author: VAN OOSTERHOUT, Senior Circuit Judge.

text:
    Fred ANDERSON, for himself and his minor children, et al., Appellants, v. Lawrence L. GRAHAM, Director of Public Welfare, Individually and in his official capacity, Appellee.
    Nos. 73-1441, 73-1466.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 15, 1973.
    Decided Dec. 20, 1973.
    Rehearings Denied April 3, 1974.
    Robert S. Catz, Legal Aid Society, Omaha, Neb., for appellants.
    Richard K. Spencer, Lincoln, Neb., and E. D. Warnsholz, Asst. Atty. Gen., Lincoln, Neb., for appellee.
    Before VAN OOSTERHOUT and MOORE, Senior Circuit Judges, and WEBSTER, Circuit Judge.

       Leonard P. Moore, Senior Circuit Judge, Second Circuit, sitting by designation.

   VAN OOSTERHOUT, Senior Circuit Judge.

This action is brought by plaintiff Fred Anderson, a Nebraska Aid for Dependent Children (AFDC) recipient for himself, his minor children, and all others similarly situated, against Lawrence L. Graham, Nebraska Director of Public Welfare, individually and in his official capacity. Plaintiff’s attack is directed at the Nebraska $25.00 standard business expense allowance for employed AFDC recipients who have incurred employment-related expenses exceeding $25.00. Jurisdiction is based on 42 U.S.C. § 1983.

Plaintiff seeks to enjoin the application of the Nebraska standard business expense allowance as being in violation of 42 U.S.C. § 602(a) (7) and the regulations promulgated thereunder. Plaintiff also seeks retroactive payment of AFDC benefits based upon a consideration of all reasonable work-related expenses actually incurred.

The Nebraska plan determines net income by the following method:

A. Determine gross earned income;
B. Subtract $30.00, plus one-third of the remainder as work incentive disregard, pursuant to 42 U.S.C. § 602(a)(8);
C. Subtract state income tax, federal income tax, and social security tax withholding;
D. Subtract actual necessary child care costs;
E. Subtract a work expense standard of $25.00 per employed person.

The result of this computation is the net income of the welfare recipient used to determine eligibility and the amount of AFDC payments due if any. The only item included in the foregoing computation in dispute is item “E”, the standard work expense allowance of $25.00 given to each employed recipient. The deduction is standard throughout the State of Nebraska and includes the following categories:

1. Transportation to and from work and to and from a child care center or baby sitter;
2. union dues;
3. employee’s fund, retirement, insurance, pensions, charity;
4. extra or special clothing, uniforms ;
5. cost of materials, cosmetic supplies, booth rental;
6. cost of tools and equipment;
7. overhead business expenses;
8. licenses;
9. required contributions for em- ■ ployees benefits; and
10. special lunches while working.

This case was tried before Judge Ur-bom on motions for summary judgment filed by both parties. The record consists of pleadings, defendant’s answer to plaintiff’s request for admission of facts, plaintiff’s answer to interrogatories affidavits and facts determined in an order based upon pretrial conference. Both parties state that there is no dispute as to material facts.

At a pretrial conference on November 24, 1972, counsel stipulated that the work-related expenses of the plaintiff Fred Anderson exceed $25.00 per month. Counsel agreed that the sole issue on the plaintiff’s motion for a summary judgment is whether a state may standardize work-related expense in determining the amount of net income of employed AFDC recipients, without regard to the validity or the invalidity of any studies made by the state in formulating the standard.

Anderson, an AFDC recipient, was employed at the Offutt Air Force Base. Prior to 1972 Anderson was receiving AFDC payments based upon his family’s budgetary need. Anderson was a widower. His family consisted of four minor children, one of whom became eighteen years of age in 1972 and left home and became self-sustaining. On February 24, 1972, it was determined that the budgetary need no longer exceeded Anderson’s income. Such determination was brought about by limiting Anderson’s deductible work expense deduction to the standard $25.00 allowance. While some of Anderson’s work-related expense items may be in dispute, defendant admits work-related expenses exceeded $25.00. It is undisputed that the following monthly work-related expenses were paid through payroll deductions:

Retirement - $40.41
Union Dues - 5.42
Health and Disability Benefits - 39.04
Life Insurance - 5.95

In addition, Anderson testified by deposition that he drives a distance of 350 to 400 miles per month to and from his work station and that the reasonable expense for such travel is ten cents per mile, and that he incurs expenses for uniforms and food purchases while at work. These categories are recognized as work expenses by HEW as specified in Handbook of Public Assistance Administration, § 3410.

Anderson in his deposition taken on December 22, 1972, testified that he employed his sister-in-law, Ruth B. Delsee, to care for his minor children at a cost of $100.00 per month. After defendant produced a certified copy of certificate showing marriage of Anderson and Ruth B. Delsee on the 26th of August, 1972, plaintiff filed a response admitting such marriage and further conceded that as a result of such change in circumstances, he became ineligible for future AFDC payments. Anderson states that he intends to proceed with this action for declaratory relief and retroactive benefits for himself and on behalf of the class he represents.

On December 13, 1972, Shirley Von Dorn filed motion to intervene as party plaintiff, stating that she was a member of the class represented by Anderson. Such leave was granted by the trial court. Mrs. Von Dorn was an AFDC recipient who incurred work-related expenses exceeding $25.00 per month. The court permitted the action to proceed as a class action. No attack has been made upon such ruling.

A final judgment was filed on June 12,1973, adjudicating as follows:

1. The standard $25.00 per month allowance for expenses reasonably attributable to the earning of income for welfare recipients, as set forth in the Plan and Manual of the Nebraska Department of Public Welfare, violates § 402(a)(7) of the Social Security Act, 42 U.S.C. § 602(a)(7), insofar as the standard does not take into consideration all expenses reasonably attributable to the earning of income for those welfare recipients who may have expenses in excess of the $25.00 per month standard, and is declared void pursuant to 28 U.S.C. § 2201 and Rule 47 of the Federal Rules of Civil Procedure.
2. The defendant, Lawrence L. Graham, individually and in his official capacity, his offiéers, employees, agents and successors in office are restrained from failing to consider, in accordance with § 402(a)(7) of the Social Security Act, 42 U.S.C. § 602(a)(7), any and all expenses reasonably attributable to the earning of income in establishing financial eligibility and the amount of assistance payments of employed applicants and recipients of Aid to Families with Dependent Children (AFDC). Under this order, the defendant, his officers, employees, agents and successors in office are restrained from failing to consider, by reason of the $25.00 per month standard work-expense allowance, as contained in the Nebraska State Plan and Manual, any and all expenses reasonably attributable to the earning of income which are in excess of said $25.00 per month standard allowance or in any other way limiting the consideration of expenses
reasonbly attributable to the earning of income. Nothing herein shall preclude the defendant, his officers, employees, agents and successors, from using a $25.00 per month work-expense allowance as a standard deduction for work-related expenses (covering all such expenses, except child care, income tax withholding, and Social Security tax withholding, which expenses shall be considered separately), provided that employed AFDC applicants and recipients are informed * of their right to have considered any and all expenses reasonably attributable to the earning of income which are in excess of the $25.00 per month standard allowance.
3. This judgment confers no right on the plaintiffs to retroactive payments.

A well-reasoned memorandum opinion was filed by Judge Urbom setting out the facts, the issues and the basis of decision.

Plaintiff has taken a timely appeal from paragraph “3” of the judgment which determines plaintiffs have no right to retroactive payment of AFDC payments wrongfully withheld. Defendant has cross-appealed from paragraphs “1” and “2” of the judgment invalidating the standard $25.00 work expense allowance with respect to welfare recipients who can establish work-related expenses in excess of $25.00 per month, and the portion of the judgment restraining the defendant from refusing to consider all expenses reasonably attributable to the earning of income and determining eligibility and amount of assistance payments due employed applicants for AFDC payments.

We affirm on plaintiff’s appeal and on defendant’s cross-appeal for reasons hereinafter set out. The cross-appeal will be considered first as the retroactive issue only arises if we affirm on the cross-appeal.

Defendant’s Cross-Appeal.

Plaintiff’s contention, upheld by the trial court, is that defendant’s action in limiting business expenses related to earnings to $25.00 in situations where such expense exceeds $25.00 is a violation of 42 U.S.C. § 602(a)(7) which provides that states which participate in the AFDC program must have a plan which takes into consideration in determining a need the income of any child or relative claiming aid “as well as any expenses attributable to the earning of such income.”

The judicial construction of § 602 (a) (7) properly begins by looking at the text of the statute itself. United States v. Bass, 404 U.S. 336, 339, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). As stated by the Second Circuit in Connecticut State Department of Public Welfare v. Department of Health, Education, and Welfare, 448 F.2d 209, 216 (2d Cir. 1971), the statute clearly provides that all expense reasonably attributable to the earning of income must be excluded from the computation of available income in determining eligibility and need. Additionally the legislative history of the enactment of § 602(a)(7) fully supports the trial court’s interpretation of the statute.

Chief Judge Lewis of the Tenth Circuit in Vialpando v. Shea, 475 F.2d 731, 735 (10th Cir. 1973), in a well-reasoned opinion supported by persuasive authority, faces the same issue presently before us and thus interprets § 602(a) (7):

A state must compare its standard of need to the income and resources actually available to the particular family in order to establish financial eligibility and the amount of an AFDC grant. 45 C.F.R. § 233.20(a) (3) (ii) (a) and (c). 42 U.S.C. § 602(a)(7) requires that the computation of income and resources available to the particular family must take into consideration any expenses reasonably attributable to the earning of income. To uniformly apply a standarized employment expense allowance rather than consider actual expenses in this computation would render meaningless the process of comparing a particular family’s available income and resources with a hypothetical family’s standard of need.
The problem with the Colorado system is not its use of a standardized allowance but the intransigent adherence to this standard when a particular family’s expenses of employment exceed the allowance. In such eases, Colorado’s standard allowance operates as a maximum allowance which we also consider to be inconsistent with 42 U.S.C. § 602(a)(7). Williford v. Laupheimer, E.D.Pa., 311 F.Supp. 720 (three-judge court). Nevertheless, a reasonable interpretation of the statute permits “a state to use a standard deduction for [employment] expenses in the interest of efficient administration of the [AFDC] program, pro vided the allowance is adequate to cover all actual expenses.”

We fully agree with such interpretation.

Judge Lewis in Vialpando for valid reasons there stated has properly rejected all contentions here made on the work expense issue.

We agree with the trial court’s determination that § 602(a)(7) requires the State of Nebraska to deduct all reasonable work-related expenses in all instances where such expenses exceed the standard $25.00 deduction in determining the amount of net income available to AFDC recipients, and we affirm the trial court on such issue.

Retroactive Payment.

Judge Urbom denied retroactive payment of deficiences in AFDC payments brought about by the State’s failure to consider work-related expenses in determining eligibility and amount of AFDC benefits. He reached this result on the basis of Rothstein v. Wyman, 467 F.2d 226 (2d Cir. 1972). All aspects of the retroactive payment issue are there fully considered and such payments are denied on the basis of persuasive authorities cited and discussed. In Roth-stein, as here, the action was brought against the head of the State social welfare department. Rothstein, in Division III at p. 236 of 467 F.2d, determined that retroactive payments constituted a claim against the State and that such payments were thus barred by the Eleventh Amendment. We agree.

In Employees of the Department of Public Health & Welfare v. Department of Public Health & Welfare, 452 F.2d 820 (8th Cir. 1971), state hospital and training school employees brought an action against the Welfare Department to recover overtime compensation due under the Fair Labor Standards Act. We held that Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968), determined that the employees were entitled to the overtime pay they were demanding but that federal courts by reason of the Eleventh Amendment lacked jurisdiction to grant relief. We discussed at length the history, purpose and scope of the Eleventh Amendment. We also determined that the State by continuing to operate its institutions did not waive its Eleventh Amendment immunity to federal suit. The Supreme Court affirmed. Employees v. Missouri Public Health Department, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973). The Court held that the Fair Labor Standards Act made no express provision for depriving the states of their Eleventh Amendment immunity and held that the State by continuing to operate its institutions did not waive its Eleventh Amendment rights.

The holding in Employees fully applies to the instant case. As observed in Rothstein, supra, p. 238 of 467 F.2d:

Congress has not explicitly conditioned the grant of such funds upon the willingness of the recipient state to waive the immunity from suit provided by the Eleventh Amendment; nor are retroactive payments so necessary to the effectuation of congressional policies that a waiver arises by implication.

In Like v. Carter, 486 F.2d 552 (8th Cir. 1973), we held:

We agree with the district court’s view that on jurisdictional grounds, the Eleventh Amendment bars any award for lost welfare benefits because of the failure of the state to pay claims within the prescribed time period of 30 days.

We are aware of Jordan v. Weaver, 472 F.2d 985 (7th Cir.), cert. granted sub nom. Edelman v. Jordan, 412 U.S. 937, 93 S.Ct. 2776, 37 L.Ed.2d 398 (1973), which supports plaintiff’s position on the retroactive issue. That ease was decided prior to the decision of the Supreme Court in Employees v. Missouri Public Welfare Department, supra,, and is inconsistent with that decision on the Eleventh Amendment issue. The result reached in Jordan is also contrary to that reached by this court in the cases heretofore cited.

We hold that plaintiff’s suit for retroactive benefits is in effect a suit against the State, that the State has not waived its immunity, and hence the Eleventh Amendment deprives the federal court of jurisdiction to award a money judgment against the State for the retroactive payments here claimed.

As noted by the Supreme Court majority opinion in Employees, we are here concerned only with the constitutional restraints of the judicial power of the United States courts under the Eleventh Amendment and not with the issue of whether plaintiff could recover in a state court, see concurring opinion, p. 298 of 411 U.S., p. 1625 of 93 S.Ct., or in a suit by the federal government. Thus the judgment for dismissal of the claim for retroactive benefits will be modified to* show that it is based upon lack of jurisdiction by reason of the Eleventh Amendment and as so modified, the judgment of dismissal will be affirmed.

The order of the trial court staying the injunction and all proceedings to enforce its judgment pending appeal is terminated.

Modified and affirmed on plaintiff’s appeal. Affirmed on defendant’s cross-appeal.

      . It was also understood at the pretrial conference that if plaintiff’s motion for summary judgment is overruled, an evidentiary hearing would be held upon the validity of the method by which the State determined the amount of the standard deduction.

      . We reiterate, as did the trial court, that the attack on the Nebraska standard earning expense allowance is limited to situations where AFDC applicants or recipients claim and prove expense attributable to earned income in excess of the $25.00 standard deduction. In many cases the standard deduction will be greater than actual work expense. Work expense incurred in earning income will necessarily vary greatly. One who has to travel a substantial distance to the scene of his employment will ordinarily incur far more expense for transportation than one whose work station is within a few blocks of his home. One who must supply his own tools or provide a uniform will incur business-related expense not incurred by persons who do not have to provide such items.

      . In 1962 President Kennedy proposed changes in the public assistance program which stressed “service instead of support, rehabilitation instead of relief, and training for useful work instead of dependency.” Hearings on H.K.. 120032 before the House Ways and Means Committee, 87 Cong., 2d Sess. (February 1962), p. 2.
      Secretary Ribicoff in a letter to the Speaker of the House stated, “To encourage assistance recipients to participate in the community work and training programs or take regular employment, full consideration of the additional expenses of employment would be required.” Id. at p. 2.
      He further states:
      Under current Federal policy, while States are required to consider any income and resources (with certain exclusions in the case of Title X of the Social Security Act) in determining need, they are encouraged but not required to take into consideration expenses incurred in earning income. All public assistance titles of the act would be changed by the bill to require the consideration of necessary expenses that may reasonably be attributed to earning income. These changes would not become effective until July 1, 1962. [Id. at p. 28.]
      In the hearings before the Senate Finance Committee, Secretary Ribicoff in response to a question from Senator Curtis stated:
      * * * What we are trying to do, Senator Curtis, is do everything we can to encourage people to get a job and work and we feel it is important to encourage the States. By having this provision, the State will take into account these expenses so people will get jobs. I believe that the State should give them an allowance for those items that are necessary for them to get a job.
      Hearings before the Committee on Finance, U.S.Senate, 87th Cong., 2d Sess. (May 1962) p. 152.
      The Senate Report on the bill which includes § 602(a) (7) subsequently enacted explains the purpose of the mandatory work expense disregard law as follows :
      Under the present law, all income of recipients of public assistance is taken into account (with a limited exception under Title X) in determining need. States are permitted, but not required, to take into consideration the expenses an individual has in earning any income (this practice is not uniform in the country and in a substantial number of States full consideration of such expenses is not given). The Committee believes that it is only reasonable for the States to take these expenses fully into account. Under existing law if these work expenses are not considered in determining need, they have the effect of providing disincentive to working since that portion of the family budget spent for work expenses has the effect of reducing the amount available for food, clothing, and shelter. The bill has, therefore, an added provision in all assistance titles requiring the State to give consideration to any expense reasonably attributable to the earning of income. [Senate Report No. 1589, 87th Cong., 2d Sess. 1962 U.S. Code Cong. & Admin.News, pp. 1943, 1959-1960.]
      The House Report, H.R. No. 1414, 87th Cong., 2d Sess., 23 (1962), contains in essence the same language.

      . We note that the Supreme Court granted certiorari Nov. 5, 1973, Shea v. Vialpando, 414 U.S. 999, 94 S.Ct. 351, 38 L.Ed.2d 235. Considerable time may elapse before the Supreme Court reaches the case for decision. The trial court has granted a stay during tiie pendency of this appeal. We hold in the next division that plaintiff and members of the class are not entitled to retroactive payment against the State in a federal suit. We believe that under all the circumstances here raised, the parties are entitled to a prompt decision in this court. See Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Like v. Carter, 448 F.2d 798, 804 (8th Cir. 1971).


source: Caselaw Access Project

author: PHILLIPS, Chief Judge.

license: Public Domain

text:
    Paul STOUT, Petitioner-Appellant, v. William H. DALLMAN, Respondent-Appellee.
    No. 73-1166.
    United States Court of Appeals, Sixth Circuit.
    Argued Nov. 26, 1973.
    Decided Feb. 22, 1974.

      Theodore Knoebber (Court Appointed), Newport, Ky., on brief for petitioner.
    Leo J. Conway, Asst. Atty. Gen., for respondent; William J. Brown, Atty. Gen., Columbus, Ohio, on brief.
    Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and JOINER, District Judge.

       Honorable Charles W. Joiner, Judge, United States District Court for the Eastern District of Michigan, sitting by designation.

   PHILLIPS, Chief Judge.

Paul Stout appeals from the denial of his application for writ of habeas corpus.

At a jury trial in the Court of Common Pleas of Butler County, Ohio, Stout was convicted of armed robbery in violation of Ohio Revised Code § 2901.13, which provides as follows: “No person, while armed with a pistol, knife, or other dangerous weapon, by force or violence, or by putting in fear, shall steal from the person of another anything of value.”

He was sentenced to imprisonment of not less than ten years nor more than twenty-five years.

His conviction was affirmed by the Butler County Court of Appeals.

On his appeal to the Supreme Court of Ohio Stout contended, among other things, that:

“The trial court violated petitioner’s right to due process in putting him on trial for violation of Ohio Rev.Code § 2901.13 and finding him guilty of armed robbery, when the term ‘dangerous weapon’ as used in said section does not give such a description as would readily afford an accused his right to be informed of the nature of the offense and was unconstitutionally vague in describing just what a ‘dangerous weapon’ is under Ohio law.”
The Supreme Court of Ohio dismissed the appeal on the ground that no substantial constitutional questions exist therein.

The principal issue raised on this appeal is whether the words “other dangerous weapon” in this statute are so vague as to render the statute unconstitutional. We hold that the statute is constitutional.

In committing the robbery in question, Stout hit the victim with a hard object, inflicting a head wound requiring twelve stitches and knocking some teeth loose. The victim testified in the criminal proceedings in the State court as follows:

“. . . .1 looked up like that and heard something and there was an object there at my face and eyes, and I knew I had to turn from it, and there was Mr. Stout. I can’t tell you what it was in his hand it was a hard object about so that hit me. It took 12 stitches in my head here and my teeth were knocked loose and my ribs were hurt. .
“It was just an object and I looked him right in the face and I thought my God my face is gone and I turned my head and went out like a light. I couldn’t state what it was, it was a hard one, that is about the length of it and it was so quick I couldn’t tell you what it was.
“Q. Was the person involved holding this in his hand?
“A. Oh yes Mr. Stout had it in his hand.
“Q. Which hand?
“A. Right hand.
“Q. Would you say some three or four inches exposed ?
“A. Yes it could have been a wrench . I couldn’t state what it was, but it was a hard object.”

Although the hard object is not identified with certainty, we hold that a jury would conclude from this testimony that it was a dangerous weapon within the meaning of the statute.

As said by Chief Justice Vinson in Jordan v. De George, 341 U.S. 223, 230-232, 71 S.Ct. 703, 707-708, 95 L.Ed. 886 (1951):

“The essential purpose of the ‘void for vagueness’ doctrine is to warn individuals of the criminal consequences of their conduct. William v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774, decided April 23, 1951; Screws v. United States, 325 U.S. 91, 103-104, 65 S.Ct. 1031, 1036, 89 L.Ed. 1495 (1945). This Court has repeatedly stated that criminal statutes which fail to give due notice that an act has been made criminal before it is done are unconstitutional deprivations of due process of law. Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939); United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516 (1921).
******
“We have several times held that difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically render a statute unconstitutional for indefiniteness. United States v. Wurzbach, 280 U.S. 396, 399, 50 S.Ct. 167, 168, 74 L.Ed. 508 (1930). Impossible standards of specificity are not required. United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926).”

Sixth Circuit precedent requires that the language of a criminal statute must convey sufficiently definite warning as to the proscribed conduct, when measured by common understanding and practices, although impossible standards of specificity are not required. North American Van Lines, Inc. v. United States, 243 F.2d 693, 697 (6th Cir., 1957); Anderson v. United States, 215 F.2d 84, 90 (6th Cir.), cert. denied, 348 U.S. 922, 75 S.Ct. 291, 99 L.Ed. 723 (1954).

We find nothing vague in a statute which makes it a crime to steal from the person of another while armed with a dangerous weapon. The term “dangerous weapon” is not so vague as to render the statute unconstitutional. It would not be feasible for the legislature to list every object which could fit the dictionary definition of that term. A wide variety of objects have been held to be “dangerous weapons” under similar statutes. See 11 Words & Phrases, p. 130 et seq.

The term “dangerous weapon” also appears without definition in the federal bank robbery statute. 18 U.S.C. § 2113(d). A considerable number of convictions have been upheld under that Act.

We hold that the statute under which Stout was convicted is not invalid for indefiniteness.

Stout contends that the State trial court violated his constitutional rights by failing to charge the jury on the lesser included offense of unarmed robbery. He also raises two questions concerning the sufficiency of the evidence. We agree with the District Court that these contentions are without merit.

Affirmed.

      . Docket No. 1456.

      . Docket No. 72-209, June 9, 1972.


author: ALFRED T. GOODWIN, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Patrick Henry PATTERSON, Appellant. UNITED STATES of America, Appellee, v. Walter William LANE, Appellant.
    Nos. 73-2911, 73-2912.
    United States Court of Appeals, Ninth Circuit.
    Feb. 28, 1974.
    Warren R. Williamson (argued), of Federal Defenders, Inc., Roger Curtis McKee (argued), San Diego, Cal., for appellants.
    Michael E. Quinton, Asst. U. S. Atty. (argued), San Diego, Cal., for appellee.
    Before MERRILL and GOODWIN, Circuit Judges, and WOLLENBERG, District Judge.

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

   ALFRED T. GOODWIN, Circuit Judge:

Patrick Henry Patterson and Walter William Lane appeal their convictions for possession of marijuana with intent to distribute. They assert that the marijuana seized from their vehicle should have been suppressed because the customs agents lacked probable cause or warrant for the search. We reject this argument and affirm their convictions.

On April 2, 1973, at approximately 8:15 p. m., the appellants entered the United States from Mexico at the Te-cate, California, point of entry. After their vehicle had been inspected by the immigration service, one of the appellants asked the inspecting officer for directions to San Diego and was told to continue north to Tecate Junction and then turn left on Highway 94.

Believing that the vehicle and its occupants might warrant further surveillance, one of the agents followed the appellants’ car north from the station. At Tecate Junction, the appellants turned right on Highway 94 rather than left to San Diego. Still followed by the agent, the appellants drove eight to ten miles east and then stopped at an outdoor telephone booth. Meanwhile, another agent had taken a position in the driveway of the Patterson Ranch (apparently no connection with appellant Patterson) several miles farther to the east, waiting for the appellants to pass. At approximately 9:00 p. m., the appellants turned into the driveway and, after asking the agent to move his ear, entered one of the houses on the ranch.

The Patterson Ranch is approximately one-quarter mile from the Mexican border in an area in which heavy smuggling activity had occupied the attention of the border patrol agents. Approximately two weeks earlier, the agent who was parked in the driveway had heard that a person had rented a house on the ranch for a month but had never stayed at the house for more than a few hours on two occasions.

After he had moved his car, the agent returned and maintained surveillance on the appellants for the next seven and one-half hours. At about 10:24 p. m. both appellants left the house, and returned a few minutes later. One was carrying a brown paper sack, which he had apparently collected from the grounds of the ranch. Ten minutes later, the appellants went out again and returned carrying several more bags. No such bags had been in the appellants’ car when it passed through the border station. '

At approximately 4:25 the next morning, the appellants left the house carrying a burlap bag. (The agent later testified that in his experience as a customs agent, marijuana had been carried in burlap bags in about 30 per cent of his cases.) The appellants entered their car and drove back west toward Tecate Junction, where their car was stopped and searched. The search disclosed 55 pounds of marijuana in paper bags inside burlap bags.

In Hernandez v. United States, 353 F.2d 624 (9th Cir. 1965), cert. denied, 384 U.S. 1008, 86 S.Ct. 1972, 16 L.Ed.2d 1021 (1966), we held that officers can conduct a search without a search warrant where they have probable cause to believe that the thing to be searched contains contraband and where that thing is threatened with imminent removal or destruction. The bags searched here were seized from a moving vehicle; we have no difficulty in holding that they were threatened with imminent removal. See Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

The more difficult question is whether the agents had probable cause to believe that the car contained seizable contraband. The trial court concluded that they did. We sustain that factual finding as not clearly erroneous. Cf. Costello v. United States, 324 F.2d 260, 261 (9th Cir. 1963), cert. denied, 376 U.S. 930, 84 S.Ct. 699, 11 L.Ed.2d 650 (1964).

From the time that they crossed the border until the time that their ear was stopped and searched, the appellants were never more than one mile from the Mexican border. The house in which they spent the night is within one-quarter mile of the border. The ranch on which the house is located is known to be an area of heavy smuggling activity. The behavior of the appellants in asking directions to San Diego, after which they drove off in another direction, while innocent in isolation, suggests that they hoped to divert suspicion from themselves. Soon after arriving at the ranch, the appellants apparently retrieved some packages from its grounds. A common smuggling technique along the Mexican border involves the delivery of contraband across an unguarded border point by persons on foot. The contraband is then retrieved on the United States side. See United States v. Powell, 449 F.2d 335 (9th Cir. 1971). Cf. United States v. Markham, 440 F.2d 1119, 1122 (9th Cir. 1971); United States v. Weil, 432 F.2d 1320 (9th Cir. 1970), cert. denied, 401 U.S. 947, 91 S.Ct. 933, 28 L.Ed.2d 230 (1971); United States v. Kandlis, 432 F.2d 132 (9th Cir. 1971) . Finally, the fact that the appellants left the house at 4:25 a. m. and drove north suggests that they wished to avoid detection by leaving the area early in the morning.

We have no doubt that the individual activities of the appellants on the night of April 2-3 might also have been consistent with innocent behavior. The ap-o pellants could have asked directions to San Diego purely for future reference. Entirely innocent travelers as well as smugglers might stop and use a telephone before visiting an area where smuggling activities are known to have taken place. All sorts of innocuous property could have been stored in the bags picked up outside the ranch house and loaded into the car. Burlap bags can and do contain a wide variety of commodities. Travelers often leave very early in the morning in order to avoid heavy traffic.

Unquestionably, no one item of the government’s evidence, considered in isolation, would have been sufficient to justify a reasonable man in the belief that the burlap bags loaded into the appellants’ car contained contraband. Nonetheless, the totality of the evidence, to an experienced border agent familiar with the methods employed by smugglers, did establish probable cause to believe that the appellants’ car was being used to transport seizable contraband. The officers had “facts and circumstances within their knowledge and of which they had reasonably trustworthy information * * * sufficient in themselves to warrant a man of reasonable caution in the belief that * * * [contraband] was being transported in the automobile which they stopped and searched.” Carroll v. United States, 267 U.S. at 162, 45 S.Ct. at 288. See generally United States v. Jit Sun Loo, 478 F.2d 401, 404 (9th Cir. 1973). The succession of superficially innocent events had proceeded to the point where a prudent man could say to himself that an innocent course of conduct was substantially less likely than a criminal one.

This case is distinguishable from two of our recent cases which held that agents lacked probable cause to search. United States v. Majourau, 474 F.2d 766 (9th Cir. 1973); United States v. Petersen, 473 F.2d 874 (9th Cir. 1973). In both of these cases, the government also sought to justify the search as a border search and failed. In Majourau the vehicle had traveled between 80 and 90 miles from the border, without continuous surveillance, before it was searched. Most of the suspicious behavior occurred in downtown Yuma, 25 miles from the border, where the passing of a paper bag between two automobiles might evoke curiosity, but hardly probable cause to believe that crime was afoot. In Petersen we affirmed a trier of fact who found no probable cause for a search in a case in which there had not been continuous surveillance from the border and in which equivocal behavior did not give rise to a reasonable probability that smuggling was being accomplished.

Since we agree with the trial court that there was probable cause to stop and search the appellants’ automobile, we need not decide whether the search would also be sustainable as a valid extended border search.

The judgment of conviction is affirmed.


author: FRIENDLY, Circuit Judge:

text:
    ECOLOGY ACTION and Suzanne Weber, Petitioners, v. UNITED STATES ATOMIC ENERGY COMMISSION, Respondent, and Niagara Mohawk Power Corporation, Intervenor.
    No. 358, Docket 73-1857.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 17, 1974.
    Decided Feb. 21, 1974.
    Richard I. Goldsmith, Syracuse, N. Y., for petitioners.
    Raymond M. Zimmet, Atomic Energy Commission, Washington, D. C. (Marcus A. Rowden, Gen. Counsel, and Jerome Nelson, Sol., Atomic Energy Commission, Washington, D. C., Wallace H. Johnson, Asst. Atty. Gen., Edmund B. Clark, and Raymond N. Zagone, Dept. of Justice, Washington, D. C., of counsel), for respondent.
    Lex K. Larson, Washington, D. C. (Arvin E. Upton, E. David Doane, and LeBoeuf, Lamb, Leiby & MacRae, Washington, D. C., of counsel), for intervenor.

      Before FRIENDLY and MANSFIELD, Circuit Judges, ZAMPANO, District Judge.

       Of the District Court for the District of Connecticut, sitting by designation.

   FRIENDLY, Circuit Judge:

Petitioners here seek to review an order of the Atomic Safety and Licensing Board (ASLB) to which the Atomic Energy Commission (AEC) has delegated its licensing functions, 42 U.S.C. § 2241 and 10 C.F.R. § 2.721. The order, dated April 12, 1973, was made in a proceeding, Docket No. 50-410, entitled “In the Matter of Niagara Mohawk Power Corporation (Nine Mile Point, Unit No. 2)”, wherein Niagara Mohawk sought permission to construct a third nuclear power generating station on the southern shore of Lake Ontario in Scriba, N. Y., and in which petitioners had been allowed to intervene.

The order, so far as here pertinent, overruled objections by petitioners to a Prehearing Conference Order issued January 26, 1973, which excluded three issues from consideration in the proceeding. These were:

(1) “the incremental effects upon environment caused by the mining, processing and reprocessing of the fuel needed for the plant” and “the incremental burden placed upon the facilities for the long term storage of highly toxic radioactive wastes produced at the facility” (hereafter the broad environmental issues) ;
(2) “the consequences of a major accident with breach of containment and the release of massive quantities of radiation into the environment” (hereafter the Class 9 accident issue); and
(3) applicant’s failure to “give adequate consideration to load-shedding and to alternate restrictions on the consumption of electricity,” by changes in the rate structure for electric power and other means (hereafter the energy conservation issue).

The exclusion of the broad environmental issues was based on several prior decisions of the Atomic Safety and Licensing Appeal Board: Vermont Yankee Nuclear Power Corporation, ALAB-56 (June 6, 1972); Vermont Yankee Nuclear Power Corporation, ALAB-73 (Oct. 11, 1972); and Long Island Lighting Company, ALAB-99 (Feb. 1, 1973). In each of those cases, the Commission , had held that since such issues had previously been considered in general terms, particular permit proceedings should focus on considerations peculiar to that project rather than those applicable to all. Moreover, in November 1972 the AEC initiated a rulemaking proceeding for further consideration of general environmental matters, 37 F.R. 24191 (Nov. 15, 1972), in which petitioner Ecology Action is participating as a member of a group known as the “National Intervenors.” The basis for excluding the Class 9 accident issue was that such an accident could result only from the combination of a loss-of-coolant accident (a Class 8 accident) and a failure of the backup emergency core cooling system (ECCS) — a combination the likelihood of which has been estimated to be not more than one in 10 million during a year’s operation. On this also the AEC has initiated a rulemaking proceeding to develop more stringent criteria for the ECCS, 36 F.R. 22774 (Nov. 26, 1971), in which Ecology Action is participating as one of the National Intervenors. The energy conservation issue was excluded on the ground that, giving due weight to National Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827 (1972), the alternatives were highly speculative and the ASLB could not secure sufficiently definite information about them. However, after reading petitioners’ brief in this court, the AEC, by order dated November 6, 1973, reversed the ASLB on this point and ordered the Board to allow the presentation of evidence on energy conservation alternatives.

Jurisdiction to entertain the petition depends on 28 U.S.C. § 2342(4) which empowers a court of appeals to review “all final orders of the Atomic Energy Commission made reviewable by section 2239 of title 42.” That section, whose full text is quoted in the margin, provides that “Any final order” of the AEC in a proceeding for, inter alia, a construction permit “shall be subject to review in the manner prescribed” in what is now 28 U.S.C. §§ 2341-2351 “and to the provisions of section 10 of the Administrative Procedure Act, as amended.” Niagara Mohawk contends that the April 12 order is not subject to review by us at this time; petitioners and, more surprisingly, the AEC say that it is.

All parties agree that an order of an administrative agency may be “final” even if it is not the last that may be entered. An order denying intervention constitutes one example. See, e. g., Interstate Broadcasting Co. v. United States, 109 U.S.App.D.C. 255, 286 F.2d 539 (1960); American Communications Ass’n v. United States, 298 F.2d 648 (2 Cir. 1962). Such well-known cases as Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), and McCulloch v. Sociedad Nacional de Marineros, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963), afford others. A third may be furnished by the portion of Greene County Planning Board v. FPC (Greene County I), 455 F.2d 412, 418-25 (2 Cir.), cert. denied 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972), where we entertained, apparently without objection on this point, an appeal from an order of the FPC refusing to stay hearings on the environmental effects of a power line because of the agency’s failure to prepare its own impact statement, the court having seemingly rejected in another context, 455 F.2d at 425-426, any crutch that might be furnished by the absence of the word “final” in the judicial review section of the Federal Power Act, 16 U.S.C. § 825l(b).

In Pepsico, Inc. v. FTC, 472 F.2d 179, 187 (2 Cir. 1972), a ease governed by the general language of § 10(c) of the APA (“final agency action for which there is no adequate remedy in a court”) rather than by a special statute, after consideration of some of these cases and others pointing in a different direction, notably Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938), and Arkansas Power & Light Co. v. FPC, 330 U.S. 802, 67 S.Ct. 963, 91 L.Ed. 1261 (1947), rev’g, 81 U.S.App.D.C. 178, 156 F.2d 821 (1946), we accepted “for the sake of argument” that final agency action could be found “if an agency refuses to dismiss a proceeding that is plainly beyond its jurisdiction as a matter of law or is being conducted in a manner that cannot result in a valid order.” Without referring to our Pepsico decision, petitioners and the AEC urge in effect that this case comes within the second branch of the test we there sent up as a trial balloon. While an order excluding evidence would normally be the archetype of a non-final order, since any error will be inconsequential if the proponent prevails and can be corrected on review of the final order if he loses, it is contended that a different rule should prevail in environmental proceedings because of the enormous size of the records, the scant resources of environmental advocates, and the fact that an early reversal, if called for, will save time rather than lose it.

However, these arguments cut both ways. The giant delays that now plague such proceedings counsel against allowing appeals, interlocutory in any normal sense, which, if unsuccessful, would produce still more. The hearings in this case have been under way since October 10, 1973, and a hearing on the energy conservation issue was scheduled for the very week this petition was argued to us. The hearings thus might well be finished before we could decide what matters they ought to encompass. The alternative, a stay of the hearings, is also unattractive. We therefore agree with the holding of the District of Columbia Circuit, in a case much like this, that “the availability of relief from the final order granting a certificate is sufficient to preclude the ruling denying admission from being considered a final order.” Thermal Ecology Must Be Preserved v. AEC, 139 U.S.App.D.C. 366, 433 F.2d 524, 526 (1970). If there is to be an exception, it should be limited to cases where the exclusionary ruling is so flagrantly wrong and demonstrably critical as to make it apparent that the agency is not merely courting the possibility of reversal but is running into the certainty of it if the ultimate decision should be against the proponent of the evidence. In that exceedingly limited category, the game of bestowing the rubric of finality on an order which, from an analytical standpoint, is surely interlocutory, may be worth the candle. It may well be said that an exception which is so vague and untidy and which demands at least some look at the merits before determining jurisdiction has little to commend it and that all orders excluding evidence should be held to be non-final. We could only plead, in confession and avoidance, that a rule affording a little play in the joints for judgment may work better than either of the polar extremes. This seems to be the thrust of the discussion in Davis, Administrative Law Treatise § 20.05 (1958 and 1970 Supp.).

Such an exception, however, would not assist the petitioners here. Their attacks do not meet the severe test necessary to overcome the essentially interlocutory nature of the order here sought to be reversed. Even if we agree with petitioners that the energy conservation issue is not moot, see fn. 2, nothing in Greene County I, supra, or any other decision of which we are aware holds that any deficiency in a FEIS is automatic ground for reversal of an order granting a permit although the issue has been opened for full consideration in an agency hearing. Our recent decision in Greene County Planning Board v. FPC (Greene County II), 490 F.2d 256, 258 (2 Cir. 1973), implies the contrary. The FEIS in the instant case included ten pages of discussion of “The Requirement for Power” and sixteen pages on “Alternative Energy Services and Sites.” The idea that if Niagara Mohawk’s customers could be induced to consume less energy, it would have less need for power than had been projected was hardly so esoteric that the omission of any reference to this in the FEIS would prevent an Oswego housewife from making this point in the proceeding if she cared to do so. Neither do we find the Board’s position on the environmental and Class 9 accident issues so patently wrong as petitioners allege. The FEIS contained 39 pages of discussion of the local environmental effects of the proposed plant, including the transportation of nuclear fuel and solid radioactive wastes, and eight on plant accidents through Class 8. The AEC’s position on Class 9 accidents, as we understand it, is that the possibility is too remote for consideration in licensing proceedings, and that efforts could more usefully be expended to improve the criteria for the ECCS, as it is currently doing in a rulemaking proceeding. The agency is likewise conducting a new rulemaking proceeding on the environmental effects of nuclear plants insofar as these are common to all; it would be absurd that the issue of the environmental effect of uranium mining in Wyoming should have to be separately considered on every application to construct nuclear plants from Maine to California. Rather the idea that a licensing agency should .endeavor to identify environmental issues common to many applications and handle them in “generic” proceedings would seem to benefit all parties, particularly the poorly-financed environmental groups. See American Commercial Lines, Inc. v. Louisville & Nashville R. R., 392 U.S. 571, 88 S.Ct. 2105, 20 L.Ed.2d 1289 (1968); Murphy, supra, fn. 4, at 986-89. The Administrative Conference of the United States has recently proposed precisely this, Recommendation 73-6. While we do not mean this discussion to foreclose petitioners from raising the issues here presented on review of a final order granting a permit if one should issue, we are not at all convinced that the AEC is steering what is bound to be a collision course.

The petition for review is dismissed for lack of jurisdiction by this court.

      . One station has been in commercial operation since 1969. Subject to the grant of an operating permit, the second is scheduled to begin operations during the current year.

      . The AEC and intervenor Niagara Mohawk say that this moots the exclusion of the energy conservation issue, the point most heavily stressed in petitioners’ brief. Petitioners deny this, claiming that the permission to offer evidence on energy conservation does not cure the omission of any discussion of this alternative in the Pinal Environmental Impact Statement (PEIS).

      . (a) In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license or construction permit, or application to transfer control, and in any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees, and in any proceeding for the payment of compensation, an award or royalties under sections 2183, 2187, 2236(c) or 2238 of this title, the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding. The Commission shall hold a hearing after thirty days’ notice and publication once in the Pederal Register, on each application under section 2133 or 2134(b) of this title for a construction permit for a facility, and on any application under 2134(c) of this title for a construction permit for a testing facility. In cases where such a construction permit has been issued following the holding of such a hearing, the Commission may, in the absence of a request therefor by any person whose interest may be affected, issue an operating license or an amendment to a construction permit or an amendment to an operating license without a hearing, but upon thirty days’ notice and publication once in the Pederal Register of its intent to do so. The Commission may dispense with such thirty days’ notice any publication with respect to and application for an amendment to a construction permit or an amendment to an operating license upon a determination by the Commission that the amendment involves no significant hazards consideration.
      (b) Any final order entered in any proceeding of the kind specified in subsection (a) of this section shall be subject to judicial review in the manner prescribed in the Act of December 29, 1950, as amended, and to the provisions of section 10 of the Administrative Procedure Act, as amended.

      . This opinion should not be construed as holding that matters would stand differently if the AEC had not reversed the ASLB’s exclusionary ruling. See Murphy, The National Environmental Policy Act and the Licensing Process: Environmentalist Magna Carta or Agency Coup de Grace, 72 Colum.L.Rev. 963, 987 (1972). That point is not before us.

      . The explanatory memorandum accompanying the recommendation said:
      While many of the questions in environmental cases will turn on matters peculiar to the individual project, a great many, including most matters of technology assessment, will be common to a number of proceedings. A single generic proceeding may enable environmental groups, which frequently lack sufficient resources to produce experts and to prepare written submissions for individual cases, to make more effective presentations. The potential complexity of these issues, the fact that the number of people knowledgeable about the technology is apt to be small, and the likelihood the testimony adduced in separate hearings will be substantially repetitive, argue strongly that where possible the issues should be decided in the forum of a single proceeding. The decisions made should be binding in subsequent proceedings subject to some limited opportunity to reopen the earlier decisions on the basis of good cause shown.