author: McGOWAN, Circuit Judge:

text:
    The NETWORK PROJECT, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, GTE Satellite Corp., RCA Global Communications, Inc., and RCA Alaska Communications, Inc., National Satellite Service Inc., American Satellite Corp., CML Satellite Corp., and Corporation for Public Broadcasting, Intervenors.
    No. 73-2050.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 6, 1974.
    Decided April 18, 1975.

      Morton I. Hamburg and Peter Weiss, New York City, of the bar of the Court of New York pro hac vice by special leave of court, for appellant.
    Joseph Volpe, III, Counsel, F. C. C., with whom Daniel R. Ohlbaum, Acting Gen. Counsel, and Joseph A. Marino, Associate Gen. Counsel, F. C. C., were on the brief, for appellee. John W. Pettit, Gen. Counsel, F. C. C., at the time the record was filed and Ashton R. Hardy, Gen. Counsel, F. C. C., also entered appearances for appellee.
    Alan Y. Naftalin, Washington, D. C., with whom Herbert D. Miller, Jr., Washington, D. C., was on the brief, for intervenor s RCA Global Communications, Inc., and RCA Alaska Communications, Inc.
    David A. Irwin, Washington, D. C., was on the brief for intervenor American Satellite Corp.
    Joseph M. Kittner, Edward P. Taptich and Norman P. Leventhal, Washington, D. C., entered appearances for intervenor GTE Satellite Corp.
    Ben C. Fisher and Grover C. Cooper, Washington, D. C., entered appearances for intervenor National Satellite Services, Inc.
    J. Laurent Scharff and W. Theodore Pierson, Jr., Washington, D. C., entered appearances for intervenor CML Satellite Corp.
    James L. McHugh, Jr., Washington, D. C., entered an appearance for intervenor Corp. for Public Broadcasting.
    Before J. EDWARD LUMBARD, Senior Circuit Judge for the Second Circuit, and McGOWAN and TAMM, Circuit Judges.
    Opinion for the Court filed by Circuit Judge McGOWAN.

       Sitting by designation pursuant to Title 28, U.S.Code Section 294(d).

   McGOWAN, Circuit Judge:

Petitioner, The Network Project, is an unincorporated association devoted to promoting what it considers to be sound principles relating to the regulation or non-regulation of communications systems. It claims standing, unchallenged here, as a past and potential user of communications services. Its petition seeks review under 47 U.S.C. § 402(b) of three orders of the Federal Communications Commission granting applications for authority to construct and operate domestic satellite facilities. RCA Global Communications, Inc./RCA Alaska Communications, Inc., 42 FCC 2d 774 (1973); American Satellite Corp., 43 FCC 2d 348 (1973); Hughes Aircraft Co./National Satellite Services, Inc., 43 FCC 2d 1141 (1973).

Petitioner asserts that the Commission failed to consider adequately whether these grants of authority would (1) serve “the public interest, convenience, or necessity,” 47 U.S.C. § 307(a), (2) protect adequately First Amendment interests, and (3) permit violations of the antitrust laws or policies of the United States.

We affirm the Commission’s orders in the case of RCA and American Satellite. For reasons hereinafter appearing, we defer action on the order granting authority to Hughes/NSS.

I

The orders under review are one step in a process of development of a domestic satellite system that extends a number of years into the past and that will, by the FCC’s own admission, require supervision and further authorization decisions in the future. In 1966, the Commission issued a Notice of Inquiry, 31 Fed.Reg. 3507 (1966), inviting comments on whether it could authorize “non-governmental entities to construct and operate communications satellite facilities for the purpose of meeting their private or specialized domestic communications requirements,” and, if so, whether as a matter of policy it should grant such authorizations. The Commission received responses on both the legal and the policy issues, and also received suggestions as to appropriate satellite systems.

Recognizing that the inquiry had to be broader than first anticipated, the Commission issued a Supplemental Notice of Inquiry, 31 Fed.Reg. 13763 (1966), requesting a description of any plans for providing common carrier services by means of domestic satellite; comments on whether, as a matter of law, there are any restrictions on the Commission’s power to authorize common carrier satellite services; and, assuming legal authority, comments on whether as a matter of policy the Commission should grant such authorizations, and, if so, whether to one or to more than one carrier. In response to this Supplemental Notice, the Commission received proposals from the American Broadcasting Company, American Telephone & Telegraph Company, Comsat, and the Ford Foundation; and comments from the General Electric Company.

On March 20, 1970, the Commission issued a First Report and Order. 22 FCC 2d 86 (1970). In light of all of the suggestions and comments, the Commission concluded that (1) it could legally authorize non-governmental entities to construct and operate communications satellites for domestic use, (2) satellites were destined to play an important role in the domestic communications field, and (3) as a matter of policy because considerable leadtime is necessary for implementation of a program, the authorization process should proceed “as promptly as possible, consistent with the public interest. . . . ” 22 FCC 2d at 90.

The Commission considered proposals for a number of different systems, id. at 90-93, but refused to delineate in advance what type of system or systems should be authorized because it was “unable to determine on the basis of the information. . . before [it], whether domestic communication satellite opportunities would be more fully and effectively developed through one or more multipurpose systems, specialized systems, a combination of both, or through an essentially ‘open entry’ policy.” Id. at 93. The Commission rejected the pilot or demonstration program approach because it would be “preferable to permit potential applicants to take the initiative in submitting concrete system proposals for the Commission’s consideration,” id., and concluded by inviting applications from all parties interested in any type of satellite system. The Commission specifically noted that a grant of authority was dependent on a statutory finding that such grant would be in the “public interest,” and warned the parties that the opportunity to file and the making of the expenditures involved in filing “do not in any way indicate that the application will be granted in whole or in part.” Id. at 94.

In addition to technical qualifications, the applicants were directed to indicate the volume and kinds of services to be provided, and the areas to be served, id. at 98; and the public interest considerations supportive of a grant. Id. at 100. Specific “public interest” questions were posed by the Commission, including whether a system would be capable of providing service to Hawaii and Alaska; and whether and on what terms facilities would be available (1) to non-commercial, educational networks (including the possibility of funding educational programming from satellite profits), and (2) to meet the data and computer needs of educational institutions. The Commission received eight separate applications for satellite systems, and five entities submitted applications for earth stations.

On March 17, 1972, the Commission issued a Proposed Second Report and Order prepared by the staff,-34 FCC 2d 1 (1972), and requested interested parties to submit comments and to participate in oral argument, with particular emphasis on whether

(a) The Commission should adopt a policy of limited open entry as proposed by the staff or, in the alternative, a policy of unrestricted entry.
(b) The Commission should require Comsat to elect between owning and operating a space segment dedicated to the use of A. T. & T., or owning and operating satellite facilities for the purpose of furnishing services to persons other than A. T. & T.
(c) A. T. & T. should be limited in its use of satellite facilities to the furnishing of its noncompetitive services, i. e., message toll telephone and wide area telephone services.
(d) The Commission as a matter of policy should require licensees of satellite facilities to provide free service to educational entities and, if so, on what basis of eligibility; or whether, as proposed by the staff, the provision of free or reduced rate services to such entities should be left to future rate-making proceedings in accordance with the applicable provisions of the Communications Act or to the initiative of the licensees choosing voluntarily to provide such free or reduced rate service.

34 FCC 2d at 7-8.

Petitioner’s involvement in these proceedings first began with an appearance at the oral argument. The only issue there raised by it consisted of an objection to the fact that the Commission was “leaving the ownership and management of a domestic satellite system in the hands of private industry.” (Tr. 377, J.A. 311). When asked to suggest an alternative, however, petitioner’s representative admitted that he was “not really prepared to make any suggestions to the Commission.” (Tr. 386, J.A. 315).

On June 16, 1972, the Commission issued its Second Report and Order, 35 FCC 2d 844 (1972). The Commission summarized its objectives as follows:

(a) to maximize the opportunities for the early acquisition of technical, operational, and marketing data and experience in the use of this technology as a new communications resource for all types of services;
(b) to afford a reasonable opportunity for multiple entities to demonstrate how any operational and economic characteristics peculiar to the satellite technology can be used to provide existing and new specialized services more economially and efficiently than can be done by terrestrial facilities;
(c) to facilitate the efficient development of this new resource by removing or neutralizing existing institutional restraints or inhibitions; and
(d) to retain leeway and flexibility in our policy making with respect to the use of satellite technology for domestic communications so as to make such adjustments therein as future experience and circumstances may dictate.

35 FCC 2d at 846-847.

The Commission elaborated on these objectives and its reasons for them. It determined that an “open entry” .policy would best serve the public interest, providing that such entry be subject to certain conditions, set forth in the Second Report. The Commission concluded its Second Report by inviting the several applicants to notify the Commission whether they intended to pursue their pending system applications, in whole or in part, with such modifications as required to meet the conditions imposed by the Report, or whether they desired more time for the purpose of reframing their proposals consistent with the Report.

Six parties, including petitioner, filed petitions for reconsideration or clarification of the Second Report and Order. Petitioner attacked the Commission’s multiple-entry policy, arguing that it did not take into account the types of services to be offered, or whether those services would be distributed in a “fair, efficient, and equitable” manner as required by 47 U.S.C. § 307(b). It suggested a non-profit corporation to oversee domestic satellite development and to maintain public control over the use of satellites. It also asserted that certain of the proposals would create violations of the antitrust laws, and that the First Amendment required greater public access to the Hughes CATV distribution system. Finally, petitioner requested the Commission to consider various possible environmental problems that might be associated with a satellite communications system.

The Commission ruled favorably to petitioner on the environmental issue, initiating a separate rule making proceeding to deal specifically with that issue. 38 FCC 2d 665, 703 (1972). As to the question of access by public broadcasting and educational institutions, the Commission stated that “it may well be premature to expect applicants, several years in advance of tfieir operational date, to have sufficient cost and other information available to set forth their rate proposals with specificity.” Id. at 700. It therefore reaffirmed its intent to postpone treatment of that issue until rate making proceedings. As to all other aspects of petitioner’s request for reconsideration, the Commission said that they “should be appropriately considered in connection with the processing of the applications.” Id. at 704.

As individual applications were thereafter pursued, petitioner filed petitions to deny applications by American Satellite Corporation (ASC); RCA Global Communications, Inc. (RCA Globcom) and RCA Alaska Communications, Inc. (RCA Alascom); and Hughes Aircraft Company (Hughes), now National Satellite Services (NSS). Each petition to deny raised four objections:

(1) The Commission had failed to fulfill its responsibility to make public interest determinations regarding the types of services to be provided and the communities to be served (citing 47 U.S.C. §§ 307(a) and (b), and 309(a)).
(2) Grant of the applications would violate the Communications Act of 1934 by conferring effective ownership of the public airways on private parties (citing 47 U.S.C. § 301).
(3) Grant of the applications would violate the First Amendment rights of the public in “larger and more effective use of radio,” (citing 47 U.S.C. §§ 303(g), 307(a), and 309(a)).
(4) Grant of each application would constitute a violation of the federal antitrust statutes (and, implicitly, would violate antitrust considerations embodied in the “public interest” criteria of Sections 307(b) and 309(a). See also 47 U.S.C. § 314).

Petitioner requested in each case five types of relief, set forth in full in the margin, and also requested a public hearing on the question of whether each application was in accord with the public convenience, interest, or necessity.

II

1. The Common Carriers.

The authority given to RCA and ASC is for the provision of common carrier services. This circumstance has significance for the various objections raised by petitioner.

It is said that the Commission failed in its duty to examine whether the grants would be in the “public interest, convenience, and necessity” as required by 47 U.S.C. §§ 307(b) and 309(a). In Hawaiian Telephone Company v. F.C.C., 162 U.S.App.D.C. 229, 498 F.2d 771 (1974), we recently spoke of the process that the FCC must follow in making this determination in the case of a common carrier:

When the FCC considers an application for certification of a new line, it must start from the situation as it then exists, and must apply the statutory standard to determine whether indeed the public convenience and necessity requires more or better service. If it determines that more or additional competitive service would be in the public interest, then it can consider how much added service is necessary, and finally to whom the opportunity for providing service should be awarded. In this latter determination the Commission can balance equities and opportunities among the various carriers. The initial question for the Commission, however, must be whether the public interest requires more or different service.

Id. at 776. See also F.C.C. v. RCA Communications, Inc., 346 U.S. 86, 73 S.Ct. 998, 97 L.Ed. 1470 (1953); Washington Utilities & Transportation Commission v. F.C.C. No. 71-2919, 513 F.2d 1142 (9th Cir. Jan. 20, 1975); Bell Tel. Co. of Penn. v. F.C.C., 503 F.2d 1250, 1270-73 (3d Cir. 1974); Specialized Common Carrier Services, 29 FCC 2d 870, 902—03 (1971); Proposed Second Report and Order, 34 FCC 2d at 36-37.

As the Commission recognized, the basic touchstone for the public interest decision is “the Commission’s mandate to regulate ‘interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States a rapid, efficient, Nationwide, and world-wide wire and radio communications service with adequate facilities at reasonable charges * * * ’ (Section 1) and ‘generally encourage the larger and more effective use of radio in the public interest’ (Section 303(g)).” Proposed Second Report and Order, 34 FCC 2d at 36. Phrased differently, the Commission must determine whether the service proposed will be beneficial to the community to be served, and which among competing applicants will best provide that service. The Commission should consider whether the new service will create a net benefit to the communications system as a whole, and whether its immediate or future interaction with existing and anticipated systems will be beneficial or detrimental, see F. C. C. v. RCA Communications, Inc., supra, 346 U.S. at 93 n. 3, 73 S.Ct. 998; Washington Utilities & Transportation Commission v. F.C.C., supra, 513 F.2d at 1155-1160; Bell Telephone Co. of Penn. v. F.C.C., supra. We note that the nature of a common carrier necessarily requires a different, and often more generalized, analysis than that outlined in the Primer on Ascertainment of Community Problems by Broadcast Applicants, 27 FCC 2d 650 (1971).

Here the Commission initially determined that the development of satellite services has “the potential of making significant contributions to the nation’s domestic communications structure by providing a better means of serving certain of the existing markets and developing new markets not now being served.” Second Report and Order, 35 FCC 2d at 845. Petitioner does not contest this finding.

The Commission further adopted (at 35 FCC 2d 850) the staff’s conclusion that the public interest would best be served by:

(a) Early authorization of some domestic satellite facilities.
(b) Avoidance of comparative hearings or other protracted further proceedings at this stage.
(c) Open entry to all pending applicants (except those, if any, found to be disqualified on policy grounds), generally conditioned so as to maintain flexibility to authorize new technology, new usages, and new applicants; and with such special conditions as are deemed necessary and appropriate in the public interest.

34 FCC 2d at 31 [footnote omitted].

• The Commission recognized that the exact contours of the benefits provided were not ascertainable until after evaluation of the initial functioning of the proposed systems. 35 FCC 2d at 844-47. The authorizations are, in effect, for experimental systems in accord with the Commission’s duty to “[S]tudy new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more effective use of radio in the public interest.” 47 U.S.C. § 303(g). See also Connecticut Committee Against Pay T.V. v. F. C. C., 112 U.S.App.D.C. 248, 301 F.2d 835 (1962).

Having determined that such systems will generally be in the public interest (or at least present such potential as to make their preliminary authorization desirable) the Commission was faced with the question whether the particular applications would serve this general goal. The Commission partially resolved this question in its determination that multiple entry would provide the greatest total benefit and the most informational input for further evaluation. The Commission was most emphatic, however, in its assertion that:

Our decision in favor of multiple entry does not mean that we have opted for a policy of “unlimited or unrestricted open entry.” Our aim, as outlined above, is to afford qualified applicants a reasonable opportunity to demonstrate the public advantages in use of the satellite technology as a means of communications. But such entry cannot be “open” in the sense that it is without any restrictions or limitations. Pursuant to statute we must require showings of financial technical and other qualification and make the requisite finding that a grant of the particular proposal will serve the public interest, convenience, and necessity.

Second Report and Order, 35 FCC 2d at 850-51.

This public interest finding revolves around the questions of what locations will be served, what the service will consist of, and whether the proposed system is in some way deficient to the detriment of the public, or forecloses alternative systems that would be more beneficial.

The Commission was clearly correct, and petitioner does not assert otherwise, in concluding that the services explicitly outlined in the applications are in the public interest and that the systems are without technical deficiencies. Indeed, the Commission went beyond this finding and considered possible future needs for service:

ASC proposes to offer a broad spectrum of communications services and there is no indication that it would decline to provide any type of service desired by the public or that it would refuse to serve any area of the country desiring service once its proposed Phase II system is operational. In any event ASC as a common carrier will have statutory responsibility to provide service upon reasonable demand (See Section 201 of the Communications Act) and we have ample authority under Section 214(e) [sic] to require it to provide service. With respect to the request for a requirement for the provision of “public channels” without charge, we stated in Docket No. 16,495 that we would consider rate making for service to educational entities at free or reduced charges when the domestic satellite systems become operational; however, it is “premature to expect applicants, several years in advance of their operational date, to have sufficient cost and other information available to set forth their rate proposals with specificity.” See Memorandum Opinion and Order in Docket No. 16,495 December 22, 1972, 38 FCC 2d 665, 700.

43 FCC 2d 348, 355-56 (1973). [The above discussion was specifically made applicable to RCA in the grant of that application. 42 FCC 2d 774, 778 (1973).]

Petitioner contends, however, that the Commission in some way abridged the First Amendment rights of potential listeners or speakers by failing to assure access of all points of view to the carriers’ lines. It cites no cases, and we know of none, applying the doctrine of Red Lion Broadcasting Co., Inc. v. F. C. C., 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), to common carriers. See generally National Association of Theatre Owners v. F. C. C., 136 U.S.App. D.C. 352, 420 F.2d 194, 206 (1969), cert. denied, 397 U.S. 922, 90 S.Ct. 914, 25 L.Ed.2d 102 (1970). We need not, however, pursue that question, for the Commission recognized the desirability of, and the national policy favoring, special access terms for public broadcasting and other educational interests, see Second Report and Order, 35 FCC 2d at 856. The Commission has signified its purpose to take account of this policy in its promulgation of tariffs, and we have been given no cogent reason to believe that either its good faith or ability to carry out that purpose is lacking. The Commission’s approach therefore appears to us both reasonable and acceptable under the statute and the Constitution.

After finding that the services and market served are in the public interest, the Commission was faced with the question of whether some collateral effect of the grants would place them at odds with the public interest. In this category is the spectre of restraints upon competition. Antitrust violations in this situation may be of two kinds. The first, arising from the licensee’s also being a purchaser of the services, concerns the possibility of domination of the market through cross-subsidization. Petitioner does not, however, appear to raise such a claim. The second possible antitrust violation centers on the connection between the equipment supplier and the supplier of services, a form of vertical integration.

In considering this latter question, the Commission noted the Department of Justice’s comment:

[Vertical integration] bypasses restrictions imposed by operators whose satellite specifications are tied to a different technology, and allows suppliers— .at their risk — to test the technology which they are promoting. Forward integration in these circumstances does increase the barriers to entry for competing suppliers, but at this early stage of development, it may be the only way to encourage the development of rival technologies.

[As quoted in Proposed Second Report and Order, 34 FCC 2d at 44]. On the basis of this comment and its own evaluations, the Commission concluded:

[A]lmost a year was afforded for the submission of applications and these are the only system applicants who came forth. They have demonstrated an immediate, concrete interest in the field and they are the sole entities now available for early authorization. Moreover, each has some background or experience of a nature that might make a useful contribution toward the activation of this new, and somewhat risky, domestic technology and the expeditious realization of its potential benefits for the public. Indeed, it seems dubious whether an applicant which lacked any experience in terrestrial or satellite communications or in building communications satellites or any stake as a user, would possess the practical know-how needed to bring this sophisticated communications medium into being for domestic use in a prompt, effective and efficient manner.
# * sf: * %
Under present circumstances, we . think that the public interest would be better served by encouraging entry by different equipment manufacturers to demonstrate rival technologies, rather than barring equipment suppliers across-the-board or Hughes alone. As the Department of Justice notes, if Hughes should abuse entry by discriminating against Comsat, the Commission could take remedial action. Moreover, we will condition any authorization to an equipment supplier upon the existence or creation of a separate corporate entity to engage in the communications satellite service aspect.

Id. at 43-45. [Adopted by the Second Report and Order, 35 FCC 2d at 851, 854],

The Commission thus provided that any authorization to an equipment supplier be contingent on “the existence or creation of a separate corporate entity to engage in the satellite operations.” 35 FCC 2d at 855. It further made clear that it would closely monitor rates. Id. at 854-55. We need not speculate whether the arrangement will in fact some day so operate as to create antitrust problems. It is enough that the proposals are not per se a violation, see United States v. Paramount Pictures, Inc., 334 U.S. 131, 173-74, 68 S.Ct. 915, 92 L.Ed. 1260 (1948), and that the Commission reasonably concluded that a violation would not occur. Indeed, the Commission found that competition would be enhanced.

Petitioner asserts that an evidentiary hearing is necessary to a finding that the grants will be in the public interest. See 47 U.S.C. § 309. As this court has held, see, e. g., Stone v. F.C.C., 151 U.S.App.D.C. 145, 466 F.2d 316 (1972), a hearing is not necessary where the Commission’s decision is based on inferences and conclusions drawn from undisputed facts. Petitioner does not dispute any of the material facts on which the Commission’s conclusions rest, but asserts only that insufficient facts were adduced to make a public interest finding. In so asserting, it essentially attempts to impose the standards of the Primer on Ascertainment, 22 FCC 2d 650 (1971), on common carriers. As noted above, this is not correct. The Commission was faced with a situation in which it determined that the new and increased services would be beneficial but, unlike the usual common carrier case, was unable to define with assurance the precise scope or content of all aspects of the proposals. In this unique and experimental situation, we believe that the Commission rationally determined, on the basis of all necessary factual investigation, that the grant of the applications, subject — as the Commission recognizes- — to continuing supervision and evaluation, is in the public interest.

2. The NSS Application.

The NSS application sought authorization for two twelve-transponder satellites. GTE Satellite Corp. (GSAT) had agreed (and received authorization in the same proceeding) to lease ten of the transponders in the first satellite, plus back-up rights in ten transponders in the second satellite. NSS was to receive from this lease for seven years an annual rental of $900,000 per transponder. The remaining two transponders on the first satellite were promised by NSS to the Public Broadcasting Corp., without charge, with back-up rights to two transponders on the second satellite. NSS proposed to use the back-up capacity of the second satellite for distribution of cable television (CATV) programming to cable distributors.

The Commission recognized that the NSS service will not be in the common carrier mode. 43 FCC 2d 1141, 1158-59 (1973). And it is clear from the proposal that NSS’s interest in implementing its grant is dependent on participation of GSAT, or the existence and Commission approval of an equivalent substitute.

At oral argument the Commission represented that a proceeding before it was in process that might conceivably culminate in GTE’s being authorized to enter into an agreement with another company, which GTE apparently has come to prefer over the NSS arrangements. In response to our written inquiry to the parties following oral argument, the Commission forwarded to us the following letter from NSS received by the Commission:

This is written on behalf of our client, National Satellite Services, Inc. (NSS) and is in response to your inquiry as to the status of the NSS construction permit for three Domestic Fixed Satellite Space stations, 5-DSS-P(3)-71. As you are aware, the NSS proposal contemplated the providing of leased satellite capacity to GTE Satellite Corporation. Subsequent to receiving the necessary construction permits for the joint NSS/GTE endeavor, GTE filed applications with the Commission to modify its authorization proposing instead a joint system in conjunction with AT&T. On September 25, 1974, the Commission designated these GTE applications for hearing, stating that substantial questions were raised which prevented it from making a finding that the public interest would be served by approval of the proposal.
This change in plans by GTE and the present unsettled state of things, in connection with their proposal, has for the time being prevented NSS from proceeding further. NSS does however have much of the necessary hardware to proceed and is willing to renegotiate with GTE should events make such action possible and desirable. For the present, however, NSS has elected to maintain the status quo awaiting further FCC action which may clarify the matter.

Letter from Grover Cooper to Joseph Volpe, Dee. 4, 1974.

The Commission has informed us that the hearing on the GTE — AT&T proposal has been held and the record closed on January 8, 1975. It appears to us that, under these circumstances, it is appropriate to defer decision on the NSS application until the question of GTE’s participation is resolved.

Accordingly, the orders in 42 FCC 2d 774, and 43 FCC 2d 348 are affirmed. The issues raised in the petition to review 43 FCC 2d 1141 are reserved pending a decision by NSS whether that authorization will be pursued.

It is so ordered.

      . Petitioner asserts that it is also seeking review of the Commission’s so-called Second Report and Order. Domestic Communications-Satellite Facilities, 35 FCC 2d 844, reconsideration denied, 38 FCC 2d 665 (1972). The Project, whose petition for reconsideration of this order was denied December 22, 1972, did not, however, seek review within the 60 days required by 28 U.S.C. § 2344 and 47 U.S.C. § 402(a). Although we may properly consider the policies adopted in the Second Report and Order in the context of their application in cases reviewed under 47 U.S.C. § 402(b), see Functional Music, Inc. v. F. C. C„ 107 U.S.App.D.C. 34, 274 F.2d 543, 546-547, cert. denied, 361 U.S. 813, 80 S.Ct. 50, 4 L.Ed.2d 81 (1958)), this court presently has before it only three separate petitions to review the three individual authorization orders.

      . Prior to 1966, the nation’s experience with communications satellites was on the international level, being derived from the activities of the Communications Satellite Corporation (Comsat) established pursuant to the Communications Satellite Act of 1962, 47 U.S.C. § 701 et seq.

      . These included studies and comments by the executive branch. See 22 FCC 2d at 91-93.

      . The Commission recognized, however, that some plans might have to be extremely tentative. 22 FCC 2d at 99.

      . System Applicants: The Western Union Telegraph Co.; Hughes Aircraft Co. and four telephone operating companies of GTE Service Corp.; Western Telecommunications, Inc.; RCA Global Communications Inc. and RCA Alaska Communications, Inc.; Communications Satellite Corp. and American Telephone and Telegraph Company; Comsat; MCI Lockheed Satellite Corp.; and Fairchild Industries, Inc.

        Earth Station Applicants: Hawaiian Telephone Co.; Twin County Trans-Video, Inc.; TeleprompTer Corp.; LVO Cable, Inc., and United Video, Inc.; and Phoenix Satellite Corp.

      . RELIEF REQUESTED
      17. For the foregoing reasons, the Project petitions the Commission either to deny the . application or to. grant them subject to the following conditions:
      (a) That [the applicant] be required to provide as many satellite earth station channels as are needed for free and unrestricted public use:
      (b) That [the applicant] be required to provide as many transponders as are needed for free and unrestricted public use;
      (c) That, in the case of television and CATV transmission, the programming of said public satellite transponders and earth station channels be guaranteed reception by all television viewers and cable subscribers serviced by the . . . system;
      (d) That said public earth station channels and satellite transponders be financed as sufficiently as is necessary from the revenues generated by the commercial services offered by [the applicant]. Costs for maintenance of both the satellite and earth station facilities should be borne by [the applicant]. In addition to costs of maintenance, [the applicant] should be required to contribute fifty percent (50%) of the revenues generated by the operation of its commercial services toward the cost of the public’s use of said public channels, including the cost of program production for television and CATV users;
      (e) That access to said public channels be determined in accord with the numbers of signatures of the general public accompanying a particular proposal for usage — the more signatures, the more transponder and channel time, with a fixed outside limit on the duration of a single transmission to prevent abuse — or by some other method of access reasonably calculated to serve the public interest; that [the applicant] designate an individual or individuals to receive and process citizen signatures submitted for access to its facilities for use of said public channels; and that this individual or individuals distribute programming funds to authorized users in accordance with the said signature access procedure, or by some other method reasonably calculated to serve the public interest.

      . In their respective immediate applications, both RCA and ASC propose to lease transponder capacity from Telsat Canada. RCA proposes earth stations near New York, Los Angeles, San Francisco, Juneau, and Anchorage. ASC proposes earth stations in New York, Chicago, Dallas, and Los Angeles. The specific common carrier services to be provided are described at 42 FCC 2d 774, 775 (RCA) and 43 FCC 2d 348, 349 (ASC) with, in each case, the possibility that further services that appear feasible and desirable will be added. Both RCA and ASC have plans, subject to Commission approval, to launch and operate satellites to increase and improve the services proposed in the instant applications.

      . Since any violation of the First Amendment or the antitrust laws would constitute a violation of the standards of Sections 307(b) and 309(a), we will treat all of the Project’s objections under the general rubric of “public interest.”

      . Indeed, the Primer itself recognizes that it is not applicable to common carriers, see 27 FCC 2d at 682.

      . Petitioner cannot be arguing that discrimination will occur between those able to pay reasonable rates, for, as the Commission recognizes, a common carrier has a statutory responsibility to provide service upon reasonable demand. 47 U.S.C. § 201.

      . Petitioner argues that the operators of the satellites will be able to claim that, given their massive investments, they should not be required to forego any of their profits (especially if those profits turn out to be marginal) for public access. We note, however, that the applicants have entered into these ventures knowing both that they are speculative and that public access is likely to be required. See 35 FCC 2d at 849-50, 859. We are therefore confident that the Commission will not be overawed by any protestations of surprise or difficulty in regard to Commission requirements of special tariff treatment for public broadcasting or educational programming.

      . Indeed, this problem was perhaps foremost in the Commission’s mind, especially with respect to the A. T. & T. and Comsat applications. See, e. g., 35 FCC 2d at 847^19.

      . We note that the Commission acted reasonably in taking cognizance of the fact that, in these special circumstances, considerable lead time is required for preparation of a system, and in determining that the public interest required avoidance of any unnecessary delay. See 34 FCC 2d 31-32, 35 FCC 2d 850.


source: Caselaw Access Project

author: LUMBARD, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America v. Sylvester J. LEWIS, Appellant.
    Nos. 74-1445, 74-1764.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 6, 1974.
    Decided Feb. 12, 1975.
    Ky. P. Ewing, Jr., Washington, D. C. (appointed by this court), for appellant.
    Jeffrey T. Demerath, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Eugene M. Propper and Charles E. Wagner, Asst. U. S. Attys., were on the brief, for appellee.

      Before J. EDWARD LOMBARD, Senior Circuit Judge for the Second Circuit, and McGOWAN and TAMM, Circuit Judges.

       Sitting by designation pursuant to Title 28 U.S.Code Section 294(d).

   LUMBARD, Circuit Judge:

Appealing from his convictions for possession of metrazine and heroin with intent to distribute and for possession of marijuana, Sylvester J. Lewis seeks a new trial on the ground that the government should not have been permitted to impeach him at trial on the basis of a statement he allegedly made to an arresting officer, because defense counsel had been led to believe by the government’s pretrial representations that it knew of no statements made by Lewis upon arrest, or at least no statements which it “intend[ed] to use against him.” We conclude, on all the circumstances of this case, that it was error for the trial judge to permit the government to introduce such evidence and that it requires reversal of the convictions and a new trial.

As a result of surveillance from inside a truck in the area of Division and Foote Streets, Northeast, on October 22, 1973, Metropolitan Police Officers saw Lewis engage in separate transactions with three persons which indicated that Lewis was selling drugs in violation of law. After the third transaction, the officers summoned police in a nearby scout car to make the arrest. As the car approached, Lewis was seen to hand a brown paper bag to one Regina Evans, and when they were arrested the bag was found to contain marijuana, ten packets of heroin, and a vial holding twenty preludin tablets. In Lewis’s right sock police found two needles and syringes.

On December 5, 1973, defense counsel Marvin Fabrikant had a pretrial conference with Eugene Propper, a government attorney. The police report (form 163), which was the focus of the meeting, gave no indication that Lewis had made any statement upon arrest. Prior to trial, defense counsel also had access to grand jury and preliminary hearing testimony, as well as a second police report (form 251), none of which indicated that defendant had made any statements to arresting officers.

On December 10, 1973, Fabrikant filed a motion to suppress all tangible evidence seized upon defendant’s arrest, on the ground that there had been no probable cause for the arrest; he also asked that any verbal or written statements made by defendant at the time of his arrest be suppressed on the ground that defendant was not sufficiently advised of his right against self-incrimination and did not knowingly or voluntarily waive that right. No pretrial hearing was held on the motion, as it was finally agreed that the court would decide the motion on the evidence given at trial. On February 1, 1974, the day originally set for trial, the government filed a three-page response in which its sole comment on the self-incrimination issue was the following footnote on page two:

“The defendant did not make any statements at the time of his arrest which the government intends to use against him.”

The three-day trial before Judge Gasch and a jury commenced on February 4, 1974. On its direct case the government introduced no evidence of any statement made by Lewis.

Lewis testified in his own defense and denied any talk or transaction regarding drugs. He said that the bag, in which police had found drugs, did not belong to him. He maintained that it had been lying abandoned in the street when Regina Evans pointed it out to him and asked him to hand it to her, which he did. He said that he was holding the syringes and needles for a friend. Finally, although admitting that in 1972 he had been addicted to narcotics, he maintained that at the time of his arrest, on October 22, 1973, he was not addicted.

On cross-examination Assistant United States Attorney Charles Wagner asked Lewis:

“Now at the time you were arrested, didn’t you tell the police officer that you used narcotics and that you shot in your ankle?”

Defense counsel immediately objected, and when the objection was overruled, moved for a mistrial, on the ground that the government had indicated in its response to the suppression motion that no Miranda statements would be used against the defendant. The government, while admitting that it knew of Lewis’s statement by the time it filed its response to the suppression motion, argued that the footnote accurately reflected its intention not to use Lewis’s statement in its initial presentation, but to save it for rebuttal if any. It also argued that the statement was admissible to impeach Lewis under Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), even assuming Miranda warnings had not been given. In Harris, the Supreme Court limited the scope of the exclusionary rule with regard to statements obtained in violation of Miranda and held that a defendant who takes the stand may be confronted with such statements, even though the exclusionary rule would bar the government from offering them as part of its main case.

The trial court denied the motion for a mistrial, holding the statement admissible under Harris. When defense counsel shortly thereafter renewed his argument that he had been misled by the government’s footnote, the trial judge stated, “I don’t know that it is misleading if you read Harris.”

Following Lewis’s denial of the statement attributed to him, he was asked to lower his socks and to display his ankles, which had marks on them, to the jury. In rebuttal, over objection, the government then recalled the arresting officer, Thomas Burke, who testified that he had seen marks on Lewis’s ankle when he had taken the needles and syringes from Lewis’s sock. Burke stated that Lewis, having been advised of his rights, had later said that he had the abscesses because he fired heroin and “shot-up” in his ankles and legs.

After both sides had rested, Fabrikant again asked for a mistrial on the ground that he had been misled. He referred not only to the government’s written representation, but to his notes of the pretrial conference with Propper. He also stated that the grand jury and preliminary hearing testimony, as well as the second police report, had contributed to his belief that the government knew of no relevant statements made by Lewis at the time of his. arrest. Fabrikant argued that the fact that he was misled affected his advice to his client whether to take the stand. Assistant United States Attorney Wagner denied that any misrepresentation had been made. Even if there had been a misunderstanding with respect to whether the government had evidence of any relevant statement, he maintained that any error was harmless since the statement in question was not discoverable under Rule 16(a)(1) of the Federal Rules of Criminal Procedure as its substance had never been written down or recorded. The trial court, without additional comment, reaffirmed its earlier ruling.

It is of the utmost importance that the government respond accurately and unambiguously to defense counsel’s inquiries and motions relating to statements, both written and oral, made by a defendant to the authorities. The government’s answer to the defense motion to suppress, that “[t]he defendant did not make any statements at the time of his arrest which the government intends to use against him”, was an equivocation. Taken together with the pretrial conference between Fabrikant and Propper, as well as with the grand jury testimony, the preliminary hearing testimony, and a second police report — none of which indicated any statement by Lewis, — it was only natural and reasonable that Fabrikant would construe the government response to mean that no such statement would be used at any time during the trial.

Under all the circumstances the trial judge should have excluded any reference to the defendant’s oral statement, whether presented on the government’s case or brought forth in any way at a later stage of the trial.

Had Fabrikant not been misled with respect to whether Lewis had made any relevant and possibly incriminating statement upon arrest, his trial preparation and strategy might well have been different, especially as he might have been able to have the court require the government to disclose the substance of the statement. The government argues that the statement was not discoverable as the government had no recording or writing which contained even the substance of what defendant had said to Officer Burke, but we are not convinced that a trial court might not have ordered disclosure here.

Although Rule 16(a) speaks of “written or recorded statements or confessions made by the defendant,” the defendant does not have to be aware that notes are being made of what he says, and the rule has been held to authorize discovery of a known government agent’s notes of what a defendant said to him upon arrest, even though the notes were made sometime after the conversation and gave only the substance rather than the exact words of what the defendant said. There would seem to be little reason to draw a line between such a situation and the present case where the officer related information about Lewis’s statement orally to the prosecutor. In both cases the prosecutor can call the government officer to testify as to the statement. In neither case would the admission or exclusion of the evidence under Harris and Miranda turn on how the prosecution had “preserved” what defendant had said, whether in written notes or in the memory of an officer. Indeed drawing such a distinction for the purpose of determining whether information was discoverable would only encourage investigators and prosecutors who sought the advantage of surprise at trial to avoid reducing their recollections of a defendant’s statements to writing, thus frustrating the purpose of Rule 16(a).

(a) Defendant’s Statements . Upon motion of a defendant the court may order the attorney for the government to permit the defendant to inspect and copy or photograph any relevant (1) written or recorded statements or confessions made by the defendant, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government

Discovery of the government’s evidence of relevant and incriminating statements made by a defendant to police is of the utmost importance to the preparation of the defense as it must be kept in mind that given the traumatic circumstances of arrest the memory of a defendant as to exactly what occurred may well be hazy and defective. Even where a defendant’s memory is crystal clear, it is not every defendant who chooses to tell his own attorney all that he remembers.

Moreover, a principal purpose of discovery is to advise defense counsel what the defendant faces in standing trial; it permits a more accurate evaluation of the factors to be weighed in considering a disposition of the charges without trial. While we cannot know whether such disclosure would in this case have led to disposition without trial, we do know that such disclosure does result in such dispositions in many cases.

The importance of disclosure of a defendant’s statements to authorities in the preparation of his defense and in promoting a fairer and more efficient administration of the criminal justice system is now generally thought to outweigh the chance that disclosure may increase the likelihood of perjury by a defendant in those cases that go to trial. See ABA Standards, Discovery and Procedure Before Trial, §§ 1.2, 2.1(a)(ii), and commentary thereto at 34-46, 58-64 (1970); Proposed Amendments to the Federal Rules of Criminal Procedure, Rule 16(a), 416 U.S. 1005 (1974) and H.R. Doc.No.93-292, 93d Cong., 2d Sess. (1974). See also United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642, 649 & nn. 13-14 (1971); United States v. Crinsona, 416 F.2d 107, 114—15 (2d Cir. 1969), cert. denied, 397 U.S. 961, 90 S.Ct. 991, 25 L.Ed.2d 253 (1970); Loux v. United States, 389 F.2d 911 (9th Cir.), cert. denied, 393 U.S. 867,. 89 S.Ct. 151, 21 L.Ed.2d 135 (1968); United States v. Projansky, 44 F.R.D. 550 (S.D.N.Y.1968); United States v. Morrison, 43 F.R.D. 516 (N.D.Ill.1967).

We thus conclude that the language of Rule 16(a) referring to written -or recorded statements should not be read as precluding a trial judge from ordering the disclosure of the substance of a defendant’s oral, unrecorded statements made to arresting officers.

Although the government presented a strong case even without the use of the statement, we cannot say that the error was harmless or did not prejudice Lewis, as use of the statement not only impeached Lewis’s credibility in general, but undermined a significant element in his defense — namely that he had not been addicted at the time of his arrest. See United States v. Padrone, 406 F.2d 560 (2d Cir. 1969). On the retrial, however, now that the defendant knows that the government can produce evidence of the defendant’s oral statement made at the time of his arrest, the government is not restricted as to the proper use of that evidence.

To preclude such use here would impose a wholly unwarranted sanction contrary to discovery of the truth.

Reversed.

      . 21 U.S.C. § 841(a); 33 D.C.Code § 402. Lewis was sentenced to an indeterminate term' of imprisonment, not to exceed ten years, under the Narcotic Addict Rehabilitation Act, 18 U.S.C. § 4253.

      . Propper, at the pretrial meeting on December 5, 1973, was not aware of Lewis’s statement, and there is no suggestion that other government counsel on the case were aware of the statement at that time.

      . Fabrikant, referring to his notes from the meeting stated:
      “Mr. Propper did not give me the 163, he read it to me, and I had written down in substance what he told me. I asked him if there were any ID problems, and he said, ‘no’. I asked him if there were any statements, and he said, ‘no’, I asked him if there was any Brady material, and he said, ‘no’ ”.
      Fabricant also characterized the meeting as a “discovery conference”, presumably referring to local District Court Rule 2-5(a) which provides:
      “It shall be the duty of every defense counsel, whether appointed or retained, to consult with the Assistant United States Attorney assigned to the case prior to the first status call on a criminal case. At that time counsel shall attempt to obtain from the Assistant United States Attorney informal discovery as to matters which the defense would be entitled under the Federal Rules of Criminal Procedure and the applicable statutes and cases. No discovery motion shall be heard unless it states that defense counsel has sought the requested relief from the Assistant United States Attorney assigned to the case and that the Assistant United States Attorney has not complied with such request.”
      Although Assistant United States Attorney Wagner reported at trial that Propper had not regarded this as a “discovery conference,” but rather as a meeting simply to hand over a copy of the 163, the colloquy at trial strongly suggests that Fabrikant reasonably could have assumed that the government knew of no such statements at that time and that the government would inform him if it subsequently discovered that Lewis had made any statements at the time of his arrest. As local Rule 2-5(a) is intended to make the discovery process largely informal and extrajudicial, an informal request for discovery pursuant to that rule should impose a continuing duty on the prosecution, much as if a formal discovery order had been entered, see Fed.R.Crim.P. 16(g).
      The explanation for the government’s failure to inform Fabrikant appears to be that it did not believe the statement was even arguably discoverable. However, as indicated below, we cannot accept the government’s narrow interpretation of the court’s authority to compel disclosure of a defendant’s statements to authorities, and thus the defense should have been alerted that the government was withholding information which a court might have ordered disclosed. See Fleming v. United States, 135 U.S.App.D.C. 131, 417 F.2d 548, 550 (1969) (under local rule 2-5(a) the government must reveal the existence of material it withholds where there might be a legitimate dispute as to the applicability of the rules, so that defense counsel may fully utilize the right to make formal application to the court for discovery).

      . Rule 16:

      . See Advisory Comm. Note, Fed.R.Crim.P. 16 (“The defendant is not required to designate because he may not always be aware that his statements or confessions are being recorded.”).

      . E. g., United States v. Fallen, 498 F.2d 172 (8th Cir. 1974) (reh. and reh. en banc denied); United States v. Scharf, 267 F.Supp. 19 (S.D. N.Y.1967); United States v. Morrison, 43 F.R.D. 516 (N.D.Ill.1967). But see, e. g„ United States v. Elife, 43 F.R.D. 23 (S.D.N.Y.1967) (agent’s notes of defendant’s statement must be substantially verbatim and have been made fairly contemporaneously with statement in order to come within Rule 16(a)(1)).
      The rule has also been held to support disclosure of pre-arrest government tape recordings of conversations between the defendant and a third party. E. g., United States v. Crinsona, 416 F.2d 107, 114-15 (2d Cir. 1969), cert. denied, 397 U.S. 961, 90 S.Ct. 991, 25 L.Ed.2d 253 (1970).

      . Section 2. l(a)(ii) provides:
      2.1 Prosecutor’s Obligations. (a) Except as is otherwise provided as to matters not subject , to disclosure (Section 2.6) and protective orders (Section 4.4), the prosecuting attorney shall disclose to defense counsel the following material and information within his possession or control:
      ******
      (ii) any written or recorded statements and the substance of any oral statements made by the accused
      The term statements is not defined in the ABA Standards, but the Advisory Committee notes that it should be given a broad meaning “consistent with overriding purpose for granting broad pretrial discovery to the accused.” ABA Standards, Discovery and Procedure Before Trial 63 (1970).

      . Proposed amended rule 16:
      (a) Disclosure of evidence by the government.
      (1) Information subject to disclosure.
      (A) Statement of defendant. — Upon request of a defendant the government shall permit the defendant to inspect and copy or photograph: any relevant written or recorded statements made by the defendant . ; the substance of any oral statement which the government intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent
      Although the clause relating to disclosure of the substance of oral statements which the government “intends to offer in evidence” could arguably be read to refer only to the government’s case in chief, we believe it should be read more broadly to encompass relevant and incriminating statements which the government plans to withhold to use to impeach the defendant, should he testify. There is no suggestion in the Advisory Committee Note that the disclosure required here of a defendant’s statements to police is to be any narrower than that recommended in the ABA Standards, which are cited approvingly by the Committee. Moreover, here the draftsmen omitted any specific reference to the terms case in chief or direct case, although in the amendment to Rule 16(b)(1)(A) relating to disclosure by the defendant they referred expressly to material the defendant intends to “introduce as evidence in chief.”
      It should also be noted that the Advisory Committee Note to the proposed amendment to Rule 16 makes it quite clear that the Rule is to prescribe only the minimum discovery to which either party is entitled; the district court judge still has the discretion to order broader disclosure in appropriate cases..

      . It should be noted that where the statement in question is made to a government agent known to the defendant, the interests in favor of disclosure are stronger than where the identity of an informer or the security of potential government witnesses may be involved. Cf. United States v. Dorfman, 53 F.R.D. 477 (S.D.N.Y.1971).
      Moreover, in many cases all statements by a defendant to police may have to be disclosed because they are relevant to a Miranda suppression motion and a determination of the circumstances in which particular statements, which are the focus of the motion, were made. In this case, however, the government had indicated that it was not going to raise any Miranda problems at trial.

      . Cf. Advisory Comm. Note, Proposed Amendment to Rule 16 (the amended rule is not meant to limit in any way the court’s authority to order broader disclosure in appropriate cases).
      We decline to follow the suggestion in United States v. Dioguardi, 332 F.Supp. 7, 17 (S.D. N.Y.1971), that a defendant’s oral, unrecorded statement to police is not discoverable.


author: SPOTTSWOOD W. ROBINSON, III, Circuit Judge: ROBB, Circuit Judge

text:
    Mary Alice RELF, Minnie Relf and Katie Relf, by and through their next friend, Lonnie Relf, Petitioners, v. The Honorable Oliver GASCH, Judge, United States District Court for the District of Columbia, Respondent.
    No. 74-1710.
    United States Court of Appeals, District of Columbia Circuit.
    April 3, 1975.

      Henry E. Weil and Harvey A. Jacobs, Bethesda, Md., were on the petition for writ of mandamus.
    Before ROBINSON, ROBB and WILKEY, Circuit Judges.
    Opinion for the Court filed by Circuit Judge ROBINSON.
    Concurring Opinion filed by Circuit Judge ROBB.
   SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Petitioners seek a writ of mandamus directing respondent, a United States District Judge for the District of Columbia, to vacate an order transferring their civil action to the United States District Court for the Middle District of Alabama. The strong possibility that respondent lacked jurisdiction to transfer the action under 28 U.S.C. § 1404(a) necessitates reconsideration of the transfer order in light of the issues discussed in this opinion. Our disposition of the petition for mandamus provides that opportunity.

I

The petition alleges that on June 14, 1973, the three respondents, all minors, were subjected to surgical tubal sterilization in Montgomery, Alabama, without the informed consent of their parents. It further alleges that claims for damages caused by the sterilizations were unsuccessfully presented to appropriate governmental agencies. On February 4, 1974, petitioners initiated a lawsuit in the District Court for the District of Columbia against the United States and six individuals now or formerly federal employees. The dominant theme of the suit is that the sterilizations were proximately caused by the defendants’ negligent failure to provide controls for such operations and by wanton suppression of federal sterilization guidelines.

The first six counts of petitioners’ complaint undertake to state causes of action against all defendants under the Federal Tort Claims Act. Each, as well as all other counts, alleges that the individual defendants at the times material “were acting within the scope of their office and employment.” If that were so, these defendants would not be personally liable on the first six counts even if petitioners in other respects should prevail at trial. We cannot readily interpret the complaint, however, as an endeavor to assert liability against the Federal Government only. The seventh count charges a conspiracy to interfere with petitioners’ civil rights — a charge not grounded on the Federal Tort Claims Act — and we note without deciding that this count may well have been designed to advance claims against the individual defendants personally, based on a conspiracy that allegedly took place in the District of Columbia. And while the eighth count is one for negligence naming only the United States, the ninth is for negligence against all defendants generally. Additionally, the complaint, even outside the conspiracy count, is peppered with allegations, that, if proven, might support personal judgments against the individual defendants, a likely explanation for their otherwise pointless inclusion. In sum, the complaint encompasses causes of action against the Government, but perhaps in some instances also against the individual defendants personally.

The defendants moved to transfer the action to the District Court for the Middle District of Alabama pursuant to 28 U.S.C. § 1404(a). Respondent ordered the transfer, in the language of the statute, “for the convenience of parties and witnesses, in the interest of justice.” Respondent filed a memorandum stating his rationale for the order, and on the same day the petition for mandamus was presented to this court.

II

Section 1404(a) restricts the District Court’s discretion to transfer a civil action by confining the transfer to a judicial district “where it might have been brought.” This limitation, like the earlier doctrine of forum non conveniens, imposes two prerequisites to transferability. Venue must be proper in the transferee district; in addition, the defendants must be subject to the process of the federal court in the transferee district at the time the action was originally filed. Venue for petitioners’ action against the Government might have been proper in the Middle District of Alabama. But the record before us does not clearly establish that proposition for the individual defendants, for venue as to them is not proper if petitioners’ goal is personal liability. This consideration points up the need to require clarification of petitioners’ objective, by amendment of the complaint, before undertaking a ruling on transferability.

Equally importantly, the transferee court’s jurisdiction over the individual defendants is also questionable. The indications are that these defendants were not within the transferee district when the events constituting petitioners’ causes of action transpired, and as a result were beyond the reach of the process of the transferee court when petitioners’ suit was filed. Moreover, at least two of these defendants left federal service prior to institution of petitioners’ suit, increasing the likelihood that they were not amenable to service of process from that court. Neither the transfer order nor the judge’s explanatory memorandum deals with this possible lack of personal jurisdiction.

If the Middle District of Alabama is not a forum in which the original action “might have been brought,” respondent was without power to order a transfer, and mandamus would lie to rectify the error. The record in present posture is inadequate to enable sound decisions on the jurisdictional questions discussed above. They must be resolved before the propriety of a transfer can be determined, and that must be done, at least initially, in the District Court. We issue no order to respondent for we assume that, with this opinion, he will undertake an appropriate reconsideration of the transfer order. Instead, we follow our usual practice of simply transmitting our opinion to the District Court to allow further proceedings consistent therewith. So ordered.

ROBB, Circuit Judge

(concurring):

I concur in the conclusion reached by the majority. The complaint alleges that “At all times herein mentioned, the individual Defendants were regularly in the service and employ of the Defendant United States of America” and “were acting within the scope of their office and employment.” This allegation is repeated in each of the other claims. If these allegations were true, and the action had been brought in Alabama, I think all the individual defendants could have been served pursuant to 28 U.S.C. § 1391(e). However, in their Memorandum of Points and Authorities in support of their motion to transfer, counsel for the defendants state “all of the original named individual defendants have . left Government service”; and as Judge Robinson notes the defendants Dean and Ehrlichman left the federal service in 1973. The complaint was filed February 4, 1974. Since the crucial time in determining whether the action can be transferred is the time when suit is instituted, Hughes v. S. S. Santa Irene, 209 F.Supp. 440 (D.C.N.Y.1962), I conclude that the action against the defendants who left government service before the filing of suit probably could not be transferred.

      . “For the convenience of parties and witnesses in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a) (1970).

      . This presentation of claims was apparently to comply with the requirement of 28 U.S.C. § 2675 (1970).

      . Relf v. United States, Civ. No. 74-224 (D.D.C., filed Feb. 4, 1974).

      . The inclusion of the United States as a party defendant to the principal action was based on a theory of liability under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (1970). See text infra at note 6.

      . John W. Dean, III, John D. Ehrlichman, Wesley Hjornevek, Dr. Leon Cooper, Dr. George Contis and Phillip Sanchez.

      . See note 4, supra.

      . Goddard v. Redevelopment Land Agency, 109 U.S.App.D.C. 304, 306-307, 287 F.2d 343, 345-346, cert. denied, 366 U.S. 910, 81 S.Ct. 1085, 6 L.Ed.2d 235 (1961). See 28 U.S.C. § 2676 (1970).

      . 42 U.S.C. § 1985 (1970).

      . See note 1, supra.

      . See note 1, supra.

      . Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-507, 67 S.Ct. 839, 842, 91 L.Ed. 1055, 1061-1062 (1947); Foster-Milburn Co. v. Knight, 181 F.2d 949, 952-953 (2d Cir. 1950).

      . Van Dusen v. Barrack, 376 U.S. 612, 619— 620, 84 S.Ct. 805, 811, 11 L.Ed.2d 945, 951-952 (1964); Hoffman v. Blaski, 363 U.S. 335, 342-343, 80 S.Ct. 1084, 1089, 4 L.Ed.2d 1254, 1261, 1262 (1960); Illinois Scientific Devs., Inc. v. Sirica, 133 U.S.App.D.C. 249, 250, 410 F.2d 237, 238 (1968). Where a case involves more than one cause of action, venue must be proper as to each claim. Jones v. Bales, 58 F.R.D. 453, 458 (N.D.Ga.1972), aff’d, 480 F.2d 805 (5th Cir. 1973); Locke Mfg. Co. v. Sabel, 244 F.Supp. 829, 830-831 (W.D.Ky.1965); 3A J. Moore, Federal Practice ¶ 18.07 [l.-l], at 1906 (2d ed. 1974). This restriction may be undesirable where the parties and proofs for all causes of action are identical. See Laffey v. Northwest Airlines, Inc., 321 F.Supp. 1041 (D.D.C.1971). In this case, however, the parties differ by counts of the complaint, see text supra at notes 6-8, and proof of a cause of action against the individual defendants is not the same as proof of a cause of action against the United States.

      . Van Dusen v. Barrack, supra note 12, 376 U.S. at 619-620, 84 S.Ct. at 811, 11 L.Ed.2d at 951-952; Hoffman v. Blaski, supra note 12, 363 U.S. at 343, 80 S.Ct. at 1089, 4 L.Ed.2d at 1262; Foster-Milburn Co. v. Knight, supra note 11, 181 F.2d at 952; Shutte v. Armco Steel Corp., 431 F.2d 22, 24 (3d Cir. 1970), cert. denied, 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 808 (1971); Cessna Aircraft Co. v. Brown, 348 F.2d 689, 692 (10th Cir. 1965). Even if some, but not all, of the defendants are amenable to service of process of the transferee court, the case cannot be transferred under § 1404(a). Shutte v. Armco Steel Corp., supra; Ferri v. United Aircraft Corp., 357 F.Supp. 814, 816 (D.Conn.1973).

      . 28 U.S.C. §§ 1346(b), 1402(b) (1970).

      . As the complaint reveals, the gravamen of petitioners’ action is not the events in Montgomery, Alabama, but the omission of controls and the suppression of federal guidelines by federal employees in the District of Columbia. The only possible basis for venue in the Middle District of Alabama for the cause of action against the individuals is 28 U.S.C. § 1391(e) (1970). That section provides in relevant part that “[a] civil action in which each defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, . . . may, except as otherwise provided by law, be brought in any judicial district in which: ... (4) the plaintiff resides if no real property is involved in the action.” That provision obviously applies to a federal officer or employee sued in his official capacity, even though the Government is also a party defendant. Metz v. United States, 304 F.Supp. 207, 209-210 (W.D.Pa. 1969). Cf. Liberation News Service v. East-land, 426 F.2d 1379, 1382 n. 5 (2d Cir. 1970). But § 1391(e) does not come into operation when an action is brought against an officer or employee individually. Paley v. Wolk, 262 F.Supp. 640, 642-643 (N.D.Ill.1965), cert. denied, 386 U.S. 963, 87 S.Ct. 1031, 18 L.Ed.2d 112 (1967). See also note 18, infra, and accompanying text; Natural Resources Defense Council, Inc. v. TVA, 459 F.2d 255, 257 n. 3 (2d Cir. 1972). This discussion and the discussion in note 18, infra, should not be taken as a conclusion that any of the individual defendants are “officers” within the meaning of § 1391(e) or Fed.R.Civ.P. 4(d)(5).

      . See Fed.R.Civ.P. 15(a), (c).

      . See 28 U.S.C. § 1391(e) (1970), providing that the summons and complaint in a civil action wherein each defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority “shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought”; Fed. R.Civ.P. 4(d)(5), providing that service of the summons and complaint shall be made “[ujpon an officer or agency of the United States, by serving the United States and by delivering a copy of the summons and of the complaint to such officer or agency ..”

      . Like § 1391(e), see note 15, supra, Fed.R. Civ.P. 4(d)(5) applies only if a claim is stated against a federal officer in his official capacity; in actions involving a federal officer individually, the rule is not available. Mecartney v. Hoover, 151 F.2d 694 (7th Cir. 1945); Green v. Laird, 357 F.Supp. 227, 229-230 (N.D.Ill.1973); United Brick & Clay Workers v. Robinson Clay Prod. Co., 64 F.Supp. 872, 874 (N.D.Ohio 1946). Rule 4(e) is inapplicable because the Alabama long-arm statute permits out-of-state service on a nonresident only if the nonresident is doing business or performing work in the state. Ala. Code Tit. 7, § 199(1) (Supp.1973).

      . John W. Dean, III and John D. Ehrlichman, former members of the White House Staff, left federal service on April 30 and May 19, 1973, respectively. See House Comm, on the Judiciary, Impeachment of Richard M. Nixon, President of the United States, H.R.Rep.No. 1305, 93rd Cong., 2d Sess. 14-15 (1974).

      . Farrell v. Wyatt, 408 F.2d 662, 664 (2d Cir. 1969); Foster-Milbum Co. v. Knight, supra note 11, 181 F.2d at 951.

      . Starnes v. McGuire, 166 U.S.App.D.C. -, 512 F.2d 918 (1974) (en banc); Fine v. McGuire, 139 U.S.App.D.C. 341, 342-343, 433 F.2d 499, 501-502 (1970); Wiren v. Laws, 90 U.S.App.D.C. 105, 106, 194 F.2d 873, 874 (1951); A. Olinick & Sons v. Dempster Bros., Inc., 365 F.2d 439, 443 (2d Cir. 1966).

      . We have not ordered a response to the petition for this reason, and also because the issues are best resolved in the District Court where all parties to the principal litigation may better participate. See Fed.R.App.P. 21(b).

      . See note 22, supra.

      . Fine v. McGuire, supra note 21, 139 U.S. App.D.C. at 344, 433 F.2d at 502; Reed Enterprises v. Corcoran, 122 U.S.App.D.C. 387, 392, 354 F.2d 519, 524 (1965). Cf. Thornton v. Corcoran, 132 U.S.App.D.C. 232, 240, 407 F.2d 695, 703 (1969).


author: PER CURIAM:

text:
    METROPOLITAN WASHINGTON COALITION FOR CLEAN AIR et al. v. DISTRICT OF COLUMBIA et al., Appellants. METROPOLITAN WASHINGTON COALITION FOR CLEAN AIR et al., Appellants, v. DISTRICT OF COLUMBIA, a Municipal Corporation.
    Nos. 74-1482, 74-1507.
    United States Court of Appeals, District of Columbia Circuit.
    April 4, 1975.

      Gilbert Hahn, Jr., Washington, D. C., was on the pleadings for appellants. John R. Hailman, Washington, D. C., entered an appearance for appellants.
    C. Francis Murphy, Corp. Counsel, Louis P. Robbins, Principal Asst. Corp. Counsel, and John C. Salyer, Asst. Corp. Counsel, Washington, D. C., were on the pleadings for appellee.
    Before WRIGHT and LEVENTHAL, Circuit Judges.
   PER CURIAM:

Appellants, proceeding under the citizen suit provision of the Clean Air Act sued to force the closing of a municipally owned incinerator, alleging that its continued operation violated the District of Columbia’s approved implementation plan. The district court granted summary judgment for the defendant. Both parties filed appeals which were consolidated by order of this court. Appellant, Coalition, now seeks summary reversal of the lower court’s judgment. For the reasons discussed below, we grant the motion and remand the case to the district court.

(1) a schedule or timetable of compliance, emission limitation, standard of performance or emission standard, or
(2) a control or prohibition respecting a motor vehicle fuel or fuel additive, which is in effect under this chapter (including a requirement applicable by reasons of section 1857f of this title) or under an applicable implementation plan.

Pursuant to the Clean Air Act the Government of the District of Columbia filed an implementation plan with the Administrator of the Environmental Protection Agency on July 2, 1972. A provision of that plan called for the closing of all large solid waste incinerators with the exception of incinerator # 5, which was given authorization to continue operation until July 4, 1973. The implementation plan was approved by the Administrator shortly after its submission on July 2, 1972.

On May 31, 1973, the Mayor asked the City Council to amend the plan in order to eliminate the required closing of the incinerator. The Council responded on the eve of the scheduled closing of incinerator # 5 by postponing it until September 4, 1973. On that day, the Council granted a second postponement until June 30, 1974. Neither of the extensions was submitted in time to receive approval from the EPA.

Appellants filed suit against the District to enforce the implementation plan of July 2, 1972, which had set the July 4, 1973, closure date. The Coalition moved for a preliminary injunction and the District moved to dismiss. The district court consolidated the hearing on the preliminary injunction with the final determination on the merits, and granted summary judgment for the District.

I.

The district court acknowledged that “absent a valid revision of the plan or authorized postponement of the timetable, the Court is required to enforce the original timetable for Incinerator No. 5’s compliance with the District of Columbia Air Quality Implementation Plan.” It concluded, however, that the delay of the closing of the incinerator qualified as a “revision” of the plan which did not require compliance with the stringent “postponement” provision of the statute, 42 U.S.C. § 1857c-5(f) (1970), and applicable regulations, 40 C.F.R. § 51.32 (1974). The Addendum to the opinion below indicates the trial judge’s view that “the controlling question of law” involved the “availability of the ‘revision’ mechanism for adjusting an implementation plan” — a question eliciting conflicting answers from the circuit courts and presently pending before the Supreme Court. We venture no opinion on this important issue for, assuming the applicability of the revision mechanism, we find that there has been no “valid revision” of the District’s implementation plan.

The district court noted that “[a]s a revision the proposed delay has properly been submitted to the Regional Office of E.P.A. for review and approval.” However, at no time has EPA approved any of the delays endorsed by the City Council. Implicit in the lower court’s grant of summary judgment to the District was the assumption that the City Council’s adoption of the “proposed delay” alone was sufficient to effectuate the revision thereby staying the closing of the incinerator. Our analysis of the statute and regulations indicates that this assumption is erroneous and that EPA approval of a proposed revision is necessary to relax the implementation schedule.

The First Circuit, in a decision relied upon by the district court, concluded that “[rjevisions are not to be considered part of a plan until approved by the Administrator.” This conclusion has been expressly endorsed by the Eighth and Ninth Circuits and impliedly adopted by the Second Circuit. Although the revision regulations, unlike the postponement regulations, contain no express provision directing this result, the requirement of EPA approval is a necessary consequence of the limited nature of the revision exception to the more stringent postponement criteria. The Administrator’s regulations prohibit resort to the revision procedures whenever the state’s proposed deferral of any portion of the control strategy “will prevent attainment or maintenance of a national standard within the time specified in such plan.” This restriction reflects the limited scope of the Administrator’s discretion to utilize the revision mechanism to authorize individual variances. If unilateral state action served to relax its implementation schedule pending EPA approval, any state could sidestep the crucial limitations on the revision procedure and undermine the national program of air quality improvement. Under the regulations, a revision need not even be sent to EPA until 60 days after its adoption and agency review can be expected to require additional time after receipt. A requirement of EPA approval prior to effectuation of any proposed revision is thus essential to prevent critical, irreparable delays which the Administrator is not empowered to authorize under the less rigorous revision provisions or which do not meet the standards for revision.

In ruling on a motion for summary reversal, we must consider whether the movant has met his heavy burden of establishing “that his remedy is proper and that the merits of his claim so clearly warrant relief as to justify expedited action.” In this case, the movant established a prima facie case that the pertinent implementation plan, the July 2, 1972, plan, was not being adhered to by the District. Certainly when such an unrebutted showing is made, the remedy of summary reversal lies to redress an adverse judgment entered against the plaintiff.

We do not hold that the court should have granted judgment for appellants, but only that this is a live controversy which is not resolved by the City Council’s submission of proposed revisions to the EPA.

On remand the court should consider any additional factors which may have arisen during the intervening period. The fact that the District was once in violation of the Act does not necessarily mean that it cannot cure that violation short of closing down the stationary source. Appellee has called to our attention various proposals made by the EPA to permit continued operation of the incinerator. While we do not reach the question of the validity of these proposed modifications, the lower court should consider any changes that are made in determining whether there is a violation.

II.

The District, has raised three contentions in opposition to this appeal: First, that insufficient notice was given by the Coalition; Second, that the Coalition lacked standing to bring this action; and Third, that the Coalition failed to join a necessary party, the Administrator.

Under the citizen suit provision of the Act, 42 U.S.C. § 1857h-2, the Coalition was required to give sixty days notice before filing suit in order to give the administrative enforcement office an opportunity to act on the alleged violation and to allow the District voluntarily to comply with the implementation plan. Although the Coalition originally failed to provide proper notice, it cured this defect by filing a second law suit after giving notice as required by the statute to the Administrator and the District of Columbia. This notice was given by serving copies of the complaint filed in the first suit on those parties required by statute and regulation to receive such notice. The District Court consolidated the two law suits into one action and properly ruled that sufficient notice had been adven.

The standing argument presents no barrier to plaintiffs’ action. Under the Clean Air Act’s citizen suit provision, the general requirements for standing have been relaxed to permit suits by “any citizen.” In this way citizens are recruited to' serve as private attorneys-general to facilitate enforcement of the act in the face of official inaction. Appellants responded to this Congressional invitation to invoke the judicial process and assert the public interest. The question of whether there would have been standing under this complaint had the action been for private damages is not at issue. It is clear appellants had standing under the statute to represent the public.

The District’s last contention is that failure to join the Administrator resulted in the absence of a necessary party. This would be true only if it were necessary to sue the Administrator in order to force implementation of the plan. The citizen suit provision contemplates actions against the Administrator where he fails to perform a non-discretionary act. Alternatively, the citizen, after giving sixty days notice to the Administrator, can proceed directly against the violator. When the plaintiff elects this later course, the Administrator has the right to intervene in the suit, but he is not required to be a participant in such litigation and his absence does not render the action infirm.

Since the district court treated the adoption of the revisions by the Council as staying the required closure despite the absence of approval by the EPA, we must reverse the judgment that has been entered. We remand for further consideration of this case in light of our opinion.

So ordered.

      . 42 U.S.C. § 1857h — 2 (1970).

      . 42 U.S.C. § 1857c — 5 (1970).

      . Both Council actions were taken within hours of the time set for closing.

      . 42 U.S.C. § 1857h — 2(a), (f) (1970) provide for suits to enforce the timetable of compliance in an implementation plan.
      " (a) Except as provided in subsection (b) of this section, any person may commence a civil action on his own behalf—
      (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.
      The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an emission standard or limitation, or such an order, or to order the ' Administrator to perform such act or duty, as the case may be.
      (f) For purposes of this section, the term “emission standard or limitation under this chapter” means—

      . Fed.R.Civ.P. 65(a)(2).

      . Metropolitan Washington Coalition for Clean Air v. District of Columbia, 373 F.Supp. 1089 (D.D.C.1974).

      . Id. at 1092.

      . See id. at 1094-95. The postponement regulations, 40 C.F.R. § 51.32 (1974), and the revision regulations, 40 C.F.R. § 51.6 (1974), provide:

        § 51.32 Request for 1-year postponement.

      (a) Pursuant to section 110(f) of the Act, the Governor of a State may request, with respect to any stationary source or class of moving sources, a postponement for not more than 1 year of the applicability of any portion of the control strategy.
      (b) Any such request regarding sources located in an interstate region shall show that the Governor of each State in the region has been notified of such request.
      (c) Any such request shall clearly identify the source(s) and portion(s) of the control strategy which are the subject of such request and shall include information relevant to the determinations required by section 110(f) of the Act.
      (d) A public hearing will be held, before the Administrator or his designee, on any such request.
      (e) No such request shall operate to stay the applicability of the portion(s) of the control strategy covered by such request.
      (f) A State’s determination to defer the applicability of any portion(s) of the control strategy with respect to such source(s) will not necessitate a request for postponement under this section unless such deferral will prevent attainment or maintenance of a national standard within the time specified in such plan: Provided, however, That any such determination will be deemed a revision of an applicable plan under § 51.6. [36 FR 22398, Nov. 25, 1971, as amended at 38 FR 15958, June 19, 1973]

        § 51.6 Revisions.
      (a) The plan shall be revised from time to time, as may be necessary, to take account of:
      (1) Revisions of national standards.
      (2) The availability of improved or more expeditious methods of attaining such standards, such as improved technology or emission charges or taxes, or
      (3) A finding by the Administrator that the plan is substantially inadequate to attain or maintain the national standard which it implements.
      (b) The plan shall be revised within 60 days following notification by the Administrator under paragraph (a) of this section, or by such later date prescribed by the Administrator after consultation with the State.
      (c) The plan may be revised from time to time consistent with the requirements applicable to implementation plans under this part.
      (d) Any revision of any regulation or any compliance schedule pursuant to paragraph (c) of this section shall be submitted to the Administrator no later than 60 days after its adoption.
      by paragraphs (a) and (d) of this section shall be identified and described in the next semiannual report required by § 51.7.
      (f) Any revision shall be submitted only after any applicable hearing requirements of § 51.4 have been satisfied. [37 FR 22398, Nov. 25, 1971, as amended at 37 FR 26312, Dec. 9, 1972]

      . See 373 F.Supp. at 1095-96.

      . The scope of the EPA’s authority to grant extensions in implementation plan deadlines has yet to be resolved. 42 U.S.C. § 1857c-5(f) gives the Administrator the authority to permit states to postpone compliance for up to one year provided that a showing is made that the source is unable to comply despite good faith efforts, that all alternative procedures capable of reducing the impact of the source on public health have been implemented, and that continued operation of the source is essential to national security or the public health or welfare.
      When those conditions are not met, the Administrator has attempted to classify certain postponements as revisions of the underlying plan. See 40 C.F.R. § 51.32(f) (1974) (set forth in note 8 supra)-, 42 U.S.C. § 1857c-5(a)(2) & (3) (1970). Four circuits have approved the idea of revisions based on standards less rigid than the subsection (f) standards discussed .above. See Natural Resources Defense Council, Inc. v. EPA, 507 F.2d 905 (9th Cir. 1974); Natural Resources Defense Council, Inc. v. EPA, 494 F.2d 519 (2d Cir. 1974); Natural Resources Defense Council, Inc. v. EPA, 483 F.2d 690 (8th Cir. 1973); Natural Resources Defense Council, Inc. v. EPA, 478 F.2d 875 (1st Cir. 1973).
      The Fifth Circuit has taken the opposite approach and ruled that the Administrator cannot accept plans which relax the subsection (f) revision requirements. Natural Resources Defense Council, Inc. v. EPA, 489 F.2d 390, 401 (5th Cir.), cert. granted sub nom, Train v. Natural Resources Defense Council, Inc., 419 U.S. 823, 95 S.Ct. 39, 42 L.Ed.2d 46 (1974). The Supreme Court heard oral argument on January 15, 1975. 43 U.S. L.W. 3402 (January 21, 1975).

      . 373 F.Supp. at 1094.

      . See Motion of Appellants for Summary Reversal at 3 n. 2. In fact on August 5, 1974, EPA denied a proposed revision adopted by the City Council on June 25, 1974. The denial was premised on the inability of the Administrator to grant revisions applicable to the post-attainment period. The post-attainment period commences three years after the approval of the initial plan (here the period would commence in July, 1975) and the District’s proposed revision sought to delay the closing of the incinerator until June 30, 1977. See Letter from Daniel J. Snyder, III, Regional Administrator, EPA, to William McKinney, Director, District of Columbia Dept, of Environmental Services, Aug. 5, 1974. (Exhibit C to Motion of Appellants for Summary Reversal).

      . Appellants raised the need for EPA approval prior to the effectuation of a proposed revision in the district court. See Plaintiff’s Motion to Alter or Amend Judgment, Feb. 28, 1974, at 1; Points and Authorities in Support of Plaintiff’s Motion to Alter or Amend Judgment, Feb. 28, 1974, at 3-4 (citing First and Eighth Circuit cases relied upon in the district court’s opinion).
      The district court’s Addendum of March 12, 1974, denying the motion to alter or amend does not address the question of the need for EPA approval prior to implementation of the revision.

      . We do not address the question whether a revision that accelerates the compliance schedule requires EPA approval prior to taking effect.

      . Natural Resources Defense Council, Inc. v. EPA, 478 F.2d 875, 886, 887, 888 (1st Cir. 1973).

      . See Natural Resources Defense Council, Inc. v. EPA, 507 F.2d 905 (9th Cir. 1974) (The court noted that variances are “subject always to EPA approval” and emphasized that “no variance is operative without EPA approval.” “Pending final approval of the variance by the EPA, the individual source is committed to the emissions standards enumerated in the original or previously revised state plan.”); Natural Resources Defense Council, Inc. v. EPA, 494 F.2d 519 (2d Cir. 1974) (adopting the First Circuit’s approach); Natural Resources Defense Council, Inc. v. EPA, 483 F.2d 690, 693-94 (8th Cir. 1974) (adopting the First Circuit approach and the remedy outlined in the First Circuit’s opinion specifying that the state plan cannot permit the granting of any variance not first approved by the Administrator).

      . Compare 40 C.F.R. § 51.6 (1974) with 40 C.F.R. § 51.32(e) (1974). The provisions are set forth in note 8 supra.

      . See 40 C.F.R. § 51.32(f) (1974) (set forth in note 8 supra).

      . See Natural Resources Defense Council, Inc. v. EPA, 507 F.2d 905 (9th Cir. 1974); Natural Resources Defense Council, Inc. v. EPA, 478 F.2d 875, 887 (1st Cir. 1973).
      The district court appeared to recognize these limitations for it concluded that “the Administrator of E.P.A. has the authority to treat certain variances in Implementation Plans as ‘revisions’ rather than ‘postponements,’ ” noting that “the Administrator has discretion to allow variances ... as long as the Administrator has properly found that the variance will cease before the mandatory attainment date and will not defeat ultimate attainment of the applicable clean air standard.” 373 F.Supp. at 1094 (emphasis added). What the court overlooked was that here there had been no finding by the Administrator that the proposed variance could properly be treated as a revision.

      . See 40 C.F.R. § 51.6(d) (1974). In the present case the second proposed delay was submitted to EPA for approval on Sept. 4, 1973. On Jan. 11, 1974, EPA published a notice of the proposed revision seeking comments by Feb. 11, 1974. EPA did not rule on the proposal prior to June 30, 1974, the date to which the District proposed to extend the closing of the incinerator. EPA has denied the District’s third proposed delay. See note 12 supra.

      . United States v. Allen, 133 U.S.App.D.C. 84, 85, 408 F.2d 1287, 1288 (1969); See Vietnam Veterans Against War v. Morton, 164 U.S.App.D.C. 391, 394, 506 F.2d 53, 56 (1974).

      . See S.Rep.No.1196, 91st Cong., 2nd Sess. 37 (1970), U.S.Code Cong. & Admin.News 1970, p. 5356.

      . 373 F.Supp. at 1092.

      . Id

      . See S.Rep.No.1196, supra note 22, at 36-39, U.S.Code Cong. & Admin.News 1970, p. 5356.

      . We reject the district court’s conclusion that the plaintiff must allege an “injury in fact” in order to establish the requisite standing to pursue this action. 377 F.Supp. at 1092-93. As the Supreme Court has noted, “where a dispute is otherwise justiciable, the question whether the litigant is a ‘proper party to request adjudication of a particular issue’ ... is one within the power of Congress to determine.” Sierra Club v. Morton, 405 U.S. 727, 732, n. 3, 92 S.Ct. 1361, 1365, 31 L.Ed.2d 636 (1972). Here Congress has determined that “any citizen” is a proper party. The citizen suit provision of the Clean Air Act “was designed to provide a procedure permitting any citizen to bring an action directly against polluters violating the performance standards and emission restrictions imposed under the law or against the Administrator grounded on his failure to discharge his duty to enforce the statute against polluters.” Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. -, 510 F.2d 692 at 700 (1974).