text:
    Donald Edward MOZINGO, Petitioner-Appellee, v. Walter E. CRAVEN, Warden, Folsom State Prison, Respondent-Appellant.
    No. 72-1755.
    United States Court of Appeals, Ninth Circuit.
    Feb. 12, 1973.
    Daniel W. McGovern, Deputy Atty. Gen. (argued), Russell Iungerich, Deputy Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Evelle J. Younger, Atty. Gen., Los Angeles, Cal., for respondent-appellant.
    Gerald F. Uelman (argued), School of Law, Loyola University, Los Angeles, Cal., for petitioner-appellee.
    Before HAMLEY, MERRILL and HUFSTEDLER, Circuit Judges.
   PER CURIAM:

Donald Edward Mozingo, a California state prisoner, petitioned the district court for a writ of habeas corpus. He complained that at a Parole and Community Service hearing, which resulted in the suspension of his parole for engaging in a bar room brawl, and in a subsequent parole revocation hearing on March 13, 1970, based on the same charge, he was denied the asserted due process right of confronting and cross-examining the witnesses who testified against him.

After a hearing the district court ordered that a writ issue unless, within sixty days, the warden and the State of California institute a new hearing on these charges before the California Adult Authority, 341 F.Supp. 296. Such a hearing, the court ordered, must meet the requirements of due process, “including the right of the petitioner to the assistance of counsel, to confront adverse witnesses and to present witnesses on his own behalf.” The warden appeals.

Appellant has moved for an order vacating the district court order as moot and dismissing the petition. In support of this motion appellant points out that, following the revocation of parole in question, Mozingo was once more re-, leased on parole, violated the terms of the latter parole, and is now in custody as a result of the revocation of the latter parole.

At oral argument we asked counsel for appellant to ascertain whether the California Adult Authority would agree to disregard the complained-of March 13, 1970, parole revocation in the future if this court ordered the district court to vacate its judgment and dismiss the petition as moot. Counsel has reported to us that he has been unable to obtain such an assurance.

Because of possible prejudice to Mozingo inherent in the questioned revocation of parole, notwithstanding the subsequent parole revocation not here in question, we deny the motion that the proceeding be terminated as moot. See Scarpelli v. Gagnon, 317 F.Supp. 72 (E.D.Wis.1970), aff’d, Gunsolus v. Gagnon, 454 F.2d 416, 418, 423 (7th Cir. 1971) , cert. granted, 408 U.S. 921, 92 S.Ct. 2490, 33 L.Ed.2d 331 (1972).

Having in view the previous state court proceedings in which Mozingo sought to set aside the parole revocation in issue, we also reject appellant’s contention that Mozingo has failed to exhaust his state remedies.

In entering the order under review, the district court relied primarily upon the decisions of this court in Wilburn v. Nelson, 458 F.2d 502 (9th Cir. 1972); and Dennis v. California Adult Authority, 456 F.2d 1240 (9th Cir. 1972). We agree with the district court that, under the circumstances of this case, the Wilburn and Dennis decisions call for a conditional grant of the writ such as was ordered in this case.

Because of the subsequent parole revocation proceedings referred to above, Mozingo is not entitled to release pending the reinstituted parole revocation proceedings provided for in the district court order.

Affirmed.

      . Counsel for appellant cites three cases to support his contention that the challenge to the parole revocation of March 13, 1970, is moot. The most recent case, Nelson v. United States, 443 F.2d 75 (5th Cir. 1971), appears to support this proposition. However, the court in Nelson apparently did not consider the possible collateral consequences of the challenged parole revocation. If there were none, then Nelson is distinguishable from Mozingo. In Mozingo, each time parole was revoked the sentence was refixed for a longer term, thus collateral consequences continue even though he was paroled again and that parole was revoked. What we say of the Nelson case is also true of Blackburn v. United States Parole Board, 429 F.2d 364 (5th Cir. 1970).
      In Marchand v. Director, United States Probation Office, 421 F.2d 331, 336 (1st Cir. 1970), the court did recognize a distinction between the petitioner, who was no longer under the continuing jurisdiction of the parole board, and someone who was under that jurisdiction. Thus, Marchand is distinguishable from Mozingo because of the absence of collateral consequences in Marchand.

      . The basic constitutional requirements which must be satisfied as a matter of course in every parole revocation proceeding, as announced in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), are applicable to revocations of parole entered after June 29, 1972, when Morrissey was decided (see 408 U.S. at 490, 92 S.Ct. 2593 and are not applicable to Mozingo’s parole revocation of March 13, 1970. See M’Clary v. California Adult Authority, 466 F.2d 1122 (9th Cir. 1972). See also, People v. Vickers, 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313 (1972). However, prior to Morrissey, this court held that due process requires that parole boards employ such procedures, to be determined on a case-by-ease basis, as are “reasonably . and fairly designed to enable it to ascertain whether issues existed concerning the asserted violation and to make an informed decision upon such issues.” Dennis v. California Adult Authority, 456 F.2d 1240, 1241 (9th Cir. 1972). See also M’Clary, supra; Wilburn v. Nelson, 458 F.2d 502 (9th Cir. 1972). This rule of case-by-case determination, which was the basis for the conditional writ granted by the district court here, is not affected by the non-retroactivity of Morrissey.


source: Caselaw Access Project

author: BELLONI, District Judge:

license: Public Domain

text:
    Margaret JENKINS, Plaintiff-Appellant, v. U. S. POST OFFICE et al., Defendants-Appellees.
    No. 72-2287.
    United States Court of Appeals, Ninth Circuit.
    March 15, 1973.
    Peter Greenfield (argued), Legal Services Center, Seattle, Wash., for plaintiff-appellant.
    Joseph B. Scott, Atty. (argued), Alan S. Rosenthal, Atty., Harlington Wood, Jr., Asst. Atty. Gen., Civil Div., Dept, of Justice, Washington, D. C., Stan Pitkin, U. S. Atty., Ernest Scott, Jr., Asst. U. S. Atty., Seattle, Wash., for defendants-appellees.
    Before KOELSCH and WRIGHT, Circuit Judges, and BELLONI, District Judge.

       Honorable Robert O. Belloni, United States District Judge, District of Oregon, sitting by designation.

   BELLONI, District Judge:

This is an appeal from an order granting summary judgment in favor of the United States.

Margaret Jenkins (plaintiff) was employed as a postal trainee by the United States Post Office. Her appointment was “career conditional” with a one year probationary period. Plaintiff’s employment was terminated in the course of the probationary period because of her “failure to meet minimum standard requirements.” Plaintiff was informed of her discharge by letter which additionally advised her that “[t]here is no allowable appeal from this decision through the Post Office Department procedures.”

Plaintiff maintains that she was entitled to a pre-dismissal hearing. Conceding that the right to a hearing is not authorized by any statute or regulation, plaintiff contends that such a hearing is required by the Fifth Amendment, and that her termination from government employment without a hearing constituted a deprivation of liberty and property without due process of law.

We find plaintiff’s arguments unconvincing and affirm the decision of the district court.

Plaintiff suggests that the Constitution requires a hearing to protect an individual’s liberty any time a government employee is discharged under circumstances which reflect unfavorably upon his character. This proposition is overly broad. “[A]ny reason [assigned for the dismissal] other than reduction in force is likely to be to some extent a reflection on a probationer’s ability, temperament, or character.” Medoff v. Freeman, 362 F.2d 472, 476 (1st Cir. (1966). Nonetheless, not every dismissal attains constitutional proportions. “Where a person’s good name, reputation, honor or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971). However, a posting procedure similar to that which concerned the Court in Constantineau is not at issue here. Plaintiff’s reliance on Constantineau is inappropriate.

Plaintiff did not have a property interest in her continued employment. “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The Court, in Roth, further observed that “[p]roperty interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Roth at 577, 92 S.Ct. at 2709. Plaintiff was a probationary employee and as such had no right to continued employment. Plaintiff’s status did not give rise to a property interest entitling her to a predismissal hearing.

Affirmed.


author: PER CURIAM:

text:
    UNITED STATES of America ex rel. Joe McGILL, Petitioner-Appellant, v. Theodore SCHUBIN, Warden, Ossining Correctional Facility, Respondent-Appellee.
    No. 711, Docket 72-2302.
    United States Court of Appeals, Second Circuit.
    Argued March 28, 1973.
    Decided April 2, 1973.

      Robert A. Stolzberg, The Legal Aid Society, Prisoners’ Rights Project, New York City (William E. Hellerstein, New York City, on the brief), for petitioner-appellant.
    Stephen P. Seligman, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., State of New York, and Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for respondent-appellee.
    Before FRIENDLY, Chief Judge, LUMBARD, Circuit Judge, and THOMSEN, District Judge.

       Senior District Judge of the District of Maryland, sitting by designation.

   PER CURIAM:

Joe McGill appeals from an order of the Southern District denying his petition for habeas corpus. On June 18, 1969, in the Supreme Court of New York County, appellant was convicted of the crime of criminal possession of a dangerous weapon and was sentenced to a four-year indeterminate term. After serving two years and eight months if his sentence, he was released from confinement on a conditional release, pursuant to New York Penal Law § 70.40. Eleven months later, appellant violated a condition of his release and was returned to prison. Prior to his conditional release, the maximum expiration date of appellant’s term was May 30,1972. However, when his release was revoked, the state, pursuant to the statutes governing conditional release, refused to give appellant sentence credit for the eleven months that he was conditionally released prior to his violation. As a result, the maximum expiration date of his sentence was extended to April 21, 1973. Appellant claims that the denial of sentence credit and the consequent extension of his maximum expiration date was improper.

After vainly seeking habeas corpus in the state courts, appellant filed the present petition in the Southern District in which he raised the same claims he had asserted in the state proceeding. On appeal from the district court’s denial of his petition, appellant makes two contentions: 1) that the state’s depriving him of sentence credit for the time served on his conditional release prior to his violation and thus extending his maximum release date violated the double jeopardy clause of the fifth amendment, made applicable to the states by the due process clause of the fourteenth amendment; and 2) that by denying appellant, a conditional releasee, sentence credit while affording such credit to parolees who violate their parole, the state violated appellant’s right to equal protection of the law. For reasons that follow, we do not find these contentions to be meritorious and, therefore, we affirm the order of the district court.

The New York conditional release provisions are very similar to the federal parole statute, which provides for denial of sentence credit when parole is violated. When presented with challenges to the validity of this federal provision, the courts of appeals have consistently found it to be constitutional (See, e. g., O’Callahan v. Attorney General, 351 F.2d 43 (1st Cir. 1965), cert. denied, 382 U.S. 1017, 86 S.Ct. 632, 15 L.Ed.2d 531 (1966); Moore v. Smith, 412 F.2d 720, 725 (7th Cir. 1969); and Dolan v. Swope, 138 F.2d 301 (7th Cir. 1943)), although this circuit has apparently not yet considered the question. The courts have rejected appellant’s double jeopardy claim on the ground that the denial of credit for time served on parole when a parole violator is returned to prison does not amount to an extension of the parolee’s sentence, but rather is “potentially a part of the original sentence, [and] hence not invalid for violation of the double jeopardy inhibition.” Dolan v. Swope, supra, p. 304. We agree with this analysis of the issue and find it equally applicable to the conditional release provisions of New York law. Accordingly, we reject appellant’s contention that the denial of sentence credit for the time he spent on conditional release violated the double jeopardy clause.

When a parolee, in contrast to a conditional releasee, violates the terms of his release, New York law provides that, upon his return to prison, he shall be given credit on his sentence for the time spent on parole prior to the violation. Appellant contends that, in treating conditional releasees more harshly than parolees with regard to sentence credit for time spent on release, the state is violating equal protection because there is no rational basis to support this difference in treatment. However, we conclude that the distinction drawn in New York law is amply supported by rational grounds.

In its brief, the state has informed us that, because of the nature of conditional release, an inmate who is so released will have already served at least two-thirds of his sentence, whereas parole is typically effected at an earlier portion of the sentence. The significance of this fact is that the state can reasonably conclude that a parolee will have a sufficient amount of time remaining in his sentence to deter him from absconding or engaging in prohibited conduct during the crucial readjustment period immediately following his release from prison, but that a conditional releasee, with a much shorter portion of his sentence remaining at this time, will be substantially less deterred if he need only serve the remainder of his sentence without forfeiture of time spent on release.

The state has an interest in providing an adequate sanction in the event that conditional releasees violate the conditions of their release. We cannot say that this interest does not supply a rational basis for the distinction that New York has drawn. It does not matter that the state scheme may result in harsher sanctions for the conditional releasee than for the parolee. The broader considerations that go into the decision to grant parole justify the state in concluding that a conditional releasee represents a greater risk to the community and requires a sharper deterrent than does a parolee. Thus, we reject appellant’s equal protection contention and, accordingly, affirm the district court’s denial of the petition.

      . § 70.40(1) (a) provides that a prison inmate serving an indeterminate term may be conditionally released, if he so elects, when his total accumulated good-behavior time is equal to the remaining unserved portion of his maximum term. The difference between conditional release and parole is that the latter is granted only at the discretion of the parole board while the former is granted, with no prior exercise of discretion, as soon as the accumulated good-behavior time equals the unserved portion of the sentence.

      . Penal Law § 70.40(1) (b) and (3) (b) provide that the conditional releasee shall not receive sentence credit for the period of release unless he completes the period of the release without breaching the conditions thereof. Correction Law § 827(5) makes such a term a condition to which the prisoner must agree at the time he elects to be released.

      . 18 U.S.C. § 4205.

      . Penal Law § 70.40(1) (a).

      . Conditional release is tied to the amount of accumulated good-behavior time, which Penal Law § 70.30(4) limits to a maximum of one-third of the prisoner's maximum or aggregate maximum term.


author: PER CURIAM.

text:
    Marion H. WILLIAMS, Petitioner, v. Harold J. CARDWELL, Respondent.
    No. 72-1924.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 12, 1973.
    Decided March 30, 1973.
    George W. Hairston (Court appointed), Columbus, Ohio, for appellant; George, Greek, King, McMahon & Mc-Connaughey, Columbus, Ohio, on brief.
    Jeffrey L. McClelland, Asst. Atty. Gen., Columbus, Ohio, for appellee; William J. Brown, Atty. Gen., Columbus, Ohio, on brief.
    Before WEICK, MILLER and LIVELY, Circuit Judges.
   PER CURIAM.

Williams, an inmate of the Ohio penitentiary at Columbus, Ohio, was convicted by a jury in the Common Pleas Court of Franklin County of unlawfully participating in a prison riot and unlawfully holding or participating in holding hostages by force and threat, all in violation of § 2921.18 Ohio Revised Code. His conviction was affirmed on appeal by the Court of Appeals for Franklin County and his motion for leave to appeal to the Supreme Court of Ohio was dismissed by that Court on the ground that no constitutional question was presented.

He then applied to the District Court for a writ of habeas corpus alleging that his conviction in the state court was a violation of his constitutional rights in six different particulars. The District Court granted an evidentiary hearing and, in addition, considered the case on the trial record and the briefs and arguments of counsel. The District Court prepared and filed an Opinion and Order in which he considered all of the issues raised by Williams and denied the writ.

Williams has appealed to this court on a single' issue, namely, that he was denied the effective assistance of counsel because the lawyer who was appointed by the state court to represent him seven months before the trial was denied permission to interview other inmates at the prison, and was denied access to Williams’ prison and medical records until the day of the trial.

Williams’ defense at the trial was that he did not participate in the riot and was unable to do so because he was “high” on drugs.

The District Court found, however, that the appointed counsel was afforded an opportunity to and did interview the prison inmates which he subpoenaed at the time of the trial, and that he was also permitted to inspect Williams’ prison and medical records, The counsel did offer medical evidence in support of his contention that Williams was high on drugs. The state court charged the jury on the issue of intent.

The District Court found that counsel adequately represented Williams and failed to prove that the earlier denial of access was prejudicial.

In our opinion, the findings of fact of the District Court in his well-considered opinion were supported by substantial evidence and are not clearly erroneous. In his conclusions of law, the District Court correctly applied the law.

The judgment of the District Court is therefore affirmed.


text:
    AKIN MOBILE HOMES, INC., Plaintiff-Appellant, v. SECRETARY OF HOUSING & URBAN DEVELOPMENT and Department of Housing & Urban Development, etc., Defendants-Appellees.
    No. 72-3572
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 5, 1973.

      Thomas M. Hendricks, Jr., Pigford & Hendricks, Howard R. Pigford, Meridian, Miss., for plaintiff-appellant.
    Robert E. Hauberg, U. S. Atty., Joseph E. Brown, Jr., Asst. U. S. Atty., Jackson, Miss., for defendants-appellees.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

The appellant’s suit was dismissed below without prejudice to the plaintiff’s right to sue the United States under the Tucker Act in the U. S. Court of Claims.

The suit arose out of a dispute concerning contractual negotiations between the parties for the lease on an emergency basis of approximately 400 mobile homes to HUD for the use of residents of Southern Mississippi rendered homeless by Hurricane Camille, which struck the Mississippi Gulf Coast on August 17, 1969. According to the complaint the plaintiff was required to pay state and local taxes in the amount of $76,002.25, an item not contemplated in the telegraphic negotiations between the parties. The complaint alleged that HUD had renegotiated other contracts to take care of similar inequities with other lessors similarly situated, and that officials of HUD had failed and refused to renegotiate appellant’s contract.

The district judge was not in error in concluding that this case should be dismissed for lack of jurisdiction and further that Title 12, U.S.C., Section 1702, does not provide a basis for concurrent jurisdiction of the district court with the Court of Claims. The judgment appealed from is Affirmed.

      . The amount claimed exceeded the district court’s $10,000 limitation pi jurisdiction under the Tucker Act, Title 28, U.S.C., Section 1346(a)(2).

      . The memorandum-opinion and judgment of the lower court are reported sub nom. Akin Mobile Homes, Inc., a Mississippi Corporation v. Secretary of Housing & Urban Development and Department of Housing & Urban Development, An Agency of the U. S. Government, Washington, D.C., S.D.Miss.1972, 354 F.Supp. 1036.


text:
    UNITED STATES of America, Appellee, v. Marshall Lee VAUGHAN, Appellant.
    No. 72-1636.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Feb. 22, 1973.
    Decided March 29, 1973.
    Rehearing Denied May 1, 1973.

      Jim Merz, Oklahoma City, Okl., for appellant.
    Floy E. Dawson, Asst. U. S. Atty. (William R. Burkett, U. S. Atty., with him on the Brief), for appellee.
    Before SETH, McWILLIAMS and BARRETT, Circuit Judges.
   PER CURIAM.

The defendant was charged with possession of marijuana in violation of 21 U.S.C. § 844, tried, and found guilty. He has taken this appeal, raising only the issue as to the refusal of the trial court to suppress evidence secured by a search of defendant’s automobile.

The incident which gave rise to the search arose when defendant Vaughan, a civilian, approached one of the main entry gates to Tinker Air Force Base in Oklahoma. This is a large base with thousands of civilian employees. Although the pickup truck that he was driving had a base decal on the windshield, he was stopped by the gate guards and asked for identification. Due to the possibility that a demonstration against the Vietnam War was imminent, the Base Commander had issued orders that no visitors were to be allowed on the base.

When stopped at the gate, Vaughan stated that he was going to pick up his wife for lunch, and that she worked at the commissary. When asked for identification, he presented the gate guard with an expired Marine Corps Reserve Identification card, which the guard confiscated. Defendant was directed to park by the side of the street. The guard then called his supervisor, and when he arrived the two proceeded to search Vaughan’s vehicle. No consent was requested or given. The supervisor reached under the front seat of the pickup where he found a child’s coonskin cap. In the cap was a small amount of marijuana, and Vaughan was then arrested.

Prior to trial, Vaughan moved to have the marijuana suppressed, asserting that it had been obtained as the result of an illegal search and seizure. The trial court denied the motion, and this is the error asserted by defendant on this appeal.

The Government’s position is that a person within the restricted area of a military reservation is subject to having his person and his vehicle searched in the interest of military security. Further it asserts that submitting to search could be validly imposed as a condition to gaining access to a military reservation. Both of these positions are correct; however, the facts of the instant case do not lead to such a ready solution, and we must hold that the search here conducted was improper.

The testimony of the gate guard, William Ladd, who originally stopped defendant, is very significant. A portion is quoted:

“Q [By Jim Merz, appellant’s attorney] Now, what was his status, if you know, at the time he [Vaughan] was making request for entering on the base? Was he a visitor or what was he?
“A No, he wasn’t visiting, he was going to pick up his wife.
“Q All right, now, assume his card was in proper order, would you have allowed him on the base ?
“A At that time, no.
“Q Why not?
“A Because we were on strict security.
“Q How did that relate to visitors ?
“A Visitors were not allowed.
“Q No visitors?
“A No vistors, not at that time.
“Q So, he couldn’t get on anyway?
“A He couldn’t get on.”

And later in the testimony:

“Q Now, if I understand you correctly, your testimony was that this man was not going on the base.
“A He would be turned around.
“Q And denied access to the base, is that correct?
“A Yes.
“Q I mean prior to the search, he wasn’t going on the base, right?
“A Right.”

The record demonstrates that the gate guard had made a determination that Vaughan was not going to be allowed access to the base. Also, the commanding officer had ordered there be no visitors, and thus the interest or purpose of the Base Commander in protecting the security of the base was never involved. Defendant was not going to be permitted on the base in any event. Thus in order for the search to be proper, it would have had to meet the standards of a search conducted on any public street. The parties have agreed that there was no probable cause for the search, that Vaughan did not consent to it, and that it was not made incident to a lawful arrest. Thus the search was invalid.

The only case brought to our attention which has considered this type of search, United States v. Crowley, 9 F.2d 927 (N.D.Ga.1922), relied on here by the Government to support the validity of the search, is distinguishable from the case at bar. In the Crowley case, a taxi was being searched pursuant to allowing it access to the base. In this case, a determination had already been made prior to the search that Vaughan would not be allowed access to the base, and the search of his pickup was thereafter decided upon.

The Government also points to the large sign posted at the entrance to the Air Force Base and says that consent to the search may be implied. The sign read as follows:

“WARNING. U. S. AIR FORCE BASE. IT IS UNLAWFUL TO ENTER THIS AREA WITHOUT PERMISSION OF THE COMMANDER OF TINKER AIR FORCE BASE. WHILE ON THIS INSTALLATION ALL PERSONNEL AND THE PROPERTY UNDER THEIR CONTROL ARE SUBJECT TO SEARCH.”

While we agree, as we said before, that once within the area where security was imposed, a search conducted without probable cause and without consent could be proper. Also the submission to search could be imposed as a valid condition to gaining access to the base. However, once a determination has been made not to allow defendant entry to the base, any search conducted thereafter must meet Fourth Amendment standards.

Defendant was stopped at the gate, and moved then to one side of the street; he never was within the area where security was imposed; instead he was refused entry. Where the precise boundary of the base may have been thus made no difference.

We note, too, the Judge Advocate General’s Opinion, 1953/1738, set forth in Volume 3, Digest of Opinions, Search and Seizure, Section 11.1 at pages 769-70, in which it is stated that an incoming person should not be searched over his objection, but should be denied any access to the base.

The case must be reversed and remanded with instructions to grant appellant’s motion to suppress the evidence seized during the search in issue.


author: GIBBONS, Circuit Judge.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. David F. IRVIN and James B. McKelvy, Partners, d/b/a The Irvin-McKelvy Company, Respondents.
    No. 72-1168.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 5, 1973.
    Decided March 22, 1973.

      Peter G. Nash, Patrick Hardin, Marcel Mallet-Prevost, Abigail Cooley Baskir, Michael S. Winer, Washington, D. C. , for Petitioner, National Labor Relations Board.
    Francis T. Coleman, William H. Howe, Counihan, Casey & Loomis, Washington, D. C., for Respondents.
    Edward L. Carey, Bernard Dunau, Washington, D. C., for United Mine Workers of America as amicus curiae.
    Before BIGGS and GIBBONS, Circuit Judges, and HUYETT, District Judge.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

This case is before us on the application of the National Labor Relations Board (the Board) filed pursuant to Section 10(e) of the National Labor Retions Act, 29 U.S.C. § 160(e), for enforcement of the November 8, 1971 order against the respondents David F. Irvin and James B. McKelvy, partners doing business as The Irvin-McKelvy Company (the Employer). The Employer is engaged in construction work for coal mine operators in the bituminous coal fields. The charging party in the proceedings before the Board was International Union of District 50, Allied and Technical Workers of the United States (District 50). United Mine Workers of America (UMW), though not a respondent here, participated in the proceedings before the Board as a party to a contract with the Employer, and has filed an amicus curiae brief with this court. The case involves the application of Section 8(f) of the National Labor Relations Act, 29 U.S.C. § 158(f), to prehire collective bargaining agreements in the construction industry made successively with rival labor organizations.

Section 8(f) was enacted as Section 705 of the Labor-Management Reporting and Disclosure Act of 1959, Pub.L. No. 86-257, 73 Stat. 519. It amended Section 8 of the National Labor Relations Act by adding a new subsection, applicable to the construction industry, providing among other things that it would not be, as it would otherwise have been, an unfair labor practice for an employer engaged primarily in that industry, to make a collective bargaining agreement with a labor organization covering its employees prior to the time the majority status of that labor organization had been established in a manner authorized by Section 9 of the Act, 29 U.S.C. § 159. The amendment was adopted to meet specific problems which had arisen in the construction industry under the prior law because of the transitory nature of the employer-employee relationship in that industry. During the Wagner Act period the Board had declined to exercise jurisdiction over the industry. In 1947, after passage of the Taft-HartIey amendments, the Board applied the provisions of the Act to the industry with consequent difficulties. These difficulties are discussed in Senate Report No. 187, House Report No. 741, and Conference Report No. 1147, 86th Cong., 1st Sess. (1959). 1959 U.S.Code Cong. & Ad.News, 86th Cong., 1st Sess. 2318, 2344, 2441, 2513. In summary, prehire agreements which would otherwise be invalid were authorized in the construction industry because of the dual necessities (1) that construction bidders know in advance of bid what their labor costs would be, and (2) that construction employers have access to an available pool of skilled craftsmen for quick reference.

The Employer here falls within § 8(f). It employs a more or less stable work force of approximately eighteen employees. Prior to June, 1964, the employees were not represented for collective bargaining. At that time, in order to obtain work from bituminous coal operators needing construction, the Employer signed a collective bargaining agreement with District 50. This agreement was supplanted, on June 27, 1967, by an industrywide contract between the Coal Mine Construction Contractors Association, Inc. (CMCCA) and District 50, by its terms effective from June 1, 1967 to May 31, 1970.

Both the original June, 1964 contract and the June, 1967 contract contained a union security clause and a dues checkoff clause. The June, 1967 contract contained a “most favored nations” clause to the effect that if District 50 executed any contract with a construction contractor in the coal fields and that contract contained more favorable provisions than the CMCCA-District 50 contract, any employer signatory to the latter could immediately have the benefit of identical provisions. On October 29, 1968, District 50 entered into a contract with Zeni-McKinney-Williams Corporation identical with the CMCCA agreement, except that it was a “project only” agreement rather than one for the term June 1, 1967 to May 31, 1970. Shortly thereafter the general counsel of CMCCA advised District 50 that CMCCA considered the Zeni-McKinneyWilliams contract to be more favorable than the fixed-term agreement, and that all members of CMCCA were thereafter bound to District 50 only for the period of time required for the completion of those construction projects then being worked on. District 50 has always disputed this construction of the “most favored nations” clause, but the Board found that after it entered into a “project only” agreement with a competitor, District 50’s contract with the Employer was converted to a project agreement. That finding is not in dispute in this enforcement proceeding.

In late 1968 the Employer joined the Association of Bituminous Contractors (ABC) in order to avail itself of an agreement which on December 10, 1968, ABC had signed with UMW. By this time the Employer’s customers were advising that to get their construction business the work would have to be done by UMW labor. The Employer continued to recognize the District 50 contract on three or four existing projects. It concluded that as of April 1, 1969, all projects to which the District 50 contract applied were substantially complete. Beginning on April 1, 1969, therefore, it applied to all its employees the provisions of the ABC-UMW contract. The employees joined the UMW. District 50 filed with the Board a charge that the Employer violated Sections 8(a)(1), (2), (3) and (5) of the Act by withdrawing recognition from it and recognizing the UMW.

The Board concluded that as of April 1, 1969, all of the Employer’s employees working on projects still not completed on March 31 were members of District 50, and that on those projects District 50 had majority status. It ruled, therefore, that in ceasing to recognize District 50 as of April 1, 1969, the Employer violated Sections 8(a)(5) and (2) of the Act, and that in requiring employees on projects still in progress on March 31, 1969, to join the UMW the Employer violated Sections 8(a)(3) and (1) of the Act. The Board recognized that the conversion of the District 50 contract from a term to a project agreement left the Employer free to make a § 8(f) prehire agreement with the UMW covering . subsequent projects, but it qualified that recognition by the language “so long as it did not employ at such projects a work force of which a majority were District 50 members.” Irvin-McKelvy Co., 194 NLRB No. 8, 78 LRRM 1516, 1518. As shall be developed hereafter, the qualifying language introduced a serious ambiguity, which was not clarified by those parts of the Board’s cease and desist order dealing with the status of the UMW. The Board ordered the Employer to cease and desist from:

“(d) Requiring membership in the Mine Workers as a condition of employment on any projects covered by Respondent’s contract with District 50. ...”

In its brief in support of the application for enforcement, the General Counsel takes the position that the Board intended the quoted cease and desist provision to apply not only to pre-March 31, 1969 projects, but also to post-March, 1969 projects on which the Employer’s regular work force, members of District 50 by virtue of the union security clause in the § 8(f) contract with that union, may be employed. That position, the General Counsel urges, is consistent with the further provision in the Board order that the Employer:

“2. (a) Withdraw and withhold recognition from the Mine Workers as the collective-bargaining representative of Respondent’s employees who are working on projects covered by the District 50 contract unless and until such labor organization shall have been certified by the National Labor Relations Board.” (emphasis supplied)

The Employer moved before the Board for a clarification of this order. On June 1,1972, the Board ruled:

“By its Decision and Order, the Board intended that when the Respondent, on any project, new or old, continues to use a work complement constituting an appropriate unit of which a majority continues to consist of members of District 50, the Respondent is not free to sign a contract with the United Mine Workers of America or any other labor organization covering the said unit.”

The clarifying order and the italicized language in the original Board order, according to the General Counsel, indicates that the Board has applied to the CMCCA-District 50 contract the presumption of Machinists Local 1424 v. NLRB, 362 U.S. 411, 80 S.Ct. 822, 4 L.Ed.2d 832 (1960); that is, that the six-month limitation in Section 10(b) of the Act, 29 U.S.C. § 160(b), prohibited an inquiry into the majority status of District 50 and the contract carried with it a presumption of majority status.

An appreciation of the General Counsel’s position requires familiarity with the Board’s decision in R. J. Smith Construction Co., 191 NLRB No. 135, 77 LRRM 1493 (1971), enforcem't pending sub nom. Local 150, International Union of Operating Engineers v. NLRB, No. 71-1689 (D.C.Cir.) In that case the Board had before it successive § 8(f) contracts with rival unions. The employer repudiated the first contract, and the first union as charging party urged a § 8(a)(5) violation. The charging party contended that Machinists Local 1424 v. NLRB, supra, gave it, by virtue of its contract, the benefit of an irrebuttable presumption of continued majority status. The Board held;

“Such is not the case with an 8(f) agreement. As previously described, an 8(f) agreement, because of its prehire nature, need not be made with a majority union to be legal. For this reason, there is no basis, either in logic or in policy, to extend to the union which is party to such a contract, an irrebuttable presumption of majority status. Indeed, we conclude that-any such presumption would be irreconcilable with the final proviso to Section 8(f). It is, of course, necessary sometimes to go behind the 10(b) period to see what kind of contract is involved in a particular ease— .... However, once that is accomplished and it is determined that the particular contract is validated by Section 8(f) rather than by Section 9(c)(3) — one to which no irrebuttable presumption of majority status can be attached 5—
5. It is possible that, in some situations, at least a rebuttable presumption of majority will arise from an 8(f) contract. This might occur, for example, when a union-security agreement is present in the 8(f) contract and has been enforced. That is not the case here.”
that is the end of the pre-10(b) inquiry.

R. J. Smith Construction Co., supra, 77 LRRM at 1495-96.

The instant case presents the fact situation hypothesized in footnote 5 of the Board’s R. J. Smith Construction Co. decision. District 50 is party to a § 8(f) contract with a union security agreement which was enforced. The effect of the General Counsel’s interpretation of the Board’s decision is that the Employer may not change the collective bargaining representative of those employees who became members of District 50 under the compulsion of that § 8(f) agreement except by virtue of a § 9(c) or § 9(e) representation petition. The Employer has, in other words, lost the § 8(f) option with respect to such employees.

The Employer, responding to the application for enforcement, urges as a first position that the Board erred in finding that the District 50 contract had not terminated on April 1, 1969. With respect to those projects which were underway prior to March 31, 1969, however, substantial evidence in the record as a whole supports the Board’s finding that in three or four instances the projects were not complete on that date. Since the District 50 contract was by this time a project agreement, it still applied to these projects. Accepting the Board’s findings in this respect, two questions are presented. First, where an employer’s business has more than one bargaining unit (in this case the unfinished projects and subsequent projects to which the first contract by its terms did not apply) may a § 8(f) employer, without a representation proceeding, make a § 8(f) agreement with a new union, although he employs at the new bargaining unit persons who by operation of the union security clause in the first contract became members of the first union? Second, may a § 8(f) employer, without a representation proceeding, repudiate a § 8(f) contract containing a union security clause which has been enforced, and enter into a new § 8(f) contract covering the bargaining unit and employees to which the first contract applied? The first question arises from the Board’s prohibition against recognizing the UMW on new projects where District 50 members are employed. The second question is applicable only to those portions of the Board’s decision finding a violation and its order granting relief with respect to the three or four projects uncompleted on April 1, 1969.

The General Counsel contends that both questions must, by virtue of the so-called Midwest Piping rule, be answered in the negative. In Midwest Piping & Supply Co., 68 NLRB 1060, 17 LRRM 40 (1945), the Board held that an employer violated the Act by executing an agreement with one of two rival unions while a representation dispute was pending. The employer, the Board held, must resort to the representation proceedings specified in the Act. But we think that the General Counsel’s position gives too little heed to the changes wrought, in the construction industry, by the enactment of § 8(f). By that section construction industry employers were excused from the duty of neutrality mandated by the prohibition against unlawful assistance in §§ 8(a)(1), (2) and (3). At the same time the final proviso of § 8.(f) establishes that recognition via the § 8(f) route shall not be a bar to a § 9(c) petition by employees or by a rival labor organization for a representation election. In the construction industry the employer need not remain neutral in representation matters, but both the employees and rival labor organizations are free to resort to the Board for a representation election at any time.

The foregoing discussion suggests, we think, the correct answer to the first question, at least in a context where the first § 8(f) contract is, as here, a project rather than a term agreement. Since there is no duty of neutrality in representation matters, on new projects the Employer was free to assist the UMW by entering into a prehire contract. The union membership of the prospective employees on new projects was irrelevant, at least until such time as they or District 50 petitioned the Board for a representation election pursuant to Section 9(c) of the Act.

The second question, however, is somewhat more complex. While it is clear that a construction industry employer is free to assist a selected union by a prehire agreement that would, except for § 8(f), be unlawful, it does not appear that such an employer has been excused from the duty of bargaining collectively. A refusal to bargain collectively with a designated representative of employees is an unfair labor practice under § 8(a)(5), subject to the provisions of § 9(a). The latter section provides :

“Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representative of all the employees in such unit for the purposes of collective bargaining. . . .” 29 U.S.C. § 159(a).

The Employer suggests that District 50 was never “designated or selected by the majority of the employees in a unit” because the designation was made by it pursuant to § 8(f). It contends that the Board has recognized that,this is the reality of the situation in R. J. Smith Construction Co., supra, which, properly interpreted, leaves a construction industry employer free at all times to repudiate a collective bargaining contract with one union and enter a new one with another. While the contract in R. J. Smith Construction Co., supra, did not contain a union security clause, this, the Employer urges, should make no difference, since that clause is no more free of the taint of employer assistance than the balance of the contract.

Without suggesting how we would rule if presented with the repudiation during its term by a § 8(f) employer of a collective bargaining agreement containing no union security provisions, we reject the interpretation of § 8(f) advanced by the Employer here, where there was a union security clause and a dues checkoff provision, both of which were complied with until April 1, 1969. Nothing in either the text or the legislative history of § 8(f) suggests that it was intended to leave construction industry employers free to repudiate contracts at will. It is significant, we think, that despite the instant contract provisions and their enforcement, the employees did not, from June, 1964 to April, 1969, petition for a representation election. There was at least tacit acquiescence in the designation of District 50 as collective bargaining representative. Whatever may be the correct rule in- the absence of union security and dues checkoff clauses, at least where the union’s role has by the operation of such clauses been brought home to the employees quite directly, and they have refrained from seeking a representation election, an employer is not free to repudiate his § 8(f) contract during its term. That being so, the Employer violated § 8(a) (5) when it unilaterally substituted the terms of the ABC-UMW contract as of April, 1969, on the three or four projects then unfinished.

Because of the passage of time since the last action by the Board (June 1, 1972) it seems highly likely that all projects which were unfinished on March 31, 1969, have now been completed. If this is the ease, the CMCCA-District 50 contract has expired by its terms. Since we have concluded that the Board decision was correct only insofar as it found unfair labor practices in connection with the projects existing but uncompleted on March 31, 1969, the need for injunctive enforcement of the Board’s order may no longer exist. The application for enforcement will be denied insofar as it applies to construction projects commenced by the Employer after April 1, 1969. The application for enforcement will be denied insofar as it applies to construction projects commenced by the Employer prior to, but uncompleted on April 1, 1969, without prejudice to an application by the General Counsel, within thirty days from the filing of our judgment, on notice to the attorney for the Employer, to which a response may be filed within ten days of such notice, setting forth reasons, if any, which may still exist for enforcement of the Board’s order with respect to such projects. If such an application is filed it will be referred by the Clerk to the same panel of this court which heard this application.

      . The Board’s order is reported at 194 NLRB No. 8, 78 LRRM 1516 (1971).

      . Section. 8(f) provides:
      “It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members (not established, maintained, or assisted by any action defined in subsection (a) of this section as an unfair labor practice) because (1) the majority status of such labor organization has not been established under the provisions of section 159 of this title prior to the making of such agreement, or (2) such agreement requires as a condition of employment, membership in such labor organization after the seventh day following the beginning of such employment or the effective date of the agreement, whichever is later, or (3) such agreement requires the employer to notify such labor organization of opportunities for employment with such employer, or gives such labor organization an opportunity to refer qualified applicants for such employment, or (4) such agreement specifies minimum training or experience qualifications for employment or provides for priority in opportunities for employment based upon length of service with such employer, in the industry or in the particular geographical area: Provided, That nothing in this subsection shall set aside the final proviso to subsection (a) (3) of this section : Provided further, That any agreement which would be invalid, but for clause (1) of this subsection, shall not be a bar to a petition filed pursuant to section 159(c) or 159(e) of this title.”

      . The employees did not complain since the hourly wage rates in the ABC-UMW contract were significantly higher. The record discloses these examples:

      . Members Fanning and Brown dissented from the bolding in R. J. Smith Construction Co., 191 NLRB No. 135, 77 LRRM at 1496. They would hold that even in the absence of a union security clause a § 8(f) employer must bargain collectively with a union with which it has made a § 8 (f) contract until its expiration or until a representation election changes the collective bargaining representative. Cf. NLRB v. AAA Electric, Inc., 472 F.2d 444 (6th Cir. 1973).


text:
    Leo HENZEL, Petitioner-Appellant, v. STATE OF FLORIDA, Respondent-Appellee.
    No. 72-1495.
    United States Court of Appeals, Fifth Circuit.
    April 6, 1973.
    Rehearing and Rehearing En Bane Denied May 25, 1973.

      Filindo B. Masino, Philadelphia, Pa., for petitioner-appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Arnold R. Ginsberg, Asst. Atty. Gen., Miami, Fla., for respondentappellee.
    Before COLEMAN, GOLDBERG and GODBOLD, Circuit Judges.
   PER CURIAM.

Petitioner Henzel is a parolee from a Florida state conviction for grand larceny. His third successive federal petition for a writ of habeas corpus was denied by the District Court. Petitioner then filed pro se a petition for rehearing, and later requested that the court delay ruling thereon until he could obtain counsel. Petitioner subsequently filed pro se a lengthy supplemental petition. The District Court considered these petitions despite the fact that they raised numerous grounds not presented in the third petition, and denied the request for rehearing. Petitioner appeals. We affirm.

Petitioner is represented on appeal by counsel who has filed a lengthy brief raising four contentions. The major point is that part of petitioner’s trial was conducted during his involuntary absence. This precise issue was determined adversely to petitioner in state court. It was raised in petitioner’s second federal habeas suit, and was again determined adversely to him on the basis of specific findings. That decision was not brought up for appellate review. It cannot be reviewed on this appeal.

Denial of a speedy trial is urged, but petitioner has made no effort to have this issue determined in his various state court post-conviction proceedings. Other points raised on appeal are denial of effective counsel, with respect to which there was a bypass of state proceedings, petitioner having raised the issue in state court and then expressly abandoned it, and inconsistency of the verdict, which is not of constitutional dimension. There being no error on any of these points, we affirm.

Various other points were raised by the two rehearing petitions and were denied but have been abandoned because not presented on appeal. These are knowing use of perjured testimony, knowing suppression of evidence, and denial of access to Florida post-conviction remedies. See Lipscomb v. U. S. Bd. of Parole, No. 71-2505 (5th Cir., Jan. 3, 1972). We consider the claim of lack of jurisdiction of the Florida trial court over the offense to have been abandoned also. Petitioner did not raise this in any contention of error or brief it, and on oral argument of this appeal he adverted to it only briefly and then in his reply to the state's argument.

Affirmed.

      . An appeal was filed but dismissed.


author: LUCAS, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Donald Rudolph GARDNER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Donald Neal Le BOULANGER, Defendant-Appellant.
    No. 72-1509, 72-1510.
    United States Court of Appeals, Ninth Circuit.
    March 22, 1973.

      Lewis A. Wenzell (argued), Philip DeMassa, of Federal Public Defenders, William J. Zumwalt, San Diego, Cal., for defendant-appellant.
    Thomas M. Coffin, Asst. U. S. Atty. (argued), Stephen G. Nelson, Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.
    Before HUFSTEDLER and WRIGHT, Circuit Judges, and LUCAS, District Judge.
   LUCAS, District Judge:

These appeals are from appellants’ respective criminal convictions for violating the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U. S.C. 801 et seq. Appellants were charged in a four-count indictment of conspiring to import nine ounces of heroin, importing nine ounces of heroin, conspiring to possess with the intention of distributing nine ounces of heroin, and possessing with the intention of distributing nine ounces of heroin. Appellant Le Boulanger was found guilty on all counts in violation of 21 U.S.C. §§ 952, 960, 963, 841(a)(1) and 846. Appellant Gardner was found not guilty on all counts of the indictment, however, the jury found him guilty of the lesser included offense of simple possession of a controlled substance in violation of 21 U.S.C. 844.

On September 26, 1971, around 11 A. M., appellants entered the San Ysidro, California port of entry in a 1971 Buick, owned by Le Boulanger but driven by Gardner. While inspecting the car’s rear trunk, in response to Gardner’s declaration of a quantity of plaster of parís, the customs official became suspicious of the appellants’ demeanor, and directed their car to the secondary inspection point. The appellants were then escorted to the customs office for personal inspection. Le Boulanger preceded Gardner and the official at an abnormal distance and rate. While that official’s attention » was directed to Gardner producing his personal effects, the desk official noticed that Le Boulanger had furtively released some objects from his person which later were found to be nine ounces of heroin. A subsequent personal search of Le Boulanger revealed an instrument kit for hypodermic injections and $138.00. A search of Gardner revealed $5.00, two traffic citations, and some miscellaneous papers, one of which revealed Le Boulanger’s phone number at his residence in Placerville, California.

Discovery and testimony also revealed that Gardner had performed various menial duties for Le Boulanger at the latter’s place of business in Fremont, California. Part of his duties included the driving of his 1971 Buick. Gardner had been employed since March 1971, and had seen Le Boulanger under the influence of what he assumed to be narcotics. He had never questioned him about his use of narcotics because of his status as an employee of Le Boulanger. Le Boulanger testified that they had gone to San Diego at his request to see the San Diego Chargers-Oakland Raiders game, that the trip to Tijuana was for the express purpose of Gardner’s visit to a local red-light district, and that while Gardner was so occupied he had driven his car around in the hills, administering one injection during that time. He denied the importation of the heroin, and the discarding of the two packages in the custom’s office. Some evidence was introduced that a series of phone calls was made from the San Diego hotel room, however the Government later deemphasized these messages as a basis for its theory that appellants had formed the alleged conspiracy as charged. See discussion infra.

The sole issue presented in Gardner’s case is whether sufficient evidence was presented to sustain the verdict reached by the jury that he was guilty of the lesser included offense of simple possession of the heroin. We hold the evidence to be insufficient, and reverse Gardner’s conviction with instructions that the charges be dismissed.

The appellate court may inquire whether the evidence, considered in a light most favorable to the Government, permitted a rational conclusion by the jury that the accused was guilty beyond a reasonable doubt. The test is not whether the evidence must exclude every possibility but that of guilt. United States v. Nelson, 419 F.2d 1237, 1242 (9th Cir. 1969). Given this test, nevertheless, this Court is convinced that the largely circumstantial evidence introduced cannot permit a rational conclusion that Gardner was guilty of simple possession of the heroin beyond a reasonable doubt.

Clearly, the issue is not whether Gardner had actual possession, but whether he had constructive possession, i. e., dominion and control over the heroin at the time in question. The test for the latter in this Circuit is whether

“One [has] a working relationship or a sufficient association with those having physical custody of the drugs so as to enable him to assure their production, without difficulty, to a customer . . . But a casual facilitator of a sale, who knows a given principal possesses and trades in narcotics but who lacks the working relationship with that principal that enables an assurance of delivery, may not be held to have dominion and control over the drug and cannot be said to have possession of it.” United States v. Barnett, 468 F.2d 1153, 1155 (9th Cir., 1972) quoting Hill v. United States, 379 F.2d 811, 814 (9th Cir., 1967). See Arellanes v. United States, 302 F.2d 60S, 606 (9th Cir., 1962).

There are two rather disturbing inconsistencies in the case against Gardner: (1) the jury found insufficient evidence to convict him of the four counts charged, yet found him guilty of simple possession; and (2) the law supporting the verdict reached would have him exercising the requisite dominion and control over the heroin at the time in question, notwithstanding a relatively complete subordination to Le Boulanger as his servant. These inconsistencies are unsupportable.

Considerable deference must be attributed to the jury’s assessment of a defendant’s trial demeanor, and of his overall testimony as viewed in the context of the entire case presented. However, the ultimate findings suggest that the jury had some doubts about Gardner’s knowledge of the heroin in relationship to whatever power he exercised over the final disposition of that contraband which had been concealed on Le Boulanger’s person.

Gardner’s role at the custom’s checkpoint was one of complete subordination to the authority of Le Boulanger. This subordination was a fundamental aspect of the original excursion to San Diego, which was instigated and financed in its entirety by Le Boulanger. This arrangement was consistent with the prior employment pattern of Gardner performing as Le Boulanger’s chauffeur, as well as his janitor at a Fremont billiard parlor owned by Le Boulanger. The complete assumption of responsibility by Le Boulanger over Gardner while chauffeuring his car was emphasized by the former’s payment of the latter’s traffic violations, when incurred under those circumstances. These factors, which epitomized an unequivocal and complete master-servant relationship, preclude the requisite inference that, beyond a reasonable doubt, Gardner was able to determine or otherwise influence Le Boulanger’s disposition of the heroin. Since Le Boulanger’s authority over Gardner was so clearly established as to disallow any such influence by the latter over the eventual disposition of the heroin, the element of possession under 21 U.S.C. 844 has not been met, and Gardner’s conviction thereunder is therefore without sufficient foundation. See United States v. Flom, 464 F.2d 554, 555 (9th Cir., 1972); see also Feldstein v. United States, 429 F.2d 1092, 1094-1095 (9th Cir., 1970); rehear, denied (1970); cert. denied 400 U.S. 920, 91 S.Ct. 174, 27 L.Ed.2d 159 (1970); rehear, denied 400 U.S. 1002, 91 S.Ct. 452, 27 L.Ed.2d 454 (1971).

Furthermore, the employment relationship coupled with the incidents of the trip to San Diego does not lend itself to the conclusion that a joint venture was contemplated by the parties. In this respect, Gardner stands on firmer ground than his analogous counterpart, Lonnie, whose conviction was reversed in Murray v. United States, 403 F.2d 694 (9th Cir., 1968); rehear, denied (1969). Lonnie’s conviction was reversed on grounds of insufficient evidence to establish constructive possession of the heroin, notwithstanding the facts that he had instigated, financed and substantially controlled the actual logistics for the trip to Mexico. In this case, Gardner was at best a “casual facilitator” of Le Boulanger’s designs, neither instigating, financing, nor determining the travel arrangements for the trip. Gardner participated as a mere chauffeur, not as an equal participant. (But for his unilateral desire to go to Tijuana, Gardner had nothing to say about the itinerary, and even this endeavor was subject to and dependent upon Le Boulanger’s acquiescence in providing the transportation.) A fortiori, neither is an inference allowable that Gardner was embarked upon a joint venture simply to procure narcotics, since the record clearly demonstrates that he had no independent voice in the joint activities of the two men. Cf. Eason v. United States, 281 F.2d 818, 820 (9th Cir., 1960); rehear, denied (1960); see United States v. Bonds, 435 F.2d 164 (9th Cir., 1970). Nor can whatever assumption Gardner may have had and made as to Le Boulanger’s prior usage of drugs shore up a joint venture theory in light of the total circumstances considered as a whole. See Evans v. United States, 257 F.2d 121, 126 (9th Cir., 1958); rehear, denied (1958); cert. denied 358 U.S. 866, 79 S.Ct. 98, 3 L.Ed.2d 99 (1958); rehear, denied 358 U.S. 901, 79 S.Ct. 221, 3 L.Ed.2d 150 (1958).

Accordingly, Gardner’s conviction of simple possession of a controlled substance, in violation of 21 U.S.C. 844, is reversed, and the charges against him are to be dismissed.

The issues presented in Le Boulanger’s case are: (1) whether sufficient evidence was presented to sustain the verdict that he was guilty of the conspiracy charges in counts one and three, particularly in light of the jury’s exculpation of Gardner on the same counts; (2) whether the trial court erred in not requiring the Government to elect between counts two and four, on the theory that the element of possession in count four was merely incidental to the importation charge in count two; and (3) whether appellant’s remedy for the alleged error described in the second issue lies in an appropriate motion under Rule 35, Fed.R.Crim.Proc. The first issue concerns a corollary question whether the Court is relieved from considering Le Boulanger’s appeal as to the third and fourth counts under the concurrent sentence doctrine inasmuch as he did not contest the conviction under the second count and the sentence thereunder is concurrent with the former two. United States v. Jones, 446 F.2d 12, 13 (9th Cir., 1971). Appellant contested the conviction under the first count of conspiring to import the narcotics (which resulted in an additional fine) thus insofar as the conspiracy element is given the requisite consideration it applies with equal force to count three, the doctrine notwithstanding. The doctrine is invoked in its entirety, however, with respect to the conviction under count four, the Court declining to pass upon the issues raised thereunder as a result of the sentence under count two. Consequently, the last two issues are rendered substantially moot.

The first issue raises the sufficiency of the Government’s case, based upon circumstantial evidence, that Le Boulanger had a third cohort, an “unknown” conspirator. Circumstantial evidence is not less probative than direct evidence, and, in some instances, is even more reliable. United States v. Nelson, supra 419 F.2d at 1239. However, the application of this proposition is dependent upon the particular nature of the individual case.

It has been determined in dicta that a conspiracy requires a plurality of actors, and that an acquittal of one of two conspirators operates as an acquittal of the other. See Lubin v. United States, 313 F.2d 419, 423 (9th Cir., 1963); rehear, denied (1963). It has also been determined that the requisite plurality of actors can be met if the indictment charges a conspiracy among “specifically named defendants and other persons unknown to the grand jury,” and if at trial “it is shown by substantial evidence” that parties unknown at the time of the indictment had entered into the alleged conspiracy, and that one or more of the overt acts alleged were in fact committed by a member of the conspiracy. Didenti v. United States, 44 F.2d 537, 538 (9th Cir., 1930) (emphasis added); see also Romontio v. United States, 400 F.2d 618, 619 (10th Cir., 1968); rehear, denied (1968).

The circumstantial evidence which was adduced in Didenti is totally distinguishable in character and weight to that raised in the instant case. In Didenti, the Government was not only able to locate and identify two other co-conspirators (Guarrazi and Pinsetto) but was able to establish, by testimony from one of the acquitted conspirators named in the indictment, the substantial complicity of those two co-conspirators in the unlawful still operation. In contrast, the existence of a “third,” “unknown” conspirator in this case is, at best, a mere inference allowable from a relatively barren structure of circumstantial evidence advanced by the Government, and it is essentially devoid of any substantial foundation in fact. Le Boulanger did make several phone calls from the San Diego hotel, but the Government could not successfully trace them to a “third” cohort. And he did enter the border checkpoint with a large amount of heroin, but the logical presumption that it originated from a source in Tijuana only creates an inferential beginning, not a firm conclusion. Thus, these factors which readily create a framework for the Government’s conspiracy case are not the kind of circumstantial evidence which can supply the requisite foundation for a conspiracy conviction. The inference which the Government would have the jury draw as to the requisite plurality of actors, the presence of a “third” conspirator, is at once “too speculative” and “remote” to allow a conviction beyond a reasonable doubt that Le Boulanger was engaged in a narcotics conspiracy to import the heroin. See United States v. Nelson, supra 419 F.2d at 1240; see also United States v. Steele, 469 F.2d 165, 168-169 (10th Cir., 1972). The inherent weakness of this tripartite conspiracy theory advanced on appeal was emphasized by the absence in the Government’s closing argument before the jury of any reference to a “third” conspirator. In the final analysis, the Government apparently based its case upon Le Boulanger and Gardner’s complicity as the foundation for its conspiracy charges. The Government’s conspiracy theory is wholly unsupported by “substantial evidence” once Gardner is removed from the conspiracy equation, and perforce it must fail. Thus, Le Boulanger’s convictions under the conspiracy counts, one and three, are without sufficient foundation, and cannot stand.

Accordingly, Le Boulanger’s convictions under counts one and three are reversed, and those counts under the indictment are to be dismissed. The Court refrains from passing upon the conviction under count four under the concurrent sentence doctrine. Le Boulanger’s conviction on count two is affirmed.

The judgment as to Gardner’s conviction is reversed.

The judgment as to Le Boulanger’s conviction under counts one and three is reversed.

The case is remanded to the District Court for proceedings consistent with this opinion.


text:
    Delbert HAWKINS et al., Plaintiffs-Appellees, v. Thomas COLEMAN et al., Defendants-Appellants.
    No. 72-2190.
    United States Court of Appeals, Fifth Circuit.
    April 2, 1973.

      Samuel J. Ferro, Jr., Warren Whit-ham, Dallas, Tex., for defendants-appelIants.
    John F. Jordan, Dallas Legal Services Foundation, Inc., Dallas, Tex., for Hawkins.
    Douglas R. Larson, Dallas, Tex., for Tolliver.
    Jed I. Oliver, William F. Cole, Dallas Legal Aid Society, Inc., Dallas, Tex., for Crowel.
    Before RIVES, GOLDBERG and MORGAN, Circuit Judges.
   PER CURIAM:

Delbert Hawkins was suspended indefinitely by the principal of his school, part of the Dallas Independent School District, after being involved in a fight. He instituted a suit, styled as a class action, in the District Court for the Northern District of Texas challenging the propriety of his suspension and the constitutionality of the school regulations setting forth suspension procedures. After a preliminary hearing, the court found sufficient evidence to justify issuance of a preliminary injunction reinstating Delbert Hawkins and enjoining use of the current suspension rules pending resolution of the underlying suit. Further proceedings have been held in abeyance awaiting this court’s consideration of the propriety of the preliminary injunction.

At this point, it is patently obvious to the court that this injunction is now moot as to Delbert Hawkins. He has been back in school since the above order and the term for which he was suspended has long since passed. Thus, at this time, the only issue before this court is whether the district court properly issued that part of the preliminary injunction temporarily restricting use of the disciplinary procedures. We find no abuse of discretion by the district court here in enjoining use of these rules pending ultimate resolution of the case.

We do not feel we can address the merits of this case at this time. The injunction is moot as to Delbert Hawkins and a trial on the merits is not before us. We are concerned that we may not have a live controversy before this court. There has been no decision in the trial court as to the propriety of a class action in this case. Furthermore, the record before this court contains only the bare rules and the evidence of a single isolated suspension. There is no evidence of the usual procedure followed. Therefore, we feel that the district court should proceed with the matters now being held in abeyance.

Remanded.


text:
    UNITED STATES of America, Appellant, v. Errol ZEIGER.
    No. 72-2065.
    United States Court of Appeals, District of Columbia Circuit.
    Nov. 9, 1972.
    Before McGOWAN, MacKINNON and ROBB, Circuit Judges.
   ORDER

PER CURIAM.

This cause came on for consideration of an appeal under 23 D.C.Code § 104(d) from an order of the District Court, 350 F.Supp. 685, dated November 7, 1972, which admitted proffered polygraph testimony, and the Court heard argument of counsel.

On consideration of the foregoing, and of the record on appeal herein, it is

Ordered by the Court that the order of the District Court appealed from in this cause is hereby reversed and this case is remanded to the District Court for further proceedings.


author: WYZANSKI, Senior District Judge.

text:
    Rafael E. BENNETT et al., Appellants, v. The PANAMA CANAL COMPANY.
    No. 71-1522.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 31, 1972.
    Decided Jan. 31, 1973.

      Stanley B. Gruber, New York City, of the Court of Appeals of New York, pro hac vice, by special leave of court, for appellants. A. Fred Freedman, Washington, D. C., and Abraham E. Freedman, New York City, were on the brief, for appellants.
    George M. Beasley, III, Atty., Dept, of Justice with L. Patrick Gray, III, Asst. Atty. Gen., at the time the brief was filed, Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and Alan 5. Rosenthal, Atty. Dept, of Justice, were on the brief, for appellee.
    Before McGOWAN and ROBB, Circuit Judges, and WYZANSKI, Senior United States District Judge for the District of Massachusetts.

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

   WYZANSKI, Senior District Judge.

This is a class action brought on behalf of approximately 800 linehandlers employed by Panama Canal Company. Appellants complain that appellee did not pay them wages at the level required by 5 U.S.C. § 5342(b), which they say directs that all “vessel employees” of appellee be paid in accordance with wage practices of the maritime industry. Appellants seek as relief three years of back wages and an injunction ordering that hereafter wages be paid at the statutory rate.

The District Court, Gesell J., in a characteristically able and pithy opinion, (see Learned Hand, The Spirit of Liberty (1952), Charles Neave, pp. 156-157) found these as facts.

When a vessel passes through the Panama Canal a crew of eight to twelve linehandlers is put aboard at different stages of transit to handle lines for towing and positioning the vessel. This task requires skill and training, is hazardous, and is highly specialized. Line-handlers on a ship are in contact with linehandlers on shore who hand lines to the towing machinery or belay. The ship linehandlers work under the direction of a boatswain or instruction from the Canal Officers, but are also under general supervision of the vessel’s regular officers.

Appellee determines the linehandlers’ wages hourly on the basis of local wages in the Panama Canal Zone. The rate is above the minimum required by the Fair Labor Standards Act. Appellee has changed that rate from time to time after periodic review in the light of local conditions. However, these rates have been only a fraction of the straight-time monthly pay received by able-bodied seamen in the maritime industry. Overtime rates are similarly disparate.

Appellants contend that they are “vessel employees” within the coverage of 5 U.S.C. § 5342(b), and that that statute must be given mandatory effect.

The District Court held that appellants perform a unique function and that there is no wage practice of the maritime industry applicable to them. Supporting the first of those conclusions, the court noted that, unlike ordinary seamen, appellants do not go to sea, have more regular hours and stabler work conditions, and need not develop the variety of skills required of those who work at sea under wholly different conditions. The court further held that since there is not any wage practice of the maritime industry for linehandlers, appellee necessarily established its own pay level for them, and that appellee had proceeded in a far from arbitrary fashion inasmuch as the rates were in line with blue-collar labor rates and were occasionally carefully reviewed. Summarizing, Judge Gesell concluded that appellee had not been shown to have violated 5 U.S.C. § 5342(b).

We agree. The district court’s findings of fact are supported by substantial evidence. U.S.C. § 5342(b) does not require appellee to pay appellants in accordance with the wage practices of the maritime industry. The statute provides that “the employees of the Panama Canal Company may be paid in accordance with the wage practices of the maritime industry.” Ordinarily “may” is a permissive not a mandatory term. Farmers & Merchants Bank v. Federal Reserve Bank, 262 U.S. 649, 662, 43 S.Ct. 651, 67 L.Ed. 1157 (1923); John Reiner & Co. v. United States, 325 F.2d 438, 441, 163 Ct.Cl. 381, 388 (Ct.Cl.1963). Here the permissive interpretation is conclusively proven to be correct not merely by the fact that when in the same statute Congress intended a mandatory direction it used the auxiliary “shall” not “may” — a contrast which is generally significant, see United States v. TaporIdeal Dairy Co., 175 F.Supp. 678, 682 (N.D.Ohio, 1959), aff’d 283 F.2d 869 (6th Cir. 1960), but also the legislative history of the statute. In 1959 the Fifth Circuit had distinguished between “may” and “shall” in determining whether Canal Zone pilots holding security positions were to be paid rates related to those of similar government employees of the United States. Reinheimer v. Panama Canal Co., 413 F.2d 153 (5th Cir. 1969) [interpreting 2 C.Z.C. 144 (b)]. The court held that the auxiliary “may” was to be given a permissive interpretation. This holding was drawn to Congress’s attention by persons who in matters cognate to this case represented appellants, or at least the labor organization to which appellants belonged. Despite efforts of those persons, Congress declined to substitute “shall” for “may.” See H.R. 9092, 92nd Cong. 1st Ses.; S.Rep. No. 758, 92nd Cong., 2nd Sess. 6; Cong.Rep. No. 92, 1275 92nd Cong., 2d Sess. 3 (1972). (1972; 5 U.S.C. § 5342(b). In full awareness of the discretionary character of the auxiliary verb “may” as used in 5 U.S.C. § 5342(b), and of the judicial- interpretation which was in accord with that discretionary character, Congress reenacted the statute unchanged. That sewed up whatever loose ends might have been thought to have been previously left to pull. See Judge Gesell’s second starred footnote in his opinion in the District Court. We also consider the almost irrebuttable presumption which followed from reenactment with knowledge. Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309, 319, 76 S.Ct. 752, 2 L.Ed.2d 788 (1958). The defeat sustained in the halls of Congress is not to be undone by an unwarranted victory in the halls of Justice. The statute remains, as it was intended by Congress to be, permissive not compulsory.

There are other points raised which we prefer not to discuss inasmuch as they are unnecessary to dispose of appellants’ case which has already sustained a mortal wound.

Affirmed.


text:
    James M. MOORE et al., Appellants, v. ADMINISTRATOR, VETERANS ADMINISTRATION, Chairman and Commissioners, United States Civil Service System.
    No. 71-1508.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 26, 1972.
    Decided Feb. 14, 1973.

      Edward L. Merrigan, Washington, D. C., for appellants.
    Julius A. Johnson, Asst. U. S. Atty., John A. Terry, Robert S. Rankin, Jr., and Joseph M. Hannon, Asst. U. S. Attys., were on the brief, for appellees.
    Before DANAHER, Senior Circuit Judge, and MacKINNON and ROBB, Circuit Judges.
   PER CURIAM:

Appellants, career nursing assistants at a Veterans Administration Hospital, were removed from their positions for mistreating a patient and failing to report the incident. Following notice of dismissal and appellants’ written denials of the charges, separate hearings were conducted for each appellant and the charges sustained. On appeal to the Administrator of the Veterans Administration, the decision of removal was upheld. Thereafter appellants pursued their ample administrative remedies, and, following a lengthy series of appeals before the Civil Service Commission, their removal was again sustained. Having exhausted these procedures, appellants brought suit in the District Court seeking reinstatement and back pay. On cross motions for summary judgment, the trial court found for the appellees from which ruling this appeal is taken.

Throughout these proceedings, appellants’ principal contentions have been that they have been deprived of a full and fair hearing in the denial of their request to call two investigators as witnesses at the Veterans Administration hearings and their non-access to the investigators’ report of the incident involving the abuse of the patient in which both appellants were implicated. Additionally appellants allege a lack of substantial evidence to support the administrative decision.

The facts are not complex. During the morning hours of June 9, 1966, patient Levy, who had a reputation as a verbal (but non-physical) agitator, was taken from the Day Room by one Nursing Assistant McDowell and led to a seclusion area. He was joined in the hall en route by appellants Nursing Assistants Moore and Vaughn. When they arrived in the seclusion area a tussle ensued during which all four participants were described as rolling around on the floor. The tussle was estimated as lasting from three to five minutes. None of the participants reported the incident. Later in the afternoon of the same day, a resident doctor noted a change in patient Levy’s behavior and he was given a physical examination. This revealed extensive bruises over the patient’s entire abdomen and some scratches on his wrist and back. Two doctors testified essentially that it would be most unusual for such wounds to be self-inflicted or the result of efforts to subdue an unruly patient. Rather they indicated the bruises resulted from repeated blows from an external source — fist, blunt instrument, knee or elbow. Patient Levy testified that McDowell started hitting him while Moore and Vaughn were holding his arms. In general, however, patient Levy’s testimony is confused and contradictory concerning the events in question.

Appellants claim that the hearing committee’s refusal to call the two investigators who developed the evidence against them was violative of the Fifth and Sixth Amendments relying on the authority of Williams v. Zuckert, 371 U.S. 531, 83 S.Ct. 403, 9 L.Ed.2d 486, order dismissing petition for cert. vacated, remanded on rehearing, 372 U.S. 765, 83 S.Ct. 1102, 10 L.Ed.2d 136 (1963) and Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 101 (1959). These cases are clearly inapplicable to the situation presented here. This investigation was conducted solely to determine whether the facts warranted the bringing of charges. The central reason that appellants’ claims must fail is that the information gathered by these investigators was not relied upon in determining the status of these employees. The decision to dismiss them was based solely on the evidence elicited at the hearings and not on the investigative report. At these hearings, testimony of every witness having first-hand knowledge of the incident was presented and appellants were afforded full and complete rights of cross-examination. The two investigators had witnessed none of the relevant events and their testimony would necessarily consist primarily of hearsay. This case is thus readily distinguishable from Vitarelli and Williams in that in both those cases the factual basis for the dismissal of the employees consisted of information supplied by confidential informants or contained in affidavits to which the employees had no access and, since these witnesses were not called, the employees were denied their right to cross-examination and confrontation as well as their due process right to a full and fair hearing.

Essentially the same reasoning disposes of the appellants’ request for the investigative report itself. Since the decision to dismiss them did not depend upon the report to support the charges, but rather was based solely on the testimony of live witnesses subject to the right of full cross-examination, we think it apparent that refusal to make it available to the appellants did not constitute a denial of due process or the right of confrontation.

Appellants also seek to apply the principle of Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957) to the instant case, claiming that it requires the production of the investigative report. While we have held the Jencks doctrine applicable to administrative proceedings, appellants misconceive the scope of that rule. It requires only that where a witness has already testified “about an event long past, and it is shown that this witness at or about the time of the event made a written report to the Government concerning that event, and the testimony is material, and the credibility of the witness . . . upon this precise point is attacked, the Government upon demand must produce the report made by the witness.” Communist Party v. SACB, 102 U.S.App.D.C. 395, 409, 254 F.2d 314, 328 (1958). This is manifestly inapplicable here where the investigators were not in fact called as witnesses and did not testify at all. In general, it is well established that no right to a preliminary investigatory file exists in administrative law:

The APA contains no provision for pre-trial discovery in the administrative process and, of course the provisions of the Federal Rules of Civil Procedure for discovery do not apply to administrative proceedings. Therefore, in absence of special statutory provision, and in absence of special administrative regulation, no procedure for discovery is normally available in a federal administrative proceeding.

1 K. Davis, Administrative Law Treatise, § 8.15, at 588 (1958).

Finally, we turn to the question of the sufficiency of the evidence. The hearing testimony, when distilled, showed simply that the victim was conducted to and from the seclusion area in the company of the appellants. Objective medical examination subsequently revealed that in all probability appellant had been beaten. It is uncontested that no report of the incident was made as required by hospital rules. The victim’s testimony is at best inconclusive. While we might not have reached the conclusion that appellants were so directly involved in the incident as to warrant dismissal were we considering the issue de novo, our scope of review is much more confined. Applying the familiar “substantial evidence” test, we agree with the trial court that

[the] record in this case contains not a mere scintilla, but substantial evidence of plaintiffs’ participation in the incident which led to patient Levy’s injuries, and there is no apparent justification for their behavior. Thus, the decision to remove plaintiffs from their employment cannot be characterized as arbitrary or capricious.

Some participation in the affair by the appellants is well established and the failure to report the incident certainly lends support to the likelihood of their active involvement in the beating. This failure to report, when coupled with some degree of participation, seems more than sufficient grounds for removal.

Accordingly, the order of the District Court granting the defendants’ motion for summary judgment is Affirmed.

      . The removals were based on the following charges contained in letters dated September 23, 1966 and sent to appellants by the Deputy Chief Medical Director of the Hospital:
      I. You were a party to the abuse of patient Sam Levy at approximately 7:45 a. m. on June 9, 1966, in the seclusion area of Ward 4A, Building 131, in that you assisted Nursing Assistants Lowell R. McDowell and George H. Vaughn/James M. Moore in escorting patient Levy against his will to the seclusion area, where you and the other two nursing assistants attacked patient Levy, inflicting severe bruises to his abdominal area, abrasions below the left shoulder blade and multiple scratches to the back of his left hand.
      II. You failed to immediately report any incident or injuries involving patient Sam Levy, as described in paragraph I, to YA hospital officials.
      Exhibit A-l, J.A. 18.

      . Appellants appealed the Veterans Administration decision to the Chicago Regional Director of the Civil Service Commission who determined the appellants were denied a full and fair hearing in the failure to produce the two investigators. (J.A. 36). The Agency appealed this decision to the Board of Appeals and Review of the Commission which reversed the Regional Director and remanded for consideration on the merits. (Exhibit E, J.A. 48). The Regional Director, reviewing the ease on the merits again recommended appellants be restored to their positions based on a finding that the evidence was insufficient to support the first charge and that the second charge (failure to report the incident), while sustained, was not sufficient ground for removal. (J.A. 55). The Agency again appealed and the decision of the Regional Director was again reversed by the Board of Appeals and Review holding that both charges were sustained by the preponderance of the evidence. (Exhibit G, J.A. 61). Appellants then requested the Commissioners to reopen their cases for consideration of the decision of the Board of Appeals and Review which was denied with the finding that the representations made in support of appellants’ request did not demonstrate probable error or sufficient justification for reopening the cases. (Exhibit J, J.A. 80). Thereafter the complaint was filed in the district court from whose granting of defendants’ motion for summary judgment this appeal is taken.

      . See the analysis and findings of the Regional Director, J.A. at 55 et seq. The facts set out in this opinion are drawn from both the Regional Director’s findings, id., and those of the Board of Appeals and Review, J.A. at 66 et seq.

      . At the outset it should be noted that the decision to call Agency employees as witnesses is discretionary with the hearing committee. 5 C.F.R. 771.216 (1971).

      . The Vitarelli opinion dealt with informants who furnished information which “was to be used ... in assessing an employee’s status.” Vitarelli v. Seaton, 359 U.S. 535, 544, 79 S.Ct. 968, 975, 3 L.Ed.2d 101 (1959).

      . The Jencks Act, 18 U.S.C. § 3500, by its terms applies, of course, to the narrow situation in which a criminal prosecution is brought by the United States and a witness has testified at trial as to matters contained in a report in possession of the Government.

      . Communist Party v. S. A. C. B., 102 U.S.App.D.C. 395, 409, 254 F.2d 314, 328 (1958).

        See note 3, supra.

      . See, e. g., Mendelson v. Macy, 123 U.S.App.D.C. 43, 356 F.2d 796 (1966); Dabney v. Freeman, 123 U.S.App.D.C. 166, 358 F.2d 533 (1965); Eustace v. Day, 114 U.S.App.D.C. 242, 314 F.2d 247 (1962).


author: PER CURIAM: MacKINNON, Circuit Judge,

text:
    Thomas E. KEANE et al., Appellants, v. NATIONAL DEMOCRATIC PARTY et al. Thomas E. KEANE v. NATIONAL DEMOCRATIC PARTY, et al., Appellants. Thomas E. KEANE et al. v. NATIONAL DEMOCRATIC PARTY and William Cousins et al., Appellants.
    Nos. 72-1629 to 72-1631.
    United States Court of Appeals, District of Columbia Circuit.
    Argued July 4, 1972.
    Decided Feb. 16, 1973.
    Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge and MacKINNON, Circuit Judge.
   PER CURIAM:

On October 10, 1972, the Supreme Court, 409 U.S. 816, 93 S.Ct. 67, 34 L.Ed.2d 73, vacated the judgment of this court in this cause, 152 U.S.App.D.C. 157, 469 F.2d 563, and remanded the cause to this court to determine whether the case has become moot. Accordingly, the case is before us now (1) on the appeal of Keane et al., plaintiffs in the District Court, from the judgment of that court denying the declaratory and injunctive relief plaintiffs requested and dismissing their complaint, and (2) on the appeals of the National Democratic Party et al., defendants, and of intervenor-defendants, Cousins et al., from the judgment of the District Court denying the declaratory and injunctive relief sought in the counter-complaint filed by the defendants.

In the period intervening since the action of the District Court the 1972 Convention of the National Democratic Party, acting within its competence, seated at the Convention the delegation whose right thereto was contested by plaintiffs, Keane et al., in the District Court. Insofar as the complaint involved such right of representation the case thus became and is now moot.

Insofar as the complaint involves questions as to rights of the competing delegates to post-Convention representation in National Democratic Party matters, we think the case is not moot. This court being advised, however, that these questions are pending before the Credentials Committee of the National Committee of the Party, we find no equitable basis upon which the District Court or this court should now intervene by declaratory or injunctive relief.

Insofar as the case involves the request for injunctive or other relief sought by intervenor-defendants, Cousins et al., or previously though no longer sought by the National Democratic Party et al., defendants, we are also of the opinion that no exceptional circumstances appear to justify now the relief requested.

By reason of the foregoing, the judgment of the District Court dismissing the complaint and counter-complaint is affirmed.

MacKINNON, Circuit Judge,

concurring in part and dissenting in part:

As I view the complaint it sought only the seating of the Keane delegates at the Democratic National Convention and that issue has been determined by the Supreme Court staying our judgment and by the subsequent action of the Democratic National Committee seating the anti-Keane delegation. I do not consider that this lawsuit involves questions as to the collateral consequences of that action or as to the actions taken by the Democratic Party subsequent to the adjournment of the convention.

However, I do not consider that the action is moot insofar as it seeks a declaration that “the Rules of the Democratic National Party violate the First, Fourteenth and Fifteenth Amendments to the U. S. Constitution and the Civil Rights Act of 1871.” Complaint of Plaintiff at p. 13. In our earlier opinion, Brown v. O’Brien, 152 U.S.App.D.C. 157, 469 F.2d 563 (1972), we passed upon such issues to the extent necessary and upheld the constitutionality of Guideline C-6 sufficiently to decide that petitioners Keane, et al, were not entitled to be seated at the convention. While the Supreme Court thereafter vacated our judgment, Keane v. Nat. Democratic Party, 409 U.S. 816, 93 S.Ct. 67, 34 L.Ed.2d 73 (Oct. 10, 1972), the issue as to the constitutional validity of Guideline C-6 continues, is almost certain to recur and the timing of its likely reoccurrence close to our national presidential elections would make it evasive of review within the time available. Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969). I would therefore renstate our judgment insofar as it upholds the constitutional validity of Guideline C-6.