author: McWilliams, circuit judge.

text:
    The UTAH AGENCIES, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, and Hughes Airwest, Intervenor.
    Nos. 73-1548, 74-1216.
    United States Court of Appeals, Tenth Circuit.
    Oct. 21, 1974.

      Robert S. Campbell, Jr., Sp. Asst. Atty. Gen. (Vernon B. Romney, Atty. Gen. of Utah, Jack L. Crellin and Roger F. Cutler, Attys., Salt Lake City, Utah, on the briefs), for petitioner.
    Peter R. Steenland (Thomas J. Heye, Gen. Counsel, Civil Aeronautics Board; O. D. Ozment, Deputy Gen. Counsel, Civil Aeronautics Board, Glen M. Bendix-sen, Associate Gen. Counsel, Civil Aeronautics Board, Joan Marie Frankel, Atty., Civil Aeronautics Board, Thomas E. Kauper, Asst. Atty. Gen., Carl C. Lawson and Arnold P. Lav, Attys., Dept, of Justice, on the brief), for respondent.
    Richard A. Fitzgerald, Denver, Colo., for intervenor.
    Before HILL, SETH and MC-WILLIAMS, Circuit Judges.
   McWilliams, circuit judge.

Pursuant to 49 U.S.C. § 1486 and Rule 15 of the Federal Rules of Appellate Procedure, the Utah Agencies has filed in this court two separate, though related, petitions for review of orders of the Civil Aeronautics Board. The Utah Agencies is an association comprised of the public and private sectors of the State of Utah, acting under formal articles of incorporation, and is specifically comprised of the following; The State of Utah, the Salt Lake City Corporation, the Greater Area Salt Lake Chamber of Commerce, and the Pro-Utah, Inc. The two petitions for review were consolidated for hearing in this court, as both relate to the same general subject matter, namely, nonstop air service between Salt Lake City and Los Angeles. The background facts relating to the two petitions for review will be developed separately.

First Petition for Review (Our No. 73-1548)

Prior to 1968, Western Air Lines, Inc. was the only carrier authorized by the Board to provide air service between Salt Lake City and Los Angeles. In that year the Board awarded additional authority to Bonanza Air Lines, Inc., now Hughes Airwest, to provide competitive nonstop service between Salt Lake City and Los Angeles, and service between those points with an intermediate stop at Las Vegas.

In September of 1968, Airwest instituted service which included three daily nonstop round-trip flights between Salt Lake City and Los Angeles. In April of 1969, the level of Airwest’s nonstop service was reduced to two daily nonstop round trips. In September of 1970, Air-west’s level of service was further reduced to one daily nonstop round trip. Still later, Airwest reduced its nonstop service to one round trip per week and otherwise attempted to serve the market through two daily one-stop round trips via Las Vegas. On the other hand, Western was providing the Salt Lake City-Los Angeles market with eight nonstop flights and three one-stop flights southbound, and six nonstops and four one-stops northbound, all on a daily basis.

It was in this general setting that on October 2, 1972, the Agencies, pursuant to the provisions of 49 U.S.C. § 1371, filed a petition with the Board, requesting an investigation to determine whether new competitive nonstop service should be authorized between Salt Lake City and Los Angeles, either by revoking Airwest’s authority and certificating a replacement carrier, or by certificating a third carrier to provide nonstop service between Salt Lake City and Los Angeles.

At the same time as the Agencies filed the aforesaid petition, the Agencies also filed that which was denominated as a Motion for Expedited Relief and for Exemption Authority, Pendente Lite. In this motion, the Agencies sought an expedited hearing on its petition, and the immediate grant to some other carrier of temporary exemption authority so as to provide nonstop service between Salt Lake City and Los Angeles pending a decision in the certification proceeding. For reasons that will become apparent in a moment, we would emphasize here that the Agencies filed two documents with the Board, (1) a petition for an investigation, and (2) a motion for expedited hearing and interim relief.

Answers to the petition and the motion were filed by a number of carriers. Airwest opposed the Agencies’ petition and motion. Western, in its answer, addressed itself primarily to the Agencies’ criticism of Western’s service. American Airlines, Inc. and United Air Lines, Inc., by separate answers, generally supported the Agencies’ petition and motion, and each by separate application sought an award of certificate authority in the Salt Lake City-Los Angeles market and temporary exemption authority to serve that market pending final decision on the certification proceedings.

Based on the various pleadings then before it, the Board denied the Agencies’ motion for an expedited hearing and interim relief, but left open, as we see it, for subsequent consideration the Agencies’ petition for an investigation, such consideration to be taken up in the normal course of the Board’s business, and not on an expedited basis. A copy of the Board’s order denying an expedited hearing and interim relief is attached hereto as Appendix No. I. We commend a reading of the Board’s order, as we do not propose to reiterate the same in this opinion.

The Agencies later filed a motion for reconsideration of this order, which motion the Board denied. In the first petition for review filed by the Agencies in this court, the Agencies seeks review of the Board’s order denying an expedited hearing and interim relief.

Second Petition for Review (Our No. 74-1216)

Shortly after the Board denied the Agencies’ motion for reconsideration, as above referred to, American Airlines, Inc. and Airwest filed with the Board on September 12, 1973, an application seeking approval under 49 U.S.C. § 1371(h) of a route exchange agreement between American and Airwest, pursuant to which, inter alia, Airwest’s nonstop authority between Salt Lake City and Los Angeles would be transferred to American. Together with that application, American filed a new request under 49 U.S.C. § 1386(b) for temporary exemption authority to serve the market pending final decision on the route exchange agreement.

Answers to American’s application for exemption pendente lite were filed by Airwest, the Agencies, Western and Trans World Airlines, Inc.. In its answer Airwest supported American’s request for temporary exemption authority. Airwest also indicated in its answer that it had previously planned to institute two daily nonstop flights between Salt Lake City and Los Angeles as of October 28, 1973, but that with the successful conclusion of the route exchange agreement with American, it had determined to forego such scheduling.

Western’s answer opposed American’s request for emergency authority, and asserted that American had failed to demonstrate any need for additional capacity on an interim basis; that the application failed to meet the criteria of 49 U. S.C. § 1386(b), particularly in the light of Kodiak Airways, Inc. v. C. A. B., 144 U.S.App.D.C. 371, 447 F.2d 341 (1971); and that the application raised controversial issues' that could not be resolved without a hearing.

Trans World by its answer also opposed the grant of an emergency exemption on the grounds that it would have a pronounced impact on the overall route exchange agreement between American and Airwest.

On November 21, 1973, the Board denied American’s application for exemption authority and the Board’s order on this matter is attached hereto as Appendix No. II. Again we commend a reading of that order, as we do not propose to repeat it in this opinion.

On December 26, 1973, the Agencies, but not American, petitioned the Board to reconsider its decision denying American’s application for exemption authority. The motion for reconsideration was later denied; whereupon, the Agencies filed a second petition in this court for review of that, particular order of the Board. So much for a general background statement of these two consolidated petitions for review.

We deem the scope of our review as concerns each of the petitions for review to be a narrow one. In No. 73-1548, we are only called upon to determine the propriety of the Board’s order denying the Agencies’ motion for an expedited hearing of its petition for an investigation looking towards the cancellation of Airwest’s authority and the awarding of certificated authority to a substitute or new carrier, and its further order denying exemption authority on an interim basis. In No. 74-1216, we are called upon to review the propriety of the Board’s order denying American’s request that it be granted emergency authority on an interim basis because of American’s route exchange agreement with Airwest. Our study of the matter leads us to conclude that based on the showing made by the Agencies and American, the Board did not abuse its discretion in denying the requests for an expedited hearing and interim relief.

We shall first consider the Board’s refusal to give the Agencies an expedited and immediate hearing on its petition for institution of an investigation concerning Airwest’s alleged abandonment of its authority and for the award of new or substituted authority. The Board is by statute vested with rather broad power to “conduct their proceedings in such manner as will be conducive to the proper dispatch of business and to the ends of justice.” 49 U.S.C. § 1481. As the Board noted in its order, “far more applications and other requests for relief are filed than can be processed at any given point in time.” In setting its calendar and determining the priority in which its cases will be heard, the Board is guided by the policy statements and standards set forth in 14 C.F.R. 399.-60(a) and (b).

Certainly the general rule is that the Board has a rather wide discretion in setting its calendar and in determining the relative priority in which its cases will be heard. In line therewith we noted in Frontier Airlines, Inc. v. Civil Aeronautics Board, 349 F.2d 587 (10th Cir., 1965), that “it is for Board decision to determine the order of its docket in view of public need” and that “it is seldom indeed that a court should interfere with a matter of discretion so peculiarly with the expertise of a specialized administrative body.” See also, City of San Antonio v. Civil Aeronautics Board, 126 U.S.App.D.C. 112, 374 F.2d 326 (1967), and Western Air Lines v. Civil Aeronautics Board, 184 F.2d 545 (9th Cir., 1950).

The Agencies’ argument as to why its petition for an investigation should be afforded priority runs somewhat as follows: by the 1968 award of authority to Airwest it has become the “law of the case” that there should be competitive nonstop air service between Salt Lake City and Los Angeles; that Airwest has abandoned its certificated authority for air service between Salt Lake City and Los Angeles; that accordingly, regardless of whether Western can itself satisfy the demand for nonstop air travel between Salt Lake City and Los Angeles, there is no longer competitive nonstop air service between these two points, and Western now has a de facto monopoly of the market; and that this lack of competitive nonstop air service has operated to the economic detriment of the Salt Lake City area. Assuming for the sake of argument the validity of this line of reasoning, such would not in our view require the Board to give the Agencies’ petition preferential treatment by pushing it to the top of the Board’s docket of cases. As we said in Frontier Airlines, Inc. v. Civil Aeronautics Board, supra, the Board's decision as to the order in which its cases will be heard is a matter which is peculiarly within the discretion of the Board, and it is seldom, indeed, that a court should direct the Board to afford a given case priority over other pending matters. We find no abuse of discretion in the refusal of the Board to grant the Agencies an immediate or expedited hearing on its petition. A reading of the Board’s order indicates that the Board’s action was not arbitrary.

Similarly, we find no abuse of discretion on the part of the Board in denying the requests for emergency exemption under the provisions of 49 U.S. C. § 1386(b). The Board denied the requests for emergency exemption on the grounds that the statutory criteria contained therein had not been met. We agree.

The basic policy of the Federal Aviation Act is a certification system, “with exemption to be used sparingly,” and the Congressional intent is that the “exemption power should be construed narrowly, and employed in only very limited and unusual circumstances.” Island Airlines, Incorporated v. C. A. B., 363 F.2d 120 (9th Cir., 1966). Similarly, in Pan American World Airways v. Civil Aeronautics Board, 104 U.S.App.D.C. 288, 261 F.2d 754 (1958), cert. den. 359 U.S. 912, 79 S.Ct. 589, 3 L.Ed.2d 575 (1959), it was held that before an exemption could be granted under 49 U.S. C. § 1386(b) from the certificate requirements of 49 U.S.C. § 1371, the Board must “find what the statute requires it to find,” and absent such specific findings as fully comport with the statute, an exemption may not be granted. See also, in this regard, Kodiak Airways, Inc. v. C. A. B., supra, where in a factual situation bearing resemblance to the instant one, the Board was criticized for granting temporary exemption authority during the pendency of certification proceedings.

The Board’s order in our view speaks for itself, and we find no error in the Board’s refusal to grant American exemption authority pending a final decision as to whether the route exchange agreement between American and Airwest should get Board approval. In this connection we were informed at oral argument that hearings on this proposed route exchange have been completed and that a decision is expected in the near future. Such may possibly resolve the entire controversy.

In this court the Agencies makes repeated reference to the fact that Air-west initially indicated that it would in the near future resume daily nonstop flights between Salt Lake City and Los Angeles and that it later reneged on that promise. Airwest explained its failure on the ground that the route exchange agreement which it subsequently entered into with American had materially changed the picture. Be that as it may, we do not believe that this factor dictates the granting of temporary exemption authority. It is but one factor, out of many, to be considered by the Board.

We believe that the Agencies may be laboring under some degree of misapprehension in its pursuit of these petitions for review. It would appear that the Agencies is of the view that the Board in its first order not only denied the Agencies’ request for an expedited hearing and interim relief, but also dismissed its petition for the institution of proceedings looking towards the cancellation of Airwest’s authority and the awarding of new or substituted certificates of authority. That is not our view of the matter. As we read the Board’s order, it was only denying the Agencies’ request for an expedited hearing and interim relief, and the Agencies’ petition for institution of an investigation is accordingly still pending. And the Board itself is of the same view. So, the Agencies’ petition should now be set for hearing. Such need not, as we have above indicated, be expedited, but should be heard in the normal course of Board business. In setting the matter, any delay occasioned by the present review proceedings should not further delay Board consideration of the Agencies’ petition.

Orders affirmed.

APPENDIX NO. I

Order 73-3-28

UNITED STATES OF AMERICA CIVIL AERONAUTICS BOARD WASHINGTON, D. C.

Adopted by the Civil Aeronautics Board at its office in Washington, D. C., on the 9th day of March, 1973

Petition of

THE UTAH AGENCIES

seeking the provision of new, substituted or additional certificated nonstop air transportation between Salt Lake City, Utah, and Los Angeles, California.

Docket 24795

Applications of

AMERICAN AIRLINES, INC.

for a certificate of public convenience and necessity, and for an exemption.

Docket 24866 Docket 24867

Applications of

UNITED AIR LINES, INC.

for amendment of its certificate of public convenience and necessity, and for an exemption.

Docket 24868 Docket 24913

ORDER

On October 2, 1972, the Utah Agencies (Agencies) filed a petition requesting new, substituted, or additional certificated nonstop authority between Salt Lake City and Los Angeles. Concurrently, the Agencies filed a motion for expedited relief through the issuance of a show cause order, an exemption and/or an expedited hearing.

In support of its petition the Agencies alleges, inter alia,, that Hughes Airwest (Airwest), one of two carriers certificated to serve the Salt Lake City-Los Angeles market (Western Air Lines is the other), has reduced its service to one nonstop round trip per week thereby creating a de facto monopoly for Western; that the market is Salt Lake City’s largest origin-destination market; that the Board found a need for competitive service in the Salt Lake City-Las Vegas-Southern California Service Case; that Airwest is in violation of its certificate by failing to provide adequate nonstop service in the market; that Western’s service is neither adequate nor convenient; that there is an urgent public need for additional service; and that a trunk carrier should be authorized to provide competitive service in the market.

A number of answers have been filed. Airwest opposes the Agencies’ petition and motion; American Airlines and United Air Lines support the petition and motion; Frontier Airlines takes no position regarding the need for additional service in the market but asserts that an evidentiary hearing rather than a show cause or an exemption procedure is necessary in these circumstances; and Western takes no position with respect to the merits of the Agencies’ petition and motion but takes exception to some of the contentions made concerning Western’s present service.

The Agencies filed a consolidated reply to the answers of Airwest, Western, American and United, together with a motion for leave to file the otherwise unauthorized document.

In addition to the foregoing pleadings, American and United have filed applications for certificates of public convenience and necessity and for exemption authority to provide nonstop Salt Lake City-Los Angeles service. Answers in opposition to the exemption applications were filed by Frontier, Western and Airwest, and American and United each answered in opposition to the other. Answers in support of each application were filed in the respective dockets by the Utah Agencies though no preference as between the two carriers was expressed. Finally, American and United each filed a reply to those carriers which had answered in opposition to their respective applications.

Upon consideration of the pleadings and all the relevant facts, we have decided to deny the motion of the Utah Agencies for expedited relief in Docket 24795 and the applications of American in Docket 24867 and United in Docket 24913 for exemption authority.

The fact that far more applications and other requests for relief are filed than can be processed at any given point in time requires the Board to develop standards for determining which applications will be afforded a priority hearing. General standards for this purpose are set forth in section 399.60(b) of the Board’s Policy Statements. In view of the facts discussed below, we have concluded that a new route proceeding to consider the need for additional unrestricted service in the Salt Lake City-Los Angeles market should not be instituted at this time.

Despite Airwest’s virtual suspension of nonstop services, the market has continued to receive a relatively frequent and well-timed pattern of nonstop services operated by Western. There is no evidence of existing deficiencies in service sufficiently severe to require an immediate hearing to consider the need for additional nonstop authorization. Moreover, in its answer to the petition and motion of the Utah Agencies, Air-west asserted that it will be in a position to provide daily nonstop service on April 29, 1973, and that it will certainly provide two or three daily nonstops by the fall of 1973. In the Salt Lake City-Las Vegas-Southern California Service Case we determined that competitive nonstop service in the Salt Lake City-Los Angeles market was desirable and that Bonanza Airlines — now Airwest— should provide it. We continue to hold the view that such service should be provided and that both Airwest and Western can achieve profitable results therefrom. We, therefore, expect Air-west to honor its commitment at the earliest possible date. In the interim Airwest’s presence on the sidelines coupled with its promise to resume competitive nonstop service will provide a meaningful guarantee that Western will continue to offer a high level of service.

In view of the levels of service, schedules and load factors, and in reliance upon Airwest’s promise to resume service, we conclude that there is an insufficient basis for according this application a priority hearing under the standards of section 399.60(b) of the Board’s Policy Statements.

ACCORDINGLY, IT IS ORDERED THAT:

1. The motion of the Utah Agencies for expedited relief through the issuance of a show cause order, an exemption and/or expedited hearing in Docket 24795 be and it hereby is denied;

2. The application for exemption of American Airlines, Inc., in Docket 24867 be and it hereby is denied;

3. The application for exemption of United Air Lines, Inc. in Docket 24913 be and it hereby is denied;

4. The motions of the Utah Agencies for leave to file otherwise unauthorized documents in Dockets 24795 and 24867 be and they hereby are granted;

5. This order shall be served on the Utah Agencies; Hughes Airwest; Western Air Lines, Inc.; American Airlines, Inc.; United Air Lines, Inc.; and Frontier Airlines, Inc.

By the Civil Aeronautics Board:

EDWIN Z. HOLLAND Secretary

(SEAL)

APPENDIX NO. II

Order 73-11-103

UNITED STATES OF AMERICA CIVIL AERONAUTICS BOARD WASHINGTON, D. C.

Adopted by the Civil Aeronautics Board at its Office in Washington, D. C. on the 21st day of November, 1973

Application of

AMERICAN AIRLINES, INC.

for exemption under section 416(b) of the Federal Aviation Act of 1958, as amended, to provide nonstop air transportation service between Salt Lake City, Utah, and Los Angeles, California.

Docket 25882

ORDER

On September 12, 1973, American Airlines and Hughes Air Corp. d/b/a Hughes Airwest (Airwest) filed an application seeking the Board’s approval of a route exchange agreement which, among other provisions, contemplates the transfer to American of Airwest’s Salt Lake City-Los Angeles nonstop authority. On the same date American filed an application requesting the Board to issue an exemption that would permit American to provide nonstop service in the Salt Lake City-Los Ange-les market pending final decision on the American-Airwest route exchange agreement.

In support of its exemption application, American states, inter alia, that the Board found a need for competitive nonstop service in the Salt Lake City-Los Angeles market in the Salt Lake City-Las Vegas-Southern California Service Case, Order E-26871, June 4, 1968; that Airwest, the carrier certificated to provide that competition, does not now provide (and has not for a substantial period of time provided) that competition; that, despite the lack of competitive service by Airwest, the Board has repeatedly denied requests by United and American for exemption authority in the market, citing Order 73-3-28, dated March 9, 1973 and 73-7-49, dated July 12, 1973; that the most recent denial (in Order 73-7-49) was based solely upon reliance by the Board on the representation of Airwest that it intended to resume competitive nonstop service between Salt Lake City and Los Angeles in the autumn of 1973; that Airwest has not resumed such service and that it is now clear that Airwest will not do so; that, as a result, and despite the desire of the Utah Agencies and the conclusions of the Board, the instant market will continue to be without competitive nonstop service for an extended period; that American proposes to provide two nonstop round trips in the market beginning November 1, 1973; that American recognizes that issuance of the requested exemption can in no way be taken as an indication of Board approval of the American-Airwest exchange agreement; and that no other carrier will be adversely affected by the issuance of the requested exemption authority.

Answers in support of American’s application have been filed by Airwest and the Utah Agencies. Airwest states that it has decided not to reenter the Salt Lake City-Los Angeles market with nonstop service because, due to the existence of its route exchange agreement with American, Airwest’s management has determined that it would be wasteful to embark upon a program of development for the market.

Western Air Lines filed an answer in opposition to American’s request for exemption authority, in which it states, inter alia, that there is no need for additional capacity in the market on an interim basis;' that American’s application has met neither the statutory requirements of section 416(b) of the Act nor the requirements of Kodiak Airways, Inc. v. C.A.B., 144 U.S.App.D.C. 371, 447 F.2d 341 (1971); and that American’s application raises controversial issues which are too complex for resolution without a hearing. American filed a reply to Western’s answer.

Upon consideration of the pleadings and all the relevant facts, we have decided to deny American’s application for an exemption and to grant no alternative form of relief at this time.

American has failed to establish that its application meets the statutory criteria for the exercise of the Board’s exemption powers — in particular, the carrier has failed to show that the enforcement of the Act would be an undue burden upon it by reason of the limited extent of or unusual circumstances affecting, its operations. Moreover, assuming Airwest’s abandonment of its competi-five role in the Salt Lake City-Los An-geles market, the question of what carrier if any should henceforth compete with Western in that market is too complex and controversial to be dealt with by non-hearing procedures. Nor is there any overriding urgency to support use of the Board’s exemption powers to put another carrier in the market immediately. As noted in Order 73-3-28, the market up to that time had “continued to receive a relatively frequent and well-timed pattern of nonstop services operated by Western,” and this service has subsequently been improved by the addition of a further nonstop flight in each direction six days a week, bringing the total of nonstop flights to eight daily southbound and six daily northbound. These flights remain well-timed throughout the day and load factors have not been excessive. Accordingly, a case for an immediate exemption has not been made out.

In denying the Utah Agencies’ motion for an expedited hearing in Order 73-3-28, we expressly relied on Airwest’s representation that it intended to resume Salt Lake City-Los Angeles nonstop service either in April of this year, or at the latest in the autumn. In denying the Agencies’ petition for reconsideration in Order 73-7-49, we again expressly relied on Airwest’s promise to resume nonstop in the autumn, and said that if this promise was not fulfilled we would consider what remedial action might be appropriate in the public interest.

It now appears that Airwest has not fulfilled its earlier promise to resume nonstop service, and has no present intention of doing so. This circumstance does not, in itself, satisfy the statutory prerequisites for granting American’s request for exemption authority in the market, particularly in view of the Kodiak Airways decision, supra. But it does raise the issue of what other remedial action might be appropriate. Under normal circumstances, we might well be inclined to take such action, since we would not ordinarily consider Airwest’s explanation- — that it does not wish to resume service pending Board action on its route exchange agreement with American — to be adequate justification in view of its previous representations.

Circumstances, however, are far from normal. In view of the current national fuel allocation program, which has already impelled the Board to take a number of extraordinary actions looking to the reduction of excess airline schedules, we cannot contemplate taking any action which might require or encourage Air-west to provide additional schedules in a market which is already as well served, certainly, as a great many markets will in all likelihood be when the carriers have completed curtailment of their schedules to conform to their fuel allocations. Thus it is not Airwest’s contentions but the supravening fuel emergency which convinces us that we should take no present action to require Air-west to resume nonstop service in this market or to consider substituting another carrier for Airwest at this time (except insofar as the latter question is at issue in the route exchange case).

ACCORDINGLY, IT IS ORDERED THAT:

The application of American Airlines, Inc., for an exemption be and it hereby is denied.

By the Civil Aeronautics Board:

EDWIN Z. HOLLAND Secretary

(SEAL)

      . The Utah Agencies is comprised of various members of the private and public sectors of the State of Utah acting under formal Articles of Association.

      . The nonstop round trip is operated on Saturday. Airwest also serves the market with two daily one-stop round trips (except Saturday) via Las Vegas. (OAG, February 1, 1973).

      . Western provides nineteen daily one-way frequencies in the market. (OAG, February 1, 1973).

      . Docket 17876, Order E-26871, June 4, 1968.

      . We will grant the motion.

      . American filed on October 26, 1972, in Docket 24866; United filed on October 27, 1972, in Docket 24868.

      . American filed on October 26, 1972, in Docket 24867; United filed on November 10, 1972, in Docket 24913.

      . The answer of the Utah Agencies to American’s application in Docket 24867 was accompanied by a motion for leave to file the otherwise unauthorized document. We will grant the motion.

      . Western provides seven daily nonstop flights southbound and five daily nonstop flights northbound. (OAG, February 1, 1973.)

      . Western’s load factors averaged 60.5 percent in fiscal 1972. However, it must be emphasized that the average load factor was maintained at this level despite seasonal peaking at 68.5 percent and a strike which curtailed Airwest’s service between December 14, 1971, and March 13, 1972, during which time Western’s load factor averaged nearly 64 percent.
      The load-factor data stated herein were compiled from service-segment data submitted by the carrier. Pursuant to Part 241, section 19-6, of the Economic Regulations, we find that release of the aforementioned data is consistent with the public interest.

      . We take no position at this time regarding the issue of whether Airwest in the past has been in violation of its certificate insofar as it provided only one weekly nonstop round trip in the market. It is clear, liow-ever, that Airwest could not be in violation of its new one-segment certificate (awarded in Order 72-9-58, September 14, 1972) in which Salt Lake City-Los Angeles nonstop authority is entirely permissive.

      . We are aware of the financial, managerial and labor problems which Airwest suffered in the years following its certification in the market in issue. We note, however, that this trend has been reversed in that Airwest experienced its first profitable quarter since early 1968 in the third quarter of 1972 (Source: CAB Form 41 Reports, Q/E September 30, 1972) and that it is in the process of taking delivery of twelve recently purchased DC-9 aircraft.

      . For reasons similar to those set forth above, we shall deny both the request of the Agencies for an order to show cause and the requests of the Agencies, American and United for exemption authority pending the outcome of certification proceedings.

      . OAG, October 1, 1973. In addition, Western offers three daily one-stop southbound flights and four daily one-stop northbound flights.

      . Load factors averaged 60.5 percent in fiscal year 1972 and 62.3 percent in fiscal year 1973. These load-factor data were compiled from service-segment data submitted by the carrier. Pursuant to Part 241, Section 19-6, of the Economic Regulations, we find that release of the aforementioned data is consistent with the jniblic interest.

      . Our preceding conclusions as to the present adequacy of Western’s service relate solely to American’s application for pendente lite exemption authority, and in no manner deal with the broader question of the desirability of competitive nonstop service in the Salt Lake Gity-Los Angeles market.


source: Caselaw Access Project

author: WISDOM, Circuit Judge:

license: Public Domain

text:
    Gene CASTILLO, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
    No. 74-1972
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 9, 1974.

      Joseph S. Horrigan, Houston, Tex. (Court-appointed), for petitioner-appellant.
    John L. Hill, Atty. Gen., Ben M. Harrison, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

       Rule 18, 5th Cir.; Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5th Cir., 1970, 431 F.2d 409, Part I.

   WISDOM, Circuit Judge:

The question this habeas case presents is whether an attorney can adequately represent a defendant in a criminal case while representing, in unrelated litigation, a principal witness for the prosecution, who was the victim of the offense for which the defendant was charged. We hold as a matter of law that this conflict of interest deprived the defendant of effective representation by counsel essential to a fair trial.

Gene Castillo, petitioner in this case, was tried before a jury in the District Court of Reeves County, Texas, and convicted for the felony theft of four brass bowls worth about $600. On May 15, 1970, he was given an enhanced sentence of life imprisonment, under the Vernon’s Ann.Texas Penal Code, Art. 63, because of two earlier convictions for burglary. The Texas Court of Criminal Appeals affirmed the conviction on direct appeal. Castillo v. State, Tex.Cr.App.1971, 469 S.W.2d 572. Castillo applied for a writ of habeas corpus in the state district court. After an evidentiary hearing, the court denied the writ. The Texas Court of Criminal Appeals affirmed denial of the application, without written order, on the findings of fact and conclusions of law of the trial court. Castillo then sought a writ of habeas corpus in the federal district court. Without an evidentiary hearing, but on the basis of the trial record and the record of the hearing in the state habeas proceeding, the district court denied the writ. We reverse and remand.

At trial, two principal witnesses testified for the prosecution, linking the defendant with the theft. One was Raymond Cowan, a junk dealer. He identified Castillo as the man from whom he had purchased the bowls in question. The other principal witness was John Bardin, the president and owner of the Baker Pump Corporation. He testified that the bowls had belonged to his company and had been taken from the company premises a day or two before they were first missed. He further testified that the defendant was a former employee and that a day or two before the bowls were first missed, the defendant had been on the company premises seeking temporary employment to earn funds for a trip to California. In short, Bar-din’s testimony indicated the time of the theft, tended to place Castillo on the premises at about the time of the theft, and suggested a possible motive for the theft.

Some two months before the trial, the trial judge appointed an attorney to represent Castillo. The attorney represented the defendant during all trial and court proceedings through the time of the defendant’s conviction. During his representation of Castillo, this same attorney was also representing John Bar-din in unrelated civil litigation. Because the trial judge was also presiding over that civil proceeding, he was “thoroughly familiar” with the appointed attorney’s contemporaneous representation of Bardin, according to that attorney’s testimony in the state habeas hearing. This undisputed fact suggests that the trial judge should have been more sensitive to the proprieties of legal representation ; it does not, however, relieve counsel of his obligation to observe those proprieties. Certainly it does not cleanse the appointment of its inherent impropriety. Moreover, incredibly, neither the trial judge nor appointed counsel ever informed Castillo of the conflict of interest. There is no evidence that he was aware of the fact until the prosecutor brought it out in the course of examining Bardin at trial.

The right to counsel guaranteed by the Sixth and Fourteenth Amendments is a right to effective counsel. Herring v. Estelle, 5 Cir. 1974, 491 F.2d 125; McKenna v. Ellis, 5 Cir. 1960, 280 F.2d 592. Effectiveness, however, is not a matter of professional competence alone. As this Court said in Porter v. United States, 5 Cir. 1962, 298 F.2d 461, 463:

“The Constitution assures a defendant effective representation by counsel * * * Such representation is lacking, however, if counsel, unknown to the accused and without his knowledgeable assent, is in a duplicitous position where his full talents — as a vigorous advocate having the single aim of acquittal by all means fair and honorable — are hobbled or fettered or restrained by commitments to others.”

In short, “ [w] e consider undivided loyalty of appointed counsel to client as essential to due process”. McKenna v. Ellis, 5 Cir. 1960, 280 F.2d 592, 599.

Here the defense attorney, without the knowledge or assent of the defendant was actively representing the defendant’s alleged victim in civil litigation. The victim of a crime is not a detached observer of the trial of the accused, and his “private attorney” is likely to be restrained in the handling of that client/witness. In a similar case, the court observed: “It takes no great understanding of human nature to realize that the individuals who have been burglarized might be less than happy and might go so far as to remove the attorney from their good graces if this defendant were acquitted or received a light sentence or were placed on probation.” United States v. Myers, E.D.Pa. 1966, 253 F.Supp. 55, 57. Here Bardin was not only the victim but also a principal witness for the prosecution. In these circumstances, counsel is placed in the equivocal position of having to cross-examine his own client as an adverse witness. His zeal in defense of his client the accused is thus counterpoised against solicitude for his client the witness. The risk of such ambivalence is something that no attorney should accept and that no court should countenance, much less create. We hold that the situation presented by the facts of this case is so inherently conducive to divided loyalties as to amount to a denial of the right to effective representation essential to a fair trial.

We do not ascribe to Castillo’s appointed attorney nor to the appointing judge improper motives, but they are chargeable with an error of judgment fatal to a fair trial.

The appellant has alleged specific instances of prejudice resulting from the conflicting loyalties of his counsel. We need not inquire into those allegations. When there is a conflict of interest such as exists in this case, the prejudice may be subtle, even unconscious. It may elude detection on review. A reviewing court deals with a cold record, capable, perhaps, of exposing gross instances of incompetence but often giving no clue to the erosion of zeal which may ensue from divided loyalty. Accordingly, where the conflict is real, as it is here, a denial of the right to effective representation exists, without a showing of specific prejudice. See Goodson v. Peyton, 4 Cir. 1965, 351 F.2d 905; United States v. Myers, E.D.Pa.1966, 253 F.Supp. 55. See also Glasser v. United States, 1941, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Zurita v. United States, 7 Cir. 1969, 410 F.2d 477.

We find it unnecessary to reach other issues raised by the appellant.

The judgment of the district court is therefore reversed and the cause remanded with directions to order the appellant discharged from custody unless the State of Texas elects, within a reasonable time to be set by the district court, to retry him on the indictment.

Reversed and remanded with directions.


author: SPRECHER, Circuit Judge.

text:
    Wayne STANTON et al., Defendants-Appellants, v. Louise BOND et al., Plaintiffs-Appellees.
    No. 74-1409.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 13, 1974.
    Decided Oct. 30, 1974.
    Theodore L. Sendak, Atty. Gen., and A. Frank Gleaves, III, Deputy Atty. Gen., Indianapolis, Ind., for defendants-appellants.
    Lawrence G. Albrecht, Milwaukee, Wis., Seymour Moskowitz, Gary, Ind., Ivan E. Bodensteiner and Michael Mulder, Law Student, Valparaiso, Ind., for plaintiffs-appellees.
    Before SWYGERT, Chief Judge, and FAIRCHILD and SPRECHER, Circuit Judges.
   SPRECHER, Circuit Judge.

We are asked to determine whether failure of a state to comply with the requirements of the early and periodic screening, diagnosis and treatment (for persons under 21 years of age) provisions of the Social Security Act justifies injunctive relief.

Plaintiffs, representing the class of persons under age 21 who are eligible for medical benefits under Title XIX of the Social Security Act, brought this action under 42 U.S.C. § 1983, against various Indiana state officials, challenging their failure to implement a mandatory federal health program for needy children.

On March 22, 1974, the district court partially granted plaintiffs’ motion for summary judgment and enjoined the state officials from continuing to administer the state program in violation of the statute and regulations, and ordered that a complying program be instituted by July 1, 1974. The defendants have appealed.

I

In 1965 Congress added Title XIX to the Social Security Act, which created a comprehensive program of medical assistance for the needy (popularly called Medicaid. The medical assistance program is administered by the states with the federal government participating through financial grants to the states. States are not required to operate medical assistance plans, but if they elect to do so they must comply with the requirements of Title XIX.

Title XIX requires that each state plan provide five basic services: inpatient hospital services, outpatient hospital services, laboratory and x-ray services, skilled nursing home services and physicians’ services. Originally nine other medical services were optional with the states, and additional optional categories of care have been added by Congress from time to time.

In 1967 Congress amended one of the five mandatory requirements to, in effect, require each participating state to furnish a sixth basic service:

[Effective July 1, 1969, such early and periodic screening and diagnosis of individuals who are eligible under the plan and are under the age of 21 to ascertain their physical or mental defects, and such health care, treatment, and other measures to correct or ameliorate defects and chronic conditions discovered thereby, as may be provided in regulations of the Secretary.

The addition of “early and periodic screening and diagnosis” and “treatment” (EPSDT) of persons under the age of 21 was the result of a growing need for child health care among the needy.

Early in 1967, President Johnson recommended to Congress a comprehensive program for American children, one recommendation calling for programs providing early diagnosis and treatment of children with handicaps The President pointed out that over 3.5 million children who needed medical help and another million crippled children did not receive the needed medical services.

Studies have shown that one out of every three poor children in the United States is so anemic as to require immediate medical attention. Severe malnutrition causes permanent brain damage,' stunted physical growth, and increased susceptibility to disease.

Senator Mondale pointed out to the Senate in 1972 that in Mississippi, the first state to aggressively implement EPSDT, “examination of 1,178 youngsters revealed 1,301 ‘medical abnormalities.’ ” These included 305 cases of multiple cavities, 241 cases of anemia, 97 cases of faulty vision, 217 cases of enlarged tonsils, and significant numbers of hernia, intestinal parasites and poor hearing cases.

Most childhood handicaps can be prevented or cured or corrected if detected early enough. One-third of the chronically handicapped conditions of children in the United States could be corrected or prevented by preschool care, and continuing care to age eighteen would correct or prevent 60 percent.

Despite the urgency of the need for EPSDT and despite the July 1, 1969 deadline for its proposed effective date as established by Congress, final regulations by the Department of Health, Education and Welfare, implementing Title XIX, were not published in the Federal Register until November 9, 1971, did not become effective until February 7, 1972, and gave the states further leeway by providing that by February 7, 1972

[T]he State plan must provide that screening, diagnosis, and such additional treatment will be available to all eligible children under 6 years of age, and must specify the progressive stages by which screening, diagnosis, ant! such additional treatment will be available to all eligible individuals under 21 no later than July 1,1973.

Except for the extreme leniency shown in extending the time for full compliance by the states for four years beyond the congressional date, the HEW regulations are fairly stringent. They commence by providing that “[a] State plan for medical assistance under Title XIX of the Social Security Act must [sjpecify that at least the first five items of medical and remedial care and services, set forth in paragraph (b)(1) through (5) of this section, will be provided to the categorically needy.”

Paragraph (b) (4) (ii), which provides for EPSDT, falls within the mandatory category. Paragraph (a)(3) then states that any plan must provide, with respect to the item of care set forth in paragraph (b) (4) (ii), four areas of coverage.

The regulations seek “to assure that individuals under 21 years of age who are eligible for medical assistance may receive the services of such facilities . ” and “assuring that such individuals are informed of such services. . ” States are required to enter into “agreements to assure maximum utilization of existing screening, diagnostic, and treatment services provided by other public and voluntary agencies. . . .” State plans are to assure that the necessary services “will be available to all eligible individuals under 21 years of age. . . . ”

The final regulation guidelines for the EPSDT program were issued by HEW on June 28, 1973, as part of the Medical Assistance Manual, Part 5, Sections 5-70-00 et seq. (MSA-PRG-21). The guidelines begin with the following introduction :

The 1967 amendments to title XIX of the Social Security Act added a requirement to Medicaid that was intended to direct attention to the importance of preventive health services and early detection and treatment of disease in children eligible for medical assistance. This corresponded to a similar amendment to title V of the Act. Through this amendment Congress intended to require States to take aggressive steps to screen, diagnose and treat children with health problems. Congress was concerned about the variations from State to State in the rates of children treated for handicapping conditions and health problems that could lead to chronic illness and disability. Senate and House Committee reports emphasized the need for extending outreach efforts to create awareness of existing health care services, to stimulate the use of these services, and to make services available so that young people can receive medical care before health problems become chronic and irreversible damage occurs.

MSA-PRG-21, § 5-70-20(A) (emphasis added).

There follows comprehensive descriptions of what is required in the nature of case finding, screening, diagnosis and treatment. Thé guidelines include the following:

The State agency must have an outreach program to inform AFDC families and other eligible individuals about the screening program and to encourage them to take advantage of this service.
******
The State agency must seek out and develop agreements with facilities and practitioners throughout the State that can provide screening and diagnostic services for early casefinding purposes.
******
To actively seek out eligible individuals for the EPSDT program, the State agency should develop procedures: (a) to inform parents that these services are available for their children, and when and where they are provided ; (b) to make sure that they understand the nature and purpose of the screening program; (c) to enlist the help of other community agencies in casefinding activities; and (d) to assure that families are helped, if they need such assistance, to obtain transportation to the screening center and for diagnostic studies and treatment.

Id. §§ 5-70-20(B) (6), (B)(7), (D)(1).

Congress, as part of the Social Security Amendments of 1972, enacted a penalty for failure to provide child health screening services under Medicaid:

Notwithstanding any other provision of this section, the amount payable to any State under this part for quarters in a fiscal year shall with respect to quarters in fiscal years beginning after June 30, 1974, be reduced by 1 per centum ... of such amount if such State fails to—
(1) inform all families in the State receiving aid to families with dependent children under the plan of the State approved under this part of the availability of child health screening services under the plan of such State approved under subchapter XIX of this chapter,
(2) provide or arrange for the provision of such screening services in all cases where they are requested, or
(3) arrange for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services.

II

The mandatory obligation upon each participating state to aggressively notify, seek out and screen persons under 21 in order to detect health problems and to pursue those problems with the needed treatment is made unambiguously clear by the 1967 act and by the interpretative regulations and guidelines.

Indiana is a participating state. On May 17, 1973, defendant Wayne A. Stanton, administrator of the Indiana Department of Public Welfare, issued that department’s General Administrative DPW Bulletin No. 70, in which he advised all of the state’s 92 county departments of public welfare:

An approved plan for early and periodic screening, diagnosis and treatment of those persons under age 21 was to have been in effect as of February, 1972. Indiana did not meet that deadline. However it is now mandatory that immediate steps be taken to implement this Federal law in order to satisfy the question of compliance that has been repeatedly raised by the Department of Health, Education and Welfare regarding this matter ....
The implementation will be gradual. Eight County Departments will begin operation of the plan during May, 1973. The remaining County Departments will move into the process on a planned basis until the program is in effect in all 92 County Departments by around January 1, 1974. [Emphasis in original.]

Subsequently, letters were sent to Medicaid recipients which advised that caseworkers would visit the recipient and that “the caseworkers will want to know if you feel that your children have any health problems.” Medicaid providers were advised that caseworkers would give each recipient a form “with instructions to contact their choice of appropriate Medicaid providers, should a health problem be reported by the recipient, observed by the caseworker, or should the recipient request any type of medical service . . . .”

In defendants’ reply brief, they summarize the nature of Indiana’s compliance with EPSDT:

Any of the eligible children in this state can secure all of the requested services merely by requesting them from their local health provider . [Recipients] need merely take their children to the health providers of their choice and obtain for their children the required services.

On March 22, 1974, the district court in its memorandum opinion granting in part plaintiffs’ motion for summary judgment, found:

A careful reading of the original and supplemental materials filed in this case indicates, in a clear and convincing fashion, that little, if any, headway has been made by the State as far as the implementation of the EPSDT program is concerned. From the information supplied by the Lake County Welfare Department as well as that supplied by the state, it appears to a certainty that the welfare procedures are nearly the same as they were last year. No special training is required for the caseworkers and there have been only minimal attempts to communicate this program to either the caseworkers or to the ultimate recipients. A few letters and directives, clothed in bureaucratic prose, have been issued to the local units of the Department of Public Welfare of Indiana. In fact, there is no evidence of a comprehensive EPSDT program, nor even any semblance of any screening program however minimal.

The court enjoined defendants “from continuing to administer EPSDT in violation of 42 U.S.C. Section 1396d (a)(4)(B) and the regulations established thereunder” and ordered defendants to have a program meeting the minimum standards of, and in substantial compliance with, the regulations and guidelines, “in effect in every county in Indiana by July 1, 1974.”

There is no genuine issue as to any material fact and the plaintiffs were entitled to judgment as a matter of law.

Indiana’s somewhat casual approach to EPSDT hardly conforms to the aggressive search for early detection of child health problems envisaged by Congress. It is difficult enough to activate the average affluent adult to seek medical assistance until he is virtually laid low. It is utterly beyond belief to expect that children of needy parents will volunteer themselves or that their parents will vol-jujntarily deliver them to the providers of health services for early medical screening and diagnosis. By the time an Indiana child is brought for treatment it may too often be on a stretcher. This is hardly the goal of “early and periodic screening and diagnosis.” EPSDT programs must be brought to the recipients; the recipients will not ordinarily go to the programs until it is too late to accomplish the congressional purpose.

Ill

Defendants have argued that even if Indiana’s EPSDT program is not in compliance with federal requirements, the sole remedy is reduction of federal payments to the state in accordance with 42 U.S.C. § 603(g) “with respect to quarters in fiscal years beginning after June 30, 1974.”

Declaratory and injunctive relief at the behest of “those individuals most directly affected by the administration of [a] program” are available “should the State not develop a conforming plan within a reasonable period of time” when using federal funds. Rosado v. Wyman, 397 U.S. 397, 420-421, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). See also King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). Congress knows how to deprive a court of broad equitable power when it chooses to do so. Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 19, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974). It did not choose to do so in this instance.

Judgment is affirmed.

      . 42 U.S.C. §§ 1396-1396g.

      . Id. § 1396a.

      . Id. § 1396b.

      . Id. §§ 1396a, 1396c.

      . Id. § 1396a(a) (13).

      . Id. § 1396d(a) (1-5).

      . The nine original optional services were (1) medical or remedial care furnished by state licensed practitioners; (2) home health care services; (3) private duty nursing services ; (4) clinic services ; (5) dental services; (6) physical therapy; (7) prescribed drugs, dentures, prosthetic devices and eyeglasses; (8) other diagnostic, screening, preventive and rehabilitative services; and (9) tubercular and mental institution services for the aged. Id. § 1396d(a) (6-14).

      . 42 U.S.C. § 1396(3 (a)(4)(B). Section 1396(1 (a) (4) originally provided for mandatory skilled nursing home services but the 1967 amendment designated the existing provisions as clause (A) and added the above quoted provisions as clause (B).

      . Comment, Child Health Care: Unresolved Dilemma of Section 1905(a)(4)(B) of the 1967 Social Security Act Amendments, 59 Geo.L.J. 965 (1971).

      . President Johnson, Welfare of Children, H.R.Doc.No.54, 90th Cong., 1st Sess. (1967).

      . Id. at 7.

      . McGovern, Hunger in America, N.Y. Times Encyclopedic Almanac 304 (1970).

      . 118 Cong.Rec. 11106 (1972).

      . White House Conference on Children, Report to the President, 184 (1970). Routine throat screening of children age 5 — 15 with respiratory illness or unexplained fever could prevent 75 percent of rheumatic fever cases. Suslaw, Vieta and Myenberg, Cost of Rheumatic Fever and Its Prevention, 55 Rep. Pub.Ilealth 429 (1965). Early detection and treatment of lead poisoning, which leads to mental retardation, seizure disorder, kidney diseases and other handicaps, can reduce blood lead to safe levels before permanent handicaps occur. Lin-Fu, Preventing Lead Poisoning in Children, 2 Children Today 2 (1973).

      . 36 Fed.Rog. 21409 (1971).

      . 45 C.F.R. § 249.10(a) (3) (iv) (1972).

      . Id. § 249.10(a) (1) (emphasis added).

      . Id. § 249.10(b) (4) (ii) provides:

        Early and periodic screening and diagnosis of individuals under 21 years of age, and treatment of conditions found. Early and periodic screening and diagnosis of individuals under the age of 21 who are eligible under the plan to ascertain their physical or mental defects, and health care, treatment, and other measures to correct or ameliorate defects and chronic conditions discovered thereby. Federal financial participation is available for any item of medical or remedial care and services included under this section for individuals under the age of 21. Such care and services may be provided under the plan to individuals under the age of 21, even if such care and services are not provided, or are provided in lesser amount, duration or scope to individuals 21 years of age or older.

      . Id. § 249.10(a) (3) provides :
      (i) For establishment of administrative mechanisms to identify available screening and diagnostic facilities, to assure that individuals under 21 years of age who are eligible for medical assistance may receive the services of such facilities, and to make available such services as may be included under the State plan ;
      (ii) For identification of those eligible individuals who are in need of medical or remedial care and services furnished through title V grantees, and for assuring that such individuals are informed of such services and are referred to title V grantees for care and services, as appropriate ;
      (iii) For agreements to assure maximum utilization of existing screening, diagnostic, and treatment services provided by other public and voluntary agencies such as child health clinics, OEO Neighborhood Health Centers, day care centers, nursery schools, school health programs, family planning clinics, maternity clinics, and similar facilities ;
      (iv) That early and periodic screening and diagnosis to ascertain physical and mental defects, and treatment of conditions discovered within the limits of the State j)lan on the amount, duration, and scope of care and services, will be available to all eligible individuals under 21 years of age; and that, in . addition, eyeglasses, hearing aids, and other kinds of treatment for visual and hearing defects, and at least such dental care as is necessary for relief of pain and infection and for restoration of teeth and maintenance of dental health, will be available, whether or not otherwise included under the State plan, subject, however, to such utilization controls as may be imposed by the State agency. If such screening, diagnosis, and such additional treatment are not available by the effective date of these regulations to all eligible individuals under 21 years of age, the State plan must provide that screening, diagnosis, and such additional treatment will be available to all eligible children under 6 years of age, and must specify the progressive stages by which screening, diagnosis, and such additional treatment will be available to all eligible individuals under 21 no later than July 1, 1973.

      . Id. § 249.10(a) (3) (i).

      . Id. § 249.10(a) (3) (ii).

      . Id. § 249.10(a) (3) (iii).

      . Id. § 249.10(a) (3) (iv).

      . 42 Ü.S.C. § 603(g) (effective October 20, 1972).

      . Plaintiffs claim federal question jurisdiction under 28 U.S.C. § 1331 and aver that the value of the program of which they are deprived exceeds $10,000 to each plaintiff. Clearly, to any child with a serious undetected impairment EPSDT may well be of the value claimed, and defendants have made no contest on the point.


author: ADAMS, Circuit Judge:

text:
    Lenin ENCISO-CARDOZO, Edwin Michael Enciso, minor, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
    No. 213, Docket 74-1083.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 19, 1974.
    Decided Oct. 29, 1974.
    James J. Orlow, New York City (Marion R. Ginsberg and Wasserman, Orlow, Kaye & Rubin, New York City, of counsel), for petitioners.
    Mary P. Maguire, Sp. Asst. U. S. Atty., for the Southern District of New York (Paul J. Curran, U. S. Atty., for the Southern District of New York, on the brief, Lydia E. Morgan, Sp. Asst. U. S. Atty., of counsel), for respondent.
    Before MOORE, MULLIGAN and ADAMS, Circuit Judges.

       Of the Third Circuit Court of Appeals, sitting by designation.

   ADAMS, Circuit Judge:

The primary issue on this appeal is whether the infant citizen petitioner was denied due process of law when he was refused permission to intervene in the deportation proceedings instituted against his alien mother.

a.

Lenin Enciso-Cardozo, the alien petitioner on this appeal and the mother of the infant petitioner, entered the United States on November 2, 1970 as a non-immigrant for pleasure. Unmarried at the time of her entry, she married Eduardo Enciso-Cardozo in New York City on September 18, 1971. Eduardo was at that time, and still is, also a non-immigrant for pleasure. On November 27, 1972, in New York City, Lenin gave birth to Edwin Michael Enciso, the infant citizen petitioner in this appeal. By the time of Edwin’s birth, both Eduardo and Lenin had been in the United States beyond the time authorized by their visas.

On February 19, 1973, the Immigration and Naturalization Service instituted deportation proceedings against Lenin. At the deportation hearing relating to Lenin, held on February 26, 1973, counsel for the mother entered an oral motion on behalf of the infant, requesting that the infant be permitted to intervene in the proceedings. Counsel made no offer of evidence or arguments to be adduced on behalf of the child, and the immigration judge denied the infant’s motion to intervene. The immigration judge then found the mother to be deportable, but granted her the privilege of departing voluntarily on or before May 26,1973.

Lenin and her child on March 2, 1973, appealed the decision of the immigration judge to the Board of Immigration Appeals. The Board dismissed the appeal on September 28, 1973, and granted Lenin, the alien petitioner, 89 days in which to depart voluntarily. At the request of Lenin, the period of voluntary departure for her was extended to January 23, 1974. The petition for review by this Court was filed on January 23, 1974.

b.

On this review, the petitioners — the mother and the child — do not challenge the finding of the immigration judge that the mother is deportable. Instead, they contend that the infant petitioner, a United States citizen, was denied procedural due process when he was not permitted to intervene in the deportation proceedings brought against his mother. More specifically, petitioners contend that the infant citizen has a right to be reared in the United States, that the deportation of his mother necessarily implies his de facto deportation and that, therefore, since his rights and interests are so vitally affected by the deportation of his mother, he has a constitutional right to intervene in these proceedings, especially the portion of the proceedings dealing with the discretionary grant of voluntary departure.

In response, the Immigration and Naturalization Service contends that the infant petitioner has no substantive right to prevent the deportation of his mother, who has been found otherwise deportable, merely because the child is a citizen of the United States.' Thus, the Service argues, since the immigration judge has jurisdiction to decide only the question of the deportability of the parent, the child has no substantive rights which may be asserted at the deportation proceeding, and there is, therefore no need to allow him to intervene.

c.

Although it appears to be firmly established that an infant’s status as a citizen and his dependence on his alien parent do not prevent the deportation of the alien parent, the question presently facing the Court is not whether the infant petitioner is entitled to have his mother remain in the United States, but whether he has a constitutional right to be heard by the immigration judge on the deportability of his mother and on the grant of discretionary relief in the form of extended voluntary departure. This issue has been alluded to by the Court of Appeals for the Ninth Circuit in dictum in the per curiam opinion in Agosto v. Boyd, 443 F.2d 917 (9th Cir. 1971), and by Judge Weinfeld in Application of Amoury, 307 F.Supp. 213 (S.D.N.Y.1969).

In Agosto, the wife and minor children of an alien had filed a complaint seeking an order from the district court permitting them to intervene in the deportation proceedings brought against the alien. The Court of Appeals affirmed the dismissal of the complaint on the ground that the district court had no jurisdiction to entertain such an action ancillary to the administrative proceedings. The opinion continued, however, stating: “We discover no basis for conferring standing upon the relatives of an alien to intervene in pending deportation proceedings.” 443 F.2d at 917. In Amoury, an action was brought in the district court on behalf of an infant citizen of the United States, seeking a declaratory judgment as to the rights of the infant as they related to the deportation of his alien parents. The district court, after concluding that it had jurisdiction under the Administrative Procedure Act to hear the suit, dismissed the complaint for failure to state a claim. It was asserted on behalf of the child- that if his parents were deported he, because of his age, would be forced to leave the country as well and that, since he had not been a party to the deportation proceeding, he had been deprived of due process. The district court held that the constitutional rights of the child had not been violated by the manner in which his parents’ deportation hearing was conducted. “The deportation proceeding was not predicated upon any charge with respect to the infant; consequently he was not entitled to notice or a hearing with respect to the claim that his parents had remained in the United States beyond the time permitted upon their entry.” 307 F.Supp. at 216.

Recognizing the dependence of an infant upon his parents and the possibility of substantial effects upon the infant from his involuntary departure, we are not prepared at this time to endorse the language of the above opinions indicating that under no circumstances does due process require that an infant be permitted to participate in the deportation proceedings against his parent. In this case, however, petitioners have pointed to no circumstances which necessitate such intervention. Counsel representing the infant citizen has not offered, either to the immigration judge or to this Court, any evidence or argument which could not have been raised by the infant’s mother, the subject of the proceedings. Nor has counsel for the infant suggested any issue which the mother has not in fact raised. On the facts of this case, therefore, since counsel has been unable to show any prejudice to the infant from the refusal to allow the infant to intervene, we conclude that there has been no denial of due process.

The decision of the Board of Immigration Appeals will be affirmed.

      . See 8 U.S.C. § 1101(a) (15) (B) (1970).

      . The infant petitioner is a citizen of the United States by virtue of his birth within this country. 8 U.S.C. § 1401(a)(1) (1970).

      . Deportation proceedings were instituted against Eduardo Enciso-Cardozo on August 30, 1972. After a hearing lie was granted voluntary departure on or before November 30, 1972. On January 12, 1973, Eduardo received notice that he had been ordered deported. Subsequently, however, he obtained a stay pending a final determination of the deportation proceeding against his wife.

      . Counsel for Lenin conceded the truth of the allegations in the order to show cause, but did not concede deportability.

      . Lenin applied for indefinite voluntary departure, but the immigration judge denied that request.

      . The alien petitioner has received an automatic stay of deportation pending resolution of the petition for review. 8 U.S.C. § 1105a(a)(3).

      . Aalund v. Marshall, 461 F.2d 710 (5th Cir. 1972) ; Perdido v. Immigration and Naturalization Service, 420 F.2d 1179 (5th Cir. 1969). Cf. Silverman v. Rogers, 437 F.2d 102 (1st Cir. 1970), cert. denied, 402 U.S. 983, 91 S.Ct. 1667, 29 L.Ed.2d 149 (1971) ; Faustino v. Immigration and Naturalization Service, 432 F.2d 429 (2d Cir. 1970), cert. denied, 401 U.S. 921, 91 S.Ct. 909, 27 L.Ed.2d 824 (1971) ; Swartz v. Rogers, 103 U.S.App.D.C. 1, 254 F.2d 338 (1958), cert. denied, 357 U.S. 928, 78 S.Ct. 1373, 2 L.Ed.2d 1372 (1958).

      . Plaintiff also contended “that the infant will be deprived, until his parents may regain entry here, of the standard of living and education afforded to other United States citizens of his age and status who continue to reside here,” in violation of the infant’s right to equal protection. 307 F. Supp. at 216. The district court found no merit to this claim.