency or intra-agen-cy memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency”; and/or was composed of “(7) investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency.” The trial court, after examining the Manual in camera, on motions for summary judgment held that it was a “playbook,” or “game plan,” i.e., tactics to be employed, and that this playbook was exempt from disclosure under categories (2) and (5).

On appeal appellant abandoned his efforts to obtain those portions of the Manual that constitute a mere playbook. He redoubled his argument, however, that portions of the Manual dealt with the allowability of costs. Such portions, according to appellant, constitute a form of substantive “secret law” that must be disclosed under the FOIA. Appellant also argued that the disclosure of portions of the Manual to various individuals, other non-federal agencies and foreign governments, constituted a waiver of exemption as to those portions.

II. The Nature of the Information Sought

Before the trial court appellant was requesting the entire contents of the Manual. According to the Government, the non-public portions of the Manual provide “uniform guidance and instructions concerning the criteria to be used in deciding what must be audited, how it shall be audited, what is to be the depth of the examination, what the frequency of the audit shall be, and how to determine the extent of reliance which may be placed on the contractor’s own internal controls.” In other words, the Manual is a mere “playbook” that tells auditors where to look in the mass of books and records confronting them, but does not provide substantive guidance or otherwise set standards for what costs will actually be allowed. If a contractor knows in advance the coverage, depth, and scope of an audit, the contractor may be able to claim improper costs in areas that will receive little or no scrutiny. Thus, the Government argues that, for an audit to be effective, the portion of the Manual on coverage, depth, and scope must be kept secret.

Appellant disputes as a matter of fact this characterization of the Manual’s contents. As a matter of law appellant’s primary theory originally was that the Manual was an “administrative staff manual . . . that affect [s] a member of the public.” The FOIA specifically requires that such “administrative staff manuals” be made available to the public.

In addition to his principal contention that the entire Manual be disclosed as being an “administrative staff manual,” appellant advanced two subsidiary arguments that, if accepted, would require the disclosure of portions of the Manual. First, appellant contended that at least portions of the Manual set forth standards of interpretation of ASPR and guidelines for the allowability of costs; these portions were said to constitute a form of “secret law” that must be disclosed under the FOIA. Secondly, appellant claimed that portions of the Manual had been made available to various persons and entities outside the Federal Government, and that at least as to these disclosed portions, DCAA had waived any right it might have to keep them secret.

At oral argument appellant abandoned his request for the entire Manual and narrowed his efforts to seeking disclosure of the portions that constituted “secret law.” Due to this concession, we no longer have reason to consider whether the entire Manual must be disclosed under the requirement covering “administrative staff manuals.” By like token, we need not consider the argument that disclosure to certain individuals and entities constituted a waiver of any right to keep those portions secret. This is true because appellant has stated that he wants only those portions of the Manual which constitute “secret law.” Since appellant has an undeniable right to obtain such law, it is irrelevant whether those portions may also be obtained under a theory of waiver. We therefore do not decide any waiver issue here.

There does not appear to be any disagreement between the parties regarding what the nature of the “secret law” being sought actually is. The portions sought by appellant, which the Government agrees should be made available if they actually exist, are those which either create or determine the extent of the substantive rights and liabilities of a person affected by those portions. Information that falls within this definition would include, for example, guidelines for what costs would be allowed under ASPR, and rules or interpretations dealing with other substantive laws. Appellant does not seek to obtain disclosure of those portions of the Manual that prescribe techniques to uncover the facts relevant to a particular contract. Nor is a right to disclosure claimed for procedures directing auditors to concentrate examination on certain elements of a contractor’s records.

It is clear that if any portion of the Manual does consist of interpretations of rules and statutes or guidelines for allowability of costs, appellant has a right to obtain disclosure. Indeed, this was conceded by government counsel during oral argument. The sole remaining issue is thus purely factual— whether the Manual does contain any “secret law”.

In the unsatisfactory manner in which these FOIA cases have been arising, we have no record before us containing the answer to this issue. The District Judge was confronted with appellant’s original claim for total access to the Manual, opposed by the Government’s claim to blanket exemption under three exceptions to disclosure. On cross-motions for summary judgment, after in camera examination of the several volumes constituting the Manual, the District Judge sustained the Government’s overall non-disclosure position under exemptions (2) and (5). Counsel apparently made no discriminating analysis of how portions of the Manual might differ in their purpose, nature, and content, and thus be subject to different criteria of disclosure; understandably, the trial judge made none.

III. Procedures Under the FOIA

A. Problems of Testing Disclosability of Allegedly Secret Information

Recently in Vaughn v. Rosen this court had occasion to discuss the problems inherent in implementing the FOIA. Despite the heavy emphasis in favor of disclosure and the specific requirement that the Government shall have the burden of proving that information need not be revealed, we noted in Vaughn that procedures most often used in FOIA cases permit the Government very easily to avoid disclosure. Since the party seeking disclosure does not know the contents of the information sought, he cannot argue as effectively that the documents sought are, for example, “secret law” to which he is entitled access. In contrast, the Government does have access to the information and with confidence can convincingly argue to the trial judge that the factual nature of the information is as the Government alleges.

As we noted in Vaughn, the burden of actually determining whether the information is as the Government describes it falls ultimately on the court system. After the Government alleges that the documents in controversy do not contain material which must be disclosed, but on the other hand consist of information whose secrecy must be preserved, the very claim of secrecy, under the usual court procedures in vogue, means that the Government has substantially relieved itself of the burden of proving more. To preserve secrecy it is then up to the trial judge to wade through the mass of documents and determine whether the information must be disclosed. The party seeking disclosure is helpless to contradict the Government’s description of the information or effectively to assist the trial judge.

In Vaughn we concluded that the ease with which the Government could carry its burden, and the difficulty that a trial judge faces in determining whether information should be disclosed, created intolerable problems. First, it encouraged agencies to argue for the widest possible exemption from disclosure for the greatest bulk of material. Secondly, it had a tendency to undermine the reliability of a trial judge’s findings; a trial judge, without the aid of counsel seeking disclosure, cannot be expected to investigate and isolate the factual nature of individual documents in a mass of similar appearing material. Thirdly, because the points of factual dispute have not been isolated by the traditional forms of argumentation and adversary testing, a determination is virtually un-reviewable on appeal. The case at bar we remand for additional proceedings which hopefully will rectify to some extent these flaws.

B. Procedures Upon Remand

1. As in Vaughn v. Rosen, we believe that the problems adverted to will be substantially ameliorated if the Government is required to provide particularized and specific justification for exempting information from disclosure. This justification must not consist of “conclusory and generalized allegations of exemptions, such as the trial court was treated to in this case, but will require a relatively detailed analysis in manageable segments.” It is particularly important that information which is in effect substantive law not be concealed beneath a mass of other material. Even when the law is closely intermingled with other data, we cannot conceive of a situation in which legal interpretations and guidelines could not be segregated from other material and isolated in a form which could be disclosed.

2. Upon remand the Government should correlate its reasons for claiming that the various portions of the Manual should not be disclosed with the relevant portions of the Manual.

[A] n indexing system would subdivide the document under consideration into manageable parts cross-referenced to the relevant portion of the Government’s justification. Opposing counsel should consult with a view toward eliminating from consideration those portions that are not controverted and narrowing the scope of the court’s inquiry. After the issues are focused, the District Judge may examine and rule on each element of the itemized list.

3. Finally, if the District Judge deems it appropriate, he may appoint a special master to examine the Manual, the Government’s justification, and the indexing. This could, in some circumstances, relieve much of the burden of evaluating voluminous documents that currently falls on the trial judge.

IV. Conclusion

The ease is remanded so that the Government may undertake to index and justify the Manual in a manner consistent with Part III of this opinion, and for the District Judge to rule thereon. So ordered.

BAZELON, Chief Judge,

concurring:

I agree entirely with Judge Wilkey’s exposition of the impediments that have confronted courts in enforcing compliance with the mandate of openness in the Freedom of Information Act. These impediments derive, of course, from exactly the problem against which the Act was directed — the enthusiasm for secrecy that seems all too often epidemic in our Government. Courts are responsible under the Act for testing broad claims of exemption from disclosure, claims that information must remain secret, against the precise categories of necessary secrecy that Congress has defined. Yet the claim of exemption has, in the past, foreclosed adversary analysis of whether, in fact, exemption is warranted, presenting the grave danger that, despite the best efforts of the court, the claim alone might conclude the case. See Sterling Drug, Inc. v. FTC, 146 U. S.App.D.C. 237, 450 F.2d 698, 715-716 (1971) (Bazelon, C. J., concurring in part and dissenting in part).

I do not suppose, nor, I assume, does the Court, that the procedures we have mandated to govern the remands here and in Vaughn v. Rosen, - U.S.App. D.C.-, -F.2d - (1973) will completely dispose of the problem. They are, like much in the law, an experiment to be tried by experience. And experience may prove that additional steps or different approaches are called for. Nonetheless, I think that these procedures bear substantial promise of facilitating enforcement of the Act. I join in the opinion of the Court.

      . “(a) Bach agency shall make available to the public information as follows :
      “(1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public—
      “(A) descriptions of its central and field organization and the established places at which, the employees (and in the ease of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submit-tals or requests, or obtain decisions ;
      “(B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
      “(C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;
      “(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and
      “(E) each amendment, revision, or repeal of the foregoing. Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register.
      “(2) Each agency in accordance with published rules, shall make available for public inspection and copying—
      “(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases ;
      “(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and
      “(C) administrative staff manuals and instructions to staff that affect a member of the public;
      unless the materials are promptly published and copies offered for sale. To the extent required to prevent a clearly unwarranted Invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, or staff manual or instruction. However, in each case the justification for the deletion shall be explained fully in writing. Each agency also shall maintain and make available for public inspection and copying a current index providing identifying information for the public as to any matter issued,' adopted, or promulgated after July 4, 1967, and required by this paragraph to be made available or published. A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if—
      “(i) it has been indexed and either made available or published as provided by this paragraph; or
      “(ii) the party has actual and timely notice of the terms thereof.
      “(3) Except with respect to the records made available under paragraphs (1) and (2) of ‘ this subsection, each agency, on request for identifiable records made in accordance with., published rules stating the time, place, fees to the extent authorized by statute, and procedure to be followed, shall make the records promptly available to any person. On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo and the burden is on the agency to sustain its action. In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee, and in the ease of a uniformed service, the responsible member. Except as to causes the court considers of greater importance, proceedings before the district court, as authorized by this paragraph, take precedence on the docket over all other causes and shall be assigned for hearing and trial at the earliest practicable date and expedited in every way.
      “(4) Each agency having more than one member shall maintain and make available for public inspection a record of the final votes of each member in every agency proceeding.
      “(b) This section does not apply to matters that are—
      “(1) specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy ;
      “(2) related solely to the internal personnel rules and practices of an agency;
      “(3) specifically exempted from disclosure by statute;
      “(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;
      “ (5) inter-agency or intra-agency memo-. randums or letters which would not be available by law to a party other than an agency in litigation with the agency ;
      “(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
      “(7) investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency;
      “(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
      “(9) geological and geophysical information and data, including maps, concerning wells.
      “(c) This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress.”
      5 Ü.S.C. § 552 (1970).

      . Cuneo v. Laird, 338 F.Supp. 504 (D.D.C. 1972).

      . The Manual sought here was preceded by earlier editions that were readily available to the public. Portions of these earlier editions were separated into appendices to the current Manual; these appendices are available to the public.

      . Until 1967 the foreword to the Manual provided:
      While the Manual is not available for public distribution, there is no prohibition against showing portions to contractors or others, when such action would be mutually beneficial.
      Joint App. at 54.

      . P. Trueger, Accounting Guide for Defense Contracts (6tli ed. 1971).

      . Joint App. at 54, 104, 106 & 107.

      . See note 1, supra.

      . There was considerable confusion regarding precisely what appellant wanted to have disclosed. After questioning by this court during oral argument it became obvious that appellant was not asking for the Manual to be disclosed in its entirety. The following dialogue indicates the parameters of appellant’s request for disclosure:
      THE COURT: Are there any instructions available to the field auditors which you would agree you do not have access to?
      APPELLANT: Well, as we have suggested in our brief, if there are such things as saying the time of the audit, or it is not necessary to audit, say, fringe benefits, then of course, that might be excluded, but to the extent that any of the principles of ASPR — ASPR has the force and effect of law, in accordance witli several decisions of the Supreme Court — to the extent that tins Manual refines ASPR and its application, it becomes secret law, because it is ASPR that we are bound by.
      * Si! * * *
      TIIE COURT: How would you distinguish between what Judge Hart referred to as the “game plan” and the law?
      APPELLANT: Well, to the extent that the Manual refines ASPR — which we believe it must because ASPR is very general and every agency has an audit manual refining the cost principles set forth in their regulations — that is law and that becomes secret law. To the extent that the Manual might say “conduct the audit at a certain hour during the day or pick out this account and not that account,” we don’t need that and I don’t think the public is entitled to it. But, to the extent that there are refinements of cost principles, I think that is clearly secret law. That is not giving away the game plan; that is a refinement of regulations that •have the force and effect of law.
      *1» ^ •1»
      THE COURT: If we find some things in there that don’t fall within your definition of secret law, and are outside those areas that you contended relate to costs of contracts audited, then perhaps those things should remain secret?
      APPELLANT: I agree, I agree.

      . Joint App. at 74.

      . 5U.S.C. § 552(a)(2)(C) (1970).

      . See note 8, supra.

      . The scope of the “administrative staff manual” disclosure requirement has recently been considered by two other Circuits. See Stokes v. Brennan, 476 F.2d 699 (5th Cir., 1973) ; Hawkes v. IRS, 467 F.2d 787 (6th Cir. 1972).

      . It is well established that information which either creates or provides a way of determining the extent of substantive rights and liabilities constitutes a form of law that cannot be withheld from the public. See Sterling Drug, Inc. v. FTC, 146 U.S.App.D. C. 237, 450 F.2d 698 (1971) ; American Mail Line, Ltd. v. Gulick, 133 U.S.App.D.C. 382, 411 F.2d 696 (1968). The FOIA by its explicit terms condemns “secret law” and requires that it be made public:
      (2) Each agency, in accordance with published rules, shall make available for public inspection and copying—
      (A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases ;
      (B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register . . 5 U.S.C. § 552(a)(2)(A) & (B) (1970). See generally Davis, Administrative Law, § 3A.27 (1970 Supp.).

      . 157 U.S.App.D.C.-, 484 F.2d 820 (1973). (1973).

      . “The legislative plan creates a liberal disclosure requirement, limited only by specific exemptions which are to be narrowly construed.” Getman v. NLRB, 146 U.S.App. D.C. 209, 211, 450 F.2d 670, 672, stay denied, 404 U.S. 1204, 92 S.Ct. 7, 30 L.Ed.2d 8 (1971). See also, Bristol Myers v. FTC, 138 U.S.App.D.C. 22, 25, 424 F.2d 935, 938, cert, denied, 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970) ; M.A.Schapiro & Co. v. SEC, 339 F.Supp. 467, 469 (D.D.C.1972).

      . 5 U.S.C. § 552(a)(3) (1970).

      . Vaughn v. Rosen, 484 F.2d at 823-827 (1973).

      . Id. at 824-826.

      . Id. at 820.

      . Id. at 827.


author: VAN PELT, Senior District Judge:

text:
    UNITED STATES of America, Appellee, v. Darron G. GILLIAM, Appellant.
    No. 72-1161.
    United. States Court of Appeals, District of Columbia Circuit.
    Argued Feb. 28, 1973.
    Decided Sept. 12, 1973.

      James V. Pickrel and J. H. Krug, Washington, D. C. (both appointed by this Court), for appellant.
    Kevin W. Carmody, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Barry W. Levine, Asst. U. S. Attys., were on the brief, for appellee.
    Before WRIGHT and MacKINNON, Circuit Judges, and ROBERT VAN PELT, Senior District Judge for the District of Nebraska.

       Sitting by designation pursuant to Title 28, U.S.C. § 294(d) (1970).

   VAN PELT, Senior District Judge:

This is an appeal from a conviction upon a jury verdict of guilty on three counts of armed robbery and on five counts of assault with a dangerous weapon. The indictment also charged robbery but the jury reached no verdict on the robbery counts. Defendant was given concurrent imprisonment sentences although the sentences on various counts differed in length. They were made consecutive to another sentence previously imposed.

On appeal appellant argues that the trial court erred in (1) allowing into evidence a prior statement of a Mrs. Gross and evidence concerning her prior statement, (2) not instructing the jury that the prior statement could not be considered as substantive evidence, and (3) allowing the prosecutor to argue that the matters in the statement should be taken as fact, and that they revealed a consciousness of, guilt. We reverse on the failure to instruct. It is thus unnecessary to consider the other assignments.

The incident giving rise to the indictment was the armed robbery by two men of a McDonald’s restaurant in Washington, D. C. During the robbery several employees observed the men at close range. Two officers in a scout car almost immediately received word of the robbery and a description of the two participants. About a half mile from the scene they spotted Ricardo Gross, who fitted the description given, apprehended him, and recovered a loaded gun, $118, and a slip of paper wrapped around the money, which had the name “Keller” on it and which it was stipulated was in Keller’s handwriting. Keller was the manager of the restaurant and present at the robbery. Gross was immediately identified by Keller as one of the robbers. Cashiers of two of the cash registers which were robbed, namely, Alice Scott and Claudia Brown, testified on behalf of the Government and identified Gilliam as one of the robbers. Both women had previously identified Gilliam from a photograph, and subsequently when a lineup was held they again identified him as the robber. The cashier, at another of the cash registers which was robbed, at the lineup identified someone other than Gilliam. All Government witnesses identified Gross as the other robber.

A defense of alibi was presented. The first witness called was Gross, who admitted that he committed the robbery and stated that appellant was not the other robber. On cross-examination Gross, when asked to name the other robber, claimed his Fifth Amendment privilege against self-incrimination. On being directed to answer, the record discloses some difficulty on his part in remembering the name, and other matters were developed which a jury could consider in determining the weight to be given his testimony. Gilliam’s fiancee, a Miss Thomas, and a cousin, Sarah Rush, also testified in effect that they and Gilliam were at the Rush house at the time of the robbery as fixed by the Government witnesses. Gilliam also took the stand stating that he was at the Rush house at the time of the robbery.

Without repeating the alibi evidence, and its inconsistencies, it is sufficient to say that a jury could within reason have disbelieved the alibi. On the other hand, alibi is a jury question and some jurors conceivably could believe appellant and his witnesses.

During the examination of Gross the trial judge called counsel to the bench and stated: “I got the impression from somebody that this man is seared to death, and that his family has been threatened by Gilliam.” (T. 102) There was discussion at the bench as to threats made by telephone to Gross’ wife, who was in court. A statement was made as to her position and as to the claimed threats.

At the close of appellant’s case, the trial judge inquired as to the whereabouts of Mrs. Gross. The prosecutor replied that she was present in court against her will, but not under subpoena. The court then advised the prosecutor that he might call her as a hostile witness, which was done. She was first examined out of the presence of the jury. Later, in the presence of the jury she admitted her voluntary presence in court and stated that she was there under extreme pressure. At this point the prosecutor requested that he be allowed to treat her as a hostile witness and the request was granted.

Mrs. Gross was asked whether she had told a Detective Groat that she had seen her husband with the defendant Gilliam late in the afternoon of January 9, 1970, which she denied (T. 191). (The robbery was January 9, 1971.) She admitted she had seen them together at 1:00 p. m. but denied she said that to Detective Groat.

She was then asked: “Directing your attention now to the day after, January 10, 1971, did you receive any phone calls?” and answered: “Yes I did.” When asked about the number, she stated: “Pour, to be exact.” She stated that she didn’t know who they were from, that the person didn’t identify himself and that she had no idea who he was.

A written statement was then marked as the Government’s Exhibit No. 8 and shown to her. She identified her signature at the bottom. It was offered and received in evidence over defendant’s objection and thereupon read to the jury. In it she referred to a telephone call from an unknown man and then about ten minutes later to a phone call from the defendant who, among other things, said: “I am going to kill you .” She stated she had signed the statement but had not read it. The purpose of signing it was that she was told that it would help her husband.

Detective Groat was then called as a witness. Objection was made that he would be impeaching Mrs. Gross and that absent a claim of surprise such impeachment was improper. The court overruled the objection, the prosecutor stating that he was not relying on surprise.

Groat’s testimony was that Mrs. Gross had told him that her husband had been with Gilliam the afternoon of January 9th, the day of the robbery. He also testified as to what she told him as to the threatening phone calls, and that the statement was an accurate report of what she had told him.

It is the claim of appellant that under section 14-102 of the District of Columbia Code the admission of the written statement and evidence concerning it was improper impeachment. This statute reads in part:

“When the court is satisfied that the party producing a witness has been taken by surprise by the testimony of the witness, it may allow the party to prove, for the purpose only of affecting the credibility of the witness, that the witness had made to the party or to his attorney statements substantially variant from his sworn testimony about material facts in the cause.”

It is the Government’s claim that it did not rely on surprise and that section 14-102 does not apply. It rather claims that Mrs. Gross was declared a hostile witness by the trial court and that she was subject to impeachment on that basis.

We find it unnecessary to respond to the appellant’s first contention that the statement and evidence concerning it were improperly admitted. Assuming arguendo, that the statement was properly admitted, despite the absence of surprise by the prosecutor, since the witness was hostile, nevertheless, the trial court committed reversible error under the facts of this ease by failing to give an immediate cautionary instruction regarding the limited purpose for which the evidence could be used.

This is not a case where in his charge to the jury the court told the jury of the limited use of the evidence. Had he done so the harmless error argument would have greater weight. This is not a ease where the statement was used only for impeachment. Here the prosecutor argued that the matters in the statement revealed a consciousness of guilt of appellant and should be taken as fact.

It is the well settled rule in this circuit that a prior inconsistent statement used to impeach a witness is admissible solely to affect credibility of the witness and is not to be considered as support for the truth of its contents. D.C.Code § 14-102 (1967); Jones v. United States, 128 U.S.App.D.C. 36, 385 F.2d 296 (1967); Coleman v. United States, 125 U.S.App.D.C. 246, 371 F.2d 343 (1966); Byrd v. United States, 119 U.S.App.D.C. 360, 342 F.2d 939 (1965); Bartley v. United States, 115 U.S.App. D.C. 316, 319 F.2d 717 (1963) ; Byrd v. District of Columbia, 43 A.2d 46 (D.C. Mun.App.1945).

This is also the rule when a witness is impeached because he has been determined to be hostile. United States v. Johnson, 427 F.2d 957 (5th Cir. 1970); Lerma v. United States, 387 F.2d 187 (8th Cir. 1968); Goings v. United States, 377 F.2d 753 (8th Cir. 1967); Brooks v. United States, 309 F.2d 580 (10th Cir. 1962); Tripp v. United States, 295 F.2d 418 (10th Cir. 1961). In Brooks v. United States, supra, at 582 the court stated:

“As a general proposition, the testimony of a witness, after a proper foundation has been laid, may be impeached by showing former declarations, statements, or testimony which are contradictory or inconsistent with the answers given at a trial. The purpose of the impeachment is to discredit the witness, not to establish the existence of the fact in dispute. There is little conflict in the rule that prior statements of a witness who is not a party to an action, and whose statements are not binding as admissions, are admissible only to impeach or discredit the witness, and are not competent substantive evidence of the facts to which the former statements relate. This rule applies in instances when the court, in its discretion, permits a party to impeach its own witness who is shown to be recalcitrant and hostile.”

Thus it is clear that the evidence regarding the prior statement of Mrs. Gross could be admitted only to impeach her testimony at trial. However, as above noted, the trial court did not give any cautionary instruction relating to the limited purpose for which the evidence could be considered either at the time the evidence was admitted or in its charge to the jury.

The law in this circuit is well settled that under section 14-102 the trial court is required to give, sua sponte, a cautionary instruction and that except in cases of an explicit waiver by defense counsel, failure to do so constitutes reversible error. Jones v. United States, 128 U.S.App.D.C. 36, 385 F.2d 296 (1967); Coleman v. United States, 125 U.S.App.D.C. 246, 371 F.2d 343 (1966); Bartley v. United States, 115 U.S.App.D.C. 316, 319 F.2d 717 (1963).

The Government asserts that these cases are inapplicable here since they all arose under section 14-102, where the prosecutor claimed surprise and in this case the statements were admitted because the witness was hostile. However, even if we were to accept the Government’s argument, the trial court committed reversible error on the basis of United States v. McClain, 142 U.S.App.D.C. 213, 440 F.2d 241 (1971).

In McClain the defendant was charged with second degree murder for pushing his wife off a porch causing injuries which resulted in her death. The defendant was convicted of manslaughter but the conviction was reversed for admitting, without a cautionary instruction, evidence of a prior act of violence committed by the defendant against his wife. The prosecuting attorney, for the avowed purpose of proving malice, attempted to elicit testimony from the defendant’s daughter that prior to the homicide defendant had struck his wife with a chair causing injuries requiring medical attention. The court held that the trial court should have instructed the jury that the chair incident could be considered only on the issue of malice and after they had ascertained that the defendant had in fact pushed his wife over the porch. The court noted that:

“Whenever prosecution evidence is introduced which is admissible only for a limited purpose, the defendant is entitled to instructions which inform the jury of the proper use which may be made of that evidence. And the failure of defense counsel to request such an instruction does not automatically bar this court from reaching the error if the instruction is not given.” Id. at 245.

The court in McClain, as we do in the instant case, held that there had been no explicit waiver of an instruction and concluded its opinion by saying:

“In addition, we find the problem raised by this case indistinguishable from Jones v. United States, 128 U.S. App.D.C. 36, 385 F.2d 296 (1967), in which this court held that when a party seeks to impeach any witness by a prior inconsistent statement, then it is plain error not to give an immediate instruction limiting the effect of the prior statement, unless the party explicitly waives the instruction. We would hold that whenever evidence is admitted only for a limited purpose, it is plain error, in the absence of manifest waiver, to omit an immediate cautioning instruction. The danger of prejudicial effect from such evidence is so great that only an immediate and contemporaneous instruction can be considered sufficient to protect defendants. As long as we continue to have rules of evidence which admit testimony for some purposes but not for others, we must guard against its misuse by the jury.” Id. at 246.

The Government attempts to distinguish McClain by citing a number of cases which it claims limits the McClain rationale. However, we find them inappropriate and that the basic rationale of McClain controls here. In the instant case the evidence admitted was highly prejudicial and inflammatory concerning alleged threats made by the defendant against the witness. The error in this case was compounded when the Government was allowed to argue substantively that the alleged threats by the defendant showed a consciousness of guilt on his part. The Government argues that any substantive reference by the prosecutor to the prior statement of Mrs. Gross must have been harmless, citing Kot-teakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946). However, the closing argument cannot be read in isolation but must be viewed in connection with the failure to give the necessary cautionary instruction. Seen in this light, the following language from Kotteakos is appropriate:

“If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand * * *. But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.” Id. at 764-765, 66 S.Ct. at 1248.

Notwithstanding the arguable inconsistencies in the alibi testimony and the positive identification of appellant by two of the three cashiers who were robbed, we cannot say in view of the prosecutor’s use of the statement as substantive evidence, that substantial rights of the appellant were not violated. If he is clearly guilty, as the Government claims, another jury, after a fair trial, will so conclude.

We reverse the conviction appealed from and remand the case for a new trial.

Reversed and remanded.

      . Troublefield v. United States, 125 U.S.App.D.C. 339, 372 F.2d 912 (1966).

      . United States v. Fench, 152 U.S.App.D.C. 325, 470 F.2d 1234 (1972) ; United States v. Thomas, 148 U.S.App.D.C. 148, 459 F.2d 1172 (1972) ; United States v. Mizzell, 146 U.S.App.D.C. 399, 452 F.2d 1328 (1971) ; United States v. Bobbitt, 146 U.S.App.D.C. 224, 450 F.2d 685 (1971).


author: HILL, Circuit Judge.

text:
    Jim V. FISHER, Plaintiff-Appellant, v. The CIVIL SERVICE COMMISSION OF SALT LAKE CITY, UTAH, etc., et al., Defendants-Appellees.
    No. 73-1041.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Jan. 11,1973.
    Decided Sept. 10, 1973.
    A. Wally Sandack, Salt Lake City, Utah, for plaintiff-appellant.
    John F. Piercey, Salt Lake City, Utah, for defendants-appellees.
    Before HILL, SETH and HOLLOWAY, Circuit Judges.
   HILL, Circuit Judge.

This is an appeal from the final order of dismissal with prejudice entered against appellant in his suit in the United States District Court of Utah on November 15, 1972. That action sought declaratory and injunctive relief claiming that appellees deprived appellant of his constitutional rights by an illegal discharge. The sole issue to be determined is whether the court erred in dismissing the action on the ground that the appellant had previously presented and litigated his constitutional claims in the Utah state courts and thereby elected to forego his right to return to the federal district court.

The record establishes that on March 31, 1970, Fisher was discharged from his position with the Salt Lake City Fire Department on the basis of a recommendation by the Salt Lake City Civil Service Commission that he be disciplined for violations of the Commission Rules and Regulations. Immediately thereupon, appellant filed an administrative appeal from the order of discharge with the Commission, but before the Commission acted on that appeal, appellant filed an action in the United States District Court for declaratory and in-junctive relief. The federal court abstained on grounds that Fisher had not exhausted his state remedy and returned him to state court by dismissing the case without prejudice.

Thereafter, appellant pressed his appeal before the Commission, which upheld appellant’s discharge; that ruling was upheld by the Third Judicial District Court of the state and by the Utah State Supreme Court.

Appellant then filed the complaint in the instant case in the United States District Court. In that complaint, Fisher denied violation of any ordinance, rule or regulation; denied that there was any basis in fact or law supporting his discharge; and asserted the unconstitutionality of the ordinance and rules and regulations under which he was terminated. Appellees filed a Motion to Dismiss which the court granted on the basis that appellant freely and without reservation presented his federal claims in the state courts and thus had elected to litigate his claims there, and to fore-go his right to return to the federal courts.

As indicated by the trial court, 353 F.Supp. 61, in its ruling on the Motion to Dismiss, this case is controlled by the rule outlined in England v. Louisiana Medical Examiners. In that case the United States Supreme Court held that if following abstention by a federal district court for the purpose of obtaining a state court construction, the litigant freely and without reservation submits his federal claim for decision by the state court, he has elected to forego his right to return to federal district court.

In that case the Court defined abstention as a judge-fashioned vehicle for according appropriate deference to the respective competence of the state and federal court systems, and recognized that the state courts are the final expositors of state law and as such should be given an opportunity to decide questions of local law before federal jurisdiction of constitutional claims is invoked. Beyond this power, however, it must also be noted that state courts of general jurisdiction are competent to rule on federal constitutional claims. Thus if presented with both local and federal claims, the state courts can enter binding judgments which are subject to appeal to the United States Supreme Court.

In England the Court recognized that in the interest of a reduction in the length and cost of litigation and to reduce potential frictions between the state and federal judiciaries, litigants returned to state court by abstention should be allowed to elect that forum as the court they desire to rule on all the issues presented by their cases. However, such an election must be the subject of strict rules else litigants who fail in state courts later deny that they made such an election and return to the federal courts. The Court held that it could see “no reason why a party, after unreservedly litigating his federal claims in the state courts although not required to do so, should be allowed to ignore the adverse state decision and start all over again in the District Court.”

Appellant’s conduct in this case, i.e., briefing and submitting to the state courts of Utah all of the constitutional issues now urged upon the federal court, clearly falls within the operation of England. Though Fisher claims that he was required to litigate his federal claims before the state courts, England holds that to obey the mandate of Government Employees v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894 (1957), appellant needed only to inform the state courts what his federal claims were so that the state statute could be construed in light of those claims. England then holds that a party will be denied his right to return to district court if it clearly appears that he voluntarily did more than Windsor requires and fully litigates his federal claims in state court. If he desired to more fully argue these claims before the state court and yet preserve his right to return to federal court for a final determination of these issues, England required that Fisher make a reservation on the state court record to the disposition of the entire case by the state courts. Failing that, we must hold that the federal court lacked jurisdiction to hear the present complaint and was correct in dismissing it.

Appellant advances several other arguments to contend the rule of England should not be applied to this complaint, none of which is persuasive.

First, Fisher contends that this case can be distinguished from England in that he does not seek to convene a three-judge court to enjoin the operation of a state statute but merely seeks to enforce his civil rights. Such is not a valid distinction. England controls all cases in which a party attempts to invoke federal jurisdiction on constitutional claims and is returned to state court by abstention. Regardless of his exact claim or particular approach in procedure, if such a party returns to state court and seeks and obtains a complete disposition of his case, the England rule makes his election irreversible. Appellant’s constitutional claims have been adjudicated and his right to return to federal court forfeited.

Next, appellant contends that the Utah state proceedings constitute only a “bare adjudication” of his federal claims and that such a superficial review is not a bar to his return to federal court. Windsor does hold that bare adjudications of federal claims do not prevent subsequent reconsideration by federal courts; however, Windsor and England establish bare adjudications to be those in which the state court is not even presented with the federal claims to allow their consideration when interpreting a state statute. This is not the case here. Fisher fully presented his federal claims to the Utah courts. The fact that the state court opinion deals with these claims summarily does not transform these holdings into a “bare adjudication.”

Lastly, Fisher argues that his right to return to federal court was preserved by statements in the record made during the court’s consideration of the question of abstention. This record does not fulfill the strict rule of England as it requires a reservation in the record of the state proceedings. This requirement recognizes that an election of this type is not final until action commences in the state court. Additionally, statements by the appellees are not sufficient to control the election by Fisher. It was appellant’s election to forego his return to federal court, and statements by ap-pellees do not affect those rights in this factual setting.

The dismissal by the trial court is affirmed.

      . Fisher v. Civil Serv. Comm’n, 28 Utah 2d 172, 499 P.2d 854 (1972).

      . 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964).

      . Ibid. 375 U.S. at 419, 84 S.Ct. at 466.

      . Ibid. 375 U.S. at 420, 84 S.Ct. 461.

      . Ibid. 375 U.S. at 421, 422, 84 S.Ct. 461.

      . Ibid. 375 U.S. at 421, 84 S.Ct. 461.