author: WISDOM, Circuit Judge: SIMPSON, Circuit Judge BY THE COURT:

text:
    Robert Alan JONES, Individually, Etc., Plaintiff-Appellant, v. Henry WADE, Individually, Etc., and Frank Dyson, Individually, Etc., Defendants-Appellees.
    No. 72-1481.
    United States Court of Appeals, Fifth Circuit.
    May 30, 1973.
    Rehearing En Banc Granted Aug. 6, 1973.
    Simpson, Circuit Judge, dissented with opinion.

      Bill Barbisch, Austin, Tex., for plaintiff-appellant.
    N. Alex Bickley, Joseph G. Werner, Dallas, Tex., for Dyson.
    Edgar A. Mason, Asst. Dist. Atty., Dallas, Tex., for Wade.
    John L. Hill, Atty. Gen. of Texas, Jay Floyd, Gilbert J. Pena, Asst. Attys. Gen., Austin, Tex., for State of Texas.
    Before TUTTLE, WISDOM and SIMPSON, Circuit Judges.
   WISDOM, Circuit Judge:

The question before us is whether a three-judge court should have been convened to decide this case, involving alleged desecration of the American flag in violation of Texas law. This is a jurisdictional matter for the Court of Appeals to decide. We hold that a three-judge court, not a single judge, had jurisdiction to decide the case.

Robert Jones, defendant-appellant, was arrested for violation of the Texas flag desecration statute. Vernon’s Ann. Tex.Pen.Code Art. 152. He sued in the federal district court seeking a declaratory judgment that the statute was unconstitutional on its face and requesting an injunction to prevent the state from prosecuting him under the statute. Jones requested that the district court convene a three-judge court to hear the case. The district court dismissed his suit without an evidentiary hearing and without findings. This Court remanded for an evidentiary hearing. Jones v. Wade, 5 Cir. 1971, 436 F.2d 1382. After a hearing, the district court issued a written opinion again dismissing the suit. Jones v. Wade, 1972, N.D.Tex., 338 F.Supp. 441. Jones brought this appeal. We hold that Jones’s complaint presented a substantial federal question both as to the constitutionality of the statute and the propriety of federal intervention, and that the district court therefore erred in refusing to convene a three-judge court. We reverse and remand with directions to convene a three-judge court. This holding should not be construed as a decision on the merits.

On the afternoon of May 18, 1970, Jones went to the Dallas Police Department to file a complaint against a Dallas police dispatcher. He was wearing an army surplus green fatigue shirt with a small American flag sewn over the right breast pocket, and a pair of army surplus green fatigue pants with slits in the cuffs into which he had sewn small American flags. While Jones was in the process of filing his complaint, he was arrested for investigation of a possible violation of Article 152 and jailed. His attorney filed an application for ha-beas corpus in state court, which was scheduled for a hearing the morning of the following day, May 19. Later that afternoon Jones was released without charges. Unaware that his client had been released, Jones’s attorney brought this action in federal court on the morning of May 19, before the hearing on the application for state habeas.

Subsequent to the filing of this suit, on the afternoon of May 19, Jones went to the office of the Dallas County District Attorney wearing the same attire; There he was again arrested. The parties have stipulated that the persons who arrested Jones on May 19 were not acting in concert with the officers who arrested him on May 18. Jones has been indicted for this second violation, but the state has withheld prosecution pending the outcome of the present case.

In its opinion dismissing the case the district court state,d that Jones had been arrested not for expression within the protection of the First Amendment, but for unprotected conduct. Further, the district court held that federal injunc-tive or declaratory relief was inappropriate under Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and its companion cases absent a showing of bad faith. Finally, the district court held that the Texas flag desecration statute was a constitutional exercise of the state’s police power.

Our jurisdiction on this appeal is limited to considering whether the district court erred in refusing to convene a three-judge court on the ground that Jones failed to present a substantial federal question. Schackman v. Arnebergh, 1967, 387 U.S. 427, 87 S.Ct. 1622, 18 L.Ed.2d 865; Idlewild Bon Voyage Liquor Corp. v. Epstein, 1962, 370 U.S. 713, 716, 82 S.Ct. 1294, 8 L.Ed.2d 794; Stratton v. St. Louis Southwestern Ry., 1930, 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135. Our inquiry is three-fold: (1) Does Jones present a justiciable controversy and have standing to bring this suit? (2) Is there a substantial question as to the constitutionality of the statute? (3) Would a three-judge court be precluded from exercising its discretion to grant injunctive or declaratory relief? See Ex Parte Poresky, 1933, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152; Maryland Citizens for a Representative General Assembly v. Governor of Maryland, 4 Cir. 1970, 429 F.2d 606, 611; Reed Enterprises v. Corcoran, 1965, 122 U.S.App.D.C. 387, 354 F.2d 519, 521; Frontiero v. Laird, 1971, M. D.Ala., 327 F.Supp. 580 (three-judge court). We consider these questions in order.

I.

Jones has presented a justiciable controversy and has standing to maintain this action. Jones had been arrested once at the time he brought this suit. He was facing the possibility of future arrests under a statute which at least arguably made his actions illegal. We conclude that Jones has asserted “a sufficiently direct threat of personal detriment.” Doe v. Bolton, 1973, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, 210. His standing to challenge this statute on its face is not affected by whether his apparel is characterized as protected symbolic speech (see Tinker v. Des Moines Indep. School District, 1969, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731) or as mere “conduct.” Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 847 (1970).

II.

As originally enacted, Article 152 reads:

Any person who shall within this State, publicly or privately, mutilate, deface, defile, defy, tramp upon, or cast contempt upon, either by word or act any flag, standard, color, or ensign of the United States, or that of any of its officers, or on any imitation of either of them, shall be confined in the penitentiary not less than two nor more than twenty-five years.

The Texas state courts have substantially narrowed the scope of this statute to remove constitutional defects. In Deeds v. State, Tex.Cr.App.1971, 474 S.W.2d 718, the Texas Court of Criminal Appeals removed the statute’s prohibition of speech. More recently the Court of Criminal Appeals has excised the statutory prohibition of private acts. Delorme v. State, Tex.Cr.App.1973, 488 S.W.2d 808. See also Van Slyke v. State, Tex.Cr.App.1973, 489 S.W.2d 590; Case v. State, Tex.Cr.App.1973, 489 S.W.2d 593; Holland v. State, Tex.Cr.App.1973, 489 S.W.2d 594.

Even given these limiting constructions, we cannot agree with the district court that the statute is clearly constitutional. The state undoubtedly has a legitimate interest in preventing breaches of the peace which might follow certain acts of flag desecration. Street v. New York, 1969, 394 U.S. 576, 590-593, 89 S.Ct. 1354, 22 L.Ed.2d 572. But Article 152 is not focused narrowly on the furtherance of this interest. Instead, the statute broadly proscribes all acts which “cast contempt” upon the flag. Nowhere does the statute offer any guidance to potential defendants or arresting officers as to the meaning of the words “cast contempt.” Conceivably included within the sweep of this language is a wide variety of activity: “black power” salutes by militant athletes, a refusal to remove one’s hat during the playing of the Star Spangled Banner, the flying of tattered flags, the display of mud-spattered bumper stickers, or the wearing of small flags sewn on the shirts of police officers. See Crosson v. Silver, 1970, D.Ariz., 319 F. Supp. 1084 (three-judge court); Hodsdon v. Buckson, 1970, D.Del., 310 F. Supp. 528 (three-judgecourt).

The circumstances of Jones’s arrests demonstrate the difficulty of giving content to this statutory language. His attire at least arguably fell within the statute’s prohibition. Yet though it is not disputed that he wore this apparel in full view of law enforcement officers on several occasions, he was arrested only twice. And those arrests took place while Jones was trying to file a complaint against a Dallas police officer. There is no indication that his actions ever provoked violence or public disorder.

The statute contains other broad language. Article 152 punishes conduct directed not only against a “flag,” but also against any “standard, color, or ensign of the United States, or that of any of its officers, or . any imitation of either of them.” The statute does not define what constitutes an “imitation.” And it is questionable whether mutilation of any and all such symbols, or imitations thereof, would be so likely to provoke public disorder or outrage as to furnish legitimate grounds for state regulation. See Crosson v. Silver, supra, 319 F.Supp. at 1089 & n.6.

III.

In a case otherwise within the jurisdiction of a three-judge court, the question whether the Younger doctrine requires abstention is generally a matter for the exercise of equitable discretion, and thus ordinarily a determination to be made by a three-judge court rather than by a single district judge. Abele v. Markle, 2 Cir. 1971, 452 F.2d 1121, 1125; see Note, The Three-Judge District court: Scope and Procedure Under Section 2281, 77 Harv.L.Rev. 299, 309 (1973). A single district judge may dismiss only where it is plain that Younger leaves no room for a three-judge court to exercise equitable discretion. In the present case the district court found that Younger was controlling, and that Jones had failed to demonstrate a pattern of bad faith harassment as required by Younger.

Even assuming that the district court was correct in finding that Jones’s allegation of bad faith harassment was patently frivolous on its face, we cannot agree with the conclusion that the Younger doctrine so clearly prevents the issuance of declaratory or injunctive relief in these circumstances as to deprive a three-judge court of jurisdiction. In Younger the Court held that a federal court could not issue an injunction against a pending state criminal proceeding absent a showing of “great and immediate” injury. The Younger Court stated that the mere allegation that a statute was overbroad was insufficient to show “great and immediate” injury; there must in addition be a showing of a scheme of bad faith official enforcement or the like, rendering reliance on state procedures inadequate to vindicate constitutional rights. Samuels v. Mackell, 1971, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688, a companion case, applied like requirements to requests for declaratory relief.

The Court in Younger expressly did not purport to settle the question of what standard must be met to obtain federal injunctive or declaratory relief when, as here, state criminal proceedings under an allegedly overbroad statute have not yet been instituted. The considerations of federalism which Younger stressed are cast in a much different light when state proceedings are merely threatened and not actually pending. A federal injunction at the pre-prosecution stage causes only a minimal disruption of the state’s enforcement of its criminal laws, since state prosecutor-ial machinery has not yet been set in motion. Moreover, though the state has an interest in having its statutes reviewed initially in its own courts, in the pre-prosecution context there is no guarantee that the state courts will ever get that opportunity. State prosecuting authorities may, as here, simply decide to drop the ease rather than press for a conviction. Correspondingly, there is a danger of undue prolongation of the chilling effect of an overbroad statute. When a state prosecution is. already pending, federal courts may assume that federal rights will be promptly vindicated by the state judiciary. When a state prosecution has not yet been instituted, there is a danger of lengthy delay prior to indictment. Or the state may simply decide not to prosecute, whether or not in good faith, possibly leaving the defendant without a state remedy and deterred from engaging in protected activity by the threat of future arrest. A number of federal courts have accordingly found the Younger doctrine inapplicable to suits for federal relief against threatened state proceedings. The Supreme Court has again recently suggested the viability of the pending/threatened distinction. Compare Roe v. Wade, 1973, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, 162, with Doe v. Bolton, 1973, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, 210.

This Court has not expressly adopted a contrary position. The only full opinion of this Court discussing the showing necessary to obtain federal injunctive or declaratory relief against threatened state prosecutions is Becker v. Thompson, 5 Cir. 1972, 459 F.2d 919, rehearing en banc denied, 1972, 463 F.2d 1338, cert. granted sub nom. Steffel v. Thompson, 410 U.S. 593, 93 S.Ct. 1424, 35 L.Ed. 2d 686 (U.S.1973). In Becker, however the plaintiffs attacked a state statute not on its face but only as applied to them.

When as in Becker the state is clearly seeking to enforce its criminal statute in good faith and without discrimination, the. case for federal anticipatory relief is normally less strong when a statute is challenged as applied than when it is attacked as unconstitutional on its face. Assuming it is enforced in good faith, a facially valid statute, unlike an overbroad statute, poses no danger of a broad societal chilling effect on federal rights. See Hufstedler, Comity and the Constitution: The Changing Role of the Federal Judiciary, 46 N.Y.U.L.Rev. 841, 868 n. 85 (1972). Moreover, the state’s legitimate interest in good faith interpretation and enforcement of its facially valid laws is of much greater weight than any state interest in pressing prosecution under facially unconstitutional statutes. And a court engaging in overbreadth scrutiny is operating in a domain of more purely federal concern, focusing not on the actor’s conduct but on the possible impact of legislation against a broad background of federal rights.

Since Jones challenges Article 152 as unconstitutional on its face, his claim presents a more pressing question than that raised by the plaintiffs in Becker. We consider that Becker does not foreclose a three-judge court from granting appropriate relief.

The judgment of the district court is reversed and the case is remanded with directions to convene a three-judge court.

SIMPSON, Circuit Judge

(dissenting) :

I respectfully dissent from the decision of the majority reversing and remanding “with directions to convene a three-judge court.” I regard this case as clearly governed by the decision of this Court in Becker v. Thompson.

Despite the attempt to draw fine distinctions between constitutional assaults on a state criminal statute as applied (Becker v. Thompson) on the one hand, and facially (this case) on the other, the clear pronouncements of Becker v. Thompson should bind this panel:

“Stated another way, is the propriety of granting a declaratory judgment concerning threatened future criminal prosecution determined by the same test as the propriety of granting in-junctive relief, i. e., bad faith harassment? Younger v. Harris, supra. May we transpose to this case, where no state prosecution was pending, what was said about declaratory relief in Samuels v. Mackell, supra, where a state prosecution was pending:
[T]he same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment, and * * * where an injunction would be impermissible under these principles, declaratory relief should ordinarily be denied as well. Id. 401 U.S. at 73, 91 S.Ct. at 768.” Op. cit. 459 F. 2d at p. 921-922.

And:

“If the practical effects of injunc-tive and declaratory judgment remedies are identical because they result in the disruption of a state’s enforcement of its criminal statutes when a criminal prosecution is pending, and therefore bad faith harassment must be shown before either remedy may issue, and if, as we have seen, the same test of bad faith harassment is prerequisite to injunctive relief in a threatened criminal prosecution, it follows that a like showing must be made for declaratory relief in a threatened prosecution.” Op. cit. at p. 922.

And further:

“It is, of course, self-evident that where state prosecutions were pending Younger and Samuels established a limitation on the use of the Declaratory Judgment Act, 28 U.S.C.A. § 2201, to those cases where bad faith harassment was shown. The same limitation on the use of the Act necessarily applies in preprosecution cases.” Op. cit. p. 923.

And finally:

“If ‘the propriety of declaratory and injunction relief should be judged by essentially the same standards’, then in preprosecution cases there must be a showing of bad faith harassment for the granting of declaratory as well as injunctive relief. Cooley v. Endictor, 5 Cir. 1972, 458 F.2d 513.
We conclude that under the circumstances of this case, even though no state prosecution was pending against Steffel, since there was no showing of bad faith harassment, he was not entitled to a declaratory judgment.” Op. cit. p. 923.

The importance of Becker v. Thompson as a precedent in this Circuit is emphasized by the two opinions at pages 1338 to 1340 of 463 F.2d, first, that of Judges Gewin and Dyer specially concurring in the denial by the full Court of the petition for rehearing en banc, and second, that of Chief Judge Brown for himself and Judges Wisdom and Goldberg, dissenting from the denial of rehearing en banc.

It sharpens the basis of my dissent at this point to quote from the memorandum decision appealed from, which embodied findings of fact and conclusions of law:

“It is clear that plaintiff must assert traditional equitable grounds entitling him to the injunctive relief he requests. Younger v. Harris, 401 U.S. 37, 46, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Perez v. Ledesma, 401 U.S. 82, 122, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); see also Douglas v. City of Jeanette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), and Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The facts of this case present no such equitable grounds for relief.
******
“In addition, this Court finds that under the circumstances surrounding the institution of this suit, the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), would be thwarted if plaintiff were granted relief from the state prosecution through federal interference. The Younger case repeats the admonition of Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927 (1926), that a suit to enjoin state prosecutions ‘even with respect to state criminal proceedings not yet for mally instituted, could be proper only under very special circumstances.’ (emphasis added) Younger v. Harris, supra, 401 U.S. at 45, 91 S.Ct. at 751.
“The Younger doctrine of non-interference with pending state prosecutions is one of reasonableness and results from the necessity that our federal and state systems coexist and function to achieve the just and speedy disposition of criminal prosecutions. The rationale of the Younger doctrine would be defeated if races to the courthouse were allowed to circumvent the application of the rule.
“The facts of this case show that the plaintiff was arrested for suspicion of a violation of Article 152 and was released, and that the next day plaintiff was arrested again for the same conduct and later was indicted by a grand jury. The second arrest took place in the office of the district attorney, who is charged with enforcement of state penal statutes, where plaintiff had gone knowing that arrest was probable and with the intent of doing what he knew to be considered a violation of Article 152. The State officials had no alternative to the prosecution of plaintiff other than a complete abdication of their responsibilities to enforce the laws of the State of Texas. In this case, the good faith of the State prosecutors cannot be challenged.” (Emphasis supplied)

Absent a showing of bad faith harassment or irreparable injury there is simply no equitable ground for declaratory relief. Bad faith harassment was neither alleged nor proved below. Charges stemming from the first arrest were dismissed and it was only when Jones presented himself in the office of the state district attorney — a place where his attorney had warned him that arrest was likely — that the second arrest occurred.

Affirmance of the district court’s dismissal of the action seems to me to be mandated by the Younger v. Harris double trilogy as construed and applied by us in Becker v. Thompson.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, IN-GRAHAM and RONEY, Circuit Judges.

BY THE COURT:

A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc.

It is ordered that the cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.

      . The appellees also contend that the state has an interest in requiring proper respect for the dignity of the flag. To a large extent this is properly a federal rather than a state interest, and should be adequately served by the federal flag desecration statute. 18 U.S.C. § 700. To the extent that the state has a legitimate interest in such regulation, it is subject to strict limitations. See Street v. New York, 1969, 394 U.S. 576, 593, 89 S.Ct. 1354, 22 L.Ed.2d 572; West Virginia Board of Education v. Barnette, 1943, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628. Nor, for the reasons expressed in this opinion, does the statute appear to be confined to the protection of this interest.

      . The appellees argue that Article 152 is similar to the federal flag desecration statute, 18 U.S.C. § 700, which has been upheld as constitutional. Joyce v. United States, 147 U.S.App.D.C. 128, 1971, 454 F.2d 971, cert. denied, 1972, 405 U.S. 969, 92 S.Ct. 1188, 31 L.Ed.2d 242. The federal statute reads in part:
      (a) Whoever knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it shall be fined not more than $1,000 or imprisoned for not more than one year, or both.
      This statute is considerably narrower than Article 152. Unlike Article 152, it pro-Mbits only “knowingly” casting contempt on the flag. And the federal statute explicitly defines “casting contempt” as “mutilating, defacing, defiling, burning, or trampling upon.” Article 152 gives “casting contempt” an entirely undefined meaning different from those acts.

      . Compare West Virginia Board of Educ. v. Barnette, 1943, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628.

      . In this ease a three-judge court properly has jurisdiction over the claim for declaratory as well as injunctive relief. See Perez v. Ledesma, 1971, 401 U.S. 82, 90, 91 S.Ct. 674, 27 L.Ed.2d 701 (Stewart, J., concurring); Florida Lime & Avocado Growers, Inc. v. Jacobsen, 1960, 362 U.S. 73, 80-81, 80 S.Ct. 568, 4 L.Ed. 2d 568; Sterling v. Constantin, 1932, 287 U.S. 378, 393-394, 53 S.Ct. 190, 77 L.Ed. 375.

      . Younger v. Harris, 1971, 401 U.S. 37, 41, 91 S.Ct. 746, 27 L.Ed.2d 669. See Perez v. Ledesma, 1971, 401 U.S. 82, 120-122, 91 S.Ct. 674, 27 L.Ed.2d 701 (Brennan, J., concurring in part and dissenting in part); Younger v. Harris, supra, 401 U.S. at 55, 91 S.Ct. 746 (Stewart, J., concurring); LeFlore v. Robinson, 5 Cir. 1971, 446 F.2d 715, 719 (Goldberg, J., specially concurring).
      In Dombrowski v. Pfister, 1965, 380 U. S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22, the Court held that injunctive relief could be issued by a federal court against a threatened state criminal prosecution under an overbroad statute on a showing of bad faith harassment. But the Court did not state that a showing of bad faith was an essential prerequisite to federal relief. See The Supreme Court, 1970 Term, 85 Harv.L.Rev. 3, 302 (1971).
      The federal anti-injunction statute, 28 U.S.C. § 2283, does not bar this action, even if it could be said that there was a state “proceeding” against Jones after he was released without charge. Mitchum v. Foster, 1972, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705.

      . Wulp v. Corcoran, 1 Cir. 1972, 454 F.2d 826, 831; The Supreme Court, 1970 Term, sxipra, 85 Harv.L.Rev. at 308; Note, Implications of the Younger Cases for the Availability of Federal Equitable Relief When No State Prosecution Is Pending, 72 Colum.L.Rev. 874, 895 (1972).
      That the state brought charges against Jones based on his second arrest, after the filing of his federal action, is of no moment. The only relevant inquiry is whether state prosecution was pending at the time Jones brought suit in federal court. Younger v. Harris, supra, 401 U. S. at 41, 91 S.Ct. 746; id. at 55, 91 S.Ct. 746 (Stewart, J., concurring); Lewis v. Kugler, 3 Cir. 1971, 446 F.2d 1343, 1347. No charges were pending against Jones at the time he brought this action.

      . The Supreme Court, 1970 Term, supra, 85 Harv.L.Rev. at 307.

      . See, e. g., Wulp v. Corcoran, 1 Cir. 1972, 454 F.2d 826; Lewis v. Kugler, 3 Cir. 1971, 446 F.2d 1343, 1347; Hull v. Petrillo, 2 Cir. 1971, 439 F.2d 1184, 1186 n. 1; Thoms v. Smith, 1971, D.Conn., 334 F.Supp. 1203 (three-judge court); Anderson v. Vaughn, 1971, D.Conn., 327 F.Supp. 101 (three-judge court) ; cases cited in Note, Implications of the Younger Cases for the Availability of Federal Equitable Relief When No State Prosecution Is Pending, 72 Colum.L.Rev. 874, 895 n. 135 (1972).

      . Several per curiam opinions have apparently regarded the question as having been conclusively settled by Younger or Becker, without more. Thevis v. Seibels, 5 Cir. 1972, 464 F.2d 613; Cooley v. Endictor, 5 Cir. 1972, 458 F.2d 513; Thevis v. Moore, 5 Cir. 1971, 440 F.2d 1350. We cannot agree that Younger is controlling, especially in view of the Supreme Court’s careful avoidance of this question in Younger. See note 5 supra. Nor, for the reasons stated in this opinion, can we regard Becker as dispositive. Hobbs v. Thompson, 5 Cir. 1971, 448 F.2d 456, though involving an injunction sought against a state civil proceeding, suggested that the determination of whether federal anticipatory relief should be granted should turn on whether federal intervention would affect an ongoing state proceeding, whether civil or criminal. See Palaio v. McAuliffe, 5 Cir. 1972, 466 F.2d 1230, 1233.

      . Becker v. Thompson, 459 F.2d at 923-924 (Tuttle, J., concurring in result).

      . There is, however, a strong case for federal injunctive or declaratory relief against state criminal prosecution under a facially valid statute if the state is acting in bad faith or in a discriminatory manner. See Shaw v. Garrison, 5 Cir. 1972, 467 F.2d 113.

      . Id. 459 F.2d at 926 (Tuttle, J., concurring in result).

      . [G]eneral expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision.
      Cohens v. Virginia, 1821, 19 U.S. (6 Wheat.) 264, 399, 5 L.Ed. 257, 290 (Marshall, C. J.).
      See Becker v. Thompson, 463 F.2d at 1340 (Brown, C. J., dissenting from denial of rehearing en banc).

      . Becker v. Thompson, 5 Cir. 1972, 459 F.2d 919, pet. for rehearing and rehearing en banc denied, 5 Cir. 1972, 463 F.2d 1338, certiorari granted sub nomine, Steffel v. Thompson, 1973, 410 U.S. 593, 93 S.Ct. 1424, 35 L.Ed.2d 686. See further, Cooley v. Endictor, 5 Cir. 1972, 458 F.2d 513; Thevis v. Moore, 5 Cir. 1971, 440 F.2d 1350.

      . See the majority opinion pages 11-13, printed copy.

      . In addition to Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and Samuels v. Mackell, 1971, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688, discussed at length by the majority opinion in Becker v. Thompson, see specifically further Boyle v. Landry, 1971, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696, reversing a three-judge district court’s injunction against both pending and anticipated prosecutions in the Illinois state courts under Illinois statutes alleged to be unconstitutional. I quote from the portion of the court’s opinion dealing specifically with the Illinois intimidation statute held unconstitutional, under which no charges had been brought:
      “There is nothing contained in the allegations of the complaint from which one could infer that any one or more of the citizens who brought this suit is in any jeopardy of suffering irreparable injury if the State is left free to prosecute under the intimidation statute in the normal manner. As our holdings today in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and Samuels v. Mackell, 401 U.S. 66, 91 S. Ct. 764, 27 L.Ed.2d 688, show, the normal course of state criminal prosecutions cannot be disrupted or blocked on the basis of charges which in the last analysis amount to nothing more than speculation about the future. The policy of a century and a half against interference by the federal courts with state law enforcement is not to be set aside on such flimsy allegations as those relied upon here.
      “For the reasons set out above and for those set out at greater length today in Younger and Samuels, we reverse.”


source: Caselaw Access Project

author: Mr. Justice CLARK:

license: Public Domain

text:
    MISSOURI EDISON COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Panhandle Eastern Pipe Line Co., Intervenor.
    No. 72-1406.
    United States Court of Appeals, Distinct of Columbia Circuit.
    Argued Dec. 8, 1972.
    Decided March 20, 1973.
    Morton L. Simons, Washington, D. C., for petitioner.
    George W. McHenry, Jr., First Asst. Sol., F. P. C., with whom Leo E. For-quer, Acting Gen. Counsel, F. P. C., was on the brief for respondent. Gordon Gooch, Gen. Counsel, F. P. C., also entered an appearance for respondent.
    James J. Flood, Jr., Washington, D. C., with whom Raymond N. Shibley, Washington, D. C., was on the brief for intervenor.
    Before Mr. Justice CLARK, Associate Justice of the Supreme Court of the United States, and MacKINNON and ROBB, Circuit Judges.

       Sitting by designation pursuant to 28 U.S.C. § 294(a).

   Mr. Justice CLARK:

This is another of a series of eases beginning a score of years ago and continuing through 1969, in which Panhandle Eastern Pipe Line Company, a major interstate pipeline system, has opposed the effectuation of the long-established policy of the Federal Power Commission “to favor service to industrial customers by local distributors.” Panhandle Eastern Pipe Line Co., Op. 274, 13 FPC 301, aff’d, Panhandle Eastern Pipe Line Co. v. FPC, 232 F.2d 467 (3 Cir. 1956), cert. den., 352 U.S. 891, 77 S.Ct. 129, 1 L.Ed. 2d 86; Panhandle Eastern Pipe Line Co., Op. 510, 36 FPC 1107, reh. den., Op. 510-A, 37 FPC 314, aff’d, Panhandle Pipe Line Co. v. FPC, 386 F.2d 607 (3 Cir. 1967); Panhandle Eastern Pipe Line Co., Op. 539, 39 FPC 581 (1968), reh. den., 39 FPC 1100; Panhandle Eastern Pipe Line Co., Op. 566, 42 FPC 621 (1969).

Here, Missouri Edison Company (Mo Ed), which operates under the jurisdiction of the Missouri Public Service Commission, serves some 22 communities in northeastern Missouri and has its headquarters in Louisiana, Missouri, a town of 4500 people. It requested an order of the Federal Power Commission directing Panhandle to sell and deliver to it 15,000 mcf of gas daily for resale to Hercules, Inc. at its chemical works also located at the City of Louisiana and within Mo Ed’s service community. Hercules has been furnished gas direct from Panhandle’s pipeline since 1942 under contracts, the last of which expired in 1969, after which Panhandle continued service by agreement on a month to month basis. The service is by direct attachment to Panhandle’s pipeline and is, therefore, not regulated by either federal or state authority. In 1969, the year the last Panhandle contract expired, Hercules’ chemical works at Louisiana suffered a million dollar operating loss. In an effort to continue the plant in operation, it requested Panhandle to reduce its gas rate, but to no avail. Hercules then turned to Mo Ed and subsequently reached an agreement to acquire gas from that company at a three percent resale charge above cost. Mo Ed was also a customer of Panhandle, buying its requirements exclusively from the latter under a contract requiring a maximum of 12,500 Mcf of gas to be delivered daily on demand of Mo Ed. Panhandle delivered slightly over 1 million mcf under this contract in 1969, and the resale of this gas contributed some 12 percent to Mo Ed’s total revenues. Originally Mo Ed’s application with the Commission was made under Panhandle’s G-2 demand rate schedule which provided for delivery on a firm basis. However, on suggestion of the Commission’s staff, the application was amended to provide for delivery on an interruptible basis under Panhandle’s 1-2 interruptible rate schedule, the identical rate schedule under which Hercules was then receiving gas from Panhandle. Both the Commission’s staff and the Examiner approved the conversion of the sale from a direct pipeline one to an indirect distributor delivery, in keeping with prior Commission decisions. However, the Commission has overturned these recommendations and denied the application. We reverse.

1. The Findings of the Commission

In its original opinion the Commission first stated a conviction that it “should not adhere with uncompromising rigidity to a policy of preferred shifting of interruptible loads from a pipeline to a distributor.” Appendix Vol. I, p. 124. As to the effect of the conversion on Panhandle’s ability to serve its other customers, the Commission concurred in the Examiner’s finding that there was no impairment. But other economic factors compelled a different result, it said, from that of the Examiner: It was the business of the pipeline to meet the requirements of its customers; however, the customers’ demands were highly uneven, reflecting seasonal requirements; to avoid waste and added cost associated with partially filled transmission lines the pipeline sells interruptible service or installs storage capacity for gas. The contribution of an interruptible load to the pipeline’s balancing program, however, is smaller when that load is “attached” by the customer rather than directly by the pipeline. Thus, “flexibility and related improved efficiency of the pipeline is diminished whenever a segment of interruptible service is transferred from direct pipelines attachment to indirect attachment through a distributor.” Id. at 125-126. In Mo Ed’s case the transfer of the Hercules account from Panhandle to Mo Ed would diminish the benefits which the interruptible character of the Hercules sale contributes to the load balancing operations of the Panhandle system since one-third of the annual volumes that Mo Ed proposes to deliver to Hercules would come under Panhandle’s firm service rate schedule (G-2). The transfer would only create additional pressure on the Panhandle system. The Commission also noted that under conditions of gas supply shortage, gas storage should be substituted for interruptible deliveries. It would be unwise to encourage the direct attachment interruptible gas customers to migrate to distributors since this would frustrate pipeline curtailment plans, increase industrial usage, and undermine the flexibility of the pipeline during period of gas supply shortage.

2. The Rehearing Application and Its Denial:

On rehearing Mo Ed pointed out that it sought a supply of gas under Panhandle’s 1-2 rate schedule to serve Hercules on an interruptible basis; its proposal was intended merely to supplant the current non-jurisdictional, direct attachment service of Panhandle. No change in the type of service was contemplated, and the only question presented was whether Panhandle should serve Hercules by direct attachment to its pipeline or indirectly through Mo Ed. Mo Ed further noted that Panhandle’s 1-2 rate schedule specifically provided that “all gas sold on an interruptible basis to both direct and resale customers may be interrupted at any time and in any amount in the sole discretion of” Panhandle. However, in order to “lay this false argument to rest,” Mo Ed explicitly agreed as a condition of receiving the proposed 1-2 service that Panhandle’s 1-2 sale to Mo Ed should be subject to the identical interruptions and curtailment by Panhandle as had been the direct sale by the latter to Hercules.

The Commission, in denying the application for rehearing, relied on its original opinion holding that Mo Ed had not discharged any element of its burden of proof. It had not shown that the transfer was necessary or desirable in the public interest and would not place an undue burden on Panhandle or cause an impairment of Panhandle’s ability to render adequate service to its customers. It further found that the transfer would “firm up” a substantial portion of an in-terruptible industrial demand, as indicated in its original decision, by permitting Mo Ed to serve Hercules with “valley gas,” even when 1-2 gas had been curtailed. It refused to accept Mo Ed’s proffered condition on the ground that Panhandle would still have less control over deliveries to Hercules than it had under its present interruptible sale arrangement.

3. The “Suggestion for Clarification” and the Order Granting It.

In its request for clarification Mo Ed stated that the Commission apparently had misapprehended its proposed condition; “it was intended by the proposed condition that deliveries to Hercules would be curtailed by Panhandle exactly in the same manner and in the same amount whether those deliveries were made directly by Panhandle or indirectly through Mo Ed, that Mo Ed would agree not to use gas to which it might be entitled under Panhandle’s G-2 schedule to augment deliveries to Hercules when direct industrial and 1-2 deliveries were in curtailment.” Appendix, Vol. I, pp. 141-142. Contrary to the Commission’s decision on rehearing, the whole purpose of the conditions was to prevent Mo Ed from purchasing its full contract demand of G-2 gas and thereby augmenting deliveries to Hercules from its “valley gas” at times when Panhandle would be curtailing its direct sale customers.

The Commission then entered its third decision entitled “Order Granting Suggestion for Clarification and ReAffirming Opinion No. 614-A”. It found that “no practical method exists for controlling deliveries under both the G-2 and 1-2 rate schedules so as to accomplish the objectives sought to be achieved by Mo Ed.” It reasoned that before gas can be taken under the 1-2 rate schedule, Mo Ed must first take all the gas it is entitled to purchase under its G-2 rate schedule. The Commission could envision no practical operating method whereby Mo Ed would know the number of cubic feet of gas its other customers would need each day under the G-2 rate schedule before gas would have to be taken under the 1-2 rate schedule for delivery to Hercules. Therefore, the only way the 1-2 and G-2 purchases could be handled together would be for Panhandle to bill all gas taken in excess of Mo Ed’s full G-2 entitlement at the 1-2 rates. The Commission concluded that the offer might be accepted if Mo Ed agreed never to purchase any “valley gas” under the G-2 rate schedule for resale to Hercules. However, the Commission observed that such an agreement would provide no benefits whatsoever to Mo Ed’s other customers, thus violating the principle that industrial sales should be switched to a distributor only where such sales serve to increase load factors and reduce costs. In evaluating Mo Ed’s offer the Commission also took into consideration the testimony of a witness that Hercules intended to convert one of its coal-fired boilers to gas, in view of Mo Ed’s reduced rate as compared with Panhandle’s current one, which would increase the consumption of boiler gas.

4. The Conclusions of the Court

We believe that the refusal of the Commission to accept Mo Ed’s offer to condition its application as stated above was error. No question was raised as to its timeliness nor was there any suggestion of prejudice flowing from the fact that it was not proposed until after the Commission’s initial decision. Mo Ed had eoncededly proved that Panhandle’s ability to service its other customers would not be impaired. Its offer to condition its sale so that it would be identical to Panhandle’s current sale to Hercules cut the ground from under the other objections raised by the Commission and also proved that its proposed contract was in the public interest. At the outset we note that the present sale to Hercules by Panhandle is not under either federal or state regulation. The transfer of this sale to Mo Ed would place it under federal regulation. We believe that this is of prime importance and wholly in the public interest. In addition, we see no reason for a change in the Commission’s present policy regarding the conversion of direct pipeline sales to indirect sales by distributors. As the Commission points out, this is not a mandatory policy. However, we feel that unless it will prevent the pipeline company from serving its other customers satisfactorily or it adversely affects the public interest, it should be followed. Neither of these situations justifying a departure from prior Commission policy is present here.

The Commission has found that the conversion would not adversely affect the stability of Panhandle. It is one of the larger pipelines with main transmission lines running from the Texas-Oklahoma Panhandle to Michigan and Ohio. In 1969 it sold some 720 million mcf and had revenues of $247,000,000. Only 55 million mcf [about 8 percent] of its sales were direct to industrial users. Most of its sales were under its G (General Service) rate schedule, with only 140,000 mcf under its I (Interruptible Service) rate schedule. The sale to Hercules is only .54 percent of Panhandle’s total sales and barely 7 percent of its direct industrial sales. The record shows that in 1969 only a minimal three-tenths of one percent of the Hercules 1-2 rate schedule sales of Panhandle was interrupted. Hence the distinction between the G-2 and the 1-2 rate schedules in actual practice here is without much significance. As the shortage of gas increases, it may have more impact; Panhandle would be obliged to further curtail its deliveries in that event, but under our disposition its power of curtailment would not be affected by the conversion of the Hercules contract from a direct pipeline sale to an indirect distributor one.

On the other hand, by converting the sale to a direct distributor Hercules could save annually as much as $150,-000, which might well be the difference between life and death to its Louisiana chemical works. If the operation were closed down, some 500 people— one-ninth of the city’s population — would lose their jobs. This would not be in the public interest. In addition, the closing might cause some of the population to move away and bring about a reduction in the sale of gas and electricity with consequent loss of profits to Mo Ed. On the other hand, granting the application would be'in the public interest and would slightly increase Mo Ed’s profits, though not to the point presently realized by Panhandle. The percentage of reduction in Panhandle’s profits would be very minimal.

We, therefore, find the reasons for the Commission’s refusal to accept Mo Ed’s offer and approve its application to be clearly erroneous. Under Mo Ed’s contract the same amount of gas will be furnished Hercules as is presently permitted under the Panhandle arrangement; it will be delivered on identical conditions and subject to the same curtailment requirements and exercise of control by Panhandle. Nor will this arrangement cause any increase in Hercules’ use of gas. The amount is the same as that presently supplied under Panhandle’s present contract with Hercules. The Commission indicates that a witness testified that Hercules intended to switch some coal boilers to gas. But the Commission can easily prevent this by requiring Mo Ed’s contract to prohibit any such increases in gas consumption. In the final analysis the Commission’s only ground for refusing Mo Ed’s offer is that there is no practical way of effecting Mo Ed’s proposal. It is a sad commentary on our regulatory agencies that not only, a business but an entjre community could conceivably be destroyed for lack of agency ingenuity. We cannot believe that an appropriate order is not within the expertise of the Commission. Indeed, its recognition in the order granting Mo Ed’s “clarification suggestion” of Mo Ed’s proposal to “agree not to use gas to which it might be entitled under Panhandle’s G-2 schedule to augment deliveries to Hercules when direct industrial and 1-2 deliveries were in curtailment” (Appendix, Vol. I, P. 145) indicates its awareness of a possible solution. The Commission could give Panhandle the sole right to curtail sales to Hercules by Mo Ed on the same basis that it curtails other 1-2 sales simply by notice to Mo Ed. There are, we are sure, other solutions.

5. Considerations on Remand.

As we view the problem here, Mo Ed does not presently have sufficient gas under its 12,500 annual mcf contract (G-2 rate schedule) to fill its proposed contract with Hercules; if it did have sufficient gas under that contract, the application here would be routinely approved. However, Mo Ed needs additional gas to fill the contract, and it can be obtained only on an interruptible basis (1-2 rate schedule). This is what gave the Commission pause. But Mo Ed’s final offer met all objections to approval, other than as to form and like technicalities.

We have decided that the Commission clearly abused its discretion in not accepting Mo Ed’s offer and approving its application as amended. On remand the Commission is directed to enter an order approving the application on the conditions outlined. The Commission may approve the application by permitting Mo Ed to use its available “valley gas” in filling the Hercules contract, supplemented by sufficient 1-2 rate schedule gas to meet Hercules’ needs, provided Mo Ed agrees to a condition in its contract that if and when Panhandle gives notification that 1-2 rate schedule gas is being curtailed, Mo Ed will accordingly curtail deliveries of both G-2 and 1-2 rate schedule gas to Hercules so that at all times such deliveries will be limited to the same extent as under Panhandle’s present contract with Hercules. We are not interested in how the Commission tags the gas; there is nothing sacrosanct about “valley gas” — it is but gas under any name. The crucial point is that Mo Ed’s deliveries to Hercules will be on the same basis and on like conditions as are Panhandle’s deliveries under its present agreement with Hercules.

The decision of the Commission is reversed and its orders are vacated. This matter is remanded for the entry of an order approving the application in accordance with this opinion and upon the conditions herein enumerated.

It is so ordered.

ON PETITION FOR REHEARING OR CLARIFICATION

In their petitions for rehearing Respondent and Intervenor both claim error in that we stated that the direct service furnished Hercules by Panhandle was not subject to either federal or state regulation, substituted our judgment for that of the Commission on a policy matter, and remanded the case with instructions rather than allowing the Commission freedom to conduct further proceedings.

Implicit in our opinion is that the Commission, of course, has jurisdiction over the transportation of gas in interstate commerce, including the power to order curtailment of direct pipeline sales. The whole purpose of our order directing the Commission to grant Mo Ed’s application for additional gas upon the specified conditions was to ensure that the Commission would have the same curtailment powers over indirect sales to Hercules as it presently has over such direct sales. On the other hand, the rate charged to Hercules by Panhandle is not under either federal or state regulation. The transfer of this sale to Mo Ed would place the rate charged by Panhandle for sales to Mo Ed under federal regulation. Therefore, our order will increase the Commission’s regulatory powers over the sales to Hercules because it will subject to FPC rate regulation the additional Mo Ed sales necessary to meet Hercules’ requirements.

The Commission has had a long-established policy of favoring industrial service by distributors rather than pipelines. In this single case it makes an exception. While, of course, it is within the Commission’s competence to change its policy, it must, we submit, where an application is singled out, specify cogent reasons for the exception that will stand up under close scrutiny. We believe the Commission has failed to justify its departure from established policy. Its belated attempt at justification was that the approval of Mo Ed’s application would insulate the sale from the Commission’s curtailment jurisdiction and would create a preference over Panhandle’s other direct sale customers. We did not agree. Indeed the refusal of Mo Ed’s application would constitute discrimination against the distributor, its customers and Hercules. Under the order that we have directed the Commission to enter, the source of the gas will be the same, the physical flow will be identical, the volumes will be equal, the use will be unchanged, and the power of the Commission to curtail the sale will be undiminished. The Commission has advanced no reason why its granting Mo Ed’s application for additional gas cannot be conditioned upon acceptance of these terms. If Mo Ed refuses to accept such conditions, then the Commission need not approve the application. Under our disposition the sale to Hercules will differ from the present direct sale by Panhandle in only two respects: In addition to its curtailment power the Commission will also have jurisdiction over the rate charged for the additional gas now sold initially to Mo Ed, and the financial benefits of the Hercules sale will be altered. Panhandle will not be allowed to skim off the cream of this small market by serving Hercules direct. On the other hand, the local distributor Mo Ed, as a result of the new industrial demand, will increase its load factor, reduce its unit cost of gas and thus benefit all its customers. Surely this benefit to Mo Ed’s customers is in the public interest. And the Commission has full power to fashion a gas curtailment order that will protect the public from any gas shortage. For these reasons our order requiring approval of Mo Ed’s application must stand.

      . G-2 rate schedule gas is a definite, firm amount of gas that the pipeline agrees to deliver on demand during a certain period on an uninterruptible basis.

      . I-2 rate schedule gas is surplus gas not under firm contract that the pipeline prorates among its customers after delivery of all of its commitments under firm (G-2) gas contracts. It is interruptible by the pipeline whenever it needs the gas to meet the other contracts. Hence the 1-2 is not a definite, firm delivery but is interruptible, depending upon the amount delivered under the firm contracts.

      . Valley gas is the amount of gas that a pipeline customer has the right to demand but does not do so because his sales are down on that particular day and he cannot sell it. The 12,500 Mcf that Mo Ed may demand daily under its present contract with Panhandle is designed to meet its peak load. When Mo Ed’s customers’ demands are less than peak, the difference is valley gas, and Mo Ed does not demand delivery of it unless it can find an off-peak user that wishes it. .

      . The Commission in its clarification decision at p. 147, Appendix Vol. I, states that the incremental net income to Mo Ed if 1-2 gas alone were used to fill Hercules’ requirements would be $12,844. Mo Ed’s witness testified it would be $48,-686.

      . In this connection we note that the Commission subsequent to the order here has been approving applications for the additional use of gas for industrial purposes, including substituted fuel capacity and other inferior uses, many times greater than the Hercules contract. Moreover these were new contracts involving additional gas which the Commission granted on a finding that it was “unable to find that certification [of the additional volumes of industrial gas] ... is not in the public interest.” Michigan Wisconsin Pipeline Company, July 20, 1972, Docket No. CP 72-175, slip decision at p. 7, despite the fact that substituted fuel capability was present where some of the gas was to be devoted to inferior uses.


author: PER CURIAM:

text:
    METROPOLITAN D. C. REFUSE HAULERS ASSOCIATION, an unincorporated trade association, et al., Appellants, v. Walter E. WASHINGTON, Commissioner of the District of Columbia, et al.
    No. 72-1438.
    United States Court of Appeals, District of Columbia Circuit.
    April 18, 1973.
    Rehearing Denied May 21, 1973.

      Alexander Boskoff, Washington, D. C., was on the brief for appellants.
    C. Francis Murphy, Corp. Counsel, Richard W. Barton and David P. Sutton, Asst. Corp. Counsels, were on the brief for appellees.
    Before BAZELON, Chief Judge, BAS-TIAN, Senior Circuit Judge, and MaeKINNON, Circuit Judge.
   PER CURIAM:

This case involves the validity of a provision of the District of Columbia Solid Waste Regulations contained in section 8-3:606(e) which reads as follows:

Each licensee shall pay no less than $5.00 per ton for solid waste disposal provided at any District owned operated or contracted facility.

Each refuse hauler is required to obtain a “collector’s license” and a “collection vehicle license for each vehicle so used” (section 8-3:606(a)).

Licensed collectors are not required to use a “District owned operated or contracted facility” but if they do the regulation imposes a fee of “no less than $5.00 per ton [of] solid waste” so disposed. Appellees assert that authority for this $5 fee derives from various congressional enactments: First, from D. C.Code § 1-226 (1967) which authorizes the “usual police regulations,” i. e.:

The Commissioners of the District of Columbia are hereby authorized and empowered to make and enforce all such reasonable and usual police regulations in addition to those already made under section 1-224, 1-225, as they may deem necessary for the protection of lives, limbs, health, comfort and quiet of all persons and the protection of all property within the District of Columbia.

Second, from D.C.Code § 47-2344 (1967) which, more to the point we are here concerned with, provides:

The commissioners of the District of Columbia are authorized and empowered, when in their discretion such is deemed advisable, to require a license of other businesses or callings not listed in this chapter and which, in their judgment, require inspection, supervision, or regulation by any municipal agency or agencies and to fix the license fee therefor in such amount as, in their judgment, will be commensurate with the cost to the District of Columbia of such inspection, supervision, or regulation, and are further authorized and empowered in their discretion ... to raise or lower the amount of the license fee provided in this chapter, as the cost of inspection, supervision, or regulation is raised or lowered (emphasis added).

Third, from D.C.Code §§ 6-811-812 (Supp. IV 1971), the regulation relating to air pollution control, which authorizes

the Council [to] prescribe regulations for the control of the following air pollution problems in the District of Columbia:
* * * * * *
(B) solid waste disposal and salvage operations
* * «• * * *

Fourth, from D.C.Code § 6-501 (1967):

The Commissioners of the District of Columbia are hereby authorized to make necessary regulations for the collection and disposition of garbage in the District of Columbia, and to annex to said regulations such penalties as will secure the enforcement thereof.

Also, D.C.Code § 6-504 (1967) reads as follow:

The commissioners are authorized, if in their opinion such action shall be to the best interests of the District of Columbia, after July 11, 1919, to conduct any or all of the operations involved in the collection and disposal of city refuse of every kind as municipal functions, and for that purpose to purchase or lease the necessary plants, buildings, and land, to purchase or hire horses and horse-drawn vehicles, passenger-carrying and other motor-propelled vehicles, equipment, and machinery, and to employ expert and other personal services, and labor, and to pay traveling, maintenance, incidental, and contingent expenses (emphasis added).

It is plain from the foregoing statutes that the District is authorized “to make regulations for the disposition of garbage” (D.C.Code § 6-501); and “to conduct any operation [s] involved in the disposal of city refuse ... as [a] municipal function [s]” (D.C.Code § 6-504). Also, it is clear that the business of disposing of solid wastes is not a “business [es] or calling [s] listed in this chapter [D.C.Code §§ 47-2301-2350] [and thus the District of Columbia may] fix the license fee [for disposal] in such amount as will be commensurate with the cost to the District of Columbia of such inspection, supervision [and] regulation” (D. C.Code § 47-2344). Those licenses issued for the “collection [and] transportation of solid wastes in or through the District” (section 8-3:606(a)) do not cover the disposal of solid wastes in the District. The fee of $5 per ton is the type of license fee that is authorized by the above act (D.C.Code § 47-2344) and there is no proof in this case that the income it produces makes it more than a license fee, i. e., that the revenue it produces is not commensurate with the cost of the supervision and regulation. If the total income to the District from such fees was not commensurate with the cost of so regulating the disposal of such wastes the fee would be illegal to the extent that the revenue therefrom exceeded the applicable costs.

With the above comments we affirm the validity of the fee on the basis of Judge Smith’s Memorandum Opinion and Order and also adopt the finding of such opinion on the constitutional issues.

Judgment accordingly.

Other than the District, no person shall by himself or otherwise use any vehicle for the collection or transportation of solid wastes in or through the District either for himself or for others without first having obtained a collector’s license so to do and a collection vehicle license for each vehicle so used,

      . Section 8-3:606(a) provides:


author:
FAHY, Senior Circuit Judge:
      ROBB, Circuit Judge

text:
    UNITED STATES of America v. Haywood SANDERS, Appellant.
    No. 72-1534.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 14, 1973.
    Decided May 17, 1973.

      Robb, Circuit Judge, dissented and filed opinion.
    George F. Bason, Jr., Washington, D. C. (appointed by this Court), for appellant.
    William A. White, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, Vincent R. Alto and Warren L. Miller, Asst. U. S. Attys., were on the brief for appellee.
    Before FAHY, Senior Circuit Judge, and LEVENTHAL and ROBB, Circuit Judges.
   FAHY, Senior Circuit Judge:

A man entered a Hot Shoppe in this City around midnight on June 5, 1970, and inquired of the cashier, Miss Samu-els, aged eighteen at the time, when the restaurant closed. She answered that they were closing. The man then went to the food counter and gave Mr. Johnson, the manager, a note which read: “This is a holdup; I have a gun under this coat [draped over his right arm]; I don’t want to hurt anybody.” Under this threat the two men went into the manager’s office. There, money was taken from the safe and that in the cash register was also required to be given him. In all approximately $500.00 was put in a paper bag the robber had. He then fled with the bag.

Appellant was convicted of the robbery, 22 D.C.Code § 2901 (Supp. V, 1972), and is serving a sentence of two to seven years. His appeal questions the admission at trial of the identifications by Miss Samuels and Mr. Johnson, without whose testimony he could not have been convicted. The jury’s own uncertainty as to the reliability of their identifications is indicated by what appears to have been a compromise verdict: convicted of robbery, appellant was acquitted of both armed robbery and assault with a dangerous weapon though there was no dispute a gun was used in the robbery. It is also significant that the judge who conducted the pretrial hearing on appellant’s motion to suppress the identification testimony, although denying the motion, expressed concern about the identification by Miss Samuels.

We find in the totality of the circumstances that there was “a vei'y substantial likelihood of irreparable misidentification,” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968), by Miss Samuels and Mr. Johnson, due to suggestive identification procedures, considered with the discrepancies and uncertainties in their testimony. We accordingly hold that their in-court identifications were inadmissible at this trial, requiring reversal. In developing the subject we refer first to the descriptions of the robber given by Miss Samuels and Mr. Johnson to the police shortly after the robbery. We then address the photographic and lineup identifications by these witnesses, after which we outline their trial testimony. We then draw our conclusions.

THE INITIAL DESCRIPTIONS

Miss Samuels testified at the suppression hearing that she had an opportunity to view the robber twice. The first was at the register when he asked if the restaurant was closed. The lighting there was “not very good” — because of the “orange lights.” The second was after the robber went into the manager’s office. When Miss Samuels came over to the doorway of the office Mr. Johnson told her to return to the cash register. The robber looked around and for a moment she saw him again. At the suppression hearing she testified as follows with regard to her initial description to the police, on her examination by defense counsel:

Q Did you give a description of the robber to the police ?

A Yes, I did.

Q Do you recall how you described him?

A No, I don’t.

Q Well did you describe any of the characteristics about the appearance of the robber, do you recall ?

A He was stout.

Q He was stout?

A Yes.

* * -X- -X- -» *

Q Can you recall at this time whether or not the robber had a beard or a goatee ?

A No — I cannot.

Q You cannot recall anything else unusual about his appearance other than that he was stout ?

A He had a jacket, he had a dark jacket over his arm.

Q Other than his clothing there was nothing else about his appearance?

A No.

THE COURT: Are you saying that that is all you can recall, or that is all that you saw that night?

THE WITNESS: That is all I can recall.

THE COURT: That is all you can recall now?

THE WITNESS: Yes, sir.

BY [Defense Counsel]

Q Was there ever a time that you ever recalled any more ?

A I’d say — I think I described him. Whether he had a lot of hair or anything—

Q You think what?

A Well I told them that he had hair and that, but I don’t know—

THE COURT: He had hair?

THE WITNESS: He had hair on his face.

BY [Defense Counsel]

Q Are you saying that at one time you had told the police that he had some sort of facial hair ?

A Yes, I think so.

Q Is that something that stuck out in your mind at the time ?

A Yes.

Thus her description was uncertain and vague: stout man with some sort of facial hair and a dark jacket over his arm. During the redirect examination the Court asked if she would have been able to recognize the robber if she saw him on the street later on the day of the robbery. She replied, “No.”

At the same hearing Mr. Johnson’s initial description, which, as he put it, was “not very positive,” was as follows:

Well, as best I can recall, I think I said he was about five foot six or seven, heavy structure, you know, around the neck line, and I think it was a slight beard ....

He had the better opportunity to observe the man during the robbery, which he said lasted “more or less for about ten minutes — indirectly for about ten minutes.”

The initial description of the robber recorded by the police, without an indication which witness gave it, was more reflective of Mr. Johnson’s recollection:

Negro male — about 25, five feet six inches, tall, about 175 pounds, bush hair, dark complected ....

THE PHOTOGRAPHIC AND LINEUP IDENTIFICATIONS

On June 5, 1970, the day of the robbery, eight photographs of the head and shoulders of black males were shown to Miss Samuels and Mr. Johnson. The photographs gave no indication of height. Only two of the eight had any facial hair. One had a mustache, very short sideburns, and a slight goatee; he was not dark in complexion. The other had a heavy mustache, and sideburns down to his goatee or beard, which was full; he was also definitely dark in complexion, and heavier in build than the others. This was a photograph of appellant.

When shown the eight photographs, Miss Samuels testified that the detective told her “that one of these men might be the robber and if I looked through them and see if I could see the man there.” She picked out the photograph of appellant. The following at the hands of the court occurred:

THE COURT: . . . I'm asking you about the photographs — what was it that caused you to recognize this defendant. You did testify that if you had seen him in person in the street you wouldn’t have recognized him, so what was it about the picture that caused you to recognize him?

THE WITNESS: I don’t know.

Six days later, on June 11, 1970, she attended a lineup of nine men. Appellant was the only man in the lineup whose picture had been shown to the witness. He was the tallest man, and the only heavy-set, stout person, who had a full mustache and full goatee. Miss Samuels identified him because “he was tall and stout and the man just looked like the man that robbed us and that is the best that I can do.” Contrary to the initial descriptions of the robber as five feet six or seven inches, appellant was over six feet tall.

At the suppression hearing she admitted being better able to identify appellant because of the identification procedures :

Q Did you say that since you had seen these photographs several times and you had been to the lineup, that now you are more familiar with what he looks like ?

A Yes.

Mr. Johnson was also shown the eight photographs on June 5, 1970. The investigating officer testified he told Mr. Johnson that among the eight was the photograph of a man an informer had named as the robber. After going through the photographs twice Mr. Johnson selected appellant’s and explained why as follows:

I told the Officer . . . that to the best of my knowledge that was it —looked like the guy that robbed me.

Q Was there anything about this particular photograph that made you think it looked like the robber?

A Yes — the area around the neckline and the shoulder area.

Q Nothing to do with any facial hair?

A Well, there was a chin beard, slight [apparently referring to his recollection of the robber] but I think this one was heavier [apparently referring to the picture], which would have made it more — I don’t think this was why I was doubtful because the photograph didn’t look one hundred percent like the guy. . . .

At the lineup, Mr. Johnson also identified appellant as the man who looked more like the robber than anyone else in the lineup, again because of appellant’s shoulders and neck. When asked at the suppression hearing if he could identify the robber if he met him on the street now, Mr. Johnson said he was uncertain.

THE IDENTIFICATIONS AT TRIAL

At trial Miss Samuels described the robber as “stout, short bush, brown-skinned, goatee,” and that he was wearing a green sweater. On cross examination she now said she would have been able to recognize the robber on the street if she saw him on the day of the trial and on the day or day after the robbery, in the latter respect contradicting her testimony at the suppression hearing a year earlier. She could not explain why she answered differently at trial.

Mr. Johnson described the robber as tall, close to six feet, although originally he had described him as being five feet six or seven inches. In identifying the photograph on June 5, 1970, he stated he could not be positive the man in the photograph was the robber. Similarly with respect to the lineup, Mr. Johnson said he was not positive, “not one hundred percent sure,” meaning:

. if I am to determine whether or not someone has done a thing and solely on my determination, well I want to be sure, that I felt relatively sure if that was the man. But I wanted to erase any possibility that I could have been wrong. I saw the man and he appeared to be the same.

•CONCLUSIONS

The initial photographic identification procedures were impermissibly suggestive. Among the eight partial photographs appellant’s was the only one whose facial hair was in any way comparable to the initial uncertain descriptions given by the witnesses. Yet had the photographs been full length he would have been significantly taller than the witnesses had described the robber. The statement made by the investigating officer to Mr. Johnson as he viewed these photographs is admitted by the Government to have been suggestive, though the Government minimizes its effect. The suggestiveness of the statement to Mr. Johnson cannot be dismissed as of minimal effect but must be taken in its likely substantial impact, one which is magnified by the circumstance that Miss Samuels was such a weak identification witness. We have examined the photographs shown to the witnesses, and the photographs of the lineup. The stark fact is that appellant fairly leaps out of the pictures as the one person who is different, a judgment that can be made even without knowledge of what the witnesses said, because of his bulk and hair. When there is added to the equation the fact that these are distinctive characteristics attributed to the robber by Mr. Johnson, and that he was the one man whose photograph had previously been shown to both witnesses, it was well-nigh inevitable that he would be chosen in the circumstances. Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969): Simmons v. United States, supra, 390 U.S. at 383-384, 88 S.Ct. 967.

The elements of suggestiveness must be considered in the totality of the circumstances. Miss Samuels saw the robber briefly, once under not very good lighting, and then momentarily under better lighting. Her initial description was quite vague as given at the time of the suppression hearing. She had admitted her inability to recognize the robber if she saw him on the street the day of the robbery, yet she had become specific, with new details, at trial. As she said, having seen the photographs several times and him at the lineup she knew what he looked like.

Mr. Johnson, who had a better opportunity to observe the robber, thought originally he was about five feet six, whereas appellant was more than six feet tall. He also thought he had a slight beard. In the pictures appellant had a full beard. Mr. Johnson was never positive appellant was the robber. He chose him because his shoulders and neck were heavy-set rather than for any other particular reason.

Several factual elements enumerated by the Supreme Court as indicative of misidentification are clearly present: (1) vagueness and uncertainty in the original descriptions given by the witnesses to the police; (2) discrepancies between those descriptions and his actual appearance; (3) showing pictures of several persons among whom the photograph of a single such individual recurs or is in some way emphasized; (4) uncertainty in the pretrial identifications; (5) the “heightened chance of misidentification” if the police indicate to the witness that they had other evidence that one of the persons to be viewed committed the crime; and (6) the identification by picture of the defendant prior to the lineup. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); United States v. Simmons, supra, 390 U.S. at 383, 88 S. Ct. 967; United States v. Wade, 388 U. S. 218, 241, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

In the totality of the circumstances we are of the opinion that the suggestive confrontations of the witnesses with the photographs and lineup gave rise to a very substantial likelihood of irreparable misidentification, rendering their in-trial identifications inadmissible as in violation of due process of law under the standards stated in United States v. Simmons, supra, 390 U.S. at 383-384, 88 S.Ct. 967; and see, United States v. Wade, supra, 388 U.S. at 241, 87 S.Ct. 1926; Foster v. California, supra, 394 U. S. at 442-443, 89 S.Ct. 1127; Neil v. Biggers, supra, at 198. Moreover, as appears from our analysis, the testimony lacks a solid basis for attributing the identifications to sources independent of the procedures referred to, and the errors residing in those procedures were not harmless, since the afflicted testimony was essential to the conviction. It is for these reasons we reverse.

In the event of a new trial, identifying evidence by the witnesses Samuels and Johnson would be admissible only upon clear and convincing evidence adduced by the government that their respective in-court identifications would rest upon a source independent of the identifying procedures we have held to have been impermissibly suggestive. United States v. Ash (en banc), 149 U. S.App.D.C. 1, 14-15, 461 F.2d 92, 105-106, cert. granted, 407 U.S. 909, 92 S.Ct. 2436, 32 L.Ed.2d 682 (1972); Mason v. United States, 134 U.S.App.D.C. 280, at 286, 414 F.2d 1176, at 1182 (1969). Cf. Foster v. California, supra.

The criteria governing the issue of admissibility which we have applied to the trial of this case was first referred to in Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The Court was there concerned primarily with the possibly retroactive application of Wade, involving the right to counsel under the Sixth Amendment, but the Court considered also whether the identifying procedures in Stovall constituted a deprivation of due process of law under the Fifth Amendment, our present problem. And see, Foster v. California, supra, 394 U.S. at 442-443, 89 S.Ct. 1127; Simmons v. United States, supra, 390 U.S. at 383-384, 88 S. Ct. 967; and see generally, Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969).

Reversed and remanded.

ROBB, Circuit Judge

(dissenting):

I cannot agree that the circumstances shown by the evidence compel the conclusion that there was “a very substantial likelihood of irreparable misidentifi-cation”.

The district judge who denied the motion to suppress found “that the manner in which the photographs were shown and in which the lineup was held are not so impermissibly suggestive as to deprive this defendant of due process.” (Motion to Suppress TR. 40). He concluded “that the evidence is a matter to be considered on the issue of credibility rather than on the question of admissibility.” (Motion to Suppress TR. 40). I agree, and would therefore affirm the conviction.

Without laboring my view of the evidence summarized by the majority I mention certain considerations and circumstances which the majority overlooks or does not emphasize:

1. Miss Samuels testified that she confronted the defendant face to face on two occasions, once when he came up to her at the cash register and again by the manager’s office. On each occasion he was only three or four feet away from her. The lighting by the cash register “was bright enough so you can see anybody in the building” and by the manager’s office there was “a real bright light.” (Trial TR. 87). Furthermore, she testified at the suppression hearing that she thought she had seen the defendant before, as a customer in the Hot Shoppe. (Motion to Suppress TR. 25).

2. The majority says that the district judge, although denying the motion to suppress, “expressed concern about the identification of Miss Samuels”. The concern expressed by the District Judge was about the response of Miss Samuels to the hypothetical question, whether she could have identified the defendant if she had seen him on the street on the day after the robbery. (Motion to Suppress TR. 37). I give little weight to such a hypothetical question and speculative answer. Otherwise Miss Samuels was at all times positive in her identification. (Grand Jury TR. 7, 9-10; Motion to Suppress TR. 13, 23; Trial TR. 84, 85).

3. The majority attaches great weight to the original descriptions of the robber given by Miss Samuels and Mr. Johnson, which descriptions are characterized as uncertain, vague and not very positive. Except for the item of height, however, these descriptions are not inconsistent with the defendant’s appearance. In any event a witness may retain a mental image of a man, but be unable to describe him precisely. As Miss Samuels testified, explaining why she identified the defendant in the lineup, “the man just looked like the man that robbed us and that is the best that I can do.” We should recognize also that at best the descriptions given by victims of crime are apt to be inaccurate; ordinarily a man confronted with a pistol does not think about the Bertillon measurements of his assailant. Thus Mr. Johnson told the grand jury “I could probably look at the gun and identify it better than I could the man.” (Grand Jury TR. 30).

The issue of the defendant’s identification was presented and argued to the jury under proper instructions. I would not retry the issue here, but would affirm the verdict and sentence.

      . Mr. Johnson sent another employee to get this money. This employee did not testify at trial because be could not be found.

      . Counsel for the appellant justifiably questions the accuracy of this “ten minutes,” even as the witness qualified it, pointing out that Miss Samuels consistently testified that the robber entered the Hot Shoppe at 12:10 a. m., and Mr. Johnson said that the robber left at about 12:15 a. m., “if I’m not mistaken.”

      . Also included was a description of the robber’s clothing, consistent with Mr. Johnson’s recollection.

      . Mr. Johnson’s testimony before the Grand Jury in August, 1970, was to be as follows: “I saw several [photographs], I don’t know how many — but the one I would think to be more likely to be the one is the one that I picked out . . . . ”


author: BAZELON, Chief Judge:

text:
    UNITED STATES of America v. Thomas M. PHILLIPS, a/k/a Thomas P. Bailey, Appellant.
    No. 72-1504.
    United States Court of Appeals, District of Columbia Circuit.
    May 17, 1973.
    As Amended August 6,1973.

      Edward L. Koepenick, Bethesda, Md. (appointed by this Court), was on the brief for appellant.
    Harold H. Titus, Jr., U. S. Atty., John A. Terry and Peter C. Schaumber, Asst. U. S. Attys., and Robert J. Higgins, Asst. U. S. Atty., at the time the brief was filed, were on the brief for appellee.
    Before BAZELON, Chief Judge, WISDOM,  Circuit Judge for the Fifth Circuit, and RICHEY, U. S. District Judge for the District of Columbia.

       Sitting by designation pursuant to 28 U.S.C. § 291(a).

       Sitting by designation pursuant to 28 U.S.C. § 292(a).

   BAZELON, Chief Judge:

Appellant was convicted of robbery. Since the grounds urged for reversal are without merit, the conviction is affirmed. But there is a matter relating to the administration of the Youth Corrections Act which requires our attention.

Appellant was 20 years of age at the time of his conviction and, at the direction of the trial judge, was evaluated for Youth Corrections commitment pursuant to section 5010(e) of the Act. The 5010(e) report recommended adult sentencing and, relying on that report, the trial judge imposed an adult sentence of 2-6 years. The sentencing occurred before this court's decisions in United States v. Coefield and United States v. Reed & Hoston. This case was on appeal when those decisions issued. We think they require that, in the present case, the sentence be vacated and the case remanded for reconsideration of Youth Corrections treatment.

I

An offender less than 22 years of age at the time of his conviction is eligible for Youth Corrections Act treatment. The Act provides the trial judge with four options: (1) granting probation, § 5010(a); (2) committing the offender to a federal Youth Center for up to six years’ indeterminate sentence, § 5010(b); (3) committing the offender for a maximum term of over six years but not exceeding the maximum sentence for the crime involved, § 5010(c); or (4) sentencing the offender as an adult, § 5010(d). “Congress [has] found that young people between the ages of 16-22, especially, were hopeful subjects for rehabilitation,” hence clothed them with a presumptive right to treatment under the Act. Accordingly, an adult sentence may be imposed “only if the applicable facts in the individual case meet the statutory requirements,” which include a finding that the offender “will not [derive] benefit from rehabilitative treatment” under the Act. This court has held that the no-benefit finding must be explicit and affirmative; that it is not enough to merely track the language of the statute; and that the basis for the court finding must appear in a statement of “reasons from which it can be determined that [the sentencing decision] is consistent with the purposes of the Act.”

We also defined the scope of appellate review:

What Congress has done, out of its urgent concern for saving the young while there is still time, is to require of the sentencing court in one limited but highly important area of sentencing the exposure on the record of the factors which informed and shaped the particular exercise of its discretion. An appellate court can only be concerned with the rationality of those factors in relation to Congressional objectives.

The relevant Congressional objective is that an eligible offender should be denied Youth Corrections treatment “[only] in the exceptional case [where the sentencing judge is] convinced the youth is incorrigible and would derive no help from the program.” This is the legal criterion against which a sentencing court’s reasons are to be measured.

While we have held that a denial of Youth Corrections treatment must be accompanied by a statement of reasons, we have also said that where a trial judge orders and follows the recommendation of 5010(e) study, “additional reasons need not be stated, although, of course, the judge is not precluded from adding reasons of his own.” This presupposes that the report provides the requisite reasons. In that case, when the sentencing judge adopts the reasons in the 5010(e) report as his own, a restatement would be, redundant. This adoption does not, however, obviate the need for exposure of the “factors which informed and shaped” the sentencing decision, nor relieve this court of responsibility to determine whether those reasons, from whatever source, demonstrate a “present and visible” rationality in relation to Congressional objectives.

II

When an offender is committed for observation pursuant to 18 U.S.C. § 5010(e), he is assigned to a Youth Center Classification Committee composed of an administrator, a parole officer, and a clinical psychologist. The parole officer, a social worker, submits a written classification study reviewing the offender’s background, prior record, and the circumstances of the instant offense. The clinical psychologist also submits his individual evaluation. The three professional staff members of the Committee then prepare a joint evaluation and recommendation. This completed study is forwarded to the D. C. Board of Parole, which makes its own recommendation in a covering letter and transmits the report to the District Court. These documents comprise the 5010(e) evaluation.

III

In the present case, the 5010(e) report recommended adult sentencing and the Board of Parole joined in that recommendation. The trial judge had only the following to say about the report and the accompanying transmittal letter:

The Court has received a report from the Youth Center recommending against incarceration there stating among other things that the defendant appears to be a street-wise individual; that they feel he would not benefit from the Youth Program and they recommend that he be sentenced as an adult.
Accordingly, since that is the purpose of the 5010(e) study, to determine whether or not the subject is likely to be rehabilitated, the Court will follow the suggestion of the Board of Parole and the report from the Youth Center and will impose sentence as an adult.

Since the judge stated no independent reasons for adult sentencing we must now turn to the 5010(e) study, which suggests only two reasons: (A) that appellant is a “rather street-wise individual;” and (B) that he has failed to prove himself because he was on Youth Act probation when arrested for the instant offense.

A. The label “street-wise”

The Parole Officer’s reference to appellant as “a rather street-wise individual,” was echoed in the Board of Parole’s transmittal letter and repeated by the trial judge. But the report, itself, does not reveal the meaning of this label; nor does an examination of appellant’s background. He was convicted of robbery without a weapon, and had only one prior adult conviction — for petit larceny. He is described as not using drugs, and neither assaultive nor defiant of authority. He held a full time job, albeit an unskilled one, for over a -year prior to his incarceration. Neither this court nor the trial court should be left to conjecture about what the term “streetwise” is intended to convey — or to conceal. Without further explanation, this label is a shallow “litany or prescribed formula.”

B. The prior Youth Act sentence

The Classification Committee evaluation said of appellant’s prior Youth Act probation:

It was felt [at the time of sentencing on the earlier petit larceny charge in the fall of 1970, that appellant] if placed in the probationary setting with the strong guidance and influence of a probation officer, . would have been able to make a satisfactory adjustment without the services of the Youth Center. However, it appears as though Mr. Phillips returned to his former family situation and was unable to adequately adjust which resulted in his involvement with the instant case.
The Classification Committee feels that Mr. Phillips has had the opportunity to prove himself in the community and he failed to make a satisfactory adjustment. Therefore, the Committee recommends that Mr. Phillips be sentenced as an adult with the minimum time considered.

The Parole Board’s letter also cited the fact that appellant committed the instant offense while serving a Youth Act probation sentence. In United States v. Coefield, we recognized that a no-benefit finding might be premised on “a prior sentence under the Youth Corrections Act, . . . followed by a subsequent offense.” We presumed, however, that the subsequent offense would evidence a failure to benefit from Youth Act treatment. Since appellant’s prior sentence was “without the services of the Youth Center,” his subsequent offense could not indicate such a failure. In addition, the report notes that Phillips’ return to his “former family situation” played a substantial part in his involvement in the instant offense. Commitment to a Youth Center, however, might also mitigate that environmental pressure.

It is important to note that the 5010(e) report nowhere asserts that appellant would not benefit from treatment at the Youth Center. The report indicates just the opposite. The clinical psychologist’s evaluation described the factors which caused appellant’s criminal behavior:

The root of his feelings of inadequacy seem to lie in his inability to provide support for himself and his family. ... He appears to feel a responsibility, since his father is dead, for helping his mother financially, in addition to taking care of his own children and their mother. Because he is too deficient in education and marketable skills to discharge this felt responsibility . . . appellant feels frustrated and impotent. The visible result of these feelings has been criminal activity to supplement his earned income.

Keeognizing appellant’s rehabilitative potential, the psychologist recommended training in a marketable skill and remedial education — “this would relieve [Phillips’] anxiety . . . and give him a basis” for providing material support to his family without resort to crime. The Classification Committee recommended the minimum adult sentence, and the trial judge, in turn, recommended that appellant be incarcerated “at Petersburg, where he may be afforded training for a useable skill.”

We have held that where an eligible offender is sentenced as an adult, but the court recommends treatment like that afforded under the Act, there is an implied finding that the offender would benefit from Youth Corrections treatment. Here the trial judge and Youth Center’s professional staff agreed that appellant would derive benefit from vocational and educational training.

The Youth Corrections Act was born of an urgent concern for the rehabilitation of young offenders and a determination to reach some of the underlying causes of criminal behavior. There are indications that the' Youth Corrections system (particularly in the District of Columbia) has fallen far short of the- humane impulses for its being. Phillips’ case is illustrative. The legislative history of the Act specifically refers to “training offenders for a useful life through the learning of trades.” Although the Youth Center’s professional staff believe that training in marketable skill could put appellant on the path to a useful law-abiding life, he was recommended for adult sentencing.

IY

A candid statement of the reasons why an eligible offender is deemed incapable of rehabilitation is necessary to protect his presumptive right to Youth Act rehabilitative treatment. The reasons should reveal (1) what the decisionmakers understand to be the meaning of rehabilitation and the means for achieving it, and (2) to what extent the Youth Corrections system provides those means. It is also imperative to examine more closely the meaning of the label “incorrigible.” Such examination might bring us a step closer to meeting the “problem of crime ... at its focal point” — by identifying its causes.

Our role in this “limited but highly important area of sentencing is to insure that a candid statement of reasons, bearing a “present and visible” rationality to Congressional objectives, does accompany any decision to deny an eligible offender treatment under the Act. The 5010(e) study in this case failed to provide such reasons. The trial judge failed to note their absence or add any reasons of her own. We are, therefore, compelled to vacate appellant’s sentence and remand the case.

We do not order that appellant be committed to the Youth Center. We simply remand for reconsideration of sentence based on a full statement of reasons as described herein. For that purpose, the District Court may, of course, order a new 5010(e) study if so advised. And, if adequate reasons for adult sentencing do not exist, appellant must be committed to the Youth Center.

Remanded.

      . 22 D.C.Code § 2901.

      . United States v. Coefield, 155 U.S.App. D.C. 205, 476 F.2d 1152 (1973); United States v. Reed & Hoston, 155 U.S.App. D.C. 198, 476 F.2d 1145 (1973).

      . 18 U.S.C. § 5005 et seq.

      . United States v. Coefield, note 2, supra, 476 F.2d at 1159; H.R.Rep.No.2979, 81st Cong., 2d Sess. 1-4 (1950) U.S.Code Cong. Service, p. 3983.

      . United States v. Waters, 141 U.S.App. D.C. 289, 292-293, 437 F.2d 722, 725-726 (1970) (emphasis original).

      . 141 U.S.App.D.C. at 291, 437 F.2d at 724 (emphasis original).

      . United States v. Coefield, note 2, supra, 476 F.2d at 1156.

      . Id. at 1157.

      . Id. at 1158.

      . United States v. Reed & Hoston, note 2, supra, 476 F.2d at 1150 (emphasis supplied).

      . United States v. Waters, note 5, supra, 141 U.S.App.D.C. at 291-293, 437 F.2d at 724-725; accord, S.Rep.No.1180, 81st Cong., 1st Sess., at 5 (1949). No-benefit must as a practical matter be taken to mean no significant rehabilitative benefit.

      . United States v. Coefield, note 2, supra, 476 F.2d at 1157 (emphasis supplied); see id., at 1157 (when “the judge imposes a sentence contrary to the recommendation in a report . . . the need for more detailed statement of reasons is more obvious”).

      . United States v. Reed & Hoston, note 2, supra, 476 F.2d at 1150. There is no basis for distinguishing, for purposes of appellate review, between a judge’s stated reasons and those he adopts in following the recommendation of a 5010 (e) report. While a 5010(e) report may represent the application of special expertise hy the Youth Corrections authorities, that factor cannot relieve this court of its obligation to insure that reasons relied on by the experts are rationally related to Congressional objectives.

      . The D. C. Board of Parole is made up of a Parole Executive and three members appointed by the Mayor-Commissioner. 24 D. C. Code § 201a; Reorganization Plan No. 3 of 1967, § 401-14-210, D.C. Code, Title I, Appendix at p. 61 (Supp. V, 1972) ; Mayor-Commissioner’s Organization Order No. 6, Dec. 26, 1967, as amended, March 2, 1971, D.C.Code, Title I, Appendix at pp. 80-81 (Supp. V. 1972). The Parole Executive and members are full time and salaried. While the members of the Board are not required to be professionals in corrections, they are to be selected “on the basis of their broad experience in responsible positions in the fields of correctional service, rehabilitation, law, or education in related fields of behavioral sciences.’ Mayor-Commissioner’s Organization Order No. 6, supra, Part II, at p. 81.

      . The trial judge specifically noted that there was no reference to an overcrowding problem as a basis for the 5010(e) report’s recommendation. Since we require that the factors which shape the sentencing decision be disclosed, we cannot assume the existence of any undisclosed reasons — including overcrowding— to justify an adult sentence.

      . United States v. Coefield, note 2, supra, 476 F.2d at 1157.

      . On the petit larceny charge, appellant received a sentence of 2 years probation under the Youth Act. 18 U.S.C. § 5010 (a).

      . United States v. Coefield, note 2, supra, at 1157.

      . See discussion infra indicating the extent to which the pressures of appellant’s family situation caused his criminal behavior.

      . The trial judge, before sentencing an eligible offender as an adult, must find that he would not benefit from commitment under sections 5010(b) or (c) of the Act, both of which envision a period of incarceration and treatment at a Youth Center, 18 U.S.C. § 5010(d).

      . The trial judge in United States v. Ward, 337 F.Supp. 185, 194 (D.D.C. 1971), appended to his opinion on remand a letter from the Director of the D.C. Department of Corrections, who described the most desirable Youth Corrections committee as a “defendant whose criminal activity has apparently resulted from an inability to attain desired ends because of a lack of economic, educa-ional or social opportunity.”

      . Unfortunately, a sentencing judge is unable to insure that an offender will get the needed services elsewhere in the correctional system. The judge can only recommend to what facility an adult offender will be sent and that recommendation often goes unheeded. In imposing an adult sentence, the trial judge in Waters, note 5 supra, recommended appellant be placed in a youth facility, but:
      [t]his direction of the court was only precatory and was speedily violated by the transfer of appellant . . . to the regular penitentiary.
      [At the adult facility], appellant was severely beaten with a lead pipe by an older prisoner, hovered in critical condition for about two weeks, suffered permanent impairment of his eyesight, [and] substantial amnesia.
      141 U.S.App.D.C. at 292-293, 437 F.2d at 725-726. See also United States v. Ward, 147 U.S.App.D.C. 149, 151, 454 F.2d 992, 994.

      . United States v. Ward, 147 U.S.App.D.C. 149, 454 F.2d 992 (1971).

      . See United States v. Coefield, note 2, supra, 476 F.2d at 1159-1160.

      . Id.; Harvin v. United States, 144 U.S. App.D.C. 199, 220, 445 F.2d 675, 696 (1971) (separate opinion of Judge Tamm).

      . See, e. g., United States v. Alsbrook, 336 F.Supp. 973 (D.D.C.1971); United States v. Lowery, 335 F.Supp. 519 (D.D.C.1971).

      . H.R.Rep. 2979, 81st Cong., 2d Sess. at 4 (1950).

      . Harvin v. United States, note 25, supra, 144 U.S.App.D.C. at 220, 445 F.2d at 696 (separate opinion of Judge Tamm); H.R.Rep.No.2979, 81st Cong., 2d Sess. 1 (1950).

      . See notes 10-11, supra and accompanying text; United States v. Reed & Hos-ton, note 2, supra, 476 F.2d at 1150. For a discussion of a requirement for rea-oned sentencing decisions see American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Appellate Review of Sentences (Approved Draft 1968) § 2.3(e) ; R. Goldfarb & L. Singer, After Conviction at 191-95 (1972); M. Frankel, Criminal Sentences at 39-49 (1973); Wyzanski, A Trial Judge’s Freedom and Responsibility, 65 Harv.L.Rev. 1281, 1292-1293 (1952).