author: TAMM, Circuit Judge.

text:
    Edward M. KENNEDY v. Arthur F. SAMPSON, Acting Administrator, General Services Administration, et al., Appellants (two cases).
    Nos. 73-2121 and 73-2122.
    United States Court of Appeals, District of Columbia Circuit.
    Argued May 31, 1974.
    Decided Aug. 14, 1974.

      James C. Hair, Jr., Atty., Dept, of Justice, with whom Irving Jaffe, Acting Asst. Atty. Gen., Earl J. Silbert, U. S. Atty. and Robert E. Kopp, Atty., Dept, of Justice, were on the brief for appellants. Morton Hollander, Atty., Dept, of Justice, also entered an appearance for appellants. Edward M. Kennedy, appellee, pro se.
    Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and TAMM, Circuit Judge.
   TAMM, Circuit Judge.

Appellee, a United States Senator, filed suit against the Administrator of the General Services Administration and the Chief of White House Records seeking a declaration that the Family Practice of Medicine Act (hereinafter, S. 3418) became law on December 25, 1970, and an order requiring the appellants to publish the Act as a validly enacted law. S. 3418 was passed by overwhelming majorities in both the House and Senate in the Fall of 1970. Appellee was among those Senators who voted in favor of the bill which was presented to the President on December 14, 1970. On December 22 both Houses of Congress adjourned for the Christmas holidays, the Senate until December 28 and the House until December 29. Before adjourning, the Senate authorized the Secretary of the Senate to receive messages from the President during the adjournment. On December 24, the President issued a memorandum of disapproval announcing that he would withhold his signature from S. 3418. The President took no further action with respect to the bill. Appellants maintain that this series of events resulted in a “pocket veto” under article I, section 7 of the United States Constitution. Appellee, relying upon the same provision, contends that the bill became law without the President’s signhture at the expiration of the ten-day period following its presentation to him.

Upon cross motions for summary judgment, the district court granted judgment in favor of appellee. The order of the district court declares that S. 3418 became a law of the United States on December 25, 1970 and that “defendants are under a ministerial, nondiseretionary duty to publish said law . . . ,” Although the district court has retained jurisdiction for the purpose of adjudicating appellee’s request for injunctive relief in the nature of a mandamus, further action has been postponed pending this appeal.

Two questions are presented for review: (1) does appellee have standing to maintain this suit; and (2) did S. 3418 become a law? We conclude that both questions must be answered in the affirmative.

I.

The requirement of standing derives from the limitation upon judicial power expressed in the “case” or “controversy” formula of article III of the Constitution. The concept was recently treated by the Supreme Court in Sierra Club v. Morton, 405 U.S. 727, 731-732, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972):

Whether a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy is what has traditionally been referred to as the question of standing to sue. Where the party does not rely on any specific statute authorizing invocation of the judicial process, the question of standing depends upon whether the party has alleged such a “personal stake in the outcome of the controversy,” Baker v. Carr, 369 U.S. 186, 204 [82 S.Ct. 691, 703, 7 L.Ed.2d 663] as to ensure that “the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.” Flast v. Cohen, 392 U.S. 83, 101 [88 S.Ct. 1942, 1953, 20 L.Ed.2d 947].

Although he has not been authorized to prosecute this suit on behalf of the Senate or the Congress, appellee offers several alternative theories of standing. We agree with the district court that appellee has standing to maintain this suit in his capacity as an individual United States Senator who voted in favor of S. 3418. This conclusion follows from any of the traditional methods of evaluating the standing of a party to sue.

One approach to the question is to inquire whether a “logical nexus” exists between the status asserted by a litigant and the claim sought to be adjudicated. Flast v. Cohen, 392 U.S. 83, 102, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Examination of appellee’s complaint reveals that such a nexus is present in this case. While the complaint is literally addressed to the ministerial duties of certain officials, the legal issue turns on the validity of executive action which purports to have disapproved an Act of Congress by means of a constitutional procedure which does not permit Congress to override the disapproval. If appellants’ arguments are accepted, then appellee’s vote in favor of the bill in question has been nullified and appellee has no right to demand or participate in a vote to override the President’s veto. Conversely, if appellee’s interpretation of the veto clause is correct, then the bill became law without the President’s signature. In short, disposition of the substantive issue will determine the effectiveness vel non of appellee’s actions as a legislator with respect to the legislation in question. This demonstrates a relationship between appellee and his claim which is not only “logical” but real, a relationship which assures that the issues have been litigated with the vigor and thoroughness necessary to assist the court in rendering an informed judgment.

A somewhat different analysis of standing has been employed with respect to parties who challenge administrative action. In Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) the Supreme Court framed the standing issue as follows: (1) does the plaintiff allege that the challenged action has caused him “injury in fact, economic or otherwise;” (2) is the interest sought to be protected “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Id. at 152-153, 90 S.Ct. at 830. Appellee’s pleading satisfies both inquiries. The complaint alleges an injury to him in his capacity as a United States' Senator:

The acts of the defendants have injured the plaintiff as a United States Senator by denying him the effectiveness of his vote as a member of the United States Seriate. The plaintiff . . . was among 64 Senators voting in favor of S. 3418 . . . .

Appellee’s asserted interest plainly falls among those contemplated by the constitutional provision upon which he relies. That provision, article I, section 7, is one of several in the Constitution which implement the “separation of powers” doctrine. Taken together, these provisions define the prerogatives of each governmental branch in a manner which prevents overreaching by any one of them. The provision under discussion allocates to the executive and legislative branches their respective roles in the law-making process. When either branch perceives an intrusion upon its legislative power by the other, this clause is appropriately invoked. The gist of appellee’s complaint is that such an intrusion has occurred as a result of the President’s misinterpretation of this clause and that a consequence of this intrusion is the nullification of appellee’s voté in favor of the bill in question; hence, the complaint alleges injury to an interest of appellee as a member of the legislative branch of the government, an interest among those protected by article I, section 7. Appellants insist that only the interests of the Congress or one of its Houses as a body are protected by this provision. This contention is treated below in the discussion of the Coleman decision.

Our conclusion with respect to appellee’s standing finds support in Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939), which held, inter alia, that twenty state senators who had voted against ratification of a constitutional amendment had standing to challenge the legality of a tie-breaking vote in favor of ratification which was cast by the Lieutenant Governor, the presiding officer of the Senate of Kansas. The Court concluded that the interest of the legislators in protecting the effectiveness of their votes conferred standing to maintain the suit:

Here, the plaintiffs include twenty senators, whose votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes.

Id. at 438, 59 S.Ct. at 975. Appellants correctly point out that the votes of the twenty plaintiffs in Coleman had peculiar legal significance as a bloc, i. e.: these votes were sufficient to prevent ratification absent the challenged vote of the Lieutenant Governor. Appellants read Coleman as holding that the plaintiff legislators had standing only as a group for the purpose of protecting the collective effectiveness of their votes. In a like vein, appellants contend that appellee’s vote in favor of S. 3418 has no legal significance independent of the other votes in favor of the bill. Any injury to him occasioned by the President’s action, it is argued, is “derivative” in nature. In appellants’ view, only the Senate or the Congress has sustained the “direct” injury necessary to confer standing (assuming that the veto of S. 3418 was invalid).

The Coleman opinion neither confirms nor rejects appellants’ interpretation. It does not express reliance upon the fact that all nay-voters had joined as plaintiffs in the action, nor does it contain any hint as to whether one of the plaintiffs might have maintained the suit alone. Although references to the parties and their votes are, quite naturally, in the plural form, the opinion does not disclose whether the Court was considering them collectively or severally. In light of the purpose of the standing requirement, however, we think the better reasoned view of both Coleman and the present case is that an individual legislator' has standing to protect the effectiveness of his vote with or without the concurrence of other members of the majority.

The policy underlying the doctrine of standing is identified in the following passage from Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962):

Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for the illumination of difficult constitutional questions ? This is the gist of the question of standing.

Another discussion describes the purpose of the standing doctrine as follows:

Under such circumstances, we feel confident that the questions will be framed with the necessary specificity, that the issues will be contested with the necessary adverseness and that the litigation will be pursued with the necessary vigor to assure that the constitutional challenge will be made in a form traditionally thought to foe capable of judicial resolution.

Flast v. Cohen, supra, 392 U.S. at 106, 88 S.Ct. at 1955. Appellee’s interest in the present controversy provides the same assurance that he is an appropriate advocate.

Appellants' argument to the contrary is based upon a distinction which is more formal than substantive. While conceding that Congress as a whole (or even one of its Houses) has standing to challenge the President’s purported use of the pocket veto, appellants insist that an individual member of Congress does not, even if he voted for the bill in controversy. The interest of the Congress in preserving its role in the lawmaking process is said to be “direct” while that of appellee is labelled “indirect or derivative.” Appellants base this distinction upon the self-evident proposition that appellee is not the Congress :

As an individual senator appellee can at best be said to have sustained only indirect injury as the result of the pocket veto, for his vote for S. 8418 is in no sense the legal or political equivalent of the passage of the bill by the Congress. . . .

The italicized observation is undoubtedly correct but it does not help appellants’ argument. The prerequisite to standing is that a party be “among the injured,” in the words of Sierra Club, not that he be the most grievously or most directly injured. We think that appellee is “among the injured” in this case.

The subject matter at stake in this litigation is legislative power. The court is presented with conflicting views of the pocket veto power, one which is expansive, and another which is restrictive. Over the long term, appellants’ broad view" of " the pocket veto power threatens a diminution of congressional influence in the legislative process. It seems to this Court axiomatic that, to the extent that Congress’ role in the government is thus diminished, so too must be the individual roles of each of its members. Put another way, the influence of any one legislator upon the political process is in great measure dependent upon the stature of the governmental branch of which he is a member.

In a sense, therefore, the contention that appellee’s interest in the pocket veto controversy is “derivative” is correct. It is derivative, but it is nonetheless substantial. When asserted in the context of a particular dispute about specific legislation, such an interest may be sufficient to confer standing. Appellee’s stake in this litigation is a quantum of his official influence upon the legislative process. To be sure, that influence can never be “the legal or political equivalent of the passage” of a bill, for only Congress as a body has that authority. Nevertheless, the office of United States Senator does confer a participation in the power of the Congress which is exercised by a Senator when he votes for or against proposed legislation. In the present case, appellee has alleged that conduct by officials of the executive branch amounted to an illegal nullification not only of Congress’ exercise of its power, but also of appellee’s exercise of his power. In the language of the Coleman opinion, appellee’s object in this lawsuit is to vindicate the effectiveness of his vote. No more essential interest could be asserted by a legislator. We are satisfied, therefore, that the purposes of the standing doctrine are fully served in this litigation.

II.

Article I, section 7, paragraph 2 of the United States Constitution prescribes the manner in which laws of the United States are enacted:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approves he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated,, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. (Emphasis added.)

At issue in this ease is whether the Christmas adjournment of 1970 was one which “prevented” the return of S. 3418 by the President. If so, then the President’s failure to approve the bill within ten days of its presentation to him constituted a pocket veto. If the adjournment did not prevent the return of S. 3418, then the bill became law without the President’s signature. Our study of the constitutional text itself, its history and previous judicial interpretations of it convinces us that an intrasession adjournment of Congress does not prevent the President from returning a bill which he disapproves so long as appropriate arrangements are made for the receipt of presidential messages during the adjournment. Since the adjournment in question falls into this category, we affirm the district court’s declaration that S. 3418 became law on December 25, 1970.

Our analysis begins with the premise that the pocket veto power is an exception to the general rule that Congress may- override presidential disapproval of proposed legislation. Rejection of an absolute presidential veto is explicit both in the proceedings of the Constitutional Convention and in contemporaneous commentary. Alexander Hamilton, himself an advocate of the absolute veto during the Convention, later took pains to distinguish the presidential veto power from that of the King of England:

The President of the United States is to have power to return a bill, which shall have passed the two branches of the Legislature, for re-consideration; but the bill so returned is to become a law, if upon that re-consideration it be approved by two thirds of both houses. The King of Great Britain, on his part, has an absolute negative upon the acts of the two houses of Parliament. The disuse of that power for a considerable time past, does not affect the reality of its existence; and is to be ascribed wholly to the crown’s having found the means of substituting influence to authority, or the art of gaining a majority in one or the other of the two houses, to the necessity of exerting a prerogative which could seldom be exerted without hazarding some degree of national agitation. The qualified negative of the President differs widely from this absolute negative of the British sovereign ....

The Federalist No. 69, at 463-64 (J. Cooke ed. 1961) (A. Hamilton). Since it operates as an “absolute negative”, the pocket veto power is a departure from the central scheme of the Constitution. As such, it must be limited by the specific purpose it is intended to serve, a purpose explained in the following passage from Story’s Commentaries:

But the President might effectually defeat the wholesome restraint [i. e. congressional override], thus intended, upon his qualified negative, if he might silently decline to act after a bill was presented to him for approval or rejection. The Constitution, therefore, has wisely provided, that, “if any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, it shall be a law, in like manner as if he had signed it.” But if this clause stood alone, Congress might, in like manner, defeat the due exercise of his qualified negative by a termination of the session, which would render it impossible for the President to return the bill. It is therefore added, “unless the Congress, by their adjournment, prevent its return, in which case it shall not be 'a law.”'

The pocket veto power is one component of a constitutional mechanism designed to enforce respect on the part of each of the law-making branches of the government for the legislative authority of the other. This understanding of the purpose of the' clause has led the Supreme Court to adopt a rule of construction which governs in this case:

The constitutional provisions {i. e., article I, section 7, paragraph 2] have two fundamental purposes; (1) that the President shall have suitable opportunity to consider the bills presented to him, and (2) that the Congress shall have suitable opportunity to consider his objections to bills and on such consideration to pass them over his veto provided there are the requisite votes. Edwards v. United States, 286 U.S. 482, 486 [52 S.Ct. 627, 628, 76 L.Ed. 1239]. We should not adopt a construction which would frustrate either of these purposes.

Wright v. United States, 302 U.S. 583, 596, 58 S.Ct. 395, 400, 82 L.Ed. 439 (1938). Where possible, then, the pocket veto clause should be construed in a manner which preserves both purposes. Since a pocket veto always has the effect of frustrating Congress’ right to reconsider a vetoed bill, the preferred construction of the clause is that return of a bill was not “prevented” by an adjournment. Only two decisions of the Supreme Court have addressed the question of whether an adjournment prevented the return of a bill. Appellant relies upon the first of these and seeks to distinguish the later decision from the present ease.

The decision relied upon by appellant is The Pocket Veto Case, 279 U.S. 655, 49 S.Ct. 463, 73 L.Ed. 894 (1929), which held that the intersession adjournment of the 69th Congress prevented the return of a bill which had been’presented to the President eight days (excluding Sunday) before the adjournment of the first session. The opinion states two reasons for the holding: (1) the word “House” in the return veto clause means “House in session” and does not permit return of a bill to an officer or agent of the originating House during an adjournment; (2) return of a bill during an intersession adjournment would result in a long delay in the final disposition of the bill attended by public uncertainty as to its status. Id. at 682-684, 49 S.Ct. 463. A significant exception to this holding was established in the Supreme Court’s only other pocket veto decision, Wright v. United States, supra, 302 U.S. at 589-590, 58 S.Ct. 395. Addressing the first part of the Pocket Veto Case rationale, the Court held that the return of a bill may, in certain instances, be accomplished by delivery to an appropriate agent of the originating House:

Nor was there any practical difficulty in making the return of the bill during the recess. The organization of the Senate continued and was intact. The Secretary of the Senate was functioning and was able to receive, and did receive, the bill. Under the constitutional provision [article I, section 5, paragraph 4] the Senate was required to reconvene in not more than three days and thus would be able to act with reasonable promptitude upon the President’s objections. There is no greater difficulty in returning a bill to one of the two Houses when it is in recess during the session of Congress than in presenting a bill to the President by sending it to the White House in his temporary absence. Such a presentation is familiar practice. The bill is sent by a messenger and is received by the President. It is returned by a messenger, and why may it not be received by the accredited agent as the legislative body ? To say that the President cannot return a bill when the House in which it originated is in recess during the session of Congress, and thus afford an opportunity for the passing of the bill over the President’s objections, is to ignore the plainest practical considerations and by implying a requirement of an artificial formality to erect a barrier to the exercise of a constitutional right.

Id. at 589-590, 58 S.Ct. at 398. The Court then discussed the dangers it had foreseen at the time of its earlier decision :

However real these dangers may be when Congress has adjourned and the members of its Houses have dispersed at the end of a session — the situation with which the Court was dealing— they appear to be illusory when there is a mere temporary recess. Each House for its convenience, and during its session and the session of Congress,' may take, and frequently does take, a brief recess limited, as we have seen, in the absence of the consent of the other House, to a period of three days. In such case there is no withholding of the bill from appropriate legislative record for weeks or perhaps months, no keeping of the bill in a state of suspended animation with no certain knowledge on the part of the public whether it was seasonably delivered, no causing of any undue delay in its reconsideration. When there is nothing but such a temporary recess the organization of the House and its appropriate officers continue to function without interruption, the bill is properly safeguarded for a very limited time, and is promptly reported and may be reconsidered immediately after the short recess is over. The prospect that in such a case the public may not be promptly and properly informed of the return of the bill with the President’s objections, or that the bill will not be properly safeguarded or duly recorded upon the journal of the House, or that it will not be subject to reasonably prompt action by the House, is, we think, wholly chimerical. If we regard the manifest realities of the situation, we cannot fail to see that a brief recess by one House, such as is permitted by the Constitution without the consent of the other House, during the session of Congress, does not constitute such an interruption of the session of the House as to give rise to the dangers which, as the Court apprehended, might develop after the Congress has adjourned.

Id. at 595-596, 58 S.Ct. at 400. Appelants emphasize two factual distinctions between Wright and the present case: (1) Wright involved an adjournment of only three days, a shorter period that the five-day adjournment at issue in this case; (2) only the Senate had adjourned in the former case whereas both Houses were in recess at the time S. 3418 was disapproved. These distinctions fail to overcome the logic and reasoning of the • Wright decision.

The five-day recess in this case was only two days longer than that considered in Wright. Moreover, the most significant portion of the recess, that which extended beyond the ten-day period for return of a bill, was only one day longer than that which occurred in Wright? and was actually within the maximum delay explicitly approved in Wright? As in the former case, the Senate continued in existence during the Christmas recess of 1970 and the Secretary of the Senate was available to receive messages from the President during the adjournment. There was no danger that the bill could not be reconsidered “with reasonable promptitude” should it be returned by the President during the adjournment. For these reasons, the mere fact that the Senate was not in session to physically receive the President’s objections does not require the conclusion that the Congress had, by its adjournment, prevented the return of S. 3418.

The fact that the House of Representatives had not adjourned in the Wright case is also a distinction without a difference. Assuming that the conelusion of the foregoing paragraph is correct, it is difficult to see how the presence or absence of the non-originating House at the time of the return could affect our decision. To hold that a return veto is possible while the originating House alone is in brief recess but not when both Houses are in recess would embrace ritual at the expense of logic.

As the foregoing discussion demonstrates, the present case falls within the exception — or, at least, within a logical extension of the exception — to the Pocket Veto Case established in Wright. Even if Wright were not applicable, however, appellants’ reliance upon the Pocket Veto Case would be misplaced. The modern practice of Congress with respect to intrasession adjournments creates neither of the hazards — long delay and public uncertainty — -perceived in the Pocket Veto'Case.

First of all, intrasession adjournments are much shorter than the intersession adjournment considered in the Pocket Veto Case. At the time of that decision, intersession adjournments of five or six months were still common. By contrast, only four intrasession adjournments in the history of the Congress have exceeded sixty days in duration. Of these, only two occurred in this century — a sixty-seven day recess in 1943 and a sixty-four day recess in 1950. Aside from these four, there have been one hundred twenty-nine intrasession adjournments of more than three days as of June, 1974: two of them for periods of fifty to sixty days; seven for periods of thirty to forty days; and two for periods of twenty to thirty days. The remaining one hundred eighteen were for periods of less than twenty days. Until 1932, practically every one of these adjournments was a Christmas holiday recess. In 1933 the twentieth amendment took effect, setting January 3rd as the customary date for commencement of each session of Congress. As a consequence, the pattern of intrasession recesses was altered somewhat over the ensuing years. In the last decade, however, a consistent pattern of intrasession adjournments has again developed. Typically, there are several recesses of approximately five days for various holidays and a summer recess (or recesses) lasting about one month.

Plainly, intrasession adjournments of Congress have virtually never occasioned interruptions of the magnitude considered in the Pocket Veto Case. More importantly, return of a bill during an intrasession adjournment, whatever its length, can no longer cause the public uncertainty envisioned in the Pocket Veto Case. Modern methods of communication make it possible for the return of a disapproved bill to an appropriate officer of the originating House to be accomplished as a matter of public record accessible to every citizen. The status of such a bill would be clear; it has failed to receive presidential approval but may yet become law if Congress, upon resumption of its deliberations, passes the bill again by a two-thirds majority. This state of affairs generates no more public uncertainty than does the return of a disapproved bill while Congress is in actual session. The only possible uncertainty about this situation arises from the absence of a definitive ruling as to whether an intrasession adjournment “prevents” the return of a vetoed bill. Hopefully, our present opinion eliminates that ambiguity.

Appellants’ briefs directs our attention to the “consistent executive practice” regarding pocket vetoes during intrasession adjournments. The court has considered this argument and finds it unpersuasive. As appellants admit, consistent practice cannot create or destroy an executive power. Appellants’ Br. at 37-38.

In addition, the precedents cited by appellants are not strong. Of only thirty-eight intrasession pocket vetoes in the nation’s history, thirty (or 78%) have occurred since the inauguration of President Franklin Roosevelt. None occurred prior to 1867. The intrasession pocket veto is, therefore, a relatively modern phenomenon. Moreover, it is a phenomenon which has gained new significance in recent years as brief, intrasession recesses have become more frequent. The present case arises from the shortest intrasession recess ever relied upon by any President as having prevented' the return of a disapproved bill. It is also significant that, in the single case which presented the issue of whether an intrasession adjournment precluded a return veto, the Supreme Court ruled that it had not. Wright v. United States, su/pra. In our view, therefore, the question raised in this case is still very much an open one, prior executive practice notwithstanding.

In summary, we hold that the Christmas recess of 1970 did not prevent the return of S. 3418 — a conclusion which may be reached by either of two routes. First, the present case is governed by the logic, if not the precise holding, of the Wright decision. Second, the case is an appropriate one for disposition of the question of whether any intrasession adjournment, as that practice is presently understood, can prevent the return of a bill by the President where appropriate arrangements have been made for receipt of presidential messages during the adjournment — a question which must be answered in the negative.

Affirmed.

FAHY, Senior Circuit Judge, with whom BAZELON, Chief Judge, joins.

I concur in the opinion of Judge Tamm for the court, adding only a few notes.

Appellants contend in this court only that Senator Kennedy lacks standing to obtain the adjudication he seeks, and that the proposed legislation never became law because of a valid pocket veto. The opinion of Judge Tamm meets these contentions. The position asserted in the District Court that the President was an indispensable party has not been renewed in this court; nor is any issue of jurisdiction or justiciability now raised, aside from the problem of standing as it might bear upon jurisdiction or justiciability.

I do not think the standing of Senator Kennedy is quite the same as the 20 Senators of the State of Kansas, the plaintiffs in Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). Ratification by Kansas of the Child Labor Amendment depended upon the validity of the vote of the Lieutenant Governor which the Senators challenged. If his vote should not have been counted the Senate was equally divided, 20-20, and ratification by Kansas would have failed. In the present case, Senator Kennedy’s vote did not control passage of S. 3418. Nevertheless, his interest is substantial. As a United States Senator' he represents a sovereign State whose people have a deep interest in the Act and look to their Senators to protect that interest; and he, as Senator, it seems to me, has a legal right not only to seek judicial protection of those interests, believed by him to be threatened by an invalid veto, but also, in the circumstances, to protect his own interest as a national legislator in the bill for which he voted. These interests I think do not depend for their protection upon affirmative approval by the Senate itself of efforts to obtain judicial relief. Moreover, as Judge Tamm points out, the Senator’s stake in the outcome of the controversy meets the adversary test of standing under Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and subsequent decisions of the Court.

The aliveness of the controversy also seems clear. Whether the Act is to continue in its present form of course is for Congress to decide, but it has not been abandoned. Although its uncertain status necessarily affected congressional appropriations, the Second Supplemental Appropriations Act, 1973, 87 Stat. 106, includes a $100,000 appropriation to carry out the purposes of the Family Practice of Medicine Act, S. 3418, to remain available until expended. S.Rep. No. 160, 93d Cong., 1st Sess. 48-49 (1973).

      . S. 3418, 91st Cong., 2d Sess. (1970).

      . Appellee contends that appellant Jones is required to deliver and appellant Sampson to publish in slip form and in Statutes at Large all newly enacted laws of the United States. Kennedy v. Sampson, C.A. No. 1583-72, Complaint, ¶¶ 4, 5 (D.D.C., filed Aug. 9, 1972), citing 1 U.S.C. §§ 106a, 112, 113 (1970). This question was not decided by the district court.

      . Passed in the Senate September 14, 1970 by a vote of 64-1, 116 Cong.Rec. 31508 (1970) ; in the House of Representatives on December 1, 1970 by a vote of 346-2, id. at 39379. The Senate House Conference Report, H.R. Rep.No.91-1668, 91st Cong., 2d Sess., was agreed to by the House on December 8, 116 Cong.Rec. 40289-92 (1970), and by the Senate on December 10, id. at 40867.

      . 116 Cong.Rec. 41289 (1970).

      . S.Con.Res. 87, 91st Cong., 2d Sess., id. at 43250.

      . 116 Cong.Rec. 43221 (1970).

      . 6 Presidential Documents 1726-27 (December 28, 1970).

      . Kennedy v. Sampson, 364 F.Supp. 1075, 1087 (D.D.C.1973).

      . Pursuant to Rule 54(b), Fed.R.Civ.P. the district court found that there was no just reason for delay and directed entry of a final order granting appellee’s request for declaratory relief. Kennedy v. Sampson, supra note 2, Order dated September 24, 1973.

      . Appellee claims standing in his capacity as a citizen, as a taxpayer, and as a member of the United States Senate. The district court agreed with the latter contention and did not reach the alternative arguments. Kennedy v. Sampson, supra, 364 JT.Supp. at 1077-1079.

      . Kennedy v. Sampson, supra note 2, Complaint, ¶ 15.

      . Appellants’ Br. at 24-27; Appellants’ Reply Br. at 2-3.

      . Appellants’ Reply Br. at 2. Appellants suggest that the Senate might have standing because it was “improperly deprived of the initial opportunity to override the veto . ” Id- Appellee makes a similar argument in favor of his own individual standing. Appellee’s Br. at 13. Both parties misconceive the issue. The only possible effects of the President’s action with respect to S. 3418 are that the bill became law, in which case there is no need to override, or it did not become law because Congress prevented its return, in which case there is no right to override. See Hearings on the Constitutionality of the President’s “Pocket Veto” Power Before the Subcomm. on Separation of Powers of the Senate Comm, on the Judiciary, 92nd Cong., 1st Sess. 4-5 (1971).

      . Appellants’ Reply Br. at 2.

      . Id. at 2-3.

      . Id. (emphasis added).

      . Appellants dispute the contention that a broad construction of the pocket veto clause can affect the legislative balance of power. Two defenses are suggested whereby Congress can maintain legislative supremacy: (1) if disapproval is anticipated, Congress may delay the presentation of a bill until after the recess in order to preserve its right to override ; (2) Congress may reenact a pocket-vetoed bill and present it to the President a second time. Appellants’ Br. at 44-45. While both of these procedures might be effective, they would not change the fact that the pocket veto power will have been used as an obstacle — however temporary — to the implementation of the will of Congress. Moreover, such delays may for practical purposes become permanent. As appellee points out in his brief at 54:
      It is no answer to say that if Congress wishes, it can simply pass a pocket-vetoed bill again and present it to the President at a time when the pocket veto cannot be used. At best, the legislative route is arduous and time-consuming, involving numerous sub- ■ committee, full committee, and other proceedings in both the Senate and the House. At worst, if delay has dimmed the constellation of public and private interests that facilitated the original passage of the bill, if the unique alchemy that enabled the legislative process to function successfully the previous time around has disappeared, the result may be that the bill cannot be passed at all.
      It is significant, too, that the utilization of a broadly construed pocket veto power is likely to grow with the increasing frequency of brief, intrasession adjournments. See infra note 40 and accompanying text.

      . 1 M. Farrand, The Records of the Federal Convention of 1787, at 104, 106 (Rev. ed. 1937) [hereinafter cited as M. Farrand] ; 2 M. Farrand at 71, 200, 301, 582, 585 (the last page recording the opinion of one delegate that even a provision requiring a three-fourths vote to override “puts too much in the power of the President”).

      . 1 M. Farrand at 192, 300. See also 3 M. Farrand at 624, 627.

      . 1 J. Story, Commentaries on the Constitution of the United States § 891 (5th ed. 1905) (footnotes omitted).

      . Where a pocket veto is appropriate there is, by definition, no congressional right to override. Bee supra note 13.

      . The Court also cited “the practical construction that has been given to' [the clause] by the Presidents through a long course of years, in which Congress has acquiesced.” 279 U.S. at 688-689, 49 S.Ct. at 469. A similar argument was made in this case and is treated below.

      . In that case, a bill was return-vetoed by the President during a brief recess of the Senate, the originating House. The petitioner, who relied upon the bill as the jurisdictional basis for his unsuccessful claim in the Court of Claims, argued that no valid return had been effected. It was apparently his simultaneous contention that no pocket veto was possible because “Congress” as a whole had not adjourned within the meaning of the phrase “unless the Congress by their Adjournment prevent its return.” Bee 302 U.S. at 597, 58 S.Ct. 395. Bee also Comment, The Veto of S. 3418: More Congressional Power in the President’s Pocket?, 22 Catholic L. Rev., 385, 391 (1973).

      . The Senate’s 1970 Christmas recess extended from Tuesday, December 22 to Monday, December 28 — a period of five days (excluding Sunday). See supra note 5. The Wright case involved an adjournment by the Senate of less than three days from Monday, May 4, 1936 until Thursday, May 7, 1936. 302 U.S. at 585, 58 S.Ct. 395. The last day for return of S. 3418 was December 25, 1970, two days (excluding Sunday) before the end of the Senate recess. In Wright, the tenth day fell on May 6, 1936, the day before the Senate’s return. 302 U.S. at 592, 58 S.Ct. 395.

      . Even a narrow construction of Wright permits return of a bill during a recess of the originating House which began at the end of the ninth day of the President’s ten-day period for consideration. In such a case, Congress’ reconsideration of the bill would be delayed at least two days. See Kennedy v. . Sampson, supra, 364 F.Supp. at 1086.

      . Unlike the Wright case, the Secretary of the Senate was expressly authorized to receive messages from the President during the 1970 Christmas adjournment. See supra note 6.

      . The Wright opinion emphasizes that a brief recess does not occasion long delay of Congress’ reconsideration of a bill returned during the recess — a problem envisioned in the case of the months-long intersession adjournment considered in the Pocket Veto Case. As demonstated above, the Christmas recess of 1970 comes within the reasoning of Wright on this point. We do not thereby intimate, however, that prompt reconsideration of a returned bill is constitutionally required in order to override a return veto. The Constitution itself sets no time limit upon Congress’ right to override a presidential veto. By the same token, as we indicate in our alternative discussion, infra, the mere duration of an intrasession adjournment will not “prevent” the return of a bill absent some constitutional evil such as the danger of public uncertainty perceived in the Pocket Veto Oase.

      . The House of Representatives was in recess from December 22, 1970 until December 29, 1970, the day after the Senate’s return. See supra note 5.

      . See Note, The Presidential Veto Power: A Shallow Pocket, 70 Mich.L.Rev. 148, 161-62 (1971). The Wright opinion does state at the outset that the return of the disapproved bill was not prevented because “Congress” (i. e. both Houses) had not adjourned. This clearly was not the basis for its decision, however, since the Court expressly reserved the question of whether a more extended one-House adjournment might “prevent” the return of a vetoed bill. 302 U.S. at 598, 58 S.Ct. 395. The Court relied, rather, upon the reasoning which we have outlined above; the brevity of the recess and the availability of efficient methods for delivery of the President’s veto message.

      . The intersession adjournments of the 68th, 69th and 70th Congresses lasted six months, five months, and six months respectively. 1974 Congressional Directory 396. These Congresses covered the period from December, 1923 to March, 1929. The Pocket Veto Case was decided in 1929.

      . The other two adjournments occurred in 1867 (94 days and 123 days). See Appendix herein.

      . See Appendix.

      . Id. The exceptions are numbered 9, 12 13, 61 and 70 in Appendix.

      . See items 88-133 in Appendix.

      . The only intrasession adjournments approaching this occurred in 1867. See supra note 31.

      . The length of an intrasession adjournment per se does not prevent the return of a disapproved bill for reconsideration. The Constitution sets no time limit on the right of Congress to override a presidential veto.

      . Searings, supra note 13 at 14, 15.

      . See Appendix.

      . Id.

      . Id.

      . Id.

      . Source: 1974 Congressional Directory 392; Presidential Vetoes, Record of Bills Vetoed and Action Taken Thereon by the Senate and House of Representatives, 1789-1968 (Compiled by Senate Library, 1969) ; Calendar, 93rd Cong. (June 24,1974).

      . The date of the beginning of each adjournment is the first day on which neither House was in session; the date of the end of each adjournment is the day on which one or both Houses resumed the session.

      . There were additional adjournments in this session, from July 27, 1868, to September 21, to October 16, and to November 10. No business was transacted subsequent to July 27, 1868, and the session adjourned sine die on November 10. In effect, the adjournment on July 27 was a sine die adjournment. President Andrew Johnson pocket vetoed two bills presented to him after the adjournment of July 27, 1868.

      . The Senate and the House of Representatives adjourned on July 27, 1947 under a “conditional final adjournment” resolution, S.Con. Res. 33; 93 Cong.Ree. 10400. Pursuant to the resolution, the two Houses were to stand in adjournment until January 2, 1948, unless recalled into session earlier by specified Senate and House leaders. In effect, the adjournment was a sine die adjournment, not an intrasession adjournment. On November 17, 1947, Congress convened pursuant to proclamation of President Truman, and adjourned sine die on December 19, 1947. The President pocket vetoed 19 bills presented to him after the adjournment of July 27, 1947.

      . The Senate and the House of Representatives adjourned on June 20, 1948, under a “conditional final adjournment” resolution, H.Con.Res. 218; 94 Cong.Ree. 9158. Pursuant to the resolution, the two Houses were to stand in adjournment until December 31, 1948, unless recalled into session earlier by specified Senate and House leaders. In effect, the adjournment was a sine die adjournment, not an intrasession adjournment. On July 26, 1948, Congress convened pursuant to a proclamation of President Truman. The President pocket vetoed 14 bills presented to him after the adjournment of June 20, 1948.

      . The House adjourned sine die on August 20, 1954. Thereafter President Eisenhower pocket vetoed twenty-five bills. Although the Senate remained in session until December 2, 1954, these were not intrasession pocket vetoes since the House had already finally adjourned.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Maurice TYLER, Plaintiff-Appellant, v. Joseph WITKOWSKI, Defendant-Appellee.
    No. 74-1121.
    United States Court of Appeals, Seventh Circuit.
    Heard Nov. 22, 1974.
    Decided Feb. 26, 1975.
    David C. Thomas and Thomas Hecht, Law Student, Chicago, 111., for plaintiff-appellant.
    Bernard Carey, State’s Atty. and Fredric B. Weinstein, Asst. State’s Atty., Chicago, 111., for defendant-appellee.

      Before CUMMINGS and TONE, Circuit Judges, and WYZANSKI , Senior District Judge.

       Senior District Judge Charles Edward Wyzanski, Jr. of the District of Massachusetts is sitting by designation.

   PER CURIAM.

This action was brought under the Civil Rights Act (42 U.S.C. § 1983) against a former Assistant State’s Attorney of Cook County complaining that plaintiff was falsely imprisoned from May 4, 1971, until May 18, 1971. He sought compensatory damages of $5,000 and punitive damages of $10,000.

On April 15, 1971, plaintiff, Allen Reed and James Davis were arrested in the Southway Hotel and charged with the armed. robbery of a Brinks, Inc. truck and the murders of two Brinks truck drivers that had occurred four hours earlier in front of the hotel. The arrests were based substantially on statements of two hotel employees, Mr. Jesse Corner and Mrs. Bernice White. Bail was not initially permitted.'

On May 4, these two witnesses purportedly retracted their former identification of plaintiff in conferring with his then counsel, James Montgomery. This caused a municipal court judge to set plaintiff’s bail at $5,000 on May 6th, and he was released on bail on May 18th. The false imprisonment charged occurred during the fortnight between the retractions by the two witnesses and the plaintiff’s release on bail. On May 21st, pursuant to defendant’s motion, charges against plaintiff were stricken with leave to reinstate.

In an unreported memorandum opinion, the district judge granted summary judgment for defendant. As stated by plaintiff on appeal, “The District Court concluded not only that the Defendant was immune from civil liability, but also that ‘uncontradicted facts’ support a finding of good faith sufficient to release defendant from all liability” (Appellant’s Br. 21).

As this Court said in Hampton v. City of Chicago, Cook County, Illinois, 484 F.2d 602,. 607, certiorari denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471:

“The claim of immunity must not be confused with the defense of good faith. That defense is available to a person who, either because of his position or because of his conduct, is not immune from suit. See Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L.Ed.2d 288.”

Accordingly, if this Court upholds the claim to immunity, we need not reach the good faith issue.

In determining whether an official is immune from civil liability for certain alleged action, the proper focus is upon the character of the defendant’s conduct rather than his motivation. Hampton v. City of Chicago, Cook County, Illinois, supra, at 608; Robichaud v. Ronan, 351 F.2d 533, 536-537 (9th Cir. 1965); see Comment, Civil Rights — Section 1983 — Prosecuting Attorney Held Immune From Civil Liability for Violation of Civil Rights Act, 42 N.Y.U.L.Rev. 160, 162-163 (1967). Therefore, if the conduct charged in plaintiff’s complaint is within the scope of a prosecutor’s normal function, he is cloaked with quasi-judicial immunity from civil liability under the Civil Rights Acts. Hampton v. City of Chicago, Cook County, Illinois, supra, 484 F.2d at 608-609; Littleton v. Berbling, 468 F.2d 389, 409-410 (7th Cir. 1972), reversed on other grounds sub nom. O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674.

Plaintiff’s complaint does not assert that the defendant never had any evidence sufficient to hold plaintiff; rather it alleges that after the retractions by the two eye-witnesses, defendant violated plaintiff’s civil rights by not acting immediately to drop the charges against him, thereby securing his release. However, defendant was not assigned responsibility for the case until May 10th, eight days before plaintiff’s release. A prosecutor is entitled to a reasonable period to study charges made against an accused. The 8-day period here was patently permissible on this record. As Judge McGarr stated:

“The crime charged was extremely serious. Bond reduction had been refused. At first, the State’s evidence seemed conclusive. The withdrawal of statements of Jesse Corner and Bernice White obviously diminished the State’s case, but left a considerable amount of circumstantial evidence, including the statements of Gloria Burrell, Rodney Burrell, Eleanor Means, Freeman Rice, Elizabeth Shavers, and Edward Howard. In addition, prosecutor Witkowski had reason to believe that there may have been some pressure or duress involved in the withdrawal of the two identifications and reasonably took time to investigate this possibility. Thus, defendant Witkowski’s actions were within his prosecutorial discretion and he is immune from a suit for damages such as sought herein by the plaintiff.”

In our view, plaintiff’s complaint assails conduct that is clearly within the scope of the prosecutor’s normal function. Defendant was not engaged in “investigatory activities normally performed by laymen, such as police officers.” Hampton v. City of Chicago, Cook County, Illinois, supra, 484 F.2d at 608; see also Duba v. McIntyre, 501 F.2d 590, 592 (8th Cir. 1974). Indeed, the decision whether insufficient evidence remains to support an existing charge after retractions are procured from admittedly key witnesses is one that cannot be made by a layman, but only by a prosecutor in the exercise of his quasi-judicial discretion. See Imbler v. Pachtman, 500 F.2d 1301 (9th Cir. 1974).

Order affirmed.

      . The Sheriff of Cook County and the Execu-. tive Director of the Cook County jail were dismissed as defendants on April 5, 1973, and summary judgment was subsequently granted to the State’s Attorney of Cook County. Plaintiff does not appeal these rulings.

      . Plaintiff never moved to dismiss the charges.

      . We reject defendant’s proposition that the complaint fails to state a cognizable claim under the Civil Rights Act. The complaint' adequately makes out a claim for deprivation of liberty without due process of law.

      . In Whirl v. Kern, 407 F.2d 781 (5th Cir. 1969), certiorari denied, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177, on which plaintiff relies, the defendant was a sheriff, so that prosecutorial immunity was not involved.


author: PER CURIAM:

text:
    Robert L. BELL, d/b/a Crescendo Publishers, and Cuarta Corporation, d/b/a Crescendo Publishing Company, Plaintiffs-Appellees, v. PRO ARTS, INC., et al., Defendants-Appellants.
    No. 74-1232.
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed Feb. 14, 1975.

      Roger R. Ingraham, Medina, Ohio, for defendants-appellants.
    William S. Burton, Arter & Hadden, Cleveland, Ohio, for plaintiffs-appellees.
    Before PHILLIPS, Chief Judge, MILLER, Circuit Judge, and DeMASCIO, District Judge.

       The Honorable Robert E. DeMascio, Judge, United States District Court for the Eastern District of Michigan, sitting by designation.

   PER CURIAM:

Plaintiff-appellee Bell discovered quite by chance that defendant-appellant was distributing unauthorized renditions of the poem DESIDERATA without displaying an appropriate copyright legend. He formally advised appellant of his copyright and demanded that the appellant cease and desist from future sales of the poem. When this and several additional demands failed to deter the appellant, plaintiff filed this copyright infringement action for injunctive and monetary relief. The cause was tried before the United States District Court for the Northern District of Ohio without a jury. That court found appellee’s copyright valid and infringed in several respects. There were two representations of the poem incorporated in appellant’s catalogue. One included the entire text of the poem on a white background falsely representing that it was “found in Old St. Paul’s Church, Baltimore, 1692.” The second contained the text superimposed on a beach scene. Neither of these representations contained the copyright legend. The district court awarded appellee damages of $5,000 as well as permanent injunctive relief. On the basis of Chief Judge Frank J. Battisti’s exhaustive and well-reasoned opinion, reported at 366 F.Supp. 474, we affirm.

Appellants contend in this appeal that the trial court erred in permitting the introduction of unauthenticated evidence; in allowing the introduction of hearsay statements; in imposing damages; and in exhibiting prejudice toward appellants during the trial. We find these contentions lack merit. Appellants have not supported the allegation that the trial court received documentary evidence not properly authenticated, nor has it shown that Exhibits 6 and 10, also alleged to be unauthenticated, were relied upon by the court in its findings of infringement. Notwithstanding this failure, the parties were afforded ample opportunity to assert a valid objection to authenticity. Appellant made no such objection. Similarly, hearsay statements were not considered by the court except to permit appellee to identify the president of appellant company and his address (finding No. 19). Even assuming these statements constituted hearsay, they were not offered to prove a critical trial issue and, therefore, their admission was harmless. It is apparent that appellant’s damages were not readily ascertainable. The failure of appellant to co-operate during pretrial discovery made it impossible to ascertain damages, Where actual damages are unascertainable, the court may award damages within the limits prescribed by 17 U.S.C. § 101, -The award by the district court here did not exceed those limits.

Finally, we have reviewed this record and find that the judgment was amply supported by substantial evidence and that the appellant’s bare allegation that the trial court was prejudiced is without merit.

Judgment is affirmed.


author: BOOTLE, District Judge:

text:
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. HUTTIG SASH & DOOR COMPANY, Defendant-Appellee.
    No. 74-1493.
    United States Court of Appeals, Fifth Circuit.
    April 10, 1975.
    William A. Carey, Gen. Counsel, William L. Robinson, Associate Gen. Counsel, James P. Scanlan, Joseph T. Eddins, EEOC, Washington, D. C., Roger J. Martinson, Acting Reg. Atty., Alfonso McGhee, Associate Reg. Atty., Ellis L.

      Bert, Asst. Reg. Atty., Lawrence J. Kamenetzky, Atty., EEOC, Atlanta Regional Litigation Center, Atlanta, Ga., Beatrice Rosenberg, Charles L. Reischel, Attys., EEOC, Washington, D. C., for plaintiff-appellant.
    Stova F. McFadden, Mobile, Ala., Asa Ambrister, Washington, D. C., for defendant-appellee.
    Before GODBOLD and MORGAN, Circuit Judges, and BOOTLE, District Judge.
   BOOTLE, District Judge:

Clavin Rencher filed a charge with the EEOC on January 14, 1969, alleging violations of Title VII of the Civil Rights Act in that the company had refused to hire him because of his race and that the company maintained job classifications and facilities segregated by race. On February 3, 1972, the EEOC issued a decision finding that there was no reasonable cause to believe that the employer had violated Title VII by refusing to hire Rencher or by maintaining facilities segregated by race but that there was reasonable cause to believe that the company was violating Title VII by maintaining job classifications segregated by race and sex and by placing advertisements for jobs indicating a preference as to sex.

On March 26, 1973, the EEOC notified Rencher that conciliations efforts had failed and issued the statutory right-to-sue notice to him. On May 9, 1973, Rencher presented his right-to-sue notice and his notice of failure of conciliation to the United States District Court for the Southern District of Alabama, which simply assigned a docket number to these papers. On June 1, 1973, the court appointed counsel for Rencher. On October 1, 1973, Rencher’s counsel moved for leave to dismiss the action; and on October 3, an order was entered dismissing the action with prejudice. On November 1, 1973, the EEOC initiated this action, alleging racial discrimination. The company’s motion to dismiss was granted on the ground that because of the dismissal of the private suit, there was no longer an outstanding charge on which the complaint could be predicated.

The sole issue which we must decide is whether after the termination of a charging party’s private suit the EEOC can bring suit predicated on, but not limited to, the same charge. We have concluded that it can, and we reverse.

In resolving the issue before us, we are unable to gain much assistance from the legislative history of Title VII and the particular sections involved here. Courts have tended to rely upon policy arguments in deciding the various questions which have arisen under Title VII. However, we are here confronted with two opposing policy considerations, each of which has some attraction. The EEOC points to the remedial nature of the statute and argues that it should not be hampered in fighting employment discrimination. The company points to the judicial policy against duplication of proceedings and argues that duplicative suits should not be permitted.

To support its position, Huttig Sash & Door relies heavily upon EEOC v. Missouri Pacific R.R., 493 F.2d 71 (8th Cir. 1974). The Eighth Circuit held that once a charging party has filed suit pursuant to a right-to-sue notice, the EEOC is relegated to its right of permissive intervention under 42 U.S.C. § 2000e-6. The court in that case was not concerned that its ruling might prevent litigation of the discrimination issues raised by the EEOC, for the court was “fully confident” that the district judge would permit intervention by the EEOC. The narrow holding of Missouri Pacific is that while a private suit is pending, the EEOC cannot institute another suit but must seek to intervene. The court in Missouri Pacific did not have before it the question of what rights the EEOC has after the private party terminates his suit.

The rationale of Missouri Pacific offers little help in deciding the issue now before us. If the Eighth Circuit had ruled that the EEOC could bring an independent action at the same time that the private suit was being litigated, there would be two lawsuits proceeding through the courts simultaneously and dealing with identical or certainly similar issues. However, if the private suit has already been terminated (as is our situation), there would not be duplicative suits before the courts. Thus we are not faced with the same considerations that confronted the Eighth Circuit.

We are convinced that Congress meant to avoid duplicative proceedings by limiting the EEOC to permissive intervention when the EEOC raises no substantially different issues and seeks no relief other than for the private party. An entirely different situation exists when the EEOC uses the filing of a charge simply as a jurisdictional springboard to investigate whether the employer is engaged in any discriminatory practices; this investigation might frequently disclose, as in this instance, illegal practices other than those listed in the charge.

We agree with the Sixth Circuit’s view as expressed in EEOC v. Kimberly-Clark Corp., 6 Cir., 511 F.2d 1352, 1363 [1975]: “The Congressional intent that duplicitous proceedings be avoided does not mean, however, that the EEOC should be limited to permissive intervention in a private suit when its investigation on the one charge has disclosed a number of violations which require judicial attention.” [Emphasis added.] The filing of a charge with the EEOC is simply the first step in pinpointing and then correcting employment discrimination. If upon investigating a particular charge of discrimination (which itself might be relatively minor) the EEOC discovers other discriminatory practices, surely the EEOC should not be prevented from taking appropriate action on those newly discovered practices simply because the charging party settles his suit with the employer. We are mindful also that under a contrary holding an employer might seek to settle a particular individual’s grievance in order to prevent the EEOC from bringing suit on other discriminatory practices discovered in investigating the original charge. Such a result would not be at all consistent with the clear Congressional intent to end employment discrimination. The enforcement of the policies of Title VII should not be left to such fortuities. See Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968).

Although the termination of the aggrieved person’s suit does not cut off the EEOC’s right to bring suit to end practices discovered through the investigation of the charge filed by that person, the EEOC would be barred from filing suit on that particular charge and on behalf of that person who had had his suit adjudicated. Res judicata would prevent such a suit.

For the foregoing reasons the order of the district court is reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

      . Although cease-and-desist authority for the EEOC was eventually rejected by the Congress, the following excerpt from the House Report is relevant:
      The committee was concerned about the interrelationship between the newly created cease and desist enforcement powers of the Commission and the existing right of private action. It concluded that duplication of proceedings should be avoided. The bill, therefore, contains a provision for termination of Commission jurisdiction once a private action has been filed (except for the power of the Commission to intervene in the private actions). It contains as well a provision for termination of the right of private action once the Commission issues a complaint or enters into a conciliation or settlement agreement which is satisfactory to the Commission and to the person aggrieved. If such an' agreement is not acceptable to the aggrieved party, his private right of action is preserved.
      1972 U.S.Code Cong. & Admin.News at 2148.

      . In footnote 15 Kimberly-Clark disagrees with Missouri Pacific as follows:
      We respectfully disagree with the Eighth Circuit’s conclusion in EEOC v. Missouri Pacific R.R., 493 F.2d 71 (8th Cir. 1974). As Judge Heaney points out in his concurrence in that case, 493 F.2d at 75, a grant of permissive intervention does not guarantee that the EEOC will be able to raise issues that have arisen in the investigation of a claim on which the private party has sued, when the issues the EEOC seeks to litigate are not raised by the private party. We believe the remedy for this is not to expand the concept of intervention beyond its normal meaning, but' to allow the EEOC to bring suit based on the findings that its investigation warrants.

      . The situation in the case sub judice can arise only after the individual has received a right-to-sue notice from the EEOC and has actually filed suit. Once a charge is filed by an individual, it may be withdrawn only with the consent of the EEOC. 29 C.F.R. § 1601.9 (1974).


text:
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. GRIFFIN WHEEL COMPANY, and International Molders, and Allied Workers Union, Local No. 75, AFL-CIO, Defendants-Appellees.
    No. 74-1546.
    United States Court of Appeals, Fifth Circuit.
    April 10, 1975.
    See also, 360 F.Supp. 424.

      William A. Carey, Gen. Counsel, William L. Robinson, Associate Gen. Counsel, Linda Colvard Dorian, Charles L. Reischel, Attys., EEOC, Washington, D. C., Roger J. Martinson, Acting Reg. Atty., Alfonso McGhee, Associate Regional Atty., Ellis L. Bert, Asst. Reg. Atty., William Franklin Jordan, Atty., EEOC, Atlanta Regional Litigation Center, Atlanta, Ga., Beatrice Rosenberg, Joseph T. Eddins, Attys., EEOC, Washington, D. C., for plaintiff-appellant.
    William F. Gardner, John C. Falkenberry, William E. Mitch, Birmingham, Ala., for defendants-appellees.
    Before GODBOLD and MORGAN, Circuit Judges, and BOOTLE, District Judge.
   BOOTLE, District Judge:

In 1970 Curtis Pack and Jimmy Youngblood filed charges with the EEOC alleging discrimination. The EEOC filed the complaint instituting this action in May 1973; the complaint sought an injunction and also asked the court “to make whole those persons adversely affected by the practices and policies alleged herein” including an award of back pay. (The union was joined as a defendant because its presence might have been necessary in framing a remedy.) The district court granted the defendants’ motion for summary judgment on the grounds that the action was barred by the Alabama statute of limitations and that the EEOC was not authorized to file suit after the expiration of the 180 day period provided by the 1972 amendment to Title VII. We reverse.

I. 180 DAY LIMITATION UNDER TITLE VII

Subsequent to the date on which the district court granted summary judgment, this Circuit held that Title VII of the Civil Rights Act does not impose a 180 day limitation on the power of the EEOC to bring suit. EEOC v. Louisville & Nashville R. R., 505 F.2d 610 (5th Cir. 1974). Therefore, there is no need for us to discuss this point.

II. STATE STATUTE OF LIMITATIONS

Pack filed his charge with the EEOC asserting:

I believe the Company discriminated against me because of my race (Negro) by giving me a warning notice for an offense in which they have not give [sic] such notices to white employees and for intending to lay me off for the same offense.

This charge was later amended to read: “I believe that the Company discriminated against me because of my race by giving me a warning notice for an offense that Caucasian employees commit and are not given warning notices.” Youngblood’s charge was, “I believe the Company discharged me because of my race (Negro).” The EEOC’s investigation of these charges convinced it that a broad pattern of racial discrimination as charged in the complaint existed at Griffin Wheel.

The district court ruled that the record did not establish sufficient undisputed facts which would entitle the defendants to summary judgment on either of the two additional grounds asserted by them (viz., that the issues presented in the complaint went beyond the permissible extension of the express matters embraced in the charges filed with the EEOC and that res judicata barred the suit).

Our question narrows to whether the district court erred in granting summary judgment on the ground that the action was barred by the Alabama statute of limitations.

The major case in this Circuit dealing with the limitation periods to be applied to actions brought under Title VII is United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973). Although that case was brought by the Attorney General under section 707 of Title VII as a “pattern or practice” suit and the case sub judiee was brought by the EEOC under section 706, we find Georgia Power helpful as we approach the question presented here.

Title VII is silent as to limitation periods. Section 706(g) does specify that “[b]ack pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission.” But this is not a prescription as to when suits may be filed. Clearly, Congress simply meant to provide a maximum period during which an employer might be liable for back pay, but it did not thereby intend to modify applicable state statutes of limitations on the ability to bring suit.

Georgia Power dictates the answer to our question. There we said (474 F.2d at 906):

Where the government is suing to enforce rights belonging to it, state statutes of limitation are not applicable. See e. g., United States v. Thompson, 98 U.S. 486, 488 — 191, 25 L.Ed. 194 (1878) and United States v. Summerlin, 310 U.S. 414, 416-417, 60 S.Ct. 1019, 84 L.Ed. 1283 (1940). However, this principle is not apropos to the present back pay claims. Insofar as the pattern or practice suit constitutes a proper legal conduit for the recovery of sums due individual citizens rather than the treasury, it is a private and not a public action. Cf. United States v. Beebe, 127 U.S. 338, 346, 8 S.Ct. 1083, 32 L.Ed. 121 (1888), and United States v. Smelser, 87 F.2d 799 (5th Cir. 1937). These personal claims are entitled to no superior status because they are here allowed to be asserted in the Attorney General’s suit as well as in the private class action.
Rather than the contention of either of the parties, we follow the general rule expressed in Beard v. Stephens, a decision involving an action for damages under 28 U.S.C. § 1343:
Congress has created many federal rights without prescribing a period for enforcement. In such cases the federal courts borrow the limitations period prescribed by the state where the court sits. The applicable period of limitations is that which the state itself would enforce had an action seeking similar relief been brought in a court of that state. [372 F.2d 685, 688 (5th Cir. 1967)]
To accomplish this goal, “[w]e must look . . . first to federal law to determine the nature of the claim and then to state court interpretations of the state’s ‘statutory catalogue’ to see where the claim fits into the state scheme.” Id.

In the suit before us is the EEOC “suing to enforce rights belonging to [the sovereign]” or is it employing the suit as a “legal conduit for the recovery of sums due the individual citizens rather than the treasury”? We find that it is doing both. Insofar as the complaint seeks injunctive relief, the EEOC is seeking to enjoin practices contrary to public policy as prescribed in the United States Constitution and in enactments of Congress, EEOC v. Duff Brothers, Inc., 364 F.Supp. 405 (E.D.Tenn.1973), thus “vindicating a policy that Congress considered of the highest priority.” Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263, 1265 (1968). The injunctive feature of the case is thus squarely within the rule that when the federal government or one of its agencies is the plaintiff suing to enforce rights belonging to the sovereign, state statutes of limitations are not applicable. United States v. Georgia Power Co., supra; EEOC v. Duff Brothers, Inc., supra. Clearly the district court was in error in granting summary judgment as to that aspect of the case. See, e. g., EEOC v. Kimberly-Clark Corp., 6 Cir., 1975, 511 F.2d 1352 [1975],

Insofar as the complaint seeks recovery of back pay it is private and not public in nature and is subject to the Alabama statute of limitations. This means that the action must have been commenced within one year after the occurrence of the injury complained of. Upon remand, the district court must give further consideration to whether this action was timely commenced within the purview of the state statute of limitations. Its memorandum opinion erroneously treated the filing of the last charge (on March 16, 1971) as “the last actionable act.” Georgia Power teaches that employment discrimination may as readily be a continuing course of conduct as a single event (474 F.2d at 922); that the court must determine the most recent date on which the discriminatee’s cause of action accrued; that for the purpose of the statute of limitations a cause of action accrues whenever an individual is directly and adversely affected by that discriminatory practice; that in individual cases the event may be the refusal to hire the discriminatee or the refusal to promote on the basis of race or sex; and that the date of the last act of discrimination for the purpose of the statute of limitations is a question of fact for the trial court. 477 F.2d at 924.

Reversed and remanded for further proceedings not inconsistent with this opinion.

      . Section 706(f)(1), 42 U.S.C. § 2000e-5(f).

      . The EEOC’s amended complaint alleges that Griffin Wheel violated Title VII in
      (a) Discriminating against Blacks in hiring, discharges, and other terms, conditions and privileges of employment.
      (b) Maintaining a disciplinary system for violations of company policy which discriminates against Blacks on the basis of race. Blacks are given written warnings for violations of company policy whereas Caucasians are given verbal warnings. This system results in the greater frequency of disciplinary actions, including layoff and discharge, against Blacks.
      (c) Maintaining locker, shower and restroom facilities segregated on the basis of race.
      (d) Failing and refusing to take appropriate affirmative action to eliminate its discriminatory employment practices and policies and to correct the effects of present and past discrimination against Blacks.

      . See Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970).

      . “The following must be commenced within one year; . . . Actions for any injury to the person or rights of another, not arising from contract, and not herein specifically enumerated.” Ala.Code tit. 7, § 26.

      . As Georgia Power indicates, the doctrine of laches would remain applicable. 474 F.2d at 923.

      . While the filing of the charge is a jurisdictional prerequisite to bringing suit under Title VII, it does not fix the date on which the cause of action accrues (unless perchance the charge be filed on the same day on which the injury occurs).


author: IRVING R. KAUFMAN, Chief Judge:

text:
    George FELDMAN, as Trustee in Bankruptcy of Leasing Consultants, Incorporated, Bankrupt, Plaintiff-Appellee, v. FIRST NATIONAL CITY BANK, Defendant-Appellant.
    No. 315, Docket 74-1893.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 9, 1975.
    Decided Jan. 28, 1975.
    Henry Lewis Goodman, New York City (Zálkin, Rodin & Goodman, New York City, on the brief), for defendant-appellant.
    George A. Hahn, Daniel A. Zimmerman, New York City (Hahn, Hessen, Margolis & Ryan, New York City, on the brief), for plaintiff-appellee.
    Before KAUFMAN, Chief Judge, and FEINBERG and MANSFIELD, Circuit Judges.
   IRVING R. KAUFMAN, Chief Judge:

Frequently, though it may be exercised, the contours of the trustee’s muscle under the “strong-arm” clause of the Bankruptcy Act, § 70c, 11 U.S.C. § 110(c), have consistently failed to take on any sharp definition. The provisions of the complex Bankruptcy Act were no doubt the result of great industry, but to the reader their meaning is frequently concealed. We are presented in this case with the question whether the two year period of limitations provided by § lie of the Act, 11 U.S.C. § 29(e), applies to a trustee asserting his power under § 70c, or whether he should be allowed such further period as non-bankruptcy law would permit a judicial lien creditor. We conclude that actions under § 70c are barred if brought more than two years subsequent to the date of adjudication, and reverse the judgment of the district court.

I

A brief statement of the facts will assist in framing the question presented for decision. Leasing Consultants, Incorporated [LCI] was engaged in the business of purchasing airplanes, as well as other machinery and equipment, and leasing them to customers. Because it required assistance in financing, LCI entered into a loan and security arrangement with First National City Bank [Citibank] on December 15,1969. According to the terms of the arrangement, Citibank would from time to time lend money to LCI; the loans were to be secured by the assignment of specific leases which had been given by LCI, and by a continuing security interest in the leased property and the rentals it produced. LCI was to maintain a checking account with Citibank, into which the rentals were to be paid. The bank was then to be permitted in its discretion to debit the account in the amounts due under loans which it would make. On December 30 and 31, 1969, Citibank filed UCC-1 financing statements in Queens County and with the New York Secretary of State, covering its interest in leases, rentals and equipment.

In connection with its business activities, LCI had leased a Beechcraft airplane to Raff a Van Atta Ltd. on December 8, 1969, for a five year term, at a monthly rental of $1,093.25. LCI also gave Raff a Van Atta a written option to purchase the plane for an additional $4,380, which was prepaid. On December 29, 1969, LCI assigned the Raffa Van Atta lease to Citibank, under the provisions of the December 15 loan agreement, as security for a loan of $50,-726.80. Citibank took possession of both the lease and the assignment.

On March 2, 1970, LCI also leased a Piper plane to James W. True for a five year term, at a monthly rental of $571.66. True was given a written option to purchase the plane for an additional $2,407, one-half of which was prepaid. On July 24, 1970, LCI assigned the True lease to Citibank as security for advances made by the bank against another, defaulted lease. The bank once again took possession of the assignment and the lease itself.

Shortly after the True lease was executed, on March 5, 1970, LCI leased another Piper aircraft to Vieques Air Link, Inc. Vieques agreed to pay monthly rentals of $662.10 for five years, at the end of which period it had the option— under a separate written agreement — of purchasing the plane for an additional $1,393.90. The option price was prepaid. LCI assigned the Vieques lease to Citibank on June 23, 1970. In this instance too, the assignment was made to secure advances made by the bank against another, defaulted lease. Citibank took possession of both the lease and the assignment.

The financial difficulty experienced by several of LCI’s lessees was apparently contagious. On August 18, 1970, LCI filed a petition for an arrangement under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 701 et seq. (1970), in the United States District Court for the Eastern District of New York. The company consented to adjudication on October 14, 1970, and an order to that effect was entered two days later. George Feldman was appointed trustee.

Citibank continued, without objection from Feldman or anyone else, to collect rentals under the lease assignments until April 18, 1973. On that date Feldman initiated this action, belatedly claiming that the bank’s failure to comply with the recording provisions of the Federal Aviation Act of 1958, 49. U.S.C. § 1403 (1970), rendered the various assignments unenforceable against a bankruptcy trustee asserting his powers under § 70 of the Act, 11 U.S.C. § 110 (1970). Feldman consequently sought to recover the post-petition payments made to the bank by Raffa Van Atta, True, and Vieques. Citibank moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), arguing that its interest in the assigned leases was properly perfected by filing and possession under N.Y.U.C.C. §§ 9-304 and 9-305 (McKinney’s Consol.Law c. 38, 1964), and that in any event the trustee’s action was time-barred by the statute of limitations created by the Bankruptcy Act, § lie, 11 U.S.C. § 29(e) (1970). Feldman cross-moved upon affidavits and exhibits for summary judgment.

The district court, citing its earlier opinion in Feldman v. Chase Manhattan Bank, 368 F.Supp. 1327 (S.D.N.Y.1974), held that the exclusive method for perfecting a security interest in an assigned aircraft lease was that provided by the Federal Aviation Act. Since Citibank had failed to record its interest with the FAA Registry, the court found, its claim to rentals was unenforceable against the trustee acting in his capacity as a hypothetical judicial lien creditor under § 70c of the Bankruptcy Act. Judge Bauman also found no merit to the statute of limitations claim. Relying upon the Supreme Court’s interpretation of § lie in Herget v. Central National Bank & Trust Co., 324 U.S. 4, 65 S.Ct. 505, 89 L.Ed. 656 (1945), he stated that the two year period provided by that section did not apply to “those claims which originate outside the Bankruptcy Act.” Since the trustee’s powers under § 70c were those which a judicial lien creditor would possess under state or non-bankruptcy federal law, the district court judge concluded that the trustee’s action was to be governed by the longer time period provided for such suitors. Finding no specified period of limitations in the Federal Aviation Act, Judge Bauman applied the six year statute which in New York would govern an action for monies had and received, to set aside a conveyance of personalty, or upon a constructive trust. N.Y.C.P.L.R. § 213(1) (McKinney 1972). Since the action was begun by the trustee on April 18, 1973, well within six years after the date of adjudication, he held it timely, and granted summary judgment. We reverse.

II

Section lie of the Bankruptcy Act provides that

A receiver or trustee may, within two years subsequent to the date of adjudication or within such further period of time as the Federal or State law may permit, institute proceedings in behalf of the estate upon any claim against which the period of limitation fixed by Federal or State law had not expired at the time of the filing of the petition in bankruptcy.

Exactly when federal or state law will permit a “further period of time” is a matter which the Act does not resolve. Reviewing the history of the Chandler Act of 1938, ch. 575, 52 Stat. 840, in Herget v. Central National Bank & Trust Co., supra, the Supreme Court concluded that the critical question was whether the trustee’s cause of action had been “inherited . . . from the bankrupt or the bankrupt’s creditors”, or had on the contrary “aris[en] under the bankruptcy statutes.” Id. at 6-7, 65 S.Ct. at 507. Herget, the trustee, had filed a complaint under § 60 of the Act, 11 U.S.C. § 96, attempting to recover payments made by the bankrupt within four months prior to the filing of the petition. Although the claim was brought more than two years after the date of adjudication in bankruptcy, the Illinois residual statute of limitations, 111. Rev.Stat.1943, ch. 83, § 16, permitted “all civil actions not otherwise provided for [to] be commenced within five years next after the cause of action accrued.” Despite this language in the Illinois statute, the Court held that the action was untimely brought. It emphasized that the powers which Herget sought to exercise were generated by the Bankruptcy Act itself, which defined the elements of a preferential transfer voidable by the trustee. That being the case, the Court concluded, there was little reason to look beyond the Act to another federal or state law for the proper period of limitations.

Although it does not appear that the question has ever been presented in the context of § 70c, the distinction drawn by the Herget Court has governed trustees’ actions under other provisions of the Act. Thus it has been held that a proceeding under § 67a(l), 11 U.S.C. § 107(a)(1), which permits avoidance under certain defined conditions of judicial liens obtained within four months of petition filing, must be brought within two years of adjudication. Samuels v. Kockos Bros., Ltd., 307 F.2d 147 (9th Cir. ' 1962). A similar rule has been applied to a trustee’s action to avoid a transfer made fraudulent by § 67d(3) of the Act, 11 U.S.C. § 107(d)(3), rather than by state law. Wells v. Place, 92 F.Supp. 477 (N.D.Ohio 1950). Actions under § 70e, however, have been allowed to proceed even after expiration of the two year period. See, e. g.,, Harrington v. Yellin, 158 F.Supp. 456, 458-459 (E.D.Pa. 1958); Schutte v. Wittner, 149 F.Supp. 451, 452 (E.D.N.Y.1957); Halpert v. Engine Air Service, Inc., 116 F.Supp. 13, 15 (E.D.N.Y.1953); MacLeod v. Kapp, 81 F.Supp. 512 (S.D.N.Y.1948). That provision allows the trustee to invalidate any transfer made or obligation incurred by the bankrupt which an existing creditor might have avoided under state or non-bankruptcy federal law, had bankruptcy not intervened. See also Hummel v. Equitable Assur. Soc., 151 F.2d 994, 997 (7th Cir. 1945) (action under § 70a(5) governed by state limitation period).

The principle underlying this judicial interpretation of § lie may be explained by the balance which the Bankruptcy Act attempts to strike between the rights of secured and unsecured creditors. Essentially, the Act is designed to provide an equitable distribution of the estate among the general creditors, after first affording full protection to secured creditors who meet appropriate conditions. One such condition is that the secured party’s interest have been so protected against the bankrupt and identifiable existing creditors that it would not have been subject to avoidance under a state or federal law had bankruptcy not intervened. Because upon the filing of the petition the bankrupt and these actual creditors are unable to assert such claims themselves, the trustee is given power to do so on their behalf. Under these circumstances, § lie allows the trustee as much time to institute avoidance actions as those from whom he “inherited” his claims would have had.

Other conditions, however, do not necessarily stem from the rights which unsecured creditors would have had but for bankruptcy. Rather, they attempt broadly to prevent inequities to the general creditors, by invalidating pre-bankruptcy transfers because of an imperfection in the transaction. To be sure, in many instances the imperfection asserted by the trustee will be determined by reference to state or non-bankruptcy federal law. For example, although § 60 may, under conditions defined by the Act, be used to avoid a transfer of property by the debtor within four months of bankruptcy, a transfer is deemed to have taken place

when it became so far perfected that no subsequent lien upon such property obtainable by legal or equitable proceedings on a simple contract could become superior to the rights of the transferee. . . . [I]f any transfer . is not so perfected . it shall be deemed to have been made immediately before the filing of the petition.

11 U.S.C. § 96(a)(2). There is, however, no requirement of an existing creditor holding such a lien, whose rights would flow to the trustee. In such cases, the trustee has been required to bring his action within the two year period provided by § lie.

Viewed from this perspective, it appears clear that Feldman’s action under § 70c falls within the latter category. The rights of a judicial lien creditor which he asserts are, of course, defined according to non-bankruptcy law. But as was noted above, the same is true of the rights by which he would test perfection of a transfer allegedly invalid under § 60. Moreover, § 70c explicitly provides the trustee with the rights and powers of

(3) a creditor who upon the date of bankruptcy obtained a lien by legal or equitable proceedings upon all property, . . upon which a creditor of the bankrupt upon a simple contract could have obtained such a lien, whether or not such a creditor exists.

11 U.S.C. § 110(c). It is thus apparent that the claim asserted. by the trustee under § 70c can be said to be “inherited” from the bankrupt’s creditors, see Her-get, supra, at 6, in only the most nebulous sense.

Even if the trustee acting under § 70c were to be understood as representing the claims of some actually existing creditors, however, it is significant that the section specifies the date of bankruptcy as the time when the trustee’s asserted rights accrue. Under § 70e the trustee is given — save for the two year grace period — exactly as much time to proceed as the actual creditor whose rights he asserts would have had. If the relevant period of limitations had run against the actual creditor before the petition was filed, the trustee would also be barred from proceeding. See 4A Collier, Bankruptcy ¶70.90 [2] at 1037 (14th ed. 1969). Cf. McNellis v. Raymond, 420 F.2d 51, 54-55 (2d Cir. 1969). Similarly, the trustee may proceed more than two years after adjudication if— and only as long as — an actual creditor could have. See cases cited at p. 1517 supra. Because he assumes the status of a judicial lien creditor under § 70c on the date of bankruptcy, however, there is little assurance that an application of the non-bankruptcy period of limitations to the trustee’s action would not short or extend the time within which an actual creditor could have commenced his action. Strict adherence under such conditions to the length of the period of limitations provided by non-bankruptcy law seems ill-designed to duplicate any rights which, because of the petition filing, cannot be exercised, and appears only accidentally related to the broader purpose of avoiding inequities to the general creditors. We find it far more consistent with the purposes of § lie, and with the principles enunciated in Herget and subsequent cases, to hold that the trustee’s action under § 70c is barred after two years from the date of adjudication. Since Feldman’s claim was filed more than two and one-half years after LCI’s adjudication, it should have been dismissed.

Reversed.

      . See also Feldman v. National Bank of North America, 511 F.2d 465 (2d Cir. 1975); Feldman v. Chase Manhattan Bank, N.A., 511 F.2d 468 (2d Cir. 1975), decided today.

      . That section provides that
      (a) The Administrator shall establish and maintain a system for the recording of each and all of the following:
      (1) Any conveyance which affects the title to, or any interest in, any civil aircraft of the United States
      (c) No conveyance or instrument the recording of which is provided for by subsection (a) of this section shall be valid in respect of such aircraft . . . against any person other than the person by whom the conveyance or other instrument is made or given, his heir or devisee, or any person having actual notice thereof, until such conveyance or other instrument is filed for recordation in the office of the Administrator Citibank urged that the recording provisions of the Act did not apply to the assignment of a lessor’s interest in a lease, since such a conveyance did not affect title to, or an interest in, any “aircraft.”
      Partly in response to this argument, the trustee contended that the “leases” assigned to the bank were in fact conditional sales contracts, since the payments by the lessees in each case were substantially' equivalent to the value of the plane, and since each contract provided a purchase option. See 49 U.S.C. § 1301(16)(b). The regulations under the Act make clear that an assignment of an interest under a contract of conditional sale is a recordable conveyance. 14 C.F.R. § 49.31.
      Because of the conclusion which we reach on the statute of limitations question, we find it unnecessary to decide either of these issues.

      . The language of the section makes clear that the trustee may have additional time if the statute of limitations running against an actual creditor expires during the two year period after adjudication.

      . The period of limitations would begin to run against the trustee on the date of petition filing. One armed with a judgment before that date, for example, might, had bankruptcy not intervened, have obtained a judgment lien on a date subsequent to the date on which the petition was filed. The period of limitations would begin to run against such a creditor from the time he acquired a lien.