author: KILEY, Circuit Judge.

text:
    Ernest BROOKS, Plaintiff-Appellant, v. CENTER TOWNSHIP, a municipality incorporated in Marion County, Indiana, and Benjamin A. Osborne, Center Township Trustee and Overseer of the Poor in Center Township, Defendants-Appellees.
    No. 72-1921.
    United States Court of Appeals, Seventh Circuit.
    Argued May 22, 1973.
    Decided Oct. 3, 1973.

      John T. Manning, Louis F. Rosenberg, Indianapolis, Ind., for plaintiff-appellant.
    Ernest P. Schnippel, Indianapolis, Ind., for defendants-appellees.
    Before CLARK, Associate Justice, KILEY, Circuit Judge, and CAMPBELL, Senior District Judge.

       The Honorable Tom C. Clark, Associate Justice of the Supreme Court of the United States, Retired, is sitting by designation.

       Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.

   KILEY, Circuit Judge.

Plaintiff, Ernest Brooks, as representative of a class, filed this civil rights action alleging that defendants unconstitutionally terminated plaintiffs’ rent and food assistance.- On motion of defendants the district court dismissed the complaint. Brooks alone has appealed. We reverse.

The complaint was filed on June 3, 1971. The relief sought was for a declaratory judgment that defendants’ practice of terminating benefits and dispensing poor relief violated the Due Process Clause of the 14th Amendment, for an order restraining defendants from termination of assistance except under specific procedural substantive and constitutional steps, and for an order reinstating certain plaintiffs on its relief rolls. After receiving eight extensions of time to answer, defendants, on March 10, 1972, filed their motion to dismiss asserting that there was no diversity jurisdiction, insufficient service of process, failure to exhaust administrative remedies, and lack of a substantial federal question. In response to the motion plaintiffs, inter alia, asserted that the motion did not specify how service of process was insufficient under federal or Indiana law. In any event they asserted that the thrust of their action was to establish deprivation of constitutional rights by virtue of defendants’ pre-termination procedure under Indiana law, and that they were, not required to exhaust post-termination remedies before bringing suit. The district court dismissed the complaint for failure of plaintiffs to exhaust their state remedy. Ind.Code § 12-2-1-18 (1971).

We take the allegations well pleaded by Brooks as true, for purposes of this appeal. He began receiving rent and food assistance from defendants in February, 1969. In May, 1970 his rental benefits, and in February, 1971 his food benefits, were terminated without prior notice or hearing or notice of his right of post-termination administrative appeal under Indiana Statute. Ind.Code § 12-2-1-18 (1971).

Brooks contends that he was not required to exhaust the Indiana “remedy” before filing his civil rights complaint, especially where the provisions of § 12-2-1-18 do not satisfy the due process and equal protection clauses of the Fourteenth Amendment. He contends, and we agree, that § 12-2-1-18 is unconstitutional for lack of due process under Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).

I

The district court’s application of the exhaustion rule was premised upon plaintiff’s failure to pursue the appellate remedy in Ind.Code § 12-2-1-18 (1971). That “poor relief” statute does not expressly deal with the termination process. Its provisions provide an appellate procedure to follow the decision of the “township trustee as overseer of the poor.” The statute contains no procedural requirements at the “trustee or overseer of the poor” level. Brooks’ claim of denial of due process is not aimed at the uneonstitutionality of the provisions of § 12-2-1-18, but rather at the lack of that statute, or any Indiana statute, to provide due process at the level of the initial termination of relief.

The provisions of § 12-2-1-18 provide an applicant for, or recipient of, poor relief an opportunity to object to a denial or termination decision by the “trustee as overseer.” The appeal is to the Board of County Commissioners, and on appeal the recipient is entitled to an opportunity to object orally or in writing, to be present at the appellate hearing and to receive notice of the decision. It is clear that the statute does not require a hearing for recipients before termination of relief. No claim is made by defendants that a pre-termination hearing is required or given.

We hold that the statute is constitutionally infirm facially for want of due process in failing to provide, inter alia, a pre-termination hearing, an effective opportunity for Brooks to defend, and want of due notice of reasons for termination. Goldberg v. Kelly, 397 U.S. 254, 264-268, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).

Defendants’ arguments are of no aid in our decision of the legal question presented. The arguments are reminiscent of a chorus in a Greek tragedy chanting lamentations. The substance of the arguments is the dire effects of continuing the trend of recent welfare decisions. Nevertheless, we recognize the importance of not imposing upon Indiana any procedural requirements beyond those of rudimentary due process. Goldberg v. Kelly, supra, at 267, 90 S.Ct. 1011. But rudimentary due process was denied Brooks, who had no notice of, or reasons for, termination of benefits, no hearing and no notice of his appeal right.

The Goldberg v. Kelly case involved a federally assisted program, not a completely state funded program. It is of no consequence constitutionally that Indiana’s “township poor relief program ... is not a federally governed or directed program under the Social Security Act of 1935 or any other federal act of welfare or relief assistance” but is supported solely by the state. Indiana is required by the Fourteenth Amendment to provide due process in its laws. See Monroe v. Pape, 365 U.S. 167, 171-172, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The Civil Rights Act was intended to “override certain kinds of state laws.” Id. at 173, 81 S.Ct. at 477. And if the state through its welfare program extends basic benefits to the needy, it must not take the benefits away in an arbitrary procedure. If it does so it has violated the constitutional right of the needy to due process and consequently violated the Civil Rights Act.

II

We hold that the district court erred in deciding that Brooks was required to pursue what benefit Ind.Code § 12-2-1-18 (1971) offers to welfare recipients before filing his civil rights action.

The Supreme Court has been careful to avoid trespassing upon state jurisdiction in the civil rights area. See McNeese v. Board of Education, 373 U.S. 668, 673, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963). Beginning with Monroe v. Pape, however, the Court has persisted in holding that the civil rights remedy under 42 U.S.C. § 1983 is supplementary to any state administrative remedies and that federal jurisdiction may be invoked without exhaustion of state remedies. In Pape the remedy was used in a search and seizure framework. In Mc-Neese the holding in Pape was repeated in the context of alleged segregation of students in an Illinois school. The holding was reasserted in a per curiam opinion in Damico v. California, 389 U.S. 416, 417, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967), an action under § 1983 involving the California welfare laws. In Houghton v. Shafer, 392 U.S. 639, 640, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968), a per curiam opinion, where a prisoner claimed his civil rights were denied by state confiscation of legal materials, the Court stated that “resort to” remedies of state was unnecessary in the light of Pape, McNeese and Damico. Still another per curiam opinion, Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972), held that a three-judge court improperly dismissed a complaint under § 1983 for failure to exhaust a state remedy. Carter involved aid to dependent children, and the court on authority of Damico, “an indistinguishable ease,” held “exhaustion” was not required. In a civil rights action by Illinois relief recipients this court in Metcalf v. Swank, 444 F.2d 1353 (7th Cir. 1971), affirmed dismissal for failure to exhaust state remedy. The Supreme Court vacated and remanded for further consideration in the light of Carter v. Stanton. Metcalf v. Swank, 406 U.S. 914, 92 S.Ct. 1778, 32 L.Ed.2d 113 (1972).

In Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973), the court cited McNeese and Damico for the proposition that the court had “expressly held in recent years that state administrative remedies need not be exhausted where the federal court plaintiff states an otherwise good cause of action under 42 U.S.C. § 1983.” The court however qualified that statement by saying it need not decide “[wjhether this is invariably the case.” In a factual situation such as the one there, where the state remedy was initiated and pending and the individual would be deprived of nothing until completion of the state proceeding, the question of exhaustion “remains open.” Gibson is inapposite here because no Indiana state proceeding was or is pending with which a district court decision would interfere.

For the reasons given the district court judgment is reversed and the cause is remanded with directions to reinstate Brooks to the Center Township of Marion County, Indiana relief rolls from which he was unconstitutionally dropped; and for further proceedings with respect to what just compensation is due him from defendants for what injury the evidence shows he suffered as a result of the unconstitutional arbitrary termination of his “poor relief” benefits.

Reversed and remanded with directions.

      . The court assumed jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343(3) and (4).

      . The district court granted leave to appeal in forma pauperis.

      . The assistance record of Brooks appended to defendants’ brief is not to be considered at this stage of the proceeding.


source: Caselaw Access Project

author: SCALERA, District Judge.

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 542, 542-A AND 542-B, INTERNATIONAL UNION OF OPERATING ENGINEERS, and William E. Ciavaglia, its business agent, Respondents.
    No. 72-1837.
    United States Court of Appeals, Third Circuit.
    Argued May 3, 1973.
    Decided Sept. 20, 1973.

      Joseph T. Thaekery, N. L. R. B., Washington, D. C., for petitioner.
    Martin J. Vigderman, Freedman, Borowsky & Lorry, Philadelphia, Pa., for respondents.
    Before HUNTER and WEIS, Circuit Judges, and SCALERA, District Judge.
   OPINION OF THE COURT

SCALERA, District Judge.

JURISDICTIONAL STATEMENT

This matter comes before the court on application of the National Labor Relations Board (hereinafter Board), pursuant to § 10(e) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq.), for enforcement of its order issued March 31, 1972 against Local 542, 542-A and 542-B, International Union of Operating Engineers and William Ciavaglia, Business Manager of the various locals (hereinafter collectively the Union).

The issues are properly before this court, as the labor practices complained of took place in Philadelphia, Pennsylvania.

FACTS

The Union acts as the bargaining and business agent for the operating engineer craft in Eastern Pennsylvania and Delaware. As business agent the Union has provided and continues to provide an exclusive hiring hall service whereby it refers people on its hiring list to various job openings.

Prior to 1965, access to the Union and/or its hiring list was relatively unrestricted. Unskilled individuals (not operating engineers) who sought placement on the Union’s hiring hall referral list and did not join the Union were placed on the hiring list and were given “green books.” These non-skilled, nonunion personnel were classified as “oilers” and were referred to as “A-registrants.” Upon joining the Union, oilers were given an “A book” to replace the “green book” and were referred to as “A branch” members. Other persons with sufficient engineer operating skills seeking placement on the hiring hall referral list but declining to join the Union were placed on the referral list as “B-registrants.” “B-registrants” joining the Union became “B branch” members.

In 1965 and 1966, methods of gaining access to the Union and/or its referral list were greatly altered as a result of a registered apprenticeship training program instituted by the Union and its contracting employers. The program had several major objectives. It sought to raise the quality and proficiency of the operating engineers in its jurisdiction, to open the Union and the craft to minorities, and to phase oilers out of the referral group through retirement and other consensual forms of attrition. To accomplish this last goal, the Union stopped placing new “oilers” on the Union roster or the hiring list. At this point oilers were eligible for placement on the Union roster 'and/or hiring hall list only if they were established employees of contracting companies recently organized by the Union. Oilers who were already on the referral list or who were members of the Union, however, were retained with complete job referral rights. After the program began, people with enough experience and skill to satisfy the Union’s standards for an operating engineer could still register on the hiring list as “B-registrants.” Upon joining the Union, if they chose to do so, these operators became “B branch” members. Unskilled candidates, however, could gain final acceptance into the Union and/or its hiring list only by satisfying the apprentice program’s entrance requirements and by actively pursuing the program’s course of study. Upon successful completion of the apprentice program, the candidate emerged as an operating engineer with the right to remain as a permanent member of the Union and/or its job referral group. According to rules published August 11, 1970, if a candidate washed out of the training program, he forfeited his place with the Union and/or the job referral group. No prior published rule mandated such forfeitures.

Initially, the apprentice training program sought apprentices among those who were already Union oilers. At a later date, candidates were solicited among the non-union oilers who were members of the job referral group. Finally, the program began to seek apprentices from outside the established job referral group. These new apprentices were subject to the conditional acceptance discussed above.

The Union has always referred members of its hiring list (both union and non-union) under a seniority system.— the workers with the most work experience are called first. The labor agreement which controlled the Union’s referral practices at all times relevant to this dispute (dated May 1, 1968) provided that job referrals be made without regard for the applicant’s union or non-union status. The relevant agreement indicates that referrals should be made on the basis of seniority and establishes the following referral priority groups:

Group I — All registered apprentices and those who had completed the registered apprentice training program and all other work applicants with 5,000 hours of work in the preceding eight years or 2,500 hours within the past three years.

Group II — Those with 2,500 hours within the past twelve years or 400 hours per year in any three of the past five years, or 400 hours during the past year.

Group III — All others.

These provisions were specifically designed to place apprentices in the highest priority group so that they would be exposed to a maximum amount of on-the-job training.

In 1962, Freeman became an “A-registrant” (oiler) on the Union’s job referral list. He joined the Union in 1965, changing his status to “A branch oiler.” At a Union meeting in 1965, Union officials told Freeman and other Union oilers that if Union members joined the apprentice program and later washed out, they would nevertheless remain in the Union. In 1966, Freeman joined the apprenticeship program, dropping out several months later. Freeman was permitted to retain Union membership and full job referral rights. •

Szuchon began work on July 1, 1966, when he was placed on the job referral list as an “A-registrant oiler.” He never joined the Union. On April 5, 1967, Szuchon applied for the apprentice training program. On April 17, 1968, Szuchon entered the apprentice training program after signing an agreement which obligated him to perform on-the-job and classroom training assignments in accordance with regulations established by the Joint Apprenticeship Committee. This induction agreement did not contain any provisions indicating that Szuchon would forfeit his job referral rights if he failed to complete the apprenticeship program.

On August 28, 1968, the Union promulgated a set of oral rules governing the selection and processing of skilled and unskilled candidates for membership in the Union or the job referral group. These rules were published for the first time on May 1, 1969. That portion of these rules covering the apprenticeship program indicates that candidates will be given an' apprenticeship test- and an interview, and further provides that immediate openings will be filled from those with the highest total scores. Those candidates who pass the test but who are not immediately accepted into the program will be placed on a program waiting list and, in addition, will be given a low priority position on the job referral list. The rules also provide that any apprentice candidate on the job referral list must enter the apprenticeship program when called or be removed from the job referral list. Finally, this version of the rules indicates that it will not affect the rights of anyone presently on the job referral list. In a revised version of these rules adopted and published on August 8, 1970, the Union tightened the program’s entrance requirements by adding age limits and formal educational requirements. This revised version also provides that anyone washing out of the apprenticeship program will be removed from the job referral group and Union membership. These rules retain the provision which indicates that the status or rights of any man on the job referral list as of May 1,1969 remain unaffected.

In March of 1969, the Joint Apprenticeship Committee eliminated Szuchon from the apprenticeship program because of his chronic failure to attend classes. The Joint Apprenticeship Committee advised him by letter on March 27, 1969 that he had been eliminated from the program with a right of appeal within five days. This notification was made without the Union’s knowledge that on March 15, 1969, Szuchon had entered military service. Thereafter, on June 11, 1969, the Union wrote Szuchon that he would have sixty days after leaving the service to appeal the Joint Apprenticeship Committee’s decision eliminating him from the apprenticeship program.

Szuchon was discharged from military service on September 29, 1969. In October he returned to the hiring hall, presented his certificate of honorable discharge, registered on the out-of-work list, was given a registered apprentice book, and was referred to several jobs. Later in October the Joint Apprenticeship Committee became aware that he was being referred for employment and set up an appeal meeting at which he appeared, as ordered, on November 26. On December 3, he was notified that his appeal had been denied with no further right of review. In the meantime, in November, when Szuchon went to the Union hall to pay his dues, his book was taken from him and he was advised that he was “no longer a member in the Union.” He then filed suit against the Union under the Veterans’ Reemployment Act and continued to work until March 1970, when that proceeding, in the Union’s words, “became a dead issue,” whereupon Szuchon’s employer was advised that it must dismiss him and did so. Szuchon applied for Union membership on March 9, but this request, too, was denied because of the Joint Apprenticeship Committee’s action in December. He also filed a charge with the Board alleging discriminatory discharge, which was dismissed.

During November, the Business Agent denied Szuchon classification in any referral group under the contract.

After being denied a referral listing, Szuchon wrote to Ciavaglia stating that he had applied for referral, had been refused, and was therefore requesting arbitration pursuant to Article II, § 2(m) of the contract. He received no answer to this letter and, accordingly, filed the charge which resulted in the matter being litigated before the Board. After a review of the proceedings before the trial examiner and the trial examiner’s opinion, the Board reversed the examiner and found that the Union had discriminated against Szuchon in violation of 29 U.S.C.A. § 158(b)(1) and (2) [§ 8(b)(1) and (2) of the National Labor Relations Act as amended by the Taft-Hartley Act].

To remedy this discrimination the Board ordered the Union to restore Szuchon to the appropriate referral priority group with full credit for all hours worked in the apprenticeship training program. The Board also awarded Szuchon back pay for work missed as a result of the Union’s refusal to refer him. The Union has not complied with the order and thus the matter comes before us on the Board’s petition for enforcement.

In its brief and in argument, the Union opposed enforcement of the order with three basic propositions:

1. Szuchon was denied registration with the Union and/or its referral group because he no longer met the entrance requirements, rather than as a result of his non-union status.

2. The Board’s order subverts the goals of the apprenticeship program by encouraging people to enter it solely for the purpose of accumulating seniority hours and without any intention of becoming operating engineers. In subverting the program, the Board’s order clearly contravenes the federal statutes which encourage and sanction apprenticeship programs.

3. The complaint issued by Regional Counsel for the Board asked for a Union Tribunal to review Szuchon’s removal from the referral list. At the hearing the Union offered to convene such a tribunal. When Regional Counsel refused this offer, the issue was mooted, depriving the Board of power to process the complaint.

We find that these arguments lack merit.

DECISION

In considering the enforceability of the Board’s order in this case, we must determine:

1. Whether the Board’s findings of fact are supported by substantial evidence on the record as a whole.

2. Whether the Board conducted a full and fair hearing and observed all procedures required by law.

3. Whether the Board’s order is reasonably designed to effectuate the policies of the Act.

4. Did the Board handle the matter in accordance with law and without taking action that is arbitrary or capricious ?

If the Board satisfied all of these requirements, we must enforce its order.

I

In light of these criteria, the Union’s first argument must be regarded as a challenge to the sufficiency of the evidence upon which. the Board made its findings. This argument pales upon close inspection because the record holds a wealth of evidence indicating that Freeman and Szuchon were similarly situated in all matters except their Union status and the Union’s handling of their job referral rights. Both were members of the job referral group before the Union adopted rules barring further induction of unskilled labor, and both failed to complete the training program. When they entered the training program, no rule formal or informal indicated that graduation was prerequisite to retention of their job referral rights. In fact, Union President Dawson candidly admitted that although both Szuchon and Freeman were “in the mill” prior to May 1, 1969 (the date on which the Union stopped taking new oilers and on which it guaranteed continuing job referral rights to all oilers already in the referral group) Szuchon was required to relinquish his guaranteed referral rights for limited referral rights conditioned upon his successful completion of the program, while Freeman was not required to relinquish his guaranteed referral rights because he was a Union member.

This evidence which indicated that the Union has favored a Union member over a similarly situated nonmember provides the Board with sufficient grounds for inferring that the “true purpose” or “real motive” of the disparate treatment is to encourage and coerce membership in the Union in violation of 29 U.S.C.A. § 158(b)(1) and (2). Local 357, International Brotherhood of Teamsters, Chauffeurs, Ware-housemen and Helpers of America v. N. L. R. B., 365 U.S. 667, 81 S.Ct. 835, 6 L.Ed.2d 11 (1961). The Board may make this inferential finding of motive and intent by applying the long-enduring legal maxim that a party is presumed to intend the natural, foreseeable consequences of its acts. Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, supra. In Radio Officers’ Union v. N. L. R. B., 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455 (1954), the court said:

. encouragement and discouragement [of Union membership] are “subtle things” requiring “a high degree of introspective perception.” Cf. N. L. R. B. v. Donnelly Garment Co., 330 U.S. 219, 231, [67 S.Ct. 756, 91 L.Ed. 854] 864. But as noted above, it is common experience that the desire of employees to unionize is raised or lowered by the advantages thought to be attained by such action. Moreover, the Act does not require that the employees discriminated against be the ones encouraged .... 347 U.S. at 51, 74 S.Ct. at 341, 98 L.Ed. at 483.

Against this legal backdrop, the record amply supports the Board’s finding that the Union discriminated between Szuchon and Freeman in order to encourage increased Union membership. The validity of this finding is not diminished by the absence of “independent proof that encouragement of Union membership actually occurred.” Radio Officers’ Union v. N. L. R. B., supra, 347 U.S. at 48, 74 S.Ct. at 340, 98 L.Ed. at 481.

II

The record does not contain any hard statistical evidence that would enable the Board or this court to measure even the potential impact of the order upon the apprenticeship training program. In the absence of real evidence indicating how many oilers might be eneouraged to enter the program solely to accumulate job referral seniority and without any bona fide intention of pursuing the program to its completion, we cannot fault the Board’s conclusion that this argument should not control its disposition of the case. We note that the Board’s order is drawn in very narrow terms (applicable by its terms only to Szuchon) and while at this juncture we do not presume to predict the order’s effect in future situations, it appears that the order’s implications can be construed so narrowly that very few, if any, people could follow Szuehon’s path to seniority and thereby subvert the apprenticeship program.

Finally, even if we were convinced that enforcement of the Board’s order would lead logically and inescapably to the ultimate misuse and frustration of an apprenticeship program sanctioned and encouraged by federal statute, we would nonetheless feel compelled to enforce the order on the theory that the Board is empowered to honor the specific and narrow prohibitions of § 8(b)(1) and (2) of the National Labor Relations Act as amended by the TaftHartley Act (29 U.S.C.A. § 158(b)(1) and (2)), even in derogation of the general policies embodied in 29 U.S.C.A. § 50.

III

The Union’s last argument, stripped of unnecessary embellishment, asserts that the Board went beyond the bounds of the complaint in trying the case and fashioning a remedy. Inherent in this position is the assertion that the Union was not given fair notice of the issues and thus was deprived of an opportunity to fully prepare its case for presentation to the trial examiner. While the complaint issued by the Regional Counsel is not part of the record presented to this court, and while the remarks máde before the trial examiner indicate that the complaint specifically requested only a Union tribunal, we conclude that the Union still obtained a full and fair hearing of the merits before the examiner. Szuchon’s request for the tribunal was clearly and obviously intended to obtain redress for Szuchon’s removal from the Union’s referral list. In requesting this same specific remedy, the complaint gave fair notice to all that the remedy was requested merely as a “cure” for the underlying problem— Szuchon’s improper dismissal. In our view, given the existence of this general notice, the Board cannot be faulted for choosing a different remedy which goes directly to the heart of the dispute. We note the record indicates that the Union fully developed the operative facts and circumstances surrounding Szuehon’s dismissal and the reasons therefor.

We conclude that the order of the Board should be enforced as written.

      . The rules governing the program’s apprentice intake practices (promulgated August 8, 1968, published May 1, 1969, revised and republished August 1, 1970) indicate that anyone accepted into the Union or the job referral group after May 1, 1969 was accepted on the condition that he successfully compíete the program. Anyone in the referral group prior to May 1, 1969 could remain with full job referral rights despite the existence of the apprentice program,

      . As indicated by the induction agreement and testimony produced before the trial examiner, the Joint Apprenticeship Committee had the power to discipline apprentices and to dismiss them from the apprenticeship program but only the Union could revoke the referral rights of those in its job referral group.

      . The Board is seldom irrevocably bound by the trial examiner’s findings and conclusion. See Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); N. L. R. B., v. Duncan Foundry and Machine Worts, Inc., 435 F.2d 612 (C.A.7, 1970); S. A. Healy Co. v. N. L. R. B., 435 F.2d 314 (C.A.10, 1970); Acme Products, Inc. v. N. L. R. B., 389 F.2d 104 (C.A.8, 1968); N. L. R. B., v. Johnson, 310 F.2d 550 (C.A.6, 1962); Utica Observer-Dispatch v. N. L. R. B., 229 F.2d 575 (C.A.2, 1956).

      . For the sources of these criteria see 5 U.S.C.A. § 706 (Administrative Procedure Act—Scope of Review); 29 U.S.C.A. § 160(c) and (f) (National Labor Relations Act as amended by Taft-Hartley Act); Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Phelps Dodge Corp. v. N. L. R. B., 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 (1941); 29 U.S.C.A. § 160(c); Fibreboard Paper Products Corp. v. N. L. R. B., 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964).

      . Under the Rules for Handling A and B Registrants (first promulgated August 8, 1968, published May 1, 1969, and revised and republished August 1970), an unskilled man could qualify for membership in the Union and/or the job referral group only by qualifying for and completing the apprenticeship program.

      . “The Secretary of Labor is authorized and directed to formulate and promote the furtherance of labor standards necessary to safeguard the welfare of apprentices, to extend the application of such standards by encouraging the inclusion thereof in contracts of apprenticeship, to bring together employers and labor for the formulation of programs of apprenticeship, to cooperate with State agencies engaged in the formulation and promotion of standards of apprenticeship, and to cooperate with the Office of Education under the Department of Health, Education, and Welfare in accordance with section 17 of Title 20.” 29 U.S.C.A. § 50.


author: ALDISERT, Circuit Judge.

text:
    In the Matter of ROYAL ELECTROTYPE CORPORATION, Debtor. Appeal of Alex SHAW and Catherine Shaw, claimants under Reclamation Petition.
    No. 72-1987.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) July 25, 1973.
    Resubmitted Under Third Circuit Rule 12(6) Sept. 4, 19731
    Decided Sept. 10, 1973.
    As Amended Oct. 16, 1973.
    William E. Mowatt, Mowatt, McErlean, Pinto, Theodore & Rubin, Media, Pa., for appellants.
    Simon Pearl, Lawrence J. Lichtenstein, Sklar, Pearl, Lichtenstein & Sklar, Philadelphia, Pa., for appellee.
    Submitted Under Third Circuit Rule 12(6) July 25, 1973
    Before SEITZ, Chief Judge, and ALDISERT, Circuit Judge.
    Resubmitted Under Third Circuit Rule 12(6) Sept. 4, 1973
    Before SEITZ, Chief Judge, and ALDISERT and GIBBONS, Circuit Judges.
   OPINION OF THE COURT

ALDISERT, Circuit Judge.

This appeal from a district court order affirming a bankruptcy referee’s decision requires us to decide whether the law of Pennsylvania relating to consequences of improper filing of a security instrument by a filing officer has been changed by the passage of the Uniform Commercial Code, 12A Penna.Stat.Anno. § 9 — 303.

Appellants, creditors of the bankrupt, Royal Electrotype Corporation, caused to be filed in the office of the Philadelphia Prothonotary and the Pennsylvania Secretary of the Commonwealth an instrument entitled, “Security Agreement,” in which the bankrupt gave appellants a security interest in accounts receivable. The Commonwealth Secretary erred in indexing the agreement in its records and showed appellant as the debtor and the bankrupt as the creditor. Although this erroneous information was also listed on the receipt given the appellant at the time of filing, the error was not discovered until after Royal was adjudicated a bankrupt. Appellants filed a reclamation petition with the referee requesting that the receiver deliver to them those proceeds assigned under the Security Agreement. The referee denied the petition and the district court affirmed, holding that the security interest was not perfected because of the improper filing, relying on Pennsylvania case law that “[i]t is the duty of a person offering an instrument for record to see that it is both properly recorded and properly indexed.” Commonwealth to the Use of Orris v. Roberts, 392 Pa. 572, 586, 141 A.2d 393, 400 (1958); Prouty v. Marshall, 225 Pa. 570, 576-577, 74 A. 550, 552 (1909): Jarrell v. Fidelity-Philadelphia Tr. Co., 33 Pa. D & C2d 143, 146 (1963). This appeal followed.

Pennsylvania law controls this issue. The transaction between Royal and appellants was conducted under Pennsylvania law. Upon the adjudication of bankruptcy, the trustee has “the benefit of all defenses available to the bankrupt as against third persons, including . . . personal defenses.” § 70(c) of the Bankruptcy Act, 11 U.S.C. § 110(c). “Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law.” Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). “This is not a diversity case but the same principle may be applied for the same reasons. . . .” Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1783, 18 L.Ed.2d 886 (1967).

That Pennsylvania law controls does not lighten our task because the precise issue presented by this appeal has not been adjudicated by the courts of that state. Conceding that Pennsylvania case law prior to the passage of the Uniform Commercial Code in 1954 holds that the party recording an instrument has the obligation to see that it is recorded properly, appellants rely on § 9 — 303:

(1) A security interest is perfected when it has attached and when all of the applicable steps required for perfection have been taken. Such steps are specified in Sections 9 — 302, 9 — 304, 9 — 305, and 9 — 306. If such steps are taken before the security interest attaches, it is perfected at the time when it attaches.

Appellants observe that the required steps were taken by them and that, therefore, the security interest was perfected: “A financing statement must be filed to perfect all security interests.” § 9 — 302. “A security interest in chattel paper or negotiable documents may be perfected by filing.” § 9 — 304. They contend that their security interest was perfected by filing. They rely on § 9— 403(1):

Presentation for filing of a financing statement and tender of the filing fee or acceptance of the statement by the filing officer constitutes filing under this Article.

Accordingly, their interest was perfected, they argue, as soon as the statement was presented, accepted, and the filing fee tendered.

Because the Pennsylvania courts have not addressed themselves to this precise issue we must ascertain the state law from all available data. “If there be no decision by [the State’s highest court] then federal authorities must apply what they find to be the state law after giving ‘proper regard’ to relevant rulings of other courts of the State. In this respect, it may be said to be, in effect, sitting as a state court. Bernhardt v. Polygraphic Co., 350 U.S. 198, [76 S.Ct. 273, 100 L.Ed. 199] (1956).” Commissioner v. Estate of Bosch, supra, 387 U.S. at 465, 87 S.Ct. at 1783.

I.

Appellants are not without formidable supporting authorities in pressing their contention. The official Uniform Commercial Code Comment, set forth in 12A Penna.Stat.Anno. § 9 — 407 supports their view:

Note, however, that under Section 9 — 403(1) the secured party does not bear the risk that the filing officer will not properly perform his duties: under that Section the secured party has complied with the filing requirements when he presents his financing statement for filing and the filing fee has been tendered or the statement accepted by the filing officer.

Birnbaum, A.L.I., Secured Transactions Under the Uniform Commercial Code, 1954, § 12.8, states:

12.8 WHAT CONSTITUTES FILING Under prior law a question sometimes has arisen as to the effect of mistake by the filing officer, such as an error in the index. Is the filing nevertheless effective to protect the secured party, even though one who searched the records was misled; or should the Court say that the mistake prevented both constructive as well as actual notice, even though the secured party and the misled 'creditor were equally innocent?
The rule stated by Section 9— 403(1) is that filing is complete and effective for all purposes of Article 9 when the financing statement has been accepted by the filing officer or when it is presented for filing accompanied by a tender of the fee. From either point on, the secured party is protected.

See also Henson, Secured Transactions Under the Uniform Commercial Code (1973), page 53 and 4 Anderson, Uniform Commercial Code, § 9 — 403:5 (1971).

II.

We have not found nor have we been directed to, any ease which indicates that the Pennsylvania Supreme Court has attempted to restrict the scope of the operation of that state’s Commercial Code. We are not aware of any decision which seeks to dilute the legislative mandate that the U.C.C. “shall be liberally construed and applied to promote its underlying purposes and policies,” defined to be “(a) to simplify, clarify and modernize the law governing commercial transactions; (b) to permit the continued expansion of commercial practices through custom, usage, and agreement of the parties; (c) to make uniform the law among various jurisdictions.” 12A Penna.Stat.Anno. § 1 — 102(1), (2). Cases from other jurisdictions have consistently held that the secured party does not bear the risk of improper indexing by the filing officer so long as the secured party has not by his own conduct caused the error.

But even more impressive is the clear indication from the reported cases that the Pennsylvania courts are not only giving full force and effect to the spirit of the U.C.C. and the statutory text, but also to the official comments accompany-' ing the text. Interpreting another phase of Pennsylvania commercial law in Thompson Maple Products, Inc. v. Citizens National Bank, 211 Pa.Super. 42, 46-47, 234 A.2d 32, 34 (1967), the Pennsylvania Superior Court flatly stated: “Even if that was the law in this Commonwealth prior to the passage of the Commercial Code, it is not the law today. The language of the new Act is determinative in all cases arising after its passage.” (Emphasis supplied.)

Even more persuasive is Philadelphia Title Ins. Co. v. Fidelity-Philadelphia Tr. Co., 419 Pa. 78, 84, 212 A.2d 222, 225 (1965), where the Supreme Court, addressing still another aspect of the Code, said “[R]egardless of the preCode [law], . . . the matter must be decided by statutory construction and application of the . . . doctrine as it now appears in . the Code.” And even more significant, for our purposes, is the Pennsylvania Supreme Court’s hospitality to the official comment of the Code: “Both the words of [the section] and the official Comment thereto leave no doubt. . . .” Philadelphia Title Ins. Co., supra, 212 A.2d at 225. Indeed, the Court makes reference to the official comment to ascertain the intent of the legislature in interpreting § 3 — 405(1).

III.

The Trustee-appellee mounts first an argument extolling the virtues of proper identification of creditors in record offices. As impressive as this goes, we question its relevancy here, for here it is a statute we are interpreting. Perhaps the contention would be better addressed to those who legislate commercial code policy in Pennsylvania.

Next the Trustee addresses the Pennsylvania eases of Prouty and Orris, relied upon by the district court, and In re Thomas Van Dusen Acceptance Corp. v. Gough, 466 F.2d 51 (9th Cir. 1972). Prouty was a pre-code case. In Orris there was a claim for damages against the prothonotary for the improper filing of a judgment; the U.C.C. issue posed in this appeal was neither presented to nor discussed by the court in its opinion. The Van Dusen case is of little help because, not addressing the precise issue before us, it simply held that financing statements which did not state the correct name of the debtor and only a trade name did not comply with the Code and were fatally defective.

We have decided that in the context of the Uniform Commercial Code, the Pennsylvania Supreme Court would not apply the Prouty-Orris doctrine to this case. We are persuaded that the court would consider that the holdings of those cases have been changed by § 9— 403(1) of the Code as is made crystal clear by the Comments at § 9 — 407; and that they would adopt the language of Superior Court Judge J. Sydney Hoffman in Thompson Maple Products that “it is not the law today.”

“The proper function of the courts is to adjudicate, not to legislate; the legislature is and must be the ultimate and paramount source of law.” Where both the legislative language and purpose are unmistakably clear, it would be usurpatory judicial lawmaking for a court to ignore the language or to invent an ambiguity for the sole purpose of dissipating it and then filling the void which the court creates with its own cherished policy. In Pennsylvania, a common law state in the greatest tradition, the courts have great freedom to develop substantive and procedural law, but this inherent power is subject to a classic limitation; the power is circumscribed in those areas where the legislature chooses to act. Roger Traynor tells us: “Except for constitutional limitations, legislators innovate [statutes] with a freedom unknown to judges, who must ordinarily stay within the confines of precedent and articulate the reasons for their rules. A statute may be a fat code or a thin paragraph or a starveling sentence. It may cast a heavy shadow on the common law or a light one. . ” As to the Trustee here, we fear the U.C.C. has cast a heavy shadow.

The judgment of the district court will be reversed and the proceedings remanded with a direction of a further remand to the referee that he grant appellants’ petition for reclamation.

      . There is no federal general common law, but there is federal common law. On the same day Erie was decided, Justice Brandéis said in the opinion in another case: “For whether the water of an interstate stream must be apportioned between the two States is a question of ‘federal common law’ upon which neither the statutes nor the decisions of either State can be conclusive.” Hinderlider v. La Plata Co., 304 U.S. 92, 110, 58 S.Ct. 803, 811, 82 L.Ed. 1202 (1938). See also Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), and the cases cited therein.

      . § 9 — 805 and § 9 — 306 are not applicable to these proceedings.

      . In Re Smith, 10 U.C.C.Rptr.Serv. 730. (Referee’s Decision, W.D.Okl.1971); In Re Bengston, 3 U.C.C.Rptr.Serv. 283 (Referee’s Decision, D.C.Conn.1965); In Re Vaughan, 4 U.C.C.Rptr.Serv. 61 (Referee’s Decision, D.C.Mich.1967); In Re McCoy, 330 F.Supp. 533, 536 (D.C.Kan.1971).

      . Tate, The Law-Making Function of the Judge, 28 La.L.Rev. 211, 212 (1968).

      . Cohen, Judicial ‘Legisputation’ and the Dimensions of Legislative Meaning, 36 Ind.L.J. 414, 415.

      . Traynor, Statutes Revolving in Common-Law Orbits, 17 Cath.U.L.Rev. 401, 402 (1968).

      . A secondary issue presented by this appeal is whether a first advance of $12,000 was covered by the financing statement. We agree with the district court’s interpretation that “there is no indication in [the financing statement] or in the security agreement, that it was intended to have the limiting effect the Trustee argues. Again, on the present record, there can really be no doubt that the parties intended the petitioners to have the security interest set forth in the agreement.”


author: GIBSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Martin J. McNALLY, Appellant.
    No. 73-1061.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 13, 1973.
    Decided Sept. 14, 1973.
    Rehearing and Rehearing En Banc Denied Oct. 2, 1973.

      Frederick H. Mayer, St. Louis, Mo., for appellant.
    David Harlan, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before GIBSON, LAY and ROSS, Circuit Judges.
   GIBSON, Circuit Judge.

Defendant Martin Joseph McNally was indicted for and convicted of hijacking two aircrafts, legally proscribed as aircraft piracy. Following the jury verdict, the Honorable John K. Regan sentenced the defendant to two concurrent life sentences.

On appeal defendant urges four grounds of error, any one of which would require reversal of his conviction. He maintains: (1) the District Court should have granted defendant’s motions for a change of venue, for sequestration of the jury, and exclusion and control of the press due to prejudicial pretrial and trial publicity, (2) the District Court should have appointed a psychiatric expert of defendant’s choice to aid in the preparation of his defense, (3) the District Court should have granted defendant’s motion to suppress evidence due to an illegal search of defendant’s house, and (4) the District Court should have allowed the defendant 20 peremptory challenges under Fed.R.Crim.P. 24(b), since the charged crime could have resulted in imposition of a death sentence. Rejecting each argument, we affirm the judgment of conviction.

The defendant does not challenge the sufficiency of the evidence to sustain the verdict, and properly so, as the largely uncontradicted evidence overwhelmingly points to defendant’s guilt. Since legal issues only are raised, a brief summary of the voluminous facts and evidence should suffice.

On June 23, 1972, at approximately 2:35 p. m., an American Airline Boeing 727 jet airplane, Flight No. 119, having originated in New York, left St. Louis, Missouri, bound for Tulsa, Phoenix, and Los Angeles. At about 3:15 p. m. and when approximately 20 minutes before planned arrival in Tulsa, the defendant, holding a machine gun, accosted one of the four stewardesses and gave her two notes to deliver to the captain. The notes in part demanded $502,000 cash, certain parachuting equipment, and the return of the flight to St. Louis.

The plane returned to St. Louis and landed at about 4:00 p. m. The women, children, and some men deplaned. The plane refueled and circled St. Louis, awaiting the collection of the money and the equipment. After • the defendant was told that the money was not available in St. Louis but was in Fort Worth, Texas, the airplane headed for Fort Worth at 6:45 p. m.

At about 7:45 p. m., the captain was informed that the money could be collected in St. Louis, and the flight was redirected to St. Louis, where it landed at Lambert Field at 9:25 p. m. for the second time on June 23d. During this time on the runway, a male passenger retrieved the money and parachuting equipment outside the jet. The defendant then allowed all the original crew, except two stewardesses, to deplane; one male passenger was ordered to remain on board as a hostage. The new captain and crew, including a FBI agent disguised as a pilot, boarded the flight for a new destination.

With the relief crew in command, the same American Airlines Boeing 727 began to taxi for lift-off. In the process, however, a late model automobile, which had broken through the airport security gates, struck the airplane on its underside and disabled it. A private citizen, acting entirely on his own, drove the car about 90 miles per hour into the airplane. After several minutes of high tension and assurances that the FBI was not involved in this misdirected and unfortunate incident, arrangements were made for another American Airlines airplane, a Boeing 727 jet designated Flight No. 821, to accommodate the hijacker’s demands. The entourage transferred to this plane, with the hijacker in control. He ordered the plane to proceed toward Canada. At 3 a. m. on June 24th, en route to Canada, traveling at 10,000 feet and 263 knots true air speed and located 43 miles west of Fort Wayne, Indiana, and five miles south of Peru, Indiana, the captain noticed a shift in air pressure according to certain instrumentation, a Transponder system, that indicated to him that the hijacker had parachuted from the airplane. The jet then turned around and eventually landed in Chicago without the hijacker.

From June 24th through June 28th, 150 FBI agents scoured the area around Peru for the hijacker. On one of those days, a farmer near Peru found the American Airlines’ mail pouch containing over $500,000 and notified the FBI. Also discovered in the same area of open fields were a .45 caliber machine gun, the parachute given to the hijacker, and clothes.

Operating on reliable information, the FBI continued its search in Wyandotte, Michigan, close to Detroit and the home of the defendant. On June 28th at about 11:00 to 11:30 p. m., the defendant was arrested in front of his home in Wyandotte. Agents, according to their testimony, surrounded the defendant’s home and entered it at 2:45 p. m. on June 29th after a search warrant had been issued. They further testified at a hearing on a motion to suppress evidence that no one entered the home before 2:45 p. m. on June 29th, that lights inside the home did turn off once during the night before the search, and that a timing device that turns off lights automatically was found on the premises during the search. One neighbor testified that someone was inside the house during the early morning of June 29th, and another neighbor testified that the lights inside the house flickered off and on several times during the night. During the search, the agents found certain books and charts connected with aviation, a box of .45 caliber ammunition, a rifle stock, a metal foregrip for a .45 caliber machine gun, and a .45 caliber M-3 cartridge magazine. Over objection, these items were admitted as evidence during the defendant’s trial.

The defendant moved at various times both before and during trial for a change of venue, sequestration of the jury, and exclusion or control of the press during trial. The District Court denied all of these motions.

Media coverage of this hijacking was extensive, as conceded by the Government. The Government stipulated that continuous radio coverage and spot television bulletins were broadcast during the evening of June 23d and early morning of June 24th. The record contains copies of the St. Louis Post-Dispatch, St. Louis Globe-Democrat, and the tele-' vision news scripts of KSD-TV and KTVI-TV, all from June 23, 1972, through July 5, 1972. In addition, the Government has reprinted a November 15, 1972, St. Louis Post-Dispatch news article concerning the defendant’s mental competency. The defendant has cited to us no articles published or newscasts broadcast during the trial that could be considered prejudicial.

Undoubtedly, this case attracted broad media attention at the time of the hijacking and subsequent search for the perpetrator. The hijacking of airplanes was indeed topical at this particular time. According to the St. Louis Globe-Democrat of June 24-25th (a combined Saturday-Sunday edition), the United States Attorney for the Eastern District of Missouri had four days earlier “blasted what he called ‘appalling security’ at Lambert Field.” The St. Louis Post-Dispatch reported on Sunday, June 25th, that the Federal Aviation Administration had published on Saturday, June 24th, in the Federal Register that it was considering regulations requiring certain rewiring of Boeing 727 jets so that the rear door could not be opened during the flight. The rear door provides a safer exit for a parachuter and was employed by the defendant in this case. At the time of this hijacking, officials were beginning to implement security measures that are now prevalent in the airports across the country.-

Despite the understandable emotionalism concerning hijacking during the summer of 1972, we find, in reading the newspaper articles and television news scripts, that the journalistic reporting was accurate, objective, and unemotional. Perhaps the very nature of the ease aided the objective reporting. No injuries occurred during the hijacking; the hijacker himself was not known, but thought to be dead, for several days; and the FBI quickly apprehended the defendant. Unlike other cases concerning pretrial publicity, there is actually little to say or any prejudicial articles or newscasts to discuss concerning the handling of this incident by the media. The case did receive front-page coverage from June 24th through July 5th, however the reports were objective and certainly not prejudicial.

The Government and the District Court were acutely aware of the extensive coverage and took careful precautions to assure a fair trial. An enumeration of some of these precautions demonstrates that ‘‘the District Court carefully protected the defendant’s rights. Without identifying the defendant by name, the District Court first asked all veniremen whether they knew the name of the defendant. Only one eventual juror could name the defendant and connect him with the hijacking, and she said that this would not affect her judgment of the guilt or innocence of the defendant. During voir dire, the District Court asked - numerous questions, many supplied by defendant’s counsel or defendant himself, concerning pretrial publicity generally, specific news articles, and television'broadcasts. The 150 pages of voir dire transcript reveals that the District Court meticulously determined the effect of pretrial publicity on the veniremen. In addition, the court admonished the jury on many occasions to avoid entirely any media reports during the trial. The District Court stressed that “I can’t emphasize too strongly this admonition.” During the trial, there is no evidence of any irregularities concerning the conduct of reporters or photographers at the courthouse or in the courtroom. We can only rightfully assume that the courtroom atmosphere was conducive to the quiet consideration of the testimony and evidence.

A restatement in length of the legal principles involved in pretrial publicity cases serves little purpose in this case. Eventually each such case must be decided on the facts, and ordinarily the defendant has the burden of showing any essential unfairness in the adjudicatory process unless the totality of the circumstances raises the probability of prejudice. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 542, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 87 L.Ed. 268 (1942). Clearly, the defendant has failed to sustain the burden of showing prejudice; nor does the totality of the circumstances shows a probability of prejudice.

A trial before a fair and impartial tribunal is a basic requirement of due process. In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1965). We recognize and strongly support the general principles concerning publicity and a fair trial discussed in Sheppard v, Maxwell, supra. The press and all other media have the right — and, according to their own professional responsibilities, the duty- — -to report the factual hajppenings concerning a specific case and trial. Direct limitations on the press in this regard are not consonant with the First Amendment or a democratic society, which depends on the free flow of information for public scrutiny. The courts recognize that “[w]hat transpires in the court room is public property.” Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947). However, counter-balanced against the right of the media to report and the public to know is the necessity to adjudicate civil and criminal controversies in an atmosphere of “ judicial serenity and calm.” Estes v. Texas, supra, 381 U.S. at 536, 85 S.Ct. 1628. Public passion and sensationalism through the media or otherwise is devoutly to be avoided, for as aptly phrased by Mr. Justice Holmes “[t]he theory of our system is that conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any Outside influence. . ” Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907).

Specifically, the District Court was well within its discretion in denying the motion for a change of venue. Under Fed.R.Crim.P. 21(a), the District Court, in order to grant a change of venue, must be “satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district.” First, the District Court properly conducted voir dire before denying the change of venue motion, since “ [t] he ultimate question is whether it is possible to select a fair and impartial jury. . ” Koolish v. United States, 340 F.2d 513, 526 (8th Cir.), cert. denied, 381 U.S. 951, 85 S.Ct. 1805, 14 L.Ed.2d 724 (1965), quoting Blumenfield v. United States, 284 F.2d 46, 51 (8th Cir. 1960), cert. denied, 365 U.S. 812, 81 S.Ct. 693, 5 L.Ed.2d 692 (1961).

Just because, however, there has been widespread or even adverse publicity is not in itself grounds to grant a change of venue. As stated in Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961), an important case draws public attention through “swift, widespread and diverse methods of communication” and hardly any prospective juror “will not have formed some impression or opinion as to the merits of the case.” The proper test is whether the prospective juror “can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Irvin v. Dowd, supra at 723, 81 S.Ct. at 1643 (citations omitted); Koolish v. United States, supra, 340 F.2d at 527. Skyjacking is a national crime, not just a local atrocity and can affect persons from various areas of the country. Its occurrence is national or international news, the impact of which spreads far beyond the locale where the piracy occurred. In addition the piracy itself covers vast areas of the country.

Although a district court’s findings in respect to the force of a prospective juror’s opinion should not be set aside by a reviewing court unless the error is manifest, it is our duty as an appellate court “to independently evaluate the voir dire testimony of the impaneled jury” in order to determine whether an impartial jury was selected, thus obviating the necessity for a change of venue.

In reviewing the voir dire examination independently, we find several reasons to conclude that an impartial jury was impaneled. Eight prospective jurors were dismissed by the court, since they said for various reasons that they could not set aside preconceived opinions. Only one juror could connect the name of the defendant with the hijacker as reported in the media, and this juror said that this information would not affect her impartiality. In addition, the media reporting was objective, not the sensationalistic type present in the reporting of the original Sheppard trial. No such incident, as the televised “interview” of a defendant’s confession, compels us to conclude that the jurors selected on voir dire could not lay aside any impression or opinion formed from the objective news reports and render a verdict based on the evidence presented in court. See Irvin v. Dowd, supra, 366 U.S. at 723, 81 S.Ct. 1639, 6 L.Ed.2d 751.

One incident occurred during the reporting of this case that was regrettable. On November 6, 1972, during a hearing on motions, the District Court announced in part the findings of the Springfield Medical Center staff’s report on the defendant’s mental competency at that present time and the time of the alleged offense. A St. Louis Post-Dispatch reporter, who was not present at the hearing, received a copy of that report, which was only partly admitted into evidence, from an assistant United States district attorney. An article appeared in the St. Louis Post-Dispatch on November 15, 1972, that included information not reported by the District Court in the hearing of November 6th. The publication of that part of the report not admitted at trial was an abuse of power by the press, caused in part by the dereliction of the district attorney’s office in furnishing to the press confidential medical information that had not totally or fully been admitted as evidence in this case. Still the press has a responsibility to verify the accuracy of its trial reporting. Once admitted the evidence becomes public property, but publication of inadmissible evidence complicates the administration of justice, infringes on personal and constitutional rights, and thwarts society’s interest in holding a fair and impartial trial. The possible exposure of jurors to such information that is not admitted could lead to grounds for reversal. Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959). However, the published article only slightly expanded on the District Court’s statement of the staff’s finding and cannot be seen as prejudicial. Also, the District Court in the course of general questions concerning newspaper articles during voir dire examination learned that no juror remembered reading the November 15th article, which was published on page 19E of that edition. The most regrettable conduct was that of the assistant district attorney’s, for the whole incident could have been avoided if he had not released the article in the first place. Articles of criminal proceedings should properly emanate from the record and not from putative documents leaked or proffered by the parties.

The defendant also moved for sequestration of the jury and exclusion and control of the press during the trial, but the defendant has cited to us no offensive or inflammatory publicity during trial that would require the implementation of these rare procedures. It is true that Sheppard v. Maxwell suggests the use of these courtroom procedures in certain cases; however, since we have been presented with no specific evidence concerning prejudicial publicity during trial, we can only conclude that the District Court properly denied sequestration of the jury and exclusion or control of the media. Margóles v. United States, supra at 735. As previously mentioned, the defendant has not related to us any incident concerning the misconduct of the media representatives within the courtroom, and we can only conclude that the trial was conducted in the quiet atmosphere of a deliberate tribunal.

We are convinced that an impartial jury was selected and that the District Court acted within its sound discretion in denying the motions concerning pretrial and trial publicity. We have examined the media accounts presented to us, the voir dire examination, and -the law applied to this issue and conclude that the defendant received a fair trial comporting with due process.

Second, the defendant argues that the District Court abused its discretion by refusing to appoint a psychiatric expert of the defendant’s choice and by appointing a psychiatrist of the court’s choice. The defendant submitted the names of two psychiatrists, and the District Court, without any explanation that appears on the record, appointed a psychiatrist of its choice. During the summer of 1972, the defendant was examined according to 18 U.S.C. § 4244 at the Springfield Medical Center during a ninety day period. Although the staff there found that the defendant had a severe personality disorder, passive-aggressive type, they concluded that the defendant could understand the nature of the proceedings and the charges against him and assist in his defense. They also found that the defendant was legally competent and responsible at the time of the hijacking.

Upon defendant’s motion for appointment of a psychiatrist of his choosing, the District Court appointed on November 14, 1972, a psychiatrist of the court’s choice to aid the defendant in preparing an adequate defense. The record does not disclose the report of that psychiatrist. Although the defendant’s two choices for a psychiatrist were rejected by the court, counsel for the defendant stated during oral argument on appeal that one of the psychiatrists suggested by the defendant to the District Court did examine the defendant. Although the results of that examination are not known by this court the defendant did not present a defense of mental ineompetency at the trial.

The defendant claims that United States v. Matthews, 472 F.2d 1173 (4th Cir. 1973), demands that the District Court must appoint an expert of the defendant’s choice under 18 U.S.C. § 3006A when the defendant offers a choice of at least two independent experts to the court. Matthews lays down no such absolute commandment. Although that court did say that the psychiatrist preferred by the defendant should be selected by the court unless some reason exists for making an independent choice, the court continued to say that “[w]e do not hold that the district judge must always appoint a psychiatrist chosen by the defendant, but we think he should ordinarily do so.” United States v. Matthews, supra at 1174.

This Circuit has not faced this precise question under § 3006A raised by the defendant. In United States v. Maret, 433 F.2d 1064 (8th Cir. 1970), cert. denied, 402 U.S. 989, 91 S.Ct. 1678, 29 L.Ed.2d 155 (1971), a similar case, the majority determined the issue to be whether a third psychiatric examination by an independent source and at government expense was necessitated by 18 U.S.C. § 4244. The majority answered in the negative and held that “[wjhether an additional psychiatrist should be appointed ... is within the sole discretion of the trial court.” Judge Lay dissented, holding that Maret should have had the benefit of independent psychiatrist’s services under 18 U.S.C. § 3006A, because the defendant’s mental competency at the time of the alleged offense had never been professionally evaluated and because Maret was unable to pay for those services.

In this case, the defendant’s competency at the time of the hijacking and at that present time had been evaluated by the Springfield Medical Center staff. In addition, the District Court ordered an independent psychiatrist aforementioned to evaluate the defendant’s competency at the time of the offense. The new issue here presented that was not faced in Maret is whether 18 U.S.C. § 3006A requires the appointment of a psychiatric expert of the defendant’s choice.

Another Eighth Circuit case, United States v. Schultz, 431 F.2d 907 (8th Cir. 1970), does not aid in the resolution of the present issue, since the defendant in that case was denied the benefit of any psychiatric examination under 18 U.S.C. § 3006A and of his competency at the time of the offense.

The district court should have wide discretion in appointing experts under § 3006A to aid a defendant in preparing and presenting an adequate defense. Many factors and varying circumstances enter into the selection of an expert, who might be called upon to give opinion testimony in court. Although the appointment of an expert of defendant’s choice may be appropriate in many instances, the District Court should not be restricted by defendant’s personal selection. We think the District Court operated well within its discretion in appointing a psychiatrist of its own choice to determine defendant’s mental responsibility at the time of the hijacking. No error resulted from the District Court’s refusal here to appoint a psychiatrist of defendant’s choice. In any event, the defendant had the benefit of an examination by a psychiatrist of his own choice.

Third, the defendant argues that evidence seized in the search of his home should have been suppressed, since the search in part allegedly occurred before the issuance of the search warrant at 2:45 p. m. on June 29, 1972. He posits this argument on the factual contentions that one neighbor saw lights in the house go off more than once during the night, and another neighbor saw someone in the house at about 7:00 a. m. on June 29th. From this he syllogizes that the agents, who had secured the house during the night and next day, must have entered the house before the issuance of the search warrant.

The Government admits that the lights went off once during the night, since a special agent did so observe. However, the Government contends that no agent or anyone else entered the house before the agents searched the home after the issuance of the warrant, and, in addition, points out that an automatic timing device which turns light off and on automatically, was found during the search of the defendant’s home.

In Miller v. United States, 354 F.2d 801 (8th Cir. 1966), this court faced the similar issue of whether an arrest warrant had been issued before a search. Miller held that the district court “alone is responsible for fact determinations and conclusions to be drawn therefrom,” and that the credibility of witnesses during a motion to suppress hearing is for the determination of the district court. Miller v. United States, supra at 808; accord, Gullet v. United States, 387 F.2d 307, 309 (8th Cir.), cert. denied, 390 U.S. 1044, 88 S.Ct. 1645, 20 L.Ed.2d 307 (1967). A reviewing court will not reverse such determinations by the district court so long as there is substantial evidence to support the conclusions reached and no clear error appears on the record. Gullet v. United States, supra at 309.

The District Court here chose to believe the testimony of several agents concerning the time that the agents entered the defendant’s house. We affirm that finding; since it was within the province of the District Court to determine the credibility of witnesses. Substantial evidence supports the denial of the motion to suppress and no clear error appears on the record.

Last, the defendant contends that 49 U.S.C. § 1472(i) allows the imposition of the death penalty and, therefore, he should have been allowed 20 peremptory challenges as provided by Fed.R.Crim.P. 24(b). Prior to trial, the District Court ruled that Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), made the imposition of the death sentence impossible. The Government during the trial stated that the death penalty was not applicable to this case. In reading 49 U.S.C. § 1472(i) to the jury as part of the court’s charge, the District Court omitted §§ (i)(1)(A) and (B), which mentioned the imposition of the death sentence upon recommendation of the jury. Therefore, the jury only returned a verdict of guilty on the two charged counts and did not recommend the death sentence. The Government did not contend at trial or on appeal that a death sentence was permissible under Furman in this ease, and accordingly we do not decide that issue. The plural opinions filed by the majority in Furman, constituted a sound basis for the District Court’s conclusion that the death penalty could not be sought in this case. In addition the Government acquiesced in that ruling.

It is somewhat ironic that the defendant would complain that he should have been allowed the benefits of the added peremptory challenges, since his case conceivably could have been submitted as a capital case, subject to a death penalty. In fact, he is indirectly asking us for a reversal of this case so that he may have the benefits of a capital case prosecution, with the added disadvantage of a possible death sentence if retried. Leaving well enough alone in this ease seems to be in order for such strategical appellate arguments.

Nevertheless, Loux v. United States, 389 F.2d 911 (9th Cir.), cert. denied, 393 U.S. 867, 89 S.Ct. 151, 21 L.Ed.2d 135 (1968), presents a similar issue that disposes of the defendant’s argument. Although Loux said that “the possibility of an imposition of a death penalty under the indictment . . . determines if the accused is entitled to the procedural benefits available in capital cases,” the court also held that the prosecution lost its “capital nature” when the district court held and the Government agreed that a death sentence would be inappropriate. Accord, Holt v. United States, 410 F.2d 653, 660 (4th Cir.), cert. denied, 396 U.S. 970, 90 S.Ct. 455, 24 L.Ed.2d 436 (1969).

Although the indictment did charge an offense that allowed the imposition of a death sentence, the District Court interpreted Furman to make such a sentence impossible. The Government did not contest this interpretation, and for obvious reasons at trial, the defendant did not complain. In addition, the District Court did not charge the jury that they could recommend the death sentence; nor did the Government argue for the death penalty. Under these circumstances, the case lost its capital nature as charged in the indictment, and the defendant was not improperly denied the benefits of Fed.R.Crim.P. 24(b), calling for 20, instead of 10, peremptory challenges.

Judgment of conviction affirmed.

      . 49 U.S.C. § 1472(i) reads:
      “Aircraft piracy
      “ (i) (1) Whoever commits or attempts to commit aircraft piracy, as herein defined, shall be punished — ■
      “(A) by death if the verdict of the jury shall so recommend, or, in the ease of a plea of guilty, or a plea of not guilty where the defendant has waived a trial by jury, if the court in its discretion shall so order; or
      “(B) by imprisonment for not less than twenty years, if the death penalty is not imposed.
      “(2) As used in this subsection, the term ‘aircraft piracy’ means any seizure or exercise of control, by force or violence or threat of force or violence and with wrongful intent, of an aircraft within the special aircraft jurisdiction of the United States.”

      . Margoles v. United States, 407 F.2d 727, 733 (7th Cir.), cert. denied, 396 U.S. 833, 90 S.Ct. 89, 24 L.Ed.2d 64 (1969).

      . Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Koolish v. United States, supra, 340 F.2d at 526.

      . Reynolds v. United States, 98 U.S. 145, 155, 25 L.Ed. 244 (1878), quoted with approval in Irvin v. Dowd, supra, 366 U.S. at 723, 81 S.Ct. 1639, 6 L.Ed.2d 751.

      . Irvin v. Dowd, supra, at 723, 81 S.Ct. at 1643.

      . Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963).

      . Margoles v. United States, supra, 407 F.2d at 733.

      . Im summarizing the psychiatric report from the Springfield medical staff, the news article said that McNally was of an “anti-social type.” He “suffered from a severe personality disorder” and may have had “an underlying paranoid process which is not readily apparent at this time.” McNally also told the staff that he was “a nice decent guy, easy going and easy to get along with and I consider myself a follower rather than a leader.” In conclusion, the article also stated that the Springfield staff “decided unanimously that McNally was capable of aiding in his own defense.” The article did not report the staff’s conclusion as to Mc-Nally’s mental responsibility at the time of the hijacking, which was mentioned by the District Court during the hearing on the motions. The article’s statements on the “anti-social type,” the “underlying paranoid process,” and “a nice decent guy” were not mentioned by the District Court.

      . As noted in Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1173, 3 L.Ed.2d 1250 (1959), “The trial judge has a large discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial. Holt v. United States, 218 U.S. 245, 251, 31 S.Ct. 2, 54 L.Ed. 1021.”

      . Section 3006A(a) (4) of Title 18 United States Code provides for the appointment of experts to aid an “indigent” defendant in presenting an adequate defense.

      . United States v. Maret, supra at 1067.

      . Miller v. United States, supra at 805.

      . That decision was issued on June 29, 1972, the day after the defendant was arrested and the same day that his pictures first appeared in the newspapers.

      . Loux v. United States, supra at 915, quoting Amsler v. United States, 381 F.2d 37, 45 (9th Cir. 1967).


author: ALFRED T. GOODWIN, Circuit Judge:

text:
    NATIONAL FOREST PRESERVATION GROUP, a Montana nonprofit corporation and Lester C. Baldwin, Appellants, v. Earl L. BUTZ, Individually and as Secretary of Agriculture, et al., Appellees, and Big Sky of Montana, Inc., and Burlington Northern, Inc., Intervening Defendants-Appellees.
    No. 72-1998.
    United States Court of Appeals, Ninth Circuit.
    Sept. 10, 1973.

      James H. Goetz (argued), Bozeman, Mont., for appellants.
    Eva R. Datz (argued), Kent Frizzell, Asst. Atty. Gen., Land & Natural Resources Div., Dept, of Justice, Washington, D. C., Otis Packwood, U. S. Atty., Billings, Mont., R. E. Murray, Asst. U. S. Atty., Butte, Mont., Gerald Fish, Jacques B. Gelin, Dept. of Justice, Washington, D. C., for appellees.
    Richard V. Wicka, Asst. Gen. Counsel (argued), Burlington Northern Railroad, St. Paul, Minn., Cale Crowley (argued), Crowley, Kilbourne, Haughey, Hanson & Gallagher, Billings, Mont., Kendrick Smith, Corette, Smith & Dean, Butte, Mont., for intervening defendants-appellees.
    Before DUNIWAY and GOODWIN, Circuit Judges, and WOLLENBERG, District Judge.

       The Honorable Albert O. Wollenberg, United States District) Judge for the Northern District of California, sitting by designation.

   ALFRED T. GOODWIN, Circuit Judge:

National Forest Preservation Group (NFPG) challenges on procedural and substantive grounds the decision of the .Forest Service to exchange certain government land for lands of the intervenor, Burlington Northern.

The lands are in southwest Montana. The United States agreed, in three separate transactions, to exchange lands within the Gallatin National Forest for lands within and adjacent to the Forest and within Yellowstone National Park. A part of the lands being acquired by Burlington Northern are to be used by Big Sky of Montana, Inc., in a proposed recreational development in the area. Two of the exchanges are challenged in this appeal. We will refer to them as Exchange No. 2 and Exchange No. 3.

NFPG asserts that the exchanges are void because the Forest Service did not comply with the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., and with the Wilderness Act, 16 U.S.C. §§ 38, 1131, 1132, and that the exchanges exceed the statutory authority of the Forest Service.

Three preliminary issues are raised by the intervenors and the Justice Department.

I. STANDING

Burlington Northern urges that plaintiffs have no standing to bring this action. The plaintiffs have brought themselves within Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), by alleging that they are recreational users of the lands in question. Burlington Northern attempts to distinguish Sierra, Club by arguing that there will be no net loss of forest acreage in this case and that NFPG’s “selfish interest in preference in specially selected sections of land” is insufficient to confer standing. The Supreme Court indicated in Sierra Club, however, that precisely such intangible, subjective interests are sufficient to confer standing. 405 U.S. at 734, 92 S.Ct. 1361. The plaintiffs have standing.

II. MOOTNESS

The district court, 343 F.Supp. 696, granted the defendants summary judgment on May 23, 1972, and that same day refused NFPG’s request for an injunction pending appeal. Two days later, the government issued patents to the land to Burlington Northern. Immediately upon recording the patents, Burlington Northern conveyed to Big Sky certain of the contested tracts.

Under various legal headings, Burlington Northern (but not the Justice Department) urges that the speedy patent and sale of the lands from one party to the litigation to another during the pendency of the appeal placed the legality of the transfers beyond the jurisdiction of this court. Nonsense.

“* * * [ A] fter a defendant has been notified of the pendency of a suit seeking an injunction against him, even though a temporary injunction be not granted, he acts at his peril and subject to the power of the court to restore the status, wholly irrespective of the merits as they may be ultimately decided * * Jones v. SEC, 298 U.S. 1, 17, 56 S.Ct. 654, 658, 80 L.Ed. 1015 (1936).

Porter v. Lee, 328 U.S. 246, 66 S.Ct. 1096, 90 L.Ed. 1199 (1946). See Griffin v. County School Board, 363 F.2d 206 (4th Cir.) (en banc) (school board held in civil contempt for disbursing money to private school pending appeal of judgment denying injunction against disbursement), cert. denied, 385 U.S. 960, 87 S.Ct. 395, 17 L.Ed.2d 305 (1966).

III. REVIEWABILITY — AGENCY DISCRETION

The defendants argue that the Secretary of Agriculture has broad discretion to decide whether to enter into a land exchange, and that all aspects of such exchanges are “committed to agency discretion” and therefore unreviewable under Administrative Procedure Act § 10 (a), 5 U.S.C. § 701(a). The second proposition, however, by no means follows from the first.

Although the basic decision whether or not to enter into an exchange may be nonreviewable, Lewis v. Hickel, 427 F.2d 673 (9th Cir. 1970), cert. denied, 400 U.S. 992, 91 S.Ct. 451, 27 L.Ed.2d 440 (1971), judicial review may be available on specific questions. East Oakland-Fruitvale Planning Council v. Rumsfeld, 471 F.2d 524 (9th Cir. 1972); Rockbridge v. Lincoln, 449 F.2d 567 (9th Cir. 1971). See Saferstein, Nonreviewability: A Functional Analysis of “Committed to Agency Discretion,” 82 Harv. L.Rev. 367 (1968).

In this ease NFPG contends that the agency did not comply with specific statutory limitations on its authority. There is clearly “law to apply” on the issues raised, and thus the allegations are reviewable. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

IV. THE ISSUES

Three purported issues are raised by NFPG: compliance with the Wilderness Act, 16 U.S.C. §§ 1131, 1132; compliance with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq.; compliance with the statutes and regulations authorizing the exchanges. The Wilderness Act was not raised by NFPG in its administrative appeals; hence, we decline to consider it here. United States v. Consolidated Mines & Smelting Co., 455 F.2d 432, 438-439, 453 (9th Cir. 1971).

NFPG argues both that there has been noncompliance with specific requirements of the National Environmental Policy Act of 1969 and that the environmental-impact statements prepared were generally insufficient. Defendants, on the other hand, “doubt” whether any statement was required at all, apparently on the theory that the mere shuffling of titles could have no significant impact on the environment.

V. NEPA STATEMENT

We do not “doubt” that NEPA applies to this massive land exchange. While the federal defendants are not themselves planning to take action “significantly affecting the quality of the human environment,” 42 U.S.C. § 4332 (C), the private defendants .plan such action, and the exchange is an act without which such action could not be taken. The land exchange is thus analogous to the licensing of or granting of federal funds to a nonfederal entity to enable it to act. Such federal “enablement” has consistently been held to be subject to NEPA. Brooks v. Volpe, 460 F.2d 1193 (9th Cir. 1972); Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827 (1972); Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971); Greene County Planning Board v. Federal Power Comm., 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972). Nor would compliance with NEPA be excused by the ignorance of the federal authorities prior to the exchange of the plans the private party may have for the land he will receive. The short answer is that Congress has imposed an affirmative duty on the federal party to the exchange to receive assurances of the plans of the private developer prior to the exchange. See Public Land Law Review Comm’n, One Third of the Nation’s Land 266-67 (1970).

The NEPA statement on these exchanges was not prepared until after the decision of the Regional Forester approving the exchanges. When the decision of the Regional Forester was appealed, the Chief Forester refused to review the decision until an adequate environmental statement had been prepared. A statement was prepared and thereafter accompanied the proposed exchange through all levels of administrative consideration. Normally, an impact statement must be prepared prior to the initial decision to commit resources. 42 U.S.C. § 4332(B); Calvert Cliffs Coordinating. Comm., Inc. v. Atomic Energy Comm., 146 U.S.App.D.C. 33, 449 F.2d 1109, 1128 (1971).

Although proper timing was not followed in this case, we decline to remand on this ground. While the Regional Forester did not prepare a formal enviromental-impact statement, his written explanation of his decision to those who had expressed concern about the exchange shows that he did consider environmental factors. When the lack of a NEPA statement was called to the attention of the Chief Forester, he ordered one prepared. There has been no prejudicial failure to comply with NEPA, and the sterile exercise of having the Regional Forester consider the impact statement on an exchange which has already been approved by all levels of the administrative hierarchy would serve no useful purpose. See Calvert Cliffs Coordinating Comm. Inc. v. Atomic Energy Comm., 449 F.2d 1120.

The second specific deficiency NFPG urges on us is the failure of the NEPA statement to contain written comments from the Administrator of the Environmental Protection Agency (required by § 309 of the Clean Air Act, 42 U.S.C. § 1857h—7). However, the statement was duly submitted to the E.P.A. The Forest Service should not be penalized 'because the Administrator had nothing to say.

NFPG also attacks generally the sufficiency and completeness of the statement. However, although the statement, like most of its fellows, can be improved by hindsight and sophisticated editing, we believe that the statement satisfied the intent of the statute. Environmental Defense Fund v. Corps of Engineers, 342 F.Supp. 1211 (E.D.Ark. 1972), aff’d, 470 F.2d 289 (8th Cir. 1972).

VI STATUTORY AUTHORITY

A rather complex set of exchange authorities governs land exchanges in the area in and near Yellowstone Park. For his authority in carrying out all phases of these exchanges, the Secretary relied on the General Exchange Act of 1922, 16 U.S.C. § 485. NFPG argues that the Secretary did not comply with the conditions of the General Exchange Act. NFPG also contends that, with reference to Exchange No. 2, the Secretary should have used the exchange authority made applicable by statute to the lands within the boundaries of Yellowstone Park.

The General Exchange Act permits the Secretary of the Interior to “accept * * * title to any lands within the exterior boundaries of the national forests which, in the opinion of the Secretary of Agriculture, are chiefly valuable for national-forest purposes, and in exchange therefor may patent not to exceed an equal value of such national-forest land, in the same State, surveyed and nonmineral in character * * 16 U.S.C. § 485. The Act requires notice of the exchange to be published in a newspaper of general circulation for four successive weeks before the exchange is effected. In 1925 a provision was added to the General Exchange Act permitting either party to an exchange under that Act to reserve timber, minerals, or easements. Act of February 28, 1925, Pub.L.No.513, 43 Stat. 1090, codified as 16 U.S.C. § 486.

The General Exchange Act was an innovation; prior to that Act exchanges had been authorized on an individual bassis by special bills which often contained their own restrictions on the authority of the Secretary or the private exchanger. House Public Lands Committee, H.R. Rep.No.748, 67th Cong., 2d Sess. (1922). The previous pattern was reverted to in connection with a 1926 extension of the boundaries of Yellowstone Park to provide a winter range for elk. This special exchange authority was similar to the General Exchange Act, as amended, but contained no provision permitting the reservation of mineral or timber rights by the United States. Act of May 26, 1926, Pub.L. 295, §§ 2 and 3, 44 Stat. 655, 656, codified as 16 U.S.C. §§ 38, 39.

In 1929, the boundaries of Yellowstone Park again were extended. This extension did not contain a separate exchange authority, but provided that “the provisions of the Act of March 20, 1922 [General Exchange Act], as amended shall continue to be applicable to the areas included within the Yellowstone National Park by this Act.” Act of March 1, 1929, Pub.L.No.888, § 3, 45 Stat. 1436, codified as 16 U.S.C. § 21c.

NFPG attacks the sufficiency of compliance with these statutes in a number of particulars. First, it asserts that the “equal value” limitation was not complied with in either of the challenged exchanges because the agency’s appraisers improperly valued the land involved. However, the Secretary’s decision to accept those values is supported by substantial evidence. Accordingly, it is final.

Next, NFPG urges that because the General Exchange Act prevents the United States from conveying mineral land the Secretary had no authority to exchange lands under a reservation of mineral rights. However, one of the principal purposes of the 1925 addition to the Act was to legalize the administrative practice of conveying lands believed to contain minerals but reserving the rights thereto to the United States. H.R.Rep. 1176, 68th Cong., 2d Sess. (1925). A reservation is not a conveyance. The exchanges cannot be challenged on this score.

Finally, NFPG urges that the Forest Service violated the authorizing statutes and its own regulations by failing to itemize the lands in Exchange No. 2 according to the statutory authorities for that exchange.

The Forest Service Manual requires itemization, Forest Service Manual § 5431.4, but we need not decide whether a violation of the manual alone would invalidate an authorized exchange. The manual merely expresses the intent of the relevant statutes. Congressional intent was not satisfied here. It was therefore error to grant summary judgment with reference to Exchange No. 2 (the Yellowstone Park exchange).

The purpose of the General Exchange Act was to relieve Congress of the burden of considering new legislation every time an exchange authority was proposed for a federal tract. Against this burden was balanced the difficulty of making certain, without Congressional consideration of each exchange, that the terms of the exchange were responsive to local needs. To allay these fears, western Congressmen were careful to insert into the legislative history of the General Exchange Act the statement that “special provisions will not be changed by the passing of this * * * [Act].” 64 Cong.Rec. 3451 (remarks of Representative Raker of California), and the General Exchange Act itself provided the means for local interests to be notified of each exchange by newspaper notices “reciting the lands involved.” The obvious purpose of the notification procedure was to enable local persons opposed to an exchange to protest to the Secretary of the Interior and to their representatives in Washington.

The Act of May 26, 1926, extending the boundaries of Yellowstone Park, included its own exchange authority with its own equal-value limitation and with conditions more restrictive than those in the General Exchange Act as amended. We cannot assume that Congress acted inadvertently in providing this separate exchange authority for lands within Yellowstone National Park. We are therefore bound to give effect to specific Congressional restrictions.

The government in its brief on appeal urges that the “nonmineral” and “equal-value” limitations of the 1926 Act were in fact satisfied with respect to those portions of Exchange No. 2 involving lands within Yellowstone Park, and that the separate “equal-value” requirement of the General Exchange Act was satisfied with respect to the remaining portions of Exchange No. 2. They may have been, but the record does not show that they were. This question is one to be resolved by an evidentiary hearing in the district court. It cannot be resolved by summary judgment. Congress was careful to ensure, in both the 1926 and General Exchange Acts, that local objections, if any, were to be heard. In the proceedings below, the right to object was rendered meaningless by the failure of the Forest Service to indicate in its notices that part of the proposed exchange was to be carried out under the authority of the 1926 Act and part under the General Exchange Act.

We must, therefore, remand for further proceedings. NFPG has urged only that it be given an opportunity to present evidence of noncompliance with limitations in the exchange authorities either before the administrator or before the district court. Therefore, if the Secretary wishes, he may defend against NFPG’s charges in district court rather than repeat the entire administrative process as to Exchange No. 2. Upon remand, the court will first have to itemize the various tracts involved in Exchange No. 2 according to the various exchange statutes. It will then have to decide whether the “nonmineral”* and “equal-value” limitations of the 1926 Act have been complied with with respect to the lands exchanged pursuant to its authority, and whether the “equal-value” requirement of the General Exchange Act was satisfied with respect to the remaining lands.

After the cause had been argued and submitted, counsel for the appellants represented to this court that he had newly discovered evidence which might, in the interests of justice, require reopening the case in the district court with respect to both Exchange No. 2 and Exchange No. 3. In view of the necessity for a remand of this case, that matter can now be addressed to the district court.

Reversed and remanded for further proceedings.