author: CRAVEN, Circuit Judge: WIDENER, Circuit Judge

text:
    Leon H. WHITE, Appellee, v. Warren M. BLOOMBERG, Postmaster, United States Post Office Department to be known as The United States Postal Service, et al., Appellants.
    No. 73-1960.
    United States Court of Appeals, Fourth Circuit.
    Argued Jan. 10, 1974.
    Decided July 18, 1974.

      Jean A. Staudt, Atty., U. S. Dept, of Justice (Irving Jaffe, Acting Asst. Atty. Gen., George Beall, U. S. Atty., Kathryn H. Baldwin, Atty., U. S. Dept, of Justice, on brief), for appellants.
    Kenneth A. Reich, Baltimore, Md. (Robert M. Bell, Garber A. Davidson, Jr., David F. Tufaro and Piper & Mar-bury, Baltimore, Md., on brief) for ap-pellee.

      Before WINTER, CRAVEN and WIDENER, Circuit Judges.
   CRAVEN, Circuit Judge:

This suit by a wrongfully discharged postal employee raises an ancillary question of procedure under the Back Pay Act of 1966, 5 U.S.C. § 5596. Four months after the district court awarded plaintiff a summary judgment for reinstatement and back pay, the Postal Service attempted to raise an issue of failure to mitigate damages, contending that the period of entitlement to back pay should be reduced because plaintiff had not made reasonable efforts to obtain substitute employment. The district judge refused to reopen the judgment and added post-judgment interest to the amounts due plaintiff. The Postal Service appealed from both rulings. We affirm.

The Baltimore Post Office discharged Leon White on October 30, 1970, for failing to pay a debt claimed by the postal employees’ credit union. After exhausting his administrative remedies, White filed this suit for reinstatement and back pay in the district court. On June 23, 1972, the district court granted plaintiff’s motion for summary judgment. White v. Bloomberg, 345 F.Supp. 133 (D.Md.1972). The court’s opinion was accompanied by an order in these words:

The defendant United States Postal Service shall without delay reinstate plaintiff and pay to him back pay from the date of his discharge, namely, October 30, 1970, to the date of his reinstatement in accordance with the opinion of this Court filed this 23rd day of June, 1972.

The Postal Service reinstated White six days later, and the parties began discussions over the exact amount he would receive under the Back Pay Act. Some time in October 1972 the Postal Service first informed White’s counsel that the back pay award would include only the period from October 30, 1970, the date of discharge, to August 5, 1971, the date of the final administrative action, because White had not actively sought substitute employment after his administrative appeal failed. At plaintiff’s request the district judge met with counsel and took the problem under advisement. On May 4, 1973, he entered the order from which this appeal was taken. White v. Bloomberg, 360 F.Supp. 58 (D.Md.1973). Judge Kaufman held that his order of June 23, 1972, was a final money judgment that only lacked “simple mathematical calculations,” and that the Postal Service’s belated attempt to raise the mitigation issue must be regarded as a motion to reopen the judgment under Rule 60(b). He then refused to reopen the judgment, but also considered the merits, expressing the opinion that White had satisfied the Back Pay Act’s mitigation requirement by actively pressing his claim for reinstatement. We think he acted rightly but not for the assigned reasons. The district court also ruled on a second dispute that had surfaced after summary judgment was entered, holding that plaintiff was entitled to recover post-judgment interest on his back wages.

The Mitigation Issue

The Back Pay Act provides as follows:

(b) An employee of an agency who, on the basis of an administrative determination or a timely appeal, is found by appropriate authority under applicable law or regulation to have undergone an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction of all or a part of the pay, allowances, or differentials of the employee—
(1) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect an amount equal to all or any part of the pay, allowances, or differentials, as applicable, that the employee normally would have earned during that period if the personnel action had not occurred, less any amounts earned by him through other employment during that period; and
(2) for all purposes, is deemed to have performed service for the agency during that period, except that the employee may not be credited, under this section, leave in an amount that would cause the amount of leave to his credit to exceed the maximum amount of the leave authorized for the employee by law or regulation.

Although the Act itself does not authorize deductions based on an employee’s failure to seek substitute employment, the Court of Claims has held that the common law rules of mitigation apply. Urbina v. United States, 192 Ct.Cl. 875, 428 F.2d 1280 (1970); Schwartz v. United States, 149 Ct.Cl. 145, 181 F.Supp. 408 (1960). Under this doctrine, the employer can reduce its back pay obligation by the amount the employee could have earned if he had made reasonable efforts to find another job. 11 S. Williston, Law of Contracts §§ 1358-59 (Jaeger ed. 1968); NLRB v. Moss Planing Mill Co., 224 F.2d 702 (4th Cir. 1955). In this case neither White nor the defendants raised the issue of mitigation prior to the entry of summary judgment, and each now argues that the other bore the burden of proof with respect to this issue. Because defendants did not appeal the initial back pay award, however, they may not now assert plaintiff’s failure of proof on this issue as a bar to recovery. And, though mitigation is ordinarily considered an affirmative defense that must be pleaded and proved by the employer, e. g., Florence Printing Co. v. NLRB, 376 F.2d 216 (4th Cir.), cert. denied, 389 U.S. 840, 88 S.Ct. 68, 19 L.Ed.2d 104 (1967); Williston, supra, § 1360; 5 C. Wright & A. Miller, Federal Practice and Procedure § 1273 (1969), we rest our decision on other grounds.

Defendants contend that judicial proceedings for reinstatement and back pay under the Act must be bifurcated, and that the judgment of June 23 ordering reinstatement and back pay was valid as to the former and void as to the latter. At the very least, they insist that the back pay order may be valid but empty of significant effect because subject to being reduced, or even wiped out, by application of the law of mitigation. They say that following a judicial reinstatement order, the initial computation of back pay must be made by an agency, subject to limited judicial review if the employee is dissatisfied with the administrative award. Taking this view of procedure under the Act, defendants urge us to hold that the judgment requiring the Postal Service to pay back pay to plaintiff did not destroy the right to insist on mitigation and thus to deny back pay for eleven of the twenty months that White was out of work. On such a theory an order allowing back pay means little or nothing: it is simply background against which the parties then begin to litigate the mitigation issue.

Defendants did not present this procedural argument to the district judge prior to the entry of summary judgment. White’s complaint clearly raised the issue of back pay. Both parties moved for summary judgment, but neither sought to limit the court’s decision to the issue of liability or suggested that there was a genuine issue on damages that would justify a partial summary judgment under Fed.R.Civ.P. 56(c). The defendants’ only reference to the issue of back pay was a brief paragraph in the memorandum supporting their motion for summary judgment. It contended that the United States is an indispensable party in an action for back pay and that the district court therefore lacked jurisdiction to award back pay against the Postal Service. Plaintiff’s memorandum responded to this point by suggesting that if the court lacked jurisdiction to award back pay, it could order reinstatement without mentioning back pay or the Back Pay Act. Defendants neither pursued this alternative nor suggested that the court should confine its decree to reinstatement for any other reason. When the district judge entered summary judgment for White and ordered the Postal Service to reinstate him with back pay, the defendants missed another opportunity to salvage the mitigation issue for administrative determination. Instead of filing a motion to have the judgment amended under Rule 59(e), defendants filed a notice of appeal from the entire judgment and asked for a stay of the back pay order pending appeal. Nor did they seek to have the judgment reopened under Rule 60(b) when they discovered that plaintiff’s counsel viewed the summary judgment as an actual award of back pay, as indeed, it purports to be. Because the parties had proceeded under different assumptions about the scope of the judicial proceeding, defendants might have been entitled to relief on the grounds of mistake, inadvertence, or excusable neglect under Rule 60(b)(1), but they have never asked for a chance to litigate the mitigation issue in the district court. Indeed, they have not suggested that we should remand the ease for this purpose.

Despite their failure to ask the district court to reserve the question of failure to mitigate on the amount of back pay and to limit the summary judgment to a theoretical determination of entitlement to back pay, or even to reinstatement only, defendants contend that the judgment must be so limited because the district court lacked power to make a specific award under the Back Pay Act. Defendants abandoned their contention that the district court lacked jurisdiction to award back pay by choosing not to appeal the summary judgment, which resolved that issue in plaintiff’s favor. Now they base their contentions solely on the language of the Act and the Civil Service Commission’s regulations. Paragraph (b)(1) of the Act provides that an employee is entitled to receive back pay “upon correction of the [unjustified] personnel action,” and 5 C.F.R. § 550.804(a) provides that “[w]hen an appropriate authority corrects an unjustified or unwarranted personnel action, the agency shall recompute” the amount of back pay due. Around this language defendants have built a procedural structure that echoes the doctrine of primary jurisdiction. First they insist that the issue of back pay cannot be resolved until after an agency or court has decided that the employee was improperly discharged. In this regard back pay claims are no different from other civil suits; a decision on entitlement always precedes calculation of damages, but the two issues may still be resolved in the same proceeding. Defendants also contend that it is impractical to calculate back pay in the main proceeding because back pay continues to accrue until the date of actual reinstatement. This factor is not unique to back pay actions; it may figure in any action that seeks both injunction and damages. Finally, defendants interpret the regulations to require that all claims for back pay be decided initially by an agency. Although it may be argued that paragraph (c) of the Act authorizes the Civil Service Commission to adopt a procedure for exclusive administrative computation of back pay following a judicial order for reinstatement, the present regulations have not done so. Neither the Act nor the regulations prescribe the procedure to be followed by the district courts.

Because the Act and the regulations are silent on this point, we decline to impose a bifurcated procedure on the district courts. The district judges are better situated than we to choose the optimum procedure for a given case. In many cases the court may be able to compute back pay at the time it orders reinstatement. If a particular case presents a complex dispute over computation, the district court has discretionary power to bifurcate the proceedings under Rule 42(b) or Rule 56(c). Indeed, the district court might have done so here had it been asked. Or the district judge may prefer to have the employee and the agency seek agreement on the computation of back pay. If so, he may follow a procedure that has been employed in other Back Pay Act cases, ordering reinstatement and retaining jurisdiction over the back pay issue in case the parties cannot reach an administrative settlement. See Floyd v. Resor, 409 F.2d 714 (5th Cir. 1969); Massman v. Secretary of HUD, 332 F.Supp. 894 (D.D.C.1971). We hold that the district courts are free to tailor an appropriate procedure to fit the facts and the pleadings and to select what seems best for a given case. We decline to adopt a mandatory bifurcation rule, and especially so where bifurcation is suggested for the first time four months after final judgment.

Post-Judgment Interest

The Postal Service contends that as a government agency it is immune from an award of post-judgment interest. It is well established that under the doctrine of sovereign immunity, the government may not be required to pay interest on its debts without consent. E. g., United States v. Alcea Band of Tillamooks, 341 U.S. 48, 71 S.Ct. 552, 95 L.Ed. 738 (1951). But it is equally well established that Congress waives sovereign immunity when it authorizes a governmental agency to sue and be sued in its own name. RFC v. J. G. Menihan Corp., 312 U.S. 81, 61 S.Ct. 485, 85 L.Ed. 595 (1941); FHA v. Burr, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed. 724 (1940). Under the terms of 39 U.S.C. § 401(1), the Postal Service has the power “to sue and be sued in its official name.” The issue we must decide is whether this waiver of immunity subjects the Postal Service to interest on its judgment debts.

In RFC v. J. G. Menihan Corp., supra, the Supreme Court wrote that “the words ‘sue and be sued’ normally include the natural and appropriate incidents of legal proceedings.” 312 U.S. at 85, 61 S.Ct. at 487. Relying on such a grant of authority, it held that the Reconstruction Finance Corporation could be ordered to pay its adversary’s costs in trademark litigation. In FHA v. Burr, supra, the Court held that limits on the authority to sue and be sued should not be presumed. Because post-judgment interest is a normal incident of suits for damages, 28 U.S.C. § 1961, the principle of these cases suggests that a “sue and be sued” clause ordinarily should be construed to waive the agency’s immunity from interest awards. See Asheville Mica Co. v. Commodity Credit Corp., 239 F.Supp. 383, 392-394 (S.D.N.Y.1965), aff’d, 360 F.2d 931 (2d Cir. 1966). The Postal Service contends, however, that Menihan and Burr apply only to governmental corporations, and that because the Postal Service is unincorporated the “sue and be sued” clause cannot be given the same effect. We disagree. A grant of authority to sue and be sued constitutes at least a partial waiver of immunity regardless of the structure or functions of the agency. The question in any such case is the scope of that waiver. In FHA v. Burr the Court outlined the following principles for discerning congressional intent:

[I]f the general authority to “sue and be sued” is to be delimited by implied exceptions, it must be clearly shown that certain types of suits are not consistent with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of Congress to use the “sue and be sued” clause in a narrow sense.

309 U.S. at 245, 60 S.Ct. at 490 (footnote omitted).

The Postal Reorganization Act contains no indication that the “sue and be sued” provision should not be read to authorize an award of interest against the Postal Service. The waiver of immunity is restricted by 39 U.S.C. § 409(b), which gives the Postal Service the benefit of certain procedures that are applicable to suits against the United States and its officers, and section 409(c), which makes the Federal Tort Claims Act applicable to the Postal Service. The Act contains no other limits on the Postal Service’s amenability to suit. Nor under the guidelines of FHA v. Burr is there any suggestion that vulnerability to post-judgment interest will interfere with the Postal Service’s mission. We therefore presume that in creating the Postal Service, Congress used the phrase “sue and be sued” in its normal sense, subjecting the Postal Service to post-j.udgment interest.

Affirmed.

WIDENER, Circuit Judge

(concurring and dissenting) :

I concur with the majority in allowing interest to be recovered against the Postal Service under' the “sue and be sued” provisions of 29 U.S.C. § 401(1), although I would add the caveat that the Postal Service is not a governmental corporation (as it was treated by the district court) in the sense that the Reconstruction Finance Corporation is, but is rather an “independent establishment of the executive branch” performing a function which only the federal government may perform or delegate. 39 U.S. C. § 201; Lawhorn v. Lawhorn, 351 F.Supp. 1399, 1400 (S.D.W.Va.1972). I also note that, construing the phrase “sue and be sued,” this court has previously decided a very nearly identical case, allowing interest on a judgment against the Federal Housing Administrator on the ground that the United States, as an insurer, had agreed to be sued, and recovery of interest is an ordinary incident of suit on an insurance contract. Ferguson v. Union Nat’l. Bank of Clarksburg, 126 F.2d 753, 759 (4th Cir. 1942). The Federal Housing Administrator, in Ferguson, obviously was a part of the executive branch of the government as is the Postal Service here, neither being a governmental corporation. Cf. 39 U.S.C. § 201; 48 Stat. Part I, p. 1246. The Secretary of Housing and Urban Development has since been substituted. See 12 U.S.C.A. § 1702 and notes.

As to the mitigation issue, I must respectfully dissent.

The district court, I believe, was not factually correct in its assertion that the judgment was not, and would not be, reopened. Thus, the majority, relying on the statement by the district court that it refused to reopen the judgment, has reached the incorrect conclusion that the Postal Service has failed to properly raise the mitigation issue. The record on appeal contains an order of the district court dated November 2, 1972, which I would construe as reopening the case to specifically consider the amount of back pay due plaintiff under the order of June 23, 1972. It is, then, apparent that the mitigation issue was raised, and the issue was not only raised, it was argued continually by correspondence from both parties to the court until the May 4, 1973 opinion and order were filed. I also note that the district court, although noting it would not reopen the judgment under F.R.C.P. 60(b), despite having already done so, nevertheless proceeded to decide the mitigation issue on the merits, and concluded that the plaintiff had met his burden of mitigation by “doing what is reasonable” in seeking administrative and judicial review of his discharge. Although I am of opinion this holding on the merits as to mitigation is not in accordance with the statutes, regulations, and case law on the subject, especially in its reliance on Schwartz and Urbina, in both of which cases the employee was either actually at work or seeking work by way of mitigation, this is not my principal complaint.

Whether the judgment was reopened or not, I think the district court erred in holding, contrary to the statutes and regulations, that the Postal Service was precluded from raising any issue relating to the amount of the award after the order of June 23rd became final. The district court, in the order of June 23rd, as it properly should not have, did not compute the amount, so the Postal Service then did just as the statutes and regulations require and began the computation. Indeed, had the district court, in its order of June 23rd, computed the amount, as it did later, absent prior administrative determination, its authority so to do was precluded by the statute and regulations prescribed by specific authority of the statute.

This case is controlled by the Back Pay Act, 5 U.S.C. § 5596. Section 5596(b) provides that “An employee of an agency who ... is found by appropriate authority ... to have undergone an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction of all or a part of the pay,” etc., “(1) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect an amount equal to all or any part of the pay” to which he would have been entitled, less any amounts earned by him through other employment during the period. Section 5596(c) provides, in pertinent part: “The Civil Service Commission shall prescribe regulations to carry out this section.”

Pursuant to § 5596(c), the Civil Service Commission has prescribed such regulations which are found in 5 CFR §§ 550.801, .802, .803 and .804. The regulations provide, in § 550.803(c)(2), that an “appropriate authority” is “a court having jurisdiction to make a determination that a personnel action is unjustified or unwarranted.” The court, in this case, of course, was the district court from which this appeal was taken, which made the determination that the personnel action complained of by the plaintiff was unjustified or unwarranted.

The regulations then continue, § 550.-804(a), “[w]hen an appropriate authority corrects an unjustified or unwarranted personnel action, the agency shall recompute for the period covered by the corrective action the pay . . . .” [Italics added] Tke Back Pay Act, then, and the regulations specifically promulgated thereunder provide: First, the corrective action going to the merits of the personnel action; and, second, an administrative computation of back pay.

I am of opinion the statute and regulations are clear, that they allow no variation from the set procedure prescribed, and that the district court had no authority to compute the back pay to the plaintiff absent prior administrative determination, or at least an opportunity to the Postal Service to make an administrative determination.

For a case reciting the proper method to be used in the ascertainment of back pay, see Floyd v. Resor, 409 F.2d 714 (5th Cir. 1969), in which case, after ordering the reinstatement of the employee, the district court retained jurisdiction of the matter of the back pay but deferred its judgment on the merits of the question of the amount of back pay until the amount had been computed by administrative action.

The holding of the majority in this ease, that a district court may proceed directly to the merits of the amount of the back pay absent a prior administrative determination, or opportunity therefor, not only is contrary to the plain words of the statute and the specifically authorized regulations, but may only go to further clutter up and needlessly encumber the dockets of already overloaded district courts. Even aside from the statute and regulation requirements, absent some compelling reason not shown by this record, I am unable to grasp the logic of allowing a resort to the district court when a previous administrative determination is available. Like the majority in its dictum concerning primary jurisdiction, I do not reach the question of whether or not exhaustion of administrative remedies may be required. See Myers v. Bethlehem Corp., 303 U.S. 41, esp. 50-53, 58 S.Ct. 459, 82 L.Ed. 638 (1938).

      . White filed his initial complaint while he was still engaged in the administrative process, but the district court denied his motions for temporary reinstatement. The present case is based on an amended complaint filed after the last administrative appeal failed.

      . We note at the outset that the Back Pay Act is no longer statutorily applicable to the Postal Service. The Back Pay Act applies to “executive agencies” (as defined in 5 U. S.O. § 105) and other specified organiza tions. 5 U.S.C. § 5596(a). The Postal Reorganization Act amended 5 U.S.C. § 101, 104 to exclude the Postal Service from the scope of § 105. Pub.L. No. 91-375, § 6(c), 84 Stat. 775. See also 39 U.S.C. § 410(a), (b)(1). The plaintiff in this case was discharged by the old Post Office Department, which was covered by the Back Pay Act, and the Postal Service has assumed its predecessor’s back pay obligations to employees discharged after July 1, 1970. 345 F.Supp. 142-143.

      . The Postal Service contends that it could have refused back pay for the entire period under the Postal Service handbook’s interpretation of implementing regulations under the Back Pay Act. A Civil Service regulation, 5 C.F.R. § 550.804(f) (1973), provides that an agency should make no deductions for failure to seek substitute employment if the employee is reinstated within a year. The reason for the rule is the idea that a wrongfully discharged employee cannot reasonably be expected to seek other employment immediately but is instead justified in spending his time in administrative protest and attempting to obtain reinstatement. The Postal Service handbook follows this rule but provides that if the employee is reinstated after the year expires, he may be denied back pay for the entire period. Both regulations are reproduced in the opinion below. White v. Bloomberg, 360 F.Supp. 58, 61 (D.Md.1973). In this case, the Postal Service has interpreted § 550.804(f) to exempt not a calendar year but the period of time required for administrative appeal. Although the effect of this interpretation is to give White only a nine-month grace period, defendants insist that this treatment is generous because White could be denied the entire amount. We need not decide in this case whether the Postal Service’s rule is valid but we note that it may be inconsistent with the governing Civil Service regulations.

      . Defendants initially filed a notice of appeal from the summary judgment and asked the district court for a stay of the back pay award pending appeal, but later dismissed the appeal by stipulation.

      . In a series of letters between Judge Kaufman and counsel for both sides, defendants took the position that the administrative process had already been completed, that no administrative hearing was available to White, and that in reviewing the Postal Service’s decision the district court would be limited to a consideration of whether it was arbitrary, capricious, or an abuse of discretion, or made without observance of required procedure or in excess of statutory authority. Letter from Jean G. Rogers, Assistant U. S. Attorney, to Judge Kaufman, Dec. 4, 1972, Record at 316.

      . Answering defendants’ contention that the United States is an indispensable party in an action against the Postal Service for back pay, and resolving a further question of whether White’s claim had to be asserted in the Court of Claims because it exceeded $10,000, Judge Kaufman held that the Postal Service is sufficiently independent so that a suit against it does not constitute a suit against the United States. 345 F.Supp. at 142-143. We agree that a suit may be maintained against the Postal Service without joining the United States as a party, and that the district courts have jurisdiction over suits against the Postal Service for amounts over $10,000. The Postal Reorganization Act gave jurisdiction to the district courts in “all actions brought by or against the Postal Service,” 39 U.S.C. § 409(a), and authorized the Postal Service “to sue and be sued in its official name.” Id. § 401(1). Moreover, in listing the provisions of Title 28 that apply to the Postal Service, 39 U.S. C. § 409 does not include sections 1491-1506, which give the Court of Claims jurisdiction over suits against the United States. Consequently, while employees of most federal agencies must resort to the Court of Claims to recover back pay in amounts of over $10,000, see 28 U.S.C. § 1346(a) (2) ; S.Rep.No.1390, 88th Cong., 2d Sess. (1964) (reporting Pub.L.No. 88-519, 78 Stat. 699, which amended 28 U.S.C. § 1346(d)), the district courts have jurisdiction over all back pay claims of Postal Service employees under 39 U.S.C. § 409(a).

      . The Supreme Court has defined the doctrine of primary jurisdiction as follows :
      The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. . . . “Primary jurisdiction” . . . applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.
      United States v. Western Pac. R.R., 352 U.S. 59, 63-64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). See also 3 K. Davis, Administrative Law Treatise §§ 19.01-.09 (1958, Supp. 1970). Defendants have not explicitly invoked the doctrine of primary jurisdiction in this case. Instead of urging us to employ this doctrine to require resort to administrative agencies in computing back pay, defendants have simply argued that the existing regulations mandate such a procedure.

      . (c) The Civil Service Commission shall prescribe regulations to carry out this section. However, the regulations are not applicable to the Tennessee Valley Authority and its employees.
      5 U.S.C. § 5596(c).

      . The regulations implementing the Back Pay Act appear at 5 C.F.R. §§ 550.801-.804 (1973). The language most favorable to defendants’ procedural arguments is in § 550.-804(a) :
      When an appropriate authority [defined in § 550.803(c) as either an agency or a court] corrects an unjustified or unwarranted personnel action, the agency shall recompttie for the period covered by the corrective action the pay, allowances, differentials, and leave account ... of the employee as if the unjustified or unwarranted personnel action had not occurred ....
      5 C.F.R. § 550.804(a) [emphasis added]. Certainly the regulation contemplates that back pay will ordinarily be computed by an agency, and indeed, that may be the usual practice. But the focus of the regulation is on the substance of the computation rather than the procedure to be followed. The remainder of § 550.804 specifies what pay allowances are to be included in the back pay award. It contains no mention of the provisions one would expect in a procedural regulation, e. g., the time period permitted for computation, who shall make the decision, whether a hearing shall be allowed or written evidence received. We think the Civil Service Commission in promulgating this regulation liad no thought of ousting the district courts of jurisdiction to award back pay in reinstatement cases. We need not consider whether it has the power to do so.

      . The Court of Claims employs a similar procedure under its rule 131(c). See Urbina v. United States, 192 Ct.Cl. 875, 428 F.2d 1280 (1970); Motto v. United States, 172 Ct.Cl. 162, 360 F.2d 643 (1966).

      . See also Federal Land Bank v. Priddy, 295 U.S. 229, 55 S.Ct. 705, 79 L.Ed. 1408 (1935).

      . Specifically, these are “the provisions of title 28 relating to service of process, venue, and limitations of time for bringing action in suits in which the United States, its officers, or employees are parties, and the rules of procedure adopted under title 28 for suits in which the United States, its officers, or employees are parties . ...” 39 U.S.O. § 409(b). Presumably this latter clause refers to chapter 161 of title 28, sections 2401 through 2416.

      . The full text of the order :
      “MR. CLERIC:
      In view of certain matters that have been raised in this case with regard to the amount of back pay which the plaintiff is entitled to receive under the Order of this Court, the official court file in this case should be reopened.
      It is so ORDERED, this 2nd day of November, 1972.”
      While the order in certain circumstances might be viewed merely as a direction to the clerk for administrative or statistical purposes, parts of two subsequent letters from the court to the attorneys make its meaning clear, or at least make clear that the matter of mitigation was before the court for consideration on its merits.

        Letter of November Ilf, 1912

      “Tentatively, it would appear to me that the government does have a right to raise the issue of mitigation for the period beginning October 31, 1971 and ending June 29, 1972.”

        Letter of December 1, 1912

      “(2) I believe that an evidentiary hearing, either at the administrative or judicial level, will be required to determine the issue of mitigation.”


source: Caselaw Access Project

author: SETH, Circuit Judge.

license: Public Domain

text:
    W. G. NICKOL and Eva Rose Nickol, his wife, Appellants, v. UNITED STATES of America and Rogers C. B. Morton, Secretary of the Interior, Appellees.
    No. 74-1011.
    United States Court of Appeals, Tenth Circuit.
    Argued March 28, 1974.
    Decided June 18, 1974.
    Rehearing and Rehearing En Banc Denied Sept. 30, 1974.
    Harry O. Morris, Albuquerque, N. M., for appellants.
    Wallace H. Johnson, Carla A. Hills, Asst. Attys. Gen., Victor R. Ortega, U. S. Atty., James B. Grant, Asst. U. S. Atty., Carl Strass, John J. Zimmerman, William Kanter and Thomas G. Wilson, Attys., Dept, of Justice, for appellees.
    Before LEWIS, Chief Judge, and SETH and McWILLIAMS, Circuit Judges.
   SETH, Circuit Judge.

W. G. Nickol and his wife, Eva Rose Nickol, appeal from the order of the United States District Court for the District of New Mexico granting the defendant United States’ motion for summary judgment. The case concerns a review under the Administrative Procedure Act of 1946, 5 U.S.C. §§ 701-706, of an adverse determination of the validity of a mining claim by the Board of Land Appeals, Office of Hearings and Appeals, Department of the Interior, entered on January 23, 1973, as IBLA 72-138 (9 IBLA 117). Appellants have exhausted their administrative remedies; see 43 C.F.R. § 1843.7 (1973).

The review in the district court raised the issue of whether the decision and affirmance of the Administrative Law Judge by the Board of Land Appeals was “supported by substantial evidence”; also as raised by the Nickols, whether it was “clearly erroneous as a matter of law.”

The district court’s order is as follows:

“This matter coming on for consideration upon the defendants’ Motion for summary judgment, and the Court concluding that the only issue is whether there is evidence in the record before the Secretary to support his decision on an issue of fact, and the Court concluding that there is such evidence to support his decision;
“Now, Therefore,
“IT IS BY THE COURT ORDERED that Summary Judgment is granted in favor of the defendants and the action is dismissed.”

An issue on appeal is whether this type of “summary judgment” is appropriate where the district court review of an agency action is limited to an examination of the administrative record to determine if there is substantial evidence to support the agency’s determination. 5 U.S.C. § 706(2)(E). Such review is, of course, confined to the agency record, or such portion of it which the parties may cite, and additional evidence is not to be admitted. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). One court has characterized a “judicial determination of whether a finding of fact [in an administrative proceeding] is supported by substantial evidence” as “only a question of law” and therefore “subject to disposition by summary judgment.” Dredge Corp. v. Penny, 338 F.2d 456 (9th Cir.). See also Beane v. Richardson, 457 F.2d 758 (9th Cir.); White v. Udall, 404 F.2d 334 (9th Cir.); Henrikson v. Udall, 350 F.2d 949 (9th Cir.); Todaro v. Pederson, 205 F.Supp. 612 (N.D.Ohio 1961), aff’d 305 F.2d 377 (6th Cir.); 6 Moore’s Federal Practice If 56.17[3], at 2472-73 (1974).

The very purpose, however, of such judicial review of agency action is to examine the facts in the record. Universal Camera Corp. v. NLRB, 340 U.S. 474 at 484. Thus it would seem that the prerequisites for a summary judgment under Fed.R.Civ.P. 56 are absent in a review of the administrative record under the circumstances before us. A judicial determination of whether “substantial evidence” can be found in the record to support the administrative conclusion necessarily involves a fact finding which in turn determines whether the agency’s action must be upheld. The issues in such a judicial review are, by definition and in substance, genuine issues as to material fact, Fed.R.Civ.P. 56(c); the facts are the subject of substantial controversy and, as such, are in the normal course “actually and in good faith controverted.” Fed.R.Civ.P. 56(d).

Under the statutory method applicable to this case, the district court was called upon to review and examine the record made during the course of the administrative proceedings. This record contains detailed testimony as to a variety of particular facts, conditions, and events. The testimony is of physical facts, economic conditions, and opinion. These are in great part divergent and conflicting. It was necessary in the administrative proceedings to evaluate the testimony to attempt to resolve conflicts, and to make choices as to particular positions. Most of the “facts,” material and otherwise, as the term is used in Rule 56 of the Federal Rules of Civil Procedure were clearly disputed, placed in issue, and contested. This was the record before the district court.

The district court, under the statutory scheme, was then called upon to examine these facts in the record, evaluate the conflicts, and to then make a determination therefrom whether the facts supported the several elements which made up the ultimate administrative decision that the mining claims were invalid. This procedure by the district court is comparable to many decisions which must be made by appellate courts. Whether the record contains substantial evidence to support the action of the Secretary of the Interior is the ultimate determination to be made by the district court, bi^t the fact it is the final point or ultimate issue does not necessarily mean that it is a legal issue. It looks like one perhaps because it is something that appellate courts usually do, but it is not particularly helpful with our problem to place it in a particular category.

For the district court to reach its conclusion requires this evaluation of testimony, resolution of conflicts, and a general examination of facts which would occur had the matter been “tried” in that court. The statutory standards and presumptions are different in degree only because the case has already been “tried” before someone else.

When this record arrives before this court, the matter has been tried, been reviewed administratively, and reviewed by the district court. For us to give it a meaningful review in accordance with the usual standards and practices applied by an appellate court, we must know how the trial court evaluated the conflicting facts and how it reached its determination of the ultimate facts to which the law was applied. We again have to make a determination as to substantial evidence, but to do this and to give the proper consideration to the action of the district court, we must know how it reached its conclusions. We could, of course, go through the record again and make a de novo determination. Thus the case would receive two separate and unrelated reviews. However, this is not in accord with proper appellate review. When the decision is based on conflicting facts, there need be some indication by the trial court as to how it arrived at its conclusions, and what, in its opinion, were the operative facts for which it found the substantial evidence.

We have carefully examined the decisions of the Ninth Circuit which are cited above, and notice that several of the early cases were instances when, according to the reported opinions, there was really no conflict in the facts, or the appellate court made an independent and complete examination again of the administrative record to resolve the conflicts. Thus if there are no conflicts, there is no problem presented, but if there are we are of the opinion that the same procedure should be applied as to any conflicting facts before the trial court as herein indicated.

The Supreme Court, in reversing the Sixth Circuit’s decision in Citizens to Preserve Overton Park, Inc. v. Volpe, 432 F.2d 1307 (6th Cir.), which affirmed the district court’s grant of summary judgment in favor of the Secretary of Transportation’s administrative determination, 309 F.Supp. 1189 (W.D.Tenn.), while not specifically dealing with the “substantial evidence” type of review here in question, laid down certain standards which we believe are applicable. It said: “[T]he generally applicable standards of [5 U.S.C.] § 706 require the reviewing court to engage in a substantial inquiry.” Also: “[T]his inquiry into the facts is to be searching and careful, .” (Emphasis added). Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136. The Court remanded the case to the district court for “plenary review” of the administrative decision, allowing the court, in its discretion, to remand the cause to the appropriate agency and official for further proceedings if necessary. We consider this to be a significant procedural indication of the nature of the statutory review to be here applied. Thus we hold that where the determination under 5 U.S.C. § 706 (2)(E), and the issue of whether or not the determination is “unsupported by substantial evidence,” and where there is “substantial controversy” as to the “material facts,” the district court is precluded from entering a Fed.R.Civ.P. 56 type of “summary judgment.”

“The rule [56] permits summary judgment in any case, and the inquiry must be whether such a judgment is appropriate in the particular case, a question that cannot be resolved by some broad judicial gloss on the rule.” C. Wright, Law of Federal Courts, § 99, at 443 (1970).

In the typical substantial evidence review under section 706(2) (E), the “substantial inquiry” in which the district court is required to engage (Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 at 415) will require a finding of fact or facts as to what is the substantial evidence which supports the agency determination, and this, in turn, when decided will lead to the ultimate determination. The appellate court cannot properly review the district court’s action without such findings.

As is apparent from the foregoing, we are unable to determine what facts the district court here used to find that substantial evidence is present in the record to support the Secretary’s decision. While we are in as advantageous a position as the district court to determine this question from the record in this case, as indicated above, the better course is to have the trial court make findings in the usual course. The district court is in a better position to either remand the case to the agency for further, supplementary, and clarifying evidence or “consider which method will prove the most expeditious so that full review may be had as soon as possible.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 at 421.

The order of the district court granting summary judgment in favor of the Secretary of the Interior and the United States is therefore reversed and the cause remanded to that court for further proceedings.

On Petition for Rehearing.

OPINION ON REHEARING

The United States has filed a petition for rehearing directed to the opinion filed herein on June 18, 1974.

A portion of the petition presents an argument as to the scope of judicial review of decisions of administrative agencies. Such an issue was not presented to the court, and no such issue was decided. The opinion does not refer to the scope of review by the district courts.

The issue was only as to the propriety of summary judgment in a case where the administrative record contained conflicting testimony as to essential issues. We held that under such circumstances, the use of summary judgment was not proper. We indicated that there were in the record substantial facts actually and in good faith controverted. Also, the trial court had to determine which was the “substantial evidence” supporting the administrative action, if it was so supported, and to so indicate at least in general terms so that this court would have, pn review, an indication as to how, after examining the record, the trial court reached its conclusion. By such a method this court can then have the benefit of the trial court’s reaction to the conflicting facts, and make a normal appellate review.

The petitioner cites Jones v. Finch, 416 F.2d 89 (10th Cir.), as indicating a different rule than expressed in the original opinion herein. In the cited case, the issue was whether a common-law marriage existed under the laws of Texas. There were no disputed facts before the agency, and both parties asked for summary judgment. Such a situation is not comparable to the one before us, as indicated herein by the references to the disputed facts.

The judgment is affirmed.


author: CUMMINGS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Newton P. VAN DRUNEN, Defendant-Appellant.
    No. 73-2081.
    United States Court of Appeals, Seventh Circuit.
    Argued April 11, 1974.
    Decided July 24, 1974.
    As Amended on Denial of Rehearing Aug. 21, 1974.
    Certiorari Denied Dee. 23, 1974.
    See 95 S.Ct. 684.

      William J. Stevens, Chicago, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., Ann C. Tighe, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee.
    Before FAIRCHILD, CUMMINGS and SPRECHER, Circuit Judges.
   CUMMINGS, Circuit Judge.

In June 1973, a two-count indictment was filed against defendant. In the first count, he was charged with transporting an alien from Brownsville, Texas, to Chicago Heights, Illinois, on October 15, 1971, knowing that the alien was illegally in the United States. The second count was identical except that it involved another alien and the transportation took place on November 7, 1971. Both counts charged violations of 8 U.S.C. § 1324(a) (2).

The alien mentioned in Count I, Sara Resendez-Oliva, became defendant’s wife a month after his indictment. She and two of her three children entered the United States at Brownsville, Texas, on the authority of a local border-crossing card in October 1971. Defendant awaited her arrival there. They then traveled to Laredo, Texas, in his car and after spending two hours there, drove to Chicago Heights, Illinois, taking two or three days for the trip. Her other child had preceded her there. She and her three children lived with friends of defendant in Chicago Heights. She did not return to Mexico as planned because her fourth pregnancy made her ill.

The Count II alien, Josefina Acosta-Coronado Perez, was transported by defendant across the Rio Grande at midnight in a rowboat and then to Chicago Heights in his car. A month thereafter, she was reunited with her estranged husband in Chicago.

A jury found defendant guilty on both counts. He received concurrent three-year sentences, plus two years’ probation and a $4,000 fine. We affirm.

Instructions on Testimony by a Defendant

Defendant first argues that the court’s instruction that he had an absolute right to testify abridged the Fifth Amendment privilege against self-incrimination. Thanks to a slip in reading LaBuy Instruction 6.09 (33 F.R.D. 523, 581), the instruction in question provided as follows according to the official transcript:

“A defendant has the absolute right to testify, and the jury must not draw a presumption of guilt of any inference against the defendant because he did not testify.
“A defendant who wishes to testify is a competent witness and his testimony should not be disbelieved merely because he is the defendant. However, in weighing his testimony the jury should consider the fact that the defendant has a vital interest in the outcome of this trial.”

The word “not” was inadvertently omitted by the judge after “absolute right” in the first line of this Government-tendered instruction.

At the trial, the following objection was given only with respect to this second paragraph of this instruction:

“The defendant objects to the giving of the government instruction marked as LaBuy 6.09, in that the second paragraph of that instruction calls special attention to the fact that the defendant did not take the stand to testify on his behalf, and we object to the granting of that second paragraph on the ground that it calls attention to the defendant’s failure to testify.”

When defendant moved for a mistrial after the court’s charge, his counsel stated:

Your Honor, one instruction where the court stated the defendant has an absolute right to testify, is the way it was given, and then went on to give the second paragraph of the LaBuy instruction which called attention to the fact that the defendant did not take the stand and testify, and I think that is a violation of his Fifth Amendment rights and I move for a mistrial.”

The policy reasons for requiring trial errors to be brought to the attention of the trial judge are never stronger than when the error is a completely unintentional slip of the tongue. This request for a mistrial was stated at sidebar and, like ourselves, the trial judge might easily have understood the “that” which allegedly violated Fifth Amendment rights to be only the second paragraph of the LaBuy instruction. Further, after the mistrial was denied, defendant did not request the court to insert the omitted “not.” Since we cannot conclude that the omission was an incurable ground for a mistrial, the present abjection comes too late. Federal Rule of Criminal Procedure 30.

The second paragraph of this instruction is fully supported by precedent when it is relevant. Reagan v. United States, 157 U.S. 301, 305, 15 S.Ct. 610, 39 L.Ed. 709; Stapleton v. United States, 260 F.2d 415, 420, 17 Alaska 713 (9th Cir. 1958); Black v. United States, 309 F.2d 331, 345 (8th Cir. 1962). Qf course, when the defendant does not take the stand it is completely irrelevant. Just as litigants have an obligation to state their objections, so the district judge has an obligation to listen to objections. We are confident this instruction would have been eliminated if the trial judge had listened to the objections instead of having them read to the court reporter in his absence. However, we do not find the error reversible, at least where, as here, the error was immediately preceded by the court’s inclusion of the phrase that “the jury must not draw a presumption of guilt or any inference against the defendant because he did not testify.” Since the jury will inevitably notice whether the defendant took the stand, any meaningful inquiry into whether this error is harmless must focus on whether the jury was encouraged to draw an improper inference, and not simply whether the jury was reminded of a fact which it already well knew.

Testimony of Wife Against Defendant

Defendant next urges that the trial judge should have excluded the testimony of defendant’s wife because of the privilege against the testimony of a spouse. Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125. In United States v. Kahn, 471 F.2d 191, 194, (7th Cir. 1972), reversed on other grounds, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225, we held that the somewhat related privilege for confidential marital communications did not apply where the conversations were about an unlawful enterprise in which both spouses participated. Here too, both spouses participated in the Count I violation. Kahn is not necessarily controlling, for the two marital privileges must “be sharply distinguished.” McCormick on Evidence, (2d ed. 1972), § 78; see generally id., §§ 66, 78-86. But we think that considerations similar to those in Kahn support affirmance here.

The underlying reason for both privileges is to preserve the family. The privilege for confidential marital communications is thought to do this by encouraging the spouses to be frank and open with each other and by protecting marital privacy (Kahn at 194); the privilege against spousal testimony serves the same goal by preventing either spouse from committing the “unforgivable act” of testifying against the other in a criminal case (Hawkins 358 at 78, 79 S.Ct. 136). In Kahn we concluded that the public interest in preserving the family was not great enough to justify protecting conversations in furtherance of crimes joined in by both spouses; similarly here, we think that goal does not justify assuring a criminal that he can enlist the aid of his spouse in a criminal enterprise without fear that by recruiting an accomplice or coeonspirator he is creating another potential witness.

United States v. Doughty, 460 F.2d 1360, 1363 (7th Cir. 1972), supports this result. That case involved the admission in evidence against a husband of an estate tax return prepared by his wife. Although the opinion did not clearly separate the two marital privileges, it held that neither prevented the admission of this return. The court concluded that the admission of her written return, considered as testimony of the wife against the husband, would be less disruptive of the marriage than her live oral testimony. But the court also relied on the “participation of both husband and wife in the offense” to defeat the privilege.

Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125, reversing 249 F.2d 735 (10th Cir. 1957), is arguably a barrier to the result reached today. That case reaffirmed the privilege against spousal testimony in the federal courts without discussing possible exceptions and without indicating whether both spouses participated in the offense. The Court of Appeals’ opinion reveals that defendant in that Mann Act prosecution transported a woman from Dogpatch, Oklahoma, to Mena, Arkansas, and thence to Tulsa, Oklahoma, where the woman worked as a prostitute with defendant’s wife. It is fairly clear that both spouses were engaged in a conspiracy to violate state prostitution laws; it is much less clear that the wife had anything to do with the transportation across the state line, which was the federal offense. But if the ease be treated as involving a joint criminal venture by the spouses, then the Supreme Court has held sub silentio that the privilege against spousal testimony applies in such a case.

We do not view Hawkins as controlling. Sub silentio holdings “obviously * * * are not of the same precedential value as would be an opinion of this Court treating the question on the merits.” Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662. Hawkins must be accorded even less precedential value on the question whether there is a coconspirator exception to the privilege against spousal testimony, because the facts are so uncertain that it is not clear there was even a sub silentio holding. The Supreme Court has since announced an exception to Hawkins for cases where one spouse commits a crime against the other (Wyatt v. United States, 362 U.S. 525, 80 S.Ct. 901, 4 L.Ed.2d 931), and we decline to read the Hawkins opinion as foreclosing the possibility of other exceptions not discussed therein.

Today’s holding, combined with Wyatt, limits the privilege to those cases where it makes most sense, namely, where a spouse who is neither a victim nor a participant observes evidence of the other spouses’s crime. In that circumstance, the privilege encourages the preservation of a marriage which may conceivably be an important institution contributing to the rehabilitation of the defendant spouse.

In any event, we conclude that since defendant’s wife’s testimony concerned matters prior to the marriage, the privilege against the testimony of a spouse is inapplicable in accordance with Rule 505(e) of the proposed Federal Rules of Evidence, which was framed to eliminate the possibility of suppressing testimony by marrying a witness. Here, as the Government has noted, the marriage took place one month after defendant’s indictment. As the Advisory Committee concluded, the prevention of collusive marriages justifies such an exception to the Hawkins rule.

Refusal of Defense Instructions

Defendant next complains that two of his instructions were erroneously refused as to Count I. The first was his proposed instruction No. 10, which provided:

“A Mexican National to whom a, currently valid United States Immigration and Naturalization Service border crossing card has been issued may lawfully enter the United States and travel within the United States.
“A Mexican National may not lawfully enter the United States as an Immigrant or permanent resident without an Immigrant Visa.”

This instruction was properly refused because it misleadingly omitted the limitation on the right of a Mexican national bearing a border-crossing card (such as defendant’s wife) to enter the United States lawfully and “travel within the United States.” 8 CFR § 212.6(a) confines such a person to a 72-hour visit in the immediate border area, unless additional documentation has been procured. This construction is consonant with the restriction contained on defendant’s wife’s Form 1-86, which states:

“This card when used as the sole entry document is valid only for visits to the U. S. within 25 miles of the Mexican border for periods of 72 hours or less if the bearer is found otherwise admissible by U. S. Immigration officer. To remain for a longer period or proceed to other areas in the U. S. the bearer must be in possession of a Form SW-434 or Form 1-94 issued by an officer of the U. S. Immigration and Naturalization Service.”

Mrs. VanDrunen testified she was aware of and understood this information.

Defendant has not claimed that his wife sought entry for more than 72 hours or to travel beyond the immediate border area, and there is no evidence that she possessed Form SW-434 or Form 1-94. On the contrary, she testified that when she came to the immigration guardhouse, “I was just asked where I was going and I told them I was going across and that was all.” Consequently, she was only authorized to enter the immediate border area and remain for 72 hours, so that defendant’s instruction No. 10 was improper.

Defendant also claims to have been entitled to his proposed instruction No. 11, which provided:

“If you find then that the defendant reasonably believed that Sara Resen-dez-Oliva was a temporary visitor in the United States on or about October 15, 1971, then you shall find the defendant not guilty on Count I. If on the other hand you find beyond a reasonable doubt that the defendant knew that on October 15, 1971, Sara Resen-dez-Oliva intended to reside in the United States permanently and if you find that the government has proved each element of the offense then you should find the defendant guilty on Count I.”

We conclude that this theory of defense was sufficiently embodied in the other instructions given by the court, and that it was incorrectly stated in proposed instruction No. 11. To be a correct statement of the law, that instruction would have to substitute “72-hour border area visitor” for “temporary visitor” and “remains * * * more than 72 hours” for “reside * * * permanently.” Being an inaccurate statement of the law, instruction No. 11 was properly refused. There was no need for the judge to quote the latter portion of 8 CFR § 212.6(a) (note 2, supra). The court did charge that she was entitled to entry for a period of 72 hours or less to visit in the immediate border area “without additional documentation”; since there was no evidence that she sought or obtained such additional documentation, it would have been irrelevant to explain to the jury forms that could have been issued and the travel privileges that might have been granted.

Finally in connection with these instructions, defendant relies on United States v. Orejel-Tejeda, 194 F.Supp. 140 (N.D.Cal.1961). There the aliens were transported from an area in California where they were lawfully admitted for agricultural work to an area in California where they were not lawfully permitted to work under their entry permits. Such transportation was held not to violate 8 U.S.C. § 1324(a)(2), because their original entry and residence were clearly lawful. The statute forbids the transportation of aliens only if they were “not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the United States ':i * Mrs. VanDrunen testified that she understood the time and place limitations on her presence in the United States, that she nonetheless entered with intent to go to Chicago, and that when asked by an immigration official at the border where she was going, she concealed her intent to go to Chicago. Had she answered truthfully, she would have been admitted, if at all, only after further processing. Because she sought to “enter the United States, by fraud, or by willfully misrepresenting a material fact”, she was not entitled to enter. See 8 U.S.C. § 1182(a) (19). Even more clearly, she was not entitled to reside in the United States. Consequently, the rationale of Orejel-Tejeda is inapplicable.

Propriety of Voir Dire

Initially, defendant asserts that the district judge should have asked four of his proposed questions about possible juror prejudice with respect to Spanish-speaking people and immigrants. In refusing to ask those questions, the court explained that in the voir dire it had conducted under Rule 24(a) of the Federal Rules of Criminal Procedure, “Now, most of the questions which you had, I dealt with, Mr. Stevens.” Our study of the voir dire shows that the court’s statement was correct because the judge had asked the veniremen at least five questions about this general subject and had adequately explored possible jury bias and prejudice with respect to Spanish-speaking people.

The court did refuse to put two of defendant’s questions with respect to juror fairness in the event evidence was introduced as to his morals, especially as to his “sexually adventurous” life and “affairs with many women.” However, during the voir dire, the trial judge was not advised that defendant’s private life would be brought out at trial and, apart from submitting a list of 15 questions for the voir dire, defense counsel did not explain why he felt that these two questions must be put. We cannot say that the few references to defendant’s having lived with three of the witnesses substantially prejudiced his rights in the absence of putting the two questions to the veniremen. In the circumstances of this case, the district judge did not abuse his discretion in refusing to ask questions 11 and 12 on defendant’s tendered list of voir dire questions. Compare Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46, and Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054, both involving jurors’ racial prejudice against Negro defendants.

Electronic Surveillance

Finally, defendant’s brief submitted that his evidence at a pretrial hearing presented a prima facie case of the existence of governmental electronic surveillance of his telephone. The district judge’s finding that there was. nothing credible in the record that would prove surveillance of defendant’s phone is not clearly erroneous. Furthermore, the prosecutor’s sworn denial of the existence of such surveillance was sufficient under Korman v. United States, 486 F.2d 926 (7th Cir. 1973). Consequently, to remand the case “with directions -to disclose the wiretap or dismiss the indictment,” as prayed by defendant, would be unwarranted.

Resentencing Hearing

Rule 32(a)(1) of the Rules of Criminal Procedure requires the sentencing judge to ask the defendant personally “if he wishes to make statements in his own behalf and to present any information in mitigation of punishment.” This was not done. The Government has conceded that the procedure at sentencing was defective for lack of allocution, thus requiring a remand. Of course, the district court need not impose the same sentence as before.

For the foregoing reasons, the judgment of conviction is affirmed, but the case is remanded to the district court for resentencing.

      . 8 U.S.C.A. § 1324(a) provides in pertinent part:
      “Any person, including the owner, operator, pilot, master, commanding officer, agent, or consignee of any means of transportation who—
      ^ ijc
      “(2) knowing that he [alien] is in the United States in violation of law, and knowing or having reasonable grounds to believe that his last entry into the United States occurred less than three years prior thereto, transports, or moves, or attempts to transport or move, within the United States by means of transportation or otherwise, in furtherance of such violation of law;”
      “any alien, including an alien crewman, not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the United States under the terms of this chapter or any other law relating to the immigration or expulsion of aliens, shall be guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding §2,000 or by imprisonment for a term not exceeding five years, or both, for each alien in respect to whom any violation of this subsection occurs * *

      . 8 CFB. § 212.6(a) provides in part:
      “If found otherwise admissible, the rightful holder of a Mexican nonresident alien border crossing card, Form 1-186, may be admitted to the United States as a nonim-migrant visitor at a Mexican border port of entry without additional documentation for a period of 72 hours or less to visit in the immediate border area. The rightful holder of a Form 1-186 seeking entry as a non-immigrant visitor at a Mexican border port of entry for a period of more than 72 hours * * * shall, if admitted, be issued Form SW-434, and if seeking entry as a non-immigrant visitor at a Mexican border port of entry for a period,of more than 15 days, or to proceed to an area in the United States other than Texas, New Mexico, Arizona, or California, shall, if admitted, be issued Form 1-94.”

      . The card was admitted as an exhibit at Transcript 141; but the exhibits have not been transmitted to this Court. However, the quotation from the card at Government Brief 13 is not disputed by defendant.


author: PELL, Circuit Judge.

text:
    CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, a corporation, Plaintiff-Appellee, v. FORTY-EIGHT INSULATIONS, INC., a corporation, Defendant-Appellant.
    No. 73-1238.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 16, 1974.
    Decided Aug. 29, 1974.
    Wilson D. Burnell and Gary K. Mickey, Aurora, 111., for defendant-appellant.
    Gerald D. Skoning, Chicago, 111., for plaintiff-appellee.
    Before HASTINGS, Senior Circuit Judge, and PELL and SPRECHER, Circuit Judges.
   PELL, Circuit Judge.

Consolidated Freightways Corporation of Delaware (Consolidated) brought this action against Forty-Eight Insulations, Inc., (Shipper) to recover $5,165.00, alleged to be the balance due for freight charges for two truckloads of insulating materials transported by Consolidated and connecting carriers from Shipper’s plant in North Aurora, Illinois, to a consignee in South Beaver Hill Lake, Alberta, Canada. The shipments were received without exception by the consignee. Defendant shipper has paid the amount that Consolidated originally quoted to it for the shipments, $2,455.78, but denies Consolidated’s right to recover the additional charges, which are based on “corrected” bills calculated under a different, higher tariff.

The district court ruled in favor of Consolidated. The court’s opinion in its entirety reads: “After careful consideration of the stipulation of facts, arguments and authorities, the Court finds that the plaintiff is entitled to judgment in the amount of $5,165.00, plus interest.” Forty-Eight Insulations has appealed.

I

The freight charges listed in Consolidated’s first bills, which amounts the Shipper relied upon in negotiating a contract with its customer, had been computed from the Middlewest Motor Freight Bureau Tariff 50-B, MF-ICC 516 (the “Midwest Tariff”). Item 130 of that tariff states in part:

“General Application of Rates”
“The rates published herein apply only from points of origin to points of destination named and may not be used as factors in computing combination rates from or to origins or destination not named.” (Emphases added.)

Item 281-A, entitled “Rates From or To Unnamed Points,” modifies this provision. Part 1 defines the key terms:

“(c) An ‘UNNAMED’ point is one from or to which class rates are not provided, other than by use of this rule.
“(d) A ‘NAMED’ point is one from or to which class rates are provided in this tariff (or in tariffs governed hereby), other than by use of this rule.”

Part 2 of Item 281 — A provides for using the nearest named point of origin or destination where the unnamed point is located on a highway between named points. Part 3 provides for adding an arbitrary rate based on the distance in miles of the unnamed point from or to the nearest named point when the unnamed point is not located between named points. Item 281-A also includes an exception clause: “(a) The provisions of this item will not apply from or to unnamed points in Canada.”

Consolidated, upon reinvestigation, concluded that it had erred in quoting to defendant shipper rates based upon the Midwest Tariff. It subsequently recomputed the freight charges in accordance with the Rocky Mountain Tariff. Under that schedule, the shipping costs came to $7,620.78, or $5,165.00 more than the sum previously calculated.

II

In its answer to Consolidated’s complaint, Shipper advanced various defenses, some of which might have prevailed if proven. On appeal, however, the primary thrust of the defense is that Consolidated’s error was one of misrouting rather than one of misquotation of rates, a distinction which has received judicial recognition. Shipper contends that if Consolidated had initially given it full and accurate information, it would have shipped the goods to Edmonton, a port of entry for customs inspection of commodities entering the province of Alberta and a “named point” under the Midwest Tariff, and then transshipped them from Edmonton to South Beaver Hill Lake, sixty miles west, under the inexpensive local Canadian rate. The total freight costs would have been considerably less than those derived from the Rocky Mountain Tariff.

In accordance with this viewpoint, defendant formulates the issue on appeal as follows:

“Was it proper for plaintiff to so route these shipments as to incur a tariff rate of $5,165.00 for the 60 miles from Edmonton to South Beaver Hill Lake, Alberta, Canada, or should plaintiffs have routed said shipments to be transshipped that distance at the local Canadian tariff rate of $165.-26?”

For this defense, Shipper relies upon Hewitt-Robins, Inc. v. Eastern Freight-Ways, Inc., 371 U.S. 84, 83 S.Ct. 157, 9 L.Ed.2d 142 (1962), and Johnson Machine Works, Inc. v. Chicago, Burlington & Quincy R. R., 297 F.2d 793 (8th Cir. 1962).

The simple, and dispositive, answer to this contention is that Shipper arranged to ship the merchandise to South Beaver Hill Lake and not to Edmonton. No misrouting question is involved, only one of the applicable rate. The rate quoted was erroneous because there was only one correct rate for the shipments to South Beaver Hill Lake, and that was contained in the Rocky Mountain Tariff and not in the Midwest Tariff. Under well-established authority, a carrier has no choice but to seek to recover the correct amount.

In argument to this court, Shipper contends that the carrier should have informed Shipper that it could have designated Edmonton as the consignment point and that independent arrangements could then have been made for a further shipment at the local rate from Edmonton to South Beaver Hill Lake. What might have been, as opposed to what in fact was, is frequently the basis of lawsuits, but in the absence of a duty it is an infirm basis. While we are unaware of any rule prohibiting Consolidated from volunteering this information, if the quoting agent was aware of it, which appears doubtful, we are equally unaware of any duty on the carrier to suggest a shorter haul than to the point to which the consignor stated the goods were to go. Cf. Kentner Truck Line, Inc. v. Maier Brewing Company, 183 Cal.App.2d 89, 6 Cal.Rptr. 572, 575 (1960) (duty to specify size of shipments so as to secure a more favorable rate), and Montpelier & Wells River R. R. v. Caldbeck-Cosgrove Corp., 110 Vt. 390, 8 A.2d 681, 682 (1939) (duty to specify a competitor line to the same destination.)

The present case, being therefore simply one of misquotation of the applicable rate to a particular designation, falls within the established law to which we have adverted. That law which may produce, and frequently has produced, harsh results is not founded on any principles of equity but on an overriding public policy, the necessity of eliminating discriminatory treatment between various shippers. The policy “is so strong that the courts almost universally hold that it is not a defense to an action by a carrier to recover the full rate after a mistaken undercharge that the carrier had originally informed the shipper that the rate was somewhat less than it is presently seeking to recover.” Annot., Carrier — Understatement of Charges, 88 A.L.R.2d 1375, 1377 (1963).

Accordingly, we hold that Consolidated is entitled to recover the balance due under the Rocky Mountain Tariff. The judgment of the district court is affirmed.

Affirmed.

      . Tlie district court had jurisdiction under 28 U.S.C. § 1337 and the Interstate Commerce Act, esp. Part II, 49 U.S.C. §§ 301-326. See Madler v. Artoe, 494 F.2d 323 (7th Cir. 1974).

      . Even though a carrier misquotes the rate applicable to a particular shipment and adherence to the correct tariff would cause the shipper hardship, the carrier must collect the amount due under the authorized schedules. See 49 TJ.S.C. §§ 316(d) and 317(b), and e. g., National Van Lines, Inc. v. United States, 355 F.2d 326, 331 (7th Cir. 1966). Further, all properly authorized tariff rules and regulations published by the carriers automatically become part of the contract between the carrier and the shipper. Eastern Motor Express, Inc. v. A. Maschmeijer, Jr., Inc., 247 F.2d 826, 828 (2d Cir. 1957), cert. denied, 355 U.S. 959, 78 S.Ct. 535, 2 L.Ed.2d 534 (1958). The purpose of these rules is to prevent discrimination or preference.
      In contrast, a shipper may be relieved from the consequences of misrouting by the carrier. See Hewitt-Robins, Inc. v. Eastern Freight-Ways, Inc., 371 U.S. 84, 83 S.Ct. 157, 9 L.Ed.2d 142 (1962).

      . The parties stipulated that
      “[i]f plaintiff had quoted to defendant the amount under the Rocky Mountain Tariff instead of the amount quoted under the Midwest Tariff, defendant could have shipped the commodities ... to a public warehouse at Edmonton, Alberta, Canada, which is a named point in the Midwest Tariff and trans-shipped said commodities under the local Canadian tariff rates from Edmonton to South Beaver Hill Lake, Alberta, Canada.”

      . The defendant, in a memorandum to the district court, acknowledged the difficulties under the Midwest Tariff:
      “[T]he freight charges quoted by Plaintiff and stated in the Original Freight Bills submitted by plaintiff are or would also be the correct freight charges under the Midwest Tariff for shipping the two truckloads of material from North Aurora, Illinois to South Beaver Lake, Alberta, Canada, except for an ‘Exception’ in the Midwest Tariff which provides the Midwest Tariff ‘will not apply from or to unnamed points in Ganada’; and South Beaver Hill Lake is an unnamed point in the Midwest Tariff.” (Emphasis added.)
      Consolidated stated in oral argument that South Beaver Hill Lake is a “named point” under the Rocky Mountain Tariff.


author: ALFRED T. GOODWIN, Circuit Judge: JAMES M. CARTER, Circuit Judge

text:
    REDKEN LABORATORIES, INC., Appellee, v. CLAIROL, INCORPORATED, Appellant.
    Nos. 72-2491 and 74-1642.
    United States Court of Appeals, Ninth Circuit.
    July 26, 1974.

      Alfred T. Lee (argued), Weil, Lee & Bergin, New York City, for appellant.
    Andrew J. Belansky (argued), Christie, Parker & Hale, Pasadena, Cal., for appellee.
    Before CARTER and GOODWIN, Circuit Judges, and EAST, District Judge.

       The Honorable William G. Bast, United States District Judge for the District of Oregon, sitting by designation.

   OPINION

ALFRED T. GOODWIN, Circuit Judge:

The district court overturned an administrative decision by the Trademark Trial and Appeal Board of the United States Patent Office (hereinafter the Board), and held that Redken’s hair-care product sold under the mark “CURL & CONDITION” was not likely to be confused with Clairol’s hair-care product sold under the mark “CONDITION”, and ruled that Redken’s mark was entitled to registration. Clairol appeals.

We agree with the district court that the evidence did not support the Board’s finding of a likelihood of confusion as to the origin of the two products in any relevant market, and affirm the denial of injunctive relief to Clairol. However, the district court’s ruling that the word “condition” had not acquired a secondary meaning was not necessary to resolve the case, and in light of the possible collateral effects of that holding, we vacate that part of the district court judgment which relates to secondary meaning.

Title 15 U.S.C. § 1071 affords both parties to a completed cancellation proceeding before the Board the option of having all further proceedings conducted as a civil action in the district court. That civil action is intended to be a trial de novo. The decision of the Board, however, must be accepted as controlling on issues of fact “unless the contrary is established ■ by testimony which in character and amount carries thorough conviction * * *.” Morgan v. Daniels, 153 U.S. 120, 125, 14 S.Ct. 772, 773, 38 L.Ed. 657 (1894). The parties may introduce additional evidence relevant to issues raised before the Board. Hoover Co. v. Coe, 325 U.S. 79, 83, 65 S.Ct. 955, 89 L.Ed. 1488 (1945). They did so in this case.

The rule of Morgan v. Daniels has been applied in this circuit to trademark cases involving the likelihood of confusion and secondary meaning. Safeway Stores, Inc. v. Dunnell, 172 F.2d 649 (9th Cir.), cert. denied, 337 U.S. 907, 69 S.Ct. 1049, 93 L.Ed. 1719 (1949).

The record reveals that Clairol’s CONDITION and Redken’s CURL & CONDITION are both hair-care products sold primarily in the beauty-salon trade. At the relevant times, Clairol’s hair conditioner was also sold in retail stores, while Redken’s permanent-wave lotion rarely found its way into the retail market, and then only through isolated sales from beauty salons and wholesale supply houses or dealers. However, there is nothing to prevent Redken from marketing CURL & CONDITION in the future through the same retail channels used by Clairol for CONDITION. Redken’s trademark registration is not so limited, nor would anything inherent in the product effectively prohibit retail distribution. Therefore, although both the Board and the district court defined the relevant market as the beauty salon trade, we will include a potential retail market in our analysis of the problem of likelihood of confusion.

Numerous factors bear upon the likelihood of confusion. These may include: similarity in sound, appearance, and meaning of the marks; the class of goods; the marketing channels; the intent of the parties; the identity of the purchasers; and the strength or weakness of the mark. See Carter-Wallace, Inc. v. Procter & Gamble Co., 434 F.2d 794 (9th Cir., 1970). In the present case there is no evidence that either party was not proceeding in good faith in selecting a weak (descriptive) mark to identify its beauty-salon product.

The Board stated that, the products of the parties are similar hair-care supplies which are sold under similar marks and advertised by the same media and sold to beauty salon operators. Without further discussion, the Board concluded that CURL & CONDITION so resembled CONDITION as to be likely to cause confusion as to source.

Our examination of the marks in light of the additional factors set forth above and in light of the considerable evidence presented to the district court relating to these factors leaves us, as the district court’s examination left it, with a clear conviction that the Board made a mistake on the issue of confusion. .The products are similar only in the sense that both can be applied to hair, as, for example, hair spray and shampoo can both be applied to hair. Here one product, Redken’s, is intended for beauty-shop use in making hair curly. The other is intended for shop or home application to hair with split ends, or, in the trade, to “condition” hair. The marks themselves convey the different functions of the two products.

The record discloses at least five registrations of trademarks for hair “conditioning” products embodying the word “condition,” and numerous uses of the word “condition” and its derivatives in the labeling and advertising of such products. The Clairol and Redken products involved in this case are substantially-priced cosmetics, directed toward individual and discriminating taste. Consumers who purchase these products learn of necessity to distinguish between many products designed for application to human hair. Many use the word “condition” somewhere on the label, but few customers are likely to part with their money under a misapprehension caused by the common use of the word “condition.” Given the numerous products on the market whose trademarks or labels contain the word “condition,” the district judge became convinced that the average, prudent beautician or consumer would not be likely to believe that Redken’s CURL & CONDITION came from the same source as Clairol’s CONDITION. Having selected a common, useful, and descriptive term as a trademark, Clairol cannot expect for the word “condition” the same broad scope of protection that may be accorded to more distinctive and arbitrary marks. Sure-Fit Products Co. v. Saltzson Drapery Co., 254 F.2d 158, 160, 45 CCPA 856 (1958).

Accordingly, we agree with the district judge, whose careful analysis of the lengthy record satisfies us that the Board erroneously denied registration to Redken upon a fragile supposition that someone might be confused by the use of the word “condition” in Redken’s product name. We affirm the denial of injunctive relief to Clairol, and express no opinion upon the extent to which the word “condition” may have acquired a secondary meaning. To the extent that the district court judgment passed upon the question of secondary meaning, it is vacated.

Affirmed in part; vacated in part.

JAMES M. CARTER, Circuit Judge

(concurring and dissenting).

I concur in the opinion vacating the district court judgment relating to the secondary meaning of its mark “CONDITION.”

I dissent from that part of the opinion affirming the district court judgment denying injunctive relief to Clairol based on the lack of a likelihood of confusion. The result is to restore Red-ken’s mark “CURL AND CONDITION” to the secondary register.

The Board had accepted Clairol’s contentions and ordered cancellation of Red-ken’s mark. The district court overruled the Board on both the “secondary meaning” issue and the “confusion issue.” Our decision affirms the district court decision as to the “confusion issue.”

I think that the proposed opinion overlooks the district court’s failure to abide by the rule of Morgan v. Daniels, 153 U.S. 120, 125, 14 S.Ct. 772, 38 L.Ed. 657 (1894). Furthermore, assuming ar-guendo that the Morgan rule was properly applied, I do not see how the district court or this court can justifiably have a clear conviction of the Board’s error on the remaining issue of “confusion.”

We all agree that under Morgan the district court was bound to accept the Board’s findings of fact unless, on the basis of the evidence considered by the Board and any new evidence, the court was left with a clear conviction that the Board had erred. Judge Goodwin assumes that the district court followed this rule. (Opinion, p. 1405, lines 15-25). I think the district court did not.

I will admit the district court was apparently aware of the Morgan rule, for the case is cited at the outset of the court's opinion below.

Yet awareness of the rule and adherence to it are obviously separate things, as the district court, by misapplying the rule, amply illustrates. Dealing with the factual issue of confusion, the court stated that it was “not convinced that likelihood of confusion exists with respect to plaintiff’s [Redken’s] mark.” [Emphasis added] [As to “secondary meaning” the district court likewise stated it was “simply not convinced • • •”]

Thus the district court, whether through misunderstanding of Morgan or inadvertence, based its decision on its lack of conviction that the Board was right, not on a clear conviction that the Board was wrong. Although not clearly convinced that secondary meaning had been acquired or that likelihood of confusion existed, the district court may still have been without that clear conviction to the contrary which is necessary under Morgan. Accordingly, I would reverse the district court’s holding as to the lack of a likelihood of “confusion.”

Even assuming that the district court was clearly convinced of the Board’s error, I believe that such a conviction is unjustifiable and erroneous in light of the evidence in the record favorable to Clairol. I will concede that the evidence leaves some doubt on the factual issues and that the Board may have been wrong, but this very state of doubt makes it impossible justifiably to have a clear conviction.

Without rehashing the evidence here, I think it is fair to say that it is sufficiently two-sided and that the Board’s expertise in evaluating such matters should be permitted the benefit of the doubt.

I would reverse the district court’s judgment denying injunctive relief to Clairol on the “confusion” issue.

      . Redken initially appealed the decision of the Board to the United States Court of Customs and Patent Appeals. Clairol then elected to have all further proceedings conducted as a civil action in a district court, thus requiring Redken to file its complaint in the court below. See 15 U.S.C. § 1071.

      . In addition to CONDITION by Clairol and CU11L & CONDITION by Redken, the record also disclosed CONDITIONAL by Helene Curtis, Inc., CONDITION/SET by Jheri Redding, Inc., and INSTANT CONDITION AND SET by La Maur, Inc.

      . The record indicates that prior to and during 1970 the wholesale price to beauty salons was approximately $20 per dozen for Redken’s CURL &. CONDITION and $23 per dozen for Clairol’s CONDITION. Each Redken unit provides one permanent wave; the size of the Clairol units is not clear.


author: PER CURIAM:

text:
    In re MAY LEE INDUSTRIES, INC., Appellant.
    No. 1249, Docket 74-1982.
    United States Court of Appeals, Second Circuit.
    Argued Aug. 12, 1974.
    Decided Aug. 21, 1974.
    David C. Buxbaum, New York City, for appellant.
    John F. Triggs, New York City (Robert M. McCulloch, Jr., J. Rush Barnes, Hawkins, Delafield & Wood, New York City, of counsel), for appellee Chartered Bank.
    William M. Silverman, New York City, for appellee Chemical Bank.
    Before OAKES, Circuit Judge, and FRANKEL and KELLEHER, District Judges.

       Of the Southern District of New York and the Central District of California, respectively, sitting by designation.

   PER CURIAM:

The judgment is affirmed on the opinion of Judge Ward below, 380 F.Supp. 1 (S.D.N.Y.1974).


author: TAMM, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Mitchel D. COHEN, dba the White House, Defendant-Appellant.
    No. 6-4.
    Temporary Emergency Court of Appeals.
    May 28, 1974.
    Before TAMM, Chief Judge, and CHRISTENSEN and JOHNSON, Judges.
   ORDER OF AFFIRMANCE UNDER RULE 28

TAMM, Chief Judge.

The court having considered the record and briefs on this appeal and having found no reversible error in the decision of the District Court, 380 F.Supp. 147, the judgment is affirmed.