author: McCREE, Circuit Judge. PHILIP PRATT, District Judge

text:
    UNITED STATES of America, Plaintiff-Appellant, v. FINLEY COAL COMPANY, a partnership and Charles Finley, an Individual, Defendants-Appellees.
    No. 72-2177.
    United States Court of Appeals, Sixth Circuit.
    Argued April 5, 1973.
    Decided March 13, 1974.

      Eugene E. Siler, Jr., U. S. Atty., Eldon L. Webb, Asst. U. S. Atty., Lexington, Ky., on brief, for plaintiff-appellant.
    Bert T. Combs, Louisville, Ky., Edward F. Prichard, Jr., Frankfort, Ky., James S. Wilson, Pineville, Ky., on brief, for defendants-appellees.
    Before McCREE, Circuit Judge, O’SULLIVAN, Senior Circuit Judge, and PRATT, District Judge.

       The Honorable Philip Pratt, Judge, U. S. District Court for the Eastern District of Michigan, sitting by designation.

   McCREE, Circuit Judge.

This appeal requires us to determine whether the Secretary of Interior’s failure to follow the formal rule-making provisions of 30 U.S.C. § 811 in promulgating regulations establishing certain mine safety standards precludes a prosecution for their violation. We hold that is does, and we affirm the order of the district court dismissing Count 7 of a pending twenty-four count indictment that charged defendants-appellees Finley Coal Company and Charles Finley with willful violations of interim mandatory safety standards established by the Federal Coal Mine Health and Safety Act of 1969, Pub.L.91-173, Dec. 30, 1969, 83 Stat. 742, 30 U.S.C. § 801 et seq., and of regulations promulgated by the Secretary of Interior thereunder, 30 C.F.R., Part 75.

Finley Coal Company operated several coal mines at Hyden, Kentucky, and Charles Finley was a partner active in the company. The indictment followed an explosion in appellees’ underground mines, in which thirty-eight miners died. Preliminary to trial, appellees challenged the indictment, contending that the regulations implementing the safety standards were invalid because the Secretary of Interior in promulgating them failed to follow the mandatory consultation procedures of 30 U.S.C. § 811. The United States concedes that the Secretary did not engage in consultations sufficient to satisfy Section 811(c) in establishing the challenged safety standards, but argues, nevertheless, that the regulations were properly promulgated pursuant to authority found in several other provisions of the Act, namely, 30 U.S.C. § 861(d) and 30 U.S.C. § 957. The district court upheld certain regulations that it determined were adopted under the specific authority of Section 861, but held invalid all other regulations. It does not appear that the district court considered whether the regulations it held invalid could be sustained under the general grant of administrative authority in Section 957. The court held that the defective rule-making, in itself, did not require dismissal of the indictment because it charged violations not only of the invalidated regulations but also of the standards established by Congress. The court concluded, however, that the government could not make a prima facie ease under Count 7 of the indictment on the basis of the statutory standards alone and, accordingly, Count 7 was dismissed. The government apparently concedes that it could not prevail on this count without the stricken regulations.

The United States brought this appeal, pursuant to 18 U.S.C. § 3731, from dismissal of Count 7 of the indictment. The sole issue presented is whether the Secretary of Interior was required to follow the provisions of 30 U.S.C. § 811 in promulgating the regulations codified in 30 C.F.R. § 75.400.

Count 7 charged willful violations of 30 U.S.C. § 864(a) and the regulations codified at 30 C.F.R. § 75.400. Section 864(a) provides:

(a) Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to accumulate in active workings, or on electric equipment therein.
The pertinent regulations provided: § 75MO-1 Definitions.
(a) The term “coal dust” means particles of coal that can pass a No. 20 sieve.
(b) The term “float coal dust” means the coal dust consisting of particles of coal that can pass a No. 200 sieve.
(c) The term “loose coal” means coal fragments larger in size than coal dust.

§ 75MO-2 Cleanup program.

A program for regular cleanup and removal of accumulations of coal and float coal dusts, loose coal, and other cumbustibles shall be established and maintained. Such program shall be available to° the Secretary or authorized representative.

We first observe the express requirement of mandatory consultation established by 30 U.S.C. § 811. The section provides in pertinent part:

(a) The Secretary shall, in accordance with the procedures set forth in this section, develop, promulgate, and revise, as may be appropriate, improved mandatory safety standards for the protection of life and the prevention of injuries in a coal mine, and shall, in accordance with the procedures set forth in this section, promulgate the mandatory health standards transmitted to him by the Secretary of Health, Education, and Welfare.
* * * * * *
(c) In the development and revision of mandatory safety standards, the Secretary shall consult with the Secretary of Health, Education, and Welfare, the Secretary of Labor, and with other interested Federal agencies, appropriate representatives of the coal mine operators and miners, other interested persons and organizations, and such advisory committees as he may appoint. Such development and revision of mandatory safety standards shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of safety protection for miners, other considerations shall be the latest available scientific data in the field, the technical feasibility of the standards, and experience gained under this and other safety statutes. (Emphasis added).

This language must be construed in light of a definitional provision of the Act, 30 U.S.C. § 802(J), which provides:

For the purpose of this chapter, the term—

* * * * * *
(l) “mandatory health or safety standard” means the interim mandatory health or safety standards established by subchapters II and III of this chapter, and the standards promulgated pursuant to subchapter I of this chapter; . . .

When Section 811(c) is read in conjunction with the definitional provision it is apparent that Section 811(c) by its terms applies not only when the Secretary develops new mandatory standards but also when the Secretary “revises” an interim mandatory safety standard.

Appellant does not now press the argument that the regulations codified in 30 C.F.R. § 75.400 can be sustained under the authority of 30 U.S.C. § 861(d), but that contention does not appear to have been wholly abandoned on appeal. Section 861(d) provides in relevant part:

(d) In any case where the provisions of sections 862 to 878, inclusive,
of this title provide that certain actions, conditions, or requirements shall be carried out as prescribed by the Secretary, or the Secretary of Health, Education, and Welfare, as appropriate, the provisions of section 553 of Title 5 shall apply unless either Secretary otherwise provides. . . .

We agree with the district court that the regulations here at issue cannot be upheld under the authority of Section 861 (d) because Section 864(a) does not provide that the Secretary may prescribe how the “certain actions, conditions, or requirements” set forth therein shall be carried out.

Appellant’s primary contention on appeal is that the regulations codified at 30 C.F.R. § 75.400 are interpretative regulations properly promulgated under the general rule-making authority of 30 U.S.C. § 957 to carry out Section 864(a), and, as such, had the effect of law. Section 957 provides: ■

The Secretary, the Secretary of Health, Education, and Welfare, and the Panel are authorized to issue such regulations as each deems appropriate to carry out any provisions of this chapter.

To be sure, the legislative history indicates that Section 957 permits “administrative regulations” needed to carry out provisions of the Act. Senate Report No. 91-411, 91st Congress, 1st Session 87 (1969); H.R.Rep.No.91-563, 91st Congress, 1st Session 618 (1969), U.S.Code Cong. & Admin.News p. 2503. But we have found no indication that Congress intended § 957 to apply in cases involving not only administrative implementing regulations but also modifications of mandatory health and safety standards. If the Secretary was engaged in the “development and revision of mandatory safety standards,” within the meaning of § 811(c), then he should have followed the specific procedure of § 811, mandated by the legislative directive to develop and revise these standards. Since specific procedures were established, the Secretary cannot rely upon the general grant of administrative rule-making authority of § 957. See Hellmich v. Hellman, 276 U.S. 233, 237, 48 S.Ct. 244, 72 L.Ed. 544 (1928).

Our examination of the Federal Coal Mine Health and Safety Act, its legislative history, and the entire record before us, indicates that appellant did revise a mandatory safety standard within the meaning of § 811, in promulgating the regulations codified at 30 C. F.R. § 75.400. This conclusion is supported, in the first instance, by the Secretary of Interior’s own characterization of his actions. The regulations published on November 20, 1970, were introduced in the following manner:

“TITLE 30 — MINERAL RESOURCES

Chapter I — Bureau of Mines Department of the Interior

Subchapter O — Coal Mine Health and Safety

PART 75 — MANDATORY SAFETY STANDARDS, UNDERGROUND COAL MINES

“Pursuant to the authority contained in paragraph (d) of section 301 of the Coal Mine Health and Safety Act of 1969 (Public Law 91-173), there was published in the Federal Registered (sic) for August 14, 1970 (35 F.R. 12911), a notice of proposed rulemaking setting forth proposed amendments and a new Subpart S, ‘Approved Books and Records,’ to Part 75 of Title 30, Code of Federal Regulations, regarding mandatory health and safety standards in underground coal mines.
“Interested persons were afforded a period of 30 days from the date of publication of the notice in which to submit written comments, suggestions, or objections to the proposed amendments and the proposed new Sub-part S. The period for submitting written comments, suggestions, or objections was subsequently extended to September 30, 1970, by a notice published in the Federal Register for September 5, 1970 (35 F.R. 14146). Approximately 21 associations, companies, and individuals submitted comments, suggestions, or objections. All were given careful consideration. A summary of the comments and an explanation of the actions taken with respect to them will be prepared by the Bureau of Mines and will be available 30 days from the date of this publication in the Office of the Deputy Director for Health and Safety, Room 4512, Bureau of Mines, Department of the Interior, Washington, D.C. 20240.
“Some of the standards have been revised as suggested; in other instances, revisions were made in view of the comments received. Some of the suggestions could not be adopted because they were contrary to the statutory provisions.
“Part 75 of Title 30 Code of Federal Regulations, Subchapter O — Coal Mine Health and Safety — Mandatory Health and Safety Standards, Underground Coal Mines, amended and revised as set forth below is herewith promulgated and shall become effective upon publication in the Federal Register.

WALTER J. HICKEL,

Secretary of the Interior.

November 12, 1970.”

(Emphasis added).

We agree with appellees that the Secretary could not have made it any plainer that he was amending and revising the standards.

It is equally clear that the regulations challenged in this appeal were intended to be amendments and revisions of statutory standards. 30 C.F.R. § 75.400-2 imposes a requirement additional to those imposed by Congress in § 864(a). The statute requires only that coal dust be cleaned up and not be permitted to accumulate. It does not require, as did the regulation, that a “regular cleanup” program be established, maintained and made available to the Secretary. In another part of the Act Congress did expressly command that some regular or periodic programs be established and made available to the Secretary to combat other safety hazards addressed by the interim standards. See, e. g., 30 U. S.C. § 863(a), (f), (g) & (w). We conclude that 30 C.F.R. § 75.400-2 changed the standard in § 864(a). Also, 30 C.F. R. § 75.400-1, although cast in definitional language, has the effect of changing the standards established by Congress in § 864(a) if it imposes an additional requirement. And the very fact that the district court determined that a prima facie case could not be made on the basis of § 864(a) alone, in the absence of the regulations, a determination not challenged on appeal, indicates that the regulations altered the legal relations of the parties.

We have examined Gibson Wine Co. v. Snyder, 90 U.S.App.D.C. 135, 86 L.Ed. 249, 194 F.2d 329 (1952); Textile Mills Securities Corp. v. Commissioner of Internal Revenue, 314 U.S. 326, 62 S.Ct. 272 (1941); Toilet Goods Association v. Gardner, 278 F.Supp. 786 (S.D.N.Y. 1968); Toilet Goods Association v. Gardner, 360 F.2d 677 (2d Cir. 1966), aff’d, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967), relied upon by appellant in support of the contention that the challenged regulations can be upheld under § 957 as “interpretative” regulations. We agree with appellee that these cases are inapposite because none involved a criminal prosecution and none was considered in a context where Congress had established a procedure permitting the agency to revise statutory standards only after engaging in mandatory consultation procedures with interested and affected parties. It matters not whether under a different statutory scheme a general grant of rule-making authority might have supported the regulations. Here, Congress required a course of consultation as a condition precedent to any substantive revision of mandatory standards, except for modifications specifically authorized under § 861(d).

Also, we reject the suggestion that we should uphold the regulations as contemporaneous constructions of the Act by the person charged with its implementation and enforcement. In doing so, we are aware that under the predecessor statute to the Act here considered, another court has concluded that the interpretation of the statute by the administrator charged with its execution is entitled to great weight. St. Mary’s Sewer Pipe Co. v. Director of United States Bureau of Mines, 262 F.2d 378 (3rd Cir. 1959). And we suggest no departure from this principle in the ordinary ease involving a prior administrative construction, typically in an adversary context, of a substantive provision of a remedial statute. But whatever applicability this canon may have in a case where the agency’s rule-making authority is conceded and only its interpretation of a rule is involved, here the very power of the agency to promulgate the challenged regulation is assailed. Accordingly, we conclude that an administrative officer’s interpretation of an Act of Congress to permit him to exercise broad power to flesh-out a statute by revising interim statutory standards should be tested with less indulgence. This is particularly true when the interpretation permits promulgation of regulations and their willful violation can result in criminal prosecution. In this instance, we hold that the procedures established by Congress must be strictly observed.

Here, Congress granted the Secretary broad power to revise and even develop new substantive standards to promote the safety of coal miners. However, Congress intended that this authority could be exercised only after compliance with a detailed course of consultation designed to ensure participation in the decision-making process • of interested and affected parties.

We hold that the Secretary was obligated to follow, but did not follow, the provisions of § 811(c) in promulgating the regulations codified at 30 C.F.R. § 75.400. Administrative rule-making in disregard of procedural requirements is ultra vires and, we hold that the challenged regulations were improperly promulgated and are invalid. Texaco Inc. v. Federal Power Commission, 412 F.2d 740 (3rd Cir. 1969); Kelly v. United States Department of Interior, 339 F. Supp. 1095 (E.D.Cal.1972); American President Lines, Ltd. v. Federal Maritime Board, 115 U.S.App.D.C. 187, 317 F.2d 887 (1962).

The judgment is affirmed and the case remanded for further proceedings not inconsistent with this opinion.

PHILIP PRATT, District Judge

(concurring) .

While I concur in the result reached by the majority, I disagree to some extent with the approach.

As I read the opinion, the majority determines that it was the purpose of the Secretary to amend and revise the statutory Interim Mandatory Safety Standards with the promulgation of regulations on November 20, 1970. Reliance is placed on the language contained in the promulgation notice quoted in full in the majority opinion (pp. 289-290, supra.) and on the nature and content of those regulations, codified at 30 C.F.R. § 75.400 et seq. It then concludes that all such regulations are invalid because of the failure to conform to the requirements of 30 U.S.C. § 811(c).

It appears to me, however, that the purpose of the regulations issued in November, 1970 was not to amend and revise the statutory interim standards of the Act but rather that the Secretary intended to amend and revise the regulations which had been published on March 28, 1970. In March, as well as in November, 1970, the recitations of authority clearly indicate that the Secretary intended to publish for inclusion in the Code of Federal Regulations the statutory interim standards (e. g. § 75.-400) and to promulgate the standards under Sections 811(j) and 861(d) and interpretative regulations under Section 957. I can find no manifestation of intention by the Secretary to amend, revise or improve the statutory Interim Mandatory Safety Standard, nor do I find that such was the effect:

My concurrence in the result is based on the conclusion that, in the posture of this case, the particular regulations at issue here (§§ 75.400-1 and 75.400-2) are infirm because they substantively alter the interim standards on the subject and, perforce, their promulgation required conformance with Section 811(a)-(g). Since the Secretary admittedly did not utilize Section 811, and since, in my opinion, other rulemaking grants in the Act do .not permit such substantive alterations, Sections 75.400-1 and 75.400-2 are invalid.

This was not to say, however, that other regulations contained in 30 C.F.R. Part 75 would necessarily be invalid, because they might be sustainable under the other rulemaking grants in the Act. This determination could only be made after consideration of individual regulations with reference to the other appropriate rulemaking grants of the Act, i. e. §§811(j), 861(d), and 957.

Thus, I am unable to concur in the majority opinion insofar as it may be read to hold that the Secretary’s admitted failure to follow the provisions of Section 811(a)-(g) results in the invalidity of all regulations promulgated in November, 1970, which are codified at 30 C.F.R. Part 75.

      . The district court’s decision was rendered in a memorandum opinion, filed July 7, reported at 345 F.Supp. 62, and a supplemental memorandum opinion, filed September 12, 1972. The first opinion does not consider whether the regulations might be sustained under § 957. The second opinion more specifically states:
      The Secretary chose to exercise the authority of 30 U.S.C. 861 (d) alone and not to incorporate the ’general administrative rule making authority of 30 U.S.C. 957. The sole question is whether section 861(d) properly may he construed to bring the subject regulations within its range of authority.

      . As set forth in appellant’s brief, Count 7 charged:
      COUNT VII THE GRAND JURY FURTHER CHARGES:
      1. Each allegation contained in paragraphs 1 and 2 of the Count I hereof is realleged, reaffirmed, and incorporated herein.
      2. On or about June 19, 1970, the Finley Coal Company and Charles Finley did willfully fail to clean up and prevent the accumulation of coal dust, including float dust deposited on rock-dusted surfaces, loose coal, and other combustible materials in active workings of Number 15 underground coal mine, in violation of Sections 109(b) and 304(a) of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §§ 819(b) and 864(a), 30 C.F.R. 75.400.
      We observe a curious sequential relationship between the date of the promulgation of the regulations cited in Count 7 of the indictment, November 20, 1970, and the date of the violations charged in that count, June 19, 1970. At oral argument, counsel advised us that on June 19, 1970 regulations were in effect with language identical to that found in the November regulations that the indictment charges were violated in the indictment. (Apparently, the earlier regulations were promulgated in March 1970 when the Act first took effect.) Of course, the statutory provision underlying the subject regulations, Section 864(a), which was also relied upon in Count 7, was in effect on the date of the violations charged. -Appellant does not raise the question whether a prosecution and conviction relying upon the challenged November regulations, under these circumstances, would violate the constitutional prohibition against ex post facto laws. Since this contention was not made and the question was not briefed and argued, we intimate no views concerning it.

      . Counsel lias not contended, nor does our research indicate, that the regulations challenged in this appeal could be sustained under the authority of 30 U.S.C. § 811 (j), which provides:
      All interpretations, regulations, and instructions of the Secretary or the Director of the Bureau of Mines, in effect on December 30, 1969, and not inconsistent with any provision of this chapter, shall be published in the Federal Register and shall continue in effect until modified or superseded in accordance with the provisions of this chapter.

      . As noted above, the United States has conceded that the consultations engaged in cannot satisfy 30 U.S.C. § 811(c) if that provision is applicable. Apparently, the consultations that were engaged in preliminary to the promulgation of the regulations were meant to satisfy the less rigorous requirements of 5 U.S.C. § 553, a section of the Administrative Procedure Act. See 30 U.S. C. § 861(d).

      . The label placed upon agency action by administrators is, of course, not conclusive. See Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 416, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942) ; Powell v. United States, 300 U.S. 276, 284-285, 57 S.Ct. 470, 81 L.Ed. 643 (1937) ; A. F. of L. v. Labor Board, 308 U.S. 401, 408, 60 S.Ot. 300, 84 L.Ed. 347 (1940). See also Pharmaceutical Manufacturers Association v. Finch, 307 F.Supp. 858 (D.Del.1970).

      . Only the regulations codified at 30 C.F.R. § 75.400 are at issue on this appeal. We are not called upon to consider, and we intimate no view concerning, the validity of any of the other regulations promulgated in November 1970 and codified in other sections of 30 C.F.R., Part 75.

      . The promulgation statement of the Secretary appearing on March 28, 1970 in the Federal Register reads as follows:
      “Part 75 — -Mandatory Safety Standards, Underground Coal Mines.
      “Part 75 — Mandatory Safety Standards, Underground Coal Mines, reading as set fortli below, is added to Subchapter O of Chapter I, Title 30, Code of Federal Regulations. This part includes mandatory safety standards for underground coal mines which are set forth in Title III of the Federal Goal Mine Health and Safety Act of 1969, other mandatory safety standards issued pursuant to that title and section 101 (j) [30 V.S.G. § 811 (m of the aet, and interpretations and supplementary regulations. Because Title III of the Federal Coal Mine Health and Safety Act of 1969 becomes effective on March 30, 1970, it is impracticable either to give notice of proposed rulemaking on, or to delay the effective date of, any of the provisions of the part. Part 75 shall become effective on March 30, 1970.
      Walter J. Hickel
      Secretary of the Interior”
      (emphasis supplied) 35 Fed.Reg. 5221
      sjt «i* *1*
      “Authority: The mandatory safety standards in this Part 75 either appear in, or are issued pursuant to, Title III of the Federal Coal Mine Health and Safety Act of 1969, Public Law 91-173; other sections in this part are issued pursuant to § 101 (j) and § 508 of that Act.
      “Note: The provisions of this part marked [statutory Provision] appear in Title III of the Federal Coal Mine Health and Safety Act of 1969.” 35 Fed.Reg. at 5223

      . I have no difficulty determining that the “clean-up program” requirement appearing in Section 75.400-2 is “substantive” in nature and thus beyond the permissible scope of his rule-making authority under the Act. The definitions contained in Section 75.400-1 present a much closer question. On this appeal, however, the government concedes that it could not make a prima facie case against defendants in Count VII of the indictment without both regulations. On that basis, then, given the fact that we must apply the principle of strict construction in criminal matters, I conclude that these definitions also impose an additional burden on coal mine operators and therefore the regulation cannot be sustained as being merely interpretative. See Gibson Wine Co. v. Snyder, 90 U.S.App.D.C. 135, 194 F.2d 329 (1952).


source: Caselaw Access Project

author: GARTH, Circuit Judge.

license: Public Domain

text:
    Frank S. MEROLA and Frank J. Merola, Jr., Individually and t/d/b/a Merola’s Arco, on their own behalves and on behalf of all others similarly situated, Appellants, v. ATLANTIC RICHFIELD COMPANY, a corporation, Appellee.
    No. 73-1811.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 14, 1974.
    Decided March 8, 1974.

      Thomas M. Kerr, Howard A. Specter, David R. Brown, Litmán, Litman, Harris & Specter, Pittsburgh, Pa., for appellants.
    David J. Armstrong, M. Richard Dunlap, Dickie, McCamey & Chilcote, Pittsburgh, Pa., for appellee.
    Before ADAMS and GARTH, Circuit Judges, and NEALON, District Judge.
   OPINION OF THE COURT

GARTH, Circuit Judge.

This appeal involves the award of attorneys’ fees following the settlement of an antitrust action brought on behalf of a class of service station dealers. This Court has recently developed standards for the determination of such an award in Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973). We remand for further consideration in light of Lindy Bros.

I

Plaintiffs, Frank S. Merola and Frank J. Merola, Jr., commenced this private antitrust action against the Atlantic Richfield Company (Atlantic) on behalf of all present and former Atlantic “lessee dealers” in the Pittsburgh area. The complaint alleges that by various methods — including threats of lease cancellation and nonrenewal — the defendant restrained the free exercise of business judgment by the lessee dealers. In particular, the complaint charges that At-lantie has coerced dealers: (1) to purchase automobile tires, batteries, and accessories (TBA) from unnamed co-conspirators, (2) to sell motor fuel at fixed prices, (3) to operate their service stations during hours determined by defendant, and (4) to participate in promotional campaigns (e. g., the distribution of trading stamps). Plaintiffs’ allegations, constituting charges of violations of Section 1 of the Sherman Act, vest jurisdiction in the district court pursuant to 28 U.S.C. § 1337.

Prior to a determination of the appropriateness of the class action device, two settlements were agreed upon by the parties. The first, awarding the named-plaintiffs $10,000 in return for the early surrender of plaintiffs’ lease, is not a subject of the instant appeal. The second settlement included the present and future lessee dealers in the Pittsburgh area. In exchange for a dismissal of the litigation with respect to this class, Atlantic agreed to alter its leasing policies. Prior to the litigation herein, Atlantic had normally awarded leases for a one year term during the first two years of the leasehold, followed by a three year lease. Pursuant to the settlement, Atlantic agreed that for the next fifteen years, it would offer leases (to acceptable lessees) for the following terms:

original lease — 1 year term second lease • — • 3 year term subsequent leases — 5 year terms

The settlement at issue dealt only with the above schedule. However, during settlement negotiations, Atlantic agreed to pay reasonable attorneys fees to be subsequently determined by the District Court.

On December 20, 1972, the District Court approved the settlement as to all present and future lessees who did not opt out or object to the proposed compromise.

Three months later a hearing was held on an application for counsel fees and expenses filed by plaintiffs’ attorney, Howard A. Specter. Mr. Specter requested a fee of $250,000, this figure based in part upon a theoretical settlement value of $8 million. The defense countered by arguing: (1) that the settlement was without economic benefit to the class, and (2) that far fewer hours than the 871 hours alleged by plaintiffs were actually spent in the class aspects of the litigation. Without abandoning its position that the fee award should not exceed $5000, at oral argument before the District Court, in response to the claims of plaintiffs’ attorney, the defendant suggested that at the very most, the plaintiffs’ attorney could not be entitled to more than $18,400.

In a memorandum opinion filed on July 11, 1973, the District Judge explained that he would predicate the award of attorneys’ fees on two factors: (1) the time expended in procuring the settlement, and (2) the value of the settlement to class members. The Court found that plaintiffs had failed to establish any benefit to the class and had not proven that any more than 264.2 hours were spent by counsel on class-related issues. On the basis of these findings, the Court awarded counsel $5,000 in attorneys’ fees, as well as $5,846.78 in expenses. From the order incorporating this award, plaintiffs appeal, challenging both the time and benefit components of the fee award.

II

It is well-settled that the awarding of attorneys’ fees is a matter of discretion for the district court. See Tranberg v. Tranberg, 456 F.2d 173, 175 (3d Cir. 1973). In applying this limited standard, however, this Court will scrutinize conclusions of law and findings of fact (upon which the award is based) according to traditional precepts. Where a District Court errs as a matter of law by utilizing improper standards or procedures in determining fees, an abuse of discretion occurs. Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., supra, 487 F.2d at 166. Similarly, clearly erroneous findings of fact require reversal. Cf. Bradley v. School Board of Richmond, 472 F.2d 318, 320 (4th Cir. 1972) app. pndg 42 U.S.L.W. 3350 (1973). It is with these considerations in mind that we evaluate the award of attorneys fees made herein. sal.

Ill

Although Mr. Specter applied for fees on the basis of 871 hours of legal work, the District Court limited recovery to 264.2 hours. Appellants contend that the ratio decidendi of this limitation constitutes an error as a matter of law. They state that the Court limited its inquiry to the time spent on negotiating the lease term provisions contained in the final settlement. It is appellant’s contention that the scope of the Court’s inquiry should have been broader, including all legal work leading to the class settlement.

Appellee offers a justification for the time limitation. The 871 hour figure allegedly represents the total number of hours spent by Mr. Specter’s law firm with regard to the Merola litigation. Inasmuch as some part of this time was devoted to the settlement involving only the Merola gas station, less than 871 hours were spent on the class settlement for which counsel is to be awarded fees. Appellee argues that plaintiff-appellant, upon whom the burden of proof lay, did not prove the number of hours related solely to the class settlement. Absent such a demonstration, appellee argues that the Court was justified in limiting recovery to 264.2 hours, this figure representing the minimum number of hours spent on class-related matters.

Appellee’s retort is not fully responsive. While it is true that the Court did conclude that counsel proved no more than 264.2 hours, underlying this conclusion is the premise that time spent on allegedly “peripheral matters” — such as Atlantic’s trading stamp policy — is not compensable. We must, therefore, determine whether the adoption of this premise constitutes error.

Our review of the record convinces us that the District Court refused to consider the time spent on the “peripheral matters” because it felt that such time could not have contributed to the settlement. In endeavoring to distinguish between settlement-related time and unrelated time, the Court performed a proper function. As we understand the agreement to pay attorneys’ fees, Atlantic did not obligate itself to compensate plaintiffs’ counsel for all hours spent on the full Merola law suit. Rather, Atlantic could reasonably be expected only to compensate counsel for time spent on matters related to the end product, i. e., the settlement. Thus, the Court’s role of enforcing the fee agreement necessarily required the District Judge to determine which hours spent were related to the settlement.

Having found that the Court employed a proper procedure in determining the character of the time spent, we must next determine whether the Court abused its discretion in concluding that the peripheral matters were unrelated to the settlement. Appellants contend that the tying effect between the short-term lease and other coercive oil company practices is well-established in the case law. This may indeed be true. However, this case law is of little relevance herein. The crucial inquiry is not whether oil companies in general, or Atlantic in particular, have coerced service stations, but rather whether Mr. Specter’s work on issues such as the trading stamp policy was related to the settlement. Turning to the only possible source for such an inquiry, the record, we find that the District Court did not abuse its discretion in concluding that the “peripheral matters” were unrelated to the settlement. Plaintiffs submitted no proof demonstrating that any more than the 264.2 hours were spent on settlement-related matters. Indeed, the assertion that 871 hours were spent on the litigation is supported not by an affidavit, but only by bald allegations in the application for fees and by a casual statement by counsel at the hearing. Having failed to establish a factual relationship between the settlement and these 871 hours, plaintiffs cannot now complain that the Court erred in choosing the figure conceded by appellee.

We hold that in making the determination as to the relationship between the “peripheral matters” and the settlement, the District Court neither erred in adopting the procedure nor abused its discretion in finding no relationship, We thus affirm the limitation of time spent to 264.2 hours.

IV

Appellants contend that the District Court erred in finding that they had not proven a benefit to the class as a result of the settlement. For the reasons outlined below, we need not reach this contention.

Unlike the British system, in American courts the general rule is that attorneys’ fees are not recoverable. However, it is well-recognized that counsel fees may be awarded whenever the parties have entered into an enforceable agreement providing for same. See Hall v. Cole, 412 U.S. 1, 4-5, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973); Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967); Kahan v. Rosenstiel, 424 F.2d 161, 165 (3d Cir.), cert. den. sub nom. Glen Alden Corp. v. Kahan, 398 U. S. 950, 90 S.Ct. 1870, 26 L.Ed.2d 290 (1970); Alland v. Consumers Credit Corp., 476 F.2d 951, 955-956 (2d Cir. 1973) (construing New York law); 6 Moore’s Federal Practice ¶ 54.77 [2], In the instant case, the parties question neither the existence of an agreement authorizing counsel fees nor the authority of the Court to award fees pursuant thereto. We focus our review, therefore, not on the authority of the District Court, but rather on the standards applied by the Court in arriving at the award of $5000.

This Court’s most recent discourse on attorney fee standards appears in Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973). We held in Lindy that the award of attorneys’ fees following the settlement of an antitrust class action should be formulated in terms of the following factors:

a) the number of hours spent in various legal activities by the individual attorneys;
b) the reasonable hourly rate for the individual attorneys;
e) the contingent nature of success; and
d) the quality of the attorneys’ work. 487 F.2d at 167-169.

Lindy is, in some respects, distinguishable from the instant case. Unlike the arrangement between the parties herein, in Lindy there was no enforceable agreement relating to attorneys’ fees. The predicate for the award of fees in Lindy thus was not, as here, an agreement, but rather was the benefit bestowed upon the class in the form of a common fund. 487 F.2d at 165-166. Having identified “benefit” as the basis for an award, this Court then developed the standards in Lindy with the objective of compensating the attorney for the value of services benefiting the non-litigants. 487 F.2d at 167.

We see no reason why the Lindy standards need be confined to situations in which benefit analysis (as distinct from an agreement to pay attorneys’ fees) supplies the quasi-jurisdictional predicate. The Lindy standards isolate the primary factors that should be examined in developing a reasonable attorneys’ fee. The first two factors (time spent and reasonable rate) produce what might be considered the market value of the attorneys’ services. The latter two (risk and quality of work) permit the district judge the needed flexibility to tailor the award to the actual performance of counsel. The end result — an amalgam of expected value and delivered performance — represents a reasonable fee under normal circumstances. Given the suitability of the Lindy standards to the determination of reasonable fees, we hold that in enforcing an agreement to pay reasonable attorneys’ fees, courts in this circuit should apply the Lindy standards tp determine the amount of the award.

The distinguished District Judge was in no position to foresee our application of Lindy to the facts of the instant case. Indeed, Lindy had not yet been decided at the time that the memorandum opinion herein was filed. Nevertheless, ap-pellee contends that the District Court did, in fact, analyze the factors highlighted in Lindy. We disagree. Although reference is made to the first of the factors, we find neither the specificity mandated by Lindy nor an analysis of the remaining factors outlined by Chief Judge Seitz in Lindy.

Accordingly, this case will be remanded for reconsideration in light of the standards articulated in Lindy.

      . A “lessee dealer” leases his service station directly from Atlantic. Atlantic, in turn, either owns the property outright or holds it as a lessee on a long-term lease. See Appellee’s Brief at 12. Paragraph 7 of plaintiffs’ complaint recites that the action is brought in part on behalf of persons who have operated retail “Arco” service stations within four years of the date of the complaint. Accordingly, the term “former lessee dealer” refers to people who have operated Arco stations in the relevant geographical area between October 29, 1967 and October 29, 1971.

      . The relevant geographical area is defined by the plaintiffs’ complaint as “the Pennsylvania Counties of Allegheny, Beaver and Washington and the parts of Lawrence County and West Virginia in the area referred to by defendant as its Pittsburgh District.” See A.-8a. .

      . 15 U.S.C. § 1.

      . At the commencement of the litigation, the class of present dealers was over 200 in number. By the time of the counsel fees hearing, however, the number had dwindled to 188.

      . Under the terms of the settlement, Atlantic is not obliged to renew any leases whatsoever. However, once Atlantic decides to renew a lease, it must do so according to the schedule noted above.

      . Although the record discloses no written contract, defendant’s counsel conceded at oral argument before this Court that an agreement was in existence. This concession corroborates a statement to the same effect made by plaintiffs’ counsel at the hearing conducted by the District Court (see A. 185a) and verifies an allegation in plaintiffs’ application for fees that was admitted by defendant.

      . The application, without the support of an accompanying affidavit, alleges that Specter’s firm spent 871 hours in prosecuting and settling the claims of the class members. These hours were alleged to have a productive value of $57,450. Furthermore, the application claims that counsel incurred out-of-pocket expenses in the amount of $5,901.-72.
      We do not approve the use of non-eviden-tiary submissions in support of requests for attorneys’ fees and expenses. Mr. Specter’s application, setting forth the essential factors of his claim, should have been supported by affidavits or proof in court. In light of defendant’s concession (see n. 10, infra) however, and the Court’s treatment of the instant application predicated on that concession, we decline to determine this appeal on that evidentiary ground.

      . Defendant arrived at this figure by multiplying the estimated productive value of the representation ($57,450) by a fraction having as its numerator the hours actually proven (see n. 10) and as its denominator the hours claimed (871 hours).

      . The District Court’s award of out-of-pocket expenses is not challenged on appeal.

      . On June 19, 1972, the Court ordered that discovery pertaining to the determination of class action be completed by September 1, 1972 and that plaintiffs submit their brief in support of such a determination by September 15, 1972. Atlantic conceded both at the counsel fee hearing and at oral argument before this Court that all work performed by plaintiffs after the June 19 order was related to the class settlement and therefore compensable. Plaintiffs revealed that 264.2 hours of legal work were performed subsequent to June 19 (A. 175a). Thus, this figure (264.2) forms the minimum number of hours spent by plaintiffs’ counsel on class-related matters.

      . In this vein, the District Court stated at one point in the hearing:
      “ . . . [0]riginally, you filed suit for a much broader class and that concerns me deeply, because Mr. Beggy [another attorney] came along and picked up the rest of those and ... I still have them. But they were all there, and you presented rather elaborate claims on behalf of a large number of people and your effort was over about the time you reached the settlement. So, I am not willing to accept the statement that all that time [the 871 hours] went for the leases and for that limited part of the class, and I have suggested to you that you better have some data on that or you are running into problems with your burdens of proof.”
      A. 185a. (emphasis added).

      . See, e. g., Atlantic Refining Co. v. Federal Trade Commission, 381 U.S. 357, 85 S.Ct. 1498, 14 L.Ed.2d 443 (1965).

      . See A. 178a.

      . Given the inadequacy of the proofs, had defendant-appellee not conceded that 264.2 hours were spent, there might well have been insufficient evidence to make any finding regarding the time spent. (See n. 7, supra).

      . We have some difficulty with the District Court’s holding of “no benefit.” Cf. Mills v. Electric Auto-Lite, 396 U.S. 375, 392-397, 90 S.Ct. 616, 24 L.Ed.2d 593 (recognition of non-pecuniary benefits). However, in view of our direction to the District Court to review the award of attorneys’ fees in light of Lindy, we are not called upon, at this time, to measure that finding against the “clearly erroneous” standard of Fed.R.Civ.P. 52(a).

      . In the absence of an agreement or statute authorizing compensation, attorneys’ fees are recoverable only in limited situations. See Fleischmann Distilling Corp. v. Maier Brewing Co., supra, 386 U.S. at 717-719, 87 S.Ct. 1404, 18 L.Ed.2d 475; Kahan v. Rosenstiel, supra, 424 F.2d at 165-168. The Courts have recognized the conferring of benefits upon non-litigants as one such situation. See, e. g., Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1881) (creation or preservation of a common fund as a benefit) ; Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939) (stare decisis effect of a judgment as a benefit) ; Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392-397, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970) (non-precuniary result as a benefit) ; see generally 6 Moore’s Federal Practice, K 54.77 [2] ; Wright and Miller, 7A Federal Practice and Procedure, § 1803.


author: DONALD RUSSELL, Circuit Judge: FIELD, Circuit Judge

text:
    William Allen HOUGH et al., Appellees, v. Dr. Robert SEAMAN et al., Appellants.
    Nos. 73-1996, 73-1997.
    United States Court of Appeals, Fourth Circuit.
    Argued Jan. 9, 1974.
    Decided March 19, 1974.

      Edwin M. Speas, Jr., Asst. Atty. Gen., of N. C. (Robert Morgan, Atty. Gen., of N. C., and Andrew A. Vanore,.Jr., Deputy Atty. Gen., on brief), for appellants in No. 73-1996.
    David B. Sentelle, Asst. U. S. Atty. (Keith S. Snyder, U. S. Atty., on brief), for appellants in No. 73-1997.
    George S. Daly, Jr., Charlotte, N. C., for appellees in Nos. 73-1996 and 73-1997.
    Before CRAVEN, RUSSELL and FIELD, Circuit Judges.
   DONALD RUSSELL, Circuit Judge:

This case represents a challenge by Air Force reservists to the anti-wig regulation of the Air Force, as applied to their use of hair wigs at their week-end drills “so long as the wigs, per se, conform to Air Force specifications.”

The regulation, attacked by the plaintiffs, provides:

“Wigs. Wigs or hair pieces will not be worn while on duty or in uniform except for cosmetic reasons to cover natural baldness or physical disfiguration. If under these conditions, a wig or hair piece is worn, it will conform to Air Force specifications.”

We recognize that the military has wide discretion in regulating the conduct of its personnel, including their personal appearance and grooming, and that, in enlisting in the military, whether on a full time or reserve basis, the soldier voluntarily assumes the obligation to conform to military regulations, even regulations which to some extent may by reason of military exigencies restrict what would, under other circumstances, be regarded as an illegal infringement of a recognized constitutional right. But, though military regulations may in some instances transgress what would normally be regarded as constitutional boundaries, they may not do so unreasonably, arbitrarily or irrationally and must find some basis, albeit a “minimal” one, in “military exigencies”. Applying this rule, courts have differed on whether reservists, during week-end drills, may be prohibited from the use of hair wigs to cover their extra-length hair in order to conform to the military appearance requirements. It is unnecessary, however, to resolve this issue, as we find the instant regulation, as drafted, invalidly discriminatory.

Many of the cases which have found valid a regulation prohibiting the use of hair wigs by military reservists during week-end drills have been influenced in their decision by the non-discriminatory character of the regulation in question. Thus, in Raderman v. Kaine, supra (411 F.2d at 1106), the Court, in sustaining a hair regulation, emphasized :

* * * There is no claim here that plaintiff was treated any differently than any other reservist; in fact, he was advised by a Major General of the Army that ‘Exceptions will not be made to this policy.’ ”

Again, in Agrati v. Laird (9th Cir. 1971) 440 F.2d 683, 684, which was an action by a military reservist seeking to escape the application of a hair-appearance regulation because of its effect on his civilian occupation, the Court pointed out:

“ * * * He [the plaintiff] does not contend that the regulation is invalid or that he is treated differently than others. He desires an exception made as to him.” (Italics added).

The regulation under attack, however, does not treat all reservists alike. It incorporates a definite exception in favor of the bald-headed. The defendants offer no rational or military basis for this exception. It was suggested on argument that the use of wigs by persons with extra-length hair often does not cover the hair sufficiently to conform to the military hair-appearance requirements. This argument loses its force in the face of the specific finding by the District Court, not assailed on appeal, that the wigs used by the plaintiffs. enabled them to “appearance-wise comply with military standards.” The regulation itself offers as the sole reason for the exception “cosmetic” considerations. We are unable to find “cosmetic” considerations which would allegedly justify a discriminatory constitutional deprivation as falling within any reasonable construction of military legitimacy, when applied to military reservists during their monthly week-end drills. We find convincing the conclusion reached by the Court in Good v. Mauriello (D.C.N.Y. 1973) 358 F.Supp. 1140, where, in speaking to this very wig regulation as applied to a reservist, it said at 1142:

“ * * * The government has failed to explain why the regulation must apply to some, but not to others. The regulations are in violation of the statutory authority given to the defendants.”

See, also, Etheridge v. Schlesinger (D.C.Va.1973) 362 F.Supp. 198, 204.

The result reached in the decision of the District Court is accordingly affirmed.

Affirmed.

FIELD, Circuit Judge

(dissenting):

At a time when the burgeoning caseload of the federal courts is a matter of deep concern it is incredible, and to me a disturbing commentary, that a United States Court of Appeals would be called upon to address itself to something so trifling as the alleged unconstitutional dimensions of a “Wig Regulation” of a branch of the armed forces. The plain answer to this case, of course, is that no one “shanghaied” these “week-end warriors” into the Reserve. They elected to enlist in the Reserve and receive the advantages of its program and knew, or should have known, that they would be subject to a variety of military regulations some of which might impinge upon their personal tastes. Having made their election they are in no position to complain of a regulation that is neither unreasonable nor lacking in rationality.

I think the federal judiciary would be well advised to heed the admonition of Mr. Justice Jackson in Orloff v. Wil-loughby, 345 U.S. 83, 94, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953) :

“The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to interfere in judicial matters.”

The district court should have dismissed this frivolous piece of litigation out-of-hand. I would reverse.

      . Neither the plaintiffs nor the District Court questioned the validity of the regulation as it applied to the regular military personnel. Whether the regulation should be applied during summer, camp to reservists was likewise not in issue. Cf., Miller v. Ackerman (8th Cir. 1973) 488 F.2d 920, filed December 19, 1973. We are concerned in this case with the application of the regulation to reservists while attending week-end drills; any other issue must await explication in the context of a case in which such issue is expressly raised.

      . Yahr v. Resor (4th Cir. 1970) 431 F.2d 690, 691, cert. denied 401 U.S. 982, 91 S.Ct. 1192, 28 L.Ed.2d 334.

        See, also, Dash v. Commanding General, Fort Jackson, South Carolina (D.C.S.C. 1969) 307 F.Supp. 849, 853, aff. 4 Cir., 429 F.2d 427, cert. denied 401 U.S. 981, 91 S.Ct. 1192, 28 L.Ed.2d 333 :
      “ * * * ‘servicemen have all the protections of the Bill of Rights except such as are expressly or by necessary implication not applicable by reason of the peculiar circumstances of the military.’ ”

      . Raderman v. Kaine (2d Cir. 1969) 411 F. 2d 1102, cert. dismissed 396 U.S. 976, 90 S.Ct. 467, 24 L.Ed.2d 447, is generally cited in support of the regulation.
      The leading case to the contrary is Friedman v. Froehlke (1st Cir. 1972) 470 F.2d 1351.

      . One court has recognized that, in the case of a military reservist with hair longer than permitted by regulation, the use of a hair wig to cover the extra-length hair and thereby to conform to the military hair regulations, is an entirely proper method of compliance, at least for a reservist. Thus, in Gianatasio v. Whyte (2d Cir. 1970) 426 F.2d 908, 911, cert. denied 400 U.S. 941, 91 S.Ct. 234, 27 L.Ed.2d 244, the Court, in upholding the Army hair regulation, said:
      “ * * * We decline so to rule and note in the words of the court below 1 * * * that the plaintiff could have worn an appropriate wig, thereby complying with military requirements and satisfying the appearance needs of his job.’ ”

      . To the contrary, see, Comunale v. Mier (D.C.Pa.1973) 355 F.Supp. 429, 432, and McWhirter v. Froehlke (D.C.S.C.1972) 351 F.Supp. 1098, 1101.
      The first of these cases justifies its conclusion with this comment:
      “ * * * Of course, the wearing of wigs by bald or disfigured men was permitted but I suppose the Air Force could consider that it could cope with a limited use of wigs which might improve the appearance of a squadron while ruling out the undiscriminate use of them.” (355 F.Supp. 432).
      We do not find such reasoning persuasive.

      . See Anderson v. Laird, 437 F.2d 912, 915 (7 Cir. 1971) ; Raderman v. Kaine, 411 F.2d 1102, 1106 (2 Cir. 1969).


author: PER CURIAM:

text:
    Ernest F. BORUSKI, Jr., Appellant, v. UNITED STATES GOVERNMENT et al., Appellees.
    No. 231, Docket 73-1542.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 17, 1973.
    Decided Feb. 15, 1974.

      Ernest F. Boruski, Jr., appellant pro se.
    Howard S. Sussman, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., Mel P. Barkan, Asst. U. S. Atty., of counsel), for appellees.
    Before LUMBARD, FRIENDLY and OAKES, Circuit Judges.
   PER CURIAM:

This is an appeal pro se from the granting of a motion for summary judgment dismissing appellant’s complaint seeking to be restored to the active Air Force with the rank of Brigadier General, together with back pay amounting to 1506,00o, in addition to compensation for damage suffered as the result of alleged inaccuracies related by military personnel at appellant’s 1945 court martial and relief in the nature of mandamus against the Air Force Board for the Correction of Military Records (AFBCMR) in reference to appellant’s file during and after his connection with the Air Force. Dismissal by the district court was based on two grounds. The first was on the basis that appellant obtained a judgment, Boruski v. United States, 155 F.Supp. 320, 140 Ct.Cl. 1 (1957), from the United States Court of Claims in 1957, holding that his honorable discharge was effective as of August 28, 1951, rather than the July 23, 1945, date at which he had erroneously been dishonorably discharged and awarding him back pay in the sum of $19,904.44 covering the period between July 23, 1945, and August 28, 1951, this judgment of the Court of Claims operating as a bar under 28 U.S.C. § 2517(b). The second ground for dismissal by the district court was on the basis of a collateral estoppel by virtue of that judgment, the court saying that “because the validity and effective date of Boruski’s 1951 discharge has actually been litigated and decided, this court may not re-litigate this issue.” The district court also held that appellant had failed to state a claim upon which the relief of mandamus against the AFBCMR could be granted in light of the lapse of several years from the time appellant first raised this issue until 1969, when he raised it here, under 10 U.S.C. § 1552(b). We affirm the judgment below.

Appellant, an Army Air Force lieutenant, was court-martialed and sentenced to dismissal from the service as of July 23, 1945, as the result of a September 23, 1944, flying accident in which a passenger was killed. This court martial was subsequently reviewed by the Judge Advocate General, who found that an injustice had been done to appellant. Accordingly, on August 28, 1951, the sentence of dismissal was vacated and replaced by an administrative discharge, honorable in nature, pursuant to 50 U. S.C. § 740, under the decision of the Judge Advocate General.

The honorable discharge, however, bore the date of the earlier dismissal, July 23, 1945, rather than that of the decision of the Judge Advocate General, August 28, 1951. Subsequently, after unsuccessful administrative proceedings, appellant brought an action in the Court of Claims. This culminated in the favorable judgment and award. While rejecting his claims for advancement in rank and flight pay, the court held that his discharge should have been made effective as of August 28, 1951, and awarded back pay from July 23, 1945, to that date. See Boruski v. United States, 155 F.Supp. at 324. The judgment for back pay was paid in full by the General Accounting Office in 1958.

It was not until August 29, 1969, that appellant did anything formally to indicate his dissatisfaction with the favorable result he had secured from the Court of Claims. In 1969 he filed a claim with AFBCMR, arguing that his discharge was illegal, that he should not have been discharged at all and that he was therefore entitled to full status including promotions and back pay to date. He accompanied this petition with an application for a correction of his military records. After reapplying for this relief on May 3, 1970, and revising his application as of December 20, 1970, AFBCMR denied his applications. Appellant then brought the suit below.

The clear language and import of 28 U.S.C. § 2517(b) is that payment of a final judgment rendered by .the Court of Claims against the United States “shall be a full discharge” to the United States “of all claims and demands arising out of the matters involved in the case or controversy.” Appellant did not seek an award of pay up to the time of judgment in the Court of Claims, but only “all rights, privileges, and property of which he was deprived by virtue of the original erroneous finding from the date sentence was executed to the date of its vacation by the Judge Advocate General.” 155 F.Supp. at 323 (emphasis added). Therefore, under § 2517(b) and the general res judicata principles applied to the Court of Claims in 28 U.S.C. § 2519, appellant cannot be awarded further back pay. The issue of the validity of appellant’s honorable discharge could have been presented to the Court of Claims, but was not, and the decision of the Court of Claims thus bars any suit for back pay after August 28, 1951. 155 F.Supp. at 324.

As regards the appellant’s request to correct alleged errors in his files, no such formal request was made after the Court of Claims case until August 29, 1969, when he filed a claim with AFBCMR, arguing that his discharge was illegal and seeking to have the records changed accordingly. Under 10 U.S.C. § 1552(b), however, “no correction may be made . . . unless the claimant . . . files a request therefor before October 26, 1961, or within three years after he discovers the error or injustice, whichever is later.” While it is true that under the statute “[the] board . . . may excuse a failure to file within three years after discovery if it finds it to be in the interests of justice,” the Board expressly refused to make such a finding “in light of his dilatory pursuit of this matter,” since he took no action between 1957 and 1969. In view of the non-action of appellant between 1957 and 1969, we do not find that the AFBCMR abused its discretion. For the same reasons of delay, the court was justified in refusing to order that appellant be restored to active service. Moreover, much of the relief actually sought by appellant in terms of his records he has already obtained. For example, he asked that the 1947 action of the Board for Correction of Military Records denying his request that his court martial conviction be set aside be expunged from the records, but of course the Judge Advocate General in 1951 did set aside his court martial findings and sentence, so that it is as if the 1947 Board records were null and void. So, too, appellant sought to have removed a “less-than-Superior” efficiency report for the period during which he was removed from duty, but the AFBCMR found that this report “is not presently contained in his records” and that therefore the relief which he sought to this extent had already been had. Appellant’s request to change the records so as to show that he had never been properly released from active duty, of course, was properly denied in light of the fact, as we have said, that he cannot now contest his honorable discharge as of 1951.

In short, it appears that appellant was indeed originally done an injustice, but that he pursued with counsel’s assistance as well as on his own the available remedies of law to enable him to correct this injustice, and ultimately obtained substantial relief by having his dishonorable discharge rescinded and an honorable discharge entered, as well as by obtaining back pay and allowances for a six-year period from the time of his original dishonorable discharge to the date of its correction to an honorable discharge in 1951. Having obtained this relief in 1957, at this late date he seeks even further and greater relief, but time and the operation of the statutes now prevent us from granting any further or new relief.

Judgment affirmed.

      . The Government argues that the district court was without jurisdiction to entertain Boruski’s suit because tire claim exceeds the $10,000 limit placed on that court’s jurisdiction by the Tucker Act, 28 U.S.C. § 1346(a) (2). The district court held, however, that jurisdiction existed under 28 U.S.C. § 1361 to reinstate Boruski to the active Air Force with the rank of Brigadier General; implicitly the court below held that in the mandamus proceeding it would necessarily resolve the question whether Boruski was entitled to back pay, so that § 1361 provided “an alternative jurisdictional basis.” The thrust of the Government’s argument is that the district court should not have considered the exercise of its mandamus jurisdiction in a situation where its decision would necessarily resolve a question, namely a monetary claim exceeding $10,000, which is in the exclusive jurisdiction of the Court of Claims. We would be hesitant to resolve the theoretical conflict between the mandamus jurisdiction and the Tucker Act by imposing a limitation on the mandamus jurisdiction, but follow the lead of the Fifth Circuit in Mathis v. Laird, 457 F.2d 926, 927, cert. denied, 409 U.S. 871, 93 S.Ct. 201, 34 L.Ed.2d 122 (1972). There, without reaching the jurisdictional question, the Court affirmed the summary judgment for the Government on the grounds of res judicata. We reach the same result.

      . Payment of any such judgment and of interest thereon shall be a full discharge to the United States of all claims and demands arising out of the matters involved in the case or controversy.

      . No correction [of records] may be made under subsection (a) unless the claimant or his heir or legal representative files a request therefor before October 26, 1961, or within three years after he discovers the error or injustice, whichever is later. However, a board established under subsection (a) may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice.

      . Under such regulations as the President may prescribe, the Judge Advocate General of any of the armed forces is authorized upon application of an accused person, and upon good cause shown, in Ms discretion to grant a new trial, or to vacate a sentence, restore rights, privileges, and property affected by such sentence, and substitute for a dismissal, dishonorable discharge, or bad-conduct discharge, previously executed, a form of discharge authorized for administrative issuance, in any court-martial case involving offenses committed during World War II in which application is made within one year after termination of the war, or after its final disposition upon initial appellate review whichever is the later: Provided, That only one such application for a new trial may be entertained with regard to any one case: And provided further, Within the meaning of this section and of Article of War 53, World War II shall be deemed to have ended as of May 31, 1951.

      . In deciding Boruski’s claim, the Court, of Claims ruled that the Judge Advocate General’s decision vacated the judgment of the court martial, rendering it null and void, and that Boruski was not dismissed from the service until the date of the Judge Advocate General’s decision. 155 F.Supp. at 323. It is true that, under decisions of the Court of Claims, were it not for the discharge ordered by the Court of Claims to date as of August 28, 1951, § 2517(b) would not operate to bar Boruski’s claim for pay subsequent to that date. E. g., Register v. United States, 281 F.2d 448, 449, 150 Ct.Cl. 752 (1960). But the Court of Claims hero determined “that the honorable discharge, insofar as this court is concerned, in light of the Judge Advocate General’s explicit and clearly written opinion should have been made effective as of [August 28, 1951].” 155 F.Supp. at 324. Additionally, 28 U.S.C. § 2401 (a), the six-year statute of limitations for suits against the United States, would bar any action to change the 1951 honorable discharge if that discharge was in any way wrongfully imposed.

      . The Board also made an adverse determination on the merits of the individual records referred to.


author: TRASK, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Carl THOMPSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Steven TERESI, Jr., Defendant-Appellant.
    Nos. 73-1847, 73-1018.
    United States Court of Appeals, Ninth Circuit.
    March 12, 1974.

      T. Roger Duncan, of Hollywood, Cal., for defendants-appellants.
    William D. Keller, U. S. Atty., Eric A. Nobles, and Irving Prager, Asst. U. S. Attys., Los Angeles, Cal., for plaintiff-appellee.
    Before ELY and TRASK, Circuit Judges, and JAMESON, District Judge.

       Honorable William J. Jameson, Senior United States District Judge, for the District of Montana, sitting by designation.

   TRASK, Circuit Judge:

Following a jury trial, appellants Ter-esi and Thompson were convicted of violating 21 U.S.C. § 176a, which made unlawful conspiring to import marijuana into the United States. After examining each allegation of error asserted by appellants, we find that the proceedings below were free from any prejudicial error and affirm both convictions.

Appellants were indicted with three other individuals on July 14, 1971, for conspiring to smuggle marijuana during the years 1969-1971. As demonstrated at the trial, however, the actual duration of the conspiracy extended from November 1969 to February 1970.

Prior to the trial, one defendant, Moore, pleaded guilty and became a Government witness. In addition to Moore, several coconspirators who had not been indicted testified that in 1969 Thompson had instructed them to engage boats which could be employed in smuggling marijuana; that in January 1970, Thompson, Moore, and Teresi went to Mexico to supervise the shipment of marijuana; and that, although the marijuana was subsequently transferred to another boat, the shipment was eventually delivered to Long Beach, California, where, on or about February 11, 1970, it was distributed by Thompson, Teresi, and Moore. In 1971, appellants were arrested and charged with conspiracy to smuggle marijuana. The marijuana in question was never seized by the Government and, accordingly, no marijuana was introduced as evidence at appellants’ trial.

On appeal, both Thompson and Teresi contend that it was erroneous not to dismiss the indictment since, allegedly, portions of the grand jury proceedings were not recorded. In addition, Teresi challenges the adequacy of discovery accorded him in this case, the District Court’s denial of his motion for a new trial without an evidentiary hearing, and the propriety of the instructions given to the jury.

Selective Recordation of Grand Jury Proceedings

Prior to the commencement of grand jury proceedings, appellant Thompson, through counsel, wrote to the United States Attorney and requested that all such proceedings be recorded. Relying upon United States v. Thoresen, 428 F.2d 654, 665-666 (9th Cir. 1970), both appellants argue that any failure to comply with this request “should not be tolerated” by this court. Appellants allege that there was selective recordation; specifically, that there was testimony by federal investigative agents which was not recorded. This is wholly speculative; indeed, the Government answers that the “testimony of every witness who appeared before the Grand Jury in this case was recorded.” Even if one assumes the presence of selective recordation, however, the appellants have failed to demonstrate the “clear indication” of prejudice that Thoresen requires before an indictment may be dismissed for failure to record grand jury proceedings. Thoresen, supra at 666; accord, United States v. Price, 474 F.2d 1223, 1226 (9th Cir. 1973). Appellants speculate that a Government agent testified before the grand jury. Even if this were true, no such agent testified at the appellants’ trial. In this regard, it is instructive to contrast this case with Lenske v. United States, 383 F.2d 20 (9th Cir. 1967), in which selective recordation, similar to that alleged here, was severely criticized. 383 F.2d at 24-25 (dictum). The prejudice in Lenske was clear: The agent who had testified at the grand jury proceedings did, in fact, later testify at the defendant’s trial; the lack of recorded grand jury testimony precluded effective cross-examination. Id. In the present case defendants’ counsel acknowledged at oral argument that copies of the transcripts of all trial witnesses who had testified before the grand jury were submitted to the trial court and to defense counsel a day or so before trial. They were therefore available to the defense for examination while the witnesses were available for cross-examination. Dennis v. United States, 384 U.S. 855, 875, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966).

Appellants also seek to establish prejudice attributable to alleged nonrecordation by conjecturing that the grand jury was presented hearsay testimony prior to the return of its indictment. It is true that in United States v. Arcuri, 405 F.2d 691 (2d Cir. 1968), cert. denied, 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969), and United States v. Gramolini, 301 F.Supp. 39 (D.R.I.1969), the deliberate use of hearsay before the grand jury, when direct testimony was available, was criticized and recognized as a possible basis for dismissal of the indictment. 405 F.2d at 693-694; 301 F.Supp. at 42-43. In this case, however, there has been no showing that hearsay testimony was so used; indeed, the Government notes that several participants in the conspiracy testified before the grand jury. Nonetheless, this circuit has not yet so limited Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), wherein an indictment issued by a grand jury before which only hearsay testimony was elicited was held sufficient. See United States v. Fox, 425 F.2d 996, 1001 (9th Cir. 1970). Thus, even if hearsay testimony was presented before this grand jury, in order for an indictment procured partially by incompetent evidence to be dismissed on appeal, Fox requires a showing that the trial court abused its discretion in failing to do so. Id. Given the presence here of substantial direct evidence before the grand jury, such a showing has not been made.

Appellants further contend that partial nonrecordation in this case resulted in prejudice since, at their trial, they were “confronted with testimony from witnesses who did not testify before the grand jury.” On the contrary, there is no requirement that all witnesses who testify at a trial must previously testify before the grand jury which indicts the defendant. United States v. Nasse, 432 F.2d 1293, 1305 (7th Cir. 1970), cert. denied, 401 U.S. 938, 91 S.Ct. 927, 28 L.Ed.2d 217 (1971).

Adequacy of Discovery

Since there had been no seizure of marijuana in this case, there were no scientific tests on the substance that could be discovered by appellant Teresi. Furthermore, as will be discussed infra, the presence of marijuana was not material to this prosecution for conspiracy to smuggle marijuana. Hence, Teresi’s request to discover the results of any tests made on the substance did not satisfy the “relevancy” requirement of Fed.R. Crim.P. 16(a) or the “materiality” requirement of Fed.R.Crim.P. 16(b).

The denial of appellants’ pretrial motion for disclosure of grand jury testimony was proper since there was no demonstration of any “particularized need” to examine the testimony at that time. Dennis v. United States, 384 U.S. 855, 872-873, 86 S.Ct. 1840, 16 L.Ed. 2d 973 (1966); United States v. Parker, 469 F.2d 884, 888-889 (10th Cir. 1972); United States v. Cole, 449 F.2d 194, 198 (8th Cir. 1971), cert. denied, 405 U.S. 931, 92 S.Ct. 987, 30 L.Ed.2d 806 (1972). Counsel for appellants were provided copies of relevant testimony before the grand jury during the course of the trial and in time to facilitate effective cross-examination. Absent any express need for earlier disclosure, this was all that was necessary. Dennis, supra at 875, 86 S.Ct. at 1840.

The District Court’s denial of Teresi’s motion for a witness list was not erroneous; in a noncapital case such as this, there is no entitlement to such a list prior to trial. United States v. Glass, 421 F.2d 832, 833 (9th Cir. 1969). Appellant Teresi further objects to the “concealment” of certain Government witnesses during pretrial proceedings. The seclusion of such witnesses, however, was consistent with the lack of any requirement to disclose the identities of Government witnesses prior to trial. United States v. Glass, supra. Such a procedure is also properly authorized by Fed.R.Crim.P. 16(d), (e).

Teresi alleges that it was erroneous to deny him the opportunity, upon cross-examination of “the government witnesses,” to discover the current addresses of these witnesses. The appellee answers that such an objection was made during the trial, but was made with regard to only one witness. Indeed, this is consistent with the relevant motion filed by Teresi below. C.T. at 155. The appellee further represents that this information was provided to the appellant. Assuming that the information was not so provided, however, the foreclosure of this inquiry on cross-examination, although erroneous, Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), was harmless. In Smith, the “only real question at the trial” was the relative credibility of the defendant and the' prosecution witness whose address was not disclosed. Smith, supra at 130. Here, in addition to the witness whose address was sought, eight accomplices testified as Government witnesses at Teresi’s trial.

Denial of Teresi’s Motion for a New Trial

The decision whether or not to conduct an evidentiary hearing to consider a motion for a new trial is a matter of discretion. United States v. Clay, 476 F.2d 1211, 1216 (9th Cir. 1973). Moreover, for a new trial motion to be granted, the movant must show that the newly discovered evidence is not merely cumulative and would “probably produce an acquittal.” Id. at 1215. Teresi’s “newly discovered evidence” was a possibility that two witnesses, in exchange for their testimony, had been promised a dismissal of criminal charges against them. The testimony of these two witnesses was not significant as to appellant Teresi. Given the presence of other testimony sufficiently establishing the existence of the conspiracy, and Teresi’s participation in it, one cannot say that the use of the “newly discovered evidence” to attempt to impeach the credibility of these witnesses would, even if the impeachment were successful, “probably produce an acquittal.” Appellant’s motion for a new. trial was properly denied. Cf. Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954).

Teresi’s Jury Instructions

Appellant requested a jury instruction to the effect that, if the jury should find his codefendant Thompson not guilty by reason of insanity, then Teresi could not be considered a member of the conspiracy until it was shown that Teresi had conspired with one who was mentally competent. Since Thompson was found guilty, the refusal to give this instruction, even if assumed to be erroneous, was harmless. Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); Sang Soon Sur v. United States, 167 F.2d 431, 433 (9th Cir. 1948).

Teresi also appeals the denial of his requested instruction that the object smuggled as a result of this conspiracy must have been proved to have been marijuana. Appellant contends that, since this is a specific intent charge to violate the federal narcotics law, “there could be no conspiracy to violate the marijuana laws” unless the substance in question was in fact marijuana. Yet the crime of conspiracy is complete upon the agreement to violate the law, as implemented by one or more overt acts (however innocent such may be), and is not at all dependent upon the ultimate success or failure of the planned scheme. United States v. Rabinowich, 238 U.S. 78, 86-88, 35 S.Ct. 682, 59 L.Ed. 1211 (1915); Toliver v. United States, 224 F.2d 742, 744 (9th Cir. 1955). Thus, whether or not the substance involved was marijuana is irrelevant. Accordingly, although the jury received inconsistent instructions concerning the necessity for proof of actual marijuana, this was harmless error. Ryan v. United States, 278 F.2d 836, 839 (9th Cir. 1960).

Teresi further contends that he was entitled to a jury instruction which would indicate that 18 U.S.C. § 371 (the general conspiracy statute) was a lesser included offense of 21 U.S.C. § 176a (conspiracy to smuggle marijuana). Since both these statutes might be applied to the same criminal conduct, the particular statute (21 U.S.C. § 176a) renders the other, general statute irrelevant. Conerly v. United States, 350 F. 2d 679, 681-682 (9th Cir. 1965), cert. denied, 382 U.S. 1018, 86 S.Ct. 638, 15 L.Ed.2d 534 (1966) ; Enzor v. United States, 262 F.2d 172, 174 (5th Cir. 1958), cert. denied, 359 U.S. 953, 79 S. Ct. 740, 3 L.Ed.2d 761 (1959).

Appellant’s final argument relates to the denial of his requested entrapment instruction. Since Teresi did not admit the acts constituting the crime charged, however, the defense of entrapment was not available to him. United States v. Hendricks, 456 F.2d 167, 169 (9th Cir. 1972).

The convictions of both appellants are affirmed.

      . The statute -was repealed in 1970. Act of Oct. 27, 1970, Pub.L.No.91-513, tit. III, pt. B, § 1101(a) (2), 84 Stat. 1291.

      . At oral argument, counsel for appellant Teresi asserted his belief based upon unofficial information that Teresi is now deceased. Counsel was given 10 days within which to verify this belief. No such verification lias been submitted to the court, and we decline to assume the existence of Teresi’s death as fact.

      . Brief of Appellee, United States v. Thompson, at 6; Brief of Appellee, United States v. Teresi, at 7, making reference to pages of the reporter’s transcript of the trial where defendants’ counsel referred to grand jury testimony in cross-examination.

      . In appellants’ Motion for Pretrial Discovery, counsel merely stated tliat he “seeks these transcripts and records in order to prepare, among other things, for the trial as well as the motion to dismiss.” C.T. at 44. This contrasts sharply with the “partieular-ized need” evident in Dennis. . Dennis, supra at 872-873, 86 S.Ct. at 1840.

      . Brief of Appellee, United States v. Teresi, at 11.

      . See R.T. at 2029-30. The witnesses, Nicholas and Edward Saenz, testified primarily about several meetings that they had attended with Thompson and other unindicted co-conspirators in which plans to smuggle marijuana were discussed.

      . Thompson’s defense below was that, at the time these smuggling activities occurred, he was legally incompetent because of extensive drug usage.

      . At one juncture the court charged the jury:
      “[P]roof that marijuana was in fact obtained or imported is not required, it being sufficient if tlie plaintiff prove beyond a reasonable doubt that defendants knowingly and intentionally conspired to do any of the acts forbidden by the statute.” R.T. at 2083.
      Subsequently, however, the court stated:
      “In the indictment it is alleged that a particular amount or quantity of marijuana was involved. The evidence in the case need not establish that the amount or quantity of marijuana was as alleged in the indictment, but only that some measurable amount of marijuana was in fact the subject of the acts charged in the indictment.” R.T. at 2091.


text:
    Andres HALL, Plaintiff-Appellee, v. PEOPLE TO PEOPLE HEALTH FOUNDATION, INC., and Grace Line, Inc., Defendants-Appellants.
    No. 117, Docket 73-1705.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 20, 1973.
    Decided Jan. 4, 1974.
    Renate H. Model, New York City (F. L. Wertheimer, New York City, on the brief), for appellee.

      Joseph F. Ryan, Jr., New York City (Kirlin, Campbell & Keating and Charles N. Fiddler, New York City, on the brief), for appellants.
    Before LUMBARD, MANSFIELD and MULLIGAN, Circuit Judges.
   PER CURIAM:

The People to People Health Foundation, Inc., and the Grace Line, Inc., appeal from an order entered on March 13, 1973 in the Southern District of New York in which Judge Carter directed them to pay $10,000 to Andres Hall under the terms of an alleged settlement agreement. Appellants claim that there was never a valid settlement. We agree and, therefore, reverse.

On August 22, 1969, Andres Hall sued under the Jones Act, 46 U.S.C. § 688, for injuries allegedly suffered on August 23, 1968 while he. was employed on the S. S. Hope, allegedly owned by the People to People Health Foundation and operated by the Grace Line. Hall claimed that because of appellants’ negligence a fire pump on which he was working leaked and sprayed him with scalding water which caused him to twist in such a manner that his neck was injured. Appellants’ answer denied liability.

On a later voyage of the S. S. Hope, Hall was involved in a fracas with one of the officers on February 7, 1970. He was subsequently indicted for assault and convicted after a trial in the Southern District before Judge Levet. The conviction was affirmed on appeal. United States v. Hall, 448 F.2d 114 (2d Cir. 1971), cert. denied, 405 U.S. 935, 92 S.Ct. 971, 30 L.Ed.2d 810 (1972). The complaint filed in 1969, of course, did not refer to t&js incident.

The events at issue here began with settlement negotiations between counsel for the parties that started in late 1971. On December 16, 1971, Hall’s counsel informed him that he could get $10,000 if he would settle his claim and Hall agreed. Appellants sent Hall’s counsel a release on January 25, 1972, which stated that all claims against appellants including those arising from both the 1968 accident and the 1970 assault were waived in return for the $10,000. Since he felt that he might have a claim for damages for injuries suffered in the assault, Hall balked at signing the release and his counsel informed appellants that the release was “not in the form agreed upon.” A second form of release was sent on April 13, 1972, but this was objected to on the grounds that it did not clearly exclude the assault. Appellants’ counsel then told Hall’s counsel to type in a clause specifically excluding the assault. Although this finding is disputed, Judge Carter found that Hall never refused to sign the revised release.

On May 3, 1972, appellants moved to dismiss the case and pay the $10,000 into court on the grounds that Hall had refused to sign the release even though he had authorized his attorney to settle the case for $10,000. On May 5, Hall’s counsel submitted an affirmation in support of the motion in which she stated that Hall had refused to sign a release exempting the assault. Hall himself sent a letter asking for a postponement in which he indicated that he had refused to sign the earlier release, but said that he had not seen a new release that his attorney had told him about. He also expressed the belief that her affirmation of May 5 demonstrated that his attorney never “had my best interest at heart.” Probably as a result of this letter, Judge Frankel denied the motion on May 16.

After May 16, the parties began to prepare for a trial. For example, on May 18 Hall’s attorney submitted a statement to the district court that the parties had been unable to settle and also requested that appellants answer previously sent interrogatories. At least' one person, a Dr. Webb, was subsequently deposed. On October 12, 1972, appellants’ counsel confirmed to Hall’s attorney that the settlement was no longer viable and that the case would be litigated.

On November 2, 1972, Hall finally signed the revised release. Appellants, however, refused to accept any settlement at that late date. Hall then moved to enforce the settlement. Judge Carter’s decision in favor of Hall is on appeal here.

Apparently overlooking the distinction between an executory accord and a mere offer to settle, see 6 A. Corbin, Contracts § 1270 (1962), appellants center their arguments on whether there was a valid offer and acceptance and on the basic principle that a rejection of an offer terminates the power of acceptance unless the offer otherwise provides. Appellants dispute Judge Carter’s finding that Hall never rejected their offer of settlement since he never refused to sign the revised release. Appellants claim that Hall is bound by his counsel’s affirmation on May 5, 1972, which stated he had refused to sign the revised release, that the evidence indicated that Hall refused to sign the release, and that Judge Frankel’s order of May 16 indicated that there had been a rejection by Hall.

We need not decide these issues since we think there was an executory accord on December 16, 1971, which' Hall subsequently abandoned by failing to sign the release conforming to the agreement within a reasonable time. When as here, a settlement agreement fixes no time for the performance of a particular condition, performance must be within a reasonable time. See Kotlowitz v. Vogue Service Co., Inc., 65 Misc.2d 940, 319 N.Y.S.2d 263 (N.Y. Civ.Ct.1971); Bruce Realty Co. of Florida v. Berger, 327 F.Supp. 507 (S.D.N.Y.1971). See generally 6 S. Williston, Contracts § 832, at 96-100 (3d ed. 1962). Viewing the facts most favorably to Hall, he had not refused to sign the release by May 16, 1972. A reasonable time to sign in this case is a few days or, at most, a few weeks after May 16. Counsel had reached a settlement to which Hall had agreed in principle. After sending the letter it was incumbent upon him to act promptly to sign the release or to abandon the settlement agreement. A delay of five months in signing is entirely unreasonable. The other parties would then naturally have assumed that he had no intention of signing and would change their positions accordingly. To the extent that this delay was caused by Hall’s counsel, he is bound by her failure to act. Cf. Link v. Wabash R. R., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962).

Accordingly, the judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

      . This was in addition to the $5,187.70 which had been paid to Hall by appellants when he was unable to work.

      . One possible factor in this refusal to settle may be Dr. Webb’s testimony on deposition that Hall had never complained about any accident to him and that x-rays showed an old, not a new, neck injury.

      . The parties have not discussed the issue, but since the agreement was allegedly made in New York and was to be performed in New York, New York law governs. Because the issue is one of settling a federal claim brought in a federal district court, we have ancillary jurisdiction over it. See J. Moore, Federal Practice 1J0.90[3J (1970).

      . Hall did spend part of this period in the federal facility at Danbury, Connecticut, serving his sentence on the assault charge. Nevertheless, his counsel could have sent him the release by mail, which he then could have signed and had notarized.