author: LEVENTHAL, Circuit Judge:

text:
    Hazel O. HANEY, Appellant, v. CHESAPEAKE & OHIO RAILROAD COMPANY and Baltimore & Ohio Railroad Company.
    No. 73-1328.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 25, 1974.
    Decided April 10, 1974.

      John H. Wilbur, Jacksonville, Fla., of the bar of the Supreme Court of Florida, pro hac vice, by special leave of Court with whom Frederick C. McAlpin, III, Washington, D. C., was on the brief for appellant. Marion Edwyn Harrison, Washington, D. C., also entered an appearance for appellant.
    Albert W. Laisy, Baltimore, Md., for the bar of the Court of Appeals of Maryland, pro hac vice, by special leave of Court, with whom Laidler B. Mackall, Washington, D. C., was on the brief, for appellees.
    Before LEVENTHAL, MacKINNON and WILKEY, Circuit Judges.
   LEVENTHAL, Circuit Judge:

Appellant sued the Chesapeake & Ohio Railroad and the Baltimore & Ohio R.R. (“Railroads”), her former employers, to recover separation pay alleged to be due under a collective bargaining agreement. The District Court, relying upon Andrews v. Louisville & Nashville R.R., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972), dismissed her complaint for lack of jurisdiction, in view of plaintiff’s failure to utilize arbitration available under the collective bargaining agreement or the Railway Labor Act. Appellant asserts that this case is properly governed by the pre-Andrews law prevailing at the time she was separated and filed the complaint. The pre-Andrews doctrine, established by Moore v. Illinois Central R.R., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089 (1941), and followed in Condol v. Baltimore & Ohio R. R., 91 U.S.App.D.C. 255, 256, 199 F.2d 400, 402 (1952), held that a railroad employee suing his employer for damages for wrongful discharge need not exhaust administrative remedies under the Railway Labor Act. Appellant urges that Andrews, which overruled Moore, should be applied only prospectively, in line with considerations set forth by the Supreme Court in the cases limiting retroactive effect of criminal procedure decisions. E. g., Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).

Although our approach differs from that of the District Court, we affirm its judgment. We conclude that retroactive application of Andrews should not be withheld where, as here, the plaintiff is free to pursue administrative remedies.

I.

In Moore v. Illinois Central R.R., supra, the Supreme Court viewed the grievance adjustment procedures of the Railway Labor Act as an alternative to, and not a precondition of, an action under state law for wrongful discharge. Judicial relief under state law was available, however, only in a suit for damages and not in an action by the employee to compel reinstatement, as became clear from Slocum v. Delaware, L. & W. R.R., 339 U.S. 239, 244, 70 S.Ct. 577, 94 L.Ed. 795 (1950).

The doctrine that state law governed an employee’s claim for damages arising from a discharge was reaffirmed in Transcontinental & Western Air, Inc. v. Koppal, 345 U.S. 653, 73 S.Ct. 906, 97 L.Ed. 1325 (1953). However, the rationale of Moore and Koppal was undermined by later decisions holding that federal substantive law applied to suits under collective bargaining agreements mandated by § 204 of the Railway Labor Act, International Association of Machinists v. Central Airlines, 372 U.S. 682, 83 S.Ct. 956, 10 L.Ed.2d 67 (1963), and § 301 of the Labor Management Relations Act, Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). Their undercutting of the Moore doctrine was noted in Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), which held that an employee must exhaust contract grievance procedures before suing under § 301 of the LMRA for breach of a collective bargaining agreement. The Court discerned in the federal labor law a strong policy favoring settlement of disputes by arbitration. As to the no-exhaustion rule applicable to the Railway Labor Act cases, the Court observed (p. 655, 85 S.Ct. p. 618):

Federal jurisdiction in both Moore and Koppal was based on diversity; federal law was not thought to apply merely by reason of the fact that the collective bargaining agreements were subject to the Railway Labor Act. Since that time the Court has made it clear that substantive federal law applies to suits on collective bargaining agreements covered by § 204 of the Railway Labor Act, International Ass’n of Machinists v. Central Airlines, Inc., 372 U.S. 682, [83 S.Ct. 956, 10 L.Ed.2d 67], and by § 301(a) of the LMRA, Textile Workers v. Lincoln Mills, 353 U.S. 448 [77 S.Ct. 912, 1 L.Ed.2d 972]. Thus a major underpinning for the continued validity of the Moore case in the field of the Railway Labor Act, and more importantly in the present context, for the extension of its rationale to suits under § 301(a) of the LMRA, has been removed.

The Maddox Court, however, declined to overrule Moore, but stated that reconsideration should await a case in which “distinctive features of the administrative remedies provided by [the Railway Labor] Act can be appraised in context, e. g., the make-up of the Adjustment Board, the scope of review from monetary awards, and the ability of the Board to give the same remedies as could be obtained by court suit.” 379 U.S. at 657 n. 14, 85 S.Ct. at 619.

Notwithstanding Maddox, the no-exhaustion rule of Moore was applied in Walker v. Southern Railway Co., 385 U.S. 196, 87 S.Ct. 365, 17 L.Ed.2d 294 (1966), another wrongful discharge case. The Court noted that adjustment procedures under the Railway Labor Act had involved long delays and had offered employees no right to seek judicial review of awards. While new legislation had revised the procedures in 1966 to expedite awards and expand employees’ right of review, the petitioner in Walker could not take advantage of the modifications, and the Court accordingly declined to require exhaustion “in his case.” 385 U.S. at 196, 87 S.Ct. 365.

Despite the signals that its foundation might be weakening, the no-exhaustion rule of Moore may have induced reliance by aggrieved employees as late as the Andrews decision, thus giving rise to a claim of surprise by the old rule’s extinction. Andrews itself was a retroactive application to the petitioner himself, but that is typically the situation in any decision that overrules prior precedents, even though the decision is otherwise given only prospective effect. In Andrews, the Supreme Court did not discuss the problem of upsetting reliance upon the Moore rule, but the petitioner was left with an administrative remedy. The Court was thus able to overrule Moore without extinguishing the employee’s opportunity for relief, in contrast to Walker, where the specter of injustice to the aggrieved employee led the Court to back away from overruling Moore. We believe that Andrews, read in the foregoing context, permits us to consider a claim that its retroactive effect should be withheld where necessary to avoid the kind of injustice produced by leaving an employee who justifiably relied upon the Moore rule without a remedy.

No such injustice is, however, presented by the case at bar. Two administrative tribunals have jurisdiction over the kind of claim she presents — a Special Board of Adjustment established under the collective bargaining agreement between the Railroads and the union which represented appellant while she was employed, and a division of the National Railway Adjustment Board, established under the Railway Labor Act. In either forum, the Railroads may present the same defenses which would be available in a judicial action.

One defense that has been proffered is that appellant’s claim was not presented to the Railroads within the time prescribed by the collective bargaining agreement. We pass no judgment on the merits of that defense, beyond saying that it may be presented to the administrative tribunal on the same basis that it would have been available as a defense if the action were continued in court. What we do maintain as a requirement is a point on which counsel for the Railroads has given us assurance at oral argument: .that the Railroads will raise no claim of laches based on appellant’s delay in taking her case before the administrative tribunal.

Because application of Andrews works no hardship in the sense of leaving appellant without a remedy, we conclude that in light of the strong policy favoring resort to arbitration reaffirmed in that decision appellant should not be relieved of the exhaustion requirement.

II.

Appellant contends that because of the nature of her claim for separation pay, her remedy before the administrative tribunal is not an effective one and urges us to apply the rule that exhaustion is not required where the administrative remedy is inadequate. See, e. g., Steele v. Louisville & Nashville R.R., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944); Order of Railway Conductors v. Swan, 329 U.S. 520, 67 S.Ct. 405, 91 L.Ed. 471 (1947).

The facts which underlie appellant’s contention of inadequacy are these. Appellant’s job as a ticket agent was abolished in June, 1968, as part of a general work force reduction by the Railroads. Eventually the Railroads closed their Washington, D.C. office in 1970. At the time her job was abolished, there were no vacant positions for her at Washington, and she declined to accept work at the Baltimore, Maryland, office, thereby terminating her employment.

Her claim for separation pay is based, in part, on the following provision of a 1967 collective bargaining agreement between the Railroads and the union:

Any employee involved in or affected by the coordination provided for in . [this agreement] who is deprived of employment as a result of such coordination shall be accorded an allowance (hereinafter termed a coordination allowance). .

Section 1(d), Appendix A, Memorandum Agreement of December 2, 1965. A coordination is a “joint action by two or more carriers whereby they unify, consolidate, merge or pool” previously separate operations or services.

The Railroad’s answer to appellant is, in part, that the work force reduction in June, 1968, was necessitated by declining demand for rail passenger service, and was not part of a “coordination” as defined by the pertinent collective bargaining agreements. The Railroads say that a coordination is usually accompanied by a separate agreement between the employer and the affected unions, known as an “implementing agreement,” which specifically defines the rights of affected employees. Implementing agreements were made between the Railroads and the union representing appellant in both 1966 and 1967, but a separate agreement was not negotiated before the Railroads abolished appellant’s position in June, 1968, and the Railroads urge that the absence of such an agreement is dispositive of appellant’s claim on the merits.

In rejoinder, appellant points to the following provision:

If any carrier shall rearrange or adjust its forces in anticipation of a coordination, with the purpose or effect of depriving an employee of benefits to which he should be entitled under this agreement as an employee immediately affected by a coordination, this agreement shall apply to such an employee as of the date when he is so affected.

Appellant contends that her position was abolished “in anticipation of a coordination” and as evidence cites the fact that the Washington, D.C. ticket office of the Railroads was eventually closed, and that certain employees who lost their positions in 1970 were paid separation allowances.

We abstain from intimating any view of the validity of the foregoing arguments as they relate to the merits of appellant’s claim. But we take note of appellant’s contention that the exhaustion doctrine should be inapplicable because an adjustment board cannot be expected to deal adequately with her argument that the Railroads abolished her position “in anticipation of a coordination.” That argument, she contends, can be taken as an assertion that the union failed to exercise diligence by recognizing the Railroad’s anticipated coordination and demanding an implementation agreement to protect the employees. While the composition of an adjustment board — equal numbers of employer and union representatives, and a single “neutral” member available in case of deadlock — is designed to provide a fair forum for the ordinary grievance, the same composition, appellant says, makes for an inadequate forum in which to present an argument that may be interpreted as a charge of union nonfeasance.

In urging that the administrative remedy is inadequate, appellant quarrels not merely with a retroactive application of Andrews, but with the exhaustion requirement itself. In effect, appellant would have us carve out an exception to Andrews whenever an aggrieved employee’s prosecution of his claim runs the risk of making his union an adversary. Although the concern expressed by appellant is plausible, we conclude .that relieving her of the exhaustion requirement would open too large a hole in Andrews, and that the sound course is to require her to seek relief before the administrative tribunal, relying for further protection on the general doctrines of law permitting limited judicial surveillance in an action complaining of administrative abuse. In such an action, a court will have before it a record showing the adjustment board’s response to the complainant's particular case. This avoids the difficulty of appraising the kind of assertions that appellant puts to us, assertions that are, however plausible, nevertheless speculative.

Justice requires a fair tribunal, not one which is optimal from the point of view of a particular party. A change in jurisdiction which results in the transfer of claims from one forum to another is generally deemed to be a procedural change that can be given retroactive effect if the transferee forum has requisite qualities of fairness. Montana Power Co. v. FPC, 144 U.S. App.D.C. 263, 445 F.2d 739 (en banc, 1970), cert. denied, 400 U.S. 1013, 91 S.Ct. 566, 27 L.Ed.2d 627 (1971). This rule applies even when the transfer is from a judicial to an administrative tribunal. Crane v. Hahlo, 258 U.S. 142, 42 S.Ct. 214, 66 L.Ed. 514 (1922). Whether an adjustment board will give adequate consideration to appellant’s particular claim is not an issue that should be prejudged before that tribunal has had an opportunity to act. The features of the adjustment board to which appellant has pointed establish that in light of its difference from a judicial forum, trial tactics may call for a different presentation to the board than appellant would make in court. These differences do not, however, establish inadequacy of the administrative remedy. See Drake Bakeries, Inc. v. American Bakery & Confectionery Workers, 370 U.S. 254, 266, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962).

III.

A decision like Andrews, involving a matter that has been considered and reconsidered in light of reflection over the years, is not to be accorded a niggardly construction. Sound principles of judicial administration conjoined with the salient considerations discussed in that case make it appropriate to require appellant to pursue her grievance adjustment remedies either before a tribunal created by the collective bargaining agreement, or a division of the National Railway Adjustment Board. Appellant’s claim that the Railroads abolished her position in anticipation of a coordination is an argument appropriate for the consideration of a specialized body, well-equipped to provide an understanding of conditions and practice in the industry and to achieve consistency in the disposition of grievances brought by similarly-situated employees.

Affirmed.

      . Koppal involved an air carrier, to which many of the rail carrier provisions of the Railway Labor Act have been made applicable by amendments to the Act, codified at 45 TJ.S.C. §§ 181-188 (1970). That case held that a District Court should refuse to entertain an employee’s suit for severance pay under its removal jurisdiction where the plaintiff had not complied with an applicable state law requirement of exhaustion of contract grievance procedures.

      . Section 204 of the Act, 45 U.S.C. § 184, requires carriers and their employees to es.tablish boards for the adjustment of grievances having jurisdiction not exceeding that of the adjustment boards for rail carriers and employees authorized by 45 U.S.C. § 153 Second.

      . The Railroads argue that Walker in effect overruled Moore with respect to all claims which could be presented as grievances under the modified procedures established by the 1966 amendments to the Railway Labor Act. Decisions in other circuits which the Railroads cite do not squarely support the asserted proposition, but several circuits expressed the view that the 1966 amendments sufficiently corrected the procedural deficiencies to which the Supreme Court referred, to make the Moore rule inapplicable. See Slagley v. Illinois Central R.R., 397 F.2d 546, 549 n. 3 (7th Cir. 1968); Ferguson v. Seaboard Airline R. R., 400 F.2d 473, 474 (5th Cir. 1968); Belanger v. New York Central R.R., 384 F.2d 35, 36 (6th Cir. 1967); Sullivan v. Pacific & Arctic Rwy. & Nav. Co., 439 F.2d 267 (9th Cir. 1971) (holding that contract grievances procedures avoided inadequacies described in Walker); Parsons v. Norfolk & Western R. R., 442 F.2d 1075 (4th Cir. 1971) (holding alternatively that Moore was inapplicable where employee sought adjustment of compensation while continuing employment rather than damages arising from discharge). None of these decisions were cited by the Supreme Court in its Andrews opinion.

      . See, e. g., Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (limiting retroactive effect of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967)); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (limiting retroactive effect of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed. 2d 576 (1967)).

      . If, contrary to the representations of counsel for the Railroads, appellant were to find herself barred from an administrative remedy by laches, her counsel may petition this court for a recall of its mandate. See Greater Boston Television Corp. v. F.C.C. (II), 149 U.S.App.D.C. 322, 330-331, 463 F.2d 268, 276-277 (1971).

      . This definition of a coordination appears in § 2(a) of the Washington Agreement of 1936, an industry-wide collective bargaining agreement, incorporated by reference in the Memorandum Agreement of December 2, 1965.

      . The Railroads’ other arguments against appellant’s claim, going to the interpretation of the collective bargaining agreements, are not relevant here.

      . Section 12, Washington Agreement of 1936, supra note 6.

      . The Railroads, however, respond that a victory by appellant before the adjustment board might establish a precedent leading to recovery by many union members, and thus union representatives on a board might well be predisposed to rule in appellant’s favor.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    CONNECTICUT MUNICIPAL GROUP, Petitioners, v. FEDERAL POWER COMMISSION, Respondent, Connecticut Light and Power Company, Intervenor.
    No. 72-2208.
    United States Court of Appeals, District of Columbia Circuit.
    April 15, 1974.
    Charles F. Wheatley, Jr., Washington, D. C., for petitioners.
    Leo E. Forquer, George W. McHenry, Jr. and Charles J. McLees, for respondent.
    Jerome Ackerman, James R. McCotter, Washington, D. C., James R. McIntosh and Paul F. McAlenney, Hartford, Conn., for intervenor.
    Before TAMM and LEVENTHAL, Circuit Judges.
   PER CURIAM:

The Connecticut Municipal Group moves to reinstate its petition for review of an order of the Federal Powe. Commission which was dismissed for lack of jurisdiction by order of this Court on July 23, 1973. After further Consideration we conclude that the issue which the Connecticut Municipal Group seeks to have litigated is properly reviewable by this Court and accordingly grant the motion. Because of the confusion generated by the Court’s dismissal and subsequent events, and in order to avoid in future cases the delay suffered by the parties in this case, we record in this opinion the accommodation that will be made in prospective cases presenting similar circumstances.

I.

Since 1964 the Connecticut Light and Power Company (CL&P) has sold electricity wholesale to various public agencies in Connecticut represented by the Connecticut Municipal Group (CMG) pursuant to contracts filed with the Federal Power Commission as rate schedules under Section 205 of the Federal Power Act. Fuel adjustment clauses permitted CL&P to pass on increases in cost of fuel without the necessity of filing new tariffs with the FPC.

On August 15, 1971, the President issued Executive Order 11615 which, under authority of the Economic Stabilization Act, initiated Phase I of the Wage-Price Freeze. To implement that executive order with respect to public utilities subject to its jurisdiction, FPC issued Order 437 which prohibited rate increases for the duration of Phase I— from August 15 to November 14, 1971. This suspended operation of CL&P’s fuel adjustment clauses during that period.

By Executive Order 11627 the President delegated to the Price Commission the authority to control price changes during Phase II. In the Price Commission’s regulations, Section 300.016(a) permitted rate increases by public utilities on or after November 14, 1971, provided the increase had been approved by the regulatory agency having jurisdiction over the utility. Section 300.-016(b) allowed rate increases which had been approved by a regulatory agency prior to November 14, 1971, but had been suspended by Executive Order 11615, if reviewed by the regulatory agency and found “consistent with” the purposes of the Economic Stabilization Act.

In response to these regulations, FPC issued Order 437A, which related to rate increases in general by public utilities, and Order 437A-5, which was directed specifically to rate increases under suspended fuel adjustment clauses on file with FPC. Order 437A provided that any rate increases prevented by Phase I would be reviewed for consistency with the purposes of the Economic Stabilization Act and that any rate approved by FPC would be effective as of November 14, 1971. By Order 437A-5, FPC concluded that its* own regulation 35.14, which established the standards for approval of fuel adjustment clauses, was consistent with the purposes of the Economic Stabilization Act and therefore would be employed as the standard for determining whether the suspended clauses were consistent with that Act. In order to reactivate the clauses and increase the electricity rates pursuant thereto, public utilities were directed to certify to the FPC, with supporting data, that rate increases to be made under the clauses complied with Section 35.14.

After reviewing the information submitted by the Connecticut Power and Light Company, on October 12, 1972, the FPC issued Order 437A-12, approving CL&P’s fuel adjustment clauses and, in accordance with Order 437A, authorizing rate increases based on those clauses to become retroactively effective as of November 14, 1971. The order provided that “this date, however, shall be subject to authorization by the Price Commission and we shall so provide.”

Pursuant to Price Commission regulation 300.308(e), which exempted from reporting and certification requirements any rate increases made under fuel adjustment clauses and approved by the FPC, CL&P requested the Price Commission’s concurrence that the rate increase could become effective without its approval. By letter of November 28, 1972, the Price Commission indicated its concurrence. After FPC denied rehearing of Order 437A-12 on December 1, 1972, the Connecticut Municipal Group filed a petition to review that order in this Court. We granted CL&P leave to intervene on February 14,1973.

II.

The question CMG presented to this Court was whether FPC’s approval on October 12, 1972, of an effective date of November 14, 1971, for cost increases under the fuel adjustment clauses constituted retroactive ratemaking in violation of the Federal Power Act. Contemporaneously with the petition filed in this Court, CMG’s members filed an action in District Court which challenged Order 437A-12 both as inconsistent with the Economic Stabilization Act, and as retroactive ratemaking violative of the Federal Power Act.

CL&P and the FPC moved to dismiss the petition on the ground that Order 437A-12 was issued not under authority of the Federal Power Act but solely, under the Economic Stabilization Act, and that only the District Court and the Temporary Emergency Court of Appeals (TECA) had jurisdiction to review the order by virtue of Section 211(a) and (b) of the Economic Stabilization Act. This Court dismissed the petition on July 23, 1973, “for lack of jurisdiction.” No memorandum accompanied the order. It was unclear whether this Court dismissed the petition because no Federal Power Act issues were raised or because the issue of retroactive ratemaking, though perhaps plausible, was so integrated with the price stabilization issues as to make separate reviews in this Court and TECA impracticable.

On October 30, 1973, TECA upheld Order 437-12 on the ground that it was consistent with the purposes of the Economic Stabilization Act. Although the retroactive ratemaking issue was argued before TECA, and although it was aware of this Court’s dismissal of CMG’s petition for review, TECA specifically declined to reach the issue, stating:

We do not reach this issue because we cannot. It is our view that an allegation of retroactive ratemaking raises issues under the Federal Power Act. [citations omitted] This Court is not the proper forum to hear such issues. The law is clear that Power Commission orders which raise Economic Stabilization issues are exclusively reviewable in the District Court, with review in this court. Orders raising Federal Power Act issues are exclusively reviewable in the Court of Appeals.

CMG now returns to this Court for reinstatement of its petition for review challenging Order 437A-12 as retroactive ratemaking that is violative of the Federal Power Act.

III.

Under Section 313,(b) of the Federal Power Act jurisdiction to review FPC orders under that Act is vested exclusively in the United States courts of appeals. In the Economic Stabilization Act of 1970, as amended, however, Congress granted exclusive original jurisdiction to the federal district courts over “cases or controversies arising under this title, or under the regulations or orders issued thereunder.” Appeals from such decisions of the district courts may be taken only to the specially-created Temporary Emergency Court of Appeals.

The possibility of dual jurisdiction to review an agency order under the Economic Stabilization Act and another regulatory statute is not a novel question for this Court. In Municipal Intervenors Group v. FPC, 153 U.S.App.D.C. 373, 473 F.2d 84 (1972), this Court was confronted with a petition to review two FPC orders permitting certain natural gas rate increases. The proposed increases had been filed with FPC before Phase I, but were suspended until October 1971, pending a hearing on the lawfulness of the rates. The issuance of Order 437 further suspended the rates until November 14, 1971, the termination date of Phase I. Pursuant to the Price Commission’s regulations and FPC Order 437A, FPC subsequently issued the two orders permitting the suspended rates to take effect. The only question proposed to be litigated in this Court was whether the orders contravened the regulations of the Price Commission and the purposes of the Economic Stabilization Act. In holding that this Court lacked jurisdiction over the petition for review, the Court observed:

[A] claim that the FPC has erred in its determination that a rate increase is consistent with the Economic Stabilization Act, is a claim arising under that Act, and . . . Congress has made clear an intent for a special and limited judicial review of any such claim of illegality of agency action.

Consequently, jurisdiction to review the orders was restricted to the district courts and TECA.

The Court nevertheless recognized that because utility rates were subject to two types of regulatory controls during the Wage-Price Freeze, questions could arise under two different regulatory statutes, thereby presenting the possibility of two avenues for judical review. However, since the sole issue raised was whether the orders conformed with the Economic Stabilization Act, the occasion to resolve that problem was not presented.

That occasion subsequently arose in Municipal Electric Utility Ass’n of Alabama v. FPC, 158 U.S.App.D.C. 188, 485 F.2d 967 (1973), where petitioners alleged that an FPC order denying petitions to reject new rate filings violated certain provisions of the Federal Power Act and FPC regulations and additionally was inconsistent with the Economic Stabilization Act. Although holding that under Municipal Intervenors Group v. FPC, supra, only the district courts and TECA could entertain the Economic Stabilization Act issue, the Court determined that the Power Act issues created by the order were cognizable exclusively in the United States courts of appeals under the traditional review powers granted by Section 313 of the Federal Power Act. Critical to the Court’s decision was its conclusion that “the issues on appeal arising under the Federal Power Act may be cleanly severed from those that require consideration of the Economic Stabilization Act.”

Left unsettled by these two decisions was the question of which court had jurisdiction over controversies raising Power Act issues which were not “cleanly severable” from Economic Stabilization Act issues. As to that category of cases, the Court in Municipal Electric stated:

We have no occasion to consider what sort of accommodation would be necessary in a case where questions reviewable under the Power Act are inseparably interwoven with matters arising under the Economic Stabilization Act.

Initially, the Court viewed this case as falling within this third category.

Under the Federal Power Act, FPC could not have suspended CL&P’s existing fuel adjustment clauses without a hearing and a determination that the rates charged under those clauses are “unjust, unreasonable, unduly discriminatory or preferential.” Since these prerequisites did not exist in this case, the clauses could have been suspended and subsequently reactivated solely under the authority of the Economic Stabilization Act and its implementing regulations. The question CMG raises is whether FPC’s determination that such reactivation and consequent increased rates could become effective on a date over a year prior to the date of the order constitutes retroactive ratemaking prohibited by the Power Act. The validity of that challenge seemed to turn on the lawful effect of the Economic Stabilization Act and the price control regulations on the Federal Power Act. When the petition for review in this case was dismissed, this question appeared so integrated into an analysis of the purpose and legislative intent of the Economic Stabilization Act that its extraction and separate review by this Court would have frustated the goals of efficient, speedy and consistent review contemplated by the Economic Stabilization Act. Consequently, to preserve the case intact for review by the District Court and TECA, this Court dismissed the petition in deference to the jurisdiction of those courts.

The Temporary Emergency Court of Appeals has now expressed its view that it could decide the price control issues without reviewing the question of retroactive ratemaking, which it regarded as beyond the scope of its jurisdiction. Thus, CMG has been deprived of any judicial consideration of its challenge to Order 437A-12 under the Power Act. This result was not contemplated by this Court when it dismissed CMG’s petition for review. In the interest of justice, see 28 U.S.C. § 2106, we believe it necessary and appropriate to grant the motion to reinstate.

To avoid a recurrence of the confusion and delay suffered by the parties in the instant ease, we take this opportunity to state the accommodation which will be made in future cases where this Court is asked to review an order of the Federal Power Commission raising Federal Power Act issues which appear inextricably interwoven with issues arising under the Economic Stabilization Act. Our course, at least generally, will be to hold our review in abeyance until review by the District Court and TECA is completed. This will permit TECA to dispose of questions under the Economic Stabilization Act. TECA’s disposition under Section 211(a) of that Act will clarify what questions may remain for dispostion by this Court under Section 313(b) of the Federal Power Act. This is a common sense accommodation of the two jurisdictional schemes.

So ordered.

       . Order 437A-12, 48 F.P.C. 837 (Oct. 12,1972).

      . Those agencies, organized under the laws of Connecticut, are the City of Groton, the Borough of Jewett City, the Second and Third Taxing Districts of the City of Nor-walk, the City of Norwich, the Town of Wallingford and the Connecticut Municipal Electric and Gas Association. The Connecticut Municipal Electric and Gas Association is a statewide association of municipally-owned gas and electric utilities.

      . 16 U.S.C. § 824d (1970).

      . 3 O.F.R. § 199 (1972).

      . 12 TJ.S.C. § 1904 note (Supp. II, 1972).

      . 46 F.P.C. 374 (1971), codified as 18 C.F.R. § 2.90 (1972).

      . 3 C.F.R. § 218 (1972).

      . 36 Fed.Reg. 21953-54 (1971), subsequently renumbered Section 300.16(a), 36 Fed.Reg. 23977 (1971).

      . Although Section 300.016(a) originally required utilities to notify the Price Commission of the agency’s approval, it was later amended to reserve to the Price Commission the “right to review and limit the amount of any such requested increase . . . ” 36 Fed.Reg. 22014 (1971).

      . 36 Fed.Reg. 21954' (1971), subsequently renumbered Section 300.16(b), 36 Fed.Reg. 23977 (1971).

      . 46 F.P.C. 1219 (1971), codified as 18 C. F.R. § 2.90a (1972).

      . 46F.P.C. 1308 (1971).

      . 18 C.F.R. § 35.14 (1972).

      . These series of regulations and FPC orders are discussed more elaborately in City of Groton v. FPC, 487 F.2d 927, 929-931 (Em.ApiJ.1973), and Municipal Intervenors Group v. FPC, 153 U.S.App.D.C. 373, 374-375, 473 F.2d 84, 85-86 (1972).

      . 48 F.P.C. 837 (Oct. 12, 1972).

      . Id. at 838.

      . City of Groton v. FPC, C.A. No. 56-73 (D.D.C., filed Jan. 10, 1973).

      . 12 U.S.C. § 1904 note (Supp. II, 1972). Section 211(a) provides in part:
      The district courts of the United States shall have exclusive original jurisdiction of cases or controversies arising under this title, or under regulations or orders issued thereunder, notwithstanding the amount in controversy; . . .
      Section 211(b) (2) reads in part:
      Except as otherwise provided in this section, the Temporary Emergency Court of Appeals shall have exclusive jurisdiction of all appeals from the district courts of the United States in cases and controversies arising under this title or under regulations or orders issued thereunder.

      . City of Groton v. FPC, 487 F.2d 927 (Em.App.1973).

      . Id. at 935.

      . 16 U.S.C. § 8251(b) (1970):
      Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the United States Court of Appeals for any circuit wherein the licensee or public utility to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia.

      . 12 U.S.C. § 1904 note (Supp. II, 1972).

      . Id.

      . Id. As this Court previously has observed, Congress established this unique method of review “in order to prevent the possibility of conflicting rulings by intermediate United States appellate courts, and danger to the anti-inflation program.” Municipal Intervenors Group v. FPC, 153 U.S.App.D.C. 373, 378, 473 F.2d 84, 89 (1972).

      . Note 6 supra.

      . Note 11 supra.

      . 153 U.S.App.D.C. at 379, 473 F.2d at 90.

      . Id.

      . 158 U.S.App.D.C. at 191-192, 485 F.2d at 970-971 (emphasis added, footnote omitted).

      . Id. at 192 n. 15, 485 F.2d at 971 n. 15 (emphasis added).

      . 16U.S.C. § 824e(a) (1970).

      . This Court noted these legislative objectives in Municipal Intervenors Group v. FPC, 153 U.S.App.D.C. at 379, 473 F.2d at 90. They are set forth in the Senate Report to the Economic Stabilization Act amendments, S.Rep.No.507, 92d Cong., 1st Sess. 10 (1971).

      . Note 20 supra and accompanying text.

      . FPC and CL&P regard the instant motion as, in substance, one for rehearing which, by virtue of the time limitation imposed by Fed.R.App.P. 40, they contend is now barred. This argument ignores the equitable power retained by the federal courts to vacate or modify their orders to prevent injustice. See Greater Boston Television Corp. v. FCC, 149 U.S.App.D.C. 322, 361, 463 F.2d 268, 277 (1971).


text:
    WAITERS UNION, LOCAL 781 OF WASHINGTON, D. C., et al., Appellants, v. The HOTEL ASSOCIATION OF WASHINGTON, D. C., et al.
    No. 73-1299.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Feb. 28, 1974.
    Decided April 15, 1974.

      Angelo V. Areadipane, Washington, D. C. , for appellants.
    Ronald Rosenberg, Washington, D. C., with whom Henry Kaiser and Samuel Levine, Washington, D. C., were on the brief, for appellee, Joint Executive Bd.
    Benjamin Gettler, Cincinnati, Ohio, with whom Jonas B. Katz, Cincinnati, Ohio, and Louis Ginberg, Washington, D. C., were on the brief, for appellee, International Union.
    Burton A. Schwalb, Washington, D. C. , with whom Allen G. Siegel, Ronald L. Tish and Stanley J. Brown, Washington, D. C., were on the brief, for appellees Hotel Assn, of Washington et al.
    Before TAMM and LEVENTHAL, Circuit Judges, and GEORGE L. HART, Jr., United States District Judge for the District of Columbia.

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

   LEVENTHAL, Circuit Judge:

This was an action brought by Waiters Union, Local 781 of Washington, D. C. against The Hotel Association of Washington, D. C., Hotel Restaurant Employees and Bartenders International Union, AFL-CIO (“International Union”) and the Joint Executive Board of Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, of Washington, D. C. (“Joint Board”). Briefly, it is claimed that in reversing a previous position and in endorsing a negotiating position giving local bartenders a participation in gratuities paid by customers at receptions, previously available only to banquet waiters, the International Union violated its duty of fair representation under section 9 of the National Labor Relations Act, 29 U.S.C. § 151 et seq. It is further alleged that this position was inconsistent with a provision of the contract between the Joint Board and the Hotel Association; that by implementing the-controversial plan the Hotel Association breached its contract; and that in failing to certify for arbitration Local 781’s claim of a grievance under the contract, the Joint Board violated its duty of fair representation.

The District Court directed verdict for defendants after completion of the plaintiff’s case. (Appendix, 299). The central question arises in the action against the International Union, whether the District Court took full account of the pertinent rule of law, declared in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), as to the scope of the obligation of the union, eorollary to the doctrine of fair representation, “to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” 386 U.S. at 177, 87 S.Ct. at 910. We see no abuse of discretion or error of law.

As to the claim against the International Union, there was no evidence of personal animosity or hostility toward plaintiff Waiters’ Union, Local 78, Washington, D. C., its officers or members. Stipulation, A. 24. The doctrine of fair representation must be applied realistically in the context in which union officials resolve internal disputes, even though a decision in favor of one local or faction, here Bartenders Union, Local 75 of Washington, D. C., arouses keen resentment in the hearts of the other, here the plaintiff Waiters.

The Waiters claim they were not given due hearing. The duty of fair representation implies some consideration of the position of the members involved. As much can be said for any parent who must resolve a quarrel between brothers. But there is no requirement of formal procedures. The fiduciary principle precludes arbitrary conduct, but it must not be stretched so as to “judicialize” the conduct of the affairs of the Union, and to cut athwart a common sense and practical approach toward resolution of problems and disputes that is fair in its essence without being rigid in its procedures.

In the present case there can be no doubt that in fact the officers of the International Union were apprised of the position of the Waiters and gave it due consideration. Indeed, in 1966 the International Union rejected the request of the local bartenders that they be given a participation, along with banquet waiters, in gratuities paid by customers at receptions. This did not bind the Union to continue to reject that position. After the bartenders appealed the issue in 1969, Mr. Miller, the International Union’s general president, spoke to Mr. Karath, chief executive officer of Local 781, a number of times on the telephone, and Mr. Karath stated reasons why the appeal should be dismissed (Stipulation, A. 24). While Mr. Miller ordered the Joint Board to put forward a tip-sharing claim in negotiations with the Hotel Association on March 14, 1969, it was not until after a long meeting with Mr. Karath on July 26, 1969, that Mr. Harvey Morse, for the Union, advised the Hotel Association of Washington, D. C. that this was not a matter for the Hotel Association, but an internal matter for the Union.

While it would have been better practice, in view of the fact that International Union was reversing a previous position, to have scheduled a conference with the Waiters Local before Mr. Miller framed the issues to be submitted for negotiation, the Waiters Local did not present substantial evidence that there was no meaningful or adequate opportunity for consideration of their position. Nor is there any basis for speculating that the consideration given to the Waiters was only perfunctory. The context of this case is that Mr. Miller’s 1966 rejection of the Bartender’s claim was on the ground that it “would set a bad precedent” for bartenders’ unions elsewhere in the United States (A. 333-4). After that came the bartenders’ submission of the practice of tip-sharing in other cities. And Mr. Karath admitted at trial that in banquet cities that he had previously identified as denying tip-sharing there was in fact tip-sharing.

As to the claim against the Joint Board and the Hotel Association, there was certainly nothing arbitrary about their position that the contract precluded the presentation of a claim against the Hotel Association, which was flatly assured in contract negotiations that the issue would involve no additional expense to the hotel owners. The provision in Section 20, Article XIII of the collective bargaining agreement was considered to be applicable only in areas not specifically governed by express provisions in the agreement. This view was entirely reasonable, as was the corollary view that the Joint Board could not in good conscience put forward a claim under the contract or a request for arbitration.

,We have no occasion to consider whether plaintiff’s claim was of a nature that would have entitled it to a jury trial if substantial evidence in support of the claim had been adduced.

Affirmed.

       “No employee shall suffer a reduction in salary, adverse change in working conditions, or the loss of any benefit now enjoyed by him or her as a result of this Agreement . . . .” (A. 318).


author: GASCH, District Judge: BAZELON, .Chief Judge

text:
    UNITED STATES of America v. Walter E. FERGUSON, Appellant. UNITED STATES of America v. Walter Edward FERGUSON, Appellant.
    Nos. 72-1369, 72-1370.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 13, 1973.
    Decided April 16, 1974.
    As Amended April 16, 1974.
    Rehearing En Banc Denied July 17, 1974.
    Certiorari Denied Oct. 21, 1974.
    See 95 S.Ct. 183.

      David G. Larimer, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.
    George B. Driesen, Washington, D. C. (appointed by this Court), for appellant.
    Before BAZELON, Chief Judge, WILKEY, Circuit Judge, and GASCH, United States District Judge of the United States District Court for the District of Columbia.

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

   GASCH, District Judge:

This case involves appellant’s conviction for sale of narcotics under 26 U.S. C. §§ 4705(a), 4704(a), and 21 U.S.C. § 174. Appellant raises four questions, two of which are principal issues here: first, whether the trial court erred in not dismissing the indictments on the grounds that the government failed to fulfill its promise to identify and produce at trial the informant who allegedly purchased the narcotics from the appellant, and second, whether the appellant was denied his right to a speedy trial. Of lesser importance are issues of the missing witness instruction and sentencing.

On August 27, 1969, a District of Columbia grand jury handed down an indictment charging appellant with having sold a narcotic drug to “a certain individual” in the District of Columbia “on or about May 20, 1969,” in violation of the federal narcotics laws. On September 12, 1969, appellant was arraigned and placed on bond. Appellant’s retained counsel encountered disciplinary problems and became unavailable shortly after commencing to prepare this case for trial, and on December 15, 1969, the trial court appointed other counsel to represent appellant. On April 2, 1970, appellant retained new counsel and the trial court thereafter relieved appointed counsel.

On June 9, 1970, a grand jury in the District of Maryland handed down a ten-count indictment charging appellant and another individual, inter alia, with similar violations of the federal narcotics laws alleged to have occurred in Maryland on May 19, 1969. After the issuance of a bench warrant, appellant was finally arrested and later arraigned in the United States District Court for the District of Maryland on November 6, 1970.

On November 19, 1970, appellant’s Maryland counsel filed a motion to transfer the proceedings to the District of Columbia. On January 20, 1971, the government requested a hearing on the pending motion, and on May 14, 1971, a status conference was held in Baltimore before Judge James R. Miller, Jr. After obtaining the consent of his codefendant, appellant filed another request to transfer the proceedings to this jurisdiction. The government agreed with appellant’s request, and the Maryland federal court transferred the proceeding to the District of Columbia on June 22, 1971.

On July 22, 1971, the court below held a hearing on appellant’s motion to disclose the informant’s identity and his motion to dismiss for want of a speedy trial. At that time, the government resisted disclosure of the informant’s identity, arguing that such disclosure prior to trial would endanger his safety. The court ruled in favor of the government, noting that if the informant’s identity were revealed at that time it would certainly decrease his chances for survival. Appellant’s motion to dismiss for want of a speedy trial was also denied.

On October 15, 1971, appellant and his codefendant were arraigned on the transferred case and the two cases were consolidated for trial. On October 27, 1971, a bench warrant was issued for appellant. On November 1, 1971, the government announced that it was ready to proceed on the District of Columbia indictment, but stated that it had lost contact with the informant, whose identity was then revealed. The government indicated that he probably would not be available to testify. Appellant then moved to dismiss the indictment. The court below denied the motion to dismiss, and further denied appellant’s renewed motion to dismiss for want of a speedy trial. The bench warrant was later executed on November 5, 1971, the appellant was committed and the jury trial commenced on November 10, 1971. Appellant was convicted, and sentenced on March 23, 1972, to five years on count one, two to ten years on count two, and five years on count three on each of the two indictments. Count one of the District of Columbia indictment was to run consecutively to count one of the Maryland indictment. Counts two and three of the respective indictments were to run concurrently with count one of the indictments.

I.

Relying primarily on Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), appellant argues that the trial court committed reversible error in not dismissing the indictments on the ground that the government informant, who was present during the narcotics transaction, was not available for the trial in this case. In Roviaro, the Supreme Court decided that under certain circumstances, the withholding of an informant’s identity and his failure to testify at trial could result in such grave prejudice to the defendant that the government’s case must be dismissed. The Court emphasized the fact that such a determination can only be made with respect to the facts of each particular case:

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.

353 U.S. at 62, 77 S.Ct. at 628.

In reviewing the totality of the circumstances in this case, we must begin with those circumstances that caused the conviction of Roviaro to be reversed. Roviaro had engaged in a narcotics transaction with an informant, during which a Chicago police officer lay secreted in the trunk of the informant’s car. There were no immediate witnesses to the sale, although two federal agents and a second police officer observed from a distance. Thus, the informant was an integral part of setting up the crime, and the Court found that, in the absence of other witnesses, was the only means by which the appellant could explore any possible entrapment by the government.

The facts in the case now before us distinguish it from Roviaro. The most significant distinction is that in Roviaro the government refused throughout to disclose the identity of the informant. Here, the government represented to the Court that the informant would appear as a witness for the government and that his identity was being withheld for reasons of his safety. Here, ten days before the trial, the government did reveal the identity of the informant and disclosed further that the government had lost touch with him. Unlike the situation in Roviaro, the government did not refuse this information throughout the course of the trial. The record further reveals that the government planned to call the informant at trial as a witness. This it had done in prior cases in which this informant had been of assistance. The government suggested, and the District Court ruled, that it was unnecessary and inappropriate to disclose the informant’s identity prior to trial because it would undoubtedly jeopardize the informant’s life. Considering the government’s need for a continuing flow of information on the narcotics traffic, the obvious perils inherent in the narcotics traffic and the dangerous role played by an informant, we find that the lower court’s determination to postpone disclosure until the time of trial was not unreasonable under the circumstances. The dissent indicates that since the government had produced this informant as a witness in the TantilloJackson conspiracy that it should have offered an explanation as to why it would have been unsafe to disclose his identity prior to the time it expected to call him in this case. It seems clear that if an informant is the target of one group of narcotics violators in one case, he would be more, not less, vulnerable when his identity is revealed in a second case. Certainly he should not be considered out of danger because he had concluded his testimony in the TantilloJackson case. The risk to the informant’s safety would be materially increased because the revelation of his identity would give the underworld from which illicit narcotics flow a stronger motive for eliminating him. Apparently the informant has been eliminated.

Since in the instant case the informant’s identity was revealed ten days before the trial, the Roviaro case cannot be relied on for the immutable proposition that the absence at trial of an informant who was an active participant in the narcotics transaction necessarily requires the sanction of dismissal.

The dissent points to this Court’s decision in United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971). In that case a recording of a conversation between a narcotics agent and the appellant had unaccountably been lost. This Court called upon the government to provide procedures for the safeguarding of such Jencks material and held that in the future unless such procedures were established so that discoverable evidence might be preserved, sanctions for nondisclosure will be invoked. The spirit of Bryant, the dissent says, should be applied to the clearly distinguishable situation with which the Court is confronted in the instant case. We disagree. It is one thing to safeguard such inanimate objects as recordings of conversations. It is quite another to require that government witnesses be secured for the purpose of a future trial. Witnesses, like defendants released on bond, do disappear. The sanction of dismissal in a case in which the government satisfied the trial judge that it had exercised reasonable care to safeguard the informant should not be invoked under the circumstances of this case. In the more recent case of United States v. Perry, 153 U.S.App.D.C. 89, 471 F.2d 1057 (1972), in a situation also involving a lost Jencks Act statement, we took a somewhat different position than in Bryant. We emphasized that unless the interests of justice will be furthered by penalizing the government, then the penalty is not to be invoked automatically as in an adversary game. We also said that “[I]n order to exclude testimony [under the Jencks Act], there should be a showing of either negligence or purposeful destruction accompanied by either bad motive or bad judgment.” The trial court’s decision to exclude the witness’ testimony in Perry for the reason that the grand jury transcript of her testimony had been lost was reversed and the case remanded. Here, the sanction sought is dismissal of the indictment. Clearly such a drastic penalty on the showing made in this ease would not be in the interest of justice. In Perry, we said, respecting Bryant, that “even though Jencks Act information has been lost or destroyed

criminal convictions otherwise based on sufficient evidence may be permitted to stand so long as the Government made ‘earnest efforts’ to preserve crucial materials and to find them once a discovery request is made.” (Footnote omitted; emphasis in original).

Here, the record discloses that the trial judge was satisfied with the representations made by the government concerning efforts to locate the missing witness. It is noted that appellant has made no showing that the missing informant would have been of any assistance to the defense. This informant testified for the government in the Tantillo-Jackson case and had been of assistance to the government in other matters. That such a witness as this would have helped the defense is sheer speculation.

The second distinction between Roviaro and this case is that in Roviaro the informant was the only close witness to the transaction. Other government witnesses were positioned at some distance, and one was secreted in the trunk of the informant’s car. In the instant case appellant could have called a Miss Kathleen Phillips, who was present with Agent Cooper on the May 20, 1969, transaction. The presence of Agent Cooper may not remove the doubts expressed in Roviaro that the appellant would not, without the informant, be able to explore a possible, entrapment by the government, but while we would not expect government witnesses to perjure themselves, we note in the presence of Miss Phillips a means by which the appellant might seek to present testimony about the transaction that would disclose any indications of entrapment. Although appellant chose not to put Miss Phillips on the stand, she was available to testify on this point, and we feel that her availability is sufficient . to overcome any doubts concerning the transaction on May 20, 1969. .

Another distinction is that in Roviaro one. government witness testified that the informant had denied knowing Roviaro and said that he had never even seen him before. This testimony may have carried considerable weight with the Court, casting doubt on the soundness of the government’s case. Here, there has been no such testimony or similar doubts respecting, the government’s case.

Here, the government represented in good faith that it would produce the informant at the time of trial and call him as a witness as it had done in other comparable cases. Ten days before the trial, government counsel disclosed that it had lost contact with the informant and that efforts to locate him were to no avail. His identity was revealed. Since this man had testified for the government in the Tantillo case, there is little or no reason to believe that his testimony would have been of any assistance to the defense in this case.

In sum, considering the circumstances of the instant case, we conclude that the appellant’s contention for reversal of his convictions on the authority of Roviaro is unsound.

II.

As to the speedy trial claim, this Court must once again apply a balancing test. That test was set forth by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972):

A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. (Footnote omitted).

Id. at 530, 92 S.Ct. at 2192. See also, United States v. Bishton, 150 U.S.App.D.C. 51, 53-54, 463 F.2d 887, 890 (1972); Hinton v. United States, 137 U.S.App.D.C. 388, 392, 424 F.2d 876, 880 (1969); Hedgepeth v. United States (Hedgepeth II); 125 U.S.App.D.C. 19, 21, 365 F.2d 952, 954 (1966).

In order to facilitate the balancing of all factors, a review of the key dates in this case may be helpful.

Date Event Months Elapsed
May 19-20, 1969 Narcotics transactions 0
Aug. 27, 1969 D. C. indictment 3
Sept. 12, 1969 Appellant arraigned in D.C.; retained counsel enters appearance 4
Dec. 15, 1969 Second attorney appointed after retained counsel was vacated 7
Apr. 2, 1970 Appellant retains new counsel 11
June 9, 1970 Maryland Indictment 13
Nov. 19, 1970 Appellant's Maryland motion to transfer 18
Jan. 20, 1971 Government requests hearing 20
June 24, 1971 Appellant's motion to transfer to D. C. granted 25
Nov. 10, 1971 Trial 30
March 23, 1972 Sentencing 34

As can plainly be seen, the time period between appellant’s initial apprehension by the police and trial was 26 months. This delay is clearly suspect; but analysis of the various delays involved show that a speedy trial contention is unsound.

First, appellant went through two changes of counsel, finally retaining his permanent counsel on April 2, 1970, seven months after his arrest. Of course, the government cannot be held responsible for appellant’s difficulties in securing legal representation. See United States v. Moss, 141 U.S.App.D.C. 306, 308-309, 438 F.2d 147, 149-150 (1970). Next, appellant attempted to transfer the Maryland indictment to the District of Columbia on November 19, 1970, but acknowledged that his Maryland codefendant, Miss Phillips, opposed; it was not until June 18, 1971, that his codefendant agreed. This additional seven-month delay should not in fairness be charged to the government, though it is not entirely attributable to the appellant.

The remaining periods to consider are, first, the seven months from the time appellant retained counsel (April 2, 1970) to appellant’s motion to transfer (November 19, 1970). Logically, some of this time must be charged to appellant in order to give his retained counsel a chance to gain familiarity with the case. Furthermore, during this time, various motions were filed by appellant in his District of Columbia case, including a motion to dismiss for lack of speedy trial and a motion for discovery. The fact that the U. S. Attorney in Maryland filed an indictment during this period (June 9, 1970), only complicated the issues, and led to the continuance of the District of Columbia case until the appellant’s motion to transfer from Maryland was acted upon. However, in sum, this period of delay was hardly “arbitrary, purposeful, oppressive or vexacious.”

Lastly, there is the five-month period from transfer to trial (June 22, 1971, to November 10, 1971). During this period there were three hearings and an arraignment on the transferred case; the government sought no continuances. In light of these circumstances, and considering the inevitable “institutional delay” of a trial court’s calendar, we cannot say that this portion of the delays impaired appellant’s right to a speedy trial.

Two further points remain here. First, appellant contends that he suffered irreparable prejudice due to the delay, because he was unable to discover and secure the testimony of the informant. While the appellant may have had some additional difficulties because of the delay, we cannot say that it substantially prejudiced appellant’s defense. In light of the informant’s prior conduct of assisting the government in apprehending and convicting narcotics dealers, it is not reasonable to conclude that the informant would reverse his previous course and provide any significant aid to the defense. The informant was to be a government witness; delay impaired the prosecution, not the defense; without the delay the informant would have been available and would have testified. Second, considering the strength of the government’s case, it is unlikely that the informant’s expected testimony would have altered the ultimate result. Even assuming that appellant was prejudiced by the delay in the proceedings below, it is mostly attributable to him since he was largely responsible for initiating the motions and procedures which resulted in the delay and the eventual absence of the informant at trial. Consequently, appellant “either contributed to, acquiesced in, or suffered little prejudice from these lapses.” It should be noted that appellant was on bail except for a period of about one week prior to trial.

Thus, having taken all factors into account in light of Barker v. Wingo, we conclude there has been no deprivation of the right to a speedy trial. In United States v. Holt, 145 U.S.App.D.C. 185, 448 F.2d 1108 (1971), mentioned by the dissent in footnote 12, the delay between arrest and trial was 30 months. This Court affirmed the conviction.

III.

As to appellant’s missing witness point, we believe the trial court acted well within its discretion in refusing to instruct the jury on the implications of the absence of the informant. Burgess v. United States, 142 U.S.App.D.C. 198, 440 F.2d 226 (1970), indicates the nature of this discretion :

When the court is asked to give the instruction, then, a judgment is to be reached as to whether from all the circumstances an inference of unfavorable testimony from an absent witness is a natural and reasonable one. . While the context in which the question arises may clothe the missing witness with significance, there is the danger that the instruction permitting an adverse inference may add a fictitious weight to one side or another of the case. . . . [T]he court is entitled to reserve to itself the right to reach a judgment as wisely as can be done in all the circumstances. . . .

In light of the trial court’s finding that the informant was not available, and therefore not “peculiarly within [the government’s] power to produce,” there was no error in refusing to give such an instruction.

IV.

Finally, on the point of sentencing, we do find that appellant has a valid objection. There clearly was intended to be one sale of narcotics; however, due to some misunderstanding, the full quantity of narcotics purchased was not delivered on May 19, 1969. Thus, the May 20, 1969, exchange, we believe, should be treated as part and parcel of the May 19 sale, and concurrent sentences should be imposed rather than consecutive ones under count one of each indictment.

The government’s reliance on Harris v. United States, 359 U.S. 19, 79 S.Ct. 560, 3 L.Ed.2d 597 (1959); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958), and Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), is misplaced, as these cases involved consecutive sentencing under different sections of narcotics laws for one sale or transfer of narcotics. The Court’s rationale in that line of cases has been that Congress enacted those statutes at different times, each time with a specific legislative purpose being served. The connection between these cases and the one at bar, where consecutive sentences were imposed under the same narcotics statute (26 U.S.C. § 4705(a)) for a two-part transaction, is not compelling. Further, because the Maryland indictment was transferred to the District of Columbia and consolidated for trial with the District of Columbia indictment, the mere fact that the exchanges occurred in different jurisdictions does not require the imposition of consecutive sentences.

The conviction of appellant is hereby affirmed, and the case remanded to the District Court for resentencing.

BAZELON, .Chief Judge

(dissenting) :

Appellant’s main contentions on appeal are: (1) that the trial court erroneously denied his motion for pre-trial discovery of the identity of the government informant to whom he allegedly sold narcotics; and (2) that he was denied a speedy trial by the lapse of twenty-seven months between his indictment and trial which resulted in the loss of the government informant. The majority rejects these claims. I respectfully dissent from both holdings of the court.

I.

Appellant allegedly agreed to sell one ounce of heroin to a police informer in Maryland on May 19, 1969. After the transaction was completed, the informer, and a police officer with whom he was working, discovered that they had only received half of an ounce; accordingly, another meeting was set up with appellant on the following day, May 20, 1969, in the District of Columbia, so that the, other half ounce could be delivered.

On August 27, 1969, appellant was indicted in D.C. for the May 20 transaction; and on June 9, 1970, almost one year after the D.C. indictment, he was indicted in Maryland for the May 19 transaction. On November 19, 1970, his Maryland counsel moved to transfer the Maryland case to D.C. so that it could be consolidated with the D.C. case. On June 22, 1971, the Maryland district court granted the motion for transfer.

Before return of the Maryland indictment, appellant filed a motion in the D. C. case on April 23, 1970, requesting “the name, home and business address, and corresponding telephone number of the ‘certain person’ [i. e. the informant] noted in the indictment.” Fifteen months later, on July 22, 1971, the U. S. Attorney informed Judge Robinson at a status hearing that he did not plan to disclose the identity of the informant because “we do not feel that we have to, or his whereabouts.” The following colloquy ensued:

The Court: What is the government’s problem with the informant?
U. S. Attorney: Problem with the informant, Your Honor?
The Court: I do not think it is sufficient for the government to say that they just do not want to reveal the name, because there are circumstances under which it will be revealed prior to trial.
U. S. Attorney: It will be revealed at trial. The government does not intend to identify him, unless Your Honor orders that we must. (Emphasis supplied.)
The Court: I want to know why I should not.
U. S. Attorney: Because of his safety.
The Court: I think I have an obligation to establish a record upon which a judgment can be made, counsel. I do not think the government can come in here and just say, “Well, we do not want to.” (Emphasis supplied.)

After repeated assurances that “at the time of trial [the informant] will be identified. He will testify in this ease,” and that “if something were to happen to [the informant], it would certainly impair our ability to proceed to trial,” the court, concerned for the safety of the informant, agreed that his identity need not be revealed until trial.

The court next considered appellant’s motion for dismissal of his D.C. indictment for lack of a speedy trial. Appellant pointed out that “some twenty-seven months have elapsed since [the time of the offense.] ” He also stated that “the only way, real way, that we could be prejudiced is if, unfortunately, something happened inadvertently to either [the police officer] or the informer.” The court denied this motion noting that no prejudice had resulted from the delay, and that much of the delay was due to the transfer of the Maryland case to D.C.

At a subsequent hearing on November 1, 1971, before Judge Walsh, a different U. S. Attorney indicated that “the informer will not testify in this case. He is not available for testimony in this case.” Apparently the informer, who had testified in several other narcotics cases, had disappeared out of fear of reprisal. The prosecutor claimed that despite diligent efforts to locate him, they had “lost him, so to speak,” and that “[t]o my knowledge the government has been willing, certainly since the end of the Tantillo conspiracy case which was tried in the [sic], in 1970 to advise counsel if he so chose to find out, the name of the informant.” The U. S. Attorney who had appeared at the earlier hearing before Judge Robinson was also present at the November 1 hearing. He corrected his colleague, and informed the court that although the informer was identified in the Tantillo case, “the man’s safety was involved and we didn’t care to divulge [his identity at the July 22 hearing] and the court did not require us to.”

On November 10, 1971, the day of trial, the court denied appellant’s motion for a dismissal of his indictment on the ground that he was denied a speedy trial due to the lengthy delay attended by the loss of the informant. Appellant was then convicted by a jury on all three counts of each of the two indictments. He received a five year sentence on counts one and three of each indictment, and a two to six year sentence on count two of each indictment. The sentence on count one of the D.C. indictment was imposed consecutive to that on count one of the Maryland indictment; all other sentences were imposed concurrently.

II.

Appellant claims that at the July 22, 1971, hearing the government prejudiced his rights under Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), by withholding important information, and making a critical representation without adequate investigation. I .believe: (A) the majority fails to address this claim because it attributes a different Roviaro claim to appellant; and (B) the claim appellant makes is meritorious.

A.

Although appellant contends that he was prejudiced by the government’s actions “because the informer was not identified before trial,” the majority opinion nevertheless asserts that “appellant argues” there was “reversible error” because the “informant was not available for the trial.” (Emphasis supplied.) The majority’s justification for refusing to consider appellant’s claim for pre-trial disclosure, and the effect of the government’s actions thereon, is that:

revealing, the identity of the informant is only a step to enable the appellant either (1) to obtain the informant’s testimony at trial, incident to which counsel would seek to interview him prior to trial, or (2) to reconstruct in the appellant’s mind the appellant’s relationship and contacts with the informant, and perhaps offer the testimony of third parties as to appellant’s relationship with the informant.

Roviaro, itself, however, specifically identifies still a third reason for pretrial disclosure that the majority ignores :

The desirability of calling [the informant] as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the Government to decide. 353 U.S. at 64, 77 S.Ct. at 629 (emphasis supplied).

The Supreme Court’s use of the disjunctive “or” indicates that the defendant has the right to interview an informant irrespective of whether he intends to call him as a witness. Indeed, as this court recognized in United States v. DeCoster, 487 F.2d 1197 (C.A.D.C.1973), unless counsel interviews a witness he obviously is unable to make an informed decision as to whether to call him to testify.

The majority also justifies its refusal to consider appellant’s claim for pre-trial disclosure by resting on the speculation that if “the informant [had been revealed] earlier, . . . [he] still would not have been present at trial; [he] probably would have been eliminated [i. e. murdered] sooner.” This assertion is wholly unsupported in the record; so far as the present record reveals, earlier disclosure may well have assisted appellant to secure the informant’s presence at trial, if appellant so chose.

In short, the court was plainly required to consider whether appellant’s right to pre-trial disclosure was abridged because appellant’s opportunities to interview the informant in preparation for trial and to call him as a witness were prejudiced by the delay in disclosure.

B.

It is well settled that when an informant is “an active participant” in the criminal transaction — as he was in this case — his identity must be disclosed; thus, the question here is simply when was disclosure required. In Roviaro, in a factual setting remarkably similar to the present. case, the Court held that “the [trial] court erred also in denying, prior to trial, petitioner’s motion for [the identity and address of the informant] . . . [s]ince ... it was evident from the face of the indictment that [the informant] was a participant in and a material witness to th[e] sale.” 353 U.S. at 65 n. 15, 77 S.Ct. at 630 (emphasis supplied). Despite this plain language, however, we need not decide whether Roviaro intended to set down an inflexible rule requiring pretrial disclosure when the informant is a participant. For even if Roviaro permits a delay of disclosure in order to protect the informant, such delay clearly may not prejudice the defendant’s opportunity to interview him, as it did in this case.

Although the trial court attempted to “establish a record” at the July 22 hearing on which to decide appellant’s motion for pre-trial disclosure, the government failed to reveal that the informant had testified at several other trials. This fact was critically relevant to the court’s determination of whether delay was required to protect the informant since he was already known to the narcotics underworld. It also bore on the likelihood that the informant might leave this jurisdiction and “relocate,” and for that reason, too, it was important to a determination regarding the timing of disclosure.

Moreover, at this same hearing, the U. S. Attorney repeatedly assured the court that the informant would be present at trial, thereby giving the impression that the government knew the informant’s whereabouts and had some means by which to secure his presence at trial. This representation was apparently made without contacting the Bureau of Narcotics and Dangerous Drugs, which has responsibility for monitoring the location of narcotics informants. If the Bureau had been contacted, the government might have discovered that the informant had been, or was about to be, relocated in another jurisdiction, or that the Bureau had lost track of him. In any of these situations, immediate disclosure would be required to insure maximum protection of appellant’s rights.

Thus, the government’s failure to reveal a material fact, and its making of an important representation without adequate inquiry, misled the trial court, and thereby prejudiced appellant’s right to interview, and, perhaps, call the informant. Accordingly, his conviction should be reversed, and if the informant cannot now be located, his indictment must be dismissed.

III.

Appellant also claims that he was denied his constitutional right to a speedy trial because twenty-seven months elapsed between his indictment and trial. We have repeatedly held that “[t]ime is the most important factor; ‘the longer the delay between arrest and trial the heavier the burden on the Government.’ ” We need not decide, however, whether the government adduced adequate explanations to justify this unusual delay since an additional factor is present — the loss of the government informant occasioned by the delay — that clearly swings the balance in appellant’s favor.

The majority rejects this claim, holding that “it is not reasonable to conclude that the informant would . . . provide any significant aid to the defense.” Requiring appellant to make such a showing, however, rests on an erroneous application of the governing case law. In this jurisdiction, he need only establish “a reasonable possibility of prejudice,” or “[e]ven a slight showing of possible prejudice.” And the Supreme Court has stated that “[i]f witnesses die or disappear during a delay, the prejudice is obvious,” since a defendant is thereby hindered in “prepar[ing] his case.” Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101 (1972). Moreover, in Roviaro, supra, in a factual setting virtually identical to the instant case, the Supreme Court said, “[t]he circumstances of this ease demonstrate that [the informant’s] possible testimony was highly relevant and might have been helpful to the defense.” 353 U.S. at 63-64, 77 S.Ct. at 629 (emphasis supplied). Thus, appellant was prejudiced as a matter of law, and the court was obliged to uphold his challenge.

In fact, appellant was precluded from making a further showing of prejudice resulting from the loss of the informant since the majority also sustained the government’s failure to disclose his identity until after he had disappeared. Nonetheless, even before appellant knew that the informant had disappeared he explicitly advised the court that he would be prejudiced by such an event because the informant might substantiate his claims that certain phone conversations used against him were illegally obtained and that he was entrapped by the government. Thus, appellant’s claim of prejudice was clearly not an- afterthought raised on appeal. In the face of a twenty-seven month delay, I fail to see how my brethren can conclude that there was “no possibility of prejudice” to appellant in these circumstances. Accordingly, I would reverse his convictions with instructions to the trial court to dismiss his indictments.

      . Specifically, count one of the indictment charged a violation of 26 U.S.C. § 4705(a) ; count two charged a violation of 26 U.S.C. § 4704(a) ; and count three charged a violation of 21 U.S.C. § 174.

      . The dissent contends that we have misunderstood the issue. But revealing the identity of the informant is only a step to enable the appellant either (1) to obtain the informant’s testimony at trial, incident to which counsel would seek to interview him prior to trial, or (2) to reconstruct in the appellant’s mind the appellant’s relationship and contacts with the informant, and perhaps offer the testimony of third parties as to appellant’s relationship with the informant. In this case, revealing the identity of the informant earlier would not have helped the appellant get the informant’s testimony — the appellant had no power to detain the informant or protect him. The informant still would not have been present at trial; the informant probably would have been eliminated sooner. So, the fact that the government did not identify the informant until after the informant had disappeared is meaningless. The government did identify the informant in time for the appellant to reconstruct his dealings, if any, with the informant and to present evidence of his own and of third parties at the trial on this point, if he desired. There was no power either in the government or the appellant to have obtained the informant’s testimony at trial, no matter when the informant’s identity was revealed.

      . 353 U.S. at 64, 77 S.Ct. 623. This distinguishes the case at bar and Roviaro from cases involving withholding the identity of an informant who merely pointed out persons involved in narcotics for police observation or apprehension. See McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967).

      . 353 U.S. at 64, 77 S.Ct. 623.

      . The record reveals that the informant had testified earlier in the “Taniillo-Jaekson conspiracy case” and due to the violence that occurred in connection with that case, it was not unreasonable to be concerned about the physical welfare of the informant. It is noted that one of those expected to be a witness, Charles “Popeye” Hailes, was gunned down on the steps of his home. See United States v. Mace Brown, Nos. 71-1446; 72-1029, in which the hired killer was convicted of first degree murder. These appeals were dismissed on motion of the government on February 23, 1973, due to the escape of appellant Brown from D. C. Jail on October 2, 1972. Appellant Brown was killed during the course of a bank robbery in New York on April 18, 1973.

      . The experienced and conscientious trial judge (Aubrey E. Robinson, Jr.), during the course of the July 22, 1971, hearing observed at pages 8-9 of the transcript:
      “THE COURT: It has been this court’s experience in this particular area involving narcotics, the informers, that to disclose the informer’s identity would be just the same as executing him. That has been the experience of this court: that wherever informers have been involved, the government has been required to go to great lengths to protect their lives prior to trial, during the trial, and after the' trial. This court has heard testimony where there has been deliberate executions of people involved in the narcotics traffic.
      No, the government will not be required to disclose the identity of the informer in this case until such time as the trial date has been set — until the date of trial, rather.”

      . “What Roviaro thus makes clear is that this Court was unwilling to impose any absolute rule requiring disclosure of an informer’s identity even in formulating evidentiary rules for federal criminal trials.” McCray v. Illinois, 386 U.S. 300, 311, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967).

      . On November 1, 1971, the trial court denied appellant’s motion to dismiss the indictments based on the inability of the government to locate the informant. The record reveals that wide-ranging inquiries were made pursuant to a request of the United States Attorney in the first part of September, 1971, nearly three months before trial. Specifically, these efforts consisted of checking with offices of the Bureau of Narcotics and Dangerous Drugs in New York and the west coast, the Washington, D. O., police department, the New York City police department, and with the informant’s family, then living in the Washington, D. C., area. See proceedings of November 11, 1971, transcript at 54-56, 60-62.
      Where the government has been unable to locate the informant, the trial court must be shown that “reasonable efforts to produce him were fruitless. ...” United States v. Makekau, 429 F.2d 1403, 1404 (9th Cir. 1970). That test has been met here. United States v. Guerra, 334 F.2d 138, 142 (2d Cir. 1964).

      . 153 U.S.App.D.C. at 99, 471 F.2d at 1067.

      . 153 U.S.App.D.C. at 97, 471 F.2d at 1065.

      . It should be noted, however, that Miss Phillips was not present, so far as the record discloses, during the narcotics transaction on May 19, 1969.

      . Miss Phillips evidently expressed a desire not to testify for fear of self-incrimination and fear for her personal safety. Appellant’s Brief at 12, n. 12. The record reflects that the case against her was severed and dismissed at the start of the trial on November 10, 1971.

      . 353 U.S. at 64-65, 77 S.Ct. 623.

      . A delay of more than one year between arrest and trial raises a speedy trial claim of prima facie merit. Hedgepeth v. United States (Hedgepeth I), 124 U.S.App.D.C. 291, 293, 364 F.2d 684, 686 (1966).
      The Maryland indictment was returned on June 9, 1970, approximately thirteen months after the alleged transaction. The Supreme Court in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) said:
      No opinions of this Court intimate support for appellees’ thesis, and the courts of appeals that have considered the question in constitutional terms have never reversed a conviction or dismissed an indictment solely on the basis of Sixth Amendment’s speedy trial provision where only pre-indictment delay was involved. (Footnotes omitted.)
      404 U.S. at 315, 92 S.Ct. at 460.

      . Smith v. United States, 118 U.S.App.D.C. 38, 41, 331 F.2d 784, 787 (1964) (en banc); Hinton v. United States, 137 U.S.App.D.C. 388, 393, 424 F.2d 876, 881 (1969).

        . See United States v. Jones, 154 U.S.App.D.C. 211, 475 F.2d 322 (1972).

        . See United States v. Skeens, 145 U.S.App.D.C. 404, 408, 449 F.2d 1066, 1070 (1971).

      . United States v. Canty, 152 U.S.App.D.C. 103, 107, 469 F.2d 114, 118 (1972).

      . 142 U.S.App.D.C. at 206, 440 F.2d at 234.

      . Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 41, 37 L.Ed. 1021 (1893).

      . Appellant initially filed a motion to dismiss his indictment for lack of a speedy trial on April 23, 1979, claiming that the four month lapse between the D.C. offense and appellant’s D.C. indictment violated Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965), and its progeny, which prohibit unnecessary delays between the offense and indictment. At the June 22, 1971, hearing, appellant’s counsel abandoned the Ross claim, and argued instead that appellant was denied a speedy trial by the delay between the offense and trial.

      . At the March 23, 1972, sentencing hearing the court below imposed a sentence of two to ten years on count two of each indictment. The judgment entered pursuant to that hearing, however, indicates a sentence of two to six years.

      . The court rejects the argument it mistakenly attributes to appellant on the ground that “the Roviaro case cannot be relied on for the immutable proposition that the absence at trial of an informant who was an active participant in the narcotics transaction necessarily requires the sanction of dismissal.” Subsequent to Roviaro, however, this court decided United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971), which held that the government was responsible for “losing” evidence “unless [it] can show that it has promulgated, enforced and attempted in good faith to follow rigorous and systematic procedures designed to preserve . . . evidence.” When the informant is a special employee of the government, whose identity the government seeks to protect until trial, the spirit, if not the holding, of Bryant requires the government to adopt adequate procedures which reasonably insure against his loss.
      My brethren state that Bryant should not be applied to special government informants because “[i]t is one thing to safeguard such inanimate objects as recordings of conversations. It is quite another to require that government witnesses be secured for the purpose of a future trial. Witnesses, like defendants released on bond, do disappear.” The court appears to miss the point of Bryant. Inanimate evidence, too, disappears sometimes. The point is that when the government has sole access to important evidence or witnesses it should undertake diligent efforts to insure that the evidence or witness is not lost. While there is testimony in this record indicating that the government attempted to locate the informer once he disappeared, there is nothing to suggest that any efforts were made to prevent him from disappearing in the first place. In view of the government’s promise to produce the informant at trial, such efforts were especially necessary here.
      The majority also states that “[i]n the more recent case of United States v. Perry, 153 U.S.App.D.C. 89, 471 F.2d 1057 (1972), . . . we took a somewhat different position than in Bryant." On the contrary, both the court and Judge Wright in a special concurring opinion were careful to point out that nothing in Perry “affects our holding in Bryant" since the loss of evidence in Perry “occurred prior to Bryant." 471 F.2d at 1068 (concurring opinion), and note 35 (court’s opinion).

      . Nothing in the record supports the majority’s repeated suggestion that the informant has been “eliminated,” let alone its completely gratuitous assertion that earlier disclosure in this case probably would have hastened his demise. On the contrary, both the U.S. Attorney and the supervising officer from the Bureau of Narcotics and Dangerous Drugs, indicated that they did not know whether the informant was “dead or alive.” Tr. Nov. 10, 1971, at 20; Tr. Nov. 11,1971 at 55.

      . Skeens v. United States, 145 U.S.App.D.C. 211, 449 F.2d 1066, 1071 (1971). See also Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); United States v. Miramon, 443 F.2d 361 (9th Cir. 1971); Lopez-Hernandez v. United States, 394 F.2d 820 (9th Cir. 1968); United States v. Barnett, 418 F.2d 309 (6th Cir. 1969); United States v. Roberts, 388 F.2d 646 (2nd Cir. 1968).
      Although Roviaro and its progeny clearly strike the balance in favor of disclosure whenever the informant is a participant in the criminal transaction, the majority continually refers to Roviaro’s “balancing” test “with respect to disclosure” as if the balance had not already been struck. (Emphasis supplied.) Thus, the court appears to attach some relevance to the fact that Miss Phillips “was present ... on the May 20, 1969 transaction.” If this fact is relevant to disclosure — and I maintain that it is not — the court was required to distinguish between the May 20 and May 19 transactions because Miss Phillips was not present at the latter. No such distinction is considered.

      . The safety of narcotics informants presents a serious problem that may well justify some delay in pre-trial disclosure. In such cases, however, the government should be required to make reasonable efforts — such as invoking protective custody — to protect against the informant’s disappearance. See note 3 supra.

      . See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Levin v. Katzenbach, 363 F.2d 287, 124 U.S.App.D.C. 158 (1966); Levin v. Clark, 133 U.S.App.D.C. 6, 408 F.2d 1209 (1967).

      . See Trial Tr., Nov. 11, 1971, at 37.

      . See Roviaro, supra, 353 U.S. at 60 & n. 8, 77 S.Ct. 623. The majority claims that the informant “should not be considered out of danger because he had concluded his testimony in [other cases].” This determination, regardless of its merit, is for the trial court, not the government. Indeed, in this case, one of the U.S. Attorneys informed the court that he believed the government was willing to disclose the informant “since the end of the Tantillo case,” which was more than nine months before the July 22, 1971, hearing.

      . See Trial Tr., Nov. 11, 1971, at 56, 62.

      . The majority only discusses appellant’s speedy trial claim on the D.C. case; its rejection of that claim, which was based on a twenty-seven month delay, results, a fortiori, in rejection of the Maryland claim, which involved a seventeen month delay between indictment and trial. The Maryland offense however, was committed the day before the D.C. offense, and thirteen months lapsed before return of the Maryland indictment. See Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965). Compare United States v. Marion, 404 U.S. 307, 315 n. 8, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). In these circumstances, I would also find appellant’s speedy trial claim on the Maryland indictment meritorious, although I will, for convenience, discuss only the D.C. indictment in text.

      . United States v. Holt, 145 U.S.App.D.C. 185, 186, 448 F.2d 1108, 1109 (1971) (opinion of Leventhal, J.), quoting Hedgepeth v. United States, 124 U.S.App.D.C. 291, 364 F.2d 684, 687 (1966). See also United States v. Rucker, 150 U.S.App.D.C. 314, 464 F.2d 823, 825 (1972) (“When the delay approaches a year and a half, . . .' the Government must provide a justification which convincingly outweighs the prejudice [to the defendant] which can normally be assumed.”).

      . The majority suggests that the first eight months of delay were due to appellant since he had two changes of counsel. It also attributes an additional seven months to the fact that appellant moved to transfer his Maryland indictment to the District of Columbia. The remaining twelve months it simply holds were not “arbitrary, purposeful, oppressive or vexatious.” This conclusion fails to understand the nature and purpose of the right to a speedy trial: “In our jurisdiction it is peculiarly appropriate to hold the Government to the obligation of arranging a speedy trial.” United States v. Holt, 145 U.S.App.D.C. 185, 448 F.2d 1108, 1111 (1971) (opinion of Leventhal, X). Thus, the government was under an affirmative obligation to move rapidly in those twelve months, particularly since seven of them followed an eight month delay due to changes in counsel, and five of them followed a twenty-two month delay. See Hedgepeth v. United States, 124 U.S.App.D.C. 291, 364 F.2d 684, 688 (1966) (“The passing of such a considerable length of time, no matter who is ‘at fault,’ should act as a spur to the Government to seek prompt trial. If the Government is lax in this regard, it is appropriate to take the earlier period into account.”) .
      Moreover, even the fifteen months attributed in whole or part to appellant by the majority were inaccurately apportioned. Appellant’s first counsel, who was retained, was disbarred shortly after being hired — a circumstance hardly attributable to appellant. A court-appointed attorney was then assigned to appellant; three and one half months later this court-appointed attorney was dismissed, and another counsel retained. The record does not indicate why an attorney was appointed and then dismissed. This delay, therefore, may not have been due to appellant. Finally, the Maryland court did not act on appellant’s transfer motion for seven months. This considerable delay cannot be attributed wholly to appellant simply because he made the motion to transfer. In sum, appellant was responsible for only a small portion of the twenty-seven month delay.

      . United States v. Holt, 145 U.S.App.D.C. 185, 448 F.2d 1108, 1110 (1971); Hedgepeth v. United States, 124 U.S.App.D.C. 291, 364 F.2d 684, 687 (1966); Hedgepeth v. United States, 125 U.S.App.D.C. 19, 365 F.2d 952, 954 (1966).

      . Harling v. United States, 130 U.S.App.D.C. 327, 401 F.2d 392, 395 (1968). See also Coleman v. United States, 142 U.S.App.D.C. 402, 442 F.2d 150, 156 (1971).

      . Harling v. United States, 130 U.S.App.D. 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970).