author: BAZELON, Chief Judge: MacKINNON, Circuit Judge,

text:
    UNITED STATES of America, v. William BROWN, Appellant
    No. 72-2080.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 12, 1973.
    Decided Aug. 3, 1973.
    Fred Warren Bennett, Washington, D. C. (appointed by this Court), was on the brief for appellant.
    Harold H. Titus, Jr., U. S. Atty., John A. Terry, John T. Kotelly, and Richard L. Beizer, Asst. U. S. Attys., were on the brief for appellee. Frederick C. Moss and John J. Mulrooney, Asst. U. S. Attys., also entered an appearance for appellee.
    Marilyn Cohen, Washington, D. C., was on the brief for the Public Defender Service as amicus curiae.
    Before BAZELON, Chief Judge, and WRIGHT and MacKINNON, Circuit Judges.
   BAZELON, Chief Judge:

This case raises difficult questions about a matter of importance that is continually before this court: the resolution of motions for bail pending appeal. The movant, William Brown, was convicted in federal District Court of armed robbery and assault with a dangerous weapon — both D.C. Code offenses. Brown subsequently filed notice of appeal, and presented a motion in the District Court for release pending appeal. The trial judge denied the motion, stating that Brown did not meet the criteria for release set forth at 23 D.C.Code § 1325.

On this appeal, Brown argues that his motion was decided under the wrong statute. He maintains that motions for release in the federal courts of the District must be decided on the basis of the federal statute governing bail — The Bail Reform Act of 1966, 18 U.S.C. § 3148— rather than the D.C. Code provisions. The trial judge explicitly noted that Brown would be entitled to release under the federal bail statute, even though he could not be released under the harsher local code provisions. Accordingly, we proceed to determine which bail statute should apply to motions for release pending appeal in the federal courts of our jurisdiction.

Prior to 1971, the right to bail pending appeal for any appellant in this court was determined in accordance with the Federal' Bail Reform Act. In the D.C. Court Reform Act of 1970, Congress enacted the harsher bail provisions codified at 23 D.C.Code § 1325(c). We were first called upon to gauge the applicability of those provisions in United States v. Thompson, 147 U.S.App.D.C. 1, 452 F.2d 1333 (1971), cert. denied, 405 U.S. 998, 92 S.Ct. 1251, 31 L.Ed.2d 467 (1972). After a careful review of the language of the statute, the intent of Congress, and relevant Constitutional considerations, we held, in that case, that the bail provisions of the local code did not apply to an appellant who was convicted in the federal courts of a federal (U.S.Code) offense.

The Thompson opinion did not reach the question before us today — the applicability of the local provisions to an appellant convicted in federal court of a local (D.C.Code) offense. Thompson recognized the possibility that Congress might have intended the D.C.Code bail provisions to apply in such cases. The government now argues that what we recognized as “possible” in Thompson is in fact correct. The movant, on the other hand, argues that that possibility cannot govern this case, first because of statutory changes since the Thompson opinion was issued, and second because of Constitutional infirmities in the D.C. Code bail provisions. We need decide only the first of these questions today.

I

On April 24, 1972, some six months after United States v. Thompson was issued, the Supreme Court adopted amendments to Fed.R.App.P. 9, and Fed.R. Crim.P. 46, providing that motions for release pending appeal in all federal courts should be determined in accordance with the Federal Bail Reform Act of 1966. Those amendments became effective on October 1, 1972; under the clear command of statute, any contrary provision of law became ineffective after that date. On this basis, appellant maintains that, even if the D.C. Court Reform Act did make the local bail provisions applicable to defendants in the federal courts, that statute was superseded by the subsequent action of the Supreme Court.

There is no question but that the Supreme Court has the authority to establish the rules at issue here and that these rules have the force of law. Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479 (1941). The government contends that the new rules promulgated by the Court cannot repeal statutory provisions; but it is well settled that the Federal Rules can have that effect, Mookini v. United States, 303 U.S. 201, 206, 58 S.Ct. 543, 82 L.Ed. 748 (1938); indeed, the Supreme Court reiterated that position just a few weeks ago. Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (U.S. 1973). Nor is there any question but that the Federal Rules apply to all criminal cases in the Federal Courts. It seems to logically follow that the federal courts of this jurisdiction should adhere to dictates of the Federal Rules, as amended, rather than to the provisions of the D.C. Court Reform Act, which were thereby superseded.

At oral argument, government counsel recognized the cogency of this reasoning ; he suggested, however, that neither Congress nor the Supreme Court could have intended this result. He argued that the Court’s issuance of general rules on bail pending appeal for the nation as a whole was not meant to affect the application by the federal courts of the district of the provisions previously enacted by Congress for this particular jurisdiction. He said that the failure to exempt this circuit from the general rule was an “oversight” on the part of the Court. We recognize at the core of this argument a salient principle: that courts should be wary of broad, general legislative pronouncements which appear to subsume specific provisions of prior law. In United States v. Wallace & Tiernan, Inc., 121 U.S.App.D.C. 245, 349 F.2d 222 (1965), we observed that those who prepare general codifications “must of necessity rely to a considerable extent on the work of their staff, into which some errors will inevitably creep.” On the facts of that case, we refused to recognize as law a “clerical oversight” of drafting which superseded a specific prior rule. But, this case differs in many ways from Wallace & Tiernan.

A court of appeals is not generally inclined to assert that the Supreme Court has erred, either through “oversight” or otherwise. And it is particularly difficult in this ease to suggest that the Court was unaware of the situation in the District of Columbia. Just one month before the Court issued the Federal Rules amendments, it had denied certiorari in United States v. Thompson, supra. We recognize the dangers of attempting to draw meaning from a denial of certiorari, cf. Maryland v. Baltimore Radio Show, 338 U.S. 912, 70 S.Ct. 252, 94 L.Ed. 562 (1950), but we think it safe to assume from such action at least that the Court was familiar with the facts and the statute at issue in this case. Thus, we must be hesitant to accept the U.S. Attorney’s “oversight” argument. In addition, our rejection of the “oversight” argument does not render the D.C.Code bail provisions a nullity for they remain applicable to offenders convicted in local courts. Accordingly, we agree with appellant and amicus that the amendments to Fed.R. App.P. 9, and Fed.R.Crim.P. 46, should be taken at face value; that this federal court, like all other federal courts, should determine motions for bail pending appeal in accordance with the Federal Bail Reform Act, 18 U.S.C. § 3148.

II

Ascertaining an unstated legislative purpose is a hazy business at best, but we are fortified in our conclusion by a well-recognized cannon of statutory construction — “when one interpretation of a statute would create a substantial doubt as to the statute’s constitutional validity, the courts will avoid that interpretation absent a 'clear statement' of contrary legislative intent.” United States v. Thompson, supra, 146 U.S. App.D.C. at 5, 452 F.2d at 1337. As appellant suggests, adoption of the government’s construction would necessarily pose difficult questions of constitutional law.

Appellant and amicus curiae argue that the D.C.Code bail provisions, by creating a harsher standard for release than that embodied in the Federal Bail Reform Act, violate the Constitutional guarantee of equal protection of the laws; cf. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). This suggestion follows from our discussion of the D.C.Code provisions in United States v. Thompson, supra. We noted there that the D.C.Code bail provisions single out a “powerless, voteless minority” the residents of the District of Columbia for special, and harsher, treatment in regard to a right “fundamental” in the sense that it “involves issues of personal freedom.” We determined that a limiting interpretation of the statute was necessary to avoid unconstitutional discrimination. Accordingly, we held that the D.C.Code bail provisions could not be applied to a federal offender in a federal court.

Such considerations might also apply to the situation before us: application of the D.C.Code bail provisions to local offenders in a federal court. If we were to accept the government’s contention that the local provisions, do apply, then certain defendants in the federal courts of this jurisdiction would be treated more harshly than defendants in any other federal court — at least as far as bail pending appeal is concerned. As we noted in Thompson such discrimination might be justified if this court were dealing with crimes that are prosecuted in no other federal court. 147 U.S.App. D.C. at 7, 452 F.2d at 1340. But, it is unclear whether that rationale would apply to Brown’s case. The “local” armed robbery for which Brown was convicted may not be discernably different from crimes that are regularly prosecuted in federal courts nationwide: e. g., 18 U. S.C. § 2111 (robbery in a federal enclave) ; 18 U.S.C. § 2113 (bank robbery) ; 18 U.S.C. § 2114 (robbery of mail); 18 U.S.C. § 111 (assault on a federal officer).

The government concedes that applying the local statute in Brown’s case must lead to unequal treatment of offenders within the federal system, but argues that Congress has rationally chosen to tolerate such inequality in order to achieve equal treatment of all those accused and convicted of local offenses in the District of Columbia. There is, however, no clear indication in the legislative history that Congress did balance uniformity within the District against uniformity within the federal system.

Brown further contends that the D.C. Code bail provisions deny due process of law to convicted offenders. Brown's attack concentrates on the requirement that release be denied “unless the judicial officer finds by clear and convincing evidence that . . . the appeal raises a substantial question of law or fact likely to result in reversal . ...” 23 D.C.Code § 1325(c) (emphasis supplied). Appellant asserts that this standard may be inconsistent with the “safeguards for disinterestedness and detachment” which the due process clause demands, because it often requires a judge to find clear and serious errors in his own conduct of the trial. See Bartkus v. Illinois, 359 U.S. 121, 128, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). The federal statute requires only that the trial judge find the defendant’s legal arguments are not frivolous in order to grant release; a judge can readily find the existence of a non-frivolous question without being forced to conclude that he has made an error likely to result in reversal.

Appellant and amicus also suggest that the D.C.Code provisions deny due process by requiring application of a standard which virtually precludes release. Neither side has presented any statistics on this,point. As the government has reminded us, it has been said that there is no “automatic” right to bail pending appeal. Bowman v. United States, 85 S.Ct. 232, 13 L.Ed.2d 171 (1964). On the other hand, it has also been said that the government cannot automatically deny release. Harris v. United States, 404 U.S. 1232, 92 S.Ct. 10, 30 L.Ed.2d 25 (1971). Justice Black observed that the Constitution “obligates judges to deny [bail] only for the strongest of reasons.” Sellers v. United States, 89 S.Ct. 36, 38, 21 L.Ed.2d 64 (1968). Whether the D.C.Code standard is so unreasonable as to be unconstitutional, in view of the competing interests, is a question of the greatest difficulty.

We do not decide today whether appellant is correct in asserting that the application of 23 D.C.Code § 1325(c) to his motion violates constitutionally guaranteed rights. The need to do so is obviated by our acceptance of appellant’s statutory construction argument.

Ill

Application to Brown’s motion of the rule announced herein is a simple task. The trial judge has already determined that Brown is entitled to release pending appeal under the federal release pending It follows that the motion for release in this case is

Granted.

MacKINNON, Circuit Judge,

dissenting:

The majority opinion reaches the conclusion that the D.C.Code provisions on bail pending appeal do not apply to one convicted of a D.C.Code offense in the United States District Court (which at that time had original jurisdiction to try D.C.Code offenses) because “On April 24, 1972, some six months after U. S. v. Thompson was issued, the Supreme Court adopted amendments to Fed.R. App.P. 9, and F.R.Crim.P. 46, providing, that motions for release pending appeal in all federal courts should be determined in accordance with the Federal Bail Reform Act of 1966.” Supra at 2.

This was adopted as a general rule applicable to all United States courts and it did not contain any express repeal of the release provisions of the District of Columbia Court Reform Act of 1970. Thus, it is an intent to accomplish an implied repeal that the majority finds. However, the scope of the Rules was not in any way changed at that time, and it is the “scope” of the Rules that we are concerned with in the decision. In this respect the Rules specifically define their scope when they state they apply to “United States District Courts” and “United States Courts of Appeals” and since there was no change of a legislative nature in the Rules providing for the scope of their application or in the Federal Bail Reform Act of 1966 the scope of the Rules would not be affected by the amendments to Rules 9 and 46, supra.

This brings us to the question as to what Congress intended to accomplish when it passed the D.C. Court Reform Act of 1970 containing the release and bail provisions now set forth in D.C. Code § 23-1325 (c) . The effect of the majority opinion is to have us read the release and bail provisions of that D.C. statute to not apply to any felony conviction for D.C. Code offenses (which include murder, armed robbery, rape, etc.) since all felonies in the District of Columbia at that time were tried in the United States District Courts. Under such claimed construction, offenders convicted of District of Columbia felonies in the U.S. courts would be released under what the majority asserts is a more lenient bail statute, while those convicted of misdemeanors (and tried in the D.C. courts) would be under an allegedly harsher bail statute. Such construction is absurd as a plain reading of the statute and our judicial knowledge of criminal offenses in the District of Columbia indicates that it was intended principally to apply to major D.C. felonies.

I thus have no hesitancy in concluding that neither the Congress nor the Supreme Court intended at any time to accomplish the result reached by the majority. It is clear to me from a reading of the controlling provisions of the Rules and statutes that the bail provisions of the D.C. Court Reform Act of 1970 were at all times intended, both by the Congress and the Supreme Court, to apply to those convicted of both felonies and misdemeanors in the District. In reaching this conclusion, I interpret the terms “United States District Courts” and “United States Courts of Appeals” in the quoted Rules to refer to the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit when they were exercising the regular federal jurisdiction of the United States Courts of Appeals and District Courts, and not when they are exercising the special jurisdiction (equivalent to that of state felony courts) encompassing the trial and appeal of local D.C. crimes that are not regularly tried or heard by any other U. S. courts in the nation.

At the time this case was tried, and for many years prior thereto (to some extent the jurisdiction still exists), the U.S. courts in the District of Columbia had a twofold jurisdiction, which differed greatly from other U.S. District Courts and Courts of Appeals, in that it included jurisdiction, in both criminal and civil matters, that is generally exercised by state trial courts and Supreme Courts in the various states. This local type jurisdiction was in addition to the federal jurisdiction conferred on U.S. District Courts and U.S. Courts of Appeals. It is only to the local type offenses within that state type criminal jurisdiction of the U.S. courts in the District of Columbia that I would hold the release and bail provisions of the D.C. Court Reform Act of 1970 applicable. It just does not make sense to attribute to Congress and the Supreme Court an intent to fragment that D.C. Act, so as to have it only apply to felonies and not to misdemeanors, and thus attribute to Congress and the Supreme Court an intent to accomplish an absurdity.

To hold that the release and bail provisions of the D.C. Court Reform Act of 1970 apply to D.C.Code offenses is also required by the well recognized rule of statutory interpretation that a “specific statute controls the general [statute] absent a contrary legislative intent and without regard to priority of enactment.” The Supreme Court has stated the rule:

But even if petitioner were correct in concluding that § 2411(a) is to be regarded as the later enactment, it would not necessarily take precedence over § 3711(e), for it is familiar law that a specific statute controls over a general one “without regard to priority of enactment.” Townsend v. Little, 109 U.S. 504, 512, 3 S.Ct. 357, 362, 27 L.Ed. 1012. See, e. g., Ginsberg & Sons v. Popkin, 285 U.S. 204, 208, 52 S.Ct. 322, 323, 76 L.Ed. 704; Mac-Evoy Co. v. United States, 322 U.S. 102, 107, 64 S.Ct. 890, 893, 88 L.Ed. 1163; Foureo Glass Co. v. Transmirra Corp., 353 U.S. 222, 228-229, 77 S.Ct. 787, 791-792, 1 L.Ed.2d 786.

Bulova Watch Co. v. United States, 365 U.S. 753, 758, 81 S.Ct. 864, 6 L.Ed.2d 72 (1961). We have recognized the existence of substantially the same rule:

Moreover, the Railway Labor Act is a specific statute directed and limited to proceedings of a special type. The Administrative Procedure Act is general legislation. It is well settled that a specific statute will not ordinarily be deemed superseded, amended or repealed by a later enactment of a general character. Bulova Watch Company v. United States, 365 U.S. 753, 758, 81. S.Ct. 864, 6 L.Ed.2d 72. (Emphasis added).

Brotherhood of Loc. Fire & Eng. v. Chicago, B. & Q. R. Co., 225 F.Supp. 11, 18 (D.D.C.), aff’d, 118 U.S.App.D.C. 100, 331 F.2d 1020, cert. denied, 377 U.S. 918, 84 S.Ct. 1181, 12 L.Ed.2d 187 (1964). To the same effect, we held earlier:

It is a canon of statutory construction that, where there is an earlier special statute and a later general statute, the terms of the later being broad enough to include the matter provided for in the former, the special statute must be considered as an exception to the general statute. Ex parte Crow. Dog, 109 U.S. 556, 570, 3 S.Ct. 396, 27 L.Ed. 1030; Rodgers v. United States, 185 U.S. 83, 87, 99, 89, 22 S.Ct. 582, 46 L.Ed. 816.

Simon v. Simon, 58 U.S.App.D.C. 158, 160, 26 F.2d 530, 532 (1928). These decisions refer to instances where the general statute was the later enactment, but here the special statute was the later enactment. In such instance it is even clearer that the intent is to have the special prevail (see n. 9, infra). See generally 50 Am.Jur. Statutes § 561 and 82, C.J.S. Statutes § 369:

For purposes of interpretation, legislative enactments have long been classed as either general or special, and given different effect on other enactments dependent as they are found to fall into one class or the other. Where there is one statute dealing with a subject in general and comprehensive terms, and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, with a view to giving effect to a consistent legislative policy; but, to the extent of any necessary repugnancy between them, the special statute, or the one dealing with the common subject matter in a minute way, will prevail over the general statute, according to the authorities on the question, unless it appears that the legislature intended to make the general act controlling; and this is true a fortiori when the special act is later in point of time, although the rule is applicable without regard to the respective dates of passage

\_A]nd where the general act is later, the special statute will be construed as remaining an exception to its terms, unless it is repealed in express words or by necessary implication. (Emphasis added; footnotes omitted).

The application of the foregoing principles is illustrated by Arizona Corp. Com’n v. Catalina Foothills Estates, 78 Ariz. 245, 278 P.2d 427 (1954), wherein the court was faced with the question of whether a special statute enacted in 1939 requiring appeals from the Corporation Commission to be taken within thirty (30) days should be applied or whether the time limit of thirty days was repealed by implication by the subsequent adoption in 1940 of a court rule permitting appeals to be taken within sixty (60) days. The facts are thus closely in point to the factual situation here present. In holding that the adoption of the rule by the Supreme Court did not repeal the special statute by implication, the court pointed out:

The rule is that a later act, general in its terms will not be construed as repealing a prior act treating in a special way something within the purview of the general act. In other words, a special or particular statute is not repealed by a general statute, unless the intent to repeal is manifest. It should also be borne in mind that ‘repeals by implication are not favored, and will not be indulged if there is any other reasonable construction. . . . Another rule is ‘that different statutes bearing upon the same subject matter should be so construed, if possible, as to give effect to all.’ . . . For later applications of these tenets, see: Favour v. Frohmiller, 44 Ariz. 286, 36 P.2d 576; State v. Miser., 50 Ariz. 244, 72 P.2d 408; Shapley v. Frohmiller, 64 Ariz. 35, 165 P.2d 306; Arizona Tax Comm, v. Dairy & Consumers Cooperative Ass’n, 70 Ariz. 7, 215 P.2d 235.

278 P.2d at 428.

It should be noted that other courts have determined that similar provisions of a code of civil procedure did not work an implied repeal of earlier enactments concerning special proceedings. See Hannon v. Grand Lodge, A.O.U.W. of Kansas, 99 Kan. 734, 163 P. 169, supra; Lee v. Lincoln Cleaning & Dye Works, 144 Neb. 659, 14 N.W.2d 227; Duncan v. Ashwan-der, D.C.W.D.La., 16 F.Supp. 829.

278 P.2d at 429-430.

Applying these principles the court held that the rule promulgated by the state supreme court did not indicate an intention to repeal or in any manner affect the eai’lier statutory provision. The de-cisión is practically on all fours with the issue here except that the instant case presents a stronger indication that there was never any intent to have Rules 9 and 46 apply to local offenders in the District of Columbia. This is evident from the language of both rules wherein they provide that release pending appeal shall be “in accordance with Title 18, U.S.C. § 3148.” The rule thus makes the statute applicable and it is unquestioned that such statute, enacted on June 22, 1966 (80 Stat. 215), had no application to offenders in the District of Columbia after the enactment on July 29, 1970 (84 Stat. 647) of the release provisions of the D.C. Court Reform Act of 1970. It is also clear that the D.C. release provisions apply because they are a special statute and because they constitute the later enactment.

I would thus hold the D.C.Code provisions to apply to all releases in the U.S. courts of the District of Columbia in connection with all D.C.Code offenses because the adoption of the Rules contained no express repeal, because the presumption is against repeals by implication, because special statutes generally do not repeal special or local statutes and because the language of the Rules only makes the 1966 statute applicable and they do not reenact the 1966 statute so as to constitute it a later enactment over the 1970 statute. Thus, section 3148 only applies to the extent that it applied as a statute and after 1970 this had no application to releases in the District of ColumBia.

I accordingly respectfully dissent from the contrary conclusion reached by the majority.

      . 22 D.C.Code §§ 2901, 3202 (armed robbery) ; 22 D.C.Code § 502 (ADW).

      . We requested supplemental memoranda from the parties and from amicus curiae on this point, and we heard oral argument from the movant, the government, and amicus. The court expresse its appreciation to amicus for her quite helpful participation.

      . Formerly titled “The District of Columbia Court Reform and Criminal Procedure Act of 1970,” 84 Stat. 473-668 (1970).

      . The pertinent sections of the two codes provide:

        U. S. Oode

      .A person who has been convicted shall be ordered released “unless the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to the community. If such a risk of flight or danger is believed to exist, or if it appears that an appeal is frivolous or taken for delay, the person may be ordered detained.” 18 U.S.C. §§ 3146, 3148.

        D. G. Code

      A person who has been convicted “shall be detained unless the judicial officer finds by clear and convincing evidence that (1) the person is not likely to flee or pose a danger to any other person or to the property of others, and (2) the appeal . . . raises a substantial question of law or fact likely to result in a reversal or an order for a new trial.” 23 D.C.Code § 1325.

      . Thompson, of course did not consider the constitutionality of applying the local provisions to a local offender.

      . Fed.R.App.P. 9(c) ; Fed.R.Crim.P. 46 (c).

      . 18 U.S.C. § 3772 provides :
      The Supreme Court may fix the dates when such rules shall take effect and the extent to which they shall apply to proceedings then pending, and after they become effective all laws in conflict therewith shall be of no further force.

      . The government suggested at oral argument that the Supreme Court’s authority to establish procedural rules does not give it authority to set conditions for bail. This is directly refuted by 18 U.S.C. § 3772. That section, entitled “Procedure After Verdict,” states that the Court,
      may prescribe the times for and manner of taking appeals and applying for writs of certiorari and preparing records and bills of exceptions and the conditions on which supersedeas or bail may be allowed.
      And, Congress “can be deemed to have adopted” rules issued under the Supreme Court’s statutorily delegated authority. See Singer v. United States, 380 U.S. 24, 37, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965).

      . Fed.R.Crim.P. 1; Fed.R.App.P. 1.

      . The same argument appears at pp. 6-7 of the government’s memorandum filed with this court on March 28, 1973.

      . It is public knowledge that the Supreme Court relies on a “Committee named by the Judicial Conference” for revisions of the Federal Rules. Cf., Douglas, J., dissenting from the order of November 20, 1972, 56 F.R.D. 185. Mr. Justice Douglas states that the Court “is a mere conduit.” Id.

      . 121 U.S.App.D.C. at 247, 349 F.2d at 226.

      . 405 U.S. 998, 92 S.Ct. 1251, 31 L.Ed.2d 467 (March 20, 1972).

      . See San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 26, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (those “relegated to ... a position of political powerlessness” are entitled to extraordinary constitutional protections). The problems that have surfaced under the mantel of “equal protection” in Thompson and similar cases are actually just symptoms of- a more basic problem: the fundamental unfairness of depriving 756,000 American citizens (the residents of Washington, D.C.) of a voice in the selection of those who govern them. Of. Reid, “One Man — No Vote,” The Washington Monthly, April, 1970, at 66-67. While it is true that the Constitution gives Congress plenary power over the District of Columbia, O’Donoghue v. United States, 289 U.S. 516, 538-539, 53 S.Ct. 740, 77 L.Ed. 1356 (1933), the authors of our Constitution probably never thought that Congress would use that power to deny the citizens of the District all voting rights whatsoever. See Madison’s statement that “a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them.” Federalist No. 43.

      . United States v. Benjamin Thompson, 147 U.S.App.D.C. 1, 7, 452 F.2d 1333, 1340.

      . Cf. Memorandum of Appellee at 18, n. 2.

      . This claim involves the difficult problem of striking a balance between the societal interests in incarceration of convicted persons and the individual’s interest in liberty — a process fraught with practical and moral complications of the highest order. We must take steps to assure that those who are properly convicted of crimes will not flee or pose a danger to others while their convictions are being appealed; and we should also respect society’s interest “in seeing that there is a prompt beginning to the sentence imposed by the court.” The countervailing interests of the individual defendant are also weighty. A defendant who has been wrongfully convicted stands to lose the most basic freedom of all'— “the freedom to be free” — if he is denied release pending appeal. United States v. Thompson, 147 U.S.App.D.C. 1, 452 F.2d 1333 (1971).
      This is not all merely the hypothecation of a theoretical civil libertarian. Three recent cases in our court demonstrate quite disturbingly the impact of the bail statute that is before us today. Wilbur Jones, Claude Smith, and James Jarvis were all convicted of D.C.Code offenses in the U.S. District Court. All three moved for release pending appeal, pointing out in their motions substantial errors in their trials. The arguments raised on appeal in each of the cases raised substantial doubt as to whether the defendants were guilty of the crimes for which they were charged. Yet all three motions for release were denied under 23 D.C.Code § 1325 (c). In two of the three cases, the trial judge found the statutory prohibition against release to be so strong that he did not even consider the issues raised on appeal in ruling on the motion. See United States v. Jones, 476 F.2d 885 (1973) (dissenting opinion of Chief Judge Bazelon).
      On April 27, 1973, a unanimous panel of this court reversed the convictions of Claude Smith and James Jarvis. United States v. Smith & Jarvis, 478 F.2d 976 (D.C.Cir., 1973). In these cases, two men were each erroneously forced to serve over a year in prison.

      . The applicable subsections of Fed.R.App. P. 9 and Fed.R.Crim.P. 46 provide:
      (c) Criteria for Release. The decision as to release pending appeal shall be made in accordance with Title 18, U.S.C. § 3148. The burden of establishing that the defendant will not flee or pose a danger to any person or to the community rests with the defendant. As amended April 24, 1972, eff. Oct. 1, 1972.
      Fed.U.App.P. 9(c).
      (c) Pending Sentence and Notice of Appeal. Eligibility for release pending sentence or pending notice of appeal or expiration of the time allowed for filing notice of appeal, shall be in accordance with 18 U.S.C. § 3148. The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the defendant.
      Fed.R.Crim.P. 46(c).

      . Fed.it.App.P. 1; Fed.R.Crim.P. 1, 54 (a), (e).

      . Supra n. 2.

      . D.C.Code § 23-1325 (c) (Supp. V, 1972) provides:
      (c) A person wlio lias been convicted of an offense and sentenced to a term of confinement or imprisonment and has filed an appeal or a petition for a writ of certiorari shall be detained unless the judicial officer finds by clear and convincing evidence that (1) the person is not likely to flee or pose a danger to any other person or to the property of others, and (2) the appeal or petition for a writ of certiorari raises a substantial question of law or fact likely to result in a reversal or an order for new trial. Upon such findings, the judicial officer shall treat the person in accordance with the provisions of section 23-1321.

      . Supra note 1.

      . Id.

      . Id.

      . The addition of the short phrase to this single section on October 15,1970, Pub.L. 91-452 (84 Stat. 952) would not alter the basic character of the statute as being a 1966 enactment. See Pub.L. 89 — 465, June 22, 1966 (80 Stat. 214-217).

      . D.C.Code § 23-1325 (84 Stat. 647).

      . Supra note 8.

      . .1A Sutherland, Statutory Construction § 23.10 (Sands 4th ed. 1972).


source: Caselaw Access Project

author: BAZELON, Chief Judge:

license: Public Domain

text:
    FIREMEN’S INSURANCE COMPANY OF WASHINGTON, D. C. v. Walter E. WASHINGTON et al., Appellants.
    No. 71-2009.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 7, 1972.
    Decided July 31, 1973.

      Leo N. Gorman, Asst. Corp. Counsel, Washington, D. C., for the District of Columbia, with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellants.
    James Brent Clarke, Jr., Washington, D. C., for appellee. William E. Miller and James V. Dolan, Washington, D. C., also entered appearances for appellee.
    Jean Camper Cahn, G. Dan Bowling and Michael Valder, Washington, D. C., filed a brief on behalf of The Urban Law Institute of Antioch College as ami-cus curiae urging reversal.

      Before BAZELON, Chief Judge, SOBELOFF, Senior Circuit Judge for the Fourth Circuit, and LEVENTHAL, Circuit Judge.

       Sitting by designation pursuant to 28 U.S.C. § 294(d). Senior Circuit Judge Sobeloff participated in the decision and concurred in the opinion herein before his death on July 11, 1973.

   BAZELON, Chief Judge:

In this suit against the District of Columbia, the Firemens’ Fund Insurance Co. successfully challenged the validity of two insurance regulations adopted by the District of Columbia Council.

During 1969 and 1970, the Government Operations Committee of the Council conducted hearings on insurance problems in the District and uncovered what it termed an “insurance crisis.” The hearings disclosed a widespread practice of refusing to underwrite basic property insurance in the inner-city solely on the basis of the environmental hazards presented by the geographic location of the property. The committee found the resultant unavailability of insurance to inner-city businesses and homeowners inhibited economic development and contributed to the deterioration of physical structures in urban core areas. The committee took note of an “epidemic of cancellations” of policies in the city and found that discrimination against inner-city dwellers in underwriting automobile insurance left many of those citizens uncompensated for serious injuries or economic losses sustained in auto accidents. On the basis of these findings, the committee concluded that action was urgently needed • to protect the property and citizenry of the District. Accordingly, on March 2, 1971, the full Council adopted Regulation 71-8, “Prohibiting Geographic Discrimination in the Issuance of Fire, Auto and Casualty Insurance,” and Regulation 71-13, “Prohibiting Arbitrary Cancellations.” After presentation to Mayor Washington, these regulations became law on March 13, 1971. Regulation 71-8 went into effect on March 22, 1971, and 71-13, by its own terms, became effective on May 12, 1971.

The pertinent language of the two regulations is set forth in the margin; in brie/, they provide as follows. Regulation 71-8 prohibits an insurance company from considering geographic location or any other “environmental factor” over which the insured has no control, in determining whether to insure or continue to insure a risk in the District. The only exception is where the particular company has an’ over-concentration of liability in a single high-risk area. Regulation 71-13 prohibits cancellation not in conformance with its dictates. Cancellation is permitted only for specified reasons, which include: (1) non-payment of premium; (2) willful misrepresentation in an application or a claim; (3) transfer of ownership resulting in an increased exposure to risk; or (4) (for auto insurance) loss of operator’s license or owner’s registration. Cancellation is conditioned on 30 days notice to both the insured and the Superintendent of Insurance, accompanied by an explanation of the grounds. Non-renewal must also be preceded by a statement of the grounds and 30 days notice to the insured. A non-renewal or cancellation notice must inform the policyholder of alternative sources of insurance, such as the assigned risk pool. Penalties are provided for violations of either 71-8 or 71-13.

On May 24, 1971, appellee, Firemen’s Fund Insurance Co. filed a complaint in District Court seeking a declaration of the invalidity of these two regulations and an injunction against their enforcement. On October 18, 1971, the District Court, 333 F.Supp. 951, granted summary judgment for appellees, holding that the regulation of insurance is not “a ‘usual’ or valid exercise of police power by a municipality, nor is it the ‘usual’ exercise of police power by the municipal government of the District of Columbia.” This appeal is from that determination.

I

Congress, in legislating for the District, has all the powers of a state legislature, and Congress may delegate to the District government that “full legislative power, subject of course to constitutional limitations to which all lawmaking is subservient and subject also to the power of Congress at any time to revise, alter, or revoke the authority granted.” District of Columbia v. Thompson Co., 346 U.S. 100, 109, 73 S.Ct. 1007, 1012, 97 L.Ed. 1480 (1953). The City Council, while possessing no inherent legislative authority, does have a broad delegation of police power from Congress. The instant regulations were promulgated pursuant to 1 D.C. Code § 226 (1967), which provides that the District government may “make and enforce all such reasonable and usual police regulations ... as [it] deem[s] necessary for the protection of lives, limbs, health, comfort and quiet of all persons and the protection of all property within the District of Columbia.”

The District of Columbia Court of Appeals has defined the scope of the power conferred on the local government by § 226.

Aside from the sovereignty of Congress, the limitation on the scope of reasonable and usual police regulations is primarily functional in character: such regulations must be “necessary for the protection of the lives, limbs, health, comfort and quiet of persons and the protection of . property within the District of Columbia. . . . ” If they meet that test they must be upheld.

Filippo v. Real Estate Commission of the District of Columbia, 223 A.2d 268, 273 (D.C.Ct.App.1966) (citations omitted) ; see Maryland & District of Columbia Rifle & Pistol Ass’n v. Washington, 142 U.S.App.D.C. 375, 379, 442 F.2d 123, 127 (1971).

According to this functional test, the regulations before us are valid. Basic property insurance is certainly closely related to the protection of property. In addition, access to insurance by inner-city businessmen, landlords and homeowners is necessary to the encouragement of business investment and the restoration of realty in urban core areas. Without property insurance, ghetto merchants would be hard put to secure business loans or even merchandise on credit. Home improvement loans and mortgages would similarly be unavailable, severely inhibiting the renovation of depressed areas of the city. And, the regulation of auto insurance is essential to the protection of the lives, limbs, and health of citizens in the District.

Appellee argues, however, that the local government does not have the power to impose substantive regulations on the business of insurance because it has never exercised that power before and because there have been no reported cases upholding municipal regulation of insurance. First, it is clear that “powers [once granted] . . . are not lost by being allowed to lie dormant.” National Petroleum Refiners’ Ass’n v. FTC, 482 F.2d 672 at 694 (D.C.Cir. 1973) quoting United States v. Morton Salt Co., 338 U.S. 632, 647-648, 70 S.Ct. 357, 366, 94 L.Ed. 401 (1950). Nor does the fact that no previous case has upheld a municipality’s exercise of the police power to regulate insurance compel the conclusion that the Council is without such power. The police power is not restricted or limited to present applications, but is a flexible and dynamic concept which changes and expands as society becomes more complex. As it has evolved, it has, for example, encompassed, the power to zone, Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), and to control urban renewal, Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954).

Appellee further argues that because the substantive regulation of insurance has traditionally been considered beyond the pale of municipal regulation and been left to states, only Congress, acting as the state legislature for the District, may undertake to regulate that industry. This argument ignores not only the Supreme Court’s express instruction that the “full legislative authority” of Congress may be delegated to the District government, but also the sui generis nature of governance in the District. Filippo, supra, 223 A.2d at 272. Insurance regulation usually occurs at the state level because of the need for uniformity within the state and to benefit from the economy of scale that results from having a single state regulatory authority. Neither rationale is applicable in the District. In many respects the District is more akin to a state than to a municipality. The District is a unique entity in that it exercises “a great variety of governmental functions, including not only those which are commonly exercised by cities but others, like * * * the regulation of insurance * * *, which are commonly exercised by states.” Chewning v. District of Columbia, 73 U.S.App. D.C. 392, 394, 119 F.2d 459, 461, cert. denied, 314 U.S. 639, 62 S.Ct. 74, 86 L.Ed. 513 (1941). The regulation of insurance is within the state’s police power, see, e. g., Commonwealth v. Vrooman, 164 Pa. 306, 30 A. 217 (1894). When Congress delegates its police power to the local government, that entity’s powers become as broad as those of Congress, limited only by the Constitution or specific Congressional enactment. Accordingly, the delegation of power effected by 1 D.C.Code § 226 encompasses the substantive regulation of insurance.

II

Having found the challenged regulations within the concurrent police power of the Council, we must now turn to the question whether those regulations are pre-empted by statute. Appellee argues that Congress has enacted considerable legislation on the subject of insurance in the District, pre-empting further regulation by the Council. It was also argued in Maryland & District of Columbia Rifle & Pistol Ass’n v. Washington, 142 U.S.App.D.C. 375, 442 F.2d 123 (1971) (hereinafter Pistol Ass’n) that “congressional legislation on a particular subject thwarts additional regulation of that subject by the' District.” The Pistol Ass’n court clearly rejected this thesis, concluding that:

Nor is there room for local regulation where the legislature has dealt with the subject in such manner as to indicate plainly that no further action respecting it is tolerable. But we cannot agree that municipal regulation is precluded simply because the legisla ture has taken some action in reference to the same subject. 442 F.2d at 130 (emphasis added).

The court went on to define when “no further action ... is tolerable.”

The important consideration is not whether the legislature and municipality have both entered the same field, but whether in doing so they have clashed. Statutory and local regulation may coexist in identical areas although the latter, not inconsistently with the former, exacts additional requirements, or imposes additional penalties. The test of concurrent authority ... is the absence of conflict with the legislative will. Id.

The challenged municipal regulations exact additional requirements of insurers and impose additional penalties for the violations thereof. We must, therefore, determine whether those regulations conflict with any specific enactments of Congress.

Appellee suggests three possible sources for such a clash between statute and regulation. The first is the District of Columbia Insurance Code, D.C.Code Title 35. In Pistol Ass’n, we were concerned with a potential conflict between Congress’ comprehensive gun control program and the municipality’s gun control regulations. The court observed that there was at least reasonable doubt as to whether Congress had .meant to preempt the field by its general legislation. Given the potentially greater responsiveness of local government to local problems and the recognition that Congress cannot realistically be expected to deal with every aspect of a local problem, the court determined that the municipality should be given the benefit of that reasonable doubt and upheld the local regulation. Here there is at least a reasonable doubt whether Congress meant to totally pre-empt the field of insurance regulation by enactment of the Insur-anee Code. We therefore conclude that the local government may legislate interstitially — to fill the gaps in the statutory scheme.

As to clashes between specific provisions of the Insurance Code and the regulations, we find none. The Code nowhere deals with the problem of arbitrary cancellations, as does Regulation 71-13. Nor does the Code deal with the problem of red lining, the geographic discriminations in underwriting banned by Regulation 71-8. Appellee asserts that 35 D.C.Code § 1503(c) does in fact deal with red lining, in that it states: “Nothing in this section shall be taken to prohibit as unfairly discriminatory the establishment of [rate] classifications . . . based upon location.” This provision pertains only to the setting of rates, a question not dealt with by Regulation 71-8, while the regulation concerns the decision whether to issue, cancel, or renew a policy, which is not affected by 35 D.C.Code § 1503(c).

Appellee next asserts that the regulations conflict with the District of Columbia Automobile Insurance Plan, created pursuant to 35 D.C.Code § 1505(d), and are therefore invalid at least as to automobile insurance. 35 D.C.Code § 1505 was enacted in 1948 to avoid the effect of the Supreme Court’s decision in United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944), which held insurance to be interstate commerce subject to the antitrust laws. The statute provides an antitrust exemption for insurers in the District to co-operate, inter alia, in the operation of an assigned risk pool for auto insurance. There is no indication that Congress intended to thereby insulate the auto insurance market from local regulation; nor that Congress intended a driver with a good record be forced into the assigned risk pool, with its higher premiums and lower available coverages, purely on the basis of his neighborhood. Accordingly, we cannot say that Regulation 71-8, prohibiting geographic discrimination, conflicts with the statutory authorization for the District of Columbia Automobile Insurance Plan.

Nor can we find any conflict with Regulation 71-13 prohibiting arbitrary cancellations. Although the assigned risk plan has its own cancellation provisions, policies issued under the auspices of the plan are specifically exempted from the operation of the regulation. The regulation affects only insurance secured in the normal market. In fact, the regulation appears to supplement the assigned risk plan, by requiring that a cancellation or non-renewal notice inform the policyholder of the possibility that he might be eligible for insurance under the plan.

Appellee also asserts that the challenged regulations are invalid as to basic property insurance because they inter-, fere with the effective functioning of the District of Columbia Insurance Placement Act. 35 D.C.Code § 1701 et seq. (Supp. V 1972). In 1968, Congress passed the Urban Property Protection and Reinsurance Act to deal with a growing insurance crisis in urban core areas, particularly the riot corridors of the urban ghettos. The House Report noted that:

In the rundown, blighted areas of some cities, private insurance companies have determined, in many instances, that it is not economically •feasible to provide insurance protection. This determination has led to the practice of “red lining” entire neighborhoods, which results in an almost automatic denial of insurance for reasons of location alone .

H.Rep.No.1585, 90th Cong., 2d Sess. (1968); 1968 United States Code Congressional and Administrative News at p. 2951.

This national legislation left it to the states to enact implementing FAIR (fair access to insurance requirements) plans, but provided limited federal reinsurance for participating programs. Congress enacted the District of Columbia Insurance Placement Act to provide the FAIR plan for the District. The purposes of the Placement Act were defined as follows:

to assure the availability of basic property insurance; . . . and .

to provide for the equitable distribution among insurers of the responsibility for insuring qualified property in the District of Columbia for which insurance cannot be obtained through the normal insurance market and to authorize the establishment of a joint underwriting association . to provide for reinsur-ing, of basic property insurance without regard to environmental hazards. 35 D.C.Code § 1701.

All District insurers participate in the FAIR plan on a ratable basis pegged to each company’s proportion of the District’s total fire insurance premium volume. The joint underwriting association provides reinsurance and the program is eligible for the federal reinsurance benefits.

The Placement Act deals with exactly the same problem of red lining as does Regulation 71-8. The Act’s solution is an equitable distribution of the hazards posed by such high-risk properties among private insurers. By eliminating environmental hazards form the underwriting decision, Regulation 71-8 leaves the volume of such high risk properties insured by each company to be determined not by an equitable apportion^ ment but by the vagaries of the geographic distribution of the company’s applicants. The regulation thus results in a different distribution of risks than that intended by the Placement Act. Since Regulation 71-8 does interfere with Congress’ solution to the red lining problem, it is pre-empted, hence invalid, as to basic property insurance.

The Placement Act does not deal with the problem of arbitrary cancellations of policies secured in the normal market and Regulation 71-13 is inapplicable to insurance secured through the Placement Act facility. Nor do the non-renewal provisions of the Regulation interfere with the distribution of risks intended by the Act. The Regulation does not require renewal; it merely conditions a failure to renew on the company’s informing the ■ policyholder of its reasons. Thus, no company is, in effect, locked into covering a high risk property beyond the term of its pre-existing policy. Since Regulation 71-13 neither conflicts nor interferes with the operation of the Placement Act, it is not preempted.

In summary, we affirm the judgment below only insofar as it held Regulation 71-8 (prohibiting geographic discrimination) invalid as to basic property insurance because pre-empted by Congressional enactment. We reverse the judgment below to the extent that it otherwise held Regulations 71-8 and 71-13 invalid.

Judgment accordingly.

      . Report of the District of Columbia Council Insurance in the District of Columbia, Nov. 20, 1970.

      . The Regulations were neither approved nor disapproved by the Commissioner (Mayor) during the ten day period following their adoption by the Council and presentation to the Commissioner (May- or) . Accordingly, they became law at the end of that period. Reorganization Plan No. 3 of 1967, Title I D.C.Code, Appendix, § 406(c).

      . Regulation 71-8 provides in pertinent part as follows:

        Section 1. G-eograpMe Discrimination

      (a) No insurer, policy-writing agent, soliciting agent, broker, or salaried company employee shall decline to insure or to renew contracts of insurance because of the geographic area within the District of Columbia wherein is located the subject of the risk or the applicant’s or insured’s address.
      (b) The prohibition contained in subsection (a) shall not act to prevent an insurer, agent, broker, or company employee from declining to issue contracts of fire or property insurance due to a determination, after on-site inspection and written report, that the condition of the property proposed to be insured does not meet applicable underwriting standards, provided that an applicant for such insurance shall be furnished a statement describing such improvements as are necessary to bring said property into conformity with applicable underwriting standards.
      (c) The prohibition contained in subsection (a) shall not act to prevent an insurer, agent, broker, or company employee from declining to issue contracts for fire or property insurance due to a determination that the property proposed to be insured will cause, due to its geographic location, a concentration of liability which will exceed reasonable underwriting standards based upon actual properties then insured, and, either (i) excessive loss experience or (ii) potential excessive loss experience within such geographical area, provided that a copy of the underwriting standard shall be furnished to the applicant for insurance, if denied, and provided that the Superintendent of Insurance may within his discretion rule on the reasonableness of the applicable underwriting standard, and provided further that in any action arising with respect to this section the burden of proof of reasonableness of the underwriting standard shall be on the proponent of the underwriting standard.
      Regulation 71-13 provides in pertinent part as follows:

        Section 2. Permissible reasons for cancellation

      a. No automobile policy shall be can-celled, nor shall any cancellation be effective for any purpose, unless the insured has either:
      1. refused or failed to pay a premium due under the terms of the policy; or
      2. been subjected to suspension of his operator’s permit at any time during the policy period if he is the named insured in an operator’s policy; or
      3. been subjected to suspension of the registration of a motor vehicle designated in his owner’s or automobile policy at any time during the policy period, if as a result of such suspension no motor vehicle specifically described in such owner’s policy is validly registered; or

        4. made a material and willful misstatement or omission of fact to the insurer or its employees, agents or brokers in connection with any application to or claim against, such insurer; or
      5. the motor vehicle or other interest of the insured shall have been transferred to a person other than the insured or beneficiary, unless the transfer is permissible under the terms of the policy, or unless the motor vehicle, interest or use thereof shall have materially changed with respect to its insur-ability.
      b. No other policy shall be cancelled nor shall such cancellation be effective for any purpose, unless either:
      1. the insured has refused or failed to pay a premium due under the terms of the policy; or
      2. the insured has made a material and willful misstatement or omission of fact to the insurer or its employees, agents, or brokers in connection with any application to or claim against such insurer; or
      3. the property or other interest of the insured shall have been transferred to a person other than the insured or beneficiary, unless the transfer is permissible under the terms of the policy, or unless the property, interest or use thereof shall have materially changed with respect to its insurability.

      . U.S.Const. art. I, § 8, cl. 17; Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954) ; District of Columbia v. Thompson Co., 346 U.S. 100, 108, 73 S.Ct. 1007, 97 L.Ed. 1480 (1953).

      . Maryland & D. C. Rifle & Pistol Ass’n v. Washington, 142 U.S.App.D.C. 375, 442 F.2d 123, 126 n. 14 (1971) ; Filippo v. Real Estate Comm’n of the District of Columbia, 223 A.2d 268, 271 (D.C.Ct.App. 1966) ; see District of Columbia v. Thompson Co., 346 U.S. 100, 109-111, 73 S.Ct. 1007, 97 L.Ed. 1480 (1953).

      . See generally, Report of the President’s National Advisory Panel on Insurance in Riot-Affected Areas; Meeting the Insurance Crisis of Our Cities 1-7 (1968).

      . For a discussion of the problems of providing automobile insurance for low income drivers, see Note, A Social Insurance Scheme for Automobile Accident Compensation, 57 Va.L.Rev. 409, 424-29 (1971).

      . Cf. City of Chicago v. Phoenix Ins. Co., 126 Ill. 276, 18 N.E. 668 (1888) (striking down a municipal insurance tax as preempted by state statute).

      . The Regulation at issue in Pistol Ass’n was promulgated pursuant to Congress’ specific delegation of police power for the regulation of firearms, 1 D.C.Code § 227, rather than the more general grant of power in § 226. Once the authority to promulgate the challenged regulation is found, this distinction is immaterial to the question of pre-emption.

      . For a general discussion of assigned risk plans, see Dep’t of Transportation, Insurance Accessibility for the Hard to Place Driver (1970) (prepared for DOT by the Division of Industry Analysis, Federal Trade Commission).

      . The assigned risk plan is authorized by Congress but its cancellation provisions are neither mandated nor controlled by statute. The plan’s manual provides that cancellation may be made if the insured:
      (1) is not or ceases to be eligible or in good faith entitled to insurance, or
      (2) has failed to comply with reasonable safety requirements, or
      (3) has violated any of the terms or conditions upon the basis of which the insurance was issued, or
      (4) has obtained the insurance through fraud or misrepresentation, or
      (5) has failed to pay any premiums due under the policy.
      “A statement of facts in support of each such cancellation shall be furnished to the Plan 10 days prior to the effective date of cancellation.” A policyholder, given notice of cancellation, may appeal to the governing committee. District of Columbia Automobile Insurance Plan — Manual, July 1, 1972 §§ 18-19.

      . Section 9 of Regulation 71-13 states that the regulation “shall not apply to the policies of insurance issued under the District of Columbia Insurance Placement Act (PAIR plan), [or] the District of Columbia Automobile Insurance (D.C.A.I.P.) [plan] . . . .”

      . 12 U.S.C. § 1749bbb.

      . Environmental hazards are defined as: [A]ny hazardous condition that might give rise to loss under an insurance contract, but which is beyond the control of the property owner. 35 D.C.Code § 1702(3).

      . The FAIR plan program has been repeatedly criticized as failing in its purpose of providing adequate access to insurance for owners of urban core properties. See, e. g., Note, The Central City Insurance Crisis; Experience Under the Urban Property Protection and Reinsurance Act of 1968, 38 U.Chi.L.Rev. 665 (1971).

      . See note 12, supra.

      . The Regulation may, in fact, facilitate the operation of the Placement Act by requiring notices of cancellation and non-renewal to inform the policyholder of his possible eligibility for insurance from the Placement Act facility.


author: BREITENSTEIN, Circuit Judge.

text:
    Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. David DILLION, an individual, Defendant-Appellee.
    No. 73-1088.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted July 13,1973.
    Decided Aug. 30, 1973.

      Jacob I. Karro, Washington, D. C. (Alfred G. Albert, Acting Sol. of Labor, Carin Ann Clauss, Associate Sol., George Avery, Regional Sol., and John K. Light, Atty., U. S. Dept, of Labor, on the brief), for plaintiff-appellant.
    Carl D. Hall, Jr., Tulsa, Okl. (Hall & Sublett, Tulsa, Okl., on the brief), for defendant-appellee.
    Before BREITENSTEIN, BARRETT and DOYLE, Circuit Judges.
   BREITENSTEIN, Circuit Judge.

The Secretary of Labor, plaintiff-appellant, sued defendant-appellee to enjoin him from violating the minimum wage, overtime, and record keeping provisions of the Fair Labor Standards Act as amended, 29 U.S.C. § 201 et seq. The district court dismissed the action and the Secretary appeal^.

The facts are stipulated. Defendant owns and operates three apartment complexes in Tulsa, Oklahoma, and employs 35 persons to manage and maintain the buildings and grounds. The volume of business exceeds the jurisdictional amount of $250,000. See 29 U.S.C. § 203(s)(l). Defendant regularly purchased from local dealers a great variety of supplies and materials which traveled in interstate commerce. Included therein were items such as paint, light bulbs, soap, cleansers, cleaning equipment, plumbing fixtures, grass seed, and chlorine for the swimming pool. Additionally, he purchased furniture which was made outside of Oklahoma and shipped directly to him.

The issue is whether the “enterprise” provisions of the 1961 amendments to the Act bring defendant within its coverage. Defendant says that they do not because the intent was not to enlarge the class of employers subject to the Act. See Maryland v. Wirtz, 392 U.S. 183, 193, 88 S.Ct. 2017, 20 L.Ed.2d 1020. The statement there is that the enterprise concept did not enlarge the Act. Coverage was enlarged to include all of the employees of an employer if some of those employees met the commerce criterion. This construction and application of the 1961 amendments has been uniformly upheld by the circuits which have considered the problem since the Maryland decision. See Wirtz v. Melos Construction Corp., 2 Cir., 408 F.2d 626, 627-628; Clifton D. Mayhew, Inc. v. Wirtz, 4 Cir., 413 F.2d 658, 662; and Brennan v. Greene’s Propane Gas Service, Inc., 5 Cir., 479 F.2d 1027. On this appeal, defendant does not question the trial court’s holding that his apartment complex operation is an enterprise within the meaning of 29 U.S.C. § 203 (r). The issue is whether it is an enterprise engaged in commerce.

Section 203(s), 29 U.S.C., provides:

“ ‘Enterprise engaged in commerce or in the production of goods for eom-merce’ means an enterprise which has employees engaged in commerce or in the production of goods for commerce, including employees handling, selling, or otherwise working on goods that have been moved in or produced for commerce by any person, and which—
(1) * * * is an enterprise whose annual gross volume of sales made or business done is not less than $250,000 * *

Thus, two tests are established, the engagement of the employees in (1) commerce or (2) the production of goods for commerce. The applicability of (1) depends on the activities of the employees in unloading the furniture which was shipped from out of state directly to defendant in trucks. Defendant’s employees would verify the shipments and acknowledge receipt. The trucker would then place the items on or near the tailgate of the truck and the defendant’s employees would take them from there.

In Shultz v. National Electric Company, Inc., 10 Cir., 414 F.2d 1225, 1227, we held that interstate movement stops when merchandise is unloaded on the docks or warehouse floor of the consignee. In the case at bar, the trial court held that interstate movement stopped when the merchandise was moved from inside the delivery trucks to or near the tailgates, and on the authority of National Electric held that defendant’s employees were not engaged in commerce. The Secretary questions the validity of National Electric and says that in any event a tailgate may not be equated with a dock or floor. We find it unnecessary to explore this esoteric issue and its companion problems of the regularity and substantiality of the employees’ work connected with the unloading of the furniture.

The second test of § 203(s) is engagement of the employees in the production of goods for commerce. The Act does not define “production” but defines “produced,” 29 U.S.C. § 203(j):

“ ‘Produced’ means produced, manufactured, mined, handled, or in any other manner worked on in any State; and for the purposes of this chapter an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production thereof, in any State.”

“Goods” is defined thus, 29 U.S.C. § 203(i):

“ ‘Goods’ means goods * * *, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof, but does not include goods after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof.”

We consider first the reference to “goods.” The paint, light bulbs, soap, and other supplies were manufactured outside of Oklahoma and moved in commerce to get to the defendant’s premises. Defendant argues that the § 203(i) exemption of the ultimate consumer applies to him. The trial court so held in reliance on three district court decisions. See Shultz v. Travis-Edwards, Inc., W.D.La., 320 F.Supp. 834, rev. on other grounds 5 Cir., 465 F.2d 1050, cert. denied 409 U.S. 1076, 93 S.Ct. 685, 34 L.Ed.2d 665; Shultz v. Arnheim and Neely, Inc., W.D.Pa., 324 F.Supp. 987, rev. on other grounds 3 Cir., 444 F.2d 609, rev. 410 U.S. 512, 93 S.Ct. 1138, 35 L.Ed.2d 463, and Shultz v. Wilson Building, Inc., S.D.Tex., 320 F.Supp. 664, affirmed 5 Cir., 478 F.2d 1090, on the basis of independent grounds of coverage.

Three district court decisions hold to the contrary and say that employees of an apartment house owner who handle various products moving in commerce are covered by the Act. See Hodgson v. Rivermont Corp. d b a Fox Meadows Apartments, M.D.Fla., 71 Lab.Cas. ¶ 32,898; Sharp v. Warner Holding Company, Minn., 70 Lab.Cas. ¶ 32,721; and Hodgson v. Woolin & Son, Inc., S.D.Fla., 65 Lab.Cas. ¶ 32,527. The theory of these cases is that the supplies are in recurring need and are for the use and benefit of the tenants. The cost is passed on to the tenants and, hence, there is in effect a resale. Accordingly, the apartment house owner is not the ultimate consumer. Support for these conclusions is found in cases like Goldberg v. Furman Beauty Supply, 3 Cir., 300 F.2d 16, 18-19; Wirtz v. Melos Construction Corp., 2 Cir., 408 F.2d 626, 629; and National Automatic Laundry and Cleaning Council v. Shultz, 143 U.S. App.D.C. 274, 443 F.2d 689. In Fur-man, the products were beauty preparations used in the treatment of customers who were held to be the ultimate consumers. In Melos, the products were construction materials used in buildings erected for sale. The Laundry case imposed Act coverage on coin-operated laundries.

The Act, 29 U.S.C. § 203 (k), defines sale to include “any sale, exchange, contract to sell * * * or other disposition.” We have held that this encompasses the rental of office space. Wirtz v. First National Bank and Trust Company, 10 Cir., 365 F.2d 641, 645. By the same reasoning apartment space is within the definition.

The apparent reason for the exclusion of the ultimate consumer is to protect a retail purchaser from the provision of the Act, 29 U.S.C. § 215(a)(1), making it unlawful to transport in commerce goods produced in violation of the Act. This is consistent with the § 203(i) provision that the ultimate consumer exclusion does not apply to a producer, manufacturer, or processor. Defendant says that he is not a producer and relies on Western Union Telegraph Co. v. Lenroot, 323 U.S. 490, 504, which was concerned with the child labor provisions of the Act, 29 U.S.C. § 212, and held that the transmission of telegrams was not a production of goods. As we read Western Union, the Court gave consideration to 29 U.S.C. § 215(a) and distinguished between handling generally and handling in transportation. Western Union does not apply to the handling of materials used in the actual operation of the employer’s business of furnishing housing accommodations for his tenants.

In our opinion the materials with which we are concerned come within the statutory definition of goods. The exclusion of the ultimate consumer does not apply to defendant. The next question relates to production.

Section 203(j) says that an employee is engaged in the production of goods if he “was employed in producing, * * * handling, * * * or in any other manner working on such goods.” The stipulation of the parties says that the products and merchandise therein mentioned “were regularly handled by defendant’s employees as the needs of the business required.” The merchandise had moved interstate and the fact that some of it was acquired intrastate is immaterial. Wirtz v. Melos Construction Corp., 2 Cir., 408 F.2d 626, 628-629. The admitted handling of the merchandise by the employees in the regular course of defendant’s business made them engaged in the production of goods for commerce.

The essential elements of the statutory requirements are satisfied. Defendant’s operation of his apartment complex makes it an enterprise. The economic test of amount of business is met and he has the requisite number of employees. Those employees handled materials which have moved in interstate commerce and, hence, are engaged in production. There is a recurring need for the materials and supplies to enhance the value of the rental units. In effect, by renting the apartments defendant resold the articles to the tenants for their use and benefit. Defendant is not the ultimate consumer and is not within the exclusion of § 203(i). He is covered by the Act and must comply with its provisions.

We believe that this conclusion conforms with the intent of Congress in enacting the 1961 amendments. The enterprise concept was used to provide a broad sweep of coverage to employees of businesses which met the economic test of amount of business done. S.Rep. 145, 87 Cong. 1st Sess., 2 U.S.Code Cong. & Admin.News 1961, p. 1624. In determining the amount of business done activities such as “renting or leasing of property” are included. S.Rep. 1487, 89th Cong. 2d Sess., 2 U.S.Code Cong. & Admin.News 1966, p. 3009. Also, our conclusion accords with the judicially established principles that the FLSA is a remedial statute which “must not be interpreted or applied in a narrow, grudging manner,” Tennessee Coal, Iron & Railroad Co. v. Muscoda Local, 321 U.S. 590, 597, 64 S.Ct. 698, 703, 88 L.Ed. 949, and that the exemptions from FLSA coverage “are to be narrowly construed against the employers seeking to assert them,” Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 456, 4 L.Ed.2d 393.

Reversed and remanded for further proceedings in the light of this opinion.


author: EUGENE A. WRIGHT, Circuit Judge: ELY, Circuit Judge

text:
    Oscar Dale PORTER, Plaintiff-Appellant, v. Elliot L. RICHARDSON, Attorney General of the United States, et al., Defendants-Appellees.
    No. 71-2976.
    United States Court of Appeals, Ninth Circuit.
    Aug. 23, 1973.
    Larry J. Richmond (argued), Phoenix, Ariz., for plaintiff-appellant.
    William D. Appier, Silver Spring, Md. (argued), L. Patrick Gray, III, Asst. Atty. Gen., Dept, of Justice, Washington, D.C., William C. Smitherman, U. S. Atty., Phoenix, Ariz., Morton Hollander, Dept, of Justice, Washington, D.C., for defendants-appellees.
    Before MERRILL, ELY and WRIGHT, Circuit Judges.
   EUGENE A. WRIGHT, Circuit Judge:

The issue here is whether the district court was correct in holding that prein-duction judicial review of a local Selective Service board’s refusal to issue appellant a fatherhood deferment was prohibited by § 10(b)(3) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 460(b)(3). If the district court was correct, and § 10(b)(3) deprived it of jurisdiction at this time, then Porter must wait and challenge the board’s action either by habeas corpus or by defense to criminal proceedings against him.

Porter was classified I-A by his local board on June 9, 1967. After becoming a full time student in the fall of 1967, Porter requested on January 26, 1968, that he be classified II-S, and on March 8, 1968 he received such classification from his local board. Then, on May 3, 1968, Porter notified his local board that his wife was pregnant and requested a III-A fatherhood deferment. The local board denied Porter the fatherhood deferment on the ground that he was ineligible for such a classification having been classified II-S subsequent to June 30, 1967.

Appellant’s student deferment continued until April 1969, when he was reclassified I-A. He was ordered inducted on July 6, 1970, but he refused to report.

Prior to any criminal proceedings being brought against him, appellant brought this action for declaratory and injunctive relief. The government responded, and the district court so held, that the district court was without subject matter jurisdiction to entertain the action since preinduction judicial review of appellant’s claim was barred by § 10(b)(3).

We are again confronted with f"the most difficult task of attempting to determine the extent to which an enactment of Congress, § 10(b)(3), deprives Article III courts of jurisdiction otherwise conferred upon them by 28 U.S.C. § 1331. Any consideration of the parameters of the withheld jurisdiction must acknowledge the congressional concern, expressed in § 10(b)(3), over preventing “litigious delay in the process of raising an army.” Shea v. Mitchell, 137 U.S. App.D.C. 227, 421 F.2d 1162, 1165 (1970).

The Supreme Court has consistently recognized, however, that § 10(b)(3) does not strip Article III courts of jurisdiction of all preinduction suits. Oestereich v. Selective Service System, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968); Breen v. Selective Service Local Board, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970). In its most recent interpretation of § 10(b)(3), the Court declared:

Thus [previous cases interpreting § 10(b)(3)] together establish the principles (a) that § 10(b)(3) does not foreclose pre-induction judicial review in that rather rare instance where administrative action, based on reasons unrelated to the merits of the claim to exemption or deferment, deprives the registrant of the classification to which, otherwise and concededly, he is entitled by statute, and (b) that § 10(b)(3) does foreclose pre-induction judicial review in the more common situation where the board, authoritatively, has used its discretion and judgment in determining facts and in arriving at a classification for the registrant. Fein v. Selective Service System, 405 U.S. 365, 374-375, 92 S.Ct. 1062, 1069, 31 L.Ed.2d 298 (1972).

We read Fein and its predecessors, as interpreting § 10(b)(3) as barring preinduction judicial review in all but those rare cases, where the action of the Selective Service System deprives the registrant of a classification to which he is entitled by statute. In only two eases has the Court found § 10(b)(3) not to bar preinduction review. In Oestereich v. Selective Service System, supra, the registrant had been classified IV-D in accordance with § 6(g) of the Selective Service Act when he turned in his registration certificate as a protest against the Vietnam war. Applying the regulations then in effect, the local board declared Oestereich delinquent and reclassified him I-A.

The Court held that § 10(b)(3) was no bar to preinduction review, relying upon the fact that Oestereich concededly was entitled to a statutorily mandated ministerial exemption if the delinquency regulations which were being used to deprive him of his exemption were invalid. As the Court stated: “when Congress has granted an exemption and a registrant meets its terms and conditions, a Board [cannot] nonetheless withhold it from him for activities or conduct not material to the grant or withdrawal of the exemption.” Oestereich, supra, 393 U.S. at 237, 89 S.Ct. at 416.

Similarily, in Breen v. Selective Service Local Board, supra, the Court found § 10(b)(3) no bar to judicial review where the local board applied the delinquency regulation to deny the registrant a student deferment to which he otherwise was concededly entitled. In Breen, just as in Oestereich, “the order for induction involved a ‘clear departure by the Board from its statutory mandate,’ ”. (Emphasis supplied.) Breen, supra, 396 U.S. at 467, 90 S.Ct. at 666.

Thus in Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968), the Court held that § 10(b)(3) barred preinduction judicial review. Oestereich was distinguished as involving a statutory entitlement to exemption, whereas in Gabriel there was “no doubt of the Board’s statutory authority to take action which appellee challenges. . . Id. at 258, 89 S.Ct. at 426. See also Boyd v. Clark, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 511 (1969).

We conclude that a board’s classification action is not subject to preinduction review as long as the board is acting within the scope of its statutory authority. Our inquiry then, should be to “pierce the pleadings and preview the merits” in order to determine whether Porter’s claim is grounded in the statute, or whether he is solely objecting to the board’s interpretation of regulations which are not statutorily infirm. See Crowley v. Pierce, 461 F.2d 614, 618 (5th Cir. 1972) (Brown, concurring).

Porter’s contention is that, at the moment his wife conceived their child, he was entitled to a III-A deferment under 32 C.F.R. § 1622.30(a):

“In Class III-A shall be placed any registrant who has a child [defined as in esse from the date of conception]

Porter claims that his right to the III-A classification was indefeasible and survives his having been granted a II-S deferment, the following portion of § 1622.30(a) to the contrary:

“. . . except that a registrant who is classified in Class II-S after [June 30,1967] shall not be eligible.”

Porter does not claim that under the sta.tute he was entitled to a III-A deferment at the date of his wife’s conception, nor could he, for the III-A deferment has been established by regulation, under the following statutory authority:

“. . . the President is also authorized, under such rules and regulations as he may prescribe, to provide for the deferment ... of any or all categories of persons who have children, or wives and children, with whom they maintain a bona fide family relationship in their homes.” 50 U.S.C.App. § 456(h)(2).

Pursuant to this broad statutory directive, the President established the III-A classification, with the proviso that it is not available to anyone who has received a II-S deferment after June 30, 1967. Porter contends that the terms “shall be entitled” of the applicable regulation indicates that if his wife became pregnant prior to March 8, 1968, the date he received his II-S classification, then he was entitled to a III-A deferment, the intervening II-S classification notwithstanding.

Porter’s local board interpreted the regulation differently. As they read it, once Porter was issued a II-S classification, he was no longer eligible for a III-A, no matter when his wife became pregnant.

Without passing on the merits of Porter’s interpretation, it must be conceded that the board’s interpretation is a reasonable reading of the regulation. Porter, however, would have us choose his interpretation, on the grounds that it would more closely approximate the Congressional purpose found in 50 U.S.C. App. § 456(h)(1):

“No person who has received a student deferment . . . shall thereafter be granted a [III-A] deferment. tt

It is accepted that the purpose of this statutory language was to preclude the “pyramiding” of deferments into complete exemption from military service. See Gregory v. Tarr, 436 F.2d 513 (6th Cir. 1971). Porter argues that since his wife was already pregnant at the time he received the II-S classification, and since he was, under the regulations, entitled to a III-A deferment at that time, no pyramiding of deferments was involved in his case, and we would be nearer to the Congressional purpose of § 456(h)(1) were we to interpret the regulation as he desires.

We are faced, however, with the fact that Congress gave the President a broad statutory directive to establish regulations dealing with deferments for men with children. Pursuant to that discretionary authority, Reg. 1622.30(a) was adopted. Since we cannot say that the board’s interpretation deprives Porter of an exemption or deferment to which he is “entitled by statute,” and since the board’s interpretation is reasonable, we must conclude that § 10(b)(3) applies. To hold otherwise would totally nullify the clearly expressed Congressional purpose to limit judicial interference with Selective Service preinduction processing. If we were to hold § 10(b)(3) to be no bar in this case, then any case where a board’s interpretation of a regulation is disputed would also be outside the jurisdictional limitations of § 10(b)(3).

This of course is not to say that every interpretation given a regulation by a board must necessarily escape preinduction judicial review. But where the board’s interpretation, as here, is not blatantly lawless, and where, as here, the registrant’s entitlement to a deferment or exemption is not grounded in a statute, § 10(b)(3) does operate to strip the district court of jurisdiction over the merits of the controversy.

Affirmed.

ELY, Circuit Judge

(dissenting):

I respectfully dissent. The majority opinion unnecessarily casts our court into direct conflict with the Second Circuit, it does not harmonize with controlling authorities, and it may result in the imposition of an intolerable injustice upon a youth who, from everything shown by the record, is an exceptionally decent and moral individual.

When Porter first registered with the Selective Service system, he was a college student attending Brigham Young University. A faithful disciple of the Church of Jesus Christ of the Latter Day Saints, he subsequently performed extensive ministerial service in behalf of his Church. It was after the termination of that mission that the events leading to the present controversy began.

The writing of a proposed opinion in this case was originally ássigned to me. I prepared an opinion, eventually rejected by my Brothers, although, as can be seen, some of my language has been written into the opinion of the present majority. I can now express my views no better than I did when I first set them forth. Accordingly, I express my dissent by quoting, in toto, the original opinion that I prepared. It reads:

Here, the issue is whether section 10(b)(3) of the Military Selective Service Act of 1967, 50 U.S.C.App. § 460(b)(3), prohibits preinduction judicial review of a local Selective Service Board’s refusal to issue the appellant a fatherhood deferment under 50 U.S.C. App. § 456(h)(2) and 32 C.F.R. § 1622.-30(a). If section 10(b)(3) deprived the District Court of jurisdiction at this time, then Porter must wait and challenge the board’s action either by ha-beas corpus or by defense to criminal proceedings against him. See Breen v. Selective Service Board, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970); Oes-tereich v. Selective Service Board, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968); cf. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946); Falbo v. United States, 320 U. S. 549, 64 S.Ct. 346, 88 L.Ed. 305 (1944).

In the fall of 1967, Porter became a full-time student at Arizona State University. Since at that time he did not request a student deferment,- Porter’s local board classified him I-A on June 9, 1967. Subsequently his wife became pregnant arguably on January 25, 1968, but neither prospective parent was aware of the conception until late April, approximately three months later. Thereafter, on May 3rd, Porter applied for a III-A fatherhood deferment. On the preceding January 26th, however, Porter had applied for a II-S student deferment that he received in March. The local board rejected Porter’s request for the fatherhood deferment, reasoning that his application for the II-S classification extinguished his right to be classified III-A.

A child was born to the Porters on October 25, 1968. Following his reclassification as I-A in April of 1969, Porter received induction orders on July 6, 1970. He refused to report.

Porter claims that his local board erroneously refused to classify him III-A. The Government responds that preinduction judicial review of this claim is barred by statute and that the District Court was thus without subject matter jurisdiction to entertain the action.

It is of course clear that Porter’s complaint stated a claim “arising under . the Laws of the United States . . and that jurisdiction under the Constitution is present. The critical question is whether Congress, through section 10(b)(3) effectively deprived the District Court of statutory jurisdiction otherwise conferred by 28 U.S.C. §§ 1331, 1361.

Impetus for the passage of section 10(b)(3) derived from Congressional concern over preventing “litigious delay in the process of raising an army.” Shea v. Mitchell, 137 U.S.App.D.C. 227, 421 F.2d 1162, 1165 (1970); see Gregory v. Tarr, 436 F.2d 513, 515 (6th Cir. 1971). The Statute, however, was drafted so broadly that a literal interpretation would ostensibly strip jurisdiction from all preinduction suits. That interpretation has necessarily been brushed aside, since the Congressional power to withhold or withdraw jurisdiction from lower federal courts is subject to constitutional limitations. See Eastern States Petroleum Corp. v. Rogers, 108 U.S.App.D.C. 63, 280 F.2d 611, 614 (1960); Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir. 1948). Consequently, although the Supreme Court upheld the overall constitutionality of the provision, Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968), the Court construed it as not purporting to compromise, for example, the constitutionally protected writ of habeas corpus. Oestereich, supra, 393 U.S. at 238, 89 S.Ct. 414. Moreover, the Court has sought to delineate the boundaries of jurisdiction withheld by section 10(b)(3). In Fein v. Local Board, 405 U.S. 365, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972), Breen, supra, and Oestereich, supra, the Court declared that section 10(b)(3) forecloses review in cases wherein the board has exercised its discretion and judgment in evaluating facts in order to determine a classification. On the other hand, preinduction review remains available where the board engages in “blatantly lawless” conduct and where the board does not exercise its discretion in evaluating evidence and in determining whether a claimed classification is warranted.

The Government suggests that the Court’s most recent pronouncements in Fein control and that they required dismissal for want of jurisdiction. We disagree.

Registrant Fein claimed that the Board’s denial of his C-0 (conscientious objector) application violated fourteenth amendment guarantees of procedural due process. The Supreme Court decided, however, that section 10(b)(3) barred preinduction review of Fein’s claim because entitlement to conscientious objector status was not “factually conceded and thus was assured by the statute upon objective criteria.” 405 U.S. at 376, 92 S.Ct. at 1070. Therefore, the Court reasoned that Fein’s claim turned essentially upon “ ‘the weight and credibility of the testimony,’ . . . [a]nd [that] it was ‘dependent upon an act of judgment by the board.’ ” Id. Concluding that this was a situation wherein “the board, authoritatively, has used its discretion and judgment in determining facts and in arriving at a classification. . . . ”, the Court held that section 10(b)(3) foreclosed preinduction review.

Unlike Fein’s C-0 application, Porter’s request for a III-A classification did not call upon the local board to determine facts, or to exercise its discretion or judgment. The facts here are undisputed, and the validity of Porter’s claim depended solely upon the legal consequences of those facts. In contrast to the subjective, judgmental, and discretionary determination made in Fein, Porter’s claim required only an objective consideration of the regulations themselves. If the interpretation advanced by Porter is correct, then the board was without authority to deny the III-A request. The Fein decision, therefore, does not dispose of our present problem. See-Crowley v. Pierce, 461 F.2d 614, 617 (5th Cir. 1972) (Brown, C. J., concurring specially); Levine v. Local Board, 458 F.2d 1281, 1286 n.19 (2d Cir. 1972).

We read the applicable regulations as declaring that, at any time prior to the issuance of induction orders an expectant father is entitled to a III-A deferment so long as he notifies his board of that status and so long as he has not been classified II-S between June 30, 1967 (the effective date of the Act), and the date of conception.

Conception of the Porters’ child occurred prior to the II-S classification of March 8, 1967. Porter remained eligible for III-A deferment before that date and, in fact, his right to that deferment vested at conception. The right might have been forfeited had he failed to notify his board of the pregnancy or birth prior to induction orders. Since, however, Porter communicated his changed status to the board on May 3, 1968, and induction orders were not issued until July of 1970, the right remained indefeasible.

To the extent that judicial glosses of the jurisdictional parameters of section 10(b)(3) appear indefinite, we think we should apply the provision in a manner that will most effectively harmonize two overriding, and often competing, national policies: first, to facilitate the individual’s quest for the prompt and just adjudication of his rights; secondly, to assure the Government the efficient procurement and training of military personnel.

Our interpretation of the relevant statutes and regulations convinces us that Porter’s claim is wholly valid. Moreover, we are convinced that in situations, such as this, in which a local board has clearly departed from explicit, objective regulations, the national defense policy is best served by prompt judicial insistence upon uniform and accurate application of selective service regulations. Our conclusion would necessarily have been otherwise had the issues here been intertwined with factual or other subjective determinations properly vested in the board. Our disposition of this appeal, however, poses no conflict between individual and governmental interests.

We hold that Porter’s indefeasible right to a fatherhood deferment arose prior to his classification as II-S and that, therefore, the board was without statutory authority to withhold a III-A deferment or to order his induction. The determination to withhold the fatherhood deferment thus involved “no exercise of discretion”. Under Fein, Breen, and Oestereich, the dismissal of Porter’s complaint was erroneous.

The foregoing constitutes, in full, my original opinion. I think it advisable to add brief comments concerning three authorities cited by the majority and which it supposes to support its conclusion.

I vigorously reject the majority’s suggestion that the opinions of our sister Circuits in Crowley v. Pierce, 461 F.2d 614 (5th Cir. 1972); Morgan v. Melchar, 467 F.2d 133 (3d Cir. 1972); or McCarthy v. Director, 460 F.2d 1089 (7th Cir. 1972) undercut my reasoning in any significant way.

In Crowley, the distinction between a status conferred by statute and one conferred by a regulation pursuant to a statute was supposed only by one judge in a specially concurring opinion. Regardless of the Government’s peccant statement that such a distinction was “squarely held”, a fair reading of the majority and concurring opinions re-, veals that two members of the panel re-jeeted such an approach. The majority in Crowley in fact held that since Crowley did not assert a status to which he was concededly entitled, section 10(b)(3) barred jurisdiction. This is fully consistent with my approach, which demonstrates that the pertinent regulation clearly entitled Porter to a fatherhood deferment.

Our case is similarly quite different from Morgan v. Melchar. There, the registrant alleged that unconstitutional administrative procedures had deprived him of a hardship deferment. The draft board in Morgan exercised its discretion and judgment in resolving factual issues; its decision was a product of the “process” and the “system of classification”. In contrast to the fatherhood deferment sought by Porter, which would be predicated upon purely objective criteria, the hardship deferment sought by Morgan is a malleable classification whose basis lies in the subjective judgment and discretion of the local board.

McCarthy also presented a somewhat different question. There, the registrant challenged the constitutionality of the regulation itself and the administrative procedures under which he was classified. Porter, in contrast, argues only that the board clearly departed from its own constitutional regulations. Moreover, as in Morgan and Crowley, and unlike Porter, the registrant in McCarthy did not assert a factually conceded status.

To the extent that Crowley, Morgan or McCarthy could be read as lending some support for the majority’s approach, I would underscore once again the sound position of the Second Circuit, e.g., Horey v. Tarr, 470 F.2d 775 (2d Cir. 1972); Martire v. Local Board, 467 F.2d 893 (2d Cir. 1972) ; Levine v. Local Board, 458 F.2d 1281 (2d Cir. 1972), as well as the reasoning in my original opinion set forth above.

The essential justification for circumscribing preinduction review was to insulate the selective service system from crippling judicial challenges. Congress obviously wished to encourage local boards to exercise their administrative expertise in classifying registrants. When, as here, the issues are not “intertwined with factual or other subjective determinations properly vested in the board”, and when “a local board has clearly departed from explicit, objective regulations, the national defense policy is best served by prompt judicial insistence upon uniform and accurate application of selective service regulations.”

I would reverse.

      . Section 10(b)(3) provides, in relevant part:
      “No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution . [for refusing to report] . . . after the registrant has responded either affirmatively or negatively to an order to report for induction . . . Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant.”

      . Porter’s wife was delivered of a child on October 25, 1968. For the purposes of this opinion, we will assume that she was pregnant prior to Porter’s receipt of a II-S classification on March 8,1968.

      . 32 C.F.R. § 1622.30(a).

      . See Crowley v. Pierce, 461 F.2d 614, 618 (5th Cir. 1972) (Brown, concurring) ; Morgan v. Melchar, 467 F.2d 133 (3d Cir. 1972) ; McCarthy v. Director of Selective Service System, 460 F.2d 1089 (7th Cir. 1972). Since we conclude that the Board’s interpretation of the regulation is a reasonable one, we are not called upon to decide the applicability of § 10(b) (3) to the situation where the Board engages in “blatantly lawless” conduct. See, e. g., Horey v. Tarr, 470 F.2d 775 (2d Cir. 1972). (Section 10(b) (3) no bar when Board departs from “specific and definite” regulation).

      . See, n. 4, supra.

      . Section 10(b)(3) provides, in relevant part:
      “No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution [for refusing to report] . . . after the registrant has responded either affirmatively or negatively to an order to report for induction Provided, that such review shall go to the question of jurisdiction herein reserved to local boards, appeal boards, and the Presi-' dent only when there is no basis in fact for the classification assigned to such registrant.”

      . 32 C.F.R. §§ 1622.30(a) and (c)(3) provide, in relevant part:
      “In Class III-A shall be placed any registrant who has a child [defined in esse from the date of conception] . . . except that a registrant who is classified in Class II-S after [June 30, 1967] . . . shall not be eligible ....
      “No registrant shall be placed in Class III-A . . . because he has a child which is not yet, born unless prior to the time the board mails him an order to report for induction which is not subsequently can-celled there is filed with the local board the certificate of a licensed physician . . . . ”