author: WEBSTER, Circuit Judge.

text:
    WOUNDED KNEE LEGAL DEFENSE/OFFENSE COMMITTEE et al., Appellants, v. The FEDERAL BUREAU OF INVESTIGATION et al., Appellees.
    No. 73-1908.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 12, 1974.
    Decided Nov. 7, 1974.

      Lawrence Wm. Steinberg, Beverly Hills, Cal., for appellants.
    William F. Clayton, U. S. Atty., Sioux Falls, S. D., for appellees.
    Before VOGEL, Senior Circuit Judge, and ROSS and WEBSTER, Circuit Judges.
   WEBSTER, Circuit Judge.

In this appeal, the Wounded Knee Legal Defense/Offense Committee (“the Committee”), an organization formed to provide free legal aid to the defendants in the criminal cases which followed the occupation of Wounded Knee, South Dakota, by militant American Indians, seeks reversal of an order of the District Court denying an application for a preliminary injunction against the Federal Bureau of Investigation and related individuals.

The problems giving rise to this case began in March, 1973, when the Committee opened an office in a Rapid City, South Dakota, motel. At that time the area was replete with F.B.I. agents and federal marshals who had been summoned as a result of the Indian action at Wounded Knee. Ill will developed between the two groups almost immediately. In June, 1973, the Committee moved its office to a local fraternity house. Shortly thereafter, the F.B.I. moved its agents into a motel about 100 yards from the fraternity house. The hostility between the F.B.I. agents and the Committee increased during the summer as the agents moved about the vicinity and members of the Committee began to photograph them. This hostility culminated in a succession of events which occurred on August 4-6, 1973. The details of these events are hotly disputed by the parties.

On August 4, two Committee members were arrested by the F.B.I. Thereafter, at least three instances of physical contact between Committee members and F.B.I. agents are reported. The Committee charges that the arrests were made without proper cause and that F.B.I. agents committed numerous acts of assault on its members. The F.B.I., on the other hand, contends that its agents were never guilty of any wrongdoing and that the confrontations in question were initiated by the Committee.

In its application for a preliminary injunction, the Committee cited these events and sought to bar the F.B.I. from harassing or intimidating its members and from interfering with their activities. After a lengthy hearing on the matter, the District Court determined that the circumstances did not warrant the issuance of a preliminary injunction and denied the Committee’s application in an unreported memorandum decision. The Committee appeals from this denial under 28 U.S.C. § 1292(a)(1), and asserts that Judge Bogue erred (1) in failing to recuse himself; (2) in refusing to consider certain affidavits offered in support of its application; and (3) by declining to issue a preliminary injunction. The F.B.I. contends that the District Court lacked subject-matter jurisdiction.

JURISDICTION

We turn first to the issue of jurisdiction. The District Judge found jurisdiction both under 28 U.S.C. §§ 1331 and 1343. In the absence of any asserted act of Congress for the protection of civil rights, or any allegation of state action or action under color thereof, it seems doubtful that § 1343 will support jurisdiction here. This we need not decide, however, because § 1331 supplies the requisite subject-matter jurisdiction.

The Committee charges that federal agents violated the Fourth Amendment rights of its members and the Sixth Amendment rights of their clients. The Supreme Court determined in Bell v. Hood, 327 U.S. 678, 680, 66 S.Ct. 773, 90 L.Ed. 939 (1946), that a civil suit against federal agents acting within the scope of their authority for damages resulting from their violation of a person’s constitutionally protected rights could arise under the Constitution or laws of the United States, as required by the statutory predecessor of 28 U.S.C. § 1331. Later, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389, 91 S.Ct. 1999, 2001, 29 L.Ed.2d 619 (1971), the Court held that a violation of the Fourth Amendment “by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct.” While in Bivens the plaintiffs sought monetary damages against federal agents, the role of the courts in protecting constitutional rights by injunc-tive relief is the same, and in appropriate circumstances the federal courts have power to grant injunctive relief, against a department of the executive branch of the federal government. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed.

1153, aff’g, 103 F.Supp. 569 (D.D.C. 1952) (Secretary of Commerce enjoined from continuing seizure and possession of steel mills); cf. Bell v. Hood, supra, 327 U.S. at 684, 66 S.Ct. 773.

At issue in the merits of the ease (not yet determined) is the right of members of the Committee to provide effective assistance of counsel to their Indian clients who wish to avail themselves of their Sixth Amendment rights. Appellees’ contention that the Committee has not alleged an actual injury sufficiently personal to present a justiciable case or controversy cannot stand in light of our decision in Nyberg v. City of Virginia, 495 F.2d 1342, 1344 (8th Cir. 1974), wherein we held that the rights of medical doctors to freely practice medicine are so “inextricably bound up” with the privacy rights of their patients that the doctors have standing to challenge the validity of abortion laws. See also Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). With even stronger force it may be said that a lawyer has standing to challenge any act which interferes with his professional obligation to his client and thereby, through the lawyer, invades the client’s constitutional right to counsel. It requires no citation of authorities to reaffirm our historic commitment to effective assistance of counsel in criminal cases. That right may not be fettered by harassment of government officials, and any claim which factually asserts such harassment presents a federal question for our determination.

Nor is this case moot. The Supreme Court has repeatedly held that a case does not become moot merely by the cessation of the challenged conduct unless there is no reasonable expectation that the wrong will be repeated. E. g., NLRB v. Raytheon Co., 398 U.S. 25, 90 S.Ct. 1547, 26 L.Ed.2d 21 (1970); United States v. Concentrated Phosphate Export Association, 393 U.S. 199, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953) ; United States v. Trans-Missouri Freight Association, 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007 (1897).

REFUSAL TO RECUSE

At the outset of the hearing on its application for a preliminary injunction, the Committee requested that Judge Bogue recuse himself pursuant to a motion filed the same day.

The motion to recuse recited that Judge Bogue had personal bias and prejudice against plaintiffs and in favor of defendants; that Judge Bogue had previously granted the recusance motions of two defendants in the criminal cases, Russell Means and Dennis Banks; that Judge Bogue denied similar motions to five other defendants in related criminal cases (the “leadership” cases); and that the work of plaintiffs was substantially for such defendants in the criminal cases and therefore the complaint for injunction was also on their behalf. At the hearing, the plaintiffs asserted that the order of this court denying mandamus relief but transferring the so-called “leadership” cases from Judge Bogue to Judge Nichol as an administrative matter was further evidence of the need for disqualification.

The complaint was filed August 13, 1973, together with a Motion for Temporary Restraining Order and for Preliminary Injunction. A supporting memorandum of law and exhibit list were filed August 14, 1973, and a hearing held the same day. On August 16, Judge Bogue entered his memorandum decision denying the motion for a temporary restraining order. Because of short notice to the United States Attorney representing these defendants, Judge Bogue did not deal with the motion for preliminary injunction at that time.

The motion to recuse was filed and heard on September 1, 1973, the date set for the preliminary hearing. Judge Bogue expressed from the bench his view that the criminal cases involving the Wounded Knee leaders were not so interwoven with plaintiffs’ interests as to require reversal and denied the motion as “legally insufficient.”

The only affidavit offered in support of the motion was that of Russell Means, made June 4, 1973, prior to the filing of this complaint. The affidavit asserts the only factual claims of prejudice: that in April, 1973, Judge Bogue expressed concern to Means’ attorney because a newspaper reported that Means had asserted the American Indian movement would take western South Dakota by force; that Judge Bogue threatened to revoke Means’ bond [he did not do so]; that Judge Bogue unreasonably declared his intention to accelerate Means’ trial; that Judge Bogue attempted to coerce testimony against Means from Pedro Bissonette; and that Judge Bogue had formed opinions as to the activities of Means and others before charges were brought against them as evidenced by his statements to others.

If the affidavit is legally sufficient, it is the duty of the district judge to disqualify himself notwithstanding the judge would challenge the truth of such allegations. 28 U.S.C. § 144; see, e. g., Berger v. United States, 255 U.S. 22, 32, 41 S.Ct. 230, 65 L.Ed. 481 (1921); United States v. Townsend, 478 F.2d 1072, 1073 (3d Cir. 1973). On the other hand, “[a]n affidavit must strictly comply with all of the statutory requirements before it will effectively disqualify a judge.” United States v. Anderson, 433 F.2d 856, 859 (8th Cir. 1970). As observed in Anderson, supra, a court’s ruling on a question of law does not show the requisite bias, and conclusory allegations may not be substituted for specific facts. In this case the affidavit is not even executed by a named plaintiff, but rather by one of the larger class of Indians which plaintiffs claim to represent. See Berger v. United States, supra, 255 U.S. at 34, 41 S.Ct. 230; Giebe v. Pence, 431 F.2d 942 (9th Cir. 1970); cf. Cuddy v. Otis, 33 F.2d 577 (8th Cir. 1929).

We think Judge Bogue correctly concluded that these highly attenuated claims were legally insufficient. Moreover, the motion was not made until after Judge Bogue had entered upon this case and had invested substantial judicial time, including an evidentiary hearing on the application for temporary restraining order and preparation of a detailed memorandum decision thereon. The motion was untimely and no just cause for delay appears in the record. See 28 U.S.C. § 144. “When an affidavit does not meet the requirements imposed by law, the judge has an obligation not to disqualify himself.” United States v. Anderson, supra, 433 F.2d at 860. See also Faubus v. United States, 254 F.2d 797, 804 (8th Cir.), cert. denied, 358 U.S. 829, 79 S.Ct. 49, 3 L.Ed. 2d 68 (1958), wherein we held that an affidavit of prejudice filed the day before a petition for a preliminary injunction was to be heard was not timely.

REJECTION OF AFFIDAVITS

At the hearing on the application for preliminary injunction, the Committee sought to introduce the affidavits of some of its members who were no longer in South Dakota. The affidavits described several of the incidents involving Committee members and F.B.I. agents and tended to support the oral testimony presented by the Committee at the hearing. They were, however, cumulative and added no new material facts to the Committee’s ease. When faced with the question of admission of these affidavits, the District Judge said, “I don’t know of any rule of evidence that would allow me to do this * * Tr. at 20. The District Judge denied the motion to admit the affidavits into evidence, but did suggest that the Committee re-raise its motion later in the proceedings.

The Committee again offered its affidavits as the hearing was drawing to a close, and the District Judge again refused to admit them, saying:

This hearing has been set for a number of weeks and there has been ample opportunity to take depositions, if Plaintiffs so desired, in the event any persons would not be available for this hearing on the motion for a preliminary injunction. And it was the opinion of this Court that the right of cross-examination is not going to be denied in a ease which would be the situation if I were to allow the affidavits into evidence.
Tr. at 341-42.

The Committee contends that this ruling is erroneous and an abuse of discretion requiring reversal of the District Court’s order denying a preliminary injunction.

The District Judge erred in assuming that no rule of evidence would allow him to receive the affidavits. By its nature, an application for a preliminary injunction often requires an expeditious hearing and decision. In order to overcome the problems that would be created in attempting to gather the necessary witnesses, it has often been held that affidavits may be received at a hearing on a motion for a preliminary injunction. See, e. g., Marshall Durbin Farms, Inc. v. National Farmers Organization, Inc., 446 F.2d 353, 356-358 (5th Cir. 1971); Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1204-1205 (2d Cir. 1970); San Francisco-Oakland Newspaper Guild v. Kennedy, 412 F.2d 541, 546 (9th Cir. 1969); Ross-Whitney Corp. v. Smith Kline & French Laboratories, 207 F.2d 190, 194 (9th Cir. 1953); Brooklyn National League Baseball Club v. Pasquel, 66 F. Supp. 117, 119-120 (E.D.Mo.1946). See generally 11 C. Wright & A. Miller, Federal Practice and Procedure § 2949 (1973).

However, the District Court was not required to receive the Committee’s affidavits in this case for two reasons. First, as the District Court pointed out, the hearing was not a hastily called proceeding, but rather one which had been planned weeks in advance. Both sides had ample time to gather their witnesses.

Second, the affidavits offered by the Committee related to controverted issues of fact. While the Committee presented testimony which charged that its activities had been under constant surveillance by the F.B.I., the Assistant Special Agent in charge of the Minneapolis Division of the F.B.I. testified that Committee activities were never surveyed. Tr. at 134-40, 224-25. Committee members testified as to acts of aggression and assault by F.B.I. agents, yet several agents described the confrontations and instances of physical contact as being Committee-induced. When faced with a similar situation, the Third Circuit said:

There can be no doubt that where the right to relief is clear the court, in the exercise of its discretion, may grant an injunction pendente lite on the basis of ex parte affidavits. However, where the affidavits relate to controverted factual issues the court is not required to receive them in lieu of oral testimony. * * * The court should insist, as it did here, on the presentation of oral testimony which may be subjected to the test of cross-examination.
Industrial Electronics Corp. v. Cline, 330 F.2d 480, 483 (3rd Cir. 1964) (citations omitted).

We find no abuse of discretion here.

APPLICABLE STANDARDS

Finally, the Committee asserts that the District Court erred in failing to issue a preliminary injunction on the facts of the case as presented in the record. In Minnesota Bearing Co. v. White Motor Corp., 470 F.2d 1323, 1326 (8th Cir. 1973), we said:

In order to justify the issuance of a preliminary injunction by the trial court, the movant has the burden of showing:
(1) substantial probability of success at trial by the moving party, and
(2) irreparable injury to the moving party absent such issuance.

The District Court, in its memorandum opinion, found that the Committee had not only failed to show a substantial likelihood of success on the merits but that it appeared highly questionable whether the Committee would succeed in any of its causes of action. The court below also noted that there had been no showing of irreparable harm to the Committee if the preliminary injunction were not issued.

The record discloses substantial support for the F.B.I.’s position as well as the Committee’s. Our scope of review of an order denying a preliminary injunction is very limited, and we cannot reverse the trial court’s order unless we determine that it has abused its discretion. Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 88 L.Ed. 834 (1944); Minnesota Bearing Co. v. White Motor Corp., supra, 470 F.2d at 1326; Shearman v. Missouri Pacific Railroad Co., 250 F.2d 191, 195 (8th Cir. 1957). Judge Bogue applied the proper standards in deciding not to grant the Committee’s application for a preliminary injunction. While a trial on the merits may produce a different result, we cannot say that the District Court, upon the evidence properly before it, abused its discretion.

Accordingly, the order of the District Court denying a preliminary injunction is affirmed.

      . The Honorable Andrew W. Bogue, United States District Judge, District of South Dakota.

      . The record indicates that the Committee believed its activities were being surveyed and its members harassed from the day it opened its office. Tr. at 134-40.

      . Anthony Miller, a Committee attorney, testified that as he was photographing a late model car containing a two-way radio, one of its occupants emerged and began calling him obscene names. He identified this man as Special Agent Morris Pierson of the F.B.I. Mr. Muller further testified that another F.B.I. agent, Charles Kempf, came walking down the street while this was going on and that he photographed Kempf. Muller stated that Kempf then began to struggle with him for the camera and smashed the camera into his face, injuring his lower lip and mouth. Tr. at 24-35.
      Special Agent Kempf testified that he walked into the area where Muller was photographing the automobile, which he knew to be an F.B.I. car, to find out what was going on and that Muller began taking photographs of his face from a distance of 8-10 inches. He said that he took hold of the camera and moved it to about chest height. Kempf stated that he repeated this action when Muller again moved the camera close to his face, but that he had no physical contact whatever with Muller. Tr. at 319-22.
      Carolyn Mugar, another Committee member, testified that F.B.I. agent Bonald Brug-ger threatened her eyes with his keys. Tr. at 63. Brugger acknowledged that the incident had occurred, and stated that he had lifted his hands to protect his face from a camera but that he could not recall whether or not he had keys in his hands. Tr. at 267-68.
      Mugar also testified that as she was following Agent Morris Pierson up the stairs of the police station in Rapid City, having just photographed him, he stepped back as he opened the door and threw the full weight of his body into her, knocking her down the stairs. Tr. at 68-69. Pierson did not testify, but Agent H. J. Lattus, who witnessed the incident, did. He said that Ms. Mugar was running behind Agent Pierson and that when he stopped to open the door she ran into him and lost her balance, but did not fall. Tr. at 330.
      Mark Lane, a Committee attorney, testified that as Lake Headley, another Committee member, was taking pictures in the lobby of the motel where the agents were staying, F.B.I. agent David Keller grabbed Headley and that David Price, after identifying himself and Keller as F.B.I. agents, pushed Headley toward the door in a violent fashion. Tr. at 114-25. Keller testified that he only placed his hand on Headley’s arm in order to stop Headley’s advance on him. Tr. at 304-08. Price also testified and stated that his only physical contact with Headley was when Headley grabbed his arm as he was blocking Headley’s advance toward Keller. Tr. at 286-89.
      We must and do accord deference to the trial court’s assessment of the credibility issues reflected in his decision to deny the application for preliminary injunction, discussed infra.

      . The complaint filed by the Committee sought monetary and injunctive relief for the alleged violation by F.B.I. agents of the constitutional rights of Committee members and their clients. The Committee’s application for a temporary restraining order was denied by the District Court on August 16, 1973.

      . See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 398 n. 1, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (Harlan, J. concurring).

      . 28 U.S.C. § 1331(a) provides:
      The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.

      . Act of March 3, 1911, ch. 231, § 24, part 1, 36 stat. 1091.

      . At oral argument it was conceded that there was “a distinct lessening of overt activity” afteR. the F.B.I. agents left the area in mid-August, 1973.

      . On Noven,' 13, 1973, Judge Bogue denied plaintiffs the right to maintain a class action.

      . The Committee consists of a constantly changing group of volunteers who donate whatever time they can afford.

      . The affidavits included signed and sworn statements by the two Committee members who were arrested by the F.B.I. which could lead a reader to believe that the arrests were improper and designed to intimidate investigators for th ' Committee. Substantially the same information was presented at the hearing by Committee attorney Mark Lane. Tr. at 110-14.
      Also included in the affidavits were eyewitness accounts of “assaults” by F.B.I. agents on Committee members Carolyn Mugar, Anthony Muller and Lake Headley. Mugar and Muller both testified at the hearing. The “assault” on Headley was described to the court by Mark Lane, who witnessed the incident. Tr. at 116-20.
      The affidavits also underscored the ill will that existed between Committee members and F.B.I. agents.

      . In Builders Steel Co. v. Comm’r, 179 F.2d 377, 379 (8th Cir. 1950), we said:
      [A] trial judge who, in the trial of a non-jury case, attempts to make strict rulings on the admissibility of evid nee, can easily get his decision reversed by excluding evidence which is objected to, but which, on review, the appellate court believes should have been admitted. * * * [I]f evidence was excluded which [the appellate] court regards as having been admissible, a new trial or rehearing cannot be avoided.

      . See note 8 supra.

      . See note 3 supra.


source: Caselaw Access Project

author: CRAVEN, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Louis Gustav LeFAIVRE et al., Appellants.
    No. 74-1239.
    United States Court of Appeals, Fourth Circuit.
    Argued Sept. 30, 1974.
    Decided Dec. 4, 1974.
    Certiorari Denied March 31, 1975.
    See 95 S.Ct. 1446.

      Marvin J. Garbis, Baltimore, Md. (Allen L. Schwait and Garbis & Schwait, Baltimore, Md., on brief) for appellants.
    James A. Rothschild, Atty. U. S. Dept, of Justice (George Beall, U. S. Atty., William A. Pope, Sp. Atty., Baltimore Strike Force, Baltimore, Md., and Jerome M. Feit, Atty. U. S. Dept, of Justice, on brief) for appellee.
    Before CRAVEN, BUTZNER, and FIELD, Circuit Judges.
   CRAVEN, Circuit Judge:

This appeal presents an interesting aspect of federalism: to what extent should the United States participate with the states in the attempt to control human behavior by the imposition of criminal sanctions. Tradition and history assign a subordinate role to the United States. The burden of policing behavior by application of criminal law remains heavily upon the states, and the proper role of the United States has been termed ancillary or auxiliary to that of the states. See 1 National Commission on Reform of Federal Criminal Laws,■ Working Papers 33-36 (1970). Nevertheless, Congress by various statutes has made possible federal prosecution of a great many crimes that seem to have little or no correlation to traditional federal interests. See, e. g., Mann Act, 18 U.S.C. § 2421 (1970); Dyer Act, 18 U.S.C. § 2312 (1970).

The statute involved here is 18 U.S.C. § 1952, sometimes known as the “Travel Act,” and entitled by the Congress “Interstate and Foreign Travel or Transportation in Aid of Racketeering Enterprises.” It represents the most extensive recent entry by the Congress into the substantive criminal law field. Pegged upon the congressional power over interstate and foreign commerce and the mails, the statute undertakes to make federal crimes out of business enterprises that involve gambling, non-tax-paid liquor, narcotics, prostitution, extortion, bribery, and arson.

We are here concerned with gambling. Appellants were convicted by a jury of participating in varying degrees in a rather large gambling operation conducted entirely within the State of Maryland and mostly within the City of Baltimore. Appellant Louis LeFaivre, Sr., was the backer for the entire operation; appellant Louis LeFaivre, Jr., was one of his lieutenants; and appellants Miller and Eckert were “telephone girls” who recorded daily bets taken by the “writers” located throughout the city. Some of the many “writers” received as much as $1,000 or even $2,000 in bets weekly. But the only established connection with interstate commerce, the jurisdictional peg for application of the statute, was the introduction at trial of 14 out-of-state checks and other negotiable instruments offered in settlement of bets and passed through interstate banking channels in the clearing process after being cashed or deposited by one of the principal defendants.

Not unreasonably, appellants characterize their gambling enterprise as “local” as opposed to interstate. They urge on appeal that the Travel Act was not intended to apply and does not apply to a local gambling operation with only incidental use of facilities in interstate commerce. We disagree. Appellants’ arguments come to this: that the Congress in the exercise of its power over the instrumentalities of commerce ought not to undertake to reach criminal activity that is primarily local in nature, but should instead leave policing of such criminal activity to the states.' We think the argument is addressed to the wrong forum and that it is not for the courts to interpose restraints so long as the Congress has acted within the proper scope of its powers. The convictions will be affirmed.

I.

The language of the Travel Act literally covers this gambling operation involving 14 out-of-state negotiable instruments. In relevant part, the Act states that “[w]hoever . . . uses any facility in interstate or foreign commerce, including the mail, with intent to carry on, or facilitate the . carrying on, of any unlawful activity [gambling], and thereafter performs or attempts to perform [any business enterprise involving gambling] shall be fined not more than $10,000 or imprisoned for not more than five years, or both The words fit the facts of this case: LeFaivre used facilities in interstate commerce each time he deposited or cashed one of the 14 out-of-state cheeks received from his writers. His intention was to collect money and thus to carry on or facilitate the carrying on of his enterprise. And since the gambling operation was ongoing over a period of years, there can be no doubt that LeFaivre and the others continued to perform their illegal activity after the use of interstate facilities, thus meeting the Act’s requirement that a person engage in the substantive offense following the involvement of interstate commerce.

In United States v. Wechsler, 392 F.2d 344 (4th Cir.), cert. denied, 392 U.S. 932, reh. denied, 393 U.S. 902, 89 S.Ct. 71, 21 L.Ed.2d 191 (1968), we upheld a Travel Act conviction founded upon a local zoning board official’s deposit into his bank account of an out-of-state check received as a bribe. As we said then, “[w]hen one deposits a check, there would seem to be little doubt that he is using a facility in interstate commerce.”

392 F.2d at 347 n. 3; cf. United States v. Barnes, 383 F.2d 287, 290 (6th Cir. 1967), cert. denied, 389 U.S. 1040, 88 S.Ct. 780, 19 L.Ed.2d 831 (1968). In United States v. Salsbury, 430 F.2d 1045 (4th Cir. 1970), a Maryland nightclub operator financed large-scale illegal gambling operations in which bettors often paid their bookies by check or money order, which the nightclub operator cashed at a local drugstore. We held the government could prosecute Salsbury under the Travel Act because some of the checks were on out-of-state banks.

But appellants urge that Wechsler and Salsbury have been destroyed by Rewis v. United states, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971). In Rewis, the Supreme Court held that the Travel Act could be applied neither to persons who crossed state lines for the purpose of frequenting a local gambling establishment, nor — considering solely the fact of their customers’ travel across state lines — to the operators of the establishment. Appellants rely on the discussion in Rewis of the legislative history behind the Travel Act, which they argue suggests that Congress did not intend to reach purely local operations like LeFaivre’s. The Court in Rewis, while noting that legislative history of the statute was “limited,” did divine from it that the Act was aimed “primarily at organized crime and, more specifically, at persons who reside in one State while operating or managing illegal activities located in another.” 401 U.S. at 811, 91 S.Ct. at 1059. The Court also noted that the legislative history evidenced no consideration by Congress of the effect on “sensitive federal-state relationships” and “limited federal police resources” that would result if the Act were read to cover local gambling operations, even those located in multi-state metropolitan areas, just because they were frequented by out-of-state customers. Id. at 812, 91 S.Ct. 1056.

In addition to Rewis, appellants also cite us to later decisions of the Seventh and Second Circuits applying Rewis. In United States v. Altobella, 442 F.2d 310 (7th Cir. 1971), the Seventh Circuit reversed a Travel Act conviction based on an extortion victim’s payment with funds procured by cashing an out-of-state check, which like the checks in the instant case had to travel in interstate commerce in order to be cleared. The Seventh Circuit based its decision in part on the “minimal and incidental” nature of the involvement of interstate facilities, stating that it did not believe Congress intended “to authorize federal intervention in local law enforcement in a marginal case such as this.” 442 F.2d at 315, 316. One month after Altobella, in United States v. McCormick, 442 F.2d 316 (7th Cir. 1971), the Seventh Circuit reaffirmed its reading of the Travel Act in a short per curiam opinion reversing the conviction of a lottery operator who, although he actually employed only local people, did advertise for employees in a newspaper that reached some out-of-state subscribers. The court based this decision on Rewis and Altobella, noting only that “[t]he role played by the interstate mailings was ‘a matter of happenstance’ and ‘minimal and incidental’ to the operation of the illegal lottery.” 442 F.2d at 318.

The final post-Rewis opinion relied upon by appellants is that of Judge Friendly in United States v. Archer, 486 F.2d 670 (2d Cir. 1973), reh. denied, id. at 683 (per curiam). The facts in Archer presented a rather unpretty picture of government investigators using the ruse of a planted agent to induce suspected criminals into committing overt acts for which they could be charged. The Travel Act was said to be invoked by a single telephone call placed by a government agent from Paris and received by one of the suspected criminals in New York. After examining the legislative history of the Travel Act at length and considering the Rewis, Alto-bella, and McCormick decisions, the Second Circuit decided that the telephone call could not support a Travel Act prosecution, both because the call’s transatlantic nature was “a matter of happenstance,” see Rewis, 401 U.S. at 812, 91 S.Ct. 1056, and because the receipt of an interstate or international phone call seemed analogous to the receipt of gambling customers across state lines that the Supreme Court in Rewis had held to be insufficient for invocation of the Act. 486 F.2d at 682-683.

Appellants contend that the Altobella, McCormick and Archer, decisions, correctly explicating Rewis, have applied a judicial gloss to the literal words of the Travel Act that merits our adoption and compels reversal of their convictions in this case. They contend that we, like the Seventh and Second Circuits, should require a substantial and integral involvement of interstate facilities in an illegal activity, as opposed to a purely minimal and incidental involvement, before we uphold a prosecution under the Act. From a policy standpoint they argue that adoption of such a distinction would have the salutary effect of limiting coverage of the Act to organized crime involving several states, where local law enforcement officials are hindered by the very scope of the operations, and leaving more local activities to the local authorities. Of more immediate concern to appellants than the policy argument, no doubt, is the fact that such a distinction would also make it impossible to uphold their convictions, since the number of out-of-state instruments involved in LeFaivre’s operation was apparently minimal relative to the volume of business conducted, and their involvement at all was arguably fortuitous and incidental, and certainly not vital to the operation of the gambling enterprise.

Assuming for the moment that the post-Eems decisions relied upon by appellants were correctly decided, we believe each can be readily explained by factors having nothing to do with a narrow or restricted reading of the Travel Act. In Altobella, the Seventh Circuit based its decision in large part upon the absence of any significant criminal activity transpiring after the use of interstate commerce channels, an explicit requirement of the Travel Act on its face. 442 F.2d at 314-315. In our case, an ongoing gambling enterprise, there was significant criminal activity following each use of facilities in interstate commerce.

The Archer court focused on what it considered the despicable police maneuver of planting an agent to initiate a monitorable criminal scheme. It came close to reversing the convictions solely on the ground of “government lawlessness” as defined in Justice Brandéis’ famous dissent in Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 72 L.Ed. 944 (1928). See 486 F.2d at 674-677. Backing off from that ground of decision, the court ultimately based its reversal on insufficient use of interstate channels to bring the Travel Act into play. But on the government’s petition for rehearing, the Second Circuit panel in a per curiam statement explained its decision in very narrow terms:

While the Government professes alarm at the precedential effect of our decision, we in fact went no further than to hold that when the federal element in a prosecution under the Travel Act is furnished solely by undercover agents, a stricter standard is applicable than when the interstate or foreign activities are those of the defendants themselves and that this was not met here.

486 F.2d at 685-686. That can be read to mean that the Archer opinion was virtually withdrawn. But in any event, that decision is distinguishable from the instant case on either of two grounds: the unsavory police practices that colored that decision, or the government initiation of the interstate aspect of the criminal activity, neither of which we have on the record before us.

In McCormick the government based its Travel Act prosecution on the defendant lottery operator’s advertisement for lottery salesmen in a local newspaper that had some out-of-state subscribers. But the defendant in fact employed no salesmen from out-of-state, and it is arguably true that he did not “use” the interstate aspect of the newspaper. In our case, LeFaivré did, of course, benefit from the use of interstate banking channels.

The precise factual settings of the Second and Seventh Circuit decisions raise some doubt as to whether, in an ordinary case, those circuits would read into the Travel Act a requirement of “substantial and integral” involvement in interstate commerce. It is possible those cases may be confined to their facts. If not, we decline to follow them and reject any narrowly restrictive reading of the Act.

We reiterate that the facts bring this case squarely within the plain language of the Travel Act. The Congress chose to trigger application of the Travel Act by the use of “any facility in interstate or foreign commerce.” It did not provide that such use must be “substantial” nor, so far as we can ascertain, has it ever done so in any other federal criminal statute pegged to the use of interstate facilities. The Congress did not exclude from application of the statute the use of facilities in commerce that might be termed “minimal and incidental,” nor has the Supreme Court done so, we think, in Rewis. However desirable it may seem to curb the reach of this criminal statute, see Archer, supra, 486 F.2d at 677-678, we think we lack the power to do so. Once it is determined that the Congress has acted constitutionally and within the scope of its powers (and that is here conceded), and that its statute reaches given activity, we think the inquiry must come to an end.

We are, of course, bound by any construction put upon a statute by the Supreme Court; but we discern none in Rewis that prevents application of the Travel Act to these appellants. Mr. Justice Marshall’s opinion for the Court does discuss legislative history and federalism in terms that suggest the Act should not be read to cover every situation it could conceivably reach. But he spoke in the context of a fact situation that would have required extending the coverage of the Act beyond its literal language:

[W]e are unable to conclude that conducting a gambling operation frequented by out-of-state bettors, by itself, violates the Act. Section 1952, prohibits interstate travel with the intent to “promote, manage, establish, carry on, or facilitate” certain kinds of illegal activity; and the ordinary meaning of this language suggests that the traveler’s purpose must involve more than the desire to patronize the illegal activity.

401 U.S. at 811, 91 S.Ct. at 1059 (emphasis added) . Having determined that the plain language did not cover the situation in Rewis, Mr. Justice Marshall' then launched into his discussion of legislative history and federalism, so heavily relied upon by appellants here. At the conclusion of that discussion he summed up: “In short, neither statutory lam guage nor legislative history supports such a broad-ranging interpretation of § 1952 [as urged in Rewis].” Id. at 812, 91 S.Ct. at 1059 (emphasis added). Thus, both the language and the structure of the opinion show that the Court in Rewis considered itself faced with the question of whether to broaden the coverage of the Travel Act beyond the ordinary meaning of its language. In such a situation, where a statute can be liberally interpreted to reach conduct outside its plain language, it is entirely appropriate to look, as did the Supreme Court, to the legislative history to determine whether such an extension would further congressional purposes.

In contrast, when á statute on its face clearly covers certain activity, as in the instant ease, we believe a court should accept the statute as written and avoid plunging into the murky waters of legislative history in an attempt , to fathom whether Congress really intended to reach what the language of its statute does reach. See United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 6 L.Ed.2d 575 (1961); United States v. Barnes, 383 F.2d 287, 289 n. 2 (6th Cir. 1967) cert. denied, 389 U.S. 1040, 88 S. Ct. 780, 19 L.Ed.2d 831 (1968); cf. Dameron v. Brodhead, 345 U.S. 322, 326, 73 S.Ct. 721, 97 L.Ed. 1041 (1953). For, as the Supreme Court has said, “[t]he plain words and meaning of a statute cannot be overcome by a legislative history which, through strained processes of deduction from events of wholly ambiguous significance, may furnish dubious bases for inference in every direction.” Gemsco, Inc. v. Walling, 324 U.S. 244, 260, 65 S.Ct. 605, 614, 89 L.Ed. 921 (1945). See also Ex Parte Collett, 337 U.S. 55, 61, 69 S.Ct. 944, 93 L.Ed. 1207 (1949). Put another way, to look to legislative history in this case would be to no end, since “[w]here the language of a statute is plain there is nothing to construe.” Hengesbach v. Hengesbach, 73 U.S.App.D.C. 1, 114 F.2d 845, 846 (1940).

Furthermore, as Judge Friendly expressed at one point in his Archer opinion, 486 F.2d at 680, we do not believe it is normally a proper judicial function to try to cabin in the plain language of a statute, even a criminal statute, by limiting its coverage to the primary activity Congress had in mind when it acted. See United States v. Roselli, 432 F.2d 879, 885 (9th Cir. 1970), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971). As recently stated by Judge Boreman of this circuit, the proper approach is to “look to the unambiguous words of the criminal statute to determine its meaning and not to the purported intentions of a congressional committee.” United States v. White, 475 F.2d 1228, 1234-1235 (4th Cir. 1973). To do otherwise could lead to great uncertainty concerning exactly what activity is proscribed by a given statute. It could also transform every criminal appeal into a scouring of the legislative history of the relevant statutes to determine whether the legislature addressed itself to the precise activity engaged in by the particular defendant. There is already enough to litigate about without that. Cf. United States v. Miller, 379 F.2d 483, 488 (7th Cir.), cert. denied, 389 U.S. 930, 88 S.Ct. 291, 19 L.Ed.2d 281 (1967); 1 National Commission on Reform of Federal Criminal Laws, Working Papers 37-38 (1970).

Nor does the so-called “rule of lenity,” Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 99 L.Ed. 905 (1955), cited by Mr. Justice Marshall in Rewis, 401 U.S. at 812, 91 S.Ct. 1056, and invoked by appellants here, have any place in our analysis. That “rule,” which requires that criminal statutes be interpreted in favor of leniency to the accused, “only serves as an aid for resolving an ambiguity; it is not to be used to beget one.” Callanan v. United States, 364 U.S. 587, 596, 81 S.Ct. 321, 326, 5 L.Ed.2d 312 (1961). There is no ambiguity in the statute as applied to the facts of this case.

How far Congress should extend federal criminal jurisdiction is a matter of interest and concern to the judicial branch. But resolution of the question is not for us. There is an appropriate role, however, for the executive branch. We agree with Judge Friendly, who said in Archer, 486 F.2d at 678, that the responsibility for keeping federal criminal prosecutions within appropriate bounds for a federal system rests, in the first instance, with United States attorneys under the active guidance of the Attorney General. See Friendly, Federal Jurisdiction; A General View 55-61 (1973).

It should be emphasized that the exercise of prosecutorial discretion is common. The Mann Act fits the adulterer who chooses another state as the place of assignation, but such eases rarely if ever appear in a federal court. When an Asheville, North Carolina, thief steals a car, he has two or more choices of how to drive it to Charlotte — no one of which is better than another. But one way will take him through the edge of South Carolina, and that “happenstance” will undoubtedly invoke the Dyer Act. These two kinds of cases— prostitution and car theft — are triggered identically as is the application of the Travel Act. “The sole reason for conditioning the statutes’ prohibitions upon use of interstate commerce is to provide a constitutional basis for the exercise of federal power.” United States v. Roselli, supra, 432 F.2d at 891.

We think the solution to the problem of expanding federal criminal jurisdiction is not for the courts to deny that the jurisdiction exists and that Congress may implement it but instead for the executive branch to exercise wisely the discretion vested in it by the Congress; We hold, therefore, that when the ordinary meaning of the Travel Act clearly covers an activity, we will not read into the Act any requirement that travel in interstate commerce or use of facilities in interstate commerce be a “substantial” or an “integral” part of the activity. Instead, we will apply the Act as it is written.

II.

As an alternative to their argument that the interstate aspects of LeFaivre’s operation were insufficient as a matter of law to bring the Travel Act into play, appellants contend that the issue of sufficiency of use of interstate facilities should have gone to the jury as a factual question. What we have said previously also disposes of this assignment of error. We hold the district judge correctly charged the jury as follows:

Section 1952 does not require that the use of facilities in interstate commerce have been essential to the gambling business allegedly operated by the Defendants; that use need only facilitate the promotion, management, establishment, or carrying on of the illegal gambling business.

Tr. at 961, quoted in Appendix for Appellants at 117.

III.

The trial judge charged the jury, with respect to both the conspiracy charge and the substantive Travel Act charges, that a guilty verdict required neither a finding that the defendants intended to use facilities in interstate commerce, nor a finding that they knew they were using such facilities.

We think the plain language of § 1952 disposes of the contention of the LeFaivres, who actually cashed the checks involved here, that the statute requires a knowing use of facilities in interstate commerce. Nothing is said about knowledge. The language embraces “[w]hoever . . . uses any facility in interstate or foreign commerce.” There is sufficient mens rea if there is “intent to . promote, manage, establish, carry on, or facilitate the promotion [etc.] of any unlawful activity.” The statute speaks only to the purpose for which one uses interstate facilities, not the knowledge with which one does so. See United States v. Roselli, supra, 432 F.2d at 890-891; United States v. Bash, 258 F.Supp. 807, 809-812 (N.D.Ind.1966), aff’d sub nom. United States v. Miller, supra, 379 F.2d 483.

Appellants Miller and Eckert, who acted only as “telephone girls” in receiving bets, urge upon us that since they handled no checks and thus did not “use” a facility in interstate commerce, their substantive convictions cannot be sustained. They would be right but for 18 U.S.C. § 2 (1970), which makes aiders and abettors principals.

In upholding Miller’s and Eckert’s convictions we necessarily refuse to adopt the reasoning of the Sixth Circuit in United States v. Barnes, 383 F.2d 287, 289-293 (6th Cir. 1967), cert. denied, 389 U.S. 1040, 88 S.Ct. 780, 19 L.Ed.2d 831 (1968), which Miller and Eckert rely upon here. The Sixth Circuit stated that in order to convict one who did not actually use a facility in interstate commerce, it would be necessary to prove that the person “reasonably could be expected to know of the commission of the forbidden acts” by some other participant in the scheme. 383 F.2d at 292; cf. United States v. Salsbury, supra, 430 F.2d at 1049-1050. The court in Barnes in effect adopted a “sliding scale” with respect to the knowledge requirement, in which the degree of knowledge of the interstate element required to convict a defendant would increase the further the defendant was from the actual use of the facilities in interstate commerce. See also Twitchell v. United States, 313 F.2d 425, 429 (9th Cir. 1963), vacated and remanded sub nom. Rogers v. United States, 376 U.S. 188, 84 S.Ct. 637, 11 L.Ed.2d 603 (1964). Appellants Miller and Eckert have paraphrased that argument to say that since they were “peripheral figures” in the gambling scheme insofar as the handling of money was concerned, the jury should have been required to find either actual knowledge or some degree of probability of knowledge on their part of the use of interstate facilities.

We disagree. Since Congress did not require knowing use of interstate facilities on the part of the person who directly violates the Travel Act, we see no justification for requiring that one who aids him in the underlying unlawful activity have more knowledge than he does. Holding Miller and Eckert liable as aiders and abettors despite their lack of knowledge of LeFaivre’s use of interstate facilities is not the same thing, contrary to the Sixth Circuit’s fears, see Barnes, 383 F.2d at 292, as holding them liable for any independent crime committed by LeFaivre in furtherance of the gambling operation and without their knowledge. The reason is simple. The use of interstate facilities is not a crime requiring an additional mens rea beyond that required for participation in the gambling activity itself; it is just an act that confers federal jurisdiction over the underlying gambling activity, and nothing more. In this respect it differs from robbery of a bank' — which LeFaivre might also have done in furtherance of his gambling operation, if he had fallen into debt — because robbery of a bank requires an independent mens rea beyond that involved in the gambling operation itself. Assuming they were unaware of it, Miller and Eckert could not be prosecuted as aiders and abettors of the bank robbery because of this distinction, since an aider and abettor must have the same mens rea as the principal actor. See Snyder v. United States, 448 F.2d 716, 718 (8th Cir. 1971).

Alternatively, we sustain the Travel Act convictions of Miller and Eckert on the rationale of Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), also charged by the trial judge below, Tr. at 963-64, quoted in Appendix for Appellants at 119-20; see Nye & Nissen v. United States, 336 U.S. 613, 618, 69 S.Ct. 766, 93 L.Ed. 919 (1949), that they were willing members of the conspiracy in furtherance of which the acts constituting substantive Travel Act violations were committed.

As a separate point, appellants argue that even if no knowledge of use of facilities in interstate commerce is required for a substantive violation of the Travel Act, such knowledge and even a specific intent to use interstate facilities is necessary for a conspiracy to violate the Travel Act. Appellants’ argument is based on the premise that conspiracy is a specific intent crime: in order to “conspire,” persons must plan to do something specific. While appellants’ premise is indeed black-letter law in most situations, there is presently sharp disagreement over whether or not such conspiratorial knowledge and intent is required with respect to the jurisdictional element of a federal crime. The Sixth Circuit has held that such knowledge and intent is required with respect to the jurisdictional element of the Travel Act, United States v. Barnes, supra, 383 F.2d at 289-293, and the Second Circuit has recently reaffirmed its view that such knowledge and intent is required with respect to the jurisdictional element of all conspiracies to commit federal crimes, United States v. Alsondo, 486 F.2d 1339, 1342-1344 (2d Cir. 1973), cert. granted sub nom. United States v. Feola, 416 U.S. 935, 94 S.Ct. 1932, 40 L.Ed.2d 285 (1974). See also Nassif v. United States, 370 F.2d 147, 152 (8th Cir. 1966). But the Ninth Circuit has decided against any such requirement, United States v. Roselli, supra, 432 F.2d at 891-892, and the drafters of both the Model Penal Code and the Proposed New Federal Criminal Code have proposed its abolition in all cases. See ALI, Model Penal Code § 5.-03, Comment, at 112 (Tent. Draft No. 10, 1960); National Commission on Reform of Federal Criminal Laws, Proposed New Federal Criminal Code § 203(1), Comment, and § 1004(1), Comment 2 (Final Report, 1971). We agree with the Ninth Circuit and with the drafters of the model codes. The jurisdictional element should be viewed for purposes of the conspiracy count exactly as we view it for purposes of the substantive offense — simply as a jurisdictional peg on which to hang the federal prosecution. Whether or not certain conspirators actually anticipate the use of facilities in interstate commerce when they plan their unlawful activity of gambling, bribery, etc., adds absolutely nothing to the dangerousness of their scheme to the public weal. And it is the danger posed by a conspiracy that justifies prosecution of the inchoate “crime” of conspiracy even before any substantive offense has been committed. See United States v. Roselli, supra, 432 F.2d at 891-892 & n. 18. We think the trial judge’s charge on the conspiracy count is correct.

IV.

By way of summary, we hold:

1. In an ordinary case falling within the clear ambit of the Travel Act, it is sufficient to invoke federal jurisdiction that there be some utilization of a facility in interstate commerce and it is not requisite that such use be substantial or integral to the operation of the illegal enterprise.

2. In a prosecution under the Travel Act, whether for a substantive violation or for conspiracy, the government is not burdened with the necessity of proving that accused persons intended to use facilities in’ interstate commerce or even knew of such use, but must show only that a facility in interstate commerce was actually used.

The convictions on all counta will be Affirmed.

      . The indictment charged that during the years 1968, 1969, and 1970, LeFaivre (or other defendants) cashed checks and other negotiable instruments totalling approximately $1,500,000. This figure is an indication of the size of the LeFaivre operation.

      . The issues as framed by appellants are these, with our answers bracketed:
      1. Does 18 U.S.C. § 1952 (The Travel Act) apply to a local gambling operation where the use • of interstate facilities was, at most, the cashing of fourteen checks drawn on out of state banks ? [Yes]
      2. Under 18 U.S.C. § 1952 must the use of interstate facilities be more than minimal or merely incidental to a local gambling operation? [No]
      3. Under 18 U.S.C. § 1952 is knowledge or intent regarding the use of interstate facilities required to any degree? [No]

      . There is no constitutional issue presented on appeal. Since it is assumed that Congress acted within its power we need not concern ourselves with the extent of such power.

      . The statute reads in full as follows :

        Interstate and foreign travel or transportation in aid of racketeering enterprises.

      (a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to—
      (1) distribute the proceeds of any unlawful activity; or
      (2) commit any crime of violence to further any unlawful activity; or
      (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,
      and thereafter performs or attempts to perform any of the acts specified in sub-paragraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.
      (b) As used in this section “unlawful activity” means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics or controlled substances (as defined in section 102(6) of the Controlled Substances Act), or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.
      (c) Investigations of violations under this section involving liquor shall be conducted under the supervision of the Secretary of the Treasury.
      18 U.S.C. § 1952 (Supp.1974).

      . The Seventh Circuit has recently taken issue with this statement from Wechsler. In United States v. Isaacs, 493 F.2d 1124, 1149 (7th Cir. 1974), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974), that court stated its disagreement with the statement “because it suggests that the check need not actually travel interstate.” The court pointed out that the statute explicitly requires some actual use of an interstate facility for the purpose of interstate travel or an interstate transaction, rather than merely the use of an interstate facility for an intrastate purpose. 493 F.2d at 1149 n. 1. We acknowledge the ambiguity, and agree that there must be some utilization of a facility in an interstate transaction to invoke the Travel Act.

      . In their reply brief appellants also cited us to United States v. Isaacs, 493 F.2d 1124 (7th Cir. 1974), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1973). In Isaacs, the government based its prosecution under the Travel Act on the travel in interstate banking channels of three checks received by participants in a bribery scheme and deposited by them at their local banks. Relying on its reading of Rewis, Altobella, and McGormiclc, the Seventh Circuit in Isaacs concluded that the use of interstate facilities was “so minimal, incidental, and fortuitous, and so peripheral” to the activities of the participants in the bribery scheme that the Act could not be applied. 493 F.2d at 1146.

      . See also United States v. Vitich, 357 F. Supp. 102, 104 (W.D.Wis.1973), where Judge Doyle interpreted the Altobella and McCormick decisions as follows:
      From these decisions it appears that there are two predominant factors bearing on the question whether the interstate activities of an unlawful operation bring it within the ambit of the Travel Act: (1) the significance of the role of the interstate activity in the unlawful operation; (2) whether the use of interstate facilities was a matter of happenstance or a conscious decision on the part of the defendant.

      . Justice Marshall’s concern with the purpose of the bettors in traveling interstate, when he was in fact dealing with the convictions of the gambling establishment operators, requires a brief explanation. The government in Rewis had originally prosecuted • both the bettors who traveled interstate and the operators who received them. Only the bettors themselves could be prosecuted directly under the Travel Act, however, since owners of the gambling establishment did not travel interstate or use interstate facilities. In order to prosecute the establishment owners, the government relied upon 18 U.S.C. § 2, the general aiding and abetting statute, on the theory that the establishment owners were aiding and abetting the Travel Act violations of those who traveled interstate to their establishments. The Fifth Circuit reversed the convictions of the bettors under the Act, see 418 F.2d 1218, and the Supreme Court in Rewis summarily affirmed that action, stating simply that “it cannot be said, with certainty sufficient to justify a criminal conviction, that Congress intended that interstate travel by mere customers of a gambling establishment should violate the Travel Act.” 401 U.S. at 811, 91 S.Ct. at 1059. In considering the establishment operators’ convictions, however, Justice Marshall still had to focus on the travel of the bettors, since the aiding and abetting convictions of the operators were derivative of- the alleged violations by the bettors. Thus the focus on the bettors’ travels in the language quoted in the text.

      . Judge Friendly noted in Archer not only that the Travel Act on its face reaches many more activities than the legislative history showed Congress intended to reach, but that the body of the statute was strikingly broader in scope than its title would suggest:
      The title refers only to interstate and foreign travel or transportation; yet the text also includes the use of any facility in interstate or foreign commerce. The title refers only to acts “in aid of racketeering enterprises”; yet the definition of “unlawful activity” in the text displays no such limitation.
      486 F.2d at 678. But just as he acknowledged that courts could not rightly limit an act to Congress’s primary purpose in passing it, he also recognized, as do we here, that “ [i] t would go beyond the proper exercise of judicial power for courts to confine the Travel Act to its title.” Id. at 680, citing Fraser v. United States, 145 F.2d 139, 142 (6th Cir. 1944), cert. denied, 324 U.S. 849, 65 S.Ct. 684, 89 L.Ed. 1409 (1945).

      . In the course of analyzing 18 U.S.C. § 1343 (1970) the Second Circuit has said:
      The use of interstate communication is logically no part of the crime itself. It is included in the statute merely as a ground for federal jurisdiction.
      United States v. Blassingame, 427 F.2d 329, 330 (2d Cir. 1970), cert. denied, 402 U.S. 945 (1971). This court in Salsbury, supra, 430 F.2d at 1048 stated that “the legislative history of § 1952 indicates that interstate facilities, including the mails, are jurisdictional means through which federal officers can assist local law enforcement.” We adhere to that view. See H.R.Rep.No.966, 87th Cong., 1st Sess., reprinted in 2 U.S. Code Cong. & Admin.News, p. 2664 (1961).

      . The Final Report of the National Commission on Reform of Federal Criminal Laws contains a section 207 entitled “Discretionary Restraint in Exercise of Concurrent Jurisdiction.” This is a carefully-worded provision affording federal law enforcement agencies clear guidelines as to whether or not it is appropriate and desirable in a federal system to initiate prosecution in a given case or to leave the matter to the operation of the criminal laws of the states.

      . When the words of the statute, given their normal meaning, do not clearly cover an activity — as was the case in Rewis — our approach will necessarily be different. As did the Supreme Court in Rewis, we will then have to determine whether application of the Act to the particular defendant would further Congress’s purpose in passing the statute, or would instead tend to pervert congressional intent. In such cases we will be governed by the maxim reiterated by the Supreme Court in Rewis itself, that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” 401 U.S. at 812, 91 S.Ct. at 1059, citing Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 99 L.Ed. 905 (1955).

      . To the extent that United States v. Presley, 478 F.2d 163 (5th Cir. 1973), on which appellants rely, suggests that the substan-tiality and essentiality issues should go to the jury, we simply believe that decision is wrong.

      . Congress’s omission of any knowledge requirement with respect to the use of facilities in interstate commerce makes good sense. The use of facilities in interstate commerce is, as we noted above in this opinion, nothing more than the jurisdictional peg on which Congress based federal jurisdiction over the unlawful activities enumerated in the Travel Act. The use of interstate facilities adds nothing whatsoever to the “criminality” of the person who is already engaged in one of the named unlawful activities. Thus, there is no need to require any mental element with respect to use of interstate facilities, since any mental element that Congress did write in would still not be any part of the mens rea of the criminal activity itself. Cf. Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957) ; Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Similar considerations have led Congress to omit any mental element with respect to the jurisdictional component of several other statutes, and have led courts to uphold those statutes as written. E. g., 18 U.S.C. § 201(b)(1) (1970) (bribery of a federal official) ; 18 U.S.C. § 111 (1970) (assault of a federal official in performance of his federal duty) ; 18 U.S.C. § 2313 (1970) (receipt of stolen vehicles moving in interstate commerce). See United States v. Alsondo, 486 F.2d 1339, 1342 (2d Cir. 1973) ; United States v. Jennings, 471 F.2d 1310, 1312 (2d Cir. 1973) ; United States v. Bolin, 423 F.2d 834, 836-837 (9th Cir. 1970) ; National Commission on Reform of Federal Criminal Laws, Proposed New Federal Criminal Code § 204, Comment (Final Report, 1971).

      . The concept of conspiracy as a specific intent crime, regardless of the nature of the underlying substantive offense, was best expressed by Judge Learned Hand in United States v. Crimmins, 123 F.2d 271, 273 (2d Cir. 1941) :
      While one may, for instance, be guilty of running past a traffic light of whose exis-ience one is ignorant, one cannot be guilty of conspiring to run past such a light, for one cannot agree to run past a light unless one supposes that there is a light to run past.


author: TIMBERS, Circuit Judge:

text:
    Clarence BROWN, Plaintiff-Appellant, v. GENERAL SERVICES ADMINISTRATION et al., Defendants-Appellees.
    No. 935, Docket 73-2628.
    United States Court of Appeals, Second Circuit.
    Argued June 14, 1974.
    Decided Nov. 21, 1974.

      Eric Schnapper, New York City (Jeff L. Greenup, Jack Greenberg, James M. Nabrit III, Johnny J. Butler, Joseph P. Hudson and Greenup & Miller, New York City, on the brief), for plaintiff-appellant.
    Charles Franklin Richter, Asst. U. S. Atty., New York City (Paul J. Curran, U. S. Atty., and Gerald A. Rosenberg, Asst. U. S. Atty., New York City, on the brief), for defendants-appellees.
    Before LUMBARD, HAYS and TIMBERS, Circuit Judges.
   TIMBERS, Circuit Judge:

This appeal from a judgment entered September 28, 1973 in the Southern District of New York, Lloyd F. MacMahon, District Judge, dismissing the complaint in an action brought against an agency and officials of the federal government to redress alleged racially discriminatory employment practices presents the questions (1) whether Section 717(c) of the Equal Employment Opportunity Act of 1972 applies retroactively to claims arising before its enactment; (2) whether the statute pre-empts any other federal jurisdictional basis for appellant’s claim; and (3) whether in any event appellant has failed to exhaust administrative remedies. We hold that each of these questions must be answered in the affirmative. We affirm.

I. FACTS

Appellant Clarence Brown, a black, has been employed by the General Services Administration (GSA) Regional Office No. 2 (New York City) since 1957. He has not been promoted since 1966. His current job classification is Communications Specialist, GS-7, Telecommunications Division, Automated Data Telecommunications Service.

In December 1970, Brown was referred for promotion to GS-9 by his supervisors along with two white employees, Ownbey and Trost. All three were rated “highly qualified”. Trost was the only one promoted. Brown filed an administrative complaint of racial discrimination with the GSA Equal Employment Opportunity Office. The complaint was withdrawn, however, after Brown was told that further promotions would soon be available and that he had been denied promotion because of lack of the requisite “voice experience”.

Brown claims that he thereafter acquired full “voice experience”. In June 1971, another GS-9 promotional opportunity opened. Brown and Ownbey again were rated “highly qualified” for the opening. A third white employee also was available. Ownbey was chosen.

On July 15, 1971, Brown filed a second administrative complaint with the GSA Equal Employment Opportunity Office, claiming racial discrimination in the denial of his promotion. An investigative report was prepared. After review, the GSA Regional Administrator determined that there was no evidence of racial discrimination and so informed Brown by letter dated October 19, 1972. This letter also informed Brown that he could request a hearing on his complaint within seven days; but that if he did not make such a request, the determination would become the final agency decision and he would then have the right to appeal the GSA’s decision to the Board of Appeals and Review of the Civil Service Commission (CSC), or to file a civil action in the federal district court within 30 days.

Brown requested a hearing. It was held on December 13, 1972 before a complaints examiner of the CSC. Brown was represented by counsel. On February 9, 1973, the complaints examiner issued his findings and recommended decision. He found no evidence of discrimination and recommended that no action be taken on the basis of the complaint.

By letter dated March 23, 1973, received by Brown on March 26, the GSA Director of Civil Rights rendered the final agency decision that the evidence did not support the complaint of racial discrimination. The letter, pursuant to regulations, included a copy of the transcript of the hearing and of the findings and recommended decision of the complaints examiner. The letter also advised Brown of his options: (1) to file an appeal with the Board of Appeals and Review of the CSC within 15 days after receipt of the letter, in which case he could commence a civil action in the federal district court within 30 days after receipt of the Board’s decision or 180 days after filing the appeal if no decision had been rendered; or (2) to commence a civil action in the federal district court within 30 days after re- ■ ceipt of the letter.

Brown did not file an appeal with the Board. Instead, he commenced the instant action in the district court on May 7, 1973 — more than 30 days after receipt of the letter. His complaint named as defendants the GSA and Brown’s superiors, Joseph A. Daly, Albert Gallo and Frank A. Lapolla.

Basically, Brown’s complaint alleged that he had been denied promotions because of his race. Apparently he sought a promotion to Communications Assistant, GS-9, a supervisory position, and appropriate back pay, although some reference is made in his brief to damages based on discrimination.

The original complaint alleged jurisdiction under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1970); Section 717 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16 (Supp. II 1972); 28 U.S.C. § 1331 (1970); and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02 (1970). The complaint also sought to invoke jurisdiction to secure protection of and redress deprivation of rights secured by 42 U.S.C. § 2000e et seq. (1970) and 42 U.S.C. § 1981 (1970). The complaint demanded “such relief as may be appropriate, including injunctive orders, damages, costs, attorney’s fees and back pay.”

On July 23, 1973, defendants moved to dismiss the complaint on the ground that the court lacked subject matter jurisdiction since Brown had not filed his complaint within 30 days as required by Section 717(c) of the Equal Employment Opportunity Act of 1972 and his action therefore was barred by sovereign immunity.

On September 18, 1973, Brown moved for leave to file an amended complaint. The proposed amended complaint sought to add the CSC and Selbmann, the complaints examiner, as defendants, the original complaint having stated that the CSC had been joined as a party defendant although it was not actually named. The amended complaint also alleged as additional bases of jurisdiction 28 U.S.C. § 1343(4) (1970) and the Tucker Act, 28 U.S.C. § 1346(a) and (b) (1970), and added an allegation that more than $10,000 was in controversy.

In a memorandum opinion filed September 27, 1973, Judge MacMahon held that Brown’s action was barred by sovereign immunity and that the district court therefore lacked subject matter jurisdiction. The judge also denied the motion for leave to amend on the ground that the original complaint had been dismissed and the proposed amended complaint did not change the situation.

The essential questions thus presented are whether Section 717(c) of the Equal Employment Opportunity Act of 1972 is to be applied retroactively to claims arising before but pending .administratively at the time of its enactment; if so, whether that Act pre-empts any other avenue of judicial review; and whether in any event appellant has failed to exhaust administrative remedies.

II. LEGISLATIVE HISTORY AND STATUTORY PROVISIONS

We believe that a key to the resolution of these questions may be found in the legislative history and the statutory provisions that emerged.

Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on race, color, religion, sex or national origin. 42 U.S.C. §§ 2000e-2 to 2000e-3 (1970), as amended (Supp. II 1972). As originally enacted in 1964, however, it did not apply to federal employees. 42 U.S.C. § 2000e(b) (1970). Executive Orders and agency regulations covered their complaints of employment discrimination. In general, the agency itself conducted an investigation and hearing on such complaints. Although the hearing examiner might come from an outside agency, especially the CSC, the head of the employee’s agency made the final agency determination. Appeal lay only to the Board of Appeals and Review of the CSC.

No private right of action was provided for federal employees by Title VII until 1972 when Congress amended the Equal Employment Opportunity Act by adding Section 717(c). The legislative history of this section generally evinces a concern that job discrimination had not been eliminated in the federal government. It indicates the dissatisfaction of federal employees with the complaint procedures available. The committee reports show that Congress was not persuaded by testimony of agency officials that legislation was not needed because a private right of action already existed. They note that, even if such right was available, the federal employee faced defenses of sovereign immunity and failure to exhaust administrative remedies; and, even if such defenses were overcome, the relief available, such as back pay or immediate advancement, was in doubt.

It was against this backdrop that Congress in 1972 provided a private right of action for federal employees who were not satisfied with the agency or CSC decisions. Under Section 717(c), an aggrieved employee may commence an action in a federal district court within 30 days after a final order by his agency on a complaint of discrimination based on race, color, religion, sex or national origin, or within 30 days after a final order of the CSC on an appeal from such an agency decision, or after the elapse of 180 days from the filing of the initial complaint with the agency or of the appeal with the CSC if no decision has been rendered. No appeal need be taken to the CSC. The employee may go directly to court after the agency decision. 42 U.S.C. § 2000e-16(c) (Supp. II 1972), note 1 supra.

III. RETROACTIVITY

Brown’s administrative complaint was filed with the GSA in 1971. It was under agency consideration at the time of the enactment of Section 717(c) on March 24, 1972. The question of retro-activity thus presented is whether the section should be applied to claims of discrimination which arose before its effective date but were awaiting final administrative decision at that time. Retroactivity in this context refers only to the claim; the district court complaint in the instant action was filed on May 7, 1973 — well after the date of enactment.

All parties to this appeal have sidestepped the retroactivity issue. Appel-lees deal with the issue briefly in a footnote by stating that they assume retroactive operation in their arguments here although they have argued otherwise elsewhere. Appellant argues that the section is not applicable to the instant action precisely because he did not file his complaint within the required 30 days and that other statutes provide a jurisdictional basis for his action.

The issue of retroactive application of this statute has resulted in a conflict between the circuits. The District of Columbia and Fourth Circuits have held that Section 717(c) applies retroactively to claims pending at the time of its enactment. Womack v. Lynn, 504 F.2d 267 (D.C. Cir. 1974); Koger v. Ball, 497 F.2d 702 (4 Cir. 1974). The Sixth Circuit has held that it does not. Place v. Weinberger, 497 F.2d 412 (6 Cir.), cert. denied, - U.S. - (1974). The district courts have gone both ways. Compare, e. g., Ficklin v. Sabatini, 378 F.Supp. 19 (E.D.Pa.1974) (retroactive); Henderson v. Defense Contract Administration Services, 370 F.Supp. 180 (S.D.N.Y.1973) (retroactive); Walker v. Kleindienst, 357 F.Supp. 749 (D.D.C. 1973) (retroactive), with Moseley v. United States, No. 72-380-S (S.D.Cal., filed January 23, 1973) (non-retroaetive) ; Hill-Vincent v. Richardson, 359 F.Supp. 308 (N.D.Ill.1973) (non-retroactive).

The conflict as to retroactivity has turned on whether Section 717(c) is to be viewed as providing a new substantive right for federal employees or whether it merely provides a new remedy for enforcing an existing right.

The pre-1972 right of a federal employee not to be discriminated against is said to be found in Congressional enactments, 5 U.S.C. § 7151 (1970), and Executive Orders. Exec. Orders 11246, 11478, note 6 supra. Courts which have adopted the view that Section 717(c) provides a new remedy for enforcing an existing right have held the section retroactive on the grounds that it is remedial, Henderson v. Defense Contract Administration Services, supra, or that it is procedural. Roger v. Ball, supra.

Courts which have refused to give retroactive effect to the statute, aside from rejecting the view that Section 717(c) merely creates a new remedy for a preexisting right, have held that Congress intended only certain portions of the Equal Employment Opportunity Act to be retroactive for the reason that in Section 14 of the Act, 42 U.S.C. § 2000e-5, at 1,257 (Supp. II 1972), there is a specific provision that amendments to one section of Title VII are to be given retroactive effect, and since there is no reference in Section 14 to Section 717(c), the latter should not be given retroactive effect. See, e. g., Place v. Weinberger, supra.

This latter view strikes us as being inconsistent with the underlying principle of Bradley v. School Board of City of Richmond, 416 U.S. 696 (1974). There the Supreme Court held that a statute authorizing a federal court to award attorney’s fees in school desegregation cases should have been applied by the Court of Appeals so as to result in the affirmance of the decision of the District Court which had awarded such fees on the basis of its general equity power, since the statute was enacted after the District Court’s award but before the Court of Appeals’ decision. The rationale of the Supreme Court’s decision was stated as follows:

“We anchor our holding in this ease on the principle that a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.” 416 U.S. at 711.

We believe that this principle applies here. Neither the statute itself nor the legislative history gives any direction as to whether Section 717(c) should be applied to complaints pending within the agency at the time of its enactment. In light of Bradley, we cannot agree with the Sixth Circuit’s holding in Place v. Weinberger, supra, that Congress by its silence as to all sections of the Act except one intended the other sections to have prospective application only. As the Supreme Court stated in Bradley:

“[E]ven where the intervening law does not explicitly recite that it is to be applied to pending cases, it is to be given recognition and effect.
Accordingly, we must reject the contention that a change in the law is to be given effect in a pending case only where that is the clear and stated intention of the legislature . . . . ” 416 U.S. at 715.

While Bradley dealt with a court of appeals’ review of a district court’s decision, we believe that the underlying principle is applicable to a review by a district court of an agency decision. So far as the statutory language and the relevant legislative history are concerned, retroactive application of Section 717(c) would appear to be appropriate.

This does not end our analysis under Bradley. We must determine whether application of a change in law to pending claims “would result in manifest injustice”. 416 U.S. at 711. In each of the cases where Section 717(c) has been applied retroactively, it was done to aid a plaintiff in the prosecution of his complaint. See, e. g., Koger v. Ball, supra. In view of the policy of the federal government against discrimination in federal employment and its encouragement of efforts to eliminate such discrimination in the private and state and local government sectors, such retroactive application of the statute appears sound. If Settion 717(c) is held applicable here, however, Brown’s claim must fall since he admittedly has failed to comply with its 30 day filing requirement.

We hold that there is no “manifest injustice” in the retroactive application of the statute to Brown’s complaint. Twice he was notified in letters from the GSA of the procedure for obtaining court review of the agency decision. Both letters gave notice of the 30 day filing requirement. His counsel have not suggested any excuse for the delay in filing the complaint — either in their briefs, or in oral argument, particularly in response to a direct question by the Court concerning such delay. Instead, his counsel argue that the statute does not apply because Brown has not complied .with it. In a sense he is correct in that he cannot take advantage of the statute because he has not complied with its terms. This failure is fatal to Brown’s claim, since we hold below that Congress intended Section 717(c) to be the exclusive judicial remedy for federal employee discrimination grievances.

IV. PRE-EMPTION

Appellees argue that, whatever may be the merits of the alternative bases for jurisdiction asserted by appellant, they are pre-empted by Section 717(c). Neither the Act itself nor its legislative history conclusively demonstrates that such pre-emption was intended. Congress enacted Section 717(c) to provide a private right of action for federal employees — a right it believed to have been previously nonexistent or so difficult to enforce as to have been in effect non-existent. The most persuasive argument in favor of pre-emption is that the Act constitutes a waiver of sovereign immunity and as such must be strictly construed.

The doctrine of sovereign immunity forbids suits against the government without its consent. Sovereign immunity in the present context involves not only that of the United States but also that of its officers in performing their official functions. As the Eighth Circuit succinctly put it:

“A suit against an officer of the United States is one against the United States itself ‘if the decree would operate against’ the sovereign, Hawaii v. Gordon, 373 U.S. 57, 58, 83 S.Ct. 1052, 1053, 10 L.Ed.2d 191 (1963); or if ‘the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration’, Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); or if the effect of the judgment would be ‘to restrain the Government from acting, or to compel it to act’, Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 704, 69 S.Ct. 1457, 1468, 93 L.Ed. 1628 (1949). . . .” Gnotta v. United States, 415 F.2d 1271, 1277 (8 Cir. 1969) (Blackmun, J.), cert. denied, 397 U.S. 934 (1970).

The court in Gnotta held that demands for promotion and back pay fall within the scope of this immunity as they necessarily involve expenditures from the Treasury and compel the exercise of administrative discretion in an official personnel area. 415 F.2d at 1277. This is precisely the relief demanded in the instant ease.

Sovereign immunity would bar prosecution of this action absent an effective waiver. Congress can impose restrictions on its consent to be sued, Battaglia v. United States, 303 F.2d 683, 685 (2 Cir.), cert. dismissed, 371 U.S. 907 (1962), including limitations on the time within which suit must be commenced. United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353, 1357 (5 Cir. 1972). The consent Congress has given for the instant type of action is set forth in Section 717(c). Such consent is conditioned on compliance with the 30 day filing requirement.

Statutes waiving sovereign immunity are to be strictly construed. But assuming, as appellant argues, that decisions of the Supreme Court illustrate a more liberal attitude with regard to waivers of sovereign immunity at least where a federal agency is concerned, see Federal Housing Administration v. Burr, 309 U. S. 242 (1940); Kiefer & Kiefer v. Reconstruction Finance Corp., 306 U.S. 381 (1939), we cannot ignore the explicit condition imposed by Congress on a suit such as the instant one. It would wholly frustrate Congressional intent to hold that a plaintiff could evade the 30 day filing requirement “by the simple expedient of putting a different label on [his] pleadings.” Preiser v. Rodriguez, 411 U.S. 475, 489-90 (1973).

The instant complaint was filed more than a year after passage of the 1972 Act. Brown had notice of its provisions. He has offered no excuse for failure to comply, nor has he addressed the issue of retroactivity. We find no injustice in requiring compliance with the 30 day filing requirement. On the contrary, to permit suit without compliance with the conditions imposed by Section 717(c) would effectively undermine the strong public policy that requires strict construction of a statute which waives sovereign immunity.

V. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

Finally, even if we were to hold in favor of Brown on the issues discussed above, his claim would fall for failure to exhaust administrative remedies under regulations in effect prior to the 1972 Act. Although he pursued these remedies to the extent of obtaining a final agency decision, he failed to appeal to the Board of Appeals and Review of the CSC. See 5 C.F.R. §§ 713.-231 to .234 (1974), 34 Fed.Reg. 5371 (1969).

Assuming without deciding that exhaustion of federal administrative remedies may not be required in every case of alleged discriminatory federal employment practices, cf. McKart v. United States, 395 U.S. 185 (1969); but see Penn v. Schlesinger, 490 F.2d 700, 707-14 (5 Cir. 1973) (dissenting opinion), rev’d en banc, 497 F.2d 970 (5 Cir. 1974) (adopting panel dissent), there is nothing in the allegations of Brown’s complaint which justifies the “premature interruption of the administrative process.” McKart v. United States, supra, 395 U.S. at 193. The “notions of judicial efficiency” stressed by the Court in McKart are particularly applicable here:

“A complaining party may be successful in vindicating his rights in the administrative process. If he is required to pursue his administrative remedies, the courts may never have to intervene.” 395 U.S. at 195.

For aught that appears in the record before us, we cannot say that an appeal to the CSC might not have resulted in granting the relief sought by Brown. Since he did not exhaust his administrative remedies, however, we have been presented with troublesome jurisdictional questions which must be resolved before the substantive issue of discrimination can even be considered. See Penn v. Schlesinger, supra, 490 F.2d at 712.

Moreover, it cannot be said here that the administrative remedies available to Brown were inadequate or futile. Cf. McKart v. United States, supra, 395 U.S. at 200; Eisen v. Eastman, 421 F.2d 560, 569 (2 Cir. 1969), cert. denied, 400 U.S. 841 (1970). Administrative regulations in effect at the time Brown filed his complaint in the district court (and which remain in effect) provided for retroactive promotion with back pay if discrimination was found. 5 C.F.R. § 713.271(b) (1974), 37 Fed.Reg. 22,717 (1972). This essentially is the relief sought in his federal court action. Nor does Brown claim that he had no notice of the appellate relief available (he received two letters so informing him), or that his attempts to seek administrative remedies were frustrated-. See Penn v. Schlesinger, supra, 490 F.2d at 706.

Under the circumstances of this case, we hold that Brown inexcusably failed to exhaust available administrative remedies.

CONCLUSION

Clearly the federal courts have jurisdiction under Section 717(c) of the Equal Employment Opportunity Act of 1972 to review claims by federal employees of discriminatory employment practices. Brown’s failure to comply with the statutory requirements with respect to appealing to the Board of Appeals and Review of the CSC, or by commencing a timely action in the district court, has presented the threshold jurisdictional issues to which this opinion is addressed. We hold that his failure to commence the instant action in the district court within 30 days of the final agency decision is fatal to his complaint since Section 717(c) operates retroactively and preempts any other avenue of judicial review; and that he has failed to exhaust available administrative remedies. The entire process of administrative review by the CSC and of judicial review within the 30 day period for seeking such review makes no sense at all if an employee may simply ignore the statutory requirements.

-Affirmed.

      . Section 717 (c) of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16(c) (Supp. IX 1972), provides in pertinent part:
      “Within thirty days of receipt of notice of final action taken by [an] . . . agency, or by the Civil Service Commission upon an appeal from a decision or order of such . . . agency ... on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section, Executive Order 11478 or any succeeding Executive orders, or after one hundred and eighty days from the filing of the initial charge with the . . . agency ... or with the Civil Service Commission on appeal from a decision or order of such . . . agency . . . until such time as final action may be taken by [an] . . . agency, ... an employee ... if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title, in which civil action the head of the . . . agency, . . . shall be the defendant.”

      . The provisions for civil actions are set forth in Section 717 (c) of the Equal Employment Opportunity Act, 42 U.S.C. § 2000e-16(c) (Supp. II 1972). See note 1 supra.

      . The position of the GSA is that Brown is a somewhat uncooperative employee and therefore has not been promoted. The substantive dispute, however, is not before us on this appeal. Our decision is limited to the threshold jurisdictional questions presented.

      . Relief available under Title VII and the regulations promulgated thereunder would include retroactive promotion with back pay and attorney’s fees. 42 U.S.C. §§ 2000e-16 (d), 2000e-5(g) (Supp. II 1972) ; 42 U.S.C. § 2000e-5(k) (1970) ; 5 C.P.R. § 713.271(b) (1974).

      . Although the original complaint had alleged jurisdiction under 28 U.S.C. § 1331 (1970), no jurisdictional amount was alleged.

      . See Exec. Order No. 11478, as amended, Exec. Order 11590, 3 C.F.R. 207 (1974), 42 U.S.C. § 2000e, at 10,297 (1970) ; Exec. Order 11246, as amended, Exec. Order 11375, 3 ■ C.F.R. 169 (1974), 42 U.S.C. § 2000e, at 10,294^-97 (1970).

      . See 5 C.F.R. Pt. 713 (1971).

      . Id.; S.Rep.No.92-415, 92d Cong., 1st Sess. 14 (1971), reprinted in Legislative History of the Equal Employment Opportunity Act of 1972, at 410, 423 (1972) (hereinafter cited as Legislative History).

      . H.R.Rep.No.92-238, 92d Cong., 1st Sess. 23-26 (1971), in Legislative History 61, 82-86; S.Rep.No.92-415, 92d Cong., 1st Sess. 14-17 (1971), in Legislative History 410, 421-26.

      . Cf. Petterway v. Veterans Administration Hospital, 495 F.2d 223 (5 Cir. 1974) (Section 717(c) held not applicable to pre-Act claim of federal employment discrimination because complaint was no longer pending in agency at time of enactment and because complaint was filed beyond 30 day period).

      . Section 718 of the Emergency School Aid Act, Title VII of the Education Amendments of 1972, 20 U.S.C. § 1617 (Supp. Ill 1973).

      . It is interesting to note that both the original complaint and the proposed amended complaint invoked Section 717 as one basis of jurisdiction in the district court.

      . In view of our holding, we find it unnecessary to consider appellant’s claims that jurisdiction can be founded on 28 U.S.O. § 1361 (1970) (mandamus) ; the Administrative Procedure Act, 5 U.S.C. §§ 701-06 (1970) ; tbe Tucker Act, 28 U.S.C. § 1346(a) and (b) (1970) ; and 42 U.S.C. § 1981 (1970) and 28 U.S.O. § 1343(4) (1970).